[Cite as State v. Yambrisak,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2012-CA-50 BYRON YAMBRISAK : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2011CR0651

JUDGMENT: Vacated and Remanded

DATE OF JUDGMENT ENTRY: April 5, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JILL COCHRAN R. PAUL CUSHION, II. 38 South Park Street 75 Public Square, Ste. 1111 Mansfield, OH 44902 Cleveland, OH 44113 [Cite as State v. Yambrisak,

.]

Gwin, J.,

{¶1} Appellant Byron Yambrisak appeals his conviction in the Richland County

Court of Common Pleas on one count of retaliation against a public servant or witness,

a felony of the third degree in violation of R.C. 2921.05(A) and one count of intimidation

of a public servant a felony of the third degree in violation of R.C. 2921.03(A).

Facts and Procedural History

{¶2} In the late morning of July 15, 2011, Detective Pat Smith of the Richland

County Sherriff’s Department was called to MedCentral Hospital to investigate a child

victim of rape. Detective Smith was in plain clothes and driving an unmarked vehicle;

however she did have her service revolver holstered on her right hip. She left the

hospital a few minutes before 1:00 p.m. Detective Smith testified that she had parked

her unmarked vehicle in the parking lot located on Glessner Avenue, across from the

hospital. As she prepared to cross the street at the pedestrian crosswalk, a small green

vehicle sped through the crosswalk.

{¶3} Detective Smith crossed at the crosswalk towards the parking lot. As she

approached her vehicle, Detective Smith was hailed by an old acquaintance, Vernessa

Bond, who happened to be parked near Detective Smith's vehicle. The two engaged in

a casual conversation. While the two conversed, the little green vehicle drove by again.

The male passenger began yelling racial slurs towards Detective Smith and Ms. Bond,

both of whom are African-American. The verbal tirade included phrases such as "I hate

you, you fucking nigger. You black bitch, I'm going to fuck you up."

{¶4} The vehicle proceeded on towards Glessner Avenue as the two women

continued their conversation. The vehicle returned and stopped on Lind Avenue, close Richland County, Case No. 2012-CA-50 3

to where the women were parked. The occupant began yelling racial slurs again this

time including, "Do you like talking to young girls about sex? Do you like talking to

prostitutes about sex? I hate you, you fucking nigger, I'm going to fuck you up.”

Detective Smith took two steps towards the vehicle to see if she could identify the

occupant. Detective Smith then testified that she yelled, "I know who you are, Byron

Yambrisak, you need to be on your way." The vehicle immediately sped away. Detective

Smith immediately called dispatch on her cell phone to report the incident, prior to

returning to her vehicle.

{¶5} At the sheriff’s department, Detective Smith reported the incident to

second in command, Major Fortney. She was instructed to make a written statement

and Major Fortney contacted the Mansfield Police Department to send an officer over to

take a report as the incident occurred in their jurisdiction.

{¶6} Because of the incident, Detective Smith attempted to obtain a civil

stalking protection order against Yambrisak based on the singular event that occurred

on July 15, 2011. The civil stalking protection order was denied.

{¶7} On May 10, 2011, the Richland County Grand Jury returned an indictment

charging Yambrisak with one count Retaliation pursuant to R.C.2921.05 (A) and one

count of Intimidation pursuant to R.C. 2921.03(A). The basis for the indictment was

presented during Yambrisak’s jury trial.

{¶8} At trial, the state presented evidence that in 2009, during the course of her

duties as a detective, Detective Smith investigated an allegation that Yambrisak was

trying to hire someone to kill his ex-girlfriend, a prostitute by the name of Gillisa Richland County, Case No. 2012-CA-50 4

Morgan.1 As a result, Yambrisak was eventually charged with aggravated menacing and

menacing by stalking. Yambrisak was arrested on the warrant on May 20, 2009 and

Detective Smith appeared at the jail and served him with the complaint. The Mansfield

Law Director later dismissed the aggravated menacing and menacing by stalking case.

{¶9} By Detective Smith's own admission, between October 2009 and July 15,

2011, she had absolutely no contact with Yambrisak.

{¶10} The jury found the Yambrisak guilty on both counts. On June 11, 2012, the

trial court sentenced Yambrisak to a term of incarceration of three years on the

retaliation count. The trial court further sentenced him to three years of community

control on this charge. Likewise, the intimidation charge, the trial court sentenced

Yambrisak to a maximum term of three years of incarceration and three years of

community control on this count to begin on release from prison on the prior count.

Assignments of Error

{¶11} Yambrisak raises seven assignments of error,

{¶12} “I. AN "UNLAWFUL THREAT OF HARM" IS REQUIRED UNDER THE

RETALIATION STATUTE, SET FORTH IN ORC §2921.05, AND THE INTIMIDATION

STATUTE, SET FORTH IN ORC §2921.03, AND IS SATISFIED ONLY WHEN THE

VERY MAKING OF THE THREAT OF HARM IS ITSELF UNLAWFUL BECAUSE IT

VIOLATES ESTABLISHED CRIMINAL OR CIVIL LAW, AND THIS "UNLAWFUL

THREAT" MUST CONNOTE MORE THAN A BENIGN THREAT FOR PURPOSES OF

THE RETALIATION STATUTE, AND THE INTIMIDATION STATUTE AS THE THREAT

1 Yambrisak raised as his second assignment of error that the length and detail into which the prosecutor was permitted to delve into the unproven allegations of the 2009 incident was prejudicial error. While we express our concern that those details were not necessary to prove any element of either offense, in light of out disposition of the assignments under consideration, we need not address this concern in the present case. Richland County, Case No. 2012-CA-50 5

MUST COMMUNICATE TO A PERSON THAT A PARTICULAR CONSEQUENCE

MUST FOLLOW FOR SOME SPECIFIED ACTION TAKEN.

{¶13} “II. IT IS REVERSIBLE ERROR TO PERMIT THE INTRODUCTION OF

INFORMATION RELATED TO A PRIOR POLICE INVESTIGATION OF THE

APPELLANT-DEFENDANT, WHEN NO FORMAL CHARGES OR COURT ACTION

WERE BROUGHT AGAINST THE APPELLANT-DEFENDANT RESULTING FROM

THE POLICE INVESTIGATIONS, AND WHEN THE BASIS FOR THE

INVESTIGATIONS INVOLVED SPURIOUS ALLEGATIONS THAT THE APPELLANT-

DEFENDANT WAS ALLEGED TO HAVE HIRED A "HIT MAN" TO KILL HIS

"PROSTITUTE GIRLFRIEND", AS THESE ALLEGATIONS WERE UNPROVEN,

IRRELEVANT AND FAR MORE PREJUDICIAL THAN PROBATIVE, AND THEIR

IMPACT UPON THE PROCEEDINGS TAINTED THE ENTIRE TRIAL, AND

SUBSTANTIALLY PREJUDICED THE APPELLANT-DEFENDANT IN THE EYES OF

THE JURY.

{¶14} “III. WHEN A CITIZEN CRITICIZES OR CHASTISES A POLICE

OFFICER AND USES VITUPERATIVE AND VITRIOLIC WORDS, NO MATTER HOW

DISTASTEFUL THOSE WORDS MAY BE, SUCH METRIC AND/OR CRITICISM IS

PROTECTED SPEECH UNDER THE FIRST AMENDMENT TO THE UNITED STATES

CONSTITUTION AND MAY NEVER BE CENSORED OR SUBJECT TO CRIMINAL

PROSECUTION.

{¶15} “IV. THE TRIAL COURT ERRED IN DENYING THE APPELLANT-

DEFENDANT'S REQUEST FOR A JURY INSTRUCTION THAT SET FORTH THE

FIRST AMENDMENT LAW RELATED TO PROTECTED SPEECH, INTER ALIA, Richland County, Case No. 2012-CA-50 6

WHEN THE BASIS OF THE CHARGES AGAINST THE APPELLANT-DEFENDANT

WERE BASED UPON WORDS ALONE.

{¶16} “V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN

SENTENCING THE APPELLANT-DEFENDANT TO THE MAXIMUM INCARCERATION

PERIOD OF THREE (3) YEARS ON BOTH LOW-LEVEL FELONIES OF THE THIRD

DEGREE, WHEN THE APPELLANT-DEFENDANT HAD NEVER BEEN CONVICTED

OF ANY PRIOR FELONY IN HIS LIFE, AND WHERE THE MANDATES OF ORC

§2929.11(A) DICTATE THAT THE OVERRIDING PURPOSES OF FELONY

SENTENCING ARE TO PROTECT THE PUBLIC AND TO PUNISH THE OFFENDER

USING THE MINIMUM SANCTIONS THAT THE COURT DETERMINES

ACCOMPLISH THOSE PURPOSES WITHOUT IMPOSING AN UNNECESSARY

BURDEN ON STATE OR LOCAL GOVERNMENT RESOURCES .

