[Cite as State v. DeJarnette, 2011-Ohio-5672.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96553




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                              STANLEY DEJARNETTE
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-543896

        BEFORE:           Sweeney, J., Celebrezze, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      November 3, 2011
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Road, Suite 335
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Nathaniel Tosi, Esq.
      James M. Price, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

         {¶ 1} Defendant-appellant Stanley Dejarnette appeals from his conviction for

intimidation. For the reasons that follow, we affirm.

         {¶ 2} At trial, the alleged victim, Waleed Tayeh (“Waleed”), testified that on

October 1, 2010, he was working at a deli owned by his aunt located on Harvard Avenue

in Cleveland, Ohio. During that time, Waleed was the victim/witness in a criminal case

that was pending against defendant’s son. According to Waleed, defendant entered the

store on October 1, 2010, and threatened him saying if he testified against his son,

defendant would kill him, burn the store down, and Waleed would never make it out

alive. In response, Waleed wrote down defendant’s license plate number and called

9-1-1.
       {¶ 3} Waleed testified that he was aware of defendant’s son’s pending trial date

when defendant threatened him on October 1, 2010.           The defense cross-examined

Waleed with his statement to police where he indicated he was not aware of any pending

trial dates for defendant’s son. Waleed said he must have misunderstood the question

because he was aware of the pending trial date.

       {¶ 4} During trial, the state played a videotape that recorded the altercation

between defendant and Waleed but was without any audio.

       {¶ 5} Officer Newton testified that he responded to an incident at the deli on July

9, 2010 and recalled the names of the witnesses to that incident, which included Waleed.

       {¶ 6} Detective Paul Burgio identified state’s Exhibit 3, as defendant’s son’s

criminal indictment that was issued on August 4, 2010 for offenses that allegedly

occurred on July 9, 2010.

       {¶ 7} Two witnesses testified for the defense in addition to defendant. Both

witnesses were present at the deli on October 1, 2010. Both of the witnesses said they

heard defendant and Waleed arguing with each other but neither of them heard the whole

exchange. Defendant admitted that he was discussing his concerns over Waleed

testifying at his son’s trial; however, he denied threatening Waleed.

       {¶ 8} The jury found defendant guilty and he has appealed.

       {¶ 9} “Assignment of Error I: The indictment failed to provide Appellant

adequate notice of the charges against him.”
       {¶ 10} Defendant alleges that the indictment was defective because he was not

aware of the identity of the person he was being accused of intimidating, the predicate

event, the case number of the legal proceeding constituting the predicate matter, and the

witness’s alleged duty.

       {¶ 11} To the extent defendant is attempting on appeal to challenge the indictment

for insufficiency of notice, he has waived all but plain error. Defendant never objected to

the sufficiency of the indictment nor otherwise raised the issue of deficient notice before

the trial court. He did not file a motion to dismiss on this basis nor did he move for a

more specific bill of particulars. Whatever information the state provided in response to

his discovery requests, defendant accepted without objection. We can only assume from

this record that defendant was sufficiently apprised of the charges against him. Further,

the record supports this conclusion.

       {¶ 12} On November 24, 2010, defendant was indicted with one count of

intimidation alleged to have occurred on October 1, 2010, pursuant to R.C. 2921.03(A),1

which provides:




       1
        The preceding version of the statute provided “(A) No person, knowingly
and by force, by unlawful threat of harm to any person or property, or by filing,
recording, or otherwise using a materially false or fraudulent writing with
malicious purpose, in bad faith, or in a wanton or reckless manner, shall attempt
to influence, intimidate, or hinder a public servant, party official, or witness in the
discharge of the person’s duty.”
         {¶ 13} “(A) No person, knowingly and by force or by unlawful threat of harm to

any person or property, shall attempt to influence, intimidate, or hinder a public servant,

a party official, or an attorney or witness involved in a civil action or proceeding in the

discharge of the duties of the public servant, party official, attorney, or witness.”

         {¶ 14} The indictment tracked the statutory language of R.C. 2921.03(A) by

averring:

         {¶ 15} “On or about October 1, 2010 * * * defendant * * * unlawfully did

knowingly and by force, by unlawful threat of harm to a person or property, or by filing,

recording, or otherwise using a materially false or fraudulent writing with malicious

purpose, in bad faith, or in a wanton or reckless manner, attempt to influence, intimidate

or hinder a public servant, party official, or witness in the discharge of the person’s

duty.”

         {¶ 16} In response to discovery, the state identified its witnesses, including

Waleed Tayeh, and specified that the incident occurred at the location of 14716 Harvard

Ave., Cleveland, Ohio.

         {¶ 17} R.C. 2941.05 provides:

         {¶ 18} “In an indictment or information charging an offense, each count shall

contain, and is sufficient if it contains in substance, a statement that the accused has

committed some public offense therein specified. Such statement may be made in

ordinary and concise language without any technical averments or any allegations not

essential to be proved. It may be in the words of the section of the Revised Code
describing the offense or declaring the matter charged to be a public offense, or in any

words sufficient to give the accused notice of the offense of which he is charged.”

(Emphasis added); see, also, State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853

N.E.2d 1162.

       {¶ 19} “The purposes of an indictment are to give an accused adequate notice of

the charge, and enable an accused to protect himself or herself from any future

prosecutions for the same incident.” Id. at ¶7.

       {¶ 20} Defendant relies on State v. Muniz, Cuyahoga App. No. 93528,

2010-Ohio-3720, in maintaining the indictment was deficient. In Muniz, this court held

“where a defendant is charged with intimidation of a ‘victim of a crime,’ an essential

element of the charge is that the underlying crime occurred and thus created a victim.

Muniz is entitled to notice of the predicate crime in the indictment. The charge of

intimidation of a crime victim presupposes an earlier crime has been committed. The

state has the burden of proof on all essential elements of the crime as charged; therefore,

it must prove the underlying acts occurred for there to be a crime victim, regardless of

whether a complaint has been filed or a charge brought for that underlying crime.”

(Emphasis added.) Id. at ¶20.

       {¶ 21} The statute at issue requires the state to prove that the defendant violated

the provisions of R.C. 2921.03(A), which the indictment properly alleges.
          {¶ 22} In this case, defendant was not charged with intimidation of a “victim of a

crime” pursuant to R.C. 2921.04(B), 2 he was charged with intimidation of a witness

pursuant to R.C. 2921.03(B).         The court in Muniz emphasized that she had been

charged with intimidating a “‘victim of crime,’ not intimidation of a witness.” Id. at

¶11. This court went on to observe, “the state is not required to prove that a defendant

has been charged with an underlying crime in order to prosecute on intimidation. State

v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d 614. The Malone court held

that, unlike a prosecution for intimidation of a witness, ‘[a]s far as a victim is concerned,

R.C. 2921.04(B) makes clear that it applies immediately upon the commission of the

underlying crime. * * *’” Id. at ¶13.

          {¶ 23} Unlike R.C. 2921.04(B), the provisions of R.C. 2921.03(A) do not require

that there be a “predicate offense.” Further, we have upheld a conviction under this

statute where the indictment tracked its language but had improperly designated R.C.

2921.04.      See State v. Wilburn, Cuyahoga App. No. 82573, 2003-Ohio-6495, ¶20,

reversed on other grounds by State v. Wilburn, 104 Ohio St.3d 263, 2004-Ohio-6404,

819 N.E.2d 283.         Therein, this court found that even “the incorrect numerical


      2
       R.C. 2921.04(B) provides: “[n]o person, knowingly and by force or by
unlawful threat of harm to any person or property, shall attempt to influence,
intimidate, or hinder the victim of a crime in the filing or prosecution of criminal
charges or an attorney or witness involved in a criminal action or proceeding in the
discharge of the duties of the attorney or witness.” The court reasoned that the
indictment therefore was required to specify the predicate crime necessary to satisfy
the             statutory             definition              of            “victim.”
designation did not mislead [the defendant] as to the charges against him. The language

of the indictment allege[d] that appellant ‘did attempt to influence, intimidate or hinder’

each of the officers, both of whom were public servants in the discharge of their duties.”

Id.

       {¶ 24} Another notable distinction between this case and Muniz is that this court

noted in Muniz that “the record [was] unclear as to the nature of the predicate offense.”

Id. at ¶21. In this case the record reflects that prior to issuance of the indictment,

appellant was initially charged with intimidation of a victim/witness in municipal court.

On November 4, 2010, the municipal court rendered a probable cause determination that

provided, “On Friday, October 1, 2010, Stanley Dejarnette entered the Harvard Deli,

14716 Harvard Ave., Cleveland, Ohio.         Mr. Dejarnette made threats to the store

manager/owner (Waleed Tayeh) in connection to a current criminal trial involving Mr.

Dejarnette’s son, Deandre; where Mr. Tayeh is a victim incident [sic] captured on

tape.”) A few weeks after the municipal court bound the matter over, defendant was

indicted for intimidation in this case in the common pleas court. The record is clear that

defendant was being charged with intimidating Waleed Tayeh in connection with his

involvement in defendant’s son’s criminal case.        There is nothing to suggest that

defendant’s due process rights were violated in this case. The record amply establishes

that defendant was fully apprised of the charges against him, that he received discovery,

including witness lists as well as Waleed’s statement to police well before trial. He was
also provided with the video of the incident. Defendant was prepared for trial and to

defend the charge against him. He called two witnesses in his defense in addition to

providing his own testimony.

       {¶ 25} This assignment of error is overruled.

       {¶ 26} “Assignment of Error II: The trial erred in denying Appellant’s Motion for

Aquital [sic] pursuant to Criminal Rule 29 where there was insufficient evidence.”

       {¶ 27} An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶ 28} As set forth above, R.C. 2921.03(A) provides:

       {¶ 29} “(A) No person, knowingly and by force or by unlawful threat of harm to

any person or property, shall attempt to influence, intimidate, or hinder a public servant,

a party official, or an attorney or witness involved in a civil action or proceeding in the

discharge of the duties of the public servant, party official, attorney, or witness.”

       {¶ 30} First, defendant contends the state failed to prove that Waleed had any duty

to discharge. It is his position that the state must prove he was properly served with a

subpoena prior to being threatened by defendant in order for the statute to apply. This is
not true.   The victim of a crime becomes “a ‘witness’ at the time of the original

victimization and within the ambit of protection offered by R.C. 2921.03(A).” State v.

Crider (1984), 21 Ohio App.3d 268, 269, 487 N.E.2d 911. There is no requirement that

the witness be under subpoena in order to be afforded the protections of R.C. 2921.03(A)

and defendant offers us no authority to the contrary. There is sufficient evidence in the

record to establish that Waleed was the victim and a witness to crimes alleged against

defendant’s son. Defendant admitted that he was discussing Waleed’s future testimony

against his son during the October 1, 2010 incident. He knew Waleed was to be a

witness against his son and wanted him to testify truthfully.           Defendant denied

threatening Waleed, however, Waleed provided sufficient evidence to overcome

defendant’s motion for acquittal.

       {¶ 31} Secondly, defendant argues that the state was required to establish that

defendant used force as he perceives is required by the statute. The statute, however,

required the state to prove that defendant acted “knowingly and by force or by unlawful

threat of harm to any person * **.” (Emphasis added.) R.C. 2921.03(A). The state is

not required to prove that defendant acted by force and unlawful threat of harm; it could

prove either in order to satisfy that portion of the offense. Accord, State v. Wilson (Mar.

8, 2001), Cuyahoga App. No. 77758 (concluding under prior version of the statute that

“offense of intimidation is complete under the particular facts presented, where a

‘person, * * * by unlawful threat of harm to any person or property, * * * shall attempt to
influence, intimidate, or hinder a public servant in the discharge of the person’s duty.’

R.C. 2921.03(A)”).

       {¶ 32} Waleed testified that defendant threatened to kill him and burn down the

store if he testified against his son. If believed, this is sufficient evidence that defendant

made an unlawful threat of harm to Waleed.

       {¶ 33} This assignment of error is overruled.

       {¶ 34} “Assignment of Error III: The trial court erred in allowing the State to

invite the jury to convict on matters outside the record.”

       {¶ 35} “Assignment of Error IV: Appellant was denied a fair trial due to

prosecutorial misconduct.”

       {¶ 36} We address these assignments of error together because we find them

interrelated.

       {¶ 37} The Ohio Supreme Court has held that generally a prosecutor is allowed a

certain degree of latitude during closing argument. State v. Liberatore (1982), 69 Ohio

St.2d 583, 589, 433 N.E.2d 561. In State v. Smith (1984), 14 Ohio St.3d 13, 14, 470

N.E.2d 883, the Court pronounced that, “[t]he test regarding prosecutorial misconduct in

closing arguments is whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant. * * *” The misconduct of a

prosecutor during trial is not reversible error unless it deprives the appellant of a fair

trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266, 473 N.E.2d 768; State v. DePew

(1988), 38 Ohio St.3d 275, 528 N.E.2d 542.
       {¶ 38} During closing arguments, defense counsel advised the jurors “we didn’t

hear anything about a criminal record from [defendant].” The trial court sustained the

state’s objection to this comment. At a sidebar, the court indicated its belief that this

comment was improper because it suggested to the jury that defendant did not have a

criminal record; which apparently he did. Although the discussion is limited, we glean

that the trial court had excluded evidence of defendant’s criminal history based upon

some provision of the law. The trial court then permitted the state to comment on this

fact. In the state’s rebuttal argument, the prosecutor said, “one of the things we ask of

jurors, when they go back to deliberate, is that they deliberate based upon the facts of

this case and they do this without sympathy, bias, and prejudice. And one way that they

we [sic] do this is that there are certain things that are kept from a jury by law. And in

this particular case, one of those things is any criminal record of the defendant. And the

reason we do that, again, is so that you listen to the facts of this case and apply them

without any kind of sympathy, bias, or prejudice against either the state or the defendant

in this case.”

       {¶ 39} Defendant essentially argued facts that were not in evidence, that is

defendant’s criminal record, and did so in a manner that suggested to the jury that he did

not have a criminal record. Defendant believes his statement was true in that he said the

jury did not “hear” about defendant having any criminal record. The reason the jury did

not hear about it was because it had been excluded from evidence. The court then

allowed the state to provide a limited response that explained that fact.
       {¶ 40} A party may open the door to otherwise inadmissible evidence by making

comments referencing evidence outside of the record. DiPasqua v. Knap (June 13,

1996), Cuyahoga App. No. 69998.           Both parties have latitude in responding to

arguments of opposing counsel. State v. Loza (1994), 71 Ohio St.3d 61, 78, 641 N.E.2d

1082. Comments made by defense counsel in closing arguments can open the door to a

response in the prosecutor’s rebuttal argument. See State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565 ¶217. It is a well settled imperative that during

closing arguments “the prosecution [must] avoid ‘insinuations and assertions which are

calculated to mislead the jury.’” State v. Smith at 14. There is no reason why this

principle would not apply with equal force to comments made by the defense during

closing arguments.

       {¶ 41} The limited response by the state did not disclose what, if any, criminal

record the defendant may have had but only explained that the law could exclude such

evidence in order to ensure a fair trial. This generalized statement did not invite the jury

to convict defendant on facts outside of the record.

       {¶ 42} Defendant’s claim of prosecutorial misconduct rests upon two comments

made by the state when comparing defendant’s testimony with the events depicted on the

videotape. First the state recalled defendant’s testimony that he drove his sister-in-law to

the deli and was not going to go inside but did in fact enter the store after her. The

prosecutor played the videotape, which showed defendant entering the store before his

sister-in-law. The prosecutor then said, “[l]ied to you from the beginning the very onset
of what he wants you to believe. The video clearly shows he went in there ahead of

time.” The prosecutor also commented on this discrepancy later by saying, “[defendant]

already tipped his hand by lying to you once by saying that he didn’t go into the store

first, that he had no intention of going into the store. I think that informs the rest of his

testimony.”

       {¶ 43} Generally referring to or alluding to a defendant as a liar is improper, in

that it conveys the prosecutor’s personal belief. State v. Clemons (1998), 82 Ohio St.3d

438, 696 N.E.2d 1009. However, the prosecutor’s characterization that a defendant is a

liar or is lying is proper if based upon the evidence at trial. State v. Tyler (1990), 50

Ohio St.3d 24, 553 N.E.2d 576.

       {¶ 44} Both instances cited by the defendant as prosecutorial misconduct relate to

the prosecutor commenting on the difference between defendant’s testimony as to when

he entered the store and what was shown on the videotape. The state did not call

defendant a “liar” but indicated that the tape reflected he lied in that instance.

Accordingly, both comments were based on evidence presented at trial and did not

constitute prosecutorial misconduct.

       {¶ 45} Defendant also asserts that the state improperly vouched for the credibility

of a witness. However, defendant does not cite to any part of the transcript where the

prosecutor did so. At most, the prosecutor stated that Waleed ,“while nervous and

maybe a little confused at times, is consistent in his testimony with the video.” This is

not improper vouching.
      {¶ 46} These assignments of error are overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
