State v. Crissman

• Decision Date: 25 June 1971
• Citation: 31 Ohio App.2d 170,287 N.E.2d 642
• Parties: , 60 O.O.2d 279 The STATE of Ohio, Appellee, v. CRISSMAN, Appellant.
• Court: Ohio Court of Appeals

Page 170

31 Ohio App.2d 170

287 N.E.2d 642, 60 O.O.2d 279

The STATE of Ohio, Appellee, v. CRISSMAN, Appellant.

Court of Appeals of Ohio, Seventh District, Columbiana County.

June 25, 1971.

Syllabus by the Court

1. In a prosecution for rape, where the injured party testifies, her declarations, with reference to the offense, made immediately after the offense was committed, although not admissible as substantive testimony to prove the commission of the offense, are competent as evidence of, or to contradict the testimony of the injured party.

2. Where a delay occurs between the time the rape occurs and the time the declaration is made, evidence of sufficient cause for such delay is required before such declarations are admissible.

3. Where the jury has been clearly admonished not to read newspaper accounts of the trial, the granting or denial of a request by the accused that the jurors be interrogated during the trial as to whether they have read newspaper accounts or headlines rests in the sound discretion of the trial court.

4. The trial judge has wide discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles, concerning the trial.

5. Where a newspaper article reported only the former trial and conviction of the accused and the granting of a new trial by the trial court and such was done without falsification, unfair or inflammatory elaboration or distortion, a new trial is not required if one or more of the jurors have read such newspaper article.

6. In a criminal prosecution, a prosecuting attorney may not comment upon the failure of the accused to testify at the preliminary hearing.

7. Evidence by way of an explanation or rebuttal may be made competent by the evidence introduced by the other side.

8. If the defendant in a criminal case voluntarily testifies, his attorney may be compelled to testify on the same subject unless barred by constitutional rights of the defendant.

9. Where inadmissible, immaterial or irrelevant evidence has been admitted in behalf of one party, similar evidence may be admitted to rebut it.

10. As a matter of good practice, the use of defense counsel as a witness for the state should be avoided where at all possible in criminal cases; however, situations develop in cases where circumstances justify such use of defense counsel for limited purposes.

11. The use of defense counsel as a witness for the state is within the sound discretion of the trial court.

G. William Brokaw, Pros. Atty., for appellee.

Bernard Fineman, and George A. Aronson, East Liverpool, for appellant.

LYNCH, Judge.

Defendant, appellant herein, is appealing his conviction by a jury of the crimes of incest, prohibited by R.C. 2905.07, with his daughter, Judy Crissman, and of having carnal knowledge of Judy Crissman, a female under sixteen, with her consent, contrary to R.C. 2905.03. Both crimes were alleged to have been committed on March 2, 1967. Defendant was sentenced from one to ten years on the incest charge and from one to twenty years on the statutory rape charge, with the sentences to run consecutively. Defendant had been previously convicted on the same charges, but the trial court set aside the former conviction and granted a new trial because of errors of law occurring at the first trial.

Defendant, age 39, is married and the father of seven children. The Crissman family had resided in Brownsville, Pennsylvania, before October, 1966, when defendant came to Wellsville in search of a better job. He obtained employment as a route man for Nickles Bakery, and moved into the home of his mother in Wellsville. He brought Judy, then age 13, to live with him, but the rest of the family remained in Brownsville until about January 25, 1967, when defendant's wife and the rest of the family moved to a home in Wellsville.

Judy Crissman testified that on the avening of March 2, 1967, her mother and sister, Barbara, left home between 9 and 9:30 p.m. to visit her uncle Art, and that approximately five minutes later her father, the defendant, had sexual intercourse with her on the couch in the living room. She further testified that defendant had had sexual intercourse with her two times previously. The first time was in a car in October, 1966, when she was thirteen years old. The other time was sometime between October, 1966, and the first of February, 1967.

Prior to the trial, defendant filed a notice of alibi on the prosecuting attorney that at the time of the alleged offenses on March 2, 1967, he was at the home of his brother, Arthur Crissman, in Wellsville, Ohio. Defense witnesses testified that on March 2, 1967, defendant along with his wife, his daughter, Barbara, and his youngest son, Gary Norman, left home between 7 and 7:30 p. m. and visited his brother and sister-in-law, Mr. and Mrs. Arthur Crissman, until approximately 11:30 p. m. when they returned home, and that his son and daughter-in-law, Kenneth and Karen Crissman, watched the remaining children, including Judy, while defendant and his wife were away from home.

Mrs. Mary Kay Thomas, a neighbor of defendant, testified that on the evening of March 2, 1967, defendant's wife and daughter, Barbara, left home about 8:45 p. m., but that she did not see defendant leave with them.

Defendant's first assignment of error concerns the testimony of Judy Crissman that after her mother moved to Wellsville, she told her mother about her father having sexual intercourse with her. Since defendant first had sexual intercourse with Judy in October, 1966, and Mrs. Crissman moved to Wellsville in January, 1967, approximately three months had elapsed before Judy told her mother about her father having sexual intercourse with her.

The law in Ohio is that in a prosecution for rape, where the injured party has testified, her declarations with reference to the offense, made immediately after the offense was committed, although not admissible as substantive testimony to prove the commission of the offense, are competent as evidence of, or to contradict the testimony of the injured party. McCombs v. Ohio, 8 Ohio St. 643; Johnson v. State, 17 Ohio 593; 46 Ohio Jurisprudence 2d 610-611, Rape, Section 18.

Where a delay occurs between the time the rape takes place and the time the declaration is made, evidence of sufficient cause for such delay is required before such declarations are admissible. Dunn v. State, 45 Ohio St. 249, 12 N.E. 826; 46 Ohio Jurisprudence 2d 612, Rape, Section 19.

In the instant case, Judy Crissman's mother did not testify so that we do not have the problem of the admission of hearsay evidence in this case, which was the situation in all the other cases that have come to our attention.

We question whether cases such as Dunn v. State, 45 Ohio St. 249, 12 N.E. 826, are applicable to this assignment of error because this testimony was not from a person who heard the declaration of the injured party but from the injured party, who stated that she told her mother the first time her father had sexual intercourse with her approximately three months after it happened, without giving any specific details as to what happened.

However, even if the Dunn case is applicable to the instant case, there was evidence that Judy Crissman's mother was living in Brownsville, Pennsylvania, from the time that defendant first had sexual intercourse with Judy until approximately January 25, 1967, when Mrs. Crissman came to Wellsville. We agree with the trial court's conclusion that Judy Crissman did not have an opportunity to talk to her mother immediately after the offense and could not talk to her mother until her mother came to Wellsville, and that this was a sufficient explanation as to way Judy did not tell her mother immediately after the offense took place to permit the admission of this testimony. Therefore, we find defendant's first assignment of error without merit.

Defendant's second assignment of error is that the trial court erred with it refused to interrogate the jury on the second day of trial regarding the following newspaper article which appeared on page 11 of the East Liverpool Review in the edition for the night of the first day of trial;

'Lisbon Retrial Starts.

'Lisbon-Retrial of Albert Crissman of Coal Hollow Rd., Wellsville, charged with incest and statutory rape of a girl 14, began this morning before a Common Pleas Court jury.

'Indicted by the April 1967 grand jury, Crissman was convicted by a jury last March 27. Judge Raymond S. Buzzard sustained a motion for a new trial filed by defense counsel Bernard Fineman of East Liverpool.' Plaintiff's Exhibit 1.

Prior to the commencement of any of the trial proceedings, the trial court had a conference with counsel for both parties, and it was agreed that no mention of defendant's conviction in his first trial would be made without a request of counsel. At the close of the hearing on the first day, the trial court specifically instructed the jury not to read any account of this trial in the newspaper.

On the morning of the second day of trial, counsel for defendant called the attention of the trial judge to the above mentioned newspaper article and requested the court to interrogate the jury as to whether any of the jurors had read this newspaper article, and the trial judge overruled this request.

Where the jury has been clearly admonished not to read newspaper accounts of the trial, the granting or denial of a request by an accused that the jurors be interrogated during the trial as to whether they have read newspaper accounts or headlines rests in the sound discretion of the trial court. State v. Hilliard, 89 Ariz. 129, 359 P.2d 66; State v. De Zeler, 230 Minn. 39, 41 N.W.2d 313, 15 A.L.R.2d 1137; Kitts v. State, 153 Neb. 784, 46 N.W.2d 158; 24 C.J.S. Criminal Law § 1449(4), 113; annotation, 15 A.L.R.2d 1152 and supplement.

The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors...