STATE OF OHIO, PLAINTIFF-APPELLEE, v. EDWARD J. HARSHBARGER, DEFENDANT-APPELLANT.
CASE NO. 2-09-19
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
September 20, 2010
[Cite as State v. Harshbarger, 2010-Ohio-4413.]
Appeal from Auglaize County Municipal Court Trial Court No. 2008-CRB-887 Judgment Reversed and Cause Remanded
Quentin M. Derryberry, II for Appellant
Darren L. Meade for Appellee
{¶1} Defendant-Appellant, Edward J. Harshbarger (“Harshbarger“), appeals the judgment of the Auglaize County Municipal Court, finding him guilty of telecommunications harassment in violation of
{¶2} Harshbarger was charged with telecommunications harassment (or, “telephone harassment“) as a result of a single telephone call he made to Mr. Terry Leonard (“Leonard“). A bench trial was held on March 31, 2009.
{¶3} At the trial, Harshbarger testified that Leonard and Harshbarger‘s sister were neighbors in Wapakoneta and had adjoining backyards. Apparently there had been issues between the neighbors for several years to the point where Harshbarger‘s sister was trying to sell her home in order to avoid the problems and harassment she claims had been caused by Leonard and his family. The sister made several calls to the police about the situation, but the calls were placed anonymously and nothing was ever resolved. Harshbarger testified that on October 22, 2008, his sister called to tell him about another alleged incident of trespassing and harassment by the Leonards.
{¶5} Immediately thereafter, at approximately 4:43 pm, Harshbarger called Leonard, who was working at Papa John‘s Pizza2 at the time. Harshbarger and Leonard did not know each other and had never met or spoken with each other before. Telephone records and trial testimony confirm that a brief conversation took place between the two, lasting less than three minutes.
{¶6} Harshbarger testified that after he wasn‘t able to speak with his friend at the police department, he decided to call Leonard in order to reason with him and to tell him to stop bothering “the neighborhood.” Harshbarger claimed that Leonard responded with profanity and the discussion “took a nose-dive rather quickly” when Leonard repeatedly “dropped the F-bomb.”
{¶8} After the phone call from “Joe,” Leonard obtained Harshbarger‘s phone number and contacted the police with a complaint of telephone harassment. Later that evening, Officer Eisert from the Wapakoneta Police Department called Harshbarger and talked to him about the complaint and the call Harshbarger had made to Leonard. The officer also testified at trial and a recording of that telephone conversation was admitted into evidence. During the conversation with Officer Eisert, Harshbarger explained that he called in order to politely ask Leonard to stop bothering the neighbors, but, after Leonard repeatedly responded with profanity, Harshbarger acknowledged that he warned Leonard that if he didn‘t stop, he would “make his life miserable” or would “beat the shit out of him.” Harshbarger adamantly denied ever threatening to kill Leonard during his phone conversation with the officer and at trial.
{¶9} The testimony of each of the three witnesses concerning the
{¶10} On April 23, 2009, the trial court issued its judgment finding Harshbarger guilty as charged with the offense of telephone harassment, a first degree misdemeanor. The sentencing hearing was held on June 2, 2009, and Harshbarger was ordered to pay a fine of $500, plus costs, and to complete one hundred hours of community service. He was also placed on unsupervised community control sanctions through June 1, 2011, and ordered not to have any contact with Leonard or members of Leonard‘s household.
{¶11} It is from this judgment that Harshbarger appeals, presenting the following two assignments of error for our review.
First Assignment of Error
The Court failed to apply the plain meaning of
Second Assignment of Error
The verdict [sic] was against the manifest weight of the evidence.
{¶12} In his first assignment of error, Harshbarger maintains that the statute creates a specific-intent crime and that the State failed to prove beyond a reasonable doubt that Harshbarger‘s specific purpose in making the telephone call was to harass Leonard. He argues that the legislature has created this substantial
{¶13} Harshbarger was charged under
No person shall make *** a telecommunication *** with purpose to abuse, threaten or harass another person.4
“When adjudicating a charge of telephone harassment, the key issue is not whether the alleged victim is annoyed or otherwise affected by the call; rather, the purpose of the person who made the call is at the heart of the offense.” State v. Patel, 7th Dist. No. 03 BE 41, 2004-Ohio-1553, ¶7, citing State v. Bonifas (1993), 91 Ohio App.3d 208, 211-212, 632 N.E.2d 531. The state has the burden of establishing that the caller‘s specific purpose in making the telecommunication was to abuse, threaten, or harass another person.5 State v. Ellison, 178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶16. See, also, 3 OJI-CR 517.21(B). A person acts purposely when it is his specific intention to cause a certain result.
{¶14} Harshbarger‘s claim that the state failed to prove the element of intent challenges the sufficiency of the evidence to sustain his conviction. When
{¶15} Our review of the record reveals considerable evidence indicating that Harshbarger‘s purpose in making the telephone call was to try to solve the problem with his sister‘s neighbor. Harshbarger continually maintained, both at trial and in his admissions to Officer Eisert, that he was merely trying to talk to Leonard about not causing trouble for the neighbors. Harshbarger admitted to eventually using profanity and threatening language, but insisted that was not the purpose of the telephone call and it occurred only after he was provoked by Leonard‘s repeated profanity.
{¶16} In his trial testimony, Leonard also acknowledged that Harshbarger said “you need to leave my family [alone] or whatever you know, and then he started to get pissed off ***.” (Trial Tr. p. 9, emphasis added.) In its judgment
{¶17} In State v. Patel, supra, the trial court held that even though the message left by the defendant on the recipient‘s answering machine included considerable profanity, “reprehensible” language, and name calling, the record indicated that the actual purpose of the telephone call was to inform the alleged victim that he could return to work if he did not cause trouble. 2004-Ohio-1553, at ¶48.
[A]s the actual purpose of his making the call was not to use profanity and name calling, the mere inclusion of them in the message does not raise the incident to the level of telephone harassment. To hold so would essentially mean that any call placed with a legitimate purpose could somehow transform into telephone harassment by the use of profanity, an end that is not warranted by the existing statute.
Id. See, also, State v. Ellison, supra, 2008-Ohio-5282 (evidence of specific intent to harass was insufficient to support conviction of telecommunications harassment where defendant‘s actions could have served a legitimate purpose of warning others of what defendant believed to be criminal behavior on part of complainant).
{¶19} Evidence of a caller‘s intent to annoy or harass may be direct or indirect. State v. Lucas, 7th Dist. No. 05 BE 10, 2005-Ohio-6786 (evidence was sufficient to support conviction where defendant called the house of his former girlfriend several times in the early morning hours and repeatedly hung up on the mother of his former girlfriend). Although the statute does not require multiple calls in order to constitute telephone harassment, the fact that the caller made numerous calls is often indicative of the caller‘s specific purpose to harass. See, e.g., State v. Dulaney, 180 Ohio App.3d 626, 2009-Ohio-79, 906 N.E.2d 1147 (finding that, by the third phone call containing threats and profanity, a rational trier of fact could have found defendant guilty of telephone harassment); State v. Dobrovich, 7th Dist. No. 04 BE 10, 2005-Ohio-1441 (holding that evidence was sufficient to show that defendant purposely called victim with intent to harass her, as required to support convictions for telephone harassment, where defendant
{¶20} In its judgment entry, the trial court concluded that “[w]hile the Court would believe from the language used by Mr. Leonard as a part of his testimony that he was profane in his portion of the conversation with the defendant, the Court finds that the defendant was not justified in the threat made to Mr. Leonard.” However, this is not the standard required for conviction under
{¶21} In commenting upon the “intent” standard required under a federal telephone harassment statute, the United States District Court stated that, “often in
The burden is not met by establishing only that the defendant knew or should have known that her conduct would probably cause harassment. The legislature has created this substantial burden to limit the statute‘s scope to criminal conduct not the expression of offensive speech.
Id. (Emphasis added.)
{¶22} We find that the record does not contain any evidence that Harshbarger made the telephone call with purpose to abuse, threaten, or harass.
{¶23} We also acknowledge that it is not necessary to have direct evidence of a defendant‘s intent. “Because the intent of an accused dwells in his or her mind and can never be proved by the direct testimony of a third person, it must be gathered from the surrounding facts and circumstances.” State v. Treesh, 90 Ohio St.3d 460, 484-85, 2001-Ohio-4, 739 N.E.2d 749; State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313. Although intent can be inferred from relevant circumstantial evidence, such an inference will not support a conviction if it is based on the mere stacking of inference upon inference. State v. Cowans, 87 Ohio St.3d 68, 78, 1999-Ohio-250, 717 N.E.2d 298. It is certainly not necessary, nor likely, for a defendant to directly admit an element of the offense. A trier of fact
{¶24} There was never any question that Harshbarger made threatening statements to Leonard – Harshbarger himself acknowledged that fact from the beginning. And, he likely intended to make those threats at the time he uttered the words. But, it cannot be proven nor inferred from the facts in the record that he intended to threaten Leonard at the time he initially made the telephone call. When looking at the sufficiency of the evidence, an appellate court must view the facts in a light most favorable to the prosecution. However, it may not infer facts that have no basis other than the trial court‘s ultimate conclusion. Given the facts before the trial court, even excluding Harshbarger‘s own testimony concerning his intentions, it was not reasonable to infer that there was a specific intent to harass or threaten Leonard when he placed the telephone call. Harshbarger first tried to contact a police officer, which does not seem like typical behavior of someone
{¶25} We also agree with the Dissent in that a trial court does not necessarily have to specify findings as to each element of an offense. However, given the length of the judgment entry and the detailed findings, we wonder why the trial court commented upon the “justification” for the action, which was not an element of the offense, but made no comment or finding of any kind on the essential element of purpose. In a recent Eighth District telephone harassment case, the Court of Appeals reversed the trial court‘s decision finding the defendant
{¶26} Based on all of the above, we do not find that there was sufficient evidence of all of the elements of
Judgment Reversed and Cause Remanded
ROGERS, J., Concurring Separately.
{¶27} I concur fully in the majority opinion and the conclusion that there is no evidence that, at the time Appellant initiated his phone call, Appellant had the intent (purpose) to harass or threaten Leonard. The fact that he later developed that
{¶28} I write separately because, in this case, the trial court issued written findings of fact, which is contrary to the directive contained in
SHAW, J., DISSENTS:
{¶29} The evidence in the case is uncontroverted that the defendant threatened the victim over the phone. The “victim” testified that the defendant threatened him over the phone. The defendant admitted that he threatened the victim over the phone - but says that was not the purpose of the phone call. Weighing this testimony and the other evidence, the trial court as the trier of fact concluded that the defendant made the phone call with the purpose to threaten the victim and therefore found him guilty of violating
{¶30} In light of the foregoing, the statement of the majority in paragraph 22 that the record is devoid of “any evidence” as to a purpose to threaten is remarkable. The majority apparently believes that unless the defendant directly
{¶31} In this case, the defendant‘s admissions, the credibility (or lack thereof) of his denial of purpose, and the victim‘s testimony about the call, all provide an ample basis for any trier of fact to reasonably infer the purpose of the phone call. However, because the trial court simply chose to share its process of witness evaluation in the judgment entry of conviction by saying that “*** the court finds that the defendant was not justified in the threat made to Mr. Leonard,” the majority now says the trial court has failed to determine that a purposeful threat was made.
{¶33} In sum, the trial court clearly did not find the defendant‘s denial of any purpose to threaten to be credible in view of what happened during the call. From the vantage of the appellate bench, the majority has simply “re-decided” that the defendant‘s denial is not only credible but that it should outweigh the remaining evidence in the case as well. I fail to see how this complies with any prerogatives of the trier of fact known to Ohio law and/or any known appellate standards of review. On the contrary, it seems to me that instead of viewing the evidence in the light most favorable to the prosecution as required by State v. Jenks, supra - or even deferring to the findings of the trier of fact - the majority has actually weighed the evidence in the light most favorable to the defendant according to its own interpretation in order to overturn this judgment of conviction.
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