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State v. Hoying

State v. Hoying In another e-mail written on the same day, Hoying 2005 WL 678989 (OhioApp.) again threatened to go to Ms. Criswell's place of employ- ment. He reiterated that threat in another e-mail, which HISTORY was also written on August 17, 2003. Theodore Hoying, the defendant, was convicted by a jury As a result of receiving these e-mails, Ms. Criswell filed in the Court of Common Pleas, of menacing by stalk- charges in Xenia Municipal Court, alleging that Hoying ing and intimidation of a victim. He was sentenced to a had violated the civil protection order. Hoying acknowl total of six and one-half years in prison. The defendant edged receiving the charge in an e-mail dated August 28, appealed. The Ohio Court of Appeals affirmed. 2003. In that e-mail, Hoying said, "Kelly, why did you do BROGAN, J. that at Xenia? All I wanted was for things to be normal. I thought you could be nice." The same day, Hoying threatened to file criminal charges against Ms. Criswell's FACTS boyfriend, whom Hoying thought was named "Grinstead." Ted Hoying met the victim, Kelly Criswell, when they Subsequently, on August 30, 2003, Hoying sent Ms. both worked at a local restaurant. In June 2002, Hoying Criswell another message. In that e-mail, Hoying threat- asked Criswell for a date and became quite angry when ened that "If the stuff in Xenia is not handled then some she declined. When Hoying persisted in contacting Ms. things are going to happen." The next day, Hoying sent a Criswell after she left her employment with the restau- message, which said: rant, Ms. Criswell obtained a civil protection order against Ms. Criswell, tell your old man to get rid of the Xenia Hoying in February 2003. Subsequently, between August stuff or the hammer is going to fall heavy on him. It will 15, 2003, and September 7, 2003, Hoying sent 105 e-mails take three years to get all of this stuff straightened out. If to Ms. Criswell in violation of the protection order. not, remember you are going to be subpoenaed for the In the first e-mail, which is dated August 15, 2003, thefts since you supplied some of the info, so you might Hoying acknowledged that he could get in trouble for as well say good bye to your job. I've been nice to you. writing. He then asked Ms. Criswell to remove the civil I don't deserve to be paid back like this. I don't want to protection order. Ms. Criswell did not reply to any of hurt you, but if you choose their side then that is that. Hoying's e-mails, which became increasingly agitated. This is such high school shit. I'm not coming to court The first threatening e-mail is dated August 16. This anyway. I have an important doctor's appointment. My e-mail states, "Maybe I still have your picture and I will life is just as important as yours. If it is not handled and post it on the Net. Fair is fair. Ted." Subsequently, Hoying they come for me, they better bring an army. Ted. wrote, "Why don't you tell the authorities I shot three boxes of shells at clay birds yesterday? I'm going to do that As a result of the e-mails, Ms. Criswell changed her the rest of my life at least once a week. I don't give a rat's address, changed her license plate, changed employment, ass what number eight says on that civil protection order. and eventually moved away. (Ms. Criswell's current living Ted." That e-mail is also dated August 16, 2003. arrangement was not revealed in court, for her protect In another e-mail dated August 16, 2003, Hoying tion.) Ms. Criswell also testified that she could possibly threatened to come to Ms. Criswell's place of employment need psychiatric or psychological assistance in the future unless she met with him. The same day, in another e-mail because of everything Hoying had done. message, Hoying indicated that he would persist in send- OPINION ing e-mails until Ms. Criswell agreed to talk to him. In an e-mail dated August 17, 2003, Hoying made a Hoying claims that his conviction for menacing by stalk- significant threat to Ms. Criswell. Specifically, he said: ing was based on insufficient evidence. As support for this contention, Hoying notes that he did not cause physical Kelly, set me free. I'm no longer a man. I'm shackled harm to Ms. Criswell and she did not seek professional like a beast. What is a man if he is not free? Let me take help for mental distress. He also notes a lack of evidence away your freedom and you feel the sting. Also, it's not that he was aware that Ms. Criswell believed he would pleasant. Set me free. Ted H. cause her physical harm or mental distress.360 | CHAPTER 10 . Crimes Against Persons II The essential elements of menacing by stalking are found Under R.C. 2929.14(A)(4), the potential term for in R.C. 2903.211, which provides, in pertinent part, that a fourth-degree felony is six to eighteen months. R.C. (A) No person by engaging in a pattern of conduct shall 2929.14(C) additionally states that: knowingly cause another person to believe that the Except as provided in division (G) of this section offender will cause physical harm to the other person or in Chapter 2925. of the Revised Code the court or cause mental distress to the other person... imposing a sentence upon an offender for a felony (B) Whoever violates this section is guilty of menacing by may impose the longest prison term authorized for stalking. the offense pursuant to division (A) of this section (2) Menacing by stalking is a felony of the fourth only upon offenders who committed the worst forms degree if any of the following applies: of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain (g) At the time of the commission of the offense, the major drug offenders under division (D)(3) of this offender was the subject of a protection order issued section, and upon certain repeat violent offenders in under section 2903.213 or 2903.214 of the Revised accordance with division (D) (2) of this section. Code, regardless of whether the person to be pro- tected under the order is the victim of the offense or When a trial court imposes maximum sentences, it another person. must state its findings and reasoning at the sentencing hearing. Also, when a trial court states its reasons for After reviewing the evidence, we agree with the State imposing a maximum sentence, it must connect those rea- that a reasonable jury could have inferred from the con- sons to the finding which the reason supports. The court tent of the e-mails that Hoying knew Ms. Criswell would consider the messages to be a threat to her physical safety cannot merely pronounce causes that objectively may be its reasons. The court must also identify which of those or to that of her father. A reasonable jury could also have causes are the particular reasons for each of the statutory found that the messages would cause Ms. Criswell mental findings that the court made distress. The fact that Ms. Criswell previously sought a civil In the present case, the trial court complied with the protection order was some evidence that she was afraid of requirement of making findings at the sentencing hearing. the defendant, and the e-mails were sent after the proter- The court also adequately connected its reasons for imposing tion order was issued to the defendant Ms. Criswell also a maximum sentence to the finding that the reason supported. testified that she was "scared to death" of Hoying and that At the sentencing hearing the court stated that it found that he had caused her much mental distress. Hoying had the greatest likelihood to re-offend, and that As an additional matter, Hoying's conduct in court did not help his case, as he interrupted Ms. Criswell's Hoying had committed the worst form of the offense Before reciting the court's specific reasons for these testimony several times with inappropriate comments, findings, we should note that the very night the jury ver- including calling her a liar. In one outburst, Hoying made dict was issued, Hoying attempted to contact the victim. what could be interpreted as a threat, stating "She'd better According to the State, Hoying attempted to contact Ms. start telling the truth and quit lying, that's for sure." Criswell five times. Hoying denied making five attempts, Hoying did not present any evidence to counteract but did admit that he tried to contact the victim after the victim's testimony, or to prove that she was lying. the verdict to ask for help with his appeal. In view of the Accordingly, any rational trier of fact had more than an nature of the crime (menacing by stalking) and the jury ample basis for finding Hoying guilty of menacing by verdict of "guilty," an attempt to contact the victim of stalking. the crime shows either a disconnection from reality or Hoyer also challenges the trial court's action in an obstinate refusal to submit to the authority of the law. sentencing Hoying to the maximum term for the convic- Hoying also refused to cooperate in any way with the tion of menacing by stalking which is a fourth-degree presentence investigation. In addition, Hoying disrupted felony, at least under the circumstances of this case. See the sentencing process, showering foul language and R.C. 2903.211 (B)(2) (g). Although community control abuse on the victim, her family, and even the court, to the sanctions are available for fourth-degree felonies, Hoying point that Hoying eventually had to be removed from the admits that they are not guaranteed. Hoying further courtroom. Ultimately, in discussing the length of the sen- concedes that he probably forfeited the ability to obtain tence, the trial court specifically connected the following community control by his conduct during trial and the sentencing hearing, and by his refusal to participate in the reasons to its findings, by stating that: presentence investigation process. Having reviewed the when the victim in this case testified, the Defendant's record, we fully agree with that statement. conduct as to her testimony was absolutely parallel Nonetheless, Hoying contends that he should not to the conduct of the crime in which he was charged, have received the maximum sentence for menacing by beginning with his sense of enjoyment of the pres- stalking because the record does not support a finding ence of the victim as she testified, and as her testimony that he poses the greatest likelihood of recidivism. We became less beneficial to the Defendant, he proceeded disagree to become more aggravated and agitated, writing notes,ultimately basically velling at the victim during the course of that testimony, clearly, giving an indication as to his attitude and conduct toward the victim in this matter which brought this case forward in the first place. For that reason, the Court finds that the shortest prison term would not protect the public from future crimes, and the count has the greatest fear for Kelly Criswell, which the record will reflect, has moved from the immediate area and has taken extraordinary steps to pre- vent her location from being identified by this Defendant. The Court notes for the record that testimony in this case and the information subsequently received indicates that the particular victim in this case had no relationship whatsoever with the Defendant, can't even suggest there ever was a scintilla of a relationship, yet the Defendant's attitude toward her is just a classic stalking attimde, and the harm caused to her is so significant that it is necessary to take extreme measures 50 the Court can protect her, as well as others from future crime. The Count clearly feels the Defendant's conduct as demonstrated at his arrest, at his arraipnment, during the conduct of this matter, the trial, and the sentencing here demonstrates an attitude on his part of failure to comply with authority, the failure to respect the integrity of other individuals, and quite candidly, makes this Defendant a very dangerous individual. The shortest prison term will demean the seriousness of the Defendant's conduct. The Count further finds based upon the facs stated herein and the information provided, which will be made a part of the record in this matter, that the Defendant's con- duct has, to a great degree, established the worst form of the offense. | do not discount Counsel's staternent that a first time offender is one in which there is an indication from the legislature that the least restrictive setting should apply; how- ever, this Count can say unequivocally, in all the time that I've been on the Bench, 've never seen a Defendant that I'm more sure of is a serious threat to sodety and to the public. The Court also finds the Defendant dearly poses the greatest likelihood to commit future crimes in this matter, and as such, the Court makes reference particularly to the competency report prepared earlier this year where the Defendant indicated in his evaluation, quote, | know I'm not crazy. | knew what | was doing when | contacted her knowing | was violating the order, end quote. We find that the above discussion by the trial court fully complies with requirements for imposing maxi- mum sentences. We also agree with the trial court that a maximum sentence was warranted. The record in this case is quite troubling, since it portrays an individual who either has no remorse for his actions, or refuses to admit he needs mental health treatment. Even though Hoying was found competent to stand trial, that does not mean that he is free of mental health problems that should be addressed, hopefully while he is in the prison system. |Hover was alse convicted of the separate crime of intimidation, not disoussed here. The trial court sentenced stalking Crimes | 361 him to consecutive sentences, amounting to a total of six and one-half years in prison. He objected to imposition of consecutive sentences. | Consecutive sentences may be imposed for convic- tions of multiple offenses, if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate o the seriousness of the offender's conduct and to the danger the offender pases to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was await- ing trial or sentencing, was under a sanction imposed pursuant to section 2929 16, 293917, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (k] At least two of the multiple offenses were com- mitted as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses commitied as part of any of the courses of conduct adequately reflects the sericusness of the offender's conduct. (c} The offender's history of aiminal conduct dem- onstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2979.14(E){4]). In imposing consecutive sentences, the trial court relied on R.C. 2929 14(E)(4)(b) and(c). Specifically, the court commented that: a consecutive term would be appropriate in this case because it's necessary to protect the public from future crime by this Defendant, and | believe that the evidence presented in the trial in this matter, the Defendant's behavior during the trial, his failure to comply with the simplest matters of completing the presentence inwestipation dearly indicates that the Defendant's desire to not follow authority is quite clear. In fact, the Court would po so far 2 to malke that finding beyond a reasonable doubt The Court further finds that consecutive sen- tences would be appropriate to punish the offender for the conduct he committed, and consecutive sen- tences in this case are not disproportionate to the seriousness of the Defendant's conduct and to the danger the Defendant clearly and unequivocally poses to the victim in this case and to the public generally. The Court further finds that the harm caused in this case is s0 great that no single sentence would adequately reflect the seriousness of the Defendant's conduct, and the information received by the Prosecuting Attormey, which was made a pant of the record in this case, indicating that the Defendant