O
hio Legislative Service Commission
122nd Senate Bill Analysis
Sub. S.B. 215** This analysis was prepared before the report of the Senate Judiciary Committee appeared in the Senate Journal. Note that the list of co-sponsors and the legislative history may be incomplete.
122nd General Assembly
(As Reported by S. Judiciary)


Makes the penalty for a second or subsequent conviction of menacing by stalking a felony of the fifth degree, regardless of whether the offenses resulting in the convictions involved the same victim.
Makes the penalty for a second or subsequent conviction of telephone harassment a felony of the fifth degree, regardless of whether the offenses resulting in the convictions involved the same person, recipient, or premises.

CONTENT AND OPERATION

Menacing by stalking

Existing law

Existing law prohibits a person, by engaging in a "pattern of conduct" (see below), from knowingly causing another to believe that the offender will cause "physical harm" (see below) to the other person or cause "mental distress" (see below) to the other person. Whoever violates this prohibition is guilty of the offense of "menacing by stalking." Menacing by stalking generally is a misdemeanor of the first degree and is a felony of the fifth degree if the offender previously has been convicted of or pleaded guilty to menacing by stalking and if both the offense for which sentence is being imposed and the previous offense involved the same person as the victim. (R.C. 2913.211(A) and (B).)

As used in the offense of menacing by stalking (R.C. 2903.211(C)): (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; and (2) "mental distress" means any mental illness or condition that involves some temporary substantial incapacity or mental illness or condition that would normally require psychiatric treatment. As used in the Revised Code, "physical harm to persons" means any injury, illness, or other physiological impairment, regardless of its gravity or duration (R.C. 2901.01).

Existing law sets forth special factors that generally must be considered in setting bail for a person charged with menacing by stalking (R.C. 2903.212), authorizes the issuance in specified circumstances of an anti-stalking protection order as a pretrial condition of release of a person who is charged with menacing by stalking or certain specified menacing-related or assault-related offenses (R.C. 2903.212), and, under the crime of "violating a protection order" (R.C. 2919.27), prohibits a person from recklessly violating the terms of an anti-stalking protection order.

Operation of the bill

In the existing provision that specifies that menacing by stalking is a felony of the fifth degree if the offender previously has been convicted of or pleaded guilty to menacing by stalking and if both the offense for which sentence is being imposed and the previous offense involved the same person as the victim, the bill eliminates the requirement that both the offense for which sentence is being imposed and the previous offense must have involved the same person as the victim. Thus, under the bill, a second or subsequent conviction of menacing by stalking always is a felony of the fifth degree, regardless of whether at least two of the offenses resulting in the convictions involved the same victim. (R.C. 2903.211(B).)

Telephone harassment

Existing law

Existing law prohibits a person from doing any of the following (R.C. 2917.21(A) and (B)):

(1) Knowingly making or causing to be made a telephone call, or knowingly permitting a telephone call to be made from a telephone under the person's control, to another, if the caller does any of the following: (a) fails to identify the caller to the recipient of the telephone call and makes the telephone call with purpose to harass, abuse, or annoy any person at the premises to which the telephone call is made, whether or not conversation takes place during the telephone call, (b) describes, suggests, requests, or proposes that the caller, recipient of the telephone call, or any other person engage in any sexual activity as defined in the Sex Offenses Law (R.C. 2907.01), and the recipient of the telephone call, or another person at the premises to which the telephone call is made, has requested, in a previous telephone call or in the immediate telephone call, the caller not to make a telephone call to the recipient of the telephone call or to the premises to which the telephone call is made, (c) during the telephone call, commits aggravated menacing in violation of R.C. 2903.21, (d) knowingly states to the recipient of the telephone call that the caller intends to cause damage to or destroy public or private property, and the recipient of the telephone call, any member of the family of the recipient of the telephone call, or any other person who resides at the premises to which the telephone call is made owns, leases, resides, or works in, will at the time of the destruction or damaging be near or in, has the responsibility of protecting, or insures the property that will be destroyed or damaged, or (e) knowingly makes the telephone call to the recipient of the telephone call, to another person at the premises to which the telephone call is made, or to the premises to which the telephone call is made, and the recipient of the telephone call, or another person at the premises to which the telephone call is made, previously has told the caller not to call the premises to which the telephone call is made or not to call any persons at the premises to which the telephone call is made.

(2) Making or causing to be made a telephone call, or permitting a telephone call to be made from a telephone under the person's control, with purpose to abuse, threaten, annoy, or harass another person.

A violation of either of the above-described prohibitions is the offense of "telephone harassment." Except when the violation involves the conduct described above in clause (d) of paragraph (1), telephone harassment generally is a misdemeanor of the first degree on a first offense and a felony of the fifth degree on each subsequent offense involving the same person, recipient, or premises. When the violation involves the conduct described above in clause (d) of paragraph (1), telephone harassment generally is a misdemeanor of the first degree on a first offense and a felony of the fifth degree on each subsequent offense, provided that if the violation results in economic harm of $500 or more but less than $5,000, it is a felony of the fifth degree, if it results in economic harm of $5,000 or more but less than $100,000, it is a felony of the fourth degree, and if it results in economic harm of $100,000 or more, it is a felony of the third degree. (R.C. 2917.21(C).)

As used in the offense of telephone harassment, "economic harm" means all direct, incidental, and consequential pecuniary harm suffered by a victim as a result of criminal conduct. "Economic harm" includes, but is not limited to, all of the following: (1) all wages, salaries, or other compensation lost as a result of the criminal conduct, (2) the cost of all wages, salaries, or other compensation paid to employees for time those employees are prevented from working as a result of the criminal conduct, (3) the overhead costs incurred for the time that a business is shut down as a result of the criminal conduct, and (4) the loss of value to tangible or intangible property that was damaged as a result of the criminal conduct. (R.C. 2917.21(D).)

Operation of the bill

In the existing provision that specifies that telephone harassment, other than telephone harassment involving the conduct described above in clause (d) of paragraph (1), is a felony of the fifth degree if the offender previously has been convicted of or pleaded guilty to telephone harassment and the previous offense involved the same person, recipient, or premises, the bill eliminates the requirement that both the offense for which sentence is being imposed and the previous offense must have involved the same person, recipient, or premises. Thus, under the bill, a second or subsequent conviction of telephone harassment that does not involve the conduct described above in clause (d) of paragraph (1) always is a felony of the fifth degree, regardless of whether the previous offense involved the same person, recipient, or premises. (R.C. 2917.21(C)(2).)

HISTORY

ACTION DATE JOURNAL ENTRY

Introduced 01-08-98 p. 1489
Reported, S. Judiciary --- ---



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