State v. Shuck

S
[Cite as State v. Shuck, 2020-Ohio-6989.]


STATE OF OHIO                     )                      IN THE COURT OF APPEALS
                                  )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                            C.A. No.      19AP0040

          Appellee

          v.                                             APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
CHARLES ALLEN SHUCK                                      WAYNE COUNTY MUNICIPAL COURT
                                                         COUNTY OF WAYNE, OHIO
          Appellant                                      CASE No.   2019 CR-B 000390

                                 DECISION AND JOURNAL ENTRY

Dated: December 31, 2020



          TEODOSIO, Judge.

          ¶1   Appellant,     Charles     Allen   Shuck,   appeals   from   his   conviction   for

telecommunications harassment in the Wayne County Municipal Court. This Court reverses.

                                                    I.

          ¶2   Mr. Shuck, a Caucasian male, was in a relationship with D.O., an African-American

female, thirteen years ago. They have one daughter (“Z.”) together who is now in the custody of

Mr. Shuck’s aunt. In January of 2019, Mr. Shuck sent a text message to D.O. asking to have their

daughter for a visit that weekend. After receiving no response for the next six hours, he sent

another text message to D.O. stating: “Ok n****r you and [my aunt] will never get anything.”

D.O. later responded by text, explaining that she had been “swamped” at work and that, due to Mr.

Shuck’s previous text, she would not be replying to his initial request for visitation. Mr. Shuck

replied by text and stated: “Ask me if I give a f**k[].” D.O. reported the text messages to the

police.
                                                2


       ¶3    Mr. Shuck was charged with telecommunications harassment, a misdemeanor of

the first degree. Following a bench trial, the trial court found him guilty and sentenced him to

twelve months of probation. He was further ordered to have no contact with the victim, pay a

$500.00 fine, attend at least six NAACP meetings, submit a written essay of what he learned in

each meeting about treating people with respect, perform one hundred hours of community service,

and obtain gainful employment. Mr. Shuck successfully motioned the court for a stay of execution

of the sentence.

       ¶4    Mr. Shuck now appeals from his conviction and raises one assignment of error for

this Court’s review.

                                                II.

                                 ASSIGNMENT OF ERROR

       APPELLANT’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE
       AS A MATTER OF LAW AND WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

       ¶5    In his sole assignment of error, Mr. Shuck argues that his conviction for

telecommunications harassment was not supported by sufficient evidence and was against the

manifest weight of the evidence. We agree that his conviction was not supported by sufficient

evidence.

       ¶6    Whether a conviction is supported by sufficient evidence is a question of law, which

this Court reviews de novo. State v. Thompkins, 

78 Ohio St. 3d 380

, 386 (1997). “A challenge to

the sufficiency of the evidence concerns the State’s burden of production * * *” and is, “[i]n

essence, * * * a test of adequacy.” In re R.H., 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶

25; Thompkins at 386. “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
                                                  3


the crime proven beyond a reasonable doubt.” State v. Jenks, 

61 Ohio St. 3d 259

(1991), paragraph

two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the credibility of

witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th Dist. Summit No.

27827, 2017-Ohio-73, ¶ 10.

       ¶7    Effective August 16, 2016, H.B. 151 expanded the offense of telecommunications

harassment to include the additional prohibited actions enumerated in R.C. 2917.21(A)(6)-(11).

Mr. Shuck was convicted of a violation of R.C. 2917.21(A)(6), which provides:

       No person shall knowingly make or cause to be made a telecommunication * * * to
       another, if the caller * * * [k]nowingly makes any comment, request, suggestion,
       or proposal to the recipient of the telecommunication that is threatening,
       intimidating, menacing, coercive, or obscene with the intent to abuse, threaten, or
       harass the recipient * * *.

A “telecommunication” is “the origination, emission, dissemination, transmission, or reception of

data, images, signals, sounds, or other intelligence or equivalence of intelligence of any nature

over any communications system by any method, including, but not limited to, a fiber optic,

electronic, magnetic, optical, digital, or analog method.” R.C. 2913.01(X). See also R.C.

2917.21(G)(3). Text messages sent between cell phones are considered telecommunications. State

v. Osborne, 9th Dist. Wayne No. 09CA0004, 2010-Ohio-1922, ¶ 7. See also R.C. 2913.01(Y)

(defining “telecommunications device” as “any instrument, equipment, machine, or other device

that facilitates telecommunication, including, but not limited to, a * * * cellular telephone * * *.).

The “caller” is the person who makes the telecommunication or causes it to be made. R.C.

2917.21(G)(2).

       ¶8    Although Mr. Shuck stipulated at trial that he sent the text messages to D.O., the

State still bore the burden of demonstrating beyond a reasonable doubt that the messages were
                                                 4


“threatening, intimidating, menacing, coercive, or obscene” and that Mr. Shuck intended to “abuse,

threaten, or harass” D.O. by sending them. See R.C. 2917.21(A)(6).

       ¶9    D.O. testified at trial that she dated Mr. Shuck for one year, thirteen years ago, and

the two have a twelve-year-old daughter together named Z. Mr. Shuck’s aunt now has legal

custody of Z. Prior to the underlying incident, Mr. Shuck and D.O. would generally text each

other regarding parenting issues, including when Mr. Shuck wanted visitation with Z. On January

9, 2019, at 10:35 A.M., Mr. Shuck texted D.O. the following message: “I want [Z.] this weekend.is

that possible?” D.O. testified that she did not initially respond to the message because she did not

see it, as she was at work and had her cell phone set on silent mode. Six hours later, at 4:30 P.M.,

Mr. Shuck texted D.O. the following message, which included a notorious racial epithet: “Ok

n****r you and [my aunt] will never get anything.” D.O. testified that the message upset her and

“spiked up” her anxiety. She testified that she was hurt and “didn’t know[] this was going to

escalate to something else * * *.” When specifically asked if she felt this was a threatening text,

she replied, “Absolutely[,]” although she also conceded that she “didn’t understand” what the

message actually meant. When asked by the prosecutor if she thought the text was sent to make

her “do something in terms of the parenting[,]” she agreed and testified that she believed it was a

threat to make her to change her mind and “give him the visit.”

       ¶10 D.O. sent a text message to Mr. Shuck after work, at 5:33 P.M., which stated: “I

was swamped at work.. now due to your last message I will not reply to initial question.” Mr.

Shuck responded five minutes later with the following text message: “Ask me if I give a f**k[.]”

A picture of the text messages was entered into evidence at trial. Mr. Shuck’s attorney also

stipulated that Mr. Shuck sent the messages to D.O.
                                                   5


        ¶11 D.O. also testified that throughout the past thirteen years she never heard Mr. Shuck

use the N-word, “not even the slang version.” She further testified that Mr. Shuck “never spoke

ill to [her]” and “never spoke[] to [her] like that before.” Still, she recalled a time in late September

or early October of 2018 when Mr. Shuck sent her another text message containing the N-word.

D.O. replied to the 2018 text message at the time and asked Mr. Shuck if he sent it to her on

purpose, and Mr. Shuck said yes. D.O. was working on a shared parenting plan at the time, but

testified that she stopped the process after that incident. She testified that she was hurt not only

because Mr. Shuck used the N-word, but also because he admitted texting it to her on purpose.

        ¶12 Officer Donald Hall of the Wooster Police Department testified that D.O. reported

the 2019 text messages to the police on January 9, 2019. She was unable to produce the alleged

text message from the fall of 2018 to the officer. The officer then spoke to Mr. Shuck on the

following day. According to Officer Hall, Mr. Shuck was cooperative and very respectful. He

admitted sending the 2019 text messages and said he was “fed up” with his ongoing custody

dispute with D.O. over their daughter. When asked whether he also used the N-word in a previous

text in the fall of 2018, Mr. Shuck told the officer, “I don’t know. I might have. I throw that word

around, but not all the time.”

        ¶13 Criminal statutes proscribing threats cannot be of unlimited breadth due to the

constitutional protections afforded to speech. State v. Cress, 

112 Ohio St. 3d 72

, 2006-Ohio-6501,

¶ 50 (O’Connor, J., dissenting), citing Watts v. United States, 

394 U.S. 705

, 707 (1969) (noting

that such statutes “must be interpreted with the commands of the First Amendment clearly in mind”

and that a “threat must be distinguished from what is constitutionally protected speech.”).

Accordingly, the telecommunications harassment statute focuses on the caller rather than on the

content of the telecommunication. See State v. Pariscoff, 9th Dist. Wayne No. 17AP0023, 2019-
                                                  6


Ohio-172, ¶ 7 (concerning R.C. 2917.21(A)(1) and (A)(5)), citing Akron v. Hawthorne, 9th Dist.

Summit No. 13670, 

1989 WL 10333

, *1 (Feb. 8, 1989). The statute creates a specific-intent crime,

and it is therefore the intent with which the telecommunication is made that establishes the

criminality of the conduct. See

id. Thus, the critical

inquiry of telecommunications harassment is

not whether the recipient was in fact abused, threatened, or harassed by the telecommunication,

but rather whether the purpose of the caller was to abuse, threaten or harass the recipient. See State

v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 15 (concerning Former R.C.

2917.21(B)), citing State v. Bonifas, 

91 Ohio App. 3d 208

, 211-212 (3d Dist.1993).

           ¶14 The terms “intent” and “purpose” are synonymous in the context of culpable mental

states. State v. Johnson, 9th Dist. Medina Nos. 18CA0070-M and 18CA0071-M, 2019-Ohio-3314,

¶ 15. “A person acts purposely when it is the person’s 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 the offender’s specific intention to engage

in conduct of that nature.” R.C. 2901.22(A). In the absence of direct evidence, a defendant’s

intent to abuse, threaten, or harass may be established by the surrounding facts and circumstances.

See Kronenberg at ¶ 15. The State’s burden to establish the defendant’s specific intent is not met,

however, by establishing only that the defendant knew or should have known that his conduct

would probably abuse, threaten, or harass the recipient. See In re C.W., 1st Dist. Hamilton Nos.

C-180677 and C-180690, 2019-Ohio-5262, ¶ 15, citing State v. Ellison, 

178 Ohio App. 3d 734

,

2008-Ohio-5282, ¶ 15 (1st Dist.). “The legislature has created this substantial burden to limit the

statute’s scope to criminal conduct, not the expression of offensive speech.”

Id., quoting Ellison at

¶ 15.
                                                 7


       ¶15 Although none of the individual terms “abuse,” “threaten,” or “harass” have been

statutorily defined within the meaning of R.C. 2917.21, “‘[t]he fact that the statute does not place

legal definitions on each of these terms demonstrates that the General Assembly intended to

prohibit conduct that is easily definable by the common everyday meaning of these words.’” State

v. Rasawehr, 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶ 29, quoting State v. Stanley, 10th

Dist. Franklin No. 06AP-65, 2006-Ohio-4632, ¶ 13. “Abuse” may be defined as “[t]o injure (a

person) physically or mentally.” Black’s Law Dictionary (11th Ed.2019). “Threat” has been

defined as “‘an expression of an intention to inflict evil, injury, or damage on another usu[ally] as

retribution or punishment for something done or left undone.’ * * * It connotes almost any

expression of intent to do an act of harm against another person irrespective of whether that act is

criminal.” State v. Klingel, 9th Dist. Lorain No. 15CA010876, 2017-Ohio-1183, ¶ 7, quoting Cress

at ¶ 36, quoting Webster’s Third New International Dictionary 2382 (1986) and citing State v.

Moyer, 

87 W. Va. 137

(1920). Finally, “harassment” may be defined as “[w]ords, conduct, or

action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or

causes substantial emotional distress to that person and serves no legitimate purpose; purposeful

vexation.” Black’s Law Dictionary (11th Ed.2019).

       ¶16 Mr. Shuck’s trial focused primarily on his second text message: “Ok n****r you

and [my aunt] will never get anything.” The message couples a despicable racial epithet with a

vague statement that the two women “will never get anything.” The State introduced testimony

from D.O. as to her reaction upon receiving the text and how it made her feel. D.O. admitted that

she “didn’t understand” what the message meant, but also felt it was “[a]bsolutely” threatening

and claimed that it hurt her, upset her, and “spiked up” her anxiety. But again, D.O.’s perception
                                                    8


of the text—and whether she was in fact abused, threatened, or harassed by it—is not the critical

inquiry here. See Kronenberg at ¶ 15.

         ¶17 We must instead determine whether sufficient evidence was presented to show that

Mr. Shuck intended to abuse, threaten, or harass her with his text message. See

id. Sending an African-American

woman a text containing the N-word is certainly shocking and inappropriate.

For better or worse, however, the mere utterance (or texting) of a racial slur, by itself, is not illegal.

See, generally, Brandenburg v. Ohio, 

395 U.S. 444

(1969) (recognizing that racist hate speech is

protected by the First Amendment). Moreover, evidence that Mr. Shuck knew or should have

known that texting such a word to D.O. would probably abuse, threaten, or harass her is not enough

to establish his intent to abuse, threaten, or harass her. See In re C.W. at ¶ 15.

         ¶18 The State presented evidence that Mr. Shuck and D.O. were involved in a custody

dispute, but routinely communicated via text message regarding parenting issues and visitation.

D.O. testified that Mr. Shuck never paid any child support, but she admitted that he also “never

spoke ill to [her]” and never used the N-word around her, save for allegations surrounding a single

text message in the fall of 2018. Mr. Shuck admitted to Officer Hall that he was “fed up” with the

child custody dispute, but when asked about his use of the N-word in the 2018 text, Mr. Shuck

told the officer he was unsure if he used it because he “throw[s] that word around, but not all the

time.”

         ¶19 Upon review, this Court determines that that State did not set forth sufficient

evidence that Mr. Shuck sent this text message to D.O. with the intent or purpose to abuse, threaten,

or harass her. Notwithstanding his callous use of a distasteful racial epithet, the message itself that

the two women “will never get anything” is strikingly vague and devoid of any real specificity.

We of course recognize that a telecommunication need not be replete with detail in order to
                                                 9


constitute a threat. See, e.g., Cress, 

112 Ohio St. 3d 72

, 2006-Ohio-6501, at ¶ 37 (“The most

intimidating threat of all may be an indefinite one (‘You’ll be sorry’).”). Nevertheless, this Court

cannot infer from the surrounding facts and circumstances that Mr. Shuck’s purpose in sending

this especially cryptic and ambiguous text message was to abuse, threaten, or harass D.O. The

evidence showed that Mr. Shuck was unhappy with the custody dispute and apparently displeased

with D.O.’s failure to respond to his first text message. His text message of “Ok n****r you and

[my aunt] will never get anything” appears more so as a terribly insensitive, fleeting remark sent

to D.O. to vent his frustration over a perceived slight—e.g., being ignored—but not with the intent

to abuse, threaten, or harass her. In fact, when D.O. indicated that she would not reply to the

visitation request due to this text, Mr. Shuck responded, “Ask me if I give a f**k[,]” which exudes

apathy and a certain degree of bitterness toward the situation, but not an intention to harm D.O. in

any way.

       ¶20 Accordingly, under the particular facts and circumstances of this case, and after

reviewing the evidence in a light most favorable to the State, we conclude that the State failed to

set forth sufficient evidence as to an essential element of telecommunications harassment that was

necessary to sustain Mr. Shuck’s conviction, and no rational trier of fact could have found beyond

a reasonable doubt that he sent these text messages with the intent to abuse, threaten, or harass

D.O., in violation of R.C. 2917.21(A)(6). We must therefore reverse and remand the matter back

to the trial court, so that it may vacate Mr. Shuck’s conviction. Furthermore, “[b]ecause reversal

for insufficiency is effectively an acquittal, retrial is prohibited by double jeopardy.” State v.

Johnson, 9th Dist. Lorain No. 06CA008911, 2007-Ohio-1480, ¶ 5.

       ¶21 Because we have determined that Mr. Shuck’s conviction for telecommunications

harassment was not supported by sufficient evidence and must be vacated, the question of whether
                                                10


that conviction is against the manifest weight of the evidence has been rendered moot. See State

v. Love, 9th Dist. Summit No. 28988, 2019-Ohio-3168, ¶ 35; App.R. 12(A)(1)(c).

       ¶22 Mr. Shuck’s sole assignment of error is sustained in part and moot in part.

                                                III.

       ¶23 Mr. Shuck’s sole assignment of error is sustained in part and moot in part. The

judgment of the Wayne County Municipal Court is reversed, and the matter is remanded for the

trial court to vacate Mr. Shuck’s conviction for telecommunications harassment.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
                                        11




CALLAHAN, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

YU MI KIM-REYNOLDS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.

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