[Cite as State v. Echols, 2024-Ohio-2697.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00032 CLIFFORD ECHOLS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Municipal Court, Case No. 22CRB00891
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMY S. DAVISON BRIAN W BENBOW Newark City Law Director Benbow Law Offices, LLC 40 W. Main Street 803 Taylor Street Newark, Ohio 43055 Zanesville, Ohio 43701 Hoffman, J. {¶1} Defendant-appellant Clifford Echols appeals the judgment entered by the
Licking County Municipal Court convicting him following jury trial of one count of menacing
by stalking in violation of R.C. 2903.211, three counts of telecommunication harassment
in violation of R.C. 2917.21(B)(1), and one count of telecommunication harassment in
violation of R.C. 2917.21(B)(2), and sentencing him to 180 days in jail. Plaintiff-appellee
is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} David Mosser has worked for Amazon for seven years, initially as a loss
prevention manager, and later as security program manager. Appellant was formerly
employed by the Amazon facility in Etna, Ohio. Although Mosser never met Appellant,
Mosser’s job duties included creating and maintaining employee identification badges.
Therefore, Mosser knew what Appellant looked like from making badges. Mosser
investigated Appellant one time for workplace violence, which occurred after Appellant’s
employment had been terminated. Mosser testified for the State at a previous criminal
trial against Appellant, which was ultimately dismissed.
{¶3} In May of 2022, 95% of Mosser’s work for Amazon was performed remotely
from his home in Heath, Ohio. On May 24, 2022, Mosser received a phone call from an
unknown number in the 740 area code. When Mosser answered, the caller identified
himself as Appellant, and said, “Next time I see you, I’ll beat your ass.” Tr. 42. Mosser
received text messages from the same number, which referenced “205 Green,” Mosser’s
previous home address. The texts threatened someone was going to die, and he would
have to hurt someone. The texts also referenced Appellant’s belief Amazon and Mosser
owe him money for violating his rights. One text included a screen shot of a DVD labeled, “Jury Trial April 24, 2021,” taken from an Instagram account named “smb_weightgain.”
The profile picture of “smb_weightgain” is a picture of Appellant.
{¶4} Mosser also had an Instagram hobby page. Shortly after receiving these
texts, he was notified of several postings on his Instagram page from an account named
“dayoke_.” The message contained a photograph of a masked person, stating, “were
watching better do the rite thing.” Mosser also received a text from the same number the
person who identified himself as Appellant called from, with a screenshot of Mosser’s
Instagram hobby page, and a message, “Want to make sure your getting my messages.”
State’s Ex. 3.
{¶5} Mosser reported the contacts to his supervisor at Amazon, Will Hampton,
who called the Licking County Sheriff’s Department. On May 26, 2022, Deputy Matthew
Maddux called the telephone number provided by Mosser. Deputy Maddox asked the
person who answered if he was Clifford Echols. Although not identifying himself, the
person who answered asked Deputy Maddux if he had his money. When the deputy
responded he did not, the person hung up.
{¶6} Mosser received a direct Instagram message from the “dayoke” account,
which stated, “[Y]ou thought this was over no David we have the rest of our life rest of
your life to play and you obviously know how I get welcome to my world.” State’s Exhibit
3. Another direct message on Instagram stated if the sender catches Mosser before his
mind is at peace, he would take it all out on Mosser. Mosser received another Instagram
message from “smb_weightgain” which stated, “[I]f you don’t get my money I’m working
on sending you and your friends to prison how do you think your family and peers are
going to react when they find out what you did I warned y’all the first time and I’ll do it again god doesn’t like ppl fucking with me and your going to get fucked over for thinking
I’m dumb. Get my money.” State’s Exhibit 4. The final communication Mosser received
was a text message from the number associated with Appellant on May 30, 2022, which
stated, “David Will you work in such a large building how do you know who’s there for
YOU that’s your job though right BE CAREFUL.” Tr. 62. Appellant’s Instagram account
included posts threatening the deputies involved in his 2021 case, and claiming Mosser
lied in his previous trial.
{¶7} As a result of these messages, Mosser obtained a civil protection order and
purchased firearms to protect himself and his family from Appellant.
{¶8} Appellant was charged with four counts of telecommunication harassment
and one count of menacing by stalking. The case proceeded to jury trial in the Licking
County Municipal Court.
{¶9} At trial, Appellant denied telephoning and texting Mosser, and claimed
numerous people had access to his Instagram accounts, and knew of his claims against
Amazon. However, Appellant also testified he did not intend to threaten Mosser, he
simply wanted to sue Mosser, Amazon, and the State. He testified the way he talks is
aggressive, and if Mosser took the things he said out of context, he apologized.
{¶10} The jury found Appellant guilty on all counts. Appellant was convicted and
sentenced to 180 days in jail. It is from the April 11, 2023 judgment of conviction and
sentence Appellant prosecutes his appeal, assigning as error: I. THE CONVICTION FOR TELECOMMUNICATIONS
HARASSMENT WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
II. THE CONVICTION FOR MENACING BY STALKING WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
{¶11} At the outset, we note in his reply brief Appellant argues as to both
assignments of error, the evidence was insufficient to identify him as the sender of the
texts and Instagram messages because the messages themselves were inadmissible due
to lack of proper authentication. Appellant did not separately assign error to the
admissibility of the messages, as required by App. R. 12(A), which provides, “The court
may disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to argue
the assignment separately in the brief, as required under App. R. 16(A).” In addition, a
party may not advance new arguments in its reply brief. See, e.g., Clifton Care Ctr. v.
Ohio Dept. of Job & Family Servs., 2013-Ohio-2742, ¶13 (10th Dist.). We find the issue
of the admissibility of the State’s Exhibits was not properly raised by Appellant, and will
not be considered by this Court.
I.
{¶12} Appellant argues the judgment convicting him of telecommunication
harassment is against the manifest weight and sufficiency of the evidence. Appellant
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[Cite as State v. Echols, 2024-Ohio-2697.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00032 CLIFFORD ECHOLS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Municipal Court, Case No. 22CRB00891
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMY S. DAVISON BRIAN W BENBOW Newark City Law Director Benbow Law Offices, LLC 40 W. Main Street 803 Taylor Street Newark, Ohio 43055 Zanesville, Ohio 43701 Hoffman, J. {¶1} Defendant-appellant Clifford Echols appeals the judgment entered by the
Licking County Municipal Court convicting him following jury trial of one count of menacing
by stalking in violation of R.C. 2903.211, three counts of telecommunication harassment
in violation of R.C. 2917.21(B)(1), and one count of telecommunication harassment in
violation of R.C. 2917.21(B)(2), and sentencing him to 180 days in jail. Plaintiff-appellee
is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} David Mosser has worked for Amazon for seven years, initially as a loss
prevention manager, and later as security program manager. Appellant was formerly
employed by the Amazon facility in Etna, Ohio. Although Mosser never met Appellant,
Mosser’s job duties included creating and maintaining employee identification badges.
Therefore, Mosser knew what Appellant looked like from making badges. Mosser
investigated Appellant one time for workplace violence, which occurred after Appellant’s
employment had been terminated. Mosser testified for the State at a previous criminal
trial against Appellant, which was ultimately dismissed.
{¶3} In May of 2022, 95% of Mosser’s work for Amazon was performed remotely
from his home in Heath, Ohio. On May 24, 2022, Mosser received a phone call from an
unknown number in the 740 area code. When Mosser answered, the caller identified
himself as Appellant, and said, “Next time I see you, I’ll beat your ass.” Tr. 42. Mosser
received text messages from the same number, which referenced “205 Green,” Mosser’s
previous home address. The texts threatened someone was going to die, and he would
have to hurt someone. The texts also referenced Appellant’s belief Amazon and Mosser
owe him money for violating his rights. One text included a screen shot of a DVD labeled, “Jury Trial April 24, 2021,” taken from an Instagram account named “smb_weightgain.”
The profile picture of “smb_weightgain” is a picture of Appellant.
{¶4} Mosser also had an Instagram hobby page. Shortly after receiving these
texts, he was notified of several postings on his Instagram page from an account named
“dayoke_.” The message contained a photograph of a masked person, stating, “were
watching better do the rite thing.” Mosser also received a text from the same number the
person who identified himself as Appellant called from, with a screenshot of Mosser’s
Instagram hobby page, and a message, “Want to make sure your getting my messages.”
State’s Ex. 3.
{¶5} Mosser reported the contacts to his supervisor at Amazon, Will Hampton,
who called the Licking County Sheriff’s Department. On May 26, 2022, Deputy Matthew
Maddux called the telephone number provided by Mosser. Deputy Maddox asked the
person who answered if he was Clifford Echols. Although not identifying himself, the
person who answered asked Deputy Maddux if he had his money. When the deputy
responded he did not, the person hung up.
{¶6} Mosser received a direct Instagram message from the “dayoke” account,
which stated, “[Y]ou thought this was over no David we have the rest of our life rest of
your life to play and you obviously know how I get welcome to my world.” State’s Exhibit
3. Another direct message on Instagram stated if the sender catches Mosser before his
mind is at peace, he would take it all out on Mosser. Mosser received another Instagram
message from “smb_weightgain” which stated, “[I]f you don’t get my money I’m working
on sending you and your friends to prison how do you think your family and peers are
going to react when they find out what you did I warned y’all the first time and I’ll do it again god doesn’t like ppl fucking with me and your going to get fucked over for thinking
I’m dumb. Get my money.” State’s Exhibit 4. The final communication Mosser received
was a text message from the number associated with Appellant on May 30, 2022, which
stated, “David Will you work in such a large building how do you know who’s there for
YOU that’s your job though right BE CAREFUL.” Tr. 62. Appellant’s Instagram account
included posts threatening the deputies involved in his 2021 case, and claiming Mosser
lied in his previous trial.
{¶7} As a result of these messages, Mosser obtained a civil protection order and
purchased firearms to protect himself and his family from Appellant.
{¶8} Appellant was charged with four counts of telecommunication harassment
and one count of menacing by stalking. The case proceeded to jury trial in the Licking
County Municipal Court.
{¶9} At trial, Appellant denied telephoning and texting Mosser, and claimed
numerous people had access to his Instagram accounts, and knew of his claims against
Amazon. However, Appellant also testified he did not intend to threaten Mosser, he
simply wanted to sue Mosser, Amazon, and the State. He testified the way he talks is
aggressive, and if Mosser took the things he said out of context, he apologized.
{¶10} The jury found Appellant guilty on all counts. Appellant was convicted and
sentenced to 180 days in jail. It is from the April 11, 2023 judgment of conviction and
sentence Appellant prosecutes his appeal, assigning as error: I. THE CONVICTION FOR TELECOMMUNICATIONS
HARASSMENT WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
II. THE CONVICTION FOR MENACING BY STALKING WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
{¶11} At the outset, we note in his reply brief Appellant argues as to both
assignments of error, the evidence was insufficient to identify him as the sender of the
texts and Instagram messages because the messages themselves were inadmissible due
to lack of proper authentication. Appellant did not separately assign error to the
admissibility of the messages, as required by App. R. 12(A), which provides, “The court
may disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to argue
the assignment separately in the brief, as required under App. R. 16(A).” In addition, a
party may not advance new arguments in its reply brief. See, e.g., Clifton Care Ctr. v.
Ohio Dept. of Job & Family Servs., 2013-Ohio-2742, ¶13 (10th Dist.). We find the issue
of the admissibility of the State’s Exhibits was not properly raised by Appellant, and will
not be considered by this Court.
I.
{¶12} Appellant argues the judgment convicting him of telecommunication
harassment is against the manifest weight and sufficiency of the evidence. Appellant
specifically argues the State failed to prove he sent the messages with the intent to abuse, threaten, or harass Mosser, a person he did not know and had not met in person. He
argues the purpose of the communications related to a financial dispute between
Appellant and Amazon, the posts on Instagram were public posts and not directed to
Mosser, and his use of offensive language is protected by the First Amendment.
{¶13} Appellant was convicted of three counts of telecommunication harassment
in violation of R.C. 2917.21(B)(1), and one count of telecommunication harassment in
violation of R.C. 2917.21(B)(2):
(B)(1) No person shall make or cause to be made a
telecommunication, or permit a telecommunication to be made from a
telecommunications device under the person's control, with purpose to
abuse, threaten, or harass another person.
(2) No person shall knowingly post a text or audio statement or an
image on an internet web site or web page for the purpose of abusing,
threatening, or harassing another person.
{¶14} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of
the syllabus (1991).
{¶15} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, 1997-Ohio-52, quoting State v. Martin, 20 Ohio
App. 3d 172, 175 (1st Dist. 1983).
{¶16} Appellant cites this Court to State v. Shuck, 2020-Ohio-6989 (9th Dist.), in
which the court found insufficient evidence of the defendant’s intent to abuse, threaten,
or harass the mother of his child. The court concluded although the defendant had used
a distasteful racial epithet, the message itself that the mother of his child and his aunt “will
never get anything” was vague, devoid of specificity, and it could not be inferred from the
message the defendant’s purpose was to abuse, threaten, or harass. Id. at ¶19.
{¶17} In the instant case, the State presented evidence a man who identified
himself as Appellant called Mosser, threatening to “beat his ass.” Shortly thereafter,
Mosser received texts from the same number, and direct Instagram messages referring
to Mosser’s former home address, stating someone was going to die. The texts also
referenced Appellant’s belief Amazon and Mosser owe him money for violating his rights.
One text included a screenshot of a DVD labeled, “Jury Trial April 24, 2021,” taken from
an Instagram account named “smb_weightgain.” The profile picture of “smb_weightgain”
is a picture of Appellant.
{¶18} Mosser also had an Instagram hobby page. Shortly after receiving these
texts, he was notified of several postings on his Instagram page from an account named
“dayoke_.” The message contained a photograph of a masked person, stating, “were
watching better do the rite thing.” Mosser received a direct Instagram message from the “dayoke” account, which stated, “[Y]ou thought this was over no David we have the rest
of our life rest of your life to play and you obviously know how I get welcome to my world.”
State’s Exhibit 3. Another direct message on Instagram stated if the sender catches
Mosser before his mind is at peace, he would take it all out on Mosser. Mosser received
another Instagram message from “smb_weightgain” which stated, “[I]f you don’t get my
money I’m working on sending you and your friends to prison how do you think your family
and peers are going to react when they find out what you did I warned y’all the first time
and I’ll do it again god doesn’t like ppl fucking with me and your going to get fucked over
for thinking I’m dumb. Get my money.” State’s Exhibit 4. The final communication
Mosser received was a text message on May 30, 2022, which stated, “David Will you
work in such a large building how do you know who’s there for YOU that’s your job though
right BE CAREFUL.” Tr. 62. Mosser also received a text from the same number the
person who identified himself as Appellant called from, with a screenshot of Mosser’s
Instagram hobby page, and a message, “Want to make sure your getting my messages.”
{¶19} Unlike the vague message in Shuck, we find from the direct threats in the
messages Appellant sent to Mosser via text and Instagram, a rational trier of fact could
conclude Appellant’s purpose was to threaten, abuse or harass Mosser.
{¶20} Appellant’s Instagram account included posts threatening the deputies
involved in his 2021 case, and claiming Mosser lied in his previous trial. Although
Appellant argues Mosser sought out these messages and they were not directly sent to
Mosser, R. C. 2917.21(B)(2) does not require the message to be sent directly the person, but rather only requires the message knowingly be posted on internet web site or web
page for the purpose of abusing, threatening, or harassing another person.
{¶21} While Appellant argues generally his use of language some might find
offensive is protected speech under the First Amendment. However, threats which
intimidate or cause fear or apprehension by the recipient are unprotected by the First
Amendment.” See, eg., Miller v. Leone, 2024-Ohio-1325 (7th Dist.), ¶ 33. We find the
charges in the instant case related to threatening language, and not to Appellant’s use of
offensive language.
{¶22} We find the State presented sufficient evidence from which a rational trier
of fact could find Appellant guilty of telecommunication harassment.
{¶23} As to Appellant’s claim the judgment is against the manifest weight of the
evidence, while Appellant did not admit to sending the messages or making the Instagram
posts himself, he also apologized to Mosser, claiming he did not intend to threaten
Mosser, but only referenced his intention to sue Mosser, Amazon, and the State. We find
the jury did not lose its way in concluding Appellant sent the communications via text and
Instagram with the intention of threatening, harassing, or abusing Mosser, and the
judgment is not against the manifest weight of the evidence.
{¶24} The first assignment of error is overruled.
II.
{¶25} In his second assignment of error, Appellant argues the evidence is
insufficient to demonstrate he committed the offense of menacing by stalking because
the State failed to prove Appellant engaged in a pattern of conduct, and failed to prove
Appellant threatened to cause the victim physical harm or mental distress. {¶26} Appellant was convicted of one count of menacing by stalking in violation of
R.C. 2903.211:
(A)(1) No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause physical harm
to the other person or a family or household member of the other person or
cause mental distress to the other person or a family or household member
of the other person. In addition to any other basis for the other person's
belief that the offender will cause physical harm to the other person or the
other person's family or household member or mental distress to the other
person or the other person's family or household member, the other
person's belief or mental distress may be based on words or conduct of the
offender that are directed at or identify a corporation, association, or other
organization that employs the other person or to which the other person
belongs.
{¶27} The State presented evidence a man who identified himself as Appellant
called Mosser and threatened to beat him up. Throughout the next week, Mosser
received text messages from the same number, as well as direct Instagram messages
from an account bearing Appellant’s picture and a second Instagram account. The
messages were similar in nature, referring repeatedly to demanding money for a violation
of civil rights, stating this would not end until the sender received money for what occurred in his previous court trial. The call and messages continued over a period of a week,
establishing a pattern of conduct.
{¶28} The messages referred to Mosser’s prior home address, and threatened
physical harm to Mosser. Mosser testified he obtained a protection order and purchased
firearms to protect his family because of Appellant’s threats. In his own testimony,
Appellant apologized to Mosser if his threats were taken out of context, claiming he meant
only to threaten a lawsuit and not physical harm, but admitting he sometimes uses
aggressive language not everyone understands. We find the judgment is not against the
manifest weight or sufficiency of the evidence.
{¶29} The second assignment of error is overruled. The judgment of the Licking
County Municipal Court is affirmed.
By: Hoffman, J. Gwin, P.J. and King, J. concur