[Cite as State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654.]




              THE STATE OF OHIO, APPELLANT, v. DAVIS, APPELLEE.
           [Cite as State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654.]
Criminal law—Witness intimidation—R.C. 2921.04—Police investigation is not a
        proceeding in a court of justice for purposes of the witness-intimidation
        statute.
    (No. 2011-0685—Submitted January 17, 2012—Decided April 17, 2012.)
      Appeal from the Court of Appeals for Montgomery County, No. 23858,
                        193 Ohio App.3d 130, 2011-Ohio-1280.
                                  __________________
        MCGEE BROWN, J.
        {¶ 1} This appeal addresses when a person who has knowledge of a
crime is a witness under R.C. 2921.04(B), which prohibits witness intimidation.
        {¶ 2} The Second District Court of Appeals reversed the conviction of
appellee, Tracy Davis, for violating R.C. 2921.04(B). Davis was indicted for
witness intimidation based on a threat he made to his ex-wife after police began
investigating the underlying crime but before any charges had been filed. Under
these facts, the appellate court found that no “action or proceeding” existed at the
time of the threat. Therefore, the victim of the threat was not a witness under
R.C. 2921.04(B).
        {¶ 3} As we recently explained, R.C. 2921.04(B) does not apply “when
the intimidation occurred after the criminal act but prior to any proceedings
flowing from the criminal act in a court of justice.” State v. Malone, 121 Ohio
St.3d 244, 2009-Ohio-310, 903 N.E.2d 614, ¶ 10. A police investigation, without
more, is not a “proceeding[ ] flowing from the criminal act in a court of justice.”
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Therefore, Davis’s ex-wife was not a witness pursuant to R.C. 2921.04(B) at the
time of the threat.1 Accordingly, we affirm.
                                        Background
        {¶ 4} This case stems from an extended chase and altercation involving
Davis and a deputy sheriff that ended when Davis drove his ex-wife’s minivan
within feet of the deputy sheriff, who was on foot. The deputy fired at Davis, and
was injured, while dodging the vehicle.
        {¶ 5} Davis fled the scene. He traveled to the home of his ex-wife,
where he changed out of bloodstained clothes and tried to conceal damage to the
minivan from the altercation. Davis warned his ex-wife that she should lie about
the incident or he would kill her and blow up her apartment.
        {¶ 6} Davis was later apprehended and indicted on four counts: one
count of felonious assault of a peace officer under R.C. 2903.11(A)(2), two counts
of tampering with evidence under R.C. 2921.12(A)(1), and one count of
intimidation of a witness under R.C. 2921.04(B). After a trial, a jury found Davis
guilty of one count of tampering with evidence (relating to taping over bullet
holes in the minivan) and one count of intimidation of a witness, and it found
Davis not guilty of the second count of tampering with evidence (relating to
efforts to conceal bloodstains on his clothing). However, a mistrial was declared
with respect to the assault charge after the jury failed to reach a verdict.
        {¶ 7} The trial court sentenced Davis to two years on the tampering-
with-evidence conviction and four years on the intimidation-of-a-witness
conviction, to be served concurrently. The trial court also imposed three years of
postrelease control.


1. The General Assembly recently amended R.C. 2921.04 and eliminated its “action or
proceeding” language. Effective June 4, 2012, R.C. 2921.04(E) will define “witness” to “mean[ ]
any person who has or claims to have knowledge concerning a fact or facts concerning a criminal
or delinquent act, whether or not criminal or delinquent child charges are actually filed.” 2011
Sub.H.B. No. 20.




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                              January Term, 2012




       {¶ 8} On appeal, Davis argued that the conviction of witness
intimidation was not supported by sufficient evidence and that it was against the
manifest weight of the evidence.      He also claimed that the conviction of
tampering with evidence was against the manifest weight of the evidence.
       {¶ 9} The Second District Court of Appeals affirmed Davis’s conviction
of tampering with evidence. State v. Davis, 193 Ohio App.3d 130, 2011-Ohio-
1280, 951 N.E.2d 138, ¶ 46 (2d Dist.). The appellate court, however, vacated
Davis’s conviction of witness intimidation. Because “there had only been an
offense reported and a police investigation initiated, there was insufficient
evidence of a criminal action or proceeding to sustain a conviction for witness
intimidation in violation of R.C. 2921.04(B).” Id. at ¶ 29. In reaching this
conclusion, the appellate court relied on our decision in Malone, 121 Ohio St.3d
244, 2009-Ohio-310, 903 N.E.2d 614, interpreting “criminal action or
proceeding” in R.C. 2921.04(B) to require “ ‘proceedings flowing from the
criminal act in a court of justice’ ” in order to convict a defendant of witness
intimidation. (Emphasis omitted.) Davis at ¶ 29.
       {¶ 10} The state appealed, raising one proposition of law: “A conviction
for intimidation of a witness under R.C. 2921.04(B) is sustainable when the
witness is threatened after law enforcement officers have commenced
investigation in a case.” We accepted review. 129 Ohio St.3d 1449, 2011-Ohio-
4217, 951 N.E.2d 1046.
                          Analysis of R.C. 2921.04(B)
       {¶ 11} R.C. 2921.04(B) provides:


              No person, knowingly and by force or by unlawful threat of
       harm to any person or property, shall attempt to influence,
       intimidate, or hinder the victim of a crime in the filing or
       prosecution of criminal charges or an attorney or witness involved



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       in a criminal action or proceeding in the discharge of the duties of
       the attorney or witness.


