Fifth District: Social media and text messages showed intent to threaten security manager

A former employee’s convictions for threats to an security manager in text and social media messages and by phone are upheld because a jury found the employee intended to threaten, abuse, or harass the manager, the Fifth District Court of Appeals ruled recently.

In the unanimous ruling, the appeals court also rejected employee Clifford Echols’ argument that the comments were protected by the First Amendment guarantee of freedom of speech. The Fifth District concluded threats that intimidate or cause the recipient fear or apprehension don’t fall under First Amendment protections. The Fifth District decision upheld Echols’ April 2023 convictions for telecommunications harassment and menacing by stalking.

Over the course of a week in May 2022, D.M., a security program manager, received several threatening communications. They included a phone call in which the caller, who identified himself as Echols, threatened to beat D.M., and a series of texts from the same number threatening that someone was going to die. Echols had been employed by a facility in Etna, and D.M. investigated him once for workplace violence.

D.M. also received threatening messages and posts on social media. One implied the company owed Echols money and D.M. was involved in withholding it. The message stated, “[I]f you don’t get my money I’m working on sending you and your friends to prison how do you think your family and peers are going to react when they find out what you did” followed by comments including expletives, and ending with “Get my money.”

D.M.’s job duties included making employee identification badges. He never met Echols, but he knew what Echols looked like from creating badges. Echols’ employment was terminated, and D.M. investigated Echols for workplace violence that occurred after the termination. D.M. also testified for the state in an earlier criminal case against Echols. The case was eventually dismissed.

After the threatening phone call from a person saying he was Echols, D.M. received texts from the same number including one that listed D.M.’s last home address. The texts, which often lacked punctuation, also communicated that the company and D.M. owed the texter money for violating his rights and included a screenshot of a DVD labeled “Jury Trial” with an April 2021 date. The screenshot was from an social media account with a profile picture of Echols. On D.M.’s social media hobby page, he received postings such as “were watching better do the rite thing.”

D.M. reported the communications to his supervisor, who contacted the Licking County Sheriff’s Office. D.M. received additional messages on social media. During this time, his account also received posts threatening the deputies connected to Echols’ 2021 dismissed case and claiming that D.M. lied at Echols’ earlier trial. D.M. obtained a civil protection order against Echols and bought firearms for protection.

Echols was charged with four counts of telecommunications harassment and one count of menacing by stalking. At a jury trial in Licking County Municipal Court, Echols denied telephoning and texting D.M. Echols also said many people had access to his social media accounts and knew about his claims against the Etna company. He testified he didn’t intend to threaten D.M. and just wanted to sue D.M., the company and the state. He said if D.M. took things out of context because of the aggressive language, he apologized.

The jury found Echols guilty on all counts, and the court sentenced him to 180 days in jail. Echols appealed to the Fifth District.

Echols argued to the appeals court that the state didn’t prove he sent the messages intending to abuse, threaten or harass D.M., whom he didn’t know. Echols also maintained that the social media communications discussed a financial dispute between him and the company, the posts were public and not directed at D.M., and any offensive language was protected by the First Amendment.

Writing for the Fifth District, Judge William B. Hoffman explained that the appeals court had to determine whether a rational juror could have found the essential elements of the crimes were proven beyond a reasonable doubt and whether the jury lost its way in reviewing the evidence in this case. The opinion noted the threatening texts came from the same phone number as a person who called and identified himself as Echols and who threatened D.M. One of the social media accounts sending messages had a profile picture of Echols. D.M. also received a text from the earlier number with a screenshot of D.M.’s social media page and the message, “Want to make sure your getting my messages.”

The Fifth District concluded that a rational juror could conclude from the direct threats in the messages that Echols’ intent was to threaten, abuse or harass D.M.

On the claim that the social media posts weren’t directly sent to D.M., Judge Hoffman explained that the telecommunications harassment law doesn’t require a message to be sent directly to the person. It only requires the message “knowingly be posted on [an] internet web site or web page for the purpose of abusing, threatening, or harassing another person,” the opinion stated.

The appeals court rejected Echols’ First Amendment argument, noting the difference between objectionable comments and threats.

“… [Echols] argues generally his use of language some might find offensive is protected speech under the First Amendment. However, threats which intimidate or cause fear or apprehension by the recipient are unprotected by the First Amendment. … We find the charges in the instant case related to threatening language, and not to [Echols’] use of offensive language.”

The Fifth District also upheld the menacing by stalking conviction. The messages after the first phone call continued for a week, establishing a pattern of conduct, the court ruled. It also noted that the messages from Echols listed D.M.’s prior address and threatened physical harm. The evidence showed a pattern of conduct and threats of physical harm or mental distress – which support a conviction for menacing by stalking, the court concluded.

Judges W. Scott Gwin and Andrew J. King joined the decision.

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