Insufficient Evidence To Sustain A Domestic Violence Threats Conviction

Holidays, family get-togethers, weddings, and family reunions are more often than not some of the most joyous times you may have with your family.  Then again, no one likes to see their drunk Uncle Frank hit on a waitress then pick a fight with the bartender because he used Jack Daniels whiskey instead of the cheap Cutty Sark brand.  After all, Uncle Frank is on a fixed income.   But hey, it is family….right?!?!

Well in State v. Race, 2017-Ohio-612, the defendant made it very well known to his mother that she was not allowed back into the house they shared.  This well thought out delivery of said news to his mother landed the defendant in some criminal legal troubles.

In Race, Race was indicted on domestic violence, receiving stolen property, aggravated drug possession, and possession of drugs.  Ole Race, not wanting to give up the good fight, took his case to the box to defend against these absurd charges.

Unfortunately for Race, he was found to be guilty as charged.  The trial court found Race was not amenable to community control and sentenced Race to an aggregate prison term of 17 months.  On appeal, Race only assigned errors to his domestic violence conviction.

Race argued that there was an insufficiency of evidence to sustain his conviction of domestic violence and that the trial court erred by refusing to grant his motion for acquittal for the criminal charge of domestic violence.  Both assignments of error were based on the element of “imminent physical harm” proscribed by R.C. 2919.25(C).

R.C. 2919.25(C) states the following:

No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

Race and his mother lived together when he made the threat to her via telephone.  Race’s mother testified that she was at the hospital and that she informed Race about her plan to return home instead of moving into a nursing home.  Mother’s plan was to have nurses assist her in making this return home.

In response, Race threatened to kill his mother and anyone who joined her if she were to return home.  Mother further testified that although she felt “not good” resulting from the threat, her sense at that moment was that she was unsure whether Race was serious.  Even so, Mother testified that she did not want to return home that night, and that she begged the hospital staff to stay admitted.

At trial, Race’s attorney moved the trial court for acquittal of the domestic violence charge allegedly committed against the victim “based upon lack of proof.”  The trial court denied the motion.

In both assignments of error, the appellate court found that Race was essentially arguing that there was insufficient evidence to convict him of domestic violence under R.C. 2919.25(C).  Based on that finding, the appellate court addressed both of Race’s assignments as one.

On review for sufficiency, the court examines the evidence at trial to determine whether such evidence, if believed, would support a conviction.  State v. Jenks, 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 reasonable doubt. Id.

On review of the denial of a Crim.R. 29(A) motion, a court views the evidence in a light most favorable to the state.   State v. Bridgeman, 55 Ohio St.2d 261.  An entry of acquittal is improper “if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.”  Id.

Unfortunately, the Revised Code does not define the word imminent.  In re Jenkins, 2004-Ohio-2657.  However, Ohio courts have defined imminent as “near at hand or impending.”  State v. Fisher, 2011-Ohio-5965.  It has also been defined as the belief of the victim that harm would occur immediately or, in the alternative, that the defendant will cause immediate physical harm.  Id.

Generally, a conditional threat, standing alone, is insufficient to satisfy the element of imminent physical harm.  State v. Schweitzer, 2015-Ohio-925.  A threat is conditional where a prerequisite must occur before the actor intends or is empowered to carry out the threat.”  State v. Collie, 1008 Ohio App.3d 580.  A conditional threat can constitute a violation of the menacing laws, but not a violation of R.C. 2919.25(C).  In re Jenks.

In Race’s case, his mother testified that Race called and threatened to kill her.  The record revealed that this testimony was the only evidence offered to support the domestic violence conviction.  Further, Mother’s testimony supports that Race’s threat was conditioned on the victim returning home.  Mother did not indicate she felt unsafe at that moment, and she even asked to stay admitted at the hospital – which confirmed she felt safe at the specific time and place.  Mother’s concern was what may happen if she were to return home.

Based on this, the appellate court held that no reasonable trier-of-fact could find that Race’s threat was imminent or that Race’s mother believed she stood in jeopardy of immediate physical harm.  Thus, there is no basis on record for the domestic violence conviction.

Now you might be thinking, “big deal….Ole Race is still sitting in prison.”  Domestic Violence charges are a big deal because they carry stiff collateral consequences and each subsequent charge is enhanceable.  Meaning, if Race’s conviction stuck and he pulled the same B.S. with his mother again, he would now be facing a second degree misdemeanor instead of a fourth degree misdemeanor.



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