[Cite as State v. Schoeneman, 2012-Ohio-4710.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 2012 CA 00062
KENNETH E. SCHOENEMAN

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Criminal Appeal from the Court of Common
                                                 Pleas, Case No. 2011 CR 00657(B)


JUDGMENT:                                        Reversed



DATE OF JUDGMENT ENTRY:                          October 9, 2012



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

JOHN D. FERRERO                                  JEFFREY R. JAKMIDES
PROSECUTING ATTORNEY                             325 East Main Street
RENEE M. WATSON                                  Alliance, Ohio 44601
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012 CA 00062                                                  2

Wise, J.


       {¶1}     Appellant Kenneth Schoeneman appeals his conviction on one count of

menacing by stalking1 entered in the Stark County Common Pleas Court following a trial

to the bench.

       {¶2}     Appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

       {¶3}     The relevant facts and background are as follows:

       {¶4}     In July, 2008, Appellant’s father Earl Schoeneman died. He was survived

by five children who have been bitterly feuding over his estate ever since. Appellant

and his brother Charles contend that their sister Robin Minor concealed assets, altered

a bank account, and fabricated a debt owed to herself by her father and claim that she

is wrongfully in possession of their father's truck.

       {¶5}     In February, 2010, following a number of incidents between Appellant and

her family, Ms. Minor was granted a Civil Protection Order against Appellant.

       {¶6}     Subsequent to the granting of the protection order, the Minor family

claimed that Appellant continue to annoy, harass and/or intimidate them.

       {¶7}     The Minors claim that Appellant engaged in the following behavior:

       {¶8}     On Easter Sunday 2010, Robin went to visit her father's grave with her

husband. While they were there, Kenneth drove by and yelled "Purgerers (sic) how are

you doing today?"



1 Appellant was also charged with two felony counts of violating a protection order and
two misdemeanor counts of violating a protection order. Appellant was found guilty of
the misdemeanor counts and not guilty of the felony counts. Appellant does not assign
any error to these convictions.
Stark County, Case No. 2012 CA 00062                                                    3


       {¶9}   The Minors also claim that anything Robin placed on her father's grave

would be removed or destroyed. On several occasions the destroyed items would be

dumped in her front yard, placed in her mailbox, or would be found strewn along the

road on her drive to Dueber United Methodist Church.

       {¶10} They also claim that Appellant left antagonistic messages on Robin's voice

mail on August 29, 2010.

       {¶11} On May 2, 2010, Appellant was parked outside the church.

       {¶12} On May 25, 2010, the same day Appellant was following Matthew around,

Robin was out running an errand when Appellant passed her going the opposite

direction. Appellant then made a u-turn and followed her home. Robin drove into her

garage and shut the door. Appellant was yelling outside "'Minors, I saw your son." Robin

called the police, and Appellant was arrested.

       {¶13} One of the messages left on Robin's voice mail was left one day before a

court appearance on the matter. In it, Appellant repeats "here comes the judge" three

times, then laughs maniacally. The matter was later dismissed.

       {¶14} On December 12, 2010, as Robin and her husband were driving home

from church, they saw Appellant driving toward them. As he passed them, he extended

his arm out the window, pointed his finger like a gun and moved his thumb back and

forth while repeating "pow-pow."

       {¶15} On January 30, February 6 and February 20, 2011, the Minors again

encountered Appellant driving toward them on their way home from church. On those

occasions, however, Appellant swerved left of center as if to hit the front of the Minor's

vehicle.
Stark County, Case No. 2012 CA 00062                                                  4


       {¶16} On May 29, 2011, Robin and Daniel were again at the cemetery visiting

Mr. Schoeneman’s grave. Daniel stayed in the vehicle while Robin went to the grave

site. Again, Appellant appeared and from her location, Robin could hear Appellant

shouting at Daniel "Hi Dan. Is this take a criminal to the graveyard day?" When Daniel

refused to speak to him, Appellant began spewing vulgarities at Daniel. Daniel captured

the incident on video.

       {¶17} Robin also visited her father's grave on Father's Day, June 19, 2011 and

again Appellant appeared, this time he stood shouting "I can yell 500 feet."

       {¶18} On July 25, 2011, the Stark County Grand Jury returned an indictment

charging Appellant Kenneth Schoeneman with one count of menacing by stalking, two

counts of felony violations of a protection order and two misdemeanor counts of

violating a protection order.

       {¶19} The matter came before the bench on January 25 and 26, 2012.

       {¶20} At trial, the court heard testimony from Robin, Dan and Matthew Minor.

       {¶21} By Judgment Entry filed February 14, 2012, the trial court found Appellant

guilty of one count of Menacing by Stalking, a fourth degree felony, two counts of

Violating a Protection Order, first degree misdemeanors, and not guilty on two counts of

Violating a Protection Order, third degree felonies.

       {¶22} Appellant now appeals, assigning the following error for review:

                                ASSIGNMENT OF ERROR

       {¶23} “I. THE TRIAL COURT’S DECISION WAS CONTRARY TO LAW, AS IT

WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND THE TESTIMONY OF
Stark County, Case No. 2012 CA 00062                                                      5


THE ALLEGED VICTIM CLEARLY ESTABLISHED THAT THE MAIN ELEMENT OF

R.C. 2903.211(A)(1)(B)(2)(b) AND/OR (c) WAS NOT SATISFIED.”

                                             I.

