[Cite as State v. Harbold, 2011-Ohio-5425.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




THE STATE OF OHIO                             :   JUDGES:
                                              :   Hon. William B. Hoffman, P.J.
     Plaintiff-Appellee                       :   Hon. Sheila G. Farmer, J
                                              :   Hon. Julie A. Edwards, J.
v.                                            :
                                              :
MICHAEL S. HARBOLD                            :   Case No. 11-CA-5
                                              :
     Defendant-Appellant                      :   OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Municiapl Court, Case
                                                  No. CRB 1100057



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 October 20, 2011




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JAMES R. SKELTON                                  MARK A. PERLAKY
760 Chestnut Street                               111 West Main Street
Coshocton, OH 43812                               Newcomerstown, OH 43832


Farmer, J.
       {¶ 1} On January 27, 2011, appellant, Michael Harbold, was charged with one

count of aggravated menacing in violation of R.C. 2903.21. Said charge arose from an

incident between appellant and his neighbors, Richard and Tracy McCormick, over

appellant's dog trespassing on the McCormicks' property.

       {¶ 2} A bench trial commenced on March 30, 2011. By judgment entry filed

same date, the trial court found appellant guilty and sentenced him to ten days in jail.

       {¶ 3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶ 4} "THE DECISION OF THE TRIAL COURT ADJUDICATING APPELLANT

GUILTY OF THE CHARGE OF AGGRAVATED MENACING WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED."

                                             I

       {¶ 5} Appellant claims his conviction of aggravated menacing was against the

manifest weight of the evidence. We disagree.

       {¶ 6} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.
       {¶ 7} Appellant was convicted of aggravated menacing in violation of R.C.

2903.21(A) which states, "[n]o 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."

       {¶ 8} Appellant argues insufficient evidence was presented that he knowingly

caused the complainant, Mr. McCormick, to believe he would cause serious physical

harm to his person or property or his immediate family.          Appellant concedes Mr.

McCormick's wife, Tracy McCormick, testified she believed appellant would cause her

serious physical harm, and has been scared every day since the incident. T. at 27, 29.

However, appellant argues Mr. McCormick's testimony was inconsistent as to whether

he believed appellant was actually going to shoot him. Appellant argues because of

these inconsistencies, the state did not meet its requisite burden of proof.

       {¶ 9} The incident occurred because of a long-standing controversy concerning

appellant's dog trespassing on the McCormick property and jumping at the McCormicks'

horse. T. at 6. When Mr. McCormick encountered appellant's dog on his property, Mr.

McCormick fired a warning shot at the dog which prompted appellant to come out with a

rifle in his hand. T. at 7. Appellant shouted that he was going to shoot the McCormicks

and burn down their house.        T. at 7-8.   Mrs. McCormick was present when the

statement was made. T. at 9. Mr. McCormick admitted he did not fear for himself. T. at

14. When questioned by the trial court, Mr. McCormick explicitly stated, "[t]he gun was

pointed at both me and my wife and we was both threatened by it." T. at 23. When

asked if he thought appellant was going to shoot him, Mr. McCormick stated, "[n]ot
really. I had my doubts, but he shouldn't have pointed the gun anyway." Id. The state

then followed up the trial court's questions:

       {¶ 10} "Q. So, Mr. McCormick, did you believe the Defendant could cause you

serious physical harm with that gun?

       {¶ 11} "A. Oh, definitely." T. at 24.

       {¶ 12} On re-cross, the following exchange occurred between defense counsel

and Mr. McCormick:

       {¶ 13} "Q. But your testimony, Mr. McCormick, was you didn't necessarily believe

Mr. Harbold would shoot the rifle at you?

       {¶ 14} "A. My main concern was keeping the rifle basically aimed and pointed at

me so much as my wife. If any of the two of us would have been shot in my driveway it

would have been me. As far as can I say whether he'd have pulled the trigger or not,

who knows what goes on in another man's brain."

       {¶ 15} "Q. All right.

       {¶ 16} "A. The possibility stands I still could have been shot in my driveway plain

and simple, and I don't want shot in my driveway." T. at 26.

       {¶ 17} Mrs. McCormick opined, "[i]f he was gonna to shoot us, he was gonna

have to shoot both of us." T. at 32-33.

       {¶ 18} Upon review, we find sufficient evidence was presented that appellant's

words and brandishing of the rifle established the threat of serious physical harm. We

find no manifest miscarriage of justice.

       {¶ 19} The sole assignment of error is denied.
      {¶ 20} The judgment of the Municipal Court of Coshocton County, Ohio is hereby

affirmed.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                         s / Sheila G. Farmer__________________



                                         s / William B. Hoffman_________________



                                         s / Julie A. Edwards___________________

                                                       JUDGES
SGF/sg 920IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
MICHAEL S. HARBOLD                      :
                                        :
       Defendant-Appellant              :        CASE NO. 11-CA-5




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Coshocton County, Ohio is affirmed.   Costs to

appellant.




                                        s / Sheila G. Farmer__________________



                                        s / William B. Hoffman_________________



                                        s / Julie A. Edwards___________________

                                              JUDGES
