[Cite as State v. VonStein , 2021-Ohio-2984.] IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO/CITY OF HAMILTON, Appellee,

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JESSE H. VONSTEIN, Appellant. :

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:

:

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: CASE NO. CA2020-11-111

O P I N I O N

8/30/2021

CRIMINAL APPEAL FROM HAMI LTON MUNICIPAL COURT Case No. 19CRB03760A Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant

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BYRNE, J. {¶1} The Hamilton Municipal Court found Jesse VonStein guilty of agg ravated menacing following a bench trial. VonStein appealed from the c ourt's Judgment Entry of Conviction. Based on a defective jury waiver, we reverse and v acate VonStein's conviction and remand for further proceedings. I. Factual and Procedural History {¶2} In September 2019, the Butler County Sheriff's Office filed a c omplaint charging VonStein with aggravated menacing. The complaint stat ed that VonStein, in the midst of a dispute with a neighbor, told the alleged victim tha t he would "rip your lungs out."Butler CA2020-11-111

- 2 - In October 2019, law enforcement served VonStein with the warra nt on the complaint. The same month, VonStein, through counsel, filed a written jury dem and. {¶3} VonStein's jury trial was scheduled to begin in October 2020. However, a few days before trial, VonStein's counsel appeared before the trial court and represented that VonStein – who was not present – had authorized a bench trial v ia telephone. Based on counsel's representation, the court granted the request for a b ench trial and provided counsel with a written jury trial waiver form. Counsel signed the form on behalf of VonStein, noting "per phone authorization." Counsel thereafter filed the jury waiver. {¶4} At the commencement of the bench trial, the court noted that Vo nStein was present with his counsel, that the matter had been set for a ju ry trial, but that the jury was waived, and now it would be a trial to the bench. The trial th en commenced. {¶5} Following the trial, the court found VonStein guilty as charged . VonStein appeals, raising three assignments of error. II. Legal Analysis {¶6} Assignment of Error No. 1: {¶7} THE TRIAL COURT ERRED BY EXERCISING JURISDICTION WITHOUT A

VALID JURY WAIVER. {¶8} VonStein argues that the trial court failed to have him acknowl edge his jury waiver in open court under R.C. 2945.05 and therefore the court lacked jurisdiction to conduct a bench trial. R.C. 2945.05 provides: In all criminal cases pending in courts of record in this state , the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing , signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court a nd cause, and in substance as follows: "I _______________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried b y a Judge of the Court in which the said cause may be pending. IButler CA2020-11-111

- 3 - fully understand that under the laws of this state, I have a constitutional right to a trial by jury." Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. (Emphasis added.) {¶9} "Therefore, to be valid, a [jury trial] waiver must meet five c onditions. It must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open court." State v. Lomax , 114 Ohio St.3d 350, 2007-Ohio-4277, ¶ 9; State v. Reynolds , 12th Dist Warren No. CA2019-08-077, 2020-Ohio-4354, ¶ 8. The Ohio Supreme

Court further clarified: a trial court does not need to engage in an extended colloquy with the defendant in order to comply with the statutory requirement that a jury waiver be made in open court. There must be, however, some evidence in the record of the proceedings that the defendant acknowledged the waiver to the trial court while in the presence of counsel, if any. Absent su ch evidence, the waiver does not comply with the requirements of R.C. 2945.05 and is therefore invalid.

Lomax at ¶ 42. {¶10} The "in open court" requirement is satisfied when the trial cou rt inquires whether the defendant has voluntarily signed a jury trial waive r. Id . "Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury." State v. Pless , 74 Ohio St.3d 333 (1996), paragraph one of the syllabus. {¶11} The record demonstrates that the trial court's brief reference to the jury trial waiver at the commencement of trial did not satisfy the require ment of R.C. 2945.05 that VonStein acknowledge his waiver in open court. See Reynolds , 2020-Ohio-4354 at ¶ 14. 1

1. Although not argued by VonStein on appeal, we note that he did not sign the jury waiver form.Butler CA2020-11-111

- 4 - Because VonStein's waiver was not made in open court, the trial court lacked jurisdiction to

conduct a bench trial. Reynolds at ¶ 15. Accord Pless at 339 ("Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks juri sdiction to try the defendant without a jury"). We therefore sustain VonStein's first assign ment of error, reverse his conviction for aggravated menacing, and remand the case for fur ther proceedings. {¶12} Assignment of Error No. 2: {¶13} THERE WAS INSUFFICIENT EVIDENCE TO CONVICT FOR AGGRAVATED MENACING UNDER R.C. 2903.21(A). {¶14} Assignment of Error No. 3: {¶15} THE TRIAL COURT ERRED BY CONVICTING THE DEFENDANT OF

AGGRAVATED MENACING WHEN THE RECORD SUPPORTED A MENACING

CONVICTION. {¶16} Given our disposition of VonStein's first assignment of error, and in accordance with App.R. 12(A)(1)(c), we find his second and thir d assignments of error are

moot and need not be addressed. {¶17} Judgment reversed and remanded.

