Appendix — Payne v. Ohio

Supreme Court brief1979

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Supreme Court, U. &

I-L-E D

DEC 5 1978

In THE

Supreme Court of the United Sear FAs evan. ik. OLER

OCTOBER TERM, 1978

no._28 -900

MAJOR EDWARD PAYNE,

Petitioner,

VS.

STATE OF OHIO,

Respondent.

APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI TO THE

OHIO SUPREME COURT

see

BERNARD A. BERKMAN

BERKMAN, GORDON, KANCELBAUM AND LEVY

2121 THE ILLUMINATING BUILDING

SS PUBLIC SQUARE

CLEVELAND, OHIO 44113

(216) 781-5245

JAMES R. WILLIS

BOND COURT BUILDING

CLEVELAND, OHIO 44114

(216) 523-1100

Attorneys for Petittoner

BROWNPRINT INC. — LEGAL DIVISION, CLEVELAND, OHIO 44113 (216) 621-2944

TABLE OF CONTENTS

Order of the Ohio Supreme

Court Denying Motion for

RORSGEANG s 6c ciecvescsecevcceccvecs l

Order of the Ohio Supreme

Court Dismissing Peti-

tioner's Appeal of Right......... 2

Order of the Ohio Supreme

Court Overruling Peti-

tioner's Motion for Leave

CO APPEAL. cecscccvccvevecccesveces 3

Order of the Court of Appeals,

Eighth Appellate District,

Cuyahoga County, Ohio,

Overruling Petitioner's

Motion for Reconsideration....... 4

Journal Entry of the Court

of Appeals, Eighth Appellate

District, Cuyahoga County,

Ohio, Affirming Petitioner's

COMVECEAS Buccecnciccccrvcvecsese 5

Opinion of the Court,

DY JUGGO PACtOR. csccccccccccccs 5

Concurring Opinion of

we CORTESE oc ce cee nsceeeses 23

Dissenting Opinion of

FUGGO FJACKEON cc cccccececesvcece 28

Excerpt from Petitioner's

Memorandum in Support of

Jurisdiction, filed in

the Ohio Supreme Court........ee. 84

TABLE OF CONTENTS (CONT. )

Excerpt from Petitioner's

Memorandum in Support of

Application for Reconsider-

ation, filed in the Court

of Appeals, Eighth Appellate

District, Cuyahoga County,

OR1O. ccoccscccsescccscccceseecceee 110

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, )

) 1978 Term

City of Columbus. )

To wit: September 7, 1978

State of Ohio,

)

Appellee, )

)

vs. ) No. 78-617

)

Major Edward Payne, ) REHEARING

Appellant. )

It is ordered by the court that rehearing

in this case is denied.

THE SUPREME COURT OF OHIO

THE STATE OF OHIO, 1978 Term

— ~~" ~——

City of Columbus. Towit: July 6, 1978

State of Ohio,

)

Appellee, ) No. 78-617

)

vs. ) APPEAL FROM THE

) COURT OF APPEALS

Major Edward Payne, )

)

Appellant. for Cuyahoga County

This cause, here on appeal as of

right from the Court of Appeals for

Cuyahoga County, was heard in the manner

prescribed by law, and, no motion to

dismiss such appeal having been filed,

the Court sua sponte dismisses the appeal

for the reason that no substantial consti-

tutional question exists herein.

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, 1978 Term

City of Columbus. To wit: July 6, 1978

State of Ohio,

Appellee,

No. 78-617

)

) MOTION FOR LEAVE TO

vs. ) APPEAL FROM THE

) COURT OF APPEALS

Major Edward Payne, )

)

Appellant. for Cuyahoga County

It is ordered by the Court that this

motion is overruled.

COURT OF APPEALS OF OHIO,

EIGHTH DISTRICT

COUNTY OF CUYAHOGA

GERALD E. FUERST, CLERK OF COURTS

State of Ohio

COURT OF APPEALS

APPELLEE NO. 36457

-ve- LOWER COURT NO.

C.P. 22923 Cr.

Edward Payne

APPELLANT MOTION NO. 39724

DATE March 21, 1978

JOURNAL ENTRY

Motion by appellant for reconsidera-

tion overruled. Exc.

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

NO. 36457

STATE OF OHIO APPEAL FROM

COMMON PLEAS COURT

Appellee No. 22923-Cr.

EDWARD M. PAYNE JOURNAL ENTRY

AND OPINION

Appellant

DATE: Feb. 28, 1978

PATTON, J.:

This cause came on to be heard upon

the pleadings and the transcript of the

evidence and the record in the Common

Pleas Court, and was argued by counsel

for the parties; and upon consideration,

the court finds no error prejudicial to

the appellant and therefore the judgment

of the Common Pleas Court is affirmed.

Each assignment of error was reviewed and

upon review the following disposition made:

The Grand Jury of Cuyahoga County

indicted the defendant-appellant, Major

Edward Payne, on two counts of intimidation,

Ohio Revised Code Section 2921.03, and two

counts of theft in office, Section 2921.41.

The State alleged that the defendant had

intimidated deputies Donald w. Campbell

and Phillip Vari, and that on separate

occasions, the defendant had stolen $250.00

in cash and two pearl-handled pistols from

the Sheriff's Office of Cuyahoga County.

At trial, a judgment of acquittal was

entered at the close of the State's case

on the count of intimidation of Phillip

Vari. The jury returned a verdict of not

guilty on the count of theft in office of

$250.00 and a guilty verdict on the counts

of theft of the pearl-handled pistols and

the intimidation of Donald Campbell. The

trial court imposed concurrent sentences

of two to ten years and three to ten years.

The defendant-appellant is properly before

this court seeking a reversal of his con-

victions.

The record from the trial court

reveals the evidence pertinent to this

appeal: The appellant, Major Payne, was

the warden of the Cuyahoga County Jail and

the head of Division 4 of the Sheriff's

Department. The latter division is an

undercover unit established for the purpose

of discovering individuals wanted on county

Capiases at various illegal "cheat spots".

The case revolves around the operations

of Division 4 and the activitiestof Major

Payne and the personnel under his super-

vision in the spring and summer of 1975.

At the trial, the State's chief

witness, former deputy-trainee, Donald WwW.

Campbell, testified to the following facts:

On April 19, 1975, he had participated in

the planning and initial steps of a

Division 4 raid on a west side "cheat

spot", which was Subsequently cancelled.

Upon returning to Division 4 headquarters,

he worked on his reports while other

deputies under the Supervision of the

defendant left for a raid upon a Cedar

Avenue location. He further testified

that later that morning, the defendant

and his deputies returned to Division 4's

offices with evidence seized in the raid.

Campbell stated that among the weapons he

observed were two 9-millimeter handguns

with pearl handles packaged in plastic

evidence bags. When questioned as to the

address on the tags of the evidence bag,

he answered over objection: "10001 Cedar

Avenue”. He then testified that the

defendant, Major Payne, indicated to a

Detective Garner that he (the defendant)

wanted the 9-millimeter weapons. Where-

upon, Detective Garner retrieved the pearl-

handled pistols from the evidence bags and

placed them in a brown paper bag. Campbell

then stated that the defendant left the

office with the brown paper bag. Through

Campbell, the State also established the

fact that these pistols were not recorded

in the property book, along with other

items seized in the raid.

The State's chief witness also gave

testimony as to subsequent events. Campbell

explained how he was seriously injured

while on an undercover operation and was

therefore placed on extensive disability.

According to him, officers from the

Sheriff's Department made a series of

visits to his home during his convalescence

period regarding copies of reports that he

possessed relevant to the activities of

Major Payne and to irregularities which he

had observed in the Sheriff's Office.

Campbell then testified that the

defendant invited him, his wife, and

Phillip Vari to the Eastown Motel for the

evening of August 2, 1975. Upon arriving

at the motel, the three went into the

lounge and had drinks ard conversation

with the defendant. Though the tone of

the conversation was friendly at first,

Campbell stated that the defendant began

to focus on a more serious topic. A series

of questions was directed at the nature

and content of the information that Campbell

had in his possession. When Campbell

refused to turn the information over to

Major Payne, the defendant allegedly

remarked: "If you don't cooperate with

me, I'll make sure you never get to court."

Campbell's inquiry as to the meaning of

the statement led to the reply: "Don't

cooperate with me andyou'll find out."

Campbell then testified that his wife had

become irritated by the comments and

insisted that they leave. Whereupon, the

three got up and proceeded to leave the

lounge. On the way out, they met Marion

Koszewski, also with the Sheriff's Depart-

ment, as he entered the lounge.

Campbell concluded his testimony by

stating that he was on extensive disability

On August 2, 1975 and that he was fired

by Sheriff Kreiger on December 15, 1975.

The State's second major witness,

Sims Goodman, Jr., had served as an infor-

mant for several law enforcement agencies,

including the Sheriff's Department. His

testimony revealed that on April 19, 1975,

he was in the area of the Cedar Avenue

raid and was in a position to see certain

aspects of the raid. He stated that he

observed two "high rollers" (gamblers)

named Van Lapsley and "Big Jordan" coming

from the address where the raid had taken

place. Goodman then testified that prior

to that night, while working as a "door

shaker" at Goldie's Lounge, he had taken

pistols of both men on separate occasions

when they entered the lounge. He described

their weapons as 9-millimeter pistols with

Snow-white grips. Goodman also testified

that several days after the raid, he again

had occasion to shake both men down and

found that they possessed pistols with

dark handles. On cross-examination, Sims

testified that on the evening subsequent

to the raid when he shook Lapsley down,

the latter stated in reference to his

Pistol, "Some bright nigger got it." Sims

also divulged that "Big Jordan" had told

him "That nigger Payne got my gun."

The State also called Judith Campbell

and Phillip Vari, whose testimony, perti-

nent to this appeal, corroborated the

statements of Donald Campbell regarding

the evening with the defendant at the

Eastown Motel. The final witness for the

Prosecution, James Marino, a reporter for

the Cleveland Press, testified that Major

Payne had told him after the raid that six

handguns had been seized. Marino's article

reporting that information was also admitted

into evidence,

The defendant called a number of

witnesses who directly and indirectly

contradic"ed the testimony of the prose-

cution's witnesses. Most Significant was

the testimony of Deputy Garner, who stated

that he did not give Major Payne the pearl-

handled pistols, nor did he even see Major

Payne or Donald Campbell at Division 4

after the raid of April 19th. He also

testified that every item seized in the

raid was entered in the property book.

Garner also testified, as did Deputy

Burress and Powell Caesar, that he did

not see any pearl-handled Pistols at the

Cedar Avenue address. Moreover, Deputy

Thornton and Powell Caesar stated that

Only four handguns were seized in the raid.

Further contradiction was provided

through the testimony of Lee Jordan and

Ivan Lapsley. Each of these witnesses

denied owning 9-millimeter pistols with

white handles. Both men also testified

that they had not seen one another in

over a year.

There was also conflicting testimony

as to the presence of Payne and Campbell

at Division 4 after the April 19th raid.

Campbell testified that he and Payne were

at the offices until about 7:30 a.m.

Deputies Bly and Thornton testified that

they did not see either Payne or Campbell,

but they both indicated that they had only

entered the offices at 7:30 a.m. Deputy

Brown stated that Campbell was at the

office when he returned from the raid, and

Deputy Burress testified that Campbell was

in the parking lot at 7:00 or 7:30 a.m.

Both Koszewski and Garner testified that

they did not see Major Payne in the offices

of Division 4 after the raid.

Defense witnesses also contradicted

Campbell regarding the reason for visits

to his home by members of the Sheriff's

Office during his convalescence. While

he had indicated that the purpose of the

visits was to question him regarding his

information on Major Payne's activities

both Deputy Brown and Deputy Koszewski

testified that the visits were in regard

to certain statements and reports that he

had submitted to the Sheriff's Office.

One final area of conflicting evidence

centered on the evening at the Eastown

Motel. Defense witness Keldon Casey

testified that he was with the defendant

and the Campbell party the entire evening,

and the conversation did not turn into a

heated argument. However, when Mrs.

Campbell was called as a rebuttal witness,

she denied his presence at the table and

«- 20 =

contradicted his description of her as

having blonde hair with a photograph taken

that evening showing her with brown hair.

Finally, Deputy Koszewski testified that

when he entered the Eastown lounge as the

Campbell party was leaving, they appeared

to be laughing, and Campbell had his arm

around the Major.

On appeal to this court, the appellant

assigns the following errors:

THE TRIAL COURT ERRED IN DENYING

THE APPELLANT'S MOTION FOR

JUDGMENT OF ACQUITTAL ON THE

THEFT IN OFFICE CHARGE MADE BOTH

AT THE CLOSE OF THE STATE'S CASE

AND AT THE CLOSE OF THE ENTIRE

CASE.

"_.

"/e

The Prosecution Failed To

Prove, By Competent Evidence,

That The Firearms Supposedly

Taken By The Appellant Had

Been Seized By, And There-

fore Belonged To, The

Sheriff's Department.

As A Matter Of Law, The State

Failed To Meet The Burden It

Accepted Of Proving That The

Seizure Of The Pearl-Handled

Guns By The Sheriff's Depart-

ment Was Lawful.

As A Matter Of Law, The

Appellant Did Not Commit A

Theft Offense, Because The

Sheriff's Department Is Not

An 'Owner' Within The Meaning

Of Re‘vised Code Section

2913.02.

= 29 «

at ¢ ee

"IV.

THE TRIAL COURT ERRED IN OVER-

RULING THE APPELLANT'S OBJECTION

TO DONALD CAMPBELL'S TESTIMONY

CONCERNING THE CONTENTS OF A

WRITING WHICH LINKED THE FIRE-

ARMS TO THE CEDAR RAID.

THE VERDICT WHICH FOUND THE

APPELLANT GUILTY OF THEFT IN

OFFICE IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

A REVERSAL OF THE APPELLANT'S

CONVICTION FOR THEFT IN OFFICE

NECESSITATES A REVERSAL OF THE

APPELLANT'S CONVICTION FOR

INTIMIDATION AS WELL.

THE TRIAL COURT ERRED IN DENYING

THE APPELLANT'S MOTIONS FOR

JUDGMENT OF ACQUITTAL ON THE

INTIMIDATION CHARGE MADE BOTH

AT THE CLOSE OF THE STATE'S CASE

AND AT THE CLOSE OF THE ENTIRE

CASE.

"A. As A Matter Of Law There Was

No Intimidation Of Campbell

In The Discharge Of His Duty

Because On August 2, 1975

Campbell Was On Extensive

Disability And Had No Duties.

"B. Assuming, Arguendo, That

Campbell Was Charged With

The Duties Of A Deputy

Sheriff On August 2, 1975,

The Intimidation Was Un-

related To Those Duties."

— =

Assignment of Error 1

The appellant maintains that the trial

court should have granted his motion for

acquittal as to the theft of the pistols

for three reasons. First, he argues that

the prosecution failed to prove that the

pearl-handled pistols belonged to the

Sheriff's Department. Secondly, he contends

that the State failed to prove the weapons

were legally seized and argues that the

State was required to Prove the legality

of the seizure because it failed to object

to the jury instructions regarding the

elements of the crime. The third reason

basically states that a theft offense was

not committed because the Sheriff's Depart-

ment is not an "owner" within the meaning

of Ohio Revised Code Section 2913.02.

This court holds that the first assignment

of error does not constitute grounds for

a reversal.

Appellant's first reason states that

the prosecution failed to prove an essential

element of the crime, specifically, the

element regarding Ownership of the pistols.

Appellant contends that the State needed

to prove that the pistols were seized in

the raid at 10001 Cedar Avenue and there-

fore belonged to the Sheriff's Department.

This position imposes a higher burden on

the State than is required by law.

To warrant a conviction for theft in

office, Section 2921.41, the State must

prove that a theft offense was committed.

