[Cite as Brecksville v. Werstler, 2014-Ohio-2388.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100041




                               CITY OF BRECKSVILLE
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                                LOTTIE K. WERSTLER
                                                           DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                      Criminal Appeal from the
                                   Garfield Heights Municipal Court
                                       Case No. CRB-1203194

        BEFORE: Celebrezze, P.J., S. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: June 5, 2014
ATTORNEYS FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

Erin R. Flanagan
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Sergio I. DiGeronimo
City of Brecksville Prosecutor
8748 Brecksville Road
Suite 130
Brecksville, Ohio 44141

Rachel A. Kopec
8748 Brecksville Road
Suite 216
Brecksville, Ohio 44141
FRANK D. CELEBREZZE, JR., P.J.:

      {¶1} Defendant-appellant, Lottie K. Werstler, appeals her conviction for

telecommunications harassment. After a thorough review of the record and relevant case

law, we affirm appellant’s conviction.

                          I. Procedural and Factual History1

      {¶2} This case arose out of a criminal complaint filed on August 29, 2012, by

Detective Daniel Jereb of the Brecksville Police Department, alleging that appellant had

engaged in telecommunications harassment in violation of section 537.10 of the Codified

Ordinances of the City of Brecksville. The complaint states that appellant

      did knowingly make or cause to make, a telecommunication, or permit a
      telecommunication to be made from a telecommunication device under her
      control, with the purpose to abuse, threaten, or harass another person. To
      wit: Continually sending text messages and emails to Brian J. Cuglewski
      despite being warned to cease and desist from doing so.

      {¶3} On May 20, 2013, the case proceeded to a jury trial. The city first presented

the testimony of Officer Jeff Rowe of the Brecksville Police Department. Officer Rowe

testified that he was on duty on April 4, 2012, when Brian Cuglewski, the alleged victim,

complained of receiving unwanted phone calls, text messages, and emails from appellant.

In response to the complaint, Officer Rowe left appellant numerous voicemails

requesting her to stop contacting Cuglewski. Officer Rowe testified that he believed he


      1The parties stipulated to an agreed statement as the record on appeal,
pursuant to App.R. 9(D).
reached appellant’s correct voicemail because the outgoing message included the name

“Lottie.”

       {¶4} Additionally, Officer Rowe attempted to reach appellant by telephoning her

at her place of employment. However, he testified that when he asked for appellant and

identified himself as a Brecksville police officer, the woman who answered the phone

hung up on him. Based on his unsuccessful attempts to contact appellant, Officer Rowe

requested that the Newton Falls police go to appellant’s home and personally advise her

to call Officer Rowe.

       {¶5} Detective Daniel Jereb testified that Cuglewski came into his office on

August 1, 2012, with copies of all the emails he had received from appellant from

December 27, 2011, to August 1, 2012. Based on the content of the emails, Det. Jereb

filed a criminal complaint against appellant on August 29, 2012.

       {¶6} Brian Cuglewski was the final witness for the city. He testified that he had

met appellant while the two were involved in a volunteer organization. According to

Cuglewski, appellant began sending him numerous and unusual emails following her

placement on mandatory leave from the volunteer organization in early 2012.

Collectively, appellant sent Cuglewski a total of 56 emails from December 27, 2011, to

February 9, 2012, some suggesting her desire to have a romantic relationship with him

and others blaming him for her dismissal from the volunteer organization. Included in

the emails were statements such as, “Getting a new phone just to be able to bug you”; “I

do have other things I can do in my life besides bug you”; “It’s been fun bugging you”;
“Forced personal leave has been totally worth it to be able to trick and bug you”; “Are

you tired of my emails yet? You really do suck... I hope you get this message.”

      {¶7} On February 15, 2012, Cuglewski sent an email to appellant stating, “I do not

want to engage in a personal or professional relationship with you. Please cease from

sending me further correspondence.” Despite Cuglewski’s request, appellant continued

to send him unwanted emails. In total, appellant sent Cuglewski more than 90 additional

emails from February 15, 2012, to August 1, 2012.

      {¶8} Cuglewski testified that he felt “alarmed” and “uncomfortable” with the

volume and content of appellant’s emails. Further, he stated that he felt “abused” and

“harassed” by the insults contained in some of the emails. Finally, Cuglewski testified

that he felt “scared” and “threatened” by appellant’s references to dreams she was having

about him, especially after she acknowledged that she had been contacted by the police

but was ignoring their repeated warnings to stop the correspondence.

      {¶9} Defense counsel moved for a Crim.R. 29 judgment of acquittal at the close of

the city’s case and again at the close of trial. The trial court denied both motions. At

the conclusion of all evidence, the jury found appellant guilty of telecommunications

harassment.

      {¶10} Appellant now brings this timely appeal, raising two assignments of error

for review:

      I. The trial court erred in its denial of appellant’s motions for acquittal
      because the prosecution failed to present sufficient evidence to meet the
      statutory conviction requirements.
       II. The trial court erred in entering a judgment of conviction which was
       against the manifest weight of the evidence.

                                  II. Law and Analysis

       {¶11} In her first assignment of error, appellant argues that the trial court erred in

denying her motions for acquittal because the prosecution failed to present sufficient

evidence to meet the statutory conviction requirements. In her second assignment of

error, appellant argues that her conviction was against the manifest weight of the

evidence.   Because appellant’s first and second assignments of error raise similar

arguments, we consider them together.

       {¶12} A Crim.R. 29(A) motion challenges the sufficiency of the evidence. When

reviewing a challenge of the sufficiency of the evidence, an appellate court examines the

evidence admitted at trial and determines whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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. A sufficiency challenge requires us to review

the record to determine whether the state presented evidence on each of the elements of

the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

A reviewing court is not to assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
       {¶13} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598, ¶ 12. When reviewing a claim challenging the manifest weight

of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the

factfinder’s resolution of the conflicting testimony.”         Thompkins at 387.        After

reviewing the entire record, the reviewing court must 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. Id.

       {¶14} Appellant was convicted under Brecksville Ordinance 537.10(b), which

provides, in pertinent part: “No person shall make * * * a telecommunication * * * with

purpose to abuse, threaten, or harass another person.”

       {¶15} In challenging the sufficiency and the weight of the evidence supporting her

conviction, appellant asserts that the city failed to prove that she “purposely” abused,

threatened, or harassed Cuglewski. We disagree.

       {¶16} “A person acts purposely when it is his 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 his specific intention

to engage in conduct of that nature.” R.C. 2901.22(A). It is not necessary to have direct

evidence of a defendant’s intent. “Because the intent of an accused dwells in his or her
mind and can never be proved by the direct testimony of a third person, it must be

gathered from the surrounding facts and circumstances.” State v. Treesh, 90 Ohio St.3d

460, 484-485, 2001-Ohio-4, 739 N.E.2d 749; State v. Huffman, 131 Ohio St. 27, 1 N.E.2d

313 (1936).

       {¶17} In the case at hand, the record reflects that appellant sent Cuglewski over

140 emails in less than an eight-month period of time, often sending multiple emails a

day. Within many of the emails, appellant acknowledged her outright refusal to respect

Cuglewski’s request that she stop contacting him, and she often stated, specifically, that

the purpose of her emails was to “bug” him. Moreover, appellant’s conduct continued

even after the Brecksville police intervened in the matter.        When questioned about

appellant’s conduct, Cuglewski testified that the volume and content of the

communications made him feel alarmed, abused, harassed, scared, and uncomfortable.

       {¶18} While the telecommunications may not have been threatening in nature, they

were certainly harassing. Harassment is not defined in the ordinance, but is defined in

Merriam-Webster’s Collegiate Dictionary (11th Ed.2005) as “to annoy persistently * * *

to create an unpleasant or hostile situation * * * by uninvited and unwelcome verbal or

physical conduct * * * .” See also Black’s Law Dictionary 733 (8th Ed.Rev.2004)

(defining “harass” as “[w]ords, conduct, or action that, being directed at a specific person,

annoys, alarms, or causes substantial emotional distress in the person and serves no

legitimate purpose”).
      {¶19} In our view, and under the limited circumstances of this case, the content of

the emails collectively demonstrated that appellant’s specific intent in persistently

communicating with Cuglewski was to “bug” him due to her dissatisfaction with how

their professional relationship terminated.     Viewing the evidence in a light most

favorable to the prosecution, a rational trier of fact could have concluded that appellant

purposely acted to “annoy”or “alarm” Cuglewski and that her conduct served no

legitimate purpose. Consequently, appellant’s conviction was supported by sufficient

evidence.

      {¶20} Furthermore, we find nothing in the record of the proceedings below to

suggest that the jury lost its way or created such a manifest miscarriage of justice as to

warrant the reversal of appellant’s conviction. As the trier of fact, the jury was in the

best position to weigh the credibility of the witnesses and was free to find Cuglewski’s

testimony to be credible. Accordingly, appellant’s conviction is not against the manifest

weight of the evidence.

      {¶21} Appellant’s first and second assignments of error are overruled.

      {¶22} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Garfield

Heights Municipal Court to carry this judgment into execution.            The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
