[Cite as State v. Mayhan , 2022

- Ohio

- 3533.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. Earle E. Wise, Jr., P.J.

Plaintiff

- Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 21CAA110062

:

BRANDON L. MAYHAN :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court

of Common Pleas, Case No. 21 CR I 02

0062

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: September 30, 2022

For Plaintiff

- Appellee: For Defendant

- Appellant:

DAVE YOST JOEL M. SPITZER

OHIO ATTORNEY GENERAL 495 S. State St.

BRAD L. TAMMARO Marion, OH 43302

SPECIAL PROSECUTOR

30 E. Broad St., 23rd Floor

Columbus, OH 43215Delaware County, Case No. 21CAA110062 2

Delaney, J.

{¶1} Appellant Brandon L. Mayhan appeals from the Judgment Entry of Prison

Sentence of the Delaware County Court of Common Pleas dated October 21, 2021.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} In July 2018, Judge David Gormley of the Delaware County Court of

Common Pleas sentenced appellant to a prison term of three years. At sentencing, Judge

Gormley stated appellant could apply for judicial release prior to the expiration date of his

prison term, but no promise was made that judicial release would be granted.

{¶3} After sentencing, the Ohio Department of Rehabilitation and Corrections

determined appellant would serve his sentence at the Northeast Ohio Correctional Facility

(“Northeast”) in Youngstown, Ohio. At any given time, there are hundreds of inmates at

Northeast serving sentences imposed in multiple jurisdictions throughout the state. At

the time of these events, 9 inmates at Northeast were sentenced in the Delaware County

Court of Common Pleas.

{¶4} Northeast has a prisoner telephone system maintained by an outside

company, GTL. Prisoners log into a unique account and place a call; an automated

message appears indicating to both the prisoner and the recipient of the call that all calls

are monitored and recorded. From the period of May 1, 2020 through July 31, 2020,

appellant made approximately 500 monitored phone calls. The recipients of appellant’s

calls included his girlfriend, his mother and father, and his grandmother.

{¶5} On June 4, 2020, Detective Chadwick Sloan of the Delaware County

Sheriff’s Office was contacted by an investigator at Northeast regarding a handwrittenDelaware County, Case No. 21CAA110062 3

document found at the prison. This document was admitted into evidence as appellee’s

Exhibit 1 and was referred to throughout trial as the “kill map.” The map depicts a hand

drawn building labeled “New Deleware Co. Court House ( sic )” and labels multiple floors,

courtrooms, fans, and air ducts. A mark on the drawing is labeled “enter here.” A circle

depicts “Judge’s seat” and “audience seating.” This courtroom is labeled “Target” and a

circular arrow designates “Kill point.” A label on the drawing states, “Judge David M.

Gormely ( sic

), Deleware Co. ( sic

), Common Pleas Court, Target, Court Room 2, 3rd

Floor.” Below the drawing, a handwritten timeline states, “In position @3:30 a.m., exicute

target 7:32 a.m. sharp ( sic ), lock down sequence enitiates 7:37 AM 9MM Berretta with

suppressor ( sic

), out of court building by 7:35.”

{¶6} Detective Sloan showed Judge Gormley the “kill map” and asked if he had

any idea who created it. At that time, Judge Gormley didn’t know who created the map.

He testified he was concerned, but he felt the matter was in capable hands because it

was being investigated by Sloan and the U.S. Marshalls. Judge Gormley noted the map

was found at Northeast, a facility located in Youngstown, but he did not personally

designate where defendants from his courtroom served their sentences, and he was

unaware of which defendants from his courtroom were sent to Northeast.

{¶7} Several weeks later, Judge Gormley received a handwritten letter

postmarked June 15, 2020, with a return address of Northeast Ohio Correctional Facility,

Youngstown, Ohio. The letter was signed by appellant and identified appellant by name

and inmate number. In the three

- page handwritten letter, appellant asked “Judge

Gormely ( sic )” why he denied appellant’s motion for judicial release. Appellant expressed

frustration because he needed to get out of prison to attend to family matters andDelaware County, Case No. 21CAA110062 4

described the efforts he attempted to make in prison to improve himself, asking Judge

Gormley “what more do you want from me.”

{¶8} When Judge Gormley received the letter, the Youngstown return address

caught his attention because Sloan was attempting to identify a Youngstown inmate. The

judge gave the letter to his courtroom deputy, who provided it to Sloan, and appellant

became the focus of the investigation into who created the “kill map.”

