State v. Hoying WL 678989 (OhioApp. 2005)
Ted Hoying, the defendant, was convicted by a jury in the Court of Common Pleas, of menacing
by stalking and intimidation of a victim. He was sentenced to a total of six and one-half years in
prison. The defendant appealed. The Ohio Court of Appeals affirmed.
Ted Hoying met the victim, Kelly Criswell, when they both worked at a local restaurant. In June
2002, Hoying asked Criswell for a date and became quite angry when she declined. When
Hoying persisted in contacting Ms. Criswell after she left her employment with the restaurant,
Ms. Criswell obtained a civil protection order against Hoying in February 2003. Subsequently,
between August 15, 2003, and September 7, 2003, Hoying sent 105 e-mails to Ms. Criswell in
violation of the protection order.
In the first e-mail, which is dated August 15, 2003, Hoying acknowledged that he could get in
trouble for writing. He then asked Ms. Criswell to remove the civil protection order. Ms.
Criswell did not reply to any of Hoying’s e-mails, which became increasingly agitated.
The first threatening e-mail is dated August 16. This e-mail states, “Maybe I still have your
picture and I will post it on the Net. Fair is fair. Ted.” Subsequently, Hoying wrote, “Why don’t
you tell the authorities I shot three boxes of shells at clay birds yesterday? I’m going to do that
the rest of my life at least once a week. I don’t give a rat’s ass what number eight says on that
civil protection order. Ted.” That e-mail is also dated August 16, 2003.
In another e-mail dated August 16, 2003, Hoying threatened to come to Ms. Criswell’s place of
employment unless she met with him. The same day, in another e-mail message, Hoying
indicated that he would persist in sending e-mails until Ms. Criswell agreed to talk to him.
In an e-mail dated August 17, 2003, Hoying made a significant threat to Ms. Criswell.
Specifically, he said:
Kelly, set me free. I’m no longer a man. I’m shackled like a beast. What is a man if he is not
free? Let me take away your freedom and you feel the sting. Also, it’s not pleasant. Set me free.
In another e-mail written on the same day, Hoying again threatened to go to Ms. Criswell’s place
of employment. He reiterated that threat in another e-mail, which was also written on August 17,
As a result of receiving these e-mails, Ms. Criswell filed charges in Xenia Municipal Court,
alleging that Hoying had violated the civil protection order. Hoying acknowledged receiving the
charge in an e-mail dated August 28, 2003. In that e-mail, Hoying said, “Kelly, why did you do
that at Xenia? All I wanted was for things to be normal. I thought you could be nice.” The same
day, Hoying threatened to file criminal charges against Ms. Criswell’s boyfriend, whom Hoying
thought was named “Grinstead.”
Subsequently, on August 30, 2003, Hoying sent Ms. Criswell another message. In that e-mail,
Hoying threatened that “If the stuff in Xenia is not handled then some things are going to
happen.” The next day, Hoying sent a message, which said:
Ms. Criswell, tell your old man to get rid of the Xenia stuff or the hammer is going to fall heavy
on him. It will take three years to get all of this stuff straightened out. If not, remember you are
going to be subpoenaed for the thefts since you supplied some of the info, so you might as well
say good bye to your job. I’ve been nice to you. I don’t deserve to be paid back like this. I don’t
want to hurt you, but if you choose their side then that is that. This is such high school shit. I’m
not coming to court anyway. I have an important doctor’s appointment. My life is just as
important as yours. If it is not handled and they come for me, they better bring an army. Ted.
As a result of the e-mails, Ms. Criswell changed her address, changed her license plate, changed
employment, and eventually moved away. (Ms. Criswell’s current living arrangement was not
revealed in court, for her protection.) Ms. Criswell also testified that she could possibly need
psychiatric or psychological assistance in the future because of everything Hoying had done.
Hoying claims that his conviction for menacing by stalking was based on insufficient evidence.
As support for this contention, Hoying notes that he did not cause physical harm to Ms. Criswell
and she did not seek professional help for mental distress. He also notes a lack of evidence that
he was aware that Ms. Criswell believed he would cause her physical harm or mental distress.
The essential elements of menacing by stalking are found in R.C. 2903.211, which provides, in
pertinent part, that:
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. Whoever violates this section is guilty of menacing by stalking.
Menacing by stalking is a felony of the fourth degree if any of the following
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.
After reviewing the evidence, we agree with the State that a reasonable jury could have inferred
from the content of the e-mails that Hoying knew Ms. Criswell would consider the messages to
be a threat to her physical safety or to that of her father. A reasonable jury could also have found
that the messages would cause Ms. Criswell mental distress. The fact that Ms. Criswell
previously sought a civil protection order was some evidence that she was afraid of the
defendant, and the e-mails were sent after the protection order was issued to the defendant. Ms.
Criswell also testified that she was “scared to death” of Hoying and that he had caused her much
As an additional matter, Hoying’s conduct in court did not help his case, as he interrupted Ms.
Criswell’s testimony several times with inappropriate comments, including calling her a liar. In
one outburst, Hoying made what could be interpreted as a threat, stating, “She’d better start
telling the truth and quit lying, that’s for sure.”
Hoying did not present any evidence to counteract the victim’s testimony, or to prove that she
was lying. Accordingly, any rational trier of fact had more than an ample basis for finding
Hoying guilty of menacing by stalking.
Hoyer also challenges the trial court’s action in sentencing Hoying to the maximum term for the
conviction of menacing by stalking, which is a fourth-degree felony, at least under the
circumstances of this case. See R.C. 2903.211(B)(2)(g). Although community control sanctions
are available for fourth-degree felonies, Hoying admits that they are not guaranteed. Hoying
further concedes that he probably forfeited the ability to obtain community control by his
conduct during trial and the sentencing hearing, and by his refusal to participate in the
presentence investigation process. Having reviewed the record, we fully agree with that
Nonetheless, Hoying contends that he should not have received the maximum sentence for
menacing by stalking because the record does not support a finding that he poses the greatest
likelihood of recidivism. We disagree.
Under R.C. 2929.14(A) (4), the potential term for a fourth-degree felony is six to eighteen
months. R.C. 2929.14(C) additionally states that: Except as provided in division (G) of this
section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender
for a felony may impose the longest prison term authorized for the offense pursuant to division
(A) of this section only upon offenders who committed the worst forms of the offense, upon
offenders who pose the greatest likelihood of committing future crimes, upon certain major drug
offenders under division (D) (3) of this section, and upon certain repeat violent offenders in
accordance with division (D) (2) of this section.
When a trial court imposes maximum sentences, it must state its findings and reasoning at the
sentencing hearing. Also, when a trial court states its reasons for imposing a maximum sentence,
it must connect those reasons to the finding which the reason supports. The court cannot merely
pronounce causes that objectively may be its reasons. The court must also identify which of
those causes are the particular reasons for each of the statutory findings that the court made.
In the present case, the trial court complied with the requirement of making findings at the
sentencing hearing. The court also adequately connected its reasons for imposing a maximum
sentence to the finding that the reason supported. At the sentencing hearing, the court stated that
it found that Hoying had the greatest likelihood to re-offend, and that Hoying had committed the
worst form of the offense.
Before reciting the court’s specific reasons for these findings, we should note that the very night
the jury verdict was issued, Hoying attempted to contact the victim. According to the State,
Hoying attempted to contact Ms. Criswell five times. Hoying denied making five attempts, but
did admit that he tried to contact the victim after the verdict to ask for help with his appeal. In
view of the nature of the crime (menacing by stalking) and the jury verdict of “guilty,” an
attempt to contact the victim of the crime shows either a disconnection from reality or an
obstinate refusal to submit to the authority of the law.
Hoying also refused to cooperate in any way with the presentence investigation. In addition,
Hoying disrupted the sentencing process, showering foul language and abuse on the victim, her
family, and even the court, to the point that Hoying eventually had to be removed from the
courtroom. Ultimately, in discussing the length of the sentence, the trial court specifically
connected the following reasons to its findings, by stating that:
when the victim in this case testified, the Defendant’s conduct as to her testimony was absolutely
parallel to the conduct of the crime in which he was charged, beginning with his sense of
enjoyment of the presence of the victim as she testified, and as her testimony became less
beneficial to the Defendant, he proceeded to become more aggravated and agitated, writing
notes, ultimately basically yelling at the victim during the course of that testimony, clearly,
giving an indication as to his attitude and conduct toward the victim in this matter which brought
this case forward in the first place.
For that reason, the Court finds that the shortest prison term would not protect the public from
future crimes, and the court has the greatest fear for Kelly Criswell, which the record will reflect,
has moved from the immediate area and has taken extraordinary steps to prevent her location
from being identified by this Defendant.
The Court notes for the record that testimony in this case and the information subsequently
received indicates that the particular victim in this case had no relationship whatsoever with the
Defendant, can’t even suggest there ever was a scintilla of a relationship, yet the Defendant’s
attitude toward her is just a classic stalking attitude, and the harm caused to her is so significant
that it is necessary to take extreme measures so the Court can protect her, as well as others from
The Court clearly feels the Defendant’s conduct as demonstrated at his arrest, at his arraignment,
during the conduct of this matter, the trial, and the sentencing here demonstrates an attitude on
his part of failure to comply with authority, the failure to respect the integrity of other
individuals, and quite candidly, makes this Defendant a very dangerous individual.
The shortest prison term will demean the seriousness of the Defendant’s conduct.
The Court further finds based upon the facts stated herein and the information provided, which
will be made a part of the record in this matter, that the Defendant’s conduct has, to a great
degree, established the worst form of the offense. I do not discount Counsel’s statement that a
first time offender is one in which there is an indication from the legislature that the least
restrictive setting should apply; however, this Court can say unequivocally, in all the time that
I’ve been on the Bench, I’ve never seen a Defendant that I’m more sure of is a serious threat to
society and to the public.
The Court also finds the Defendant clearly poses the greatest likelihood to commit future crimes
in this matter, and as such, the Court makes reference particularly to the competency report
prepared earlier this year where the Defendant indicated in his evaluation, quote, I know I’m not
crazy. I knew what I was doing when I contacted her knowing I was violating the order, end
We find that the above discussion by the trial court fully complies with requirements for
imposing maximum sentences. We also agree with the trial court that a maximum sentence was
warranted. The record in this case is quite troubling, since it portrays an individual who either
has no remorse for his actions, or refuses to admit he needs mental health treatment. Even though
Hoying was found competent to stand trial that does not mean that he is free of mental health
problems that should be addressed, hopefully while he is in the prison system.
The judgment of the trial court is affirmed.
Purchase answer to see full attachment