[Cite as State v. Baker,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-08-086

: OPINION - vs - 2/1/2021 :

JOSHUA BAKER, :

Appellant. :

CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 20CRB02319

Neal D. Schuett, City of Hamilton Prosecuting Attorney, 345 High Street, Hamilton, Ohio 45011, for appellee

Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for appellant

PIPER, J.

{¶1} Appellant, Joshua Baker, appeals his domestic violence conviction in the

Hamilton Municipal Court.

{¶2} Baker and the victim had known each other for 28 years and had four children

together, though the two never married. Their relationship was turbulent, and Baker had a

history of verbally abusing the victim. Baker also threw a rock through the window where Butler CA2020-08-086

the victim lived with her daughter, and Baker blinded the victim in her right eye.

{¶3} In late June 2020, Baker sent a text message to the victim after the two argued

about child support. In the text message, Baker said that he was going to kill the victim. In

separate messages, Baker also threatened to cut the brake lines in the victim's vehicle and

to jeopardize her employment. The victim went to the police on July 2, 2020 to report

Baker's threats, and Baker was charged with domestic violence.

{¶4} Baker pled not guilty and waived a jury trial and the matter proceeded to a

bench trial. The state presented the victim's testimony, and the trial court found Baker

guilty. The trial court sentenced Baker to 30 days in jail. Baker now appeals his conviction,

raising the following assignments of error.

{¶5} Assignment of Error No. 1:

{¶6} THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE

EVIDENCE AS THE STATE FAILED TO ESTABLISH THAT A FAMILY MEMBER

BELIEVED THAT APPELLANT WOULD CAUSE IMMINENT PHYSICAL HARM.

{¶7} Baker argues in his first assignment of error that his conviction is against the

manifest weight of the evidence and is not supported by sufficient evidence.

{¶8} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence to determine whether such evidence

presented, if believed by the trier of fact, would support a conviction. State v. Gross, 12th

Dist. Preble No. CA2018-01-001,

. 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. State v. Baikov, 12th Dist. Fayette No. CA2019-11-023,

.

{¶9} For sufficiency of the evidence purposes, and when looking at the evidence

in a light most favorable to the prosecution, we need only look to the testimony elicited by

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the state to determine if it provided evidence sufficient to prove the essential elements of

the crime. However, as Ohio courts have acknowledged, "it is not our duty to weigh the

evidence" during this inquiry. State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005-Ohio-

1437, ¶ 16.

{¶10} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147,

.

{¶11} Questions regarding witness credibility and weight of the evidence "are

primarily matters for the trier of fact to decide since the trier of fact is in the best position to

judge the credibility of the witnesses and the weight to be given the evidence." State v.

Walker, 12th Dist. Butler No. CA2006-04-085,

. Therefore, an

appellate court will overturn a conviction due to the manifest weight of the evidence only in

extraordinary circumstances when the evidence presented at trial weighs heavily in favor

of acquittal. State v. Blair, 12th Dist. Butler No. CA2014-01-023,

, ¶ 43.

{¶12} Baker was convicted of domestic violence in violation of R.C. 2919.25(C),

which provides, "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." For a violation of R.C. 2919.25(C), it must be shown that the victim

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believed the offender would cause him or her imminent physical harm at the time the

incident took place. State v. Hart, 12th Dist. Warren No. CA2008-06-079,

.

{¶13} While the term "threat" is not defined by statute, the Ohio Supreme Court has

stated that the term "represents a range of statements or conduct intended to impart a

feeling of apprehension in the victim." State v. Cress,

,

,

¶ 39. The victim's state of mind is an essential element of this crime. City of Hamilton v.

Cameron,

(12th Dist. 1997). Thus, "there must be some evidence

that a victim either stated, or from other evidence it could be inferred, that the victim thought

the accused would cause imminent physical harm."

"Prior acts of violence between a

defendant and the victim are highly probative in establishing the victim's belief of impending

harm." State v. Rhoads, 12th Dist. Clermont No. CA2012-05-040,

.