{¶9} Before the letter was opened, the deputies put it through the courthouse

scanner and opened it wearing gloves and masks in case it contained some type of

contaminant.

{¶10} Appellee presented a timeline of appellant’s pro se postconviction motions

before Judge Gormley that purportedly led to creation of the “kill map.” On or around

March 31, 2020, appellant had filed a pro se Motion for Judicial Release before Judge

Gormley. The judge testified that upon receipt, he would have reviewed the motion and

appellant’s Institutional Summary, or prison record, delineating appellant’s work history,

educational opportunities, and discipline while incarcerated.

{¶11} Judge Gormley denied the motion for judicial release via Judgment Entry

filed on April 1, 2020.

{¶12} On or around May 27, 2020, appellant filed a second pro se Motion for

Judicial Release before Judge Gormley. In this motion, appellant cited the Covid

- 19

pandemic and its effect on the prison population; appellant stated he has chronic asthma

and serious breathing issues and Covid

- 19 “poses a risk to [his] very life,” protesting that

he “was not sentenced to the death

- penalty.”Delaware County, Case No. 21CAA110062 5

{¶13} Judge Gormley denied appellant’s second motion for judicial release via

Judgment Entry filed on June 5, 2020.

{¶14} Appellant’s signed letter to Judge Gormley and his unsuccessful motions

for judicial release made him the focus of the “kill map” investigation. Sloan interviewed

appellant and he admitted writing a letter to Judge Gormley, but denied that he wrote the

letter postmarked June 15, 2020 because it was “too long.” He denied creating the “kill

map” and stated someone was attempting to set him up. He told Sloan he had never

seen the “kill map” before.

{¶15} Sloan subpoenaed appellant’s prison phone calls from GTL. A criminal

analyst at the Delaware County Sheriff’s Office downloaded appellant’s calls and placed

them on a disk for Sloan to listen to. On the calls, appellant is identified by name and

inmate number. Sloan listened to the calls and created appellee’s Exhibit 8, a transcript

of select calls made by appellant. The following telephone calls were played for the jury

and are summarized in pertinent part below.

{¶16} These calls contained the standard warning that calls are monitored and

recorded by law enforcement.

{¶17} In a call with his father on May 9, 2020, appellant’s father said the family

wants him out of jail so he can go back to work. Appellant replied that he wanted the

same thing, but “they don’t like to let mother fuckers go because they like to make money

on them” and he would only be released “if somebody went and put a gun to the judge’s

head and then forced him to let me out.” Or, appellant suggested, “send him pictures of

his fucking family tied up with duct tape over their mouths,” and, “[t]hat judge lied to me

anyway, he deserves it.” His father asked what the judge lied about, and appellantDelaware County, Case No. 21CAA110062 6

responded, “He lied and told me he would grant my judicial [release].” His father asked

which judge grants judicial release, and appellant responded the same one that put him

in prison.

{¶18} In a call with his mother on May 9, 2020 at 12:40, appellant stated the judge

lied to him and when he gets out he “gotta beat his ass somewhere in the parking lot.”

{¶19} In another call with his mother on May 27, 2020, appellant asked whether

his mother “got a letter to the judge” and she said yes. On May 31, 2020, in another

conversation with his mother, appellant’s mother cautioned him to “not get [his] hopes up

[about judicial release]” because he would be “devastated if they said no.” Appellant

responded, “* * * *If they say no they threatening my life, and they don’t honor my life so

I have to go after them and kill them. That’s what that means, because of the Covid 19

shit there’s an inmate in here that has it now, so if they don’t give me my judicial [release]

it means that they don’t give a fuck that I am not doing life and they don’t care if I get the

shit and die, so they have to pay for it.”

{¶20} On June 1, 2020, in a conversation with his mother, appellant mentioned a

visit with his son was canceled by prison authorities and stated, “I just want to grab one

of those pigs and ring their fuckin neck until their eyeballs pop out of their heads.” His

mother responded that the prison authorities didn’t make the decision; the governor did.

Appellant responded, “Well that’s who I want to do it too, I wanna get him and the judge

with a silencer, fuckin blow his brains out.”

{¶21} On June 2, 2020, appellant’s mother advised regarding judicial release, “It’s

denied.” Appellant asked whether the decision was with prejudice, and said, “Man I’m

about to shoot that judge, man I got to, I’m going to shoot him, I’m going to shoot him,Delaware County, Case No. 21CAA110062 7

that’s on my son I’m going to shoot him, so now you know I’m serious, that fucking bitch

lied to me.” Appellant’s mother replied that this would cause more problems for appellant

and result in more prison time, but appellant responded he would be on his best behavior

going forward because he “has something up his sleeve,” and “that judge lied to me and

he’s going to pay the price.” His mother responded that the judge told appellant only that

he would consider judicial release; he did not promise it would be granted. Appellant

responded, “Man fuck him fuck him, he’s a dead man walking.”

{¶22} On June 5, 2020, appellant had a conversation with his grandmother and

discussed the motion for judicial release. Appellant said he was getting aggravated about

the denials and was “losing his fucking head.” Further, “I’m ready to get out and do

something to that judge, I really am.” His grandmother responded that these statements

were irresponsible and not worth appellant spending more time in prison, especially when

he would eventually be released. Appellant responded that he wants revenge and feels

nothing but rage and anger, which is all he can think about.

{¶23} On June 5, 2020, appellant again expressed rage in a conversation with his

mother and said he was ready to do life in prison because the judge lied to him and he

was ready to get out and do something to the judge.

{¶24} On June 11, 2020, in a conversation with his girlfriend, appellant expressed

his frustration that everyone else was getting judicial release but him and he has an issue

with the judge; “[b]asically he’s gave me a death sentence by not releasing me. So you

know something has to transpire from that.”

{¶25} On June 19, 2020, in a conversation with his girlfriend, appellant vowed that

he would “get [his] revenge on that judge one way or another.”Delaware County, Case No. 21CAA110062 8

{¶26} During his interview of appellant, Sloan asked whether he made “disturbing”

comments about a judge during telephone calls. Appellant denied making such

statements and repeated it was not him, someone was setting him up.

{¶27} At trial, Sloan noted appellant’s handwriting in the letter to Judge Gormley

appeared very similar to the handwriting on the “kill map” when placed side

- by

- side. Also,

the judge’s name was misspelled the same way in both: “Gormely.” Sloan submitted the

“kill map” and appellant’s letter to BCI for handwriting analysis. Appellee’s Exhibit 7 is the

report from the BCI crime lab; it states there are “substantial similarities” between the

letter and the “kill map,” but the examination was limited because both items were not

originals and there was a limited amount of handwriting on the “kill map.”

{¶28} Appellant was charged by indictment with one count of retaliation pursuant

to R.C. 2921.05(A), a felony of the third degree [Count I]; one count of intimidation

pursuant to R.C. 2921.03(A), a felony of the third degree [Count II]; and one count of

aggravated menacing pursuant to R.C. 2903.21(A), a misdemeanor of the first degree

[Count III]. Appellant entered pleas of not guilty.

{¶29} The matter proceeded to trial by jury. Appellant moved for a judgment of

acquittal pursuant to Crim.R. 29(A) at the close of the evidence; the motion was overruled.

Appellant was found guilty as charged upon Counts II and III (intimidation and aggravated

menacing). He was found not guilty upon Count I (retaliation).

{¶30} The trial court ordered a pre

- sentence investigation (P.S.I.) and scheduled

the matter for sentencing. The trial court thereupon sentenced appellant to a prison term

of 30 months upon Count II and 120 days upon Count III, to be served concurrently.

{¶31} Appellant raises three assignments of error:Delaware County, Case No. 21CAA110062 9

ASSIGNMENTS OF ERROR

{¶32} “I. THE TRIAL COURT ERRED BY FAILING TO GRANT A JUDGMENT

OF ACQUITTAL, PURSUANT TO CRIM.R. 29(A) ON THE AGGRAVATED MENACING

AND INTIMIDATION CHARGES, AND THEREAFTER ENTERING A JUDGMENT OF

CONVICTION OF THOSE OFFENSES AS THE CHARGES WERE NOT SUPPORTED

BY SUFFICIENT EVIDENCE.”

{¶33} “II. THE JURY VERDICT OF GUILTY ON THE INTIMIDATION AND

AGGRAVATED MENACING CHARGES WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE PRESENTED AT TRIAL.”

{¶34} “III. THE TRIAL COURT ERRED BY FAILING TO GRANT A JUDGMENT

OF ACQUITTAL, PURSUANT TO CRIM.R. 29(A) BECAUSE DELAWARE COUNTY,

OHIO WAS NOT THE PROPER VENUE FOR THIS PROCEEDING.”

ANALYSIS

I., II., III.

