Fairview Park v. Werling

[Cite as Fairview Park v. Werling, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

CITY OF FAIRVIEW PARK,                                :

                Plaintiff-Appellee,                   :
                                                          Nos. 113684, 113686, and 113687
                v.                                    :

AMBER L. WERLING,                                     :

                Defendant-Appellant.                  :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: November 7, 2024


                  Criminal Appeal from the Rocky River Municipal Court
                 Case Nos. 23 CRB 0339, 23 CRB 0937, and 23 CRB 0938


                                           Appearances:

                John T. Castele, City of Fairview Park Assistant Law
                Director/Prosecutor, for appellee.

                Susan J. Moran, for appellant.


SEAN C. GALLAGHER, J.:

                  In this consolidated appeal, appellant Amber L. Werling appeals her

convictions in three underlying cases.                    Upon review, we affirm both of her

convictions for menacing and her conviction for ethnic intimidation.
               Werling was charged in three separate cases for offenses arising from

her conduct toward employees of a Famous Footwear store. Werling was charged

with menacing, against victim L.M., in Rocky River M.C. No. 23 CRB 0339 and with

ethnic intimidation, also against victim L.M., in Rocky River M.C. No. 23 CRB 0938

for an incident that occurred on February 19, 2023. Werling was charged with

menacing, against separate victim A.S., in Rocky River M.C. No. 23 CRB 0937 for an

incident that occurred on April 2, 2023. Following a bench trial, Werling was found

guilty of all three offenses. In each case, Werling was sentenced to a suspended jail

term, placed on three years of probation, and ordered to pay a $100 fine. Werling

timely filed this appeal.

               The transcript reflects that on December 22, 2020, Werling went to

the Famous Footwear store at Westgate Mall in Fairview Park, Ohio, to return a pair

of shoes. L.M., D.C., and another employee were working at the time. A dispute

arose regarding the return, and Werling began to record the encounter on her cell

phone. The incident ended with Werling being told that she had to leave the store

and that she was not allowed to come back into the store. After leaving, Werling,

who is a white woman, called the store several times and reportedly used derogatory

language and used the “N” word directed at L.M., who is an African-American

woman. Werling was told to stop calling or the police would be called.

               On February 19, 2023, L.M. and A.S. were working at the same

Famous Footwear store in Fairview Park when Werling came into the store with her

daughter to shop for shoes. When Werling and her daughter approached the
register, L.M. recognized Werling and told her that she was not allowed to be in the

store. L.M. testified that Werling then started yelling at L.M., slammed the door,

yelled, “Dave, [t]his n***** b**** is trying to beat my a**”, and repeatedly called

L.M. a “n***** b****.” L.M.’s son and her son’s father (“Dave”) were outside in the

car. A.S., who was aware of the 2020 incident, testified that Werling was shopping

in the store and after she was told by L.M. that she was not allowed in the store,

Werling started “screaming and yelling” and kept calling L.M. a “fat n***** b****.”

According to Werling and her daughter, after they entered the store, L.M. was in

Werling’s face and threatening to beat her up and spit in her face and, at that point,

Werling yelled out the door to Dave, got in the car, and the police were called.

Werling provided testimony to explain her use of the “N” word and asserted it was

in response to L.M.’s accusations and was not intended as a racial slur but as a

derogatory comment to describe her as ignorant for what L.M. did to Werling in

front of her daughter. Dave also testified.

              A.S. recorded a portion of the incident on her phone, which was

played during trial. A.S. testified that Werling was “screaming the N word over and

over” and was calling L.M. a “n***** b****” for at least 30 seconds before A.S. began

recording the incident. The video showed that as Werling was leaving the store, she

yelled out the statement testified to by L.M. and told Dave to “call the police.” L.M.

responded to go ahead and call the police because Werling was “trespassing.” After

slamming the door, Werling walked off screen as she continued to yell the racial slur.

The police were then called by both sides to the incident.
               A responding officer testified that two calls came in to the police. The

officer described Werling’s demeanor at the scene as “aggressive, argumentative, not

calm,” and “very animated.” No arrests were made at the time. Another officer, who

prepared a report, indicated that Werling stated she called L.M. the “N” word

because of how she was acting and not because Werling is racist. L.M. did not report

her feelings in her initial statement. An officer returned to the store a few days later

and spoke with L.M., who told the officer she was fearful. L.M. testified that she was

fearful the day of the incident and stated, “[T]he fact that she went to her car to call

her boyfriend to tell him I’m trying to do something to her, of course I’m fearful. I

don’t know what she’s capable of.”

               On April 2, 2023, Werling messaged A.S. on Facebook. A.S. testified

that Werling had to have searched for her name in order to send the message and

that when she read the message, she felt threatened. A.S. indicated that Werling was

clearly still mad about what happened at the store. In the message, Werling referred

to the incident at the store, repeatedly referred to L.M. as an “orca b****” and

emphasized “ORCA,” used profanity, and proceeded to state the following:

      Since that orca knows I have black family! She also knows what we are
      about lol!

      Y’all don’t want smoke I promise you that!!!! For your sakes, I hope I
      never see y’all out, in Lorain, in [Fairview Park], anywhere! Y’all lucky
      there was a door to my left because that whole situation could have
      turned out differently if there wasn’t!!”

      Y’all lucky to still have jobs!
               A.S. testified that the message made her feel unsafe, that she took it

as a threat, that it included the city where A.S. lives, that she did not know what

Werling or her family were capable of doing, and that her first instinct was to call

the police. A.S. told L.M. and her work team through a group chat about the

Facebook messages.

               Other testimony and evidence were presented that this court has

thoroughly reviewed. On appeal, Werling raises three assignments of error for

review.

               Under her first assignment of error, Werling claims the trial court

erred by denying her Crim.R. 29 motion for acquittal on all charges. “‘A motion for

acquittal under Crim.R. 29(A) is governed by the same standard as the one for

determining whether a verdict is supported by sufficient evidence.’”          State v.

Spaulding, 

, quoting State v. Tenace, 

, ¶ 37.

“‘The relevant inquiry is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt.’” 

 quoting State v. Jenks, 

 (1991), paragraph two of the syllabus.          When evaluating the

sufficiency of the evidence, a reviewing court considers “whether the evidence, ‘if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.’” State v. Pountney, 

, quoting Jenks at

paragraph two of the syllabus.
                  In this matter, Werling was found guilty of menacing, a misdemeanor

of the fourth degree in violation of R.C. 2903.22(A), and ethnic intimidation, a

misdemeanor of the third degree in violation of R.C. 2927.12(A), as related to the

February 19, 2023 incident at the Famous Footwear store. L.M. was the alleged

victim of those charges. Additionally, Werling was found guilty of menacing, a

misdemeanor of the fourth degree in violation of R.C. 2903.22(A), as related to the

Facebook message that was sent to A.S. on April 2, 2023. A.S. was the alleged victim

of that charge.

                  R.C. 2903.22, the menacing statute, provides in relevant part that

“[n]o person shall knowingly cause another to believe that the offender will cause

physical harm to the person or property of the other person . . . .”              R.C.

2903.22(A)(1). “A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature.” R.C. 2901.22(B). “Physical harm” is “any injury, illness, or

other physiological impairment, regardless of its gravity or duration.”           R.C.

2901.01(A)(3).

                  R.C. 2927.12, the ethnic-intimidation statute, provides in relevant

part that “[n]o person shall violate section . . . 2903.22 . . . of the Revised Code by

reason of the race, color, religion, or national origin of another person or group of

persons.” R.C. 2927.12(A). As this court previously has stated, “‘[T]he crime of

ethnic intimidation occurs when a person commits a specified predicate offense by

reason of race, color, religion, or national origin.’” (Emphasis added.) State v.
Wochele, 

 (8th Dist.), quoting State v. Wisniewski, 

, *13 (8th Dist. Nov. 9, 2000).

