[Cite as State v. Nixon, 2014-Ohio-4303.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2013-P-0098
        - vs -                                 :

DAVID A. NIXON,                                :

                 Defendant-Appellant.          :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
13 CRB 2123.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Adam M. Van Ho, 137 South Main Street, #201, Akron, OH 44308 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, David A. Nixon, appeals from the judgment of the Portage

County Municipal Court, Ravenna Division, convicting him of aggravated menacing. We

affirm the trial court’s judgment.

        {¶2}     In early March 2013, appellant was an inmate at the Portage County Jail.

He was housed in a “pod” supervised by Corrections Officer Sonny Jones. On March

12, 2013, Detective Elizabeth Ittel noticed an outgoing letter from appellant, addressed
in blue ink. Inmates are not permitted to have pens, only pencils. She alerted Officer

Jones and his supervisor, Sergeant Robert Smysek.                          Officer Jones confronted

appellant, who eventually turned over the pen, after initially denying he possessed it.

        {¶3}    The next day, appellant placed a series of phone calls, evidently to his

girlfriend, Richelle Horvath, an employee of Ravenna City schools. Ms. Horvath’s son,

J., attends the same school as Officer Jones’ son, S. Officer Jones is a volunteer coach

at the school, and had coached both boys. Signs are posted in the jail that phone calls

are recorded, and may be monitored; a voice message informs inmates of the same

before their calls are placed.

        {¶4}    The recording of the initial call by appellant was excluded from evidence.

In the second call, appellant asked the woman if she knew which grade S. attended.

She replied he was a year behind her son. Appellant went on to aver his hope the

sheriff’s department was recording and listening to the phone call, and that he had

chosen to use the phone nearest to Officer Jones’ desk so the officer would hear. He

further stated he intended to “kick [Officer Jones’] ass” at a school football game upon

his release from jail.1

        {¶5}    That same day, Detective Ittel opened another outgoing letter from

appellant. Although it was addressed in pencil, she discovered the letter was written in

black ink. The detective informed Officer Jones, who asked appellant to turn the pen

over to him. Again, appellant initially denied having any pen; he eventually surrendered

the black pen, however.




1. Certain portions of the recordings played to the jury were muted, on the state’s motion, to prevent
potential prior bad acts evidence from being introduced against appellant.


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      {¶6}   As punishment, Officer Jones placed appellant on lock down.             One

privilege lost by inmates during lock down is the right to place phone calls.

Nevertheless, appellant managed to place a third phone call to Horvath. During that

call, he advised Horvath he was in lock down because of Officer Jones. He further

explained that Sergeant Symsek informed him that Officer Jones was intimidated. He

further requested that Horvath have her son, J., contact a third boy at the middle school,

R. R. is older than J. and S., and had also been coached by Officer Jones. R. is

physically mature, standing six feet tall and weighing more than 200 pounds. Appellant

asked that J. tell R. he would pay the juvenile $50 for putting “that son of a bitch in

intensive care and you know who I am talking about. I swear to God, I’ll send fifty bucks

off my books if he goes to school and just dusts that son of a bitch. * * * so I can say

now mother f***er every week your kid is getting that shit.” S. was not specifically

mentioned.

      {¶7}   Two days later, Detective Ittel reviewed appellant’s recent telephone

recordings. After listening to the phone calls appellant made on March 13, 2013, the

detective immediately informed her supervisor, Lieutenant Gregory Johnson.             He

listened to the calls, then informed Sergeant Symsek. It was Officer Jones’ day off:

Sergeant Symsek telephoned him. Officer Jones and his wife immediately went to the

middle school and spoke with the principal. Officer Jones testified that his wife was

near hysteria. Later, Lieutenant Jones, Detective Ittel, and Detective Burns visited the

school.

      {¶8}   On August 5, 2013, appellant was charged with aggravated menacing, in

violation of R.C. 2903.21, a misdemeanor of the first degree. He pleaded not guilty and




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moved in limine to exclude prior bad acts, his criminal record, and the first two

recordings. The trial court granted the motion regarding the recording of the first phone

call. The case came on for jury trial on October 21, 2013, and the jury returned a verdict

of guilty. On October 24, 2013, the trial court sentenced appellant to the maximum term

of 180 days imprisonment and court costs. Appellant’s sentence was stayed pending

appeal.

