COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69993 VILLAGE OF MAYFIELD : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION STEPHEN KAPEKLA : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 94-CRB-00186 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: VINCENT A. FEUDO, ESQ. THOMAS A. McCORMACK, ESQ. P.J. MOONEY, ESQ. McCORMACK & WOLGAMUTH, L.P.A. KITCHEN, DEERY & BARNHOUSE, L.P.A. 450 Lakeside Place 55 Public Square 323 Lakeside Avenue, West 1100 Illuminating Building Cleveland, Ohio 44113 Cleveland, Ohio 44113-1999 - 2 - DYKE, J.: Appellant was charged with menacing under 537.06 of the codified ordinances of the City of Mayfield Village. The complaint stated that appellant did knowingly cause William Schilling to believe that appellant would cause him physical harm. After a trial to the municipal bench, appellant was found guilty and sentenced to a $250.00 fine plus costs and thirty days, suspended. Appellant filed a timely notice of appeal with this court and asserts two assignments of error. I THE TRIAL COURT ERRED IN OVERRULING APPELLANT KAPELKA'S MOTION TO ACQUIT PURSUANT TO CRIMINAL RULE 29. Appellant argues that the prosecution witnesses' testimony was inconsistent and that the prosecution failed to produce sufficient evidence of a reasonable belief on the part of the complainant, William Schilling, that appellant would cause him physical harm. For these reasons, appellant argues that the trial court erred in overruling appellant's Crim.R. 29 motion to acquit. We do not find merit in appellant's argument. Crim.R. 29 sets forth the requirements for a judgment of acquittal as follows: (A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. - 3 - The court properly found the evidence to be sufficient to sustain a conviction for menacing. The complainant, Schilling, testified at trial that appellant came into the shop where Schilling was employed to speak with union members about their benefits and pension funds. Schilling admitted to making a comment regarding the viability of the fund, which was overheard by appellant. The two men had words, which according to appellant, ended with appellant's threat to take Schilling outside and "wax his ass." (TR. 15) Schilling took this comment to mean that appellant was threatening to kill him, from his experience with the term "wax." Schilling also testified that appellant was red-faced and clenching his fists. Schilling was shaking in response to the incident with appellant and spoke with his union steward, who also witnessed the exchange, about a possible course of action against appellant. James Brown was Schilling's union steward and another prosecution witness. He testified to hearing appellant threaten to wax Schilling's asshole. Brown thought that the two men would come to blows. He looked into a possible recourse through the union for Schilling but found that appellant was not currently under Teamster jurisdiction, so any further action would have to occur through the court system. The third prosecution witness was Frank Pertz, Schilling's co- worker. He testified to overhearing appellant tell Schilling that he was going to take him outside and "whack" him. (TR. 78) He - 4 - further testified that he saw appellant lunge toward Schilling. Pertz testified to not being involved in the union. Given the testimony of these three eyewitnesses the court had sufficient evidence to support the elements of the menacing count. The witnesses testified to language used by appellant which would indicate appellant knowingly caused Schilling to believe he was at risk of physical harm. The court did not err in overruling the Crim.R. 29 motion to acquit. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN PRECLUDING EVIDENCE OFFERED BY APPELLANT KAPELKA TO ESTABLISH BIAS, PREJUDICE, INTEREST AND MOTIVES TO MISREPRESENT ON THE PART OF THE PROSECU- TION WITNESSES. Appellant argued that the court erred when it denied appellant the opportunity to show bias, prejudice, interest and motive to lie on the part of Schilling, Brown and Pertz. Appellant proffered the exhibits and testimony he would have had admitted if allowed to by the trial court into the record. After a thorough review of the proffered testimony and evidence, we agree with the trial court that it has no relevance to the menacing charge. Appellant wanted to show bias on the part of the prosecution witnesses by evidence of the union's political infighting, which included appellant. However, appellant was never able to show how Schilling, Brown or Pertz were personally involved in the political use of the menacing incident within campaign literature. The overall context of the dispute within the union may have been the - 5 - reason for the underlying emotions and flaring tempers in the exchange between Schilling and appellant, however it does not have a bearing on the facts that support the elements of the offense, rendering those facts more or less likely to be true. The trial court admitted enough testimony relating to the political campaign being waged within the union to be able to rule upon its relevancy to the proceedings. The court is given discretion to rule on issues of admissibility of exhibits based on relevancy. It is within the trial court's discretion whether to allow or disallow a given exhibit. Such discretion will not be disturbed unless an abuse of it has been shown. Avon Lake v. Anderson (1983), 10 Ohio App.3d 297, at paragraph two of the syllabus. See also, Yeager v. Riverside Methodist Hosp. (1985), 24 Ohio App.3d 54. Brown testified that Schilling was a union member, but not active. Brown also testified that he had been involved in the election proceedings within the union, which involved appellant and had stirred up some controversy, but that the election had been over five to six weeks prior to the incident. Brown denied being involved in writing about the menacing incident in any of the subsequent campaign literature designed to hurt appellant's reputation within the union. The court asked Brown if he was prejudiced in any way against appellant. Brown responded, "We never had cross words ever." (TR. 75) Testimony indicated that Pertz was not active with the union. - 6 - The trial court did not abuse its discretion in finding the campaign literature and testimony related to the campaign issue irrelevant and therefore inadmissible. Appellant's second assignment of error is overruled. The trial court's conviction and sentencing of appellant on the menacing charge are both affirmed. - 7 - It is ordered that appellee recover of appellant its 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 Lyndhurst 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. PORTER, P.J., AND KARPINSKI, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .