State v. Collins

• Decision Date: 13 May 1977
• Citation: 60 Ohio App.2d 116,396 N.E.2d 221
• Parties: , 14 O.O.3d 94 The STATE of Ohio, Appellee, v. COLLINS et al., Appellants. *
• Court: Ohio Court of Appeals

Page 116

60 Ohio App.2d 116

396 N.E.2d 221, 14 O.O.3d 94

The STATE of Ohio, Appellee, v. COLLINS et al., Appellants. ^*

Court of Appeals of Ohio, Third District, Hancock County.

May 13, 1977.

Syllabus by the Court

1. A prosecuting attorney's remarks in his summation to the jury that in talking about rape we "are not talking about a crime of passion, but a crime of violence," do not call for conviction as a general duty, do not appeal to the emotions and prejudices of the jury, constitute fair comment in argument, and are not cause for mistrial.

2. A court is not permitted to pass upon the constitutionality of a statute, or part thereof, unless such determination is necessary to its decision. (Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790, followed.) Such determination is not necessary as to a statute limiting evidence when it does not appear that evidence was limited by reason of the operation of the statute.

3. A reference by a state's witness to the fact that "there were polygraphs given" will not be held prejudicial where it does not appear to whom such tests were given and does not appear as to what results were obtained.

4. Prejudicial error will not be found in the action of two jurors in reading a newspaper account of the first day of trial, having been admonished not to, where it appears that the unqualified reference in the headline to a "gang rape case" is qualified in the article by words indicating that the rape was claimed and not proved, and where the article factually reports only what the jurors heard during the first day of trial.

5. In the prosecution of a criminal case, it is not essential that the venue of the crime be proven in express terms, provided it be established by all the facts and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment. In overruling a motion for a directed verdict of acquittal made at the close of the state's case the court may take judicial notice that the junction of a city street and the corporation line of the city are located within the county of venue. (State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969, and State v. Neff, 104 Ohio App. 289, 148 N.E.2d 236, followed.)

6. Defendants waive any error as to the court's ruling on such motion made at the close of the state's case by not then resting without submitting any evidence, and any deficiency in the proof of venue at that point may be satisfied by evidence thereafter offered by either party.

7. Testimony by the victim that she never met the defendants before the evening of the alleged rapes and the accounting of her time thereafter until the offenses occurred, that her maiden name was K____, her married name is R____, that she was divorced and still uses the name R____, and that F____ was her fiance at the time of the alleged offenses, is sufficient evidence to constitute proof beyond a reasonable doubt that she was not the spouse of either of the defendants, such proof being required by R.C. 2907.02 setting forth the elements of the offense of rape.

8. A trial court may dispose of a motion for new trial without oral hearing where a local rule of court implementing Criminal Rule 47 prescribes such action unless oral hearing is expressly requested by counsel and such express request does not appear in the record.

9. The offenses of sexual battery proscribed by R.C. 2907.03(A)(1), (A)(2) and (A)(3), and the offenses of sexual imposition proscribed by R.C. 2907.06(A)(1) and (A)(2) are not lesser included offenses of the offense of rape proscribed by R.C. 2907.02(A)(1).

10. The offense of gross sexual imposition proscribed by R.C. 2907.05(A)(1), at least as it relates to vaginal intercourse or anal intercourse, is a lesser included offense of the offense of rape proscribed by R.C. 2907.02(A)(1).

11. When the theory of the defendant's case in defending a charge of rape as proscribed by R.C. 2907.02(A)(1) is that the victim was not compelled to submit by force or threat of force the trial court is not required to instruct the jury as to the lesser included offense of gross sexual imposition proscribed by R.C. 2907.05(A)(1).

12. Direct examination of the victim by the prosecuting attorney as part of the state's case concerning her sexual activity within the limitations of those matters permitted by R.C. 2907.02(D) or as proof directly related to whether her submission was voluntary or by virtue of force or the threat of force does not constitute a waiver of the limitations of that statutory provision so as to permit the defendant to cross-examine her as to any aspect of her past sexual activity.

J. Stanley Needles, Pros. Atty., and Carl W. Hinton, Findlay, for appellee.

Ronald G. Heck, Findlay, for appellants.

GUERNSEY, Judge.

Defendants Harold Collins, Louis Layton, Ron Morehart and Art Bicklehaup were jointly indicted on the charge that "on or about the 7th day of March, 1976, at Hancock County, Ohio, * * * (they) did engage in sexual conduct with another, to-wit: one Margaret * * * , not the spouse of * * * (any of the said defendants), the said * * * (defendants) purposely compelling Margaret * * * to submit by force in violation of the Ohio Revised Code, Title 29, Section 2907.02 * * * ." They were jointly tried, found guilty and sentenced in the Court of Common Pleas of Hancock County. In this case defendants Layton and Morehart appeal from the judgment of conviction and sentence assigning error in nineteen particulars which we will treat in a slightly different order than that assigned.

Third Assignment of Error. "The court erred in overruling the defendants' motion for a mistrial for the reason that the Prosecutor's general reference to rape being a crime of a violent nature for the reason that the comment to the jury and the remarks accompanying it with regard to the crime of rape were prejudicially erroneous because such remarks are calling for a conviction as a general duty and (not) a conviction of these defendants by proof of guilt beyond a reasonable doubt."

Fourth Assignment of Error. "The trial court erred in not granting the defendants' motion for acquittal or, in the alternative, a new trial for the reason that the Prosecutor made remarks during his closing argument which were not comment upon the evidence but only an effort to appeal to the emotions and prejudices of the jury with regard to the crime of rape generally instead of appealing to the jury to convict because of proof established beyond a reasonable doubt."

Although the reference in the brief to T p. 282 is erroneous, it is apparent that these assignments of error refer to page 828 of the transcript of proceedings where in beginning his opening argument to the jury the prosecutor said:

"In this case we are talking about a crime called rape. And let's look at the crime itself. We are talking about an assault. It's an assault on a person. We are not talking about a crime of passion, but a crime of violence. We are not talking * * * "

At this point the defense counsel moved for a mistrial.

We find nothing improper in these remarks, that they constitute fair comment, and that the third and fourth assignments of error are without merit.

Fifth Assignment of Error. "The trial court erred in overruling the defendants' motion for an order finding O.R.C. 2907.02(C) and the first paragraph of O.R.C. 2907.02(D) unconstitutional because said section denied these defendants substantive due process of law, equal protection of the laws, and the right to confront witnesses against them pursuant to the 6th Amendment, United States Constitution."

The defendants do not in the argument in their brief set forth any contention relating to R.C. 2907.02(C) and their argument is confined to the following provision of R.C. 2907.02(D):

"(D) Evidence of specific instances of the victim's sexual activity, * * * shall not be admitted under this section unless it involves evidence of the origin of semen, * * * and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value."

It is basic to the principles of constitutional law that a court is not permitted to pass upon the constitutionality of a statute (or part thereof) unless such determination is necessary to its decision. Euclid v. Heaton (1968), 15 Ohio St.2d 65, 238 N.E.2d 790. Such determination could not be necessary to the decision of the trial court unless it should appear that by reason of the statute evidence offered by the defendants was excluded from the consideration of the jury.

The prosecution offered into evidence blue jeans allegedly worn by the victim at the time of the alleged acts for which the defendants were charged. A qualified laboratory technician testified that tests indicated the presence of semen in the crotch area of the jeans. She testified to the effect that after she had been "gang raped" she donned these blue jeans without any underwear and wore them from the house in which the alleged rapes occurred; that she was unmarried and had only one boy friend; and that she and her boy friend had attempted intercourse several days before the rape incident but that because of the pain of a suspected ovarian cyst had to abandon same without ejaculation. The court would not permit defense counsel to question her as to whether she had ever had oral sex and anal sex, would not permit questions as to her general sexual conduct, but permitted full crossexamination of her as to her normal sexual relationships with her boy friend and also permitted her to be questioned as to the wearing of the blue jeans when dating other men. The claim of exclusion relates only to the victim's testimony.

The question as to previous oral sex by the victim was wholly irrelevant to the factual situation here at issue. Most of the questions objected to were overruled not...