Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 11, 1998

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Susan Laker Tolbert, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

F. Harrison Green, for Defendant-Appellant.¹

Per Curiam.

Following a bench trial, defendant-appellant, James Buttrom, was convicted of arson pursuant to R.C. 2909.03(A)(2). He now appeals that conviction. We find no merit to his assignment of error and we affirm the judgment of the trial court.

The record shows that appellant owned a home located at 11080 LaBelle Avenue in the city of Blue Ash, which was substantially damaged in a fire in the early morning hours of October 18, 1989. Prior to the fire, the Internal Revenue Service had been sending notices to appellant stating that he owed a substantial amount of delinquent taxes. It filed tax liens against the house and it eventually notified him that it was seizing the property. Appellant was furious at the I.R.S. and told his wife, Rita Buttrom, and others that he would burn the house down before he let the I.R.S. size it. Additionally, appellant had taken out mortgages on the property with the Money Store for approximately $39,000, close to the full value of the home. These mortgages were delinquent at the time of the fire. Though appellant never filed a former insurance claim, insurance proceeds from the fire were eventually used to pay off these mortgages.

Appellant rented out the house on LaBelle Avenue, but it was unoccupied at the time of the fire due to the seizure by the I.R.S. In the early morning hours of October 18, 1989, a neighbor called to report that the house was on fire. When firefighters arrived, they found the house heavily ablaze, although the fire was contained in the attic. Firefighter Trace Lawless was manually pulling down the ceiling a liquid-filled container fell on him and the liquid ignited. The fire was extinguished and Lawless was not harmed, but laboratory tests later revealed the presence of gasoline on his coat. Carpet samples and other items taken from the house also tested positive for accelerants, and fire investigators determined that the fire had been deliberately set.

Rita Buttrom testified that appellant had asked others to set the house on fire for him. When they refused, he told her to set the fire to prove her love for him. She claimed that appellant beat her and dominated her and that she feared him. She set the fire to prove that she "wasn't worthless." She stated that on the day before the fire, appellant went to the house on LaBelle and put several containers of gasoline in the rafters. He placed a candle in a hole in the ceiling so that when it burned down, it would light newspaper, which, in turn, would light the gasoline fumes. In the early morning hours, she quietly left their home on Corine Avenue, which was a few blocks away from LaBelle Avenue, while appellant waited. Using a stepladder that appellant had left for her, she lighted the candle that appellant had placed in the ceiling, just as he had told her to do.

She also described an experiment that appellant had conducted in their home on Corine Avenue in the week prior to October 18, 1989. She stated that appellant wanted to see how long a fuse would take to burn down and ignite some other material, so he taped a candle to a bedroom dresser and allowed it to burn. But he left the candle unattended too long and a small fire ensued which damaged the dresser. Police later discovered the dresser during a search of the home.

After the fire, appellant became angry with Rita Buttrom. He told her that she must have done something wrong because the house did not completely burn down and destroy all the evidence. He beat her, causing her to have a "fat lip," a bruised ear and a sprained wrist, injuries that she claimed required medical treatment. She later told her friend. Tammy Callahan, about the beating and her part in the fire. Some time later, Callahan reported her knowledge of the fire to the Blue Ash Police Department. The police arrested Rita Buttrom, who subsequently confessed to her involvement, and she was charged with arson. She subsequently entered a plea to a lesser offense, and served some prison time.

The trial judge found appellant guilty as charged and properly sentenced him. This appeal followed. The brief filed by appellant's counsel contains four assignments of error for review. Several months after that brief was due, appellant also filed a pro se "motion to supplement or alternatively' motion requesting the court to review plain error issues on the record not specifically briefed by counsel." in which he essentially asks this court to review several additional assignments of error. Pursuant to App.R. 16. this court need not review assignments of error not raised in appellant's original brief. Appellant's additional assignments of error are not appropriately before this court, and we therefore decline to consider them. Sheppard v. Mack (1980). 68 Ohio App.2d 95, 97, 427 N.E.2d 522. 524. fn. #1: State v. Bowens (Aug. 3. 1998). Clermont App. No. CA-98-Ol-009, unreported. Accordingly, we deny appellant's pro se motion.

