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Bentleyville v. Pisani1/30/1995
PATRICIA A. BLACKMON, Judge.
The village of Bentleyville, plaintiff-appellant, appeals the decision of the trial court dismissing its complaint for telephone harassment against Carol A. Pisani, defendant-appellee.
Bentleyville assigns the following error for our review:
"The trial court erred by dismissing the case against defendant since the act charged against defendant is not privileged pursuant to Ohio Revised Code Section 2317.02(D)."
Carol Pisani assigns the following cross-assignment of error for our review:
"The state of Ohio, Chagrin Falls, and the Cuyahoga County Domestic Relations Court have tried appellee for the same conduct twice, once with an acquittal and once for a finding of contempt subject to incarceration and fines; therefore the said prosecution would require placing the appellee once in jeopardy in violation of the Fifth Amendment to the United States Constitution."
Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow.
Glenn T. Pisani signed an affidavit alleging his estranged wife, Carol A. Pisani, made telephone calls, from January 28, 1993 through March 7, 1993, to him with "purpose to abuse, threaten, annoy, or harass him" in violation of R.C. 2917.21(B). A criminal complaint was thereafter filed with the Bedford Municipal Court.
Defense counsel moved for dismissal on the grounds that the communication in the telephone conversations was privileged. Carol and Glenn Pisani were separated and in the process of a divorce when the telephone cans were made. No third parties were present to hear the telephone conversations. Based upon these limited facts, the trial court granted the motion and dismissed the case.
Bentleyville's sole assignment of error on appeal raises two issues. They are: whether the communication between Carol and Glenn Pisani was privileged, and whether the charge of telephone harassment is an exception to the rule. R.C. 2945.42, not R.C. 2317.02, contains the spousal communication privilege for criminal cases. State v. Bradley (1986), 30 Ohio App.3d 181, 183, 30 OBR 323, 325, 507 N.E.2d 396, 398. See, also, State v. Canitia (Jan. 19, 1984), Cuyahoga App. No. 46946, unreported, 1984 WL 14176. It provides as follows:
"Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, or rape or felonious sexual penetration in a case in which the offense can be committed against a spouse, or bigamy, or failure to provide for, neglect of, or cruelty to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age, violation of a protection order or consent agreement, or neglect or abandonment or such spouse under such sections. The presence or whereabouts of the husband or wife is not an act under this section."
Coverture has been defined as " he condition or state of a married woman." Black's Law Dictionary (6 Ed.1990) 366. Coverture originates from the antiquated principles that husband and wife are one in the person of the man, and the woman's legal existence is suspended during marriage. See State v. Mowery (1982), 1 Ohio St.3d 192, 193-194, 1 OBR 219, 221-222, 438 N.E.2d 897, 898-899. "Today, however, many of these archaic principles have bee
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