[Cite as State v. Richey,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

STATE OF OHIO, CASE NO. 12-20-07 PLAINTIFF-APPELLEE,

v.

KENNETH RICHEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Putnam County Common Pleas Court Trial Court No. 2020 CR 40

Judgment Affirmed

Date of Decision: April 26, 2021

APPEARANCES:

Todd W. Barstow for Appellant

Micah R. Ault for Appellee Case No. 12-20-07

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Kenneth T. Richey (“Richey”) appeals the

judgment of the Putnam County Court of Common Pleas, arguing (1) that his

convictions for retaliation are not supported by sufficient evidence and are against

the manifest weight of the evidence; and (2) that the trial court erred in admitting

other acts evidence pursuant to Evid.R. 404(B). For the reasons set forth below, the

judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} Randall Basinger (“Basinger”) worked as an assistant prosecutor in

Putnam County in between 1981 and 1987. Tr. 312. In 1986, Basinger became the

lead prosecutor in a case that resulted in Richey being charged with several crimes,

including aggravated murder and aggravated arson. Tr. 316. Roy Sargent

(“Sargent”), who is retired from the Putnam County Sheriff’s Office, testified that

Richey, while in jail awaiting trial in 1986, promised to get revenge on those who

testified against him and on Basinger. Tr. 279-280. Sargent also testified that, at

this time, Richey “was mad at everybody involved in the case * * *.” Tr. 285.

{¶3} During this timeframe, law enforcement also intercepted a letter (“the

1986 Letter”) that Richey had written to a friend that appeared to contain a coded

message. Tr. 280-281. Ex. 11. The 1986 Letter contained the following statement:

EVHA OSMOENE HOW ASH Ptacedec OT KEMA A THI NO SAGEBRIN HTE D.A. SONO THE SUPSU LIWL TEG HATWS GOCMIN OT MHI YMA EH TOR NI LELH!

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Ex. 11. When these letters are rearranged, this statement reads as follows: “Have

someone who has accepted to make a hit on Basinger the D.A. Soon the p***y will

get whats coming to him. May he rot in h**l!” Ex. 11. Basinger testified that, after

he was notified of these threats, he took security precautions at his home. Tr. 319.

{¶4} In 1987, a three-judge panel found Richey guilty of aggravated murder

and aggravated arson. Ex. 6. Tr. 317. The judges then determined to sentence

Richey to death. Tr. 198-199. Ex. 6-7. However, Richey’s death sentence was later

overturned. Tr. 198. Pursuant to a plea agreement, Richey was released from prison

on January 7, 2008. Ex. 7. Tr. 198, 341.

{¶5} By this point in time, Basinger had become a judge in Putnam County.

Tr. 313. On December 31, 2011, Richey called Basinger’s office and left the

following message on the answering machine: “Hey Randall Basinger. I’m in Ohio.

I’m coming to get you, b***h.” Ex. 8. Tr. 320-321. In response to hearing this

message, Basinger again took various security precautions. Tr. 321. Further, a

police investigation was opened into Richey after this message was discovered. Tr.

284.

{¶6} Law enforcement determined that Richey was, at that time, living in

Tupelo, Mississippi. Tr. 321. In early 2012, Sergeant Bethany K. Smith (“Sergeant

Smith”), who works for the Tupelo Police Department, was notified of the message

that Richey had left on the answering machine. Tr. 233, 235. On January 23, 2012,

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Sergeant Smith sat down for an interview with Richey. Tr. 248. She then forwarded

a copy of this interview to the investigators in Ohio. Tr. 236.

{¶7} On September 23, 2019, Lieutenant Josh Strick (“Lieutenant Strick”)

was dispatched to the house of Richey’s cousin, Vicky Emry (“Emry”), to

investigate a report that Richey had posted a threat online. Tr. 169. Once at the

house, Emry showed Lieutenant Strick a Facebook Live video that Richey had

posted at around 5:05 P.M. that afternoon. Tr. 170. Lieutenant Strick recorded a

portion of this video on his body camera. Tr. 173. In this video, Richey stated the

following:

[Richey]: Who the f*** cares?

[Other voice]: And we’re survivors too. We survive.

[Richey]: And we do. But tonight’s my last night. Because I can’t survive any more.

[Other voice]: Yeah.

[Richey:] I’ve lost everything several times. Actually, no. Tonight’s not my last night. Tonight is definitely not my last night. No. Somebody’s going to die before me tonight. The motherf***er who took my God damn life. He’s gonna die before I do. And all his family.

[Other voice]: No. Not all his family.

[Richey]: No. All his family. Because he prevented me from havin’ a family. So, he’s gonna die. So’s his kids and his grandkids and his great-grandkids.

[Other voice]: Don’t kill him instantly. Make him suffer.

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[Richey]: He’s gonna suffer.

***

[Richey]: He’s gonna suffer so much he won’t even f***in’ imagine it.

***

[Richey]: Blood for blood. Life for life.

Ex. 2. Lieutenant Strick then went to Basinger’s house to inform him of the video.

Tr. 179. Basinger then contacted his family members to inform them of the content

of this video. Tr. 179. The police also provided security to Basinger as a

precautionary measure. Tr. 180.