{¶17} “VI. THERE WAS INSUFFICIENT EVIDENCE PRESENTED BY THE

STATE OF OHIO RELEVANT TO BOTH THE RETALIATION AND THE INTIMIDATION

CONVICTION TO SUSTAIN A CONVICTION, WHEN THERE WAS NO EVIDENCE

PRODUCED THAT A PUBLIC SERVANT WAS, PRIOR TO OR DURING TRIAL,

INVOLVED IN A COURT PROCEEDING WHEN THE ALLEGED RETALIATION

AND/OR INTIMIDATION CHARGED OCCURRED.

{¶18} “VII. WITHOUT PROOF BEYOND A REASONABLE DOUBT THAT THE

CONDUCT OF THE OFFENDER HAD A FACTUAL NEXUS TO THE UNDERLING

CHARGES THAT RESULTED IN A COURT PROCEEDING, NO CONVICTION ON

CHARGES OF EITHER RETALIATION OR INTIMIDATION MAY BE HAD.” Richland County, Case No. 2012-CA-50 7

I, VI & VII

{¶19} In his first, sixth and seventh assignments of error, Yambrisak essentially

challenges the sufficiency and the weight of the evidence.

{¶20} Because we find the issues raised in these assignments of error are

closely related for ease of discussion we shall address the assignments of error

together.

{¶21} 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

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.

{¶22} 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 Richland County, Case No. 2012-CA-50 8

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.

{¶23} 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

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.’”

{¶24} “[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. * * *

{¶25} “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). Richland County, Case No. 2012-CA-50 9

{¶26} In the case at bar, Yambrisak was charged with retaliation against a public

servant or witness. The language of the indictment which reads,

(A) No person, knowingly and by force or by unlawful threat of harm

to any person or property, shall attempt to influence, intimidate, or hinder a

public servant, a party official, or an attorney or witness involved in a civil

action or proceeding in the discharge of the duties of the public servant,

party official, attorney, or witness.

{¶27} “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B).

{¶28} Yambrisak was also charged with retaliation. R.C. 2912.05 provides,

(A) No person, purposely and by force or by unlawful threat of harm

to any person or property, shall retaliate against a public servant, a party

official, or an attorney or witness who was involved in a civil or criminal

action or proceeding because the public servant, party official, attorney, or

witness discharged the duties of the public servant, party official, attorney,

or witness.

{¶29} R.C. 2901.22 Culpable mental states, provides:

(A) A person acts purposely when it is his specific intention to

cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender Richland County, Case No. 2012-CA-50 10

intends to accomplish thereby, it is his specific intention to engage in

conduct of that nature.

{¶30} According to R.C. 2921.01(B)(1), the term “public servant” includes within

its definition a “public official.” The latter term is defined as “any elected or appointed

officer, or employee, or agent of the state or any political subdivision, whether in a

temporary or permanent capacity, and includes, but is not limited to, legislators, judges,

and law enforcement officers.” R.C. 2921.01(A).

{¶31} Both intimidation and retaliation require that the state prove beyond a

reasonable doubt an “unlawful threat of harm.” The Supreme Court of Ohio suggested

that, to be unlawful, the threat itself must violate a predicate offense. State v. Cress,

,

, 2006–Ohio–6501, ¶43.(Construing the “unlawful threat

of harm” element of R.C. 2912.04(B), attempt to intimidate victim, witness or attorney for

being a witness) The court held “that the statutory language in R.C. 2921.04(B),

proscribing intimidation by an ‘unlawful threat of harm,’ is satisfied only when the very

making of the threat is itself unlawful because it violates established criminal or civil

law.” Id. at ¶ 42,

. The court held that the threat itself, not the threatened

conduct, must be unlawful. Id. at ¶ 38,

. As the “threat of harm”

language of R.C. 2921.03 is identical to the language construed by the Court in Kress,

we find the Supreme Court’s analysis to be persuasive in a case involving intimidation

under R.C. 2921.03(A).

{¶32} In this case, the only evidence of an alleged unlawful threat of harm are

the following statements, Richland County, Case No. 2012-CA-50 11

I hate you, you fucking nigger. You black bitch, I’m going to fuck

you up.

***

Do you like talking to young girls about sex? Do you like talking to

prostitutes about sex? I hate you, you fucking nigger. I’m going to fuck you

up.

1T. at 145-146. Yambrisak does not deny that he made these statements or that he

directed the statements to Detective Smith.

{¶33} In and of themselves the majority of statements are not threatening.

Statements such as “I hate you,” “Do you like talking to young girls about sex? Do you

like talking to prostitutes about sex?”; “You black bitch”; and “I hate you, you fucking

nigger” did not make an unlawful threat of harm toward Smith. Although contemptible

and debauched, the substance of the “threats” were statements of Yambrisak’s feelings

and opinions.

{¶34} The more vexing problem is posed by Yambrisak’s use of the terms, “I’m

going to fuck you up.” As the Supreme Court of Ohio has noted, “[t]he most intimidating

threat of all may be an indefinite one (‘You'll be sorry’).” State v. Cress,

,

, 2006–Ohio–6501,¶ 37. The words chosen are themselves

ambiguous and did not mention a particular criminal act or give other particulars.

However, when taken in the context of Yambrisak’s other rants the statement can take

on a more troubling tone. Richland County, Case No. 2012-CA-50 12

{¶35} A second consideration is what did Yambrisak intend to convey by his

tirade. To constitute retaliation Yambrisak must have had a specific intention to cause a

certain result. In the case at bar, Detective Smith did investigate Yambrisak in 2009.

{¶36} The trial court in State v. Fuqua, 3rd Dist. No. 6-02-01,

noted that “witness” includes those who see or hear an event as well as those who

testify in court about it. Id. at ¶ 9. The trial court also noted that “[t]he duties of a

‘witness' include not only the act of testifying but all of the preliminary aspects of

becoming formally involved in the process of identification and case preparation.” Id. at

¶ 10 (emphasis added). The appellate court agreed and concluded that retaliation

applies even if the witness never had to testify against the defendant. Id. at ¶ 20.

{¶37} We find the above-quoted reasoning persuasive. However, in the case at

bar, in order to convict Yambrisak of retaliation, the evidence must prove that any threat

of unlawful harm be directed at Detective Smith because of her prior involvement with

him in 1999.

{¶38} We find under the facts of this case that this “nexus” between Yambrisak

and Detective Smith is lacking. Detective Smith testified that her involvement with

Yambrisak in 2009 was uneventful. No threats, accusations or problems ensued

between her investigation of the allegations and serving the arrest warrant in October

2009 and her chance meeting him on July 15, 2011. Those charges were dismissed in

their entirety by the prosecuting attorney. In addition, the occurrence in July 2011

happened in broad daylight in full view of not only Deputy Smith’s acquaintance, but

also other persons in and around the street. Once identified, Yambrisak sped away. Richland County, Case No. 2012-CA-50 13

{¶39} We find based upon all the surrounding circumstances, Yambrisak’s

words were too unequivocal, unconditional, not immediate and not specific enough to

convey to Detective Smith that he was retaliating for her involvement with him two years

earlier.

{¶40} We find there was insufficient evidence in the record that Yambrisak

purposefully or unlawfully threatened Detective Smith in retaliation for her involvement

with his 1999 criminal matter.

{¶41} Likewise, we find insufficient evidence in the record to find that Yambrisak

attempted to influence, intimidate, or hinder Deputy Smith in the discharge of her duty.

Nothing Yambrisak did or said on July 15, 2011 was in any way related to or hindered

Detective Smith in the discharge of her duties. Her duties in the 2009 case against him

were completed and no charges were ever prosecuted. Yambrisak’s words were too

unequivocal, unconditional, not immediate and not specific enough to convey to

Detective Smith that Yambrisak was attempting to influence, intimidate, or hinder

Deputy Smith in the discharge of her duties.

{¶42} We find there was insufficient evidence in the record to find that

Yambrisak knowingly by unlawful threat of harm was attempting to influence, intimidate,

or hinder Detective Smith in the discharge of her duties.

{¶43} Appellant’s first, sixth and seventh assignments of error are sustained.

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 convictions and sentences are vacated, and this case is remanded for

the trial court to enter judgments of acquittal on all counts. Richland County, Case No. 2012-CA-50 14

{¶44} In light of our disposition of the first, sixth and seventh assignments of

error, we find Yambrisak’s second, third, fourth and fifth assignments of error to be

moot.

{¶45} The judgment of the Richland County Court of Common Pleas is reversed.

Pursuant to Section 3(B) (2), Article IV of the Ohio Constitution and R.C. 2953.07, the

convictions and sentences convictions are vacated, and this case is remanded for the

trial court to enter judgments of acquittal on all counts.

By Gwin, J.,

Delaney, P.J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JOHN W. WISE

WSG:clw 0304 [Cite as State v. Yambrisak,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : BYRON YAMBRISAK : : : Defendant-Appellant : CASE NO. 2012-CA-50

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

the Richland County Court of Common Pleas is reversed. Pursuant to Section 3(B) (2),

Article IV of the Ohio Constitution and R.C. 2953.07, the convictions and sentences are

vacated, and this case is remanded for the trial court to enter judgments of acquittal on

all counts. Costs to Appellee.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JOHN W. WISE