This appeal calls upon us to decide whether, when the trial court allowed the patrolman to testify concerning his observatiоn of appellee during a telephone conversation with his attorney, appellee’s right to effective counsel was viоlated.
Appellant argues that there is no such constitutional right involved in the present situation and that the requirements of E. C. 2935.20 were met.
E. C. 2935.20, in pertinent part, provides:
.“After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicаte with any other person of his choice for the purpose of obtaining counsel. * * * Such person shall have a right to be visited immediаtely by any attorney at law so obtained who is entitled to practice in the courts of this state, and to consult with him privately. * *
There is no еvidence in the record' that appellee’s attorney attempted to visit him, nor is there evidence that appellee аsked to conduct his telephone conversation in private. In addition, the trial judge was careful to limit the testimony to what the patrolman observed of appellee’s conduct during the call; no testimony as to the content of that conversation was allowеd.
A thorough reading of the record fails to disclose any violation of еither the appellee’s statutory or constitutional right to counsel.
The fact that the conversation was videotaped doеs not seem to us to have any significance. That tape was not introduced in evidence and its only effect was to allow Patrolmаn Miller to refresh his memory on conduct which he had personally observed. But see, e. g., State v. Cory (1963),
Consequently, we find that no deprivation of effective counsel occurred in this case.
The Court of Appeals found that “ # * * in instructing the jury, the trial court, though not necessarily limited to giving the statutory dеfinition set forth in Sec. 2945.04, R. C. # * * the court, in going beyond the statutory definition, must use-extreme care not to prejudice either party. * # *”
We agree -with that statement. We also agree with the Court of Appeals that the charge in question was prejudicial.
Consideration must be given to R. C. 2945.83, which, in pertinent part, provides:
“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
a* * *
' “(D) A misdirection of the jury unless the accused was or may have been prejudiced thereby #
The Court of Appeals cites four cases in its opinion. McGoon v. State (1931),
State v. Stubbs (1958),
Finally, State v. Forte (1971),
“In a criminal case, the court’s charge to the jury on reasonable doubt is necessarily limited to giving the statutory definition set forth in R. C. 2945.04, and it is prejudicial error to give additional instructions amplifying the statutory definition.” However, a careful reading of the opinion in Forte reveals that the additional charge was erroneous, as it was stated.
We disapprоve of the rulings in the above cases to the extent that they hold that any amplification of the statutory definition of reasonable doubt, regardless of its propriety, is prejudicial error. Error, in order to be construed as prejudicial error, must be an incorrect statemеnt of the law.
Our examination of the complete charge given in this case reveals prejudicial error. The last two sentencеs read:
“ * * * Rut if, after such full and fair consideration, the jurors are not so convinced, but find there are only strong probabilities of guilt, under such cirсumstances a reasonable doubt is said to exist, and such reasonable doubt would entitle the defendant to an acquittal. A mere preponderance
The language first emphasized above is similar to the language complained of in State v. Theisen, supra, since it is not clear that merely because defendant is “entitled” to an acquittal the jury is required to return that verdict. In addition, the weight of evidence required in a civil case could sеrve to confuse the jury. Therefore, we agree with the Court of Appeals that the charge on reasonable doubt was prejudicial.
Finally, the Court of Appeals decided that a reading of R. C. 4511.19 in its entirety constituted prejudicial error. That court found the charge imрroper because it injected issues not raised by the evidence and was likely to confuse the jury. We agree.
The instruction comрlained of concerned the admission of evidence on the concentration of alcohol in defendant’s blood, urine, breаth, or other bodily substance, together with the presumptions which are raised by the various percentages of concentration. This сharge was given even though appellee refused to submit to the breathalyzer test. That charge could be of no possible helр to the jury and might well have been confusing. See Bandy v. State (1921),
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Notes
“Appellee argues that the following testimony of Patrolman Miller concerned a substantive portion of the telephone conversation:
“A. * * * He [defendant] mumbled a lot * * * He couldn’t appear to understand, you know, kept going оn— * *
[By the prosecutor]
“Q. He didn’t remember or he didn’t understand something? U* * *
“A. He acted very confused during the whole conversation, kept asking whoever was on the othеr end to repeat. U* * ijt
“A. Okay. He didn’t know his own phone number at one point in it. He recited four or five numbers and says, it’s in the book.”
We cannot agree. The testimony seems only to demonstrate a type of conduct which might be described as befuddled. No substantive portion of the conversation was related.