[Cite as State v. Ayala, 2014-Ohio-2576.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-13-22
v.
RENE F. AYALA, OPINION
DEFENDANT-APPELLANT.
Appeal from Marysville Municipal Court
Trial Court No. CRB1300886
Judgment Affirmed
Date of Decision: June 16, 2014
APPEARANCES:
Alison Boggs for Appellant
John M. Eufinger for Appellee
Case No. 14-13-22
PRESTON, J.
{¶1} Defendant-Appellant, Rene F. Ayala (“Ayala”), appeals the
Marysville Municipal Court’s judgment entry of sentence. He argues that his
conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence. For the reasons that follow, we affirm.
{¶2} This case stems from an August 8, 2013 road rage incident that took
place on U.S. Route 36 in Union County, Ohio between Ayala and the victim, Eric
Gilmore (“Gilmore”). (Oct. 28, 2013 Tr. at 6). Ayala was charged with one count
of aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the
first degree.
{¶3} On October 28, 2013, a bench trial was held, and the trial court found
Ayala guilty. (Id. at 51); (Doc. Nos. 24, 25). On the same day, the trial court
sentenced Ayala to 180 days in jail and to pay a $600 fine. (Oct. 28, 2012 Tr. at
51); (Doc. No. 24). The trial court suspended 160 days of the jail sentence and
$300 of the fine. (Id.); (Id.).
{¶4} Ayala moved for a stay of execution of his sentence pending an
appeal. (Oct. 28, 2013 Tr. at 52); (Doc. No. 25). The trial court granted Ayala’s
motion. (Id.); (Id.). On November 26, 2013, Ayala filed a notice of appeal. (Doc.
No. 20). He raises one assignment of error for our review.
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Assignment of Error
The trial court’s decision was against the manifest weight and
sufficiency of the evidence.
{¶5} In his assignment of error, Ayala argues that there was insufficient
evidence to convict him of aggravated menacing and that his conviction for
aggravated menacing was against the manifest weight of the evidence.
Specifically, Ayala argues that the State failed to show Gilmore subjectively
believed Ayala would cause serious physical harm, which is an essential element
of the offense. Ayala offers no argument concerning the other essential elements
of the offense.
{¶6} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997), superseded by state constitutional amendment on other grounds as stated
in State v. Linzy, 5th Dist. No. 2012-CA-33, 2013-Ohio-1129. As such, we address
each legal concept individually.
{¶7} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
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Accordingly, “[t]he 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. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts
nor assess the credibility of witnesses, as both are functions reserved for the trier
of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,
2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505,
2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No.
4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy
rather than credibility or weight of the evidence.”), citing Thompkins, 78 Ohio
St.3d at 386.
{¶8} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins, 78 Ohio
St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
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State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-
weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶9} R.C. 2903.21 sets forth the offense of aggravated menacing and
provides: “No person shall knowingly cause another to believe that the offender
will cause serious physical harm to the person * * *.” R.C. 2903.21(A). “‘As the
statute indicates, the State was required to prove that the defendant (1) knowingly,
(2) caused [the victim] to believe that the defendant would cause him (3) serious
physical harm.’” State v. Hawk, 3d Dist. Allen No. 1-03-54, 2004-Ohio-922, ¶ 25,
quoting State v. Schwartz, 77 Ohio App.3d 484 (12th Dist.1991).
{¶10} At trial, the State called Gilmore to testify about the August 8, 2013
road rage incident. Gilmore stated that, as he was slowing to make a right turn,
Ayala passed him, and, instead of turning, Gilmore decided to continue straight.
(Oct. 28, 2013 Tr. at 6-7). Gilmore further testified that he caught up with Ayala
and attempted to pass Ayala’s vehicle and a blue minivan, but Ayala “sped up
considerably,” forcing Gilmore to return to the lane in front of Ayala’s vehicle,
and behind the minivan, “right before a hill.” (Id. at 7). Gilmore “had to apply
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[his] brakes considerably,” causing Ayala to rear-end Gilmore’s vehicle. (Id.).1
As a result of the collision, Gilmore stopped his vehicle and got out to check the
damage. (Id.).
{¶11} Gilmore testified:
I walked back towards the vehicle, [Ayala] got out of the car, said
something to the effect of, what’s your F-ing problem? Do you want
to F-ing die? And there was a pause and he said, I’ll cut you. At
this point, I looked – happened to look down further at his hand. He
had his hand kind of down at his side, and I saw a knife blade
sticking out of his hand. At that point, I felt it was unwise to
continue a confrontation. I backed off, went to my truck, picked up
my cell phone and called 9-1-1 at that point.
(Id.). Gilmore stated that, by the time he turned around, Ayala “had gotten back
into his car.” (Id.). While Gilmore was on the phone with 9-1-1, he walked to the
rear of his vehicle and noticed that it looked like Ayala was attempting to leave the
scene. (Id.). Gilmore testified that he told the 9-1-1 operator that it looked like
Ayala was attempting to leave. (Id.). At that point, another motorist, Dustin
Young (“Young”), arrived at the scene. (Id. at 8).
1
The record reflects that Gilmore was initially charged with improper passing for the traffic accident. The
ticket was later amended to reckless operation. (Oct. 28, 2013 Tr. at 15-18).
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{¶12} Gilmore further testified that he “was afraid that [Ayala] was going
to cut [him]” because Ayala said, “[D]o you want to die?” and that “he was going
to cut [Gilmore].” (Id. at 8). Gilmore testified that he “was a little fearful for [his]
life. So [he] traveled back to [his] truck. Got away from him. [He] left his
vicinity and [he] called 9-1-1.” (Id.).
{¶13} On re-direct, Gilmore described the knife he saw Ayala holding as “a
little blade, was maybe an inch or two * * *.” (Id. at 20). Gilmore reaffirmed that
he “was fearful that [Ayala] was actually going to use the knife on [him].” (Id.).
{¶14} The State’s second witness, Young, testified about what he witnessed
during the August 8, 2013 altercation. (Id. at 22). He testified that he arrived at
the scene of the accident and saw Gilmore “very animated walking around”
outside of his vehicle and Ayala backing his vehicle. (Id. 22-23). He asked
Gilmore what was going on, and Gilmore told him that Ayala “was trying to leave
the scene after he hit him and he pulled a knife on him.” (Id. at 23). As a result,
Young asked Ayala not to drive anywhere. (Id.). Young further testified that he
asked Ayala if he had a knife on him or in his vehicle. (Id. at 24). He said that
Ayala “said, no. That guy – the other guy’s just crazy. I don’t know what’s going
on.” (Id.).
{¶15} The State’s third witness was Trooper Ortiz of the Ohio State
Highway Patrol, Marysville Post, who testified that he was dispatched to the
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scene. (Id. at 27). He testified that, when he arrived, law enforcement officers
from the Union County Sheriff’s Office and a law enforcement officer from the
Delaware County Sheriff’s Office were already at the scene. (Id. at 28). Law
enforcement officers from the Union County Sheriff’s Office and the Delaware
County Sheriff’s Office responded since the initial report was that Ayala “had a
knife and * * * had the other driver at knife point.” (Id.). Trooper Ortiz testified
that they searched Ayala and asked him if he had a knife. (Id.). He said Ayala
denied having a knife, but a knife was eventually found on Ayala’s belt buckle.
(Id.).
{¶16} Trooper Ortiz identified State’s Exhibit A as the knife he found on
Ayala’s belt buckle. (Id. at 29). He stated that the knife “was actually pretty
difficult to locate almost. Because if – if you aren’t being very vigilant, you
probably would have passed it over during a search.” (Id. at 29-30). Further,
Trooper Ortiz testified that Ayala told him that “he never displayed it” and “never
said anything in reference to it.” (Id. at 30). After further questioning, Ayala
admitted he told Gilmore he had a knife, but stated he never displayed it to
Gilmore. (Id.). “[H]e told me he said that he told [Gilmore] that he had a knife.
To stay away. Stay away. That he had a knife. That’s what his semi direct words
were.” (Id. at 31).
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{¶17} Trooper Ortiz testified that Gilmore described the knife to him “as a
small metallic, completely silver object with approximately a two inch to one inch
blade.” (Id. at 30). He further stated that Gilmore’s description was “pretty
similar to the knife that was actually displayed.” (Id.).
{¶18} On cross-examination, Trooper Ortiz testified that Gilmore was at
fault for the road rage incident. (Id. at 33). However, Trooper Ortiz said, “the
issue came to be is [sic] when [Ayala] pulled the knife.” (Id.). Ayala’s counsel
asked Trooper Ortiz how Ayala described Gilmore’s behavior toward Ayala
during the incident. (Id.). Trooper Ortiz testified that Ayala told him that Gilmore
was “very in his face” and acted very aggressively toward him. (Id. at 34).
{¶19} After Trooper Ortiz concluded his testimony, the State rested and the
knife was admitted into the record without objection from Ayala. (Id. at 34).
{¶20} The defense called Ayala as a witness. (Id. at 35). Ayala testified
that he passed Gilmore as Gilmore was turning and then Gilmore followed him.
(Id. at 36). Gilmore attempted to pass Ayala and was “going back to this lane and
back to the other.” (Id.). Ayala said that, because of Gilmore’s driving, he was
concerned for his safety. (Id.). Eventually Gilmore passed Ayala and slammed on
his brakes, causing Ayala to run into him. (Id.). After the accident, Ayala got out
of his car to inspect it for damage. (Id.).
{¶21} Ayala testified:
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Gilmore, he was very aggressive. And he come with [sic] me and he
tried to touch me, you know, a couple of times. He was trying to
engage, like, a fist fight. So I was more concerned about the damage
on my car. So what I said when I touched him [sic] real close, I say
– I say – I say, hey, Man. Back away from me. I got a knife and I –
I – on my buckle. And I lift my shirt and I show him, you know.
And but [sic] he keep [sic] charging at me. So what I did, I get back
to my car and I remain in my car. I stay in my car the whole time.
And he was, like, going back and forth. He was like the side of my
window, you know, being all aggressive and loud. And he was on
the phone. And then he got back to – close to his vehicle until the
witness guy, until he arrives, you know. And then I never tried to
leave.
(Id. at 36-37).
{¶22} Ayala’s counsel asked him what he told Young and the officers about
the knife. (Id. at 37-38). Ayala said that he told Young that he did not have a
knife because he was scared. (Id. at 37). Further, he said that he told the officers
that he did not have a knife because he thought they asked him if he had “a knife
on [sic] the car.” (Id. at 38). He testified that, once he realized that the officers
were asking if he had a knife on him, he told them he had it on his belt buckle, but
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that he never displayed it. (Id.). Ayala further testified that he was afraid of
Gilmore because he was acting very “aggressively” and “violent” toward him
throughout the altercation. (Id. at 39-40).
{¶23} On cross examination, Ayala identified State’s Exhibit A as the knife
he had on his belt buckle. (Id. at 39-40). He testified that he lifted his shirt and
told Gilmore that he had a knife on his belt buckle after Gilmore tried “to swing at
[him].” (Id. at 43). Ayala testified he told Trooper Ortiz that Gilmore tried to hit
him. (Id.). Ayala further testified that he never took his knife off of his belt
buckle and that showing Gilmore the knife in the belt buckle caused Gilmore to
retreat. (Id. at 44). Ayala testified that once Gilmore retreated, Ayala “got back in
[his] car right away.” (Id.). After Ayala’s testimony, the defense rested. (Id. at
45).
{¶24} The State called Trooper Ortiz for rebuttal examination. (Id. at 45).
On rebuttal examination, Trooper Ortiz stated he heard Ayala’s testimony that
Gilmore tried to hit him. (Id.). Trooper Ortiz said, “He never said that to me.
That information was never relayed to me. Today is the first day I heard that.”
(Id.).
{¶25} The defense called Ayala for rebuttal examination. (Id. at 46).
Ayala testified that he told Trooper Ortiz that Gilmore tried to hit him while he
was being questioned at the “Trooper’s station.” (Id.). After Ayala testified, the
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defense rested and counsel gave their closing arguments. (Id. at 47-51). The trial
court found Ayala guilty of aggravated menacing. (Id. at 51).
{¶26} We first review the sufficiency of the evidence supporting Ayala’s
aggravated menacing conviction. See State v. Wimmer, 3d Dist. Marion No.
9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). As noted above, because it is the
only element Ayala challenges on appeal, we review the sufficiency of the
evidence supporting only the second element of the offense. There was sufficient
evidence that Gilmore subjectively believed Ayala would cause serious physical
harm.
{¶27} Ayala cites Garfield Heights v. Greer, 8th Dist. Cuyahoga No.
87078, 2006-Ohio-5936, in support of his argument that his conviction was
against the manifest weight of the evidence. However, the decision in Greer is
based on a sufficiency of the evidence analysis, and, as such, is discussed in our
review of the sufficiency of the evidence in this case.
{¶28} In Greer, the court reversed the defendant-appellant’s aggravated
menacing conviction, concluding that there was insufficient evidence that the
victim subjectively believed, at the time of the offense, that the defendant would
cause serious physical harm. Greer “brandished a gun that even the victim
questioned as being real” during a road rage incident. Id. at ¶ 10. “There was no
evidence that he pointed the gun at the victim, or took any other action to make the
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victim believe that serious physical harm would ensue.” Id. The victim’s actions,
in slowing down to write down Greer’s license number, then retreating home to
call the police, and having to call the police a second time to tell them about the
gun because he forgot to do so during his initial call, did not demonstrate that the
victim subjectively believed Greer would cause serious physical harm. Id.
Likewise, “[t]he victim did not testify to any subjective belief that Greer would
cause him serious physical harm. There was no evidence that the victim was
scared or rattled from the incident.” Id. at ¶ 7.
{¶29} The facts in Greer are distinguishable from the facts in this case.
Here, both Ayala and Gilmore were outside of their vehicles when Ayala made
threatening statements to Gilmore with the knife. (Oct. 28, 2013 Tr. at 7, 36).
Ayala did more than simply brandish a knife to make Gilmore believe serious
physical harm would ensue. Gilmore testified that Ayala threatened to cut him
and asked him if he wanted to die while holding a knife at his side. (Id. at 7).
Gilmore testified multiple times during the hearing that he was afraid Ayala was
going to cause him serious physical harm. Gilmore testified that, after Ayala
threatened him with the knife, he “felt it was unwise to continue a confrontation.
[He] backed off, went to [his] truck, picked up [his] cell phone and called 9-1-1 at
that point.” (Oct. 28, 2013 Tr. at 7). He also testified that he “was afraid that
[Ayala] was going to cut [him]” because Ayala said, “[D]o you want to die?” and
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that “[Ayala] was going to cut [him].” (Id. at 8). Gilmore testified that he “was a
little fearful for [his] life. So [he] traveled back to [his] truck. Got away from
him. [He] left his vicinity and [he] called 9-1-1.” (Id.). Lastly, Gilmore
reaffirmed on re-direct that he “was fearful that he was actually going to use the
knife on [him].” (Id. at 20).
{¶30} Viewing this evidence in a light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable doubt that Gilmore
subjectively believed he would suffer serious physical harm and, therefore, that
Ayala committed aggravated menacing. The evidence demonstrated that Ayala
made threatening statements, while brandishing a knife, to Gilmore that caused
Gilmore to believe that Ayala would cause him serious physical harm. This is
sufficient evidence to support an aggravated menacing conviction. See State v.
Seabeck, 9th Dist. Summit No. 25190, 2011-Ohio-3942, ¶ 14-17 (concluding that
there was sufficient evidence supporting the defendant’s menacing conviction
where the defendant was angry and belligerent toward the officer arresting him
and stated, “When I beat this, I am going to make sure that I come out to Hudson
and see you,” which caused the officer to believe that the defendant would cause
serious physical harm).
{¶31} Having concluded that sufficient evidence supports Ayala’s
conviction, we next address Ayala’s argument that his conviction was against the
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manifest weight of the evidence. Again, we apply the manifest-weight standard
only to the second element of the offense -- Gilmore subjectively believed, at the
time of the offense, that Ayala would cause serious physical harm. In support of
his argument, Ayala argues that Gilmore’s actions did not demonstrate a
subjective belief that Ayala would cause serious physical harm.
{¶32} Ayala’s first argument that Gilmore did not subjectively believe he
was going to suffer serious physical harm because Gilmore testified he was only
“flustered at the time,” is belied by the record. (Id. at 13); (Appellant’s Brief at 6).
Gilmore testified that he was “flustered at the time,” but, as we summarized in our
sufficiency of the evidence analysis, Gilmore stated multiple other times during
the trial that he was afraid Ayala was going to use the knife on him.
{¶33} Ayala’s second argument that Gilmore did not subjectively believe
he was going to suffer serious physical harm because he turned his back on Ayala
is contradicted by fact and law. (See Appellant’s Brief at 6). As we summarized
above, Gilmore thought it was unwise to continue the confrontation when Ayala
threatened him and showed him a knife, so he retreated to his truck to call 9-1-1.
By leaving Ayala’s “vicinity” and going back to his truck, Gilmore was
announcing his intention to withdraw from the conflict. See State v. Melchior, 56
Ohio St.2d 15, 22 (1978) (withdrawing “from the affray or difficulty in good
faith” announces “desire for peace”). Even as noted in Greer, Gilmore’s retreat
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“‘is evidence of [Gilmore’s] apprehension toward [Ayala] and possible serious
physical [harm].’” Greer, 2006-Ohio-5936, ¶ 8, quoting State v. Guddy, 8th Dist.
Cuyahoga No. 80390, 2002-Ohio-3102, ¶ 28.
{¶34} Ayala’s third argument that Gilmore did not subjectively believe he
was going to suffer serious physical harm because he remained outside his vehicle
after the altercation and continuously walked toward Ayala’s car back to his truck
is also belied by the record. (See Appellant’s Brief at 6). Once Gilmore
announced his intention to withdraw from the conflict by retreating to his truck,
Ayala retreated to his car, thereby, also withdrawing from the conflict. Ayala
testified that he immediately returned to his car once he saw Gilmore retreat. (Oct.
28, 2013 Tr. at 44). Gilmore also testified that he saw Ayala “had gotten back into
his car” after he returned to his truck to call 9-1-1. (Id. at 7).
{¶35} After reviewing the record, we cannot conclude that the trier of fact
clearly lost its way. The record shows Ayala made threatening statements to
Gilmore while brandishing a knife. The evidence supports the trial court’s
conclusion that Gilmore believed Ayala’s threats. Gilmore testified that he was
fearful that Ayala was going to use the knife on him. A reviewing court must
allow the trier of fact appropriate discretion on matters relating to the weight of the
evidence and the credibility of the witnesses. DeHass, 10 Ohio St.2d at 231.
Accord Seabeck, 2011-Ohio-3942, at ¶ 27, citing State v. Singer, 9th Dist. Summit
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No. 25321, 2011-Ohio-917, ¶ 12. Given this evidence, it was not against the
manifest weight of the evidence for the trial court to conclude Gilmore
subjectively believed Ayala would cause him serious physical harm. Therefore,
we find that Ayala’s conviction was not against the manifest weight of the
evidence.
{¶36} Ayala’s assignment of error is overruled.
{¶37} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs.
ROGERS, J., concurs in Judgment Only.
/jlr
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