[Cite as State v. Wetherby,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 12-CA-69 KARL C. WETHERBY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 10CR00616

JUDGMENT: Affirmed in part; reversed in part; and Remanded

DATE OF JUDGMENT ENTRY: August 1, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT DAVID SAMS 29 S. 2nd Street Box 40 Newark, OH 43055 W. Jefferson, OH 43162 [Cite as State v. Wetherby,

.]

Gwin, P.J.

{¶1} Appellant, Karl C. Wetherby [“Wetherby”], appeals a judgment of the

Licking County Common Pleas Court convicting him of obstructing official business

(R.C. 2921.31(A)) with a firearm specification (R.C. 2929.14(D), R.C. 2941.145),

inducing panic with a firearm specification (R.C. 2917.31(A)(3)(4)((a). R.C. 2941.145),

and aggravated menacing (R.C. 2903.21(A).

Facts and Procedural History

{¶2} On September 23, 2010, officers from the Licking County Sheriff's

Department went to Jason Lee's home at 9151 Linville Road, Newark, Ohio, to serve a

writ of possession1. Deputies spoke to Lee and explained that his property had been

sold at sheriff's sale and he needed to make arrangements to vacate. They agreed on

October 11, 2010 as the date by which Lee would vacate, but Lee stated that he was

going to hire an attorney to have the sale set aside. Wetherby is a friend of Lee’s who

was staying on the property in a camper in the driveway. (1T. at 244).

{¶3} Deputies did not return on October 11, 2010, because a court action was

pending to review the propriety of the sale. However, on October 20, 2010, the court

denied a stay on the writ of possession. Deputies again spoke with Lee at his home on

October 25, 2010, and told him he needed to vacate on October 27, 2010.

{¶4} At about 9:30 a.m. on October 27, deputies arrived at Lee's home. Lee

was standing on the front sidewalk. He yelled something to the officers about having

sold his house to someone else and told them to leave. Lee then ran in the front door of

1 See, State v. Lee, 5th Dist. No. 11-CA-0076,

. Licking County, Case No. 12-CA-69 3

the home. Officers followed Lee to the front porch but Lee would not come out or let

them in the house. He yelled through the front door that he was not coming out.

{¶5} Deputies returned to their vehicle to telephone Lee’s attorney, and called

their supervisor, Captain Bruce Myers. Deputy Tim Caldwell went around to the back

door to attempt to talk to Lee. The blinds covering the French doors on the back porch

flew open and the faces of Lee and another man, later identified as Wetherby, appeared

against the window. The two men began yelling and screaming at Deputy Caldwell. The

corners of their mouths were “full of white stuff” from yelling and screaming and they

were spitting on the window.

{¶6} When Captain Bruce Myers arrived, he went to the back door to speak

with the pair. He advised Lee through the door that Lee's attorney was on his way.

Captain Myers saw an arm and a hand come around the side of the blinds covering the

door. The hand was holding a pistol.

{¶7} Much of the staff of the Sheriff's Department had been dispatched to an

incident involving a van, containing a pipe bomb, which crashed into a church following

a pursuit earlier that morning. At least 25 employees of the Sheriff's Department and fire

department were dispatched to Lee's home, including the SWAT team and the hostage

negotiating team.

{¶8} Lee would not speak to the hostage negotiators through a “throw phone,”

which is the preferred method of communicating so that all communications can be

monitored by the police. However, he agreed to speak to Misty Van Balen through a cell

phone. Licking County, Case No. 12-CA-69 4

{¶9} Lee repeatedly told her that he wanted to die, that he was going to kill

whoever entered the residence first and then kill himself. He also told her that he and

Wetherby had a plan to kill each other. He told her that he could see the officers through

the window and could take them out. He intended to die and take out as many people

as he could. Lee would speak calmly with her for a while, then start yelling and hang up.

During the telephone negotiations, Wetherby can be heard yelling in the background.

Wetherby is speaking so loudly that the deputy told Lee to “tell him to shut up. I can’t

hear you.” (1T. at 244-245). Throughout the negotiations, Lee was asking Wetherby for

his advice. Several times Lee halted the discussions in order to seek Wetherby’s

advice. (1T. at 245).

{¶10} Lee and Wetherby informed the negotiating deputies that they wanted to

speak to the news media. Accordingly, a meeting was arranged with a local news team.

Lee was afraid to leave the residence. At about 4:15 p.m., Wetherby agreed to come

out unarmed and speak to the media. Wetherby was taken into custody without incident

at the conclusion of the interview with the news team. Lee came out of the house at

6:30 p.m.

{¶11} During a subsequent search of the house, officers found three firearms in

a cabinet in a basement office, a loaded firearm in a garage, a revolver in the first floor

dining room, a rifle leaning against an end table in the living room, and a rifle in the

corner of a first floor bathroom.

{¶12} The jury convicted Wetherby on all counts. At sentencing, the trial court

merged the firearm specifications. The court further merged the Obstructing Official

Business contained in count one with the Inducing Panic charge found in count two. The Licking County, Case No. 12-CA-69 5

state elected to proceed on count one for sentencing. The court sentenced Wetherby to

an aggregate sentence of three years and six months.

Assignments of Error

{¶13} Wetherby raises four assignments of error:

{¶14} “I. THE CONVICTIONS WERE BASED ON INSUFFICIENT EVIDENCE

AND WERE OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

{¶15} “II. APPELLANT'S ACTIONS WERE PRIVILEGED UNDER OHIO LAW

AND THE STATE AND FEDERAL CONSTITUTIONS AND THUS COULD NOT FORM

THE BASIS FOR CRIMINAL LIABILITY THEREUNDER.

{¶16} “III. THE JURY INSTRUCTIONS WERE PREJUDICIALLY INSUFFICIENT

UNDER OHIO LAW AND THE STATE & FEDERAL CONSTITUTIONS.

{¶17} “IV. APPELLANT WAS PREJUDICIALLY DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL

CONSTITUTIONS.”

I.

{¶18} In his first assignment of error, Wetherby argues the jury’s findings of

guilty are against the manifest weight of the evidence and was not supported by

sufficient evidence.

{¶19} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia,

,

,

(1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational Licking County, Case No. 12-CA-69 6

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown,

,

,

(2010) (reaffirming this standard); State v. Fry,

,

, 2010–Ohio–1017, ¶ 146; State v. Clay,

,

,

2010–Ohio–2720, ¶ 68.

{¶20} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins,

,

(1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith,

,

, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387,

,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

{¶21} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony.

,

, quoting Tibbs v. Florida,

,

,

(1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and Licking County, Case No. 12-CA-69 7

a new trial ordered.’” State v. Thompkins, supra,

, quoting State v.

Martin,

,

, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’”

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts. * * *

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

1. Obstructing Official Business.

{¶22} R.C. 2921.31, Obstructing Official Business provides,

(A) No person, without privilege to do so and with purpose to

prevent, obstruct, or delay the performance by a public official of any

authorized act within the public official's official capacity, shall do any act

that hampers or impedes a public official in the performance of the public

official's lawful duties.

{¶23} In the case at bar, Licking County Sheriff s officers were attempting to

enforce a Writ of Possession resulting from a foreclosure action. No evidence was Licking County, Case No. 12-CA-69 8

presented during trial that Wetherby had an ownership interest in the subject property.

No evidence was presented that Wetherby had any cognizable interest in the property

pursuant to any written agreement. The only evidence presented is that Lee permitted

Wetherby to stay in a camper on the property. No evidence was presented as to the

ownership of the camper. Thus, the evidence presented during trial indicates that

Wetherby was no more than a guest of Lee.

{¶24} In the case at bar, Lee was to vacate the premises taking whatever he

would like. The new owners gave Lee and additional thirty days to remove the

remainder of his property. (1T. at 116). Further, Lee was aware that his application for a

stay had been denied. (Id. at 120 -121). The evidence in this case included copies of the

Writ of Possession as well as the civil court's judgment entry refusing to stay that Writ.

Those documents clearly show that Lee was a party to that foreclosure action.

Accordingly, Wetherby as a mere guest was not privileged to use force or threaten the

use of force to resist the Licking County Sheriff’s officers from enforcing a Writ of

Possession resulting from a foreclosure action.

{¶25} In the case at bar, the state presented evidence that, at the very least,

Wetherby aided and abetted Lee in preventing the deputies from the performance of

their lawful duties.

{¶26} Generally, a criminal defendant has aided or abetted an offense if he has

supported, assisted, encouraged, cooperated with, advised, or incited another person to

commit the offense. See, State v. Johnson,

,

(2001),

syllabus. “‘Participation in criminal intent may be inferred from presence, companionship

and conduct before and after the offense is committed.'" State v. Mendoza, 137 Ohio Licking County, Case No. 12-CA-69 9

App.3d 336, 342,

(2000), quoting State v. Stepp,

,

(1997).

{¶27} R.C. 2923.03 provides:

(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

***

(2) Aid or abet another in committing the offense.

{¶28} R.C. 2923.03(F) states, "A charge of complicity may be stated in terms of

this section, or in terms of the principal offense."

The Supreme Court of Ohio clarified Ohio's position on the issue of

complicity in State v. Perryman (1976),

, vacated in part

on other grounds sub nom, Perryman v. Ohio (1978),

. The

court unequivocally approved of the practice of charging a jury regarding

aiding and abetting even if the defendant was charged in the indictment as

a principal.

The court held that the indictment as principal performed

the function of giving legal notice of the charge to the defendant.

Therefore, if the facts at trial reasonably supported the jury instruction on

aiding and abetting, it is proper for the trial judge to give that charge.

.

State v. Payton, 8th Dist. Nos. 58292, 58346,

(Apr. 19, 1990).

{¶29} R.C. 2923.03(F) adequately notifies defendants that the jury may be

instructed on complicity, even when the charge is drawn in terms of the principal

offense. United States v. McGee

(6th Cir 2008); State v. Herring, 94 Licking County, Case No. 12-CA-69

, 251

(2002); State v. Keenan,

,

(1998); State v. Templeton, 5th Dist. No. 2006-CA-33, 2007-

Ohio-1148, ¶ 63.

{¶30} In this case, while inside the home, Lee displayed a firearm to the officers

outside. The pair further made threats to shoot the officers and themselves. The

deputies remained on the scene from 9:30 a.m. to at least 6:30 p.m.

{¶31} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that, at

the very least, Wetherby aided and abetted Lee in committing the crime of obstructing

official business. We hold, therefore, that the state met its burden of production

regarding each element of the crimes and, accordingly, there was sufficient evidence to

support Wetherby’s conviction.

2. Inducing Panic.

{¶32} R.C. 2917.31 Inducing Panic, provides,

(A) No person shall cause the evacuation of any public place, or

otherwise cause serious public inconvenience or alarm, by doing any of

the following:

(1) Initiating or circulating a report or warning of an alleged or

impending fire, explosion, crime, or other catastrophe, knowing that such

report or warning is false;

(2) Threatening to commit any offense of violence;

(3) Committing any offense, with reckless disregard of the likelihood

that its commission will cause serious public inconvenience or alarm. Licking County, Case No. 12-CA-69 11

{¶33} At the time of the offense, a violation of this section that results in

economic harm of $500.00 or more but less than $5,000.00 inducing panic was

classified as a fifth degree felony. R.C. 2917.31(C)(4).2

{¶34} R.C. 2917.31(E)(1)(b) specifically includes within "economic harm", "All

costs incurred by the state or any political subdivision as a result of, or in making any

response to, the criminal conduct that constituted the violation of this section or section

2917.32 of the Revised Code, including, but not limited to, all costs so incurred by any

law enforcement officers, firefighters, rescue personnel, or emergency medical services

personnel of the state or the political subdivision."

{¶35} Officer Jay Cook testified that the total cost to respond to the situation that

Lee and Wetherby brought about was over $7,000. (1T. at 323.) This figure was

documented in an accounting of overtime for 29 officers who were involved in some

capacity or another with this matter, as well as jail personnel who had to be called in to

"cover" for jail deputies that were on the SWAT Team or had additional duties

associated with this 10-hour standoff.

