State v. Paul Baisden

• Decision Date: 19 May 1987
• Docket Number: 86AP-624,87-LW-1809
• Parties: State of Ohio, Plaintiff-Appellee, v. Paul Baisden, Defendant-Appellant.
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Appellee, v. Paul Baisden, Defendant-Appellant.

No. 86AP-624.

87-LW-1809 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

May 19, 1987

APPEAL from the Franklin County Common Pleas Court.

MICHAEL MILLER, Prosecuting Attorney, and ALAN C. TRAVIS, for appellee.

NOETHLICH VIVYAN & MAGUIRE, and PATRICK D. MAGUIRE, for appellant.

OPINION

NUGENT Judge.

Defendant appeals from the judgment of the court of common pleas finding him guilty of one court of rape, R.C. 2907.02 and one count of gross sexual imposition, R.C. 2907.05.

The indictment against this defendant was filed by the Franklin County Grand Jury on February 23, 1986 alleging that the offenses took place on or about June 1, 1985 and that the alleged victim was twelve years old at the time. Shortly after the filing of the indictment, and on March 31, 1986, the defendant filed a request for discovery and a bill of particulars. The defendant also filed a notice of alibi on May 1, 1986 indicating that on the date specified in the indictment, June 1, 1985, the defendant was at his home in Coalton, Ohio.

Trial was scheduled for June 2, 1986. The previous Friday, May 30, 1986, the prosecutor advised defense counsel that the offense did not occur exactly on June 1, 1985 but occurred sometime during the week of June 3 through June 7, 1985. June 1, 1985 was a Saturday and the prosecution realized the incident took place on a school day and had to check school attendance records to accurately determine the date. Somehow, the defense was in possession of the victim's statement given to police which reflected the June 1, 1985 date. Nevertheless, prior to trial the prosecution orally informed the defense that such date was incorrect and the true date of the incident was between June 3 to June 7, 1985 and that the victim had always maintained that the attack took place sometime during the first week of June, 1985 but could not narrow the date down any further, other than to say that it was a school day.

The defense objected to being required to defend against any day other than June 1, 1985 which was overruled by the trial court. The trial court offered the defendant time in which to prepare any new defense for the dates June 3 through June 7, 1985. Defense counsel felt the defendant should avail himself of this additional time but the defendant himself rejected the trial court's offer and insisted upon proceeding to trial as scheduled. A motion to suppress was heard by the trial court and the jury was selected on June 2, 1986. The following morning, June 3, 1986, the prosecution again informed the defense that the incident did not take place on June 1, 1985, rather it was somewhere between June 3 and June 7, 1985. Since the school records reflected that the victim missed each school day during that week, and the victim could not recall the exact date, the best the prosecution could fix as the date was somewhere between June 3 and June 7, 1985. The trial court again offered the defense a chance to continue the case in order to prepare, if necessary. This offer was again summarily rejected by the defendant who demanded either a dismissal or for the case to proceed. The case proceeded.

The victim, Jackie Christian, testified that during 1985 she lived at 1087 Say Avenue which is located in Columbus, Ohio. She also testified that during the first week of June, 1985, she and her friend, Ann Dennison, were going to go out and do something because Jackie had missed the bus for school. At the time, Jackie attended Monroe Junior High in Columbus, Ohio. After missing the school bus, Jackie and Ann were walking somewhere up on High Street when the defendant drove by and asked the girls to "come on' with him in his car. They first went to McDonalds, then Jackie drove the car a little, and then the defendant drove around while he engaged in suggestive conversation with Jackie. Eventually the defendant stopped the car in a place with no houses around and hardly any cars coming by, but as far as Jackie knew, they were still in Franklin County.

Appellant offered money to Jackie in exchange for engaging in sexual conduct and sexual contact which was eventually accepted by Jackie. The defendant initially engaged in sexual contact with Jackie which resulted in vaginal intercourse. The money offered was paid and both girls were taken to the Southland Shopping Center, then back near home in the "Short North' area of Columbus.