       {¶9}   Appellant assigns four errors for this court’s review.          His first two

assignments of error shall be addressed together. They read respectively:

       {¶10} “[1.] Appellant’s conviction for aggravated menacing is unconstitutional as

they [sic] are against the manifest weight of the evidence and is based on insufficient

evidence, in violation of the Fifth and Fourteenth Amendments to the United States

Constitution and Article One, Sections Ten and Sixteen of the Ohio Constitution.”

       {¶11} “[2.] The trial court erred when it denied appellant’s motion for acquittal.”

       {¶12} In a criminal appeal, a verdict may be overturned if it is against the

manifest weight of the evidence or because there is insufficient evidence to support the

conviction. In the former, an appellate court acts as a “thirteenth juror” to determine

whether the trier of fact lost its way and created such a manifest miscarriage of justice

that the conviction must be overturned and a new trial ordered. State v. Thompkins, 78

Ohio St.3d 380, 387(1997). In the latter, the court must determine whether the evidence

submitted is legally sufficient to support all of the elements of the offense charged. Id. at

386-387. The test is, viewing the evidence in a light most favorable to the prosecution,

could any rational jury have found the essential elements of the crime proven beyond a




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reasonable doubt? Id. at 390 (Cook, J., concurring); State v. Jenks, 61 Ohio St.3d 259

(1991), paragraph two of the syllabus.

       {¶13} Appellant challenges the weight and sufficiency of the evidence upon

which the jury’s guilty verdict was premised. Appellant was convicted of aggravated

menacing, in violation of R.C. 2903.21(A). That statute provides:

       {¶14} “No person shall knowingly cause another to believe that the offender will

cause serious physical harm to the person or property of the other person, the other

person's unborn, or a member of the other person's immediate family.”

       {¶15} Pursuant to R.C. 2901.22(B), “[a] person acts knowingly regardless of his

purpose, when he is aware that his conduct will probably cause a certain result or will

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

aware that such circumstances probably exist.”

       {¶16} Appellant contends his conviction lacks evidentiary support because he

did not make threats directly to Officer Jones or a member of the officer’s family. In

support, appellant cites State v. Chmiel, 11th Dist. Lake No. 96-L-173, 1997 Ohio App.

LEXIS 4364 (Sept. 26, 1997). In Chmiel, this court reversed an aggravated menacing

conviction because the defendant did not engage in threatening behaviors toward the

victim. Her thoughts were discovered when the defendant sought assistance from a

mental health counselor.    This court held that without a threat made known to the

potential victim or her family, a key element of the aggravated menacing statute was

missing. Id. at *6-*7. This court underscored that “thoughts alone” are insufficient for a

conviction. Id. at *7.




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       {¶17} Appellant also directs this court’s attention to the Seventh Appellate

District’s opinion in State v. Richard, 129 Ohio App.3d 556 (7th Dist.1998). In that case,

the defendant’s “threat” was made to a county child support agent under circumstances

where he was discussing his tax refund, which was intercepted by county services for

child support arrearages. He grew very upset and asked the agent, “How he would be

able to afford it all?” He then proceeded to make the statement, “I should just kill her,

maybe that will end it all.” The agent reported this statement to her supervisor, who then

called the police. Thus, the Seventh District Court of Appeals reversed the defendant’s

conviction for menacing since the alleged victim was neither the person to whom he

addressed the statement nor a close relative of the victim. Id. at 561.

       {¶18} In the case sub judice, appellant did not make a direct threat to Officer

Jones or a member of his family. This matter is different from both Chmiel and Richard,

however. Appellant’s initial threat was made (1) purposely close to Officer Jones’ desk

and (2) on a phone line that he knew was recorded and monitored. His second threat,

leveled at Officer Jones’ son, was made on the same recorded phone line and after

appellant was advised that Officer Jones had been “intimidated” by appellant. Given

this evidence, even though the threats were not made directly to Officer Jones or his

family, they were made under circumstances that placed appellant on reasonable notice

that his threats would probably reach Officer Jones or his family and cause these

individuals to believe appellant would cause them serious physical harm. Both Chmiel

and Richard are distinguishable from the instant matter in this regard.

       {¶19} Because there was sufficient, credible evidence upon which the jury could

premise its verdict that appellant knowingly caused Officer Jones’ or his family to




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believe appellant would cause them serious physical harm, the verdict is consistent with

both the sufficiency and the weight of the evidence. By implication, the trial court did

not err in denying appellant’s Crim.R. 29 motion for acquittal.

       {¶20} Appellant’s first and second assignments of error lack merit.

       {¶21} Appellant’s third assignment of error provides:

       {¶22} “The trial court violated appellant’s rights under the Sixth Amendment of

the United States Constitution and Article One, Section Ten of the Ohio Constitution and

Rule 43 of the Ohio Rules of Criminal Procedure when the court conducted a pretrial

hearing without the appellant being present.”

       {¶23} After empanelling the jury, but prior to opening statements, the trial court

conducted a final pretrial with counsel. At the start, appellant’s counsel expressed the

desire that his client be present to avoid creating an appealable issue due to his

absence. The trial court acknowledged there might be a problem if appellant was not

present at the pretrial, then asked if counsel could discuss some issues without his

presence. Appellant’s counsel acquiesced. Shortly thereafter, the discussion turned to

the witnesses the state would present, and the motions in limine regarding the first two

phone calls of March 13, 2013, filed by appellant’s counsel. Counsel again requested

appellant’s presence; the court again acknowledged appellant’s absence might create

an issue on appeal. The discussions continued, however, without appellant’s presence.

       {¶24} During the discussion, the state maintained the recording of the first two

phone calls was necessary to establish appellant’s animus against Officer Jones, and

that S. was the intended target of the threat made in the third call. Appellant’s counsel

insisted that only the third call was relevant to the state’s case since it contained the




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actual threat. The trial court granted the motion in limine as it related to the recording of

the first call, but not the second.

       {¶25} During the course of the pretrial, other issues discussed were ways and

means of keeping out prior bad acts evidence; whether the trial court would instruct on

lesser included offenses; and matters relating to plea negotiations.

       {¶26} Crim.R. 43(A) provides, in pertinent part: “(1) Except as provided in Rule

10 of these rules and division (A)(2) of this rule, the defendant must be physically

present at every stage of the criminal proceeding and trial, including the impaneling of

the jury, the return of the verdict, and the imposition of sentence, except as otherwise

provided by these rules.”

       {¶27} “An accused has a fundamental right to be present at all critical stages of

his criminal trial.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-2426, ¶100. “An

accused’s absence, however, does not necessarily result in prejudicial or constitutional

error.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶90. “[T]he presence of a

defendant is a condition of due process to the extent that a fair and just hearing would

be thwarted by his absence, and to that extent only.” (Emphasis sic.) Hale at ¶100,

quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934), overruled on other

grounds by Malloy v. Hogan, 378 U.S. 1, 17, (1964). The focus of the inquiry is whether

his presence has a “reasonably substantial” relationship to “the fullness of his

opportunity to defend against the charge.” Id., quoting Snyder at 105-106.

       {¶28} Although important issues were ruled upon and discussed during the

pretrial in question, the matters at issue were legal in nature; defense counsel advanced

arguments in appellant’s defense and, as a result, appellant, even had he been present,




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would not have meaningfully contributed to the issues before the court. The presence

of appellant’s counsel ensured that appellant’s right to due process was protected, and

there is nothing to indicate the fairness of the proceedings were undermined by

appellant’s absence.    We therefore hold appellant’s constitutional rights were not

violated when the pretrial was held outside his presence.

      {¶29} Appellant’s third assignment of error is without merit.

      {¶30} Appellant’s fourth assignment of error provides:

      {¶31} “The trial court erred when it admitted audio recordings as business

records without the proper foundation being laid in violation of Rules 803 and 901 of the

Ohio Rules of Evidence.

      {¶32} Appellant contends the state failed to lay a foundation under Evid.R.

803(6) that the phone recordings introduced into evidence were business records; and

that it failed to authenticate the phone calls under Evid.R. 901. We do not agree.

      {¶33} Evid.R. 901 governs the authentication of demonstrative evidence such

as recordings of telephone conversations. The threshold for admission is quite low as

the proponent need only submit “evidence sufficient to support a finding that the matter

in question is what its proponent claims.” Evid.R. 901(A). This means, “‘the proponent

must present foundational evidence that is sufficient to constitute a rational basis for a

jury to decide that the primary evidence is what its proponent claims it to be.’” State v.

Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937, ¶25 (4th Dist.), citing State v. Payton, 4th

Dist. Ross No. 01CA2606, 2002-Ohio-508. The trial court possesses broad discretion

in the admission of tape recordings. State v. Rogan, 94 Ohio App.3d 140, 149 (2d




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Dist.1994).   To be admissible, the recording must be “authentic, accurate, and

trustworthy.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶109.

      {¶34} In the underlying matter, Lieutenant Johnson testified that he listened to

both jail calls. The lieutenant recognized appellant as the caller of both calls from prior

contact with him and a familiarity with appellant’s voice. Lieutenant Johnson further

testified each inmate receives a personal identification number (“PIN”), usually his or

her social security number. The PIN is the number used to access the jail’s phone

system.   Lieutenant Johnson testified that the PIN used for the calls at issue was

appellant’s social security number. Further, the company responsible for the recording

of the jail calls performed monthly maintenance on the jail’s system.

      {¶35} Detective Ittel also testified that an inmate’s jail calls could be tracked

“[t]hrough their names or their - - what they use as their PIN number, which is their

social security number, or through a phone number that they’re calling.” The detective

described the system used by the jail and specifically referenced appellant’s phone log,

which identified the call placed at 16:54 on March 13, 2013. The detective retrieved the

calls by typing appellant’s name into the program. Detective Ittel listened to both calls

initially, on March 15, 2013, and testified that the recordings truly and accurately

reflected the phone calls that she heard on that date.

      {¶36} The foundation evidence was “sufficient to support a finding that the

matter in question is what its proponent claims.” Evid.R. 901(A).          Moreover, the

surrounding testimony sufficed to establish that the evidence was “authentic, accurate,

and trustworthy.”   We therefore hold the trial court did not abuse its discretion in

admitting the recordings.




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       {¶37} Appellant’s final assignment of error lacks merit.

       {¶38} For the reasons discussed in this opinion, the judgment of conviction

entered by the Portage County Municipal Court, Ravenna Division, is affirmed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring
and Dissenting Opinion.

                              _______________________


COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring
and Dissenting Opinion.


       {¶39} I concur in the majority’s disposition of the third and fourth assignments of

error. However, I find the state failed to provide sufficient evidence appellant acted

knowingly in causing Officer Jones to believe he would harm the officer’s son, which is

an element of the offence of aggravated menacing. R.C. 2903.21. Consequently, I

would reverse based on the first and second assignments of error.

       {¶40} “A person acts knowingly, regardless of purpose, when she is aware that

her conduct will probably cause a certain result or will probably be of a certain nature.

State v. Miller, 96 Ohio St. 3d 384, 2002-Ohio-4931, at ¶31, * * *. ‘“Probably” is defined

as “more likely than not” or a greater than fifty percent chance.’ Miller v. Paulson (1994),

97 Ohio App.3d 217, 222, * * *.” (Parallel citations omitted.) State v. Fussell, 8th Dist.

Cuyahoga No. 87739, 2006-Ohio-6438, ¶42.

       {¶41} In this case, the state failed to prove that appellant “probably” knew his

conduct of making threatening remarks about Officer Jones’ son to his girlfriend over




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the jail telephones would result in Officer Jones discovering the conduct. The record

shows that all sheriffs’ detectives can monitor inmate phone calls. Detective Ittel chose

to listen to the recordings of appellant’s calls. But nothing in her testimony indicates

there is any set policy regarding when or whether she is to listen to the recordings made

of inmates’ phone calls. Her specific testimony includes: “I currently review inmate mail.

Not all. Some. And I also review some of the calls for the inmates.” Regarding when

she reviews mail, she testified that it is done “based on evidence that may be written

about or in letters or subjects that may or may not pose a threat to the jail or the staff.”

In this case, she reviewed appellant’s letters of March 12, 2013 and March 13, 2013,

because they indicated he possessed pens, which are contraband. And she decided to

listen to the recordings of his recent phone calls two days later, March 15, 2013,

because of the pen infractions. Thus, the record essentially establishes that whether or

not recordings of an inmate’s phone calls are reviewed is discretionary. I respectfully

conclude this is insufficient evidence to show appellant probably should have known his

calls to Ms. Horvath would be reviewed, and the information given to Officer Jones. It

establishes a possibility, not probability.

       {¶42} The conviction in this case was based on insufficient evidence.

       {¶43} I respectfully concur in part and dissent in part.




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