[Cite as State v. Rasawehr, 2020-Ohio-429.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MERCER COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 10-19-15 

 v. 

JEFFERY E. RASAWEHR, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Celina Municipal Court 

Trial Court No. 16CRB00943 

Judgment Affirmed 

Date of Decision: February 10, 2020 

 

APPEARANCES: 

 

Michael H. Stahl and William V. Stephenson for Appellant 

 Matthew K. Fox and Amy B. Ikerd for Appellee 
Case No. 10-19-15 

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ZIMMERMAN, J. 

{¶1} Defendant-appellant, Jeffery E. Rasawehr (“Rasawehr”), appeals the 

July 12, 2019 judgment entry of sentence of the Celina Municipal Court. For the 

reasons that follow, we affirm. 

{¶2} On October 25, 2016, a criminal complaint was filed in the Celina 

Municipal Court, charging Rasawehr with thirteen counts: Counts One, Two, 

Three, Four, and Five of menacing by stalking in violation of R.C. 2903.211(A)(1), 

first-degree misdemeanors, and Counts Six, Seven, Eight, Nine, Ten, Eleven, 

Twelve, and Thirteen of telecommunications harassment in violation of R.C. 

2917.21(A)(6), first-degree misdemeanors. (Doc. No. 2). On November 23, 2016, 

Rasawehr filed a written plea of not guilty to the charges. (Doc. No. 6). 

{¶3} On July 21, 2017, the State filed a motion to join this case with another 

criminal case of Rasawehr’s (case number 16CRB00942), which the trial court 

granted on August 1, 2017. (Doc. Nos. 27, 29). The cases proceeded to a jury trial 

on May 21-24, 2019. During the trial, the trial court dismissed Counts One, Two, 

Three, Four, Eight, Nine, Eleven, Twelve, and Thirteen.1

 (Doc. No. 107); (May 21-

24, 2019 Tr., Vol. IV, at 961). 

 

1

 During the trial (in case number 16CRB00942), the trial court dismissed Count Three and the State filed a 

motion to dismiss Count Thirteen, which the trial court dismissed. (Doc. No. 107). 
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{¶4} On May 24, 2019, the jury found Rasawehr guilty of Counts Five and 

Six, but not guilty of Counts Seven and Ten.2

 (Doc. Nos. 97, 104). On July 12, 

2019, the trial court sentenced Rasawehr to five years of community-control 

sanctions. (Doc. No. 105). 

{¶5} Rasawehr filed a notice of appeal on August 9, 2019 and raises five 

assignments of error for our review.3

 (Doc. No. 19). For ease of our discussion, we 

will address Rasawher’s first assignment of error, followed by his second and third 

assignments of error together, then his fourth and fifth assignments of error together. 

Assignment of Error No. I 

Mr. Rasawehr was denied his rights to a fair trial, before an 

impartial jury, his right to remain silent, and his right due [sic] 

process under the U.S. and Ohio Constitutions when, over the 

objection of the defense, the trial judge instructed the jury that 

Freedom of Speech was an Affirmative Defense which Mr. 

Rasawehr had to prove by a preponderance of the evidence 

{¶6} In his first assignment of error, Rasawehr argues that the trial court 

committed structural error by instructing the jury that he “bore a burden to prove 

beyond a reasonable doubt that that [sic] he had Freedom of Speech * * * .” 

(Appellant’s Brief at 12). Rasawehr also argues under his first assignment of error 

that the State committed structural error during its closing argument by stating that 

 

2

 The jury found Rasawehr not guilty of all charges in case number 16CRB00942. (Doc. No. 104). 

3

 Rasawehr did not file a notice of appeal in case number 16CRB00942. 
Case No. 10-19-15 

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the affirmative-defense instruction applied to Rasawehr’s menacing-by-stalking and 

telecommunications-harassment charges. 

Standard of Review 

{¶7} “A structural error is a constitutional defect that defies analysis by 

harmless error standards, because it affects the framework within which the trial 

proceeds, rather than simply being an error in the trial process itself.” State v. 

Fields, 12th Dist. Butler No. CA2005-03-067, 2005-Ohio-6270, ¶ 27, citing State v. 

Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 17. 

Structural error affects the substantial rights of a criminal defendant, 

even absent a specific showing that the outcome of the trial would 

have been different, and requires automatic reversal. Because a 

defendant is relieved of his burden to show prejudice, the finding of 

structural error is rare and limited to exceptional cases. 

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 53 (Moyer, J., concurring 

in judgment only), citing Perry at ¶ 18, citing Johnson v. United States, 520 U.S. 

461, 468, 117 S.Ct. 1544 (1997). The “‘limited class of cases’” recognizing 

structural error are cases “in which the errors permeate the ‘entire conduct of the 

trial from beginning to end,’ so that the trial court cannot ‘“reliably serve its function 

as a vehicle for determination of guilt or innocence.”’” Fields at ¶ 27, quoting 

Arizona v. Fulminante, 449 U.S. 279, 309-310, 111 S.Ct. 1246 (1991), quoting Rose 

v. Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101 (1986). Those “‘limited number 

of cases’” in which structural errors have been recognized include “‘a total 
Case No. 10-19-15 

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deprivation of the right to counsel; lack of an impartial trial judge; unlawful 

exclusion of grand jurors of the defendant’s race; the right to self-representation at 

trial; the right to a public trial; erroneous reasonable doubt instruction to the jury.’” 

Id., quoting Johnson at 468-469. 

Analysis 

{¶8} Before addressing whether the trial court’s jury instruction amounts 

structural error, we must examine whether the jury-instruction error that Rasawehr 

alleges to be structural error is properly before this court. In this case, Rasawehr 

was charged with menacing by stalking and telecommunications harassment. In 

case number 16CRB00942, Rasawehr was charged with obstructing official 

business. Prior to the start of trial, the trial court (at the State’s request) joined the 

charges in this case with Rasawehr’s charges in case number 16CRB00942. 

Importantly, Rasawehr neither objected to the joinder nor sought severance of the 

cases under Crim.R. 14. See State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 

¶ 21. 

{¶9} Contrary to Rasawehr’s contention on appeal, the trial court’s jury 

instructions were not unclear as to which case the instructions applied. In particular, 

in its jury instructions, the trial court instructed the jury as to the instructions 

relevant to each case. (See May 21-24, 2019 Tr., Vol. IV, at 1021, 1031); (Doc. No. 

100). After the trial court concluded its instructions relative to case number 
Case No. 10-19-15 

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16CRB00942, the trial court informed the jury that the remainder of its instructions 

related to both cases. (Id. at 1031). Importantly, with respect to the affirmativedefense instruction, the trial court specifically stated that it concluded “the 

instruction in Case Number 943” and that it was “mov[ing] on to instruction in Case 

Number 942” before giving the affirmative-defense instruction. (Id. at 1021). In 

other words, the affirmative-defense instruction to which Rasawehr objects is 

included with the trial court’s instructions in case number 16CRB00942. (See id. at 

1027-1031). Because the affirmative-defense instruction to which Rasawehr 

objects relates to case number 16CRB00943 and Rasawehr did not appeal from that 

case, that issue is not properly before this court and we cannot consider any alleged 

errors relating to it. See State v. Novak, 8th Dist. Cuyahoga No. 92586, 2009-Ohio6220, ¶ 9. 

{¶10} Accordingly, we turn to Rasawehr’s argument that the State’s 

suggestion in its closing argument that the affirmative-defense instruction applied 

to his menacing-by-stalking and telecommunications-harassment charges amounts 

to structural error. However, Rasawehr cites no authority that the principle of 

structural error applies to this type of error, and we see none. See State v. 

Cleavenger, 11th Dist. Portage No. 2019-P-0036, 2020-Ohio-73, ¶ 12; State v. 

Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, ¶ 58. See also State v. 

Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, ¶ 24. 
Case No. 10-19-15 

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{¶11} Because an error with the State’s closing argument does not fall into 

any recognized definition of structural error, and because Rasawehr’s trial counsel 

did not object to the State’s closing argument, this case calls for a plain-error 

analysis. See Wamsley ¶ 25; Cleavenger at ¶ 13. See also State v. Smith, 3d Dist. 

Hardin No. 6-14-14, 2015-Ohio-2977, ¶ 63, citing State v. Diar, 120 Ohio St.3d 

460, 2008-Ohio-6266, ¶ 139 and State v. Saleh, 10th Dist. Franklin No. 07AP-431, 

2009-Ohio-1542, ¶ 68. “Crim.R. 52(B) governs plain-error review in criminal 

cases.” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 55, citing 

State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “To demonstrate plain error, 

the defendant must demonstrate that the trial court deviated from a legal rule, the 

error was an obvious defect in the proceeding, and the error affected a substantial 

right.” State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-3524, ¶ 83, citing 

State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “The defendant must also demonstrate 

that the outcome of his trial would clearly have been different but for the trial court’s 

errors.” Id., citing State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v. 