               With respect to the offenses relating to the incident on February 19,

2023, Werling does not dispute that she used a highly repugnant racial word. She

argues that there was never any threat made to any alleged victim and there was no

objective conduct that would lead a person to believe Werling was going to cause

physical harm. She further argues that her use of the “N” word was not coupled with

any threat of physical harm, nor were her actions taken because of L.M.’s race.

               “To prove the elements of menacing, the prosecution must show that

the victim subjectively believed that there was a possibility of physical harm.” State

v. Harvey, 

 (6th Dist.), citing State v. McConnaughey, 2021-

Ohio-3320, ¶ 41 (1st Dist.). Menacing can be implied by an offender’s actions

without a verbal threat provided the circumstances demonstrate that the victim

genuinely believes that he or she is facing physical harm to person or property. 

citing State v. Whitehead, 

 (2d Dist.). As this court has stated,

“The gist of the offense is the victim’s reasonable belief that . . . physical harm was

about to befall her.” State v. Walker, 

 (8th Dist.), citing State

v. Charlton, 

 (11th Dist.). A victim need not articulate a precise

fear; rather, it is sufficient for the State to establish the victim’s general fear for her

safety. 

, citing State v. Howard, 

, ¶ 14 (2d Dist.).

               The evidence herein shows that after being told on February 19, 2023,

that she was not allowed to be in the Famous Footwear store, Werling began
screaming and yelling, repeatedly called L.M. a “n***** b****,” yelled out to Dave

and was accusing L.M. of having threatened her and telling Dave to call the police,

slammed the door, and continued yelling a racial slur directed at L.M. In the video,

L.M. states to go ahead and “call the police” because Werling was “trespassing.”

Once the door to the store was closed and as Werling was continuing to yell, L.M.

told A.S. to call the police and they locked the door. L.M. testified that she was

fearful that day and that she did not know what Werling was capable of. Although

L.M. did not initially report her feelings to police, she did indicate she was fearful

when an officer followed up with her a few days later. The responding officer

testified to Werling’s demeanor as being aggressive and “very animated.” When

viewing this and the other testimony and evidence presented in a light most

favorable to the prosecution, we find there was sufficient evidence to establish the

essential elements of menacing beyond a reasonable doubt as to this offense.

              We also find sufficient evidence was presented to support Werling’s

conviction for ethnic intimidation. Initially, we recognize that the menacing offense

that occurred on February 19, 2023, is the predicate offense for the ethnic-

intimidation charge. The city did not identify L.M. as a victim of an offense

stemming from the April 2, 2023 Facebook incident. Nonetheless, as argued by the

city, the events of February 19, 2023, cannot be analyzed in a vacuum and, when

considering the totality of all three incidents involving Werling and L.M., Werling’s

racial animus as a motivating factor in the underlying offense is shown.
               Ethnic-intimidation laws are not aimed at regulating speech, but

instead proscribe conduct that is not protected under the First Amendment.

Wochele, 

, citing State v. Kingery, 

 (2d

Dist.); see also Wisconsin v. Mitchell, 

 (1993). Thus, words alone

generally are not enough to establish the offense of ethnic intimidation. See 

 (finding “no basis to conclude that [the defendant’s] reaction to the

spraying of her dog would have been more civilized or less ‘emotional’ if the mail

carrier had not been African American”); see also 

 (finding no

evidence menacing acts were taken because of race with respect to an incident that

arose from a disagreement about where a car was parked); State v. Chopak, 2012-

Ohio-1537, ¶ 24 (8th Dist.) (finding no evidence menacing acts were taken because

of race when defendant’s actions were in response to victim refusing to back away

from confrontation she instigated). As recognized in Wochele, although use of the

“N word” is offensive, such repugnant or obnoxious language does not, “in itself,”

demonstrate that the menacing act was undertaken by reason of the victim’s race.