Jackie was afraid to tell anyone what happened. Finally in September, 1985, Jackie was having some medical difficulties with burning in the pelvic area and she told her mother what had happened. Jackie was taken to the doctor and the police were notified.

Ann Dennison testified substantially the same as Jackie and corroborated her testimony as to exactly what had happened that day.

Jackie was examined by Dr. Armando Ferlito who performed a pelvic examination on September 4, 1985, and found the child's hymen was broken. In explanation, Jackie had told Dr. Ferlito that she had been forced to engage in sexual intercourse during the first week of June, 1985.

Tammy Davidson, the victim's mother, also testified that during June, 1985, she and her family lived in the "Short North' area of Columbus, Ohio at 1087 Say Avenue. At that time, the child attended Monroe Junior High School in Columbus, Ohio and was, in fact, twelve years old.

Ms. Davidson stated during early September, 1985, that her daughter Jackie told that she had been sexually assaulted in early June, 1985 by a person known as Johnny Rico. Shortly thereafter Ms. Davidson, some of her friends, and Jackie were sitting on the steps of a home in the Mt. Pleasant area of "Short North' when the defendant drove by in his burgundy TransAm and Jackie cried out "Mommy, that's the man right there. He's the one that raped me. That's one of his cars.' Ms. Davidson immediately wrote down the license number and notified the police. Both Jackie and Ann Dennison knew the defendant before this incident. Jackie said he had tried to pick her up several times before, and that he was known to her as Johnny Rico. Also, when shown a photo array by the police, Jackie unhesitately selected the photo of the defendant as the person who assaulted her.

The defendant called a succession of witnesses who basically testified that in late May and early June, 1985, the defendant lived with his parents in Coalton, Ohio and was in a great deal of pain from a back injury suffered in an automobile accident in June, 1984. In fact, they testified that he was so disabled that he couldn't pick up after himself, he had to use a crutch or crutches, was at times unable to drive and, in effect, could not have committed the crimes charged in this indictment.

The defendant also offered some interesting testimony from the General Telephone Company which showed several long distant telephone calls from his home from June 1 through June 6, 1985.

From the foregoing, the jury returned a guilty verdict on each count and defendant was sentenced to six to twenty-five years on the rape charge and two years on the gross sexual imposition charge, sentences to run concurrently. Defendant appeals his conviction and makes the following four assignments of error:

"1. Where the prosecution has failed to respond to a bill of particulars requesting temporal specificity of the alleged offense defendant is deprived of his constitutional right of due process and right to a fair trial where a notice of alibi has been filed and the court fails to order the prosecution to respond to the request for a bill of particulars prior to trial.

"2. The court commits prejudicial error by allowing the prosecution to respond to a bill of particulars after trial has begun where defendant has filed notice of alibi and timely requested specifications as to date and time.

"3. The court erred in not sustaining defendant's pre-trial motion to dismiss the indictment where a bill of particulars had been requested, a motion to compel had been filed, and the state has failed to respond.

"4. The court erred when it overruled defendant's motion for acquittal at the close of the state's case where the state failed to establish a preima [sic] facie proof with respect to the venue element of the offense.'

This court believes that appellant's first, second and third assignments of error are interrelated and shall therefore consider them together.

The Constitution of the United States does not guarantee the right to prosecution by way of grand jury indictment. However, in Ohio the right to prosecution by way of grand jury indictment in felony matters is derived from Section 10, Article I, Ohio Constitution. The specific requirements are contained in R.C. Chapter 2941 and Crim. R. 6 and 7.

R.C. 2941.03 provides that:

"An indictment or information is sufficient if it can be understood therefrom:

"(A) That it is entitled in a court having authority to receive it, though the name of the court is not stated;

"(B) If it is an indictment, that it was found by a grand jury of the county in which the court was held, or if it is an information, that it was subscribed and presented to the court by the prosecuting attorney of the county in which the court was held;

"(C) That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name with a statement that his true name is unknown to the jury or prosecuting attorney, but no name shall be stated in addition to one necessary to identify the accused;

"(D) That an offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein:

"(E) That the offense was committed at some time

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