Opinion
No. 78-49
Decided December 8, 1978.
Criminal law — Tampering with evidence — Circumstantial evidence — Sufficiency to support conviction — Perjury — Evidence of inconsistent statements — Sufficiency to support conviction.
1. Where only circumstantial evidence connects an accused either with the preparation of an alleged false record or with having presented such record to a grand jury with the purpose of corrupting the outcome of its investigation, in violation of R.C. 2921.12, and the record having been physically prepared and presented to the grand jury by another, such circumstantial evidence must be irreconcilable with any reasonable theory of the accused's innocence in order to support a finding of guilt. ( State v. Kulig, 37 Ohio St.2d 157, approved and followed.)
2. Where no direct evidence is adduced showing that the sworn statement made by one accused of perjury, in violation of R.C. 2921.11, is in fact false, and where the only circumstantial evidence indicating any falsity thereof consists of testimony of witnesses that on prior occasions the accused had made, or by his silence had adopted, unsworn statements necessarily inconsistent with his sworn statement, such evidence, as a matter of law, is insufficient to support a conviction for perjury.
APPEAL from the Court of Appeals for Hamilton County.
In late October of 1975, an anonymous letter was published alleging improprieties and irregularities in the Cincinnati Police Division. Shortly thereafter, a special grand jury was impanelled by the Hamilton County prosecutor to investigate the allegations contained in the letter.
On November 18, 1975, Capt. Robert J. Heinlein and Lt. James Stanley of the Cincinnati Police Division, testified before the grand jury. The essence of their testimony was that sometime in 1971, Lt. Col. Ben Dixon, now deceased, suggested to Heinlein, in the presence of Col. Carl Goodin, the police chief of Cincinnati (appellee herein), that Heinlein, who was the helicopter traffic reporter for radio station WHKC, and Stanley, who performed the same function for radio station WLW, voluntarily contribute $20 per week from the moneys paid to them by the radio stations to appellee for his use as a fund for the department's expenses in entertaining out-of-town dignitaries; that after consultation with Stanley the two voluntarily agreed to make a weekly contribution of $15 each to appellee; that they so informed appellee, who said that the amount was satisfactory with him; and that thereafter, such contributions were made by Heinlein until June 1975, after which time he was promoted to Captain and assigned to other duties in August 1975, and made by Stanley apparently up until the time of his grand jury testimony.
Appellee testified before the grand jury on December 17, 1975. He acknowledged receipt of the moneys from Heinlein and Stanley; denied that the moneys were used or intended to be used as an entertainment fund; and testified that the moneys, in fact, were turned over by him to the Commander of the Vice Control Bureau — initially to Lt. Charles Black, and after Black's death, to Lt. Richard K. Beyer; that the moneys were utilized by Patrolman James F. Simon of the vice squad for an informant's fund in connection with obtaining evidence of drug related crimes; and that Beyer maintained records of the receipt by him of moneys from appellee and payment thereof to Simon.
At the conclusion of appellee's testimony he was instructed to contact Beyer "right now" and to tell him to come down immediately to the grand jury and to bring the records.
Beyer, also appearing before the grand jury on December 17, 1975, testified to his receipt of these moneys from appellee and disbursement to Simon, and submitted the journal of these receipts and disbursements. Then, on the same day, Simon testified to his receipt of the moneys from Beyer and his payment to his confidential informant.
Following such testimony, appellee Beyer and Simon were indicted together and charged with the following two counts:
1. "Knowing that an official investigation was in progress, [they] did present to the Hamilton County, Ohio Grand Jury, a certain record, to-wit; a special informant's fund account sheets, known as `informant fund C,' knowing it to be false and with purpose to corrupt the outcome of such grand jury investigation, in violation of Section 2921.12 of the Ohio Revised Code * * *." (Tampering with evidence.)
2. "* * * [They] on or about the seventeenth day of December in the year nineteen hundred and seventy-five at the county of Hamilton and State of Ohio, aforesaid, in an official proceeding, to-wit; before the Hamilton County, Ohio grand jury, did knowingly make a false statement, under oath and material to said proceeding * * * in violation of Section 2921.11 of the Revised Code." (Perjury.)
On June 14, 1976, the jury found appellee guilty of both counts of indictment, and thereafter sentence was imposed.
The Court of Appeals unanimously reversed appellee's conviction for tampering with evidence and ordered his discharge therefrom. A majority of that court likewise reversed his conviction for perjury on the basis of insufficiency of the evidence and ordered his discharge therefrom. The third member of the Court of Appeals agreed that the judgment of conviction for perjury should be reversed, but would remand for new trial on the perjury count, based upon his conclusion that the evidence was sufficient to warrant conviction, but prejudicial error was committed by the prosecution in final argument.
The cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Fred J. Cartolano and Mr. Leonard Kirschner, for appellant.
Mr. C.R. Beirne, Mr. Robert G. Stachler and Mr. James N. Perry, for appellee.
In view of references in the record to a "slush fund" and to appellee having "extracted money from his junior officers," together with references in appellant's brief to "kickbacks or money in return for the granting of permission for certain types of outside employment" etc., it should be observed at the outset that the offenses charged in the indictment are not based upon any claim of illegality in the admitted receipt by the police chief of certain moneys paid to him by his junior officers; nor is any claim made that the expenditure of such moneys, for whatever purpose, constituted a violation of any Ohio criminal statute. The issues before this court are confined to whether, in the words of Crim. R. 29(A), the evidence is insufficient to sustain a conviction for the offenses charged, i.e., (1) tampering with evidence, and (2) perjury.
I.
The first count of the indictment charges that appellee, knowing an official investigation was in progress, "did present to" the grand jury "a certain record * * * knowing it to be false and with purpose to corrupt the outcome of such grand jury investigation" in violation of R.C. 2921.12.
R.C. 2921.12 reads as follows:
"(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
"(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation;
"(2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation.
"(B) Whoever violates this section is guilty of tampering with evidence, a felony of the third degree."
With respect to the sufficiency of the evidence as to the charge of tampering with evidence, the Court of Appeals concluded that there was "no evidence that Goodin exercised any control over the actual making" of the record which Beyer presented to the grand jury and no evidence as to appellee's "knowledge as to the contents as to what Beyer did present." On this basis, the Court of Appeals, applying the test set forth in the syllabus of State v. Kulig (1974), 37 Ohio St.2d 157, concluded that only circumstantial evidence had been adduced by the prosecution, none of which could be considered to be inconsistent or irreconcilable with any reasonable theory of appellee's innocence on the charge of tampering with evidence; and thus appellee's motion for aquittal should have been granted by the trial court.
It is claimed by the prosecution that the Court of Appeals, in so ruling, substituted itself for the jury and that this court's holding in Kulig is distinguishable upon the basis that in that case "a serious lack of evidence, direct or circumstantial" was found. Id., at page 159.
A detailed study of the record herein reveals a similar lack of any evidence, either direct or circumstantial, which would warrant the finding of guilt as to the first count of indictment — the charge of tampering with evidence in violation of R.C. 2921.12.
We conclude from the examination of the record that the evidence produced as to count one fails to attain "that high degree of probative force and certainty which the law demands to support a conviction." See State v. Urbaytis (1951), 156 Ohio St. 271, paragraph four of the syllabus. See, also, State v. Petro (1947), 148 Ohio St. 473; State v. Murphy (1964), 176 Ohio St. 385; and State v. Kulig, supra ( 37 Ohio St.2d 157).
Neither a trial court nor an appellate court may abdicate its responsibility to enter a judgment of acquittal when the evidence is legally insufficient to sustain a conviction. We, therefore, affirm the judgment of the Court of Appeals reversing appellee's conviction for violation of R.C. 2921.12, and ordering his final discharge therefrom.
II.
The second count of the indictment charges that appellee (together with Beyer and Simon) did on December 17, 1975 "knowingly make a false statement" to the Hamilton County grand jury "in an official proceeding," which statement was made "under oath and material to said proceeding," in violation of R.C. 2921.11.
R.C. 2921.11, in pertinent part, reads:
"(A) No person, in any official proceeding, shall knowingly make a false statement under oath * * * when * * * [such] statement is material.
"(B) A falsification is material, regardless of its admissibility in evidence, if it can affect the course or outcome of the proceeding. * * *
"* * *
"(D) Where contradictory statements relating to the same material fact are made by the offender under oath * * * within the period of the statute of limitations for perjury, it is not necessary for the prosecution to prove which statement was false, but only that one or the other was false.
"(E) No person shall be convicted of a violation of this section where proof of falsity rests solely upon contradiction by testimony of one person other than the defendant."
R.C. 2921.11 was enacted as a part of a major revision of the Ohio Criminal Code, which became effective January 1, 1974. From 1929 until 1974 the statute on perjury (G.C. 13444-22, recodified as R.C. 2945.62) provided that perjury "must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances." Prior to the adoption in Ohio of any statute concerning requirements of proof for a conviction of perjury, this court had held in the syllabus in State v. Courtright (1902), 66 Ohio St. 35, that:
"It is a general rule, that to warrant a conviction under an indictment for perjury, there should be at least one witness to the corpus delicti, or the falsity of the matter assigned as perjury, and that the testimony of such witness be corroborated, either by another witness, or by circumstancial evidence sufficiently strong to satisfy the jury beyond a reasonable doubt of the guilt of the accused."
Originally the common law rule had required two witnesses of falsity, but it appears to be fully recognized in modern times that one witness is sufficient if corroborated by other facts and circumstances.
The Court of Appeals was divided in considering whether the repeal of R.C. 2945.62 and the enactment of R.C. 2921.11, effective January 1, 1974, has changed, in any substantial way, the requirements of proof in order to support a conviction of perjury.
The majority, relying in large part upon Courtright, concluded that perjury could never be proved by evidence which was entirely circumstantial. The majority interpreted the language of the present statute to be "little more than a rewording of past statutes, such that the means of proving perjury is stated in a negative rather than in a positive manner," and concluded that it could find nothing in the language of the present statute intended to change the law as previously announced in Courtright.
One member of the Court of Appeals, relying in large degree upon a Committee Comment as to the import of R.C. 2921.11 and upon certain statements contained in the comments of the Reporter with reference to Section 241.1(6) of the Model Penal Code, drafted in 1957, concluded that the falsity of the statement made by the accused need not necessarily be proved by direct evidence but may be proved solely by circumstantial evidence.
The Committee Comment to R.C. 2921.11 reads in part:
"Under former law, perjury could not be proved except upon the testimony of two witnesses, or upon the testimony of one witness plus corroborating circumstances. This section narrows the requirement for corroboration by stating merely that conviction is precluded where proof that the statement involved was false depends entirely on its contradiction by one person other than the defendant."
Model Penal Code (Tent. Draft No. 6, 1957), Section 208.20, Comment at page 100. (Section 208.20[6] was renumbered as Section 241.1[6] in the final and official draft of the Model Penal Code.)
From a study of the record it clearly appears that there was no direct evidence that the statements made under oath by appellee on December 17, 1975, were false. No one testified that appellee did not, in fact, turn the moneys over to Beyer, that Beyer did not give it to Simon, or that Simon did not utilize it for support of an informant. Thus the evidence directed toward proving the falsity of the sworn statement was entirely circumstantial.
A study of the 1957 comments accompanying the proposed Model Penal Code on perjury indicates that while the advisory committee recommended "elimination of the corroboration rule," the Reporter continued "to favor retention of some special proof safeguards" in the requirements of proof of perjury. In the final adoption of the Model Penal Code, the Reporter's position prevailed.
The rule that circumstantial evidence alone is never sufficient to prove perjury has continued to be the majority rule even including those states which, like Ohio, have adopted the Model Penal Code for perjury. See Annotation, Conviction of perjury where one or more elements is established solely by circumstantial evidence, 88 A.L.R. 2d 852.
Under the facts of the cause sub judice, however, the question of whether circumstantial evidence alone is never sufficient to warrant a conviction for perjury need not be determined.
This question is further complicated by the fact that legal writers do not always agree as to whether certain evidence should be classified as "direct" or "circumstantial." It would appear, however, that if conviction of perjury be permitted based solely upon circumstantial evidence, this evidence from a qualitative standpoint should be substantially equivalent to that which would be adduced by a single witness giving direct testimony of falsity, coupled with some corroboration.
The opinion of the majority of the Court of Appeals concluded, and in our opinion correctly, that even if the statute were to be construed as not necessarily precluding a conviction for perjury on evidence which is solely circumstantial, the state's proof herein nevertheless was still insufficient for conviction. Essentially the evidence on behalf of the state merely showed that the sworn statements made by appellee under oath before the grand jury were in conflict with statements he allegedly had made, not under oath, on prior occasions.
Where a statement made under oath is necessarily in conflict with a statement or statements not made under oath, obviously one or the other is false. Recognizing, however, that by any interpretation of R.C. 2921.11 conviction of perjury is placed on a different plane than that of other crimes, we think it clear that proof of perjury can not be made merely by showing a necessary conflict with statements not made under oath. As noted by the Court of Appeals for Cuyahoga County in Richardson v. State (1933), 45 Ohio App. 46, there is a rebuttable presumption that one told the truth under oath, and thus the state is not entitled to conviction for perjury merely on proof that statements under oath were at variance with previous unsworn statements. See, also, 60 American Jurisprudence 2d 1004, Perjury, Section 62.
Subparagraph (D) of R.C. 2921.11 now permits conviction of perjury by proof of contradictory statements relating to the same material fact when each is made under oath, thus dispensing with the basic requirement that the prosecution prove which statement was false. Such rule and its underlying rationale have no application to a case, such as here, where the statement made under oath conflicts with those which were not made under oath. We conclude, therefore, that the requirements of proof for conviction of perjury under R.C. 2921.11 have not been met.
This court, therefore, also affirms the judgment of the Court of Appeals reversing appellee's conviction for perjury under R.C. 2921.11 and ordering his final discharge therefrom.
Judgment affirmed.
W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
HERBERT and CELEBREZZE, JJ., concur in paragraph one of the syllabus.