State v. Tipton

S
[Cite as State v. Tipton, 2020-Ohio-3680.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 28602
                                                   :
 v.                                                :   Trial Court Case No. 2019-CRB-2266
                                                   :
 FRED TIPTON, III                                  :   (Criminal Appeal from
                                                   :   Municipal Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 10th day of July, 2020.

                                              ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, City of Dayton Prosecutor’s Office, 335 West
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JAMES S. SWEENEY, Atty. Reg. No. 0086402, 285 South Liberty Street, Powell, Ohio
43065
      Attorney for Defendant-Appellant

                                             .............




HALL, J.
                                                                                       -2-




       {¶ 1} Following a bench trial in the Dayton Municipal Court, Fred Tipton III was

found guilty of aggravated menacing and sentenced to 180 days in jail, which was

suspended. He appeals from the municipal court’s judgment. We affirm.

                         Factual and Procedural Background

       {¶ 2} On May 13, 2019, Tipton was charged with one count of aggravated

menacing, in violation of R.C. 2903.21(A), a first-degree misdemeanor. Tipton pleaded

not guilty, and the matter proceeded to a bench trial. The evidence presented showed the

following facts.

       {¶ 3} Hester Tipton, who goes by her middle name, Renee, is Fred Tipton’s sister.

At the time of the events in this case, she had custody of Tipton’s 13-year-old daughter.

Tipton had no visitation rights and apparently had not seen his daughter since Renee was

given custody three years earlier. Since then, Renee and Tipton had not had a good

relationship, and Renee had blocked Tipton’s phone number.

       {¶ 4} On May 9, 2019, Renee and her long-time fiancé, Marvin McDermott, were

having dinner at a Dayton restaurant when McDermott received an angry phone call from

Tipton. He was angry because his daughter was in the hospital and Renee had not called

to tell him. Tipton was cursing and talking so loudly that Renee could hear him. McDermott

went outside, and Renee followed. Outside the restaurant, McDermott turned on his

phone’s speakerphone. He did not tell Tipton that he had turned it on or that others could

hear their conversation. Renee and McDermott listened as Tipton threatened to send

someone to “beat up” Renee and threatened numerous times to kill her. Renee testified

that Tipton also threatened to have someone “shoot up” her house, though McDermott
                                                                                          -3-


did not remember that threat. Renee also said that Tipton claimed that the hospital was

being watched and that Renee needed to watch her back. It was then that Renee called

the police from her own phone. When the police arrived, McDermott was still on the phone

with Tipton. An officer told McDermott to hang up, and he did. The officer testified that

Renee appeared very frantic and scared and worried.

       {¶ 5} Tipton testified in his own defense. He said that he did not know that

McDermott had turned on speakerphone and did not know that anyone else was around

to hear the conversation. Tipton said that he did not know that Renee overheard the

phone call.

       {¶ 6} On October 10, 2019, the municipal court entered a judgment finding Tipton

guilty of aggravated menacing. On October 29, he was sentenced to 180 days in jail, all

of which was suspended. Tipton was also ordered to complete an anger management

program, a psychological evaluation, and to pay court costs of $120.

       {¶ 7} Tipton appeals.

                                         Analysis

       {¶ 8} Tipton’s sole assignment of error alleges that his conviction for aggravated

menacing was against the manifest weight of the evidence.

       {¶ 9} When reviewing a weight-of-the-evidence challenge, an appellate court

reviews the entire record, weighs the evidence and all reasonable inferences, considers

the credibility of witnesses, and determines whether, in resolving conflicts in the evidence,

the finder 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. Thompkins, 78 Ohio

St.3d 380, 387, 

678 N.E.2d 541

(1997), quoting State v. Martin, 

20 Ohio App. 3d 172

, 175,
                                                                                          -4-


485 N.E.2d 717

(1st Dist.1983).

       {¶ 10} The aggravated menacing statute pertinently states that “[n]o person shall

knowingly cause another to believe that the offender will cause serious physical harm to

the person * * *.” R.C. 2903.21(A). “A person acts knowingly, regardless of purpose, when

the person is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances when the

person is aware that such circumstances probably exist.” R.C. 2901.22(B).

       {¶ 11} Tipton argues that he did not know his threats were being conveyed or

would be conveyed to Renee. The plain language of R.C. 2903.21 does not require that

the threats be made directly to the victim. “[A] threat to cause harm need not be made

directly to the intended victim but may be sufficient if made to a third-party * * * whom the

defendant knew or reasonably * * * should have known would convey the threat to the

intended victim.” State v. McWilliams, 5th Dist. Stark No. 2011-CA-00051, 2012-Ohio-

663, ¶ 23. Accord Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641,

¶ 14 (the defendant was aware that the third-party was in an intimate relationship with the

victim, so it could be inferred that the defendant “knew or reasonably should have known”

the third-party would tell the victim about threats); State v. Knoble, 9th Dist. Lorain No.

08CA9359, 2008-Ohio-5004, ¶ 25 (concluding that the defendant’s threats were made

knowingly because it was “more likely than not” that a third-party would inform the victim).

       {¶ 12} Tipton’s threats were made knowingly, that is, he was aware that his

conduct would probably cause a certain result, namely, Renee’s belief that he would

seriously harm her. Tipton was aware that McDermott was Renee’s long-time fiancé, so

it could reasonably be inferred that Tipton knew or reasonably should have known that
                                                                                          -5-


McDermott would tell Renee about Tipton’s threats against her. See Dunn.

       {¶ 13} Tipton’s argument relies on two apparent contradictions between

McDermott’s and Renee’s testimony. The first concerns whether McDermott told Tipton

that Renee could hear the conversation. Renee testified that, during the call, Tipton could

hear her and that McDermott told him that she was within earshot. But McDermott testified

that he never told Tipton that anyone else could hear the conversation. The second

alleged contradiction concerns who called the police. Renee testified that she called the

police; McDermott testified that neither he nor Renee called the police. We think that there

were ways to reconcile this testimony and that neither of the apparent contradictions was

significant; moreover, contradictions in evidence are matters for the trial court to resolve.

Ultimately, the trial court could also have reasonably concluded that Tipton should have

expected McDermott to tell Renee of his threats. The evidence supports the conclusion

that Tipton should have expected such communication.

       {¶ 14} This is not an “ ‘exceptional case in which the evidence weighs heavily

against the conviction.’ ” 

Thompkins, 78 Ohio St. 3d at 387

, 

678 N.E.2d 541

,

quoting 

Martin, 20 Ohio App. 3d at 175

, 

485 N.E.2d 717

. We conclude that the municipal

court neither lost its way nor created a miscarriage of justice in convicting Tipton of

aggravated menacing.

                                        Conclusion

       {¶ 15} The sole assignment of error is overruled. The municipal court’s judgment

is affirmed.

                                      .............

FROELICH, J. and WELBAUM, J., concur.
                          -6-




Copies sent to:

Amy B. Musto
James S. Sweeney
Hon. Mia Wortham Spells

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