[Cite as State v. Gilbert, 2020-Ohio-1568.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,
                                                           CASE NO. 17-19-12
       PLAINTIFF-APPELLEE,

       v.

TOBY GILBERT,                                              OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 19CR000114

                                       Judgment Affirmed

                              Date of Decision: April 20, 2020



APPEARANCES:

        Jim R. Gudgel for Appellant

        Timothy S. Sell for Appellee
Case No. 17-19-12


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Toby Gilbert (“Gilbert”) appeals the judgment of

the Shelby County Court of Common Pleas, alleging that his conviction is against

the manifest weight of the evidence and that he was denied his right to the effective

assistance of counsel. For the reasons set forth below, the judgment of the trial court

is affirmed.

                           Facts and Procedural History

       {¶2} On May 22, 2018, Officer Aaron Wesbecher (“Officer Wesbecher”),

who is employed at the Sidney Police Department, met with J.B., who was a

confidential informant, to set up a controlled buy of illegal narcotics. Tr. 85-86, 94.

Officer Wesbecher searched J.B. before providing her with $50.00 in cash and

outfitting her with a recording device. Tr. 94, 99-100, 118. J.B. then drove to

Gilbert’s house and went inside for “a few minutes.” Tr. 95. After J.B. exited

Gilbert’s house, J.B. rendezvoused with the police and gave the police officers a

white powder that she had purchased. Tr. 96. Subsequent testing revealed that this

white powder was composed of approximately 0.28 grams of cocaine. Ex. 4. Tr.

101, 103.

       {¶3} The practice of the Sidney Police Department is to disclose the identity

of a confidential informant seven days before a jury trial. Tr. 89. Gilbert’s initial

jury trial date was set for April 9, 2019. Tr. 105. On April 2, 2019, the State

disclosed J.B.’s identity to the Defense. Tr. 105. On April 3, 2019, Gilbert called

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J.B. Tr. 122. J.B. testified that Gilbert told her that he was “f***ing p***ed off” at

her. Tr. 123. She stated that he also said that “he had lost everything” and that he

believed that this was her fault. Tr. 123. J.B. further said “that [Gilbert] was very

angry and [said] that I would get what was coming to me and that he was coming to

Greenville.” At the time of this call, J.B. lived in Greenville. Tr. 123.

       {¶4} On April 25, 2019, Gilbert was indicted on one count of intimidating a

witness in a criminal case in violation of R.C. 2921.04(B)(2) and re-indicted on one

count of trafficking in drugs in violation of R.C. 2925.03(A)(1). Doc. 1. A jury

trial was held on June 25, 2019. Tr. 1. On the day of the trial, the jury returned

verdicts of guilty on both of the charges against Gilbert. Doc. 52, 53. The trial court

then sentenced Gilbert on August 22, 2019. Doc. 76.

       {¶5} The appellant filed his notice of appeal on September 17, 2019. Doc.

87. On appeal, Gilbert raises the following assignments of error:

                            First Assignment of Error

       The jury verdict was against the manifest weight of the evidence.

                           Second Assignment of Error

       The Defendant was denied effective assistance of counsel due to
       the lack of assertion of a speedy trial violation.

                             First Assignment of Error

       {¶6} Gilbert argues that his conviction for witness intimidation is against the

manifest weight of the evidence because he never made a specific threat against J.B.


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                                   Legal Standard

       {¶7} “In a manifest weight analysis, ‘an appellate court’s function * * * is to

determine whether the greater amount of credible evidence supports the verdict.’”

State v. Harvey, 3d Dist. Marion No. 9-19-34, 2020-Ohio-329, ¶ 12, quoting State

v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). Thus, “the appellate court

sits as a ‘thirteenth juror’ * * *.” State v. Davis, 3d Dist. Seneca No. 13-16-30,

2017-Ohio-2916, ¶ 17, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). Appellate courts

       must review the entire record, weigh the evidence and all of the
       reasonable inferences, consider the credibility of witnesses, and
       determine whether in resolving conflicts in the evidence, the
       factfinder ‘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. Brentlinger, 2017-Ohio-2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting

Thompkins at 387.

       {¶8} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the

witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “[I]t is

well established that the * * * credibility of the witnesses [is] primarily a matter for

the trier of fact.” State v. Gervin, 2016-Ohio-8399, 79 N.E.3d 59, ¶ 142 (3d Dist.),

quoting State v. Clark, 101 Ohio App.3d 389, 409, 655 N.E.2d 795 (8th Dist. 1995).


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“Only in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

       {¶9} In order to establish the elements of the crime of witness intimidation

in violation of R.C. 2921.04(B)(2), the State must prove that the defendant “[1]

knowingly [2] and by force or by unlawful threat of harm to any person or property

or by unlawful threat to commit any offense or calumny against any person * * *

[3] attempt[ed] [4] to influence, intimidate, or hinder * * * [5] [a] witness to a

criminal or delinquent act by reason of the person being a witness to that act[.]”

R.C. 2921.04(B)(2).

       {¶10} “The term ‘threat’ represents a range of statements or conduct

intended to impart a feeling of apprehension in the victim, whether of bodily harm,

property destruction, or lawful harm, such as exposing the victim’s own

misconduct.” State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341,

¶ 39. “‘Intimidation’ by definition involves the creation of fear in a victim, and the

very nature of a threat is the creation of fear of negative consequences for the

purpose of influencing behavior.” Id. at ¶ 40. Thus,

       [a] witness threatened with perfectly legal conduct (‘I will tell
       your spouse about our affair’) may be more intimidated than a
       witness threatened with illegal conduct (‘I will knock down your
       mailbox’). The most intimidating threat of all may be an indefinite
       one (‘You’ll be sorry’).

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Case No. 17-19-12



Cress at ¶ 37. Under R.C. 2921.04(B), “the threat itself, not the threatened conduct,

must be unlawful.” State v. Yambrisak, 5th Dist. Richland No. 2012-CA-50, 2013-

Ohio-1406, ¶ 31. “Moreover, the perpetrator need not have expressly detailed what

exact harm he is threatening. The context for the words at issue is important to

ascertain whether an unlawful threat of harm was made.” State v. Thompson, 7th

Dist. Columbiana No. 13 CO 20, 2014-Ohio-1225, ¶ 19.

                                   Legal Analysis

       {¶11} On appeal, Gilbert argues that he did not make threats against J.B.

because he only made general statements and did not make any specific threats.

Thus, our analysis will be limited to whether Gilbert’s statements to J.B. constituted

a threat. In this case, Officer Wesbech testified that the State’s practice in Shelby

County was to release the name of a confidential informant to the Defense seven

days before the corresponding jury trial was scheduled. Tr. 89. Officer Wesbech

then testified that Gilbert’s trial on the charge of trafficking in drugs was originally

scheduled for April 9, 2019 and that J.B.’s name was, therefore, released to the

Defense on April 2, 2019. Tr. 105. Ex. 4, 5.

       {¶12} J.B. testified that, on the day after her identity had been disclosed to

the Defense, Gilbert called her. Tr. 122. The State introduced a screenshot taken

on J.B.’s cell phone that indicated she received a call from Gilbert’s number at 6:13

P.M. on April 3, 2019. Ex. 6. Tr. 124. J.B. testified that Gilbert “[s]tated that he


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was very angry” and that he was “f***ing p***ed off.” Tr. 123. J.B. also stated

that Gilbert told her that “he had lost everything, that he was losing his home, his

job, and everything, and that he considered that to be my fault and that he was very

angry and that I would get what was coming to me and that he was coming to

Greenville.” Tr. 123. J.B. testified that she, at the time of this phone call, lived

“right outside of Greenville.” Tr. 123. J.B. then testified that Gilbert’s tone of voice

“was intimidating, very intimidating.” Tr. 123. She stated that she interpreted his

statements “[a]s a threat” and that she “then chose to call the police.” Tr. 124.

       {¶13} During cross-examination, the Defense indicated that J.B. had

reported to the police that Gilbert said “[she] was asking for it” when J.B. testified

at trial that Gilbert said “[she] [was] going to get what was coming to [her.]” Tr.

126. In response, J.B. stated that she “took [these statements] to be the same thing”

and that “it was still a threat * * *.” Tr. 126. She stated that this discrepancy did

not constitute her changing her story. Tr. 127. J.B. also admitted that she is a

recovering drug addict and that she used to purchase illegal drugs from Gilbert. Tr.

115, 130. She further stated that she was paid $75.00 by the police to participate in

this controlled buy. Tr. 139.

       {¶14} Officer Mark Brunson (“Officer Brunson”), who works for the Sidney

Police Department, then testified that he was the person tasked with investigating

the phone call that Gilbert made to J.B. Tr. 107, 146. Regarding J.B.’s earlier

testimony, Officer Brunson stated that “[t]he only little bit of discrepancy there was

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* * * she told me that [Gilbert] told her that she was asking for it * * *.” Tr. 146.

He stated that, other than this statement, J.B.’s testimony was the same as what she

reported to him. Tr. 147. He further testified that he verified that the phone number

in J.B.’s phone records was, in fact, Gilbert’s phone number. Tr. 148.

       {¶15} The timing, tone, and content of Gilbert’s phone call indicate that his

statements were threats. First, Gilbert called J.B. within one day of the State

disclosing her identity as the confidential informant to the Defense. This timing

indicates that Gilbert’s call was connected to the pending jury trial in which J.B.

was a witness. Further, J.B. stated that Gilbert was angry, telling her he was

“f***ing p***ed off.” Tr. 123. He also said that it was her fault that “he had lost

everything.” Tr. 123. J.B. testified that she felt threatened and that Gilbert’s tone

was “very intimidating.” Tr. 123-124. See State v. Zylko, 8th Dist. Cuyahoga No.

89949, 2008-Ohio-3032, ¶ 39.

       {¶16} J.B. also testified that Gilbert told her that she “would get what was

coming to [her] * * *.” Tr. 123. While Gilbert argues that this is a general statement,

a defendant does not need to make a specific threat to violate R.C. 2921.05(A). See

State v. Ott, 11th Dist. Portage No. 2007-P-0093, 2008-Ohio-4049, ¶ 35 (upholding

a conviction for witness intimidation even though “many of the [defendant’s] threats

were nonspecific * * *.”); Cress, supra, at ¶ 37 (holding that indefinite threats can

be more intimidating than definite threats); State v. Jackson, 12th Dist. Fayette No.

CA2011-01-001, 2011-Ohio-5593, ¶ 48 (concluding that a defendant’s statements

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Case No. 17-19-12


that he would “come see” a witness and that he was “gonna make sure we both know

what happened” were “implied, indefinite threats” that were sufficient to establish

a violation of R.C. 2921.04(B)(2)).

       {¶17} J.B. also stated that Gilbert stated that he was “coming to Greenville,”

which is where she lived at that time. Tr. 123. Gilbert argues that going to

Greenville was a lawful act and that this, therefore, could not be a threat. However,

R.C. 2921.04(B)(2) prohibits unlawful threats. See Cress, supra, at ¶ 37. An

unlawful threat to engage in otherwise lawful conduct may be a violation R.C.

2921.04(B)(2) if the conduct constitutes an “attempt to influence, intimidate, or

hinder * * *” a witness. R.C. 2921.04(B)(2). See Cress, supra, at ¶ 37 (holding “a

witness threatened with perfectly legal conduct * * * may be more intimidated than

a witness threatened with illegal conduct * * *.”). We also note that Gilbert told

J.B. that she “would get what was coming to [her] * * *” in conjunction with telling

her that he was “coming to Greenville.” Tr. 123.

       {¶18} Given the timing, tone, and content of Gilbert’s statements, a

reasonable finder of fact could determine that these statements were threats. After

reviewing the evidence in the record and considering its weight, we conclude that

the evidence in the record does not weigh heavily against Gilbert’s conviction for

intimidating a witness. Further, we do not find any evidence in the record that

indicates that the jury lost its way and returned a verdict against the manifest weight

of the evidence. Gilbert’s first assignment of error is overruled.

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                             Second Assignment of Error

       {¶19} Gilbert asserts that he was denied his right to the effective assistance

of counsel, alleging that his trial counsel did not raise the issue of a speedy trial

violation before the trial court.

                                    Legal Standard

       {¶20} “Under Ohio law, ‘a properly licensed attorney is presumed to carry

out his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-

37, 2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993

WL 270995 (July 22, 1993). For this reason, the appellant has the burden of proving

that he or she was denied the right to the effective assistance of counsel. State v.

Smalley, 3d Dist. Henry No. 7-18-30, 2019-Ohio-1572, ¶ 4, quoting State v. Brown,

3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 42. “In order to prove an

ineffective assistance of counsel claim, the appellant must carry the burden of

establishing (1) that his or her counsel’s performance was deficient and (2) that this

deficient performance prejudiced the defendant.” State v. McWay, 3d Dist. Allen

No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶21} In order to establish deficient performance, the appellant must

demonstrate that trial “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting

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Strickland at 687. In order to establish prejudice, “the defendant must show a

reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different.” Davis, supra, at ¶ 36, quoting State v. Bibbs, 2016-

Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). If the appellant does not establish one

of these two prongs, the appellate court does not need to consider the facts of the

case under the other prong of the test. State v. Baker, 3d Dist. Allen No. 1-17-61,

2018-Ohio-3431, ¶ 19, citing State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶

20 (3d Dist.).

       {¶22} Further, “[a]ppellate review is strictly limited to the record on appeal.”

State v. Johnson, 1st Dist. Hamilton No. C-170612, 2019-Ohio-287, ¶ 21. Under

App.R. 12(A)(2), the appellant is to “identify in the record the error on which the

assignment of error is based * * *.” App.R. 12(A)(2). “A claim of ineffective

assistance of counsel cannot be asserted on direct appeal if it relies on matters

outside the record.” State v. Harris, 2d Dist. Montgomery No. 27179, 2017-Ohio-

9052, ¶ 19. See State v. Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452, 454

(1983) (holding that “it is impossible to determine whether the attorney was

ineffective in his representation of the appellant where the allegations of

ineffectiveness are based on facts not appearing in the record.”).

                                   Legal Analysis

       {¶23} On appeal, Gilbert states that his trial had to occur before 270 days of

speedy trial time had expired and alleges that 271 days of speedy trial time had

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expired by the date of his jury trial. Appellant’s Brief, 7. He then argues that his

defense counsel was ineffective for failing to raise this issue before the trial court.

In response, the State notes in its brief that Gilbert’s speedy trial time relies on each

of the seven days he spent in jail in December of 2018 counting as three days for

speedy trial purposes. Appellee’s Brief, 10. The State alleges that Gilbert was in

jail for another charge at this time and that each day he spent in jail should, therefore,

count only as one day for the purposes of calculating speedy trial time. Id.

       {¶24} However, the record before this Court begins on April 25, 2019, which

is when Gilbert was indicted for intimidating a witness and reindicted for trafficking

in drugs. Doc. 1. The record does not contain the filings that were made prior to

Gilbert’s reindictment. Gilbert’s brief references filings and events—his previous

indictment, being released on his own recognizance, the Defense’s motion for

discovery, the State’s response to discovery—that affect the calculation of speedy

trial time but are not documented in the record before us.

       {¶25} In the absence of the documents filed prior to April 25, 2019, we

cannot determine whether Gilbert’s speedy trial rights were violated in this case.

See State v. Madrigal, 87 Ohio St.3d 378, 390, 721 N.E.2d 52, 65 (2000) (holding

that resolving an issue in favor of the appellant in the absence of evidence in the

record “would be purely speculative.”); State v. Thompson, 8th Dist. Cuyahoga No.

79334, 2002-Ohio-5957, ¶ 13 (overruling a claim of ineffective assistance of

counsel that alleged a speedy trial violation where the evidence in the record was

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not sufficient to determine the issue). Since appellate review is limited to what is

contained in the record, we must conclude that the appellant has not demonstrated,

based on the evidence before this Court, that he was denied his right to the effective

assistance of counsel.1 State v. Neib, 5th Dist. Stark No. 2001 CA 00349, 2002-

Ohio-4666, ¶ 36. Gilbert’s second assignment of error is overruled.

                                                Conclusion

         {¶26} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Shelby County Court of Common Pleas is

affirmed.

                                                                                     Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




1
  This does not necessarily mean that there is no avenue left to raise this issue. “Although ineffective
assistance of counsel ordinarily should be raised on direct appeal, res judicata does not bar a defendant from
raising this issue in a petition for post conviction relief if the claim is based on evidence outside the record.
This principle applies even when the issue of ineffective assistance of counsel was raised on direct appeal.”
(Citation omitted.) State v. Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, fn. 5, citing State v.
Jones, 8th Dist. Cuyahoga No. 83601, 2004-Ohio-3868, ¶ 6; State v. Smith, 17 Ohio St.3d 98, 101, 477
N.E.2d 1128, fn. 1 (1985).

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