State v. Arnold , 2022 Ohio 3147 ( 2022 )

[Cite as State v. Arnold, 2022-Ohio-3147.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210541
TRIAL NO. 21CRB-16057
Plaintiff-Appellee, :
vs. :
O P I N I O N.
HASSAN ARNOLD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 9, 2022
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Tyler Liston, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendant-appellant Hassan Arnold appeals his conviction for
telecommunications harassment in violation of R.C. 2917.21(B)(1), arguing that his
conviction was against the manifest weight of the evidence. For the following reasons,
we affirm the judgment of the trial court.
Procedural and Factual History
{¶2} On September 6, 2021, Arnold was charged with making a
telecommunication with the purpose to threaten Meredith Gibson in violation of R.C.
2917.21(B), a misdemeanor of the first degree. The case proceeded to a bench trial,
where the state presented the testimony of Meredith Gibson, Nikia Bowman, and
Officer Bittinger.
{¶3} Gibson testified that she had two children with Arnold, but they were no
longer in a relationship. On September 6, 2021, she had a phone conversation with
Arnold while she was at her sister’s house. During the first conversation, Arnold asked
if he could pick up their son. She told him she had plans that day, but that he could
have their son the next day. He called her right back and asked about taking their son
with him to a shelter. She said Arnold wanted to use their son to help him get into a
shelter. She told him no. She testified, “And then, from there, he got mad.” She said
the calls started getting really adamant and Arnold told her that he was going to “beat
[her] ass” every time he saw her and make her life a “living f-ing hell” if she did not
bring their son outside. He also threatened to burn her sister’s house down. He kept
calling her. She guessed that Arnold made “at least” 25 calls over a period of an hour,
around ten of which she answered. Arnold was parked outside her sister’s house. Her
sister was in the room with her the entire time.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Bowman, Gibson’s sister, testified that she was sitting with Gibson in
the living room when Arnold called. Gibson’s phone was on speaker phone. Arnold
was saying that he was going to set the house on fire and telling Gibson that he was
going to “wait her out” and beat her up if she did not bring their son outside. He also
said he was going to make Gibson’s life a living hell if Gibson did not allow him to use
their son to get into a shelter. She estimated that Arnold called around 40 times within
20 minutes. Gibson answered some of the calls, but not all of them.
{¶5} Officer Bittinger testified that Arnold was sitting in a vehicle one house
over from Gibson’s sister’s house when he arrived. After detaining Arnold, he spoke
to Gibson who told him that Arnold continued to her call multiple times and was
threatening over the phone to cause her physical harm. He said that Gibson appeared
frustrated and frightened.
{¶6} The trial court found Arnold guilty. In announcing its decision, the trial
court expressly found both Gibson and Bowman to be credible witnesses, and found
that, while there was no dispute that the original purpose for the calls was either
visitation with the child or to use the child to get into a shelter, Arnold became upset
when he did not get what he wanted and “decided to continue calling and escalate the
calls into threats.” The trial court sentenced Arnold to 180 days in jail, suspended 150
days, credited 24 days for time served, and placed Arnold on one year of community
control, which included a stay-away order from Gibson and her sister. The court
further ordered that parental exchanges should take place only through an order of
the court.
Law and Analysis
{¶7} In a sole assignment of error, Arnold challenges the weight of the
evidence supporting his conviction. In reviewing a challenge to the weight of the
3
OHIO FIRST DISTRICT COURT OF APPEALS
evidence, 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.” State v. Powell, 1st Dist. Hamilton No.
C-190508, 2020-Ohio-4283, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 388,
678 N.E.2d 541 (1997).
{¶8} Pursuant to R.C. 2917.21(B)(1), “No person shall make * * * a
telecommunication * * * with purpose to abuse, threaten, or harass another person.”
“The Ohio Supreme Court has defined ‘threat’ as representing ‘a range of statements
or conduct intended to impart a feeling of apprehension in the victim, whether of
bodily harm, property destruction, or lawful harm, such as exposing the victim’s own
conduct.’ ” State v. Ham, 1st Dist. Hamilton No. C-180338, 2019-Ohio-3468, ¶ 11,
quoting State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, ¶ 39. “The
inquiry is not whether the recipient of the communication was in fact threatened, * *
* but rather, whether the purpose of the person who made the communication was to
threaten the person called.” Id. at ¶ 10, citing State v. Kronenberg, 8th Dist. Cuyahoga
No. 101403, 2015-Ohio-1020, ¶ 15.
{¶9} Conduct rises to the level of criminal harassment under this section of
the statute if the accused “ ‘intended to alarm or to cause substantial emotional distress
to the recipient, not just to annoy [the recipient].’ ” Powell at ¶ 17, quoting State v.
Ellison, 178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 14 (1st Dist.).
“Evidence of the defendant’s intent to harass may be direct or indirect.” Id. at ¶ 18,
citing State v. Harshbarger, 3d Dist. Auglaize No. 2-09-19, 2010-Ohio-4413, ¶ 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.” Id.,citing In re C.W., 1st Dist. Hamilton Nos. C-180677 and C-180690, 2019-Ohio-5262,
4
OHIO FIRST DISTRICT COURT OF APPEALS
¶ 14. “R.C. 2917.21(B) does not require more than a single communication.” Id. at ¶
19, citing In re C.W. at ¶ 13. However, “the fact that a defendant sent numerous
communications is often indicative of the defendant’s specific purpose to harass.” Id.,
citing Harshbarger at ¶ 19, and City of Hamilton v. Combs, 2019-Ohio-190, 131
N.E.3d 297, ¶ 23 (12th Dist.).
{¶10} Arnold argues that the weight of the evidence did not show that his
purpose for the calls was to abuse, threaten, or harass Gibson and implies that the
weight of the evidence actually showed that his purpose was to retrieve his son from
Gibson. In doing so, he argues that the record does not credibly support that his
purpose shifted from benign to malevolent. However, both Gibson and Bowman
testified that, after Gibson refused to give him their son, Arnold threated, via phone,
to cause physical harm to Gipson, to make Gibson’s life a living hell, and to burn
Bowman’s house down if Gibson did not bring their son to him. “[I]t is well settled
law that matters as to the credibility of the witnesses are for the trier of fact to resolve.”
Ham at ¶ 13. The trial court found both Gipson and Bowman to be credible.
{¶11} While Arnold’s sole purpose for the initial call may have been to retrieve
his son, the evidence showed that his purpose changed to threatening or harassing
Gibson into changing her mind once she refused to give him their son. See State v.
Dulaney, 180 Ohio App.3d 626, 2009-Ohio-79, 906 N.E.2d 1147 (3d Dist.) (affirming
a conviction for telecommunications harassment where, although an ex-employee
initially called the employer to discuss issues with his paycheck and insurance, he
ultimately threated to “kick their ass.”). There was no evidence which weighed heavily
against such a finding. Therefore, we hold that Arnold’s conviction was not against
the manifest weight of the evidence and affirm the judgment of the trial court. The
sole assignment of error is overruled.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶12} Having considered and overruled the sole assignment of error, we
affirm the judgment of the trial court.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
6