[Cite as State v. Harshbarger, 2010-Ohio-4413.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-09-19
v.
EDWARD J. HARSHBARGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court Trial Court No. 2008-CRB-887
Judgment Reversed and Cause Remanded
Date of Decision: September 20, 2010
APPEARANCES:
Quentin M. Derryberry, II for Appellant
Darren L. Meade for Appellee Case No. 2-09-19
WILLAMOWSKI, P.J.,
{¶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 R.C. 2917.21(B). Harshbarger
maintains that the trial court failed to find the specific intent required by the statute
and that the verdict was against the manifest weight of the evidence. For the
reasons set forth below, the judgment is reversed.
{¶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.
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{¶4} Harshbarger grew up in Wapakoneta, but now lives almost two
hundred miles away in Cuyahoga Falls. Harshbarger knew that a former friend
worked as a detective for the Wapakoneta Police Department, so he tried to call
this friend at the police department to see if he could help with his sister’s
problem. Harshbarger had a short discussion with the dispatcher, but he was
unable to speak with his friend because he was not on duty that day.1
{¶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.”
1 A copy of this telephone conversation was admitted into evidence. 2 His sister had told him that was where Leonard worked.
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{¶7} Leonard testified that he received a phone call at work from an
unknown male who called himself “Joe”3 and who was angry and threatening.
Leonard testified that “Joe” told him to quit harassing Leonard’s neighbor or else
the caller would come to Wapakoneta and kill Leonard. Leonard acknowledged
that both he and Harshbarger were “pissed off” and both used profanity.
{¶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
3 Although there was testimony about the anonymous nature of the phone call from the unknown male calling himself “Joe,” there was also testimony that Harshbarger’s middle name was Joseph and that his family called him Joe.
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telephone call was generally consistent with one another with the exception of (1)
which party first used profanity and caused the conversation to become heated and
threatening; and, (2) the extent to which Harshbarger threatened Leonard.
{¶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 R.C. 2917.21(B) and the case law applicable thereto.
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
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burden to limit the statute’s scope to criminal conduct, not the expression of
offensive speech.
{¶13} Harshbarger was charged under R.C. 2917.21(B), which states:
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. R.C.
2901.22(A).
{¶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
4 The relevant portion of the statute was abbreviated for clarity. The entire text of R.C. 2917.21(B) states: “No person shall make or cause to be made a telecommunication or permit a telecommunication to be made from a telecommunication device under the person’s control, with purpose to abuse, threaten, or harass another person.” 5 In contrast, the first section of the telecommunications harassment statute does not require the same specific intent as R.C. 2917.21(B), under which Harshbarger was charged. R.C. 2917.21(A) states that no person shall knowingly make a telecommunication to another if the caller does any one of several enumerated acts.
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reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the
adequacy of the evidence; that is, whether the evidence, if believed, reasonably
could support a finding of guilt beyond a reasonable doubt. See State v.
Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio- 52, 678 N.E.2d 541, 546
(stating, “sufficiency is the test of adequacy”); State v. Jenks (1991), 61 Ohio
St.3d 259, 273, 574 N.E.2d 492, 503. The standard of review is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found all the essential elements of the offense beyond a
reasonable doubt. Jenks, supra.
{¶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
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entry, the trial court noted that “Mr. Leonard testified that Mr. Harshbarger
ultimately told him that he would come down and shoot him or kick his f***in’
a** or send someone down to do it for him.” (Emphasis added.) The trial court
first found that “[Harshbarger] told Mr. Leonard that he needed to leave his (Mr.
Harshbarger’s loved ones) alone.”
{¶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).
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{¶18} The fact that Harshbarger attempted to talk with his friend at the
police department about the neighbor problem before he contacted Leonard further
substantiated that this was his intended purpose. At trial, Leonard testified that
Harshbarger was drunk and very “pissed off” right from the beginning of the call.
However in the recording of the call Harshbarger made to the police dispatcher,
just two minutes prior to talking with Leonard, his demeanor was calm and polite,
and he did not sound intoxicated.
{¶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
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made numerous vulgar, threatening telephone calls to victim and victim told
defendant “50 to 100 times” to stop calling her); State v. Baron, 8th Dist. No.
81914, 2003-Ohio-5376 (finding that defendant had no legitimate purpose in
continually calling and then hanging up over a period of two days, including
approximately 25 times in less than an hour on the first day). In the case before
us, Harshbarger made one telephone call to Leonard, lasting less than three
minutes, and never called again.
{¶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
R.C. 2917.21(B). Although the trial court found that Harshbarger “was not
justified” in making a threat to Leonard, there was no finding by the trial court that
Harshbarger’s intent in making the call was to abuse, threaten, or harass Leonard.
Nor did our review of the record find evidence that would support the conclusion,
beyond a reasonable doubt, that Harshbarger’s specific intent in making the
telephone call to Leonard was to abuse, threaten, or harass.
{¶21} In commenting upon the “intent” standard required under a federal
telephone harassment statute, the United States District Court stated that, “often in
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the affairs of men *** conversations may be or become more or less
unsatisfactory, unpleasant, heated, or vulgar. Up to a point these are the normal
risks of human intercourse, and are and should be below the cognizance of the
law. *** If this section were drawn or interpreted any more broadly, countless
people would be criminalized.” United States v. Darsey (E.D.Pa. 1972), 342
F.Supp. 311, 314. Although the wording of the federal statute6 was somewhat
narrower than the statute in this case, we believe that R.C. 2917.21(B)’s mandate
requiring the finding of a specific “purpose to abuse, threaten, or harass,” in
making the call serves a similar function. As discussed above, this particular
section of the statute creates a specific-intent crime, requiring the state to prove the
defendant’s specific purpose to harass beyond a reasonable doubt. State v. Ellison,
2008-Ohio-5282, at ¶15. There is an important reason for requiring proof of
specific intent:
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.
6 The statute, former 47 U.S.C.A. § 223(1)((D), required that the intent be “solely to harass.”
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The Dissent’s reasoning, however, presumes that the trial court must have found
the required element of specific intent because it ultimately found that
Harshbarger was guilty. Utilizing this reasoning would eliminate the need for
appellate review because, if a defendant is found guilty, then a reviewing court
must assume that the trial court found all of the elements of the crime and
correctly applied the law. We agree with the Dissent’s assertion that the trial court
was in a better position to weigh the evidence and assess the credibility of the
witnesses. However, our review of the record shows that it was devoid of any
evidence that the actual purpose of the call was to make a threatening statement
prior to Harshbarger being provoked by Leonard.
{¶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
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must often make reasonable inferences to determine intent, but those inferences
must be based upon something more than the fact that the defendant committed
the act. Otherwise, there would be no need to require a mens rea as a necessary
element for conviction. Although we certainly agree that intent can be inferred,
there must be some evidence from which that intent could be inferred, i.e.,
multiple phone calls, calling after being told to stop, history between the parties,
etc. There was no such evidence in this case. Here the Dissent is inferring that
the trial court made the inference of intent because he was found guilty
{¶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
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contemplating committing a crime a moment later. Harshbarger readily admitted
to Officer Eisert that he threatened Leonard. He was not trying to hide his actions,
and had no belief that he had done anything wrong when discussing the matter
over the phone with the officer that evening. Harshbarger did not know Leonard,
he only made one call to him, and that call lasted less than three minutes. Even
the testimony of the “victim” himself indicated that Harshbarger’s first statements
pertained to leaving his family alone, “and then” he “started to” get angry. A trier
of fact may frequently find that a defendant’s denial of intent to commit a crime is
not credible. However, in this case, there was a considerable amount of other
evidence, including the words of the “victim” himself, supporting Harshbarger’s
claims. Even the trial court found that it was credible that Leonard used profanity
based upon the language he used in the courtroom. Leonard himself
acknowledged that he used profanity.
{¶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
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guilty. Parma Heights v. Barber, 8th Dist. No. 93005, 2010-Ohio-3309. The
defendant claimed that the trial court had misapplied the law in finding him guilty
because it was inconsistent to find that he had a “purpose to harass” while at the
same time finding that the evidence showed that he was repeatedly calling his
wife during the pendency of their divorce in an effort to reconcile. Id. at ¶21.
Likewise, in this case, we find that the trial court’s finding that Harshbarger called
Leonard to tell him to leave his family alone is inconsistent with a finding that his
purpose in making the call was to threaten Leonard.
{¶26} Based on all of the above, we do not find that there was sufficient
evidence of all of the elements of R.C. 2917.21(B) to find Harshbarger guilty
beyond a reasonable doubt. Harshbarger’s first assignment of error is sustained.
Because our resolution of the first assignment of error is dispositive of this appeal,
we find the remaining assignment of error is moot. The judgment of the Auglaize
County Municipal Court is reversed and the matter is remanded for further
proceedings consistent with this opinion.
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
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intent and, in fact, did make a threat during the call does not satisfy the clear and
unambiguous requirements of the statute.
{¶28} I write separately because, in this case, the trial court issued written
findings of fact, which is contrary to the directive contained in Crim.R. 23. When a
bench trial is held, the court is to make a general finding; i.e. guilty or not guilty.
See Crim.R. 23(C).
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 R.C. 2917.21(B) which says that
“no person shall make *** a telecommunication *** with purpose to *** threaten
or harass another person.”
{¶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
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admits an element of the offense, the trier of fact may not infer it from the other
evidence. They are wrong. Mental purpose is almost always inferred from one's
actions in a criminal case. Under the majority interpretation, a jury would not be
permitted to infer a trespass with purpose to commit a theft offense in a burglary
case from the fact that the defendant broke into the house and stole something,
unless the defendant expressly stated that was his purpose. Theft could not be
established from merely taking the property without the permission of the owner
and selling it to another, unless the defendant expressly stated it was his purpose to
permanently deprive the owner of the property. And killing another with a firearm
would apparently never be sufficient to establish a purpose to cause the death of
another unless the defendant stated that was his purpose.
{¶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.
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{¶32} Nothing in the trial court’s comment about the threat being
unjustified is inconsistent with the obvious determination by the trial court in its
judgment entry that the defendant made the phone call with the purpose to threaten
the victim as charged. The trial court in this case set forth the charged offense at
the outset of its final judgment entry. Although it might be good practice to do so, I
know of no requirement that the trial court in a bench trial again recite and reiterate
each element of the offense when announcing its judgment of “guilty as charged” at
the end of the judgment entry. In any event, I fail to see how a finding that “the
threat” was not justified indicates that the threat could not have been purposeful.
{¶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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{¶34} For all of these reasons, I respectfully dissent. I would affirm the
judgment of the trial court.
/jlr
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