[Cite as State v. Chopak, 2012-Ohio-1537.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96947


                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE
                                             vs.

                                  BOWEN C. CHOPAK
                                                   DEFENDANT-APPELLANT




                             JUDGMENT:
                 AFFIRMED IN PART; REVERSED IN PART


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-537925

        BEFORE: Keough, J., Stewart, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: April 5, 2012
ATTORNEY FOR APPELLANT

Timothy F. Sweeney
Law Office - Timothy Farrell Sweeney
The 820 Building, Suite 430
820 West Superior Avenue
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Alison Foy
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

         {¶1} Defendant-appellant, Bowen C. Chopak, appeals from the trial court’s

judgment, rendered after a bench trial, finding him guilty of aggravated menacing and

ethnic intimidation. For the reasons that follow, we affirm in part and reverse in part.

                             I. Facts and Procedural History

         {¶2} In June 2010, Chopak was indicted on one count of ethnic intimidation in

violation of R.C. 2927.12(A), a fifth degree felony, and one count of aggravated

menacing (the predicate offense for the ethnic intimidation charge) in violation of R.C.

2903.21, a first degree misdemeanor. He pled not guilty and waived his right to a jury

trial.

         {¶3} The state presented the testimony of four witnesses at trial: (1) Kimyatta

Fuller; (2) Daivon Fuller, the 16-year-old son of Kimyatta Fuller; (3) Antoinette Fuller,

the 14-year-old daughter of Kimyatta Fuller; and (4) Thomas Harrigan, a Cleveland

police officer. The defense presented the testimony of Chopak and his cousin, Kyle

Zadar.

         {¶4}   The evidence at trial demonstrated that this case arose out of a dispute

between neighbors residing on Daisy Avenue in Cleveland, Ohio. Chopak lived at 3716

Daisy Avenue with his cousin Zadar and Zadar’s girlfriend, Briana Kelly. Kimyatta

Fuller lived a few houses away at 3700 Daisy Avenue with her two children, Daivon and

Antoinette.     Chopak, Zadar, and Kelly are Caucasian; Fuller and her children are

African-American.
       {¶5} Chopak, Zadar, and Kelly lived in a house on the back lot of a two-house

lot. A metal chain-link fence over six feet tall separated the front lot from the back lot.

A woman named Alyssa Ferro lived in the house on the front lot.

       {¶6} Prior to May 16, 2010, when the incident giving rise to this case occurred,

there were several incidents that contributed to escalating tension between Fuller and

Chopak, Zadar, and Kelly. About three weeks before the events at issue, the police were

called to Fuller’s house because Fuller’s son Daivon, who is over six-feet tall and weighs

more than 210 pounds, had abused the family’s Rottweiler dog by slamming him into a

tree, punching him in the head, and then hitting him on the head with a baseball bat.

Several neighbors, including Chopak, witnessed this incident. Chopak testified that he

was fearful of the Fullers as a result of this incident and considered them to be violent.

       {¶7} Zadar testified that in another incident two weeks before May 16, 2010,

Fuller came to his house to complain that Kelly had been saying things about Fuller that

she did not like.   Zadar testified that Fuller told him, “[i]f you are going to talk s---, I

will send my sons over.” Zadar testified that a few minutes after Fuller left, three

African-American males came to his door and complained that he had disrespected Fuller.

 Zadar allegedly told them he did not care and shut the door. According to Zadar, he and

Kelly were subsequently verbally harassed by Fuller, her friend, and Daivon as they

walked past Fuller’s house.

       {¶8} Fuller testified that around dinner time on May 16, 2010, Daivon came

home and reported that he had passed Chopak on the sidewalk as he was walking the
family dog. Daivon told Fuller that Chopak had bumped him in the shoulder as he

walked past him but did not say “excuse me.” Daivon reported that he told Chopak

“excuse me, words in every language,”1 and Chopak responded, “watch where you are

f------ going.”

       {¶9} Fuller testified that she immediately called Ferro to ask if Chopak was at

her house, and upon learning that he was there, went to Ferro’s house with her neighbor

Amelia. Fuller and Amelia walked in the front door of the house and found Chopak and

Zadar eating dinner there.            Fuller then began questioning Chopak about the

shoulder-bumping incident with Daivon.

       {¶10} Fuller testified that Chopak ignored her at first, and then told her that he did

not want to talk to her. According to Fuller, Chopak became upset when she continued

to question him, threw his plate of food at the wall, and used obscenities at her. He then

got up from the table and walked out the back door of Ferro’s house toward his house.

Fuller admitted that instead of letting Chopak leave, she followed him out the back door

and continued to question him about the incident. According to Chopak, Fuller cursed

and harassed him as he walked away. Chopak testified that as he was walking toward his

house, Fuller slapped him on the back of his head so hard that it knocked off his baseball

cap and that as he bent down to pick it up, she told him, “I’ll kick your ass myself” and

called him a “racist cracker.”


        Although the transcript indicates that Daivon testified that he told Chopak “excuse me, words
       1


in every language,” the prosecutor averred to this court that Daivon testified he told Chopak, “excuse
me, works in every language.”
       {¶11} Chopak walked through the gate of the chain-link fence onto his lot and

closed the gate. Fuller remained on the other side of the fence but stood by the gate and

continued to verbally harangue Chopak. According to Fuller, Kelly then came out of the

back house and began using vulgar language and hurling racial slurs at her. Chopak then

pulled a small knife out of his pocket, stabbed it several times through the gate, and told

Fuller, “I will f------ kill you and slit your throat, you f------ n-----.”

       {¶12} Chopak testified that he pulled the knife because he felt threatened when he

saw four African-American males come from around the front of Ferro’s house and walk

into the backyard as he and Fuller were arguing at the fence. Fuller, along with Daivon

and Antoinette, who had heard the commotion and come down to see what was going on,

denied that there were any other males in the yard during the confrontation.

       {¶13} Eventually, Fuller’s friend Amelia pulled Fuller away from the fence and

persuaded her to go home. Shortly thereafter Fuller called the police and reported the

incident.

       {¶14} The trial court found Chopak guilty of both aggravated menacing and ethnic

intimidation. The court sentenced him to one year of community control sanctions on the

ethnic intimidation charge and to time already served in the county jail, six months, on the

aggravated menacing charge.

                    II. Sufficiency and Manifest Weight of the Evidence
       {¶15} In his first and third assignments of error, Chopak contends that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence.

       {¶16} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial.          State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. 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.

       {¶17} A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion.          State v. Ponce, 8th Dist. No. 91329,

2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). A reviewing court may reverse the judgment of conviction if it appears that 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.” Thompkins at 387. A finding that

a conviction was supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. Id. at 388.
       {¶18} Under R.C. 2903.21(A), governing aggravated menacing, “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 * * *.” Aggravated menacing does not require

that the offender be able to carry out his threat or even believe himself capable of carrying

it out; it is sufficient if the offender knowingly causes the victim to believe the offender

will carry his threat into execution.         State v. Walker, 8th Dist. No. 88694,

2007-Ohio-4047, ¶ 14, citing State v. Charlton, 11th Dist. No. 2006-T-0079,

2007-Ohio-2051, ¶ 12. The gist of the offense is the victim’s reasonable belief that

serious physical harm is about to befall him. Id. A person acts knowingly when he “is

aware that his conduct will probably cause a certain result or will probably be of a certain

nature.” R.C. 2901.22(B).

       {¶19} Chopak argues that his conviction for aggravated menacing is against the

manifest weight of the evidence because Fuller was the aggressor, and he pulled the knife

only because he feared for his safety due to her aggressive behavior. He also argues

there was no evidence that Fuller believed he would cause her serious physical harm.

Chopak’s arguments lack merit.

       {¶20} The evidence demonstrated that Chopak voluntarily pulled a knife from his

pocket and stabbed it several times through the fence at Fuller, who testified she was only

inches away from the knife, while threatening that he would slit her throat.            This

evidence is sufficient to demonstrate that Chopak knew that such conduct would cause
Fuller to believe that he would cause her serious physical harm, thereby satisfying the

“knowingly” element of the offense.

       {¶21} Furthermore, although Fuller testified on direct examination that “honestly

at the time, the knife wasn’t what I was worried about. It was what he was saying,” she

stated twice on cross-examination that when Chopak pulled the knife, she believed he

was going to hurt her.     Although we consider the credibility of the witnesses in a

manifest weight challenge, we are mindful that the determination regarding witness

credibility rests primarily with the trier of fact because the trier of fact is in the best

position to view the witnesses and observe their demeanor, gestures, and voice

inflections, observations that are critical to determining a witness’s credibility. State v.

Clark, 8th Dist. No. 94050, 2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195,

205, 661 N.E.2d 1068 (1996) and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d 548

(1964). Furthermore, a jury is free to accept or reject any or all the testimony of any

witness. State v. Smith, 8th Dist. No. 93593, 2010-Ohio-4006, ¶ 16. Upon review, we

do not find that the trial court lost its way or created a miscarriage of justice in finding

that Fuller believed that Chopak would cause her serious physical harm.

       {¶22} Accordingly, we find that Chopak’s conviction for aggravated menacing is

supported by the manifest weight of the evidence; thus, it is also supported by sufficient

evidence. His conviction for aggravated menacing is therefore affirmed.

       {¶23} With respect to the ethnic intimidation count, R.C. 2927.12 provides that

“[n]o person shall violate section 2903.21 * * * by reason of the race, color, religion, or
national origin of another person or group of persons.” Hence, “the crime of ethnic

intimidation occurs when a person commits a specified predicate offense by reason of

race, color, religion, or national origin.” State v. Wisniewski, 8th Dist. No. 77152, 2000

WL 1689714 (Nov. 9, 2000) (emphasis added).

       {¶24} We find insufficient evidence in this record that Chopak threatened Fuller

with a knife because of her race. There is simply no evidence in this record that Chopak

selected Fuller as his victim because she is African-American, nor is there any evidence

that his menacing acts were taken because of her race.             Rather, the evidence

demonstrates that Chopak’s actions were taken in response to Fuller’s refusal to back

away from a confrontation that she instigated by confronting him in Ferro’s house, and

then escalated by following him out of the house and haranguing him as he walked away.

 It would not be unreasonable for anyone to react in anger to such confrontational

conduct. And although Chopak’s use of the “N word” was offensive, “repugnant or

obnoxious language does not, in itself, demonstrate than an action was undertaken ‘by

reason of the victim’s race.’” State v. Kingery, 2d Dist. No. 24063, 2012-Ohio-505, ¶ 20.

 Here, it is apparent that the threats Chopak made were prompted by Fuller’s conduct and

not “by reason of” her race.

       {¶25} The State’s reliance on State v. Sura, 8th Dist. No. 85309, 2005-Ohio-3838,

is not persuasive. In Sura, this court found that the defendant’s conviction for ethnic

intimidation was not against the manifest weight of the evidence where shortly after an

African-American family moved into an all-white neighborhood, the defendant poured
gas and weed killer on the family’s lawn, threatened to throw a brick at two members of

the family, and made numerous derogatory racial remarks to the family over a period of

several months. Unlike this case, there was no evidence in Sura that the defendant’s

conduct was provoked and it was clear the defendant’s action were initiated because of

the family’s race.

        {¶26} Viewing the evidence in a light most favorable to the prosecution, we find

insufficient evidence to indicate that Chopak’s menacing actions occurred because of

Fuller’s race. Accordingly, the trial court erred in denying his Crim.R. 29 motion for

acquittal on this count.      Chopak’s conviction for ethnic intimidation is therefore

reversed.

        {¶27} Assignments of error one and three are sustained in part and overruled in

part.

                                     III. Self-Defense

        {¶28} In his second assignment of error, Chopak argues that the trial court erred in

denying his Crim.R. 29 motion for acquittal on the aggravated menacing count because he

proved he acted in self-defense.

        {¶29} Self-defense is an affirmative defense to a charge of aggravated menacing.

State v. Ludt, 180 Ohio App.3d 672, 2009-Ohio-416, 906 N.E.2d 1182, ¶ 21 (7th Dist.).

To establish self-defense, the defendant must prove that he (1) was not at fault in creating

the situation, (2) had a bona fide belief that he was in imminent danger of death or great
bodily harm and that the only means of escape was the use of force, and (3) did not

violate any duty to retreat or avoid the danger. Id.

       {¶30} Here, the evidence regarding the second prong, i.e., whether Chopak had a

bona fide belief that he was in imminent danger of great bodily harm, was disputed.

Chopak testified that he pulled out the knife when he saw four African-American males

come around the front of Ferro’s house and into the backyard where he was arguing with

Fuller. He testified that he feared for his safety because Fuller told him that “my people

are here to jump [you]. They are going to f--- these crackers up.” But Fuller, Daivon,

and Antoinette all denied these alleged four males ever came into the backyard during the

confrontation.

       {¶31} Faced with such conflicting testimony, the trial court, as the finder of fact,

had the responsibility to determine credibility.       Given the discrepancy between the

testimony, the trial court did not err in determining that Chopak’s testimony regarding the

males was not credible and, therefore, that he did not establish a bona fide belief that he

was in imminent danger of great bodily harm or death. Accordingly, the trial court did not

err in denying Chopak’s Crim.R. 29 motion for acquittal on this basis. The second

assignment of error is therefore overruled.

       {¶32} Affirmed in part and reversed in part; remanded for the trial court to enter an

order vacating Chopak’s conviction for ethnic intimidation.

       It is ordered that the parties share equally the 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.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
MARY EILEEN KILBANE, J., CONCUR
