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Felony Intimidation Charge Does Not Require Threat to Engage in Unlawful Conduct
2005-1965 and 2005-2114. State v. Cress, 2006-Ohio-6501.
Marion App. No. 09-04-42, 163 Ohio App.3d 46, 2005-Ohio-4620. Judgment affirmed.
Moyer, C.J., Pfeifer, O'Donnell and Lanzinger, JJ., concur.
Resnick, Lundberg Stratton and O'Connor, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6501.pdf
(Dec. 27, 2006) A criminal charge of felony intimidation does not require the state to prove that the defendant made a threat to engage in unlawful conduct, but it does require a showing that the defendant engaged in a predicate underlying criminal offense in making the threat, the Supreme Court of Ohio ruled today.
The Court's decision hinged on the meaning of the term “unlawful threat” in the statute defining the crime of intimidation, and gives statewide uniformity to the term, which had been interpreted differently by different Ohio appellate districts. The decision does not impact prosecutions charging misdemeanor intimidation.
In a 4-3 decision authored by Chief Justice Thomas J. Moyer, the Court affirmed a decision of the 3rd District Court of Appeals overturning the felony intimidation conviction of Shawn Cress of Marion for threatening to reveal certain embarrassing information about his ex-girlfriend in an attempt to get her to drop other criminal charges against him. The Supreme Court also ruled, however, that the court of appeals erred in holding that a charge of felony intimidation in violation of R.C. 2921.04(B) requires a showing by the state that the defendant threatened to engage in unlawful conduct. The majority concluded that Cress had been wrongfully convicted because the prosecution failed to show that he had made an “unlawful threat.”
“We hold … that the statutory language in R.C. 2921.04(B), proscribing intimidation by an ‘unlawful threat of harm' is satisfied only when the very making of the threat is itself unlawful because it violates established criminal or civil law,” Chief Justice Moyer wrote. “For example, where the making of a threat constitutes the offense of coercion, in violation of R.C. 2905.12, a misdemeanor, that offense would serve as a predicate offense for the crime of witness intimidation as prescribed by R.C. 2921.04(B), a felony.”
In April 2003, Cress and Tara Thacker, who subsequently married, occupied separate apartments in a “duplex” building in Marion owned by Cress' father. The two had been involved in a romantic relationship, but were quarrelling on the evening of April 25. Thacker invited several friends to spend the evening socializing in her apartment, and refused to admit Cress to her apartment when he tried to enter or to talk with him when he tried to call her on the phone and threw rocks against an exterior wall of the apartment to get her attention.
Later that evening, Cress entered Thacker's apartment through an attic access panel in an upstairs bedroom closet. When Thacker investigated noises coming from the bedroom, she found Cress hiding in the closet. She screamed and locked the closet door with Cress inside, then called police to report a break-in.
Cress was subsequently arrested and taken to the Marion County jail, where he first called Thacker demanding that she withdraw her criminal complaint against him. When she refused, and asked police to prevent Cress from calling her again, Cress made seven subsequent phone calls to family members in which he directed them to call Thacker and threaten her with a variety of negative consequences if she didn't come to the police station immediately and secure his release by telling police that the criminal complaints she had filed against him “were lies.”
During those calls, which were made from a jail phone and recorded by police, Cress instructed his mother, father and brother to call Thacker and threaten her with, among other things, eviction from her apartment, loss of custody of her children, disclosure of her alleged past drug use and possession of stolen rental property and circulation of alleged embarrassing or scandalous photographs of her if she didn't drop the charges against him. Cress was subsequently tried on charges of burglary, intimidation, retaliation and extortion. He was acquitted on all charges except felony intimidation of a witness or victim of a crime. For that conviction he was sentenced to three years of community control, including 60 days in jail.
Cress appealed, and the 3rd District Court of Appeals vacated his conviction and sentence for felony intimidation. In a 2-1 decision, the appellate panel ruled that the state had not proved the crime of felony intimidation because it had not proved that Cress had used threats of unlawful conduct to attempt to influence, intimidate or hinder Thacker. The 3rd District certified that its ruling was in conflict with decisions of other Ohio courts of appeals. The Supreme Court agreed to review the case to resolve the conflict among districts.
In today's Supreme Court opinion, Chief Justice Moyer wrote: “The court of appeals erred in holding that R.C. 2921.04(B) proscribes only threats of impending criminal conduct. The court of appeals nevertheless correctly reversed Cress's conviction of felonious witness intimidation in violation of R.C. 2901.14(B), as the state failed to prove that Cress made an unlawful threat of harm, i.e. it did not introduce evidence demonstrating the elements of any predicate offense.”
Chief Justice Moyer's opinion was joined by Justices Paul E. Pfeifer, Terrence O'Donnell and Judith Ann Lanzinger.
Justice Maureen O'Connor wrote a dissent that was joined by Justices Alice Robie Resnick and Evelyn Lundberg Stratton. O'Connor wrote that she would reverse the court of appeals and uphold Cress' conviction. “I believe … [use of the term ‘unlawful'] as a modifier to the term ‘threat,' evinces a clear legislative intent to distinguish between speech that is constitutionally protected and speech that is not protected because it is used for an unlawful means, e.g., to influence, intimidate, or hinder a crime victim,” O'Connor wrote. “
“Cress … did not simply exercise his right to speak. Rather, a rational jury could (and did) find that he used his lawful right to disclose the information for an unlawful purpose, i.e., to force Thacker to recant statements she had made to the police in an attempt to hinder his prosecution. I believe that is exactly the speech that the General Assembly meant to reach in enacting the statute at issue here.”
Contacts
Renee' Potts, 740.223.4290, for
the State of Ohio and Marion County prosecutor's office.
Kevin P. Collins, 740.223.1470, for Shawn Cress.
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