M. POWELL, J., concurs. PIPER, P.J., concurs separately.

PIPER, P.J., concurring separately. {¶18} In concurring with the foregoing opinion, I write briefly to sa y that had it not been for our resolution of the first assignment of error, I wou ld have sustained VonStein's second assignment of error. {¶19} Over a period of years, VonStein and Brandenburg had ongoing di sputes andButler CA2020-11-111

- 5 - various disagreements. Brandenburg considered VonStein as a "t horn in his side" and "like a used car salesman he smiles at everybody and then will stab y ou when you're not looking." {¶20} Dramatic, exaggerated statements are often not meant to be take n literally but rather to make a point. Of course, Brandenburg does not re ally believe car salesmen go around killing people by stabbing them in the back. While d isrespectful to salesmen, Brandenburg was trying to get the point across that he consider ed Vonstein to be distrustful. Being a thorn in the side, or distrustful, is not supportive of a realistic belief of life-threatening harm. Despite the verbal abuse the two may have exchanged in t he past, there is no evidence of physical contact, let alone that either would cause the other "serious" physical harm. After years of displeasure with one another, each seemed to know their limits. One of Brandenburg's witnesses posited that VonStein was possibly i n the vicinity but did not personally get involved in the incident at hand and instead, se nt an employee over "probably to keep him (VonStein) from doing something rash." This sugges ts even Brandenburg's employee believed VonStein, despite being "mad," wouldn't expos e himself to the possibility of a personal confrontation. {¶21} There is little doubt that Brandenburg's flooding water onto Vo nStein's property would rile VonStein. Similarly, there is little doubt VonStein's verbiage would let Brandenburg know how upset and angry VonStein was about the wat er drainage continuing onto his property. No one who saw and heard the exchange testi fied Brandenburg showed signs of fear or serious distress indicative of a sincere conce rn for serious physical harm at the hands of VonStein. There is nothing in the record describi ng trembling, a quivering voice, actions to seek shelter, or conduct indicative of a fear involving serious physical harm. Absent are any excited utterances that confirm the sincerity of Brandenburg's depth of concern for serious physical harm. To the contrary, testimony suggests that those listeningButler CA2020-11-111

- 6 - to Vonstein over the phone, were actually laughing and grinning – VonStein was "mad." Every adult knows words spoken when "mad" are intensified and n ot fully meant. Common knowledge tells us that in anger lies the absence of deliberati on and reflection. {¶22} Brandenburg's exaggerated statement that car salesmen go around stabbing people when they are not looking was intended to make a point; Vonstein's exaggeration was intended "to get him (Brandenburg) to stop" the flooding of his property. 2 Lacking is any credible evidence that this telephone exchange, or future d isagreements, would lead to physical harm, much le ss serious physical harm. {¶23} The very definition of "hyperbole" is that exaggerated statemen ts are not meant to be taken literally. Regardless of how cartoonish one' s imagination might be, VonStein's words were incapable of being carried out literally. Such an act is inconsistent with factual possibility. Additional hyperbole, incapable of p erformance, was Vonstein's statement that he would "sue his (Brandenburg's) ass off." Yet , a statement to sue does

demonstrate an intention to res ort to the legal system, not vio lence. {¶24} Brandenburg refers to VonStein as a "bully." However, bullies tend to intimidate, humiliate, or embarrass others, rarely engaging in serious physical harm. Rather it is clear VonStein's dramatic words of anger comprised an att empt to inhibit Brandenburg to discontinue the potential contamination of VonStein's ground water which feeds his pond. However, this does not support a credible belief that VonStein was telegraphing a future intention to cause Brandenburg "serious" physical harm. This i s particularly true where VonStein knew there were witnesses and the call was being recor ded. While it appears the two may have taunted and possibly aggravated one another for ye ars, the record establishes they have never been physical – not even the slight est scuffle or shove. A

2. The record supports that the flooding of Vonstein's propert y had been ongoing and that there was a concern for the flooding contaminating a pond on Vonstein's property.Butler CA2020-11-111

- 7 - genuine and sincere belief a heinous, and obscene injury was a realistic possibility appears preposterous and the stated belief by Brandenburg that VonStein had the physical capability to take lungs out via the throat is unconvincing. {¶25} Among other factors, judging cr edibility involves accessing mot ive, physical possibility, the reasonableness of explanations and attendant d etails, the context of circumstances, the possibility of corroboration or supporting c ircumstantial evidence, and in general the believability of testimony and how that testimon y was delivered. It is a difficult task to review the reasonableness of believing that serious phy sical harm was being

threatened. {¶26} Appellate review becomes even more difficult when appellee file s no argument or brief in opposition to the appeal requesting revers al. Compounding the review even more is a record that contains the use of leading question s with suggested answers on material points, opinions tendered as conclusions unfollowed by explanations or corroboration, and testimony referencing evidence not actually produced. 3 {¶27} If not for the trial court's lack of jurisdiction, and even con sidering the evidence most favorable to the non-moving party, in the absence of a rea sonable belief as to the actual threat of serious physical harm, I would reverse and vac ate the conviction as the Crim.R. 29 request for acquittal was proper.

3. For example, while portions of a recording were repeatedly referenced, the complete recording itself was never produced; additionally, the complainant testified his emp loyee would corroborate past threats being made, but that never happened. There were no details as to the purported "threats" or the circumstances involved. Never being connected or relevant to the event in que stion, it appears the "threats" were offered as impermissible character evidence. As further example, the comp lainant upon direct examination was led to testify that Vonstein actually said he would kill the complainant, yet no one else testified such a statement occurred, including the responding officer, and the sole, isola ted support for such a statement is found only in the answer to a leading question. The entirety of the record ne gates the believability of such a statement occurring – again exaggeration to make a point to convince the tribunal rather than to convey the facts.