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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

TELECOMMUNICATIONS HARASSMENT (134)

R.C. 2917.21 -- Telephone harassment.

State v. Ellison, 178 Ohio App. 3d 734, 2008-Ohio-5282 – Defendant posted a picture of a former friend on her MySpace page, captioned "molested a little boy." This was based on the defendant‘s belief her younger brother had been molested by the former friend. (1) The posting constituted a "telecommunication" even though there was not direct contact between the defendant and complaining witness. (2) Telecommunications harassment is a specific intent offense, requiring an intent to harass, and not merely showing the defendant knew or should have known her posting would cause harassment. Here the lack of direct communication and possibility it was meant as a legitimate warning compel the finding that the conviction was not supported by the evidence. Defamation is a separate issue which might be addressed in civil proceedings. Court does not address First Amendment claim, though the concurring opinion states, "The First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio."

State v. Salupo, 177 Ohio App. 3d 354, 2008-Ohio-3721 – Defendant was convicted of telecommunications harassment and extortion after he asked an ex-girlfriend to meet him, threatening to reveal secrets if she refused. Prior conviction did not have to be alleged in the indictment. It was sufficient to identify the charge as a felony of the fifth degree. Extortion conviction was not supported by the evidence. Though it was a condition of the suspended sentence from a prior conviction that he have no contact, she was not subject to that order. Thus he did not induce her to perform an illegal act.

State v. Gibbs (1999), 134 Ohio App. 3d 247 -- Ex-wife continued to call ex-husband's place of business concerning their children after being told not to. (1) Statute is not unconstitutionally overbroad because it reaches unwelcome, though benignly intended calls. (2) Necessity instruction was not required: "Simply because appellant felt that each call was necessary" did not bring the case within the ambit of necessity as defined in State v. Prince (1991), 71 Ohio App. 3d 694, 699.

State v. Johnigan, Montgomery App. No. 19734, 2004-Ohio-260 -- On responding to a 911 hang up call police found only the defendant at home, but her son, who had a history of making such calls, arrived shortly after the police. Insufficient evidence. Reversed.

State v. Mollenkopf (1982), 8 Ohio App. 3d 210 -- The telephone harassment statute is not unconstitutionally vague.

State v. Knox (1984), 18 Ohio App. 3d 36 -- Telephone company security manager held sufficiently qualified as custodian of the records to authenticate printouts generated by traps placed on phone lines to record and identify source of incoming phone calls. Records are admissible under the business records exception to the hearsay rule set forth in Evid. R. 803(6).

State v. Vrona (1988), 47 Ohio App. 3d 145 -- Headnote 3: "Testimony as to a telephone call is admissible where there is a reasonable showing, through testimony or other evidence, that the witness placed or received a call, plus some indication of the identity of the person spoken to. (Evid. R. 901[B][6], construed.)"

State v. Williams (1979), 64 Ohio App. 2d 271 -- Headnote 1: "In a criminal case the mere statement of a person calling a victim on the telephone identifying himself as the defendant is insufficient evidence to establish the caller's identity as the defendant. However, direct and circumstantial evidence which reasonably identified the defendant as a party to such telephone conversation establishes a sufficient foundation to admit evidence of the conversation in a criminal case."

Dayton v. Glisson (1987), 36 Ohio App. 3d 159 -- Headnote: "Evidence of ill will between the complainant and the defendant, plus evidence from a computerized 'trap' that anonymous, silent harassing calls were made from a single telephone line listed in the names of the defendant and her husband as subscribers, is insufficient to convict the defendant of telephone harassment beyond a reasonable doubt."

Bentleyville v. Pisani (1995), 100 Ohio App. 3d 515 -- Estranged wife charged with telephone harassment by husband. (1) Husband-wife privilege does not apply when couple are separated. (2) Claim that double jeopardy barred prosecution based on earlier prosecution in a different court, and contempt proceedings in domestic relations court, had not been passed on by trial court and was therefore premature.

State v. Bonifas (1993), 91 Ohio App. 3d 208, 211-212 -- "...(T)he gravamen of the offense of telephone harassment is not the fact that the recipient of the call is annoyed by the call. Rather, the offense must be proven in terms of the defendant's purpose to abuse, threaten, annoy, or harass the person called."

State v. Wagner (1992), 80 Ohio App. 3d 88 -- (1) Court wondered whether telephone harassment could be based on repeated calls placed in order to hear victim's voice on her answering machine. Because the defendant testified he hung up without speaking when the phone was answered, the court was able to sidestep the issue, finding this sufficient to support the conviction. (2) Judge's comment that he at times would like to shoot those making harassing phone calls through the phone was intemperate but not grounds for disqualification.

State v. Neese (1996), 114 Ohio App. 3d 93 -- Threatening message was left on answering machine. Complaint recited statutory language for menacing by stalking, though citing the correct statute number for aggravated menacing. Aggravated menacing conviction reversed, but court affirmed companion telephone harassment conviction. Though that charge was premised on the call including a violation of the aggravated menacing statute, actual conviction for that offense was not required.

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