[Cite as State v. Reynolds, 2012-Ohio-4363.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
JEREMY REYNOLDS : Case No. 12-CA-6
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 11CR0083
JUDGMENT: Reversed
DATE OF JUDGMENT: September 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOCELYN STEFANCIN JEREMY J. MASTERS
60 East High Street 250 East Broad Street
Mt. Gilead, OH 43338 Suite 1400
Columbus, OH 43215
Morrow County, Case No. 12-CA-6 2
Farmer, J.
{¶1} On September 8, 2011, the Morrow County Grand Jury indicted appellant,
Jeremy Reynolds, on two counts of witness intimidation in violation of R.C. 2921.04.
Said charges arose from threats allegedly made by appellant to Todd Blevins and
Rebecca Harris. Appellant warned them not to tell the police about his and his brother's
alleged involvement in the robbery of Cynthia Griffith.
{¶2} A jury trial commenced on November 28, 2011. The jury found appellant
guilty as charged. By judgment entry filed December 23, 2011, the trial court sentenced
appellant to an aggregate term of fifty-four months in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED WHEN IT HELD THAT SUFFICIENT
EVIDENCE WAS PRESENTED TO CONVICT JEREMY REYNOLDS OF WITNESS
INTIMIDATION, UNDER R.C. 2921.04(B), FOR ALLEGED INTIMIDATION THAT
OCCURRED AFTER A CRIME WAS REPORTED BUT BEFORE ANY COURT
INVOLVEMENT FLOWING FROM THAT CRIMINAL ACT."
I
{¶5} Appellant claims there was insufficient evidence to convict him of witness
intimidation as the alleged act of intimidation did not occur while the witnesses were
involved in a criminal act or proceeding (State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-
1654). We agree.
Morrow County, Case No. 12-CA-6 3
{¶6} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307.
{¶7} Appellant was convicted of intimidation of a witness in violation of R.C.
2921.04(B) which stated the following in effect at the time of the offense:
{¶8} "No person, knowingly and by force or by unlawful threat of harm to any
person or property, shall attempt to influence, intimidate, or hinder the victim of a crime
in the filing or prosecution of criminal charges or an attorney or witness involved in a
criminal action or proceeding in the discharge of the duties of the attorney or witness."
{¶9} In State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310, ¶1, 15-18, 20-21,
respectively, the Supreme Court of Ohio stated the following:
{¶10} "***The only issue that we address today is whether R.C. 2921.04(B), a
witness-intimidation statute, applies to threats made before any police investigation or
legal proceeding has commenced in a case. We hold that R.C. 2921.04(B) does not
apply in such situations.
{¶11} "R.C. 2921.04 does not define the term 'criminal action or proceeding,' but
that phrase is used throughout the Ohio Revised Code and commonly indicates the
involvement of a court. For instance, R.C. 1901.26(A)(4), which addresses costs in
municipal court actions, establishes, 'In any civil or criminal action or proceeding,
witnesses' fees shall be fixed in accordance with sections 2335.06 and 2335.08 of the
Morrow County, Case No. 12-CA-6 4
Revised Code.' (Emphasis added.) R.C. 1907.31(A) provides, 'The Rules of Civil
Procedure, the Rules of Criminal Procedure, and the Rules of Evidence apply
in***criminal actions and proceedings before a county court unless otherwise
specifically provided in the Revised Code.' (Emphasis added.) In State ex rel.
Steckman v. Jackson (1994), 70 Ohio St.3d 420, 432, 639 N.E.2d 83, this court
considered the meaning of the term 'criminal action or proceeding' in the context of the
public-records statute. R.C 149.43(A)(4) defines 'trial preparation record' as a record
'compiled in reasonable anticipation of, or in defense of, a civil or criminal action or
proceeding.' To determine the scope of the statute, this court sought to define the terms
'action' and 'proceeding':
{¶12} " 'For "action" the definition "includes all the formal proceedings in a court
of justice attendant upon the demand of a right made by one person of another in such
court, including an adjudication upon the right and its enforcement or denial by the
court." [Black's Law Dictionary (6th Ed.Rev.1990) 28]. "Proceeding" is the "[r]egular
and orderly progress in form of law, including all possible steps in an action from its
commencement to the execution of judgment." Id. at 1204.' Steckman, 70 Ohio St.3d
at 432, 639 N.E.2d 83.
{¶13} "In State ex rel. Unger v. Quinn (1984), 9 Ohio St.3d 190, 9 OBR 504, 459
N.E.2d 866, this court included 'criminal action' in defining 'prosecution' as ' "[a] criminal
action; a proceeding instituted and carried on by due course of law, before a competent
tribunal, for the purpose of determining the guilt or innocence of a person charged with
crime." ' Id. at 191, 9 OBR 504, 459 N.E.2d 866, quoting Black's Law Dictionary (5th
Ed.1979) 1099.
Morrow County, Case No. 12-CA-6 5
{¶14} "As demonstrated in Ohio's statutory scheme and in this court's case law,
a 'criminal action or proceeding' implies a formal process involving a court. There is no
indication in R.C. 2921.04(B) that 'criminal action or proceeding' should be interpreted
any way other than as it is commonly used in the Ohio Revised Code and as those
words have been interpreted by this court.
{¶15} "Protection of a witness in R.C. 2921.04(B), on the other hand, is separate
and is not so temporally broad—the statute applies only if the witness is already
'involved in a criminal action or proceeding.' The General Assembly in R.C. 2921.04(B)
could have protected witnesses from intimidation immediately upon their witnessing a
criminal act, but it did not.
{¶16} "The statute requires a witness's involvement in a criminal action or
proceeding, not his or her potential involvement.***"
{¶17} In State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654, ¶19, decided
during the pendency of this appeal, the Supreme Court of Ohio clarified Malone and
held the following:
{¶18} "R.C. 2921.04(B) prohibits the intimidation of a person who observes a
crime after the initiation of proceedings flowing from the criminal act in a court of justice.
A police investigation of a crime, without more, is not a proceeding in a court of justice,
and it does not invoke the protection of R.C. 2921.04(B) for a person who observes the
crime."
{¶19} The Davis court at ¶3, 16-17, respectively, stated the following:
{¶20} "As we recently explained, R.C. 2921.04(B) does not apply 'when the
intimidation occurred after the criminal act but prior to any proceedings flowing from the
Morrow County, Case No. 12-CA-6 6
criminal act in a court of justice.' State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310,
903 N.E.2d 614, ¶10. A police investigation, without more, is not a 'proceeding[ ]
flowing from the criminal act in a court of justice.'***
{¶21} "Moreover, R.C. 2921.04(B) has not changed since we issued our
decision in Malone; our holding in that decision remains sound. Throughout the
Revised Code, ' "criminal action or proceeding"***indicates the involvement of a court.'
Malone, 121 Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d 614, at ¶15; see also id. at
¶18 ('As demonstrated in Ohio's statutory scheme and in this court's case law, a
"criminal action or proceeding" implies a formal process involving a court').
{¶22} "In this statute, the General Assembly has not only employed language
indicating the need for court involvement, it has provided a stark contrast by pairing the
witness-protection language with language explicitly protecting crime victims from
intimidation immediately after a criminal act. Compare R.C. 2921.04(A) with (B). 'A key
to our analysis is the clear-cut difference between the protections afforded victims and
witnesses under the statute.***The General Assembly in R.C. 2921.04(B) could have
protected witnesses from intimidation immediately upon their witnessing a criminal act,
but it did not.' Malone at ¶19, 20."
{¶23} In the case sub judice, a criminal investigation was initiated with a
telephone call to the police by Cynthia Griffith on July 30, 2011 after she had been
robbed at the night depository of a local bank. T. at 160-165. It was the state's theory
that this act met the Malone requirement as demonstrated by the prosecutor's opening
statement:
Morrow County, Case No. 12-CA-6 7
{¶24} "Those, ladies and gentlemen, are the basic facts of this case. The
investigation into the armed robbery of Cynthia Griffith that occurred on July 30th, 2011
continues to this very day. It is not a completed investigation. Before I close, I want to
speak with you about the elements of intimidation of a witness.
{¶25} "***
{¶26} "Fifth element, a witness and the sixth element is involved in a criminal
action or proceeding.
{¶27} "The way the law is written now, if these things happened prior to the
police becoming involved, prior to police involvement or knowledge of the matter,
nothing would be done about it. It is a poorly written statute. But what the statute says
is, if there is an official action or proceeding and that occurred when the police arrived
on the scene on July 30th of 2011.
{¶28} "Be mindful that the defendant is not charged with armed robbery. That
issue is still open. He is charged with intimidation of two witnesses. Now, from all the
evidence that will be presented today, the State of Ohio will ask that you convict Jeremy
Reynolds of knowingly making an unlawful threat of harm to Todd Blevins and Rebecca
Harris. And that in doing so, he attempted to intimidate them from speaking to the
police." T. at 147-149.
{¶29} And again during the prosecutor's closing argument:
{¶30} "The next element is the witness or the witnesses were involved in a
criminal action or proceeding. Here you are going to have an exhibit. That exhibit is
going to be that police report from July 30th, 2011 that the police officer wrote out and
Morrow County, Case No. 12-CA-6 8
began. That's when the official investigation into this matter began. That constitutes a
criminal proceeding or action.
{¶31} "And the time they use is really critical here. The proceeding starts and
five days later is when the threats are made. The proceeding starts and five days later.
The way the law is written, if prior to police involvement the threats have been made, it
wouldn't be an offense. It is a defect in the laws of the State of Ohio and it is very
problematic. But here we meet that technical retirement. First, the offense, five days
later the threats are made." T. at 628.
{¶32} We note a request for a bill of particulars was filed (November 17, 2011)
and ordered by the trial court (November 18, 2011); however, no bill of particulars is
included in the court file or noted on the docket.
{¶33} During the course of the investigation, warrants were issued on August 4,
2011 for two suspects, Todd Blevins and Rebecca Harris, for tampering with evidence
possibly involved in the Griffith robbery. T. at 210.
{¶34} The state alleged that appellant intimidated Mr. Blevins and Ms. Harris on
August 5, 2011. It is the state's position in its brief that the issuance of the warrants for
Mr. Blevins and Ms. Harris on August 4, 2011 was sufficient to meet the definition of the
intimidation statute. Unfortunately, as the opening statement and closing argument
cited supra demonstrate, that was not the state's position at trial.
{¶35} Given the fact scenario argued as the "criminal action or proceeding," we
find the evidence was not sufficient under the law of Malone and Davis. The fact that
the police investigation was ongoing and persons were interviewed and some were
Morrow County, Case No. 12-CA-6 9
arrested for charges developed during the investigation was not sufficient to establish a
criminal action or proceeding.
{¶36} The sole assignment of error is granted.
{¶37} The judgment of the Court of Common Pleas of Morrow County, Ohio is
hereby reversed.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
s / Sheila G. Farmer_______________
_s/ Patricia A. Delaney____________
_s/ W. Scott Gwin________________
JUDGES
SGF/sg 905
[Cite as State v. Reynolds, 2012-Ohio-4363.]
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JEREMY REYNOLDS :
:
Defendant-Appellant : CASE NO. 12-CA-6
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morrow County, Ohio is reversed. Costs to
appellee.
s / Sheila G. Farmer_______________
_s/ Patricia A. Delaney____________
_s/ W. Scott Gwin________________
JUDGES