State v. Goode

• Decision Date: 13 April 1962
• Parties: , 25 O.O.2d 395 The STATE of Ohio, Appellee, v. GOODE, Appellant.
• Court: Ohio Court of Appeals

Page 479

118 Ohio App. 479

195 N.E.2d 581, 25 O.O.2d 395

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

Court of Appeals of Ohio, Second District, Greene County.

April 13, 1962.

John G. Peterson, Pros. Atty., for appellee.

Jack H. Patricoff, Dayton, for appellant.

KERNS, Judge.

The defendant, Charles Goode, was indicted, tried and found guilty by a jury of violating Section 4931.31, Revised Code, which provides in part as follows:

'No person shall, while communicating with any other person over a telephone, threaten to do bodily harm or use or address to such other person any words or language of a lewd, lascivious, or indecent character, nature, or connotation for the sole purpose of annoying such other person; nor shall any person telephone any other person repeatedly or cause any person to be telephoned repeatedly for the sole purpose of harassing or molesting such other person or his family.

'Any use, communication, or act prohibited by this section may be deemed to have occurred or to have been committed at either the place at which the telephone call was made or was received.'

In this appeal, twelve errors have been assigned, the first three of which, as stated by the defendant, are (1) that the verdict of the jury is contrary to law, (2) that the state has failed to prove the defendant guilty beyond a reasonable doubt and (3) that the state of Ohio has failed to prove that the defendant has been guilty for or of violation of any statute within the purview of the indictment filed herein.

Although the defendant's 12 assignments of error are not briefed seriatim, we gather from the tenor of his brief that the first three are directed to the sufficiency of the state's evidence. The record discloses, however, that the evidence presented was of sufficient probative force to support the verdict of the jury. These assignments of error are, therefore, without merit.

The fourth, fifth and sixth assignments of error each raise but one and the same question--whether the indictment was sufficient to advise the accused of the nature of the charge against him. Specifically, the defendant contends that the exact words constituting the 'threat' within the scope of the statute must be alleged in the indictment. In this regard, an examination of the indictment discloses that the language used therein is in substance the language of the statute creating the offense, and Section 2941.05, Revised Code, expressly peovides that it is sufficient for an indictment to be in the words of the statute defining the offense. See State v. Yudick, 155 Ohio St. 269, 98 N.E.2d 415; State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767; State v. Ullner, 105 Ohio App. 546, 143 N.E.2d 849, affirmed, 167 Ohio St. 521, 150 N.E.2d 413; Columbus v. Conley, Ohio App., 136 N.E.2d 446. The fourth, fifth and sixth assignments of error will, therefore, be overruled.

For his seventh assignment of error, the defendant contends that he 'was taken by surprise concerning the introduction of evidence which evidence was remote and unconnected with the allegations contained in the indictment.' This assignment is apparently predicated upon the fact that the complaining witness and his wife were permitted to testify concerning numerous other calls made to their home on dates other than August 28, 1960, the date of the offense alleged in the indictment.

The record discloses that this testimony covered prior acts which were quite similar to those charged and closely related in point of time. See Section 2945.59, Revised Code. The nature of the offense makes it incumbent upon the state to show the purpose of the telephone communications, and the intent of the person responsible therefor. In Brown v. State, 26 Ohio St. 176, 181, the court said:

'While the general rule unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicted, can not be given in evidence against him on the trial, this rule is not applicable to a case in which it is clearly shown that a connection, in the mind of the defendant, must have existed between the offense charged in the indictment and others of a similar nature. When such connection exists, evidence of such other offense is admissible, not for the purpose of raising a presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the offense laid in the indictment; and being competent for this purpose, it could not have been properly excluded on the ground that it tended to prove the commission of other and distinct offenses.'

See, also, State v. Oldham, Ohio App., 84 N.E.2d 773, 15 Ohio Jurisprudence (2d), 524 and 527, Sections 353 and 356. The record here clearly refutes the defendant's assertion that the admitted testimony was remote and unconnected with the allegations in the indictment.

The eighth specification of error is that 'defendant was taken by surprise as to the bill of particulars filed by the state of Ohio on October 2, 1961 [the date of trial] when a request was seasonably made and filed by the defendant for said bill of particulars on March 1, 1961.' In the case of State v. Petro, 148 Ohio St. 473, 76 N.E.2d 355, the third paragraph of the syllabus provides:

'Whether the failure of the court to order the prosecuting attorney to furnish a bill of particulars setting up specifically the nature of the offense charged is prejudicial error requiring reversal by a reviewing court, depends upon the facts of the particular case.'

The same rule applies with equal force to a delay in furnishing a bill of particulars. Here, the motion for a bill of particulars was filed on March 1, 1961. No action was taken upon said motion until the date of trial, at which time a bill of particulars was furnished to the defendant pursuant to an order of the court. When court convened, the following exchange took place:

'The Court: Is the state of Ohio and the defendant ready to proceed?

'Mr. Peterson: If your honor please, the clerk is in the process of filing the bill of particulars, and as soon as that is filed--We are ready to proceed, your honor, but we would like to have those papers in the jacket.

'Mr. Patricoff: We will waive formality on the filing of the papers, certainly.

'The Court: The clerk may administer the oath for the voir dire examination of the prospective jurors.'

Thereafter, the defendant proceeded to trial without objection, without a request for a continuance, and without a request for any amendment to the bill of particulars furnished to him. Had the defendant expressed some dissatisfaction at that time we would be more favorably disposed toward his contentions now, but having failed to do so he waived any right to complain. Furthermore, the indictment itself is not vague and uncertain, and it does not appear from the record that the accused was prejudiced in his defense because of the belated receipt of the bill of particulars. On the contrary, his willingness to proceed to trial indicates that he understood the nature of the offense charged and was prepared to defend against it. The eighth assignment of error will be overruled.

The ninth assignment of error appears to be a reiteration of the seventh assignment of error, and claims that the court permitted the introduction of improper evidence bearing upon the question of motive and intent. Specifically, the defendant contends that a violation of Section 4931.31, Revised Code, 'is not the type of violation wherein it is necessary to show defendant...