Therefore, attention is drawn to Ohio

Revised Code Section 2913.02, which reads

in pertinent part:

"§2913.02 Theft.

"(A) No person, with purpose to

- 13-

deprive the owner of property

Or services, shall knowingly

obtain or exert control over

either:

"(1) Without the consent of

the owner or person

authorized to give

consent;

"(2) Beyond the scope of the

express or implied con-

sent of the owner or

person authorized to

give consent;...."

The key word for the purpose here is

"owner", which is defined in Section

2913.01(D) as:

"(D) 'Owner' means any person, .

other than the actor, who is

the owner of, or who has

possession or control of,

Or any license or interest

in property or services,

even though such ownership,

possession, control, license,

or interest is unlawful."

From this language, the court finds that

the element of ownership which the State

needed to prove consists of possession in

one other than the accused. See State v.

Shoemaker (1917), 96 Ohio St. 570.

This court further finds that the

State produced sufficient evidence to prove

this element beyond a reasonable doubt.

Though a discussion of the sufficiency of

that evidence will follow in the consider-

ation of the third assignment of error,

the court will address certain points

raised in the appellant's brief at this

point. The appellant relies on State v.

—

Kulig (1974), 37 Ohio St. 2d 157. However,

in the instant case, there was direct

evidence to establish the element of owner-

ship, and the rule in Kulig applies where

there is only circynstantial evidence to

prove the element.+ For that same reason,

the reliance on State v. Farmer (1951),

156 Ohio St. 214, does not apply.

The second reason supporting this

assignment of error also lacks merit. It

attempts to utilize Rule 30 of the Ohio

Rules of Criminal Procedure as a means of

adding elements to a crime defined by

statute.

The rule reads in pertinent part:

"...A party may not assign as error

the giving or failure to give any

instructions unless he objects

thereto before the jury retires

to consider its verdict, stating

specifically the matter to which

he objects and the grounds of

his objection...."

Based upon this language, it is appellant's

contention that since the prosecution did

not object co a jury instruction that

defined the crime as the theft of property

lawfully seized, the prosecution had to

prove that the pistols were, in fact, law-

fully seized. This conclusion is not in

1/7 The rule in Kulig reads:

"It is settled that where circum-

stantial evidence alone is relied upon

to prove an element essential to a

finding of guilt, it must be consistent

only with the theory of guilt and irre-

concilable with any reasonable theory of

innocence." State v. Kulig, supra at

160. (Emphasis added)

- 15 «

accord with the purpose of Rule 30. The

rule only provides that if a party fails

to object to a jury instruction, he may

not raise the error on appeal. The rule

does not provide an additional sanction

of adding elements to the offense at issue.

Furthermore, defining crimes and criminal

procedure is within the province of the

legislature and not the courts. See State

v. Poffenbaugh (1968), 14 Ohio App. 2d 59,

65-66.

The final reason given in support of

this assignment is that a theft offense

was not committed because the Sheriff's

Department is not an "owner" within the

meaning of Section 2913.02. This conten-

tion is based on she fact that the defi-

nition of “owner"

and the definition of "person" as defined

in Ohio Revised Code Section 1.59 does not

include the Sheriff's Department.

This argument fails when the focus

is shifted from the Sheriff's Department

to the Sheriff. The Sheriff is a "person"

within the meaning of Section 1.59. More-

over, the statutory provisions pertaining

to the office of Sheriff provide that he

is personally responsible for property in

his possession.3/ This court finds that

Since the pistols in question were in the

possession of the deputies, the Sheriff's

2/ The definition of "owner" as found in

Ohio Revised Code Section 2913.01(D)

is set forth on page 8 of this entry.

3/ Ohio Revised Code Section 311.02

requires the Sheriff to post bond, and

Section 311.15 requires him to deliver

all chatteis in his possession to his

successor.

- 16 -

is limited to a "person",

agents , 4/ they were constructively in the

possession of the Sheriff.2 Therefore,

as a matter of law, there was a "person"

who had beep deprived of property in his

possession.=

Assignment of Error II

The second assignment of error states

that the trial court erred in admitting

Donald Campbell's testimony as to the

address on the tag of the evidence bag.

This court finds that it was not error

4/ See State ex rel. Geyer v. Griffin

(1946), 80 Ohio App. 447.

5/ See Hicks v. Grussel (1901), 8 Ohio

N.P. 195, which held that property

taken under a writ of attachment and

placed in the possession of a keeper

was property in the Sheriff's posses-

sion.

6/ This court also notes that Ohio Revised

Code Section 2921.41, pertaining to

theft in office, contemplates property

taken from a department or agency of a

subdivision of the State.

"§2921.41 Theft in office.

"(A) No public official or party

official shall commit any theft

offense, when either of the

following applies:

x * &

"(2) The property or service

involved is owned by this

Or any other state or the

United States, a munici-

pality, or any political

subdivision, department, or

agency of any of them, or

by a political party, or is

part of a political campaign

» 19 «

to permit Campbell to testify as to the

address on the tag.

The State did not need to prove that

the pearl-handled pistols were seized in

the raid at Cedar Avenue in order to show

that they were in the possession of the

Sheriff. However, the address did have

corroborative value as circumstantial

evidence, and therefore, the fact that

Campbeli's statement violated neither the

hearsay nor best evidence rules is signi-

ficant.

The statement was not hearsay evidence

in that it was descriptive of what the

witness observed and only circumstantial

as to the source of the pistols. In this

regard, two cases were considered. First,

the Ninth Circuit of the United States

Court of Appeals held in the case of United

States v. Snow (1975), 517 F.2d 441, that

a tape, bearing the name of the defendant,

affixed to a case containing a weapon was

not hearsay and was properly admitted to

show that defendant knowingly possessed

the weapon. Secondly, the Supreme Court

of Louisiana held in the case of State v.

Jackson (1953), 223 La. 435, 65 So. 2d

903, that the testimony of a coroner that

he performed an autopsy on a body that

bore a tag with the victim's name was not

hearsay and was relevant proof of the

corpus delicti. In its opinion, the

Jackson court stated the following:

"It is obvious that the tag

placed on the body containing

the name Frances Foster, was

placed there to identify it

from any other female body then

in the morgue.... At no time

did the autopsy surgeon ever

- 18 «

say he identified this body as

that of Frances Foster...."

Likewise, in this case, the tag was placed

on the evidence bag so as to identify the

pistols from any other weapons in the

property room. Indeed, Deputy Bly testi-

fied that it was the custom of the Sheriff's

Office to place one of the tags, marked

with the location from which the item was

taken, on each evidence bag.

As for the objection that the testi-

mony violated the best evidence rule, this

court classifies the tag with th¢ address

on it as an "inscribed chattel".// This

classification is based on the fact that

the item is both a chattel and a writing.

Therefore, in accordance with the author-

ities on the subject , 8/ this court finds

that it was within the discretion of the

trial court to determine whether the

witness' testimony could be substituted

for the inscribed chattel, itself. In

that the inscription on the tag was simple

and the witness had ample opportunity to

observe it, this court finds that the

trial judge did not abuse his discretion

in admitting the statement. The opinion

of the Fifth Circuit of the United States

Court of Appeals in the case of United

States v. Duffy (1972), 454 F.2d 809, is

persuasive on this issue. In that case,

the court found that the testimony of a

witness relating his observation of a

shirt, with the defendant's initials,

77 McCORMICK, HANDBOOK OF THE LAW OF

EVIDENCE §232, at 562 (2d Ed. 1972).

8/ Id. See also 4 WIGMORE, EVIDENCE

§1182, at 421 (Chadbourn Rev. 1972).

=) =

Mina, marked on it, did not violate the

beset evidence rule.

Assignment of Error III

The appellant argues that the guilty

verdict on the charge of theft in office

of the two pistols is against the manifest

weight of the evidence. This assignment

of error is not well taken. Though there

was conflicting evidence, the evidence on

the whole was sufficient to support the

guilty verdict.

