Opinion
CASE NO. 8-97-20
February 12, 1999
CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court.
JUDGMENT: Judgment affirmed.
MR. DAVID H. BODIKER, Ohio Public Defender; MS. TIMI J. TOWNSEND, For Appellant.
MR. GERALD HEATON, Prosecuting Attorney, For Appellee.
This is an appeal from the judgment entry of conviction and sentencing of the appellant Anthony Robinson on August 25, 1997, for a violation of R.C. 2923.161 (A), improperly discharging a firearm at or into a habitation together with the specification that he displayed, brandished, indicated possession of or used a firearm in violation of R.C. 2941.145.
As the first assigned error, appellant states the following:
FIRST ASSIGNMENT OF ERROR
THE NEW SENTENCING SCHEME ERECTED BY S.B. 2 AND 269 VIOLATES THE DOCTRINE OF SEPARATION OF POWERS, UNCONSTITUTIONALLY DIMINISHES THE JURISDICTION OF THE OHIO APPELLATE COURTS, IMPERMISSIBLY GRANTS THE EXECUTIVE BRANCH THE POWER TO DETERMINE FINAL SENTENCES, IS VOID FOR VAGUENESS, AND DEPRIVES APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION. FURTHERMORE, ASSUMING ARGUENDO THAT ANY PART OF THIS LEGISLATION IS CONSTITUTIONAL, APPELLANT'S SENTENCING IN THIS CASE WAS UNREASONABLE AND CONTRARY TO LAW.
Regarding the first part of this assigned error, we first note that the allegations of unconstitutionality involve several fact situations which do not apply to the appellant. For example, appellant obviously has not been deprived of his right to appeal nor has he had his sentence administratively extended. So, he has failed to show how he has been prejudiced in this matter.
Secondly, the trial court did not decide or comment on the issue of constitutionality of the sentencing provisions.
Finally, having read appellant's brief on the ultimate issues as filed in the trial court, we note that this issue was not presented for that court's consideration. A court of appeals is not required to consider issues not raised below. Republic Steel Corp. v. Bd. Of Revision (1963), 175 Ohio St. 179. This portion of the assignment of error is, therefore, held not to be well taken.
Appellant additionally, for this assignment of error, states that his sentence was unreasonable and contrary to law "because Appellant was sentenced on his underlying offense to a prison term rather that to community control, and to a prison term more lengthy that the minimum term, without the trial court making the proper determination under R.C. 2929.12."
Under R.C. 2929.12, unless a mandatory prison term is required by division (F) of section R.C. 2929.13 or 2929.14, when sentencing, the court is to consider the factors set forth in divisions (B) and (C) of that section relating to the seriousness of the conduct and divisions (D) and (E) of that section relating to the likelihood of the offender's recidivism and, may also consider other relevant factors in exercising its discretion in sentencing.
Appellant claims that the trial court misapplied the language of the statute and merely determined how serious the offense was in general rather than determining whether appellant's particular conduct was more serious than conduct normally constituting the offense.
First, a mandatory sentence was required under R.C. 2929.13 (F) and consecutive sentence was required under R.C. 2929.14(E) which greatly limited the trial court's discretion and the application of R.C. 2929.12 provisions. Next, the trial court's judgment entry states that the court made its sentencing findings "after consideration of the factors under Revised Code Section 2929.12", and found that prison is consistent with the purposes of R.C. 2929.11 and that appellant "is not amenable to an available community control sanction."
Appellant states that the trial court did not consider the seriousness of this particular offense compared to the conduct normally constituting this offense. However, the record reflects (sentencing T.p. 6) that the trial court considered the power of the specific weapon used herein, the casual manner in which the offense was committed, the neighborhood, and the "terrifying experience for everybody that was in that apartment."
In addition, the court stated that it "looked at different factors to determine whether or not probation should be, or community control should be granted in this matter."
Thus, we find that the trial court has substantially complied with applicable statutory language and the first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
APPELLANT'S WIFE, THE STATE'S KEY WITNESS, WAS INCOMPETENT TO TESTIFY AT TRIAL, BECAUSE SHE DID NOT ELECT TO TESTIFY AGAINST APPELLANT AND APPELLANT WAS NOT CHARGED WITH A CRIME THAT INFLICTED PERSONAL INJURY UPON HER OR HER CHILD. WITHOUT HER UNWILLING, IMPROPERLY COMPELLED TESTIMONY, THE EVIDENCE UPON WHICH APPELLANT WAS CONVICTED WAS LEGALLY INSUFFICIENT.
This assignment of error requires an examination of the facts surrounding the commission of the offense.
On New Year's Eve, also the eve of Bobbi Robinson's 23rd birthday, December 31, 1996, appellant, Bobbi's boyfriend at the time, had promised Bobbi that he would take her out for dinner to celebrate. However, when Bobbi arrived at her apartment, number 30 in Building 809 Heritage Court Apartment Complex, with her two year old daughter, Masyn, appellant was there playing cards, drinking alcohol and watching television with some of his friends. Bobbi became upset and the couple had words. Things were thrown and broken. Appellant told his buddies to leave. As they were departing, one of them asked for a gun. Appellant went to the bedroom and retrieved a gun while his buddies waited in the hallway. Bobbi, who was not aware of the gun's presence in the apartment, was further upset and inquired as to what it was doing in her residence. They continued yelling as Bobbi held her daughter in her arms and appellant waved the gun. Bobbi testified that shooting started and as appellant's friends came back into the room, Bobbi left with her daughter. Several other shots were fired. Bobbi went to her neighbor's apartment and waited until appellant and the others left.
Police received a report of a shooting in the area but were unable to find anything that night. The next day Bobbi called the police because there was damage to the apartment and she needed to get it reported. Officer Stidam asked Bobbi what had happened and she told the officer that appellant had shot out the windows of her apartment. She furnished a written statement to that effect. The officer counted twelve 9mm bullet holes in the window and drapery.
Bobbi testified before the grand jury and appellant was indicted and arrested. A trial was had on July 8, 1997. The day before the trial appellant and Bobbi were married and immediately prior to the trial the question of Bobbi's competency to testify was raised as she did not wish to testify against her spouse. The matter was addressed by the court at a hearing in chambers. The trial court stated, pursuant to Evid.R.601, "I think if I have a leasehold interest or an ownership interest of a residence and somebody does damage to the residence, including shooting at it, inside or outside, I think I'm a victim. It's a crime against the testifying spouse or a child of either spouse. I'm going to allow the State to proceed here this morning in spite of the marital status." T.p. 71. Appellant's position is that the crime was not committed against Bobbi. He states that at no time was the gun pointed at her or fired at her and thus Bobbi was not a victim of the crime.
We find that Evid.R. 601 provides the exceptions for the competency of all witnesses to testify. It provides that a spouse is not competent to testify against the other spouse except when a crime against the testifying spouse or a child of either is charged or the spouse elects to testify. As Bobbi elected not to testify in this case, the only way appellant's spouse can be competent to testify is if a crime against her or the child is charged.
The trial court ruled that the damage by shooting of the residence in which she had a leasehold interest was enough to comply with this language. We agree.
Evid.R. 601 does not require the testifying spouse to be a victim of a personal injury crime charge as stated in R.C. 2945.42. The rule merely states the exception refers to incidents when a crime against a testifying spouse or child of either is charged. Looking at the facts of this case, the appellant is charged with improperly discharging a firearm at or into a habitation in violation of R.C. 2923.161 (A). The shooting charged took place in the testifying spouse's residence and did damage to her leasehold interest. Therefore, the language of the rule is satisfied and the exception to Bobbi's incompetency is thus not present.
Further, upon balancing the facts as set forth by the record to determine whether any R.C. 2945.42 privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of justice, St. v. Mowery (1982), 1 Ohio St.3d 192, there is no public interest to be served by excluding the spouse's testimony under these circumstances. Not only was a firearm discharged in a habitation injuring the spouse's interest therein, there is also an act against the public regarding the indiscriminate firing of a firearm which should not be affected by any spouse's desire or fears about testifying. The interest of the public should also be protected.
In addition, the acts disclosed by the spouse's testimony were not of a confidential nature. The subject of the testimony is not merely some confidential remark made by the spouse or even some subtle action on his part. It is the shooting of a firearm in the presence or at least in the vicinity of a number of people. So, this is hardly a communication or act that evolves out of the sanctity of marriage. Nor did the act or any conversation testified to actually take place during coverture. The parties were not married at the time and did not marry until approximately six months later. Thus, the basis for the privilege, to promote marital peace, is lacking.
The second assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
SHAW, J., concurs.
BRYANT, P.J.,. dissents.
I do not share the majority's reasoning for avoiding the constitutional questions raised by the appellant, or the judgment entered. However, I agree that the constitutional issues raised are moot, not only because Appellant Robinson has not been denied appeal, but also because I believe the trial court's misapplication of Evid.R. 601 was error requiring reversal.
Robinson's second assignment of error is
Robinson's wife, the State's key witness, was incompetent to testify at trial, because she did not elect to testify against Robinson and Robinson was not charged with a crime that inflicted personal injury upon her or her child; without her unwilling, improperly compelled testimony, the evidence on which to convict Robinson was legally insufficient.
On December 31, 1996, New Year's Eve, Robinson and his fiancée, Bobbi, argued over delay in their plans for the evening and because Appellant permitted a guest to bring a gun into the apartment contrary to Bobbi's rule and without her knowledge. At the conclusion of the argument, while Bobbi was leaving the room in anger, several shots were fired from the room, breaking a window on the opposite side of the apartment. The police were notified later so that an insurance claim could be filed for a repair of the broken window glass.
Robinson was indicted for improperly discharging a firearm at or into a habitation, and for a firearm specification. Although Bobbi did make a statement to the police, she is not a classic complainant in that she did not wish to pursue charges.
Bobbi and Robinson had lived together for approximately three years before the incident and were the parents of a child. On July 7, 1997, they were married. On July 8, 1997, the case was tried to a jury, which returned a verdict of guilty on the improper discharge of a firearm and the firearm specification. Robinson was sentenced and this appeal was timely filed.
At trial, Bobbi declared that she did not want to testify. Although compelled to testify over objection of her counsel, she stated that she did not see her husband fire the shots alleged and that she did not see who did fire them. She also testified that the others had entered the room when the shots were fired. Except for evidence of a broken window and inferences about how it was broken, drawn from Bobbi's testimony and her prior unsworn statement to the police by which the State attempted to impeach her, there is no evidence that any shots were fired by anyone. There is no prior statement by Bobbi that she saw Robinson fire any shots, although when giving her out of court statement, she apparently assumed that he had. There is no report of bullet holes, no shell casings and no gun in evidence. Thus, without the inferences drawn from the attempted impeachment of Bobbi's testimony the record discloses no evidence of commission by Robinson of the offense charged. Therefore, for the reasons which follow, I believe the trial court erred to Robinson's prejudice by compelling his wife to testify against him despite her election on the record not to do so.
Evid.R. 601 states in pertinent part:
Every person is competent to be a witness except:
* * *
(B) A spouse testifying against the other spouse charged with a crime except when either of the following applies:
(1) A crime against the spouse or a child of either spouse is charged.(2) The testifying spouse elects to testify.
In this case, Bobbi stated that she did not want to testify. "[U]nder Evid.R. 601 (B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse." State v. Adamson (1995), 72 Ohio St.3d 431, 434, 650 N.E.2d 875, 879. The only other exception to the general rule that a spouse is not competent to testify against the other spouse is if the crime charged was committed against Bobbi or their daughter. Neither Bobbi nor her daughter were identified as victims in either a police report or in the indictment. See R.C. 2930.01(H). The trial court found Bobbi to be a victim solely because she was the lessee of the property damaged during the crime. The statute however requires the spouse or child to be named in order to be considered a victim of the crime. That is not the case here. Here, no claims of domestic abuse or any other personal injury were filed. Instead, the trial court found that Bobbi was the victim of the property damage because she would be liable for the damages. However, the owner of the property is the real victim of the property damage and could choose to pursue Appellant in a civil matter for restitution for the damages.
This court has addressed the exception provided to the Evid.R. 601(B) in two prior cases. In State v. Ellis (1992), 83 Ohio App.3d 362, 614 N.E.2d 1126, the defendant was charged with a theft that he committed with his girlfriend who later became his wife. At the time of the theft, the wife was a minor. Therefore, the defendant was also charged with contributing to the delinquency of a minor, with the minor being his future spouse. This court held that the State could compel the wife to testify because the theft crime was the same transaction as the crime against her, i.e. the contributing charge.
The second case in which this issue was raised is State v. Green (Dec. 21, 1992), Marion App. No. 9-92-18, unreported. In Green, the defendant was charged with sexually abusing his stepdaughter. This court found that since the defendant was charged with a crime against his wife's daughter, the wife could be compelled to testify under Evid.R. 601(B)(1).
In both of the prior cases, the crime charged was one in which either the spouse or a child of the spouse was a clear victim. Exceptions to rules should be narrowly construed. To do otherwise would defeat the purpose of the rule and the exception would become the rule. The rule states that a spouse is incompetent to testify. The exception is that the spouse may be deemed competent if she either agrees to testify or if the crime charged was one against her or the child of either spouse.
In this case, the crime charged was the improper discharge of a firearm at or into a habitation in violation of R.C. 2923.161. This crime is classified as a weapons offense, in the same category as improperly handling firearms in a motor vehicle (R.C. 2923.16) or unlawful possession of a dangerous ordnance (R.C. 2923.17). These are all crimes that are malum prohibitum in that the acts are made wrong solely because of the existence of a statute for the public welfare, not because they are inherently evil. Barron's Law Dictionary (3 Ed. 1991) 288. This crime is not one in which a victim is required. The victim is society as a whole. To extend the exception to Evid.R. 601(B) to this charge requires a broad construction of the rule and would expand the exception to such a degree that the rule would have little, if any, value. Thus, the rule does not include crimes against society when it says a crime against the spouse or their child. Therefore, in my opinion, Bobbi, incompetent as a witness for this purpose, should not have been compelled to testify against her husband.
The State also argues that the spousal exception to competency should not apply in this case and asserts that Robinson and Bobbi's marriage is fraudulent. This claim is based upon the fact that the two were married the day before the trial.
Robinson and Bobbi had lived together for some years, were engaged, and were raising their child at the time of the incident. The evidence shows that Robinson and Bobbi had obtained a marriage license some days before their marriage was solemnized before a person authorized to perform that ceremony. Since all requirements of the State of Ohio for marriage were met, the marriage is real. There is no duration requirement in the privilege rule or statute and the purpose behind a valid wedding is not a proper reason for outsiders to disregard the marriage.
For the following reasons, I would sustain Robinson's second assignment of error and reverse the judgments of conviction and sentence. Therefore, I dissent from the judgment entered on this appeal.