State v. Klingel

[Cite as State v. Klingel, 2017-Ohio-1183.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 15CA010876
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWARD L. KLINGEL COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 15CR091491
DECISION AND JOURNAL ENTRY
Dated: March 31, 2017
CARR, Presiding Judge.
{¶1} Appellant, Edward Klingel, appeals the judgment of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} This matter arises out of a series of threats that Klingel made toward police on his
Facebook page. The Lorain County Grand Jury indicted Klingel on one count of inciting to
violence, one count of retaliation, one count of telecommunications harassment, and one count of
obstructing official business. The grand jury subsequently returned a supplemental indictment
charging Klingel with one count of making terroristic threats. Klingel pleaded not guilty to all of
the charges.
{¶3} The matter proceeded to a jury trial. Prior to opening statements, the State
dismissed the inciting to violence charge. Thereafter the jury found Klingel guilty of
telecommunications harassment and making terroristic threats. Klingel was found not guilty of
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retaliation and obstructing official business. The trial court imposed a prison term of eighteen
months.
{¶4} This Court dismissed Klingel’s first attempt at an appeal due to the fact that the
sentencing entry failed to resolve all of the charges in the indictment. The trial court issued a
revised sentencing entry resolving all of the counts in the indictment and Klingel filed a timely
notice of appeal.
{¶5} Now before this Court, Klingel raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE VERDICTS FOR TELECOMMUNICATIONS HARRASSMENT AND
MAKING TERRORISTIC THREAT[S], AS DEFINED BY THE COURT, IN
COUNTS THREE AND FIVE WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶6} In his first assignment of error, Klingel argues that his convictions for
telecommunications harassment and terroristic threats were not supported by sufficient evidence
and were against the weight of the evidence. This Court disagrees.
{¶7} Klingel was convicted of terroristic threats in violation of R.C. 2909.23(A), which
states:
No person shall threaten to commit or threaten to cause to be committed a
specified offense when both of the following apply:
(1) The person makes the threat with purpose to do any of the following:
(a) Intimidate or coerce a civilian population;
(b) Influence the policy of any government by intimidation or coercion;
(c) Affect the conduct of any government by the threat of by the specified offense.
(2) As a result of the threat, the person causes a reasonable expectation or fear of
the imminent commission of the specified offense.
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“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). The term “threat” is not defined in the statute.
Generally speaking, however, the term “threat” in the criminal context connotes “[a]
communicated intent to inflict harm or loss on another * * *[.]” Black’s Law Dictionary 1519
(8th Ed.2004). The term “terroristic threat” is understood to mean “[a] threat to commit any
crime of violence with the purpose of * * * terrorizing another[.]” Id. When interpreting a
different criminal statute, the Supreme Court defined “threat” 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. Cress, 112 Ohio
St.3d 72, 2006-Ohio-6501, ¶ 36, quoting Webster’s Third New International Dictionary 2382
(1986) citing State v. Moyer, 87 W.Va. 137 (1920).
{¶8} Klingel was also convicted of telecommunications harassment in violation of R.C.
2917.21(B), which states:
(1) No person shall make or cause to be made a telecommunication, or permit a
telecommunication to be made from a telecommunications device under the
person’s control, with purpose to abuse, threaten, or harass another person.
(2) No person shall knowingly post a text or audio statement or an image on an
internet web site or web page for the purpose of abusing, threatening, or harassing
another person.
“A person acts knowingly, regardless of purpose, when the person is aware that the person’s
conduct will probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when the person is aware that such circumstances probably exist.
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When knowledge of the existence of a particular fact is an element of an offense, such
knowledge is established if a person subjectively believes that there is a high probability of its
existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.”
R.C. 2901.22(B). “Telecommunication” means “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). “Telecommunications device” is defined as “any instrument, equipment, machine,
or other device that facilitates telecommunication, including, but not limited to, a computer [and
a] computer network[.]” R.C. 2913.01(Y).
Sufficiency Challenge
{¶9} A review of the sufficiency of the State’s evidence and the manifest weight of the
evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th
Dist. Summit No. 19600, 2000 WL 277908, *1 (Mar. 15, 2000). When reviewing the sufficiency
of the evidence, this Court must review the evidence in a light most favorable to the prosecution
to determine whether the evidence before the trial court was sufficient to sustain a conviction.
State v. Jenks, 61 Ohio St. 3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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 the crime
proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
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{¶10} The State presented evidence at trial supporting the following narrative. Lorain
police investigated Klingel in relation to possible criminal activity in 2014. While the
investigation did not lead to any criminal charges, Detective Tabatha Angello, who spearheaded
the investigation, felt that Klingel was “very aggressive” toward her while she was working on
that case. Detective Angello explained that due to Klingel’s aggressive manner, the police
department took a precautionary measure of printing out his photograph and providing it to
security. Detective Angello worked a side job as a security officer at a local store. While
working her side job, she saw Klingel at the store on three or four different occasions.
{¶11} Klingel was Facebook friends with a woman named A.U. The two connected
through a group on the social network. In March of 2015, using the messenger function on
Facebook, Klingel and A.U. engaged in a bizarre series of conversations about a variety of
topics. During those discussions, Klingel asked A.U. if she was ready to run away with him. In
support of his overture, Klingel stated, “I’m serious we can get married and travel the world
killing random people.” When A.U. responded that she “would never kill a random[,]” Klingel
responded, “Ok we can kill those we know[.]”
{¶12} On April 3, 2015, at 8:05 p.m., Klingel used the Facebook messenger function to
tell A.U., “Look I tried I truly did now the time is running out the cop will walk out and I will
shoot her at 9pm[.]” When A.U. questioned whether the police officer had done something
involving Klingel’s daughter, he responded, “She is a cop they all will die[.] Everyone that
stands in my way will die[.]” Detective Angello was the only woman working for the Lorain
Police Department at that time. Klingel later said to A.U., “There are others with me we are
taking some out at same time different places[.] * * * Seven teams of three[.]” Detective
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Angello testified that, on the evening of April 3, 2015, she was working her side job and was
scheduled to get off work at 9:00 p.m.
{¶13} Later that evening, Klingel posted a status update on his own Facebook page that
stated, “This is to any law enforcement agent looking at my page we will not back down we
demand you to take off your badges your weapons you will comply or be compelled to comply.”
Klingel then posted a status update that stated, “Death to the police.” Subsequently, Klingel
posted a status update asking, “So who is down to kill some cops I want to arrange where we can
all kill some at a certain time hit me up if you want in lets make a statement that they cannot do
this shit anymore[.]” Klingel also posted several messages directed toward the Federal Bureau
of Investigation wherein he asked for “help,” gave a phone number, and suggested that
communicating with him might help to save lives.
{¶14} A.U. was deeply concerned about Klingel’s posts and she alerted the FBI. The
FBI, in turn, contacted local law enforcement. Detective Morris of the Lorain police testified
that he found Klingel’s threats alarming given that Detective Angello was the only woman
serving as an officer at the department at that time. Upon learning about the threats, the
department took the extraordinary measure of asking Detective Angello to stay home and
stationing an officer in a squad car outside her residence.
{¶15} Klingel focuses on the intent of his Facebook statements in raising sufficiency
challenges to both of his convictions.
{¶16} With respect to his conviction for terroristic threats, Klingel argues that his
statements were not threats but rather an expression of free speech. Klingel insists that the State
never demonstrated an actual expression of intent and that his comments were merely “the
ramblings of an angry and frustrated man[.]”
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{¶17} This argument is without merit. While Klingel suggests that his comments did
not constitute “true threats,” the statute provides that “[i]t is not a defense to a charge of a
violation of this section that the defendant did not have the intent or capability to commit the
threatened specified offense or that the threat was not made to a person who was a subject of the
threatened specified offense.” R.C. 2909.23(B). “When addressing the issue of whether the
state has met its burden under R.C. 2909.23(A), the question is not whether the threat is
communicated to its subject. Rather, the question is whether the defendant uttered the threat for
the purpose of, in this case, intimidating or coercing a civilian population or affecting the
conduct of any government.” State v. Baughman, 6th Dist. Lucas No. L-11-1045, 2012-Ohio-
5327, ¶ 26. Here, Klingel did not merely engage in a public discourse about the police work in
his community. Instead, he made very specific threats about taking part in a coordinated effort to
murder police officers. Klingel knowingly stated that there would be repercussions if law
enforcement did not “comply” with his will. In the midst of making these threats, he specified
that his target was the only woman to serve as a police officer in the community where he
resided, an officer with whom he had a personal history. This evidence, when construed in the
light most favorable to the State, was sufficient to convict Klingel of making terroristic threats.
See Jenks, 61 Ohio St. 3d at 279.
{¶18} In regard to his conviction for telecommunications harassment, Klingel stresses
that his comments were made in a private conversation to a friend on Facebook, not to another
person who served as a law enforcement official. Klingel contends that there is no way he could
have known that his comments would reach Detective Angello or any other law enforcement
official.
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{¶19} Klingel’s argument is without merit. While he made numerous comments to A.U.
using the messenger function, he also posted several general status updates. In one status update,
Klingel addressed his message to “any law enforcement agent looking at my page[.]” Klingel
continued, “we will not back down[.] [W]e demand you take off your badges[,] your weapons[.]
[Y]ou will comply or be compelled to comply[.]” A second status update stated, “Death to the
police[.]” This chilling post was followed by another status update where Klingel solicited
people who were “down to kill some cops * * * at a certain time[.]” Other posts were directed to
the FBI. None of these statements were confined to the private conversation between Klingel
and A.U. The language used by Klingel in his posts evidences the fact that Klingel made these
telecommunications with the assumption that law enforcement officials were looking at his page.
Given the grave nature of the statements, it is readily apparent that Klingel acted with purpose to
threaten the lives of law enforcement officials.
Manifest Weight Challenge
{¶20} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997);
Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 12.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
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appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases. Otten at 340.
{¶21} Klingel’s manifest weight arguments strike a similar chord to his sufficiency
challenges. Klingel stresses that the weight of the evidence supports the conclusion that he did
not purposely threaten another individual. Klingel further argues that his statements came from a
place of frustration and were so outlandish that they could not be taken seriously.
{¶22} After a careful review of the record, we cannot agree with Klingel’s contention
that his convictions resulted in a manifest miscarriage of justice. A.U. admitted during her
testimony that her Facebook friendship with Klingel was insincere. A.U. never met Klingel in
person and she was amused by the fact that he “would always act all crazy” in group chats. A.U.
testified that she thought it would be funny to “infiltrate” what she described as Klingel’s “cult”
of friends and “[h]ave some fun” at Klingel’s expense. The evidence presented at trial further
revealed that Klingel’s ongoing frustration with police stemmed, in part, from the uncertainty
about the custody situation with his daughter and whether his daughter was safe. At one point,
Klingel suggested to A.U. that his daughter had been kidnapped and replaced by a “pod person.”
While Klingel points to the context surrounding his Facebook activity in support of the
proposition that his seemingly threatening comments were actually harmless, we are mindful that
the jury had an opportunity to evaluate this evidence, and the jury was in the best position to
assess the credibility of the evidence presented by the parties at trial. State v. Bulls, 9th Dist.
Summit No. 27029, 2015-Ohio-276, ¶ 24. Moreover, though some of Klingel’s comments could
arguably be construed as preposterous online banter, other comments evidenced a tangible desire
to harass and threaten particular law enforcement officials. Given the grave nature of Klingel’s
threating statements, combined with the alarming level of specificity, we cannot conclude that
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this is the exceptional case where the jury lost its way in convicting Klingel of making terroristic
threats and telecommunications harassment. See Otten, 33 Ohio App. 3d at 340.
{¶23} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A PRETIAL
MOTION TO DISMISS SUPPLEMENTAL COUNT FIVE, MAKING
TERRORISTIC THREAT, [R.C.] 2909.23, AS UNCONSTITUTIONAL UNDER
THE FIRST AND FOURTEENTH AMENDMENTS.
{¶24} In his second assignment of error, Klingel contends that trial counsel rendered
ineffective assistance by failing to file a pretrial motion to dismiss the charge of terroristic
threats. Specifically, Klingel maintains that trial counsel should have filed a pretrial motion
asserting that his statements on Facebook were protected by the First Amendment of the United
States Constitution. This Court disagrees.
{¶25} In order to prevail on a claim of ineffective assistance of counsel, Klingel must
show that “counsel’s performance fell below an objective standard of reasonableness and that
prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St. 3d 670, 674 (1998),
citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland at 686. Thus, a two-prong test is necessary to examine such claims. First,
Klingel must show that counsel’s performance was objectively deficient by producing evidence
that counsel acted unreasonably. State v. Keith, 79 Ohio St. 3d 514, 534 (1997), citing Strickland,
466 U.S. at 687. Second, Klingel must demonstrate that but for counsel’s errors, there is a
reasonable probability that the results of the trial would have been different. Keith, 79 Ohio
St.3d at 534.
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{¶26} Klingel has not demonstrated that trial counsel acted unreasonably. Klingel’s
argument is predicated on the notion that trial counsel should have filed a pretrial motion to
dismiss. While Klingel does not explicitly couch his argument in terms of an “as applied”
challenge to the constitutionality of R.C. 2909.23, the argument he makes on appeal is entirely
dependent on the evidence presented at trial. In arguing that his comments were protected by the
First Amendment, Klingel references his “private conversation” with A.U., his public status
updates, as well as the way that the Lorain police reacted to his comments. Given that Klingel’s
position hinges on evidence that was presented at trial, he cannot prevail on his assertion that
trial counsel’s performance fell below an objective standard of reasonableness because he failed
to raise this issue in a pretrial motion.
{¶27} The second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON [R.C.]
2909.23(A)(2), A NECESSARY PART OF THE CHARGE OF MAKING
TERRORISTIC THREAT.
{¶28} In his final assignment of error, Klingel offers a succinct plain error argument.
Klingel contends that the trial court committed plain error by failing to instruct the jury on a
necessary part of the charge of making a terroristic threat. This Court disagrees.
{¶29} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” To constitute plain
error, the error must be obvious and have a substantial adverse impact on both the integrity of,
and the public’s confidence in, the judicial proceedings. State v. Tichon, 102 Ohio App. 3d 758,
767 (9th Dist.1995). A reviewing court must take notice of plain error only with the utmost
caution, and only then to prevent a manifest miscarriage of justice. State v. Bray, 9th Dist.
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Lorain No. 03CA008241, 2004-Ohio-1067, ¶ 12. This Court may not reverse the judgment of
the trial court on the basis of plain error, unless appellant has established that the outcome of trial
clearly would have been different but for the alleged error. State v. Kobelka, 9th Dist. Lorain
No. 01CA007808, 2001 WL 1379440, *2 (Nov. 7, 2001), citing State v. Waddell, 75 Ohio St. 3d
163, 166 (1996).
{¶30} Klingel contends that while the trial court instructed the trial court on R.C.
2909.23(A)(1), it failed to instruct the jury on R.C. 2909.23(A)(2). Though Klingel did not
object, he maintains that because the State must prove both R.C. 2909.23(A)(1) and (2) in order
to obtain a conviction, this alleged omission by the trial court constituted plain error.
{¶31} As noted above, R.C. 2909.23 states:
(A) No person shall threaten to commit or threaten to cause to be committed a
specified offense when both of the following apply:
(1) The person makes the threat with purpose to do any of the following:
(a) Intimidate or coerce a civilian population;
(b) Influence the policy of any government by intimidation or coercion;
(c) Affect the conduct of any government by the threat of by the specified offense.
(2) As a result of the threat, the person causes a reasonable expectation or fear of
the imminent commission of the specified offense.
(B) It is not a defense to a charge of a violation of this section that the defendant
did not have the intent or capability to commit the threatened specified offense or
that the threat was not made to a person who was a subject of the threatened
specified offense.
{¶32} Klingel’s plain error argument is without merit. While the trial court’s jury
instruction on terroristic threats included the language in R.C. 2909.23(A)(1) and (B), the trial
court omitted much of the language in R.C. 2909.23(A)(2). The trial court did stress that
causation was an essential element of the offense, and it specified that to “cause” is an act
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“which in a natural and continuous sequence directly influences the policy or affects the conduct
of government, and without which it would not have occurred.” We are mindful that the
“[f]ailure of a trial court to separately and specifically instruct the jury on every essential element
of each crime with which an accused is charged does not per se constitute plain error under
Crim.R. 52(B).” State v. Adams, 62 Ohio St. 2d 151 (1980), paragraph two of the syllabus.
When a trial court fails to instruct the jury on an essential element of an offense, the reviewing
court must examine the record and determine whether the defendant was substantially prejudiced
by the omission, thereby resulting in a manifest miscarriage of justice. Id. at 154. In this case,
we do not find plain error in the jury instruction as Klingel has failed to demonstrate that the trial
court’s omission resulted in a manifest miscarriage of justice. As chronicled above, the State
presented ample evidence at trial that Klingel made explicit threats against Detective Angello.
Given the depraved and detailed nature of Klingel’s threats, a reasonable person would have had
a well-founded fear that the commission of the attack was imminent. In light of the threats in
this case, the police took precautionary measures to protect Detective Angello and she elected to
stay home instead of working her private security job on the evening of April 4, 2015. Under
these circumstances, we cannot say that Klingel has demonstrated that the result of the trial
would have been different but for the imperfect jury instruction.
{¶33} Klingel’s final assignment of error is overruled.
III.
{¶34} Klingel’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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 Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
NICHOLAS HANEK, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.