Court of Appeals of Ohio, Fifth District, Richland
BYRON E. YAMBRISAK Plaintiff-Appellant
STATE OF OHIO Defendant-Appellee
from the Richland County Court of Common Pleas, Case No.
Plaintiff-Appellant JACQUELINE GREENE, TERRY GILBERT.
Defendant-Appellee MICHAEL DEWINE Ohio Attorney General,
DEBRA GORRELL WEHRLE Assistant Attorney General.
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B.
Hoffman, J. Hon. Earle E. Wise, Jr., J.
Plaintiff-appellant Byron E. Yambrisak appeals both the
January 5, 2017 Decision and the February 21, 2017 Judgment
Entry entered by the Richland County Court of Common Pleas
denying his request for declaration of wrongful imprisonment,
pursuant to R.C. 2743.48(A). Defendant-appellee is the state
OF THE CASE
On May 10, 2011, Appellant was indicted on one count of
retaliation, in violation of R.C. 2921.05(A); and one count
of intimidation, in violation of R.C. 2921.03. A jury found
Appellant guilty on both counts. The trial court sentenced
Appellant to three years on the retaliation charge, and three
years on the intimidation charge.
Appellant filed a direct appeal of his convictions to this
Court in State v. Yambrisak, Richland No. 2012 CA
50, 2013-Ohio-1406. Via Opinion and Judgment Entry entered
April 5, 2013, this Court reversed Appellant's
convictions on both counts, remanding the matter to the trial
court with instructions to enter acquittal on both counts.
Id. Appellant served ten months in prison before his
release on April 17, 2013.
In State v. Yambrisak, 2013-Ohio-1406, this Court
In the late morning of July 15, 2011, Detective Pat Smith of
the Richland County Sherriffs Department was called to
MedCentral Hospital to investigate a child victim of rape.
Detective Smith was in plain clothes and driving an unmarked
vehicle; however she did have her service revolver holstered
on her right hip. She left the hospital a few minutes before
1:00 p.m. Detective Smith testified that she had parked her
unmarked vehicle in the parking lot located on Glessner
Avenue, across from the hospital. As she prepared to cross
the street at the pedestrian crosswalk, a small green vehicle
sped through the crosswalk.
Detective Smith crossed at the crosswalk towards the parking
lot. As she approached her vehicle, Detective Smith was
hailed by an old acquaintance, Vernessa Bond, who happened to
be parked near Detective Smith's vehicle. The two engaged
in a casual conversation. While the two conversed, the little
green vehicle drove by again. The male passenger began
yelling racial slurs towards Detective Smith and Ms. Bond,
both of whom are African-American. The verbal tirade included
phrases such as "I hate you, you fucking nigger. You
black bitch, I'm going to fuck you up."
The vehicle proceeded on towards Glessner Avenue as the two
women continued their conversation. The vehicle returned and
stopped on Lind Avenue, close to where the women were parked.
The occupant began yelling racial slurs again this time
including, "Do you like talking to young girls about
sex? Do you like talking to prostitutes about sex? I hate
you, you fucking nigger, I'm going to fuck you up."
Detective Smith took two steps towards the vehicle to see if
she could identify the occupant. Detective Smith then
testified that she yelled, "I know who you are, Byron
Yambrisak, you need to be on your way." The vehicle
immediately sped away. Detective Smith immediately called
dispatch on her cell phone to report the incident, prior to
returning to her vehicle.
Both intimidation and retaliation require that the state
prove beyond a reasonable doubt an "unlawful threat of
harm." The Supreme Court of Ohio suggested that, to be
unlawful, the threat itself must violate a predicate offense.
State v. Cress, 112 Ohio St.3d 72, 858 N.E.2d 341,
2006-Ohio- 6501, ¶ 43. (Construing the "unlawful
threat of harm" element of R.C. 2912.04(B), attempt to
intimidate victim, witness or attorney for being a witness)
The court held "that the statutory language in R.C.
2921.04(B), proscribing intimidation by an 'unlawful
threat of harm, ' is satisfied only when the very making
of the threat is itself unlawful because it violates
established criminal or civil law." Id. at
¶ 42, 858 N.E.2d 341. The court held that the threat
itself, not the threatened conduct, must be unlawful.
Id. at ¶ 38, 858 N.E.2d 341. As the
"threat of harm" language of R.C. 2921.03 is
identical to the language construed by the Court in Kress
[SIC], we find the Supreme Court's analysis to be
persuasive in a case involving intimidation under R.C.
In this case, the only evidence of an alleged unlawful threat
of harm are the following statements,
I hate you, you fucking nigger. You black bitch, I'm
going to fuck you up.
Do you like talking to young girls about sex? Do you like
talking to prostitutes about sex? I hate you, you fucking
nigger. I'm going to fuck you up.
1T. at 145-146. Yambrisak does not deny that he made these
statements or that he directed the statements to Detective
We find based upon all the surrounding circumstances,
Yambrisak's words were too unequivocal, unconditional,
not immediate and not specific enough to convey to Detective
Smith that he was retaliating for her involvement with him
two years earlier.
We find there was insufficient evidence in the record that
Yambrisak purposefully or unlawfully threatened Detective
Smith in retaliation for her ...