      [Cite as In re C.W., 2019-Ohio-5262.]



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




IN RE: C.W.                                   :    APPEAL NOS. C-180677
                                                               C-180690
                                              :     TRIAL NOS. 17-2468
                                                               17-2470

                                              :          O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: December 20, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

Finney Law Firm, LLC, and Bradley M. Gibson, for Appellant C.W.
                     OHIO FIRST DISTRICT COURT OF APPEALS



Z A Y A S , Judge.
       {¶1}    Following a bench trial before a magistrate, 12-year-old C.W. was

adjudicated delinquent for committing acts that had he been an adult would have

constituted telecommunications harassment, under R.C. 2917.21(B)(1), and inducing

panic, under R.C. 2917.31(A)(3). For the following reasons, we reverse the juvenile

court’s judgments.

                           Facts and Procedural History

       {¶2}    This case stemmed from two comments made by C.W. to an Instagram

post, one of which stated, “DUMB FUCK COME TO SYCAMORE YOU WONT,” and

another which stated, “I’ll square up to these stupid coons.” C.W., a Sycamore Junior

High School student, published these comments on the Instagram page of the so-

called “Clown Clan,” http://www.instagram.com/clown.clann, from his cell phone

while he was at home on the evening of September 29, 2016. He deleted them

approximately two hours later.

       {¶3}    As explained by the parties, the context of these comments was “the

odd phenomenon of disturbances caused by clowns.”            Frank Forsthoefel, the

Superintendent of the Sycamore Community School District, testified that at that

time there were reports in the national and local news about alleged attacks involving

people dressed up as clowns, as part of a “clown craze.”

       {¶4}    Forsthoefel testified that, for instance, early on September 29, there

was a report from the Reading school district that a clown allegedly assaulted

someone and made a threat against the district, which prompted its closure on

September 30. Forsthoefel explained that “threats” were also made against Colerain

High School.




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                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶5}   Forsthoefel testified that on the morning of September 30, after

receiving a call from the principal of Sycamore Junior High School regarding “posts

made on social media that [were] causing some upheaval in her building,” he

requested additional police officers for the school.      Forsthoefel testified to a

significant disruption in the school system.

       {¶6}   Damon Davis, the assistant principal of Sycamore Junior High School,

learned of C.W.’s comments on the Instagram page on the morning of September 30,

after another student, J.S., showed Davis a screenshot that she took of C.W.’s

comments, prior to C.W. deleting them. J.S. testified that C.W.’s comments were in

response to the Clown Clan’s Instagram post. J.S. testified, “[t]he clowns posted a

picture and they said – I think they said, what school do you want us to come to?”

       {¶7}   Davis interviewed C.W. at school about his comments and had C.W.

“write out in his own words what had taken place.” C.W. admitted to Davis that he

made the comments and later deleted them. Davis testified that C.W. told him that

he wanted to see what the clowns looked like and that he wanted the clowns “to come

to Sycamore so that he could fight them and see what they would do to other people.”

Davis testified that comments posted by C.W. and two other students caused a

disruption at the school that day, as students at the school “felt scared,” and

“want[ed] to see a counselor.” Davis testified that as a result of the disruption a

school-wide pep rally scheduled for that afternoon was cancelled.

       {¶8}   At the conclusion of a two-day trial, the magistrate found C.W.

delinquent for having committed telecommunications harassment and inducing

panic. C.W. timely objected to the magistrate’s decision, which was later affirmed by

the juvenile court. C.W. now appeals, asserting five assignments of error. For ease of

discussion, we address C.W.’s assignments of error out of order.



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                     OHIO FIRST DISTRICT COURT OF APPEALS




                                   Legal Analysis

I.     Telecommunications Harassment

       {¶9}   In his second assignment of error, C.W. claims that the state presented

insufficient evidence to adjudicate him delinquent for telecommunications

harassment in violation of R.C. 2917.21(B)(1). We agree.

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

whether, after viewing the evidence in the light most favorable to the state, any

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

beyond a reasonable doubt.” State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-

Ohio-9189, ¶ 19, citing State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶11} R.C. 2917.21(B)(1) provides: “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.” C.W. contends that the state did not prove

“purpose,” or C.W.’s specific intent to “abuse, threaten, or harass another person,”

largely because C.W. told assistant principal Davis that he did not intend to threaten

or harm anyone and prepared a written statement expressing the same. The state

argues that direct and circumstantial evidence demonstrated C.W.’s intent.

                                 Telecommunication

       {¶12} “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



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                     OHIO FIRST DISTRICT COURT OF APPEALS

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

magnetic, optical, digital, or analog method.” R.C. 2917.21(E)(3) (incorporating by

reference the definition found in R.C. 2913.01(X)).

       {¶13} Direct contact is not required to establish a telecommunication under

the statute. State v. Ellison, 178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d

228, ¶ 12 (1st Dist.). And, R.C. 2917.21(B) does not require more than a single

transmission. State v. Stanley, 10th Dist. Franklin No. 06AP-65, 2006-Ohio-4632, ¶

13. In this case, it is undisputed that C.W. made a telecommunication. The evidence

of C.W.’s comments to the Instagram post were part of the record via the screenshot

that J.S. took, and C.W. admitted to Davis and in his written statement that he

published the comments.

            Purpose to Abuse, Threaten, or Harass Another Person

       {¶14} “The critical inquiry of telecommunications harassment is not whether

the recipient of the communication was in fact threatened [or] harassed * * * by the

communication, but rather, whether the purpose of the person who made the

communication was to abuse, threaten, or harass the person called.”        State v.

Kronenberg, 2015-Ohio-1020, 2015 WL 1255845, ¶ 15 (8th Dist.), citing State v.

Bonifas, 91 Ohio App.3d 208, 211-212, 632 N.E.2d 531 (3d Dist.1993). “In the

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

abuse may be established by the facts and circumstances surrounding the

communication.” City of Hamilton v. Combs, 2019-Ohio-190, 131 N.E.3d 297, ¶ 20

(12th Dist.), citing Kronenberg at ¶ 15. A person acts purposely “when it is his

specific intention to cause a certain result, or, when the gist of his offense is a

prohibition against conduct of a certain nature, regardless of what the offender




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                     OHIO FIRST DISTRICT COURT OF APPEALS

intends to accomplish thereby, it is his specific intention to engage in conduct of that

nature.” R.C. 2901.22(A).

       {¶15} In other words, the statute creates a specific-intent crime which

requires the state to prove that the defendant’s specific purpose is to harass. “The

burden is not met by establishing only that the defendant knew or should have

known that her conduct would probably cause harassment. The legislature has

created this substantial burden to limit the statute’s scope to criminal conduct, not

the expression of offensive speech.” (Emphasis added.) State v. Ellison, 178 Ohio

App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 15 (1st Dist.).

       {¶16} R.C. 2917.21(B) does not define “abuse,” “threaten,” or “harass.” But,

“[h]arassment” has been defined as “[w]ords, conduct, or action ([usually] repeated

or persistent) that, being directed at a specific person, annoys, alarms, or causes

substantial emotional distress in the person and serves no legitimate purpose.”

Ellison at ¶ 14, citing Black’s Law Dictionary 733 (8th Ed.Rev.2004). The legislature

deleted the word “annoy” from R.C. 2917.21(B) in 1999; “[t]hus, for conduct to rise to

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

have intended to alarm or to cause substantial emotional distress to the recipient.”

Ellison at ¶ 14. “Threaten” 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.” State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501,

858 N.E.2d 341, ¶ 36, citing Webster’s Third New International Dictionary 2382

(1986). “It connotes almost any expression of intent to do an act of harm against

another person irrespective of whether that act is criminal.” Cress at ¶ 36, citing

State v. Moyer, 87 W.Va. 137, 104 S.E. 407 (1920). And finally, “abuse” has been

defined as “cruel or violent treatment of someone; [specifically] physical or mental



                                           6
                     OHIO FIRST DISTRICT COURT OF APPEALS

maltreatment, often resulting in mental, emotional, sexual, or physical injury.”

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

       {¶17} In this case, the state had the burden of establishing beyond a

reasonable doubt that C.W.’s specific purpose in making the telecommunication was

to abuse, threaten or harass another person. The state argues that the text of C.W.’s

comments alone revealed his purpose was to harass, and also that C.W. admitted to

Davis that his intention was to fight the clowns that he invited to his school and

therefore his comment was a threat. Neither argument satisfies the state’s burden of

proof under the statute.

       {¶18} The overarching problem with the state’s case is that “another person”

was never established. Rather, it was assumed that there was (1) a person behind the

Clown Clan Instagram account and (2) that that person dressed up as a clown and

terrorized local schools and was therefore the intended recipient of C.W.’s

comments.

       {¶19} While it might have been true that a person was behind the Clown Clan

Instagram page, the state never established this as a fact but merely asserted that

C.W.’s comments were directed at this supposed person.         As the juvenile court

suggested, “the identity of the actual Clown Clan is immaterial,” but the

telecommunications harassment statute still requires that the telecommunication be

directed to another person. “Person” is defined in the Revised Code to mean “an

individual, corporation, business trust, estate, trust, partnership, and association.”

R.C. 1.59(C). The record is devoid of any evidence establishing the existence of a

person behind the Clown Clan Instagram account. Proving that an actual person is

behind something like a social-networking account becomes increasingly important




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                      OHIO FIRST DISTRICT COURT OF APPEALS

in an era when Twitter bots and other artificial intelligence troll the internet

pretending to be people.

         {¶20} Additionally, while it might have been true that the supposed person

behind the Instagram page also dressed up as a clown and terrorized people, the

state never established this as a fact or even implicitly argued it. Establishing this as

a fact was key because, as discussed below, C.W.’s comments were directed at a

person or persons who dressed up as clowns and threatened local schools. Thus, the

second assumption needed to have been true for C.W.’s comments to have been

directed at this person—the only person the state argued was a victim of C.W.’s

telecommunications harassment under R.C. 2917.21(B)(1). Because the state never

established facts to support its assumptions, it failed to establish an element of the

crime.

         {¶21} Not only did the state not establish the existence of another person, it

also did not establish that C.W.’s purpose was to abuse, threaten, or harass.

Regarding his first comment (“DUMB FUCK COME TO SYCAMORE YOU WONT”),

as the juvenile court stated, it seems that C.W.’s purpose was to “provoke a

potentially violent response” from the Clown Clan, or at the very least to goad or

encourage the Clown Clan to visit his school.         After all, C.W.’s comment was

published in response to the Clown Clan’s Instagram post asking the public and

followers of their Instagram page to comment with a school of their choice for them

to visit next. In this context, C.W.’s comment was invited by an allegedly-violent

group of people who dressed up as clowns and wanted to terrorize schools. C.W.’s

purpose with his response—provoking or goading the Clown Clan for a potentially

violent encounter—does not equate to alarming the Clown Clan or causing them

substantial emotional distress.



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                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶22} Regarding his second comment (“I’ll square up to these stupid coons”),

C.W.’s purpose seems to be a public boast that he intended to assume a fighting

position if the clowns did indeed visit his school. While the state emphasizes the

terms “square up” and “coons,” again, the context matters. C.W. made this comment

in an environment of apparent hysteria by area school districts and concern by

several students and parents over potentially violent disguised attackers. In this

context, it appears that C.W. was declaring in crude terms that he would defend

himself against the would-be attackers.

       {¶23} Moreover, according to C.W.’s written statement, which he prepared at

the direction of Davis and which Davis found credible, C.W. commented to the Clown

Clan Instagram post “because I heard they had been doing scary things but I wanted

to know like exactly what they did and what they looked [like]. After this my peers

started showing me this and what I had said so I thought that deleting it would

help[.] I had no idea it would scare people.” By assistant principal Davis’s own

testimony, C.W. expressed to him that he did not intend for his comments to be a

threat. Davis also testified that C.W. told him that he wanted them (the clowns or

the Clown Clan) to come to Sycamore so that he could see them or fight them. But,

as discussed above, the context reveals that C.W.’s specific intent was not to threaten.

       {¶24} Getting back to the main problem with the state’s case, C.W.’s

comments were directed to the Clown Clan. At no point did C.W. mention to Davis

or anyone else that he wanted to fight the supposed person behind the Instagram

account, or indicate that he knew who that supposed person might be or whether the

supposed person dressed up as a clown to scare and assault people.

       {¶25} C.W.’s second assignment of error is sustained.




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                     OHIO FIRST DISTRICT COURT OF APPEALS




II.    Inducing Panic

       {¶26} In his fourth assignment of error, C.W. claims that his adjudication for

inducing panic in violation of R.C. 2917.31(A)(3) is invalid as a matter of law because

he did not commit a predicate offense. We agree.

       {¶27} We review questions of law de novo. City of Parma v. Burgos, 8th

Dist. Cuyahoga No. 107797, 2019-Ohio-2445, ¶ 3. The state argues that because C.W.

failed to file objections to the magistrate’s decision on this adjudication, under the

case numbered 17-2470, our review is limited to plain error. We disagree, as C.W.

did in fact file objections to the magistrate’s decision adjudicating him delinquent for

inducing panic. Although the case number “17-2470” was missing from the caption

of C.W.’s objections in what appears to have been a clerical error, C.W.’s objections

to the magistrate’s decision are specific and particular in accordance with Juv.R. 40.

Of note, his argument against his adjudication for inducing panic occupies 13 of the

58 pages of objections. Moreover, upon objections to the magistrate’s decision, the

juvenile court heard oral argument from both sides regarding both charges,

telecommunications harassment and inducing panic, and issued a judgment as to

each charge.

       {¶28} R.C. 2917.31(A)(3) provides: “No person shall cause the evacuation of

any public place, or otherwise cause serious public inconvenience or alarm, by * * *

[c]ommitting any offense, with reckless disregard of the likelihood that its

commission will cause serious public inconvenience or alarm.”

       {¶29} In light of sustaining C.W.’s second assignment of error, whereby we

reverse   the   juvenile   court’s   judgment    adjudicating    him    delinquent   of



                                          10
                     OHIO FIRST DISTRICT COURT OF APPEALS

telecommunications harassment, the adjudication for inducing panic now has no

predicate offense. Without the predicate offense of telecommunications harassment

or any other predicate criminal offense to serve as an essential element of the

charged offense of inducing panic, no rational trier of fact could find the essential

elements of the crime of inducing panic proven beyond a reasonable doubt. See

State v. Wellington, 4th Dist. Gallia No. 17CA1, 2017-Ohio-8596, ¶ 16. Accordingly,

we sustain C.W.’s fourth assignment of error.

III.   The Appeal of 17-2468 is Not Moot

       {¶30} Finally, the state argues that the appeal of the case numbered 17-2468

(telecommunications harassment) is moot because C.W. satisfied a judgment against

him prior to requesting a stay of the juvenile court’s order in that case. C.W.’s

sentence under this adjudication was to “submit to the lawful care, custody, and

control of parent, guardian, custodian and teachers and to obey all laws.” He filed a

motion to stay his sentence on October 31, 2018. There is nothing in the record to

demonstrate that C.W. served his sentence prior to filing for a stay.

       {¶31} Additionally, “[t]he completion of a sentence is not voluntary and will

not moot an appeal if the circumstances surrounding it demonstrate that the

appellant neither acquiesced in the judgment nor abandoned the right to appellate

review, that the appellant has a substantial stake in the judgment of conviction, and

that there is subject matter for the appellate court to decide.” Cleveland Hts. v.

Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 26; see State v.

Farris, 1st Dist. Hamilton No. C-150567, 2016-Ohio-5527, ¶ 4. Because he moved to

stay his sentence, C.W.’s appeal of his telecommunications harassment adjudication

is not moot.




                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS




                                     Conclusion

       {¶32} C.W.’s second and fourth assignments of error are dispositive of this

appeal. Therefore, we need not address C.W.’s first and third assignments of error

because they are moot.

       {¶33} The juvenile court’s judgments adjudicating C.W. delinquent are

reversed, and C.W. is discharged from further prosecution for the offenses.



                                                                Judgment accordingly.

MOCK, P.J. and WINKLER, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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