[Cite as State v. Stutz, 2020-Ohio-6959.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiffs-Appellee 

v. 

GINGER E. STUTZ 

Defendant-Appellant 

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Appellate Case No. 28705 

Trial Court Case No. 2019-CRB-1847 

(Criminal Appeal from 

Municipal Court) 

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O P I N I O N 

Rendered on the 30th day of December, 2020. 

. . . . . . . . . . . 

CHRISTINE L. BURK, Atty. Reg. No. 0050559, City of Miamisburg Prosecutor’s Office, 

10 North First Street, Miamisburg, Ohio 45342 

 Attorney for Plaintiff-Appellee 

 

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 

45429 

 Attorney for Defendant-Appellant 

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HALL, J. 
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{¶ 1} Ginger E. Stutz appeals from her conviction following a bench trial on one 

count of aggravated menacing, a first-degree misdemeanor. 

{¶ 2} In her sole assignment of error, Stutz challenges the legal sufficiency of the 

State’s evidence to sustain her conviction. 

{¶ 3} The record reflects that Stutz is a former Dayton police officer. The charge 

against her stemmed from comments she made to her son, Sean Stutz, during a 

November 9, 2019 telephone conversation. At trial, Sean testified that his mother told him 

that “she thinks the police department is corrupt and that Rick is corrupt.” (Trial Tr. at 10.) 

She proceeded to tell her son, “If I had a gun on me right now, I would shoot Rick in the 

f***ing face.” (Id. at 13.) Although Stutz had retired from the Dayton Police Department in 

2017, Sean assumed that she was referring to the Dayton Police Department and Police 

Chief Richard Biehl. (Id. at 10-12, 14.) Stutz was crying and in an emotional state while 

on the telephone. (Id. at 16.) She did not own a gun, however, and to Sean’s knowledge 

she did not have one in her possession on November 9, 2019. (Id. at 14-15.) 

{¶ 4} Sean nevertheless was concerned about his mother’s comment. (Id. at 12.) 

She had been acting “erratic” prior to the call, and he was worried about her mental state. 

(Id. at 10-11.) He explained: “There were times that she would think there’s cameras in 

my bedroom back when I lived with her. She thought there were cameras in the car. She 

thought that I was working with Rick and that our whole family was. She thinks the police 

department was in on it too, a variety of different things.” (Id. at 11.) As a result of his 

concerns, Sean called Jimmy Howard, a long-time family friend who also was with the 

Dayton Police Department. (Id. at 12.) 
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{¶ 5} Howard testified that he had known Stutz for roughly 30 years and had 

worked with her at the Dayton Police Department. In Howard’s opinion, Stutz started 

“getting a little paranoid” toward the end of her career. (Id. at 24.) With regard to the 

incident in question, Howard stated that he was concerned when Sean told him what 

Stutz had said on the phone. Howard took it seriously and contacted his supervisor, 

Sergeant Aaron Fraley, about it. (Id. at 27-28.) Lieutenant James Mullins also was told 

what Stutz had said, and he contacted his own supervisor. (Id. at 31.) Mullins testified 

that police officers were assigned to guard Chief Biehl’s house as a result of what Stutz 

told her son. (Id. at 31-32.) 

{¶ 6} The next witness was police officer Matthew Brown. He testified that he was 

assigned to watch Chief Biehl’s house on the night of November 9, 2019. While doing so, 

he saw a car matching the description of Stutz’s vehicle, a black Buick MKX, start to turn 

toward Chief Biehl’s house near midnight. The vehicle turned around in the cul-de-sac 

and sped away after apparently seeing Brown’s marked police cruiser. (Id. at 35-38.) 

{¶ 7} Chief Biehl testified that he knew Stutz when she was employed with the 

police department. According to Chief Biehl, he only occasionally interacted with her 

through his job. He testified that Stutz tried multiple times to engage in personal 

conversation or a personal relationship with him despite being ordered not to contact him. 

(Id. at 58.) She eventually was suspended multiple times, and efforts were made by the 

police department to get her “some kind of psychological assessment.” (Id. at 58-59.) 

Chief Biehl testified that Stutz also would send him text messages and occasionally call 

him. On one occasion in November 2017, she left him a voice mail about the two of them 

getting married and wanting to know the details. (Id. at 59, 63.) In her messages, Stutz at 
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times referred to Chief Biehl as “Rick.” (Id. at 60.) 

{¶ 8} With regard to what Stutz told her son on the telephone, Chief Biehl took it 

seriously after being told of the comments. (Id. at 65.) He was particularly concerned 

because he knew Stutz to be delusional, obsessive, and lacking in impulse control. (Id.) 

Chief Biehl testified that Stutz carried a firearm when she worked for the police 

department and that there was no legal impediment to her purchasing a firearm. (Id. at 

66.) He recalled two assistant chiefs, Matt Carper and Eric Henderson, telling him what 

Stutz had told her son within minutes of each other. (Id. at 74.) 

{¶ 9} Following Chief Biehl’s testimony, defense counsel made a Crim.R. 29 

motion for acquittal, which the trial court overruled. (Id. at 84.) The trial court took the 

matter under advisement and later made a finding of guilt. While acknowledging that “this 

was a close call,” the trial court found sufficient evidence to prove beyond a reasonable 

doubt that Stutz committed the offense of aggravated menacing in violation of R.C. 

2903.21(A). The trial court imposed a partially suspended jail term with electronic home 

monitoring and other conditions, including a mental-health assessment, no contact with 

Chief Biehl, and no possession of firearms. The trial court denied a motion to stay 

execution of Stutz’s sentence pending appeal. 

