[Cite as State v. Ivery, 2026-Ohio-2542.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115737
v. :
GEORGE IVERY, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 2, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-697017-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary Ann Zaky, Andrew Szczepanik, and
Daniel T. Van, Assistant Prosecuting Attorneys, for
appellee.
Joseph V. Pagano, for appellant.
DEENA R. CALABRESE, J.:
On September 23, 2025, following a bench trial, the trial court found
defendant-appellant George Ivery, Jr., guilty of one count of making terroristic
threat, a felony of the third degree in violation of R.C. 2909.23(A)(1)(a), and two counts of inducing panic, misdemeanors of the first degree in violation of R.C.
2917.31(A)(2) and 2917.31(A)(3). The trial court sentenced appellant to two years
of community-control sanctions under the supervision of the adult probation
department’s community-based correctional facility unit. Appellant timely
appealed, challenging the trial court’s evidentiary rulings and its guilty verdict on
the single count of making terroristic threat. Finding no merit to the appeal, we
affirm.
I. Procedural Background
On November 20, 2024, the Cuyahoga County Grand Jury returned a
three-count indictment charging appellant with making terroristic threat, a felony
of the third degree in violation of R.C. 2909.23(A)(1)(a), and two counts of inducing
panic in violation of R.C. 2917.31(A)(2) and 2917.31(A)(3). The charges stemmed
from appellant’s posts to his Instagram account (specifically his Instagram stories),
the public’s reactions thereto, and appellant’s continuing Instagram dialog, as it
were, with the public at large. As detailed below, appellant posted multiple videos
of himself wearing a black mask or balaclava while displaying, brandishing, and even
shooting a 9 mm semiautomatic handgun outdoors, with several videos taken on
downtown sidewalks, transit stops, and both in and around Cleveland’s Tower City
complex.
Following discovery and pretrial conferences, the case came on for trial
beginning July 9, 2025. Prior to the commencement of trial, appellant waived his
right to trial by jury on the record. The signed waiver was docketed that morning. The case proceeded to trial before the bench the same day. After opening
statements, the trial court took testimony from eight witnesses and admitted 12
exhibits into evidence.
II. Summary of Trial Testimony and Exhibits
A. The State’s Case-in-Chief
1. Kelsey Johnson
The State’s first witness was Lakewood patrol officer Kelsey Johnson.
Officer Johnson described the process of receiving calls from dispatchers. She
testified that on November 9, 2024, shortly after 2:00 p.m., a dispatcher transferred
a 911 caller to her. The caller, an anonymous woman, “called in stating that she runs
a Cleveland Remembrance page, and that one of her followers had messaged her
saying that she saw a male posting on a live Instagram story saying that he was
pointing a gun at cars driving by, and she believed that it might have been in
Lakewood.” (Tr. 28.)
The female gave Officer Johnson the Instagram name of the individual
in question. She was able to locate the account. According to Officer Johnson’s
testimony, “it was to the public, so it wasn’t private[,] so [she] was able to view the
videos.” (Tr. 29.) Asked to clarify what she meant by “public,” Officer Johnson
testified that “[a]nybody can view it. It’s not private, so you can click on it, and
anybody can see it that has Instagram.” (Tr. 29.) She stated that the videos she
observed were Instagram stories, which she characterized as “like a live feed.” (Tr.
31.)
Officer Johnson stated that in viewing the Instagram page, she
observed a male with an extended magazine “sticking out of his hoodie pocket.” (Tr.
30.) In another post, he was on a bridge “pointing the gun with the extended
magazine at cars driving by.” (Tr. 30.)
In an effort to preserve the recordings, Officer Johnson recorded the
videos using her work phone and saved them as evidence. (Tr. 31.) She testified that
she identified the account holder as appellant after contacting Cleveland police, who
had also received calls. She also stated that in viewing the Instagram stories, she
was able to see the face of the person posting them. Officer Johnson, in open court,
identified appellant as that individual.
On redirect, Officer Johnson clarified that she knew the name to search
for on Instagram because the female caller provided his Instagram handle. She “was
able to search it in a search, and then it came up.” (Tr. 39.) She confirmed she was
able to access the account just as any member of the public could. (Tr. 39-40.)
2. Joshua Greear
The State’s next witness was Lakewood Detective Joshua Greear. After
providing a short narrative of his employment and experience, Detective Greear
described the city’s 911 dispatch system. He indicated that calls were automatically
recorded and were stored on the information technology department servers. (Tr.
45-46.) They could be downloaded later for investigatory purposes, in response to
public records requests, or to share with prosecutors or other police agencies. He
testified they are stored on the system in the ordinary course of business.
Detective Greear testified that to his knowledge only one call came
into Lakewood dispatch on November 9, 2024. The State identified the recording
as State’s exhibit No. 1. Appellant promptly objected on hearsay and Confrontation
Clause grounds. The State responded that the “911 calls are generally admissible”
because they “have been found to be non-testimonial[]” and the person calling “is
giving information to what they believe is an ongoing emergency.” (Tr. 50.) The
trial court overruled the objection, and the State played the 911 call in its entirety.
Detective Greear testified that it was a fair and accurate copy of the actual 911 call.
(Tr. 51.)
3. Ray Lopez
The State’s third witness, Raymond Lopez, identified himself as a
bartender employed by Jack Casino, connected to Tower City in downtown
Cleveland. Lopez also testified that he lived in an apartment in Terminal Tower,
allowing him to walk to work.
Lopez had the day off on November 9, 2024, but he was in the
Terminal Tower. He went down to a convenience store in the complex but “ran into
a friend . . . who is a police officer, and he was frantic and he pulled me over to the
side” because “he knew [Lopez] lived there.” (Tr. 54.) Lopez testified:
He showed me this live stream video with this gentleman that was
terrorizing Cleveland, and he told me to be careful and that I should go
up to my apartment, because he’s currently there, so that’s exactly what
I did.
(Tr. 54-55.)
Lopez testified that the video showed an individual pointing and
shooting guns at cars on the highway, as well as “on the escalator in Tower City,
terrorizing families with his gun; with the extended clip.” (Tr. 55.)
Lopez went to his apartment but realized he had forgotten the items
from the convenience store. He went back downstairs, but then “noticed the
individual walking in the hallway[.]” (Tr. 55.) According to Lopez, the individual
was in the Terminal Tower lobby, “right where the Public Square entrance is.” (Tr.
56.) He was able to identify the individual “because he [was] wearing the same exact
outfit” as “in the video.” (Tr. 56.) Lopez contacted the police in person and also
called 911 after seeing the individual a second time. The State played the 911 call,
identified as State’s exhibit No. 7, without objection.
Lopez testified that the incident left him extremely upset. He lost
sleep, dreamt of the incident, and lost his appetite. He called off work after
determining that the individual in the video had not yet been caught. (Tr. 56.)
On cross-examination, Lopez testified that he definitely remembered
footage of the individual “shooting at some random space[,]” i.e., “live fire[,]” but he
conceded that he could not recall whether the individual had actually shot at cars
“or if he was just pointing” a firearm. (Tr. 62.) He also conceded that when he saw
the individual in person he did not personally observe a firearm and did not observe
anyone reacting to a firearm. (Tr. 68.)
On redirect, Lopez testified that he perceived the conduct as “a threat.”
(Tr. 71.) Specifically, “[h]im running around with a gun, streaming himself on the internet and being downtown.” (Tr. 71.) He clarified that he had observed three
videos. (Tr. 71.)
4. Joel Ortiz
Joel Ortiz testified that he was employed by Rock Security, “a privately
owned security company owned by Dan Gilbert.” (Tr. 74.) Ortiz stated that his
duties included monitoring surveillance cameras. (Tr. 75.) The cameras, he stated,
are located throughout the Tower City complex, and provide real-time, continuous,
24/7 surveillance monitored from a small office within Tower City. (Tr. 76.)
On November 9, 2024, Ortiz’s office received a call from Cleveland
dispatch reporting a male inside Tower City “possibly with a weapon, so [they] were
tasked to investigate, to look through the footage to see if anything was seen on our
cameras.” (Tr. 78.) Ortiz continued:
We were able to locate the individual, and we were given the name of
George Ivery, along with his social media page. We were told he may
have had a weapon on him while he was in our building, so we began to
review the video footage at that time. It was after the individual had
left our building that we actually discovered that he was actually in our
building.
(Tr. 78.)
According to Ortiz, Cleveland police had described the videos and
given his office the associated Instagram handle. “[A]t that time,” Ortiz testified,
“his Instagram account was open, so [they] were able to see any video that he had
posted at that time on that day.” (Tr. 78-79.) Based on a general time frame
provided by Cleveland police, they were able to locate footage of the individual on
the street level of Tower City. (Tr. 80.)
The security office then continued to “monitor the system live to see if
he would return, but [they] did not see him until the next day.” (Tr. 80.) Ortiz
testified that they took these steps because “any time there’s a risk for safety for our
pedestrians, our patrons, our employees, you know, we take that very seriously and
we have to make sure our building is safe and secure at all times.” (Tr. 80.) Beyond
monitoring the surveillance cameras in real time, they also notified their third-party
security department, Allied Universal Security, dispatched them to the building, and
“[made] them aware that this is the report that we received” and “to be on basically
high alert[.]” (Tr. 80-81.)
The following day, at the beginning of his shift, Ortiz checked the
Instagram page for any further videos. He noted a bike that the individual appeared
to be using to travel between locations. Later that afternoon, he spotted the
individual on surveillance camera, in real time, “exiting Tower City through our
north entrance, because [he] noticed the bike that was from the videos as well.” (Tr.
82.) Ortiz also “saw the extended magazine sticking out of his jacket at that point.”
(Tr. 82.) Having spotted the individual, another security officer “made multiple calls
to different law enforcement personnel,” and the security office continued to track
him to the extent possible using exterior cameras. (Tr. 83.)
Ortiz identified State’s exhibit No. 9 as a fair and accurate copy of the
surveillance footage captured by the security system and provided to police. (Tr.
87.)
On cross-examination, appellant asked Ortiz to observe the
individuals in Tower City who passed by appellant during the several minutes he
remained in the building during mid-afternoon on November 9, 2024. Ortiz
conceded that it did not appear that anyone ran from appellant or otherwise seemed
fearful. (Tr. 89-90.) He further conceded that the security office did not shut down
Tower City, issue a shelter-in-place order, or order a building evacuation. (Tr. 90-91.)
On redirect, Ortiz testified that they did not shut down the building
because the individual had not been “actually observed live in our building.” (Tr.
94.) He explained:
By the time we received the call from dispatch, the individual . . . had
already left our property. We had not received any other information
that he was back on our property and we did not observe him on our
property as well during the 9th.
(Tr. 94.)
5. Donald Zubal
The State’s next witness was Cleveland police officer Donald Zubal.
Officer Zubal testified that he had served as a patrol officer in the downtown area for
several years. (Tr. 96.) Asked to describe the third district’s downtown services unit,
Officer Zubal testified that the department
created the downtown services unit to focus on quality of life issues in
the downtown area with the businesses and the citizens that live down
there, and because of the crime and the concentration of the businesses
and the citizens that live down there, they wanted a specific unit that
could handle it mostly with veteran officers.
(Tr. 98.)
On November 9, 2024, Officer Zubal was working a shift from 2:00
p.m. to 4:00 a.m. (Tr. 99.) That day, he and his partner responded to a call to Tower
City “for a male threatening with a gun and brandishing a gun.” (Tr. 100.) He was
informed “that there [were] multiple calls coming in for this incident.” (Tr. 100.)
Tower City security sent photos of the individual. Officer Zubal “notified the other
officers that were on scene touring, and [they] communicated to try to locate the
suspect on scene while also conferring with Tower City security to get a better
location and description of the suspect.” (Tr. 101.)
Officer Zubal and his partner responded directly to Tower City,
pulling up in front of it at approximately 3:00 p.m. (Tr. 101.) They did not locate
the individual at that time, but additional calls came in and were reported to him
both by police radio and calls from Tower City. (Tr. 102.) As a result, Zubal and his
partner “were there multiple times.” (Tr. 102.) They “contacted Tower City security,
personnel from the Third District, [their] bosses, conferred with [members] of the
NICE [Neighborhood Impact and Community Engagement] unit and disseminated
all the information [they] could.” (Tr. 102.) Officer Zubal reported that while
speaking with “multiple people” in Tower City the next day, they appeared “anxious
and surprised.” (Tr. 103.)
On November 10, 2024, Officer Zubal further assisted in locating
appellant, working not only with Tower City security but also the NICE unit and
some officers from the Greater Cleveland Regional Transit Authority. (Tr. 103-104.)
On cross-examination, Officer Zubal admitted that he did not prepare
any written reports in connection with the incident. He also conceded that police
did not evacuate the downtown area, set up roadblocks, shut down public transit, or
call in a SWAT team.
6. Daniel Moore
Daniel Moore testified that he was employed by Cleveland’s Division
of Police Bureau of Communications, i.e., the 911 call center for the city of Cleveland.
He had been employed there for close to 14 years, and his duties included retrieving
public records in response to requests, including retrieving 911 call recordings “for
the prosecutor, police, [or] public record requests.” (Tr. 109.) He testified that he
was familiar with the way calls came into the 911 call center and the way they were
recorded and stored, and he described the 911 call process, which happens in real
time.
Moore testified that “about seven or eight calls, total[,]” came in
regarding the incident in question. (Tr. 113.) Those calls were retrieved and sent to
the prosecutor’s office in the usual manner.
At this point the State indicated it would play some of the calls and ask
Moore if he recognized them. Appellant objected on hearsay grounds. The State
repeated its argument that the 911 recordings had been authenticated as business
records and that 911 calls “are generally admissible in court.” (Tr. 115.) The State
continued:
These calls, like I said earlier when they’re coming in, people are, in
fact, watching this as it’s happening. These Instagram posts are
happening in real — they’re not calling days later to report what they
saw in Instagram. They’re watching their lives. They’re watching these
stories and they are calling.
So it is, to them, it’s just as if they’re witnessing it in person. They’re
calling in because to them, again, that is an ongoing process.
(Tr. 115.) The trial court overruled the objection. The State played several calls, and
Moore authenticated State’s exhibit No. 2, exhibit No. 4, and exhibit No. 5.
Appellant again objected to State’s exhibit Nos. 4 and 5, noting that they appeared
to consist of an individual “calling because someone told her niece about what her
granddaughter saw on Instagram.” (Tr. 120.) The trial court overruled the
objection, but stated:
The objection is overruled but certainly the Court will give the
appropriate weight to State’s Exhibit No. 4. . . . Exhibit No. 4 was
basically the way the Court heard it, the caller was basically relaying
information third hand to the Cleveland Police dispatch with no actual
personal knowledge[.]
(Tr. 121-122.)
Moore went on to authenticate State’s exhibit No. 6 and exhibit No. 8.
He testified that all of the 911 calls, which bore electronic date and time stamps, were
fair and accurate copies of the calls he assisted in retrieving for the case. (Tr. 124.)
7. Thomas Barnes
The State’s next witness, Thomas Barnes, testified that he was
employed by the Cuyahoga County Sheriff’s Department as a deputy sheriff assigned
to the Cleveland Gun Intelligence Center. In that capacity, he “test fire[s] crime guns
from Cuyahoga County.” (Tr. 131.) In short, when a gun comes in, he inspects it,
makes sure it is operable, and test fires it. After that, two spent shell casings are sent to the United States Department of Alcohol Tobacco and Firearms to “put in their
system for comparison for other crimes.” (Tr. 131-132.)
Deputy Barnes identified State’s exhibit No. 10 as his unit’s report
related to this case. He explained that such a report would be prepared regardless
of whether an inspected and tested firearm was operable. (Tr. 134.) Deputy Barnes
testified that he test fired the firearm, identified as a Derya Arms model DY9 9 mm,
bearing serial number TG970-24L26546, on November 15, 2024. (Tr. 135.) He
testified that it was “functioning normally.” (Tr. 135.)
Deputy Barnes also identified State’s exhibit No. 25 as the operable
firearm submitted and tested. He testified that the make, model, and serial number
matched the test-fire report. (Tr. 137-138.)
On cross-examination, Deputy Barnes was interrogated regarding
chain of custody. He conceded that he had not retrieved the firearm from an
evidence locker himself and that there was no line item in the chain of custody list
for whoever delivered it to his office. (Tr. 139.)
8. David Hardy
The State’s final witness was Detective David Hardy of the Cleveland
Police Department. After discussing his background, he testified that he was
assigned to the “regular detective bureau,” which essentially investigates any type of
felony apart from a sex offense or homicide, as well as some misdemeanors. (Tr.
146.)
Detective Hardy testified that whether he works a case by himself or
as part of a team depends on the case itself. “For this case,” he testified, “it was a
team of us.” (Tr. 147.) The decision to work alone or as a team might be driven, for
example, by whether an alleged offender had been arrested or was still at large. (Tr.
148.)
Detective Hardy received appellant’s case on November 10, 2024. He
testified that in reviewing call notes to determine what had warranted a police
presence, “there were multiple calls for a male with a gun threatening on Instagram.”
(Tr. 149.) He determined that appellant’s Instagram account was public, allowing
him to pull up the account, obtain a photo of appellant himself, and compare it to
his Ohio driver’s license photo, which he obtained electronically. (Tr. 149.)
Next, Detective Hardy testified that he went through appellant’s
Instagram account and ultimately worked to obtain an arrest warrant. He identified
by name three specific Third District detectives who assisted him on November 10,
2024, and further testified that “there were other detectives and other officers
looking into the case.” (Tr. 151.)
Testimony then took a step back (temporally) to November 9, 2024.
Asked to describe what actions Cleveland police had taken, Detective Hardy
testified:
Since we received the threats, and seen the videos and the firearm that
Mr. Ivery had we were concerned that someone was going to be
harmed, so I know on the 9th, November 9th, the Second District and
multiple zone cars tried to locate Mr. Ivery on their side. The Third
District had multiple officers in our Downtown Services Unit trying to
search the area for him on our side. And I think we had a couple
specialized units as well searching both areas to see if we could locate
him.
(Tr. 151.)
With respect to the Instagram posts, Detective Hardy testified that he
sent a preservation request to Meta in anticipation of a search warrant. He received
and reviewed the Instagram information after Meta responded to the warrant. (Tr.
