[Cite as State v. Schoeneman, 2012-Ohio-4710.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsKENNETH E. SCHOENEMAN 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2012 CA 00062 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2011 CR 00657(B) 

JUDGMENT: Reversed 

DATE OF JUDGMENT ENTRY: October 9, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO JEFFREY R. JAKMIDES 

PROSECUTING ATTORNEY 325 East Main Street 

RENEE M. WATSON Alliance, Ohio 44601 

ASSISTANT PROSECUTOR 

110 Central Plaza South, Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2012 CA 00062 2

Wise, J. 

{¶1} Appellant Kenneth Schoeneman appeals his conviction on one count of 

menacing by stalking1 entered in the Stark County Common Pleas Court following a trial 

to the bench. 

{¶2} Appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and background are as follows: 

{¶4} In July, 2008, Appellant’s father Earl Schoeneman died. He was survived 

by five children who have been bitterly feuding over his estate ever since. Appellant 

and his brother Charles contend that their sister Robin Minor concealed assets, altered 

a bank account, and fabricated a debt owed to herself by her father and claim that she 

is wrongfully in possession of their father's truck. 

{¶5} In February, 2010, following a number of incidents between Appellant and 

her family, Ms. Minor was granted a Civil Protection Order against Appellant. 

{¶6} Subsequent to the granting of the protection order, the Minor family 

claimed that Appellant continue to annoy, harass and/or intimidate them. 

{¶7} The Minors claim that Appellant engaged in the following behavior: 

{¶8} On Easter Sunday 2010, Robin went to visit her father's grave with her 

husband. While they were there, Kenneth drove by and yelled "Purgerers (sic) how are 

you doing today?" 

 

1 Appellant was also charged with two felony counts of violating a protection order and 

two misdemeanor counts of violating a protection order. Appellant was found guilty of 

the misdemeanor counts and not guilty of the felony counts. Appellant does not assign 

any error to these convictions. 
Stark County, Case No. 2012 CA 00062 3

{¶9} The Minors also claim that anything Robin placed on her father's grave 

would be removed or destroyed. On several occasions the destroyed items would be 

dumped in her front yard, placed in her mailbox, or would be found strewn along the 

road on her drive to Dueber United Methodist Church. 

{¶10} They also claim that Appellant left antagonistic messages on Robin's voice 

mail on August 29, 2010. 

{¶11} On May 2, 2010, Appellant was parked outside the church. 

{¶12} On May 25, 2010, the same day Appellant was following Matthew around, 

Robin was out running an errand when Appellant passed her going the opposite 

direction. Appellant then made a u-turn and followed her home. Robin drove into her 

garage and shut the door. Appellant was yelling outside "'Minors, I saw your son." Robin 

called the police, and Appellant was arrested. 

{¶13} One of the messages left on Robin's voice mail was left one day before a 

court appearance on the matter. In it, Appellant repeats "here comes the judge" three 

times, then laughs maniacally. The matter was later dismissed. 

{¶14} On December 12, 2010, as Robin and her husband were driving home 

from church, they saw Appellant driving toward them. As he passed them, he extended 

his arm out the window, pointed his finger like a gun and moved his thumb back and 

forth while repeating "pow-pow." 

{¶15} On January 30, February 6 and February 20, 2011, the Minors again 

encountered Appellant driving toward them on their way home from church. On those 

occasions, however, Appellant swerved left of center as if to hit the front of the Minor's 

vehicle. 
Stark County, Case No. 2012 CA 00062 4

{¶16} On May 29, 2011, Robin and Daniel were again at the cemetery visiting 

Mr. Schoeneman’s grave. Daniel stayed in the vehicle while Robin went to the grave 

site. Again, Appellant appeared and from her location, Robin could hear Appellant 

shouting at Daniel "Hi Dan. Is this take a criminal to the graveyard day?" When Daniel 

refused to speak to him, Appellant began spewing vulgarities at Daniel. Daniel captured 

the incident on video. 

{¶17} Robin also visited her father's grave on Father's Day, June 19, 2011 and 

again Appellant appeared, this time he stood shouting "I can yell 500 feet." 

{¶18} On July 25, 2011, the Stark County Grand Jury returned an indictment 

charging Appellant Kenneth Schoeneman with one count of menacing by stalking, two 

counts of felony violations of a protection order and two misdemeanor counts of 

violating a protection order. 

{¶19} The matter came before the bench on January 25 and 26, 2012. 

{¶20} At trial, the court heard testimony from Robin, Dan and Matthew Minor. 

{¶21} By Judgment Entry filed February 14, 2012, the trial court found Appellant 

guilty of one count of Menacing by Stalking, a fourth degree felony, two counts of 

Violating a Protection Order, first degree misdemeanors, and not guilty on two counts of 

Violating a Protection Order, third degree felonies. 

{¶22} Appellant now appeals, assigning the following error for review: 

ASSIGNMENT OF ERROR

{¶23} “I. THE TRIAL COURT’S DECISION WAS CONTRARY TO LAW, AS IT 

WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND THE TESTIMONY OF 
Stark County, Case No. 2012 CA 00062 5

THE ALLEGED VICTIM CLEARLY ESTABLISHED THAT THE MAIN ELEMENT OF 

R.C. 2903.211(A)(1)(B)(2)(b) AND/OR (c) WAS NOT SATISFIED.” 

I. 

{¶24} In his sole Assignment of Error, Appellant argues that his conviction on the 

count of menacing by stalking is against the sufficiency of the evidence. We agree. 