The argument that the verdict is

against the manifest weight of the evidence

focuses on the issue of whether or not a

theft offense was proven by the State.

As stated previously, appellant maintains

that the State failed to prove the essen-

tial element of ownership, or as this entry

has described it, possession in one other

than the accused.

The State offered proof of that

element through the testimony of Donald

Campbell and the corroborating testimony

of Sims Goodman. Campbell did testify

that he saw the defendant and other depu-

ties leave Division 4 for a raid and then

return that same morning. He also testi-

fied that, among the evidence the deputies

brought in, he observed the 9-millimeter

pistols with pearl handles in plastic

evidence bags with tags attached. This

testimony was direct evidence, and it was

sufficient to prove that the pistols were

in the possession of one other than the

accused. This is especially true when

one considers the testimony of Deputy Bly

relative to the Sheriff's Department's

regular procedure in tagging and bagging

- 20 -

seized items. The State did prove that

the pistols in question were in the posses-

sion of the Sheriff of Cuyahoga County.

Though portions of Sims Goodman's

testimony were circumstantial evidence,

it did corroborate Campbell's allegation

that the defendant committed a theft

offense. Therefore, on the basis of a

careful review of the evidence, this court

finds that the verdict was not against the

manifest weight of the evidence.

Assignment of Error IV

In that this court has found that

the defendant-appellant was properly con-

victed on the count of theft in office,

there is no basis for appellant's argument

that a reversal on that count mandates a

reversal of his conviction for intimida-

tion. Moreover, even if this court found

error in the conviction for theft in office,

it does not follow that a reversal on the

count of intimidation is required. There-

fore, this assignment of error is not well

taken.

Assignment of Error vV

The final assignment of error is

that the trial court erred in denying

appellant's motions for acquittal on the

charge of intimidation. Appellant supports

this assignment with two reasons.

The first reason is that Campbell

had no duties on August 2, 1975. Though

Campbell was on extensive disability at

that time, he was still employed as a

deputy-trainee in the Sheriff's Office.

« 21 «

Moreover, though he was not on active duty,

performing his regular functions, he was

under an obligation to fulfill the duties

implicit in the nature of his office.

Since the Sheriff is the chief law

enforcement officer of the county, and

since a deputy is the Sheriff's agen and

occupies a single office with him, a

deputy has an implicit duty to see that

the law is upheld. Therefore, this court

finds that Donald Campbell did have a duty

to report any illegalities that he

observed by virtue of his office.

Appellant's second reason in support

of this assignment is that the alleged

intimidation was unrelated to Campbell's

duties. However, as stated above, Campbell

had a duty to report any irregularities

which he observed. Therefore, when Major

Payne threatened Campbell in regard to

taking the information to court, that con-

stituted intimidating a public servant in

the discharge of his duty. Thus, appel-

lant's second reason in support of this

assignment also fails. For these reasons,

this court holds that the appellant's

final assignment of error is without merit.

For all the foregoing reasons, we

overrule appellant's assignments of error

and affirm the judgment of the trial court.

9/ See In Re Sulzmann (1932), 125 Ohio St.

594.

10/See State ex rel. Geyer v. Griffin,

Supran. 4.

- 22 -

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

NO. 36457

STATE OF OHIO APPEAL FROM

COMMON PLEAS COURT

Appellee No. 22923-CR

EDWARD PAYNE JOURNAL ENTRY

CONCURRING OPINION

Appellant

DATE: Feb. 28, 1978

CORRIGAN, P.J., CONCURRING:

While concurring in the affirmance

of the judgment and most of the opinion

of Judge Patton, I differ with his conclu-

sion on the second assignment of error

and express my own views on that assign-

ment. Further I would amplify on the

reasons advanced for finding the third

assignment to be without merit.

As his second assignment of error,

the defendant claims that the statement

of Campbell of the address of the evidence

tags was hearsay. The witness testified

that the guns were tagged as evidence and

that the address "10001 Cedar Avenue" was

written on the tags. A statement is

regarded as hearsay when it is made by a

person not under oath or subject to cross-

examination and the statement is offered

to prove the truth of the matter asserted,

Potter v. Baker (1955), 162 Ohio St. 488,

494,

— ee

The purpose of Campbell's testimony

in this instance was to show that the hand-

guns were seized in the raid. Because the

tags were written by someone other than

Campbell, not under oath or subject to

cross~examination, the statement by

Campbell was hearsay. Accordingly, the

objection to its admission should have

been sustained by the court.

Criminal Rule 52(A) states that any

error which does not affect a substantial

right of the defendant is harmless error,

and therefore, should be disregarded. In

State v. Davis (1975), 44 Ohio App. 2d 335,

this court held that when the error by the

trial court is non-constitutional in nature,

the conviction should be affirmed if, dis-

regarding the objectionable evidence,

there is substantial evidence to support

the conviction. It must be noted that the

source of the handguns is not important

to the disposition of this case, so long

as the State proves that the Sheriff's

Department had possession. The address

on the tags, merely went to show where the

handguns came from. The statement that

the weapons were tagged as evidence, irre-

spective of what the tags stated, was

competent evidence to show possession by

the Sheriff's Department. Thus, disre-

garding the hearsay evidence does not

reduce the degree of evidence introduced

to show possession. Therefore, the admis-

sion of the hearsay evidence was harmless

error and did not substantially affect the

rights of the defendant.

The defendant contends as his third

assignment of error that the conviction

of theft in office was against the manifest

weight of the evidence. This assignment

of error also lacks merit. The defendant

- 24 -

bases his argument on the fact that the

State failed to prove by competent evidence

that the pearl-handled firearms were

seized at the 10001 Cedar Avenue raid. As

has already been shown, this fact is not

essential to the State's case.

The requisite elements of the charge

of theft in office are:

1) That the defendant as a public

official.

A) Used his office to commit

the offense; or

B) Took property owned by the

State or a political sub-

division therein;

2) With the purpose to deprive the

owner of the property;

3) Knowingly obtained or exerted

control over the property.

4) Without the consent of the owner.

From the facts contained in the record

there is no dispute that the defendant was

a public official and that he obtained and

exerted control over the property in

question. The record also shows that the

defendant came in contact with the property

by virtue of his position in the Sheriff's

Office.

R.C. §2901.22(A) states that a person

acts purposely when it is his specific

intention to either cause a certain result

by his conduct or engage in a specific

course of conduct. In the present case

the specific conduct of the defendant was

oe OS «x

the unauthorized taking of the handguns,

which deprived the owner (Sheriff) of the

property. The final element, the lack of

consent by the Sheriff, is clear from the

record. Campbell testified that he saw

one of the other deputies take the hand-

guns out of the plastic evidence bags and

place them in a brown paper bag. This

bag was subsequently removed from the

Sheriff's office by the defendant. The

use of the guns by the defendant as his

own is inconsistent with their being held

as evidence. R.C. §§ 2933.241 - .28

describes the procedure for handling items

seized as evidence. From a reading of

these sections it is clear that the Sheriff

was unable to give the defendant permission

to use the guns in the manner in which the

defendant did. For the Sheriff to have

done so would have required him to exceed

the scope of his authority. Thus, as a

matter of law, the Sheriff was unable to

give his consent for such a use.

The defendant also contends that the

verdict should be reversed because it

rests, for the most part, on the uncorrob-

Orated testimony of one witness. What the

defendant is raising, however, is not a

question of sufficiency, but rather, one

of credibility. This is a question of

fact, however, not law. The weight to be

given the evidence and the credibility of

witnesses in a criminal case is primarily

for the trier of facts. State v. DeHass

(1967), 10 Ohio St.2d 230.

In the present case the defendant was

given the opportunity to reduce Campbell's

credibility on cross-examination. In

addition, the defendant presented witnesses

whose testimony was in conflict with that

of Campbell's. Thus, the question before

~~’ =

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

the jury was one of credibility of the COUNTY OF CUYAHOGA

witnesses. When from the evidence pre-

sented reasonable minds can differ con- NO. 36457

cerning whether each material element of ; |

a crime has been proved beyond a reasonable STATE OF OHIO peta ving fl cour?

doubt, the question is one for the deter- nT No. 22923 Cr

mination by the jury. State v. Swiger PP 4 .

(1966), 5 Ohio St.2d 151. On the issue gi

of credibility, the judgment of the jury,

as the trier of fact, cannot be substi-

tuted by the judgment of the Court of MAJOR EDWARD PAYNE suman ten cawicioe

Appeals. Trickey v. Trickey (1952), 158 Appellant

Ohio St. 9. While the defendant correctly

asserts that the case of State v. Reid

(1965), 3 Ohio App.2d 215, properly sets

forth the standard of review of the evi-

dence on appeal, that case is not applic-

able to the present case where there is

clearly no "absence of conflict" on the

record. Id. at 221. Accordingly, the

third assignment of error is not well

taken.

Date: Feb. 28, 1978

JACKSON, J., DISSENTING

Because I find merit in four of the

five errors assigned by appellant,2+/ I

must respectfully dissent.

The defendant in this case was indicted

by the Grand Jury on November 17, 1975

upon four separate counts: two counts of

theft in office in violation of Ohio

Revised Code §2921.41 and two counts of

intimidation in violation of Ohio Revised

Code §2921.03. In essence, by the two

There being no errors raised that

would warrant reversal, the judgment of

the trial court must be affirmed.

1/ Appellant's assignment of error number

four asks us to hold that errors with

respect to the theft in office count

tainted the conviction with respect to

the intimidation conviction. Because

my disposition of the other assignments

of error changes the context in which

this assignment of error was raised, it

is rendered almost meaningless. I find

it unnecessary to express an opinion

upon what would be, in effect, an

academic question.

- 27 -

theft in office charges the State alleged

that on one occasion Major Payne had

stolen two pearl-handled pistols and that

on another occasion he had stolen some

$250.00 in cash. By the two charges of

intimidation the State alleged that on

one occasion Payne had intimidated Deputy

Sheriff Trainee Campbell and that on the

same occasion he had also intimidated

Deputy Sheriff Vari. At his arraignment

on November 20, 1975, the defendant entered

a plea of not guilty to all counts, and

trial commenced before a jury on February

3, 1976.

No case is tried in a vacuum and this

is especially true of one where it is

alleged that a public officer was engaged

in criminal activity. As noted by the

appellant, his trial was a "highly publi-

cized case."2/ The reasons for this are

not hard to find. The indictment and the

caption of the case indicates that the

defendant bore the title of "Major." The

record before us establishes that he was

a Major on the staff of the Cuyahoga County

Sheriff's office. Additionally, the

defendant was the Warden of the Jail and

the head of a special unit known as

"Division Four" which conducted raids upon

various illegal "after hours places” or

"cheat spots" which operated in violation

of statutes and regulations of Ohio govern-

ing liquor, gambling, and other similar

matters. Thus, the high level of public

interest in the defendant's case may be

attributed to one or more of the following

circumstances:

(a) The important position of trust

which the defendant had held at

the time of his indictment.

2/ Brief of Defendant-Appellant, p. l.

- 29 -

(b) Prior publicity concerning his

role in the raids conducted by

Division Four.

within the Sheriff's Department

closely associated him, at

least in the public mind, with

Sheriff Ralph Kreiger, and that

any criminal conviction of

Major Payne would reflect poorly

upon Sheriff Kreiger who was

then facing an election contest

in November of 1976.

Whatever the reason, it is evident from

a reading of the transcript before us that

all those involved in the case were vitally

interested in its outcome.

At trial some twenty-six witnesses

were called to testify. The issues were

hotly contested. The State relied princi-

pally upon the testimony of Deputy Trainee

Campbell to the effect that he had seen

the defendant leave the offices of the

Sheriff with two pearl-handled automatic

pistols and that on another occasion the

defendant had told Campbell that if he

didn't cooperate with the defendant by

giving him copies of certain reports the

defendant would "make sure you never get

to court."3 At the conclusion of the

State's case, the trial judge concluded

that the State had submitted insufficient

3/ Campbell's testimony was corroborated

in varying degrees by the testimony of

his wife; his partner Deputy Vari; and

of the informant Sims Goodman, Jr., but

as the majority correctly notes, it was

Campbell who was the "chief witness."

Journal Entry/Opinion at 2.

- 30 -

evidence upon the charge of intimidating

Deputy Vari and accordingly entered a

judgment of acquittal upon that count.

For its part, the defense relied upon

numerous witnesses in its attempt to prove

several "negatives": that the two pearl-

handled automatic pistols did not even

exist; that the pistols had not been

seized on a raid at 10001 Cedar Avenue

as claimed by the State; that neither

Trainee Campbell nor Major Payne had been

present at Division Four Headquarters at

the time when Campbell alleges the weapons

were stolen; that Trainee Campbell was not

the subject of intimidating statements by

the defendant; and that at the time of the

alleged statements Trainee Campbell was

not on duty and thus could not have been

intimidated with respect to his position

as a public servant.

The matter was submitted to the jury

upon two counts of theft in office and one

count of intimidation. On February 13,

1976 the jury returned a not guilty verdict

upon the charge of the theft of $250.00,

but guilty verdicts upon the theft offense

pertaining to the two pearl-handled pistols

and upon the intimidation charge pertaining

to Deputy Trainee Campbell. Thus, the

issues before this Court relate to the

validity of the conviction upon two charges:

(1) that defendant Payne stole two pearl-

handled pistols from the Sheriff's office;

and (2) that defendant Payne intimidated

Deputy Trainee Campbell so as to hinder

Or attempt to hinder him in the discharge

of his official duties.

Sentencing was continued until May 12,

1976. At that time the trial court gave

- 3l1-

the defendant concurrent sentences of two

to ten years and three to ten years. A

timely appeal was commenced in which the

appellant presented to this Court five

assignments of error. The reasons upon

which I base my conclusion that four of

the assigned errors have merit are set

forth below in seriatim.

: -

In his first assignment of error the

defendant-appellant claims that the trial

court erred in not granting him a judgment

of acquittal on the charge of theft in

office. In-*support of this assignment of

error the appellant sets forth three inde-

pendent grounds upon which he believes

that such a judgment in his favor should

have been granted. I concur with the

majority in its disposition of the first

and third grounds advanced in Support of

the assignment of error. Nevertheless, I

find that the remaining claim raises such

a substantial error under the state and

federal constitutions as to require

reversal.

_ In the second ground upon which his

assignment of error is based the appellant

argues that:

"As a Matter of Law, The

State Failed to Meet the Burden

It accepted of Proving That The

Seizure of The Pearl-Handled Guns

By the Sheriff's Department was

Lawful."

The copy of the indictment which is part

of the record before this Court reveals

that the appellant was charged with having

committed theft in office from the Sheriff's

«= 22%

Department. The prosecutor told the jury

that the State accepted the burden of

proving beyond a reasonable doubt that a

lawful seizure had taken place. (T. 19-

20) The trial court instructed the jury

that it was required to find that two such

weapons had been lawfully seized prior to

the theft offense in order to return a

verdict of guilty. ('T. 1385-1400)

The majority opinion, as I understand

it, does not in any way intimate that the

State of Ohio met the burden of establish-

ing beyond a reasonable doubt that the

Sheriff's office had ever lawfully seized

two such pistols. Even a careful reading

of the transcript will fail to reveal any

evidence from which it could be inferred

that two pearl-handled automatic pistols

were lawfully seized by the Sheriff's

office at any time.

There were two search warrants intro-

duced into evidence in the proceedings

below, but neither of these authorized

the seizure of weapons. Therefore, any

seizure of such weapons was made without

the authorization of a warrant. Warrent-

less seizures are per se unreasonable

unless they fall within certain well-

defined and limited exigencies. E.g.,

Coolidge v. New Hampshire (1970), 403 U.S.

443, 454-455; Katz v. United States (1967),

389 U.S. 347, 357. In the case at bar

there was no testimony as to who allegedly

seized the weapons; as to the identity of

a single person who witnessed the alleged

seizure; or as to the circumstances under

which such alleged seizure took place.

Indeed, none of the witnesses who testi-

fied in the trial claimed to have any

knowledge about facts or circumstances

which would indicate that this warrantless

- 33 -

seizure fell within one of the exigencies

to the warrant requirement. In the total

absence of any evidence with respect to

the facts and circumstances of the alleged

warrantless seizure, it is beyond dispute

that the State failed to prove the lawful-

ness of the alleged seizure.

The majority finds that this failure

of proof is not fatal to the case presented

by the State on the theory that the lawful

possession of the property by the Sheriff

prior to the alleged theft was not one of

the elements of the crime under Ohio

Revised Code Section 2921.41. I agree

with this interpretation of the statute.

At common law it was well established that

theft, or larceny, was an offense against

possession; that the crime focused upon

the "wrongful taking" of the property and

not the status of the person from whom the

Property was taken. See LaFave & Scott,

Criminal Law §87 (1972). It was therefore

possible at common law for a theft offense

to be committed even when an item was

taken from another thief who had initially

stolen the property from another. Over

the years Ohio has codified this common

law view in many of her statutes relating

to crimes of theft. E.g. State v. Shoemaker

(1917), 96 Ohio St. 570. I find that such

was the intent of the legislature in

adopting R.C. 2921.41 and that under the

statute the state need not show that the

victim had "lawful possession" of the

Property taken. Rather proof of "mere

possession" is sufficient to meet the re-

quirements of the statute.

However, the fact that the State of

Ohio could have prosecuted the appellant

for a crime against "mere possession" does

not change the fact that the State did

prosecute the appellant for a crime

against "lawful possession". Under

Section 10 of Article I of the Ohio Con-

stitution and the Sixth and Fourteenth

Amendments of the United States Constitu-

tion,4/ the State is required to give an

accused "fair notice of the criminal

charge one will be required to meet..."

United States v. Pandilidis (6th Cir.

1975), 524 F.2d 644, cert. den. (1976)

424 U.S. 923. Accord: Du Brul v. State

(1909), 80 Ohio St. wap. BYSe Ls

Yet in the case at bar the appellant

was led to believe that he could be con-

victed of the crime of theft in office

only if the State could prove beyond a

reasonable doubt that the alleged seizure

by the Sheriff's office was lawful. And

it was not until December 6, 1976, some

nine months after appellant's conviction,

that the County Prosecutor's office

announced for the first time that the

allegations of lawful seizure were mere

"surplusage” which the State was not obliged

to prove. Brief of Appellee at 22.

Prior to that time, each and every

Other representation of the State was that

it was charging appellant with an offense

appellant to believe this was true include

the following:

(1) The language "lawfully seized"

was included in the wording of

the indictment in such a manner

as to make it appear to be one

of the elements of the crime, 2/

5/ It is, of course,

well established that a

defendant may rely exclusively upon the

indictment to Properly set forth the

elements of a crime

and that where there

a defect even a correct citation to the

statute under which the accused is charged

will not cure the error. ~°9,?, State Vv.

Burgun (1976), 49 Ohio App.

e n considering the extent to whic

such reliance may have been justified

several factors must be considered:

(a) The

(b)

aegy te a is the legal advisor

of the Grand Jury. See R.C. 2939.11.

As such he or his assistants must

tg tag oe | assist the Grand Jury

in the dra ting of the indictments.

According to Prosecutor John ?.

Corrigan, the assistant prosecutors

assigned to work with the Grand Jury

are “among the most qualified and

experienced" in his office. Report

of the Cuyahoga County Grand Jury,

September 1975, fn. 142.

The indictment was signed by Grand

Jury Foreman Ovid Cc. Lewis, who is

an Attorney at Law, Hearing Examiner

for the Ohio Civil Rights Commission,

former Professor of Law at Case West-

ern Reserve University and current

Professor of Law at the University of

Northern Kentucky. See Directory of

Law Teachers (West 1976).

the name of the County Prosecutor,

John T. Corrigan, who, in his more

than twenty years as Prosecutor, has

had ample time to acquire a wealth

of experience with the innerworkings

of the Grand Jury and the indictment

process.

against lawful possession and that the

State would assume the burden of attempting

to prove such lawful possession beyond a

reasonable doubt. Examples of the affir-

mative actions by the State in leading the

4/ On the applicability of these federal

guarantees to state trial proceedings

see Watson v. Jago (6th Cir. 1977), 558

F.2d 330, and In re Oliver (1948) 333

U.S. 257, 273 and Cole v. Arkansas (1948),

333 U.S. 196, 201, cited therein.

(2)

(3)

(4)

The same language was republished

in the Bill of Particulars

furnished to the accused by the

Prosecutor and was again made

to appear as Fa of the elements

of the crime.

In his opening statement to the

jury, Assistant County Prosecu-

tor Walsh stated:

"We, the State of Ohio, have

the burden of proof and we

accept that burden...

We will...prove...beyond

a reasonable doubt that...Major

Edward Payne...obtained for his

own use tw 9-millimeter fire-

arms with pearl handles...from

property lawfully seized by and

in the possession of the Cuyahoga

County Sheriff's Department."

(T 19-20) (emphasis added).

Though it appears that the State

was fully aware of the fact that

in certain circumstances it could

changg the language of the indict-

ment , 2/ at no time during these

proceedings did the State attempt

6/ It may be noteworthy that in this case

-- unlike most of the cases which come

for review before this Court -- the

Bill of Particulars bears the name of

the County Prosecutor himself rather

than one of the Assistant Prosecutors.

See original indictment for the charge

of intimidation of Deputy Trainee Campbell

bearing notation "amended" and the docket

entry of January 26, 1976, relating to

the Amendment of the Bill of Particulars.

a 2 «we

to remove the terms "lawfully

seized" either by a motion to 8/

amend under Criminal Rule 7 (C)

or a motion to strike as sur-

plusage under Rule 7 (D).

(5) The trial Judge, without objection

from the State, reread the indict-

ment to the jury during his charge,

including the allegation that the

firearms had been "lawfully

seized" by the Sheriff's Depart-

ment. (T 1285).

(6) In his charge to the jury the

trial Judge, without objection

from the State, told the jury

that with respect to the theft

offense:

“Before you can find the

defendant guilty of the charge,

you must find beyond a reasonable

doubt that in Cuyahoga County...

on or about the 19th day of April,

1975...that:

"1. That the defendant was

a public official.

2. That he used his office

in aid in committing a

theft offense, in that:

8/ But it should be noted that the "law-

fully seized" language clearly "...en-

larges...the allegation necessary to

constitute a charge of crime..." and

it therefore does not fall within the

normal definition of surplusage, State

v. Stepely (Hamilton Cty. C.P. 1908)

9 Ohio Dec. 110. It is therefore un-

likely that a Rule 7 (C) motion could

have justifiably been applied to the

case at bar.

= 36 -

(7)

(8)

(9)

3. That he knowingly and

purposely

4. Obtain[ed] for his own

use...two 9-millimeter

firearms with pearl

handles on them...

5. From property lawfully

seized by and in posses~-

sion of the Cuyahoga

County Sheriff's Depart-

ment." (T. 1188-1189)

(emphasis added)

The trial court, without objection

by the State, defined for the jury

the meaning of the term "lawfully

seized." (T. 1291)

The trial court, without any

objection by the State, caused

verdict forms to be prepared,

read such forms to the jury, and

ultimately gave such forms to the

jury for its use in deliberations,

in which the "guilty" verdict

form for the theft in office

offense relating to the weapons

read, in relevant part:

"We, the jury...do find [that

the defendant] obtained for his

own use two 9-millimeter firearms

...from property lawfuly seized

by...the Cuyahoga County Sheriff's

Department." (T. 1300) (emphasis

added).

It was the above quoted form

which the jury signed when return-

ing their verdict of guilty upon

the theft offense.

= 39 -

With the record in this posture, I

find it difficult to conceive of any manner

in which the failure of proof by the State

could be justifiably ignored. I would

think that common notions of fairness

alone would require that the appellant be

granted a new trial. Since it is apparent

that throughout the trial and up until the

time of the filing of the appellee's brief

in this court, that the State of Ohio

represented to the accused and to the jury

that "lawfully seized" was one of the

elements of the crime. I would hold that

by its own conduct the State placed itself

in such a position as to make it impossible

to lawfully convict appellant without

proof that the Sheriff's Department had,

in fact, lawfully seized two such pistols.2/

Further, I believe that such a conclusion

is required by state law, the Ohio Consti-

tution, and the Federal Constitution.

With respect to requirements of state

law, as far as I can determine, there are

but four Ohio cases in which this issue

has specifically arisen. The first of

these was Pringle v. State (Muskingum Cty.

Supreme Ct., 1847), 1 Dec. Rpt. 283, 7

West. L.J. 67. The defendants had been

indicted for removing the body of a de-

ceased from the grave without the consent

of relatives, “there being then and there

a widow and children" of the deceased.

9/ A recent opinion from this Court has

made it unmistakeably clear that counsel

and an accused can rely upon the ele-

ments set forth in the indictment and

is not required to resort to the stat-

ute in order to determine what charge

is brought against the accused. State

y_Burgun (1976), 49 Ohio App. 2d 112,

Syl. 2.

- 40 -

In spite of the fact that the evidence

adduced at trial established that there

was no widow, the case was submitted to

the jury on the merits and ultimately a

general verdict of guilty upon all counts

was returned. The judgment was reversed

on appeal for the reason that

",.-although the allegation that

the deceased left a widow was

not necessary, yet that it was

descriptive of a material alle-

gation and that the prosecutor

was bound to prove as laid."

Pringle v. State, supra, (emphasis

added).

A similar result was reached by the

Ohio Supreme Court in Price v. State (1850),

19 Ohio 422 with respect to the attempt by

the State to make a more precise identifi-

cation of a victim by using his middle

initial in the indictment. The first syl-

labus of the decision is as follows:

"In a criminal proceeding, it is

not necessary to insert the middle

letter in a person's name; but

if inserted, it must be proved

as laid."

Accord: Hart v. State (1851), 20 Ohio

Rprts. 49,LU/

10/ It must be observed that insofar as the

~ cases of Pringle v, State, supra, Price

vy. State and Hart_v,_state,

’ preclu ed the state from amend-

fs tis indictments to correct immater-

ial error they have been modified ra

statute, e.g. (1884),

42 Ohio St. 154, 163-164, and super-

ceded by our own Criminal Rules. See

C.R. 7. However, ae | continue to be

good authority upon the question of the

state's poet pe to prove the material

allegations it sets forth in its indict-

ment when no such amendment is ever made.

- 41 -

Similar conclusions were reached more

recently by the Ross County Court of

Appeals in State v. Stone (1971), 30 Ohio

App. 2d 49. In that case the court in-

structed the jury on an issue which was

not one of the elements set forth in the

Statute and which was not alleged in the

indictment. On appeal the defendant argued

that it was error for the court to instruct

on matters not placed in issue by the in-

dictment. In finding that the defendant

was not entitled to a new trial, the Court

of Appeals concluded that the portion of

the charge not covered by the indictment

"inured to the benefit of the

defendant as it required more

proof than necessary to sustain

the allegations of the indictment

and, thus, could only prejudice

the state." State v. Stone,

Supra at 53. (emphasis added).

Therefore I can only conclude that

under state law when the state makes a

material allegation in the indictment of

a matter which it is not required to prove

by statute, and fails throughout the trial

proceedings and before the trial court

loses jurisdiction by the filing of a

Notice of Appeal to move to strike such

allegation as Ssurplusage pursuant to

Criminal Rule 7(C) and also fails to move

to amend the indictment under Criminal

Rule 7(D), then the state is bound to prove

Such allegation beyond a reasonable doubt.

The same result is required by the

fair notice requirements. of Article I of

the Ohio Constitution and the Sixth and

Fourteenth Amendments to the United States

Constitution. In one of the first cases

decided under Section 10 of the Bill of

Rights after the adoption of the Ohio

Constitution of 1851, Chief Justice Ranney

concluded that

",..It is neither consistent with

general principles or constitu-

tional safeguards, to allow a

man to be...put to trial upon a

criminal charge in th2 dark."

Dillingham v. State, (1855), 5

Ohio St. 280, 285.

An accused is entitled to "fair notice" of

the specific criminal charges brought

against him, e.g., Watson v. Jago (6th Cir.

1977), 558 F.2d 330, 338.

"A criminal charge should be

preferred with such certainty

and precision as will reasonably

apprise the party charged of that

which he may expect to meet and

be required to answer." Du Brul

v. State, supra, Syl. 1 and Pp.

64. (Emphasis added)

In the case at bar it is clear to me

that even up to the point that this case

was submitted to the jury the defendant

was led to "expect" that in order to win

acquittal he had only to raise a question

of reasonable doubt as to the allegation

that two automatic pistols had been law-

fully seized by the Sheriff's Department.

As in Watson, supra, the effort by the

state to prove that the weapons were law-

fully seized prior to any theft offense

"clearly appears" to have affected the

course of the trial. Both parties conducted

examination and cross-examination upon the

issue of lawful seizure. To the extent

that time, effort and energy was devoted

to developing evidence upon this issue,

- 43 -

the defense was prejudiced. Further,

given the nature of the trial proceedings

below, it is impossible to tell what

effect the absence of this issue from the

trial might have had upon its outcome.

Finally, I find that fundamental fair-

ness and concepts of due process of law

should protect a defendant from being pre-

judiced by the actions of the state in

placing material in indictments which have

the effect of misleading both the defense

and the trial judge; attempting to offer

proof of such extraneous material before

the jury; and then, after the trial, claim-

ing that it was not bound to prove the

same. In this case there appears to have

been a universal misunderstanding as to

the exact elements of the theft offense.

The qualified and experienced assistant

prosecutor who assumptively advised the

Grand Jury was mistaken as to the elements

of the crime. The Grand Jury itself was

incorrect in the form of its indictment.

The distinguished law professor who signed

the indictment as Grand Jury Foreman also

apparently overlooked the defect in the

indictment. The experienced County Pro-

secutor whose name appears upon both the

indictment and the Bill of Particulars

apparently did not detect the error. Nor

did the diligent assistant prosecutors who

tried the case make any effort to correct

the mistake by moving to strike surplusage

under Criminal Rule 7(C) or to amend the

indictment pursuant to Criminal Rule 7(D).

Even the experienced trial judge failed

to see the error and continually emphasized

to the jury that it must find the evidence

to have been "lawfully seized."

Ultimately, we must either conclude

that the state was not required to prove

- 44 -

the "non-element" of lawful seizure and

therefore hold that appellants Constitu-

tional rights to notic~ were violated; or

that the state did properly give the

appellant notice of what it intended to

prove, but failed upon one of the elements

of that proof. In either event, reversal

is required. In circumstances such as

these, where the State failed to give the

accused proper notice of what it did

ultimately prove, and failed to prove

what it gave the accused notice of, I am

persuaded that Constitutional provisions

of this state and the nation require

reversal.1

Il.

Appellant's second assignment of

error is as follows:

"THE TRIAL COURT ERRED IN

OVERRULING THE APPELLANT'S

OBJECTION TO DONALD CAMPBELL'S

ll/ There may also be double jeopardy

~ dimplications in this type of error.

For example, if the appellant had been

acquitted an ingenious prosecutor

might seek to justify a retrial upon

the grounds that the non-element of

"lawfully seized" made it impossible

for the jury to find the appellant

guilty and thus he was never placed

in jeopardy. From this premise the

state might argue that this case is

identical to Price v. State, supra,

and that reindictment and retrial can

take place because:

"The facts necessary to

sustain the second indictment

could not have warranted a

legal conviction on the

first." Price, supra, at

425.

- 45 -

TESTIMONY CONCERNING THE CONTENTS

OF A WRITING WHICH LINKED THE

FIREARMS TO THE CEDAR RAID."

The theory of the case advanced by

the State against defendant Payne with

respect to the theft of firearms was that

two pearl-handled automatic pistols had

been seized by the Sheriff's Department

during a raid on the premises located at

10001 Cedar Avenue, Cleveland, Ohio and

that upon said weapons being brought to

the Sheriff's office, that same day they

were stolen by the defendant. In support

ef that theory the State elicited testimony

from Deputy Trainee Campbell to the effect

that on April 19, 1975, he saw two nine-

millimeter pistols at the office of

Division Four; that each of those weapons

was contained in a plastic evidence bag;

that attached to each of those weapons

was a yellow evidence tag; and that written

on the tag was the address "10001 Cedar."

The later testimony was particularly

important to the State since the back-

ground information presented by the State

indicated that the writing on the tag was

Supposed to be the location from which

any evidence attached to it had been seized.

The appellant made a timely objection to

such testimony (T 29) upon the theory that

it was hearsay. The Ohio Supreme Court

has defined hearsay as follows:

"Testimony of a witness as to a

statement or declaration by another

person is hearsay testimony where

the statement or declaration is

offered or used only to prove the

truth of the matters asserted

therein." Potter v. Baker (1955),

162 Ohio St. 488 Syl. 1.

- 46 -

See Also McCormick on Evidence, §246 (2ed

1972) and Rule 801 of the Proposed Ohio

Rules of Evidence.

In this case the assertion was that

the guns in question had been seized from

10001 Cedar Avenue. The witness Donald

Campbell testified as to the nature of

the assertion, but admitted that he had

not written the address on the tag; that

he did not know who had written the address

on the tag; and, that he was not present

at the raid on Cedar and, therefore, had

no firsthand knowledge of what was and

was not seized there. Consequently, if

Campbell's testimony was offered for the

truth of the matter asserted -- that the

weapons were seized from 10001 Cedar

Avenue -- then it is clear that it was

hearsay and its admission was error.

The State argues that the evidence

was not admitted for the truth of the

matter asserted and that it was admissible

as evidence of what Mr. Campbell himself

observed. Appellee's Brief at 24-25.

The majority seems to accept this argument

for it concludes that "[t]he statement

was not hearsay evidence in that it was

descriptive of what the witness observed..."

Opinion and Journal Entry at 10.12/ of

course all written hearsay may be de-

scribed as simply being "descriptive of

what the witness observed" and all oral

hearsay may be said to be "descriptive of

what the witness heard." If that were

enough, then there would be no hearsay rule.

12/ I note that the Concurring Opinion

~ Judge Corrigan differs with the conclu-

sion reached in the Opinion by Judge

Patton that the statement on the tag

was not hearsay evidence. However,

Judge Corrigan found it to be harmless

error.

- 47 «

The real question is whether the

evidence offered was for a non-hearsay

purpose. The State and majority both say

yes -- but nowhere do they indicate what

that purpose was. The test to be applied

in determining whether such a non-hearsay

purpose exists is a simple one. We assume,

for purposes of seeking a non-hearsay

purpose, that the testimony is false and

then make the inquiry as to whether the

evidence is sg3i1 relevant to any issue

in the case.13/ If it is, then a non-

hearsay purpose has been discovered and

the evidence is admissible.

I have carefully reviewed the record

in an effort to discover any possible

non-hearsay purpose for which this testi-

mony could have been admissible and have

failed to find any. I think it fair to

say that the conspicuous silence of the

State and the majority upon this question

is an indication that they too were un-

successful in their search to discover any

non-hearsay purpose for which this testi-

mony could be offered. This being the

case, the decisions of our Supreme Court

require that we find the admission of the

testimony to be error.

The majority, apparently does not

accept the mandate of the hearsay rule or

overrule it directly, but avoids this

consequence by two separate approaches.

Initially the majority takes the

view that the testimony was not hearsay

because it was "only circumstantial as to

13/ This assumption can properly be made

for purposes of this test since to be

admissible the assertion must be

offered "without regard for its truth

or falsity."

- 48 -

the source of the pistols." Journal Entry

and Opinion at 10. I must admit that it

is, however, difficult for me to determine

the exact point the majority is attempting

to make, since it is apparent that the

hearsay rule precludes the introduction

of inadmissible hearsay whether such is to

be used as direct or circumstantial evi-

dence of a matter in controversy. I can

only conclude that the majority is admit-

ting that the assertion cannot be used as

direct evidence of the place from which

the weapons were seized, since such would

violate the hearsay rule; but that the

very fact that any such assertion is made

makes it more probable that the fact

asserted therein is true, and accordingly

the tag is admissible as circumstantial

evidence of the location from which the

weapons were allegedly seized.

Under this view hearsay should be

defined as an out of court assertion

"offered as direct evidence of the truth

of the matter asserted." Cf. Potter v.

Baker, supra. If this definition of the

rule were adopted then hearsay evidence

could never be excluded: for it could

always be offered as circumstantial evi-

dence of the truth of the matter asserted,

subject only toalimiting instruction.

The ultimate result of such a determina-

tion would be to destroy the efficacy of

the hearsay rule.

In support of this rather unique view

of the law of evidence, the majority

relies upon two cases: United States v.

Snow (9th Cir. 1975), 517 F.2d 441 and

State v. Jackson (La. 1953) 65 So. 2d 903.

Though the majority offers a brief recita-

tion of the holding in these cases, no

indication is presented as to what appli-

cability they have in the case at bar.

- 49 -

The Snow case involved the admission

of a briefcase which bore a name-tape

spelling out the accused's name and in

which was discovered an unregistered gun

on which there was a latent fingerprint

of the defendant. Though the Court's

reasons for its decision are somewhat

obscure, it appears the name-tape was

admitted not to prove the assertior that

it was the accused's briefcase, but rather

to serve as circumstantial evidence of

the fact that the briefcase had once been

in the defendant's possession.

The Snow case relies heavily upon I

Wigmore on Evidence (1940 ed.) §§149-160.

An examination of those passages reveals

that the issue being considered was whether

some mechanical trace or brand could be

used to "trace" certain chattels and there-

by show possession or ownership. It

states:

"Now the argument from

Traces assumes that the argument

as to identity has been settled

and accepted, i.e., here it

assumes that the use of the gun

in question is an essential or

sufficient mark of the murder,

and it then sets about to prove

that the accused possessed that

mark, i.e., used the gun; and

to do this it offers the fact of

its subsequent finding in the

accused's possession." I Wigmore

on Evidence, Supra, Sec. 149 at

p. 58.

In the case at bar the fact that the

guns allegedly bore a property tag of the

Sheriff's office might properly be consi-

dered as circumstantial evidence of

- 50 -

possession of the property by the Sheriff's

Department. But this portion of the testi-

mony by Campbell was not challenged.

However, the information written on that

tag was in the nature of a testimonial

assertion and could not be considered as

a mere mechanical notation or bren by

which an object could be traced. Con-

sequently the Snow case cannot aid the

majority in seeking to avoid the effect

of the hearsay rule.

State v. Jackson, supra, also fails

to support the position asserted by the

majority. In Jackson the defendant raised

an issue as to whether the state, prior to

the admission of his alleged confession,

had proved the corpus delecti. In that

case the body of the victim was brought

to the morgue in the evening. A tag was

placed on the body bearing the supposed

name of the victim, "Frances Foster." The

next day the assistant coroner conducted

an autopsy on the body which bore the tag

with the writing "Frances Foster" to

identify it. He then testified at trial

that his autopsy revealed that the person

he examined had been killed by a criminal

agency: two pellets of buckshot had been

extracted from the brain. The appellant

14/ I Wigmore §150, p. 597 (1940 ed.) warns

against attempting to extend the mech-

anical trace doctrine to cases such

as this:

"But a caution is necessary in

extending the analogy of these brand

and mark cases to the use of tags and