[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
                                                    2


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.
                                                3


“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.
                                                 4


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.
                                                 5


       {¶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
                                                 6


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[.]”
                                                7


        {¶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.
                                                   8


       {¶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
                                                 9


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
                                                10


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.
                                                11


        {¶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.
                                                  12


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
                                                  13


“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.
                                                14


       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.
