[Cite as State v. Eisele, 2014-Ohio-873.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                        C.A. No.     13CA0044-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DENNIS W. EISELE                                     COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   12-CR-0472

                                  DECISION AND JOURNAL ENTRY

Dated: March 10, 2014



        HENSAL, Judge.

        {¶1}     Appellant, Dennis W. Eisele, appeals from his convictions in the Medina County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In the early morning hours of December 31, 2011, a male 911 dispatcher

answered several telephone calls placed to the Dickinson County Sheriff’s Office located in

Spirit Lake, Iowa. The unidentified male caller threatened to: 1) shoot the dispatcher in the

head, 2) kill a police officer, and 3) have sexual intercourse with the dispatcher’s wife.

According to the caller, he was in Lake Park, Iowa, which is located approximately 10 to 15

miles from Spirit Lake. The dispatcher told the police officer who was on patrol in Lake Park

about the threats and attempted to trace the caller’s telephone number. Although the telephone

number purported to be local as it used an Iowa area code, the investigation revealed it was

“spoofed” so that the caller’s real telephone number was masked by a fake number. Later that
                                                 2


day, the same caller placed additional calls to the Sheriff’s Office that were answered by a

female dispatcher. The caller made crude comments to her that were of a graphic and sexual

nature.

          {¶3}   Mr. Eisele was indicted by the Grand Jury with one count each of: (1)

intimidation, in violation of Revised Code Section 2921.03(A), a third-degree felony; (2)

aggravated menacing, in violation of Revised Code Section 2903.21(A), a first-degree

misdemeanor; and (3) telecommunications harassment, a violation of Revised Code Section

2917.21(A)(3), a first-degree misdemeanor. A jury trial was held, and Mr. Eisele was convicted

of all the offenses. He now appeals from his convictions and raises two assignments of error for

this Court’s review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED IN ALLOWING THE STATE TO IMPEACH
          THE DEFENDANT WITH PRIOR CONVICTIONS.

          {¶4}   Mr. Eisele argues that the trial court erred when it allowed the State to impeach

his credibility by eliciting testimony from him about his prior criminal history. He maintains that

this evidence exceeded the scope of Evidence Rule 609 in that the goal of the State was to

highlight the fact that his prior criminal history included charges that were similar to the offenses

in the present case. This Court agrees with Mr. Eisele that the evidence was improper under

Rule 609, but concludes that the error was harmless.

          {¶5}   “Trial courts possess broad discretion in determining the admissibility of

evidence.” State v. Myers, 9th Dist. Summit No. 25737, 2012-Ohio-1820, ¶ 9, citing State v.

Maurer, 15 Ohio St.3d 239, 265 (1984); State v. Sommerville, 9th Dist. Summit No. 25094,

2010-Ohio-3576, ¶ 4, quoting State v. Wright, 48 Ohio St.3d 5 (1990), syllabus (“The trial judge
                                                3


* * * has broad discretion in determining the extent to which testimony will be admitted under

Evid.R. 609.”) “[T]his [C]ourt will not overturn a trial court’s evidentiary determination in the

absence of an abuse of discretion that resulted in material prejudice to the defendant.” State v.

Myers, 9th Dist. Summit No. 25737, 2012-Ohio-1820, ¶ 9. An abuse of discretion “implies that

the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶6}    Under Evidence Rule 609(A)(2), evidence that the defendant was convicted of a

crime punishable by death or imprisonment in excess of one year is admissible for purposes of

impeaching the witness’s credibility “if the court determines that the probative value of the

evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.” If the evidence is admissible under Rule 609, “the fact of the conviction may be

proved only by the testimony of the witness on direct or cross-examination, or by public record

shown to the witness during his or her examination.” Evid.R. 609(F).

       {¶7}    Here, the State elicited testimony from Mr. Eisele that exceeded the scope of what

was permissible under Rule 609. Mr. Eisele testified in his own defense at trial. When the

prosecution asked him what conviction led to his current incarceration, he refused to answer.

The State proceeded to question Mr. Eisele about the specific facts of the conviction as follows:

       Q: It has to do with making bomb threats on the phone to Burger King, yes?

        A: That was her ex-boss, yes.

       Q: Whose ex-boss?

       A: Robin Music’s ex-boss.

       Q: Right. And you’re in prison for it, right?

       A: Right.
                                                  4


       Q: She wasn’t charged in that case at all, never was, was she?

       A: Nobody even - - the victim thought we both should have been.

       Q: Well, okay. But you made the calls and you made bomb threats.

       A: I did not, no.

       Q: You threatened to rape the woman who answered the phone.

       A: Incorrect.

       Q: That’s not correct?

       A: I didn’t make the calls, so I did not - -

       Q: You pled to it.

       A: No I didn’t.

Mr. Eisele later testified that he was serving a prison sentence for a probation violation in the

same case after he was discovered with an impermissible cell phone in his possession. He also

explained that he pleaded guilty to the charges stemming from the Burger King incident, even

though he maintained he did not place the calls, because he thought he would be sentenced to

probation, which would allow him to see his sick mother.

       {¶8}    Further in Mr. Eisele’s testimony, the State questioned him about whether he had

any felony convictions in Utah. His counsel objected on the basis of relevancy. The trial court

quoted counsel portions of Rule 609 and inquired about the nature of the case in Utah. The State

explained that it involved “similar charges with phone calls and threats.”        The trial court

instructed counsel that he could inquire of Mr. Eisele whether he has a felony conviction in Utah,

but that “it’s yes or no, and then you’re stuck with the answer.” When the State asked Mr. Eisele

whether he had any felony convictions in Utah, he testified that:

       I don’t know if they were felonies or not. I know an ex-girlfriend had pressed
       charges. Most of them were dropped because it was determined that after she
                                                   5


       filed the charges against me she would keep continually trying to contact me, so it
       weakened her case, so they - - they determined that she was basically trying to set
       me up and most of those charges were dropped.

In another instance, the State questioned Mr. Eisele as follows:

       Q: And you’ve never called Candlestick Park?

       A: No.

       Q: What was the reference to San Francisco when talking to Det[ective]
       Markley?

       A: That was another thing that my girlfriend had done that I didn’t.

       Q: What?

       A: I was told about it.

       Q: What did she do?

       A: I don’t know too much about it.

       ***

       Q: That has to do with phone calls, doesn’t it?

       A: Yeah[.]

       ***

       Q: You’re saying that Robin Music did this?

       ***

       A: Yes, she did, she did all of those.

       Q: Did all of what? Made a bomb threat to Candlestick Park - -

       A: I guess.

       Q: - during a playoff game? Didn’t you reference that to Det[ective] Markley
       when you were talking to him in the jail?

       A: I was asked about it at one time, yes.
                                                6


       Q: Right. And you thought by doing this - -

       A: It was a playoff game?

       Q: - - you would get a free trip to California because they were going to come get
       you, correct?

       A: It was a playoff game? I didn’t know what game it was.

       ***

       Q: And you thought you were going to California as a result of that, that they
       would come and get you. That’s what you said.

       A: I thought I would be charged.

       {¶9}    The evidence concerning Mr. Eisele’s prior incidents was not proper under Rule

609 as it presented evidence beyond the fact that he had been convicted of a crime that was

punishable by imprisonment in excess of one year. There was no evidence presented at trial that

he was convicted of any of the charges, or in the case involving the telephone calls to

Candlestick Park, whether he was ever charged with an offense. Further, it is apparent from this

Court’s review of the record that the State’s purpose in introducing such evidence was not to

attack Mr. Eisele’s credibility, but rather to demonstrate that he had acted in conformity with

prior acts involving similar conduct and was, therefore, likely to have committed the offenses

alleged in the present case.

       {¶10} Although the admission of this evidence was improper under Rule 609, this Court

finds that the error was harmless.

       If this Court determines that the trial court improperly admitted the evidence, this
       Court must then determine whether the error constituted harmless error beyond a
       reasonable doubt. The application of the harmless error rule is simple; if, in the
       absence of all erroneously admitted evidence there remains overwhelming
       evidence of guilt, then the error was harmless.

(Citations omitted.) State v. Turner, 9th Dist. Summit No. 26591, 2013-Ohio-2433, ¶ 23.
                                                 7


       {¶11} The jury heard Mr. Eisele’s recorded interview with the lead investigator wherein

he not only admitted to making the telephone calls to the Dickinson County Sheriff’s Office, but

also how and why he made the calls. Mr. Eisele testified at trial that he owned and used a spoof

card. He further testified that while he did not make the telephone calls, he confessed so as to

protect his friend, Robin Music, from a possible parole violation that would have sent her back to

prison and prevented her from seeing her daughter. Mr. Eisele presented no corroborating

evidence to verify his trial testimony that contradicted what he told the lead investigator in his

earlier interview. Thus, even if the evidence of Mr. Eisele’s prior police involvement involving

similar conduct had not been admitted, there is overwhelming evidence that he was guilty of the

offenses.   This Court concludes that the trial court’s error in admitting this evidence was

harmless. Mr. Eisele’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF THE
       CHARGES BECAUSE THE FINDING WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶12} Mr. Eisele argues in his second assignment of error that his convictions were

against the manifest weight of the evidence. This Court disagrees.

       {¶13} To determine whether Mr. Eisele’s convictions were against the manifest weight

of the evidence, this Court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in 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. Otten, 33 Ohio App.3d 339, 340, (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.
                                                 8


State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the manifest weight of the

evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

resolution of the conflicting testimony.” Id. The appellate court should only exercise its power

to reverse a judgment as against the manifest weight of the evidence in exceptional cases. State

v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶14} Mr. Eisele contends that his conviction for intimidation was against the manifest

weight of the evidence because the sheriff’s office dispatchers did not testify to conduct that

constituted an unlawful threat. He was convicted of one count of intimidation under Revised

Code Section 2921.03(A), which provides that:          “No person, knowingly and by force, by

unlawful threat of harm to any person * * * shall attempt to influence, intimidate, or hinder a

public servant * * *.” “[W]hile the statute does not define ‘unlawful threat,’ this Court has

defined it in this context as ‘[n]ot authorized by law; illegal’ or ‘criminally punishable[.]’” State

v. Harris, 9th Dist. Lorain Nos. 09CA009605, 09CA009606, 09CA009607, 2010-Ohio-1081, ¶

14, quoting State v. Rivera-Rodriguez, 9th Dist. Lorain Nos. 07CA009154, 07CA009166, 2008-

Ohio-1461, ¶ 25.

       {¶15} Richard Zalabowski, a Dickinson County 911 operator, testified that he received

several calls from an unknown male who threatened his life and the lives of police officers. The

calls appeared to originate from a telephone number with a 712 area code, which is an Iowa area

code. The caller told him that “he wanted to put a bullet in [Mr. Zalabowski’s] head.” The caller

refused to give his name, but did say he was “in” the town of Lake Park, Iowa, which is within

the jurisdiction of the Dickinson County Sheriff’s Department and located approximately 10 to

15 miles away. Mr. Zalabowski testified that he followed his training protocol by notifying the
                                                9


officer on duty in Lake Park of the nature of the calls and by attempting to track the originating

number of the caller. He was advised by the telephone company that the caller “spoofed” the

number he was calling from, which occurs when the originating number is made to appear as a

different number on caller id. Mr. Zalabowski further testified that he “did not take these [calls]

as a joke” and that he was so concerned for his safety that he notified his superiors about the

nature of the calls.

        {¶16} Alysha Harlow, also a Dickinson County 911 operator, testified that she received

two “disturbing” telephone calls that were graphic and sexual in nature from a male who would

only identify himself as “Ed.” She testified that the call appeared to originate from a number

with a 712 area code. She reported the calls to the deputy assigned to the investigation of the

calls. Ms. Harlow reported the calls because she received information that Mr. Zalabowski had

received threatening calls and all other dispatchers were instructed to report any incidents

involving the same caller.

        {¶17} In addition to the testimony from the dispatchers, the jury heard recordings of the

calls, which consisted of four calls answered by Mr. Zalabowski and two calls answered by Ms.

Harlow. The caller told Mr. Zalabowski to “go kill yourself or I’ll kill you.” He further stated

that, “I’m going to fucking kill a cop. I feel like killing a cop as we head into the New Year.”

When Mr. Zalabowski asked him to identify himself, the caller stated that “you’ll find out when

you get a bullet right in your head.” The caller asked if he could engage in sexual intercourse

with Mr. Zalabowksi’s wife “after I kill you.” During one of the calls, Mr. Zalabowski told the

caller that unless he told him why he needed assistance, he would hang up as the caller was

“tying up a needed phone line.” The caller proceeded to made additional telephone calls to the

Dickinson County Sheriff’s Office even after Mr. Zalabowksi advised him his calls were coming
                                                10


in on a necessary line. While the caller did not make any direct statements that implied he would

commit physical violence against Ms. Harlow, he did describe in crude and graphic language

how he wished to engage in sexual conduct with her.

       {¶18} Mr. Eisele relies on the case of State v. Yambrisak, 5th Dist. Richland No. 2012-

CA-50, 2013-Ohio-1406 to support his argument that the substance of the threats was

“unconditional, not immediate * * * not specific and * * * in no way hinder[ed] * * * or

influence[d] [the dispatcher] in the discharge of his duties.” However, the facts of Yambrisak are

distinguishable from those of the present case. Byron Yambrisak was convicted of retaliation

and intimidation of a sheriff’s department detective after he yelled racial slurs at her as she

conversed with an acquaintance in a hospital parking lot. The victim was a detective who knew

Mr. Yambrisak as she had investigated an allegation two years earlier that he had attempted to

hire someone to kill his ex-girlfriend. The Fifth District reversed his convictions and ordered the

trial court to enter judgments of acquittal on all counts as there was insufficient evidence to

convict him. The court concluded that the racial slurs were not threatening and were “statements

of Yambrisak’s feelings and opinions.” Id. at ¶ 33. With regard to his threat to “f*** [the

detective] up,” the court concluded that his choice of words were ambiguous and failed to

convey a particular criminal act. Id. at ¶ 34. In addition, the court determined that Yambrisak’s

words were “too [ ]equivocal, unconditional, not immediate and not specific enough to convey to

[the detective] that [he] was attempting to influence, intimidate, or hinder [the detective] in the

discharge of her duties.” Id. at ¶ 41. The court further noted that there was no evidence that

Yambrisak interfered with the detective’s official duties.

       {¶19} In the present case, Mr. Eisele threatened several times to kill Mr. Zalabowski,

specifically, by shooting him in the head. He indicated to the dispatcher that he was in a town
                                                  11


located in the same geographical area. Mr. Eisele further stated that he was going to kill a police

officer “as we head into the New Year.” The telephone calls were received on December 31,

2011, thus, signifying that the threat was immediate. This Court further notes that the tone Mr.

Eisele used with each dispatcher was authoritative and commanding. He repeatedly conveyed to

Ms. Harlow in particular that “[he] give[s] the orders” and berated her for disconnecting one of

the calls because he did not tell her to do so.

       {¶20} In addition, we recognize that more than one call was placed to the Dickinson

County Sheriff’s Office. Mr. Zalabowski and Ms. Harlow had to answer each call and engage

with Mr. Eisele during the duration of the call, which rendered them unable to assist other callers

who may have had urgent and appropriate requests for assistance. Both dispatchers had to take

time to document each call and forward the necessary information for other departmental

personnel to investigate.

       {¶21} Based on the foregoing, this Court concludes that Mr. Eisele’s intimidation

conviction was not against the manifest weight of the evidence. There was ample, credible

evidence from which the jury could determine that his conduct constituted an “unlawful threat of

harm” that was an attempt to “intimidate[ ] or hinder a public servant.” R.C. 2921.03(A).

       {¶22} Mr. Eisele further argues that his convictions are against the manifest weight of

the evidence because there was no direct evidence linking him to the telephone calls. Detective

Matthew Markley from the Wadsworth Police Department testified that he was assigned to

investigate the calls, which the Dickinson County authorities determined originated from

Wadsworth, Ohio. According to Detective Markley, he interviewed Mr. Eisele twice. On the

first occasion, Mr. Eisele denied any knowledge of the situation. On the second occasion, Mr.

Eisele admitted multiple times during the interview to making the phone calls. He testified that
                                                12


Mr. Eisele told him the calls were to a sheriff’s department, which was a detail Detective

Markley had never mentioned to him. Detective Markley further testified that Mr. Eisele told

him he made the calls to instigate an investigation into an illegal telephone chat line operated by

an individual in Canada that used the same 712 area code as Dickinson County. According to

Detective Markley, Mr. Eisele maintained that he did not intend to kill anyone, that he was bored

due to a lack of transportation, and that he hoped the dispatcher would have a sense of humor

about the situation. Mr. Eisele told Detective Markley to tell the Dickinson County authorities

that he was sorry and that he would be willing to apologize to them via video. The jury heard a

recording of Detective Markley’s interview with Mr. Eisele wherein he admitted his involvement

in the calls.

         {¶23} However, when Mr. Eisele testified in his own defense at trial, he denied making

the telephone calls. He maintained that a friend/caregiver that lived with him, Robin Music, was

responsible for the calls. According to Mr. Eisele, Ms. Music admitted to him in a jailhouse

conversation that she “set [him] up” and that she and two men, named “White George” and

Rodney Stout, made the calls on a three-way line. Mr. Eisele contends that he told Detective

Markley he was responsible because he did not want Ms. Music to be sent to prison for a parole

violation for engaging in such conduct, which would render her unable to see her daughter. He

also maintained that he did not subsequently tell the police that he was set up because Ms. Music

still had access to both his and his mother’s “stuff.” Mr. Eisele admitted to owning a spoof card

and testified to how it worked. He further testified that Ms. Music had access to the spoof card

as she handled all his computer and telephone transactions due the fact that he is completely

blind.
                                               13


       {¶24} Detective Markley testified that the Wadsworth Police Department did not trace

the calls and that the telephone numbers in question were investigated by Iowa authorities.

Accordingly, Mr. Eisele is correct that there was no corroborating evidence, such as the

testimony or documentation from someone in Iowa that demonstrates how the telephone calls

were traced to him. He did not, however, proffer any evidence that supported his trial testimony.

In addition, Mr. Eisele’s recantation of his involvement undermined his own credibility. “[A]

jury is free to believe or reject the testimony of each witness, and issues of credibility are

primarily reserved for the trier of fact.” State v. Miles, 9th Dist. Summit No. 26187, 2012-Ohio-

2607, ¶ 24, quoting State v. Rice, 9th Dist. Summit No. 26116, 2012-Ohio-2174, ¶ 35. “A

verdict is not against the manifest weight of the evidence because the [jury] chose to believe the

State’s witnesses rather than the defendant’s version of the events.” State v. Martinez, 9th Dist.

Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.

       {¶25} After a careful review of the record, we do not agree that this is the exceptional

case where the jury lost its way by convicting Mr. Eisele of all offenses. See Otten, 33 Ohio

App.3d at 340. His second assignment of error is overruled.

                                               III.

       {¶26} Mr. Eisele’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                14


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶27} I concur in the judgment but write separately with respect to the first assignment

of error. I would conclude that Eisele opened the door for the State’s inquiry regarding the

Burger King incident involving his friend, Robin Music. On direct examination, Eisele testified

that he falsely took the blame for the calls during his interview with Det. Markley in order to

protect Music. Eisele testified that he did this because Music was on parole, and he did not want

her to go back to prison. On cross-examination, Eisele was asked why he would make a false

confession when there was very little chance the calls would be linked to Music.           Eisele
                                                 15


responded that there was “another case that we were both involved in.” Eisele explained that he

and Music were previously involved in a case that led to Eisele serving a prison sentence, and

that “all of that then connected with this.” As Eisele testified that he was motivated to lie to Det.

Markley because of his criminal history with Music involving similar circumstances, it was

appropriate for the State to explore that issue on cross-examination.


APPEARANCES:

CONRAD G. OLSON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
