State v. Ambrosia, No. L-88-058

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtHANDWORK; GLASSER
Citation67 Ohio App.3d 552,587 N.E.2d 892
Docket NumberNo. L-88-058
Decision Date04 May 1990
PartiesThe STATE of Ohio, Appellee, v. AMBROSIA, Appellant. *

Page 552

67 Ohio App.3d 552
587 N.E.2d 892
The STATE of Ohio, Appellee,
v.
AMBROSIA, Appellant. *
No. L-88-058.
Court of Appeals of Ohio, Sixth District, Lucas County.
Decided May 4, 1990.

Page 554

Syllabus by the Court

1. Under Ohio law, an indictment for repeated sexual contact need not specify the exact dates of each contact where the state does not possess or cannot reasonably obtain such information.

2. A unanimous verdict may be reached in a case where the indictment alleges that a child was raped intermittently within a specified time period even though the exact date of each rape is unknown because the jury must either believe or disbelieve the victim's testimony that the pattern of conduct occurred.

3. Opinion evidence of character, as the term is used in Evid.R. 405(A), does not include an expert opinion of character traits assessed by a psychologist pursuant to a psychological evaluation.

Anthony G. Pizza, Pros. Atty., and Thomas N. Tomczak, Toledo, for appellee.

John F. Potts, Toledo, for appellant.

HANDWORK, Presiding Judge.

This matter is before the court upon appeal of the January 29, 1988 judgment of the Lucas County Court of Common Pleas sentencing appellant, Ronald Ambrosia, to life imprisonment for violation of R.C. 2907.02.

Appellant was indicted on June 17, 1987, for three counts of violating R.C. 2907.02. It was alleged that appellant compelled his minor stepdaughter,

Page 555

Monica Ambrosia, to submit by force or threat of force to sexual conduct. The first count alleged that such conduct occurred in 1984. The second count alleged that such conduct occurred in 1985. The third count alleged that such conduct occurred in 1986. The indictment was subsequently expanded upon in an amended bill of particulars wherein the state identified the dates of the alleged offenses as occurring between January 1, 1984 and December 31, 1984; between January 1, 1985 and December 31, 1985; and between January 1, 1986 and August 1986. The state further explained that the offenses allegedly occurred at or near 5651 Knightsbridge, Toledo, Ohio, the home of appellant and his family, including the victim. Appellant filed various motions to compel discovery or dismiss the indictment asserting that more specific dates were necessary for the defense to adequately prepare its case, but each motion was denied. The state asserted that it was unable to be more specific because the victim could not recall the dates of any of the offenses. Appellant filed a notice of claim of alibi although he did not present any alibi during trial. In addition, the state's motion in limine to exclude evidence regarding the results of appellant's psychological and physiological tests was granted. The case proceeded to trial by jury, and appellant was found guilty of all three counts.

Appellant asserts that the following errors occurred in the trial below:

"I. It constituted error to deny the motion to dismiss.

"II. It constituted error to deny the motion for a mistrial.

"III. It constituted error to deny the motion for a new trial.

"IV. The verdicts were against the manifest weight of the evidence and/or contrary to law.

"V. The finding that the victim was compelled to submit by force or the threat of force is against the manifest weight of the evidence.

[587 N.E.2d 895] "VII. It constituted plain error for the trial court not to instruct on the necessity for a unanimous verdict.

"VIII. It constituted error to refuse to allow appellant to adduce evidence with respect to the penile plethysmograph test and related psychological testing.

"IX. It constituted error to refuse to allow appellant to adduce evidence with respect to the MMPI and related psychological testing."

In his first assignment of error, appellant alleges that he was denied his constitutional right under the Sixth Amendment to the United States Constitution and the Ohio Constitution to be notified of the nature and cause of the accusation. More specifically, appellant alleges that the failure to identify the specific dates on which the rapes occurred prevented appellant from preparing

Page 556

a viable defense. Furthermore, appellant alleges that an unanimous verdict is impossible where the indictment does not classify each specific incident as a separate count. Therefore, appellant contends that the indictment should have been dismissed prior to trial. In support of his argument, appellant relies on Ohio case law and cases from other jurisdictions, namely, Knight v. State (Fla.App.1987), 506 So.2d 1182; People v. MacAfee (1980), 76 App.Div.2d 157, 431 N.Y.S.2d 149; and United States v. Parente (D.Conn.1978), 449 F.Supp. 905.

In order to determine what information must be included within an indictment under Ohio law, we look to R.C. 2941.01 et seq. R.C. 2941.03(E) provides that an indictment is sufficient "if it can be understood therefrom * * * [t]hat the offense was committed at some time prior to the time of finding of the indictment * * *." Each count of the indictment must contain "a statement that the accused has committed some public offense therein specified." R.C. 2941.05. An indictment is valid even if it states the time imperfectly or omits the time where the time is not an essential element of the offense. R.C. 2941.08(B) and (C). Other defects in the indictment do not render it invalid where there was no prejudice to the defendant. R.C. 2941.08(K).

Crim.R. 7 also governs the issue of what information must be included within the indictment. That section reads as follows:

"(B) Nature and Contents. The indictment or the information shall be signed by the prosecuting attorney or signed in his name by an assistant prosecuting attorney, and shall contain a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the applicable section of the statute as long as the words of that statute charge an offense, or in any words sufficient to give the accused notice of all the elements of the offense with which he is charged. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. Each count of the indictment or information shall state the numerical designation of the statute which the defendant is alleged therein to have violated. Error in the designation or its omission shall not be ground for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not mislead the defendant to his prejudice."

This rule does not indicate that the time and date of the alleged offense must be included within the indictment.

Page 557

The Supreme Court of Ohio has likewise held that the exact time and date of the alleged offense need not be specified in the indictment unless the time and date are essential elements of the offense. State v. Sellards (1985), 17 Ohio St.3d 169, 171, 17 OBR 410, 411-412, 478 N.E.2d 781, 784. The Sellards case involved an indictment which charged the defendant with three counts of rape and four counts of importuning. In all seven counts, it was alleged that the defendant had engaged in certain illegal conduct within a specified time frame. While the court recognized that more specific dates need not be included [587 N.E.2d 896] within the indictment or the bill of particulars, it did require that the state disclose such information in a bill of particulars if known. Id. at syllabus. Because there was no proof in the Sellards case that the state deliberately withheld the time and date of the alleged crime and the defendant never filed notice of its intent to rely on an alibi, the court found that the indictment was valid and upheld the conviction. Id. at 172, 17 OBR at 412-413, 478 N.E.2d at 784-785. Furthermore, the court held that the general rule could be overcome if the defendant could demonstrate that his defense was materially prejudiced by the lack of specificity regarding the time and date of the alleged offense. Id.

Other appellate courts have followed the same reasoning that where no evidence was admitted which indicated that the defendant may have been elsewhere during part of the time period covered by the indictment, no prejudice results from the failure to specify the date and time of the alleged crime in the indictment. State v. Barnecut (1988), 44 Ohio App.3d 149, 542 N.E.2d 353, and State v. Gingell (1982), 7 Ohio App.3d 364, 7 OBR 464, 455 N.E.2d 1066.

In two of the cases cited by appellant, Knight v. State, supra, and People v. MacAfee, supra, the state's criminal procedures mandated that the time and date of the alleged offense be specifically identified. Thus, these two...

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38 practice notes
  • State v. Barnes, No. 2007 CR 0327.
    • United States
    • Court of Common Pleas of Ohio
    • June 27, 2008
    ...275, 650 N.E.2d 502 (one-to five-year time frames sufficient when dealing with a victim of tender years); State v. Ambrosia (1990), 67 Ohio App.3d 552, 587 N.E.2d 892 (one-year time frame sufficient when dealing with a victim of tender years); State v. Barnecut (1988), 44 Ohio App.3d 149, 5......
  • Blankenburg v. Miller, Case No. 1:16-cv-505
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 19, 2017
    ...unknown, the jury must either believe or disbelieve the victim's testimony that the pattern of conduct occurred. See State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990).[**P23] While some of the separate acts might have been separately charged, the possibility of but one c......
  • State v. Blankenburg, No. CA2010–03–063.
    • United States
    • United States Court of Appeals (Ohio)
    • March 26, 2012
    ...is unknown, the jury must either believe or disbelieve the victim's testimony that the pattern of conduct occurred. State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990).{¶ 23} While some of the separate acts might have been separately charged, the possibility of but one con......
  • Com. v. Trowbridge, No. 92-P-1412
    • United States
    • Appeals Court of Massachusetts
    • September 9, 1994
    ...authorities elsewhere preclude such evidence. See, e.g., Pendleton v. Commonwealth, 685 S.W.2d 549, 553 (Ky.1985); State v. Ambrosia, 67 Ohio App.3d 552, 562, 587 N.E.2d 892 (1990); Williams v. State, 649 S.W.2d 693, 695-696 (Tex.Ct.App.1983). The exclusion is often on the ground that "scie......
  • Request a trial to view additional results
38 cases
  • State v. Barnes, No. 2007 CR 0327.
    • United States
    • Court of Common Pleas of Ohio
    • June 27, 2008
    ...275, 650 N.E.2d 502 (one-to five-year time frames sufficient when dealing with a victim of tender years); State v. Ambrosia (1990), 67 Ohio App.3d 552, 587 N.E.2d 892 (one-year time frame sufficient when dealing with a victim of tender years); State v. Barnecut (1988), 44 Ohio App.3d 149, 5......
  • Blankenburg v. Miller, Case No. 1:16-cv-505
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 19, 2017
    ...unknown, the jury must either believe or disbelieve the victim's testimony that the pattern of conduct occurred. See State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990).[**P23] While some of the separate acts might have been separately charged, the possibility of but one c......
  • State v. Blankenburg, No. CA2010–03–063.
    • United States
    • United States Court of Appeals (Ohio)
    • March 26, 2012
    ...is unknown, the jury must either believe or disbelieve the victim's testimony that the pattern of conduct occurred. State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990).{¶ 23} While some of the separate acts might have been separately charged, the possibility of but one con......
  • Com. v. Trowbridge, No. 92-P-1412
    • United States
    • Appeals Court of Massachusetts
    • September 9, 1994
    ...authorities elsewhere preclude such evidence. See, e.g., Pendleton v. Commonwealth, 685 S.W.2d 549, 553 (Ky.1985); State v. Ambrosia, 67 Ohio App.3d 552, 562, 587 N.E.2d 892 (1990); Williams v. State, 649 S.W.2d 693, 695-696 (Tex.Ct.App.1983). The exclusion is often on the ground that "scie......
  • Request a trial to view additional results

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