IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Appellee

-vs-

JEFFREY BLOCK

Appellant

06m2397On Appeal from theCuyahoga County Courtof Appeals, EighthAppellate District Courtof AppealsCA: 87488

MEMORANDUM IN SUPPORT OF JURISDICTION FORAPPELLANT JEFFREY BLOCK

MARTIN J. KEENANSupreme Court Reg. #002512511510 Buckeye Rd.Cleveland, OH 44104(216) 721-7700FAX: (216) 721-5261

COUNSEL FOR APPELLANT, JEFFREY BLOCK

WILLIAM MASON, ESQ.Cuyahoga County ProsecutorThe Justice Center - 9`h Floor1200 Ontario StreetCleveland, OH 44113(216) 443-7800

COUNSEL FOR APPELLEE, THE STATE OF OHIO

DEC z 9 2006

MiARCIA J NIEfUGEL.. C!-I:a ;KSUPRE'iViEiOURT i?E %jG

TABLE OF CONTENTS

PAGES

EXPLANATION OF WHY THIS FELONY CASE IS A CASE OF GREATPUBLIC OR GREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION ... ................................................. 1

STATEMENT OF FACTS ............................................................................................... 3

- ARGUMENT ..................................................................................................................... 5

PROPOSITION OF LAW I ...... ...................................................................................... 5

As juvenile delinquency proceedings are not "criminal actions orproceedings," the intimidation of witnesses in juvenile delinquencyproceedings is not prohibited by R.C. 2921.04.

PROPOSITION OF LAW H ........................................................................................... 5

As juvenile proceedings are civil in nature, the intimidation of witnesses injuvenile delinquency proceedings is prohibited by R.C. 2921.03.

CONCLUSION ... ............................................................................................................12

CERTIFICATE OF SERVICE .....................................................................................12

APPENDIX:

Opinion of the Eighth District Court of Appeals, State v. Block (journalizedNovember 14, 2006) Cuyahoga App. No. 87488 ................................................................I

EXPLANATION OF WHY THIS CASE IS A CASE OF GREAT PUBLIC INTEREST ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL OUESTION

Few, if any, issues are more vital to the integrity of the judicial process than those

relating to witness safety, and perhaps no group of witnesses so susceptible to intimidation than

those involved in juvenile delinquency proceedings, most being juveniles themselves. To

properly protect witnesses, law enforcement officers, prosecutors, and the courts must be able to

properly identify the applicable statutes. Thus, in this case this Court is asked to determine

whether the intimidation of a witness in a juvenile proceeding is properly addressed by R.C.

2921.04 or R.C. 2921.03. More specifically, is a juvenile delinquency proceeding a "criminal

action or proceeding" under R.C. 2921.04?

In deciding this case, the Court will instruct prosecutors and law enforcement officers

about the proper method of charging and prosecuting persons who intimidate witnesses in

juvenile proceedings. This is not a situation where the State would be without a remedy to

protect witnesses should R.C. 2921.04 not apply. Rather, this Court is being asked to decide

whether the proper remedy lies under R.C. 2921.04 or R.C. 2921.03, the latter statute focusing

on the intimidation of witnesses in civil actions.

Of more general importance, in recent years this Court has struggled to reconcile the

apparent discrepancy between "criminal" juvenile conduct resulting in "civil" juvenile

adjudication, a result of evolving Supreme Court case law coupled with the General Assembly's

goal of juvenile rehabilitation. In accepting this case, the Court will be provided an opportunity

to clarify the nexus between the criminality of juvenile conduct and the rehabilitative (civil) aims

of juvenile adjudication, an issue of considerable frustration to the Juvenile and Common Pleas

Courts and a matter of increasing importance to juvenile offenders.

I

The Eighth District's decision in this case erodes this Court's precedent and blurs the

distinction between the criminality of juvenile acts and the "civil" nature of their adjudication.

Should the "criminal actions or proceedings" required by R.C. 2921.04 be satisfied solely by

underlying juvenile conduct, it would open the door to the recognition of juvenile proceedings as

criminal in nature. This is contrary to the intent of the General Assembly and a dangerous

divergence from the rehabilitative goals of juvenile adjudication as established by this Court, the

General Assembly, and the Juvenile Courts.

Finally, this case presents important issues of statutory construction. In particular, the

Eighth District abdicated its responsibility to consider the statutory intent of R.C. 2921.04 in

deciding this case, thus usurping the role of the General Assembly and unlawfully legislating by

judicial fiat. Such a decision not only undermines this Court's explicit precedent, but the very

underpinnings of the separation of powers established by our federal and state constitutions.

2

STATEMENT OF FACTS

On April 28, 2005, Karen Sefcik called the Parma police to report an ongoing fight on

Grantwood Dr. After calling the police, Ms. Sefcik went to Grantwood herself, arriving after the

police had broken up the fight and as they were attempting to disperse the remaining crowd of

onlookers. Rachel Block, the defendant's daughter, allegedly responded disrespectfully when an

officer asked her to leave the area and allegedly hit the officer when he attempted to restrain her.

Rachel was subsequently arrested and taken to the Parma Police Station.

Shortly after Rachel was arrested, her parents, Jeffrey and Susan Block, received a call

from one of Rachel's friends informing them that the police had beat up and arrested Rachel.

Mr. and Mrs. Block immediately went to the police station and asked to see their daughter, at

which point they were informed that they could not meet with her. After waiting approximately

half an hour they were permitted to see Rachel; Mrs. Block testified that Rachel looked terrified,

dirty, and had marks on her face and bruises on her wrists. Upon Rachel's release, Mr. and Mrs.

Block immediately took her to a hospital for medical treatment.

Because Rachel was a good student and had never been in trouble before, Mr. and Mrs.

Block refused to believe that she had behaved as disrespectfully and violently as the police

maintained. For several days they attempted to independently ascertain what had happened,

speaking with several of the girls involved in the incident and obtaining a copy of the police

report. Included in the police report was a statement by Ms. Sefcik taken shortly after the

altercation, a statement which differed so greatly from the reports Mr. and Mrs. Block had heard

from other eyewitnesses that Mrs. Block decided to discuss the statement with Ms. Sefcik.

On May 6, 2006, eight days after the initial incident, Mr. Block drove to Ms. Sefcik's

home and confronted her with her police statement. During the argument that ensued, Mr. Block

3

allegedly accused Ms. Sefcik of lying in her police statement and said he would "get her" for

what she said in her statement. Ms. Sefeik later testified that she believed Mr. Block had a gun

because he kept reaching behind his back during the arguinent. After the argument was over and

Mr. Block left voluntarily, Ms. Sefcik called the police.

Mr. Block was subsequently arrested by Parma police and charged with intimidation of a

witness in violation of R.C. 2921.04. At trial, Mr. Block twice moved for acquittal under Crim.

R. 29, asserting that the State had failed to prove Ms. Sefcik was a witness in a "criminal action

or proceeding," an essential element of R.C. 2921.04. The trial court denied Mr. Block's motion

and ultimately convicted him of intimidation, a third-degree felony, sentencing him to two years

of community control sanctions.

4

ARGUMENT

Proposition ofLawI:

As juvenile delinquency proceedings are not "criminal actions or proceedings," theintimidation of witnesses in juvenile delinquency proceedings is not prohibited byR.C. 2921.04.

Proposition ofLawll:

As juvenile proceedings are civil in nature, the intimidation of witnesses in juveniledelinquency proceedings is prohibited by R.C. 2921.03.

R.C. 2921.04, entitled "Intimidation of attorney, victim, or witness in a criminal case,"

states in pertinent part:

(A) No person shall knowingly attempt to intimidate or hinder the victim of acrime in the filing or prosecution of criminal charges or a witness involved in acriminal action or proceeding in the discharge of the duties of the witness.

(B) No person, knowingly and by force or by unlawful threat of harm to anyperson or property, shall attempt to influence, intimidate, or hinder the victim of acrime in the filing or prosecution of criminal charges or an attorney or witnessinvolved in a criminal action or proceeding in the discharge of the duties of theattorney or witness.

(D) Whoever violates this section is guilty of intimidation of an attorney, victim,or witness in a criminal case. A violation of division (A) of this section is amisdemeanor of the first degree. A violation of division (B) of this section is afelony of the third degree. (emphasis added)

R.C. 2921.03, entitled simply "Intimidation," states in pertinent part:

(A) No person, knowingly and by force, by unlawful threat of harm to any personor property, or by filing, recording, or otherwise using a materially false orfraudulent writing with malicious purpose, in bad faith, or in a wanton or recklessmanner, shall attempt to influence, intimidate, or hinder a public servant*, partyofficial, or witness in the discharge of the person's duty.

(B) Whoever violates this section is guilty of intimidation, a felony of the thirddegree.

The primary issue in this case is whether the legislature intended the "criminal actions and

proceedings" phrase in R.C. 2921.04 to include and refer to juvenile acts and/or juvenile

5

delinquency proceedings or whether intimidation in relation to such proceedings is more

properly charged under R.C. 2921.03.

In the present case, the Eighth Appellate District interpreted the "criminal actions and

proceedings" phrase to be satisfied by an underlying criminal act by a juvenile regardless of the

age of the offender or the pendency of prosecution. However, the defense maintains that the

Eighth District's holding contradicts established Ohio Supreme Court precedent and the General

Assembly's intent and purpose in enacting R.C. 2921.04.

In In re Anderson (2001), 92 Ohio St. 3d 63, this Court held that "a juvenile court

proceeding is a civil action" and, similarly, that it had been "long held that juvenile court

proceedings are civil, rather than criminal, in nature." Id. at 66, 67 (citing Cope v. Campbell

(1964), 175 Ohio St. 475 paragraph one of the syllabus, overruled on other grounds in In re

Agler (1969), 19 Ohio St. 2d 70, 74). From the beginning, "[j]uvenile courts existed as civil, not

criminal, courts. The basic therapeutic mission of these courts continues to this day." Anderson

at 66.

To understand why juvenile delinquency proceedings are civil in nature, the Court

undertook an examination of the history of the juvenile system. First, the Court noted that "[t]he

juvenile court movement reformers `designed an institution that departed from the traditional

criminal court of law in almost every respect."' Id. at 66 (citing Rossum, Holding Juveniles

Accountable: Reforming America's "Juvenile Justice System ", 22 Pepperdine L. Rev. 907, 911

(1955)). This process involved eliminating the adversarial atmosphere of criminal courts and

replacing the "cold, objective standards of criminal procedures with informal procedures." Id.

The Court went on to explain that even the Juvenile Court vocabulary was altered so as to

differentiate the purpose and function of the juvenile court system: "Criminal complaints" were

6

renamed "delinquency petitions" and "trials" were referred to merely as "hearings." Finally, in

terms of sentencing, juveniles received "dispositions" instead of "sentences" when they were

"adjudicated delinquent," not found "guilty." Id.

The Anderson Court also pointed to its decision in In re Caldwell (1996), 76 Ohio St.

156. There, the Court summarized the purpose of juvenile delinquency proceedings as stated in

R.C.2151.01:

To provide for the care, protection, and mental and physical development of children, toprotect the public from the wrongful acts committed by juvenile delinquents, and torehabilitate errant children and bring them back to productive citizenship, or, as thestatute states, to supervise, care for and rehabilitate those children. Punishment is not thegoal of the juvenile system, except as necessary to direct the child toward the goal ofrehabilitation. Id. at 157.

Ohio courts have consistently relied upon Anderson and found matters in juvenile court

to be civil, not criminal, court proceedings. See In re Kiser, 2006 Ohio 5970 (3`d App. Dist.); In

re Tiber (2003), 154 Ohio App. 3d 360 (7 th App. Dist.); In re Daniel, 2002 Ohio App. LEXIS

542 (10t'App. Dist.); et. al. One such way courts have done this is by characterizing appeals

from Juvenile Court as "civil appeals." See In Re: L.B., a Minor, 2002 Ohio 3767, 200 Ohio

App. LEXIS 3825 (8`h App. Dist.) (characterizing the proceeding as a "Civil appeal from

Connnon Pleas Court Juvenile Division"); See also In re KJ., 2002 Ohio 2615, 2002 Ohio App.

LEXIS 2454 (8th App. Dist.) (relying upon Anderson to find that the Appellate Rules pertaining

to the filing of a civil notice of appeal apply and that the proceeding was a civil appeal); Vadas v.

Caniglia, 2002 Ohio 1776, 2002 Ohio App. LEXIS 1709 (8t" App. Dist.) (same); In re Keith,

2001 Ohio App. LEXIS 4304 (10t" App. Dist.) (same).

It is important to note that this is not a situation where no statute except R.C. 2921.04

could apply. As there would have been an underlying civil proceeding, the State could have

properly charged Appellant under R.C. 2921.03. That statute provides:

7

(A) No person, knowingly and by force, by unlawful threat of harm to any person orproperty, or by filing, recording, or otherwise using a materially false or fraudulentwriting with malicious purpose, in bad faith, or in a wanton or reckless manner, shallattempt to influence, intimidate, or hinder a public servant, party official, or witness inthe discharge of the person's duty; (B) Whoever violates this section is guilty ofintimidation, a felony of the third degree.

R.C. 2921.03 was amended in 1996 to reflect the legislature's intention that the statute be

applicable to "civil actions or proceedings" (emphasis added). H.B. 88, 121st Gen. Assembly

(1995).

The Eighth District itself has established precedent in applying R.C. 2921.03 to civil

cases and denying application of R.C. 2921.04. In State v. Early, 2003 Ohio App. LEXIS 1437,

the court found that although the defendant could have been convicted under 2921.03, a

conviction under 2921.04 was improper because there was no underlying criminal proceeding.

Id. at ¶16.

Iri its decision, the majority of the Eighth District referred to State v. Gooden, 2004 Ohio

2699, 2004 Ohio App. LEXIS 2417 (8a' App. Dist.) as indicating that a case need not be pending

for R.C. 2921.04 to apply. Assuming that proposition arguendo, Gooden still does not stand for

the proposition that the proceeding or action does not need to be criminal in nature. Instead,

Gooden holds that the threat need not be in an attempt to dissuade a witness from testifying or

participating in an already filed criminal action; to the contrary, the threat need only "be clearly

aimed at discouraging a witness from having any involvement in a forthcoming criminal action."

Id at¶37.

These precedents having been established, perhaps the most serious flaw in the Eighth

District's opinion was its refusal to conduct any investigation into the legislative intent behind

R.C. 2921.04. In determining legislative intent, the language used in the statute must be the

starting point of the court's analysis. See In re Lombardo (1999), 86 Ohio St. 3d 600, 605. If the

8

meaning of a provision cannot be ascertained by its plain language, a court may look to the

purpose of the provision to determine its meaning. State v. Jackson (2004), 102 Ohio St. 3d 380,

382. If ascertainable, the intent of the framers is controlling. Id. "In construing any legislative

enactment, consideration of the legislative proceedings is helpful in determining the meaning and

purpose of the act." State ex. rel. Gareau v. Stillman (1969), 18 Ohio St. 2d 63, 64.

R.C. 2921.04 was adopted by the 115 th General Assembly in 1984. S.B. 172 (1984). As

originally formulated, the relevant portion of the statute related to a witness "involved in a

criminal case" (emphasis added). In 1996, the statute was amended and the term "case" was

replaced with the phrase "criminal action or proceeding" in sections (A) and (B). H.B. 88

(1995). The same act modified section (D), creating the "witness in a criminal case" phrase

found in the statute today. Id. Throughout these changes, the title of the statute has remained the

same ("Intimidation of attorney, victim, or witness in a criminal case" (emphasis added)). R.C.

2921.04.

Words not defined by statute are to be afforded their common and everyday meanings.

State v. Dorso (1983), 4 Ohio St. 3d 60, 62. Accordingly, Black's Law Dictionary, Fifth Edition,

defines the relevant terms in R.C. 2921.04 as follows:

Case: "A general term for an action, cause, suit, or controversy, at law or inequity"

Action: t"[A] suit brought in a court."

Criminal action: An action "instituted by the sovereign power, for the purposeof punishing or preventing offenses against the public."

Proceeding: "[T]he form and manner of conducting juridical business before acourt or judicial officer" and "a mere procedural step that is part of a larger actionor special proceeding."

' As the phrase "criminal action or proceeding" simply replaced the term "case" in the statutory text, it follows that"action" should be defined in the same manner as "case," i.e. as a noun.

9

Thus, given its conunon meaning, a "criminal action or proceeding" specifically refers to a

criminal action or proceeding in the procedural sense. As Judge Corrigan noted in his dissent

below, as a juvenile charged with delinquency is never charged with a crime regardless of the

criminality of their conduct, they cannot be defendants in a "criminal action or proceeding."

In construing a term the General Assembly has not defined, the term may be given its

common meaning in accordance with the rules of grammar. Cress at ¶37. Here, the adjective

"criminal" modifies the nouns "action" and "proceeding." Thus, R.C. 2921.04 only applies to an

underlying criminal action or criminal proceeding, not merely a criminal act as found by the

Eighth District.

Finally, "it is the duty of the court to give effect to the words used in a statute, not to

insert words not used." State v. Cress (2006), 112 Ohio St. 3d 72, quoting Cleveland Elec. Illum.

Co. v. Cleveland (1988), 37 Ohio St. 3d 50, paragraph three of the syllabus. In the ease below,

the Eighth District changed the wording of the statute in interpreting it, referencing the word

"action" as "act" and thereby changing the meaning of the word used. See pg. 9 of the attached

opinion.

Taken together, the legislative history of the statute and the common meanings of the

words utilized clearly indicate that the legislature intended the "criminal action or proceeding"

phrase in R.C. 2921.04 to be used in a procedural manner. Thus, the Eighth District improperly

replaced the word "action" with "act" in attempting to describe a requisite element of R.C.

2921.04.

Because R.C. 2921.04 is a criminal statute, it must be "strictly construed against the state,

and liberally construed in favor of the accused." R.C. 2901.04. This "rule of lenity" is both

statutorily required, Id., and constitutionally based on principles of due process: "Application of

10

the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct

rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and

the court in defining criminal liability." Liparota v. United States (1985), 471 U.S. 419, 428

(collecting cases).

Again, as Judge Corrigan noted, a strict construction of R.C. 2921.04 compels the

conclusion that the statute does not apply to juvenile acts and adjudications because ajuvenile is

never charged with a "crime." Instead, the State must charge those who intimidate witnesses to a

juvenile proceeding under R.C. 2921 .03 because juvenile proceedings are civil in nature.

The underlying case not being a "criminal action or proceeding," Ms. Sefcik was a

witness in a civil, not a criminal, matter. Thus, the State did not prove that Mr. Block was guilty

of violating R.C. 2921.04. Counsel for Appellant addressed the inapplicability of the statute to

the conduct of Mr. Block in both of his arguments regarding Rule 29. Tr. p. 108-114 and 124-

125. The trial court rejected the arguments. Tr. p. 138-139. It was error for the trial court to

deny Appellant's Rule 29 request for an acquittal based upon the State's failure to prove an

essential element of R.C. 2921.04, and it was error for the Eighth District to uphold the denial of

Mr. Block's motion for acquittal.

I1

CONCLUSION

Wherefore, this Court should accept and exercise plenary jurisdiction over the instant

case.

Respectfully subniitted,

SupremYe Court Reg. #002512511510 Buckeye Rd.Cleveland, OH 44104(216) 721-7700Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that one copy of the foregoing Brief of Appellee has been hand delivered

to the office of Hon. William D. Mason, Cuyahoga County Prosecutor, 1200 West Third Street,

9`h Floor, this e¢ day of December, 2006.

12

h0Y #;4, ^C^.^^tr^t .^f .1ypp.ealo .^f (^4ila

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 87488

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JEFFREY BLOCK

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Commori Pleas

Case No. CR-466603

BEFORE: Dyke, A.J., Rocco, J., Corrigan, J.

RELEASED: October 26, 2006CA05087488 42794538

JOURNALIZED: Key 1,4 M ^ IIIIIIII MiI 11111111111111111 loll liII I^I

f1@625 P66640

-i-

ATTORNEY FOR APPELLANT

Terry H. Gilbert, Esq.1700 Standard Building1370 Ontario StreetCleveland, Ohio 44113

ATTORNEY FOR APPELLEE

William D. Mason, Esq.Cuyahoga County ProsecutorBy: Scott Zarzycki, Esq.Asst. County ProsecutorThe Justice Center, Ninth Floor1200 Ontario StreetCleveland, Ohio 44113

FILED r;ct,; .;: ,; . '-^.iZEDPER APP. R. ^2(E)

GkAALD E. FUERSTTHE CDURyOP APPEAL3

--DaiRR

ANNOUNCEMENT OF DEeiStoMPERAPP, R. 22(B]^ 22(D1.t^ 28(A)

RFR'^.'rV^g:.d3

CvEPo4LUl E, F'UERSPCLEpK C^ pp^APPEALSoY DcR

111111f Illif IIIII III II IIIN NNI 11111 NII IIII ^z.o.o;.

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless. a motion for ` r. ^:..reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The tixne period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

P0 625 P:6n64 t

-1-

ANN DYKE, A.J.:

Defendant Jeffrey Block appeals from his conviction for intimidation. For

the reasons set forth below, we aff"irm.

On June 8, 2005, defendarit was indicted for one count of intiximidation of

a witness in a criminal case. Defendant pled not guilty and waived his right to

a jury trial. The matter proceeded to trial to the court on October 14, 2005.

For its case, the State presented the testimony of Karen Sefcik, Pamela

Gorka, Nicole Gorka, and Parma Police Det. Mickey Adams and Officer James

Manzo.

Karen Sefcik testified that on April 28, 2005, her son asked her to call the

police because there was a fight nearby on.Grantwood. Sefcik went to the area

but the police had already broken up the fight and only a few people remained

in the area. The police asked them to leave but they refused to do so. One girl

in particular refused to leave and started laughing. An officer asked, "Do you

think it's funny" and she said "yeah." The police warned her that if she did not

leave, they would call her parents and they would have to pick her up from the

police station or she would be arrested right there. According to Sefcik, the girl

continued to laugh. The officer went to grab her and "the girl became very

verbal and started hitting the police officer."

Later that evening, the officers called Sefcik's home, then met her at a

W31625 P:60642

-2-

bowling alley and took a written statement from her. Approximately one week

later, after her children had left for school, Sefcik realized that her. daughter had

forgotten her homework, so she called her neighbor, Karen Gorka. Gorka agreed

to send Nicole. Gorka o'ver to pick up the liomework:

Defendant then approached in a truck. He parked in front of her

neighbor's yard then stood on her sidewalk and asked Sefcik if she lived there

and if she was aff~iliated with the police,or married to a policeman. Sefcik

indicated that she was not. Defendant then accused her of lying in her police

statement and claimed that the police had assaulted his daughter in the inciderit

at Grantwood..

According to Sefcik, defendant was waving a piece of paper and stated that

he knew that she had a son who attends Shiloh Elementary School. Sefcik

stated that he called her an "F=ing liar" and said that if it's the last thing he

does, he's going to get her for lying on the police report. Sefcik believed that

defendant had a gun because he kept reaching behind his back. She was afraid

and asked Gorka to call police.

On cross-examination, Sefcik admitted that a police officer owns the

bowling alley where she works. She also admitted that she stood her ground

with defendant when he called her a liar.

Pamela Gorka testified that she lives next to Sefcik. On the morning of

01.-:^625 R60543

the incident, Sefcik called her, explained that her daughter had forgotten to

bring her homework to school and asked Gorka to bring it to school for the girl.

Gorka's daughter, Nicole, went to Sefcik's house and Gorka waited in the

driveway in her van. Gorka observed defendant on the apron of Sefcik's

driveway, yelling and waving a piece of paper. Gorka pulled her vehicle further

back and motioned for Nicole.

Nicole excitedly explained that the inan Was the father of the girl who had

gotten arrested in the Apri128, 2005 incident. Gorka heard the mah tell Sefcik

that he knew that she had a son at. Shiloh Elementary School. Sefcik looked

upset and asked Gorka to call the police. Gorka did not have her cell phone and

proceeded out to the street. Nicole realized that she had forgotten her shoes and

Gorka then returned to the driveway. Defendant was still yelling at Sefcik then

walked to a truck parked nearby, revved the engine and sped away.

Nicole Gorka, a fourth grader at Shiloh Elementary School, testified that

Melissa Sefcik, who also attends Shiloh, forgot her homework and she went to

Sefcik's porch to get it. Defendant approached, and angrily asked Sefcik if she

had a child who attended Shiloh. Sefcik looked scared and did not yell back.

Nicole testified that when she returned to the area to get her shoes, she heard

defendant tell Sefcik that he would "get her for this." Nicole thought that

defendant had a gun because he kept putting his hand behind his shirt, but she

L@625 'PB0644

admitted that this is not contained in her statement to police.

Det. Mickey Adams testified that he conducted a follow-up interview of

defendant following his arrest and that defendant admitted to. going to Sefcik's

home with a copy of her poliee report. A search was executed at defendant's

house and ammunition was.recovered from the garage.

Officer Manzo testified that he responded to a call at Sefcik's house but

arrived after defendant had already left. Sefcik was frightened, and was crying

and shaking. Manzo also spoke to Gorka and subsequently went to defendant's

home where Gorka and Sefcik identified him.

On cross-examination, Manzo admitted that his report simply indicates

that defendant..said that he would "get" Sefcik; it does not indicate that he

threatened to "get her if it's the last thing I do." It likewise does not indicate

that Sefcik believed that he had a gun..

Defendant elected to present evidence and his wife Susan Block testified

that defendant is on disability from a 1999 injizry and takes several kinds of

medication.. Block further testified, with regard to the April 28, 2005, incident

that she learned that a friend of her daughter, Rachel, called her and said that

the police had beat up and.arrested Rachel. She immediately went to the police

station to get her daughter. Accordingto Block, Rachel was terrified, dirty, and

had marks on her face and bruises on her wrists, and the police would not give

V10625 P.:DD645

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her much information about what had happened. Block took the girl to an

urgent care center.

Block subsequently requested a copy of the police report and obtained an

incident report as well as witness stateinents. Block testified that she wanted

to speak with Sefcik because her report differed from what the children had told

her of the incident. Later, she spoke to defendant and learned tliat he went to

Sefcik's house and had been arrested.

Defendant was convicted and sentenced to two years of commuxiity control

sarictions. He now appeals and assigns the following two interrelated errors for

our review.

Defendant's assignments of error state:

"The trial court erred in denying appellant's motion for acquittal based on

the state's failure to prove an essential element of O.R.C. 2921.04."

"The trial court erred in denying appellant's motion for acquittal when

there was insufficient evidence to support a conviction under [R.C.] 2921.04.°"

Motions for judgments of acquittal. are governed by Crim.R. 29(A) which

states that a trial court "shall order the entry of a judgment of acquittal *** if

the evidence is insufficient to sustain a conviction of such offense or offenses."

A challenge to the sufficiency of the evidence supporting a conviction

requires a court to determine whether the State has met its burden of production

Y0625 R0a646

_6_

at trial. State v: Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d

541. In reviewing for sufficiency, courts are to assess not whether the State's

evidence is to be believed, but whether, if believed, the evidence against a

defendant would sitpport a con.victioin. Id. 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 crixne proven beyond

a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus. The motion "should be granted- oiily where

reasonable mirids could not fail to find reasonable doubt." State v. Apanovitch

(1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394.

In this matter, defendant was charged with intimidation as set forth -in

R.C. 2921.04(B) as follows:.

"(B) No persoxi, knowingly and by fotce 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 chargges or an attorney

or witness involved in a criminal action or proceeding in the discharge of the

dtities of the attorney or witness."

Defendant insists that the offense was not established because there was

no "witness involved in a criminal action" since she was a witness to a juvenile

action. He further insists that there was no evidence of "force or unlawful

^^LO-625 P90647

-7-

threat of harm."

1. "Witness Involved in a Criminal Action"

The Ohio Supreine Court has determined that "juvenile court proceedings

are civil; rathe.r thain c.rimirnal; in nature." In reAndersott, 92 Ohio St.3d 63; 65,

2001-Ohio-131, 748 N,E.2d 67: As such, "[a] child is not a criinin.al by reason of

any Juvenile Court adjudication, and civil disabilities ordinarily following

conviction do not attach." In re Agler (1.969), 19 Ohio St.2d 70, 72, 249 N.E.2d

808.

The Court has noted, however, that the "characterizatioxi of delinquericy

proceedings as civil is one of limited applicability ***[and that] "there. are

criminal aspects to juvenile court proceedings." In re Cross, 96 Ohio St. 3d 328,

2002-Ohio-4183, 774 N.E.2d 258. Moreover, the "civil" designation does not lead

a fortiori to a conclusion that the act Was not "criTniinal" at. the tixrie it was

committed. State v. Walls, 96 Ohio St. 3d 437, 2002-Ohio-5059, 775 N.E.2d 829.

The Walls Court explained:

"Whatever- their label, juvenile delinquency laws feature inherently

criininal aspects that we cannot ignore. See Anderson, 92 Ohio St.3d at 65-66,

748 N.E.2d 67. *** Just as we cannot ignore the criminal aspects inherent in

juvenile proceedings for purposes of affording certain constitutional protections,

we also cannot ignore the criminality inherent in juvenile conduct that violates

0625 PG0648

-8-

criminal statutes. See former R.C. 2151.02(A), now R.C. 2152.02(1)(1) (defining

"delinquent child" as a child who commits an act that would be a crime if

committed by an adult). Whether the state prosecutes a criminal action or a

juveriilo delinquency matter, its goal is the same: to vindicate a vital interest in

the enforcement of criminal laws. Breed [v. Jones (1975) ], 421 U.S. at 531, 95

S Ct. 1779, 44 L.Ed. 2d 346."

Thus; in delinquency matters, the conduct is "certainly criminal in nature

despite the fact his juvenile adjudication did not result in a criminal conviction."

State v. Phipps,lVIontgomery App. No. 20793, 2005-Ohio-6680. See, also, In re

Tiber, 154 Ohio App. 3d 360; 2003-Ohio-5155, 797 N.E.2d 161. See, also, State

v. Wilson (1995), 73 Ohio St. 3d 40, 652 N:E.2d 196 ("Wilson was a`child' at the

time of his criminal activity.")

Moreover, when reviewing a sufficiency of the evidence supporting a

delinquency adjudication, we apply the Crim.R. 29 standard. See In re

Shubutidze (Mar. 8, 2001), Cuyahoga App. No. 77879; In re Sechler (Aug. 29,

1997), Trumbull App..No. 96-.T-5575; In re Hedrick (Mar. 1, 2001), Adams App.

No. 00CA697.

Further, in State v. Gooden, Cuyahoga App. No. 82681, 2004-Ohio-2699,

this court noted that it is not necessary for a criminal proceeding to be pending

in order to sustain a conviction for intimidation under R.C. 2921.04. This court

Y0b25 P6Q649

-9-

affirmed a conviction for intimidation where the defendant was attempting to

prevent Reeves from discharging her duties as a witness to a criminal act."

(Emphasis added.)

In accordance with all of the foregoing, we conclude any rational trier of

fact could have concluded that Sefcik was a "witness involved in a criminal

action." Although Block's daughter was presumably facing charges in juvenile

court, nothing in the record indicates that juvenile proceedings were pending at

the time of the incident. The girl had allegedly assaulted a police officer and this

was a criminal act, though she "was a`child' at the time of [her] criminal

activity" see State u. Wilson, supra. The alleged conduct is "certainly criminal

in nature despite the fact [a] ju.venile adjudication [would inot] result in a

criminal conviction.°" State v. Phipps. Sefcik was nonetheless a witness to a

criininal act. We will not "ignore the criminality inherent in juvenile conduct

that violates criminal statutes." State v. Walls; R.C. 2152.02(F) ("delinquent

child" includes a child who violates any law of this state or the United States or

any ordinance of a political subdivision that would be an offense if committed by

an adult.) Therefore, as a witness in such a matter, Sefcik was clearly a witness

to a criminal act and the state presented sufficient evidence to demonstrate that

defendant acted to prevent her from discharging her duties as a witness to that

criminal act. No evidence has beeii presented to indicate that a juvenile

MA625 PPQ65Q

-10-

proceeding was in progress at the time of the incident.

2. "Force or Unlawful Threat of Harm"

In. State v. Gooden, supra, thia court held that this element of the offense

of intimidation was inet wliere the tli.reat was "clearly aimed atdiscouraging a

witness from having any involvement in a forthconiing criminal action." Id.;

citing toState v. .Ffummell (Jun.. 1,. 1998), Morrow App. No. CA-851. In that

matter, the defendant told the witness, "I'm telling you, you better not be out

running your mouth. Because if you tell anybody about what you seen going on

last night, the same thing.that man got last night; you're going to get it too."

Likewise, in this matter, the state presented evidence that defendant went

to Sefcik's li.ouse with a copy of her statement and was yelling at her. According

to Sefcik and Nicole Gorka, defendant repeatedly. reached behiind his back and

they believed that he had. a gun. He also indicated that he would "get" Sefcik.

