[Cite as State v. Wimley, 2011-Ohio-5639.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       25588

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DARREN A. WIMLEY                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 09 09 2815

                                 DECISION AND JOURNAL ENTRY

Dated: November 2, 2011



        MOORE, Judge.

        {¶1}     Defendant, Darren A. Wimley, appeals from his conviction for intimidation of a

crime witness in the Summit County Court of Common Pleas. For the reasons set forth below,

we reverse as to this count only and remand to that court for further proceedings.

                                                I.

        {¶2}     Wimley had an approximate three-year relationship with Tammy Fogg. Problems

arose during the relationship, and Fogg obtained a restraining order against Wimley. In February

of 2009, Wimley was incarcerated, but, despite the restraining order, Fogg continued to contact

him. On June 8, 2009, Fogg learned of an alleged incident involving her daughter and Wimley,

which she subsequently reported to law enforcement. Thereafter, Wimley sent letters to Fogg’s

mother and allegedly left messages on Fogg’s and her mother’s answering machines. Fogg

interpreted the contents of these communications as threats against her.
                                                2


       {¶3}    Wimley was indicted on, and found guilty of, one count of intimidation of a crime

witness in violation of R.C. 2921.04(B), one count of menacing by stalking in violation of R.C.

2903.211(A)(1), and one count of violating a protection order in violation of R.C. 2919.27. The

trial court sentenced Wimley to three years on the intimidation of a crime witness count, six

months on the menacing by stalking count, and six months on the violation of a protection order

count, to run concurrently.

       {¶4}    Wimley timely appealed his conviction for intimidation of a crime witness and

raises two assignments of error for review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIMINAL
       RULE 29 MOTION FOR ACQUI[T]TAL, AS THERE WAS INSUFFICIENT
       EVIDENCE AS A MATTER OF LAW (SPECIFICALLY NO UNDERLYING
       CRIMINAL ACTION OR PROCEEDING) TO SUSTAIN A CONVICTION
       FOR INTIMIDATION OF A CRIME WITNESS UNDER R.C. § 2921.04(B)”

                                ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIMINAL
       RULE 29 MOTION FOR ACQUI[T]TAL, AS THERE WAS INSUFFICIENT
       EVIDENCE AS A MATTER OF LAW (SPECIFICALLY NO THREAT OF
       HARM TO INFLUENCE A WITNESS) TO SUSTAIN A CONVICTION FOR
       INTIMIDATION OF CRIME WITNESS UNDER R.C. § 2921.04(B).”

       {¶5}    In his first and second assignments of error, Wimley argues that his conviction for

intimidation of a crime witness was not supported by sufficient evidence.         We agree. An

evaluation of the sufficiency of the evidence in regard to Wimley’s first assignment of error is

dispositive of the second assignment of error as well.

       {¶6}    Crim.R. 29(A) provides that the trial court “shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction” of an offense charged. The
                                                3


issue of whether a conviction is supported by sufficient evidence is a question of law, reviewed

de novo. State v. Thompkins (1997), 78 Ohio St.3d 380, 386.

       {¶7}   When considering a challenge to the sufficiency of the evidence, the court must

determine whether the prosecution has met its burden of production. Id. at 390 (Cook, J.

concurring). In making this determination, an appellate court must view the evidence in the light

most favorable to the prosecution:

       “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. Jenks (1991), 61 Ohio St.3d 259,
       paragraph two of the syllabus.

       {¶8}   Wimley was convicted of intimidating a crime witness, in violation of R.C.

2921.04(B) which provides,

       “No 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.”

       {¶9}   A violation of R.C. 2921.04(B) is a felony of the third degree. R.C. 2921.04(D).

R.C. 2921.04(A) also prohibits the intimidation of crime witnesses. However, a violation of

R.C. 2921.04(A) is a first degree misdemeanor, as it contains no requirement that the

intimidation be perpetuated through “force or by unlawful threat of harm[.]” R.C. 2921.04(A)-

(D).

       {¶10} The purpose underlying witness intimidation statutes is to prevent serious harm to

the administration of justice by aiming “to protect those people who saw, heard or otherwise

knew, or were supposed to know, material facts about the criminal proceeding.” See State v.
                                                4


Rivera-Rodriguez, 9th Dist. Nos. 07CA009154, 07CA009166, 2008-Ohio-1461, at ¶24,

(discussing policy underlying similar intimidation statute, R.C. 2921.03(A)), quoting State v.

