Opinion
CT2024-0009
09-24-2024
STATE OF OHIO, Plaintiff - Appellee v. WAYNE GHEEN, Defendant-Appellant
For Plaintiff-Appellee RON WELCH Prosecuting Attorney By: JOSEPH A. PALMER Assistant Prosecuting Attorney For Defendant-Appellant PATRICK J. MORO
Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0438
JUDGMENT: Reversed
For Plaintiff-Appellee RON WELCH Prosecuting Attorney By: JOSEPH A. PALMER Assistant Prosecuting Attorney
For Defendant-Appellant PATRICK J. MORO
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J.
OPINION
Baldwin, J.
{¶1} The appellant, Wayne Gheen, appeals the trial court's decision denying his Crim.R. 29 motion for acquittal, and the jury instruction given by the trial court regarding the quantum of evidence required to prove perjury. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} The appellee did not file a brief in this matter. Thus, as set forth in App.R. 18(C), this Court may accept the appellant's statement of the facts and issues as correct.
{¶3} In April of 2022, an altercation occurred at the Lazy River Lounge in Zanesville, Ohio involving the alleged brandishing of a firearm. On September 15, 2022, Detective Randy Wilson of the Muskingum County Sheriff's Department drove to the appellant's home to question him about the alleged incident. The appellant was not a suspect, but rather, a possible witness. Detective Wilson recorded his interview with the appellant without the appellant's knowledge. The appellant's statement to Detective Wilson was neither sworn, nor otherwise attested to by the appellant.
{¶4} It is unclear why Detective Wilson thought the appellant would be a credible witness regarding the events that occurred at the Lazy River Lounge in April, 2022. In fact, when Detective Wilson and the appellant first began talking, the appellant was under the impression that the basis for Detective Wilson's visit was another event at the Lazy River Lounge in which shots were fired.
{¶5} During the September 15, 2022, interview, Detective Wilson asked the appellant if he saw someone with a gun on the night in question. The appellant was not clear on the date of the alleged incident, and due to a concern that the appellant was conflating the events of April, 2022 with other incident in which shots were actually fired at the Lazy River Lounge, Detective Wilson corrected him. The appellant stated that he was not able to specifically identify an individual by name. Rather, he identified the individual as a "Chesterhill," and thought that he had dreadlocks. The appellant also stated that he could not adequately describe "the guy," and did not feel comfortable with potentially implicating someone.
{¶6} On May 3, 2023, eight months after the September 15, 2022, interview with Detective Wilson and over one year after the April, 2022 incident, the appellant was called to testify before the Muskingum County Grand Jury as a witness in a case against John A. Hunt and Paul E. Dickinson in connection with the April, 2022 incident. It is unclear why the appellant was called, as he had no further discussions with Detective Wilson or other law enforcement authorities following his initial encounter with Detective Wilson.
{¶7} The appellant was questioned before the Grand Jury about the April, 2022 night in question, though the event was only described by the Grand Jury Prosecutor as a "situation that happened back at the Lazy River Lounge back in April of last year." The appellant stated that it had been so long ago, and asked the prosecutor to refresh his recollection. The prosecutor responded that this has to do with "people pulling out guns at the Lazy River Lounge." No further clarification of the incident was made.
{¶8} The appellant testified that Detective Wilson "threw out names," that there was no confirmation "on his end," and that "he did not see nobody with guns because he stepped in front of his wife and her sister." He further stated that he knows "when people start to scatter, I'm not trying to stick around and find out."
{¶9} On July 13, 2023, the appellant was indicted in connection with his Grand Jury testimony on one count of perjury in violation of R.C. 2921.11 (A) and (F), a felony of the third degree. The appellant filed two separate motions prior to trial. Specifically, he filed a motion to dismiss for lack of sufficient evidence; and a motion for the disclosure of security footage in the hallway where Grand Jury witnesses sit. The trial court denied both motions.
{¶10} The matter proceeded to trial on November 7, 2023. The appellee presented one witness, Detective Wilson, who testified that the statements made to him by the appellant during the September 15, 2022, interview were different than the testimony he gave to the Grand Jury on May 3, 2023. At the conclusion of the appellee's case, the appellant renewed his Rule 29 motion for acquittal, arguing that while the appellee may have demonstrated that the appellant had made two inconsistent statements, it failed to provide sufficient evidence to prove that a perjury had occurred. The trial court overruled the Crim.R. 29 motion.
{¶11} Prior to the administering of instructions to the jury, the appellant made a motion in chambers to modify a proposed jury instruction. Specifically, the appellant requested that the instruction on evidence include the comment to the Ohio Jury Instruction with regard to the quantum of evidence required to prove perjury. This motion was also denied.
{¶12} The jury found the appellant guilty on the sole count of perjury. Bond was continued pending a pre-sentence investigation, and on December 28, 2023, the appellant was sentenced to thirty (30) months in prison. The appellant filed a timely appeal in which he sets forth the following assignments of error:
{¶13} "I. THE COURT ERRED IN DENYING MR. GHEEN'S CRIM. R. 29 MOTION FOR ACQUITTAL AT THE CONCLUSION OF THE STATE OF OHIO'S CASE."
{¶14} "II. THE COURT ERRED IN DENYING MR. GHEEN'S REQUEST TO INCLUDE AN INSTRUCTION TO THE JURY REGARDING THE QUANTUM OF EVIDENCE REQUIRED TO CONVICT HIM OF PERJURY."
ASSIGNMENT OF ERROR I
{¶15} The appellant argues in his first assignment of error that the trial court erred when it denied his Crim.R. 29 motion for acquittal at the conclusion of the appellee's case. We agree.
Standard Of Review
{¶16} Appellate review of Crim.R. 29 motions for acquittal, and the standard of review thereof, was recently discussed by this Court in State v. Anderson, 2024-Ohio- 3181 (5th Dist.):
Appellant argues that the trial court erred when it denied his Crim.R. 29 motion for acquittal. Pursuant to Crim.R. 29(A), a court "shall order the entry of the judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." Because a Crim.R. 29 motion questions the sufficiency of the evidence, "[w]e apply the same standard of review to Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence." Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. at ¶ 38, citing State v. Thompkins, supra. "Sufficiency is a test of adequacy." Id. "We construe the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense proven
beyond a reasonable doubt." Id., citing State v. Jenks, paragraph two of the syllabus.Id. at ¶38.
Analysis
{¶17} The appellant was indicted on one count of perjury in violation of R.C. 2921.11 (A) and (F), which states:
(A) No person, in any official proceeding, shall knowingly make a false statement under oath or affirmation, or knowingly swear or affirm the truth of a false statement previously made, when either statement is material.
(F) Whoever violates this section is guilty of perjury, a felony of the third degree.
{¶18} This Court has previously addressed the issue of perjury, stating that "…[t]here is a rebuttable presumption that one told the truth under oath, and thus proof that statements under oath that are at variance with previous unsworn statements will not support a conclusion that the witness committed perjury. State v. Goodin, 56 Ohio St.2d 438, 446, 384 N.E.2d 290 (1978). Unsworn statements that conflict with later sworn statements are insufficient to support a charge of perjury. Id. …" State v. Hoague, 2018-Ohio-5380, ¶ 57 (5th Dist.).
{¶19} When the appellant was interviewed by Detective Wilson in connection with the brandishing of a weapon incident in April of 2022 at the Lazy River Lounge, he was not sworn in or otherwise placed under oath, nor did he attest to his statement. He did not provide the name or names of individuals who had allegedly brandished a firearm, nor could he definitively identify them. He was later called to testify before the Grand Jury in a case against John A. Hunt and Paul E. Dickinson in connection with the April, 2022 incident. Even if we concede that the statement he made to Detective Wilson during the September 2022 interview identified Hunt and Dickinson, the fact that it was not made while under oath is fatal to the appellee's perjury case against the appellant. As set forth in Hoague, it is rebuttably presumed that a person will tell the truth under oath, and as such the appellant's previous unsworn statement to Detective Wilson in September of 2022 is insufficient to support the perjury charge, even if it conflicts with the prior unsworn statement, which is unclear in this case.
{¶20} Detective Wilson was the only witness called against the appellant during the presentation of the appellee's case. He testified regarding an unsworn statement made to him by the appellant. No further evidence of the appellant's alleged perjury was presented. Because a prior unsworn statement is insufficient to support a charge of perjury, the evidence presented by the appellee at trial was insufficient to sustain a conviction of perjury. Accordingly, the trial court erred in denying the appellant's Crim.R. 29 motion for acquittal at the conclusion of the appellee's case. As such, the appellant's first assignment of error is sustained.
ASSIGNMENT OF ERROR II
{¶21} In light of our decision regarding assignment of error number one, we find assignment of error number two to be moot.
CONCLUSION
{¶22} Based upon the foregoing, the decision of the Muskingum County Court of Common Pleas denying the appellant's Crim.R. 29 motion for acquittal on the sole count of perjury is hereby reversed, and the matter is remanded to the trial court to enter judgment consistent with this opinion.
Baldwin, J. Delaney, P.J. and King, J. concur.