152.)
Detective Hardy testified that appellant was arrested on November 10,
2024, in the area of Prospect Avenue and East 6th or 8th Street. Police “had multiple
zone cars again looking for him.” (Tr. 153.) Officer Zubal had spotted him getting
off public transit and heading downtown. Detective Hardy and a Detective Barnett
drove to the area and arrested appellant:
We were able to get out and identify ourselves and we arrested him. He
had a blue coat on, a ski mask, a firearm in his waistband with an
extended magazine, and we advised him he’s under arrest. And again,
that was our encounter on the 10th.
(Tr. 153.) Detective Hardy testified that the firearm seen on appellant’s Instagram
was the same found on him when he was arrested based upon its distinct colors,
glow-in-the-dark sights, and the extended magazine. (Tr. 154.) It was likewise the
same firearm identified as State’s exhibit No. 25.
Testimony then shifted to State’s exhibit No. 11, a Microsoft
PowerPoint presentation containing video and still images on the left side,
purportedly from appellant’s Instagram account, and certain data from Meta (the
company that owns Instagram) on the right. Appellant objected that the Meta data had not been authenticated by a Meta records custodian.1 The trial court overruled
the objection. It first noted that there was already testimony that appellant’s
Instagram account had been public at the time of the incident and that Detective
Hardy testified he had viewed it himself shortly after the incident. The trial court
next asked the State to clarify that Detective Hardy planned to testify that the
Instagram content being presented in court was solely what he had himself viewed
in appellant’s Instagram feed. (Tr. 160.)
Appellant renewed his objection, noting again that while the left side
of each slide contained Instagram content, the right side consisted of Meta
information that Detective Hardy would not have had access to and which had not
been authenticated. (Tr. 161-162.) The trial court acknowledged the distinction,
indicating that the Meta data on the right-hand side of each slide would not affect
its analysis:
I don’t disagree, [counsel]. I mean, I will say, though, what I’m looking
at from Meta, it tells me nothing. It’s a timestamp, a story I.D., it says
linked media file, and there appears to be some sort of code of some
sort. It doesn’t provide any information that I think quite honestly
proves or disproves any element of any charge in this case.
1 The parties repeatedly referred to the information on the right-hand side of each
PowerPoint slide as “Meta data,” meaning data received from the company Meta Platforms, Inc., which owns Instagram. This should not be confused with the more commonly used term “metadata,” which Merriam-Webster’s online dictionary defines as “data that provides information about other data.” Merriam-Webster Online, https://www.merriamwebster.com/dictionary/metadata (accessed June 26, 2026) [https://perma.cc/78KLPZVZ]. In this case, by sheer coincidence, the terms could be used interchangeably for the information on the right-hand side of each PowerPoint slide. As discussed more fully below, however, the trial court declined to consider any of the Meta data appearing on the PowerPoint slides.
(Tr. 162.)
After further argument, the State began to walk Detective Hardy
through the PowerPoint presentation. When it asked him to specify the date, time,
and location of the very first video, appellant objected, stating that the information
was “coming from the Meta data.” (Tr. 169.) The trial court sustained the objection.
(Tr. 169.)
Detective Hardy stated that the second slide depicted appellant in
downtown Cleveland. (Tr. 170.) Asked to recount what appellant said in the video,
Detective Hardy responded: “On my mom I’m going to shoot this bitch up.” (Tr.
171.) Slide 3 was a screenshot pertaining to a police call for service, likewise posted
to appellant’s Instagram with a notation stating, “They were riding past me
yesterday. I was fucking them up.” (Tr. 171.)
Slide 4 contained video footage of the confiscated gun being pointed
“on a highway overpass.” (Tr. 172.) Detective Hardy stated that the area was
“Cleveland State pointing down to like the 90 Interstate.” (Tr. 172.) He confirmed
that he reviewed this post on appellant’s Instagram. (Tr. 172.) In the video,
appellant sweeps the firearm from left to right over traffic that is likewise moving
left to right, appearing to follow occupied cars with his handgun.
Detective Hardy identified slide 5 as a post he reviewed in which
appellant was wearing a facemask and black gloves. The caption read: “Lakewood
do not play.” In the video, appellant was “[b]asically saying after he fired his weapon in Lakewood there was multiple cars in the area and they took it serious as they
should.” (Tr. 173.)
Slide 6 featured a screenshot of an Instagram message from someone
who asked, in response to the video depicting appellant pointing the gun at cars, if
appellant was shooting at random cars. It also featured appellant’s response, in the
form of a caption. The caption read, “No.” (Tr. 173.) Detective Hardy confirmed he
had previously reviewed slide 6. (Tr. 173.)
Slide 7 consisted of a video at either a Rapid stop or bus station. In
the video, appellant notes that people are sharing his posts: “Somebody shared the
fuck out of me, bro.” He also remarks, “Get your ass burnt, messing with mine.” (Tr.
174.) He brandishes a firearm in the video. Again Detective Hardy confirmed he
had personally reviewed the video. (Tr. 174.)
Testimony next turned to slide 8, in which appellant stated he had
been pointing his gun but was not doing anything stupid. (Tr. 176.) Slide 9 was a
screenshot rather than a video, depicting the reaction of an individual who observed
the story showing appellant pointing his firearm at passing cars. The person
responding had stated: “Why are you doing that?? We are people with families and
kids & all that’s sad af.” Appellant then inserted a caption that reads, “IM NOT
DOING ANYTHINGGGG WTF.” Detective Hardy confirmed that both the video in
slide 8 and the screenshot in slide 9 had been posted to appellant’s Instagram
account. (Tr. 174 and 176.)
Slide 10 is a screenshot depicting accounts who had viewed appellant’s
Instagram story. In an associated caption, appellant was “basically saying even the
Cleveland Remembrance Page is reviewing his story.” (Tr. 177.) The caption reads:
“Y’all sent the Cleveland remembrance page me yall tweaking.” Detective Hardy
described the Cleveland Remembrance Page:
It’s a social media page that, you know, keeps people up-to-date for
shootings, police activity all around, basically all around Cleveland and
surrounding suburbs. It’s on Instagram. It’s got thousands of
followers. A lot of people get their news from Cleveland Remembrance
Page.
(Tr. 177.) This was again a slide that was posted on appellant’s Instagram story that
Detective Hardy had viewed. (Tr. 177.)
Slide 11 was yet another screenshot, this one of message requests sent
to appellant. Detective Hardy reviewed the screenshot on appellant’s Instagram.
(Tr. 178.) The screenshot depicts four message requests. Three have the text
truncated, but they begin with (in order): “It’s sad your willing to . . .”; “What exactly
are you . . .”; and “Why are you doing th . . . .” The screenshot contains a caption
rhetorically asking what appellant did wrong since so many others “post they guns
all day.”
Slide 12 consists of a still photo of the interior of Tower City from the
second floor, with Christmas decorations and an escalator in view. The post is
captioned: “I’m finna show y’all what I did wrong bet y’all trying me.” Detective
Hardy confirmed he viewed the post on appellant’s Instagram story and gave his
interpretation of the caption: “He’s saying that you’re saying he did something wrong, he’s going to basically show you he’s going to do something wrong.” (Tr.
179.)
Slide 13, another screenshot, is captioned “I HIT A BAND WTFFFF.”
Detective Hardy explained that this meant the number of people who had viewed
his videos, and that “band” stood for 1,000. (Tr. 179.) Again, Detective Hardy
confirmed that this was on appellant’s Instagram story. (Tr. 179.)
Next, slide 14, identified by Detective Hardy as a post from appellant’s
Instagram story, depicted a reaction to his videos. One woman wrote: “We scared
of you baby. That’s why we here. Where do you be at so I know to stay away.”
Appellant responded by saying “I’m scaring all the pretty ladies ommg.”
Slide 15, identified as a post Detective Hardy reviewed on appellant’s
Instagram story, indicates that his video of himself following cars with his handgun
had reached 1,483 views.
Slide 16 consisted of a video depicting appellant actually firing his
handgun with a caption that reads, “He was creeping up my bad.” Detective Hardy
had reviewed the video on appellant’s Instagram account. (Tr. 181.) Slide 17, a video
that Detective Hardy likewise viewed on appellant’s Instagram story, depicted
appellant wearing a facemask and ski goggles. Slide 18 consists of a video in which
appellant appears to imply that it will be difficult to find him. Detective Hardy
testified that he viewed it on appellant’s Instagram story. (Tr. 182.)
Slide 19, a screenshot viewed by Detective Hardy on appellant’s
Instagram story, provided an update on the number of views reached by the video in which he sweeps his firearm left-to-right across a highway, pointing it at passing
cars. It indicates the video had been viewed 3,057 times.
Detective Hardy could not discern exactly what appellant was saying
in the video contained in slide 20, other than that appellant mentioned he had a gun
for protection. Again Detective Hardy confirmed it was a post from appellant’s
Instagram story. (Tr. 184.) The State skipped slide 21. Slide 22 featured a video
from appellant’s Instagram story stating he could not believe he was “receiving all
this bullshit. Basically saying he’s getting all these responses for doing what he’s
doing.” (Tr. 185.) In slide 23, appellant appears on video wearing a facemask and
asks, “Why you getting the Remembrance Page on me?” Detective Hardy stated that
based on a street sign, he appeared to be in Cleveland’s Ohio City neighborhood.