Crider (1984), 21 Ohio App.3d 268, 269; see also State v. Malone, 121 Ohio St.3d 244, 2009-

Ohio-310, at ¶27 (“[W]e acknowledge that the intimidation of witnesses, whether immediately

after the commission of a criminal act or after charges have been filed, should not be

countenanced and does real harm to the administration of justice.”).

       {¶11} However, R.C. 2921.04(B), which applies to a victim upon commencement of the

commission of a crime, does not apply to a witness until the witness is “involved in a criminal

action or proceeding.” Malone at ¶19-20. The statute does not define “a criminal action or

proceeding.”   Id. at ¶15.    In Malone, the Ohio Supreme Court addressed that phrase in

application to a situation where a defendant was convicted of violating R.C. 2921.04(B) for

allegedly threatening a witness prior to the report of the underlying crime to police. Id. at ¶7.

After reviewing the usage of the phrase and resulting interpretations throughout “Ohio’s

statutory scheme and in th[e C]ourt’s case law,” the Court determined that “a ‘criminal action or

proceeding’ implies a formal process involving a court.” Id. at ¶15-18. Therefore the Court

concluded that the State had provided insufficient evidence to support the appellant’s conviction,

as no “formal process involving a court” had commenced prior to the alleged threats. Id. at ¶18,

30.

       {¶12} Similarly, here, Wimley argues that the State failed to produce sufficient evidence

of an underlying “criminal action or proceeding.” In support, Wimley cites the Malone Court’s

interpretation of that phrase. Based upon that interpretation, Wimley argues that the State failed

to produce proof that a “formal process involving a court” had commenced prior to the alleged

threats made in late June through August of 2009.
                                                5


       {¶13} In support of the existence of an underlying criminal action or proceeding, at trial,

the State produced the testimony of Fogg, Fogg’s mother, and Officer Michelle Porter. Fogg

testified that in June, 2009, she contacted law enforcement because of “some circumstances

involving [her] daughter.” On June 25, 2009, she stated that she spoke with Officer Porter about

her concerns. Thereafter, when Wimley allegedly left threatening telephone messages for Fogg,

Fogg believed that a criminal investigation involving Wimley was underway. Fogg’s mother

testified that she was aware that her daughter had contacted police regarding an incident

involving Wimley and Fogg’s daughter.

       {¶14} Officer Porter testified that Fogg filed a police report relative to the allegations

“regarding [ ] Wimley and a minor child” on June 8, 2009. A few days after the report was filed,

she spoke with Fogg, and then she went to the jail and spoke with Wimley.

       {¶15} Further, the State presented two letters from Wimley. In the letters, Wimley

confirms the fact that he was interviewed by detectives in June. This evidence, viewed in the

light most favorable to the State, and drawing reasonable inferences therefrom, indicates that a

police investigation as to an underlying alleged crime involving Wimley and Fogg’s daughter

was underway beginning with a police report made in June, 2009. It cannot be discerned from

the record if or when a formal process involving a court developed from the investigation to

which Fogg, her mother, and Officer Porter alluded.

       {¶16} In its response, the State draws upon the holding in Malone that “when no crime

has been reported and no investigation or prosecution has been initiated, a witness is not

‘involved in a criminal action or proceeding’ for purposes of R.C. 2921.04(B).” Id. at ¶30.

Thus, the State maintains that there was a “criminal action or proceeding” underway at the time

of the alleged threats because “the record shows that a crime had been reported and an
                                                6


investigation had been initiated.” The State apparently interprets the above quoted language

from Malone to conversely hold that where a crime has been reported and an investigation or

prosecution has been initiated, a witness is involved in a criminal action or proceeding. We

disagree with this interpretation.

       {¶17} In Malone, the Court was presented with a situation where the intimidation

occurred pre-report/-investigation. See id. at ¶7-9. However, a ruling upon the particular facts

before the Court preliminarily required a determination as to what constitutes a “criminal action

or proceeding” for the purposes of R.C. 2921.04(B).            The Malone Court concluded “a

conviction for intimidation of a witness under R.C. 2921.04(B) is not sustainable when the

intimidation occurred after the criminal act but prior to any proceedings flowing from the

criminal act in a court of justice.” (Emphasis added.) Id. at ¶10; see also State v. Davis, 193

Ohio App.3d 130, 2011-Ohio-1280, at ¶29 (finding that pursuant to Malone an investigation by

itself does not constitute a criminal action or proceeding) appeal allowed 129 Ohio St.3d 1449,

2011-Ohio-4217. The Malone Court’s references to pre-report/-investigation situations correlate

to the fact pattern and certified question before it. See Malone at ¶1 (“The only issue that we

address today is whether R.C. 2921.04(B), a witness-intimidation statute, applies to threats made

before any police investigation or legal proceeding has commenced in a case.”); id. at ¶7-9; id. at

¶30 (“[W]e hold that when no crime has been reported and no investigation or prosecution has

been initiated, a witness is not ‘involved in a criminal action or proceeding’ for purposes of R.C.

2921.04(B).”). However, the definition of a “criminal action or proceeding” that the Court

provided compels the requirement of evidence as to an underlying proceeding in a court of

justice to sustain a conviction under R.C 2921.04(B).
                                                7


       {¶18} Therefore, as the record contains no evidence of “any proceedings flowing from

the criminal act in a court of justice,” we find that the State failed to prove the element of

“criminal action or proceeding” to support a conviction under R.C. 2921.04(B). See Malone at

¶10.

       {¶19} Lastly, as the Supreme Court noted Malone, “[W]e acknowledge that the

intimidation of witnesses, whether immediately after the commission of a criminal act or after

charges have been filed, should not be countenanced and does real harm to the administration of

justice. Ohio’s statutory scheme does protect a witness in a potential criminal action from the

threats of a perpetrator; it simply does not do so through R.C. 2921.04.” Malone at ¶27. Thus,

in the present case, although Wimley’s conviction for violating R.C. 2921.04 cannot stand due to

insufficient evidence of a pending “criminal action or proceeding,” Wimley’s alleged threats

could have formed the basis for other charges. For example, in Malone, the Supreme Court

pointed out that “[t]he intimidation that occurred in th[at] case could fall under Ohio’s

aggravated-menacing statute, R.C. 2903.21, which states: ‘(A) 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, the other person’s unborn, or a member of the other person’s immediate family.

(B) Whoever violates this section is guilty of aggravated menacing.         Except as otherwise

provided in this division, aggravated menacing is a misdemeanor of the first degree.’” Malone at

¶27-29.

       {¶20} Accordingly, Wimley’s first assignment of error is sustained.           Due to our

disposition of his first assignment of error, Wimley’s second assignment of error is rendered

moot. See App.R. 12(A)(1)(c).
                                                 8


                                                III.

       {¶21} Wimley’s first assignment of error is sustained. This Court declines to address his

second assignment of error, as it is rendered moot. The judgment of the Summit County Court of

Common Pleas is reversed as to count one only and this cause is remanded to that court for

further proceedings in accordance with law and consistent with this opinion.

                                                                        Judgment reversed in part,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT


WHITMORE, J.
CONCURS
                                               9



CARR, P. J.
CONCURS, SAYING:

       {¶22} I concur in the majority’s judgment. I agree that there was insufficient evidence

to support a conviction for intimidating a crime witness in violation of R.C. 2921.04(B). I write

separately to note that Wimley’s alleged threats might, however, have formed the basis for a

charge of intimidation pursuant to R.C. 2921.03(A), which provides that “[n]o person, *** by

unlawful threat of harm to any person or property, *** shall attempt to influence, intimidate, or

hinder a *** witness in the discharge of the person’s duty.” This Court affirmed the conviction

of a defendant charged with a violation of R.C. 2921.03(A) where the man had made a motion

underneath his throat and pointed to witnesses at the scene of his arrest. State v. Rivera-

Rodriguez, 9th Dist. Nos. 07CA009154, 07CA009166, 2008-Ohio-1461. Wimley’s letters and

telephone messages to Fogg and her mother in light of Fogg’s complaint to law enforcement

about the incident between Wimley and Fogg’s daughter might have supported a charge of

intimidation in violation of R.C. 2921.03(A) as we recognized the application of that statute in

Rivera-Rodriguez.



APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
