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State v. Smith

Court of Appeals of Ohio, Tenth District

December 28, 2017

State of Ohio, Plaintiff-Appellee,
v.
Michael D. Smith, Defendant-Appellant.

         APPEAL from the Franklin County Municipal Court No. 2015 CRB 20017

         On brief:

          Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, for appellee City of Columbus.

         Argued:

          Orly Ahroni.

         On brief:

          Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.

         Argued:

          John W. Keeling.

          DECISION

          HORTON, J.

         {¶ 1} Defendant-appellant, Michael D. Smith ("Smith"), appeals from a jury verdict finding him guilty of aggravated menacing, disorderly conduct, and ethnic intimidation. For the reasons set forth below, we affirm in part and reverse in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         {¶ 2} On August 28, 2015, a five-count complaint was filed alleging that Smith had committed a series of misdemeanor offenses stemming from incidents at a California Fitness gym. The first count alleged that Smith had committed first degree misdemeanor assault, in violation of Columbus City Code 2303.13(A), when he knowingly attempted to cause physical harm to "Michael Harris, by means of charging after the victim to the point of having to be restrained by other members of the gym." The second count, aggravated menacing, a first degree misdemeanor under Columbus City Code 2303.21, alleged that Smith knowingly caused Dana Rocco to believe that Smith would cause him serious physical harm when he threatened to shoot up the gym and in a subsequent email correspondence. The third count also alleged aggravated menacing based on similar events, but identified a different person, Sean H. Scott, as the victim. The fourth count was ethnic intimidation, a first degree misdemeanor under Columbus City Code 2331.08(A). It alleged that Smith had violated Columbus City Code 2303.22 by committing menacing when he "ran up to Michael Harris in a violent manor [sic] and attempted to assault said victim, and the reason or one of the motives, reasons or purposes for the commission of the offense was the victim's sexual orientation." The final count, a fourth degree misdemeanor charge of disorderly conduct under Columbus City Code 2317.11(A), also identified Michael Harris as the victim. It alleged that Smith had "recklessly cause[d] inconvenience, annoyance & harm" to Harris "by threatening harm to [his] person and engaging in violent or turbulent behavior" when Smith "charged after the victim to do bodily harm and [had] to be restrained." (Aug. 28, 2015 Compl.)

         {¶ 3} Smith entered a plea of not guilty to the charges on September 4, 2015, and requested a trial by jury. (Sept. 4, 2015 Demand for Jury Trial.) The trial commenced on January 4, 2016. Sean Scott, the alleged victim of one of the aggravated menacing charges, did not testify, and that charge was dismissed. (Jan. 4, 2016 Tr.; Jan 8, 2016 Entry.)

         {¶ 4} The prosecution's first witness was Michael Harris. Harris testified that he was gay and had been a gym member since 2014. (Jan. 4, 2016 Tr. at 20-21.) On August 23, 2015, Harris was working out at the gym. On his way to an exercise machine, he said hi to Laverne Kemp, an acquaintance with whom he had not socialized outside of the gym. Kemp was working out on a treadmill next to Smith. (Tr. at 16-17.) Harris began to listen to music on his headphones while working out, but heard "someone yelling, " although he could not make out the words. (Tr. at 18.) He turned around and saw Smith running on his treadmill while looking at him, and Kemp stopping her machine with a worried look on her face. Id. Harris then saw Smith jump off of his treadmill and "come after" him at "high speed." (Tr. at 18-19.) Harris testified that he felt "threatened" by Smith's body language, as his face looked angry and there was "a lot of huffing and puffing coming from him." (Tr. at 19.) Harris then removed his headphones and heard Kemp and another person ask Smith to calm down and grab him. Id. Harris testified that he did not know Smith, and had never seen or spoken to him before. (Tr. at 16, 23.)

         {¶ 5} Laverne Kemp also testified about the incident. She stated that she was a corrections officer who had worked at Madison Correctional Institution for over 18 years. (Tr. at 34.) She described Harris as a "nice kid" that she talked to at the gym. (Tr. at 35-36.) On August 23, 2015, she was on a treadmill running when Harris walked by and said hi to her. Smith and another man were on treadmills on either side of her. (Tr. at 36.) After Harris passed by, Kemp testified that Smith started to scream that he "hate[d] fags, he'd kill all the fags, " and would not "go in the locker room no more because of all the fags in there, " even though "[n]obody had done anything to" Smith. (Tr. at 37.) Kemp said that she and the man on the other side of Smith "just kind of looked at him because we didn't know why he just went crazy." (Tr. at 37-38.) At first she was "stunned, " but then realized that Smith was talking about Harris. (Tr. at 38.) Kemp saw Harris get up, take his headphones off, start to approach them, but then turned around and walked away. At that point, Smith "jumped off his treadmill" and said that he wanted to ask Harris if he wanted to "fight him" before starting to approach him. (Tr. at 39.) Kemp and the other man restrained Smith, who then went back to his treadmill. Id. Kemp described Smith as "enraged, " and stated that Smith had gone "from zero to a hundred in a second." (Tr. at 40-41.) After the incident, Kemp found Harris in the activity room, where she "tried to explain to him" that Smith had gone after him because he was gay. (Tr. at 42, 24.)

         {¶ 6} Towards the end of her testimony, Kemp testified as follows: Q. All right. Do you know Mr. Smith?

A. No.
Q. Other than appearing in court?
A. No.
Q. You don't know Michael Harris other than being a gym member with him and coming to this court case, correct?
A. I - - No, I ain't never - - I don't recall ever seeing him at a prison or anything that I was at, you know, that I work at, so, I don't know. He could have been at our prison before because there's two sides to our jail so he could have been in there. But he did say when this incident was going on, and I told him that, he had been out for ten years.

(Tr. at 43.)

         {¶ 7} Defense counsel objected to this statement as highly prejudicial to Smith and requested that it be stricken. (Tr. at 43, 50.) The prosecution claimed the statement was admissible as a statement by a party-opponent under Evid.R. 801(D). (Tr. at 44.) The trial court declined to strike the statement. (Tr. at 50.)

         {¶ 8} After Kemp's testimony, the prosecution called Dana Rocco, the owner of the gym, as a witness. (Tr. at 70-71.) Rocco testified that he knew Smith, Harris, and Kemp. (Tr. at 73-74.) Sean Scott, a gym employee, reported to Rocco that Smith had come into the gym on August 25, 2015 and "threatened to shoot up all the faggots and gay people in the gym and just come shoot the gym up." (Tr. at 79.) After contacting a detective and the police, as well as talking to several people about the incident, Rocco decided to cancel Smith's gym membership. (Tr. at 74, 79, 90.) After unsuccessfully attempting to phone Smith, Rocco sent him an email stating that his membership had been terminated and a police report had been filed. (Tr. at 75; City's Ex. 1.)

         {¶ 9} Rocco received what he described as a "very negative" response from Smith. (Jan. 4, 2016 Tr. at 76.) An email sent at 7:30 a.m. on August 26, 2015 from Smith read: "pussy ass honkey don't be sending me no mutha fuccin emails you fuccin HOMO. you bitch." (City's Ex. 1.) An email Smith sent four minutes later stated: "fuck your faggot ass gym you bitch. i will see you again. small world." (City's Ex. 2.)

         {¶ 10} Rocco testified that the emails made him feel "stressed, scared" and threatened. (Jan. 4, 2016 Tr. at 78.) Based on the contents of the emails and the incident from the previous day, Rocco believed that Smith's threat was credible. Id. The police visited the gym the next couple mornings "to make sure nothing happened, " and about 50 members canceled their memberships after hearing about the threat. (Tr. at 79-80.) Rocco testified that he was scared and continued to be scared that "something's going to happen." (Tr. at 80.)

         {¶ 11} The prosecution's final witness was Larry Wilson, a detective from the Columbus Police Department. (Tr. at 105-08.) He testified that Rocco contacted him about Smith's threat and the incident with Harris. (Tr. at 110.) Wilson stated that he interviewed witnesses, including Kemp. He stated that Kemp "was pretty credible, because she does this for a living. She has -- like cops, she reads people." (Tr. at 112.) Detective Wilson stated that his reaction to speaking to Harris was "yeah, he was telling me a story and I'm like, okay, okay, I believe you there. I believe you there. I believe you there. I believe you to a certain point." Id. Wilson then stated that he felt that he did not need to interview Smith about the allegations because he "got enough" after talking to Kemp: "I'm talking to someone that again does this for a living. She reads people like I do. If you work inside a prison or you're a guard, your life depends on it, you have to be able to read people. You see their intentions, you read their body language." (Tr. at 114.) Smith's attorney objected to each of these remarks, or attempted to, and each objection was overruled. (Tr. at 112, 114.)

         {¶ 12} On redirect, the prosecution elicited the following statement from Wilson:

Then when you go to a person that has higher credibility, in my opinion, someone that has been sworn like myself to uphold the law like the Lavern lady, her's was the strongest to me, all the rest, okay, yeah, I hear what you're saying, but she's independent. She had nothing to lose or gain either way. She's used to seeing situations and evaluating them and telling you what she saw. When she said it, I was convinced at that point.

(Tr. at 128.)

         {¶ 13} Smith presented no witnesses or evidence. The jury did not return a verdict on the assault charge, but did return guilty verdicts on the charges of aggravated menacing, ethnic intimidation, and disorderly conduct. (Jan. 8, 2016 Jury Verdict.)

         {¶ 14} On appeal, Smith asserts the following assignments of error:

[I.] THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION.
[II.] THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT AGAINST THE MANIFEST ...

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