(Tr. 186.) Detective Hardy identified this as a post he viewed on appellant’s
Instagram story.
Slide 24, another screenshot viewed by Detective Hardy on appellant’s
Instagram story, provided an update on the number of views reached by the video
in which he sweeps his firearm left-to-right across a highway. It indicates the video
had been viewed 4,740 times. The same screenshot likewise shows that multiple
other videos comprising the story had been viewed more than 4,000 times.
Detective Hardy testified that he viewed this screenshot on appellant’s Instagram
story. (Tr. 186-187.)
Detective Hardy identified slide 25 as an Instagram story he viewed
on appellant’s account. Appellant posted a screenshot of a text message from “Dad.” The text calls appellant “motherfucking crazy,” warns appellant that police will kill
him because he is “armed and dangerous,” and urges appellant to “get [his] life
together.” Slides 26 and 27 contained Instagram posts depicting appellant in
downtown Cleveland with the extended magazine and firearm visible. In slide 27,
the video depicts him pointing the firearm towards Cleveland’s skyline.
Detective Hardy testified that all 27 slides depicted posts or stories
that he had viewed from appellant’s Instagram and were fair and accurate copies of
the items received from Meta. (Tr. 189-190.) He further testified that he was
involved in appellant’s arrest and identified appellant in open court. (Tr. 189.)
On cross-examination, Detective Hardy admitted that items posted to
a story — as opposed to a live video — could have been created at another time. (Tr.
199.) He further conceded that the only video depicting appellant actually shooting
the firearm was in an area surrounded by trees, in a location that Detective Hardy
could not pinpoint. (Tr. 199-200.) He admitted that none of the posts depicted a
gunshot fired in an urban setting, and that at various points in the videos appellant
remarked that he was being misinterpreted and that he was not going to do
anything. (Tr. 202-205.) Detective Hardy also conceded that neither Tower City
nor downtown Cleveland were shut down or evacuated and that surveillance footage
of appellant in Tower City did not reflect any patrons running or otherwise behaving
abnormally. (Tr. 205-208.)
On redirect, Detective Hardy testified that based upon his experience,
he took appellant’s Instagram posts seriously, including appellant saying he was “going to shoot this bitch up on my mama” while in possession of a firearm. (Tr.
212.) He explained that he interpreted “on my mama” as “I promise on my
mother[,]” i.e., not a baseless threat. (Tr. 212.) In one public video he shot the
firearm. (Tr. 213.) While it was an area with trees in the background, it could not
be determined whether it was in downtown Cleveland or not. (Tr. 213-214.) In
addition, Detective Hardy testified that in several slides individuals reacting to
appellant’s posts indicated they were scared or concerned. (Tr. 213.)
While acknowledging he was not an Instagram expert, Detective
Hardy testified that he was familiar with the platform’s operation, particularly the
fact that content posted to a “story” remains visible for 24 hours after posting. (Tr.
215.) In other words, Detective Hardy could view posts from November 9, 2024, on
November 10, 2024. (Tr. 215.) He further confirmed that the gun was operable
based on the fact that appellant was seen firing it on video, that it was loaded, and
that it was test-fired after appellant’s arrest. (Tr. 216.)
Finally, Detective Hardy testified that as a result of appellant’s activity
Cleveland police “took a lot of cars out of service to search for” appellant, something
that would not be common if an incident was considered nonthreatening (Tr. 217-218.) Asked if he was aware whether anyone changed their behavior as a result of
appellant’s activity, he first noted the testimony of witness Ray Lopez, who “said he
was scared” and “went the other way and . . . called police.” (Tr. 218.) He further
pointed to the 911 calls expressing concern over appellant walking around with a firearm and making threats. (Tr. 218.) Detective Hardy testified that the slides
likewise included examples of individuals expressing concern.
B. Admission of Exhibits, Appellant’s Crim.R. 29 Motions, Verdict,
and Sentencing
The State rested pending the admission of exhibits. Appellant
objected to State’s exhibit No. 11 (the PowerPoint slideshow) and further noted that
appellant continued to object to the 911 recordings. Appellant also objected to
admission of the firearm testing report and the firearm itself, principally on chainof-custody grounds. The trial court admitted all of the State’s proffered exhibits over
appellant’s objection.
Appellant then moved for acquittal pursuant to Crim.R. 29 of Count 1,
making terroristic threat, a felony of the third degree in violation of R.C.
2909.23(A)(1)(a). Appellant conceded that for Crim.R. 29 purposes the State had
satisfied the evidentiary threshold for misdemeanor inducing panic. (Tr. 234.)
Indeed, appellant’s principal argument was that the crime of making terroristic
threat was “not just a big inducing panic,” but also required coercion or intimidation.
(Tr. 232-233.)
In response, the State asked the trial court to focus on the “intimidate”
component of the offense of making terroristic threat. The State argued that
appellant acknowledged the fearful reactions of the public and that he mocked or
taunted the public by saying he “was not going to do anything, and in the same
breath . . . y’all try me.” (Tr. 237.) The State pointed out that appellant knew police
were looking for him because he posted a screenshot of a police scanner message but nevertheless continued to post in order to intimidate and scare people. (Tr. 237-238.) It noted that live witness Ray Lopez sounded “frantic” during his 911 call and
“believed something was going to happen.” (Tr. 239.)
The trial court denied appellant’s Crim.R. 29 motion in its entirety.
Appellant called no witnesses and rested pending the admission of a
hypertext markup language file, produced by Meta, for preservation in the record.
The trial court promptly admitted the exhibit as court’s exhibit No. 11A. (Tr. 248-252.) Appellant requested some clarification with respect to State’s exhibit No. 11,
specifically how the trial court intended to consider the left side of each slide (actual
Instagram content, such as video footage) versus the data on the right side of each
slide. The trial court reiterated:
I’m going to tell you whatever was appearing on the right side of the
screen is in no way impacting my view of this case or how I will
ultimately rule with respect to whether or not the State has met its
burden. There was nothing substantiative in those Meta documents.
I mean, quite honestly, I’m not entirely sure why the State introduced
them in that fashion when you had a detective who viewed everything.
You could have just shown the detective the Instagram stories and live
videos and posts because his testimony was that he saw all of them.
(Tr. 255.)
Appellant renewed his Crim.R. 29 motion, again focusing on the issue
of coercion or intimidation with respect to Count 1, making terroristic threat. The
trial court denied the motion, and the parties presented closing arguments, with
appellant conceding Count 2, inducing panic in violation of R.C. 2917.31(A)(2). The
trial court took the matter under advisement.
The trial court announced its verdict on September 23, 2025. It found
appellant guilty on all counts and proceeded directly to sentencing. The trial court
sentenced appellant to two years of community-control sanctions under the
supervision of the adult probation department’s community-based correctional
facility unit.
This timely appeal followed.
III. Assignments of Error
Appellant presents four assignments of error for our review:
Assignment of Error I: The trial court erred by admitting 911 calls over
defense objection in violation of the Rules of Evidence and Appellant’s
constitutional rights. (U.S. Const. VI Amend.)
Assignment of Error II: The trial court erred by admitting the
PowerPoint presentation (State’s Ex. 11) created by the State combining
information from other discovery which was not properly
authenticated.
Assignment of Error III: The trial court erred when it denied
appellant’s motion for acquittal under Crim.R. 29 because the state
failed to present sufficient evidence to establish beyond a reasonable
doubt the elements necessary to support the conviction for terroristic
threats.
Assignment of Error IV: The conviction for terroristic threats was
against the manifest weight of the evidence.
Finding no merit to any of Appellant’s assignments of error, we affirm
the trial court’s verdicts.
IV. Analysis
A. The 911 Calls — Confrontation Clause and Hearsay Challenges
In his first assignment of error, appellant argues that the trial court
erred by admitting 911 calls over defense objection in violation of the Confrontation
Clause and the evidentiary rules prohibiting the introduction of hearsay. We find
no merit to these arguments.
1. Confrontation Clause
We review a trial court’s evidentiary rulings that implicate the
Confrontation Clause de novo. State v. Lucas, 2024-Ohio-842, ¶ 18 (8th Dist.). “‘De
novo review requires an independent review of the trial court’s decision without any
deference to the trial court’s determination.’” State v. Knox, 2016-Ohio-5519, ¶ 12
(8th Dist.), quoting State v. Clay, 2016-Ohio-424, ¶ 5 (2d Dist.).
“The Sixth Amendment’s Confrontation Clause, which is binding on
the States through the Fourteenth Amendment, provides: ‘In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’” Lucas at ¶ 19. “[T]he ‘admission of an out-of-court
statement of a witness who does not appear at trial is prohibited by the
Confrontation Clause if the statement is testimonial unless the witness is
unavailable and the defendant has had a prior opportunity to cross-examine the
witness.’” Id. at ¶ 20 (8th Dist.), quoting State v. Maxwell, 2014-Ohio-1019, ¶ 34,
citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004). “The central concern of
the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990);
Lucas at ¶ 20; State v. Smith, 2019-Ohio-3257, ¶ 10 (1st Dist.).
“Because ‘only testimonial hearsay implicates the Confrontation
Clause,’ the admission of nontestimonial statements does not violate the Sixth
Amendment.” Lucas at ¶ 21, quoting State v. McKelton, 2016-Ohio-5735, ¶ 185.
“Whether statements are testimonial or nontestimonial depends on the primary
purpose of the statements.” Lucas at ¶ 22, citing McKelton at ¶ 185. Statements are
nontestimonial where circumstances objectively indicate “‘that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency.’”
Lucas at ¶ 22, quoting Davis v. Washington, 547 U.S. 813, 822 (2006). If instead
there is no ongoing emergency “and ‘the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later prosecution,’ then the
statements are testimonial.” Lucas at ¶ 22, quoting Davis at 822. “A 911 call . . . and
at least the initial interrogation conducted in connection with a 911 call, is ordinarily
not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe
current circumstances requiring police assistance.” Davis at 827; Lucas at ¶ 22.
“[W]hether an emergency exists and is ongoing is a highly contextdependent inquiry.” Michigan v. Bryant, 562 U.S. 344, 345 (2011). In Bryant, the
Court explained that “[a]n assessment of whether an emergency threatening the
police and public is ongoing cannot narrowly focus on whether the threat to the first
victim has been neutralized because the threat to the first responders and public may continue.” Id. In addition, “an emergency’s duration and scope may depend in
part on the type of weapon involved[.]” Id. In Lucas, this court elaborated on the
latter point, remarking that the type of weapon involved is relevant, “with an
assailant with a gun posing a greater risk to the police and the public, even if the
assailant is no longer on the scene.” (Emphasis added.) Lucas at ¶ 24.
In addition, while the existence of an ongoing emergency is significant
to the primary purpose analysis, “‘any conclusion determining that there is no
ongoing emergency is not dispositive of the Confrontation Clause question.’” Lucas
at ¶ 25, quoting State v. Williams, 2024-Ohio-337, ¶ 26 (8th Dist.), citing Cleveland
v. Merritt, 2016-Ohio-4693, ¶ 22 (8th Dist.). “Instead, ‘whether an ongoing
emergency exists is simply one factor . . . that informs the ultimate inquiry regarding
the “primary purpose” of an interrogation.’” Ohio v. Clark, 576 U.S. 237, 245 (2015),
quoting Bryant at 366; Lucas at ¶ 25 (8th Dist.).
The Lucas Court reiterated:
This court has recognized that statements made during a 911 call are
often found to be nontestimonial and are admissible if the statements
satisfy a hearsay exception. This is because a 911 caller is typically
speaking about events as they are actually happening and although one
might call 911 to provide a narrative report of a crime absent any
imminent danger, 911 callers are usually facing ongoing emergencies.
Under such circumstances, the 911 caller is not testifying, the 911 caller
is not acting as a witness, and the statements of the 911 caller are not
testimonial in nature.
(Cleaned up.) Lucas at ¶ 29.
Reviewing the 911 calls in their entirety, we find the various callers’
statements to dispatchers were made during an ongoing emergency and were nontestimonial in nature. The callers were informing dispatchers of an ongoing
emergency and sought immediate police intervention. Viewing the calls under the
totality of the circumstances, they objectively indicate that the statements “were not
made ‘to document past events’ but were made with the ‘primary purpose’ of
obtaining . . . assistance in resolving an ongoing threat of gun violence.” Lucas at
¶ 30. Similar to Lucas, appellant “remained armed” and “posed an ongoing threat.”
Id. Indeed, the calls were made while an armed individual had not been located,
had allegedly posted contemporaneous videos to an Instagram account displaying
and pointing a firearm in public areas, and was believed to be in or near Tower City
or elsewhere in downtown Cleveland. Considered objectively, the primary purpose
of the calls was to alert police and obtain assistance for a perceived ongoing threat
to public safety, not to “document past events.” The 911 calls were nontestimonial.
Accordingly, the trial court did not violate appellant’s rights under the Confrontation
Clause.
2. Hearsay
Having concluded that the 911 calls were nontestimonial, we must
next consider whether they were admissible despite appellant’s hearsay objections.
“[E]ven if an out-of-court statement is nontestimonial, for evidence of that
statement to be properly admitted at trial, it must also be admissible under the rules
of evidence, including the rules against the admission of hearsay.” Lucas at ¶ 38. “A
trial court has broad discretion regarding the admission of evidence, including
whether evidence constitutes hearsay and whether it is admissible hearsay.” In re A.M., 2022-Ohio-612, ¶ 22 (8th Dist.), citing Solon v. Woods, 2014-Ohio-5425, ¶ 10
(8th Dist.). “We therefore will not disturb a trial court’s decision regarding the
admissibility of hearsay evidence absent an abuse of discretion.” Id., citing State v.
Maurer, 15 Ohio St.3d 239 (1984).
Evid.R. 801(C) defines hearsay as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Hearsay is generally inadmissible unless it falls
within an exception under the rules of evidence. Lucas, 2024-Ohio-842, at ¶ 38 (8th
Dist.), citing Evid.R. 802, 803, and 804.
“‘911 calls are generally admissible as excited utterances or under the
present sense impression exception to the hearsay rule.’” Cleveland v. Myles, 2022-Ohio-4504, ¶ 25 (8th Dist.), quoting State v. Martin, 2016-Ohio-225, ¶ 59 (5th
Dist.). Evid.R. 803(1) defines present sense impression as “[a] statement describing
or explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.” “Regarding Evid.R. 803(1), ‘[t]he key to the statement’s
trustworthiness is the spontaneity of the statement; it must be either
contemporaneous with the event or be made immediately thereafter.’” Myles at
¶ 25, quoting State v. Essa, 2011-Ohio-2513, ¶ 126 (8th Dist.). “‘The principle
underlying this hearsay exception is the assumption that statements or perceptions,
describing the event and uttered in close temporal proximity to the event, bear a
high degree of trustworthiness.’” State v. Dixon, 2003-Ohio-2550, ¶ 12 (3d Dist.), quoting Cox v. Oliver Machinery Co., 41 Ohio App.3d 28, 35 (12th Dist. 1987).
“Accordingly, ‘Ohio courts have routinely held that 911 calls are admissible as
present sense impressions.’” Myles at ¶ 26, quoting Ohio v. Scott, 2021-Ohio-3427,
¶ 17 (1st Dist.).
Another exception to the hearsay rule “is an excited utterance, which
Evid.R. 803(2) defines as ‘[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.’” Lucas at ¶ 38. As this court explained:
For a statement to be admissible as an excited utterance, four
prerequisites must be satisfied: (1) there must be a startling event that
produces a nervous excitement in the declarant, (2) the statement must
have been made while the declarant was still under the stress of
excitement caused by the event, (3) the statement must relate to the
startling event, and (4) the declarant must have personally observed
the startling event.
Id. at ¶ 39.
While the passage of time between the event and the declaration is
relevant, “[t]here is no per se amount of time after which a statement can no longer
be considered to be an excited utterance.” State v. Taylor, 66 Ohio St.3d 295, 303
(1993). The startling event and the utterance need not be contemporaneous. Lucas
at ¶ 40, citing State v. Duncan, 53 Ohio St.2d 215 (1978), paragraph one of the
syllabus. “[E]ach case must be decided on its own circumstances, since it is patently
futile to attempt to formulate an inelastic rule delimiting the time limits within
which an oral utterance must be made in order that it be termed a spontaneous
exclamation.” Duncan at 219-220. See also Taylor at 303; Lucas at ¶ 40. “[T]he relevant inquiry is whether the declarant is still under the stress of the event or
whether the statement was the result of reflective thought.” Id.
Our review of the 911 calls and the complete record reveals that many
of the callers were viewing appellant’s Instagram postings in essentially real time,
calling 911 in stressful tones to report a perceived active threat. We are unconvinced
by appellant’s argument that the declarants did not “personally observe” the
startling events because they were mediated by technology, i.e., because they were
viewed on Instagram. In our view, the requirement of personal observation does
not contain the additional requirement that an event be viewed “in person,” and
appellant has cited no cases suggesting as much. We fail to see how 911 calls based
on nearly contemporaneous Instagram videos are materially different than a
security guard calling 911 to report what was seen on a surveillance camera or, to
step outside social media, an observer aided by binoculars or a telescope. In re P.T.,
2013-Ohio-3881 (12th Dist.), involved a juvenile who was adjudicated delinquent
for inducing panic by publishing Facebook posts regarding a school shooting. While
the Twelfth District’s decision did not involve a hearsay analysis, the court affirmed
the delinquency adjudication, noting that “P.T.’s Facebook posts caused members
of the public to contact police[.]” Id. at ¶ 35. See also State v. Parker, 2007-Ohio1512, ¶ 54 (2d Dist.) (appellate court had “no difficulty finding that [witness] was
competent to testify to what she observed on the surveillance monitor”).
Assuming without deciding that some portions of the 911 recordings
contained inadmissible hearsay, reversal is not warranted. As in Cleveland v. Myles, 2022-Ohio-4504 (8th Dist.), “this case was tried to the bench.” Id. at ¶ 16. “‘When
the trial court is the trier of fact, the judge is presumed capable of disregarding
improper hearsay evidence, and unless it is demonstrated that the court relied on
inadmissible hearsay, a conviction will not be reversed.’” Id., quoting State v.