{¶8} Around this time, Richey’s ex-wife, Karen Charves (“Charves”), was

told by a friend that Richey had been posting videos on Facebook. Tr. 300. But at

this time, Charves was not Facebook friends with Richey. Tr. 302. For this reason,

Charves, with her friend’s permission, used her friend’s Facebook account to view

these videos. Tr. 302-303. Charves later testified that Richey had posted sixty

videos on Facebook but that ten of them had been deleted. Tr. 300. Charves sent

these videos to the police. Tr. 303.

{¶9} After examining these videos, Lieutenant Strick found three of them to

be relevant to his investigation into Richey. Tr. 18-189. These three videos had

been posted on June 8, 2019; June 9, 2019; and June 14, 2019. Tr. 189. In the video

posted on June 8, 2019, Richey stated the following:

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So why are you f***ing interested in me? Why? Cause I spent twenty-years on death row. Who gives a f***? S**t happens. The motherf***ers who are responsible for it will pay. Leave it at that. Leave it at that. Oh, I’m coming. You won’t know when, but I will. Your daughters, your grandkids. I don’t give a f**k. I’m gonna get you. Your legacy ends.

Ex. 1A. Tr. 188-189. In the June 9, 2019 video, Richey said the following:

Old b*****d. Fifty-four years old. Lost too many—too many years. That b***h owes me. But I’m comin’ to get it. Look at my f***in’ eyes. Am I jokin’? I’ll be seein’ you. And you know who the f*** you are. Payback’s a b***h. Your kids. Your grandkids. Your whole family. Life’s a motherf***er ain’t it. Especially when you piss someone off like me. B***h.

Ex. 1A. Tr. Finally, in the June 14, 2019 video, Richey stated the following: “I

know what I need to do. Kill the b*****d who destroyed my life. Yeah. And his

entire family.” Ex. 1A.

{¶10} On May 13, 2020, Richey was indicted on twelve counts of retaliation

in violation of R.C. 2921.05(A), felonies of the third degree;1 four counts of

violating a protection order in violation of R.C. 2919.27(A)(2), felonies of the third

degree; and one count of tampering with evidence in violation of R.C.

2921.12(A)(1), a felony of the third degree. Doc. 1.

{¶11} On May 27, 2020, the State filed a motion that sought a preliminary

ruling on the admission of other acts evidence at trial. Doc. 12. In this motion, the

1 The State alleged that Richey issued threats directed at Basinger, Basinger’s children, and Basinger’s grandchildren in each of the Facebook Live videos that he recorded and posted on June 8, 2019; June 9, 2019; June 14, 2019; and September 23, 2019. Doc. 1. For this reason, the State indicted Richey on three counts of retaliation for each video. Doc. 1. However, at the end of Richey’s trial, the trial court dismissed the eight counts of retaliation that arose from the threats that Richey had allegedly directed at Basinger’s children and Basinger’s grandchildren. Tr. 370.

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State noted that the crime of retaliation requires the prosecution to establish that the

defendant “retaliate[d] against a public servant * * * who was involved in a * * *

criminal action or proceeding.” Doc. 12, quoting R.C. 2921.05(A). The State

argued that, to prove the crime of retaliation, it would have to introduce evidence of

a prior criminal action or proceeding. Doc. 12. The State also argued that other acts

evidence was necessary to establish who Richey was threatening in his Facebook

videos since Richey does not mention the subject of his threats by name. Doc. 12.

On July 13, 2020, the trial court issued a preliminary decision that granted the

State’s request to use other acts evidence. Doc. 33.

{¶12} Richey’s jury trial was held on July 20-21, 2020. Doc. 80. Before

presenting its case, the State dismissed the four counts of violating a protection order

in violation of R.C. 2919.27(A)(2). Tr. 136-137.

{¶13} During the State’s case-in-chief, the trial court permitted the State to

introduce other acts evidence over the Defense’s continuing objection. Tr. 131, 192,

244, 264, 278, 298, 315, 353, 356. After the Defense rested, the trial court dismissed

eight of the twelve counts of retaliation against Richey. Tr. 370. The trial court

also dismissed the count of tampering with evidence for lack of venue. Tr. 381.

The jury found Richey guilty of the remaining four counts of retaliation in violation

of R.C. 2921.05(A). Doc. 53-56.

{¶14} On August 14, 2020, the trial court held Richey’s sentencing hearing

and issued its judgment entry of sentencing. Doc. 65. Richey filed his notice of

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appeal on September 11, 2020. Doc. 72. On appeal, he raises the following two

assignments of error:

First Assignment of Error

The trial court erred and deprived Appellant of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article One Section Ten of the Ohio Constitution by finding him guilty of retaliation, as that verdict was not supported by sufficient evidence and was also against the manifest weight of the evidence.

Second Assignment of Error

The trial court erred to the prejudice of the appellant by allowing the State to introduce prejudicial and irrelevant prior acts evidence.

First Assignment of Error

{¶15} Richey argues that his convictions for retaliation are not supported by

sufficient evidence and are against the manifest weight of the evidence.

Legal Standard: Sufficiency of the Evidence

{¶16} “A challenge to the sufficiency of the evidence supporting a

conviction requires a court to determine whether the state has met its burden of

production at trial.” In re Swift, 8th Dist. Cuyahoga No. 79610,

, ¶

19, citing State v. Thompkins,

,

(1997). This

“analysis addresses the question of whether adequate evidence was produced for the

case to be considered by the trier of fact and, thus, whether the evidence was ‘legally

sufficient to support the verdict * * *.’” State v. Barga, 3d Dist. Shelby No. 17-17-

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14,

, quoting State v. Worthington, 3d Dist. Hardin No. 6-15-

04,

.

{¶17} An appellate court is not to examine whether the evidence presented

should be believed but should rather “examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt.” State v. Johnston, 3d Dist. Logan

No. 8-13-10,

, quoting State v. Jenks,

,

(1991), superseded by state constitutional amendment on other

grounds in State v. Smith,

,

(1997). On appeal, the

applicable standard

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19,

, quoting State

v. Plott,

,

, ¶ 62 (3d Dist.).

{¶18} In this case, to prove the offense of retaliation in violation of R.C.

2921.05(A), the State had to establish that the defendant “purposely and * * * by

unlawful threat of harm to any person * * * retaliate[d] against a public servant * *

* who was involved in a civil or criminal action or proceeding because the public

servant * * * discharged the duties of the public servant * * *.” R.C. 2921.05(A).

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{¶19} “The retaliation statute does not require that any threat of harm be

communicated directly to the person threatened by the person doing the

threatening.” State v. Farthing,

,

,

(2d Dist.). See State v. Kunzer, 3d Dist. Crawford No. 3-18-16, 2019-

Ohio-2959, ¶ 42 (upholding a retaliation conviction where the defendant made a

threatening statement “to a person who was likely to communicate this unlawful

threat of harm to others”).

Rather, “where ‘the defendant was either aware that the threats would be communicated to the intended victim by the third person or could reasonably have expected the threats to be so conveyed,’ he is guilty of the type of unlawful threat of harm required by the retaliation statute.”

State v. Welch, 6th Dist. Wood No. WD-07-057,

, quoting

Farthing at ¶ 16, quoting State v. Lambert, 2d Dist. Montgomery No. 16667,

, *4 (June 5, 1998).

Legal Analysis: Sufficiency of the Evidence

{¶20} Richey argues that his convictions are not supported by sufficient

evidence because the State failed to establish that he “could reasonably have

expected the threats” to be communicated to Basinger. Lambert at *4. Since Richey

does not challenge the other elements of his convictions, we will limit our

sufficiency-of-the-evidence analysis to consideration of this particular issue.

{¶21} At trial, the State introduced four video recordings of Richey from

June 8, 2019; June 9, 2019; June 14, 2019; and September 23, 2019. Ex. 1A, 2. In

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each of these videos, Richey can be seen and heard making multiple threats. Ex.

1A, 2. At trial, the testimony of Lieutenant Strick and Charves indicated that Richey

had used Facebook Live to record these four videos. Tr. 170, 300. In his testimony,

Lieutenant Strick explained that Facebook Live enables users to stream or broadcast

a video online in real time. Tr. 170. He also explained that other users can view

this livestream. Tr. 170.

{¶22} Further, the evidence produced at trial also indicated that Richey left

these video recordings posted online after he had finished the livestream. Lieutenant

Strick testified that he viewed the September 23, 2019 video on a computer at

Emry’s house one hour after Richey had begun to broadcast the video on Facebook

Live. Tr. 176. Similarly, Charves indicated that she accessed these videos online

after Richey had posted them on his Facebook page.2 Tr. 300-302. At trial, Charves

confirmed that she was not Facebook friends with Richey at the time she saw the

videos he had posted. Tr. 300-302. However, Charves had a friend who was

connected to Richey on Facebook. Tr. 303. Charves accessed these videos through

her friend’s Facebook account. Tr. 302-303.

{¶23} While Richey did not communicate any of these threats directly to

Basinger, Richey repeatedly posted videos of himself issuing these threats on his

Facebook page. These threats were not issued anonymously but broadcasted on an

2 Charves testified that there had been sixty videos online; that around fifty of them were still posted; and that ten of the videos had been deleted. Tr. 300. She testified that she forwarded the remaining videos to law enforcement. Tr. 300-302. Lieutenant Strick testified that he received forty-nine videos. Tr. 188.

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online account that was associated with his name. Ex. 2. Further, he left recordings

of these Facebook Live videos on his online account for some time after he posted

them. Repeatedly broadcasting these videos online and leaving them posted on his

Facebook page increased the likelihood that Basinger would become aware of the

threats contained therein.

{¶24} Richey also points to two cases in support of his arguments in this

assignment of error: State v.

and State v. Bragg, Clermont C.P. No.

2018 CR 00930,

(Mar. 19, 2019). In Farthing, the defendant

wrote a private letter to another inmate that contained threatening statements that

were directed at his former parole officer. Id. at ¶ 4. The defendant was convicted

of retaliation after this letter was discovered. Id. at ¶ 4-5. The Second District Court

of Appeals reversed this conviction after determining that the defendant “had no

reason to expect” that statements made in a private message would be

communicated to his former parole officer. Id. at ¶ 17.

{¶25} Farthing is distinguishable from the case presently before this Court.

Richey did not make threatening statements in a private communication. Instead,

Richey broadcasted these statements online. Tr. 170. Further, by posting these

videos online, Richey also made these recorded threats accessible to others after his

livestream broadcasts had concluded. Tr. 170, 300. Richey also repeatedly

recorded and posted threats online while the defendant in Farthing wrote one private

letter. Ex. 1A, 2.

.

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{¶26} In Bragg, the defendant was charged with telecommunications

harassment after he made a statement on Facebook about an elected official. Bragg

at *1. The defendant did not know this official personally; had never contacted this

official before; was not Facebook friends with this official; did not directly message

this official online; and did not tag this official in this post.

Based on these facts,

the Clermont Court of Common Pleas determined that the evidence did not establish

“that, at the moment the defendant posted on Facebook * * *, he did not have the

specific intention to abuse, threaten, or harass” the state official, even though the

defendant had posted this statement online. Id. at *4.

{¶27} Bragg is also distinguishable from the case before this Court. In

contrast to the defendant in Bragg, Richey had personally interacted with Basinger

in the past; had a complicated history with Basinger that spanned decades; had direct

contact with Basinger in the past; and had posted these threats online multiple times.

Tr. 315-317, Ex. 1A, 2. Importantly, we note that Richey was convicted of

retaliation, not telecommunications harassment. See Bragg, supra, at *1.

{¶28} After reviewing the materials in the record, we conclude that the jury

could find that Richey, by repeatedly broadcasting, recording, and posting threats

online, “could reasonably have expected that these threats would be communicated”

to Basinger.

. From the evidence produced by the State at

trial, a rational trier of fact could have found that Richey was guilty of the four

counts of retaliation in violation of R.C. 2921.05(A). Since the State produced some

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evidence to substantiate each of the essential elements of these offenses, his four

convictions for retaliation are supported by sufficient evidence. As such, this

argument is without merit.

Legal Standard: Manifest Weight of the Evidence

{¶29} In a manifest weight analysis, “an appellate court determines whether

the state has appropriately carried its burden of persuasion.” State v. Blanton,

,

(3d Dist. 1997). “Unlike our review of the

sufficiency of the evidence, an appellate court’s function when reviewing the weight

of the evidence is to determine whether the greater amount of credible evidence

supports the verdict.”

. Thus, “the appellate court sits as a

‘thirteenth juror’ * * *.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-

2916, ¶ 17, quoting

. On appeal, courts

must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder ‘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. Brentlinger,

,

(3d Dist.), quoting

.

State v. Schatzinger, 3d Dist. Wyandot No. 16-20-04,

.

{¶30} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the

witnesses.” State v. Sullivan,

,

(3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53,

. “Only

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in exceptional cases, where the evidence ‘weighs heavily against the conviction,’

should an appellate court overturn the trial court’s judgment.” State v. Little, 2016-

Ohio-8398,

, ¶ 27 (3d Dist.), quoting State v. Hunter,

,

,

, ¶ 119.

Legal Analysis: Manifest Weight of the Evidence

{¶31} On cross-examination, Lieutenant Strick testified that, to his

knowledge, Richey was not Facebook friends with Basinger. Tr. 218-219. He also

stated that, to his knowledge, Basinger was not watching these livestreams in real

time. Tr. 219. Lieutenant Strick testified that he could not determine how many

people were watching the different livestreams at the time that Richey was issuing

threats. Tr. 218. However, he stated that Richey noted that he had sixty to sixty-

five viewers for one of the Facebook livestreams that he posted on June 14, 2019.3

Tr. 193, 218.

{¶32} Lieutenant Strick also testified that Richey’s cousin, Emry, was the

person who saw the Facebook Live post and notified the authorities. Tr. 169. He

confirmed that Emry was able to “provide [him] with the identity of the person she

believed to be the victim” based on the content of the video. Tr. 178. He also stated

that Richey posted “a lot” of footage through Facebook Live. Tr. 219. Lieutenant

3 The Facebook Live video in which Richey noted the number of people watching his livestream was posted at 1:34 P.M. on June 14, 2019. Tr. 218. Later that day, Richey posted another Facebook Live video at 5:30 P.M. in which he issued threats. Tr. 218. See Ex. 1A. These were two different videos. Tr. 218. The video posted at 5:30 P.M. on June 14, 2019 became the basis of Richey’s third conviction for retaliation in this case. Ex. 1A.

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Strick stated that some of Richey’s videos were “five hours long, many are two or

three hours long.” Tr. 219.

{¶33} Charves testified that, at the time of the relevant posts, she was not

Facebook friends with Richey. Tr. 302. She stated that she became aware of these

posts through a friend who was connected to Richey on Facebook. Tr. 302. Charves

testified that Richey had posted around sixty Facebook Live videos on his account

but had deleted roughly ten of these videos. Tr. 300. Further, on cross-examination,

Basinger testified that he did not discover these videos online but was shown these

videos by law enforcement. Tr. 344.

{¶34} Having reviewed the evidence presented at trial on the basis of its

weight and credibility, we conclude that the evidence in the record does not weigh

heavily against Richey’s four convictions for retaliation. Further, there is no

indication in the record that the jury lost its way and returned a verdict against the

manifest weight of the evidence. As such, Richey’s first assignment of error is

overruled.

Second Assignment of Error

{¶35} Richey argues that the trial court erred by allowing evidence of his

other acts to be admitted at trial.

Legal Standard

{¶36} “Evid.R. 404(B) categorically prohibits evidence of a defendant’s

other acts when its only value is to show that the defendant has the character or

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propensity to commit a crime.” State v. Smith,

, --- N.E.3d ---, ¶

36, citing Evid.R. 404(B). In other words, “evidence which tends to show that the

accused has committed other crimes or acts independent of the crime for which he

stands trial is not admissible to prove a defendant’s character or that the defendant

acted in conformity therewith.” State v. Wendel,

,

(3d Dist.), quoting State v. Hawthorne, 7th Dist. Columbiana No.

, 2005-

Ohio-6779, ¶ 24. See Evid.R. 404(A). However, under Evid.R. 404(B), “the

admission of ‘other acts’ extrinsic to the charged offense * * *” is permissible in

certain circumstances. State v. Lester, 3d Dist. Union Nos. 14-18-21, 14-18-22,

. See R.C. 2945.59. See Evid.R. 404(B).

{¶37} In determining whether other acts evidence is admissible, the Ohio

Supreme Court has set forth a three-step analysis. State v. Williams,

,

.

‘The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’ [Williams at] ¶ 20, citing Evid.R. 401. See also [State v.] Hartman[,

,

,

,] ¶ 24, 28.

State v. Williams, 3d Dist. Allen No. 1-19-70,

. “The threshold

question is whether the evidence is relevant.” Smith at ¶ 37. “The rule governing

the admissibility of other-acts evidence does not bypass the relevancy

determination.” Hartman at ¶ 25. But

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the problem with other-acts evidence is rarely that it is irrelevant; often, it is too relevant. Hartman at ¶ 25; see 1A Wigmore, Evidence, Section 58.2, at 1212 (Tillers Rev. 1983). In the Evid.R. 404(B) context, the relevance examination asks whether the proffered evidence is relevant to the particular purpose for which it is offered, as well as whether it is relevant to an issue that is actually in dispute. Hartman at ¶ 26-27.

Smith at ¶ 37. For this reason, “the inquiry is not whether the other-acts evidence is

relevant to the ultimate determination of guilt. Rather, the court must evaluate

whether the evidence is relevant to the particular purpose for which it is offered.”

; Smith, supra, at ¶ 37.

‘The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B).’

Williams,

(3d Dist.), quoting Williams,

, ¶ 19-

20. Evid.R. 404(B) states that other acts evidence may be admissible to establish

“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Evid.R. 404(B). “The key is that the [other acts]

evidence must prove something other than the defendant’s disposition to commit

certain acts.” Smith, supra, at ¶ 36, quoting

.

{¶38} These first two steps of the Ohio Supreme Court’s analysis present

questions of law and are subject to a de novo standard of review on appeal. State v.

McDaniel,

, --- N.E.3d ---, ¶ 17 (1st Dist.). Hartman at ¶ 22, citing

Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events,

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Section 4.10 (2d Ed. 2019) (“[d]etermining whether the evidence is offered for an

impermissible purpose does not involve the exercise of discretion * * *, an appellate

court should scrutinize the [trial court’s] finding under a de novo standard” of

review).

{¶39} “The analysis does not end once a proponent has established a

permissible nonpropensity purpose for the admission of other-acts evidence.”

Hartman at ¶ 29.

‘The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.’ Williams[,

,] ¶ 20, citing Evid.R. 403. See also Hartman at ¶ 29.

Williams,

(3d Dist.). “As the importance of the factual

dispute for which the evidence is offered to the resolution of the case increases, the

probative value of the evidence also increases and the risk of unfair prejudice

decreases.”

.

{¶40} This third step “constitutes a judgment call which we review for abuse

of discretion.”

. See

(holding that

“[b]alancing 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”).

An abuse of discretion is not merely an error of judgment. State v. Sullivan,

, [

], ¶ 20 (3d Dist.). Rather, an abuse of discretion is present where the trial court’s decision was arbitrary, unreasonable, or capricious. State v.

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Howton, 3d Dist. Allen No. 1-16-35,

. When the abuse of discretion standard applies, an appellate court is not to substitute its judgment for that of the trial court. State v. Thompson,

,

, ¶ 11 (3d Dist.).

State v. Miller, 3d Dist. Hancock No. 5-20-15,

.

Legal Analysis

{¶41} In this case, the trial court permitted the State to introduce other acts

evidence pursuant to Evid.R. 404(B). Under the first step of the applicable test, we

are to determine whether the challenged other acts evidence is relevant. Williams,

(3d Dist.);

. As an initial matter, we

note that Richey has not argued on appeal that the other acts evidence introduced at

trial was irrelevant. See Evid.R. 401, 402. Further, there is no indication in the

record that any of this contested evidence fails to meet the basic relevancy

requirements of Evid.R. 401. See Evid.R. 401.

{¶42} However, in Hartman, the Ohio Supreme Court shifted the emphasis

of this analysis to encompass issues beyond the basic relevancy requirements of

Evid.R. 401.

, citing Evid.R. 401, 402. The focus of this

analysis is to examine whether the challenged other acts evidence was (1) “relevant

to the particular purpose for which it [was] offered” and (2) “relevant to an issue

that is actually in dispute.” State v. Sotelo, 6th Dist. Lucas No. L-19-1240, 2020-

Ohio-5368, ¶ 32, citing

.

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{¶43} As a general matter, we note that the other acts evidence introduced at

trial is less likely to be used as propensity evidence in this case because Richey can

be seen and heard committing the alleged criminal acts in the four recordings he

made of himself. Ex. 1A, 2. For example, the evidence that tends to establish that

Richey issued threats in 1986 was not introduced to prove that Richey was likely to

have issued threats in 2019 because the Facebook Live videos clearly establish that

he did issue threats in 2019.

{¶44} Further, in these recordings, Richey alludes to the reasons that he was

issuing threats through vague references to being on death row; losing years of his

life; and losing the opportunity to have a family. Ex. 1A, 2. He also states that this

threatened harm would be “payback” for some perceived wrong against him. Ex.

1A. But to prove a violation of R.C. 2921.05(A), the State could not merely

establish that Richey was issuing threats as retaliation for any perceived wrong from

his past. Rather, under the facts of this case, the State had to prove that Richey

issued these threats to retaliate against a person for discharging his or her duties as

a public servant in a prior criminal proceeding. See R.C. 2921.05(A). While these

threats are clearly made in response to some perceived wrong, they are not, standing

alone, sufficient to determine whether they are motivated by a purpose to retaliate

against a public servant for being involved in a prior criminal proceeding.

{¶45} We also note that, in this case, Richey did not mention the name of the

person who he perceived as wronging him and destroying his life in the video

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recordings that he posted online. Ex. 1A, 2. For this reason, the content of the

Facebook Live videos is not sufficient to determine the identity of the person who

is threatened. Thus, motive and identity are material issues of fact at trial. The fact

that the State was able to introduce video recordings of Richey committing the

alleged criminal acts in this case suggests that the other acts evidence was

introduced to establish why Richey issued these threats and who he was threatening

instead of to show Richey’s propensity to issue threats.

{¶46} We turn now to the second step wherein we will determine whether

the different pieces of other acts evidence were presented for a legitimate purpose.

McDanial, supra, at ¶ 17; Williams,

(3d Dist.). See Evid.R.

404(B). At trial, the State presented other acts evidence at trial from the following

periods of time: 1986, 2008, 2011-2012, and 2014. We will now analyze the other

acts evidence from each of these periods of time:

{¶47} 1986 Trial, Letter, and Threats: At trial in this matter, Lieutenant

Strick and Basinger testified about the charges against Richey in 1986. Tr. 198-

199. Lieutenant Strick testified that Richey was charged with aggravated arson and

aggravated murder in 1986. Tr. 198. The State also introduced a certified copy of

Richey’s prior conviction for aggravated murder from 1987. Ex. 7. Lieutenant

Strick stated that Richey was sentenced to death. Tr. 199. Basinger then testified

that he became involved in this prior case against Richey in 1986 and was the lead

prosecutor at Richey’s trial in 1987. Tr. 315-316.

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{¶48} Further, Michael Ball (“Ball”), who retired from the Putnam County

Sheriff’s Office, testified that he was working in the corrections division in 1986.

Tr. 262-264. He stated the following about an interaction he had with Richey while

he was incarcerated in August of 1986:

And there was a time when I walked up towards the area of where Kenneth Richey was, he had asked me if I could give him a message to Basinger, referred to him as Basinger. And he just said that, give him a message that when he got out he was going to cut his throat.

Tr. 264. Ball also testified that, on another occasion, Richey stated that “Basinger

was going to die.” Tr. 266.

{¶49} At trial, Sargent testified that he was involved with the investigation

into the charges against Richey in 1986 and that he spoke with Richey in October

or November of 1986 while he was incarcerated. Tr. 277-278. Sargent then said

the following:

And he [Richey] started to ask me a little bit about his case, and I told him that I really shouldn’t talk to him right now without his attorney present; and he said he didn’t care.

And then about that time he started telling me, he said Basinger was dead.

And I asked him why.

And he said, he’s ruined my family, ruined my life. He said, my dad won’t come see me. I’m not allowed to call nobody. And, you know, and then he also talked about everybody else, that anybody testified against him or anything that they better hope he’s 6 feet under because he’ll get his revenge when he gets out.

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Tr. 279-280. Sargent also testified about the contents of the 1986 Letter that Richey

had written to a friend. Tr. 282. The State then introduced a copy of the 1986 Letter

into evidence. Ex. 11. Tr. 282, 356.

{¶50} As we have noted previously, the evidence regarding the murder

investigation in 1986 and the subsequent trial in 1987 was necessary to establish the

crime of retaliation. See State v. Lambert, 2d Dist. Montgomery No. 16667,

, *4 (June 5, 1998). In this case, the State had to establish that Richey’s

unlawful threats of harm were retaliation for Basinger having discharged his duties

as a prosecuting attorney in a previous criminal proceeding. This evidence

establishes (1) the existence of a prior criminal action or proceeding; (2) Basinger’s

involvement in that proceeding as a public servant; and (3) that Richey was angry

at Basinger for discharging his duties in that criminal proceeding.

{¶51} We turn now to the 1986 Letter and the other threats Richey made in

1986. This evidence tends to establish Richey’s motive. See Evid.R. 404(B).

“Motive evidence establishes that the accused had a specific reason to commit a

crime.”

. In this case, the testimony about the 1986 Letter

and the other threats that Richey made in 1986 established a connection between

Richey’s statements in 2019 and the prior criminal proceeding in which Basinger

discharged his duties as a public servant. This other acts evidence tends to establish

that Richey was motivated to issue threats of harm in 2019 as retaliation for

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Basinger’s involvement as a public servant in this prior criminal proceeding in 1986

and 1987.

{¶52} This other acts evidence also helps to establish the identity of the

person that Richey is threatening through his modus operandi. See Evid.R. 404(B).

‘Modus operandi’ literally means method of working. See People v. Barbour,

,

,

(1982). It is evidence of signature, fingerprint-like characteristics unique enough ‘to show that the crimes were committed by the same person.’ Weissenberger, Federal Evidence, Section 404.17 (7th Ed. 2019). Evidence of modus operandi is relevant to prove identity * * *.

.4 “To be admissible to prove identity through a certain

modus operandi, other-acts evidence must be related to and share common features

with the crime in question.” State v. Lowe,

,

,

paragraph one of the syllabus (1994). At trial, Basinger testified at trial that the

content of these earlier threats is what led him to believe, upon viewing the

Facebook Live videos, that the threats issued by Richey were directed at him. Tr.

330. Basinger testified as follows:

The statements that he [Richey] again makes about taking his life, about wanting to kill me and my family, including my children and grandchildren, and that he repeats in similar fashion the same types of threats that he had made in the past.

4 We note that, in Hartman, modus operandi was examined in the context of determining the identity of the defendant whereas, in the case before this Court, the modus operandi evidence was introduced to establish the identity of the subject of Richey’s threats.

.

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Tr. 334-335. This other acts evidence tends to establish Richey’s motive and the

identity of the person he threatened. For these reasons, we conclude that this other

acts evidence from this 1986-1987 timeframe was relevant to and admitted for

legitimate purposes at trial.

{¶53} 2008 Sky News Interview: Lieutenant Strick testified that, after Richey

was released from prison in 2008, he sat down for an interview with Sky News and

“discussed some of his feelings towards Mr. Basinger.” Tr. 194, 196.5 He further

stated that, in this interview, Richey “states a threat on there of what he would like

to do to Mr. Basinger.” Tr. 195. Lieutenant Strick testified that this video was still

posted on YouTube at the time of the trial. Tr. 226.

{¶54} Again, this evidence tends to establish the identity of the person

threatened in the Facebook Live videos. At trial, defense counsel asked Sargent on

cross-examination whether Richey was, in 1986, mad at others involved in his case

besides Basinger. Tr. 286. Sargent stated that Richey “was mad at everybody

involved in the case” at that time. Tr. 287. He also testified that Richey said “that

anybody [who] testified against him or anything that they better hope he’s 6 feet

under because he’ll get his revenge when he gets out.” Tr. 280. In this line of

questioning, the Defense was putting at issue the identity of the person who was

being threatened in the 2019 Facebook Live videos.

5 A copy of the video interview was not admitted into evidence. However, we can, from the trial testimony elicited on direct examination and cross-examination determine the purpose of the interview for the other acts evidence analysis.

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{¶55} From the testimony at trial, the Sky News interview was introduced to

establish that, by the time of his release in 2008, Richey was still angry at Basinger

for his involvement in the 1986-1987 murder case against him (Richey) over twenty

years after his trial had concluded. Further, the trial testimony indicates the general

focus of Richey’s statements during this interview was Basinger. This other acts

evidence is probative of Richey’s motive and Basinger’s identity. Thus, we

conclude that this other acts evidence from this 2008 interview was relevant to and

admitted for legitimate purposes at trial.

{¶56} 2011 Answering Machine Message Investigation: Basinger testified

that, on December 31, 2011, Richey had left the following message on the

answering machine at the court where Basinger worked: “Hey Randall Basinger.

I’m in Ohio. I’m coming to get you, b***h.” Ex. 8. Tr. 320-321. Basinger stated

that he was, at that time, very concerned by this threat and took a number of security

precautions in response. Tr. 320-321. At trial, the State introduced a recording of

the message that Richey left on the answering machine. Tr. 201. Ex. 8.

{¶57} Sergeant Smith testified that she was involved in the investigation into

this message in 2012. Tr. 233, 235. She sat down with Richey for an interview on

January 23, 2012. Tr. 248. Sergeant Smith testified that Richey expressed a belief

that “Basinger [had] it in for him * * *.” Tr. 240. She testified further as follows:

He [Richey] stated that the fire had been initially ruled as accidental and he stated that basically Basinger had convinced or somehow had it ruled to arson instead of accidental.

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***

[H]e [Richey] stated that he didn’t know why Basinger had it in for him, that he wish[ed] he knew.

Tr. 242. She also confirmed that Richey had expressed a belief “that Basinger had

set him up * * *” and that Basinger had “unfairly treated” him during the murder

trial in 1986. Tr. 241. At trial, the State played portions of a recording of the

interview between Sergeant Smith and Richey. Tr. 243-244. Ex. 9.

{¶58} Further, Sargent testified that he was involved in the investigation into

the answering machine message in 2012. Tr. 284. Regarding this investigation,

Sargent stated that law enforcement “never received any complaints from any other

witnesses that, you know, he had actually tried to contact them, threaten them, or

anything like that. It was always Basinger.” Tr. 285. Sargent also noted that Richey

had asked if Basinger was married or had children. Tr. 285.

{¶59} Even though Richey had, in 1986, expressed a desire to get revenge

against those who were willing to testify against him in his murder trial, Sargent’s

testimony indicates that, during the course of his investigation in 2012, he did not

uncover any evidence that Richey was threatening another person who had been

involved in the murder case in 1986 and 1987. Tr. 285. In his interview with

Sergeant Smith, Richey provides a clear articulation of the reasons he is still angry

at Basinger. Tr. 242. This evidence tends to establish that Richey had, by this point,

specifically singled out Basinger as the person who had “set him up.” Tr. 241. In

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turn, this helps to establish both Richey’s motive and Basinger’s identity in the case

currently before this Court.

