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Cleveland v. Ramsey12/27/1988
s defendant telephoned the prosecutor's office to find out if her attendance at Sisson's trial was still required. When the prosecutor's office failed to return her call, she erroneously assumed her presence was no longer necessary. This erroneous assumption does not rise to an intentional act of disobedience. On the contrary, the act of telephoning the prosecutor's office to determine if she was still needed evidences an intent to comply with the order.
Intent is an essential element of indirect criminal contempt. See In re Carroll, supra. Defendant's untimely appearance alone does not prove intent to commit contemptuous conduct. See East Cleveland v. Reed, supra.
Defendant's conviction was based on insufficient evidence since the state failed to prove intent beyond a reasonable doubt:
"[The test for the sufficiency of the evidence] is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319; United States v. Lincoln (C.A. 8, 1980), 630 F. 2d 1313, 1316; Dorman v. State (Alaska 1981), 622 P. 2d 448, 453; Ridley v. State (1976), 236 Ga. 147, 149, 223 S.E. 2d 131, 132; State v. Sorgee (1978), 54 Ohio St.2d 464 [8 O.O. 3d 452]; State v. Robinson (1955), 162 Ohio St. 486 [55 O.O. 388]." State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 218-219, 485 N.E.2d 717, 720.
Since there was insufficient evidence with respect to the element of intent, defendant's conviction was not sustained by the sufficiency of the evidence.
In addition, defendant's fine of $500 was excessive. A first offense of contempt carries with it a maximum fine of $250. R.C. 2705.05. In the case sub judice, the record reveals no evidence of any prior contempt offenses committed by defendant. Accordingly, the trial court abused its discretion in imposing a fine of $500.
Defendant's assignments of error are well-taken and sustained. Defendant's conviction is reversed based upon the sufficiency of the evidence.
The judgment is reversed and final judgment is entered for defendant.
Judgment accordingly.
Patton, P.J., Krupansky and Matia, JJ., concur.
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