We address the assignments of error from appellant's brief out of order. In his second assignment of error, he states that the trial court erred by allowing Rita Buttrom to testify. He claims that the court never correctly determined whether she was competent to testify under Evid.R. 601. He further argues that her testimony was not admissible under the privilege for confidential marital communications set forth in R.C. 2945.42. We find that this assignment of error is not well taken.

Spousal privilege and spousal incompetency are two distinct, but interrelated, legal concepts. State v. Adamson (1995). 72 Ohio St.3d 431, 433. 650 N.E.2d 875, 877. We begin by discussing the issue of competency, which vas previously governed by R.C. 2945.42. However, Evid.R. 601 has superceded that part of the statute. State v. Rahman (1986), 23 Ohio St.3d 146. 147-148, 492 N.E.2d 401, 404. Evid.R. 601(B)(2) provides that a spouse testifying against the other spouse charged with a crime is not a competent witness unless the testifying spouse elects to testify. In construing this rule, the Ohio Supreme Court has stated that a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse. The trial judge must take an active role in determining competency, and must make an affirmative determination on the record that the spouse has elected to testify. Adamson, supra, at syllabus. "Just because a spouse responds to a subpoena and appears on the witness stand does not mean that she has elected to testify." Id. at 434. 650 N.E.2d at 878.

Appellant claims that the trial court never made an affirmative determination that Rita Buttrom had elected to testify. This case involved a bench trial so there was no separate, formal competency determination. While a formal proceeding would have been a better practice, we cannot say that the failure to do so was error in this case. In Adamson, the court never informed the spouse that she could choose not to testify, and it actually ordered her to testify after granting her immunity. In contrast, in the present case, the record is absolutely clear that Rita Buttrom understood that she had a right not to testify and that she was testifying voluntarily. In fact, she expressly stated not only that she wanted to testify, but that she had been waiting to testify against her husband. Consequently, we hold that Rita Buttrom was a competent witness, and the trial court did not err in allowing her to testify. See State v. Henness (1997), 79 Ohio St.3d 53, 57, 679 N.E.2d 686, 691-692, certiorari denied (1997), ___ U.S. ___, 118 S.Ct. 422.

While the rules of evidence supercede R.C. 2945.42 on the issue of competence, the portion of R.C. 2945.42 dealing with spousal privilege is still valid. Rahman, supra, at 148-149, 492 N.E.2d at 405; State v Estepp (Jan. 18, 1989). Hamilton App. No. C-880052, unreported. See, also, Evid.R. 501. Former R.C. 2945.42, as it read at the time of the offense, provided:

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 of felonious sexual penetration in a case in which the offense can be committed against a spouse, or bigamy, or failure to provide for, or neglect or cruelty of either to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age, or neglect or abandonment of such spouse under such sections. The presence or whereabouts of the husband or wife is not an act under this section. The rule is the same if the marital relation has ceased to exist.

Thus, even though a spouse may be competent to testify under Evid.R. 601, R.C. 2945.42 still confers a substantive right upon the accused to exclude spousal testimony concerning a confidential communication made or act done during coverture unless one of the specifically enumerated exceptions contained in the statute applies. Adamson, supra, at 433, 650 N.E.2d at 877; Rahman, supra, at 149, 492 N.E.2d at 405. Though the federal courts have held that the witness-spouse holds the privilege, Ohio still follows the rule that the accused may invoke the privilege to prevent his or her spouse from becoming a witness for the prosecution. Rahman. supra, at 149. 492 N.E.2d at 405; State v Bryant (1988), 56 Ohio App.3d 20. 21, 564 N.E.2d 709, 710.

Appellant claims that most of Rita Buttroms testimony concerned confidential marital communications that do not fall under any of the exceptions enumerated in the statute, and therefore that the privilege applies. At trial, the state contended that Rita Buttrom was the victim of violence at the hands of her husband and therefore the exception for personal injury by one spouse to the other applied. The trial court allowed her testimony into evidence based on a "public policy" exception to the spousal privilege, because of changes in social policy and because appellant should not be able to "hide behind that shield" when his wife had already been convicted of an offense relating to the same set of facts. While we find no cases directly on point, we ultimately conclude that the language of the statute and the purpose behind it dictate that the privilege should not apply in this case.

We begin our analysis by looking at the language of the statute itself. See Rahman, supra, at 405, 492 N.E.2d at 405. We note that statutes providing for privileges must be strictly construed. Weis v. Weis (1947). 147 Ohio St. 416. 428-429, 72 N.E.2d 245, 252; State v. Berezoski (Dec. 17. 1986), Montgomery App. No. 9568, unreported. Testimonial privileges contravene the fundamental principal that the public "has a right to every man's evidence." Consequently, "they must be strictly construed and accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."' State v. Mowery (1982). 1 Ohio St.3d 192, 199, 438 N.E.2d 897, 903. certiorari denied (1984), 466 U.S. 940, 104 S.Ct. 1916, quoting Trammel v. United States (1980), 445 U.S. 40, 50, 100 S.Ct. 906, 912.

In this case, the pertinent part of the statute simply states that the privilege does not apply "in case of personal injury by either the husband or the wife to the other." This exception generally comes into play when the defendant spouse is being tried for an offense against the testifying spouse. The traditional justification for the privilege is that it promotes marital peace. Mowery, supra, at 198, 438 N.E.2d at 902. But when a case involves violence by one spouse against another, there is no marital peace to protect, and the offending spouse should be precluded from asserting the privilege. Id.; Estepp. Supra.

[I]t is an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, any such peace, would it be a peace such as the law would desire to protect? Could it be any other peace than that which the tyrant secures for himself by oppression?

State v. Antill (1964), 176 Ohio St. 6l, 64, 197 N.E.2d 548, 551, quoting 8 Wigmore, Evidence (1961), 242, 243, Section 2239.

Using the same logic, the Ohio Supreme Court in Mowery, supra, concluded that the competency rule in Evid.R. 601, which at that time only allowed for one exception when the defendant spouse was charged with crimes against the testifying spouse or their children, did not prevent the wife from testifying in the defendants trial for the murder of her father. The wife had been present at the shooting and had herself been injured. The court held that "R.C. 45.42 and Evid.R. 601 do not render the spouse of an accused incompetent to testify against the accused with respect to a crime committed against a third person, when such crime is part of one continuous transaction or happening which culminates in offenses against the third party and the spouse." Mowery, supra, at paragraph one of the syllabus. As to the issue of privilege, the court ultimately decided that because of the presence of a third party, the deceased father, during the commission of the crime, the privilege did not apply. Id. at 198-199, 438 N.E.2d 902. Nevertheless, the court did point out the "glaring absence in this case of any marital harmony for the court to foster[.]" Id. See, also, State v. Fewerwerker (1985), 24 Ohio App.3d 27, 492 N.E.2d 873.

A review of similar cases from other states shows that usually the accused spouse is charged with both the crime against the spouse and the crime against the third person, although they need not necessarily be tried at the same time. Annotation (1990), 74 A.L.R.4th 277. But some states, following the logic that there is no marital harmony to preserve, have allowed a witness-spouse to testify against a defendant-spouse on trial for a crime against a third party, when the defendant committed an act of violence against the testifying spouse as part of the same criminal transaction, even if the defendant is not charged with the offense against the spouse. Loesche v. State (Alaska 1984), 620 P.2d 646; Maiben v State (Miss.1981). 405 So.2d 87; State v Whitaker (1975), 112 Ariz. 537, 544 P.2d 219.

We agree with the reasoning of these cases. Ohio's statute contains an exception for cases involving personal injury between the spouses: it does not limit that exception to cases where the defendant spouse is charged with the offense against the testifying spouse. In interpreting a statute, a court must first look to the language of the statute itself to determine legislative intent. If the language used is clear and unambiguous, the interpretive effort is at an end and the statute must be applied as written. Bryant v. Dayton casket Co. (1982), 69 Ohio St.2d 367, 369, 433 N.E.2d 142, 144; Seeley v. Expert, Inc. (1971), 26 Ohio St.2d 61, 71-72. 269 N.E.2d 121. 128. We will not insert words that are not used in the statute in the guise of interpreting it. particularly given that statutes governing privilege must be construed strictly. In re Burchfield (1988). 51 Ohio App.3d 148. 1052. 555 N.E.2d 325. 330.

Additionally. appellant argued in the trial court that the part of the statute referring to competency stated that a spouse was competent to testify against his or her spouse only in prosecutions under certain specified sections of the revised code which involve violence against the spouse or their children. Therefore, he argues. the exception set forth in the privilege section of the statute would only apply in prosecutions for those specified offenses, which do not include violations of R.C. 2909.03. the arson statute. We find this to be a tortured reading of the statute. The legislature did not so limit the section on privilege even though it could easily have done so. as it did in the section on competency.

In this case, Rita Buttrom testified that she set the fire because appellant beat her and dominated her and she was afraid of him. She also testified that he beat her after the fire because he thought she had done something wrong. She confided in her friend Tammy Callahan about the beating and the reason for it. Callahan eventually reported what Rita Buttrom had told her to the police, which ultimately led to Rita Buttrom's arrest and conviction. The violence against Rita Buttrom, which the trial court accepted as fact, was an inseparable part of the criminal transaction. See Fewerwerker, supra, at 30. 492 N.E.2d at 876.

In this case, there is clearly no marital harmony to preserve. Applying the privilege is more likely to frustrate justice than to foster family peace." Trammel, Supra, at 52. 100 S.Ct. at 913. Mowery, supra, at 198. 438 N.E.2d 902. We hold that the exception in the statute for cases involving personal injury to the spouse applies and that the matters to which Rita Buttrom testified were not privileged. Accordingly, the trial court did not err in allowing her to testify concerning marital communications with appellant, and we overrule appellant's second assignment of error.

In his first assignment of error. appellant states that the trial court violated his due process rights "when it considered the state's theory of a defrauded insurance company and proceeded at trial on another theory of defrauding the Internal Revenue Service[.]" He argues that he was not given adequate notice of the charges against him because the state changed its theory of who was defrauded midway through the case and the court did not amend the indictment or the bill of particulars. We find this assignment of error is not well taken.

Under the U.S. and Ohio Constitutions, an individual accused of a felony is entitled to an indictment setting forth the "nature and cause of the accusation." State v. Sellards (1985). 17 Ohio St.3d 169, 170, 478 N.E.2d 781, 783. The government must aver all material facts constituting the essential elements of the offense so that the accused not only has adequate notice and an opportunity to defend, but also may protect himself or herself from any future prosecution for the same offending conduct. Id. at 170, 478 N.E.2d at 783-784; State v. Gingell (1982), 7 Ohio App.3d 364, 366, 455 N.E.2d 1066, 1070. But the indictment need not contain a recitation of the evidence supporting the various facts. It is sufficient if it contains, in substance, a statement that the accused has committed some specified public offense. Sellards, supra, at 170-171, 478 N.E.2d at 784; Gingell, supra, at 366. 455 N.E.2d at 1070.

The accused can obtain more specificity by requesting a bill of particulars pursuant to Crim.R. 7(E). The limited purpose of the bill of particulars is to "elucidate or particularize the conduct of the accused alleged to constitute the charged offense." Sellards, supra, at 171. 478 N.E.2d at 784. It is not designed to provide the accused with specifications of the evidence or to serve as a substitute for discovery. Id.; Gingell, supra, at 367, 455 N.E.2d at 1071.

The indictment in this case used the language of R.C. 2909.03(A)(2). It stated that "James Buttrom. on or about the 8th day of October in the year Nineteen Hundred and Eighty-Nine ***, by means of fire or explosion, knowingly caused or created a substantial risk of physical harm to property belonging to James Buttrom or another, with purpose to defraud[.]" In regard to the purpose-to-defraud element, the bill of particulars stated:

The defendant had owned the house together with his ex-wife, Sharon Buttrom. The Internal Revenue Service had filed a tax lien against that property, but was unable to take possession of it due to Sharon Buttrom's name being on the title.

On October 18, 1989, Sharon Buttrom's name came off the title to the property and at that point the house was only in James Buttrom's name.

The defendant on September 28, 1988, had taken out mortgages on the property with the Money Store in an amount of approximately $39,000.00. The defendant had not made any payments on those mortgages to the Money Store for August, September and October of 1989, and was three months delinquent.

After the fire, the defendant filed a claim with the Atlantic Mutual Insurance Company through his agent. McGraw and Company. The insurance company then paid off the Money Store mortgages and the I.R.S. did not have a house to seize on their lien.

The money obtained from the Money Store mortgages was then retained by the defendant.

The state originally intended to proceed on the theory that appellant intended to defraud Atlantic Mutual Insurance Company. It later discovered that appellant had a different insurance company, but it was never able to obtain a claim form filed by appellant with that company. Consequently, the state proceeded on a theory that appellant intended to defraud the I.R.S.

We find no error by the trial court in allowing the state to proceed on that basis. First. R.C. 2913.01(B) states that "[d]efraud means to knowingly obtain, by deception. some benefit for oneself or another, or to knowingly cause, by deception some detriment to another." Though the bill of particulars contained an error in regard to the insurance company, it still clearly stated that, because of the fire, the I.R.S. had no way to satisfy its lien. Consequently, the I.R.S. had suffered a detriment due to appellant's conduct, and appellant clearly had notice that the I.R.S. was one of the parties he allegedly intended to defraud.

Second, the statute only require a purpose to defraud; the existence of an object to the fraud is not required. State v. Ferrete (1985), 18 Ohio St.3d 106, 108, 480 N.E.2d 399, 401-402; State v. McNeeley (1988), 48 Ohio App.3d 73, 77 548 N.E.2d 961, 965. Consequently, the identity of the person or entity that appellant intended to defraud was not an essential element of the offense. Therefore, the bill of particulars could have been amended pursuant to Crim.R. 7(D) to change the name of the entity defrauded without changing the name or identity of the offense charged. See State v. O'Brien (1987), 30 Ohio St.3d 122, 125-126, 508 N.E.2d 144, 147. However, the failure to do so was not error because the I.R.S. was included in the bill of particulars as an entity defrauded. Under the circumstances, we cannot conclude that appellant was prejudiced or misled by any defect in the indictment or the bill of particulars, and we therefore overrule his first assignment of error. See State v. Brown (1993), 90 Ohio App.3d 674, 684, 630 N.E.2d 397, 403; State v. Williams (1988), 53 Ohio App.3d 1, 3-4, 557 N.E.2d 818, 821.

In his third assignment of error, appellant states that the trial court erred when it found him guilty of the offense of arson because the state failed to provide evidence of the identity of the victim being defrauded. Essentially, he is arguing that the evidence is insufficient to support the conviction. We find this assignment of error is not well taken.

To support appellant's conviction, the state did not have to prove the identity of the victim appellant intended to defraud or that appellant actually received any benefit from any deception. State v. Hedrick (1994), 92 Ohio App.3d 618, 621-623, 636 N.E.2d 428, 429-431; McNeeley, supra, at 76-77, 548 N.E.2d at 964. The state's evidence showed that appellant threatened to burn the house down rather than let the I.R.S. take it. When the house did burn, the I.R.S. could not sell it to satisfy its liens, causing it a detriment. See Hedrick, supra, at 624, 636 N.E.2d at 431-432; State v. Omar (June 15, 1994), Summit App. No. 16562, unreported. Consequently, the state approved that appellant had the intent to defraud as defined in R.C. 2913.01(B). See Ferrette, supra, at 108, 480 N.E.2d at 401-42.

Our review of the record shows that the state's evidence, when viewed in a light most favorable to the prosecution, could convince a rational trier of fact beyond a reasonable doubt that appellant, by means of fire, knowingly caused or created a substantial risk of physical harm to his own property with intent to defraud. Therefore, the evidence was sufficient to support his conviction for arson pursuant to R.C. 2909.03.(A)(2). State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. Accordingly, we overrule his third assignment of error.

In his fourth assignment of error, appellant states that the trial court's finding of guilt is against the manifest weight of the evidence. After reviewing the record, we cannot conclude that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that we must reverse the conviction and order a new trial. Consequently, we cannot say that the finding of guilt is against the manifest weight of the evidence, and we overrule appellant's fourth assignment of error. State v. Allen (1990), 69 Ohio App.3d 366, 374, 590 N.E.2d 1272, 1278. See, also, State v. Saah (1990), 67 Ohio App.3d 86, 585 N.E.2d 999; State v. Kamel (June 21, 1990), Cuyahoga App. No. 56678, unreported.

Judgment affirmed.

Doan, P.J., Gorman and M.B. Bettman, JJ.

Please Note:

The court has placed of record its own entry in this case on the date of the release of this Decision.

F. Harrison Green sent a letter to this court stating that he was withdrawing as counsel because appellant had told him not to proceed on appelant's behalf. But this court never journalized an entry of withdrawal and we still consider him to be appellant's attorney of record.