From yesterday’s Ohio Court of Appeals decision in State v. Golga (my students Dice Hagiwara, Jonathan Kaiman, and Brandon Peevy and I had filed an amicus brief in the case, with the invaluable help of local counsel Jeffrey M. Nye [Stagnaro, Saba & Patterson], on behalf of Profs. Stephen Lazarus, Kevin O’Neill, Margaret Tarkington, the 1851 Center for Constitutional Law, and myself, urging reversal of the conviction):
The City of North Ridgeville … shut off the water supply to Mr. Golga’s residence because of nonpayment. He responded by calling the City’s Water Department eight times over the course of 26 minutes. During the calls, he screamed, used profanity, and insisted his service be restored. An accounting clerk attempted to aid him but ended several calls because Mr. Golga would not stop screaming and cursing at her. Needing a moment, she allowed another of his calls to go to voicemail. He left the following voicemail message:
[Y]ou can’t just be hanging up on people. That’s f***ing bullsh*t. If you’re f***ing trying to kill me by turning my f***ing water off, then f*** you. And if you’d like me to come down to the f***ing thing, we can have a f***ing conversation, go f*** yourself! You think you’re f***ing bad? Yeah, f*** him. Let’s starve him out. Let’s f***ing kill ’em all, right? F*** you!
Mr. Golga eventually spoke with the City’s public utilities director who came up with a plan to restore Mr. Golga’s water service the next morning.
After Mr. Golga’s voicemail message was forwarded to the police, he was charged with one count of telecommunications harassment in violation of Revised Code Section 2917.21(A)(1). A jury found him guilty of the offense. The municipal court sentenced Mr. Golga to 180 days in jail but suspended 177 of them. It also ordered him to complete anger management.
The Court of Appeals reversed, in an opinion written by Judge Jennifer Hensal and joined by Judge Donna Carr:
Section 2917.21(A)(1) prohibits any person from knowingly making a 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 * * *.” “‘Abuse’ may be defined as ‘[t]o injure (a person) physically or mentally.'” Intimidation “involves the creation of fear in a victim,” especially by way of threats. “Finally, ‘harassment’ may be defined as ‘[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose; purposeful vexation.'” …
It is understandable that the employees felt harassed, intimidated, and abused by Mr. Golga’s profanity-laced tirades and they were justified in hanging up on his repeated calls. For Mr. Golga to be guilty of telecommunications harassment, however, we must focus on his state of mind and whether it was his purpose to “abuse, [intimidate], or harass” them.
A careful review of the record reveals that it does not contain any evidence that Mr. Golga’s calls were made to purposefully abuse, intimidate, or harass the employees. The employees testified that Mr. Golga called the utilities department to get his water service turned back on. He began the first call politely but became irate when he learned that they could not or would not help him. He began repeatedly swearing at them and accused them of trying to kill him and his children by depriving them of water. He specifically told a child who was with him that the employee he was talking to wanted to kill the child. The employees could not remember exactly what Mr. Golga said during the phone calls, but said it was similar in content to his voicemail. Mr. Golga stopped calling after the public utilities director intervened and made arrangements with Mr. Golga to have his service restored.
In his voicemail, Mr. Golga expressed that he thought the employees were trying to harm and harass him. He rejected their invitation to come down to the utilities department to have a conversation. He accused them of trying to act “bad[,]” trying to “f*** him” over, trying to starve him, and trying to kill him. Those are statements of one who is threatened, not one who is intentionally seeking to harass, intimidate, or abuse others. The dissent contends that there was no evidence that the employees invited Mr. Golga to come to the water department, but the employee who initially received Mr. Golga’s calls testified that, after a customer receives a final shut off notice, the customer must come into the department to make arrangements to continue their service, which includes putting the arrangements in writing.
Because there was no evidence of purposeful intent by Mr. Golga, we conclude that his conviction for telecommunications harassment is not supported by sufficient evidence….
Judge Carr joined, but added:
I write separately to express my concern that prosecutions for telecommunications harassment such as the one here could have a chilling effect on the First Amendment rights of citizens to contact government offices in order to redress grievances. Courts should remain mindful that the First Amendment affords protections against laws which abridge the freedom of speech as well as the freedom to petition the government to redress grievances.
Judge Jill Flagg Lanzinger dissented; an excerpt:
Both the accounting clerk and the Public Utilities Director repeatedly expressed how Mr. Golga’s calls negatively affected them. They testified that they felt abused, intimated, harassed, and concerned for their safety. The accounting clerk testified that, in her 17 years working for the Water Department, she “only had two customers that [she had] been truly * * * worried about them coming to City Hall and Mr. Golga was one of them.” The Public Utilities Director testified that, of all the “irate residents” she had dealt with during her time at City Hall, Mr. Golga “rank[ed] at number one.” …
Viewing the evidence in a light most favorable to the State, a rational trier of fact could have concluded that the State proved its case beyond a reasonable doubt. Mr. Golga repeatedly called the Water Department to scream and curse at the two females who answered his calls. Even if he initially called the department for a legitimate purpose (i.e., to have his water service restored), the accounting clerk testified that he quickly became aggressive when he was told his water service would not be restored without payment. The change in the tone and manner of his speech, combined with the frequency of his calls, evidenced a specific intent to abuse, intimidate, or harass the accounting clerk and the Public Utilities Director. Both women described how Mr. Golga screamed at them, swore at them, and refused to listen to any of their efforts to aid him.
The voicemail he left did not contain any pleas for aid or questions about the restoration of his service. He left the voicemail to condemn the accounting clerk for terminating his call, accuse her of trying to kill him, and suggest she might like him to “come down to the f***ing thing” to “have a “f***ing conversation.” Both the accounting clerk and the Public Utilities Director noted that Mr. Golga’s calls were some of the worst they had received while working for the City. Indeed, Mr. Golga appeared to recognize the outrageousness of his own behavior when he introduced himself in person as “the psychopath” or something similar. Based on the foregoing evidence, the jury reasonably could have concluded that it was Mr. Golga’s specific intent to mentally injure the females, cause them fear, and/or annoy, alarm, or cause them substantial emotional distress for no legitimate purpose….
Peter Pattakos and Gregory Gipson represent Golga.
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