State v. Price

• Decision Date: 19 December 1979
• Docket Number: No. 79-338,79-338
• Citation: 60 Ohio St.2d 136,398 N.E.2d 772,14 O.O.3d 379
• Parties: , 14 O.O.3d 379 The STATE of Ohio, Appellee, v. PRICE, Appellant.
• Court: Ohio Supreme Court

Page 136

60 Ohio St.2d 136

398 N.E.2d 772, 14 O.O.3d 379

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

No. 79-338.

Supreme Court of Ohio.

Dec. 19, 1979.

Syllabus by the Court

1. Where all requisites for the admissibility of a spontaneous exclamation as an exception to the hearsay rule are satisfied, evidence of declarant's inability to remember uttering the spontaneous exclamation does not, without more, render the witness' testimony as to the spontaneous exclamation inadmissible.

2. The Supreme Court will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court. (Toledo v. Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179, approved and followed.)

3. A prosecutor's closing remarks do not appeal to the passion or prejudice of the jury where such remarks comment fairly on the credibility of crucial state witnesses and do not constitute an invitation to the jury to go beyond the evidence presented.

4. A single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge. (Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368, followed.)

5. A rape conviction, pursuant to R.C. 2907.02(A)(1), and a kidnapping conviction, pursuant to R.C. 2905.01(A)(4), are allied offenses of similar import within the meaning of R.C. 2941.25(A), and cannot be punished multiply when they are neither committed separately nor with a separate animus as to each within the meaning of R.C. 2941.25(B). (State v. Donald, 57 Ohio St.2d 73, 386 N.E.2d 1341, and State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345, approved and followed.)

Statement of the Case.

After meeting at a laundromat in Zanesville on the evening of July 18, 1977, complainant, Christa G., age 13, and two female friends, both age 14, appellant, Gary D. Price, age 23, and a male friend of his decided to go for a ride. The group purchased a six-pack of beer, traveled to a trailer where each consumed certain amounts of beer, and then left to purchase additional quantities of beer. Next, the group picked up a second male friend of appellant and proceeded to Mount Sterling, where all went for a swim in a pond. While in the pond, appellant asked Christa if she wanted to engage in sexual intercourse. Upon her refusal, appellant threatened to drown her if she did not take a walk with him. Christa then returned to the car with one of her female friends. Shortly thereafter, appellant returned to the car, pulled Christa from the back seat to an area nearby behind some bushes, forced her to the ground, removed her pants, and raped her. At this point, both Christa's female friends ran to assist her. The group then returned to Zanesville where the three females were released. Christa went home and told her family of the incident. The family went immediately to the sheriff's office.

Appellant was indicted for the offenses of rape, pursuant to R.C. 2907.02, and kidnapping, pursuant to R.C. 2905.01; and was separately indicted for the offense of corruption of a minor, pursuant to R.C. 2907.04. ¹ Upon trial to a jury, appellant was convicted of both rape and kidnapping, with the jury finding further that the complainant was not released unharmed in a safe place. The remaining charge was dismissed. Thereupon, the trial court imposed identical concurrent sentences of from six to twenty-five years. On appeal, the Court of Appeals affirmed both the rape and kidnapping convictions.

This cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Richard E. Bridwell, Pros. Atty. and James R. Krischak, Columbus, for appellee.

Robert H. Cohen, Columbus, for appellant.

WILLIAM B. BROWN, Justice.

I.

In proposition of law number two, appellant argues that the trial court erred in admitting hearsay testimony of one of Christa G.'s female friends as a spontaneous exclamation. Appellant contends that the hearsay testimony was improperly admitted because the declarant, Christa, in sworn testimony denied uttering the spontaneous exclamation. The testimony concerned events immediately following the alleged rape, and consisted of Christa's statement to this friend that appellant had just raped her. Christa's testimony, however, indicated only that she could not Remember uttering the statement, not that she denied uttering it. Moreover, there was evidence in the record that Christa was crying and screaming during this period. On these facts, the trial court did not abuse its discretion in admitting the testimony. See State v. Long (1978), 53 Ohio St.2d 91, 98, 372 N.E.2d 804. Clearly, the trial court could reasonably determine that the requisites for the admissibility of a spontaneous exclamation as an exception to the hearsay rule established by this court in State v. Duncan (1978), 53 Ohio St.2d 215, 373 N.E.2d 1234, were satisfied. ²

II.

Appellant's fifth proposition of law challenges the prosecutor's use of this same female witness' prior sworn statement on re-direct examination to refresh her memory. Appellant first argues that there was no required showing that the witness' memory was exhausted. The record discloses, however, that during cross-examination the witness had difficulty in remembering numerous details, and, further, that the witness acknowledged her inability to remember. On this showing, the trial court did not abuse its discretion by permitting the prosecutor to refresh the witness' memory by showing her the prior sworn statement on re-direct examination.

Additionally, appellant argues that the prosecutor's use of the refreshed material on re-direct examination was not limited in scope to those matters testified to on cross-examination. We do not consider this claim of error since the issue was not raised in any way in the Court of Appeals, ³ nor did the Court of Appeals consider or decide it. Toledo v. Reasonover (1966), 5 Ohio St.2d 22, 213 N.E.2d 179; State v. Eley (1978), 56 Ohio St.2d 169, 170, 383 N.E.2d 132; State v. Cornely (1978), 56 Ohio St.2d 1, 4, 381 N.E.2d 186; State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d 1364, paragraph two of the syllabus.

III.

Appellant's first proposition of law argues that the prosecutor's closing remarks to the jury, generally concerning the ages of Christa and the two female witnesses, unfairly appealed to the passion and prejudice of the jury. The prosecutor counters that the challenged comments constituted a proper response to appellant's attack on their credibility as witnesses. There is little dispute that the crucial issue in the case was the credibility of these witnesses, particularly Christa. Upon consideration of the entire record, we are in agreement with the Court of Appeals in its statement that the prosecutor's closing remarks went "to the issue of the credibility of state's witnesses based on their testimony in open court and * * * (did) not constitute an invitation to the jury to go beyond the evidence presented at trial." Appellant's right to a fair trial was not adversely affected. See State v. Hill (1977), 52 Ohio App.2d 393, 396, 370 N.E.2d 775.

IV.

Appellant's third proposition of law argues that the trial court's jury instruction unconstitutionally relieved the state of its burden of proof on the issue of criminal intent.

The challenged instruction reads as follows:

"A person acts purposely when the gist of the offense is a prohibition against conduct of a certain nature, Regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. Purpose is the decision of the mind to do an act with a conscious objective of engaging in specific conduct. To do an act purposely is to do it intentionally and not accidentally. Purpose and intent mean the same thing. The purpose with which a person does an act is known only to himself, unless he expresses it to others or indicates it by his conduct. The purpose with which a person brings about a result is determined from the manner in which it is done, the means or weapon used, And all other facts and circumstances in evidence." (Emphasis added.) ⁴

Appellant specifically contends that the emphasized parenthetical "regardless of what the offender intends to accomplish thereby" effectively relieves the state of its burden of proof by encouraging the jury to presume criminal intent from conduct. Appellee counters that the instruction must be viewed in the context of the last emphasized sentence of the charge: "The purpose with which a person brings about a result is determined from the manner in which it is done * * * And all other facts and circumstances in evidence." (Emphasis added.) The overall charge, appellee concludes, merely instructs the jury that they are permitted to infer intent from all the facts and circumstances. State v. Johnson (1978), 56 Ohio St.2d 35, 38, 381 N.E.2d 637; State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313, paragraph four of the syllabus.

We read the challenged instruction as appellee does, and conclude that it did not direct the jury in a manner that relieved the state of its burden of proving appellant's criminal intent. We reject appellant's suggestion that we parse isolated clauses and in so doing artificially determine the instruction to set forth an unconstitutional presumption. "(A) single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." ⁵ Cupp v. Naughten (1973), 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368. Read as a whole, the challenged instruction merely describes a permissive inference. ⁶

Recent United States Supreme Court cases striking down various state trial court jury instructions on the issue of criminal intent are distinguishable since those cases presented actual presumptions of either a conclusive or persuasion-shifting variety that relieved the state of its burden of...