Id. at ¶ 25, citing Chopak at ¶ 24.

               “To put it more plainly, becoming infuriated with someone for a non-

racial reason and, in the course of that angry altercation, hurling a slur does not

suffice to transform disorderly conduct into ethnic intimidation.” Columbus v.

Fabich, 

 (10th Dist.), citing 

; Chopak at ¶ 24;

. Rather, it must be shown that the defendant exhibited “a racial

animus directly tied to and as a motivating factor in the underlying offense to sustain
the conviction.” See 

, citing 

. Also, the First

Amendment “does not prohibit the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent.” 

.

               In Fabich, the Tenth District recognized that “it is not enough that

someone who becomes involved in an altercation utters racial slurs in the course of

the altercation; rather, the victim must be targeted ‘by reason’ of their race . . . .” Id.

at ¶ 39.    The court found in that case that there was sufficient evidence to

demonstrate that the motive underlying the disorderly conduct was, at least in part,

racial when there was evidence of ongoing tensions between the two neighbors that

included a prior interaction in which one neighbor called the other a “Tarzan,” a lack

of a clear-cut explanation for the confrontation at hand, and the defendant

responded by presumably initiating the interaction and using a torrent of racially

abusive language. Id. at ¶ 44-45. Under the totality of those circumstances, the

court found the record permitted the jury to infer a racial motivation. Id. at ¶ 43-44.

               Though the circumstances of this case are somewhat different from

Fabich, this also is not a case in which words alone were used to establish the offense

of ethnic intimidation. Here, the record demonstrates that there were three related

instances involving the employees of the Famous Footwear store in which Werling

brought race into the equation and directed racially abusive language at L.M.

Following the December 22, 2020 disagreement over the shoe return, Werling called

the store multiple times and made a racial slur directed at L.M.                Then, on

February 19, 2023, after Werling returned to the store and was reminded that she
was not permitted in the store, Werling began yelling a racial slur at L.M. and she

repeated yelling the slur multiple times as she engaged in the menacing conduct

against L.M. Following this incident, in the Facebook messaging sent to A.S. on

April 2, 2023, Werling continued to inject racially abusive language directed at L.M.,

while referencing the February incident at the store. In the message, Werling states

in part:

      You and the giant orca working together as “managers” . . . both at the
      front plotting what that orca b**** was gonna say to me.

      You then let the Giant f****** orca get in my face and threaten me in
      front of my daughter . . . ! . . . Bet your a** didn’t think I was gonna
      stand up to that giant f***** orca did you?!

      ...

      Since that orca knows I have black family! She also knows what we are
      about lol!

               Viewing the evidence in a light most favorable to the prosecution, we

find it could be reasonably inferred from Werling’s actions and ongoing behavior,

together with her repeated use of racially abusive language directed at L.M., that she

committed the February 19, 2023 menacing offense against L.M., at least in part, by

reason of race, color, religion, or national origin.

               Last, as to the offense of menacing that arose from the Facebook

message that was sent to A.S. on April 2, 2023, Werling argues that the message did

not threaten A.S. but was an overt attempt to shame A.S. for what Werling believed

to be an injustice. We are not persuaded by her argument. The record reflects that

the Facebook message was sent a month and a half after the February 19, 2023
incident at the store. Werling went out of her way to look up A.S., and it was

apparent from the message that Werling was still angry about what happened at the

store and was upset with A.S. for “allowing that to happen” and for recording “once

I BUCK up!” After alluding to what her family is “all about,” Werling stated “Y’all

don’t want smoke I promise you that!!!!” She specifically referenced where A.S. lives

and works, stating, “For your sakes, I hope I never see y’all out, in Lorain, in

[Fairview Park], anywhere! Y’all lucky there was a door to my left because that whole

situation could have turned out differently if there wasn’t.” A.S. testified that her

first instinct was to call the police, that she took the message as Werling threatening

A.S., and that she felt unsafe. Viewing the testimony and evidence presented in a

light most favorable to the prosecution, we find there was sufficient evidence to

establish the essential elements of menacing beyond a reasonable doubt as to this

offense.

               The first assignment of error is overruled.

               Under her second assignment of error, Werling claims her

convictions are against the manifest weight of the evidence. When evaluating a

claim that a verdict is against the manifest weight of the evidence, “we review the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether in resolving conflicts in the

evidence, the [trier of fact] clearly lost its way and created such a manifest

miscarriage of justice that we must reverse the conviction and order a new trial.”

State v. Wilks, 

, citing State v. Thompkins, 

 (1997). Reversing a conviction based upon the weight of the evidence should

occur “‘only in the exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins at 387, quoting State v. Martin, 

(1st Dist. 1983).

               Werling argues that in addition to the arguments made under her

sufficiency challenge, when the testimony offered by the defense in this matter is

considered, the full picture of what actually occurred is evident and her convictions

should be reversed as against the manifest weight of the evidence. We do not agree.

After reviewing the entire record, weighing the evidence and all reasonable

inferences, and considering the credibility of the witnesses, we do not find the trial

court clearly lost its way and created such a manifest miscarriage of justice that the

convictions must be reversed. The second assignment of error is overruled as to the

menacing convictions.

               Under her third assignment of error, Werling claims that the trial

court erred in failing to dismiss the charges pursuant to Crim.R. 29 because of a lack

of venue. Werling specifically challenges the menacing charge relating to the

Facebook message sent to A.S. She asserts that there was no testimony that the

alleged offense occurred in Fairview Park, that A.S. testified she lived in Lorain, and

that the city did not establish venue was proper as to the offense charged. It does

not appear from the record that Werling made any objection to venue at trial. When

a defendant fails to object to venue at trial, the defendant waives all but plain error.

See State ex rel. Whitt v. Harris, 

; State v. Jackson,


, citing State v. Weber, 

 (2d Dist.). No

plain error has been shown.

               As the Supreme Court of Ohio has recognized, “[v]enue is not a

material element of the offense charged[,]” but “venue is a fact that must be proved

beyond a reasonable doubt unless it is waived by the defendant.” 

,

citing State v. Smith, 

 (2000); State v. Draggo, 

 (1981). Further, “venue ‘need not be proved in express terms so long as it is

established by all the facts and circumstances in the case.’” State v. Smith, 2024-

Ohio-5030, quoting State v. Headley, 

 (1983).

               Pursuant to R.C. 2901.12(H), “When an offender, as part of a course

of criminal conduct, commits offenses in different jurisdictions, the offender may be

tried for all of those offenses in any jurisdiction in which one of those offenses or any

element of one of those offenses occurred.” “Thus, as long as there was evidence

from which the trial court could have determined beyond a reasonable doubt that

one of the alleged offenses was committed in Cuyahoga County as part of a course

of criminal conduct, then venue was properly established.” 

, citing

State v. Beuke, 

 (1988). Among other means, prima facie

evidence of a course of criminal conduct may be established through proof that the

offenses involved the same victim or victims of the same type or from the same group

or were committed as part of the same transaction or chain of events or in

furtherance of the same purpose or objective. R.C. 2901.12(H)(1) and (3).
               Here, A.S. and L.M. worked together at Famous Footwear in Fairview

Park, the Facebook message sent to A.S. referenced the incident that occurred at the

Fairview Park store and stated, “I hope I never see you out in . . . Fairview Park,” and

A.S. informed her coworkers about the threatening messages. Because the evidence

adduced at trial demonstrated that the course of criminal conduct involved victims

from the same group and/or that they were part of the same chain of events with at

least one of the offenses occurring in Cuyahoga County, venue was proper. The third

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

municipal court to carry this judgment into execution. The defendant’s conviction

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.


______________________
SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR