State v. Graven

• Decision Date: 07 December 1977
• Docket Number: No. 76-1291,76-1291
• Citation: 52 Ohio St.2d 112,369 N.E.2d 1205
• Parties: , 6 O.O.3d 334 The STATE of Ohio, Appellee, v. GRAVEN, Appellant.
• Court: Ohio Supreme Court

Page 112

52 Ohio St.2d 112

369 N.E.2d 1205, 6 O.O.3d 334

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

No. 76-1291.

Supreme Court of Ohio.

Dec. 7, 1977.

Syllabus by the Court

The trial court has discretion in a criminal case to permit the jury to take the indictment to the jury room. (R.C. 2945.35 construed.)

After indictment by the Franklin County Grand Jury, appellant, Robert J. Graven, was tried on four counts of theft in office under R.C. 2921.41, one count of forgery under R.C. 2913.31, and six counts of tampering with records under R.C. 2913.42.

The first, second and third counts charged the appellant with aiding and abetting, respectively one Michael J. Graven, one Kevin M. Conroy and one Richard D. Mercer in committing a theft offense while the fourth count pertained to an alleged theft by the defendant of photographic equipment from the state of Ohio. The fifth count was nolled before trial. The sixth count charged the appellant with uttering a Cleveland Police Department supplementary report which he knew to have been forged. The remaining counts refer to tampering with various records. Appellant was found guilty on all counts. The Court of Appeals reviewed the evidence upon all essential elements of the crime, ruled on admission of evidence over objection and affirmed the judgment of conviction on September 30, 1976.

The cause is now before this court pursuant to the allowance of appellant's motion for leave to appeal.

George C. Smith, Pros. Atty., and Alan C. Travis, Columbus, for appellee.

McDonnell & Sweeney and Daniel P. McDonnell, Cleveland, for appellant.

PAUL W. BROWN, Justice.

Our allowance of the appellant's motion for leave to appeal concerns only the two points of law hereafter discussed. We have examined other errors assigned in the Court of Appeals and find them properly disposed of by that court's opinion.

The appellant argues that by sending the indictment to the jury for its use during deliberation, the trial court has violated the appellant's statutory rights under R.C. 2945.35, which provides:

"Upon retiring for deliberation, the jury, at the discretion of the court, may take with it all papers except depositions, and all articles, photographs, and maps which have been offered in evidence. No article or paper identified but not admitted in evidence shall be taken by the jury upon its retirement."

This statute by its express language authorizes the trial court, within its discretion, to permit the jury to take with it papers upon retiring for deliberation, except those papers identified but not admitted in evidence. To read the statute literally, as proposed by appellant, would exclude from the jury room written charges as expressly authorized for jury use by R.C. 2945.10, as well as verdict forms, note paper, balloting paper, pens, etc. The obvious purpose of the statute is the exclusion from the jury room of that evidence which has been ruled inadmissible.

Certain evidentiary considerations and the trial court's instruction, which follows, limited the use and purpose of the paper here in question:

" * * * this indictment is not evidence in any way and is not to be considered such. * * * I'm going to permit you to have it with you merely for your keeping the counts straight as you consider them as they relate to the evidence that you heard in the last eight or nine days."

An examination of the indictment reveals only a detailed statement of the charges against the appellant. No particularized argument of prejudice is presented by the appellant.

The following cases hold that a paper taken by the jury on its retirement to the jury room and which could not have been prejudicial to the complaining party does not require a reversal. Cleveland, A & C Ry. Co. v. Workman (1902), 66 Ohio St. 509, 546, 64 N.E. 582; Neff v. Cincinnati (1877), 32 Ohio St. 215, 223.

The American Bar Association Standards Relating to Trial by Jury (1968), at page 14, provides as follows:

"(Section) 5.1 Materials to jury room.

"(a) The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant and exhibits and writings which have been received in evidence, except depositions."

This provision is consistent with the federal rule. See, e. g., United States v. Press (C.A.2, 1964), 336 F.2d 1003, at page 1016, where the court stated that it was not improper to read an indictment to a jury, and that " * * * Indeed, in protracted cases involving numerous counts * * * reference to the indictment often serves as a helpful guide in delineating the issues * * * . Similarly, it is not error to give the indictment to the jury for use during its deliberations." Accord, United States v. Todaro (C.A.3, 1971), 448 F.2d 64, 66. See, also, 75 American Jurisprudence 2d, Trial, Section 1027.

Unless there is some objectionable notation on or prejudicial memorandum or affidavit attached thereto, it is the general rule that it is proper to permit the jury in a criminal case to take with it into the jury room the indictment or information, or that in any event no reversible error can be based on such permission, the trial court having at least a discretion in this regard. Annotation, 120 A.L.R. 463, at page 464.

Decisions of courts in other jurisdictions are also instructive. In People v. Rosoto (1962), 58 Cal.2d 304, 23 Cal.Rptr. 779, 373 P.2d 867, the court held that even in the absence of consent of counsel, it is within the trial court's discretion, in a criminal case, to permit the jury to take the indictment to the jury room. The court, in Urban v. State (Tex.Cr.App.1965), 387 S.W.2d 396, expressed the view that an indictment is an integral part of the state's pleading and it is a useful and essential guide to the jury in its deliberations to test and weigh the evidence against the allegations contained in the indictment in order to determine if the state's proof supports the same. See, also, Lacy v. State (Tex.Cr.App.1967), 424 S.W.2d 929.

Appellant's second argument considered here is that where one is charged with aiding and abetting another to commit theft by deception, there must be proof beyond a reasonable doubt that the principal also violated the statute. This is a claim of error that was not raised in the Court of Appeals, hence was not considered or decided by that court, and therefore would not ordinarily be considered by this court. State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d...