{¶36} In State v. Kristofferson, 1st Dist. Hamilton App. No. C-010322, 2002-

Ohio-712, the defendant appealed his R.C. 2917.31(A)(3) inducing panic conviction and

argued that the evidence was insufficient to show the serious public inconvenience or

alarm element. In Kristofferson, the defendant and his wife had argued and he stated

that he would be better off dead. He then retrieved a handgun and locked himself in a

bedroom. His wife and son left the home and called the police. The police requested the

2 This statue was amended September 30, 2011 to increase the amounts to $1,000.00 and $7,500.00, respectively. Licking County, Case No. 12-CA-69 12

defendant to come outside and after a brief two or three minute exchange, the

defendant surrendered.

{¶37} The appellate court concluded that the evidence failed to show that the

defendant's conduct caused serious public inconvenience or alarm. Instead, “[h]is

conduct involved his family and occurred within the privacy of his own home. It was not

the kind of conduct that the inducing-panic statute was intended to prohibit, such as

causing an airport terminal or other public place to be evacuated by sending the

customers to scurry for the exits.” The court further determined that “[t]he officers, acting

in their official capacity, * * * could not have been inconvenienced within the

contemplation of R.C. 2917.31(A), simply because they had responded to his residence

as their duties required them to do.”

{¶38} In State v. Campbell,

, 2011-Ohio- 3458,

(1st Dist.), although eight police officers were required to respond to a domestic

dispute when the defendant refused to open the door to his apartment, there was no

evidence the other tenants in the building were stirred, and the police officers could not

be inconvenienced as they were acting in their official capacity.

{¶39} In State v. Isham, 1st. Dist. Hamilton App. No. C-020065, 2002-Ohio-

5815, the First District reversed the trial court's judgment of conviction on an inducing-

panic charge against the defendant because the state had not presented sufficient

evidence to support the elements of inducing panic. The court explained that there had

been no evidence of an alleged offense of violence since there was no evidence that

the defendant had threatened anyone or pointed the gun at anyone. In addition, the

court went on to state that there had likewise been no evidence that any offense of Licking County, Case No. 12-CA-69 13

violence (if there had been one) caused the evacuation of the building, because the

alleged offense of violence occurred after the building had already been evacuated.

Accord, In re J.C. 11th Dist. Lake App. No. 2012-L-083,

(Mar. 29,

2013), ¶20 (“mere public awareness of an event is not sufficient to satisfy the element of

serious public inconvenience or alarm; there must be some type of disruption,

discomfort, distress, or fear caused by one or more of the three predicate actions found

in R.C. 2917.31(A)(1)-(A)(3).”).

{¶40} In the case at bar, there is no evidence that Wetherby’s actions in concert

with Lee or alone caused serious public inconvenience or alarm. Officers acting in their

official capacity could not have been inconvenienced within the contemplation of R.C.

2917.31(A), simply because they had responded to the residence, as their duties

required them to do.

{¶41} We hold, therefore, that the state failed to meet its burden of production

regarding each element of the crimes and, accordingly, there was insufficient evidence

to support Wetherby’s conviction for inducing panic.

{¶42} Section 3(B) (2), Article IV of the Ohio Constitution and R.C. 2953.07, give

an appellate court the power to affirm, reverse, or modify the judgment of an inferior

court. Accordingly, the conviction and sentence on Counts Two, Inducing Panic is

reversed, and this case is remanded for proceedings in accordance with our opinion

and the law.

3. Aggravated Menacing.

{¶43} Wetherby was also convicted of aggravated menacing. R.C. 2903.21,

aggravated menacing provides, Licking County, Case No. 12-CA-69 14

(A) No person shall knowingly cause another to believe that the

offender will cause serious physical harm to the person or property of the

other person, the other person's unborn, or a member of the other

person's immediate family.

{¶44} The crime of aggravated menacing is triggered by a threat that intimidates

or causes fear or apprehension by the recipient. State v. Schwartz,

,

(12th Dist. 1991). Such threats are not among the class of utterances

that are protected by the First Amendment. Mozzochi v. Borden,

2nd Cir.

1992); United States v. Khorrami,

(7th Cir. 1990); United States v.

Bellrichard,

(8th Cir. 1993).

{¶45} In State v. Millikin, 1st Dist. Hamilton App. Nos. C030825, C-030826,

, the defendant was angry that motorists would move and drive around

the barricades placed in front of his home because of road construction. The defendant

parked his and another person's vehicles in front of his house, blocking the street. The

police were called, and the defendant was told to move the vehicles. The defendant was

angry that the police were not enforcing the closing of the road. The state presented

evidence that when the police arrived for the second time, the defendant appeared at

the front door of his house, angry and intoxicated, carrying a shotgun and having a

handgun tucked in the waistband of his pants. The appellate court upheld the

defendant's conviction for aggravated menacing, stating that “Even though Millikin never

pointed a gun at the police officers and did not verbally threaten them, in the entire

context of the evening, it was reasonable to conclude that the police officers felt Licking County, Case No. 12-CA-69 15

threatened and were fearful that Millikin would attempt to cause serious physical harm

to them.” Id. at ¶23.

{¶46} In State v. Terzo, 12th Dist. Butler App. No. CA2002-08-194, 2003-Ohio-

5983, a Fairfield police officer responded to a report that a female was brandishing a

firearm and trying to set fire to clothing she had thrown in the street. When the officer

arrived, he observed the female sitting on the front porch holding a shotgun. The officer

testified that the female raised the shotgun and aimed it at the officer. He testified that

he drew his service revolver, fearing that the female intended to shoot. The female went

back inside the house, put the gun down, and surrendered herself immediately. The

appellate court upheld Terzo's conviction for aggravated menacing, stating that “The

threat need not be verbalized; rather, the threat can be implied by the offender's actions.

City of Niles v. Holloway (Oct. 3, 1997), Trumbull App. No. 96-T-5533,

,

citing State v. Hoaglin (Mar. 25, 1993), Van Wert App.

No. 15-92-15,

,

. And finally, while appellant

[Terzo] also argues that she would have been unable to carry out the threat because

the gun was not loaded, neither the intent nor the ability to carry out the threat is an

element of the offense. Dayton v. Dunnigan (1995),

,

.” Id. at ¶18.

{¶47} In the case at bar, evidence was presented that the deputies had

concerns for their safety. First, officers retreated from the front of the home where they

were exposed when co-defendant Lee brandished a firearm. The officer who observed

the gun being brandished retreated to a "safer location.” He also yelled to his fellow

officer that he saw a gun and told him to get off the porch. Moreover, a tactical, or Licking County, Case No. 12-CA-69 16

SWAT team, was called in and a squad/medic was kept on stand-by throughout the

ordeal.

{¶48} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that, at

the very least, Wetherby aided and abetted Lee in committing the crime of aggravated

menacing. We hold, therefore, that the state met its burden of production regarding

each element of the crimes and, accordingly, there was sufficient evidence to support

Wetherby’s conviction.

{¶49} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198,

,

quoting State v. Woullard,

,

,

, ¶ 81.

In other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149,

,

at ¶ 13, citing State v. Gore (1999),

,

.

{¶50} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass,

,

(1967), paragraph one of the syllabus; State v. Hunter,

, 2011-

Ohio-6524,

, ¶118. Accord, Glasser v. United States,

,

,

(1942); Marshall v. Lonberger,

,

,

(1983). The jury was free to accept or reject any and all of the Licking County, Case No. 12-CA-69 17

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236,

(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-

Ohio-958, ¶ 21, citing State v. Antill,

, 67,

(1964); State

v. Burke, 10th Dist. No. 02AP-1238,

, citing State v. Caldwell (1992),

,

(4th Dist. 1992). Although the evidence may have

been circumstantial, we note that circumstantial evidence has the same probative value

as direct evidence. State v. Jenks, supra.

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts. * * *

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978). Licking County, Case No. 12-CA-69 18

{¶51} In Cross v. Ledford,

, 477,

(1954), the

Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for

resolving disputed facts. The degree of proof required is determined by

the impression which the testimony of the witnesses makes upon the trier

of facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is

in conflict, the trier of facts may determine what should be accepted as the

truth and what should be rejected as false. See Rice v. City of Cleveland,

,

.

161 Ohio St. at 477-478. (Emphasis added).

{¶52} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins,

,

quoting Martin,

,

. The jury was in the best

position to evaluate this competent, credible evidence, and we will not substitute our

judgment for that of the trier of fact. The jury neither lost their way nor created a

miscarriage of justice in convicting Wetherby of the charges of obstructing official

business with a firearm specification and aggravated menacing.

II. Licking County, Case No. 12-CA-69 19

{¶53} In his second assignment of error, Wetherby incorporates the arguments

he previously made with respect to this first assignment of error. He contends in this

assignment of error that his conduct was "privileged."

{¶54} Wetherby's claim is essentially one of defense of property. Ohio law does

not provide appellant the right to defend his property by threatening to shoot police

officers who are there to execute a writ of possession issued by a court of law simply

because he believes there were errors made in the civil proceeding that led to the

sheriff's sale of his property. State v. Lee, 5th Dist. No. 11-CA-0076,

.

{¶55} In State v. Burns, 2nd Dist. No. 22674, 2010–Ohio–2831, the appellant

argued that her conviction for obstructing official business was against the manifest

weight of the evidence because the officer whom she impeded in his efforts to search

her mother's home was there unlawfully, without a search warrant. The court rejected

this argument, holding:

Appellant contests that Officer Wolpert was performing “lawful

duties” when he entered her mother's house prior to obtaining a search

warrant. Although an unlawful entry may result in the exclusion of

evidence, “absent bad faith on the part of a law enforcement officer, an

occupant cannot obstruct the officer in the discharge of his duty, whether

or not the officer's actions are lawful under the circumstances.” State v.

Stevens, Morgan App. No. 07–CA–0004, 2008–Ohio–6027, ¶ 37, quoting

State v. Paumbaur (1984),

. There is no evidence of

“bad faith” on the part of Officer Wolpert. He explained that his reason for Licking County, Case No. 12-CA-69 20

entering the home was to ensure the safety of all concerned and to ensure

that evidence could not be removed or destroyed. Even if Officer Wolpert's

entry had been unlawful under these particular circumstances, absent

evidence of bad faith, Appellant was not justified in obstructing his efforts

to secure the residence.” Id. at ¶ 19.

{¶56} In the case at bar, there is absolutely no evidence that any of the officers

acted in bad faith. To the contrary, the evidence unequivocally established that the

sheriff's department had a writ of possession and a judgment of the court, dated

October 20, 2010, denying Lee's motion for a stay on the writ of possession. Further,

while a homeowner may say almost anything to officers in an attempt to persuade them

not to enter, the Fourth Amendment does not grant a homeowner the right to use deadly

force to resist an unlawful entry. State v. McCoy, 2nd Dist. No. 22479, 2008–Ohio–

5648, ¶ 19. In the instant case, Wetherby's right to resist entry, even if the police were

acting in bad faith, did not extend to a threat of deadly force and show of a firearm.

.

{¶57} Wetherby’s second assignment of error is overruled.

III.

{¶58} In his third assignment of error, Wetherby claims the trial court erred in not

giving complete jury instructions. Specifically, Wetherby contends that it was plain error

for the court not to instruct the jury on privilege, self-defense and imminent fear of

serious physical harm with respect to aggravated menacing.

{¶59} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion. State v. Licking County, Case No. 12-CA-69 21

Martens,

,

(3rd Dist. 1993). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore,

,

(1983) Jury instructions must be

reviewed as a whole. State v. Coleman,

,

(1988).

{¶60} Crim.R. 30(A) governs instructions and states as follows:

At the close of the evidence or at such earlier time during the trial as

the court reasonably directs, any party may file written requests that the

court instruct the jury on the law as set forth in the requests. Copies shall

be furnished to all other parties at the time of making the requests. The

court shall inform counsel of its proposed action on the requests prior to

counsel's arguments to the jury and shall give the jury complete

instructions after the arguments are completed. The court also may give

some or all of its instructions to the jury prior to counsel's arguments. The

court need not reduce its instructions to writing.

On appeal, a party may not assign as error the giving or the failure

to give any instructions unless the party objects before the jury retires to

consider its verdict, stating specifically the matter objected to and the

grounds of the objection. Opportunity shall be given to make the objection

out of the hearing of the jury.

{¶61} Wetherby did not file a written request for specific jury instructions, and did

not object to the trial court's jury instructions. Based upon his failure to proffer

instructions or object to the instructions and bring the issue to the trial court's attention Licking County, Case No. 12-CA-69 22

for consideration, we must address this assignment under the plain error doctrine.

Therefore, for this court to reverse Wetherby’s convictions, we must find that the trial

court's procedure regarding its jury instructions was prejudicial. Crim.R. 52(B).

[A]n appellate court may, in its discretion, correct an error not

raised at trial only where the appellant demonstrates that (1) there is an

error; (2) the error is clear or obvious, rather than subject to reasonable

dispute; (3) the error affected the appellant’s substantial rights, which in

the ordinary case means it affected the outcome of the district court

proceedings; and (4) the error seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.

United States v. Marcus,

,

,

(Internal quotation marks and citations omitted). The Ohio Supreme Court pertinently

addressed when structural error analysis should be used in State v. Perry,

We emphasize that both this court and the United States Supreme

Court have cautioned against applying a structural-error analysis where,

as here, the case would be otherwise governed by Crim.R. 52(B) because

the defendant did not raise the error in the trial court. See Hill, 92 Ohio

St.3d at 199,

; Johnson, 520 U.S. at 466,

,

. This caution is born of sound policy. For to hold that an

error is structural even when the defendant does not bring the error to the

attention of the trial court would be to encourage defendants to remain

silent at trial only later to raise the error on appeal where the conviction

would be automatically reversed. We believe that our holdings should Licking County, Case No. 12-CA-69 23

foster rather than thwart judicial economy by providing incentives (and not

disincentives) for the defendant to raise all errors in the trial court-where,

in many cases, such errors can be easily corrected.

,

,

, ¶23. Thus, the defendant bears

the burden of demonstrating that a plain error affected his substantial rights and, in

addition that the error seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings. United States v. Olano,

,

,

(1993); State v. Perry,

,

. Even if the

defendant satisfies this burden, an appellate court has discretion to disregard the error.

State v. Barnes,

,

(2002); State v. Long,

,

(1978), paragraph three of the syllabus; Perry, supra, at 118,

.

{¶62} Under the circumstances of the case at bar, there is nothing in the record

to show that Wetherby was prejudiced. As we discussed in our disposition of

Wetherby’s second assignment of error, neither Wetherby nor Lee’s actions were

privileged and neither was entitled to use force.

{¶63} Aggravated menacing does not require an imminent fear of serious

physical harm as suggested by Wetherby. Neither the intent of a defendant to carry out

his threat nor his ability to do so are elements of the offense of aggravated menacing.

Dayton v. Dunnigan,

,

(2nd Dist. 1995). Even a

conditional threat can constitute a violation of the menacing laws. State v. Collie,

,

(1st Dist. 1996). What is necessary to establish

the offense of menacing is the victim's subjective belief that the defendant can cause Licking County, Case No. 12-CA-69 24

physical harm to herself, her immediate family, or her property. State v. Klempa, 7th

Dist. Belmont App. No. 01-BA-63,

, ¶ 24.

{¶64} Wetherby’s third assignment of error is overruled.

IV.

{¶65} In his fourth assignment of error, Wetherby argues that he was denied

effective assistance of counsel. Specifically, Wetherby claims his trial counsel was

ineffective for failing to request jury instructions on privilege and failing to argue that the

evidence was insufficient.

{¶66} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry in whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell,

,

,

(1993); Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989).

{¶67} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley,

. Because of the difficulties inherent in

determining whether effective assistance of counsel was rendered in any given case, a

strong presumption exists that counsel's conduct fell within the wide range of

reasonable, professional assistance.

{¶68} In order to warrant a reversal, the appellant must additionally show he was

prejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that Licking County, Case No. 12-CA-69 25

"there is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceedings would have been different.” Strickland,

. A court

making the prejudice inquiry must ask if the defendant has met the burden of showing

that the decision reached would "reasonably likely been different" absent the errors.

Strickland,

. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.

{¶69} The claims raised by Wetherby do not rise to the level of prejudicial error

necessary to find that he was deprived of a fair trial. Having reviewed the record that

Wetherby cites in support of his claim that he was denied effective assistance of

counsel, we find Wetherby was not prejudiced by defense counsel’s representation of

him. The result of the trial was not unreliable nor were the proceedings fundamentally

unfair because of the performance of defense counsel. Wetherby has failed to

demonstrate that there exists a reasonable probability that, had trial counsel requested

a jury instruction on privilege and argued insufficient evidence as he has suggested the

result of the trial would have changed. As we have noted, any error in the procedure

employed by trial counsel was harmless beyond a reasonable doubt.

{¶70} Wetherby’s fourth assignment of error is overruled. Licking County, Case No. 12-CA-69 26

{¶71} The judgment of the Licking County Court of Common Pleas is affirmed in

part and reversed in part, and this case is remanded for proceedings in accordance with

our opinion and the law.

By Gwin, P.J., and

Baldwin, J., concur;

Farmer, J., dissents

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. CRAIG R. BALDWIN WSG:clw0722 Licking County, Case No. 12-CA-69 27

Farmer, J., dissenting

{¶72} I respectfully dissent from the majority's view in Assignment of Error I as

to the lack of evidence that appellant violated R.C. 2917.31, inducing panic.

{¶73} I would conclude that the jury, as the trier of facts, had sufficient evidence

to determine that appellant's actions violated R.C. 2917.31. Deputy Misty Van Balen

testified while she was speaking to Lee on the cell phone, appellant was yelling in the

background and "that person's, you know, yelling the same thing***'this isn't going to

end well.' " T. at 244. Deputy Van Balen explained that at times she spoke directly to

appellant on the cell phone. T. at 245-246. She testified to the following (T. at 246):

"they [appellant and Lee] would tell us that we needed to leave, and if they

didn't leave, that somebody was going to die. They intended to die that

day; that if the case didn't - - if we didn't close things the way they

intended, then they weren't leaving the house except for in body bags.

Repeatedly told us that they were, exceptionally, that they were going to

kill the first officers through the door, and then they were going to kill each

other or they were going to kill themselves. Mr. Wetherby told me at one

point in time during the conversation he would rather see Mr. Lee dead

than leave the house.

{¶74} Deputy Van Balen further testified (T. at 247-248):

They would tell me that they could, at various times, they could see

persons that were stationed on the perimeter, and they had told me that

they were well armed, and that they intended to shoot the first three

officers through the door and then they were going to shoot themselves. Licking County, Case No. 12-CA-69 28

They told me if we gassed the house, they were going to just start

shooting at random, and then they were going to shoot themselves. They

told me, at one time, that they had a plan to shoot each other. That was

going to be their suicide pact, and they just kept reiterating that people

were going to die, and they were going to take as many as they could.

{¶75} Deputy Randy Thorp testified to "the instability of the scene and the

danger that it presented to the public in that area along Linnville Road and so forth." T.

at 173.

{¶76} I would find appellant's actions, coupled with the presence of weapons in

appellant's possession, to be sufficient to meet the quantum of proof necessary for a

conviction of R.C. 2917.31.

{¶77} In addition, there was ample evidence of the economic harm under R.C.

2917.31(E)(1)(b). T. at 322-323; State's Exhibit 14.

{¶78} I would affirm appellant's conviction for inducing panic.

___________________________________ HON. SHEILA G. FARMER [Cite as State v. Wetherby,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : KARL C. WETHERBY : : : Defendant-Appellant : CASE NO. 12-CA-69

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Licking County Court of Common Pleas is affirmed in part and reversed in part, and

this case is remanded for proceedings in accordance with our opinion and the law.

Costs divided equally between the parties.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. CRAIG R. BALDWIN