Conviction on racial-slur charge reversed in Ohio

Monday, February 13, 2012

A Dayton, Ohio, woman who uttered racial slurs at a mailman after he sprayed repellent on her dog had her ethnic-intimidation conviction overturned by a divided state appeals court. The majority reasoned that the impetus for her slurs was the treatment of her dog, not racial animus. However, the court did affirm her other conviction for menacing.

In October 2009, Christina and Michael Kingery were on their front porch with their Labrador retriever. Mail carrier Laderek Brown, who was not the Kingery’s regular postman, came to deliver their mail. The Kingerys’ dog ran at Brown, who said he told them to restrain it.

When the Kingerys did not restrain the dog, Brown – who had been bitten by dogs before on the job – sprayed it with repellent. The Caucasian couple verbally accosted Brown, an African-American. Christina Kingery allegedly called Brown a “n—–,” told him he should go back to Africa and that she would “woop his ass.”

Prosecutors later brought charges against both Michael and Christina Kingery. Michael pleaded guilty to ethnic intimidation in exchange for his menacing charge being dropped. Christina, however, went before a judge on both counts. In her trial, Brown and a neighbor of the couple testified for the prosecution; Michael testified on behalf of his wife.

A trial judge found Christina guilty of menacing, defined by Ohio law as knowingly causing another to fear  physical harm; and also guilty of ethnic intimidation, an offense (such as menacing) committed “by reason of the race, color, religion or national origin of another person or group of persons.”

Kingery appealed and on Feb. 10 the Court of Appeals of Ohio, Second Appellate District, ruled in State v. Kingery. The court found sufficient evidence to uphold the menacing charge, as Brown testified that he felt threatened.

However, the majority of the court set aside the ethnic-intimidation charge. “Although Kingery used racial slurs in yelling at Brown about his treatment of her dog, the State presented no evidence to suggest that her reaction would have been less vituperative if a non-African-American mail carrier had sprayed the dog (although the particular hate words might have been different),” Judge Jeffrey E. Froelich wrote. “It was Kingery’s perceived treatment of her dog, not the race of the mail carrier, that triggered the outburst.”

Kingery’s attorney noted several ethnic-intimidation cases in which the charge was upheld. Those cases involved race-based conduct in addition to speech, including the mailing of a package resembling a bomb delivered to an African-American family with racial slurs attached and a cross burned in the yard of an African-American woman.

“There was no basis to conclude that Kingery’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,” Froelich concluded.

Judge Michael T. Hall dissented on the ethnic-intimidation issue. “In my view, the evidence of defendant’s vitriolic response, laced with racial slurs and profanity, was sufficient for the trial court to infer that racial animus was the motivating factor in the defendant’s threats.”

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