[Cite as State v. Harshbarger, 2010-Ohio-4413.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 2-09-19 

 v. 

EDWARD J. HARSHBARGER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Municipal Court 

Trial Court No. 2008-CRB-887 

Judgment Reversed and Cause Remanded 

Date of Decision: September 20, 2010 

 

APPEARANCES: 

Quentin M. Derryberry, II for Appellant 

Darren L. Meade for Appellee 
Case No. 2-09-19 

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WILLAMOWSKI, P.J.,

{¶1} Defendant-Appellant, Edward J. Harshbarger (“Harshbarger”), 

appeals the judgment of the Auglaize County Municipal Court, finding him guilty 

of telecommunications harassment in violation of R.C. 2917.21(B). Harshbarger 

maintains that the trial court failed to find the specific intent required by the statute 

and that the verdict was against the manifest weight of the evidence. For the 

reasons set forth below, the judgment is reversed. 

{¶2} Harshbarger was charged with telecommunications harassment (or, 

“telephone harassment”) as a result of a single telephone call he made to Mr. Terry 

Leonard (“Leonard”). A bench trial was held on March 31, 2009. 

{¶3} At the trial, Harshbarger testified that Leonard and Harshbarger’s 

sister were neighbors in Wapakoneta and had adjoining backyards. Apparently 

there had been issues between the neighbors for several years to the point where 

Harshbarger’s sister was trying to sell her home in order to avoid the problems and 

harassment she claims had been caused by Leonard and his family. The sister 

made several calls to the police about the situation, but the calls were placed 

anonymously and nothing was ever resolved. Harshbarger testified that on 

October 22, 2008, his sister called to tell him about another alleged incident of 

trespassing and harassment by the Leonards. 
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{¶4} Harshbarger grew up in Wapakoneta, but now lives almost two 

hundred miles away in Cuyahoga Falls. Harshbarger knew that a former friend 

worked as a detective for the Wapakoneta Police Department, so he tried to call 

this friend at the police department to see if he could help with his sister’s 

problem. Harshbarger had a short discussion with the dispatcher, but he was 

unable to speak with his friend because he was not on duty that day.1

 

{¶5} Immediately thereafter, at approximately 4:43 pm, Harshbarger 

called Leonard, who was working at Papa John’s Pizza2

 at the time. Harshbarger 

and Leonard did not know each other and had never met or spoken with each other 

before. Telephone records and trial testimony confirm that a brief conversation 

took place between the two, lasting less than three minutes. 

{¶6} Harshbarger testified that after he wasn’t able to speak with his 

friend at the police department, he decided to call Leonard in order to reason with 

him and to tell him to stop bothering “the neighborhood.” Harshbarger claimed 

that Leonard responded with profanity and the discussion “took a nose-dive rather 

quickly” when Leonard repeatedly “dropped the F-bomb.” 

 

1

 A copy of this telephone conversation was admitted into evidence. 

2

 His sister had told him that was where Leonard worked. 
Case No. 2-09-19 

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{¶7} Leonard testified that he received a phone call at work from an 

unknown male who called himself “Joe”3

 and who was angry and threatening. 

Leonard testified that “Joe” told him to quit harassing Leonard’s neighbor or else 

the caller would come to Wapakoneta and kill Leonard. Leonard acknowledged 

that both he and Harshbarger were “pissed off” and both used profanity. 

{¶8} After the phone call from “Joe,” Leonard obtained Harshbarger’s 

phone number and contacted the police with a complaint of telephone harassment. 

Later that evening, Officer Eisert from the Wapakoneta Police Department called 

Harshbarger and talked to him about the complaint and the call Harshbarger had 

made to Leonard. The officer also testified at trial and a recording of that 

telephone conversation was admitted into evidence. During the conversation with 

Officer Eisert, Harshbarger explained that he called in order to politely ask 

Leonard to stop bothering the neighbors, but, after Leonard repeatedly responded 

with profanity, Harshbarger acknowledged that he warned Leonard that if he 

didn’t stop, he would “make his life miserable” or would “beat the shit out of 

him.” Harshbarger adamantly denied ever threatening to kill Leonard during his 

phone conversation with the officer and at trial. 

{¶9} The testimony of each of the three witnesses concerning the 

 

3

 Although there was testimony about the anonymous nature of the phone call from the unknown male 

calling himself “Joe,” there was also testimony that Harshbarger’s middle name was Joseph and that his 

family called him Joe. 
Case No. 2-09-19 

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telephone call was generally consistent with one another with the exception of (1) 

which party first used profanity and caused the conversation to become heated and 

threatening; and, (2) the extent to which Harshbarger threatened Leonard. 

{¶10} On April 23, 2009, the trial court issued its judgment finding 

Harshbarger guilty as charged with the offense of telephone harassment, a first 

degree misdemeanor. The sentencing hearing was held on June 2, 2009, and 

Harshbarger was ordered to pay a fine of $500, plus costs, and to complete one 

hundred hours of community service. He was also placed on unsupervised 

community control sanctions through June 1, 2011, and ordered not to have any 

contact with Leonard or members of Leonard’s household. 

{¶11} It is from this judgment that Harshbarger appeals, presenting the 

following two assignments of error for our review. 

First Assignment of Error 

The Court failed to apply the plain meaning of R.C. 2917.21(B) 

and the case law applicable thereto. 

Second Assignment of Error 

The verdict [sic] was against the manifest weight of the evidence. 

{¶12} In his first assignment of error, Harshbarger maintains that the 

statute creates a specific-intent crime and that the State failed to prove beyond a 

reasonable doubt that Harshbarger’s specific purpose in making the telephone call 

was to harass Leonard. He argues that the legislature has created this substantial 
Case No. 2-09-19 

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burden to limit the statute’s scope to criminal conduct, not the expression of 

offensive speech. 

{¶13} Harshbarger was charged under R.C. 2917.21(B), which states: 

No person shall make *** a telecommunication *** with purpose 

to abuse, threaten or harass another person.4

“When adjudicating a charge of telephone harassment, the key issue is not whether 

the alleged victim is annoyed or otherwise affected by the call; rather, the purpose 

of the person who made the call is at the heart of the offense.” State v. Patel, 7th 

Dist. No. 03 BE 41, 2004-Ohio-1553, ¶7, citing State v. Bonifas (1993), 91 Ohio 

App.3d 208, 211-212, 632 N.E.2d 531. The state has the burden of establishing 

that the caller’s specific purpose in making the telecommunication was to abuse, 

threaten, or harass another person.5

 State v. Ellison, 178 Ohio App.3d 734, 2008-

Ohio-5282, 900 N.E.2d 228, ¶16. See, also, 3 OJI-CR 517.21(B). A person acts 

purposely when it is his specific intention to cause a certain result. R.C. 

2901.22(A). 

{¶14} Harshbarger’s claim that the state failed to prove the element of 

intent challenges the sufficiency of the evidence to sustain his conviction. When 

 

4

 The relevant portion of the statute was abbreviated for clarity. The entire text of R.C. 2917.21(B) states: 

“No person shall make or cause to be made a telecommunication or permit a telecommunication to be made 

from a telecommunication device under the person’s control, with purpose to abuse, threaten, or harass 

another person.” 

5

 In contrast, the first section of the telecommunications harassment statute does not require the same 

specific intent as R.C. 2917.21(B), under which Harshbarger was charged. R.C. 2917.21(A) states that no 

person shall knowingly make a telecommunication to another if the caller does any one of several 

enumerated acts. 
Case No. 2-09-19 

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reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the 

adequacy of the evidence; that is, whether the evidence, if believed, reasonably 

could support a finding of guilt beyond a reasonable doubt. See State v. 

Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio- 52, 678 N.E.2d 541, 546 

(stating, “sufficiency is the test of adequacy”); State v. Jenks (1991), 61 Ohio 

St.3d 259, 273, 574 N.E.2d 492, 503. The standard of review is whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found all the essential elements of the offense beyond a 

reasonable doubt. Jenks, supra. 

{¶15} Our review of the record reveals considerable evidence indicating 

that Harshbarger’s purpose in making the telephone call was to try to solve the 

problem with his sister’s neighbor. Harshbarger continually maintained, both at 

trial and in his admissions to Officer Eisert, that he was merely trying to talk to 

Leonard about not causing trouble for the neighbors. Harshbarger admitted to 

eventually using profanity and threatening language, but insisted that was not the 

purpose of the telephone call and it occurred only after he was provoked by 

Leonard’s repeated profanity. 

{¶16} In his trial testimony, Leonard also acknowledged that Harshbarger 

said “you need to leave my family [alone] or whatever you know, and then he 

started to get pissed off ***.” (Trial Tr. p. 9, emphasis added.) In its judgment 
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entry, the trial court noted that “Mr. Leonard testified that Mr. Harshbarger 

ultimately told him that he would come down and shoot him or kick his f***in’ 

a** or send someone down to do it for him.” (Emphasis added.) The trial court 

first found that “[Harshbarger] told Mr. Leonard that he needed to leave his (Mr. 

Harshbarger’s loved ones) alone.” 

{¶17} In State v. Patel, supra, the trial court held that even though the 

message left by the defendant on the recipient’s answering machine included 

considerable profanity, “reprehensible” language, and name calling, the record 

indicated that the actual purpose of the telephone call was to inform the alleged 

victim that he could return to work if he did not cause trouble. 2004-Ohio-1553, 

at ¶48. 

[A]s the actual purpose of his making the call was not to use 

profanity and name calling, the mere inclusion of them in the 

message does not raise the incident to the level of telephone 

harassment. To hold so would essentially mean that any call 

placed with a legitimate purpose could somehow transform into 

telephone harassment by the use of profanity, an end that is not 

warranted by the existing statute. 

Id. See, also, State v. Ellison, supra, 2008-Ohio-5282 (evidence of specific intent 

to harass was insufficient to support conviction of telecommunications harassment 

where defendant’s actions could have served a legitimate purpose of warning 

others of what defendant believed to be criminal behavior on part of complainant). 
Case No. 2-09-19 

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{¶18} The fact that Harshbarger attempted to talk with his friend at the 

police department about the neighbor problem before he contacted Leonard further 

substantiated that this was his intended purpose. At trial, Leonard testified that 

Harshbarger was drunk and very “pissed off” right from the beginning of the call. 

However in the recording of the call Harshbarger made to the police dispatcher, 

just two minutes prior to talking with Leonard, his demeanor was calm and polite, 

and he did not sound intoxicated. 

{¶19} Evidence of a caller’s intent to annoy or harass may be direct or 

indirect. State v. Lucas, 7th Dist. No. 05 BE 10, 2005-Ohio-6786 (evidence was 

sufficient to support conviction where defendant called the house of his former 

girlfriend several times in the early morning hours and repeatedly hung up on the 

mother of his former girlfriend). Although the statute does not require multiple 

calls in order to constitute telephone harassment, the fact that the caller made 

numerous calls is often indicative of the caller’s specific purpose to harass. See, 

e.g., State v. Dulaney, 180 Ohio App.3d 626, 2009-Ohio-79, 906 N.E.2d 1147 

(finding that, by the third phone call containing threats and profanity, a rational 

trier of fact could have found defendant guilty of telephone harassment); State v. 

Dobrovich, 7th Dist. No. 04 BE 10, 2005-Ohio-1441 (holding that evidence was 

sufficient to show that defendant purposely called victim with intent to harass her, 

as required to support convictions for telephone harassment, where defendant 
Case No. 2-09-19 

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made numerous vulgar, threatening telephone calls to victim and victim told 

defendant “50 to 100 times” to stop calling her); State v. Baron, 8th Dist. No. 

81914, 2003-Ohio-5376 (finding that defendant had no legitimate purpose in 

continually calling and then hanging up over a period of two days, including 

approximately 25 times in less than an hour on the first day). In the case before 

us, Harshbarger made one telephone call to Leonard, lasting less than three 

minutes, and never called again. 

{¶20} In its judgment entry, the trial court concluded that “[w]hile the 

Court would believe from the language used by Mr. Leonard as a part of his 

testimony that he was profane in his portion of the conversation with the 

defendant, the Court finds that the defendant was not justified in the threat made to 

Mr. Leonard.” However, this is not the standard required for conviction under 

R.C. 2917.21(B). Although the trial court found that Harshbarger “was not 

justified” in making a threat to Leonard, there was no finding by the trial court that 

Harshbarger’s intent in making the call was to abuse, threaten, or harass Leonard. 

Nor did our review of the record find evidence that would support the conclusion, 

beyond a reasonable doubt, that Harshbarger’s specific intent in making the 

telephone call to Leonard was to abuse, threaten, or harass. 

{¶21} In commenting upon the “intent” standard required under a federal 

telephone harassment statute, the United States District Court stated that, “often in 
Case No. 2-09-19 

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the affairs of men *** conversations may be or become more or less 

unsatisfactory, unpleasant, heated, or vulgar. Up to a point these are the normal 

risks of human intercourse, and are and should be below the cognizance of the 

law. *** If this section were drawn or interpreted any more broadly, countless 

people would be criminalized.” United States v. Darsey (E.D.Pa. 1972), 342 

F.Supp. 311, 314. Although the wording of the federal statute6

 was somewhat 

narrower than the statute in this case, we believe that R.C. 2917.21(B)’s mandate 

requiring the finding of a specific “purpose to abuse, threaten, or harass,” in 

making the call serves a similar function. As discussed above, this particular 

section of the statute creates a specific-intent crime, requiring the state to prove the 

defendant’s specific purpose to harass beyond a reasonable doubt. State v. Ellison, 

2008-Ohio-5282, at ¶15. There is an important reason for requiring proof of 

specific intent: 

 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. 

Id. (Emphasis added.) 

{¶22} We find that the record does not contain any evidence that 

Harshbarger made the telephone call with purpose to abuse, threaten, or harass. 

 

6

The statute, former 47 U.S.C.A. § 223(1)((D), required that the intent be “solely to harass.” 
Case No. 2-09-19 

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The Dissent’s reasoning, however, presumes that the trial court must have found 

the required element of specific intent because it ultimately found that 

Harshbarger was guilty. Utilizing this reasoning would eliminate the need for 

appellate review because, if a defendant is found guilty, then a reviewing court 

must assume that the trial court found all of the elements of the crime and 

correctly applied the law. We agree with the Dissent’s assertion that the trial court 

was in a better position to weigh the evidence and assess the credibility of the 

witnesses. However, our review of the record shows that it was devoid of any 

evidence that the actual purpose of the call was to make a threatening statement 

prior to Harshbarger being provoked by Leonard. 

{¶23} We also acknowledge that 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, 484-85, 2001-Ohio-4, 739 N.E.2d 749; State v. Huffman (1936), 131 

Ohio St. 27, 1 N.E.2d 313. Although intent can be inferred from relevant 

circumstantial evidence, such an inference will not support a conviction if it is 

based on the mere stacking of inference upon inference. State v. Cowans, 87 Ohio 

St.3d 68, 78, 1999-Ohio-250, 717 N.E.2d 298. It is certainly not necessary, nor 

likely, for a defendant to directly admit an element of the offense. A trier of fact 
Case No. 2-09-19 

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must often make reasonable inferences to determine intent, but those inferences 

must be based upon something more than the fact that the defendant committed 

the act. Otherwise, there would be no need to require a mens rea as a necessary 

element for conviction. Although we certainly agree that intent can be inferred, 

there must be some evidence from which that intent could be inferred, i.e., 

multiple phone calls, calling after being told to stop, history between the parties, 

etc. There was no such evidence in this case. Here the Dissent is inferring that 

the trial court made the inference of intent because he was found guilty 

{¶24} There was never any question that Harshbarger made threatening 

statements to Leonard – Harshbarger himself acknowledged that fact from the 

beginning. And, he likely intended to make those threats at the time he uttered the 

words. But, it cannot be proven nor inferred from the facts in the record that he 

intended to threaten Leonard at the time he initially made the telephone call. 

When looking at the sufficiency of the evidence, an appellate court must view the 

facts in a light most favorable to the prosecution. However, it may not infer facts 

that have no basis other than the trial court’s ultimate conclusion. Given the facts 

before the trial court, even excluding Harshbarger’s own testimony concerning his 

intentions, it was not reasonable to infer that there was a specific intent to harass 

or threaten Leonard when he placed the telephone call. Harshbarger first tried to 

contact a police officer, which does not seem like typical behavior of someone 
Case No. 2-09-19 

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contemplating committing a crime a moment later. Harshbarger readily admitted 

to Officer Eisert that he threatened Leonard. He was not trying to hide his actions, 

and had no belief that he had done anything wrong when discussing the matter 

over the phone with the officer that evening. Harshbarger did not know Leonard, 

he only made one call to him, and that call lasted less than three minutes. Even 

the testimony of the “victim” himself indicated that Harshbarger’s first statements 

pertained to leaving his family alone, “and then” he “started to” get angry. A trier 

of fact may frequently find that a defendant’s denial of intent to commit a crime is 

not credible. However, in this case, there was a considerable amount of other 

evidence, including the words of the “victim” himself, supporting Harshbarger’s 

claims. Even the trial court found that it was credible that Leonard used profanity 

based upon the language he used in the courtroom. Leonard himself 

acknowledged that he used profanity. 

{¶25} We also agree with the Dissent in that a trial court does not 

necessarily have to specify findings as to each element of an offense. However, 

given the length of the judgment entry and the detailed findings, we wonder why 

the trial court commented upon the “justification” for the action, which was not an 

element of the offense, but made no comment or finding of any kind on the 

essential element of purpose. In a recent Eighth District telephone harassment 

case, the Court of Appeals reversed the trial court’s decision finding the defendant 
Case No. 2-09-19 

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guilty. Parma Heights v. Barber, 8th Dist. No. 93005, 2010-Ohio-3309. The

defendant claimed that the trial court had misapplied the law in finding him guilty 

because it was inconsistent to find that he had a “purpose to harass” while at the 

same time finding that the evidence showed that he was repeatedly calling his 

wife during the pendency of their divorce in an effort to reconcile. Id. at ¶21. 

Likewise, in this case, we find that the trial court’s finding that Harshbarger called 

Leonard to tell him to leave his family alone is inconsistent with a finding that his 

purpose in making the call was to threaten Leonard. 

{¶26} Based on all of the above, we do not find that there was sufficient 

evidence of all of the elements of R.C. 2917.21(B) to find Harshbarger guilty 

beyond a reasonable doubt. Harshbarger’s first assignment of error is sustained. 

Because our resolution of the first assignment of error is dispositive of this appeal, 

we find the remaining assignment of error is moot. The judgment of the Auglaize 

County Municipal Court is reversed and the matter is remanded for further 

proceedings consistent with this opinion. 

Judgment Reversed and 

 Cause Remanded 

ROGERS, J., Concurring Separately. 

{¶27} I concur fully in the majority opinion and the conclusion that there is 

no evidence that, at the time Appellant initiated his phone call, Appellant had the 

intent (purpose) to harass or threaten Leonard. The fact that he later developed that 
Case No. 2-09-19 

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intent and, in fact, did make a threat during the call does not satisfy the clear and 

unambiguous requirements of the statute. 

{¶28} I write separately because, in this case, the trial court issued written 

findings of fact, which is contrary to the directive contained in Crim.R. 23. When a 

bench trial is held, the court is to make a general finding; i.e. guilty or not guilty. 

See Crim.R. 23(C). 

SHAW, J., DISSENTS: 

{¶29} The evidence in the case is uncontroverted that the defendant 

threatened the victim over the phone. The “victim” testified that the defendant 

threatened him over the phone. The defendant admitted that he threatened the 

victim over the phone - but says that was not the purpose of the phone call. 

Weighing this testimony and the other evidence, the trial court as the trier of fact 

concluded that the defendant made the phone call with the purpose to threaten the 

victim and therefore found him guilty of violating R.C. 2917.21(B) which says that 

“no person shall make *** a telecommunication *** with purpose to *** threaten 

or harass another person.” 

{¶30} In light of the foregoing, the statement of the majority in paragraph 

22 that the record is devoid of “any evidence” as to a purpose to threaten is 

remarkable. The majority apparently believes that unless the defendant directly 
Case No. 2-09-19 

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admits an element of the offense, the trier of fact may not infer it from the other 

evidence. They are wrong. Mental purpose is almost always inferred from one's 

actions in a criminal case. Under the majority interpretation, a jury would not be 

permitted to infer a trespass with purpose to commit a theft offense in a burglary 

case from the fact that the defendant broke into the house and stole something, 

unless the defendant expressly stated that was his purpose. Theft could not be 

established from merely taking the property without the permission of the owner 

and selling it to another, unless the defendant expressly stated it was his purpose to 

permanently deprive the owner of the property. And killing another with a firearm 

would apparently never be sufficient to establish a purpose to cause the death of 

another unless the defendant stated that was his purpose. 

{¶31} In this case, the defendant’s admissions, the credibility (or lack 

thereof) of his denial of purpose, and the victim's testimony about the call, all 

provide an ample basis for any trier of fact to reasonably infer the purpose of the 

phone call. However, because the trial court simply chose to share its process of 

witness evaluation in the judgment entry of conviction by saying that “*** the court 

finds that the defendant was not justified in the threat made to Mr. Leonard,” the 

majority now says the trial court has failed to determine that a purposeful threat was 

made. 
Case No. 2-09-19 

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{¶32} Nothing in the trial court’s comment about the threat being 

unjustified is inconsistent with the obvious determination by the trial court in its 

judgment entry that the defendant made the phone call with the purpose to threaten 

the victim as charged. The trial court in this case set forth the charged offense at 

the outset of its final judgment entry. Although it might be good practice to do so, I 

know of no requirement that the trial court in a bench trial again recite and reiterate 

each element of the offense when announcing its judgment of “guilty as charged” at 

the end of the judgment entry. In any event, I fail to see how a finding that “the 

threat” was not justified indicates that the threat could not have been purposeful. 

{¶33} In sum, the trial court clearly did not find the defendant's denial of 

any purpose to threaten to be credible in view of what happened during the call. 

From the vantage of the appellate bench, the majority has simply “re-decided” that 

the defendant’s denial is not only credible but that it should outweigh the remaining 

evidence in the case as well. I fail to see how this complies with any prerogatives 

of the trier of fact known to Ohio law and/or any known appellate standards of 

review. On the contrary, it seems to me that instead of viewing the evidence in the 

light most favorable to the prosecution as required by State v. Jenks, supra - or 

even deferring to the findings of the trier of fact - the majority has actually weighed 

the evidence in the light most favorable to the defendant according to its own 

interpretation in order to overturn this judgment of conviction. 
Case No. 2-09-19 

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{¶34} For all of these reasons, I respectfully dissent. I would affirm the 

judgment of the trial court. 

/jlr