Moreland, 50 Ohio St.3d 58 (1990). “We recognize plain error ‘“with the utmost 

caution, under exceptional circumstances and only to prevent a manifest miscarriage 

of justice.”’” Id., quoting State v. Landrum, 53 Ohio St.3d 107, 110 (1990), quoting 

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. 
Case No. 10-19-15 

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{¶12} “Prosecutors are afforded considerable latitude in closing argument.” 

State v. Encarnacion, 10th Dist. Franklin No. 16AP-817, 2017-Ohio-5530, ¶ 9, 

citing State v. Ballew, 76 Ohio St.3d 244, 255 (1996). “A prosecutor may comment 

on ‘“what the evidence has shown and what reasonable inferences may be drawn 

therefrom.”’” Id., quoting State v. Lott, 51 Ohio St.3d 160, 165 (1990), quoting 

State v. Stephens, 24 Ohio St.2d 76, 82 (1970), and citing State v. Leonard, 104 

Ohio St.3d 54, 2004-Ohio-6235, ¶ 159 (“A prosecutor may state an opinion if based 

on evidence presented at trial.”). See State v. McGuire, 3d Dist. Allen No. 1-13-47, 

2015-Ohio-1887, ¶ 81 (“In closing arguments, prosecutors are entitled to some 

latitude regarding what the evidence has shown and the inferences that can be 

drawn.”), citing Ballew at 255. 

{¶13} “The test regarding prosecutorial misconduct in closing arguments is 

whether the remarks were improper and, if so, whether they prejudicially affected 

substantial rights of the defendant.” Encarnacion at ¶ 9, citing State v. Smith, 14 

Ohio St.3d 13, 14 (1984). “A prosecutor’s isolated comments are not to be taken 

out of context and given their most damaging meaning.” Id., citing State v. Noling, 

98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 

U.S. 637, 647, 94 S.Ct. 1868 (1974). “Instead, an appellate court must review a 

closing argument in its entirety to determine whether prejudicial error occurred.” 

Id., citing Noling at ¶ 94, citing State v. Frazier, 73 Ohio St.3d 323, 342 (1995). 
Case No. 10-19-15 

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{¶14} Here, Rasawehr directs us to the beginning of the State’s closing 

argument during which it recites the First Amendment and acknowledges 

Rasawehr’s theory of the cases as being about the First Amendment. However, 

contrary to Rasawehr’s argument on appeal, the State did not reference Rasawehr’s 

argument that his conduct was privileged under the First Amendment as an 

affirmative defense at that juncture of its closing argument. Rather, the State was 

responding to the evidence presented at trial by Rasawehr that his conduct was 

privileged under the First Amendment, which it is permitted to do. Moreover, the 

only reference to the issue appears in the State’s rebuttal-closing argument in 

relation to case number 16CRB00943, which is not before us. (See May 21-24, 

2019 Tr., Vol. IV, at 1002-1003). Accordingly, we cannot say that the State’s 

remarks were improper. 

{¶15} Nevertheless, even if the State’s remarks were improper, Rasawehr 

cannot demonstrate that he was prejudiced by the State’s closing argument—that is, 

Rasawehr cannot demonstrate that the outcome of his trial would have been 

different. See State v. Thompson, 3d Dist. Henry No. 7-16-10, 2017-Ohio-792, ¶ 

26. Indeed, in its jury instructions, the trial court not only instructed the jury that 

the affirmative-defense instruction applied only as to case number 16CRB00942 (as 

we previously discussed), but the trial court instructed the jury prior to opening 

statements (and in its jury instructions) that “[e]vidence does not include * * * 
Case No. 10-19-15 

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closing arguments of counsel.” (May 21-24, 2019 Tr., Vol. IV at 1011); (Doc. No. 

100). (See also May 21-24, 2019 Tr., Vol. I, at 159-160). “A jury is presumed to 

follow and comply with instructions given by the trial court.” State v. Palmer, 12th 

Dist. Butler No. CA2013-12-243, 2014-Ohio-5491, ¶ 27, quoting State v. 

Carpenter, 12th Dist. Butler No. CA2005-11-494, 2007-Ohio-5790, ¶ 20, citing 

Pang v. Minch, 53 Ohio St.3d 186 (1990). See also State v. Jones, 135 Ohio St.3d 

10, 2012-Ohio-5677, ¶ 194. Furthermore, there is no evidence that the jury failed 

to follow the trial court’s jury instructions because the jury found Rasawehr not 

guilty of two of the charges that it was presented in this case and all of the charges 

that it was presented in case number 16CRB00942. Therefore, Rasawehr cannot 

demonstrate that he was prejudiced by the State’s closing argument. 

{¶16} Accordingly, Rasawehr’s first assignment of error is overruled.

Assignment of Error No. II 

As to Count Five the prosecution failed to present sufficient 

evidence to prove every element of Menacing by Stalking as 

required by the United States and Ohio Constitutions 

Assignment of Error No. III 

As to Count Six, the prosecution failed to present sufficient 

evidence to prove every element of Telecommunications 

Harassment as required by the United States and Ohio 

Constitutions 

{¶17} In his second and third assignments of error, Rasawehr contends that 

his menacing-by-stalking and telecommunications-harassment convictions are 
Case No. 10-19-15 

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based on insufficient evidence. In particular, under his second assignment of error, 

Rasawehr argues that his menacing-by-stalking conviction is based on insufficient 

evidence because the State failed to prove that the victim suffered mental distress. 

In his third assignment of error, Rasawehr specifically argues that his 

telecommunications-harassment conviction is based on insufficient evidence 

because the State presented insufficient evidence that he “uttered a threatening, 

intimidating, menacing, coercive or obscene” statement. (Appellant’s Brief at 16). 

Standard of Review 

{¶18} “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.” State v. Jenks, 61 Ohio 

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional 

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, 

“[t]he 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. “In deciding if the 

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the 

credibility of witnesses, as both are functions reserved for the trier of fact.” State v. 

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, 
Case No. 10-19-15 

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citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). 

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight 

of the evidence.”), citing Thompkins at 386. 

Analysis 

{¶19} We begin by addressing Rasawehr’s sufficiency-of-the-evidence 

argument as it relates to his menacing-by-stalking conviction, followed by his 

sufficiency-of-the-evidence argument as it relates to his telecommunicationsharassment conviction. See State v. Velez, 3d Dist. Putnam No. 12-13-10, 

2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 

WL 355190, *1 (Mar. 26, 1999). 

{¶20} Rasawehr was convicted of menacing by stalking in violation of R.C. 

2903.211(A)(1), which provides 

No person by engaging in a pattern of conduct shall knowingly cause 

another person to believe that the offender will * * * cause mental 

distress to the other person * * * . In addition to any other basis for 

the other person’s belief that the offender will cause * * * mental 

distress to the other person * * * , the other person’s belief or mental 

distress may be based on words or conduct of the offender that are 

directed at or identify a corporation, association, or other organization 

that employs the other person or to which the other person belongs. 

{¶21} On appeal, Rasawehr argues only that there is insufficient evidence 

that the victim suffered mental distress. Because it is the only element that 

Rasawehr challenges on appeal, we will review the sufficiency of the evidence 
Case No. 10-19-15 

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supporting only the mental-distress element of the offense. The statute defines 

mental distress as “[a]ny mental illness or condition that involves some temporary 

substantial incapacity” or “[a]ny mental illness or condition that would normally 

require psychiatric treatment, psychological treatment, or other mental health 

services, whether or not any person requested or received psychiatric treatment, 

psychological treatment, or other mental health services.” R.C. 2903.211(D)(2). 

{¶22} Rasawehr does not dispute that the State presented evidence that he 

“exacerbated an already existing mental illness for which the [victim] had been 

under in-patient psychiatric care on multiple occasions” and “[d]ue to [his] actions, 

[the victim] claim[ed] to have needed to see her counselor more often, and that her 

medication changed.” (Appellant’s Brief at 15). Instead, Rasawehr argues that he 

cannot be convicted of menacing by stalking because the State did not present 

evidence “of a ‘mental illness or condition’ suffered by the [victim], triggered solely 

by Mr. Rasawehr’s conduct * * * .” (Id. at 15). Rasawehr’s argument is misplaced. 

“[T]he statute does not require that the victim actually suffered mental distress.”4

 

State v. Beckwith, 8th Dist. Cuyahoga No. 104683, 2017-Ohio-4298, ¶ 14, citing 

State v. Horsley, 10th Dist. Franklin No. 05AP-350, 2006-Ohio-1208, ¶ 47. “‘The 

 

4

 Ohio courts of appeal disagree as to “whether R.C. 2903.211(A)(1) requires an alleged stalking victim to 

show actual mental distress.” Fondessy v. Simon, 142 Ohio St.3d 147, 2014-Ohio-4638, ¶ 2, 18 (Kennedy, 

J., dissenting). See also R.G. v. R.M., 7th Dist. No. 17 MA 0004, 2017-Ohio-8918, ¶ 13-14 (acknowledging 

the conflict). This district has concluded that R.C. 2903.211(A)(1) requires only that the victim believe that 

the stalker will cause him or her mental distress. See, e.g., Holloway v. Parker, 3d Dist. Marion No. 9-12-

50, 2013-Ohio-1940, ¶ 23. Nevertheless, under either application of the statute, the result is the same in this 

case. 
Case No. 10-19-15 

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state need only show that a defendant knowingly caused the victim to believe that 

he would cause her mental distress or physical harm.’” Id., quoting Horsley at ¶ 47. 

Accordingly, the victim’s testimony (as conceded by Rasawehr above) was 

sufficient to meet the statutory definition of mental distress. See Horsely at ¶ 48; 

State v. Szloh, 189 Ohio App.3d 13, 2010-Ohio-3777, ¶ 27 (2d Dist.). 

{¶23} Furthermore, Rasawehr contends that he cannot be convicted of 

menacing by stalking because “impos[ing] criminal liability for commentary about 

a wrongful killing because it upsets the killer is an unreasonable construction of the 

statute and contrary to good public policy.” (Appellant’s Brief at 15). Under the 

State’s theory of the case, based on the bill of particulars, the menacing-by-stalking 

charge alleged in Count Five relates to Rasawehr’s conduct on September 26, 2016. 

(Doc. No. 11). (See also May 21-24, 2019 Tr., Vol. IV, at 1014); (Doc. No. 100). 

At trial, the State presented evidence that (on September 26, 2016) Rasawehr sent 

the victim text messages stating the following: 

What did you do twenty year [sic] ago today 

Are u [sic] with kids or are u [sic] in a mental institution 

Josh implied u r [sic] in a mental institution 

If I do not get an answer I am going to have police stop and check 

tonight 

Calling police now 
Case No. 10-19-15 

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(May 21-24, 2019 Tr., Vol. II, at 448-452); (State’s Exs. 34, 35). The State also 

presented a September 26, 2016 voicemail message left by Rasawehr on the 

victim’s phone, which was played for the jury. (May 21-24, 2019 Tr., Vol. II, at 

462-463); (State’s Ex. 50). In the voicemail message, Rasawehr can be heard 

saying that the victim “should remember th[at] day well” because “21 years ago 

[she] took [her] pills and murdered” two men, and Rasawehr can be heard asking 

the victim if she “remember[ed] murdering those two men.” (State’s Ex. 50). 

Further, Rasawehr can be heard stating that the victim “never paid the price for 

what [she] did” and that she should “sit at church and pray for killing those two 

men.” (Id.). 

{¶24} A rational trier of fact could infer from the series of text messages and 

voicemail message that Rasawehr knew that the messages would cause the victim 

to believe that he would cause her mental distress. See State v. Hoying, 2d Dist. 

Greene No. 2004-CA-71, 2005-Ohio-1366, ¶ 24. That is, a rational trier of fact 

could find that threatening to call (or actually calling) law enforcement to a person’s 

home is an act which will cause that person to believe that the caller will cause them 

mental distress. See Beckwith at ¶ 14 (noting that “the trier of fact can refer to its 

own experiences to determine whether the defendant’s conduct caused the 

emotional distress”), citing State v. Bilder, 99 Ohio App.3d 653, 665 (9th 

Dist.1994). Likewise, drawing on its own life experiences, a rational trier of fact 
Case No. 10-19-15 

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could find that the voicemail message in which Rasawehr accuses the victim of 

murder was intended to cause the victim to believe that he would cause her mental 

distress. See id.

{¶25} Nevertheless, “[t]he parties’ history is also relevant to establishing the 

elements of menacing by stalking.” State v. Erker, 8th Dist. Cuyahoga No. 107790, 

2019-Ohio-3185, ¶ 75, citing State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio8126, ¶ 114, citing State v. Hart, 12th Dist. Warren No. CA2008-06-079, 2009-

Ohio-997, ¶ 12 (“In prosecutions for menacing by stalking, the victim’s belief that 

the defendant will cause physical harm is an element of the offense which is often 

intertwined with their past interactions.”). See also State v. Smith, 3d Dist. Seneca 

No. 13-02-11, 2002-Ohio-5095, ¶ 18 (“While each of Smith’s actions taken alone 

may not rise to the level of criminal behavior under 2903.211, that determination 

changes when considering the cumulative effect of these encounters along with 

Smith’s intent to upset Donor and her actual mental distress.”). Here, the victim 

(who was married to Rasawehr) testified regarding Rasawehr’s pattern of conduct. 

Specifically, she testified that she “thought after the marriage was over, that the 

verbal abuse would stop but it never did. * * * [J]ust constant berating, constant * * 

* abuse, the verbal abuse continued through texts, voicemail, through [her] 

answering machine, through other people.” (May 21-24, 2019 Tr., Vol. II, at 442). 

Through the State’s Exhibits, the victim shared some of those texts, voicemails, and 
Case No. 10-19-15 

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social-media posts. (See id. at 443-467); (State’s Exs. 32, 33, 34, 35, 36, 37, 38, 

39). 

{¶26} Therefore, based on this evidence, we conclude that a rational trier of 

fact could have found beyond a reasonable doubt that Rasawehr caused the victim 

to believe that he would cause her mental distress. See State v. Shaver, 12th Dist. 

Warren No. CA96-09-094, 1997 WL 423138, *4 (July 28, 1997); Cleveland v. Scott, 

8th Dist. Cuyahoga No. 108305, 2019-Ohio-5244, ¶ 27. Accordingly, Rasawehr’s 

menacing-by-stalking conviction is based on sufficient evidence. 

{¶27} Having concluded that Rasawehr’s menacing-by-stalking conviction 

is based on sufficient evidence, we turn to the sufficiency of the evidence supporting 

Rasawehr’s telecommunications-harassment conviction. As an initial matter, we 

note that Rasawehr offers no support for his argument that his telecommunicationsharassment conviction is based on insufficient evidence. “[A] defendant has the 

burden of affirmatively demonstrating the error of the trial court on appeal.” State 

v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7, citing State v. Cook, 

9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “Moreover, ‘[i]f an argument 

exists that can support this assignment of error, it is not this court’s duty to root it 

out.’” Id., quoting Cook at ¶ 27. “App.R. 12(A)(2) provides that an appellate court 

‘may disregard an assignment of error presented for review if the party raising it 

fails to identify in the record the error on which the assignment of error is based or 
Case No. 10-19-15 

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fails to argue the assignment separately in the brief, as required under App.R. 

16(A).’” State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶ 

11, quoting App.R. 12(A)(2). “Additionally, App.R. 16(A)(7) requires that an 

appellant’s brief include ‘[a]n argument containing the contentions of the appellant 

with respect to each assignment of error presented for review and the reasons in 

support of the contentions, with citations to the authorities, statutes, and parts of the 

record on which appellant relies.’” (Emphasis added.) Id., quoting App.R. 

16(A)(7). Although Rasawehr failed to provide citations to the authorities and 

statutes that support his argument, in the interest of justice, we will address the 

merits of Rasawehr’s sufficiency-of-the-evidence argument. See State v. Thomas, 

3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 25. 

{¶28} Telecommunications harassment is codified under R.C. 2917.21, 

which provides, in relevant part: 

(A) No person shall knowingly make or cause to be made a 

telecommunication, or knowingly permit a telecommunication to be 

made from a telecommunications device under the person’s control, 

to another, if the caller does any of the following: 

* * * 

(6) Knowingly makes any comment, request, suggestion, or 

proposal to the recipient of the telecommunication that is threatening, 

intimidating, menacing, coercive, or obscene with the intent to abuse, 

threaten, or harass the recipient. 

R.C. 2917.21(A)(6). 
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{¶29} On appeal, Rasawehr argues only that there is insufficient evidence 

that he “uttered a threating, intimidating, menacing, coercive or obscene” statement. 

(Appellant’s Brief at 16). Because it is the only element that he challenges on 

appeal, we will review the sufficiency of the evidence supporting only whether 

Rasawehr made a threatening, intimidating, menacing, coercive, or obscene 

statement. Although the terms “threatening,” “intimidating,” “menacing,” 

“coercive,” and “obscene” have not been defined within the meaning of R.C. 

2917.22, “[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 everyday meaning of these words.” State v. 

Stanley, 10th Dist. Franklin No. 06AP-65, 2006-Ohio-4632, ¶ 13, citing State v. 

Dennis, 3d Dist. Allen No. 1-97-42, 1997 WL 691448, *2 (Oct. 30, 1997). See 

Hamilton v. Combs, 12th Dist. Butler No. CA2018-02-026, 2019-Ohio-190, ¶ 21. 

Indeed, several of the terms have been defined (by applying the everyday meaning 

of the word) in other circumstances under Ohio’s criminal code. See, e.g., State v. 

Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, ¶ 39-40 (defining the terms “threat” and 

“intimidation” under R.C. 2921.04); State v. Woods, 48 Ohio St.2d 127, 136 (1976) 

(defining the term “coercion” under R.C. 2929.04), vacated on other grounds, sub 

nom. Woods v. Ohio, 438 U.S. 910, 98 S.Ct. 3133 (1978). 
Case No. 10-19-15 

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{¶30} The term “threat” “has been defined 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.’” In re C.W., 1st Dist. Hamilton No. C-180677, 

2019-Ohio-5262, ¶ 16, quoting Cress at ¶ 36, citing Webster’s Third New 

International Dictionary 2382 (1986). “‘It connotes almost any expression of intent 

to do an act of harm against another person irrespective of whether that act is 

criminal.’” Id., quoting Cress at ¶ 36. “The term ‘threat’ represents a range of 

statements or conduct intended to impart a feeling of apprehension in the victim, 

whether of bodily harm, property destruction, or lawful harm, such as exposing the 

victim’s own misconduct.’” State v. Price, 5th Dist. Delaware No. 2019 CA 00019, 

2020-Ohio-132, ¶ 29, quoting Cress at ¶ 39. 

{¶31} “Intimidation” by definition involves the creation of fear in a victim, 

and the very nature of a threat is the creation of fear of negative consequences for 

the purpose of influencing behavior.” Cress at ¶ 40. And, “menacing” generally 

means “a show of intention to inflict harm: a threatening gesture, statement, or act.” 

Webster’s Third New International Dictionary 1409 (2002). 

{¶32} Further, “[c]oercion is generally defined more broadly to include 

undue influence and other lesser forms of compulsion.” Woods at 136. “‘Coercion’ 

may include a compulsion brought about by moral force or in some other manner 

with or without physical force.’” State v. Moore, 8th Dist. Cuyahoga No. 105285, 
Case No. 10-19-15 

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2018-Ohio-1825, ¶ 36, quoting Woods at 136. “These judicial definitions of 

coercion correspond to the common use of the word.” Woods at 136. Indeed, 

“Webster’s Third New International Dictionary defines coercion as ‘the act of 

coercing: use of physical or moral force to compel to act or assent,’ and to coerce 

as ‘to restrain, control or dominate, nullifying individual will or desire (as by force, 

power, violence, or intimidation).’” Id., quoting Webster’s Third New International 

Dictionary. 

{¶33} Finally, the everyday meaning of “obscene’ is something that is

“disgusting to the senses * * * because of some filthy, grotesque, or unnatural 

quality”; “grossly repugnant to the generally accepted notions of what is 

appropriate”; “offensive or revolting as countering or violating some ideal or 

principle: in the lewd or lustful [or] inciting or designed to incite the lewd or 

lustful”; or “marked by violation of accepted language inhibitions and by the use of 

words regard as taboo in polite usage;” “repulsive by reason of malignance, 

hypocrisy, cynicism, irresponsibility, crass disregard of moral or ethical principles.” 

Webster’s Third New International Dictionary 1557 (2002). See also State v. White, 

2d Dist. Montgomery No. 27749, 2018-Ohio-3076, ¶ 57 (applying R.C. 2907.01(F) 

to define the term “obscene materials”). 

{¶34} Under the State’s theory of the case, based on the bill of particulars, 

the telecommunications-harassment charge alleged in Count Six relates to 
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Rasawehr’s conduct in September 2016. (Doc. No. 11). (See also May 21-24, 2019 

Tr., Vol. IV, at 1016-1017); (Doc. No. 100). In addition to the text messages and 

voicemail sent to the victim by Rasawehr on September 26, 2016 (that we addressed 

above), the State also played a voicemail message which was left by Rasawehr on 

the victim’s phone in September 2016. (May 21-24, 2019 Tr., Vol. II, at 464-465); 

(State’s Ex. 5). In that voicemail message, Rasawehr can be heard saying that the 

victim can “record all that [she] wants” because “the hillbillies in Mercer County 

will cover [her] ass” but that he is “going to take [the Mercer County Sheriff] out, 

[he] is still taking that mother fucker out.” (State’s Ex. 50). Rasawehr can further 

be heard informing the victim that she should change her voice recording because 

she sounds “measly,” “pathetic,” and “whiny,” and Rasawehr declares “no wonder 

[she] pops so many pills.” (Id.). 

