Court of Appeals of Ohio, Fourth District, Gallia
APPEAL FROM MUNICIPAL COURT
L. Meade, Columbus, Ohio, for appellant.
R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio,
DECISION AND JUDGMENT ENTRY
B. Abele, Judge.
1} This is an appeal from a Gallipolis Municipal
Court judgment of conviction and sentence. The trial court
found Gary Vickers, defendant below and appellant herein,
guilty of aggravated menancing, a first degree misdemeanor.
2} Appellant assigns the following error for review:
"THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE IN
SUPPORT OF A CONVICTION FOR AGGRAVATED MENANCING, BECAUSE THE
EVIDENCE IS INSUFFICIENT TO PROVE THAT MR. VICKERS USED A
GUN, AND EVEN IF HE HAD A GUN, THE EVIDENCE IS INSUFFICIENT
TO PROVE THE VICTIM SUBJECTIVELY BELIEVE HE WOULD CAUSE HER
SUBSTANTIAL PHYSICAL HARM TO HER PERSON OR PROPERTY."
3} On September 14, 2016, Rio Grande Police
Department Patrolman Chad Still filed a complaint that
charged appellant with aggravated menancing, in violation of
Rio Grande Village Ordinance 537.05(a), a first degree
misdemeanor. At his arraignment, appellant pled no contest to
the charge. Appellant, however, wished to have counsel
appointed to represent him at sentencing. Prior to
sentencing, appellant requested to withdraw his no contest
plea. The trial court granted appellant's request to
withdraw his plea and scheduled the matter for trial.
4} At trial, the evidence revealed that on September
7, 2016, appellant engaged in an argument with his neighbor,
Alisha Johnson. The argument first began in the street, then
the participants retreated to their respective residences.
Shortly thereafter, appellant decided to visit Johnson's
residence. Apparently, Johnson exited her residence and,
according to Johnson, appellant produced and pointed a black
handgun at Johnson and told her that he would shoot her.
Johnson testified that she believed that appellant intended
to cause her serious physical harm.
5} In addition to the victim, several other
witnesses testified during the bench trial, including the
appellant's girlfriend, Ms. McCoy, appellant's
father, Mr. Vickers, the investigating officer and the
appellant. The record reveals that several conflicts arose in
the evidence from various witnesses, especially concerning
the presence and the use of the weapon. Appellant indicated
that he did not own any handguns, but did own BB guns.
Appellant also maintained that he did not have a BB gun in
his possession during the altercation.
6} After hearing the evidence and counsels'
lengthy closing arguments, the trial court found appellant
guilty as charged. The court indicated from the bench that
the facts adduced at the trial established that appellant had
threatened Johnson with what appeared to be a handgun, but
was probably a BB gun that had the appearance of a handgun.
Consequently, appellant caused Johnson to believe that
appellant intended to cause her serious physical harm. The
court sentenced appellant to serve twenty-two days in jail
with credit for time served, three years of community control
supervision, pay a fifty dollar fine, pay court costs and pay
a supervision fee. Appellant filed a timely notice of appeal.
7} In his sole assignment of error, appellant
asserts that insufficient evidence supports his conviction
for aggravated menancing. Generally, a claim of insufficient
evidence invokes a due process concern and raises the
question whether the evidence is legally sufficient to
support the verdict as a matter of law State v
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997)
When reviewing the sufficiency of the evidence, our inquiry
focuses primarily upon the adequacy of the evidence; that is,
whether the evidence, if believed, reasonably could support a
finding of guilt beyond a reasonable doubt Id. at
syllabus The standard of review is whether, after viewing the
probative evidence and inferences reasonably drawn therefrom
in the light most favorable to the prosecution, any rational
trier of fact could have found all the essential elements of
the offense beyond a reasonable doubt Eg, Jackson v
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v Jenks, 61 Ohio St.3d 259, 273,
574 N.E.2d 492 (1991) Furthermore, a reviewing court should
not assess "whether the state's evidence is to be
believed, but whether, if believed, the evidence against a
defendant would support a conviction"
Thompkins, 78 Ohio St.3d at 390 (Cook, J,
8} Thus, when reviewing a
sufficiency-of-the-evidence claim, an appellate court must
construe the evidence in a light most favorable to the
prosecution. E.g., State v. Hill 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v.
Grant 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A
reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds
could not reach the same conclusion than that of the trier of
fact. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749
N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d
460, 484, 739 N.E.2d 749 (2001).
9} In the case sub judice, the aggravated menancing
ordinance provides, inter alia, that a defendant may not
knowingly cause another to believe that the defendant would
cause serious physical harm to the victim's person or
property. We believe, after our review of the evidence
adduced at trial and viewed in a light most favorable to the
prosecution, that substantial competent and credible
evidence, if believed, supports a finding that any rational
trier of fact could have found all of the essential elements
of the crime of aggravated menancing beyond a reasonable
doubt. The trial court, sitting as the trier of fact, could
opt to believe all, part or none of the testimony of any
witness who testified at trial. Obviously, the court found
the victim's testimony to be credible and ...