{¶35} Appellant’s three assignments of error are related and will be addressed

together. He argues that his convictions for intimidation and aggravated menacing are

against the manifest weight of the evidence and are not supported by sufficient evidence.

He further argues Delaware County was not the proper venue for his jury trial. We

disagree.

{¶36} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins

, 78 Ohio St.3d 380,

1997

- Ohio

- 52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks

, 61 OhioDelaware County, Case No. 21CAA110062 10

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “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.”

{¶37} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins

, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶38} In Count II, appellant was convicted of one count of intimidation pursuant to

R.C. 21.03(A), which states:

No person, knowingly and by force, by unlawful threat of harm

to any person or property, or by filing, recording, or otherwise using

a materially false or fraudulent writing with malicious purpose, in bad

faith, or in a wanton or reckless manner, shall attempt to influence,

intimidate, or hinder a public servant, a party official, or an attorneyDelaware County, Case No. 21CAA110062 11

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

the person’s the duties of the public servant, party official, attorney,

or witness.

{¶39} In Count III, appellant was convicted of one count of aggravated menacing

pursuant to R.C. 2903.21(A), which states:

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. In addition to any other basis for the

other person's belief 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, the

other person's belief may be based on words or conduct of the

offender that are directed at or identify a corporation, association, or

other organization that employs the other person or to which the

other person belongs.

{¶40} “A person acts knowingly, regardless of purpose, when the person is aware

that the person's conduct will probably cause a certain result or will probably be of a

certain nature.” R.C. 2901.22(B). “Serious physical harm to persons” includes the

following: * * *

(b) Any physical harm that carries a substantial risk of death;Delaware County, Case No. 21CAA110062 12

(c) Any physical harm that involves some permanent

incapacity, whether partial or total, or that involves some temporary,

substantial incapacity;

(d) Any physical harm that involves some permanent

disfigurement or that involves some temporary, serious

disfigurement;

(e) Any physical harm that involves acute pain of such

duration as to result in substantial suffering or that involves any

degree of prolonged or intractable pain.

R.C. 2901.01(A)(5)(b)

- (e).

{¶41} Appellant argues his convictions are not supported by sufficient evidence

because the “kill map” and threats made during telephone conversations with family

members “are too unequivocal, unconditional, and not immediate enough ( sic )” to prove

that he attempted to influence, intimidate, or hinder Judge Gormley in the discharge of

his duties. Appellant cites our decision in State v. Yambrisak, 5th Dist. Richland No.

2012

– CA

– 50, 2013

– Ohio

– 1406, as an example of threats which are “unconditional, not

immediate * * * not specific and * * * in no way hinder[ed] * * * or influence[d]” a public

official in discharge of her duties. In that case, we found that racial slurs directed at a

detective were not threatening and were merely “statements of [the defendant’s] feelings

and opinions.” Id. at ¶ 33. With regard to a threat to “f* * * [the detective] up,” we concluded

that the choice of words was ambiguous and failed to convey a particular criminal act. Id.

at ¶ 34.Delaware County, Case No. 21CAA110062 13

{¶42} We find Yambrisak to be distinguishable from the instant case. In the phone

calls corresponding with the timing of his pro se motions and letter, appellant made

unequivocal threats to shoot the judge with a firearm equipped with a silencer. A detailed

plan to carry out this scheme, however unlikely, is laid out in the “kill map.” Appellant was

one of only 9 inmates at Northeast with an interest in Delaware County in general and

Judge Gormley in particular. Despite his denials, the jury could reasonably find

appellant’s handwriting and spelling errors in the letter were similar to the handwriting in

the “kill map.” All of appellee’s exhibits corroborated the image of appellant as an

incarcerated inmate with spiraling anxiety about the threat to his safety posed by Covid

19, anxiety which is evident in the letter, motions, and phone calls. Appellant was not

simply another inmate who hoped to end his prison term early; he believed Judge

Gormley essentially sentenced him to “death” because of the risk of Covid

- 19. Yambrisak

is this inapposite to the instant case.

{¶43} Additionally, appellee points out the threats in the telephone calls were

made when appellant believed the motions for judicial release were still pending, thus

there is evidence in the record that the threats were made with the purpose to influence

and/or intimidate Judge Gormley. Appellant made over 500 calls in the 3

- month period

covered by the GTL search warrant, and would have been warned on every call that the

calls were monitored by law enforcement. There is sufficient evidence to permit a

reasonable conclusion that appellant knew the threats would ultimately reach Judge

Gormley and, in appellant’s hopes, affect the outcome of his judicial release.