       {¶24} In his sole Assignment of Error, Appellant argues that his conviction on the

count of menacing by stalking is against the sufficiency of the evidence. We agree.

       {¶25} 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, 99

S.Ct. 2781, 61 L.Ed.2d 560.

       {¶26} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,

certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. The trier of fact

“has the best opportunity to view the demeanor, attitude, and credibility of each witness,

something that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio

St.3d 415, 418, 1997-Ohio-260.

       {¶27} In the case sub judice, Appellant was convicted of one count of Menacing

by Stalking, in violation of R.C. §2903.211(A)(1)(B)(2)(b) and/or (c), which provides:

       {¶28} “(A)(1) No person by engaging in a pattern of conduct shall knowingly

cause another person to believe that the offender will cause physical harm to the other

person or cause mental distress to the other person.
Stark County, Case No. 2012 CA 00062                                                     6


       {¶29} “***

       {¶30} “(B) Whoever violates this section is guilty of menacing by stalking.

       {¶31} “***

       {¶32} “(2) Menacing by stalking is a felony of the fourth degree if any of the

following applies:

       {¶33} “***

       {¶34} “(b) In committing the offense under division (A)(1), (2), or (3) of this

section, the offender made a threat of physical harm to or against the victim, or as a

result of an offense committed under division (A)(2) or (3) of this section, a third person

induced by the offender's posted message made a threat of physical harm to or against

the victim.

       {¶35} “(c) In committing the offense under division (A)(1), (2), or (3) of this

section, the offender trespassed on the land or premises where the victim lives, is

employed, or attends school, or as a result of an offense committed under division

(A)(2) or (3) of this section, a third person induced by the offender's posted message

trespassed on the land or premises where the victim lives, is employed, or attends

school.

       {¶36} “***

       {¶37} “(D) As used in this section:

       {¶38} ***

       {¶39} “(2) ‘Mental distress' means any of the following:

       {¶40} “(a) Any mental illness or condition that involves some temporary

substantial incapacity;
Stark County, Case No. 2012 CA 00062                                                   7


       {¶41} “(b) Any mental illness or condition that would normally require psychiatric

treatment, psychological treatment, or other mental health services, whether or not any

person requested or received psychiatric treatment, psychological treatment, or other

mental health services.”

       {¶42} Appellant herein argues that the State failed to produce sufficient evidence

that Matthew Minor believed that Appellant would cause him physical harm or that he

caused him mental distress.

       {¶43} At the trial in this matter, Matthew Minor, when questioned about

Appellant’s actions, testified as follows:

       {¶44} “Q: Matthew, I think what I hear you saying is you have not felt in fear or

threatened?

       {¶45} “A: Me personally?

       {¶46} “Q: Yes.

       {¶47} “A: Like I'm not going to lie to anybody; no, I haven't.

       {¶48} ***

       {¶49} “Q: You didn't call the police either, did you?

       {¶50} “A: I have never called the police. On Kenneth; no, I never called the

police department.” (T. at 168-170)

       {¶51} Matthew Minor also testified that although he had been told to call the

police if he saw Appellant, he never did because he felt that “[i]t was kind of a family

thing. [He] never thought it was necessary.” (T. at 161).

       {¶52} The State herein argues that Matthew Minor’s testimony establishes that

Appellant’s behavior caused him mental distress:
Stark County, Case No. 2012 CA 00062                                                     8


      {¶53} “Q. Matthew, how has this affected your family?

      {¶54} “ A. The effect on the family, there has been a great increased amount of

stress. I have never been one that's really felt that anybody should have to look over

their shoulder every time they leave the house.

      {¶55} “Q. So it's affected, though, the dynamics of your own person?

      {¶56} “A. Yes. The way we generalize (sic) function; like I grew up in a very

happy, go-lucky, loving family, and to have kind of like the happiness pulled out is kind

of a big culture shock. There is not a whole lot of happy when it comes to my parents

anymore. There is not a whole lot of happy when it comes to us because they are not

happy. As a son like I’m not happy.” (T. at 165-167).

      {¶57} Upon review, we find that Matthew Minor’s testimony establishes only that

he and his family are no longer as happy as they had been in the past, not that he has

suffered any mental illness or condition which caused any temporary incapacity or

would normally require treatment.

      {¶58} Based on the foregoing evidence presented, while Appellant's behavior

might have annoyed Matthew Minor, we cannot say that it made him fear any physical

threat. In addition, Matthew Minor’s testimony failed to establish that Appellant’s actions

caused him any mental distress within the meaning of R.C. §2903.11(D)(2).

      {¶59} Accordingly, the trial court's judgment as it relates to the menacing by

stalking charge is not supported by some competent, credible evidence going to all the

elements of this case.
Stark County, Case No. 2012 CA 00062                                              9


      {¶60} Appellant’s sole Assignment of Error is sustained.

      {¶61} For the foregoing reasons, the judgment of the Common Pleas Court of

Stark County, Ohio, is reversed as to the felony count of menacing by stalking.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 0911
Stark County, Case No. 2012 CA 00062                                           10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
KENNETH E. SCHOENEMAN                   :
                                        :
       Defendant-Appellant              :         Case No. 2012 CA 00062




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

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed as to the

felony count of menacing by stalking.

       Costs assessed to Appellee.




                                        ___________________________________


                                        ___________________________________


                                        ___________________________________

                                                           JUDGES
