Can a Sign Posted Outside a Home Be Considered a Threat of Harm?
Full Question:
Answer:
It will be a matter of subjective determination for the court, based on all of the facts and circumstances involved, whether the sign may be considered a threat of harm.
Please see the following OH statutes to determine applicability:
§ 2901.01. (A) As used in the Revised Code:
(A) As used in the Revised Code:
(1) "Force" means any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.
(2) "Deadly force" means any force that carries a substantial risk
that it will proximately result in the death of any person.
(3) "Physical harm to persons" means any injury, illness, or other
physiological impairment, regardless of its gravity or duration.
(4) "Physical harm to property" means any tangible or intangible
damage to property that, in any degree, results in loss to its value or
interferes with its use or enjoyment. "Physical harm to property" does
not include wear and tear occasioned by normal use.
(5) "Serious physical harm to persons" means any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of
prolonged or intractable pain.
(6) "Serious physical harm to property" means any physical harm to
property that does either of the following:
(a) Results in substantial loss to the value of the property or
requires a substantial amount of time, effort, or money to repair or
replace;
(b) Temporarily prevents the use or enjoyment of the property or
substantially interferes with its use or enjoyment for an extended
period of time.
(7) "Risk" means a significant possibility, as contrasted with a
remote possibility, that a certain result may occur or that certain
circumstances may exist.
(8) "Substantial risk" means a strong possibility, as contrasted with
a remote or significant possibility, that a certain result may occur or
that certain circumstances may exist.
(9) "Offense of violence" means any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04,
2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211 [2903.21.1],
2903.22, 2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05, 2909.02,
2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03,
2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161 [2923.16.1],
of division (A)(1), (2), or (3) of section 2911.12, or of
division (B)(1), (2), (3), or (4) of section 2919.22 of the
Revised Code or felonious sexual penetration in violation of former
section 2907.12 of the Revised Code;
(b) A violation of an existing or former municipal ordinance or law
of this or any other state or the United States, substantially
equivalent to any section, division, or offense listed in
division (A)(9)(a) of this section;
(c) An offense, other than a traffic offense, under an existing or
former municipal ordinance or law of this or any other state or the
United States, committed purposely or knowingly, and involving physical
harm to persons or a risk of serious physical harm to persons;
(d) A conspiracy or attempt to commit, or complicity in committing,
any offense under division (A)(9)(a), (b), or (c) of this section.
(10)(a) "Property" means any property, real or personal, tangible or
intangible, and any interest or license in that property. "Property"
includes, but is not limited to, cable television service, other
telecommunications service, telecommunications devices, information
service, computers, data, computer software, financial instruments
associated with computers, other documents associated with computers,
or copies of the documents, whether in machine or human readable form,
trade secrets, trademarks, copyrights, patents, and property protected
by a trademark, copyright, or patent. "Financial instruments associated
with computers" include, but are not limited to, checks, drafts,
warrants, money orders, notes of indebtedness, certificates of deposit,
letters of credit, bills of credit or debit cards, financial
transaction authorization mechanisms, marketable securities, or any
computer system representations of any of them.
(b) As used in division (A)(10) of this section, "trade secret" has
the same meaning as in section 1333.61 of the Revised Code, and
"telecommunications service" and "information service" have the same
meanings as in section 2913.01 of the Revised Code.
(c) As used in divisions (A)(10) and (13) of this section, "cable
television service," "computer," "computer software," "computer
system," "computer network," "data," and "telecommunications device"
have the same meanings as in section 2913.01 of the Revised Code.
(11) "Law enforcement officer" means any of the following:
(a) A sheriff, deputy sheriff, constable, police officer of a
township or joint township police district, marshal, deputy marshal,
municipal police officer, member of a police force employed by a
metropolitan housing authority under division (D) of section 3735.31 of
the Revised Code, or state highway patrol trooper;
(b) An officer, agent, or employee of the state or any of its
agencies, instrumentalities, or political subdivisions, upon whom, by
statute, a duty to conserve the peace or to enforce all or certain laws
is imposed and the authority to arrest violators is conferred, within
the limits of that statutory duty and authority;
(c) A mayor, in the mayor's capacity as chief conservator of the
peace within the mayor's municipal corporation;
(d) A member of an auxiliary police force organized by county,
township, or municipal law enforcement authorities, within the scope of
the member's appointment or commission;
(e) A person lawfully called pursuant to section 311.07 of the
Revised Code to aid a sheriff in keeping the peace, for the purposes
and during the time when the person is called;
(f) A person appointed by a mayor pursuant to section 737.01 of the
Revised Code as a special patrolling officer during riot or emergency,
for the purposes and during the time when the person is appointed;
(g) A member of the organized militia of this state or the armed
forces of the United States, lawfully called to duty to aid civil
authorities in keeping the peace or protect against domestic violence;
(h) A prosecuting attorney, assistant prosecuting attorney, secret
service officer, or municipal prosecutor;
(i) A veterans' home police officer appointed under section 5907.02
of the Revised Code;
(j) A member of a police force employed by a regional transit
authority under division (Y) of section 306.35 of the Revised Code;
(k) A special police officer employed by a port authority under
section 4582.04 or 4582.28 of the Revised Code;
(l) The house of representatives sergeant at arms if the house of
representatives sergeant at arms has arrest authority pursuant to
division (E)(1) of section 101.311 [101.31.1] of the Revised Code and
an assistant house of representatives sergeant at arms;
(m) A special police officer employed by a municipal corporation at a
municipal airport, or other municipal air navigation facility, that has
scheduled operations, as defined in section 119.3 of Title 14 of the
Code of Federal Regulations, 14 C.F.R. 119.3, as amended, and that is
required to be under a security program and is governed by aviation
security rules of the transportation security administration of the
United States department of transportation as provided in Parts 1542.
and 1544. of Title 49 of the Code of Federal Regulations, as amended.
(12) "Privilege" means an immunity, license, or right conferred by
law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity.
(13) "Contraband" means any property that is illegal for a person to
acquire or possess under a statute, ordinance, or rule, or that a trier
of fact lawfully determines to be illegal to possess by reason of the
property's involvement in an offense. "Contraband" includes, but is not
limited to, all of the following:
(a) Any controlled substance, as defined in section 3719.01 of the
Revised Code, or any device or paraphernalia;
(b) Any unlawful gambling device or paraphernalia;
(c) Any dangerous ordnance or obscene material.
(14) A person is "not guilty by reason of insanity" relative to a
charge of an offense only if the person proves, in the manner specified
in section 2901.05 of the Revised Code, that at the time of the
commission of the offense, the person did not know, as a result of a
severe mental disease or defect, the wrongfulness of the persons acts.
(B)(1)(a) Subject to division (B)(2) of this section, as used in any
section contained in Title XXIX [29] of the Revised Code that sets
forth a criminal offense, "person" includes all of the following;
(i) An individual, corporation, business trust, estate, trust,
partnership, and association;
(ii) An unborn human who is viable.
(b) As used in any section contained in Title XXIX
[29] of the Revised Code that does not set forth a criminal offense,
"person" includes an individual, corporation, business trust, estate,
trust, partnership, and association.
(c) As used in division (B)(1)(a) of this section:
(i) "Unborn human" means an individual organism of the species Homo
sapiens from fertilization until live birth.
(ii) "Viable" means the stage of development of a human fetus at
which there is a realistic possibility of maintaining and nourishing of
a life outside the womb with or without temporary artificial
life-sustaining support.
(2) Notwithstanding division (B)(1)(a) of this section, in no case
shall the portion of the definition of the term "person" that is set
forth in division (B)(1)(a)(ii) of this section be applied or construed
in any section contained in Title XXIX [29] of the Revised Code that
sets forth a criminal offense in any of the following manners:
(a) Except as otherwise provided in division (B)(2)(a) of this
section, in a manner so that the offense prohibits or is construed as
prohibiting any pregnant woman or her physician from performing an
abortion with the consent of the pregnant woman, with the consent of
the pregnant woman implied by law in a medical emergency, or with the
approval of one otherwise authorized by law to consent to medical
treatment on behalf of the pregnant woman. An abortion that violates
the conditions described in the immediately preceding sentence may be
punished as a violation of section 2903.01, 2903.02, 2903.03, 2903.04,
2903.05, 2903.06, 2903.08, 2903.11, 2903.12, 2903.13, 2903.14, 2903.21,
or 2903.22 of the Revised Code, as applicable. An abortion that does
not violate the conditions described in the second immediately
preceding sentence, but that does violate section 2919.12, division (B)
of section 2919.13, or section 2919.151 [2919.15.1], 2919.17, or
2919.18 of the Revised Code, may be punished as a violation of
section 2919.12, division (B) of section 2919.13, or section 2919.151
[2919.15.1], 2919.17, or 2919.18 of the Revised Code, as applicable.
Consent is sufficient under this division if it is of the type
otherwise adequate to permit medical treatment to the pregnant woman,
even if it does not comply with section 2919.12 of the Revised Code.
(b) In a manner so that the offense is applied or is construed as
applying to a woman based on an act or omission of the woman that
occurs while she is or was pregnant and that results in any of the
following:
(i) Her delivery of a stillborn baby;
(ii) Her causing, in any other manner, the death in utero of a
viable, unborn human that she is carrying;
(iii) Her causing the death of her child who is born alive but who
dies from one or more injuries that are sustained while the child is a
viable, unborn human;
(iv) Her causing her child who is born alive to sustain one or more
injuries while the child is a viable, unborn human;
(v) Her causing, threatening to cause, or attempting to cause, in any
other manner, an injury, illness, or other physiological impairment,
regardless of its duration or gravity, or a mental illness or
condition, regardless of its duration or gravity, to a viable, unborn
human that she is carrying.
(C) As used in Title XXIX [29] of the Revised Code:
(1) "School safety zone" consists of a school, school building,
school premises, school activity, and school bus.
(2) "School," "school building," and "school premises" have the same
meanings as in section 2925.01 of the Revised Code.
(3) "School activity" means any activity held under the auspices of a
board of education of a city, local, exempted village, joint
vocational, or cooperative education school district; a governing
authority of a community school established under Chapter 3314. of the
Revised Code; a governing board of an educational service center; or
the governing body of a nonpublic school for which the state board of
education prescribes minimum standards under section 3301.07 of the
Revised Code.
(4) "School bus" has the same meaning as in section 4511.01 of the
Revised Code.
§ 2917.11. (A) No person shall recklessly cause inconvenience,
annoyance, or....
(A) No person shall recklessly cause inconvenience, annoyance, or
alarm to another by doing any of the following:
(1) Engaging in fighting, in threatening harm to persons or property,
or in violent or turbulent behavior;
(2) Making unreasonable noise or an offensively coarse utterance,
gesture, or display or communicating unwarranted and grossly abusive
language to any person;
(3) Insulting, taunting, or challenging another, under circumstances
in which that conduct is likely to provoke a violent response;
(4) Hindering or preventing the movement of persons on a public
street, road, highway, or right-of-way, or to, from, within, or upon
public or private property, so as to interfere with the rights of
others, and by any act that serves no lawful and reasonable purpose of
the offender;
(5) Creating a condition that is physically offensive to persons or
that presents a risk of physical harm to persons or property, by any
act that serves no lawful and reasonable purpose of the offender.
(B) No person, while voluntarily intoxicated, shall do either of the
following:
(1) In a public place or in the presence of two or more persons, engage
in conduct likely to be offensive or to cause inconvenience, annoyance,
or alarm to persons of ordinary sensibilities, which conduct the
offender, if the offender were not intoxicated, should know is likely to
have that effect on others;
(2) Engage in conduct or create a condition that presents a risk of
physical harm to the offender or another, or to the property of another.
(C) Violation of any statute or ordinance of which an element is
operating a motor vehicle, locomotive, watercraft, aircraft, or other
vehicle while under the influence of alcohol or any drug of abuse, is
not a violation of division (B) of this section.
(D) If a person appears to an ordinary observer to be intoxicated, it
is probable cause to believe that person is voluntarily intoxicated
for purposes of division (B) of this section.
(E)(1) Whoever violates this section is guilty of disorderly conduct.
(2) Except as otherwise provided in division (E)(3) of this section,
disorderly conduct is a minor misdemeanor.
(3) Disorderly conduct is a misdemeanor of the fourth degree if any of
the following applies:
(a) The offender persists in disorderly conduct after reasonable
warning or request to desist.
(b) The offense is committed in the vicinity of a school or in a
school safety zone.
(c) The offense is committed in the presence of any law enforcement
officer, firefighter, rescuer, medical person, emergency medical
services person, or other authorized person who is engaged in the
person's duties at the scene of a fire, accident, disaster, riot, or
emergency of any kind.
(d) The offense is committed in the presence of any emergency facility
person who is engaged in the person's duties in an emergency facility.
(F) As used in this section:
(1) "Emergency medical services person" is the singular of "emergency
medical services personnel" as defined in section 2133.21 of the
Revised Code.
(2) "Emergency facility person" is the singular of "emergency facility
personnel" as defined in section 2909.04 of the Revised Code.
(3) "Emergency facility" has the same meaning as in section 2909.04 of
the Revised Code.
(4) "Committed in the vicinity of a school" has the same meaning as in
section 2925.01 of the Revised Code.
§ 2903.21. (A) No person shall knowingly cause another to believe that
the....
(A) No person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of
the other person, the other persons unborn, or a member of the other
person's immediate family.
(B) Whoever violates this section is guilty of aggravated menacing.
Except as otherwise provided in this division, aggravated menacing is a
misdemeanor of the first degree. If the victim of the offense is an
officer or employee of a public children services agency or a private
child placing agency and the offense relates to the officer's or
employee's performance or anticipated performance of official
responsibilities or duties, aggravated menacing is a felony of the fifth
degree or, if the offender previously has been convicted of or pleaded
guilty to an offense of violence, the victim of that prior offense was an
officer or employee of a public children services agency or private child
placing agency, and that prior offense related to the officer's or
employees performance or anticipated performance of official
responsibilities or duties, a felony of the fourth degree.
§ 2903.13. (A) No person shall knowingly cause or attempt to cause physical
harm....
(A) No person shall knowingly cause or attempt to cause physical harm
to another or to another's unborn.
(B) No person shall recklessly cause serious physical harm to another
or to another's unborn.
(C) Whoever violates this section is guilty of assault, and the court
shall sentence the offender as provided in this division and
divisions (C)(1), (2), (3), (4), (5), and (6) of this section. Except
as otherwise provided in division (C)(1), (2), (3), (4), or (5) of this
section, assault is a misdemeanor of the first degree.
(1) Except as otherwise provided in this division, if the offense is
committed by a caretaker against a functionally impaired person under
the caretaker's care, assault is a felony of the fourth degree. If the
offense is committed by a caretaker against a functionally impaired
person under the caretaker's care, if the offender previously has been
convicted of or pleaded guilty to a violation of this section or
section 2903.11 or 2903.16 of the Revised Code, and if in relation to
the previous conviction the offender was a caretaker and the victim was
a functionally impaired person under the offender's care, assault is a
felony of the third degree.
(2) If the offense is committed in any of the following
circumstances, assault is a felony of the fifth degree:
(a) The offense occurs in or on the grounds of a state correctional
institution or an institution of the department of youth services, the
victim of the offense is an employee of the department of
rehabilitation and correction, the department of youth services, or a
probation department or is on the premises of the particular
institution for business purposes or as a visitor, and the offense is
committed by a person incarcerated in the state correctional
institution, by a person institutionalized in the department of youth
services institution pursuant to a commitment to the department of
youth services, by a parolee, by an offender under transitional
control, under a community control sanction, or on an escorted visit,
by a person under post-release control, or by an offender under any
other type of supervision by a government agency.