Crawford, 2013-Ohio-1659, ¶ 61 (8th Dist.). The record contains nothing
demonstrating that the trial court relied on inadmissible hearsay. In fact, while the
trial court accepted State’s exhibit No. 4 into evidence over appellant’s hearsay
objection, it stated that “the caller was basically relaying information third hand to
the Cleveland Police dispatch with no actual personal knowledge” and accordingly
it would “give the appropriate weight” to the exhibit. (Tr. 121-122.)
Even though the trial court remarked on the 911 calls in handing down
its verdict, the transcript suggests it relied on the fact that the 911 calls were made,
and the effect of those 911 calls, rather than any hearsay descriptions of appellant’s
conduct. The record does not indicate that the trial court found that appellant
pointed a gun at traffic based on a 911 caller’s account. Appellant filmed himself
pointing a gun at traffic and uploaded it to Instagram, and that video was admitted
into evidence. The record does not suggest that the trial court relied on inadmissible
hearsay to find that appellant made threats. Again, appellant filmed himself making
threats. Instead, the trial court’s references to 911 calls more generally supported its
findings that members of the community saw the Instagram posts, reacted by calling
911, and that the posts caused fear.
Indeed, the 911 recordings were not the only evidence, or even the
principal evidence, of appellant’s actual conduct. Independent of the 911 recordings,
the State presented testimony and exhibits showing that appellant’s public
Instagram account depicted him with a distinctive firearm and extended magazine
in public areas, pointing the firearm toward passing vehicles, shooting the firearm,
making threatening statements, reacting to public concern about his posts, and
loitering in Tower City. Even after setting aside any portions of the 911 recordings
that appellant characterizes as hearsay, the remaining evidence, including the live
testimony of 911 caller Lopez and the authenticated Instagram posts,
overwhelmingly established both the conduct underlying the convictions and the
public response to it. “[E]ven without the alleged hearsay testimony, the trial court
could have concluded that” appellant committed the offenses. State v. Williams,
2025-Ohio-1457, ¶ 33 (8th Dist.). Accordingly, “any error in admission would be
harmless” and “we need not determine the impropriety of the alleged hearsay
statement[s].” Id. See also State v. Hutchinson, 2025-Ohio-4674, ¶ 32 (8th Dist.)
(Statements in second forensic interview “were cumulative to other evidence” and
any error in admission was harmless in a bench trial because “judges are presumed
to know the law and consider only material, admissible evidence.”).
Appellant’s first assignment of error is overruled.
B. The PowerPoint Presentation
In his second assignment of error, appellant argues that the trial court
erred by admitting State’s exhibit No. 11, the PowerPoint presentation. Appellant contends that the PowerPoint was created by the State and “combined information
from Instagram posts with other discovery materials, without proper authentication
as required by Ohio Evid.R. 901.” (Appellant’s brief at p. 11.) We find no merit to
this argument.
The decision to admit or exclude evidence rests within the trial
court’s sound discretion and will not be reversed absent an abuse of discretion. State
v. Teague, 2009-Ohio-129, ¶ 5 (8th Dist.), citing State v. McGuire, 80 Ohio St.3d
390, 400-401 (1997). A trial court “abuses its discretion when it exercises its
judgment in an unwarranted way with respect to a matter over which it has
discretionary authority.” Hunter v. Troutman, 2025-Ohio-366, ¶ 64 (8th Dist.),
citing Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. “The term abuse of discretion
implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.”
Hunter at ¶ 64, citing Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
Appellant’s challenge to the State’s exhibit No. 11 is centered on
authenticity. Appellant correctly notes that the PowerPoint slides consisted of
“screenshots and videos allegedly from Appellant’s Instagram account, along with
Meta data and other information.” (Appellant’s brief at p. 12.) We address those
distinct components separately, just as the trial court did.
In State v. Young, 2022-Ohio-3132, ¶ 63 (8th Dist.), the defendant
challenged the admission of photographs posted to Facebook of Young and others
“brandishing firearms, riding in vehicles that fit the descriptions of the ones they
were accused of stealing, and holding themselves out to be a gang.” Id. at ¶ 63. Young challenged the authenticity of the Facebook photos, noting that a detective
had merely testified that they were received in response to a search warrant. Id. at
¶ 64.
In overruling Young’s associated assignment of error, this court first
noted that pursuant to Evid.R. 901(A), the “‘requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.’” Id. at ¶ 66, quoting Evid.R. 901(A). This authentication standard “is liberal
and may be satisfied by either circumstantial or direct evidence sufficient for the
trier of fact to conclude that the evidence is what its proponent claims it to be.” State
v. Garcia-Toro, 2019-Ohio-5336, ¶ 30 (8th Dist.).
In Young, this court observed that “Ohio courts have also held that
the determination of admissibility and authentication of social media evidence is
‘based on whether there was sufficient evidence of authenticity for a reasonable jury
to conclude that the evidence was authentic.’” Young at ¶ 66, quoting State v.
Gibson, 2015-Ohio-1679, ¶ 41 (6th Dist.). The bar is set rather low:
“The hurdle the proponent of the document must overcome in order to
properly authenticate a document is not great. . . . Thus, the purpose
behind authentication is to connect the particular piece of evidence
sought to be introduced to the facts in the case by giving some
indication the evidence is relevant and reliable. The ultimate decision
on the weight to be given to that piece of evidence is left to the trier of
fact.”
Young at ¶ 66, quoting State v. Brown, 2002-Ohio-5207, ¶ 33-35 (7th Dist.).
Furthermore, Young was not the first time this court had considered
social media evidence:
In State v. Inkton, 2016-Ohio-693, 60 N.E.3d 616, ¶ 72 (8th Dist.), the
court admitted appellant’s Facebook page into evidence, holding that
“[t]here has been testimony sufficient to support, if believed, that it is
what it purports to be.” In Inkton, a detective and a codefendant
testified that “there were ‘numerous’ pictures on appellant’s Facebook
page and that [they] were able to determine that appellant was in fact
that person in the pictures,” thus properly authenticating them. Id. at
¶ 78.
Young at ¶ 67.
As discussed above, the detective in Young had monitored a
Facebook account that he determined belonged to Young and followed up by
obtaining records from Facebook pursuant to a warrant. He then testified to the
authenticity of the records. This court held that “[t]here was no evidence that the
Facebook page was created by anyone other than appellant, nor was there evidence
that the page was fabricated or tampered with.” Id. at ¶ 69. Accordingly, the
evidence “satisfie[d] the relatively low burden of authentication.” See also GarciaToro, 2019-Ohio-5336, at ¶ 30 (8th Dist.) (Facebook evidence was properly
authenticated where detective testified he received it pursuant to search warrant and
personally reviewed the documents); State v. Padgette, 2020-Ohio-672, ¶ 10-16
(8th Dist.) (Facebook evidence properly authenticated where detective and another
witness testified to authenticity of photo from Facebook page and no testimony
suggested photo was fabricated or tampered with.).
The same is true in the present case, i.e., the State satisfied the
relatively low burden of authentication through the testimony of Detective Hardy.
Detective Hardy testified that he quickly learned of appellant’s Instagram username
and was immediately able to review appellant’s public Instagram story, using the
Instagram application itself, on November 10, 2024. He further testified that he
received a compendium of photos and videos from Meta, the company that owns
Instagram, pursuant to a search warrant. (Tr. 152.) Detective Hardy testified that
the photos and videos received in response to the warrant matched what he viewed
on Instagram and that the person consistently depicted in the videos was in fact
appellant.
Furthermore, in light of the cases above, including Young, Detective
Hardy could authenticate the entire compendium of videos and screenshots
received in response to the warrant, even if parts of a certain story had expired or
had been marked as private. He testified that he received those items in response to
the warrant and that it was appellant depicted in the content based not only on
appellant’s face but also his clothing and the distinctive firearm recovered from
appellant the day of his arrest. As already noted, the “authentication standard is
liberal and may be satisfied by either circumstantial or direct evidence sufficient for
the trier of fact to conclude that the evidence is what its proponent claims it to be.”
Garcia-Toro, 2019-Ohio-5336, at ¶ 30 (8th Dist.); see also Inkton, 2016-Ohio-693,
at ¶ 73 (8th Dist.).
Finally, as in the cases discussed above, there was no evidence that
the videos and screenshots had been fabricated or tampered with in any fashion.
That point is particularly important here because it bears on appellant’s argument
that the PowerPoint “was created by the prosecutor’s office, not by Detective Hardy.”
(Appellant’s brief at p. 12.) Detective Hardy’s testimony supplied a sufficient Evid.R.
901 foundation for admission of the Instagram content on the left-hand side of each
slide, which is best viewed as digital duplicates of the content received from
Instagram in response to the search warrant.
Evid.R. 1003 provides that “[a] duplicate is admissible to the same
extent as an original unless (1) a genuine question is raised as to the authenticity of
the original or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.” In State v. Taylor, 2012-Ohio-5421 (8th Dist.), this court
upheld the admission of “videos and still-frame photographs taken from . . .
surveillance video” that “were duplicates of the original recording.” Id. at ¶ 26. “‘The
decision to admit duplicates, in lieu of originals, is one that is left to the sound
discretion of the trial court.’” Id. at ¶ 27, quoting State v. Easter, 75 Ohio App.3d
22, 27 (4th Dist. 1991). Moreover, “the party seeking to exclude a duplicate has the
burden of demonstrating that the duplicate should be excluded.” Taylor at ¶ 27,
citing State v. Tibbetts, 92 Ohio St.3d 146, 160 (2001).
