[Cite as State v. Powell,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190508 TRIAL NO. C-19CRB-13372 Plaintiff-Appellee, :

vs. : O P I N I O N.

CATHERINE POWELL, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 2, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Santen & Hughes and H. Louis Sirkin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Catherine Powell appeals her conviction for telecommunications

harassment, in violation of R.C. 2917.21(B)(1). Because her conviction was

supported by sufficient evidence and was not against the manifest weight of the

evidence, we affirm the trial court’s judgment.

The Testimony at Trial

{¶2} At trial, Ryan Haines testified that he and Powell had dated for a brief

period and that they have a three-year-old child together. He described his current

relationship with Powell as “nonexistent.” When asked to describe his relationship

with their child, Haines responded, “Same.” Haines made it clear that he wanted no

relationship with their child.

{¶3} Haines testified that on May 26, 2019, he received a text message from

Powell that contained a video and stated:

It was your sons 3rd Birthday today you piece of shit. Here is a video

to show you all the years you have missed out on. You wonder why * *

* didn’t hire you?? Look the person you are Ryan. You have a son who

needs a father and you refuse to take responsibility. You manipulate

the courts the police too hold innocent people accountable for your

actions. Watch the video of your son grow up. I hope it makes you feel

like a man[.]

{¶4} Haines testified that he felt harassed by the text. He said that Powell’s

mention of the courts and police referred to his having filed trespass and

telecommunications-harassment charges against her in the past.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Haines testified that before their child was born, he had filed criminal

trespass charges against Powell, for which she was found guilty. Sometime after

their child was born, Haines filed for a civil protection order against Powell, but the

matter was dismissed. Several months before this initial text from Powell, Haines

had filed a telecommunications-harassment charge against Powell, which was later

dismissed after a hearing. According to Haines, Powell had preveiously been ordered

by the court not to contact him.

{¶6} After he received Powell’s text message, Haines blocked Powell’s

number in his phone. Within the next half hour, Haines received similar text

messages from two phone numbers that he did not recognize. Haines testified that

he believed that the texts from those two phone numbers were also sent by Powell

because they contained personal information.1

{¶7} Then he received an email from Powell that stated:

Please unblock my number Ryan so we can talk about * * *. Do you

have his insurance card? Do I pick it up at [Haines’s place of

employment]? You also had a change in address which is not

reported, so that’s a contempt of court. Either we discuss some

matters or go through the courts.

{¶8} Haines contacted the police the following day. According to Haines,

the police told him to unblock Powell’s number and to send her the following text:

Pursuant to this section of the Ohio Revised Code

1 The trial court did not admit the text messages from the unknown phone numbers into evidence.

3 OHIO FIRST DISTRICT COURT OF APPEALS

DO NOT CONTACT ME AGAIN. IF YOU ATTEMPT TO CONTACT

ME AGAIN, I WILL FILE A REPORT WITH THE LOCAL LAW

ENFORCEMENT AGENCY.

Haines included in his text message the language from R.C. 2917.21, the

telecommunications-harassment statute. He concluded his text: “DO NOT

CONTACT ME AT” and he listed his personal cell number and his work phone

number.

{¶9} Powell replied with the following text message:

By court order of the law you Ryan Michael Haines Father of * * * are

required too provide a medical card which was issued by Magistrate * *

*[.] You also do not reside at * * * anymore which you failed too notify

the courts which is also in our order. That failure to report change of

residence and failure too provide our [child’s] medical card will result

in contempt of court a second time which will be filed with the

Hamilton county Juvenile court. I will request the maximum

punishment that the court allows and reimbursement for all medical

bills resulting back too 2016 on * * *[.] Also it was Dismissed under

rule 29 which means you cannot file harassment again because of

double jeopardy. Let the authorities know that. Between the * * * and

false harassment charges on me you are facing a civil lawsuit for

vexatious litigator.

{¶10} Haines replied with a text stating, “Please stop trying to contact me.”

Powell replied to Haines with a text that stated:

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You told the judge I could mail you letters regarding * * * which is in

transcript from the hearing. What address should I mail the certified

letter requesting our [child’s] medical card that by court order you are

required too provide?

{¶11} Without receiving a response, Powell sent another text: “Thank you.

That’s all I needed. I have the address and the courts will take it from there. Nice

talking too you Ryan.”

{¶12} Powell testified that her purpose in sending the first text to Haines was

to show him the video she had made for their child’s birthday in the hope that Haines

might “want to say Happy Birthday.” She denied that her attempts to communicate

with Haines had been to harass him. When Powell was asked, “Really asking for

[Haines] to be a part of your son’s life,” she responded, “Always.”

{¶13} After closing arguments, the trial court said to Powell:

I understand what your point is or what you’re saying that why

you sent it to him, but it’s clear from the tone and tenor that you sent

that in violation of 2917.21. I’m going to make a finding of guilty on

the telecommunications harassment.

I will tell you, Ms. Powell, it is clear from my part [sic] dealings

with both of you, the father of that child has made it clear to you that

he does not want to have contact with you. You cannot, for whatever

purpose, be reaching out to him.

I will note we were in court four days prior to this [offense], and

it was crystal, crystal clear in my mind, you can’t guilt him into or

continue to attempt to have contact with him thinking that you’re

5 OHIO FIRST DISTRICT COURT OF APPEALS

going to create a relationship. Juvenile court is set up to handle the

obligations that we have here.

{¶14} After the trial court found Powell guilty of telecommunications

harassment, it sentenced her to 180 days’ incarceration, suspended the 180 days, and

placed her on community control. The court further ordered Powell to have no

contact with Haines.

Weight and Sufficiency of the Evidence

{¶15} In her sole assignment of error, Powell challenges the weight and

sufficiency of the evidence supporting her conviction. She argues that her

communications to Haines were not sent for the purpose of harassing him “but were

an attempt for him to be a part of his son’s life.”

{¶16} In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus. In reviewing a challenge to the weight of the

evidence, we sit as a “thirteenth juror.” State v. Thompkins,

,

(1997). We must review the entire record, weigh the evidence,

consider the credibility of the witnesses, and determine whether the trier of fact

clearly lost its way and created a manifest miscarriage of justice.

{¶17} Powell was charged with telecommunications harassment under R.C.

2917.21(B)(1), which prohibits a person from making a telecommunication “with

purpose to abuse, threaten, or harass another person.” “[F]or conduct to rise to the

level of criminal harassment under this section of the statute, the accused must have

6 OHIO FIRST DISTRICT COURT OF APPEALS

intended to alarm or to cause substantial emotional distress to the recipient, not just

to annoy [him].” State v. Ellison,

,

,

(1st Dist.).

{¶18} Evidence of the defendant’s intent to harass may be direct or indirect.

State v. Harshbarger, 3d Dist. Auglaize No. 2-09-19,

. In the

absence of direct evidence, a defendant’s purpose to threaten, harass, or abuse may

be established by the facts and circumstances surrounding the communication. In re

C.W., 1st Dist. Hamilton Nos. C-180677 and C-180690,

, citing

City of Hamilton v. Combs,

,

, ¶ 20 (12th Dist.).

{¶19} R.C. 2917.21(B) does not require more than a single communication.

In re C.W., at ¶ 13. Although a violation of the statute does not require multiple

communications, the fact that a defendant sent numerous communications is often

indicative of the defendant’s specific purpose to harass. Harshbarger at ¶ 19; Combs

at ¶ 23 (the fact that the defendant sent several texts and a photograph of his penis to

the victim, notwithstanding the victim’s objective manifestation that she did not

welcome the defendant’s advances and did not respond in kind, was plainly

indicative of the defendant’s purpose to harass the victim).

{¶20} In State v. Pleatman, 1st Dist. Hamilton No. C-160234, 2016-Ohio-

7659, we rejected the defendant’s claim that her legitimate purpose for sending a

vitriolic email had been to settle a lawsuit filed by the recipient of the email, and we

affirmed her conviction for telecommunications harassment. We said that, “Far

from attempting to arrive at a settlement of the suit, [the defendant’s] email—

particularly, in light of the flyers she distributed and messages she sent [the

recipient]—seemed aimed at exacerbating the situation.” Id. at ¶ 13.

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶21} Despite Powell’s claim that her purpose in sending the

communications was to try to communicate about the child and to get Haines to be a

part of their child’s life, the acerbic and taunting tone of her communications over a

two-day period despite Haines’s clear indications that he wanted no contact with her,

evinced Powell’s purpose to harass Haines. Even by Powell’s own testimony, she

understood that the only communication that Haines would find acceptable would be

letters, yet she continued to send him texts and email. Construing the evidence and

all reasonable inferences in the light most favorable to the state, we hold that the

state presented sufficient evidence that Powell sent the communications with

purpose to harass Haines. See Jenks,

,

.

{¶22} We further hold that Powell’s conviction was not against the manifest

weight of the evidence. The trial court was in the best position to judge the

credibility of the witnesses. See State v. Spaulding,

, 2016-Ohio-

8126,

, ¶ 165, citing State v. DeHass,

,

(1967), paragraph one of the syllabus. The court was entitled to reject Powell’s

testimony that her purpose in communicating with Haines had not been to harass

him. This was not the rare case in which the trial court lost its way and committed

such a manifest miscarriage of justice in convicting Powell that her conviction must

be reversed. See Thompkins,

,

.

{¶23} We hold that Powell’s conviction was supported by both the sufficiency

and the weight of the evidence, and we overrule the sole assignment of error. We

affirm the judgment of the trial court.

Judgment affirmed.

ZAYAS, P.J., and CROUSE, J., concur.

8 OHIO FIRST DISTRICT COURT OF APPEALS

Please note: The court has recorded its own entry this date.

9