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State v. Wasmire

Court of Appeals of Ohio, Fifth District, Stark

December 29, 2017

STATE OF OHIO Plaintiff-Appellee
v.
KEVIN WASMIRE Defendant-Appellant

         Criminal Appeal from the Alliance Municipal Court, Case No. 2017 CRB 0200

          For Plaintiff-Appellee JENNIFER L. ARNOLD LAW DIRECTOR

          For Defendant-Appellant DEREK LOWRY

          Hon. John W. Wise, P. J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          WISE, JOHN, J.

         {¶1} Appellant Kevin E. Wasmire appeals his conviction on one count of menacing following a jury trial in the Alliance Municipal Court.

         {¶2} Appellee is the State of Ohio.

         STATEMENT OF THE FACTS

         {¶3} On February 9, 2017, Appellant Kevin Wasmire was charged with one count of Menacing, a misdemeanor of the 4th Degree. A warrant was issued, and Appellant was arrested on February 12, 2017.

         {¶4} The menacing charges arose out of an investigation in which Detective William Johnson of the Alliance Police Department was involved in December, 2016, regarding stolen property. This investigation concerned tens of thousands of dollars of equipment, power tools, auto equipment, trailers and a plow. (T. at 154). Investigation into these stolen items led the Detective to Appellant Kevin Wasmire as a person of interest. As part of the investigation he obtained a search warrant for Appellant's home. (T. at 168). Further, Appellant consented to Det. Johnson searching his cellular telephone. (T. at 168). Upon a search of the cell phone, Det. Johnson saw a great deal of contact with Tyler Sammons, the victim in this matter. (T. at 169).

         {¶5} Appellant and Tyler Sammons had previously worked together at T & N Excavating in Alliance, Ohio. (T. at 93-94). In December, 2016, when Appellant was interviewed by Det. Johnson regarding the missing property, he learned the extent of Sammons involvement with Appellant. (T. at 99-100). As a result, Johnson also investigated Sammons. (T. at 180). Sammons ended up being charged as a co-defendant to Appellant in the missing property matter. (T. at 181).

         {¶6} The property investigation into Appellant also led Det. Johnson to Zach Clair. (T. at 170, 182). During an interview with Clair, when questioned about the thefts Clair immediately gave over his cell phone to Det. Johnson. (T. at 172). Clair's cell phone revealed messages about Sammons from Appellant to Clair. The messages (Exhibit "A") between Appellant and Clair occurred after Appellant was released from jail on bond on the property charges. (T. at 173). They were from a messaging app such as Facebook Messenger. (T. at 173). Det. Johnson was concerned about the content of the messages, and contacted Sammons' attorney. (T. at 175).

         {¶7} During the trial, Clair recalled that he was approached by Det. Johnson in February, 2017, as a result of his communications with Appellant and an ongoing investigation. (T. at 151). At that time, Clair answered questions and also produced the text messages Appellant sent to him about Sammons. (T. at 151). He testified that he did this because he did not think it was right that Appellant was threatening Sammons. (T. at 151).

         {¶8} Det. Johnson described Sammons as young, naive, and easily intimidated. (T. at 169). Zachary Clair testified that he went to high school with Sammons and recalled that Sammons was bullied in school. (T. at 148-149). Clair stated Sammons was the type of person who did not stand up for himself, and instead just tried to walk away. (T. at 150).

         {¶9} At trial Sammons testified he previously turned Appellant in for "stealing hours" when they worked together. (T. at 95). He stated that Appellant threatened to "clean his clock" after this. (T. at 105). After that Sammons started to get random disturbing text messages from Appellant, i.e. "I see you". (T. at 96-97). Since that time Sammons has been concerned because Appellant always seemed to know where he was. (T. at 97). After this and as result of Appellant's actions, Sammons sought out and obtained his Concealed Carry License (CCW). (T. at 98).

         {¶10} In early 2017, Sammons learned that Appellant was looking for him. (T. at 101). He learned this through seeing the text messages from a mutual acquaintance, Zachary Clair, on February 8, 2017. (T. at 99-100, 102). When Sammons learned of these messages, he testified he became nervous and went into a panic. (T. at 121-122). Sammons believed Appellant would cause him physical harm. (T. at 122).

         {¶11} After Sammons learned of these text messages, he attempted to avoid Appellant because he was afraid. (T. at 103). He attempted to ignore the text messages he received from him. (T. at 118). Sammons testified that as long as Appellant was out on the streets, he would be in fear. (T. at 122).

         {¶12} Det. Johnson also testified that when he presented the messages to Sammons when he returned to the Alliance Police Department to finish a written statement on February 8, 2017, Sammons was visibly shaken and upset. (T. at 178-179).

         {¶13} During the trial, the jury learned that Appellant told Clair the reason he was upset with Sammons and that it involved him going to jail, and it had been in the papers and news. (T. at 156-157). Clair showed Det. Johnson the messages after Johnson told him that Sammons was involved in charges. (T. at 162).

         {¶14} Appellant also testified during the trial. Appellant testified that he and Sammons did not have a good relationship. (T. at 227). Appellant admitted that he told Sammons he would "kick his ass", after a work dispute. (T. at 227). Appellant claimed that after he told Sammons he would "kick his ass", Sammons followed directions better and was a better worker. (T. at 227). Appellant also testified that he does not like people who snitch. (T. at 228).

         {¶15} Appellant admitted he had the text conversation with Zach Clair about Sammons. (T. at 229-230). Appellant told the jury he blamed Sammons for getting him in trouble, and that it was all Sammons fault that he was in trouble. (T. at 231).

         {¶16} After hearing the evidence, the jury found Appellant guilty of the one count of menacing. The trial court sentenced Appellant to 30 days in Stark County Jail and a $250.00 fine, with sentence imposed immediately.

         {¶17} It is from this conviction and sentence Appellant now appeals, ...


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