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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

INTIMIDATION (163)

Also see Bribery.

 

R.C. 2905.12 -- Coercion

R.C. 2921.03 -- Intimidation.

R.C. 2921.04 -- Intimidation attorney, victim or witness in criminal case.

R.C. 2921.05 -- Retaliation

R.C. 2921.44(C)(3) -- Dereliction of duty for law enforcement officer to negligently prevent intimidation of a

prisoner.

R.C. 2927.12 -- Ethnic intimidation.

Columbus City Code Sec. 2325.08.

State v. Malone, 121 Ohio St. 3d 244, 2009-Ohio-310 – A charge of witness intimidation pursuant to R.C. 2921.04(B) must be premised upon threats made after a police investigation or legal proceeding has commenced.

State v. Simons, 193 Ohio App. 3d 784, 2011-Ohio-2071 – Threatening message was left on a cell phone following the time criminal activity was reported to the police, but before charges were filed or indicted or court proceedings initiated. Intimidation of a witness count was not sustainable. Also see State v. Davis, 193 Ohio App. 3d 130, 2011-Ohio-1280; State v. Gooden, Cuyahoga App. No. 82621, 2004-Ohio-2699.

State v. Fairbanks, 172 Ohio App. 3d 766, 2007-Ohio-4117 -- Defendant threatened harm to codefendants if they cooperated with the police. For purposes of R.C. 2921.04 the codefendants were witnesses.

Virginia v. Black (2003), 123 S.Ct. 1536 -- Statute banning burning a cross with the intent to intimidate does not violate the First Amendment. The First Amendment does not prohibit all forms of content-based discrimination within a proscribable area of speech. Court cites the history of cross burning as a particularly virulent form of intimidation. Case remanded for further consideration of the constitutionality of an instruction to the effect that burning a cross is prima facie evidence of an intent to intimidate.

State v. Williams (1999), 104 Ohio Misc. 2d 27 -- Prosecutor threatened to have defendant indicted if he didn't plead guilty to misdemeanor. Defense counsel passed on client's refusal. Prosecutor obtained an indictment. Defense counsel filed a complaint charging prosecutor with coercion in violation of R.C. 2905.12(A)(4). Complaint dismissed. Prosecutor had immunity pursuant to Division (B) of the coercion statute.

Apprendi v. New Jersey (2000), 120 S.Ct. 2348 -- Under New Jersey law, an increased penalty could be imposed if an offense was racially motivated, this being a matter to be determined by the court and not the jury, and subject to the preponderance standard. Held that except for prior convictions, any fact which increases the penalty for a crime beyond the statutory maximum must be charged and proved beyond a reasonable doubt at trial.

State v. Farthing, 146 Ohio App. 3d 720, 2001-Ohio-7077 -- Defendant was convicted of retaliation based on sexually suggestive statements about his parole officer. (1) Defendant was apparently on parole in Greene County, but the APA did not maintain a local office, and the P.O. worked out of another county. Statements leading to charges were made at a prison in Pickaway County. Greene County was not the proper venue for trial of a retaliation charge. (2) Retaliation does not require proof that the threat of harm was communicated to the person threatened, but the state must show an awareness the threats would be communicated or a reasonable expectation this would be done.

State v. Bowshier, 167 Ohio App. 3d 87, 2006-Ohio-2822 -- Intimidation conviction was supported by sufficient evidence but was against the manifest weight of the evidence. Defendant's verbal abuse and threats following arrest could be inferred to be a knowing attempt to hinder, influence or intimidate the officer, but could also be inferred to be the product of frustration and rage at being arrested. In assessing weight there is a distinction between weighing credibility, better left to the trier of fact, and weighing competing inferences, and how persuasive each is.

State v. Jackson, Franklin App. No. 02AP-867, 2003-Ohio-6183, ¶ 51-54 -- Defendant called witness's phone number from jail and told the friend who answered that he would kill the witness when he got out of jail. Intimidation conviction was not supported by the evidence and no nexus was established between this threat and the witness testifying.

State v. Simms, 165 Ohio App. 3d 83, 2005-Ohio-5681 -- Intimidation conviction supported where defendant, knowing officers were there to arrest him, told them he was armed in order to succeed in his wish to have a 72-hour standoff.

State v. Cress, 162 Ohio App. 3d 46, 2005-Ohio-4620 -- (1) Intimidation conviction was not supported by the evidence as none of the things the defendant threatened his girlfriend with amounted to illegal activity. These included dissemination of nude photos of the victim, passing on information to children services and the landlord, stopping the victim's use of the defendant's car, and not helping when she was late with her rent. Dissenting judge believes the focus is on unlawfully threatening harm, not the illegality of the acts threatened. But see State v. Cress, 112 Ohio St. 3d 72, 2006-Ohio-6501, ¶43-44, affirming this outcome but holding "unlawful" is not limited to criminal conduct. But the state is faulted for not having introduced "evidence demonstrating the elements of any predicate offense," such as coercion or extortion. (2) Allowing the testimony of a supposed expert on domestic violence, who did not know the parties, was prejudicial error. There was no charge of domestic violence, and it was irrelevant why the victim preferred charges not be pursued.

State v. Solomon, Marion App. No. 9-03-58, 2004-Ohio-2795 -- Intimidation and retaliation are not allied offenses of similar import.

State v. Morris, Monroe App. No. 02 MO 12, 2004-Ohio-6810 -- To sustain a retaliation conviction, it is not necessary to prove the victim was a witness in a public proceeding or before a grand jury. Oral and written statements to law enforcement identifying the defendant as the stooge's fence were sufficient.

State v. Wyant (1994), 68 Ohio St. 3d 162 -- Syllabus: "R.C. 2927.12, the Ohio Ethnic Intimidation Act, is constitutional under the United States and Ohio Constitutions. (Wisconsin v. Mitchell [1993], 508 U.S. 476, 112 S.Ct. 2194, 124 L.Ed. 2d 436, followed; State v. Wyant [1992], 64 Ohio St. 3d 566, 597 N.E. 2d 450, vacated.)" Also see State ex rel Heck v. Kessler (1995), 72 Ohio St. 3d 98.

State v. Crider (1984), 21 Ohio App. 3d 268 -- For purposes of the intimidation of a crime victim or witness statute, R.C. 2921.03, a victim becomes a "witness" at the time of the original crime, regardless of whether a suspect has been identified or charges filed.

State v. Troutman (1991), 71 Ohio App. 3d 755 -- Defendant berated Health Department septic tank inspector, accusing him of being a Peeping Tom after his daughter had complained of man looking in window. Intimidation conviction affirmed. See dissent for proper view of the evidence.

State v. Price (1990), 69 Ohio App. 3d 243 -- (1) Intimidation conviction affirmed where defendant mouthed off at parole officer who was present while he was booked after being arrested. (2) Though there was apparently a specification alleging a prior offense of violence, and sufficient proof presented on the specification, the court failed to make a finding. Consequently court may not impose an indefinite sentence until its finding is journalized. Remanded for this to be done.

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