Under R.C. 2921.04(D), the offense is a third-degree felony.
       {¶ 12} For the purpose of this appeal, the critical language of R.C.
2921.04(B) is “involved in a criminal action or proceeding.”           We recently
reviewed this language. In Malone, 121 Ohio St.3d 244, 2009-Ohio-310, 903
N.E.2d 614, we addressed a conflict in the appellate courts regarding the
requirements for qualifying as a witness under the statute.
       {¶ 13} Shortly after committing a rape, Malone threatened a person who
observed the crime as it occurred. The victim had not reported the crime at the
time of the threat. Because “[t]he statute requires a witness’s involvement in a
criminal action or proceeding, not his or her potential involvement,” we held that
the person who observed the crime was not yet a witness when she was
threatened. (Emphasis sic.) Id. at ¶ 21. Thus, we affirmed the decision reversing
Malone’s conviction.
       {¶ 14} In the instant appeal, the state seizes upon our remark in Malone
that “when no crime has been reported and no investigation or prosecution has
been initiated, a witness is not ‘involved in a criminal action or proceeding’ for
purposes of R.C. 2921.04(B).” Id. at ¶ 30. That statement, which appears in the
conclusion of the Malone opinion, applied the holding of the decision to the
specific facts of the case. It did not alter our clear holding that “a conviction for
intimidation of a witness under R.C. 2921.04(B) is not sustainable when the
intimidation occurred after the criminal act but prior to any proceedings flowing
from the criminal act in a court of justice.” Malone at ¶ 10. Instead, the remark
emphasized that Malone’s threat occurred long before the threat victim qualified
as a witness under the statute, so the statute did not apply. Malone stands for the
proposition that a “criminal action or proceeding” under R.C. 2921.04(B) requires




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                               January Term, 2012




the formal initiation of proceedings such as criminal charges or grand jury
proceedings, not merely the investigation of the crime.
       {¶ 15} In the present case, a police investigation had begun before Davis
threatened his ex-wife; indeed, police awareness of the acts leading to Davis’s
felonious-assault charge was immediate because the victim was a deputy. But no
“criminal action or proceeding” was initiated until later, when the state filed
charges against Davis.     Therefore, no “criminal action or proceeding” was
underway at the time of the threat, and R.C. 2921.04(B) does not apply.
       {¶ 16} Moreover, R.C. 2921.04(B) has not changed since we issued our
decision in Malone; our holding in that decision remains sound. Throughout the
Revised Code, “ ‘criminal action or proceeding’ * * * indicates the involvement
of a court.” Malone, 121 Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d 614, at
¶ 15; see also id. at ¶ 18 (“As demonstrated in Ohio’s statutory scheme and in this
court’s case law, a ‘criminal action or proceeding’ implies a formal process
involving a court”).
       {¶ 17} In this statute, the General Assembly has not only employed
language indicating the need for court involvement, it has provided a stark
contrast by pairing the witness-protection language with language explicitly
protecting crime victims from intimidation immediately after a criminal act.
Compare R.C. 2921.04(A) with (B). “A key to our analysis is the clear-cut
difference between the protections afforded victims and witnesses under the
statute. * * * The General Assembly in R.C. 2921.04(B) could have protected
witnesses from intimidation immediately upon their witnessing a criminal act, but
it did not.” Malone at ¶ 19, 20.
       {¶ 18} We do not arrive at this conclusion lightly. Threats to prospective
witnesses cause real harm to the administration of justice, as we recognized in
Malone. But we are limited by the language chosen by the General Assembly to




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define the crime of witness intimidation, and we cannot apply that language to
conduct outside the statute.
                                     Conclusion
          {¶ 19} R.C. 2921.04(B) prohibits the intimidation of a person who
observes a crime after the initiation of proceedings flowing from the criminal act
in a court of justice. A police investigation of a crime, without more, is not a
proceeding in a court of justice, and it does not invoke the protection of R.C.
2921.04(B) for a person who observes the crime. Therefore, the Second District
Court of Appeals correctly determined that insufficient evidence exists to convict
Davis for witness intimidation based on his threat to his ex-wife. We affirm the
decision reversing Davis’s conviction under R.C. 2921.04(B).
                                                                 Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and CUPP, JJ.,
concur.
          LUNDBERG STRATTON, J., dissents.
                                __________________
          LUNDBERG STRATTON, J., dissenting.
          {¶ 20} Although I concurred in the predecessor case, State v. Malone, 121
Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d 614, I believe that this case is
different, and therefore I dissent. However, since the General Assembly has
chosen to amend the statute to cover these situations, 2011 Sub.H.B. No. 20, this
case will have limited impact. Potential and real witnesses to a crime will now be
protected regardless of the status of any legal proceedings.
                                __________________
          Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R.
Lynn Nothstine, Assistant Prosecuting Attorney, for appellant.
          Marlow & Neuherz, L.L.C., and Brandin D. Marlow, for appellee.
                               ______________________




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