City of Centerville v. James C. Locker, 81-LW-1304
| Decision Date | 02 December 1981 |
| Docket Number | 81-LW-1304,6835 |
| Parties | CITY OF CENTERVILLE Plaintiff-Appellee, v. JAMES C. LOCKER, JR. Defendant-Appellant. CASE |
| Court | Ohio Court of Appeals |
ROBERT N. FARQUHAR and GAIL S. YOUNG, 1300 Talbott Tower, Dayton Ohio 45402 Attorneys for Plaintiff-Appellee.
J TIMOTHY CLINE, JR., 934 Third National Building, Dayton, Ohio 45402 Attorney for Defendant-Appellant.
The Appellant was charged with one count of telephone harassment under Section 537.10(A)(4) of the Codified Ordinance of the City of Centerville, Ohio.®1¯ The trial was held before a jury in the Kettering Municipal Court on April 23, 24 and 25 1980. The appellant was found guilty and sentenced as follows: A fine of $500 and court costs and 90 days in the Greene County Jail. The Court suspended $400.00 of the fine and the 90 days in jail, on condition of no similar offenses within one year and no contact with the complainant, Theresa Moorman.
The defendant was charged with knowingly making repeated telephone calls to Theresa Moorman after a reasonable request to desist on or about December 20, 1979.
Theresa Moorman testified that she received eight (8) calls from the defendant on the evening of December 20, 1979 after she had told him to stop calling. (Tr. pp. 99-101).
The defendant stated that he and Theresa Moorman were still friends and that he did call her during the evening of December 20, 1979, three times when she answered. He said that on several tries no one answered. He denied that she told him to stop calling. He denied that he called eight (8) times that night.
In 1979, the defendant, James C. Locker, Jr., and Theresa Moorman had seen each other socially and were engaged to be married, and he had stayed at her apartment for a time. In late November of 1979, Theresa Moorman moved into a new apartment with Elena Mosconi. Miss Mosconi testified that James C. Locker, Jr. would call the apartment for Theresa. Miss Mosconi was not home on December 20, 1979, the date of the alleged calls. The telephone company representative testified that an incoming telephone call tap had been placed on the phone of Miss Mosconi at her request. There was testimony that the tap traps the phone number of an incoming call. The defendant stated that on a couple of his attempts the phone was not answered. There was a question whether these attempts would show up as calls on the trap. Ms. Turcott, representative of Ohio Bell testified that the trapping device only records numbers when there is an answer, when someone picks the telephone up on the other end. (Tr. 229-230). She further produced Ohio Bell records which indicated the "traps" located the originating calls to December 20th to be from the residence of James Locker or his place of employment.
Theresa Moorman stated that after she received a call she would call the telephone company and give her name, number and the time of the call on a tape recording.
Mrs. Eula Locker, the mother of the defendant, stated that there had been a close relationship between James, her son, and Theresa Moorman, and that the two would call each other. In December 1979, James C. Locker, Jr. was living at home with his parents. James C. Locker, Jr., the defendant, admitted that he called and spoke with Theresa Moorman on December 20, 1979 about three times at 10:21 P.M.; 11:27 P.M. and 11:31 P.M. He said he had not been told to desist in calling her at that time. He denied any other calls to her that evening.
On December 22, 1979, the Lockers were notified by a letter from the telephone company that a complaint had been made by Theresa Moorman and Elena Mosconi about telephone calls from their telephone.
After conviction and sentence, appellant filed a timely Notice of Appeal citing seven assignments of error.
THE COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT OF NOT GUILTY AFTER THE CONCLUSION OF THE STATE'S CASE AND AFTER THE RECEIPT OF THE EVIDENCE.
Criminal Rule 29 provides, in pertinent part:
"(A) The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses."
The Supreme Court of Ohio summarized the established law on sending an issue to the jury in State v. Bridgeman, 55 Ohio St. 2d 261, 9 Ohio Op. 3d 401 (1978):
At the close of the State's case the evidence reflected the following: (1) Theresa Moorman and Elena Mosconi both testified that defendant Locker had made repeated phone calls to their apartment after having been asked several times to desist. (2) Theresa Moorman testified that defendant completed eight telephone calls to her on the evening of December 20, 1979 and that she told defendant, each time, to stop calling. Ms. Moorman also testified that she reported all of defendant's calls to Ohio Bell. (Tr. pp. 99-101). (3) The Ohio Bell electronic print-out had recorded eight calls being made to the apartment of Theresa Moorman and Elena Mosconi on December 20th at 7:50, 8:25, 9:21, 9:39, 10:21, 10:42, 11:27 and 11:31. The records of Ohio also show that within a few minutes of each of the aforementioned times, a call was placed from 435-5716, reporting an annoying phone call. 435-5716 is the telephone number at the Carters Grove Residence of Theresa Moorman and Elena Mosconi. (Tr. pp. 202 and City's Exh. No. 3 Admitted). (4) The eight phone calls made on December 20, 1979, referred to above, originated from the residence of defendant Locker and from Baskin-Robbins, 1018 East Dorothy Lane. (Tr. p. 203). (5) Defendant Locker was employed at Baskin-Robbins, 1018 East Dorothy Lane, on December 20, 1979.
Viewing this evidence in the light most favorable to the State, a reasonable mind might fairly find guilt beyond a reasonable doubt, and therefore it would be improper for the court to give a judgment of acquittal.
State v. Brown, 102 Ohio App. 113, 2 Ohio Op. 2d 113 (1956).
The prosecution had presented substantial evidence that defendant Locker violated Section 537.10(A)(4) of the Codified Ordinance of the City of Centerville, Ohio by presenting evidence that defendant Locker knowingly made repeated telephone calls to another after reasonable request to desist.
Appellant also complains in the first Assignment of Error:
"That the evidence had indicated that telephone calls had been directed to the telephone and the person of Elena Mosconi and not Theresa Moorman and, therefore, since Theresa Moorman was the complainant, the prosecution had not proven the case."
The evidence presented by the State showed that Theresa Moorman received eight phone calls from defendant on December 20, 1979 and that Elena Mosconi was not present at that time. (Tr. 100).
The first assignment of error is not well taken.
THE COURT ERRED IN ALLOWING THE PROSECUTION TO CALL WITNESSES FROM OHIO BELL TELEPHONE COMPANY DURING THE CASE WHEN THE PROSECUTOR HAD SAID HE WOULD NOT CALL THEM IN HIS OPENING STATEMENTS.
We are aware of no law which would prevent the prosecution from calling to the stand a witness he either failed to mention in his opening statement or stated he would not call in his opening statement. Indeed the prosecution need not even make an opening statement if it so chooses. State v. Shaker (1980) 68 Ohio App. 2d 135.
The second assignment of error is overruled.
THE COURT ERRED IN ALLOWING INTO EVIDENCE NOTES AND COPIES OF CLIPPED SEGMENTS OF THE TELEPHONE TAP PROCESS WHEN IT WAS SHOWN THAT THE ACTUAL TAPES OF THE TELEPHONE TAPS WERE THE BASIS OF THE CHARGES BUT WERE DESTROYED BEFORE TRIAL AND THEREFORE NOT AVAILABLE.
Appellant complains that the court erred in allowing City's Exhibit No. 3 into evidence.
City Exhibit No. 3 consists of two parts. The lower part of the exhibit consists of clippings made from an electronic recording device which recorded all incoming, completed calls to the Carters Grove Apartment of Theresa Moorman and Elena Mosconi. Celeste Heifner Turcott, an Assistant Manager at Ohio Bell Telephone Company and Supervisor of the Annoyance Call Bureau (Tr. p. 192), identified these clippings and explained how and why they are made. (Tr. pp. 193-94).
The upper portion of City's Exhibit No. 3 is a writing transcribed from a tape recording of phone calls made to Ohio Bell by ...
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