The opinion
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Cupp, Presiding Judge,
concurring in part and dissenting in part.
{¶ 12} I concur in the judgment reached by the majority but only for the reasons ascribed to the third assignment of error.
{¶ 13} I am compelled to dissent, however, from the majority’s conclusion that Cress’s conduct did not constitute the crime of intimidation of a witness. The statute prohibiting intimidation of a witness provides:
No person, knowingly * * * by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges * * *.
R.C. 2921.04(B). The majority concludes that the threats made by Cress, for the purpose of getting Tara to go to the police and tell the police that she had lied about Cress’s conduct, are not
“unlawful
threat[s] of harm.” I cannot agree with this holding.
{¶ 14} The conduct with which Cress attempted to threaten Tara would clearly create harm to Tara: possible loss of her children to children services, loss of her pet dog, civil or criminal charges for unauthorized retention of rental property, eviction, and embarrassment from the release of nude photos. At a minimum, threatening someone with disclosure of information that would subject him or her to civil or criminal proceedings can fairly be said to be a threat of harm within the meaning of the statute.
{¶ 15} The harm threatened by Cress was for the purpose of forcing Tara to recant her previous statements about him to the police. Tara’s recantation,' if false, would be unlawful and could subject Tara to possible criminal charges for obstruction of official business or worse.
{¶ 16} I would hold, therefore, that Cress’s conduct falls within the proscription of the statute. The threats made to Tara were clearly made for an improper purpose, which was to force her to do an improper act, i.e. make false statements to a law enforcement officer. Since the action that Cress attempted to intimidate Tara into taking was unlawful, the threat used to achieve it was concomitantly unlawful.
{¶ 17} Additionally, it is unlawful to make threats for the purpose of coercing one to take particular action. R.C. 2905.12(A) provides:
No person, with purpose to coerce another into taking or refraining from action concerning which the other person has a legal freedom of choice, shall do any of the following: * * *
(2) Utter or threaten any calumny against any person;
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(3) Expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule, to damage any person’s personal or business repute, or to impair any person’s credit;
(4) Institute or threaten criminal proceedings against any person * * *.
{¶ 18} Cress’s threats encompassed several of these characteristics.
2
2
. Because the state was the prevailing party at the trial court level, the relationship of the crime of coercion to the crime of intimidation in determining whether the threats made by Cress were "unlawful” within the meaning of the intimidation statute would not have arisen. Hence, appellee could not have waived the argument in the trial court.