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State v. Wellington

Court of Appeals of Ohio, Fourth District, Gallia

October 26, 2017

STATE OF OHIO, Plaintiff-Appellee,
STEVEN E. WELLINGTON, Defendant-Appellant.

          Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for appellant.

          Jason D. Holdren, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for appellee.



         {¶1} After the jury convicted Steven E. Wellington of inducing panic, the court sentenced him to three years of community control. Wellington asserts that the trial court erred in denying his motion for judgment of acquittal at the close of the state's case. He claimed that the state did not establish the crime of inducing panic because it had not proven that he committed any predicate offense. In response to the motion, the state argued that Wellington had committed the underlying offense of criminal trespass.

         {¶2} The state now concedes that the trial court erred by denying Wellington's motion, and our review of the record confirms that the evidence was insufficient to establish that Wellington committed any predicate offense because there was no evidence that Wellington had entered property without privilege to do so. We sustain Wellington's second assignment of error, reverse his conviction and sentence, and remand the cause to the trial court for entry of a judgment of acquittal.

         I. FACTS

         {¶3} The Gallia County Grand Jury returned an indictment charging Steven Wellington with one count of inducing panic in violation of R.C. 2917.31(A)(3), a fifth-degree felony. The indictment stated that "on or about the 26th day of August, 2016, at Gallia County, Ohio, STEVEN E. WELLINGTON, did cause the evacuation of a public place, to-wit: the First Baptist Church (Ohio Valley Christian School), or otherwise cause serious public inconvenience or alarm, by committing an offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm, said offense resulted in economic harm of one thousand dollars or more but less than seven thousand five hundred dollars, in violation of Section 2917.31(A)(3) of the Ohio Revised Code." The indictment did not identify the predicate offense required to establish the crime.

         {¶4} Wellington pleaded not guilty to the charge and requested a bill of particulars. The state's response merely reiterated the language of the indictment and thus did not identify the predicate offense to the charge of inducing panic.

         {¶5} At the jury trial the state introduced evidence that Wellington entered the property of First Baptist Church in Gallipolis at night to place a sign near one of the church entrances. The sign included the following language, as summarized in the testimony of one of the church's pastors:

Hear ye, hear ye, I told you, you are not saved until we are in Heaven actually and you threw me out physically. For that it is time to condemn this building (church) by order, order of my Heavenly Father in Heaven for as Jesus said whatever you do to the least of these you do unto me. So by order of all who enter risk death for my Heavenly Father shall destroy this building and all that enter in and for him that touched * * * he may Hell warm his soul for Heaven is closed to him. Thus sayeth the Lord. Amen. If any remove this sign, * * * any innocent soul is lost then he who removes it will burn before morning.

         {¶6} The church contacted the police, and after concluding that the sign included a legitimate threat, sent a memorandum to parents documenting the threat. The police received information pointing to Wellington, who admitted placing the sign on the church property.

         {¶7} At the conclusion of the state's case-in-chief, Wellington moved for a judgment of acquittal under Crim.R. 29, arguing that the state had failed to establish the element requiring that a predicate offense had been committed. The state countered that "[t]he underlying offense, I mean there's been testimony that he came in at night uh, put the sign there and left. So there was trespass on the property, there's been testimony as to that." Wellington's counsel replied that there had been no testimony that Wellington had trespassed on church property.

         {¶8} The trial court denied the motion, and the case was submitted to the jury without the trial court identifying a predicate offense in its instructions. The jury returned a verdict finding Wellington guilty of inducing panic; the trial court entered ...

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