[Cite as State v. Gilbert, 2018-Ohio-1883.]


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

STATE OF OHIO                                        C.A. No.       17CA011209

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RAMONE GILBERT                                       LORAIN MUNICIPAL COURT
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   2017CRB02009

                                  DECISION AND JOURNAL ENTRY

Dated: May 14, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Ramone Gilbert, appeals from his conviction for aggravated menacing

in the Lorain Municipal Court. This Court affirms.

                                                I.

        {¶2}     Mr. Gilbert wrote a song and performed it in a music video with his brother

(“O.G.”). Mr. Gilbert sang the lyrics while O.G. played a ukulele. The song was filmed by third

person, and O.G. posted it on his Facebook page. The song included lyrics referencing Mr.

Gilbert kicking in the door to his “baby momma’s house,” tying her up with her kids and the

“dude she started sleepin’ with[,]” dousing them all in gasoline, and lighting up a cigarette. The

song culminates with Mr. Gilbert repeatedly uttering the line, “If you f**k me over, I’m gonna

kill you.” Mr. Gilbert and the mother of his only children (“R.C.”) were involved in a custody

dispute at the time the video was posted. R.C.’s cousin saw the video on O.G.’s Facebook page

and showed it to R.C. on a cell phone. R.C. then reported the video to the police.
                                                2


       {¶3}    Mr. Gilbert was later charged with aggravated menacing and telecommunications

harassment. Following a bench trial, the trial court found Mr. Gilbert guilty of aggravated

menacing, but not guilty of telecommunications harassment. The court sentenced him to 180

days in jail and ordered him to pay a $200.00 fine. The court suspended 106 days of the

sentence and granted him 74 days of jail-time credit. Mr. Gilbert was placed on intensive

supervised probation for two years and was ordered to have no contact with R.C.

       {¶4}    Mr. Gilbert now appeals from his conviction and raises two assignments of error

for this Court’s review.

                                                II.

                              ASSIGNMENT OF ERROR ONE

       THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
       EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
       FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
       CONSTITUTION OF THE STATE OF OHIO.

                              ASSIGNMENT OF ERROR TWO

       THE VERDICT IN THIS CASE IS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES
       THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
       CONSTITUTION OF THE STATE OF OHIO.

       {¶5}    In his first and second assignments of error, Mr. Gilbert argues that his conviction

is not supported by sufficient evidence and is against the manifest weight of the evidence.

Although sufficiency and manifest weight are two separate, legally distinct arguments and

should be argued separately, Mr. Gilbert has chosen to argue them together in his brief, and we

will therefore address them together. While we disagree with both his sufficiency and manifest

weight arguments, we are compelled to note that our decision is based solely on the specific
                                                3


arguments presently before us and does not stand for a blanket proposition that a song containing

threatening lyrics, which is posted on the Internet and eventually seen by the intended victim of

the threats, always constitutes aggravated menacing under Ohio law.

       {¶6}    Whether a conviction is supported by sufficient evidence is a question of law,

which this Court reviews de novo.        State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“Sufficiency concerns the burden of production and tests whether the prosecution presented

adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575,

2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “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.” Id., quoting State

v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve

evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the

trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

       {¶7}    Mr. Gilbert was convicted of aggravated menacing under R.C. 2903.21(A), which

states, in part: “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 * * *.” “A person acts knowingly, regardless

of purpose, when the person is aware that the person’s conduct will probably cause a certain

result or will probably be of a certain nature.” R.C. 2901.22(B). “Serious physical harm to

persons” means any of the following:

       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;

       (b) Any physical harm that carries a substantial risk of death;
                                                4


       (c) Any physical harm that involves some permanent incapacity, whether partial
       or total, or that involves some temporary, substantial incapacity;

       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5).

       {¶8}    Mr. Gilbert argues that the State did not present sufficient evidence to prove that

the statements in his song were made directly to R.C. or were made to people he knew or should

have known would communicate them to R.C. This Court has stated that “R.C. 2903.21 is clear

and unambiguous on its face and does not impose a requirement that the threat of harm must be

uttered directly to the intended victim.” State v. Knoble, 9th Dist. Lorain No. 08CA009359,

2008-Ohio-5004, ¶ 13. Consequently, Mr. Gilbert’s argument that the statements were not made

directly to R.C. is without merit. Instead, we will focus our analysis on Mr. Gilbert’s argument

that there was insufficient evidence to prove his statements were made to people he knew or

should have known would communicate them to R.C.

       {¶9}    R.C. testified at trial that her cousin showed her the music video on O.G.’s

Facebook page on a cell phone while they were at her mother’s house in Lorain. She testified

that she contacted the police because she was scared and frightened that Mr. Gilbert was

threatening her life and the lives of her children in his song by stating he would “burn [them]

up.” On cross-examination, she testified that she now feels frightened for her life. Lorain Police

Officer Marcus Haring testified that R.C. was upset and concerned when she brought the music

video to the police department. Although R.C. is not mentioned specifically by name in the

song, she testified that she felt the song was referring to her because of the statement that Mr.

Gilbert “kicked [her] door in.” She did not, however, elaborate any further as to whether Mr.
                                                 5


Gilbert has, at any time, actually kicked in the door to her home. She testified that she is Mr.

Gilbert’s only “baby mom” and they were on “bad terms” with each other at the time, as they

were involved in a pending custody case. R.C. testified that she has friends and family who have

access to both Mr. Gilbert’s and O.G.’s Facebook pages and that she would expect to receive any

messages posted on those two pages.

       {¶10} The music video was played in open court at trial and entered into evidence. In

the video, Mr. Gilbert first gives a brief preamble to the song:

       Yeah, it’s your boy, Big ‘Mone, still holdin’ it down for the 44052. I had to
       switch it up on you guys. I wanna give a shout out to Odie and my n***a, Noah,
       for helpin’ me out wit’ this. I want you guys to like my videos and share this
       s**t, man. Real talk.

The song itself contains the following lyrics:

       I kicked the door in my baby momma’s house. ‘Cause that b***h was “ho-ing.”
       She started to f**k around. Now I’m out in the cold, man, and I don’t know what
       to do. Now I’m all alone, man, and I’m feelin’ really blue.

       So, I look to the sky and I’m wonderin’ why my life got twisted up in one big, fat
       lie. But, the pain is so real, I have to drink a beer. And I’m asking everybody do
       you feel like I feel?

       So, when I catch the dude she started sleepin’ with, I’m-a find him and her, tie
       ‘em up with their little kids. I’m-a douse ‘em all in gasoline today, and I’m-a
       light up a cigarette just for the hey. And when they all burn like a perm, I’m-a be
       laughin’ like a giant ‘cause it hurts. What they did to me, they broke me down.
       But, when I get f****n’ pissed, I’m gonna burn ‘em all down.

       So, I kicked the door in to my baby momma’s house. ‘Cause that b***h was “ho-
       ing” and she started to f**k around. Now I’m out in the cold, man, and I don’t
       know what to do. Now I’m all alone, man, and I’m feelin’ really blue.

       I kicked the door in to my baby momma’s house. ‘Cause that b***h was “ho-
       ing.” She started to f**k around. Now I’m all alone, man, and I don’t know what
       to do.

       So, if you f**k me over, I’m gonna kill you. If you f**k me over, I’m gonna kill
       you. If you f**k me over, I’m gonna kill you.
                                                 6


       But, I kicked that door in.

       {¶11} Mr. Gilbert testified that he is an artist and a performer, and that he did not write

the song in question about anyone in particular, as there are millions of baby moms in the world

and he never said R.C’s name in the song. He claimed he never refers to R.C. as his baby mom,

as she is instead simply the mother of his children. He admitted that R.C. is the mother of his

only children. He acknowledged the custody dispute with R.C., but testified that the children

were living with him at the time. R.C. testified, however, that Mr. Gilbert was not seeing his

children at that time. Mr. Gilbert explained that the lyrics in the song are actually a metaphor:

       [T]he baby mom in the song is basically the world, like, the pain that I’m going
       through. You know what I’m saying? And with that being said, the metaphor
       being that as the baby mom. When I said, “kick the door in,” that’s me just
       kicking away all my problems and my pains and how, how everything is going on
       in my life.

       {¶12} Mr. Gilbert testified that the song was not finished, but he agreed that it was his

intent to post the song online when it was finished. He admitted that he commonly posts videos

on his Facebook page, and stated, “[I]f you go to – – go to my page, you will see there’s plenty,

plenty more videos of me saying this and that.” However, he testified that R.C. cannot go to or

view his Facebook page because she is “blocked.” R.C. admitted on cross-examination that Mr.

Gilbert blocked her access to his Facebook page, but she also testified that she is not blocked

from O.G.’s Facebook page. Mr. Gilbert testified that he did not know his brother was going to

post the video, but stated that his brother supports everything he does.

       {¶13} After reviewing the evidence contained in the record in a light most favorable to

the prosecution, we conclude that the State presented sufficient evidence, if believed, that Mr.

Gilbert committed the offense of aggravated menacing. We further conclude that any rational

trier of fact could have found all of the essential elements of aggravated menacing proven
                                                7


beyond a reasonable doubt. The evidence presented at trial demonstrated that Mr. Gilbert’s

music video contained threats of serious physical harm to R.C. and her children. Mr. Gilbert

sang of kicking in the door to his baby momma’s house, tying her up with her kids and another

man, then dousing them all in gasoline and lighting a cigarette. He then repeats the threat: “If

you f**k me over, I’m gonna kill you.” The lyrics in the song scared and frightened R.C., who

believed the threats were directed toward her, as she is the mother of Mr. Gilbert’s only children

and was on bad terms with him since the two were involved in a pending custody dispute.

       {¶14} Although Mr. Gilbert did not personally hold the video camera or cell phone used

to record the video, and although the video was not posted on his personal Facebook page, we

nonetheless conclude that sufficient evidence was presented to support a finding that Mr. Gilbert

knowingly committed this offense. He wrote the lyrics and sang them in a recorded and shared

video performance. He admitted to commonly posting “plenty” of his music videos on his

Facebook page and conceded his intent to post a video of this particular song online once it was

finished.   The pending custody dispute between Mr. Gilbert and R.C. also added some

noteworthy context to the threatening nature of the song lyrics. At the beginning of the video,

Mr. Gilbert explicitly states that he wants people to like and share his videos, so we cannot

conclude that he was ignorant or unaware his music video would circulate amongst people whom

he knew or should have known would eventually share it with R.C. While R.C. was blocked

from viewing Mr. Gilbert’s Facebook page, she was not blocked from viewing O.G.’s Facebook

page, and she testified that she expected to be made aware by friends and family of any messages

posted on either of the brothers’ Facebook pages. We conclude that Mr. Gilbert’s sufficiency

argument is without merit.
                                                    8


        {¶15} Mr. Gilbert also argues that his conviction is against the manifest weight of the

evidence. This Court has stated:

        In determining whether a criminal conviction is against the manifest weight of the
        evidence, an appellate 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 the 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). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

        {¶16} After reviewing the record, we cannot conclude that the trial court clearly lost its

way and created a manifest miscarriage of justice and we therefore conclude that Mr. Gilbert’s

conviction is not against the manifest weight of the evidence. The trial court judge stated that he

believed Mr. Gilbert made serious threats of physical harm in the video directed toward R.C.,

and he explicitly rejected Mr. Gilbert’s claim that the song is simply a metaphor. “‘[T]he weight

to be given the evidence and the credibility of the witnesses are primarily for the trier of the

facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28, quoting State v.

DeHass, 10 Ohio St.2d 230, 227 (1967), paragraph one of the syllabus. In resolving any

conflicts in testimony presented at trial, the trier of fact is free to believe or disbelieve any, or all,

of the testimony from each witness. See Haydon at ¶ 28. The trial court was best able to view

the witnesses and observe their demeanor, gestures, and voice inflections, and use those
                                                9


observations in weighing the credibility of the proffered testimony. See State v. Cook, 9th Dist.

Summit No. 21185, 2003-Ohio-727, ¶ 30.

       {¶17} The trial court judge admitted concern regarding how the threats were

communicated, but explained that the video was posted by Mr. Gilbert’s brother, and the two

men performed music together and posted a lot of videos together. The court determined that

Mr. Gilbert knew the video would be posted, just like the brothers’ other videos, and that Mr.

Gilbert knew R.C. would eventually see it. This Court has consistently held that “[w]e will not

overturn a conviction as being against the manifest weight of the evidence simply because the

trier of fact chose to believe the State’s version of events over another version.” E.g., State v.

Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13. Mr. Gilbert has also not

demonstrated how this is an exceptional case where the evidence presented weighs heavily in his

favor and against conviction. See Thompkins at 387. We conclude that Mr. Gilbert’s manifest

weight argument is without merit.

       {¶18} Mr. Gilbert’s first and second assignments of error are overruled.

                                               III.

       {¶19} Mr. Gilbert’s first and second assignments of error are both overruled. The

judgment of the Lorain Municipal Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                10


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

Court, County of Lorain, 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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT




SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

PATRICK D. RILEY, Law Director, and JOSEPH T. LAVECK, Assistant Law Director, for
Appellee.
