COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73412 CITY OF SHAKER HEIGHTS, Plaintiff-appellee JOURNAL ENTRY vs. AND SHONMEKA C. KNOWLES, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Shaker Heights Municipal Court, Case No. 97-CRB-02072 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: GARY R. WILLIAMS KENNETH R. MARGOLIS Prosecutor MILTON A. KRAMER LAW CLINIC Shaker Heights City Hall 11075 East Boulevard 3400 Lee Road Cleveland, Ohio 44106 Shaker Heights, Ohio 44120 CHARLES F. CLARKE 4900 Society Center 127 Public Square Cleveland, Ohio 44114 GORDON S. FRIEDMAN 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant, Shonmeka Knowles, appeals from the judgment of the trial court which found her guilty of making a false alarm in violation of Section 709.07(a)(2) of the Codified Ordinances of the City of Shaker Heights. The city alleged that defendant called the Free Clinic Emergency Hotline ( Hotline ) and threatened suicide merely as a ruse to have the police bring her lover home. On appeal she presents four assignments of error which argue that (1) the court erred by allowing the testimony of the Hotline worker, (2) the evidence was insufficient to support a conviction under the ordinance, (3) the court erred by admitting defendant's out-of-court statements, and (4) the conviction was against the manifest weight of the evidence. Defendant, twenty years old, lives with her lover, Jada Alston. On January 20, 1997, when she had an argument with Alston, Alston left the house. Very depressed, defendant called Alston, begged her to come home, and threatened to kill herself if Alston did not return. Alston hung up the phone. Defendant then called the Hotline and told the volunteer that she would kill herself if Alston did not return to their home. Defendant further instructed the volunteer who answered to call Alston at Alston's mother's house. To back up her threat, defendant stated she had a gun and fired a toy gun which gave the counselor the impression that defendant had a gun in her possession. Defendant told the volunteer that she was loading the -3- gun to shoot herself. The counselor believed that defendant posed an immediate threat to commit suicide. The volunteer then made a three-way call between the Hotline, defendant, and Alston. Additionally, a trace was placed on defendant's line, which allowed the Shaker Heights Police Department to go to defendant's house. When the police arrived, defendant indicated that she called the Hotline just to get her girl friend to come home. The trial court found defendant guilty of making a false alarm in violation of Shaker Heights Ordinance 709.07. In a timely appeal, defendant raises the following four assignments of error. The first states as follows: I. THE COURT ERRED WHEN IT ADMITTED, OVER THE OBJECTIONS OF DEFENDANT-APPELLANT, THE TESTIMONY OF THE HOTLINE WORKER BECAUSE ALL STATEMENTS MADE TO HIM IN THE COURSE OF THE SUICIDE INTERVENTION ARE CONFIDENTIAL AND PRIVILEGED COMMUNICATIONS. In this assignment, defendant argues that the trial court erred by allowing the city to present the testimony of the Hotline worker. Defendant argues that the conversation between defendant and the Hotline volunteer falls under the psychologist-patient privilege found in R.C. 4732.19. Because the volunteer is not a licensed psychologist and because the call was not made for the purposes of treatment, we find no merit to defendant's argument. R.C. 4732.19 states as follows: The confidential relations and communications between a licensed psychologist or licensed school psychologist and client are placed upon the same basis as those between physician and patient under division (B) of Section 2317.02 of the Revised Code. Nothing in this chapter -4- shall be construed to require any such privileged communication to be disclosed. First, because this privilege was not recognized at common law, it must be strictly construed against the party seeking to assert it, that is, defendant. See, Ohio State Medical Bd. v. Miller (1989), 44 Ohio St.3d 136, 140; Weis v. Weis (1947), 147 Ohio St. 416. Courts have not applied this statutory privilege if the professional is not a licensed psychologist. In Re Graves (Apr. 10, 1995), Clinton App. No. CA94-07-018, unreported; In Re Rennicker (Apr. 27, 1998), Tuscarawas App. No. 97AP100065, unreported. In the case at bar, it is undisputed that the Hotline volunteer was a student with a bachelor's degree in business and not a licensed psychologist. Moreover, the rationale for such a privilege is to encourage open disclosure by the patient to the doctor in order to facilitate the proper diagnosis and treatment. In Re Decker (1984), 20 Ohio App.3d 203, 204. In the case at bar, defendant called the Hotline in order to talk to her girl friend. She did not call the Hotline for the purpose of treatment. Finally, defendant has not cited any cases extending a privilege to conversations with a suicide Hotline volunteer. Nor do we see any reason to do so under the facts of this case. The avowed purpose of the call belies any claim of confidentiality, since the purpose was to communicate with a third party. Accordingly, the trial court did not err in allowing the testimony of the Hotline volunteer. Defendant's first assignment is overruled. -5- The second and fourth assignments of error argue that the conviction was based on insufficient evidence and against the manifest weight of the evidence. These two assignments state as follows: II. THE COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIM.R. 29 AT THE CLOSE OF THE CITY'S CASE-IN-CHIEF BECAUSE UNDER A PROPER INTERPRETATION OF THE ORDINANCE, DEFENDANT- APPELLANT'S ACTIONS DO NOT CONSTITUTE ILLEGAL CONDUCT. IV. THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant challenges her conviction for Making A False Alarm by arguing that the conviction is supported by insufficient evidence and is against the manifest weight of the evidence. The standards of review for sufficiency and manifest weight arguments are similar yet distinct. In State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the Court summarized the standard for reviewing a claim of insufficient evidence and stated as follows: ***[T]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing -6- Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The Thompkins Court, in addition to elaborating on the sufficiency standard, also discussed a challenge to the weight of the evidence. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's, supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). Id. at 387; State v. Smith (1997), 80 Ohio St.3d 89. In the case at bar, the city did present sufficient evidence to sustain a conviction for making a false alarm. Section -7- 709.07(a)(2) of the Shaker Heights Codified Ordinances states as follows: No person shall do any of the following: (2) Knowingly cause a false alarm of fire or other emergency to be transmitted to or within any organization, public or private, for dealing with emergencies involving a risk of physical harm to persons or property. The state presented evidence that defendant called the Hotline and announced that she was going to kill herself with a gun. Defendant went so far as to fire a toy gun to give the Hotline volunteer the impression that defendant had a gun and was serious about the threat. The Hotline volunteer was convinced that this was an emergency because he immediately initiated a trace of the call and summoned the police. Viewing this evidence in a light most favorable to the City, as we are directed under a sufficiency analysis, we hold that these facts satisfy the requirements of causing a false alarm of an emergency as defined in the ordinance. Accordingly, the City presented sufficient evidence to satisfy a conviction under this ordinance. Additionally, the conviction was not against the manifest weight of the evidence. The city presented testimony that defendant called the Hotline and threatened suicide merely to contact her girl friend and impress her with the urgency of returning home. When the police questioned defendant about a gun, she stated What gun ... how can I kill myself with a Nintendo gun ... I called the hotline just to get my girlfriend to come home. (Tr. 41, 68, 82, 119.) Defendant further elaborated, And guess -8- what, it worked! (Tr. 42.) No gun was ever found. Her comments demonstrate she claimed an emergency involving a risk of physical harm and that her claim was false. Thus the state presented evidence that defendant falsely invoked the resources of both the Hotline and the Shaker Heights Police Department. Accordingly, the trial court did not lose its way and create a manifest miscarriage of justice by finding defendant guilty of making a false alarm. Defendant's second and fourth assignments are overruled. Defendant's third assignment of error states as follows: III. THE COURT VIOLATED THE CORPUS DELICTI RULE WHEN IT PERMITTED THE CITY TO OFFER AS ADMISSIONS THE OUT-OF- COURT STATEMENTS OF THE DEFENDANT-APPELLANT PRIOR TO THE ADMISSION OF INDEPENDENT COMPETENT EVIDENCE OF THE COMMISSION OF THE CRIME. In this assignment, defendant argues that the trial court violated the corpus delicti rule by allowing the city to introduce defendant's incriminating statements before there was any independent evidence presented which established the commission of a crime. We find no merit to defendant's argument. In State v. Clark (1995), 106 Ohio App.3d 426, the third district summarized the corpus delicti rule as follows: The corpus delicti of a crime is composed of the act and the criminal agency of the act. State v. Van Hook (1988), 39 Ohio St.3d 256, 261, 530 N.E.2d 883, 888. The corpus delicti rule requires that the state present `some evidence outside of the confession that tends to prove some material element of the crime charged' in order to admit the confession. Id., quoting State v. Maranda(1916), 94 Ohio St. 364, 114 N.E. 1038, paragraph two of the syllabus. Such evidence may be circumstantial. State v. Nicely (1988), 39 Ohio St.3d 147, 154-155, 529 N.E.2d 1236, 1242-1243. -9- Thus the state does not have to produce evidence of proof beyond a reasonable doubt or even to establish a prima facie case. State v. Black (1978), 54 Ohio St.2d 304. Finally, the Ohio Supreme Court has cautioned that this standard of proof is not a demanding one and that the corpus delicti rule is not applied with a dogmatic vengeance. State v. Edwards (1976), 49 Ohio St.2d 31, 36. The rationale of the corpus delicti rule is to protect defendants from confessing to crimes that were never committed by anyone. The second appellate district explained the purpose as follows: The corpus delicti rule, as employed in the context of extrajudicial confessions, is informed by a desire to protect unfortunate persons who confess to crimes that they not only did not commit themselves, but which were never committed by anyone. Before the rule was formed, it sometimes happened that a person would confess to killing another, be convicted of that killing and put to death, only to have the supposed murder victim turn up later, alive and healthy. Therefore, the rule that there must be some evidence tending to prove that fact that death had actually [occurred] ensued; which was later followed by an additional requirement of some evidence that the death was brought about by some criminal agency. State v. Maranda (1916), 94 Ohio St. 364, 370, 114 N.E. 1038, 1040. State v. Nobles (1995), 106 Ohio App.3d 246, 261. In the case at bar, the city did present some evidence, outside of defendant's statements, that tended to prove that the crime of making a false alarm was committed. The officers testified that they responded to the house because a woman was threatening to kill herself with a gun. Upon arriving at the house, the officers searched the house and did not find a gun. Thus there was some evidence, independent of defendant's statements -10- that defendant made a false alarm by threatening to kill herself. Accordingly, the third assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Shaker Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, J., CONCURS; ANN DYKE, P.J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .