[Cite as State v. Kingery, 2012-Ohio-505.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO.     24063

v.                                                   :        T.C. NO.    09CRB11732

CHRISTINA KINGERY                                    :        (Criminal appeal from
                                                               Municipal Court)
        Defendant-Appellant                   :

                                                     :

                                             ..........

                                             OPINION

                          Rendered on the     10th   day of    February   , 2012.

                                             ..........

STEPHANIE L. COOK, Atty. Reg. No. 0067101, Chief Prosecutor, City of Dayton, 335 W.
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JOHN J. SCACCIA, Atty. Reg. No. 0022217, 536 West Central Avenue, 2nd Floor,
Springboro, Ohio 45066
       Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

        {¶ 1} Christina Kingery was found guilty following a bench trial in the Dayton

Municipal Court of menacing and ethnic intimidation. She was sentenced to thirty days in

jail for menacing, with all of the jail time suspended, and to sixty days for ethnic
                                                                                         2

intimidation. She appeals from her conviction. Her sentence was stayed while this appeal

was pending.

       {¶ 2} In the afternoon of October 8, 2009, Kingery, her husband, and their dog

were on the porch of their house at 300 Edgar Street in Dayton when the mail carrier,

Laderek Brown, approached.      Brown was not the regular carrier on the route.        The

Kingerys’ mailbox was located on the front of the house. As Brown approached the house,

the Kingerys’ dog ran toward him, barking. The parties dispute whether the Kingerys made

any effort to restrain the dog, but Brown sprayed the dog in the face with “dog repellant,”

which had been provided to him by the postal service.

       {¶ 3} The Kingerys were very upset that Brown sprayed their dog. According to

Brown and one of the neighbors, Christina Kingery (“Kingery”), who is Caucasian, shouted

profanities and racial slurs at Brown, who is African-American, told him to go back to

Africa or back to the west side (of Dayton), and threatened to “woop his ass.” The neighbor

called the police, and Brown decided not to deliver the mail on the rest of the Kingerys’

block. Kingery was subsequently charged with menacing and ethnic intimidation.1

       {¶ 4} At trial, Brown and the Kingerys’ neighbor, Maria Wolff, testified for the

State; Mr. Kingery testified for the defense. The trial court found Kingery guilty of both

offenses and sentenced her as discussed above.

       {¶ 5} Kingery raises two assignments of error on appeal, which we will discuss


          1
          Kingery’s husband was also involved in the incident and was charged
  with menacing and ethnic intimidation. He pled guilty to ethnic intimidation, in
  exchange for which the charge of menacing was dropped, and was sentenced to
  a sixty-day suspended jail term. Dayton M.C. No. 09CRB11733.
                                                                                             3

together.

       {¶ 6} I.     “THE CONVICTION FOR MENACING WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶ 7} II.      “THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A

CONVICTION.”

       {¶ 8} Kingery contends that her convictions were supported by insufficient

evidence and were against the manifest weight of the evidence.

       {¶ 9} An argument based on the sufficiency of the evidence challenges whether the

State presented adequate evidence on each element of the offense to allow the case to go to

the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1999). “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.” State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 10} In contrast, when reviewing a judgment under a manifest-weight standard of

review, the court “review[s] the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines 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. The

discretionary power to grant a new trial should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction.’” Thompkins at 387, quoting
                                                                                                                                   4

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).

         {¶ 11} Menacing is defined as “knowingly caus[ing] another to believe that the

offender will cause physical harm to the person or property of the other person * * *.” R.C.

2903.22(A). Whether a threat sufficient to invoke a charge of menacing has been made is a

question of fact to be determined by the trier of fact. State v. Kerr, 2d Dist. Montgomery

No. 15648, 1996 WL 629515, *3 (Nov. 1, 1996).

         {¶ 12} Ethnic intimidation is defined as committing any of the enumerated offenses,

including menacing, “by reason of the race, color, religion, or national origin of another

person or group of persons.”                R.C. 2927.12(A).

         {¶ 13} At trial, Brown testified that he was confronted by the Kingerys’ dog before

he reached their porch, and that the dog was “very aggressive” as it came off the porch, was

barking, and was not on a leash.                     Brown had been bitten by dogs previously, and he

believed that he was going to be attacked by the Kingerys’ dog. He testified that he asked

the Kingerys to restrain their dog, but they did not.

         {¶ 14} Brown stated that Kingery became very upset and belligerent after he sprayed

the dog with repellant. She called him a “n*****,” told him to go back to Africa, told him

to go back to the west side of the city, and said “that’s why I called you a n***** because

you do things like that (spraying the dog).”2 Brown testified that Kingery also threatened

“wooping his ass.” Brown said that he felt threatened by these comments and by Kingery’s

screaming and shouting, and that he retreated from the house, believing that Kingery might


             2
               Because our opinions are widely available online, we have chosen to insert asterisks into certain offensive words that
   appear in the transcript of this case and in other cases.
                                                                                           5

cause him physical harm.      Brown also said that he did not deliver mail to the rest of the

Kingerys’ block that day.

       {¶ 15} Wolff, who lived next door to the Kingerys but did not know them

personally, testified that she heard a man and woman yelling loudly at around 2:20 on the

afternoon of October 8, 2009, although she was in her house with the doors and windows

closed. When she investigated, she saw the Kingerys yelling at the mail carrier; Kingery

was on the porch of the Kingerys’ house, and her husband was at the fence. According to

Wolff, Kingery called Brown a “f***ing n***** on and on and you just need to go back to

the west side where you came from and just calling him a f***ing n***** over and over and

over.” Wolff also heard Kingery say “she would come kick [Brown’s] ass but she did not

feel like going to f***ing jail that day.”      Brown did not say anything in response.

Kingery’s husband was also yelling at Brown. Wolff called her own husband, who was also

a mail carrier, to ask what she should do; on his advice, she called the police, but the

Kingerys left before the police arrived.

       {¶ 16} Kingery’s husband, Michael, testified that their yellow Labrador retriever

“puppy” was “very small,” approximately 20-30 pounds and two feet high. He also testified

that Kingery was reaching out to pick up the dog when Brown sprayed the animal.

According to Michael, Kingery’s only response to Brown was “I can’t believe you f***ing

did that. What is wrong with you?,” then she started to cry, went in the house, and never

came back out. He denied hearing his wife call Brown a “n*****.” Michael claimed that

he was very angry and confronted Brown to demand an explanation. Michael admitted to

“harassing” and “menacing” Brown himself, including following him up the street, but
                                                                                            6

claimed that his wife had not been involved.

         {¶ 17} With respect to the menacing charge, Kingery contends that the State failed to

prove that Brown actually believed she would harm him. But Brown expressly testified that

he believed he was in danger of physical harm from Kingery and felt threatened.

Furthermore, Brown backed away from the house, did not verbally engage with the

Kingerys, and did not deliver mail to the rest of their block. Based on Brown’s statement

that he felt threatened and the other testimony about his actions in response to Kingery’s

behavior, there was sufficient basis for the court to conclude that Brown had believed

Kingery would cause him physical harm.

         {¶ 18} Kingery also claims that the State failed to present sufficient evidence that

she acted knowingly.      To act knowingly, one must be “aware that [her] conduct will

probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22(B).

In her brief, Kingery claims that her response to the “macing” of her dog was “emotional,

not intentional or knowingly.” However, the State’s evidence, including Kingery’s yelling

that she would “woop his ass” while spewing racial epithets in close physical proximity to

Brown, if believed, was sufficient to convince the average mind that Kingery knowingly

threatened Brown and that Brown believed he was in jeopardy of physical harm. The court

could have reasonably concluded that Kingery had knowingly threatened or intimidated

Brown.

         {¶ 19} Kingery further contends that there was insufficient evidence that “[t]his was

* * * an attack * * * perpetrated because the man was African-American ” to support her

conviction for ethnic intimidation. She again characterizes her outburst as “emotional,” but
                                                                                                                                   7

asserts that it was not related to Brown’s race or color.

         {¶ 20} Although Kingery used racial slurs in yelling at Brown about his treatment of

her dog, the State presented no evidence to suggest that her reaction would have been less

vituperative if a non-African-American mail carrier had sprayed the dog (although the

particular hate words might have been different). It was Kingery’s perceived treatment of

her dog, not the race of the mail carrier, that triggered the outburst. Kingery chose to use

racial abuse in expressing her anger, but the choice of repugnant or obnoxious language does

not, in itself, demonstrate that an action was undertaken “by reason of the victim’s race.”

         {¶ 21} The United States Supreme Court has held that selecting a victim based on

race, color, religion, and the like falls outside of the range of conduct that the First

Amendment protects. Wisconsin v. Mitchell, 508 U.S. 476, 487, 133 S.Ct. 2194, 124

L.Ed.2d 436 (1993).3              Ethnic intimidation statutes proscribe conduct (rather than speech)

that is not protected under the First Amendment. Dayton v. Smith, 68 Ohio Misc.2d 20, 646

N.E.2d 917 (Dayton Mun. 1994), citing Mitchell; In re M.J.M., 858 A.2d 1259 (Pa.Super.

2004),     citing Mitchell.           Thus, Kingery’s words alone could not have established the

offense of ethnic intimidation.

         {¶ 22} Kingery cites several ethnic intimidation cases which make the point that the

racial motivation constituting such an offense goes beyond mere words. See, e.g., In re

McDonald, 11th Dist. Lake No. 2006-L-027, 2007-Ohio-027 (where a package resembling a

bomb was delivered to the only African-American family in a neighborhood, as they were in


             3
                Also, the Court recently reaffirmed that insulting and even outrageous speech must be tolerated “to provide adequate
   ‘breathing space’ to the freedoms protected by the First Amendment.” Snyder v. Phelps (2011),                   U.S.         , 131
   S.Ct. 1207, 1219, 179 L.Ed.2d 172, citing Boos v. Barry (1988), 485 U.S. 312, 322, 108 S.Ct. 1157, 99 L.Ed.2d 333.
                                                                                              8

the process of moving in, addressed “to the N******” and from “your friends the K.K.K.”);

State v. Grays, 12th Dist. Butler No. CA2005-07-187, 2006-Ohio-2246 (where a cross was

burned in the yard of an African-American woman). In these cases, the defendant exhibited

a racial animus directly tied to and as a motivating factor in the underlying offense. No

such evidence was presented against Kingery.           There was no basis to conclude that

Kingery’s reaction to the spraying of her dog would have been more civilized or less

“emotional” if the mail carrier had not been African American. Thus, Kingery’s conviction

for ethnic intimidation was supported by insufficient evidence.

       {¶ 23} Kingery’s assignments of error are overruled to the extent that they challenge

her conviction for menacing.       Her assignments are sustained to the extent that they

challenge her conviction for ethnic intimidation.

       {¶ 24} Kingery’s conviction for menacing will be affirmed; her conviction for ethnic

intimidation will be vacated.

                                         ..........

FAIN, J., concurs.

HALL, J., concurring in part and dissenting in part:

       {¶ 25} I agree with the majority that the defendant’s conviction for menacing was

not against the manifest weight of the evidence and I would affirm that conviction.

       {¶ 26} I disagree with the majority’s conclusion that there was insufficient evidence

to support the offense of ethnic intimidation. In my view, the evidence of defendant’s

vitriolic response, laced with racial slurs and profanity, was sufficient for the trial court to

infer that racial animus was the motivating factor in the defendant’s threats. I would affirm
                                                       9

the conviction for ethnic intimidation.

                                          ..........

Copies mailed to:

Stephanie L. Cook
John J. Scaccia
Hon. Daniel G. Gehres
