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State v. Gilbert

Court of Appeals of Ohio, Ninth District, Lorain

May 14, 2018

STATE OF OHIO Appellee
v.
RAMONE GILBERT Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. 2017CRB02009

          GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

          PATRICK D. RILEY, Law Director, and JOSEPH T. LAVECK, Assistant Law Director, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, JUDGE.

         {¶1} Appellant, Ramone Gilbert, appeals from his conviction for aggravated menacing in the Lorain Municipal Court. This Court affirms.

         I.

         {¶2} Mr. Gilbert wrote a song and performed it in a music video with his brother ("O.G."). Mr. Gilbert sang the lyrics while O.G. played a ukulele. The song was filmed by third person, and O.G. posted it on his Facebook page. The song included lyrics referencing Mr. Gilbert kicking in the door to his "baby momma's house, " tying her up with her kids and the "dude she started sleepin' with[, ]" dousing them all in gasoline, and lighting up a cigarette. The song culminates with Mr. Gilbert repeatedly uttering the line, "If you f**k me over, I'm gonna kill you." Mr. Gilbert and the mother of his only children ("R.C.") were involved in a custody dispute at the time the video was posted. R.C.'s cousin saw the video on O.G.'s Facebook page and showed it to R.C. on a cell phone. R.C. then reported the video to the police.

         {¶3} Mr. Gilbert was later charged with aggravated menacing and telecommunications harassment. Following a bench trial, the trial court found Mr. Gilbert guilty of aggravated menacing, but not guilty of telecommunications harassment. The court sentenced him to 180 days in jail and ordered him to pay a $200.00 fine. The court suspended 106 days of the sentence and granted him 74 days of jail-time credit. Mr. Gilbert was placed on intensive supervised probation for two years and was ordered to have no contact with R.C.

         {¶4} Mr. Gilbert now appeals from his conviction and raises two assignments of error for this Court's review.

         II.

         ASSIGNMENT OF ERROR ONE

         THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.

         ASSIGNMENT OF ERROR TWO

         THE VERDICT IN THIS CASE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.

         {¶5} In his first and second assignments of error, Mr. Gilbert argues that his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. Although sufficiency and manifest weight are two separate, legally distinct arguments and should be argued separately, Mr. Gilbert has chosen to argue them together in his brief, and we will therefore address them together. While we disagree with both his sufficiency and manifest weight arguments, we are compelled to note that our decision is based solely on the specific arguments presently before us and does not stand for a blanket proposition that a song containing threatening lyrics, which is posted on the Internet and eventually seen by the intended victim of the threats, always constitutes aggravated menacing under Ohio law.

         {¶6} Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. State v. Thompkins,78 Ohio St.3d 380, 386 (1997). "Sufficiency concerns the burden of production and tests whether the prosecution presented adequate evidence for the case to go to the jury." State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins at 386. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id., quoting State v. Jenks,61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, "we do not resolve evidentiary ...


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