[Cite as State v. Shuck , 2020-Ohio-6989.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO Appellee

v. CHARLES ALLEN SHUCK Appellant C.A. No. 19AP0040

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. 2019 CR-B 000390
DECISION AND JOURNAL ENTRY Dated: December 31, 2020

TEODOSIO, Judge. {¶1} Appellant, Charles A llen Shuck, appeals from his conviction for telecommunications harassment in t he Wayne County Municipal Cou rt. This Court reverses.
I. {¶2} Mr. Shuck, a Caucasian male, was in a relationship with D.O., a n African-American female, thirteen years ago. They have one daughter (“Z.”) toge ther who is now in the custody of Mr. Shuck’s aunt. In January o f 2019, Mr. Shuck sent a text me ssage to D.O. asking to have their daughter for a visit that weekend. After receiving no response for the next six hours, he sent another text message to D.O. stating: “Ok n****r you and [my au nt] will never get anything.” D.O. later responded by text, explaining that she had been “swa mped” at work and that, due to Mr. Shuck’s previous text, she would not be replying to his initial request for visitation. Mr. Shuck replied by text and stated: “Ask me if I give a f**k[].” D.O. reported the text messages to the police.2
{¶3} Mr. Shuck was charged with telecommunications harassment, a mis demeanor of the first degree. Following a bench trial, the trial court fou nd him guilty and sentenced him to twelve months of probation. He was further ordered to have no contact with the victim, pay a $500.00 fine, attend at least six NAACP meetings, submit a writ ten essay of what he learned in each meeting about treating people with respect, perform one hu ndred hours of community service, and obtain gainful employment. Mr. Shuck successfully motioned the court for a stay of execution of the sentence. {¶4} Mr. Shuck now appeals from his c onviction and raises one assign ment of error for this Court’s review.
II. ASSIGNMENT OF ERROR
APPELLANT’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS A MATTER OF LAW AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶5} In his sole assignment of error, Mr. Shuck argues that his conv iction for telecommunications harassment was not supported by sufficient e vidence and was against the manifest weight of the eviden ce. We agree that his conviction was not supported by sufficient evidence. {¶6} Whether a conviction is supported by sufficient evidence is a q uestion of law, which this Court reviews de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “A challenge to the sufficiency of the evidence concerns the State’s burden of production * * *” and is, “[i]n essence, * * * a test of adequacy.” In re R.H. , 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25; Thompkins at 386. “The relevant inquiry is whether, after viewing the e vidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of3 the crime proven beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary c onflicts or assess the credibility of witnesses, because these functions belong to the trier of fact. ” State v. Hall , 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10. {¶7} Effective August 16, 2016, H.B. 151 expanded the offense of tel ecommunications harassment to include the additi onal prohibited actions enumera ted in R.C. 2917.21(A)(6)-(11). Mr. Shuck was convicted of a vi olation of R.C. 2917.21(A)(6), w hich provides: No person shall knowingly make or cause to be made a telecommun ication * * * to another, if the caller * * * [k] nowingly makes any comment, req uest, suggestion, or proposal to the recipient of the telecommunication that is t hreatening, intimidating, menacing, coercive, or obscene with the intent to abuse, threaten, or harass the recipient * * *. A “telecommunication” is “the origination, emission, disseminat ion, transmission, or reception of data, images, signals, sounds, or other intelligence or equival ence of intelligence of any nature over any communications system by any method, including, but no t limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.” R.C . 2913.01(X). See also R.C. 2917.21(G)(3). Text messages sent between cell phones are cons idered telecommunications. State
v. Osborne , 9th Dist. Wayne No. 09CA0004, 2010-Ohio-1922, ¶ 7. See also R.C. 2913.01(Y) (defining “telecommunications device” as “any instrument, equip ment, machine, or other device that facilitates telecommunica tion, including, but not limited to, a * * * cellular telephone * * *.). The “caller” is the person who ma kes the telecommunication or c auses it to be made. R.C. 2917.21(G)(2). {¶8} Although Mr. Shuck stipulated at trial that he sent the text me ssages to D.O., the State still bore the burden of demonstrating beyond a reasonabl e doubt that the messages were4 “threatening, intimidating, menacing, coercive, or obscene” and that Mr. Shuck in tended to “abuse, threaten, or harass” D.O. by sending them. See R.C. 2917.21(A)(6). {¶9} D.O. testified at trial that she dated Mr. Shuck for one year, thirteen years ago, and the two have a twelve-year-old daughter together named Z. Mr. Shuck’s aunt now has legal custody of Z. Prior to the underlying incident, Mr. Shuck and D.O. would generally text each other regarding parenting issues , including when Mr. Shuck want ed visitation with Z. On January 9, 2019, at 10:35 A.M., Mr. Shuck texted D.O. the following mes sage: “I want [Z.] this weekend.is that possible?” D.O. testified that she did not initially resp ond to the message because she did not see it, as she was at work and had her cell phone set on silent mode. Six hours la ter, at 4:30 P.M., Mr. Shuck texted D.O. the following message, which included a n otorious racial epithet: “Ok n****r you and [my aunt] will neve r get anything.” D.O. testif ied that the message upset her and “spiked up” her anxiety. She tes tified that she was hurt and “ didn’t know[] this was going to escalate to something else * * *.” When specifically asked if she felt this was a threatening text, she replied, “Absolutely[,]” although she also conceded that sh e “didn’t understand” what the message actually meant. When asked by the prosecutor if she th ought the text was sent to make her “do something in terms of the parenting[,]” she agreed and testified that she believed it was a threat to make her to change her mind and “give him the visit.” {¶10} D.O. sent a text message to Mr. Shuck after work, at 5:33 P.M., which stated: “I was swamped at work.. now due t o your last message I will not r eply to initial question.” Mr. Shuck responded five minutes lat er with the following text mess age: “Ask me if I give a f**k[.]” A picture of the text messages was entered into evidence at tri al. Mr. Shuck’s attorney also stipulated that Mr. Shuck s ent the messages to D.O.5
{¶11} D.O. also testified that throughout the past thirteen years she never heard Mr. Shuck use the N-word, “not even the sl ang version.” She further test ified that Mr. Shuck “never spoke ill to [her]” and “never spoke[] to [her] like that before.” S till, she recalled a time in late September or early October of 2018 when Mr. Shuck sent her another text m essage containing the N-word. D.O. replied to the 2018 text message at the time and asked Mr. Shuck if he sent it to her on purpose, and Mr. Shuck said yes. D.O. was working on a shared parenting plan at the time, but testified that she stopped the pr ocess after that incident. Sh e testified that she was hurt not only because Mr. Shuck used the N-w ord, but also because he admitted texting it to her on purpose. {¶12} Officer Donald Hall of the Woos ter Police Department testified that D.O. reported the 2019 text messages to the police on January 9, 2019. She w as unable to produce the alleged text message from the fall of 2018 to the officer. The officer then spoke to Mr. Shuck on the following day. According to Officer Hall, Mr. Shuck was cooper ative and very respectful. He admitted sending the 2019 text messages and said he was “fed up ” with his ongoing custody dispute with D.O. over their daug hter. When asked whether he a lso used the N-word in a previous text in the fall of 2018, Mr. S huck told the officer, “I don’t know. I might have. I throw that word around, but not all the time.” {¶13} Criminal statutes proscribing threats cannot be of unlimited br eadth due to the constitutional protections afforded to speech. State v. Cress , 112 Ohio St.3d 72, 2006-Ohio-6501, ¶ 50 (O’Connor, J., dissenting), citing Watts v. United States , 394 U.S. 705, 707 (1969) (noting that such statutes “must be interpreted with the commands of th e First Amendment clearly in mind” and that a “threat must be distinguished from what is constitut ionally protected speech.”). Accordingly, the telecommunications harassment statute focuses on the caller rather than on the content of the telecommunication. See State v. Pariscoff , 9th Dist. Wayne No. 17AP0023, 2019-6 Ohio-172, ¶ 7 (concerning R.C. 2917.21(A)(1) and (A)(5)), citin g Akron v. Hawthorne , 9th Dist. Summit No. 13670, 1989 WL 10333, *1 (Feb. 8, 1989). The statut e creates a specific-intent crime, and it is therefore the intent with which the telecommunication is made that establishes the criminality of the conduct. See id. Thus, the critical inquiry of te lecommunications harassment i s not whether the recipient was in fact abused, threatened, or ha rassed by the telecommunication, but rather whether the purpose of the caller was to abuse, thre aten or harass the recipient. See State v. Kronenberg , 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 15 (concerni ng Former R.C. 2917.21(B)), citing State v. Bonifas , 91 Ohio App.3d 208, 211-212 (3d Dist.1993). {¶14} The terms “intent” and “purpose” are synonymous in the context of culpable mental

states. State v. Johnson , 9th Dist. Medina Nos. 18CA0070-M and 18CA0071-M, 2019-Ohio-33 14, ¶ 15. “A person acts purposely when it is the person’s specifi c intention to cause a certain result, or, when the gist of the offens e is a prohibition against condu ct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offe nder’s specific intention to engage in conduct of that nature.” R.C . 2901.22(A). In the absence o f direct evidence, a defendant’s intent to abuse, threaten, or har ass may be established by the surrounding facts and circumstances. See Kronenberg at ¶ 15. The State’s burden to establish the defendant’s spec ific intent is not met, however, by establishing only that the defendant knew or should have known that his conduct would probably abuse, threaten, or harass the recipient. See In re C.W. , 1st Dist. Hamilton Nos. C-180677 and C-180690, 2019-Ohio-5262, ¶ 15, citing State v. Ellison , 178 Ohio App.3d 734, 2008-Ohio-5282, ¶ 15 (1st Dist.). “The legislature has created this substantial burden to limit the statute’s scope to criminal conduc t, not the expression of offe nsive speech.” Id. , quoting Ellison at ¶ 15.7
{¶15} Although none of the individual te rms “abuse,” “threaten,” or “ harass” have been statutorily defined within the meaning of R.C. 2917.21, “‘[t]he fact that the statute does not place legal definitions on each of these terms demonstrates that the General Assembly intended to prohibit conduct that is easily definable by the common everyda y meaning of these words.’” State
v. Rasawehr , 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶ 29, quoting State v. Stanley , 10th Dist. Franklin No. 06AP-65, 2006-Ohio-4632, ¶ 13. “Abuse” may be defined as “[t]o injure (a person) physically or mentally.” Black’s Law Dictionary (11th Ed.2019). “Threat” has been defined as “‘an exp ression of an intention to inflict evil, inj ury, or damage on another usu[ally] as retribution or punishment for s omething done or left undone.’ * * * It connotes almost any expression of intent to do an act of harm against another perso n irrespective of whether that act is criminal.” State v. Klingel , 9th Dist. Lorain No. 15CA010876, 2017-Ohio-1183, ¶ 7, quoting Cress at ¶ 36, quoting Webster’s Third New International Dictionary 2382 (1986) and citing State v. Moyer , 87 W.Va. 137 (1920). Finally, “harassment” may be defined as “[w]ords, conduct, or action (usu. repeated or persiste nt) that, being directed at a specific person, annoys, alarms, or causes substantial emotional di stress to that person and serves no legitimate purpose; purposeful vexation.” Black’s Law Dictionary (11th Ed.2019). {¶16} Mr. Shuck’s trial focu sed primarily on his second text message: “Ok n****r you and [my aunt] will never get an ything.” The message couples a despicable racial epithet with a vague statement that the two women “will never get anything.” The State introduced testimony from D.O. as to her reaction upon r eceiving the text and how it made her feel. D.O. admitted that she “didn’t understand” what the message meant, but also felt i t was “[a]bsolutely” threatening and claimed that it hurt her, ups et her, and “spiked up” her an xiety. But again, D.O.’s perception8

of the text—and whether she was in fact abused, threatened, or harassed by it—is not the critical inquiry here. See Kronenberg at ¶ 15. {¶17} We must instead determine whether sufficient evidence was prese nted to show that Mr. Shuck intended to abuse, threaten, or harass her with his text message. See id. Sending an African-American woman a text containing the N-word is certainl y shocking and inappropriate. For better or worse, however, the mere utterance (or texting) o f a racial slur, by itself, is not illegal. See, generally, Brandenburg v. Ohio , 395 U.S. 444 (1969) (recognizing that racist hate speech is protected by the First Amendment) . Moreover, evidence that Mr. Shuck knew or should have known that texting such a word to D.O. would probably abuse, threaten, or harass her is not enough to establish his intent to abuse, threaten, or harass her. See In re C.W. at ¶ 15. {¶18} The State presented evidence that Mr. Shuck and D.O. were invol ved in a custody dispute, but routinely communicat ed via text message regarding parenting issues and visitation. D.O. testified that Mr. Shuck ne ver paid any child support, but she admitted that he also “never spoke ill to [her]” and never used the N-word around her, save for allegations surrounding a single text message in the fall of 2018. Mr. Shuck admitted to Office r Hall that he was “fed up” with the child custody dispute, but when asked about his use of the N-wo rd in the 2018 text, Mr. Shuck told the officer he was unsure if he used it because he “throw[ s] that word around, but not all the time.” {¶19} Upon review, this Court determines that that State did not set forth sufficient evidence that Mr. Shuck sent thi s text message to D.O. with the intent or purpose to abuse, threaten, or harass her. Notwithstanding h is callous use of a distastefu l racial epithet, the message itself that the two women “will never get anything” is strikingly vague and devoid of any real specificity. We of course recognize that a telecommunication need not be rep lete with detail in order to9

constitute a threat. See, e.g., Cress , 112 Ohio St.3d 72, 2006-Ohio-6501, at ¶ 37 (“The most intimidating threat of all may be an indefinite one (‘You’ll be sorry’).”). Nevertheless, this Court cannot infer from the surrounding facts and circumstances that Mr. Shuck’s purpose in sending this especially cryptic and ambiguous text message was to abuse , threaten, or harass D.O. The evidence showed that Mr. Shuck was unhappy with the custody dis pute and apparently displeased with D.O.’s failure to respond to his first text message. His text message of “Ok n r you and [my aunt] will never get anything” appears more so as a terribl y insensitive, fleeting remark sent to D.O. to vent his frustration over a perceived slight—e.g., b eing ignored—but not with the intent to abuse, threaten, or harass her. In fact, when D.O. indicate d that she would not reply to the visitation request due to this t ext, Mr. Shuck responded, “Ask me if I give a f** k[,]” which exudes apathy and a certain degree of b itterness toward the situation, but not an intention to harm D.O. in
any way. {¶20} Accordingly, under the particular facts and circumstances of th is case, and after reviewing the evidence in a light most favorable to the State, we conclude that the State failed to set forth sufficient evidence as to an essential element of tel ecommunications harassment that was necessary to sustain Mr. Shuck’ s conviction, and no rational tr ier of fact could have found beyond a reasonable doubt that he sent these text messages with the in tent to abuse, threaten, or harass D.O., in violation of R.C. 2917.21(A)(6 ). We must therefore re verse and remand the matter back to the trial court, so that it may vacate Mr. Shuck’s convictio n. Furthermore, “[b]ecause reversal for insufficiency is effectively an acquittal, retrial is prohi bited by double jeopardy.” State v.
Johnson , 9th Dist. Lorain No. 06CA008911, 2007-Ohio-1480, ¶ 5. {¶21} Because we have determined that Mr. Shuck’s conviction for tele communications harassment was not supported by sufficient evidence and must be vacated, the question of whether10 that conviction is against the manifest weight of the evidence has been rendered moot. See State
v. Love , 9th Dist. Summit No. 28988, 2019-Ohio-3168, ¶ 35; App.R. 12(A )(1)(c). {¶22} Mr. Shuck’s sole assi gnment of error is s ustained in part and m oot in part.
III. {¶23} Mr. Shuck’s sole assignment of e rror is sustained in part and m oot in part. The judgment of the Wayne County Municipal Court is reversed, and t he matter is remanded for the trial court to vacate Mr. Shuc k’s conviction for telecommunicat ions harassment. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Wayne County Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

THOMAS A. TE ODOSIO FOR THE COURT11

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: WESLEY A. JOHNSTON, Attorney at Law, for Appellant. YU MI KIM-REYNOLDS, Attorney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.