[Cite as State v. Hawks,
2025-Ohio-23.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Andrew J. King, J.
-vsCase No. 24 CAC 02 0014
ALEX HAWKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Delaware Municipal
Court, Case No. 23CRB01264
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 3, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TYLER A. SANDERS CHRISTOPHER BAZELEY
Assistant Prosecutor 9200 Montgomery Road, Suite 8A
70 North Union Street Cincinnati, Ohio 45252
Delaware, Ohio 43015
Delaware County, Case No. 24 CAC 02 0014 2
Hoffman, P.J.
{¶1} Defendant-appellant Alex Hawks appeals the judgment entered by the
Delaware Municipal Court convicting him of two counts of telecommunications
harassment (R.C. 2917.21(A)(5)) and sentencing him to 180 days incarceration on each
count, with all days suspended, and placing him on community control for one year.
Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and his former wife, the victim in this case, entered into a shared
parenting agreement of their two minor children. The children were five and two years
old at the time of trial. Pursuant to the agreement, the parties were to communicate via
an app called OurFamilyWizard (hereinafter “the app”). The victim told Appellant
numerous times to stop texting her cell phone and to use the app instead. Because he
continued to contact her via her cell phone, she eventually blocked him, unblocking him
only to allow him to Face Time with the children. Appellant began calling her from
unknown cell numbers.
{¶3} In October of 2023, the victim contacted police when Appellant continued
to contact her outside the app. Officer Jonathan Weirich of the Delaware Police
Department called Appellant to tell him to stop contacting the victim outside of the app.
The officer explained the custody agreement and the victim’s desire he not contact her
outside the app were separate from each other. Appellant acknowledged the officer’s
concerns and said he would use the app in the future.
{¶4} Appellant left two messages on the victim’s cell phone in November of 2023.
On November 2, he left a voicemail message questioning whether the victim was ill after
he was unable to Face Time with the children the previous night. On November 6, he left
Delaware County, Case No. 24 CAC 02 0014 3
a voicemail message stating he had not been on the app for a few days, and asked the
victim to call him. After Officer Weirich advised Appellant telecommunications
harassment charges were forthcoming, Appellant texted the victim a picture of himself
and the children with his girlfriend, asking the victim to share the picture with the children.
Appellant was charged with two counts of telecommunications harassment. The first
count related to the two voicemail messages, while the second count related to the text
message.
{¶5} The case proceeded to jury trial in the Delaware Municipal Court. At trial,
Appellant testified he found the shared parenting order confusing, because in addition to
requiring use of the app to communicate with the victim, it also required the parties to
maintain a working cell phone, and allowed use of the phone for emergencies and for
Face Timing the children. He testified he contacted his attorney after speaking with the
police, and was advised he was permitted to contact the victim outside of the app
regardless of the victim’s preference for the app.
{¶6} The jury found Appellant guilty on both charges and the trial court convicted
him in accordance with the verdict. Appellant was sentenced to 180 days in jail on each
count, with all days suspended, and placed on community control for one year. It is from
the January 31, 2024 judgment of the trial court Appellant prosecutes his appeal,
assigning as error:
I. THE FIRST COUNT IN THE COMPLAINT IS DUPLICITOUS.
Delaware County, Case No. 24 CAC 02 0014 4
II. HAWKS’ CONVICTIONS ARE NOT SUPPORTED BY LEGALLY
INSUFFICIENT [SIC] EVIDENCE AND ARE AGAINST THE WEIGHT OF
THE EVIDENCE.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
OVERRULED HAWKS’ REQUEST TO INCLUDE A JURY INSTRUCTION
TO ADVISE THE JURY OF THE MISTAKE OF FACT DEFENSE.
IV. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE
TO PRESENT EVIDENCE OF HAWKS’ OTHER, UNRELATED, ACTS.
I.
{¶7} In his first assignment of error, Appellant argues the first count of the
complaint is duplicitous because it alleges conduct which constitutes two separate
offenses. Appellant failed to challenge the complaint in the trial court. Crim. R. 12(C)
provides in pertinent part:
(C) Pretrial Motions. Prior to trial, any party may raise by motion any
defense, objection, evidentiary issue, or request that is capable of
determination without the trial of the general issue. The following must be
raised before trial:
(2) Defenses and objections based on defects in the indictment,
information, or complaint (other than failure to show jurisdiction in the court
or to charge an offense, which objections shall be noticed by the court at
any time during the pendency of the proceeding)[.]
Delaware County, Case No. 24 CAC 02 0014 5
{¶8} Failure to timely raise an objection in accordance with the rule constitutes
waiver. Crim. R. 12(H). Appellant failed to timely raise his claim of defect in the institution
of prosecution in the trial court in accordance with Crim. R. 12, and as such, has waived
any error. State v. Ahmad, 2018-Ohio-3556, ¶ 17 (5th Dist.); Cleveland v. Daniels, 2018-
Ohio-4773, ¶ 30 (8th Dist.); Cleveland v. Bates,
2023-Ohio-3627, ¶17 (8th Dist.).1
{¶9} The first assignment of error is overruled.
II.
{¶10} In his second assignment of error, Appellant argues his convictions were
not supported by sufficient evidence and were against the manifest weight of the evidence
because he acted in good faith to exercise his rights provided for in the shared parenting
agreement.
{¶11} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of
the syllabus (1991).
{¶12} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
1 For the first time in his reply brief, Appellant argues the alleged duplicity in the complaint constituted plain
error. Appellant failed to argue plain error in his initial brief, and a party may not advance an argument for
the first time in a reply brief. See, e.g., City of Dublin v. Friedman, 2017-Ohio-9127, ¶ 63 (10th Dist.).
Delaware County, Case No. 24 CAC 02 0014 6
a new trial ordered.’” State v. Thompkins,
1997-Ohio-52, quoting State v. Martin,
20 Ohio
App. 3d 172, 175 (1st Dist. 1983).
{¶13} Appellant was convicted of two counts of telecommunications harassment
in violation of R.C. 2917.21(A)(5):
(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:
(5) Knowingly makes the telecommunication to the recipient of the
telecommunication, to another person at the premises to which the
telecommunication is made, or to those premises, and the recipient or
another person at those premises previously has told the caller not to make
a telecommunication to those premises or to any persons at those
premises[.]
{¶14} The mental state of “knowingly” is defined by R.C. 2901.22(B):
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. When
knowledge of the existence of a particular fact is an element of an offense,
Delaware County, Case No. 24 CAC 02 0014 7
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶15} Appellant argues he did not act “knowingly” because he was attempting to
comply with a confusing court order, and based on a conversation with his attorney, he
believed he was within his rights in contacting the victim about the children by telephone
instead of using the app. He also argues the victim at times used her cell phone to contact
him, while denying him the same rights. He argues his “mistake of fact” defense negated
the element of “knowingly” set forth in definition of the crime of telecommunications
harassment, and argues the victim did not have the right to tell him not to contact her
through methods allowed by the custody order.
{¶16} The State presented evidence the victim asked Appellant on multiple
occasions not to contact her outside of the app. While the custody order does include
language concerning use of cell phones for certain purposes, including emergencies, the
order also provides the parties shall not email, phone, or text each other directly. The
State presented evidence Officer Weirich informed Appellant the victim wanted him to
stop contacting her via her cell phone and to use the app instead, and informed Appellant
the custody agreement and the victim’s wishes for no contact were separate issues. After
this conversation with Officer Weirich, Appellant left two voicemail messages on the
victim’s phone, both of which the victim testified were not emergency messages.
Appellant also texted the victim a picture of himself and his new girlfriend with the children,
asking her to pass the picture along to the children. We find the State presented sufficient
Delaware County, Case No. 24 CAC 02 0014 8
evidence to establish both convictions of telecommunications harassment as defined by
R.C. 2917.21(A)(5).
{¶17} Appellant argues his testimony established the defense of “mistake of fact”
which negated the mental state of knowingly. “Mistake of fact is a defense if it negates a
mental state required to establish an element of a crime.” State v. Brand, 2023-Ohio-557,
¶85 (12th Dist.), citing In re A.C.D.,
2015-Ohio-232, ¶ 15 (12th Dist.) . “Mistake of fact is
widely recognized as a defense to specific intent crimes when the defendant has an
honest purpose and the honest purpose provides an excuse for an act that would
otherwise be deemed criminal.”
Id. “As such, mistake of fact can, in an appropriate
circumstance, negate a knowing mental state.”
Id.
{¶18} At trial, Appellant testified after discussing the matter with his attorney he
believed he was within his rights under the custody agreement when he contacted the
victim through her cell phone. However, Appellant also admitted he was told by the victim
several times to stop contacting her on her cell phone and to use the app instead, and
further admitted Officer Weirich explained to him the custody order and the victim’s desire
he use the app instead of her cell phone were separate issues. However, Appellant
continued to contact the victim through her cell phone, leaving voicemail messages and
sending her a picture via text message of himself, his new girlfriend, and the children
together. We find the jury did not lose its way in concluding Appellant acted knowingly in
sending the messages to the victim’s cell phone after being asked to use the app, and his
intent was not negated by an “honest purpose.” We find the judgment is not against the
manifest weight of the evidence.
{¶19} The second assignment of error is overruled.
Delaware County, Case No. 24 CAC 02 0014 9
III.
{¶20} In his third assignment of error, Appellant argues the trial court erred in
failing to give the jury his requested instruction on mistake of fact.
{¶21} Appellant asked the trial court to specifically instruct the jury the mental
state of knowingly could be negated by mistake of fact. Appellant cited to a comment to
the Ohio Jury Instructions, which cited several cases for the proposition mistake, accident,
lack of information, or another innocent reason could negate the existence of knowledge.
Tr. 221-222.
{¶22} The comment under OJI 417.11, which provides the definition of the mental
state of “knowingly,” states, “Evidence of mistake, accident, lack of information, or other
innocent reason can negate the existence of knowledge, but do not constitute affirmative
defenses.” After taking the matter under advisement, the trial court stated while the things
listed in the comment can be a defense to knowledge, the court couldn’t find a specific
instruction which would apply in those circumstances, and the trial court overruled
Appellant’s request.
{¶23} Although the transcript reveals Appellant made a general verbal request for
some type of instruction on this issue, he did not verbally provide specific language he
was requesting be included in the instruction, and the record does not demonstrate he
submitted proposed written instructions as required by Crim.R. 30(A). The failure to
submit proposed written jury instructions constitutes a waiver of any error. State v.
Nichols, 85 Ohio App.3d 65, 73–74 (4th Dist. 1993).
{¶24} Assuming arguendo Appellant made a proper request for a specific
instruction mistake of fact would negate his mental state, we find the request unsupported
Delaware County, Case No. 24 CAC 02 0014 10
by the facts in the instant case. Requested jury instructions should be given if they are
correct statements of law, if they are applicable to the case, and if reasonable minds might
reach the conclusion sought by the instruction. State v. Peters, 2023-Ohio-4362, ¶41 (3d
Dist.), quoting State v. Adams,
2015-Ohio-3954, ¶240.
{¶25} The trial court provided the standard OJI instruction to the jury of
“knowingly:”
Knowingly. A person acts knowingly regardless of his purpose when
a person is aware that the person’s conduct will probably cause a certain
result or be of a certain nature.
A person has knowledge of circumstances when the person is aware
that such circumstances probably exist.
Because you cannot look into the mind of another, knowledge must
be determined from all of the facts and circumstances in evidence.
You will determine from the facts and circumstances whether there
existed at the time in the mind of the Defendant an awareness that his acts
would probably result in a telecommunication being sent to [the victim].
{¶26} Tr. 282-283.
{¶27} R.C. 2917.21(A)(5) attaches the mental state of “knowingly” to the sending
of the message despite the request of the victim to not be contacted in this manner.
Appellant conceded he sent the messages knowingly. His “mistake of fact” defense did
not go to the mental state of knowingly, but rather related to his belief the victim did not
Delaware County, Case No. 24 CAC 02 0014 11
have the right to prevent him from contacting her on her cell phone. From Appellant’s
own testimony, the evidence was undisputed he knowingly sent the messages to her cell
phone after she requested he contact her only through the app. His defense was not one
of mistake of fact negating the mental state of knowingly, but rather he believed he had
the legal right to call her cell phone despite her request he only contact her through the
app. Because the requested instruction was not supported by the evidence in this case,
we find the trial court did not err in failing to give the requested instruction.
{¶28} The third assignment of error is overruled.
IV.
{¶29} In his fourth assignment of error, Appellant argues the trial court erred in
admitting evidence of prior acts, specifically the testimony of the victim he contacted her
outside of the app frequently between May and November, 2023, prior to the dates
alleged in the indictment.
{¶30} Evid.R. 404(B) provides:
Prohibited Uses. Evidence of any other crime, wrong or act is not
admissible to prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character.
Permitted Uses; Notice. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
{¶31} Evid.R. 404(B).
Delaware County, Case No. 24 CAC 02 0014 12
{¶32} “Evid.R. 404(B) categorically prohibits evidence of a defendant's other acts
when its only value is to show that the defendant has the character or propensity to
commit a crime.” State v. Smith, 2020-Ohio-4441, ¶ 36. Other acts evidence may,
however, be admissible for another non-character-based purpose, such as “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Evid.R. 404(B)(2). “The key is that the evidence must prove something other
than the defendant's disposition to commit certain acts.” State v. Hartman, 2020-Ohio-
4440, ¶ 22.
{¶33} In State v. Williams, 2012-Ohio-5695, the Ohio Supreme Court set forth a
three-part analysis for consideration of admissibility of other-acts evidence:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused
in order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in
Evid.R. 404(B). The third step is to consider whether the probative value of
the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R. 403.
{¶34} Id. at ¶ 20.
Delaware County, Case No. 24 CAC 02 0014 13
{¶35} The admissibility of other acts evidence pursuant to Evid.R. 404(B) is a
question of law. State v. Hartman, supra at ¶ 22. A trial court is precluded from admitting
improper character evidence under Evid.R. 404(B), but it has discretion to allow other
acts evidence which is admissible for a permissible purpose. Id., citing Williams, supra at
¶ 17.
{¶36} Appellant failed to object to the victim’s testimony concerning his past
attempts to contact her on her cell phone, and we therefore must find plain error to
reverse. Under the plain error standard of review, the defendant bears the burden of
“showing that but for a plain or obvious error, the outcome of the proceeding would have
been otherwise, and reversal must be necessary to correct a manifest miscarriage of
justice.” State v. West, 2022-Ohio-1556, ¶22. An appellate court has discretion to notice
plain error and is not required to correct it.
Id.
{¶37} R.C. 2917.21(A)(5) requires the State to prove Appellant knowingly
contacted the victim after previously having been told to stop. Evidence Appellant had
previously contacted the victim using her cell phone rather than using the app, coupled
with evidence she told him to stop calling her cell phone prior to the date of the messages
alleged in the complaint, was directly relevant to prove an element of the offense. We find
the evidence was not admitted solely to show he had a propensity to contact her outside
of the app.
{¶38} Further, whether he contacted her outside of the app was not at issue in the
case; therefore, Appellant cannot demonstrate in the absence of this evidence, the result
of the proceeding would have been otherwise. Appellant admitted to contacting the victim
on her cell phone after she told him to not contact her on her cell phone. Appellant did
Delaware County, Case No. 24 CAC 02 0014 14
not deny contacting her on her cell phone, but only claimed he believed he was within his
rights to do so despite her telling him to stop.
{¶39} We find no error, plain or otherwise, in the admission of the victim’s
testimony concerning Appellant’s prior attempts to contact her on her cell phone.
{¶40} The fourth assignment of error is overruled.
{¶41} The judgment of the Delaware Municipal Court is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
King, J. concur
