[Cite as State v. Fisher, 197 Ohio App.3d 591, 2011-Ohio-5965.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    MIAMI COUNTY

THE STATE OF OHIO,                                :
                                                 :    Appellate Case No. 2011-CA-3
        Appellee,                                 :
                                                 :    Trial Court Case No. 10-CRB-4489
v.                                               :
                                                 :    (Criminal Appeal from Miami County
FISHER,                                          :    (Municipal Court)
                                                 :
        Appellant.                               :
                                                 :
                                             ...........

                                             OPINION

                        Rendered on the 18th day of November, 2011.

                                             ...........

        Brandon A. Coate, for appellee.

        Kohler Legal Services, L.L.C., and Anthony E. Kohler, for appellant.

                                           .............

        FAIN, Judge.

        {¶ 1} Defendant-appellant, Dave W. Fisher, appeals from his conviction and

sentence for domestic violence, in violation of R.C. 2919.25(C), a misdemeanor of the

fourth degree. Fisher contends both that the trial court erred when it denied his motion

for a judgment of acquittal at the conclusion of the state’s case-in-chief and that his

conviction is against the manifest weight of the evidence.

        {¶ 2} We conclude that the evidence was insufficient to permit a reasonable
                                                                                      2


finder of fact to conclude, beyond a reasonable doubt, that Fisher, by threat of force,

knowingly caused a family member to believe that she was under threat of imminent

physical harm. Accordingly, the judgment of the trial court is reversed, and Fisher is

discharged.



                                                I

       {¶ 3} The following evidence was submitted during the state’s case-in-chief.

       {¶ 4} One night in late November 2010, Shirley Fisher was asleep in her

estranged husband’s house. Ms. Fisher and Mr. Fisher were completing their divorce

at the time of the incident. At about 3:30 a.m., Ms. Fisher awoke to the sound of the

bedroom door being pushed open. Ms. Fisher had placed a serving fork, or carving

fork, into the door in order to keep it from opening and, additionally, had placed an

armoire in front of the door to prevent it from opening. Located on top of the armoire

was a potted plant, a house telephone, and a teddy bear. When Mr. Fisher forced the

door open, the armoire and the items on top of the armoire were knocked over onto the

floor. The potted plant broke.

       {¶ 5} After Mr. Fisher entered the room, he and Ms. Fisher exchanged words.

It is unclear who began the verbal altercation or what exactly was said. Mr. Fisher

picked up the now unpotted plant and threw it towards Ms. Fisher. The plant landed on

the pillow where Ms. Fisher had been sleeping. Mr. Fisher also threw the telephone,

which hit the side of the bed, located approximately four to five feet from the door. The

telephone fell to the floor. Ms. Fisher testified that she was afraid, as evidenced by the

barricaded and jammed door, but that she did not know whether Mr. Fisher was going
                                                                                       3


to try to hurt her. Asked whether she thought it was possible that Mr. Fisher was going

to try to hurt her, Ms. Fisher answered, “Absolutely.”

       {¶ 6} Ms. Fisher, up until either that day or shortly before that day, had been

sleeping exclusively in a room downstairs. Mr. Fisher, who had not lived at the

residence for over three weeks, had been to the house on several occasions and would

regularly come into the bedroom where Ms. Fisher was located that evening in order to

retrieve his clothes. Mr. Fisher had no knowledge that Ms. Fisher was going to be in

that room that evening or that she had barricaded herself in that room with a sharp

utensil and a piece of furniture. It is undisputed that Mr. Fisher had a right to be in the

residence. After Mr. Fisher obtained a few clothing items, he left the residence. Ms.

Fisher called the police to report the incident.

       {¶ 7} In her account to Sergeant Mike Whaley of the Miami County Sheriff’s

Department, Ms. Fisher neglected to mention that she had barricaded and jammed the

door, that Mr. Fisher had explained why he was there, and that she had not slept in that

bedroom before that evening. She did, however, tell Sgt. Whaley that she was in “fear

for her safety” and that Mr. Fisher seemed intoxicated because he had a lack of

balance and “by his action of coming into the room” in that manner. Sgt. Whaley was

not able to determine if Mr. Fisher was, in fact, intoxicated. Sgt. Whaley did, however,

believe that by the placement of the plant and the location of the phone – between the

bed, night stand, and doorway – Ms. Fisher was telling the truth.

       {¶ 8} The following evidence was presented during Fisher’s case-in-chief.

       {¶ 9} Mr. Fisher had been living where the incident occurred since 1972 and

had purchased the real property in 1993. The real property contains Mr. Fisher’s
                                                                                     4


residence, his workshop, and a one-room schoolhouse on almost four acres. While

both Mr. and Ms. Fisher had a legal right to be in the house, Mr. Fisher had not slept at

the residence for quite some time, because he did not trust Ms. Fisher while he slept.

       {¶ 10} In the morning of the incident, Mr. Fisher had returned to the residence to

“get some clothes,” because later that morning he was to be installing equipment at a

construction site, and the clothes he needed were kept at the residence. Upon entering

the house, Mr. Fisher had no intention of interacting with Ms. Fisher. To his knowledge,

Ms. Fisher would be sleeping in the computer room located downstairs from the

bedroom. Ms. Fisher had never indicated to Mr. Fisher that she was now sleeping in

the bedroom. Upon entering the house, Mr. Fisher noticed that Ms. Fisher was not in

the computer room; he believed that was because she was staying with her boyfriend.

       {¶ 11} When Mr. Fisher reached the bedroom, he found the door to be wedged.

Due to the age of the house and the fact that the door was frequently stuck during the

fall and winter months, Mr. Fisher forced the door open. When that occurred, the door

“flung” open, knocking over an armoire, a potted plant, and the telephone. After words

were exchanged, Mr. Fisher retrieved the clothing items he had come for, walked out of

the room, and left the house. Mr. Fisher denied ever throwing any item during the

incident. Mr. Fisher denied being intoxicated. Mr. Fisher denied ever believing that he

put Ms. Fisher in any type of fear.

       {¶ 12} Mr. Fisher had been sleeping at the residence of Don Fisher, his father.

That morning, Mr. Fisher arrived at his father’s residence around 4:00 a.m., and

seemed calm and collected. He told his father that he had just come from his house,

where he had picked up a pair of jeans and his work boots. Mr. Fisher then proceeded
                                                                                       5


to his bedroom. To his father, Mr. Fisher did not appear intoxicated. Shortly thereafter,

a deputy sheriff arrived at Don Fisher’s residence and arrested his son.



                                                II

       {¶ 13} Mr. Fisher’s first assignment of error is as follows:

       {¶ 14} “The trial court should have granted defendant’s motion for acquittal at

the conclusion of the case by the state of Ohio.”

       {¶ 15} “In reviewing the record for sufficiency, ‘[t]he 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.’ ” State v. Smith (1997), 80 Ohio St.3d 89, 113, quoting State v.

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

       {¶ 16} “[I]n order to show that a person violated R.C. 2919.25(C), ‘[i]t must be

shown by the prosecution that the victim believed that the offender would cause her

imminent physical harm.’” Hamilton v. Cameron (1997), 121 Ohio App.3d 445, 449,

700 N.E.2d 336, quoting State v. Sayers (Mar. 26, 1997), Washington App. No.

95CA30, 1997 WL 142361. The state of mind of the victim is an essential element of

this crime. Id. In the case before us, Mr. Fisher argues that the state failed to prove,

beyond reasonable doubt, that Ms. Fisher believed that he would have caused her

imminent physical harm.

       {¶ 17} “Imminent” has been defined by Ohio courts as near at hand or

impending. Cincinnati v. Baarlaer (1996), 115 Ohio App.3d 521, 526-527. It has also

been defined as requiring the belief of the victim that harm would occur immediately or,
                                                                                     6


in the alternative, that the defendant will cause immediate physical harm. State v.

Taylor (1996), 79 Ohio Misc.2d 82, 85.

      {¶ 18} Mr. Fisher entered his household early in the morning with the belief that

Ms. Fisher was not in the bedroom they had shared during their marriage. Ms. Fisher

had, without any attempt at providing direct or constructive notice, moved into the

bedroom. Both of them knew that Mr. Fisher would need access to that room in order to

retrieve personal items. Ms. Fisher had not only jammed the door shut, with either a

serving or carving fork, she had also placed furniture in front of the door. When Mr.

Fisher ultimately opened the door with a reasonable amount of force needed to gain

entry and collect the clothing items he came to retrieve, the furniture and items on top

of that furniture were knocked off and broken. Regardless of the words that were

exchanged or items thrown in the general direction of Ms. Fisher, by her own

admission, she did not know whether Mr. Fisher was going to try to hurt her:

      {¶ 19} “Q. Okay. Did you think that he was going to try to – try to hurt you?

      {¶ 20} “A. I don’t know.

      {¶ 21} “Q. Did you think that was possible?

      {¶ 22} “A. Absolutely.

      {¶ 23} “Q. Is that part of the reason you were afraid?

      {¶ 24} “A. I wanted to not – I wanted to wake up at least if he came in there.

      {¶ 25} “Q. Okay.

      {¶ 26} “A. And those – by him – by what he did, woke me up.”

      {¶ 27} We find that her belief that it was “absolutely” possible does not meet the

criterion of a belief that Mr. Fisher would cause her imminent harm. At most, her
                                                                                        7


testimony may have established that she was in fear that Mr. Fisher might hurt her, but

R.C. 2919.25(C), “strictly construed against the state and liberally construed in favor of

the accused,” as required by R.C. 2901.04(A), requires the victim “to believe that the

offender will cause imminent physical harm.” By her own admission, Ms. Fisher did not

know that he would try to hurt her.

       {¶ 28} R.C. 2919.25(C) provides:

       {¶ 29} “No person, by threat of force, shall knowingly cause a family or

household member to believe that the offender will cause imminent physical harm to

the family or household member.”

       {¶ 30} Use of the word “will” in a conditional sentence expresses an intention to

act in a particular way to accomplish a desired object. As it is used in R.C. 2919.25(C),

“will” denotes an intention on the part of the offender to cause the victim imminent

physical harm. The conduct the section prohibits is knowingly causing the victim to

believe that the offender intends to act on that desire. It is not necessary that the victim

must know that the offender will accomplish his desired object, which remains

conditioned on his action. All that R.C. 2919.25(C) requires is that the offender has

caused the victim to believe that the offender will take the action his desired object

requires.

       {¶ 31} It was not the state’s burden to show that the victim believed she would

suffer imminent physical harm. The state’s burden was merely to show that the victim

believed that the defendant desired to harm her and that he intended to act on that

desire. But the victim’s testimony disclaims a belief that defendant intended to so act.
                                                                                      8


       {¶ 32} The state may rely on evidence other than the victim’s testimony to prove

the offense. In particular, the state may offer evidence of the victim’s conduct to prove

her state of mind. But absent some sound reason to discount the victim’s declaration, it

should be given greater weight than contrary inferences derived from her conduct.

       {¶ 33} Mr. Fisher’s first assignment of error is sustained.



                                               III

       {¶ 34} Mr. Fisher’s second assignment of error is as follows:

       {¶ 35} “The trial court decision finding defendant guilty is against the manifest

weight of the evidence.”

       {¶ 36} In view of our disposition of Mr. Fisher’s first assignment of error, this

assignment of error is overruled as moot.



                                               IV

       {¶ 37} Mr. Fisher’s first assignment of error having been sustained, the

judgment of the trial court is reversed, and Mr. Fisher is discharged as to the offense of

which he was convicted.

                                                                     Judgment reversed.

                                        .............

       GRADY, P.J., concurs.

       KLINE, J., dissents.


       ROGER L. KLINE, J., of the Fourth Appellate District, sitting by assignment.

       KLINE, Judge, dissenting.
                                                                                          9



       {¶ 38} I respectfully dissent as to the first assignment of error. I agree with the

majority that the victim’s “belief that it was ‘absolutely’ possible does not cross the

threshold of being a belief that Mr. Fisher would cause her imminent harm.” Thus, this

evidence favors the defendant-appellant, not the prosecution. Under our standard of

review, however, we are required to review the evidence in a light that favors the

prosecution. That is, “[i]n reviewing the record for sufficiency, ‘[t]he 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.’” State v. Smith (1997), 80 Ohio St.3d 89, 113, quoting

State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus.

       {¶ 39} Further, I agree with the law as stated in Hamilton v. Cameron (1997),

121 Ohio App.3d 445, which held that in order to show a violation of R.C. 2919.25(C),

the state must prove that the victim believed that the offender would cause her

imminent physical harm. The state of mind of the victim is an essential element of this

offense. “While it is true that victims may change their testimony to protect a spouse,

there must be some evidence that the victim thought that the accused would cause

imminent physical harm.” Id. at 449.

       {¶ 40} As I stated earlier, I agree with the majority that the victim’s “belief that it

was ‘absolutely’ possible does not cross the threshold of being a belief that Mr. Fisher

would cause her imminent harm.” But the prosecution is not limited to the victim’s

testimony. Instead, as Hamilton notes, the prosecution may use “other evidence [from

which] it could be inferred, that the victim thought that the accused would cause
                                                                                    10


imminent physical harm.” Id. Circumstantial evidence and direct evidence “possess

the same probative value.” Jenks, paragraph one of the syllabus.

      {¶ 41} Here, in reviewing the other evidence in a light most favorable to the

prosecution, I think one could infer, based on the circumstances, that the victim wife

thought her husband would cause her imminent physical harm – barricading the door,

calling the police, testimony about thrown objects.

      {¶ 42} In conclusion, after viewing the evidence in a light most favorable to the

prosecution, I would find that any rational trier of fact could have found the essential

elements of domestic violence under R.C. 2919.25(C) proven beyond a reasonable

doubt. Consequently, I would overrule the first assignment of error and proceed to

address the second assignment of error.

      {¶ 43} Thus, I dissent.

                                   .............
