State v. Khong, 49683
| Decision Date | 18 November 1985 |
| Docket Number | No. 49683,49683 |
| Parties | , 29 O.B.R. 20 The STATE of Ohio, Appellee, v. KHONG; Gertenslager, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. In the exercise of the court's necessary function, contempt proceedings are not subject to the legislative strictures of R.C. 2945.71, the speedy trial statute.
2. Defendants in contempt proceedings of a criminal nature must be afforded a constitutional right to a speedy trial.
3. Intent to disobey the court's order is a condition precedent to a finding of contempt. In a case of direct contempt, a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.
4. An attorney's intent to obstruct justice may be inferred if his conduct discloses a reckless disregard for his professional duty.
5. Express evidence to establish venue is not necessary, if, from all of the facts and circumstances in the case, it is established beyond a reasonable doubt that the crime was committed in the county and state named in the indictment.
Charles F. Clarke, Richard Gurbst and Stacy D. Ballin, Cleveland, for appellee.
Thomas H. Terry III, Cleveland, for appellant.
In order to reach the issues raised in the instant appeal of the contempt conviction of Assistant County Prosecutor William E. Gerstenslager, it is necessary to examine the proceedings of the criminal trial styled State v. Phuoc Chan Khong, Cuyahoga C.P. No. CR-186386.
Khong was indicted on a single count of rape which allegedly occurred on September 14, 1983. Appellant Gerstenslager was the assistant county prosecutor assigned to prosecute the case for the state of Ohio.
On November 11, 1983, Richard J. Marco, counsel for the defendant, filed a demand for discovery in accordance with Crim.R. 16. Among other things, he asked for:
On December 1, 1983, at a pretrial before Judge Burt W. Griffin, Marco was told by Gerstenslager that results of hospital tests on the alleged rape victim were not positive for semen, according to testimony from Marco. Gerstenslager indicated to Marco that the reports "are not exculpatory in nature." On December 1, 1983, the following order was issued:
By the time of the next pretrial on March 26, 1984, Gerstenslager still had not provided the defense with the hospital reports. Marco testified as follows about the discussion on March 26:
As a result of the March 26 pretrial, Judge Griffin issued the following order:
By April 3, 1984, Gerstenslager still had not complied with the court's discovery orders. On that date, Marco had to leave early and Gerstenslager was delayed due to his presence at a sentencing hearing. On April 3, Judge Griffin entered another order which stated in pertinent part:
"Prosecutor informed by phone to comply with court order dated March , 1984 and mail information to defense counsel."
At the contempt hearing, Judge Griffin testified that his orders were specifically directed to reports relating to the victim's examination at a hospital after the alleged rape.
At a June 21, 1984 pretrial, Gerstenslager delivered copies of records from a clinic reflecting that the rape victim had had an abortion and that the stage of development of the fetus could indicate that the alleged victim was pregnant at the time of the charged rape. (Apparently, the defendant contended that the victim concocted the rape charge to explain away her pregnancy.)
Subsequently, the defense filed a motion to dismiss on the grounds that the state had failed to provide material exculpatory evidence to the defendant and that the passage of time had resulted in destruction and unavailability of certain evidence.
At the July 9 hearing on the defendant's motion to dismiss, Gerstenslager told the court he first learned of the abortion around the beginning of April and soon after filed for a protective order because the victim was Catholic 1 and did not want knowledge of the abortion made public. Gerstenslager also said he learned of the pregnancy at the same time he learned of the abortion.
As to when the prosecutor and police obtained the hospital report of the victim's examination after the alleged rape, the following colloquy took place:
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