Friday, April 07, 2017

“Terroristic Threats,” Facebook and the Police

This post examines a recent decision from the Court of Appeals of Ohio – Ninth District: State v. Klingel, 2017 WL 1235273 (2017). The court begins the opinion by explaining that
[T]his matter arises out of a series of threats that Klingel made toward police on his Facebook page. The Lorain County Grand Jury indicted Klingel on one count of inciting to violence, one count of retaliation, one count of telecommunications harassment, and one count of obstructing official business. The grand jury subsequently returned a supplemental indictment charging Klingel with one count of making terroristic threats. Klingel pleaded not guilty to all of the charges.

The matter proceeded to a jury trial. Prior to opening statements, the State dismissed the inciting to violence charge. Thereafter the jury found Klingel guilty of telecommunications harassment and making terroristic threats. Klingel was found not guilty of retaliation and obstructing official business. The trial court imposed a prison term of eighteen months.

This Court dismissed Klingel's first attempt at an appeal due to the fact that the sentencing entry failed to resolve all of the charges in the indictment. The trial court issued a revised sentencing entry resolving all of the counts in the indictment and Klingel filed a timely notice of appeal.
State v. Klingel, supra.
The opinion goes on to explain that Kingel raised “three assignments of error” in his appeal to the Court of Appeals. State v. Klingel, supra.
Klingel’s first argument on appeal was that “his convictions for telecommunications harassment and terroristic threats were not supported by sufficient evidence and were against the weight of the evidence.” State v. Klingel, supra. The Court of Appeals began its analysis of his first argument by explaining that

Klingel was convicted of terroristic threats in violation of Ohio Revised Code 2909.23(A), which states:

No person shall threaten to commit or threaten to cause to be committed a specified offense when both of the following apply:
(1) The person makes the threat with purpose to do any of the following:
(a) Intimidate or coerce a civilian population;
(b) Influence the policy of any government by intimidation or coercion;
(c) Affect the conduct of any government by the threat of by the specified offense.
(2) As a result of the threat, the person causes a reasonable expectation or fear of the imminent commission of the specified offense.
State v. Klingel, supra.
The court went on to explain that
`[a] person acts purposely when it is the person's specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender's specific intention to engage in conduct of that nature.’ Ohio Revised Code 2901.22(A). The term `threat’ is not defined in the statute. Generally speaking, however, the term `threat’ in the criminal context connotes `[a] communicated intent to inflict harm or loss on another * * *[.]’ Black's Law Dictionary 1519 (8th Ed.2004). The term `terroristic threat’ is understood to mean `[a] threat to commit any crime of violence with the purpose of * * * terrorizing another[.]’ Id. When interpreting a different criminal statute, the Supreme Court defined `threat’ 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.’ * * * It connotes almost any expression of intent to do an act of harm against another person irrespective of whether that act is criminal.’ State v. Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, ¶ 36, quoting Webster's Third New International Dictionary 2382 (1986) citing State v. Moyer, 87 W.Va. 137 (1920).
State v. Klingel, supra.
The opinion then noted that Klingel was
also convicted of telecommunications harassment in violation of Ohio Revised Code 2917.21(B), which states:

`(1) No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's control, with purpose to abuse, threaten, or harass another person.
(2) No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening, or harassing another 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. When knowledge of the existence of a particular fact is an element of an offense, 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.’ Ohio Revised Code 2901.22(B). `Telecommunication’ means `the origination, emission, dissemination, transmission, or reception of data, images, signals, sounds, or other intelligence or equivalence of intelligence of any nature over any communications system by any method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.’ Ohio Revised Code 2913.01(X).

`Telecommunications device’ is defined as `any instrument, equipment, machine, or other device that facilitates telecommunication, including, but not limited to, a computer [and a] computer network[.]’ Ohio Revised Code 2913.01(Y).
State v. Klingel, supra.
The Court of Appeals then took up Klingel’s argument that the evidence produced at his trial was not legally sufficient to support his convictions for the two offenses outlined above. State v. Klingel, supra. The court began its analysis of this argument by explaining that
[a] review of the sufficiency of the State's evidence and the manifest weight of the evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th Dist. Summit No. 19600, 2000 WL 277908, *1 (Mar. 15, 2000). When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

`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. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’

Id. at paragraph two of the syllabus.
State v. Klingel, supra.
The Court of Appeals then took up the substance of this issue, explaining that the
State presented evidence at trial supporting the following narrative. Lorain police investigated Klingel in relation to possible criminal activity in 2014. While the investigation did not lead to any criminal charges, Detective Tabatha Angello, who spearheaded the investigation, felt that Klingel was “very aggressive” toward her while she was working on that case. Detective Angello explained that due to Klingel's aggressive manner, the police department took a precautionary measure of printing out his photograph and providing it to security. Detective Angello worked a side job as a security officer at a local store. While working her side job, she saw Klingel at the store on three or four different occasions.

Klingel was Facebook friends with a woman named A.U. The two connected through a group on the social network. In March of 2015, using the messenger function on Facebook, Klingel and A.U. engaged in a bizarre series of conversations about a variety of topics. During those discussions, Klingel asked A.U. if she was ready to run away with him. In support of his overture, Klingel stated, `I'm serious we can get married and travel the world killing random people.’ When A.U. responded that she `would never kill a random [,]’ Klingel responded, `Ok we can kill those we know[.]’

On April 3, 2015, at 8:05 p.m., Klingel used the Facebook messenger function to tell A.U., `Look I tried I truly did now the time is running out the cop will walk out and I will shoot her at 9pm[.]’ When A.U. questioned whether the police officer had done something involving Klingel's daughter, he responded, `She is a cop they all will die[.] Everyone that stands in my way will die[.]’ Detective Angello was the only woman working for the Lorain Police Department at that time. Klingel later said to A.U., `There are others with me we are taking some out at same time different places[.] * * * Seven teams of three[.]’ Detective Angello testified that, on the evening of April 3, 2015, she was working her side job and was scheduled to get off work at 9:00 p.m.

Later that evening, Klingel posted a status update on his own Facebook page that stated, `This is to any law enforcement agent looking at my page we will not back down we demand you to take off your badges your weapons you will comply or be compelled to comply.’ Klingel then posted a status update that stated, `Death to the police.’ Subsequently, Klingel posted a status update asking, `So who is down to kill some cops I want to arrange where we can all kill some at a certain time hit me up if you want in lets make a statement that they cannot do this shit anymore[.]’ Klingel also posted several messages directed toward the Federal Bureau of Investigation wherein he asked for `help,’ gave a phone number, and suggested that communicating with him might help to save lives.

A.U. was deeply concerned about Klingel's posts and she alerted the FBI. The FBI, in turn, contacted local law enforcement. Detective Morris of the Lorain police testified that he found Klingel's threats alarming given that Detective Angello was the only woman serving as an officer at the department at that time. Upon learning about the threats, the department took the extraordinary measure of asking Detective Angello to stay home and stationing an officer in a squad car outside her residence.
State v. Klingel, supra.
The opinion goes on to explain that
Klingel focuses on the intent of his Facebook statements in raising sufficiency challenges to both of his convictions.

With respect to his conviction for terroristic threats, Klingel argues that his statements were not threats but rather an expression of free speech. Klingel insists that the State never demonstrated an actual expression of intent and that his comments were merely `the ramblings of an angry and frustrated man[.]’
State v. Klingel, supra.
The court then explain that
[t]his argument is without merit. While Klingel suggests that his comments did not constitute `true threats,’ the statute provides that `[i]t is not a defense to a charge of a violation of this section that the defendant did not have the intent or capability to commit the threatened specified offense or that the threat was not made to a person who was a subject of the threatened specified offense.’ R.C. 2909.23(B).`When addressing the issue of whether the state has met its burden under R.C. 2909.23(A), the question is not whether the threat is communicated to its subject. Rather, the question is whether the defendant uttered the threat for the purpose of, in this case, intimidating or coercing a civilian population or affecting the conduct of any government.’ State v. Baughman, 6th Dist. Lucas No. L-11-1045, 2012-Ohio-5327, ¶ 26.

Here, Klingel did not merely engage in a public discourse about the police work in his community. Instead, he made very specific threats about taking part in a coordinated effort to murder police officers. Klingel knowingly stated that there would be repercussions if law enforcement did not `comply’ with his will. In the midst of making these threats, he specified that his target was the only woman to serve as a police officer in the community where he resided, an officer with whom he had a personal history. This evidence, when construed in the light most favorable to the State, was sufficient to convict Klingel of making terroristic threats. See Jenks, 61 Ohio St.3d at 279.
State v. Klingel, supra.
The Court of Appeals went on to explain that
[i]n regard to his conviction for telecommunications harassment, Klingel stresses that his comments were made in a private conversation to a friend on Facebook, not to another person who served as a law enforcement official. Klingel contends that there is no way he could have known that his comments would reach Detective Angello or any other law enforcement official.

Klingel's argument is without merit. While he made numerous comments to A.U. using the messenger function, he also posted several general status updates. In one status update, Klingel addressed his message to `any law enforcement agent looking at my page[.]’ Klingel continued, `we will not back down[.] [W]e demand you take off your badges[,] your weapons[.] [Y]ou will comply or be compelled to comply[.]’ A second status update stated, `Death to the police[.]’ This chilling post was followed by another status update where Klingel solicited people who were `down to kill some cops * * * at a certain time[.]’ Other posts were directed to the FBI. None of these statements were confined to the private conversation between Klingel and A.U. The language used by Klingel in his posts evidences the fact that Klingel made these telecommunications with the assumption that law enforcement officials were looking at his page. Given the grave nature of the statements, it is readily apparent that Klingel acted with purpose to threaten the lives of law enforcement officials.
State v. Klingel, supra.          
The court then took up a related issue, Klingel’s argument that his conviction was “against the manifest weight of the evidence.” State v. Klingel, supra. It went on to explain that
[a] conviction that is supported by sufficient evidence may still be found to be against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). `When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact[-]finder's resolution of the conflicting testimony.’ Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
State v. Klingel, supra.
The Court of Appeals went on to explain that,
[a]fter a careful review of the record, we cannot agree with Klingel's contention that his convictions resulted in a manifest miscarriage of justice. A.U. admitted during her testimony that her Facebook friendship with Klingel was insincere. A.U. never met Klingel in person and she was amused by the fact that he `would always act all crazy’ in group chats. A.U. testified that she thought it would be funny to `infiltrate’ what she described as Klingel's `cult’ of friends and `[h]ave some fun’ at Klingel's expense. The evidence presented at trial further revealed that Klingel's ongoing frustration with police stemmed, in part, from the uncertainty about the custody situation with his daughter and whether his daughter was safe. At one point, Klingel suggested to A.U. that his daughter had been kidnapped and replaced by a “pod person.’

While Klingel points to the context surrounding his Facebook activity in support of the proposition that his seemingly threatening comments were actually harmless, we are mindful that the jury had an opportunity to evaluate this evidence, and the jury was in the best position to assess the credibility of the evidence presented by the parties at trial. State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 24. Moreover, though some of Klingel's comments could arguably be construed as preposterous online banter, other comments evidenced a tangible desire to harass and threaten particular law enforcement officials. Given the grave nature of Klingel's threating statements, combined with the alarming level of specificity, we cannot conclude that this is the exceptional case where the jury lost its way in convicting Klingel of making terroristic threats and telecommunications harassment. See Otten, 33 Ohio App.3d at 340.
State v. Klingel, supra.
For these and other reasons, the Court of Appeals affirmed the “judgment of the Lorain County Court of Common Pleas.” State v. Klingel, supra.

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