      [Cite as State v. Eldridge, 2019-Ohio-1265.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                   LUCAS COUNTY


State of Ohio                                          Court of Appeals No. L-18-1084

      Appellee                                         Trial Court No. CR0201702682

v.

Kevin Eldridge                                         DECISION AND JUDGMENT

      Appellant                                        Decided: April 5, 2019

                                                *****

      Julia R. Bates, Lucas County Prosecuting Attorney, and
      Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

      Lawrence A. Gold, for appellant.

                                                *****

      ZMUDA, J.

                                         I.      Introduction

      {¶ 1} Appellant, Kevin Eldridge, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to four years of community control after a jury found

him guilty of one count of disrupting public services. Finding no error, we affirm.
                        A.     Facts and Procedural Background

       {¶ 2} On September 27, 2017, appellant was indicted on one count of disrupting

public services in violation of R.C. 2909.04(B) and (C), a felony of the fourth degree, and

two counts of aggravated menacing in violation of R.C. 2903.21(A) and (B),

misdemeanors of the first degree. Appellant pled not guilty to these charges, and pretrial

discovery ensued. Following discovery, a jury trial commenced on January 23, 2018. At

trial, the following facts were established.

       {¶ 3} On March 23, 2017, the Springfield Township Fire Department received a

report of an outdoor fire at appellant’s residence located on Hill Avenue in Holland,

Ohio. The fire was reportedly producing smoke that was traveling across Hill Avenue

and disrupting traffic. As a result of the report, a crew of three firefighters were

dispatched to appellant’s residence.

       {¶ 4} Upon arrival, the crew observed that the residence was fortified with man-

made “earthen mounds” and looked like a gated compound. According to one of the

firefighters, the smoke that was emanating from a gated area of the residence was not

impeding traffic at the time of the crew’s arrival. The large fire originated from a pit that

was four feet deep and ten feet in diameter. According to Captain David Bennett, a fire

of this size was prohibited under the applicable fire code, which only permits campfires

that are no larger than three feet in diameter and no higher than five feet.




       2.
       {¶ 5} After parking their fire engine and approaching the property, the crew was

approached by a female who directed them to vacate the premises after informing them

that the residence was private property. The testimony introduced at trial reveals that this

individual was “irate” and “hostile” at the time.

       {¶ 6} At some point during their conversation with the female individual, the crew

heard a male voice over a loudspeaker situated at the residence. The male speaker

informed the crew that they were trespassing, and directed them to vacate the premises.

The male individual then stated: “I’m within my right to shoot you, I will shoot you if

you do not get off my property.” Only one firefighter, Kyle Miller, heard this statement.

According to Miller, the male individual repeated this statement several times, each time

getting more and more aggressive. Miller then reported the threat to Bennett, who

directed the crew to move to the rear of the fire engine to take cover. Miller also testified

that the voice that threatened to shoot the firefighters if they proceeded onto the property

was the same voice that was speaking on the loudspeaker when the police subsequently

arrived.

       {¶ 7} While sheltered, Bennett requested assistance from the Lucas County

Sheriff. Detective Frank Reidy and Captain Matthew Luettke of the Lucas County

Sheriff’s Office responded to the scene. When the officers arrived, they overheard a male

voice over a loudspeaker, directing authorities to leave the property and informing them

that they were trespassing.




       3.
       {¶ 8} Reidy stated at trial that the voice he heard over the loudspeaker was

appellant’s, although he acknowledged that he “never had eyes on [appellant]. I never

physically saw him.” Reidy indicated that he had previously responded to calls at the

Hill Avenue address, which he stated was appellant’s residence. After identifying

appellant as the defendant sitting in the courtroom, Reidy went on to testify that he is

familiar with appellant’s voice, having previously spoken to appellant during an incident

involving a neighbor dispute. Reidy described appellant’s voice as “unique.”

       {¶ 9} For his part, Luettke testified that he has come into contact with appellant “a

few times” in the past. As a result of his past encounters with appellant, Luettke stated

that he was able to positively identify appellant’s voice as the voice he heard on the

loudspeaker at the Hill Avenue residence.

       {¶ 10} After the officers arrived on the scene, they discussed the situation with

Bennett and it was decided that the crew would have to abort the fire call due to safety

concerns. The crew then proceeded back to their station. Likewise, Reidy and Luettke

were forced to depart from the property.

       {¶ 11} At the conclusion of the trial, appellant moved for acquittal under Crim.R.

29. The trial court denied appellant’s motion with respect to charge of disrupting public

services and one count of aggravated menacing. The trial court then granted appellant’s

motion as to one of the aggravated menacing counts. Thereafter, the jury found appellant

guilty of disrupting public services, and was unable to reach a verdict as to the remaining




       4.
aggravated menacing charge. As such, the trial court declared a mistrial on the remaining

aggravated menacing count, and the matter was continued for sentencing.

       {¶ 12} At sentencing, the trial court dismissed the remaining aggravated menacing

charge without prejudice pursuant to the state’s request. As to the disrupting public

services charge, appellant was ordered to serve four years of community control, with the

trial court reserving a 14-month prison sentence. It is from this judgment that appellant

has filed a timely notice of appeal.

                               B.      Assignments of Error

       {¶ 13} On appeal, appellant assigns the following errors for our review:

              First assignment of error: The trial court erred to the prejudice of

       appellant in denying his Crim.R. 29 motion upon completion of the state’s

       case in chief.

              Second assignment of error: The jury’s verdict was against the

       manifest weight of the evidence presented at trial.

                                       II.   Analysis

       {¶ 14} In appellant’s first assignment of error, he contends that the trial court erred

in denying his motion for acquittal under Crim.R. 29 as to the charge of disrupting public

services.

       {¶ 15} A motion for acquittal under Crim.R. 29(A) is a challenge to the

sufficiency of the evidence. See State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507,




       5.
824 N.E.2d 959, ¶ 39. The denial of a motion for acquittal under Crim.R. 29(A) “is

governed by the same standard as the one for determining whether a verdict is supported

by sufficient evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847

N.E.2d 386, ¶ 37.

       {¶ 16} In reviewing a challenge to the sufficiency of the evidence, we view the

evidence in a light most favorable to the prosecution and determine whether “any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,

684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh

the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448,

2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support

a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997).

       {¶ 17} Here, appellant was convicted of one count of disrupting public services in

violation of R.C. 2909.04(B), which provides:

              (B) No person shall knowingly use any computer, computer system,

       computer network, telecommunications device, or other electronic device

       or system or the internet so as to disrupt, interrupt, or impair the functions

       of any police, fire, educational, commercial, or governmental operations.




       6.
       {¶ 18} Appellant does not dispute that the state’s evidence established that

someone knowingly used an electronic device (the remotely-controlled loudspeaker) in a

manner that prevented the Springfield Township Fire Department from carrying out its

duties to extinguish the illegal fire that was burning at the Hill Avenue residence.

However, appellant argues that the state failed to establish that he was the male

individual who was heard making threats over the loudspeaker. In support of his

argument, appellant relies upon the fact that he was “never actually seen or identified by

anyone at [the Hill Avenue residence].”

       {¶ 19} In response, the state argues that the testimony provided at trial establishes

that appellant was the individual who threatened to shoot the firefighters if they

proceeded onto the property.

       {¶ 20} Given the testimony at trial, it is clear the state met its burden in this case.

On the issue of identity, Miller testified that the voice that threatened the firefighters was

the same voice that was speaking when the police arrived. Further, both Reidy and

Luettke testified that they were familiar with appellant’s voice, having encountered

appellant in the past. They each testified that they recognized the voice that was being

transmitted over the loudspeaker as appellant’s voice.

       {¶ 21} Taken together, we find that the testimony of Miller, Reidy, and Luettke

establish that appellant was the individual who threatened the safety of the firefighters




       7.
and prevented them from extinguishing the fire. Thus, we find that appellant’s argument

is without merit. Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 22} In his second assignment of error, appellant argues that the jury’s verdict

was against the manifest weight of the evidence. While appellant’s second assignment of

error is phrased in terms of manifest weight of the evidence, his argument is really that

the verdicts were inconsistent. Specifically, appellant argues that the jury’s guilty verdict

on the charge of disrupting public services was inconsistent with the jury’s inability to

reach a verdict on the charge of aggravated menacing.

       {¶ 23} As noted by the state, the failure of the jury to reach a verdict on the

aggravated menacing charge is a “nonevent” and is therefore not inconsistent with the

jury verdict on the charge for disrupting public services. Yeager v. United States, 557

U.S. 110, 120, 129 S.Ct. 2360, 174 L.Ed. 2d 78 (2009). Well-established Ohio Supreme

Court precedent provides that “[a] verdict responding to a designated count will be

construed in the light of the count designated, and no other.” Browning v. State, 120

Ohio St. 62, 165 N.E. 566, paragraph four of the syllabus (1929). “The several counts of

an indictment containing more than one count are not interdependent and an

inconsistency in a verdict does not arise out of inconsistent responses to different counts,

but only arises out of inconsistent responses to the same count.” State v. Lovejoy, 79

Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph one of the syllabus. Thus, the jury’s




       8.
inability to reach a verdict on the aggravated menacing charge was not inconsistent with

the jury’s determination of guilt on the disrupting public services charge.

       {¶ 24} Accordingly, appellant’s second assignment of error is not well-taken.

                                    III.   Conclusion

       {¶ 25} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        ____________________________
                                                        JUDGE
Thomas J. Osowik, J.
                                                ____________________________
Gene A. Zmuda, J.                                       JUDGE
CONCUR.
                                                ____________________________
                                                        JUDGE




        This decision is subject to further editing by the Supreme Court of




       9.
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
     version are advised to visit the Ohio Supreme Court’s web site at:
              http://www.supremecourt.ohio.gov/ROD/docs/.




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