(b) The offense occurs in or on the grounds of a local correctional
facility, the victim of the offense is an employee of the local
correctional facility or a probation department or is on the premises
of the facility for business purposes or as a visitor, and the offense
is committed by a person who is under custody in the facility
subsequent to the person's arrest for any crime or delinquent act,
subsequent to the person's being charged with or convicted of any
crime, or subsequent to the person's being alleged to be or adjudicated
a delinquent child.
(c) The offense occurs off the grounds of a state correctional
institution and off the grounds of an institution of the department of
youth services, the victim of the offense is an employee of the
department of rehabilitation and correction, the department of youth
services, or a probation department, the offense occurs during the
employee's official work hours and while the employee is engaged in
official work responsibilities, and the offense is committed by a
person incarcerated in a state correctional institution or
institutionalized in the department of youth services who temporarily
is outside of the institution for any purpose, by a parolee, by an
offender under transitional control, under a community control
sanction, or on an escorted visit, by a person under post-release
control, or by an offender under any other type of supervision by a
government agency.
(d) The offense occurs off the grounds of a local correctional
facility, the victim of the offense is an employee of the local
correctional facility or a probation department, the offense occurs
during the employee's official work hours and while the employee is
engaged in official work responsibilities, and the offense is committed
by a person who is under custody in the facility subsequent to the
person's arrest for any crime or delinquent act, subsequent to the
person being charged with or convicted of any crime, or subsequent to
the person being alleged to be or adjudicated a delinquent child and
who temporarily is outside of the facility for any purpose or by a
parolee, by an offender under transitional control, under a community
control sanction, or on an escorted visit, by a person under
post-release control, or by an offender under any other type of
supervision by a government agency.
(e) The victim of the offense is a school teacher or administrator or
a school bus operator, and the offense occurs in a school, on school
premises, in a school building, on a school bus, or while the victim is
outside of school premises or a school bus and is engaged in duties or
official responsibilities associated with the victim's employment or
position as a school teacher or administrator or a school bus operator,
including, but not limited to, driving, accompanying, or chaperoning
students at or on class or field trips, athletic events, or other
school extracurricular activities or functions outside of school
premises.
(3) If the victim of the offense is a peace officer or an
investigator of the bureau of criminal identification and
investigation, a firefighter, or a person performing emergency medical
service, while in the performance of their official duties, assault is
a felony of the fourth degree.
(4) If the victim of the offense is a peace officer or an
investigator of the bureau of criminal identification and investigation
and if the victim suffered serious physical harm as a result of the
commission of the offense, assault is a felony of the fourth degree,
and the court, pursuant to division (F) of section 2929.13 of the
Revised Code, shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the fourth degree that is at least
twelve months in duration.
(5) If the victim of the offense is an officer or employee of a
public children services agency or a private child placing agency and
the offense relates to the officers or employee's performance or
anticipated performance of official responsibilities or duties, assault
is either a felony of the fifth degree or, if the offender previously
has been convicted of or pleaded guilty to an offense of violence, the
victim of that prior offense was an officer or employee of a public
children services agency or private child placing agency, and that
prior offense related to the officer's or employee's performance or
anticipated performance of official responsibilities or duties, a
felony of the fourth degree.
(6) If an offender who is convicted of or pleads guilty to assault
when it is a misdemeanor also is convicted of or pleads guilty to a
specification as described in section 2941.1423 [2941.14.23] of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense, the court shall
sentence the offender to a mandatory jail term as provided in
division (G) of section 2929.24 of the Revised Code.
If an offender who is convicted of or pleads guilty to assault when
it is a felony also is convicted of or pleads guilty to a specification
as described in section 2941.1423 [2941.14.23] of the Revised Code that
was included in the indictment, count in the indictment, or information
charging the offense, except as otherwise provided in division (C)(4)
of this section, the court shall sentence the offender to a mandatory
prison term as provided in division (D)(8) of section 2929.14 of the
Revised Code.
(D) As used in this section:
(1) "Peace officer" has the same meaning as in section 2935.01 of the
Revised Code.
(2) "Firefighter" has the same meaning as in section 3937.41 of the
Revised Code.
(3) "Emergency medical service" has the same meaning as in
section 4765.01 of the Revised Code.
(4) "Local correctional facility" means a county, multicounty,
municipal, municipal-county, or multi-county-municipal jail or
workhouse, a minimum security jail established under section 341.23 or
753.21 of the Revised Code, or another county, multicounty, municipal,
municipal-county, or multicounty-municipal facility used for the
custody of persons arrested for any crime or delinquent act, persons
charged with or convicted of any crime, or persons alleged to be or
adjudicated a delinquent child.
(5) "Employee of a local correctional facility" means a person who is
an employee of the political subdivision or of one or more of the
affiliated political subdivisions that operates the local correctional
facility and who operates or assists in the operation of the facility.
(6) "School teacher or administrator" means either of the following:
(a) A person who is employed in the public schools of the state under
a contract described in section 3319.08 of the Revised Code in a
position in which the person is required to have a certificate issued
pursuant to sections 3319.22 to 3319.311 of the Revised Code.
(b) A person who is employed by a nonpublic school for which the
state board of education prescribes minimum standards under
section 3301.07 of the Revised Code and who is certificated in
accordance with section 3301.071 of the Revised Code.
(7) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(8) "Escorted visit" means an escorted visit granted under
section 2967.27 of the Revised Code.
(9) "Post-release control" and "transitional control" have the same
meanings as in section 2967.01 of the Revised Code.
(10) "Investigator of the bureau of criminal identification and
investigation" has the same meaning as in section 2903.11 of the
Revised Code.
[§ 2903.21.1] § 2903.211. (A)(1) No person by engaging in a pattern of
conduct shall knowingly....
(A)(1) No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause physical
harm to the other person or cause mental distress to the other person.
(2) No person, through the use of any electronic method of remotely
transferring information, including, but not limited to, any computer,
computer network, computer program, or computer system, shall post a
message with purpose to urge or incite another to commit a violation of
division (A)(1) of this section.
(3) No person, with a sexual motivation, shall violate
division (A)(1) or (2) of this section.
(B) Whoever violates this section is guilty of menacing by stalking.
(1) Except as otherwise provided in divisions (B)(2) and (3) of this
section, menacing by stalking is a misdemeanor of the first degree.
(2) Menacing by stalking is a felony of the fourth degree if any of
the following applies:
(a) The offender previously has been convicted of or pleaded guilty
to a violation of this section or a violation of section 2911.211 of
the Revised Code.
(b) In committing the offense under division (A)(1), (2), or (3) of
this section, the offender made a threat of physical harm to or against
the victim, or as a result of an offense committed under division (A)(2)
or (3) of this section, a third person induced by the offenders
posted message made a threat of physical harm to or against the victim.
(c) In committing the offense under division (A)(1), (2), or (3) of
this section, the offender trespassed on the land or premises where the
victim lives, is employed, or attends school, or as a result of an
offense committed under division (A)(2) or (3) of this section, a third
person induced by the offenders posted message trespassed on the land
or premises where the victim lives, is employed, or attends school.
(d) The victim of the offense is a minor.
(e) The offender has a history of violence toward the victim or any
other person or a history of other violent acts toward the victim or
any other person.
(f) While committing the offense under division (A)(1) of this
section or a violation of division (A)(3) of this section based on
conduct in violation of division (A)(1) of this section, the offender
had a deadly weapon on or about the offender's person or under the
offender's control. Division (B)(2)(f) of this section does not apply
in determining the penalty for a violation of division (A)(2) of this
section or a violation of division (A)(3) of this section based on
conduct in violation of division (A)(2) of this section.
(g) At the time of the commission of the offense, the offender was
the subject of a protection order issued under section 2903.213 or
2903.214 of the Revised Code, regardless of whether the person to be
protected under the order is the victim of the offense or another
person.
(h) In committing the offense under division (A)(1), (2), or (3) of
this section, the offender caused serious physical harm to the premises
at which the victim resides, to the real property on which that
premises is located, or to any personal property located on that
premises, or as a result of an offense committed under division (A)(2)
of this section or an offense committed under division (A)(3) of this
section based on a violation of division (A)(2) of this section, a
third person induced by the offender's posted message caused serious
physical harm to that premises, that real property, or any personal
property on that premises.
(i) Prior to committing the offense, the offender had been determined
to represent a substantial risk of physical harm to others as
manifested by evidence of then-recent homicidal or other violent
behavior, evidence of then-recent threats that placed another in
reasonable fear of violent behavior and serious physical harm, or other
evidence of then-present dangerousness.
(3) If the victim of the offense is an officer or employee of a
public children services agency or a private child placing agency and
the offense relates to the officers or employee's performance or
anticipated performance of official responsibilities or duties,
menacing by stalking is either a felony of the fifth degree or, if the
offender previously has been convicted of or pleaded guilty to an
offense of violence, the victim of that prior offense was an officer or
employee of a public children services agency or private child placing
agency, and that prior offense related to the officer's or employee's
performance or anticipated performance of official responsibilities or
duties, a felony of the fourth degree.
(C) Section 2919.271 of the Revised Code applies in relation to a
defendant charged with a violation of this section.
(D) As used in this section:
(1) "Pattern of conduct" means two or more actions or incidents
closely related in time, whether or not there has been a prior
conviction based on any of those actions or incidents. Actions or
incidents that prevent, obstruct, or delay the performance by a public
official, firefighter, rescuer, emergency medical services person, or
emergency facility person of any authorized act within the public
official's, firefighter's, rescuer's, emergency medical services
persons, or emergency facility person's official capacity, or the
posting of messages or receipt of information or data through the use
of an electronic method of remotely transferring information,
including, but not limited to, a computer, computer network, computer
program, computer system, or telecommunications device, may constitute
a "pattern of conduct."
(2) "Mental distress" means any of the following:
(a) Any mental illness or condition that involves some temporary
substantial incapacity;
(b) Any 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.
(3) "Emergency medical services person" is the singular of "emergency
medical services personnel" as defined in section 2133.21 of the
Revised Code.
(4) "Emergency facility person" is the singular of "emergency
facility personnel" as defined in section 2909.04 of the Revised Code.
(5) "Public official" has the same meaning as in section 2921.01 of
the Revised Code.
(6) "Computer," "computer network," "computer program," "computer
system," and "telecommunications device" have the same meanings as in
section 2913.01 of the Revised Code.
(7) "Post a message" means transferring, sending, posting,
publishing, disseminating, or otherwise communicating, or attempting to
transfer, send, post, publish, disseminate, or otherwise communicate,
any message or information, whether truthful or untruthful, about an
individual, and whether done under one's own name, under the name of
another, or while impersonating another.
(8) "Third person" means, in relation to conduct as described in
division (A)(2) of this section, an individual who is neither the
offender nor the victim of the conduct.
(9) "Sexual motivation" has the same meaning as in section 2971.01 of
the Revised Code.
(E) The state does not need to prove in a prosecution nnder this
section that a person requested or received psychiatric treatment,
psychological treatment, or other mental health services in order to
show that the person was caused mental distress as described in
division (D)(2)(b) of this section.
(F)(1) This section does not apply to a person solely because the
person provided access or connection to or from an electronic method of
remotely transferring information not under that person's control,
including having provided capabilities that are incidental to providing
access or connection to or from the electronic method of remotely
transferring the information, and that do not include the creation of
the content of the material that is the subject of the access or
connection. In addition, any person providing access or connection to
or from an electronic method of remotely transferring information not
under that person's control shall not be liable for any action
voluntarily taken in good faith to block the receipt or transmission
through its service of any information that it believes is, or will be
sent, in violation of this section.
(2) Division (F)(1) of this section does not create an affirmative
duty for any person providing access or connection to or from an
electronic method of remotely transferring information not under that
person's control to block the receipt or transmission through its
service of any information that it believes is, or will be sent, in
violation of this section except as otherwise provided by law.
(3) Division (F)(1) of this section does not apply to a person who
conspires with a person actively involved in the creation or knowing
distribution of material in violation of this section or who knowingly
advertises the availability of material of that nature.