Court of Appeals of Ohio, Twelfth District, Clermont
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No.
2018 CRB 4450
Vincent Faris, Clermont County Prosecuting Attorney,
Katherine Terpstra, for appellee.
S. Barone, for appellant.
1} Appellant, Seth M. Holtman, appeals from his
misdemeanor conviction in the Clermont County Municipal Court
for aggravated menacing. For the reasons set forth below, we
affirm appellant's conviction and sentence.
2} Appellant was charged with one count of
aggravated menacing in violation of R.C. 2903.21(A), a
misdemeanor of the first degree. The charge arose out of
allegations that on September 14, 2018, appellant pointed a
firearm at his girlfriend's mother, Heather Johnson,
causing Johnson to believe appellant would cause her serious
3} Appellant appeared before a magistrate with
counsel and entered a not guilty plea. During the hearing,
the magistrate discussed appellant's rights with him. The
magistrate advised appellant, in relevant part, that he had
"the right to a trial by jury. If you want a jury trial
its required that you first file a timely jury demand."
Appellant indicated that he understood his rights.
4} No demand for a jury trial was filed by appellant
and a bench trial was held on October 5, 2018. The state
presented testimony from Johnson and from the investigating
officer, Greg McAllister. Johnson testified that on September
14, 2018, she went to a mobile home park in Goshen Township,
Clermont County, Ohio to pick up her daughter, Elizabeth, so
that she could take Elizabeth to work. When Johnson was
picking up Elizabeth, appellant came outside the residence
with a pistol in his waistband. Appellant removed the pistol
from his waistband and set it upon a railing. Johnson
commented on the weapon and appellant picked the gun up and
pointed it at Johnson as she was sitting in her car.
5} Johnson stated that she knew appellant owned
firearms because he had previously talked about his guns and
the weapon he was pointing at her "looked real."
Johnson testified appellant's actions caused her to fear
that appellant would shoot her. Because she was not sure what
appellant was going to do, she wanted to "get out of
there as quick as [she] could." After leaving the mobile
home park, Johnson called the police to report
6} Officer McAllister testified that he investigated
Johnson's complaint and, during the course of his
investigation, he spoke with Johnson, Elizabeth, the
passenger who accompanied Johnson to pick up Elizabeth, and
appellant. McAllister also collected the weapon appellant had
brandished. McAllister testified the weapon had the
appearance of a real firearm but was, in fact, just a pellet
gun altered to look like a real gun. The weapon, a
"replica of [the] 1911, which is a long fame gun,"
had the orange tip blackened out with marker or paint to make
it look more realistic.
7} When McAllister spoke to appellant, appellant
admitted he had the gun on him at the time of the incident
with Johnson. However, appellant denied he pointed the gun at
Johnson or her passenger. Appellant told McAllister he had
pulled a knife on Johnson's passenger and told the
passenger, "You're gonna stick yourself."
8} Following the state's presentation of its
case-in-chief, appellant moved for acquittal pursuant to
Crim.R. 29. The trial court denied his motion, and appellant
presented testimony from his girlfriend in support of his
defense. Elizabeth testified that appellant had the gun in
his pants and he laid it down on a railing during the
incident with Johnson. Elizbeth stated she "did not
see" appellant point the gun at Johnson or make any kind
of threat towards Johnson. On cross-examination, Elizabeth
indicated she did not recall telling Officer McAllister that
she had her back turned for a portion of the incident.
9} After considering the foregoing testimony, the
trial court found appellant guilty of aggravated menacing and
sentenced him to 170 days in jail. After the court announced
its sentence and advised appellant of his right to appeal,
appellant indicated, for the first time, that he had desired
a jury trial on the charge. The court, after questioning
appellant's counsel, noted that appellant had not filed a
jury demand. The court therefore denied appellant's
request and adjourned the proceeding.
10} Appellant timely appealed, raising three
assignments of error for review.
11} Assignment of Error No. 1:
12} THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT IN FINDING HIM GUILTY OF AGGRAVATED
13} In his first assignment of error, appellant
argues his conviction for aggravated menacing was not
supported by sufficient evidence and was against the manifest
weight of the evidence. Appellant also argues that his trial
counsel was ineffective for failing to object to hearsay
testimony and the prosecutor's use of compound and
leading questions. We will begin by addressing
appellant's ineffective assistance of counsel arguments.
14} In order to prevail on an ineffective assistance
of counsel claim, an appellant must establish that (1) his
trial counsel's performance was deficient and (2) such
deficiency prejudiced the defense to the point of depriving
the appellant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052
(1984). Trial counsel's performance will not be deemed
deficient unless it "fell below an objective standard of
reasonableness." Id. at 688. To show prejudice,
the appellant must prove there exists "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Id. at 694. An appellant's
failure to satisfy one prong of the Strickland test
negates a court's need to consider the other. State
v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
15} Appellant argues counsel was ineffective for
failing to object to alleged hearsay evidence offered at
trial. Specifically, appellant argues his trial counsel was
deficient for not objecting to Johnson's testimony that
"My daughter, she called me and she said, 'Mom, can
you come pick me up?'" Appellant also ...