State v. Perry , 29 Ohio App. 2d 33 ( 1972 )

In my view the fifth assignment of error is well taken, and is error prejudicial to the appellant, and the judgment below should be reversed.

The fifth assignment of error is the following:

"The court committed prejudicial error in failing and refusing to fully instruct the jury on the essential elements of the offense."

The charge of the court was eleven pages in length and appears to be basically a standard charge used in criminal cases in Ohio except in one respect. Where the charge is unorthodox is in presenting to the jury the necessary elements which the jury should consider in determining guilt. The following is the portion of the charge concerning the issues the jury was to decide:

"On the 15th day of May, 1970, there was filed in the Athens County Municipal Court, Athens County, Ohio, by one Chief Fred James, Athens Police Department, an affidavit reading in part as follows: `Before me, personally came Fred James, Athens Police Department, who, being duly sworn, according to law, deposes and says that on or about the 15th day of May, 1970, at the County of Athens, and in the State of Ohio, one Sherman P. Perry, 234 James Hall, Athens, Ohio, unlawfully did fail to obey the lawful orders of a policeman engaged in the performance of his duty at the scene of an emergency, contrary to and in violation of Ohio Revised Code Section 2923.42.' The affidavit is signed by Fred James before Yvonne Wharton, Clerk of this court.

"Section 2923.43 of the Ohio Revised Code states, `No person shall willfully obstruct, impede, or hamper in any way the lawful operations of sheriffs, policemen, or other law enforcement officers, or firemen, rescue personnel, medical personnel, or other authorized persons, at the scene of fires, accidents, disasters, or emergencies of any kind, and no person shall willfully fail to obey the lawful orders of Sheriffs, policemen, or other law enforcement officers, engaged in the performance of their duties at the scene of or in connection with fires, accidents, disasters, or emergencies of any kind.'

"The defendant's plea of Not Guilty puts in issue all of the material allegations of essential facts as set forth in the affidavit necessary to constitute the offense with which he is charged. The issue for you to determine from all of the evidence, and under the law as I shall give it to you is of the innocence or guilt of the defendant of the offense with which he is so charged."

An examination of the remainder of the charge discloses that no additional instructions were given with respect to the essential elements of the crime set forth above. The procedure evidently adopted was to require the jury to consider the affidavit and the statute and to determine for themselves the essential elements and pass on the sufficiency of the evidence as to each element.

In Simko v. Miller, 133 Ohio St. 345 at 352, the Supreme Court stated:

"There is, of course, no legally approved standard form of instructions. The only requirement is that the charge comply with fixed legal principles."

R. C. 2945.10(G), formerly G. C. 13442-8 and analogous to former G. C. 13675, provides that the court shall, forthwith after argument, charge the jury. R. C. 2945.11, formerly G. C. 13442-9, provides that in charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict.

In Harrison v. State, 112 Ohio St. 429 at 457, the Ohio Supreme Court states with respect to the duty of a trial court in giving a charge the following:

"It must be said that it is a rather brief and in many respects a meager charge, and yet it fairly measures up to the essential requirements of the duty of the court, under Section 13675, General Code, and as that section has been construed by many cases decided by this court. That duty may be simply statedas a requirement to separately and definitely state to the jurythe issues they are to try, accompanied by such instructions asto each issue as the nature of the case may require. This is the rule declared in B O. Rd. Co. v. Lockwood, 72 Ohio St. 586,74 N.E. 1071, and no different rule has ever been declared by this court. It has, however, been declared in State v. McCoy,88 Ohio St. 447, 103 N.E. 136, and State v. Driscoll, 106 Ohio St. 33,138 N.E. 376, that mere omission in a charge without a request on the part of counsel for further correct instruction does not constitute reversible error. * * *" (Emphasis added.)

In Miller v. State, 125 Ohio St. 415, the following was incorporated into the first paragraph of the syllabus:

"1. In a criminal trial, it is the duty of the trial judge to tell the jury all the essentials which constitute the crime charged, and which the jury must find are sustained by the evidence beyond a reasonable doubt before the jury can return a verdict of guilty."

The reason for requiring a trial court to definitely and clearly delineate the issues of fact the jury must decide is readily perceivable. Laymen, not lawyers, comprise the jury. It simply cannot, in fairness, be assumed that a particular jury has the intelligence, capacity and adeptness necessary to pin-point for themselves, essential elements of a crime.

The procedure adopted here, in my view, falls far short of meeting that mandatory requirement that the Ohio Supreme Court declares basic and essential, of clearly and succinctly stating to the jury the necessary elements which must be supported by proof in order to render a proper verdict. Especially this is so where, as here, the criminal statute read to the jury contains other non-applicable offenses.

In their brief, counsel for appellant complain of this failure on the part of the trial court and claim such deficiency was raised at trial. While a complaint was made in other respects as to the charge to the trial court at trial, the record fails to disclose either an objection to the procedure adopted or a motion to require the court to set forth specific elements to the jury. In 169 A. L. R. 315 (1947) the question here presented is extensively annotated under the title "Duty in instructing jury in criminal prosecution to explain and define offense charged." Much authority exists therein classifying such omission as one of "fundamental error" and reversible irrespective whether exception or objection was taken to the charge. See Part IV at page 352 of the above annotation. For later cases see People v. Davis (1966), 74 Ill. App.2d 450,221 N.E.2d 63 and Byrd v. United States (D.C. Cir. 1965),342 F.2d 939. No Ohio cases directly in point have been found.

Whether or not such failure on the part of counsel waived such error need not be decided here, however, for the reason that the procedure adopted resulted in a prejudicial error of commission under R. C. 2321.03, such section being applicable to criminal trials by reason of R. C. 2945.832. The effect of the subsequent repeal of R. C. 2321.03 is unimportant here since it was in effect at the time of trial.

R. C. 2321.03 provides, in part:

"Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge."

The principle was applied in State v. Lynn, 5 Ohio St.2d 106, the fourth paragraph of the syllabus providing:

"Where there are errors of commission in the charge of a court, not induced by the complaining party, a failure to object thereto does not constitute a waiver of the error and such error may be relied upon in an appeal of such case. (Rosenberry etal., Admrs., v. Chumney, 171 Ohio St. 48, followed.)"

An analysis of the statute would require a charge, in addition to a venue requirement, setting out to the jury the following elements or issues:

1. A willful failure to obey

2. a lawful order

3. of a sheriff, policeman, or law enforcement officer engaged in the performance of his duties

4. at the scene of or in connection with a fire, accident, disaster or emergency of any kind.

The court chose to require the jury to ascertain the elements of the offense from the affidavit and to determine if proof existed, beyond a reasonable doubt, as to each of such elements. What is omitted from the affidavit is any requirement that the violation be willful. Such omission is manifestly prejudicial since one defense advanced was that due to the officers use of gas masks and the attendant noise at the scene of the offense, an order, if given, could not and was not heard by the appellant. In argument, counsel for the State characterized this issue of whether the appellant heard the order as the "crux of the case."

In Miller v. State, 125 Ohio St. 415, as here, the court read a statute in question which contained a requirement that an act be "knowingly" done. The court therein attempted to set forth the elements of the crime which needed to be present before the jury could establish guilt, but omitted the requirement of knowledge. In reversing, the Supreme Court approved the portion of the Court of Appeals' opinion, at 417, wherein the Appeals court stated:

"It is urged on the part of the State that as he (the trial judge) read the statute to the jury, that he did call their attention to the fact it must be knowingly. That would not be a charge of the Court, calling the jury's attention to what they must find in order to find this party guilty. It would simply be reciting the statute, and it would be presuming, then, that the jury understood the statute without any further charge. So that the Court did not in any place in this charge state to the jury it must be knowingly done * * *."

The Supreme Court rejected the conclusion of the Court of Appeals, however, that the error was one of omission not raised by a general exception, stating at 419:

"The trial court attempted to state the essentials of the crime in the portion of its charge quoted, and it must follow that when the court undertakes to state all the essentials of the crime, thereby instructing the jury as to what they must find before they can convict, the language of the trial court in that respect must be taken by the jury as embracing all that they need to find in order to convict. We think this portion of the charge must be read as a definite misstatement of the law."

The rationale in Miller applies with equal force here and requires a reversal. Here, the court directed the jury to determine the necessary elements for conviction from the affidavit. In essence, the jury was told to determine guilt based on the essential elements as the jury found them in the affidavit which contained no allegation, required by statute, that the act be willful. In effect, it blotted out the defense that if appellant disobeyed a lawful order it was not done willfully as appellant claimed he did not hear any order given.

Additionally, it is argued in the brief, and revealed in the record, that at the conclusion of the general charge, counsel for appellant requested the court to instruct the jury as to the legal meaning of several words in the statute. One was to define "police officer" as that term is used in the statute. The defense had, at trial, placed in evidence and had argued to the jury, a claim that the officers in question were not within the officers described in the statute since they were university security officers appointed pursuant to R. C. 3345.04 and had authority only on university property and the offense here occurred in a public street of the city of Athens and not on university property. Another term which the court was requested to define was "lawful order" and to determine what constituted such as that term is used in the statute.

It has long been the law that where a statute contains doubtful words or phrases they should, upon request, be explained to the jury. See Simko v. Miller, supra. In view of the issue raised by appellant, as to whether security officers are "policemen," the court should have determined and advised the jury whether such officers are or are not policemen within the meaning of that term in the statute. Likewise, in view of the issue of whether the officers had authority off university property, it was the duty of the court to define the term "lawful order" rather than, as was done here, leaving it to the jury to make its own determination. It is not a term of ordinary meaning with which the jury, composed of laymen, from their own knowledge would be familiar, nor one within their competence to determine. Inasmuch as I have concluded the judgment below should be reversed, I do not reach or pass upon the question, not raised by appellant by brief or argument, as to the propriety of the assumption of revisionary authority as to sentence for the reason "the sentence is much greater than the proper protection of society demands."

I would reverse.