[Cite as State v. Reynolds, 2012-Ohio-4363.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                     :     Hon. W. Scott Gwin, J.
                                               :     Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :
JEREMY REYNOLDS                                :     Case No. 12-CA-6
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 11CR0083



JUDGMENT:                                            Reversed




DATE OF JUDGMENT:                                    September 24, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOCELYN STEFANCIN                                    JEREMY J. MASTERS
60 East High Street                                  250 East Broad Street
Mt. Gilead, OH 43338                                 Suite 1400
                                                     Columbus, OH 43215
Morrow County, Case No. 12-CA-6                                                       2

Farmer, J.

       {¶1}   On September 8, 2011, the Morrow County Grand Jury indicted appellant,

Jeremy Reynolds, on two counts of witness intimidation in violation of R.C. 2921.04.

Said charges arose from threats allegedly made by appellant to Todd Blevins and

Rebecca Harris. Appellant warned them not to tell the police about his and his brother's

alleged involvement in the robbery of Cynthia Griffith.

       {¶2}   A jury trial commenced on November 28, 2011. The jury found appellant

guilty as charged. By judgment entry filed December 23, 2011, the trial court sentenced

appellant to an aggregate term of fifty-four months in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "THE TRIAL COURT ERRED WHEN IT HELD THAT SUFFICIENT

EVIDENCE WAS PRESENTED TO CONVICT JEREMY REYNOLDS OF WITNESS

INTIMIDATION, UNDER R.C. 2921.04(B), FOR ALLEGED INTIMIDATION THAT

OCCURRED AFTER A CRIME WAS REPORTED BUT BEFORE ANY COURT

INVOLVEMENT FLOWING FROM THAT CRIMINAL ACT."

                                             I

       {¶5}   Appellant claims there was insufficient evidence to convict him of witness

intimidation as the alleged act of intimidation did not occur while the witnesses were

involved in a criminal act or proceeding (State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-

1654). We agree.
Morrow County, Case No. 12-CA-6                                                             3


       {¶6}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The relevant inquiry is whether, after viewing the

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

found the essential elements of the crime proven beyond a reasonable doubt." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307.

       {¶7}   Appellant was convicted of intimidation of a witness in violation of R.C.

2921.04(B) which stated the following in effect at the time of the offense:

       {¶8}   "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 in a

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

       {¶9}   In State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310, ¶1, 15-18, 20-21,

respectively, the Supreme Court of Ohio stated the following:

       {¶10} "***The only issue that we address today is whether R.C. 2921.04(B), a

witness-intimidation statute, applies to threats made before any police investigation or

legal proceeding has commenced in a case. We hold that R.C. 2921.04(B) does not

apply in such situations.

       {¶11} "R.C. 2921.04 does not define the term 'criminal action or proceeding,' but

that phrase is used throughout the Ohio Revised Code and commonly indicates the

involvement of a court. For instance, R.C. 1901.26(A)(4), which addresses costs in

municipal court actions, establishes, 'In any civil or criminal action or proceeding,

witnesses' fees shall be fixed in accordance with sections 2335.06 and 2335.08 of the
Morrow County, Case No. 12-CA-6                                                             4


Revised Code.'     (Emphasis added.)      R.C. 1907.31(A) provides, 'The Rules of Civil

Procedure, the Rules of Criminal Procedure, and the Rules of Evidence apply

in***criminal actions and proceedings before a county court unless otherwise

specifically provided in the Revised Code.'         (Emphasis added.)       In State ex rel.

Steckman v. Jackson (1994), 70 Ohio St.3d 420, 432, 639 N.E.2d 83, this court

considered the meaning of the term 'criminal action or proceeding' in the context of the

public-records statute. R.C 149.43(A)(4) defines 'trial preparation record' as a record

'compiled in reasonable anticipation of, or in defense of, a civil or criminal action or

proceeding.' To determine the scope of the statute, this court sought to define the terms

'action' and 'proceeding':

       {¶12} " 'For "action" the definition "includes all the formal proceedings in a court

of justice attendant upon the demand of a right made by one person of another in such

court, including an adjudication upon the right and its enforcement or denial by the

court." [Black's Law Dictionary (6th Ed.Rev.1990) 28]. "Proceeding" is the "[r]egular

and orderly progress in form of law, including all possible steps in an action from its

commencement to the execution of judgment." Id. at 1204.' Steckman, 70 Ohio St.3d

at 432, 639 N.E.2d 83.

       {¶13} "In State ex rel. Unger v. Quinn (1984), 9 Ohio St.3d 190, 9 OBR 504, 459

N.E.2d 866, this court included 'criminal action' in defining 'prosecution' as ' "[a] criminal

action; a proceeding instituted and carried on by due course of law, before a competent

tribunal, for the purpose of determining the guilt or innocence of a person charged with

crime." ' Id. at 191, 9 OBR 504, 459 N.E.2d 866, quoting Black's Law Dictionary (5th

Ed.1979) 1099.
Morrow County, Case No. 12-CA-6                                                             5


       {¶14} "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. There is no

indication in R.C. 2921.04(B) that 'criminal action or proceeding' should be interpreted

any way other than as it is commonly used in the Ohio Revised Code and as those

words have been interpreted by this court.