{¶25} On review for sufficiency, a reviewing court is to examine the evidence at 

trial to determine whether such evidence, if believed, would support a conviction. State 

v. Jenks (1991), 61 Ohio St.3d 259. “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.” Jenks at 

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 

S.Ct. 2781, 61 L.Ed.2d 560. 

{¶26} We note the weight to be given to the evidence and the credibility of the 

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 

certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. The trier of fact 

“has the best opportunity to view the demeanor, attitude, and credibility of each witness, 

something that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio 

St.3d 415, 418, 1997-Ohio-260. 

{¶27} In the case sub judice, Appellant was convicted of one count of Menacing 

by Stalking, in violation of R.C. §2903.211(A)(1)(B)(2)(b) and/or (c), which provides: 

{¶28} “(A)(1) No person by engaging in a pattern of conduct shall knowingly 

cause another person to believe that the offender will cause physical harm to the other 

person or cause mental distress to the other person. 
Stark County, Case No. 2012 CA 00062 6

{¶29} “*** 

{¶30} “(B) Whoever violates this section is guilty of menacing by stalking. 

{¶31} “*** 

{¶32} “(2) Menacing by stalking is a felony of the fourth degree if any of the 

following applies: 

{¶33} “*** 

{¶34} “(b) In committing the offense under division (A)(1), (2), or (3) of this 

section, the offender made a threat of physical harm to or against the victim, or as a 

result of an offense committed under division (A)(2) or (3) of this section, a third person 

induced by the offender's posted message made a threat of physical harm to or against 

the victim. 

{¶35} “(c) In committing the offense under division (A)(1), (2), or (3) of this 

section, the offender trespassed on the land or premises where the victim lives, is 

employed, or attends school, or as a result of an offense committed under division 

(A)(2) or (3) of this section, a third person induced by the offender's posted message 

trespassed on the land or premises where the victim lives, is employed, or attends 

school. 

{¶36} “*** 

{¶37} “(D) As used in this section: 

{¶38} *** 

{¶39} “(2) ‘Mental distress' means any of the following: 

{¶40} “(a) Any mental illness or condition that involves some temporary 

substantial incapacity; 
Stark County, Case No. 2012 CA 00062 7

{¶41} “(b) Any mental illness or condition that would normally require psychiatric 

treatment, psychological treatment, or other mental health services, whether or not any 

person requested or received psychiatric treatment, psychological treatment, or other 

mental health services.” 

{¶42} Appellant herein argues that the State failed to produce sufficient evidence 

that Matthew Minor believed that Appellant would cause him physical harm or that he 

caused him mental distress. 

{¶43} At the trial in this matter, Matthew Minor, when questioned about 

Appellant’s actions, testified as follows: 

{¶44} “Q: Matthew, I think what I hear you saying is you have not felt in fear or 

threatened? 

{¶45} “A: Me personally? 

{¶46} “Q: Yes. 

{¶47} “A: Like I'm not going to lie to anybody; no, I haven't. 

{¶48} *** 

{¶49} “Q: You didn't call the police either, did you? 

{¶50} “A: I have never called the police. On Kenneth; no, I never called the 

police department.” (T. at 168-170) 

{¶51} Matthew Minor also testified that although he had been told to call the 

police if he saw Appellant, he never did because he felt that “[i]t was kind of a family 

thing. [He] never thought it was necessary.” (T. at 161). 

{¶52} The State herein argues that Matthew Minor’s testimony establishes that 

Appellant’s behavior caused him mental distress: 
Stark County, Case No. 2012 CA 00062 8

{¶53} “Q. Matthew, how has this affected your family? 

{¶54} “ A. The effect on the family, there has been a great increased amount of 

stress. I have never been one that's really felt that anybody should have to look over 

their shoulder every time they leave the house. 

{¶55} “Q. So it's affected, though, the dynamics of your own person? 

{¶56} “A. Yes. The way we generalize (sic) function; like I grew up in a very 

happy, go-lucky, loving family, and to have kind of like the happiness pulled out is kind 

of a big culture shock. There is not a whole lot of happy when it comes to my parents 

anymore. There is not a whole lot of happy when it comes to us because they are not 

happy. As a son like I’m not happy.” (T. at 165-167). 

{¶57} Upon review, we find that Matthew Minor’s testimony establishes only that 

he and his family are no longer as happy as they had been in the past, not that he has 

suffered any mental illness or condition which caused any temporary incapacity or 

would normally require treatment. 

{¶58} Based on the foregoing evidence presented, while Appellant's behavior 

might have annoyed Matthew Minor, we cannot say that it made him fear any physical 

threat. In addition, Matthew Minor’s testimony failed to establish that Appellant’s actions 

caused him any mental distress within the meaning of R.C. §2903.11(D)(2). 

{¶59} Accordingly, the trial court's judgment as it relates to the menacing by 

stalking charge is not supported by some competent, credible evidence going to all the 

elements of this case. 

 
Stark County, Case No. 2012 CA 00062 9

{¶60} Appellant’s sole Assignment of Error is sustained. 

{¶61} For the foregoing reasons, the judgment of the Common Pleas Court of 

Stark County, Ohio, is reversed as to the felony count of menacing by stalking. 

By: Wise, J. 

Delaney, P. J., and 

Edwards, J., concur. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0911 
Stark County, Case No. 2012 CA 00062 10

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

KENNETH E. SCHOENEMAN : 

 : 

 Defendant-Appellant : Case No. 2012 CA 00062 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio, is reversed as to the 

felony count of menacing by stalking. 

 Costs assessed to Appellee. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES