Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-617652-B
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin and Maxwell Martin, Assistant
Prosecuting Attorneys, for appellee.
L. Ferrara, for appellant.
JOURNAL ENTRY AND OPINION EN BANC
RAYMOND C. HEADEN, JUDGE.
1} Pursuant to App.R. 26, LocApp.R. 26, and
McFadden v. Cleveland State Univ., 120 Ohio St.3d
54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined
that a conflict existed between the original panel's
decision in this case and this court's prior decision in
State v. Muniz, 8th Dist. Cuyahoga No. 93528,
2010-Ohio-3720, regarding what must be proven to support a
conviction for intimidation.
2} In his motion for en banc consideration, the
appellant also alleged that this court's prior decision
presents a conflict with State v. McLean, 8th Dist.
Cuyahoga No. 106293, 2018-Ohio-2232, and State v.
Teaque, 8th Dist. Cuyahoga No. 106469, 2018-Ohio-3997,
as to whether this court must conduct an allied-offense
analysis and recognize plain error where the sentences for
the alleged allied offenses were ordered to be served
concurrently. We find no conflict here. The panel opinion
does not conflict with Teaque because that case
involved the merger of allied offenses where sentences were
ordered to be served consecutively. Further, the panel
opinion does not conflict with McLean because the
Ohio Supreme Court has held that the recognition of plain
error under Crim.R. 52(B) is discretionary. State v.
Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240.
Therefore, the question presented is not a conflict of law
but rather a divergence in the exercise of judicial
discretion, and we decline to accept this issue for en banc
3} Having applied the law adopted by the en banc
court here on the issue of what must be proven to support an
intimidation conviction, the panel opinion released November
15, 2018, stands as the decision of the court. The text of
that opinion is appended to this en banc decision. We
overrule all prior decisions of this court inconsistent with
our holding here.
4} It is the opinion of the en banc court that the
fact that an underlying criminal or delinquent act occurred
is not an essential element of the crime of intimidation of a
5} R.C. 2921.04(B)(2) states that no person,
knowingly and by force or threat of harm, "shall attempt
to influence, intimidate, or hinder * * * [a] witness to a
criminal or delinquent act by reason of the person being a
witness to that act[.]" In this context, a
"witness" means "any person who has or claims
to have knowledge concerning a fact or facts concerning a
criminal or delinquent act, whether or not criminal or
delinquent child charges are actually filed." R.C.
6} "The purpose of an indictment is to inform
the accused of the crime with which he is charged. The
indictment, therefore, provides notice to the defendant of
the charges against him so that he may prepare a
defense." State v. Benitez, 8th Dist. Cuyahoga
No. 98930, 2013-Ohio-2334, ¶ 11, quoting State v.
Davis, 8th Dist. Cuyahoga No. 61076, 1992 Ohio App.
LEXIS 4754, 2 (Sept. 17, 1992).
7} In Muniz, 8th Dist. Cuyahoga No. 93528,
2010-Ohio-3720, the defendant was charged with intimidation
of a crime victim in violation of R.C. 2921.04(B). The
indictment in Muniz made no mention of the
underlying offense. Further, a review of the facts in that
case shows that it was not clear that an underlying criminal
act had occurred, let alone the nature of such a criminal
act. The court in Muniz was concerned with the due
process implications of the defendant not being given
adequate notice of the charges she faced. In light of this
concern, the court in Muniz found the state's
failure to give notice of the underlying predicate acts in
the indictment rendered it defective from the outset.
8} Nothing in this en banc opinion shall be
construed to undermine the holding of Muniz with
respect to notice requirements. We maintain that a defendant
is entitled to adequate notice of the crimes against which
they must defend themself.
9} A charge of intimidation does not require a
conviction on the underlying offense. Had that been the
legislature's intent, it could easily have used the words
"criminal conviction" or "delinquent
adjudication" rather than "criminal or delinquent
act." Instead, the state need only prove that the
intimidation victim had knowledge about a fact or facts
concerning the underlying criminal or delinquent act, and
that the defendant knowingly and by force or threat of harm
intimidated the victim because of the victim's knowledge
of facts concerning the matter. While a defendant must be
apprised of the nature of the underlying criminal or
delinquent act, that act is not a separate element of the
offense that must be proven beyond a reasonable doubt. In
holding that the occurrence of the underlying act is an
essential element of intimidation, this court imposed an
unworkable burden on the state. In making a case for
intimidation, a prosecutor is not required to establish
beyond a reasonable doubt that the predicate act occurred.
Such a requirement, particularly in cases where the
underlying offense may have been committed by someone other
than the defendant in the intimidation case, would require a
trial within a trial that we do not believe was intended or
contemplated by the legislature in enacting R.C. 2921.04.
10} We hold that the occurrence of the underlying
criminal or delinquent act is not an essential element of the
offense of intimidation that must be proven beyond a
reasonable doubt. To the extent that our decision in
Muniz, 8th Dist. Cuyahoga No. 93528, 2010-Ohio-3720,
is inconsistent with this holding, it is overruled.
EILEEN KILBANE, A.J., PATRICIA ANN BLACKMON, MARY J. BOYLE,
FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, EILEEN T.
GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., KATHLEEN