{¶60} Further, the fact that Richey made this threat in 2011 and was subject

to a criminal investigation afterwards is probative of his intent. Evid.R. 404(B). As

to this issue, “[t]he question * * * is not whether the act occurred but whether the

defendant acted with a criminal intent.”

. In this case, the

Defense, as evidenced by its closing arguments, put Richey’s intent at issue, arguing

that he did not intend to retaliate against Basinger but merely posted some videos

online. Tr. 399, 401-401. See Smith, supra, at ¶ 45, 52. The evidence from the

investigation into the 2011 answering machine message tends to establish that, when

Richey was posting these videos on Facebook, he was aware of the seriousness of

his conduct and the effect that these threats would have on their subject. For these

reasons, we conclude that this other acts evidence from 2011-2012 was relevant to

and admitted for legitimate purposes at trial.

{¶61} 2014 Thanksgiving Comments: At trial, Charves testified that she

married Richey in 2014. Tr. 295. She stated that, at Thanksgiving in 2014, Richey

played a video of his interviews on the internet. Tr. 298. She stated that Richey

told them that Basinger “was the man that destroyed his life” and that Basinger “had

him [Richey] put away for 21-and-a-half years for a crime he [Richey] * * * didn’t

commit.” Tr. 299. She testified that Richey would make these kinds of comments

“off and on depending on how much alcohol he consumed.” Tr. 299. She then

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stated that Basinger was the only person that Richey had ever identified as the

person who destroyed his life. Tr. 301. She testified that Richey never referred to

anyone else as the person who destroyed his life. Tr. 301.

{¶62} Again, this evidence tends to establish the identity of the person who

Richey was threatening in 2019. In the Facebook Live videos, Richey describes this

unnamed object of his threats as the person “who destroyed my life.” Ex. 1A. As

he issues threats, he also states that he “spent twenty-years on death row” and that

he “[l]ost too many * * * years.” Ex. 1A. Charves testimony not only tends to

establish that Richey was threatening Basinger but also tends to establish that

Richey was not threatening someone else. Tr. 300-302. Having examined this

evidence, we conclude that this other acts evidence from 2014 was relevant to and

admitted for legitimate purposes at trial.

{¶63} We turn now to the third step of this analysis wherein we examine

whether the danger of unfair prejudice substantially outweighs the probative value

of this other acts evidence. Williams,

(3d Dist.). In this

case, the trial court “t[ook] steps to minimize the danger of unfair prejudice inherent

in the use of such evidence and to ensure that the evidence is considered only for a

proper purpose.”

. The trial court gave the jury the

following instruction regarding this other acts evidence:

Now, I have permitted evidence to be admitted regarding past activities that the defendant engaged in regarding the actions or words regarding Mr. Basinger. These prior acts were admitted

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for the sole purpose of proving his purpose, intent, motive, and/or design in this case. You may not consider this evidence for any other purpose, like you cannot consider the evidence that because he did something bad in the past means he did something bad in 2019 regarding the subject of this indictment.

Tr. 431. The Ohio Supreme Court has held that “an appropriate jury instruction

geared toward the specific purpose for which the evidence has been admitted will

help reduce the risk of confusion and unfair prejudice.”

.

Further, we are to “presume that the jurors followed the trial court’s instructions.”

State v. Baker, 3d Dist. Allen No. 1-17-61,

.

{¶64} We also note that the trial court did take steps to limit the potential for

any unfair prejudice that might arise from the incident surrounding the answering

machine message that Richey left at Basinger’s office in 2011. Before Richey’s

trial, the judge informed the parties that “the fact that he [Richey] was convicted of

* * * [retaliation in 2011] and sentenced on that[,] I’m not going to allow that [to be

admitted into evidence].” Tr. 129. Thus, the trial court took steps to limit the

potential for unfair prejudice that could arise from having evidence of Richey’s prior

conviction for retaliation admitted at trial. This reduces the potential for the jury to

use the other acts evidence as propensity evidence.

{¶65} Further, as we have already noted, Richey can be seen and heard

issuing threatening statements in four videos that he recorded of himself and then

posted online. Ex. 1A, 2. For this reason, much of the other acts evidence was

introduced to establish the identity of the victim of this offense not the identity of

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the perpetrator of this offense. These facts significantly reduce the risk of jury

confusion over the other acts evidence. The jurors were likely to rely on the videos

from 2019 to determine whether Richey had issued unlawful threats of harm in

2019. In this case, they were not likely to impermissibly or misguidedly rely on

Richey’s past threats from 1986-1987, 2008, 2011-2012, and 2014 to come to the

conclusion that Richey had issued unlawful threats in 2019.

{¶66} Having reviewed the materials in the record, we conclude that the trial

court did not err or abuse its discretion in permitting the State to introduce this other

acts evidence at trial. This other acts evidence was relevant to and admitted for

legitimate purposes under Evid.R. 404(B). Further, there is no indication in the

record that the danger of unfair prejudice substantially outweighed the probative

value of this other acts evidence. For this reason, Richey’s second assignment of

error is overruled.

Conclusion

{¶67} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Putnam County Court of Common Pleas

is affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/hls

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