{¶ 10} In her assignment of error, Stutz contends the State presented legally 

insufficient evidence to sustain her conviction. For purposes of appeal, Stutz does not 

dispute that her comment about shooting “Rick” in the face if she had a gun qualified as 

a threat to cause serious physical harm under the aggravated-menacing statute. See

State v. Collie, 108 Ohio App.3d 580, 582, 671 N.E.2d 338, 339 (1st Dist.1996) (“Collie's 

statement, ‘[i]f I had a gun, I would shoot you,’ is what is known in law as a conditional 
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threat. A conditional threat can constitute a violation of the menacing laws.”). She argues, 

however, that she did not knowingly cause Chief Biehl to believe she would cause him 

serious physical harm because her comment was not reasonably calculated to reach the 

police chief, as she had no reason to believe the comment would be conveyed to him. 

Stutz also argues that the State failed to establish venue because there is no evidence 

from which it can be found that any element of the offense occurred within the territorial 

jurisdiction of the Miamisburg Municipal Court. 

{¶ 11} When a defendant challenges the sufficiency of the evidence, she is arguing 

that the State presented inadequate evidence on an element of the offense to sustain the 

verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d 

Dist.2000). “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.” State v. 

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. 

{¶ 12} With the foregoing standards in mind, we find legally sufficient evidence to 

support Stutz’s conviction. Viewing the evidence in a light most favorable to the State, we 

believe a rational trier of fact could have found the essential elements of aggravated 

menacing proven beyond a reasonable doubt. The aggravated-menacing statute 

provides in relevant part: “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[.]” 
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R.C. 2903.21(A). “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). 

{¶ 13} The aggravated-menacing statute does not require a threat to be made 

directly to the victim. State v. Tipton, 2d Dist. Montgomery No. 28602, 2020-Ohio-3680, 

¶ 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.” State v. Scott, 7th Dist. 

Mahoning No. 07 MA 152, 2009-Ohio-4961, ¶ 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.” 

{¶ 14} While we agree with the trial court’s assessment that this is a close case, 

we find legally sufficient evidence to support a finding that Stutz was aware her comment 

to her son probably would reach Chief Biehl. The record contains evidence that Stutz, a 

former Dayton police officer, had spoken to her son about “Rick” on more than one 

occasion. (Trial Tr. at 11.) On the record before us, it was reasonable for Sean to infer 

that Stutz meant Chief Biehl, and Stutz reasonably should have expected him to interpret 

her comment about shooting “Rick” as a reference to the police chief. The record also 

contains evidence that Stutz believed Sean was “working with Rick” and that Dayton 

police officer Jimmy Howard was a close friend of Stutz to the point of being “almost like 

a family.” (Id. at 11, 23). Given Stutz’s history of apparent mental-health issues, about 

which Sean was aware, as well as Stutz’s belief that Sean was “working with” Chief Biehl 

against her and the Stutz family’s friendship with officer Howard, the record contains 

legally sufficient evidence to support a finding that Stutz should have known that Sean 
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probably would relay her threat to the police department and that it would reach Chief 

Biehl. 

{¶ 15} As for venue, R.C. 2901.12(A) provides for a criminal trial to be held “in the 

territory of which the offense or any element of the offense was committed.”1 In a 

menacing case, venue is proper where the offender made the threat or where the victim 

heard the threat. State v. Dengg, 11th Dist. Portage No. 2008-P-0063, 2009-Ohio-4101, 

¶ 34; Fairfield v. McRoberts, 100 Ohio App.3d 476, 478, 654 N.E.2d 370 (12th Dist.1995). 

“When the offense or any element of the offense was committed in [a] * * * motor vehicle 

in transit, and it cannot reasonably be determined in which jurisdiction the offense was 

committed, the offender may be tried in any jurisdiction through which the * * * motor 

vehicle * * * passed.” R.C. 2901.12(B). 

{¶ 16} Here Sean testified that he was at a Miamisburg car dealership with Stutz 

just before the phone call at issue. (Trial Tr. at 9.) Sean and his mother left the dealership 

in separate cars. (Id.) He received the telephone call from his mother less than five 

minutes after they pulled out of the lot. (Id. at 15.) When defense counsel suggested to 

Sean that his mother was traveling south on Interstate 75 at the time, Sean responded 

that he did not know where she was when she called. (Id. at 15.) Under these 

circumstances, however, it is reasonable to infer that Stutz either remained in Miamisburg 

when she called or was traveling in her car, which at a minimum had passed through 

 

1 In response to Stutz’s Crim.R. 29 motion, the trial court stated that it did not perceive 

her to be raising a venue issue. (Trial Tr. at 83.) As part of the motion, however, defense 

counsel did argue that “Sean Stutz testified that he was at CarMax; however, no one 

knows where [the defendant] was” at the time of the telephone call. (Id. at 82.) The 

prosecutor construed this argument as raising a venue issue. (Id.). We agree and 

conclude that Stutz preserved the issue below by raising it in her Crim.R. 29 motion. 
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Miamisburg. Therefore, the record contains evidence to support a finding that venue was 

proper in the Miamisburg Municipal Court. 

{¶ 17} Stutz’s assignment of error is overruled, and the judgment of the 

Miamisburg Municipal Court is affirmed. 

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TUCKER, P.J. and DONOVAN, J., concur. 

Copies sent to: 

Christine L. Burk 

Charles M. Blue 

Hon. Robert W. Rettich, III