State v. Henry

2023 Ohio 4020

• Court: Ohio Court of Appeals
• Decided: November 6, 2023
• Docket: 3-23-06 & 3-23-07
• Status: Published

Opinion

[Cite as State v. Henry, 2023-Ohio-4020.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

STATE OF OHIO, CASE NO. 3-23-06 PLAINTIFF-APPELLEE,

v.

ALLEN R. HENRY, JR. OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO, CASE NO. 3-23-07 PLAINTIFF-APPELLEE,

Appeals from Crawford County Common Pleas Court Trial Court Nos. 22-CR-0351 and 22-CR-0362

Judgments Affirmed

Date of Decision: November 6, 2023

APPEARANCES:

William T. Cramer for Appellant

Daniel J. Stanley for Appellee Case Nos. 3-23-06 and 3-23-07

WILLAMOWSKI, J.

{¶1} Defendant-appellant Allen R. Henry (“Henry”) appeals the judgments

of the Crawford County Court of Common Pleas, alleging that the trial court erred

by failing to give a jury instruction for disorderly conduct as a lesser included

offense of telecommunications harassment. For the reasons set forth below, the

judgments of the trial court are affirmed.

Facts and Procedural History

{¶2} Crystal Boudinot (“Boudinot”) was the property manager of a facility

where Henry’s father lived. After Henry’s father passed away, Henry called

Boudinot sixteen times in four days to tell her not to touch his father’s belongings.

She testified that Henry’s tone became aggressive over these calls and that he said,

“I will kill you if you touch my dad’s stuff.” (Tr. 23). On October 4, 2022, Boudinot

reported these calls to the police.

{¶3} On October 4, 2022, Henry called the Crestline Police Department and

spoke with the dispatcher, Alice McElvain (“McElvain”).1 He claimed to be having

issues regarding his father’s belongings. Henry then said, “I’ll take all you out,”

describing this statement as a “promise” rather than a “threat.” (Tr. 18). McElvain

then reported these comments to a detective. As the result of the calls to Boudinot

and McElvain, Henry was charged with one count of telecommunications

1 The trial transcript states that this call occurred on October 24, 2022. However, Henry notes in his brief that the recordings played at trial indicate that these calls were placed on October 4, 2022.

-2- Case Nos. 3-23-06 and 3-23-07

harassment in violation of R.C. 2917.21(A)(6), fifth-degree felony, and one count

of aggravated menacing in violation of R.C. 2903.21(A), a first-degree

misdemeanor, in Case No. 22-CR-0351.

{¶4} At roughly 1:35 A.M. on October 8, 2022, Henry called 9-1-1 to report

that he was having issues with the natural gas service to his house. The dispatcher

informed him that he needed to contact the gas company. Henry then called 9-1-1

six more times over the next hour. In these calls, he told the dispatcher to “kiss my

motherf**king d**k.” (Ex. H). He also said, “That’s the reason why people get

killed, ‘cause they’re a**holes like you.” Id. As the result of these calls, Henry was

charged with one count of telecommunications harassment in violation of R.C.

2917.21(A)(6), a fifth-degree felony, in Case No. 22-CR-0362. The two cases

involving Henry were joined together for trial.

{¶5} At his jury trial on January 9-10, 2023, defense counsel asked for a jury

instruction on disorderly conduct, arguing that this was a lesser included offense of

telecommunications harassment. However, the trial court denied this request. The

jurors returned verdicts of guilty on the count of aggravated menacing and on the

count of telecommunications harassment from Case No. 22-CR-0362. The jurors

returned a verdict of not guilty on the count of telecommunications harassment from

Case No. 22-CR-0351. The trial court issued its judgment entry of sentencing on

March 1, 2023.

-3- Case Nos. 3-23-06 and 3-23-07

Assignment of Error

{¶6} Henry filed his notices of appeal on March 23, 2023. On appeal, he

raises the following assignment of error:

Appellant’s due process rights were violated when the trial court refused to instruct the jury on disorderly conduct as a lesser included offense to telecommunications harassment.

Legal Standard

{¶7} Where an “indictment * * * charges an offense” and “other offenses are

included within the offense charged, the jury may find the defendant not guilty of

the degree charged but guilty of * * * [a] lesser included offense.” R.C. 2945.74.

See Crim.R. 31(C).

A lesser-included offense is one in which ‘(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, * * * be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.’

State v. Hughkeith, 2023-Ohio-1217, 212 N.E.3d 1147, ¶ 92 (8th Dist.), quoting

State v. Deem, 40 Ohio St.3d 205, 209, 533 N.E.2d 294 (1988). See also State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 6.

A criminal defendant is sometimes entitled to a jury instruction that allows the jury to consider convicting the defendant of a lesser included offense as an alternative to convicting for the offense for which the defendant was charged.

State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 8.

-4- Case Nos. 3-23-06 and 3-23-07

{¶8} “To determine whether a criminal defendant was entitled to a jury

instruction (charge) on a lesser included offense requires a two-step analysis.” State

v. Turks, 3d Dist. Allen Nos. 1-10-02, 1-10-26, 2010-Ohio-5944, ¶ 18. “First, the

reviewing court must determine whether the one offense is, in fact, a lesser included

offense of the other offense.” Id. This step presents a legal question that is generally

resolved by an examination of the statutory elements. State v. Potts, 2016-Ohio-

555, 69 N.E.3d 1227, ¶ 63 (3d Dist.). However, “[t]he mere fact that an offense is

a lesser-included offense of a charged offense does not mean that the trial court must

instruct on both offenses.” State v. Cooper, 3d Dist. Marion No. 9-22-69, 2023-

Ohio-2100, ¶ 46.

{¶9} “Second, the reviewing court must determine whether the trial court

was obligated to give a jury instruction on the lesser included offense under the

specific facts of the case.” Turk at ¶ 18. “The lesser-included-offense instruction

is not warranted every time ‘some evidence’ is presented to support the lesser

offense.” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242,

¶ 192. “An instruction on a lesser-included offense is only required where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser-included offense.” Cooper at ¶ 46. “Thus,

a trial court need not provide a requested jury instruction unless it finds that

sufficient evidence was presented at trial to support giving the instruction.” State v.

Stoychoff, 3d Dist. Hancock No. 5-21-18, 5-21-19, 2021-Ohio-4248, ¶ 9.

-5- Case Nos. 3-23-06 and 3-23-07

{¶10} In this process, the “trial court must view the evidence in the light most

favorable to the defendant * * *.” State v. Robertson, 2023-Ohio-2200, --- N.E.3d

---, ¶ 47 (3d Dist.). However, the determination as to whether the evidence supports

giving an instruction on a lesser included offense lies within the discretion of the

trial court. Stoychoff at ¶ 9. Thus, a trial court’s decision on such a matter will not

be reversed in the absence of an abuse of that discretion. Id. More than an error of

judgment, an abuse of discretion is present where the trial court’s decision was

unreasonable, arbitrary, or unconscionable. State v. Edwards, 3d Dist. Union No.

14-23-11, 2023-Ohio-3213, ¶ 6.

{¶11} To establish the offense of telecommunications harassment in

violation of R.C. 2917.21(A)(6), the State must prove that the defendant “knowingly

ma[d]e * * * a telecommunication to another” and

[k]nowingly ma[de] any comment, request, suggestion, or proposal to the recipient of the telecommunication that [was] * * * threatening, intimidating, menacing, coercive, or obscene with the intent to abuse, threaten, or harass the recipient[.]

Further, R.C. 2917.21(C)(2) provides that the first offense against this provision is

a first-degree misdemeanor while subsequent offenses are fifth-degree felonies. To

establish the offense of disorderly conduct in violation of R.C. 2917.11(A)(1), the

State must prove that the defendant “recklessly cause[d] inconvenience, annoyance,

or alarm to another by * * * engaging in fighting, in threatening harm to persons or

property, or in violent or turbulent behavior[.]”

-6- Case Nos. 3-23-06 and 3-23-07

Legal Analysis

{¶12} Regardless of whether disorderly conduct is a lesser included offense

of telecommunications harassment, the requested instruction must still be supported

by the evidence presented at trial. After the Defense moved for this instruction, the

trial court noted that telecommunications harassment requires the offender to make

a telecommunication while the offense of disorderly conduct does not. The trial

court noted that no dispute existed as to whether the charged conduct in these cases

arose from telecommunications.

{¶13} On appeal, Henry directs our attention to the fact that the offender

must intend “to abuse, threaten, or harass the recipient” to commit the offense of

telecommunications harassment. R.C. 2917.21(A)(6). He asserts that a jury could

have concluded that he did make these calls without the intent to abuse, threaten, or

harass anyone and that his statements were merely reckless. However, in this case,

Henry was charged with telecommunications harassment as a fifth-degree felony

because he had a prior conviction for this exact same offense. The evidence in the

record indicates that he received this prior conviction on July 26, 2022. Less than

three months later, Henry engaged in the same type of conduct by placing the calls

that gave rise to the instant charges. Thus, he was fully aware of the results this

conduct would effect when he made these calls. They were not merely reckless.

{¶14} Further, we note that Henry repeatedly made phone calls in which he

raised his voice, made threats, and uttered obscenities at the recipient. He also has

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not provided an alternative, legitimate reason for making these calls that would

suggest his intention was other than “to abuse, threaten, or harass the

recipient.” R.C. 2917.21(A)(6). Recordings of the calls that were made to Crestline

Police Department and to 9-1-1 were played at trial. Given the evidence presented

by the State, the trial court did not err in denying Henry’s requested jury

instruction. See State v. Hamrick, 77 N.E.3d 467, 2017-Ohio-323, ¶ 15 (4th Dist.).

{¶15} In conclusion, we make no determination as to whether disorderly

conduct is a lesser included offense of telecommunications harassment because,

even if it were, we do not conclude that the trial court erred in finding that the

evidence at trial did not support an instruction for disorderly conduct. Having

examined the evidence in a light most favorable to the defendant, we find no

indication that the trial court abused its discretion in denying the requested jury

instruction. Accordingly, Henry’s sole assignment of error is overruled.

Conclusion

{¶16} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgments of the Crawford County Court of Common

Pleas are affirmed.

WALDICK and ZIMMERMAN, J.J., concur.

/hls

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