{¶44} Appellant argues his threats are conditional and do not pose an immediate

risk, but he repeatedly told friends and family that he was obsessed with seeking revengeDelaware County, Case No. 21CAA110062 14

against Judge Gormley and he intended to “keep his nose clean” in hopes that he would

be released as soon as possible to put his plan into action.

{¶45} We find legally sufficient evidence to support appellant’s convictions.

Viewing the evidence in a light most favorable to appellee, we believe a rational trier of

fact could have found the essential elements of intimidation and aggravated menacing

proven beyond a reasonable doubt.

{¶46} Appellant further argues that appellee failed to prove Judge Gormley

believed appellant would cause him serious physical harm. While it is true that the judge

testified he knew the matter was being investigated and was in capable hands, he was

also concerned enough to turn over appellant’s letter to law enforcement. Judge Gormley

testified that while the “kill map” was not an exact blueprint of his workplace, it was

concerning because he was clearly identified as the target.

{¶47} Appellant also argues the jury could not reasonably find that he knew the

threats would be conveyed to the judge. The aggravated

- menacing statute does not

require a threat to be made directly to the victim. State v. Stutz

, 2nd Dist. No. 28705,

2020

- Ohio

- 6959, 165 N.E.3d 821, ¶ 13, citing State v. Tipton

, 2d Dist. Montgomery No.

28602, 2020

- Ohio

- 3680, 2020 WL 3885907, ¶ 11. A threat “may be made indirectly if

there is evidence to support the conclusion that the offender knew the threat would

probably reach the victim.” Id., citing State v. Scott

, 7th Dist. Mahoning No. 07 MA 152,

2009

- Ohio

- 4961, 2009 WL 3003929, ¶ 20. The requirement of a probability that the threat

will be conveyed to the victim stems from the “knowingly” mens rea, which requires proof

that “the person's conduct probably will cause a certain result.” Id.Delaware County, Case No. 21CAA110062 15

{¶48} We find legally sufficient evidence to support a finding that appellant was

aware his threats probably would reach Judge Gormley. Stutz, supra, at ¶ 14. Appellant

threatened Judge Gormley to his family members repeatedly, even obsessively, while his

pro se judicial release motions were pending. His family attempted to discourage his

statements, to no avail. On each of the cited phone calls, the parties to the call were

warned the calls were monitored and recorded. Appellant would have seen this warning

on every one of the 500 calls he made just in the period covered by the search warrant.

The record contains legally sufficient evidence to support a finding that appellant should

have known that law enforcement would become aware of the threats and that they would

reach Judge Gormley. Id.

{¶49} Finally, appellant argues his prosecution was improperly venued in

Delaware County because the acts giving rise to the charges occurred at the Northeast

Ohio Correctional Facility in Youngstown, Ohio. Venue is established under Article I,

Section 10 of the Ohio Constitution, which requires criminal trials to be held in the “county

in which the offense is alleged to have been committed.” Likewise, R.C. 2901.12(A)

requires criminal trials to be held “in the territory of which the offense or any element

thereof was committed.” This statute also allows offenses committed in other jurisdictions

“as a part of a course of criminal conduct” to be tried “in any jurisdiction in which one of

those offenses or any element of one of those offenses occurred.” R.C. 2901.12(H).

{¶50} In a menacing case, venue is proper where the offender made the threat or

where the victim heard the threat. State v. Stutz

, supra, 165 N.E.3d 821, ¶ 16; State v.

Dengg

, 11th Dist. Portage No. 2008

- P

- 0063, 2009

- Ohio

- 4101, 2009 WL 2488048, ¶ 34;

Fairfield v. McRoberts

, 100 Ohio App.3d 476, 478, 654 N.E.2d 370 (12th Dist.1995). InDelaware County, Case No. 21CAA110062 16

the instant case, we agree with the trial court’s assessment that venue is proper in either

Mahoning or Delaware County. The trial court did not err in overruling appellant’s Crim.R.

29 motion for acquittal on that basis.

{¶51} Appellant’s convictions are supported by sufficient evidence and are not

against the manifest weight of the evidence, and venue was proper in Delaware County.

Appellant’s three assignments of error are overruled.

CONCLUSION

{¶52} Appellant’s three assignments of error are overruled and the judgment of

the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Baldwin, J., concur.