[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 

 1 The 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