       {¶15} "Protection of a witness in R.C. 2921.04(B), on the other hand, is separate

and is not so temporally broad—the statute applies only if the witness is already

'involved in a criminal action or proceeding.' 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.

       {¶16} "The statute requires a witness's involvement in a criminal action or

proceeding, not his or her potential involvement.***"

       {¶17} In State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654, ¶19, decided

during the pendency of this appeal, the Supreme Court of Ohio clarified Malone and

held the following:

       {¶18} "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."

       {¶19} The Davis court at ¶3, 16-17, respectively, stated the following:

       {¶20} "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
Morrow County, Case No. 12-CA-6                                                         6

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.'***

       {¶21} "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').

       {¶22} "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."

       {¶23} In the case sub judice, a criminal investigation was initiated with a

telephone call to the police by Cynthia Griffith on July 30, 2011 after she had been

robbed at the night depository of a local bank. T. at 160-165. It was the state's theory

that this act met the Malone requirement as demonstrated by the prosecutor's opening

statement:
Morrow County, Case No. 12-CA-6                                                         7


      {¶24} "Those, ladies and gentlemen, are the basic facts of this case.           The

investigation into the armed robbery of Cynthia Griffith that occurred on July 30th, 2011

continues to this very day. It is not a completed investigation. Before I close, I want to

speak with you about the elements of intimidation of a witness.

      {¶25} "***

      {¶26} "Fifth element, a witness and the sixth element is involved in a criminal

action or proceeding.

      {¶27} "The way the law is written now, if these things happened prior to the

police becoming involved, prior to police involvement or knowledge of the matter,

nothing would be done about it. It is a poorly written statute. But what the statute says

is, if there is an official action or proceeding and that occurred when the police arrived

on the scene on July 30th of 2011.

      {¶28} "Be mindful that the defendant is not charged with armed robbery. That

issue is still open. He is charged with intimidation of two witnesses. Now, from all the

evidence that will be presented today, the State of Ohio will ask that you convict Jeremy

Reynolds of knowingly making an unlawful threat of harm to Todd Blevins and Rebecca

Harris. And that in doing so, he attempted to intimidate them from speaking to the

police." T. at 147-149.

      {¶29} And again during the prosecutor's closing argument:

      {¶30} "The next element is the witness or the witnesses were involved in a

criminal action or proceeding. Here you are going to have an exhibit. That exhibit is

going to be that police report from July 30th, 2011 that the police officer wrote out and
Morrow County, Case No. 12-CA-6                                                            8


began. That's when the official investigation into this matter began. That constitutes a

criminal proceeding or action.

       {¶31} "And the time they use is really critical here. The proceeding starts and

five days later is when the threats are made. The proceeding starts and five days later.

The way the law is written, if prior to police involvement the threats have been made, it

wouldn't be an offense. It is a defect in the laws of the State of Ohio and it is very

problematic. But here we meet that technical retirement. First, the offense, five days

later the threats are made." T. at 628.

       {¶32} We note a request for a bill of particulars was filed (November 17, 2011)

and ordered by the trial court (November 18, 2011); however, no bill of particulars is

included in the court file or noted on the docket.

       {¶33} During the course of the investigation, warrants were issued on August 4,

2011 for two suspects, Todd Blevins and Rebecca Harris, for tampering with evidence

possibly involved in the Griffith robbery. T. at 210.

       {¶34} The state alleged that appellant intimidated Mr. Blevins and Ms. Harris on

August 5, 2011. It is the state's position in its brief that the issuance of the warrants for

Mr. Blevins and Ms. Harris on August 4, 2011 was sufficient to meet the definition of the

intimidation statute.   Unfortunately, as the opening statement and closing argument

cited supra demonstrate, that was not the state's position at trial.

       {¶35} Given the fact scenario argued as the "criminal action or proceeding," we

find the evidence was not sufficient under the law of Malone and Davis. The fact that

the police investigation was ongoing and persons were interviewed and some were
Morrow County, Case No. 12-CA-6                                                        9


arrested for charges developed during the investigation was not sufficient to establish a

criminal action or proceeding.

      {¶36} The sole assignment of error is granted.

      {¶37} The judgment of the Court of Common Pleas of Morrow County, Ohio is

hereby reversed.

By Farmer, J.

Delaney, P.J. and

Gwin, J. concur.




                                            s / Sheila G. Farmer_______________



                                            _s/ Patricia A. Delaney____________



                                            _s/ W. Scott Gwin________________

                                                          JUDGES




SGF/sg 905
[Cite as State v. Reynolds, 2012-Ohio-4363.]


                   IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
JEREMY REYNOLDS                                :
                                               :
        Defendant-Appellant                    :        CASE NO. 12-CA-6




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Morrow County, Ohio is reversed. Costs to

appellee.




                                               s / Sheila G. Farmer_______________



                                               _s/ Patricia A. Delaney____________



                                               _s/ W. Scott Gwin________________

                                                           JUDGES