{¶14} Baker argues that the state failed to prove that the victim had a reasonable

subjective belief he would cause her imminent physical harm at the time the incident took

place because the victim waited before reporting the threat to police. We disagree.

{¶15} The victim testified that she was "scared" upon receiving the text message in

which Baker threated to kill her and that she feared that Baker would imminently inflict

physical harm because she knew "anything is possible with him." The state specifically

asked the victim whether she was afraid "when he said he was going to kill you," to which

the victim answered, "yes." The state next asked the victim why she was frightened by the

text message, and the victim testified, "because I don't want to die." See State v. Drake,

(12th Dist. 1999) (finding appellant's statement "I'm going to burn

you alive" was sufficient to cause the victim to fear imminent physical harm). The trial court,

which was in the best position to judge the victim's credibility, believed the victim when she

testified why she feared harm from Baker at the time she received the text message, and

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we will not disturb that credibility determination on appeal.

{¶16} The dissent quotes the victim's testimony that she did not believe "Baker was

going to come over and kill" her as support that the evidence is insufficient to convict Baker.

However, this ignores Baker's other statements to the victim and ignores all reasonable

inferences the trier of fact is entitled to make from the evidence as a whole. Furthermore,

the statute does not require a fear of imminent death, only a fear of imminent physical harm.

Moreover, imminent "does not mean the offender [will] carry out the threat immediately or

be in the process of carrying it out." State v. McKinney, 9th Dist. Summit No. 24430, 2009-

Ohio-2225, ¶ 11. Instead, imminent harm may include words "hanging threateningly over

one's head."

{¶17} For example, the Fourth District Court of Appeals affirmed a conviction for

domestic violence when an estranged husband threatened his wife by saying, "I'll make

sure you get yours." Tackett,

. Without weighing the evidence, the

appellate court considered that the victim had testified at trial that she believed Tackett

intended to cause her physical harm and that "the threat was not conditioned or contingent

on some other factor." Id. at ¶ 16. Thus, the court determined there was sufficient evidence

to support the conviction.

{¶18} The threat before us is similar to that made in Tackett. While the victim may

not have believed Baker was on his way over to her home to kill her, she testified that she

was in fear for her safety because "anything" was possible with Baker. Baker's text was not

conditioned upon anything, nor contingent upon other factors that would have limited its

threatening manner. Thus, the testimony quoted by the dissent does not establish that the

victim did not fear some imminent physical harm or that she was not "scared" for her safety

because Baker intended her harm. The dissent's quotation, relying on a single statement

elicited on cross-examination, is out of context from the full testimony presented by the

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state.

{¶19} The dissent also takes issue with the amount of time between Baker's text

message and the victim's report to police. While the record indicates that the victim waited

several days to report the text message to police, such did not vitiate the fact that she feared

for her life at the time of the incident when Baker threatened her. On redirect, the victim

explained that after she received Baker's text message, she considered whether Baker

merely threatened her or if she needed to go to police in order to seek protection. The

victim testified that she went to police because she was "scared."1 Thus, the passage of

time between the threat and when the victim reported it does not mean that she lacked the

requisite belief that Baker would cause her imminent physical harm. She feared for her life

upon receiving the threat and remained "scared," which prompted her to seek protection.

{¶20} Moreover, there is no indication in the record that the victim's fear subsided

or that she no longer feared Baker in the days following the text. Instead, the victim testified

that she felt it necessary to involve police even several days later "to protect us" and out of

a desire "to be safe for me and my children in the home." The victim's belief that Baker

would cause her imminent harm was reasonable, especially when considered in conjunction

with Baker's past conduct involving the victim.

{¶21} The state presented evidence that Baker acted aggressively in the past

toward the victim, or while in her company, to support the reasonableness of the victim's

fear of Baker. The victim testified that Baker engaged in a continual pattern of verbal abuse

with her throughout their relationship, including threats and degradation. She also testified

that Baker had thrown a rock through a window of the house where she lived with her

1. The only reasonable inference from this testimony is the victim was considering if her fear was based upon an "empty" threat as opposed to a reason for her to be scared. The fear not subsiding, she obviously felt compelled to seek protection.

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daughter. The victim testified that Baker did this because he was unhappy with people

inside the house, specifically his daughter's boyfriend. The victim also testified that over

the course of her relationship with Baker, he had on more than one occasion shown violence

toward her. It was Baker's conduct that blinded the victim's right eye.

{¶22} Despite no threat being made on the day the victim reported Baker's death-

threat, the evidence regarding Baker's violent conduct demonstrates the reasonableness of

the victim's fear that Baker would harm her. See State v. Campbell, 12th Dist. Butler No.

CA2007-12-313,

(affirming domestic violence conviction despite

defendant not threatening victim where the victim was nonetheless afraid of defendant

during the incident "because he was angry and upset" given his past behavior when angry

and upset).

{¶23} Thus, we find that the state presented sufficient evidence that, when viewed

in a light most favorable to the prosecution, demonstrates any rational trier of fact could

have found the essential elements of domestic violence proven beyond a reasonable doubt.

We also find that this is not the exceptional case in which the evidence weighs heavily

against the conviction. Thus, Baker's first assignment of error is overruled.

{¶24} Assignment of Error No. 2:

{¶25} THE TRIAL COURT ERRED IN ADMITTING 404(B) EVIDENCE, TO THE

PREJUDICE OF APPELLANT.

{¶26} Baker argues in his second assignment of error that the trial court erred in

admitting "other acts" evidence in violation of Evid.R. 404(B).

{¶27} "The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a

question of law" that is reviewed de novo. State v. Hartman, Slip Opinion No. 2019-0184,

. However, some aspects of the analysis require employment of the

trial court's discretion, such as addressing whether the evidence is prejudicial. Id. at ¶ 30.

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Thus, we apply a mixed standard of review when addressing the admission of other-acts

evidence. Id. While a de novo review requires this court to review the matter anew, an

abuse of discretion standard requires us to determine whether the trial court's decision was

unreasonable, arbitrary, or unconscionable. State v. Perkins, 12th Dist. Clinton No.

CA2005-01-002,

.

{¶28} Evid.R. 404(B) provides that "evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

{¶29} "The key is that the evidence must prove something other than the

defendant's disposition to commit certain acts. Thus, while evidence showing the

defendant's character or propensity to commit crimes or acts is forbidden, evidence of other

acts is admissible when the evidence is probative of a separate, nonpropensity-based

issue. Hartman,

.

{¶30} The Ohio Supreme Court has recently addressed how trial courts must

analyze other-acts evidence. First, "the court must evaluate whether the evidence is

relevant to the particular purpose for which it is offered." (Emphasis sic.). Id. at ¶ 26. "The

nonpropensity purpose for which the evidence is offered must go to a 'material' issue that

is actually in dispute between the parties." Id.

{¶31} Next, "there must be substantial proof that the alleged similar act was

committed by the defendant." Id. at ¶ 28. "Similar act evidence is relevant only if the jury

can reasonably conclude that the act occurred and that the defendant was the actor." Id.

{¶32} Lastly, "the trial court must determine whether the proffered evidence—

though admissible under Evid.R. 404(B)—is nevertheless more prejudicial than probative."

Id. at ¶ 29. In so determining, trial courts should consider how disputed the evidence is that

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is being offered and whether the prosecution is able to present alternative evidence to prove

the same fact through less prejudicial means. Id. at ¶ 31. "Weighing the probative value of

the evidence against its prejudicial effect is a highly fact-specific and context-driven

analysis. Balancing the risks and benefits of the evidence necessarily involves an exercise

of judgment; thus, the trial court's determination should be reviewed for an abuse of

discretion." Id. at ¶ 30.

{¶33} After reviewing the record, we find that the trial court properly admitted

evidence of Baker's past interactions with the victim. This evidence was not used to show

Baker's propensity, but rather, to demonstrate why the victim both feared Baker and

reasonably believed that he would cause her imminent physical harm.

{¶34} Regarding the Ohio Supreme Court's test as stated above, the evidence in

question was relevant to the particular purpose for which it is offered because the state was

required to prove the victim's belief that Baker would cause imminent physical harm. As

noted above, the victim's state of mind is an integral consideration when determining if the

state carried its burden. Evidence that Baker threw a rock through a window when he was

angry at someone inside and that Baker blinded the victim demonstrate why it was

reasonable for the victim to fear Baker and believe that he would cause imminent physical

harm. See City of Hamilton v. Roberson, 12th Dist. Butler No. CA98-03-045,

, *4 (Dec. 7, 1998) ("to prove the essential element that there was a belief

of imminent physical harm, the state may introduce prior acts of violence directed toward

the victim"). Thus, the evidence specifically addressed a material issue actually in dispute.

{¶35} Second, the evidence was uncontroverted that Baker committed the acts

about which the victim testified. During cross-examination, defense counsel inquired into

the rock throwing incident and what the victim understood regarding Baker's reason for

throwing the rock. However, whether Baker actually threw the rock was not disputed.

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Defense counsel did not cross-examine the victim regarding her testimony that Baker

blinded her eye, nor did counsel question any of the other testimony regarding the turbulent

relationship or violence the victim described. Moreover, the trial court found the victim's

testimony credible regarding Baker's violent history, and again, we will not question the trial

court's credibility determination.

{¶36} Lastly, the evidence was not more prejudicial than probative given the

importance of the victim's state of mind when considering the charge against Baker. The

trial court was in the proper position to understand the limited purpose for which the

evidence was admitted, and the record indicates that the trial court considered Baker's past

behavior for the proper purpose rather than for propensity.

{¶37} Baker objected to the admission of the evidence of the rock and his blinding

the victim. However, the trial court properly noted, "one of the elements of the offense is

that the State has to show that the Defendant caused her to believe that the offender would

cause imminent physical harm, and that's why I think this line of questioning is relevant on

the point of whether it would cause her to believe that he would cause imminent physical

harm." Thus, the possibility of prejudice was low since the trial court only considered the

evidence for a limited, and correct, purpose.

{¶38} The state was required to prove each element of the offense, one of which

included understanding why the victim would believe that physical harm was imminent.

There was no less prejudicial evidence the state could have offered to prove why the victim

feared imminent harm from Baker than his history of violent behavior in her presence.

{¶39} After reviewing the record, we find that the trial court properly admitted the

other-acts evidence. Baker's second assignment of error, overruled.

{¶40} Judgment affirmed.

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S. POWELL, J., concurs.

M. POWELL, P.J., dissents.

M. POWELL, P.J., dissenting.

{¶41} I disagree with my colleagues' finding that the evidence was sufficient to

establish the victim believed physical harm was "imminent."

{¶42} To reiterate, R.C. 2919.25(C), the domestic violence statute, provides that

"[n]o 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." The imminency of the physical harm apprehended by the victim is a necessary

element of the offense. The significance of the "imminency" element of the domestic

violence statute is apparent when contrasted with R.C. 2903.21(A), the aggravated

menacing statute. Aggravated menacing is committed when an offender "knowingly

cause[s] another to believe that the offender will cause serious physical harm to the person

or property of the other person," with no requirement regarding when the apprehended harm

will occur.2 The "imminency" element of domestic violence is not mere surplusage which

may be discounted but must be established by the state in order to sustain a conviction

under the statute.

{¶43} The Ohio Revised Code does not define "imminent" in the context of the

domestic violence statute. Therefore, a court must look to the plain and ordinary meaning

of the word. The Merriam-Webster online dictionary defines "imminent" as "ready to take

place; happening soon."3 Other appellate districts have characterized the "imminence"

2. R.C. 2903.22, the menacing statute, provides likewise with the exception that the victim’s belief involves only "physical harm" as opposed to "serious physical harm."

3. https://www.merriam-webster.com/dictionary/imminent (accessed Jan. 28, 2021).

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element of the statute as "near at hand, impending, threatening to occur immediately,"

Cincinnati v. Baarlaer,

(1st Dist. 1996); and "as the belief of the

victim that harm would occur immediately or, in the alternative, that the defendant will cause

immediate physical harm." State v. Fisher,

,

(2d Dist.), citing State v. Taylor,

(M.C. 1996). "Courts have found

that the danger posed by a threat is not imminent where the person making the threat has

no means of fulfilling the threat at the time it is made." State v. Deveny, 2d Dist. Miami No.

2016-CA-7,

.

{¶44} The record reflects that Baker's threat was made remotely, by text message,

as opposed to having been made in person. The victim testified that she did not know

where Baker was when he sent the text message. Furthermore, the victim's two-week delay

in reporting the threat to the police circumstantially suggests she did not believe that Baker

would act imminently to make good on his threat. Lest there be any doubt, the victim

confirmed on cross-examination that she did not call the police immediately because she

"didn't think [Baker] was going to come over and kill [her]."

{¶45} In Hamilton v. Cameron,

(12th Dist. 1997), we

recognized that R.C. 2919.25(C) requires a close temporal nexus between the physical

harm apprehended by a victim and the threat. We observed that "'[i]t must be shown by the

prosecution that the victim believed the offender would cause her imminent physical harm

at the time the incident took place.'" (Emphasis added.)

, quoting State v. Sayres,

4th Dist. Washington No. 95CA30,

, *4 (Mar. 26, 1997); see

also State v. Collie,

(1st Dist. 1996).

{¶46} In State v. Diroll, 11th Dist. Portage No. 2006-P-0110,

, the

Eleventh Appellate District reversed a conviction for domestic violence in violation of R.C.

2919.25(C) and remanded the matter to the trial court with direction that it enter a judgment

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of acquittal, in part because the evidence indicated that the threat of physical harm was not

"imminent." Commenting upon the evidence, the court of appeals stated, "there was

evidence presented that he was at his mother's residence when he made the threat. Diroll's

mother's house and Smith's house are several miles apart, making it less likely that Diroll

could 'immediately' or 'at any moment' inflict physical harm upon Smith." Id. at ¶ 54.

{¶47} In Baarlaer, the defendant was convicted of domestic violence in violation of

R.C. 2919.25(C) for calling the victim while incarcerated in the county jail and stating, "as

soon as I make bond, I’m going to kick your ass." In finding the threat of physical harm was

not imminent and reversing the conviction, the court of appeals noted that when the threat

was made, the defendant "was literally behind bars and distant from [the victim]." Baarlaer,

.

{¶48} The victim may very well have feared Baker would harm her based upon the

text message threat, their past history, and her knowledge of his propensity to act in a

volatile manner. But simply believing a threat of physical harm does not establish the

offense, as the belief must be of physical harm that is "ready to take place" or "happening

soon." The state failed to present any evidence that Baker had the means to make good

on his threats at the time it was made or that the victim believed that she was in imminent

danger from Baker. While appellant's texted threat may have violated the law in some

respect, such as aggravated menacing in violation of R.C. 2903.21(A), telecommunication

harassment in violation of R.C. 2917.21(A)(1) and (6), and/or disorderly conduct in violation

of R.C. 2917.11(A)(1), it did not violate R.C. 2929.25(C).

{¶49} Based upon the foregoing, I would sustain the first assignment of error, find

the second assignment of error moot, and reverse the trial court's verdict finding Baker

guilty of domestic violence in violation of R.C. 2919.25(C).

{¶50} With regard and respect for my colleagues in the majority, I dissent.

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