Focusing at this point only on the Instagram content on the left-hand
side of the slides, appellant “did not raise genuine questions as to their
trustworthiness.” Taylor at ¶ 39. Accordingly, the trial court did not abuse its discretion in admitting the Instagram content, i.e., the videos and screenshots.
Detective Hardy authenticated that content in accordance with Evid.R. 901, and the
content displayed in the PowerPoint consisted of admissible duplicates of content
that Detective Hardy testified he had actually reviewed.
Many of appellant’s remaining arguments under this assignment of
error are directed to the Meta data appearing on the right-hand side of each slide.
Appellant acknowledges the trial court’s statements (at tr. 162 and 255) that it would
assign no weight to this information. He nevertheless complains that “[y]et, the
Court admitted Exhibit 11, which included this information.” (Appellant’s brief at p.
12-13.)
The State, citing the transcript pages referenced directly above,
counters that the trial court expressly announced that it would not consider the Meta
information on the right-hand side of each slide. It argues that “the trial court
indicated twice, on the record, that it gave the Meta data no weight.” (State’s brief
at p. 17.) To some extent, we disagree. In our view, the trial court essentially
indicated three times, not just twice, that it would give no weight to the Meta
information. In addition to the cited excerpts at tr. 162 and 255, the trial court
sustained appellant’s objection when the State attempted to elicit testimony from
Detective Hardy that appeared to be derived from the Meta information on the righthand side of the slides:
Q. . . [Detective] Hardy, could you please give us the date and time and
location based on this post?
[APPELLANT’S COUNSEL]: Objection. That’s coming from the Meta
data. He has no access to that . . . .
THE COURT: Objection sustained.
(Tr. 169.) The State asked no further questions that prompted Detective Hardy to
reference the Meta data on the right-hand side of each slide.
With respect to appellant’s complaint that the trial court admitted the
PowerPoint presentation in its entirety despite its statements that it would not
consider the Meta data, we have already noted, in connection with appellant’s first
assignment of error, that “judges are presumed to know the law and consider only
material, admissible evidence.” Hutchinson, 2025-Ohio-4674, at ¶ 32 (8th Dist.).
Here, the trial court prohibited Detective Hardy from testifying as to the Meta data
on the slides and expressly indicated it found that data to be immaterial. In the
context of a bench trial, we see no need for the trial court to go further by, for
example, requiring the State to scrub the information that it had deemed
immaterial. Accordingly, the admission of the entire exhibit was not erroneous.
Appellant’s second assignment of error is overruled.
C. Sufficiency of the Evidence
In his third assignment of error, appellant argues there was
insufficient evidence to support his conviction for making terroristic threat and that
the trial court therefore erred in denying his Crim.R. 29 motions for acquittal.2
2 Appellant does not challenge his misdemeanor convictions.
This court has recently reaffirmed that “[a]n 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.” State v. Spencer, 2024-Ohio-5809, ¶ 15 (8th Dist.),
citing State v. Murphy, 91 Ohio St.3d 516, 516 (2001); Williams, 2025-Ohio-2593,
at ¶ 26 (8th Dist.); State v. Lynch, 2025-Ohio-2769, ¶ 49 (8th Dist.). The appellate
court views the evidence “‘in a light most favorable to the prosecution’” to determine
whether “‘any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’” Spencer at ¶ 15, quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus; Williams at ¶ 26. The
inquiry is whether the State has met its “burden of production” at trial. State v.
Dyer, 2007-Ohio-1704, ¶ 24 (8th Dist.); Lynch at ¶ 49.
“‘In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law.’” Cleveland v. Williams,
2024-Ohio-3102, ¶ 10 (8th Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380,
386 (1997); see also Cleveland v. Neal, 2024-Ohio-1467, ¶ 26 (8th Dist.); Lynch at
¶ 49. Appellate courts are not to assess “whether the State’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction.” (Emphasis added.) Dyer at ¶ 24; Lynch at ¶ 49. In considering the
sufficiency of the evidence, we do not independently weigh the evidence. Cleveland
v. Wiggins, 2025-Ohio-649, ¶ 37 (8th Dist.).
Appellant argues that the State failed to present sufficient evidence
that appellant made terroristic threats “with the purpose to intimidate or coerce a
civilian population as required by R.C. 2909.23.” (Appellant’s brief at p. 14.) R.C.
2909.23 provides:
(A) No person shall threaten to commit or threaten to cause to be
committed a specified offense when both of the following apply:
(1) The person makes the threat with purpose to do any of the
following:
(a) Intimidate or coerce a civilian population;
(b) Influence the policy of any government by
intimidation or coercion;
(c) Affect the conduct of any government by the threat or
by the specified offense.
(2) As a result of the threat, the person causes a reasonable
expectation or fear of the imminent commission of the specified
offense.
(B) It is not a defense to a charge of a violation of this section that the
defendant did not have the intent or capability to commit the
threatened specified offense or that the threat was not made to a person
who was a subject of the threatened specified offense.
(C) Whoever violates this section is guilty of making a terroristic threat,
a felony of the third degree. Section 2909.25 of the Revised Code
applies regarding an offender who is convicted of or pleads guilty to a
violation of this section.
“Specified offense” is defined, in pertinent part, as a felony offense of
violence.3 While the statute does not define “threat,”
3 The indictment listed the specified offense as felonious assault in violation of R.C.
2903.11.
[g]enerally speaking . . . the term “threat” in the criminal context
connotes “[a] communicated intent to inflict harm or loss on
another. . . [.]” Black’s Law Dictionary 1519 (8th Ed.2004). The term
“terroristic threat” is understood to mean “[a] threat to commit any
crime of violence with the purpose of . . . terrorizing another[.]” Id.
When interpreting a different criminal statute, the Supreme Court
defined “threat” as “‘an expression of an intention to inflict evil, injury,
or damage on another usu[ally] as retribution or punishment for
something done or left undone.’ It connotes almost any expression of
intent to do an act of harm against another person irrespective of
whether that act is criminal.” State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, ¶ 36, 858 N.E.2d 341, quoting Webster’s Third New
International Dictionary 2382 (1986), citing State v. Moyer, 87 W.Va.
137, 104 S.E. 407 (1920).
State v. Klingel, 2017-Ohio-1183, ¶ 7 (9th Dist.). Moreover, R.C. 2909.23(B) makes
actual intent or capability of carrying out the threat irrelevant and further provides
that the threat need not be made to “a subject of the threatened specified offense.”
Appellant’s argument is essentially confined to challenging whether
the State produced sufficient evidence that appellant acted “with purpose” to either
“[i]ntimidate or coerce a civilian population.” We do not find appellant’s arguments
convincing.
Elements of an offense may be proven by direct or circumstantial
evidence, which have equal evidentiary value. Id. at ¶ 46, citing State v. Wells, 2021-Ohio-2585, ¶ 25-26 (8th Dist.). To be more precise, “‘[p]roof of guilt may be made
by circumstantial evidence, real evidence, and direct evidence, or any combination
of the three, and all three have equal probative value.’” Lynch, 2025-Ohio-2769, at
¶ 50 (8th Dist.), quoting State v. Zadar, 2011-Ohio-1060, ¶ 18 (8th Dist.), citing
State v. Nicely, 39 Ohio St.3d 147, 151 (1988); Jenks at 272.
“A person acts ‘purposely’ ‘when it is the person’s specific intention
to cause a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature . . . it is the offender’s specific intention to engage in
conduct of that nature.’ R.C. 2901.22(A).” State v. Dickerson, 2023-Ohio-4787,
¶ 43 (8th Dist.). “Because direct evidence of a defendant’s intent ‘will seldom be
available,’ such ‘proof often must be derived from circumstantial evidence,’ i.e.,
gathered from all the surrounding facts and circumstances.” Dickerson at ¶ 46,
quoting State v. Cammon, 2018-Ohio-3183, ¶ 19 (8th Dist.). See also State v.
Johnson, 56 Ohio St.2d 35, 38 (1978) (“‘The intent of an accused person dwells in
his mind. Not being ascertainable by the exercise of any or all of the senses, it can
never be proved by the direct testimony of a third person, and it need not be. It must
be gathered from the surrounding facts and circumstances under proper
instructions from the court.’”), quoting State v. Huffman, 131 Ohio St. 27 (1936),
paragraph four of the syllabus; In re E.W., 2025-Ohio-1461, ¶ 28 (8th Dist.).
“Indeed, a defendant may be convicted based solely on circumstantial evidence.”
Dickerson at ¶ 46.
Viewing the evidence in a light most favorable to the prosecution, as
we must for purposes of a sufficiency analysis, we find that appellant’s conduct and
the surrounding circumstances support the conclusion that he acted with the
purpose of intimidating a civilian population. Appellant posted Instagram story
videos of himself walking downtown, masked, carrying a firearm with an extended
magazine hanging out of his open jacket. In one video in a downtown location, he stated “on my mama I’m about to shoot this bitch up.” He continued to post such
videos of himself in public places, including downtown sidewalks, mass-transit
stops, and inside Tower City.
Importantly, appellant’s purpose can be inferred from the decision
to make his Instagram story public and his continuing to post disturbing content
after he became aware of the public’s alarm. The public nature of the posts was
evidenced not only by Detective Hardy’s testimony, but also by appellant’s own
screenshots showing his apparent delight in both the written expressions of public
alarm generated by his posts and the increasing number of views he was amassing.
State’s exhibit No. 11 reflects that appellant picked one particular post — the video
of him pointing his handgun at occupied cars on the highway — to demonstrate the
increasing popularity of his public story. In slide 15, he posted a screenshot showing
that the video had been viewed 1,483 times. In slide 19, he posted a screenshot
indicating it had been viewed 3,057 times. The screenshot on slide 24 reflects that
by then, the video had been viewed 4,740 times.
Witness Lopez described this particular video as one of appellant’s
most distressing posts, provoking intense fear and even causing him to imagine
himself and his family in the position of one of the moving cars at which appellant
had pointed his gun. Appellant’s posts intimidated Lopez to the point that he called
off work.
The video also plainly caused distress to individuals viewing it on
Instagram. One Instagram user responded to the video by asking, “You shooting at random cars?” Another responded specifically to that video by asking, “Why are you
doing that?? We are people with families and kids & all that’s sad af.” While
appellant publicly answered “No” to the first inquiry and essentially said he “wasn’t
doing anything” in response to the second, he did not stop posting objectively
distressing content. Instead, he escalated by posting a picture from inside Tower
City captioned: “I’m finna show y’all what I did wrong bet y’all trying me.” Detective
Hardy testified that he interpreted the caption as “saying that you’re saying he did
something wrong, he’s going to basically show you he’s going to do something
wrong.” (Tr. 179.) Appellant then mocked another commenter who stated she was
scared and wanted to stay away from his location, captioning the screenshot: “I’m
scaring all the pretty ladies ommg.”
Even after all that, appellant still did not put away his phone. After
openly acknowledging that members of the public were expressing fear over his
conduct, particularly the video in which he followed moving cars with his firearm,
he opted to provide visual and audible proof that it was no toy: Appellant posted a
video of himself firing five shots outdoors, in broad daylight, while wearing a mask
over his face. He also taunted viewers with statements that essentially conveyed the
message, “They can’t find me.” All of this permits an inference that appellant acted
with a purpose to intimidate the civilian population, i.e., the population that viewed
his posts thousands of times, expressed fear in messages to him, and even called 911.
See State v. Baughman, 2012-Ohio-5327, ¶ 27 (6th Dist.) (Where defendant’s letters
contained threats to “society in general” and referred to himself as a serial killer and mass killer, “a rational trier of fact could have concluded that [defendant’s] threats
were made in order to intimidate or coerce a civilian population[.]”); State v. Laber,
2013-Ohio-2681, ¶ 3 (4th Dist.) (Where defendant “conveyed threats to a fellow
employee against his employer while at his place of employment . . . [t]hese facts are
sufficient for the trier of fact to conclude that appellant meant to intimidate the
population at the workplace.”). See also State v. Steiner, 2022-Ohio-2088, ¶ 17 (9th
Dist.) (Whether the defendant “intended to commit the specified offense is
inapposite” under R.C. 2909.23.).
Appellant’s citation to Godwin v. Facebook, Inc., 2020-Ohio-4834
(8th Dist.), is unhelpful to his argument. Godwin involved a civil complaint against
Facebook concerning an allegedly threatening post that preceded a murder.
Specifically, one of Godwin’s five causes of action against Facebook was for “civil
recovery for a criminal act in failing to report a terrorist threat.” Id. at ¶ 4. This
court found that the trial court properly dismissed that statutory claim because
Godwin did not allege “that any particular civilian in the Cleveland area even saw
the post before the murder occurred,” that anyone reasonably believed the poster
“would imminently commit murder,” or that the statutory elements were otherwise
satisfied. Id. at ¶ 36. This court wrote that “[a]n isolated comment ‘to do some
murder shit,’ without context, is insufficient to satisfy the well-pleaded complaint
rule.” (Emphasis added.) Id. at ¶ 35.
Unlike Godwin, this case does not involve an isolated comment
devoid of context. The State introduced evidence that appellant had a public Instagram account with a public story and that members of the public actually
viewed appellant’s posts, including many showing appellant with a firearm in
downtown locations, showing appellant pointing the weapon at occupied vehicles,
and at one point even discharging the firearm outdoors. The State likewise put on
evidence that the public reacted with alarm to the posts, including reactions on
Instagram and by contacting police via 911. Furthermore, the State put on evidence
that appellant continued to post threatening content even after he was made aware
that the public was alarmed.
As noted above, we do not independently weigh the evidence in our
sufficiency analysis. Hill, 75 Ohio St.3d at 205. There was sufficient evidence to
convict appellant of the charge of making terroristic threat. The State’s evidence, if
believed, supported findings as to all elements of the offense, including the elements
that appellant specifically challenges, namely, that he acted with the purpose of
intimidating or coercing a civilian population. The State met its burden of
production, and a rational trier of fact could find the essential elements of the crime
were proven beyond a reasonable doubt. Dyer, 2007-Ohio-1704, at ¶ 24 (8th Dist.);
Spencer, 2024-Ohio-5809, at ¶ 15 (8th Dist.).
Appellant’s third assignment of error is overruled.
D. Manifest Weight of the Evidence
In his fourth assignment of error, appellant argues that his
conviction for making terroristic threat was against the manifest weight of the
evidence. “In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion.” State v. Hill, 2013-Ohio578, ¶ 32 (8th Dist.). “In our manifest weight review of a bench trial verdict, we
recognize that the trial court serves as the factfinder, and not the jury.” Cleveland
v. McCoy, 2023-Ohio-3792, ¶ 26 (8th Dist.), citing State v. Travis, 2022-Ohio-1233,
¶ 28 (8th Dist.); see also Cleveland v. Hale, 2024-Ohio-2712, ¶ 4 (8th Dist.)
(analyzing manifest weight issue in context of bench trial); Cleveland v. Clark,
2024-Ohio-4491, ¶ 45 (8th Dist.) (same); State v. Kennedy, 2024-Ohio-1586, ¶ 65
(8th Dist.) (same). Accordingly, this court has previously written:
“[T]o warrant reversal from a bench trial under a manifest weight of
the evidence claim, this court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in evidence, the
trial court clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed, and a new trial ordered.”
Kennedy at ¶ 65, quoting State v. Strickland, 2009-Ohio-3906, ¶ 25 (8th Dist.). An
appellate court will reverse on manifest weight “‘only in the exceptional case in
which the evidence weighs heavily against the conviction.’” State v. McLoyd, 2023-Ohio-4306, ¶ 40 (8th Dist.), quoting Thompkins, 78 Ohio St.3d at 387 (1997). This
is because “in a manifest-weight review, the weight to be given the evidence and the
credibility of the witnesses are primarily for the finder of fact.” State v. Metz, 2019-Ohio-4054, ¶ 70 (8th Dist.); see also Cleveland v. Johns, 2024-Ohio-3301, ¶ 24 (8th
Dist.). Indeed, an appellate court “‘may not substitute its own judgment for that of
the finder of fact.’” Id., quoting State v. Harris, 2021-Ohio-856, ¶ 33 (8th Dist.).
Here, the State introduced substantial evidence to establish, beyond
a reasonable doubt, every element of the charged offense. Appellant relies largely
on an argument that there was a “lack of any serious response to [his] alleged
threats,” including the decision not to evacuate Tower City. There are at least two
flaws in this argument. First, causing an evacuation or lockdown is not an element
of the offense. In a related vein, in a case involving a conviction for inducing panic,
this court noted that “[t]he absence of an evacuation does not negate a finding of
serious public inconvenience or alarm[.]” Cleveland v. Petrovich, 2015-Ohio-599,
¶ 26 (8th Dist.), citing In re J.C., 2013-Ohio-1292, ¶ 19 (11th Dist.). Second, the
decision not to evacuate does not indicate the lack of a “serious response” to
appellant’s threats. Here, the State offered substantial evidence that police devoted
considerable resources to locating and arresting appellant as quickly as possible, all
triggered by multiple expressions of public alarm over his activities. The public’s
reaction, coupled with the heightened police activity and literal manhunt for
appellant, puts to rest his argument that “no one regarded [his] posts or videos as
actual threats.” (Appellant’s brief at p. 19.)
We have independently reviewed the entire record, including the
testimony of every witness and each exhibit admitted into evidence. This included
not only the testimony of law enforcement but of fact witness Ray Lopez, who
testified that he considered appellant’s activity to be not only threatening but so
frightening and disturbing that he took time off work. It also included appellant’s
Instagram story videos threatening the public, his screenshots demonstrating the public’s alarmed reactions thereto, and appellant’s subsequent escalation and
taunting of the public in response to those reactions. It included the 911 calls made
in the interest of public safety, with the proviso that in a case tried to the bench the
trial court could sift inadmissible hearsay from admissible evidence. On this record,
we cannot conclude that this is the exceptional case where the trial court clearly lost
its way and created a manifest miscarriage of justice in returning a guilty verdict on
the charge of making terroristic threat.
Appellant’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR