State v. Hulsey

• Citation: 15 Ohio App.2d 153,239 N.E.2d 567
• Parties: , 44 O.O.2d 291 The STATE of Ohio, Appellee, v. HULSEY, Appellant.
• Decision Date: 10 May 1968
• Court: Ohio Court of Appeals

Page 153

15 Ohio App.2d 153

239 N.E.2d 567, 44 O.O.2d 291

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

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

May 10, 1968.

Syllabus by the Court

1. Prosecution for the offenses of telephone annoyance or harassment under Section 4931.31, Revised Code, is not dependent upon the publication in a telephone directory of the 'warning' provided in that section. The statute creates different offenses by the user of a telephone and by the distributor of a telephone directory, and the two types of offense are not interdependent; either offense may be complete, regardless of the other.

2. The use of a pen register by a telephone company, at the request of a recipient of annoying or harassing calls, which detects the fact but not the sound or conversation of the calls from the telephone of an accused to that of the recipient, is not an interception of a communication in violation of the Federal Communications Act of 1934 (Section 605, Title 47, U.S. Code). The evidence thus obtained is admissible against the accused in a criminal prosecution arising out of such calls.

John J. Heron, City Prosecutor, for appellee.

Glen E. Mumpower, Dayton, for appellant.

CRAWFORD, Presiding Judge.

The essential portion of the affidavit charging the offense of which defendant, appellant herein, was convicted by the court without a jury reads:

'* * * on or about the 25th day of January A.D., 1966 in the city of Kettering, and in the county of Montgomery and in the state of Ohio, one Vergie Hulsey, 851 Orchard Drive, Kettering, Ohio, did telephone repeatedly the said Rose Catherine Schaeublin for the sole purpose of harassing the said Rose Catherine Schaeublin at 2624 Wehrly Drive, Kettering, Ohio, contrary to Section 4931.31 of the Ohio Revised Code * * *.'

The complainant, Schaeublin, and the defendant, Hulsey, were neighbors between whom there were long-standing differences. These arose over their children: the defendant says complainant's son played ball in defendant's yard and that complainant repeated to defendant certain scandal concerning the latter's fifteen-year-old daughter.

These differences reached a high pitch about June 7, 1964. According to complainant, defendant said 'she would make me pay'; immediately thereafter, complainant began receiving silent telephone harassing-that is, her telephone would ring, but when she answered no one would speak (for a time she followed the natural impulse to respond in kind); on occasion she would hear water running; during a certain period defendant's daughter talked to her, called her names and made fun of her; and she heard teenage giggling.

Complainant said that on occasion her husband held the telephone receiver while she went into the street and saw the defendant; she did not say where defendant was or what she was doing. She indicated that on January 25 she received one call about 10:16 p.m. and another about 11:52 p.m.

Another neighbor, Martha Maurice, testified she received similar calls and could look out and see defendant using her telephone in the kitchen.

There is no positive or direct evidence that defendant personally made any of these calls.

According to the testimony, at complainant's request, the telephone company, by use of a pen register in its office, recorded the origin only, and nothing more, of numerous telephone calls emanating from defendant's telephone to complainant's. The particular call here in question was made on January 25, 1966, about 11:31 p.m.; the connection was locked by a twitch at the telephone company, and the police were notified. Police officers rang defendant's doorbell at approximately 11:32 p.m. The only light in the house was in the kitchen. About two minutes later, defendant emerged from the area of the kitchen. She claimed she had been in the basement, access to which is from the kitchen area. No one estified to observing defendant using the telephone on this occasion. Although the kitchen telephone was on the cradle, the officers lifted it and found it connected with complainant's telephone.

Also present in the house at the time were defendant's husband and the fifteen-year-old daughter. The husband said he had been asleep and was awakened by the doorbell; and he emerged from the bedroom partially clad. The daughter was in her bedroom, but was not interviewed by the officers.

These three members of defendant's family testified. Defendant denied the call and the harassing. The husband was apparently not using the telephone. He testified that he had listened to the eleven o'clock news; that at approximately 11:15 p.m. he instructed the daughter, who had been using the telephone, to settle down for the night; and that, thereupon, he proceeded to bed and to sleep.

The daughter testified that that evening between ten and eleven o'clock she had been calling a group of her friends about a party; that she occasionally dialed a wrong number, whereupon she would say nothing, but hang up; and that she did not intentionally dial complainant's number. On cross-examination she said that she used the telephone after her father had supposedly quieted her, around 11:15 p.m., and had no idea when she stopped using the telephone, or whom she had last called.

The first assignment of error is that not all the elements of the crime were proved, that specifically there was no evidence that the telephone company had published in its directory the warning required by Section 4931.31, Revised Code.

That statute forbids the use of a telephone either to threaten another or to use or address improper language to another for the sole purpose of annoying him, or repeatedly calling in order to harass or molest him, and forbids the telephone company's willfully omitting from its directory a prescribed warning against such misuse. These offenses, by the user of the telephone on the one hand, and by the telephone company on the other, are clearly not interdependent. The first part of the section places upon the user an unqualified duty not to do what he is forbidden to do, regardless of the publication or failure to publish the warning.

The second assignment of error is the admission into evidence of the record of the pen register. This device recorded the numbers called from the telephone in defendant's residence, not the message, not the voice, and not the identity of the person making the call. It is contended, nevertheless, that this is a violation of the Federal Communications Act of 1934, Section 605, Title 47, U.S.Code; United States v. Dote (7 Cir., 1966), 371 F.2d 176.

In the Dote case the telephone company told the Internal Revenue Service of its suspicion that a certain telephone was being used for bookmaking purposes. That service thereupon installed a pen register without the knowledge or consent of either its sending or receiving subscribers. The results were used as leads by the service. The evidence so obtained was suppressed. The court indicated, nevertheless, that there were certain legitimate business uses for a pen register upon a subscriber's request.

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