[Cite as Brecksville v. Werstler, 2014-Ohio-2388.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100041
CITY OF BRECKSVILLE PLAINTIFF-APPELLEE
vs.
LOTTIE K. WERSTLER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Garfield Heights Municipal Court Case No. CRB-1203194
BEFORE: Celebrezze, P.J., S. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 5, 2014 ATTORNEYS FOR APPELLANT
Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, Ohio 44113
Erin R. Flanagan 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Sergio I. DiGeronimo City of Brecksville Prosecutor 8748 Brecksville Road Suite 130 Brecksville, Ohio 44141
Rachel A. Kopec 8748 Brecksville Road Suite 216 Brecksville, Ohio 44141 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Lottie K. Werstler, appeals her conviction for
telecommunications harassment. After a thorough review of the record and relevant case
law, we affirm appellant’s conviction.
I. Procedural and Factual History1
{¶2} This case arose out of a criminal complaint filed on August 29, 2012, by
Detective Daniel Jereb of the Brecksville Police Department, alleging that appellant had
engaged in telecommunications harassment in violation of section 537.10 of the Codified
Ordinances of the City of Brecksville. The complaint states that appellant
did knowingly make or cause to make, a telecommunication, or permit a telecommunication to be made from a telecommunication device under her control, with the purpose to abuse, threaten, or harass another person. To wit: Continually sending text messages and emails to Brian J. Cuglewski despite being warned to cease and desist from doing so.
{¶3} On May 20, 2013, the case proceeded to a jury trial. The city first presented
the testimony of Officer Jeff Rowe of the Brecksville Police Department. Officer Rowe
testified that he was on duty on April 4, 2012, when Brian Cuglewski, the alleged victim,
complained of receiving unwanted phone calls, text messages, and emails from appellant.
In response to the complaint, Officer Rowe left appellant numerous voicemails
requesting her to stop contacting Cuglewski. Officer Rowe testified that he believed he
1The parties stipulated to an agreed statement as the record on appeal, pursuant to App.R. 9(D). reached appellant’s correct voicemail because the outgoing message included the name
“Lottie.”
{¶4} Additionally, Officer Rowe attempted to reach appellant by telephoning her
at her place of employment. However, he testified that when he asked for appellant and
identified himself as a Brecksville police officer, the woman who answered the phone
hung up on him. Based on his unsuccessful attempts to contact appellant, Officer Rowe
requested that the Newton Falls police go to appellant’s home and personally advise her
to call Officer Rowe.
{¶5} Detective Daniel Jereb testified that Cuglewski came into his office on
August 1, 2012, with copies of all the emails he had received from appellant from
December 27, 2011, to August 1, 2012. Based on the content of the emails, Det. Jereb
filed a criminal complaint against appellant on August 29, 2012.
{¶6} Brian Cuglewski was the final witness for the city. He testified that he had
met appellant while the two were involved in a volunteer organization. According to
Cuglewski, appellant began sending him numerous and unusual emails following her
placement on mandatory leave from the volunteer organization in early 2012.
Collectively, appellant sent Cuglewski a total of 56 emails from December 27, 2011, to
February 9, 2012, some suggesting her desire to have a romantic relationship with him
and others blaming him for her dismissal from the volunteer organization. Included in
the emails were statements such as, “Getting a new phone just to be able to bug you”; “I
do have other things I can do in my life besides bug you”; “It’s been fun bugging you”; “Forced personal leave has been totally worth it to be able to trick and bug you”; “Are
you tired of my emails yet? You really do suck... I hope you get this message.”
{¶7} On February 15, 2012, Cuglewski sent an email to appellant stating, “I do not
want to engage in a personal or professional relationship with you. Please cease from
sending me further correspondence.” Despite Cuglewski’s request, appellant continued
to send him unwanted emails. In total, appellant sent Cuglewski more than 90 additional
emails from February 15, 2012, to August 1, 2012.
{¶8} Cuglewski testified that he felt “alarmed” and “uncomfortable” with the
volume and content of appellant’s emails. Further, he stated that he felt “abused” and
“harassed” by the insults contained in some of the emails. Finally, Cuglewski testified
that he felt “scared” and “threatened” by appellant’s references to dreams she was having
about him, especially after she acknowledged that she had been contacted by the police
but was ignoring their repeated warnings to stop the correspondence.
{¶9} Defense counsel moved for a Crim.R. 29 judgment of acquittal at the close of
the city’s case and again at the close of trial. The trial court denied both motions. At
the conclusion of all evidence, the jury found appellant guilty of telecommunications
harassment.
{¶10} Appellant now brings this timely appeal, raising two assignments of error
for review:
I. The trial court erred in its denial of appellant’s motions for acquittal because the prosecution failed to present sufficient evidence to meet the statutory conviction requirements. II. The trial court erred in entering a judgment of conviction which was against the manifest weight of the evidence.
II. Law and Analysis
{¶11} In her first assignment of error, appellant argues that the trial court erred in
denying her motions for acquittal because the prosecution failed to present sufficient
evidence to meet the statutory conviction requirements. In her second assignment of
error, appellant argues that her conviction was against the manifest weight of the
evidence. Because appellant’s first and second assignments of error raise similar
arguments, we consider them together.
{¶12} A Crim.R. 29(A) motion challenges the sufficiency of the evidence. When
reviewing a challenge of the sufficiency of the evidence, an appellate court examines the
evidence admitted at trial and determines whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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.” Id. A sufficiency challenge requires us to review
the record to determine whether the state presented evidence on each of the elements of
the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
A reviewing court is not to assess “whether the state’s evidence is to be believed, but
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[Cite as Brecksville v. Werstler, 2014-Ohio-2388.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100041
CITY OF BRECKSVILLE PLAINTIFF-APPELLEE
vs.
LOTTIE K. WERSTLER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Garfield Heights Municipal Court Case No. CRB-1203194
BEFORE: Celebrezze, P.J., S. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 5, 2014 ATTORNEYS FOR APPELLANT
Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, Ohio 44113
Erin R. Flanagan 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Sergio I. DiGeronimo City of Brecksville Prosecutor 8748 Brecksville Road Suite 130 Brecksville, Ohio 44141
Rachel A. Kopec 8748 Brecksville Road Suite 216 Brecksville, Ohio 44141 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Lottie K. Werstler, appeals her conviction for
telecommunications harassment. After a thorough review of the record and relevant case
law, we affirm appellant’s conviction.
I. Procedural and Factual History1
{¶2} This case arose out of a criminal complaint filed on August 29, 2012, by
Detective Daniel Jereb of the Brecksville Police Department, alleging that appellant had
engaged in telecommunications harassment in violation of section 537.10 of the Codified
Ordinances of the City of Brecksville. The complaint states that appellant
did knowingly make or cause to make, a telecommunication, or permit a telecommunication to be made from a telecommunication device under her control, with the purpose to abuse, threaten, or harass another person. To wit: Continually sending text messages and emails to Brian J. Cuglewski despite being warned to cease and desist from doing so.
{¶3} On May 20, 2013, the case proceeded to a jury trial. The city first presented
the testimony of Officer Jeff Rowe of the Brecksville Police Department. Officer Rowe
testified that he was on duty on April 4, 2012, when Brian Cuglewski, the alleged victim,
complained of receiving unwanted phone calls, text messages, and emails from appellant.
In response to the complaint, Officer Rowe left appellant numerous voicemails
requesting her to stop contacting Cuglewski. Officer Rowe testified that he believed he
1The parties stipulated to an agreed statement as the record on appeal, pursuant to App.R. 9(D). reached appellant’s correct voicemail because the outgoing message included the name
“Lottie.”
{¶4} Additionally, Officer Rowe attempted to reach appellant by telephoning her
at her place of employment. However, he testified that when he asked for appellant and
identified himself as a Brecksville police officer, the woman who answered the phone
hung up on him. Based on his unsuccessful attempts to contact appellant, Officer Rowe
requested that the Newton Falls police go to appellant’s home and personally advise her
to call Officer Rowe.
{¶5} Detective Daniel Jereb testified that Cuglewski came into his office on
August 1, 2012, with copies of all the emails he had received from appellant from
December 27, 2011, to August 1, 2012. Based on the content of the emails, Det. Jereb
filed a criminal complaint against appellant on August 29, 2012.
{¶6} Brian Cuglewski was the final witness for the city. He testified that he had
met appellant while the two were involved in a volunteer organization. According to
Cuglewski, appellant began sending him numerous and unusual emails following her
placement on mandatory leave from the volunteer organization in early 2012.
Collectively, appellant sent Cuglewski a total of 56 emails from December 27, 2011, to
February 9, 2012, some suggesting her desire to have a romantic relationship with him
and others blaming him for her dismissal from the volunteer organization. Included in
the emails were statements such as, “Getting a new phone just to be able to bug you”; “I
do have other things I can do in my life besides bug you”; “It’s been fun bugging you”; “Forced personal leave has been totally worth it to be able to trick and bug you”; “Are
you tired of my emails yet? You really do suck... I hope you get this message.”
{¶7} On February 15, 2012, Cuglewski sent an email to appellant stating, “I do not
want to engage in a personal or professional relationship with you. Please cease from
sending me further correspondence.” Despite Cuglewski’s request, appellant continued
to send him unwanted emails. In total, appellant sent Cuglewski more than 90 additional
emails from February 15, 2012, to August 1, 2012.
{¶8} Cuglewski testified that he felt “alarmed” and “uncomfortable” with the
volume and content of appellant’s emails. Further, he stated that he felt “abused” and
“harassed” by the insults contained in some of the emails. Finally, Cuglewski testified
that he felt “scared” and “threatened” by appellant’s references to dreams she was having
about him, especially after she acknowledged that she had been contacted by the police
but was ignoring their repeated warnings to stop the correspondence.
{¶9} Defense counsel moved for a Crim.R. 29 judgment of acquittal at the close of
the city’s case and again at the close of trial. The trial court denied both motions. At
the conclusion of all evidence, the jury found appellant guilty of telecommunications
harassment.
{¶10} Appellant now brings this timely appeal, raising two assignments of error
for review:
I. The trial court erred in its denial of appellant’s motions for acquittal because the prosecution failed to present sufficient evidence to meet the statutory conviction requirements. II. The trial court erred in entering a judgment of conviction which was against the manifest weight of the evidence.
II. Law and Analysis
{¶11} In her first assignment of error, appellant argues that the trial court erred in
denying her motions for acquittal because the prosecution failed to present sufficient
evidence to meet the statutory conviction requirements. In her second assignment of
error, appellant argues that her conviction was against the manifest weight of the
evidence. Because appellant’s first and second assignments of error raise similar
arguments, we consider them together.
{¶12} A Crim.R. 29(A) motion challenges the sufficiency of the evidence. When
reviewing a challenge of the sufficiency of the evidence, an appellate court examines the
evidence admitted at trial and determines whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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.” Id. A sufficiency challenge requires us to review
the record to determine whether the state presented evidence on each of the elements of
the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
A reviewing court is not to assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.”
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). {¶13} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.
92266, 2009-Ohio-3598, ¶ 12. When reviewing a claim challenging the manifest weight
of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” Thompkins at 387. After
reviewing the entire record, the reviewing court must 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 the conviction must be reversed and a new trial
ordered. Id.
{¶14} Appellant was convicted under Brecksville Ordinance 537.10(b), which
provides, in pertinent part: “No person shall make * * * a telecommunication * * * with
purpose to abuse, threaten, or harass another person.”
{¶15} In challenging the sufficiency and the weight of the evidence supporting her
conviction, appellant asserts that the city failed to prove that she “purposely” abused,
threatened, or harassed Cuglewski. We disagree.
{¶16} “A person acts purposely when it is his specific intention to cause a certain
result, or, when the gist of the offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby, it is his specific intention
to engage in conduct of that nature.” R.C. 2901.22(A). 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, 484-485, 2001-Ohio-4, 739 N.E.2d 749; State v. Huffman, 131 Ohio St. 27, 1 N.E.2d
313 (1936).
{¶17} In the case at hand, the record reflects that appellant sent Cuglewski over
140 emails in less than an eight-month period of time, often sending multiple emails a
day. Within many of the emails, appellant acknowledged her outright refusal to respect
Cuglewski’s request that she stop contacting him, and she often stated, specifically, that
the purpose of her emails was to “bug” him. Moreover, appellant’s conduct continued
even after the Brecksville police intervened in the matter. When questioned about
appellant’s conduct, Cuglewski testified that the volume and content of the
communications made him feel alarmed, abused, harassed, scared, and uncomfortable.
{¶18} While the telecommunications may not have been threatening in nature, they
were certainly harassing. Harassment is not defined in the ordinance, but is defined in
Merriam-Webster’s Collegiate Dictionary (11th Ed.2005) as “to annoy persistently * * *
to create an unpleasant or hostile situation * * * by uninvited and unwelcome verbal or
physical conduct * * * .” See also Black’s Law Dictionary 733 (8th Ed.Rev.2004)
(defining “harass” as “[w]ords, conduct, or action that, being directed at a specific person,
annoys, alarms, or causes substantial emotional distress in the person and serves no
legitimate purpose”). {¶19} In our view, and under the limited circumstances of this case, the content of
the emails collectively demonstrated that appellant’s specific intent in persistently
communicating with Cuglewski was to “bug” him due to her dissatisfaction with how
their professional relationship terminated. Viewing the evidence in a light most
favorable to the prosecution, a rational trier of fact could have concluded that appellant
purposely acted to “annoy”or “alarm” Cuglewski and that her conduct served no
legitimate purpose. Consequently, appellant’s conviction was supported by sufficient
evidence.
{¶20} Furthermore, we find nothing in the record of the proceedings below to
suggest that the jury lost its way or created such a manifest miscarriage of justice as to
warrant the reversal of appellant’s conviction. As the trier of fact, the jury was in the
best position to weigh the credibility of the witnesses and was free to find Cuglewski’s
testimony to be credible. Accordingly, appellant’s conviction is not against the manifest
weight of the evidence.
{¶21} Appellant’s first and second assignments of error are overruled.
{¶22} 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 Garfield
Heights 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., CONCURS; MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY