[Cite as State v. Pierce,
2024-Ohio-5357.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-12-015
: OPINION
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:
GARY W. PIERCE, :
Appellant. :
CRIMINAL APPEAL FROM BROWN COUNTY MUNICIPAL COURT
Case No. CRB 2000753 A, B
Zachary A. Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant
Prosecuting Attorney, for appellee.
Colin P. Cochran, for appellee.
M. POWELL, J.
{¶ 1} Appellant, Gary Pierce, appeals his conviction in the Brown County
Municipal Court for menacing and telecommunications harassment.
{¶ 2} This case stems from the mandatory 2020 shutdown of the Brown County
Public Library and its gradual reopening in the spring and summer of that year due to the
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COVID-19 pandemic. Tonya Hensley Cooper is the manager of the library's Georgetown
branch and Lynn Harden is the library's executive director. Appellant, who frequently
used the Georgetown branch to manage his businesses, was frustrated and upset by the
library's closure and slow gradual reopening.
{¶ 3} Beginning in May 2020, appellant began calling the Georgetown branch
daily to question why the library was closed and inquire as to when it would reopen.
Cooper was the primary recipient of appellant's phone calls. As time went on, appellant's
phone calls became more agitated and hostile, demanding that Cooper override the
shutdown orders and reopen the library. Cooper told appellant 10-15 times to stop calling
about the closure and that she would not continue to discuss the closure with him.
Appellant also left three voicemails on May 11, 2020, May 20, 2020, and June 9, 2020.
All three were received by Cooper. Appellant threatened Cooper and Harden with
lawsuits and loss of their jobs, named-called Harden, and issued a warning each time.
Specifically, the May 11, 2020 voicemail stated that appellant had left Harden with a
warning to open the library or resign. It also requested that Cooper pressure Harden to
reopen the library "or get out of the way." The May 20, 2020 voicemail warned Harden
that this was her "final warning," warned her to reopen the library "or get another job, your
choice. Or worse yet, get put in jail for contempt of court, or receive a serious fine. I'm
serious about this," and once again asked her to "get this ridiculous nonsense stopped or
get yourself a real good lawyer. Your choice." The June 9, 2020 voicemail warned
Harden that this was "a final warning and a final chance to redeem yourself."
{¶ 4} By June 2020, the library had partially reopened. Appellant frequently
visited the library during this time frame but remained upset about the library's failure to
fully reopen. Appellant also continued to frequently call the library. Library personnel,
including Cooper, repeatedly asked appellant to refrain from contentious political
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discussions with the personnel and patrons. Nonetheless, appellant persisted with his
threatening, aggressive, and condescending behavior. Cooper, as the branch manager,
especially felt the brunt of appellant's escalating harassment, as she protected the
personnel from him as much as possible. Cooper testified that appellant would "puff his
chest up" in an aggressive manner and berate her, told her that she did not know how to
run the library, threatened to have her fired, threatened to sue her, and repeatedly name-
called her boss, Harden. Cooper also described an incident during which a very agitated
appellant stood close to Cooper who was behind a reference desk. Feeling trapped,
Cooper asked appellant to move; he complied one minute later. Due to the foregoing,
Cooper felt dread whenever appellant called or visited the library and was concerned
about her safety and that of the library personnel at work.
{¶ 5} On July 17, 2020, appellant was charged with menacing, a fourth-degree
misdemeanor, and telecommunications harassment, a first-degree misdemeanor. The
matter proceeded to a jury trial. Cooper, Harden, and another library employee testified
on behalf of the state. A library patron testified on behalf of appellant. Testimony revealed
that the library personnel filed three incident reports regarding appellant in July 2020. On
December 1, 2020, the jury found appellant guilty as charged. The municipal court
sentenced appellant to a 25-day jail term for the menacing offense and to a consecutive
150-day jail term for the telecommunications harassment offense.
{¶ 6} Appellant now appeals his conviction for menacing and telecommunications
harassment in two assignments of error, arguing the convictions are not supported by
sufficient evidence.
{¶ 7} Whether the evidence presented at trial is legally sufficient to sustain a
verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386,
1997-Ohio-52.
The relevant inquiry in reviewing a claim of insufficient evidence is "whether, after viewing
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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." State
v. McKnight, 2005-Ohio-6046, ¶ 70. In making that determination, the appellate court will
not weigh the evidence or assess the credibility of the witnesses. State v. Walker,
55
Ohio St.2d 208, 212 (1978); State v. Renner,
2003-Ohio-6550, ¶ 16 (12th Dist.).
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE STATE DID NOT PROVIDE SUFFICIENT EVIDENCE TO SUPPORT
PIERCE'S CONVICTION FOR MENACING.
{¶ 10} Appellant argues that his conviction for menacing is not supported by
sufficient evidence because the state failed to prove he knowingly caused Cooper or the
library personnel to believe he would cause them physical harm.
{¶ 11} Appellant was convicted of menacing Cooper in violation of R.C.
2903.22(A)(1), which provides that "[n]o person shall knowingly cause another to believe
that the offender will cause physical harm to the person or property of the other person .
. . ." "A person acts knowingly, regardless of purpose, when the person is aware that the
person's conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person is aware that such
circumstances probably exist." R.C. 2901.22(B). Absent a defendant's admission
regarding his knowledge, whether a person acts knowingly can only be determined from
all the surrounding facts and circumstances, including the doing of the act itself. State v.
Kaufhold, 2020-Ohio-3835, ¶ 14 (12th Dist.).
{¶ 12} To prove the elements of menacing, the state must show that the victim
subjectively believed there was a possibility of physical harm. State v. Harvey, 2023-
Ohio-4454, ¶ 29 (6th Dist.). "Menacing can be implied by the offender's actions without
a verbal threat, and under ordinary circumstances [t]he key is whether the victim
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genuinely believes that he or she is facing physical harm to person or property." Id.
"Physical harm" is "any injury, illness, or other physiological impairment, regardless of its
gravity or duration." R.C. 2901.01(A)(3).
{¶ 13} We find that appellant's conviction for menacing was supported by sufficient
evidence. Although appellant never explicitly threatened Cooper or the library personnel
with physical harm, his behavior was at all times agitated and hostile, whether during his
numerous phone calls, his voicemails, or in person at the library. Appellant repeatedly
threatened Cooper with lawsuits and loss of her job, told her she did not know how to run
the library, and name-called and berated her. Although Cooper and library personnel
repeatedly asked appellant to refrain from contentious political discussions with the
personnel and patrons, appellant persisted with his behavior. During these in-person
tirades, appellant would puff up his chest, his demeanor was contentious and very
condescending, and the tone of his voice was hardened and aggressive. A very agitated
appellant also once cornered Cooper behind a reference desk.
{¶ 14} The library personnel expressed safety concerns to Harden. In turn, Harden
was concerned about the safety of the personnel, not knowing what might happen next.
Cooper testified that appellant's aggressive demeanor was concerning and unnerving and
that she was concerned about her safety and that of the library personnel because they
did not know what appellant was going to do next. In fact, as time went on, appellant's
behavior worsened and became more "hateful and nasty." Cooper testified that as a
result, the May-July 2020 timeframe was very stressful, that she felt dread whenever
appellant called or visited the library, and that appellant's constant berating and threats
of lawsuits caused her stress. Thus, the state presented sufficient evidence that appellant
knowingly caused Cooper to believe that he would cause her physical harm.
{¶ 15} We therefore find that appellant's conviction for menacing is supported by
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sufficient evidence. Appellant's first assignment of error is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE STATE DID NOT PROVIDE SUFFICIENT EVIDENCE TO SUPPORT
PIERCE'S CONVICTION FOR TELECOMMUNICATIONS HARASSMENT.
{¶ 18} Appellant argues that his conviction for telecommunications harassment is
not supported by sufficient evidence because his telecommunications were simply made
with the intent to express his dissatisfaction with a government employee regarding the
management and closure of the library. Appellant also argues that his
telecommunications were protected by his First Amendment right to free speech.
{¶ 19} Appellant was convicted of telecommunications harassment in violation of
R.C. 2917.21(A)(1), which provides in relevant part that "[n]o person shall knowingly make
. . . a telecommunication . . . to another, if the caller . . . [m]akes the telecommunication
with purpose to harass, intimidate, or abuse any person at the premises to which the
telecommunication is made, whether or not actual communication takes place between
the caller and a recipient."
{¶ 20} The critical inquiry of telecommunications harassment is not whether the
recipient of the communication was in fact threatened, harassed, or annoyed by the
communication, but rather, whether the purpose of the person who made the
communication was to abuse, threaten, or harass the person called. Hamilton v. Combs,
2019-Ohio-190, ¶ 20 (12th Dist.). In the absence of direct evidence, a defendant's
purpose or intent to threaten, harass, or abuse may be established by the facts and
circumstances surrounding the communication.
Id. A person acts purposely "when it is
his specific intention to cause a certain result, or, when the gist of his 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.
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2901.22(A).
{¶ 21} R.C. 2917.21 does not define "abuse," "intimidate," or "harass."
"Harassment" has been defined as "[w]ords, conduct, or action (usually repeated or
persistent) that, being directed at a specific person, annoys, alarms, or causes substantial
emotional distress in the person and serves no legitimate purpose." A.W. v. Kircher,
2024-Ohio-2115, ¶ 45 (12th Dist.). "Abuse" has been defined as "cruel or violent
treatment of someone; [specifically] physical or mental maltreatment, often resulting in
mental, emotional, sexual, or physical injury."
Id. Finally, "intimidate" has been defined
as to "make timid or fearful: inspire or affect with fear: frighten." State v. Cress, 2006-
Ohio-6501, ¶ 39.
{¶ 22} We find that appellant's conviction for telecommunications harassment was
supported by sufficient evidence. Although a violation of R.C. 2917.21 does not require
multiple communications, the fact that a defendant made numerous calls or sent
numerous communications is often indicative of the defendant's specific purpose to
harass. Combs, 2019-Ohio-190 at ¶ 23. Testimony from witnesses that a defendant was
previously told not to call the recipient may also be evidence pertinent to the defendant's
intent when placing the calls. State v. Davidson,
2009-Ohio-6750, ¶ 20 (12th Dist.).
Despite being told 10-15 times by Cooper to stop calling the library regarding its closure,
appellant repeatedly and persistently called the library between May and July 2020,
leaving voicemails if necessary, including after the library partially reopened and appellant
was able to use it. Appellant's telecommunications repeatedly threatened Cooper and
Harden with lawsuits and loss of their jobs in a confrontational manner. Notwithstanding
appellant's claim that his telecommunications were simply to express his dissatisfaction
with the management and closure of the library, the substantial number of
telecommunications and their aggressive tone plainly evidenced appellant's purpose to
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harass and intimidate Cooper and Harden to open the library on his terms. Thus, the
state presented sufficient evidence that appellant sent the communications with purpose
to harass and intimidate Cooper and Harden.
{¶ 23} Appellant also argues that his telecommunications were protected by his
First Amendment right to free speech. Criminal statutes proscribing threats cannot be of
unlimited breadth due to the constitutional protections afforded to speech. State v. Shuck,
2020-Ohio-6989, ¶ 13 (9th Dist.). What is a threat must be distinguished from what is
constitutionally protected speech.
Id. "The terms of R.C. 2917.21 are not directed at the
restriction of the communication of ideas, but are aimed at the regulation of specific
conduct–the making of a telephone call with the purpose to harass, abuse, or annoy
another." Akron v. Hawthorne,
1989 Ohio App. LEXIS 407, *3 (9th Dist. Feb. 8, 1989).
"What is proscribed is the making of a telephone call with the requisite intent and in the
specified manner. Furthermore, the statute may be violated even when no speech or
conversation at all occurs."
Id. "Thus, the statute focuses on the caller rather than on the
content of the speech; it is the intent with which the call is made that establishes the
criminality of the conduct."
Id. "By specifying the intent with which the call must be made
and the nature of the conduct prohibited, the statute clearly demonstrates that the
proscribed activities have no protection under the First Amendment." Id. at *3-4;
Shuck
at ¶ 13.
{¶ 24} We therefore find that appellant's conviction for telecommunications
harassment is supported by sufficient evidence. Appellant's second assignment of error
is overruled.
{¶ 25} Appellant’s various pending motions and petitions or branches of any such
motions and petitions not specifically addressed herein are hereby denied.
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{¶ 26} Judgment affirmed.
HENDRICKSON, J., concurs.
BYRNE, P.J., dissents in part and concurs in part.
BYRNE, P.J., concurring in part and dissenting in part.
{¶ 27} I concur with and fully join the majority's analysis of Pierce's second
assignment of error, which concerns Pierce's conviction for telecommunications
harassment in violation of R.C. 2917.21(A)(1). I must, however, respectfully dissent from
the majority's analysis of Pierce's first assignment of error, which challenges Pierce's
conviction for menacing, for the reasons below.
I. Elements of the Menacing Offense
{¶ 28} R.C. 2903.22(A)(1) defines the offense of menacing as follows: "No person
shall knowingly cause another to believe that the offender will cause physical harm
to the person or property of the other person. . ." (Emphasis added.) The statute does
not require an overt or explicit threat. State v. Ellis, 2022-Ohio-2330, ¶ 9 (12th Dist.);
State v. Intihar,
2015-Ohio-5507, ¶ 10 (12th Dist.); In re P.T.,
2013-Ohio-3881, ¶ 18 (12th
Dist.). "'Rather, the statute proscribes a much broader spectrum of behavior by
criminalizing any conduct engaged in by a person knowing that such conduct would cause
another to believe the offender will cause the other person. . . physical harm.'"
Ellis at ¶
9, quoting
Intihar at ¶ 10. So while an overt or explicit threat is not required, the state still
must produce evidence demonstrating both that (1) the defendant acted knowingly in
causing the alleged victim to fear physical harm, and (2) "the victim subjectively believed
that there was a possibility of physical harm." State v. Harvey,
2023-Ohio-4454, ¶ 28-29
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(6th Dist.).
II. Analysis
{¶ 29} The majority points to evidence in the record that it believes satisfies the
elements of R.C. 2903.22(A)(1). The majority relies on evidence that Pierce was "agitated
and hostile" during "his numerous phone calls, his voicemails, or in person at the library,"
that he "repeatedly threatened Cooper with lawsuits and loss of her job, told her she did
not know how to run the library, and name-called and berated her." The majority also
points to the fact that Pierce "persisted" in engaging in "contentious political discussions
with the personnel and patrons," and that during "in-person tirades," he "would puff up his
chest, his demeanor was contentious and very condescending, and the tone of his voice
was hardened and aggressive." Finally, the majority notes that "a very agitated [Pierce]
also once cornered Cooper behind a reference desk."
{¶ 30} I disagree with the majority's analysis of this evidence.
{¶ 31} First, I begin with a basic question: what specific conduct did the jury
determine constituted the offense of menacing? This question should be easy to answer,
but it is not. The original complaint alleged that Pierce's menacing occurred on a specific
date: May 11, 2020. Prior to trial the state moved to amend the complaint, and the court
granted the motion. The amended complaint alleged that Pierce violated the menacing
statute during a broader range of dates: "[o]n or about and between May 11, 2020 to July
16, 2020." The signed jury verdict form states that the jury found Pierce guilty of menacing
"on or about and between May 11, 2020 to July 16, 2020."
{¶ 32} As a result, we do not know the date(s) on which Pierce engaged in the
behavior that the jury concluded constituted the offense of menacing or the specific
conduct at issue. Did the jury conclude that Pierce committed menacing when he left all
of the voicemail messages, or one of the voicemail messages in particular? Did the jury
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conclude that he committed menacing when he verbally spoke to Cooper by phone or in
person? Did the jury conclude he committed menacing when he threatened Cooper with
a lawsuit? Or was it when Pierce puffed up his chest? Or perhaps it was when Pierce
stood by Cooper's desk and did not move until a minute after she asked him to move?
Or was it the combination of some or all of these acts?
{¶ 33} If the menacing act was only one or more of Pierce's verbal and written
statements—whether in person, by telephone, or via voicemail message—then there was
insufficient evidence to prove menacing. The record reveals that in these
communications Pierce complained about the library's closing during the COVID
pandemic, threatened lawsuits, made accusations regarding Cooper and other library
employees, and made insulting comments. Such statements alone cannot constitute
menacing, as none of them involved either an explicit or implied threat of physical harm,
and there is no evidence that would allow a jury to conclude that Pierce knowingly caused
Cooper to fear physical harm when he made these statements.
{¶ 34} In fact, in the only communications for which we have complete details of
all words spoken by Pierce—that is, the three voicemail messages introduced into
evidence—Pierce was consistent in only threatening lawsuits and job consequences.
The text of those voicemail messages is below, with Pierce's threats noted with italicized
text.
{¶ 35} First, on May 11, 2020, Pierce left a voicemail message stating:
This is Gary Pierce for Tonya. I need to know the schedule
for the library reopening. Today is May the 11th. My number
is [Pierce's phone number], please don't call me before 11:30
a.m. Monday through Saturday. Tonya ya know as I left a
message for Ms. Harden, it's time to open the libraries. If I
can go into Subway, like I did last week, and order a sandwich,
ah, staying 6 feet away from the person who's preparing my
food and then walk out again, I should certainly be able to go
to the library and take out a video and take—and bring the
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other DVDs back. This is ridiculous. This is absolutely
ridiculous and unnecessary. The library didn't shut down in
2010, when there was the Swine Flu H1N1, and you know it
didn't, and nobody wore masks back then or anything else.
It's time for this silliness to stop. It really is. So ah, ya know
the hospitals aren't overloaded, the hospitals are laying
people off, Tonya, and Ms. Harden needs to know this, and
we need—I've already told her she needs to open the library.
I left her a warning, that she needs to open the library or she
needs to resign. And we need a competent director, and that's
all there is to it. And It's not just because of that. Ya know,
like the men's lights not getting fixed for two years and three
months—really? Ya know, February of 2018—really? Ok, it's
time to move along, and move forward, and move this library
into the future where it belongs and stop hanging on to the
past. And also, well, uh, well I've said enough. Ah, Please
call me with the opening schedule and please pressure Ms.
Harden to get it open or get out of the way, it's interfering
tortuously—there's a legal term for you—it's tortuously
interfering with my business.
{¶ 36} Second, on May 21, 2020, Pierce left a voicemail message stating:
Ms. Harden, please listen very, very, carefully. Today or
yesterday, as Judge Lucianni, in a Northern Ohio District,
ruled “open the state.” He said it's against the Ohio
Constitution for having some businesses closed and other
businesses open. Madam, get your libraries opened or get
charged with contempt of court. This is Gary Pierce, with your
final warning. Your foolishness and your over-protectiveness
is hurting my business. That's tortious interference with a
business. But there is now a bigger deal. If you continue to
leave the library closed, Ms. Harden, you will be in contempt
of a court order. Look it up for yourself with the organization
OhioConstitution.org. Get the libraries open now
[unintelligible] or get another job—your choice. Or worse yet,
get put in jail for contempt of court or receive a serious fine. I
am serious about this Ms. Harden. Again, this is Gary Pierce
from Georgetown and I do not appreciate this over-protective
nonsense being as how I can look out my north window and
see the beauty salon open with people obviously not six feet
apart while the library remains closed. Get this ridiculous
nonsense stopped or get yourself a real good lawyer—your
choice.
{¶ 37} Finally, on June 9, 2020, Pierce left a voicemail message stating:
Finally, the [voicemail recording] tone. This is Gary Pierce,
Ms. Harden, or shall I say Ms. Hardhead? I'm giving you a
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final warning and a final chance to redeem yourself. I am
going to back off on my warning about issuing a lawsuit
against you, even though the library wasn't open today, when
it could have and should have been, because Governor
DeWine, aka Mike Debraino, apparently is going to quit acting
up and open the state up on the 10th.. If however, you and
your so-called board of directors—the bunch of dummies—
can't figure out you need to open the library up the very same
way, Ms. Harden, that the Kentucky libraries are today, the
eight now open, then there will be a lawsuit in your near future,
I promise you that. Besides running the [unintelligible] energy
cooperative, Pierce Energy Conserving, I also run the RINO
Hunters and DINO Hunters PAC. We want to get people out
of government and out of bureaucracies, out of public service
that are not Ronald Reagan Republicans or at least John F.
Kennedy Democrats. If you do not fall into one of those
categories, ma'am, you need to do something else for a living.
Especially when the men's restroom lights have not been fixed
in the Georgetown Library since February a year and a half
ago. So no more appearances by me, extra library meetings,
there will be an appearance in court for you if you don't keep
your promises. And if you don't spend the library's money
more wisely than you have been frittering it away. Like I said
for every 5 dollars of public monies you get madam, you and
your board throw away at least 2 of the 5 and I can prove that,
and if you don't get your acts together. And by the way, get
rid of that clown Pointer, who doesn't know how to do proper
maintenance. Tell him I said so. Drags his feet, the library in
Georgetown, the lighting.
{¶ 38} The voicemails contain no statements that, even when viewed in the light
most favorable to the state, could be construed as suggesting Pierce would have known
that he was causing Cooper to fear physical harm. Even when Pierce stated an
ultimatum, he gave Cooper the choice of doing what he wanted or, in the alternative,
facing a lawsuit or the loss of her job. These three emails simply cannot support a jury
finding that Pierce knowingly caused Cooper to fear physical harm.
{¶ 39} If the menacing act was Pierce puffing up his chest, there was insufficient
evidence in the record to prove menacing. Cooper did not testify to what she meant when
she said that Pierce puffed up his chest. No testimony allowed the jury to determine
whether Cooper was speaking literally or figuratively. Even if we assume that Pierce was
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speaking literally, the mere act of "puffing up one's chest" cannot, in the circumstances of
this case, constitute sufficient evidence of menacing. Nor is there any evidence
suggesting that Pierce knowingly caused Cooper to fear physical harm when (and if) he
physically puffed up his chest.
{¶ 40} If the menacing act was Pierce standing by Cooper's desk and continuing
to talk for a minute before moving at Cooper's request, there is insufficient evidence in
the record to prove menacing. Here is Cooper's testimony on direct examination about
this incident:
[Cooper]: I was behind the desk there (pointing to the
screen), and he was toward the opening on the side. So,
unless I was –
[Prosecution]: So, Mr. Pierce --
[Cooper]: -- to squeeze --
[Prosecution]: -- is here?
[Cooper]: Yes, over a little bit more toward the --
[Prosecution]: Like, here?
[Cooper]: Over just a tad more the other way, toward the
corner of the door where the white sign is on the desk.
[Prosecution]: Okay. Here?
[Cooper]: Yes, so right in there.
[Prosecution]: Uh-huh.
[Cooper]: And he was standing there, and he was very
agitated. And I felt trapped in there. So, I asked him to move,
and so that I could get out of that space.
{¶ 41} Cooper said more about the incident at the desk when questioned by
Pierce's counsel:
[Defense Counsel]: You testified there was an occasion
where you were actually upstairs, seated at this place, at this
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desk (pointing to screen) and you -- he -- he engaged in -- and
however you described it, conversation, berating, whatever.
Here (pointing to screen), but that -- that took place when he
was standing where you felt that you couldn't egress from your
desk to get a -- get away?
[Cooper]: Correct.
[Defense Counsel]: So, you asked him to move so I could get
out of that space?
[Cooper]: I did not say it like that, no. I said -- I said,
"Would you please move?"
[Defense Counsel]: Okay. So, you asked him to please
move?
[Cooper]: Yes.
[Defense Counsel]: And I assume -- I didn't know the -- I didn't
-- I want to ask you, did he move?
[Cooper]: Not right away, but he did yes, eventually. Yes.
[Defense Counsel]: So, not right away meaning he had, you
know, he kept talking, or what -- what did he --
[Cooper]: Correct.
[Defense Counsel]: -- what -- how long was the -- he did
eventually?
[Cooper]: It was probably about a minute later.
[Defense Counsel]: Okay. And the conversation that he was
trying to engage upon you was still the same germane
conversation about opening the library or – or –
[Cooper]: Correct.
[Defense Counsel]: -- library issues?
[Cooper]: Yes.
Cooper then admitted that she did not know if she created an incident report after this
incident, and admitted that she did not call the police about this incident.
{¶ 42} Cooper never specifically testified about what Pierce said, or how he acted,
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in the "minute" between her asking him to move and Pierce moving. There is simply no
evidence in the record about this point. Cooper only agreed with her counsel's
characterization that Pierce was "trying to engage" her in a "conversation about opening
the library" or "library issues." As a result, the jury was presented with no evidence that
would allow it to conclude that Pierce knowingly caused Cooper to fear physical harm
when he stood by her desk. Instead, at best, a reasonable factfinder could find that
Cooper felt that Pierce's physical positioning was restraining her from moving freely and
she felt, as she put it, "trapped." But to go beyond this and conclude that she also felt
that Pierce would physically harm her was simply not supported by the record.
{¶ 43} There is one final incident that should be addressed. In July 2020 Cooper
called Pierce to inform him that he was no longer allowed on library property. During this
call, she testified, Pierce "cut me off and started yelling at me. He said I had no right and
could not keep him out of the library. And then he said, '[Cooper], this is your only
warning. Back off,' and he hung up the phone." Again, given the surrounding facts and
circumstances, the jury could not conclude that Pierce's statement, "This is your only
warning. Back off," could demonstrate that he knowingly caused Cooper to fear physical
harm.
{¶ 44} The acts I have just described, collectively or individually, might support a
menacing conviction in a different case if there was additional evidence in the record. But
given the evidence here, the jury could not conclude that these facts were sufficient to
prove menacing. Being agitated and hostile over the fact that the library was closed,
making many phone calls and leaving multiple voicemails, threatening lawsuits and the
loss of employment, insulting and name-calling, persisting in contentious political
discussions, and having a condescending, hardened, and aggressive manner of speaking
may be unpleasant, rude, offensive, or even harassing. But none of these actions as
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described at trial necessarily suggest the threat of physical harm. Nor is there any
evidence in the record to suggest that Pierce was aware that these actions—which were
entirely focused on Pierce's political, legal, and library management concerns—would
cause Cooper to fear physical harm.
{¶ 45} On the contrary, Cooper admitted that Pierce never physically threatened
her. She also admitted that he never approached her on those occasions when she saw
him outside the library. She did testify about her concerns regarding her and her staff's
"safety." But there were two problems with this testimony. First, "safety" as used in
common speech has in recent years come to refer not merely to physical safety, but to a
range of emotional concerns unrelated to safety properly understood in the "physical
harm" context. Perhaps Cooper would have clarified that her reference to "safety" was a
reference to "physical safety" if she had been asked to clarify her statement, but she was
not asked and did not clarify. Second, Cooper made it clear that her fears about her and
her staff's "safety" were based on her own speculation about what Pierce might do, and
not on anything Pierce actually did. After testifying that Pierce's threats all related to her
employment and a potential lawsuit, she explained why she eventually called law
enforcement:
[Prosecutor]: Ultimately, you decided in July to call law
enforcement. Why? What -- what pushed you to that point?
[Cooper]: His aggressiveness, and he just would not stop.
It just got to the point where it was -- it was extremely stressful
for the staff and for myself, and it was escalating. And we felt
that you just didn't know what he was going to do next. He
was so mad that -- and so aggravated with us. We just didn't
know what he was going to do, so we needed the authorities
to step in and kind of help us take control.
{¶ 46} When later asked about her "safety" concerns again, Cooper stated that
Pierce "was very aggressive . . . it was very aggressive in his demeanor, and we felt that
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he was just getting so worked up over the situations that we had no control over. That's
what was unnerving."
{¶ 47} Even viewing these statements in the light most favorable to the
prosecution, and even assuming for the sake of argument that these statements
established the second element of menacing (the victim's subjective belief that there was
a possibility of physical harm), Cooper's statements about her "safety" concerns do not
establish that Pierce knowingly caused her to fear physical harm (the first element of
menacing). Harvey, 2023-Ohio-4454 at ¶ 29. Cooper may have been uncomfortable in
Pierce's presence or felt antagonized. But these feelings do not establish support for the
separate conclusion that Pierce was aware that his actions would probably cause Cooper
to believe that he would physically harm her. As described above, at no time did Pierce
overtly or impliedly indicate that he would cause physical harm to Cooper if his demands
regarding library management were ignored.
{¶ 48} For these reasons, I conclude there was insufficient evidence of menacing.
III. Conclusion
{¶ 49} I would overrule Pierce's second assignment of error, affirm his conviction
for telecommunications harassment, sustain Pierce's first assignment of error, and
reverse Pierce's conviction for menacing.
{¶ 50} I respectfully concur in part and dissent in part.
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