{¶35} Based on that evidence, we conclude that a rational trier of fact could 

have found beyond a reasonable doubt that Rasawehr made a threating, intimidating, 

menacing, coercive, or obscene statement. Indeed, the September voicemail 

includes Rasawehr’s expression of an intention to inflict injury to the Mercer 

County Sheriff—that is, a threating and menacing statement—as a means of 

creating fear in the victim, which results in an intimidating and coercive statement. 

Further, Rasawehr uses profane language during the call as well as demeaning terms 

for Mercer County officials and the victim—statements, which fit within the 
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everyday meaning of the word “obscene.” Accordingly, Rasawehr’s 

telecommunications-harassment conviction is based on sufficient evidence. 

{¶36} For these reasons, Rasawehr’s second and third assignments of error 

are overruled. 

Assignment of Error No. IV 

As applied to the facts of this case, a conviction under the 

Menacing by Stalking statute violates the United States First 

Amendment, and Sect. 10, Art I of the Ohio Constitution and Due

Process under both Constitutions 

Assignment of Error No. V 

As applied to the facts of this case, a conviction under the 

Telecommunications Harassment statute violates the United 

States First Amendment, and Sect. 10, Art I of the Ohio 

Constitution and Due Process under both Constitutions. 

{¶37} In his fourth and fifth assignments of error, Rasawehr argues that the 

menacing-by-stalking and telecommunications-harassment statutes are 

unconstitutional as applied to him. In particular, under his fourth assignment of 

error, Rasawehr contends that the menacing-by-stalking statue is unconstitutional 

because “[n]o one could ever know what speech would cause a mentally ill person 

distress * * * .” (Appellant’s Brief at 18). Under his fifth assignment of error, 

Rasawehr specifically argues that the telecommunications-harassment statute is 

unconstitutional because “if the statute is construed in such a way that his comment 

was, ‘threatening, intimidating, menacing, coercive, or obscene[,] the limited 
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language in the statute would become meaningless and the so [sic] would fail to 

provide the required notice under the void for vagueness doctrine.” (Id. at 19). 

{¶38} As an initial matter, we note that Rasawehr failed to challenge the 

constitutionality of R.C. 2903.211 or 2917.21 prior to or at trial. “The Supreme 

Court of Ohio has held that, ‘“[f]ailure to raise at the trial court level the issue of the 

constitutionality of a statute or its application, which issue is apparent at the time of 

trial, constitutes a waiver of such issue and a deviation from this state’s orderly 

procedure, and therefore need not be heard for the first time on appeal.”’” State v. 

Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶ 29, quoting State v. Rice, 3d 

Dist. Allen Nos. 1-02-15, 1-02-29, and 1-02-30, 2002-Ohio-3951, ¶ 7, quoting State 

v. Awan, 22 Ohio St.3d 120 (1986), syllabus. “However, the waiver doctrine set 

forth by Awan is discretionary; thus, ‘even where waiver is clear, a reviewing court 

may consider constitutional challenges to the application of statutes in specific cases 

of plain error or where the rights and interests involved may warrant it.’” Id., 

quoting Rice at ¶ 7, citing In re M.D., 38 Ohio St.3d 149 (1988), syllabus. 

Nevertheless, “‘“discretion will not ordinarily be exercised to review such claims, 

where the right sought to be vindicated was in existence prior to or at the time of 

trial.”’” Id., quoting Rice at ¶ 7, quoting State v. 1981 Dodge Ram Van, 36 Ohio 

St.3d 168, 170-171 (1988), quoting State v. Woodards, 6 Ohio St.2d 14, 21 (1966). 
Case No. 10-19-15 

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{¶39} The constitutional issues Rasawehr raises on appeal were available to 

him before and at the time of his trial. Therefore, Rasawehr waived the issues on 

appeal, and we decline to address them. 

{¶40} Rasawehr’s fourth and fifth assignments of error are overruled.

{¶41} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and PRESTON, J., concur. 

/jlr