She became frightened and upset and asked for Gorka to call the police. A search

warrantrevealed that he had ammunition. From the foregoing, we conclude any

rational trier of.fact could have concluded that defendant made an.uniawful

threat of harm to discourage the witness from filing charges or from testifying

at a later criminal proceedink. Cf: State v. Fuqua, Hardin App. No. 6-02-01,

2002-Ohio-4697 (unlawful threat of harm found where defendant told witness

that he would "get.hi.in''). State v. Cheney-Shaw (Aug. 31, 2000), Cuyahoga App.

90625 060651

Nos. 76828 and 76829.

The assignments of error are without inerit.

Affirmed.

It is ordered that appellee recover of appellant its costs hereiii 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 executioii. The defendant's

conviction having been affirined, any bail pending appeal is terminated. Case

renianded to the trial coiirt for.execution of sentence.

A certified copy of this entry shall constitute the inandate pursuant.to

Rule 27 of the Rules of Appellate Procedure

ANN D ADMIN

KENNETH A. ROCCO, J., CONCURS. (SeeSeparate Concurring Opinion)MICHAEL J. CORRIGAN, J., DISSENTS(See Separate Dissenting Opinion)

KENNETH A. ROCCO, J., CONCURRING:

Although I am sympathetic to the comments made in the dissenting

opinion with respect to appellant's first assignment of error, in their light, I feel

Y1@625 000652

-12-

compelled to write separately in concurring with the majority opinion in order

to make an observation.

The Ohio legislature of late has made great strides in criminalizing

juvenile court proceed'ings. For example, there are now mandatory penalties,

mandatory bindovers, jury trials, and application of sexual predator laws.

Except for grand jury indictment at the initial stage of the proceedings, when

these changes are layered upon the standard of proof "beyond a reasonable

doubt," pretrial detention.s, and the like, juvenile proceedings objectively are

very little different from the proceedings relating to adult crimes.

As a former member of the juvenile court, I can state that, for good or ill,

we have traveled a long way from the simpler time when the judge, in the role

of the soinetimes stern and sometimes kindly grandfather, sat around the table

with Mom, Dad, and the wayward child, together with the probation officer, in

order to come to an appropriate disposition of the case. Prosecutors and defense

lawyers infrequently were involved in those times at any stage of the

proceedings.

Times now are quite different. Since by law the criminal aspect of the

proceedings against jiiveniles have become closely aligned with criminal

proceedings made against adults, I concur with the majority opinion on this

point.

0625 P60b53

-13-

MICHAEL J. CORRIGAN, J., DISSENTING:

The precise wording di the relevant statutes compels my conclusion that

the state erroneously charged Block under R.C. 2921.04(B). As the majority

concedes, that section applies only to intimidation occurring in a"criminal actibn

or proceeding." Neither of these terms is defined by the Revised Code. The

supreiime court has, however, stated that "Black's Law Dictionary (5 Ed. 1979),

defines `prosecution' as `[a] criminal action; a proceeding instituted and carried

on by due course of law, before a competent tribunal, for the purpose of

determ.ining the guilt or innocence of a person charged with crime. ***"' See

State ex rel. Unger v. Quinn (1984), 9 Ohio St.3d 190.

The majority correctly cites to authority for the proposition that juvenile

court proceedings are not criminal. Indeed; every delinquency complaint filed

against a juvenile states that the offending conduct is "an act that would be a

crime if committed by an adult." See R.C. 2152.02(F)(1). Of course, there is a

criminal component to any delinquency proceeding, hence the assurance of

certain constitutional rights as outlined in State v. Walls, 96 Ohio St.3d 437,

2002-Ohio-5059, at ¶26. Nevertheless, a juvenile charged with delinquency is

not charged with committing a "crime" as that term is defined in R.C.

2930.01(A). Delinquency proceedings do not end with a determination of guilt

or innocence of a crime charged. That being the case, a juvenile proceeding is

100625) P.60654

-14-

not, by definition, a "criminal proceeding" for purposes of R. C. 2921.04(B). The

state should have charged Block under R.C. 2921.03(A), which contains no

restriction on the type of proceeding in which the intimidatiori occuxred. I

respectfi.illy dissent,

25 P60655

CC 97 / 2783

T^e 6tftte of ®TJiO, [ss. I, GERALD E. FUERST, Clerk of the Court of

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

Cuyahoga County.

required by the laws of the State of Ohio, to be, kept, hereby certify that the foregoing is taken and copied

from the Jourrtal 14^^^^^ J 7+ V ^ "-'"" ' f' W, C'lA-P 8-7491of the proceedings of the Court of Appeals within and for said Cuyahoga County, and that the said foregoing

copy has been compared by me with the original entry on said Journal

and that the same is correct transcript thereof.

day of Gx^^6ac/ A.D. 20 -At

Cleveland in s'd County this

.3Jtt @Gegtimottp VTjereof, I do hereunto subscribe my name officially,

and affix the seal of said court, at the ^ourt -Iouse in the City of

GERALf E..FUERST 2/c of Courts

By Deputy Clerk