State v. Gingell

• Decision Date: 27 October 1982
• Citation: 455 N.E.2d 1066,7 Ohio App.3d 364
• Parties: , 7 O.B.R. 464 The STATE of Ohio, Appellee, v. GINGELL, Appellant.
• Court: Ohio Court of Appeals

Page 364

7 Ohio App.3d 364

455 N.E.2d 1066, 7 O.B.R. 464

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

Court of Appeals of Ohio, First District, Hamilton County.

Oct. 27, 1982.

Syllabus by the Court

1. There exists no requirement, statutory or otherwise, that a rape victim's testimony be corroborated as a condition precedent to conviction.

2. An averment of the precise date and time of an offense need not be included in an indictment or bill of particulars where the precise date or time is not an essential element of the offense charged, and the failure to provide such exactitude in such circumstances does not transgress defendant's constitutional rights to due process of law and to a fair trial.

3. Notwithstanding the above, the state ought to supply specific dates and times where it possesses such information, probably when it is requested by a bill of particulars and certainly when it is demanded in discovery procedures.

Simon L. Leis, Jr., Pros. Atty., Christian J. Schaefer and Thomas P. Longano, Cincinnati, for appellee.

Hal R. Arenstein, Cincinnati, for appellant.

PALMER, Presiding Judge.

Defendant-appellant, Ronald Gingell, was indicted on May 19, 1981, by a Hamilton County Grand Jury on three counts of rape of a child less than thirteen years of age in violation of R.C. 2907.02(A)(3), for a series of incidents in which defendant was alleged to have engaged in sexual conduct, as defined in R.C. 2907.01(A), with his eight-year-old stepdaughter, Tracy. More particularly, count one of the indictment averred that during the period December 1, 1979 to May 31, 1980, defendant purposely compelled Tracy by force or threat of force to submit to sexual activity. Similarly, count two recited the identical offense, but averred that this offense occurred sometime between May 31 and September 30, 1980; and, finally, count three averred that the offending sexual activity was committed sometime between October 1, 1980 and February 3, 1981. In response to defendant's subsequent motion for a bill of particulars, the state further disclosed that the evidence at trial would demonstrate that the respective time periods set forth in each count corresponded to the times during which defendant lived at three separate residences, all within Hamilton County, and that at each such residence defendant purposely compelled his stepdaughter to submit to oral and vaginal intercourse, as well as certain other sexual contact.

Defendant's timely motion to dismiss the indictment on the grounds that the inexactitude in times and dates of the alleged offenses violated his constitutional rights to a fair trial by failing to provide adequate notice was overruled, and the cause proceeded to trial before the court upon his plea of not guilty.

Following an extensive voir dire examination of Tracy, the court concluded that she was competent to testify at trial, following which Tracy described on direct examination, credibly and graphically, several instances of sexual activity with defendant at each of the locations. For his part, defendant denied the accusations, stating specifically that he had never been in the bedroom of any of the residences alone with Tracy, a defense that was generally corroborated by defendant's wife. On rebuttal, the state presented the testimony of Tracy's seven-year-old brother who contradicted the testimony of defendant by asserting that defendant had, in fact, been in the bedroom with Tracy on several occasions at each residence while his mother was at work.

Following closing arguments, the court found defendant guilty of each count charged in the indictment, sentenced him to serve three consecutive terms of four to twenty-five years in the state penitentiary and entered judgment accordingly. From this judgment, defendant has taken this timely appeal in which he asserts two assignments of error.

In his first assignment of error, defendant contends that the judgment of the trial court was against the manifest weight of the evidence. In this regard, defendant challenges the verdict on the specific ground that it was based in large measure on the uncorroborated testimony of the child-victim. We disagree. In the first instance, there exists no requirement, statutory or otherwise, that a rape victim's testimony be corroborated as a condition precedent to conviction. See, e.g., State v. Tuttle (1903), 67 Ohio St. 440, 66 N.E. 524; Butler v. State (App.1926), 4 Ohio Law Abs. 236; State v. Moore (C.P.1956), Ohio Com.Pl., 139 N.E.2d 381, 74 Ohio Law Abs. 116. Moreover, it is apparent that key circumstantial corroboration of the victim's evidence was in fact presented by the state in the testimony of the victim's younger brother. Thus, the record in the instant case clearly reveals that the court had before it substantial and credible evidence of probative value from which it could reasonably conclude beyond a reasonable doubt that defendant had, on three separate occasions, engaged in sexual conduct with a child under thirteen years of age, as charged in the indictment and in contravention of R.C. 2907.02(A)(3). See, e.g., State v. Collins (1977), 60 Ohio App.2d 116, 396 N.E.2d 221 ; State v. Phillips (1951), 90 Ohio App. 44, 103 N.E.2d 14 . Under such circumstances, it is quite clear that it is not the province of this court to disturb that finding by substituting its judgment for that of the finder of fact. E.g., State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132 ; State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 . The first assignment of error is without merit and is accordingly overruled.

In his second assignment of error, presenting the principal challenge of this appeal, defendant disputes the trial court's refusal to dismiss the indictment on the grounds that neither it nor the bill or particulars sufficiently alerted defendant to the specific dates and times upon which the charged offenses were alleged to have occurred. Specifically, defendant contends that while neither Crim.R. 7(B) nor R.C. 2941.08(B) mandates that precise time averments be contained in an indictment, the failure to provide such exactitude under the instant facts deprived him of his constitutional rights to due process of law under the Sixth and Fourteenth Amendments to the United States Constitution as well as Section 10, Article I of the Ohio Constitution. For the reasons stated herein, we disagree.

At the outset, it must be noted that this court has very recently reaffirmed the time-honored and well-established principle enunciated in Tesca v. State (1923), 108 Ohio St. 287, 140 N.E. 629, that averments of the exact time and date of an alleged offense are unessential to an indictment. See State v. Elliott (Oct. 6, 1982), Hamilton App. No. C-810685, unreported. In Elliott, this court affirmed the conviction of a defendant charged with several counts of rape, despite the fact that the indictment had been amended to enlarge the time period during which the crimes were allegedly committed, on the dual grounds that the accused failed to request a bill of particulars demanding temporal specificity and that such amendment did not in any event offend the applicable statutory authority contained in Crim.R. 7(B) and R.C. 2941.08(B).

In the instant case, a somewhat different question is posed. Unlike Elliott, we are not presented with a question as to the appropriateness of an amendment to an indictment or a challenge predicated upon purely statutory grounds. Moreover, defendant in the instant case moved for and received a bill of particulars from the state, a fact of some consequence to the Elliott court. We are rather presented with the question of whether, under the instant circumstances, the accused was denied his constitutional rights to due process of law when compelled to stand trial on the basis of an indictment and bill of particulars which averred merely that the alleged offenses occurred during broadly specified intervals over a fourteen-month period.

Under the respective provisions of the Ohio and United States Constitutions, an individual accused of a felony is entitled to an indictment setting forth the "nature and cause of the accusation." See, e.g., Wong Tai v. United States (1927), 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; State v. Davis (1978), 60 Ohio App.2d 355, 397 N.E.2d 1215 ; Dinsmore v. Alvis (1950), 88 Ohio App. 32, 96 N.E.2d 427 . These provisions are designed to compel the government to aver all material facts constituting the essential elements of the offense so that the accused may not only have adequate notice and an opportunity to defend, but also to protect himself from any future prosecution for the same offending conduct. E.g., Harris v. State (1932), 125 Ohio St. 257, 181 N.E. 104; State v. Hearn (1926), 115 Ohio St. 340, 154 N.E. 244; State v. Joseph (1926), 115 Ohio St. 127, 152 N.E. 186; Furman v. State (1918), 10 Ohio App. 157. It is not, however, necessary that an indictment contain a recitation of the evidence supporting the various facts; it is enough that the indictment contains language sufficient to alert the person named therein that certain generally specified conduct constitutes a violation of an existing statute. E.g., State v Yudick (1951), 155 Ohio St. 269, 98 N.E.2d 415 ; State v. Hahn (1938), 59 Ohio App. 178, 17 N.E.2d 392 . See, also, State v. Zaras (1947), 81 Ohio App. 152, 78 N.E.2d 74 .

Under this rubric, then, an averment of the precise date and time of an offense generally need not be included in an indictment, since, generally, precise times or dates are not essential elements of offenses. As the United States Supreme Court noted in Glasser v. United States (1942), 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680:

"The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy for which petitioners contend is not essential to an indictment."

See, also, White v. Maxwell (1963...