Opinion
No. 81-49
Decided March 3, 1982.
Criminal law — Disrupting public services — R.C. 2909.04 — Insufficient evidence to convict, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On December 18, 1978, the then Mayor of Cleveland, Dennis Kucinich, held a news conference in the city hall's "Red Room." Prior to the news conference, Joseph Mark DeMarino, a reporter for ratio station WERE, met with Andrew Juniewicz, the mayor's press secretary, and asked for permission to use the "blue phone" so that his station could broadcast the news conference live. The "blue phone" was a portable phone, which was located in Juniewicz's office. It was a city phone and use was by permission only. Juniewicz granted DeMarino permission to use the phone.
In order to use the phone for broadcasting live, DeMarino plugged the phone into a walljack and the receiver was taken apart. DeMarino then put alligator clips on the receiver and the other ends of the alligator clips were put onto a tape recorder. A microphone was plugged into the tape recorder. When the tape recorder was on record, sound was transmitted through this apparatus and back to the radio station.
There was nothing on any of these attachments which would either identify them as belonging to WERE or indicate that a live broadcast was taking place. Live broadcasts from the Red Room were seldom made. DeMarino, who covered city hall for a two-year period, testified that this was the first time he had ever broadcast the mayor's news conference live and that he had never seen anyone else use this method of broadcasting.
The defendant, Sherwood Weissman, a.k.a. Robert Weissman, was the mayor's personnel director. At the beginning of the news conference, DeMarino looked down to check the equipment and saw that defendant's foot was on the phone receiver button. DeMarino twice asked the defendant to remove his foot and told defendant that he had permission to use the phone and that he was broadcasting live. The defendant did not comply, so DeMarino reached for defendant's foot, whereupon the defendant pulled the phone plug from the wall. DeMarino stood up and uttered an obscenity, pointing his finger in defendant's face. The two men then had to be separated. Thereafter, Carl Monday, also of WERE, explained to defendant in a restrained manner that he was from station WERE and asked if the live broadcast could resume. This request was granted.
The evidence also revealed that Juniewicz had not told the defendant that permission was given to DeMarino or WERE to use the blue phone. The WERE broadcast was interrupted and ten seconds or so of "dead air" were broadcast by WERE.
As a result of this incident, defendant was indicted and convicted by a jury of violating R.C. 2909.04, a felony of the third degree. The conviction was upheld by the Court of Appeals.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Jack H. Hudson, for appellee.
Messrs. Schulman Schulman and Mr. Howard A. Schulman, for appellant.
After reviewing the record, we conclude that there is insufficient evidence of the intent necessary for the commission of this crime.
R.C. 2909.04, in part, provides:
"(A) No person, purposely by any means, or knowingly by damaging or tampering with any property, shall do any of the following:
"(1) Interrupt or impair television, radio, telephone, telegraph, or other mass communications service, or police, fire, or other public service communications, or radar, loran, radio, or other electronic aids to air or marine navigation or communications, or amateur or citizens band radio communications being used for public service or emergency communications;"
There were no facts or circumstances which would have put defendant on notice that the phone was being used by a radio station. There were no identification marks on the equipment. Live broadcasts were rare. Juniewicz had not told defendant of WERE's use of the phone. No evidence was presented that defendant was familiar with this use of the phone. There was no evidence that defendant knew DeMarino prior to this incident. When DeMarino did abruptly and rudely approach the defendant, he did not identify himself or his position with WERE. The state also failed to produce evidence indicating that the defendant could have known that the apparatus attached to the "blue phone" was being used by a radio station or that it was being operated by an employee of WERE. The state failed to produce sufficient evidence that defendant knowingly or purposely acted to interrupt or impair WERE's broadcast. The defendant should have been acquitted.
Because of the existence of other grounds for reversal, the court will not pass on the constitutionality of the statute. Washington Court House v. McStowe (1976), 45 Ohio St.2d 228, 230; Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211, 212; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St.2d 207, paragraph one of the syllabus; Strongsville v. McPhee (1944), 142 Ohio St. 534, paragraph three of the syllabus; and Rucker v. State (1928), 119 Ohio St. 189, paragraph one of the syllabus.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and STRAUSBAUGH, JJ., concur.
STRAUSBAUGH, J., of the Tenth Appellate District, sitting for KRUPANSKY, J.