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The State of Ohio, Appellee, v. Bidinost, Appellant. 

[Cite as State v. Bidinost (1994), Ohio St.3d .] 

Evidence -- Witnesses -- Post-traumatic stress disorder in 

 children is a proper subject for expert testimony -- R.C. 

 2933.52(A) prohibition of purposeful interception of wire 

 or oral communications through use of an interception 

 device applicable to cordless telephone communications. 

1. Post-traumatic stress disorder in children has gained 

 sufficient recognition in the psychiatric profession to be 

 considered a proper subject for expert testimony. 

2. The provisions of R.C. 2933.52(A), prohibiting the 

 purposeful interception of wire or oral communications 

 through the use of an interception device, apply to 

 cordless telephone communications that are intentionally 

 intercepted and recorded. 

 --- 

 (No. 93-1667 -- Submitted November 16, 1994 -- Decided 

December 30, 1994.) 

 Appeal from the Court of Appeals for Cuyahoga County, No. 

62925. 

 Keith and Maria Crippen, husband and wife, are the parents 

of three children, Randall Jeremy Crippen, born August 6, 1984, 

Christopher Andrew Crippen, born December 21, 1986, and Nicole 

Crippen, born April 20, 1989. At all relevant times, the 

Crippen family lived next-door to the Bidinost family. Members 

of the Bidinost family included Ivo Bidinost Jr., appellant, 

Pia Bidinost, appellant's mother, and appellant's father and 

sister. 

 In 1986, Pia Bidinost began baby-sitting Randy Crippen. 

After Christopher Crippen was born, Pia baby-sat for both Randy 

and Christopher. Pia baby-sat for the children because both 

Keith and Maria Crippen were employed. Initially, Randy seemed 

to enjoy going to the Bidinost residence for Pia to baby-sit 

him. However, sometime later, Randy began to resist going to 

the Bidinosts' home, and Maria noticed that both Randy's and 
Christopher's penises were red and swollen. Maria thought that 

Pia may not have been changing the children's diapers often 

enough. Pia indicated that she had been regularly changing the 

children's diapers. Pia continued to baby-sit for the children 

until Maria decided to stay at home to care for the boys. 

 After Pia stopped baby-sitting for the children, both boys 

continued to visit the Bidinosts. According to Keith Crippen, 

the Bidinosts often invited the children to the Bidinost 

residence. Additionally, appellant and appellant's sister 

occasionally baby-sat the children or would ask the Crippens if 

the children could visit. 

 During and after the time that Pia baby-sat the children, 

Keith and Maria Crippen noticed that the children exhibited 

certain abnormal behaviors. Specifically, Christopher and 

Randy would urinate and/or defecate outdoors. Christopher 

developed a fear of going to the toilet and would sometimes 

urinate in his bed. Randy wanted others to watch him undress 

and to observe him using the toilet. Randy also desired to 

watch others undress and use the toilet. Randy's teachers 

noticed that he was hostile, overly aggressive and overly 

affectionate. On numerous occasions, Maria observed the boys 

outside with their pants down. On one occasion, she observed 

the boys preparing to drink from a cup in which they had 

urinated. On another occasion, she caught Randy "sucking on 

Christopher's penis" in the bathtub. Randy had attempted this 

same sexual behavior with his father in the shower. 

 The Crippens suspected that Randy and Christopher had been 

sexually abused. They took the children to the Center for 

Human Services. Later, the children were seen and were 

counselled by Dr. George Houck. Houck attempted, without 

success, to get the boys to identify their sexual abuser. 

Subsequently, Maria once again caught Randy sucking 

Christopher's penis. She eventually took the children to Dr. 

Lois McLatchie. After two or three sessions with McLatchie, 

Christopher revealed to Maria that appellant had played "the 

private game." Christopher told Maria that Randy had sucked 

appellant's penis and that appellant had sucked Randy's penis. 

Christopher was also able to describe ejaculation and semen. 

According to Maria, Randy eventually admitted that appellant 

had abused him. 

 On August 28, 1990, appellant was indicted on multiple 

counts of rape in violation of R.C. 2907.02 and counts of 

felonious sexual penetration in violation of R.C. 2907.12. On 

August 29, 1990, appellant was arrested at his home and was 

advised of his Miranda1 rights. During a search of the 

Bidinost residence, patrolman Lawrence Brazie of the Mayfield 

Heights police department heard appellant either say "My life 

is over," or "My life is ruined." 

 The day after appellant's arrest, Maria Crippen 

inadvertently discovered that a baby monitor in her home was 

capable of intercepting cordless telephone communications from 

the Bidinosts' residence. Maria was able to hear the voices of 

persons using the Bidinosts' cordless telephone. However, 

Maria was unable to hear the voices of those with whom the 

Bidinosts were communicating. Maria was instructed by the 

police and prosecutor to record the conversations. The 

recorded statements were eventually used at trial to impeach 
the testimony of appellant's father and sister. 

 On October 11, 1991, the matter proceeded to trial before 

a jury. At the time of trial, Randy was seven-years-old and 

Christopher was four. Following a voir dire examination of the 

children, the trial judge determined that Randy and Christopher 

were competent to testify. 

 At trial, Randy testified that he and Christopher had 

played the "private part[s] game" with appellant. According to 

Randy, the game consisted of appellant studying and sucking 

Randy's penis, and Randy sucking appellant's penis while 

putting a popsicle stick in appellant's rectum. Randy stated 

that it "tickled" when appellant sucked his penis, but that it 

did not feel very good when appellant used the stick on him. 

Randy testified that he played the private game with appellant 

because appellant had threatened to hurt him. According to 

Randy, appellant had played the game with Randy and Christopher 

approximately three hundred times. 

 At trial, Christopher claimed that he had never played the 

private game. However, Christopher testified that Randy and 

appellant had played the game. Christopher testified that 

appellant did not wear clothes during the game, and that Randy 

and appellant had touched each other with a stick. 

 Dr. Robert M. Reece, a pediatrician, testified that Randy 

and Christopher had been sexually abused. Reece based his 

conclusions on the behavioral symptoms of the children. 

Additionally, a physical examination of Christopher revealed 

that he had an anal fissure which, according to Reece, could 

have been caused by a popsicle stick. 

 Dr. Jane C. Timmons-Mitchell, a clinical psychologist, 

testified that she had met with Randy and Christopher on 

numerous occasions. Based upon her examination of the 

children, Timmons-Mitchell testified that both Randy and 

Christopher suffered from post-traumatic stress disorder. 

 Appellant testified on his own behalf and denied the 

charges against him. Appellant's father and sister testified 

that they never saw appellant engage in any improper behavior 

with the Crippen children. 

 On October 28, 1991, the jury returned its verdicts, 

finding appellant guilty on five counts of rape in violation of 

R.C. 2907.02 and one count of felonious sexual penetration in 

violation of R.C. 2907.12. The trial court entered judgment 

upon the verdicts and sentenced appellant in accordance with 

law. On appeal, the court of appeals affirmed the judgment of 

the trial court. 

 The cause is now before this court pursuant to the 

allowance of a motion for leave to appeal. 

 

 Stephanie Tubbs-Jones, Cuyahoga County Prosecuting 

Attorney, and Melody A. White, Assistant Prosecuting Attorney, 

for appellee. 

 David L. Doughten, for appellant. 

 Douglas, J. Appellant presents three propositions of 

law for our consideration. For the reasons that follow, we 

find no reversible error with respect to any of the issues 

raised in this appeal and, accordingly, we affirm the judgment 

of the court of appeals. We address appellant's propositions 
of law seriatim. 

 I 

 In his first proposition of law, appellant challenges his 

convictions, claiming that the trial court erred in permitting 

Timmons-Mitchell to offer her expert opinion that Randy and 

Christopher suffered from post-traumatic stress disorder. We 

reject appellant's proposition for two reasons. First, 

appellant's arguments in support of the proposition have been 

waived because he failed to raise the alleged errors at the 

trial court level. State v. Williams (1977), 51 Ohio St.2d 

112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the 

syllabus; State v. Broom (1988), 40 Ohio St.3d 277, 288-289, 

533 N.E.2d 682, 695-696; and State v. Moreland (1990), 50 Ohio 

St.3d 58, 62, 552 N.E.2d 894, 899. Second, even considering 

the merits of appellant's contentions, we find that the trial 

court did not abuse its discretion in allowing Timmons-Mitchell 

to testify that the children suffered from post-traumatic 

stress disorder. 

 Appellant contends that Timmons-Mitchell lacked sufficient 

qualifications to testify as an expert concerning 

post-traumatic stress disorder in children. We disagree. The 

record reflects that Timmons-Mitchell, a licensed clinical 

psychologist, had extensive education and experience in 

evaluating children who were victims of sexual or physical 

abuse. In addition, Timmons-Mitchell is an assistant professor 

of psychology at Case Western Reserve University School of 

Medicine and director of the child abuse treatment programs in 

the Division of Child Psychiatry at University Hospitals. She 

has evaluated and treated hundreds of children, testified as an 

expert witness in at least fifteen cases, and published various 

articles regarding children, including an article relating to 

post-traumatic stress disorder. Clearly, the trial court did 

not abuse its discretion in recognizing Timmons-Mitchell as an 

expert in her field based upon her knowledge, skill, education, 

experience and training. 

 Appellant also contends that post-traumatic stress 

disorder in children is not a proper subject for expert 

testimony. Specifically, appellant claims that "[t]here is no 

evidence that post-traumatic stress in children has been 

accepted by the scientific community." Again, we disagree. 

"Post-traumatic stress disorder" is specifically identified in 

the American Psychiatric Association's Diagnostic and 

Statistical Manual of Mental Disorders ("DSM-III-R") (3 Ed. 

Rev. 1987) 247-251, Section 309.89. The disorder is 

essentially the development of various characteristic symptoms2 

following the exposure to a "psychological distressing event 

that is outside the range of usual human experience." Id. at 

247. The event causing the disorder may include rape and 

assault. Id. at 248. Most notably, the disorder is not 

age-specific. It can afflict adults and children. Id. at 

249. Accordingly, we are convinced that post-traumatic stress 

disorder in children has gained sufficient recognition in the 

psychiatric profession to be considered a proper subject for 

expert testimony. Our conclusion is supported by the decisions 

of a number of courts which have, before us, considered the 

specific issue or have been confronted with an analogous 

situation. See, e.g., State v. Hall (1992), 330 N.C. 808, 
818-823, 412 S.E.2d 883, 888-891. See, also, State v. Vorisek 

(May 11, 1988), Summit App. No. 13334, unreported; Commonwealth 

v. Hudson (1994), 417 Mass. 536, 631 N.E.2d 50; and State v. 

Fasy (Colo. 1992), 829 P.2d 1314. 

 Additionally, it is well-settled that expert testimony is 

admissible if it will assist the trier of fact in understanding 

the evidence in the case or in determining a fact in issue. 

State v. Boston (1989), 46 Ohio St.3d 108, 118, 545 N.E.2d 

1220, 1231. Such testimony must be beyond the common knowledge 

of the jurors. State v. Koss (1990), 49 Ohio St.3d 213, 216, 

551 N.E.2d 970, 973. See, also, State v. Buell (1986), 22 Ohio 

St.3d 124, 131, 22 OBR 203, 209, 489 N.E.2d 795, 803. 

 Here, a review of the record reveals that 

Timmons-Mitchell's testimony was admissible under Evid.R. 

702.3 Timmons-Mitchell testified that her function was not to 

determine whether the children had been sexually abused. 

Rather, Timmons-Mitchell examined the children to assess 

whether they had suffered any psychological trauma as a result 

of the alleged abuse. At trial, Timmons-Mitchell described 

various relevant symptoms of post-traumatic stress disorder, 

explained that many of the symptoms had been exhibited by the 

children, testified that the children suffered from this 

disorder and stated that such a diagnosis is widely applied to 

children who have been sexually abused. The expert testimony 

was clearly relevant and helpful in assisting the jury to 

understand the children's behavior. Additionally, the expert 

testimony provided information to the jury that was 

"'"sufficiently beyond common experience."'" Buell, supra, at 

131, 22 OBR at 209, 489 N.E.2d at 803. We specifically reject 

appellant's argument that the evidence should have been 

excluded under Evid.R. 403.4 

 Accordingly, we find that appellant's first proposition of 

law lacks merit. 

 II 

 On August 29, 1990, police conducted a search of 

appellant's residence. During the search, Patrolman Lawrence 

Brazie heard appellant either say "My life is over" or "My life 

is ruined." At trial, the state called Brazie to testify 

regarding appellant's statement. Appellant objected on grounds 

that, during discovery, the state had failed to provide the 

defense with a written summary of appellant's oral statement. 

The trial court permitted the parties to voir dire Brazie. On 

voir-dire examination, Brazie testified that he had met with 

defense counsel approximately two months before trial and had 

verbally informed the defense of appellant's pretrial 

statement. On the basis of this testimony, the trial court 

permitted Brazie to testify as to the statement made by 

appellant during the August 29, 1990 search. 

 In his second proposition of law, appellant claims that 

the state violated the criminal rules of discovery by failing 

to provide the defense with a written summary of appellant's 

oral statement. Appellant suggests that the trial court 

committed reversible error in permitting Brazie to testify. 

 Crim.R. 16(B)(1)(a) provides, in part: 

 "Upon motion of the defendant, the court shall order the 

prosecuting attorney to permit the defendant to inspect and 

copy or photograph any of the following which are available to, 
or within the possession, custody, or control of the state, the 

existence of which is known or by the exercise of due diligence 

may become known to the prosecuting attorney: 

 "* * * 

 "(ii) Written summaries of any oral statement, or copies 

thereof, made by the defendant or co-defendant to a prosecuting 

attorney or any law enforcement officer; 

 "* * *." 

 The record is clear that the state violated Crim.R. 

16(B)(1)(a)(ii) by failing to provide defense counsel with a 

written summary of appellant's oral statement. At trial, an 

assistant prosecuting attorney, Melody A. White, explained to 

the court that no written summary had been provided to the 

defense during discovery because the defense had been verbally 

informed of appellant's statement to Brazie. In this regard, 

White argued that the "spirit of the law had been fulfilled." 

She stated, "why should I reduce something to writing for mere 

technicality for information he [appellant's defense attorney] 

already has notice of * * *[?]". She stated further, "[s]hould 

I have reduced this to writing? Absolutely. I personally try 

to do things to not waste my time." 

 Contrary to White's assertions, the "spirit of the law" 

was not fulfilled by anything less than strict adherence to the 

rule. As White correctly recognized, Crim.R. 16(B)(1)(a)(ii) 

required that she reduce the statement to writing, in the form 

of a summary, to be provided to the defense during discovery. 

Obviously, we did not draft the criminal rules of discovery to 

waste anyone's time. Rather, we specifically drafted the rules 

to ensure the fairness of criminal proceedings. 

 Having determined that the criminal rules of discovery 

were violated, we must now examine whether the trial court 

erred in allowing Brazie to testify. 

 Crim.R. 16(E)(3) provides for the regulation of discovery 

and permits a trial court to exercise discretion in selecting 

the appropriate sanction for a discovery violation. See State 

v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97, 110; 

State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 

453 N.E.2d 689, 691; and State v. Edwards (1976), 49 Ohio St.2d 

31, 42, 3 O.O.3d 18, 24, 358 N.E.2d 1051, 1059. Crim.R. 

16(E)(3) provides that: 

 "If at any time during the course of the proceedings it is 

brought to the attention of the court that a party has failed 

to comply with this rule or with an order issued pursuant to 

this rule, the court may order such party to permit the 

discovery or inspection, grant a continuance, or prohibit the 

party from introducing in evidence the material not disclosed, 

or it may make such other order as it deems just under the 

circumstances." 

 In Parson, supra, at the syllabus, this court held that: 

 "Where, in a criminal trial, the prosecution fails to 

comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of 

an oral statement made by a co-defendant to a law enforcement 

officer, and the record does not demonstrate (1) that the 

prosecution's failure to disclose was a willful violation of 

Crim.R. 16, (2) that foreknowledge of the statement would have 

benefited the accused in the preparation of his defense, or (3) 

that the accused was prejudiced by admission of the statement, 
the trial court does not abuse its discretion under Crim.R. 

16(E)(3) by permitting such evidence to be admitted." 

 Applying Parson to the case at bar, we find that the trial 

court did not abuse its discretion in permitting Brazie to 

testify as to the oral statement made by appellant. 

 First, we are not persuaded that the assistant prosecutor 

willfully violated Crim.R. 16. The trial court found that the 

defense had been verbally notified of the statement in question 

approximately two months prior to trial. Apparently, the 

assistant prosecutor assumed that the verbal notification had 

satisfied her obligations under Crim.R. 16(B)(1)(a)(ii). 

Although the assistant prosecutor's assumption was clearly 

erroneous, that assumption does not automatically equate with a 

willful violation of the rule. 

 Second, we are in no position to second-guess the trial 

court's determination that defense counsel had been verbally 

notified of appellant's statement to Brazie. While the defense 

was entitled to a written summary of the statement, the record 

does not reflect that a written summary would have benefited 

appellant in the preparation of his defense. 

 Third, appellant never requested a continuance to prepare 

for Brazie's trial testimony. Under these circumstances, the 

trial court may have properly determined that appellant was 

prepared to proceed despite any claim of unfair "surprise." 

Thus, no prejudice has been shown.5 

 In this proposition, appellant also claims that because 

Brazie could not specifically recall which statement appellant 

had made (either "My life is over" or "My life is ruined"), the 

probative value of the evidence was outweighed by its 

prejudicial effect. Appellant argues that "[t]here is a 

tremendous difference between whether the appellant said 'my 

life is over' or 'my life is ruined.' The statement 'my life 

is over' connotes a strong suggestion the he is admitting guilt 

in that his offense was discovered. 'My life is ruined,' on 

the other hand, might indicate that the charges themselves 

could very easily ruin his life, whether or not they were 

true." Therefore, appellant contends that the evidence should 

have been excluded under Evid.R. 403(A). We disagree. The 

fact that Brazie could not recall which of the statements was 

made by appellant affected the credibility -- not the 

admissibility -- of Brazie's testimony. Whether appellant said 

"My life is over," or "My life is ruined," made little 

difference. The jury could reasonably have concluded that 

either version of the statement indicated consciousness of 

guilt. Similarly, the jury could reasonably have concluded 

that either statement pertained to the effect of the charges on 

appellant's life. The weight to be given Brazie's testimony 

was clearly a matter for the jury. 

 Accordingly, we reject appellant's second proposition of 

law. 

 III 

 Appellant's third proposition of law concerns the recorded 

telephone conversations that were used to impeach the 

credibility of two defense witnesses. The facts relevant to 

this proposition are as follows. 

 The Crippens and Bidinosts were neighbors. The Bidinosts 

owned a cordless telephone. Keith and Maria Crippen owned an 
electronic baby monitor which they used to monitor their 

children. The transmitting part of the baby monitor was 

located in Nicole's bedroom and the receiving part was kept in 

the Crippens' bedroom. The day following appellant's arrest, 

Christopher and Randy Crippen were playing with the baby 

monitor. When the boys unplugged the transmitting device in 

Nicole's bedroom, the receiver in the Crippens' bedroom began 

receiving the Bidinosts' cordless telephone conversations. 

Only the voices of those speaking into the Bidinosts' cordless 

telephone handset could be heard over the monitor. The voices 

of those to whom the Bidinosts were speaking could not be 

overheard. Maria Crippen contacted police and a prosecuting 

attorney, and was instructed by them to record any subsequent 

conversations received over the baby monitor. In accordance 

with these instructions, Maria recorded the Bidinosts' cordless 

telephone communications. In October 1990, she turned the 

tapes over to police. 

 In December 1990, appellant filed a motion to suppress the 

"intercepted oral communications." On August 5, 1991, the 

trial court conducted a hearing on appellant's motion. At the 

hearing, John P. Wykoff who worked on transmission devices, 

testified concerning the technical operations of cordless 

telephones. Wykoff explained that when a person speaks into 

the handset of a cordless phone, an FM signal is transmitted 

into the air through the antenna located on the handset. The 

radio transmission from the handset is then received by the 

base unit which, in turn, is connected with the telephone 

line. The testimony at the hearing indicated that when the 

transmitting unit of the Crippens' baby monitor became 

unplugged, the receiving unit of the monitor began intercepting 

radio signals from the Bidinosts' cordless telephone handset. 

 The trial court denied appellant's motion to suppress. 

The court held that a person who uses a cordless telephone 

"does so at his own peril," and that there was no necessity for 

the state to secure a warrant to monitor "radio communications 

* * * open to everyone who had * * * FM receiving equipment." 

The court of appeals affirmed the judgment of the trial court 

on this issue. 

 In his third proposition of law, appellant contends that 

the trial court erred in denying his motion to suppress the 

contents of the recorded telephone conversations. Appellant 

contends that R.C. 2933.52 prohibited the interception and 

taping of the conversations, and that R.C. 2933.636 required 

that the contents of the intercepted communications be 

suppressed. 

 Appellant's contentions present this court with an issue 

of first impression involving the rights of Ohioans to be free 

from unauthorized invasions of their cordless telephone 

communications. R.C. 2933.52(A) provides that: 

 "(A) No person purposely shall do any of the following: 

 "(1) Intercept, attempt to intercept, or procure any 

other person to intercept or attempt to intercept any wire or 

oral communication; 

 "(2) Use, attempt to use, or procure any other person to 

use or attempt to use any interception device to intercept any 

wire or oral communication, if either of the following apply: 

 "(a) The interception device is affixed to, or otherwise 
transmits a signal through, a wire, cable, satellite, 

microwave, or other similar method of connection used in wire 

communications; 

 "(b) The interception device transmits communications by 

radio, or interferes with the transmission of communications by 

radio. 

 "(3) Disclose, or attempt to disclose, to any other 

person the contents, or any other evidence derived from the 

contents, of any wire or oral communication, knowing or having 

reason to know that the contents, or evidence derived from the 

contents, was obtained through the interception of the wire or 

oral communication in violation of sections 2933.51 to 2933.66 

of the Revised Code." (Emphasis added.) 

 With certain exceptions not pertinent here, R.C. 

2933.52(A) prohibits a person from purposely intercepting a 

wire or oral communication.7 Maria Crippen overheard and 

recorded cordless telephone conversations to which she was not 

a party through the use of her electronic baby monitor device. 

She did so at the urging of the police and prosecutor who did 

not attempt to obtain an interception warrant. Obviously, the 

monitoring of the conversations was purposely done. Thus, R.C. 

2933.52(A) prohibited this conduct if the act of monitoring the 

cordless telephone conversations constitutes an "interception" 

of "wire communication[s]" or "oral communication[s]." 

 R.C. 2933.51(A) defines "wire communication" as "any 

communication that is made in whole or in part through the use 

of facilities for the transmission of communications by the aid 

of wires or similar methods of connecting the point of origin 

of the communication and the point of reception of the 

communication." Division (B) of the statute defines "oral 

communication" as "any human speech that is used to communicate 

by one person to another person." The term "intercept" is 

defined in R.C. 2933.51(C) as "the aural acquisition of the 

contents of any wire or oral communication through the use of 

an interception device." R.C. 2933.51(D) defines an 

"interception device" as "any electronic, mechanical, or other 

device or apparatus that can be used to intercept a wire or 

oral communication." 

 Appellee contends that the cordless telephone 

conversations received over the Crippens' baby monitor were not 

"oral communications" within the meaning of R.C. 2933.51(B). 

Appellee suggests that the monitor received "radio waves" 

transmitted from the Bidinosts' cordless telephone handset. 

However, we find that the cordless telephone communications 

received over the monitor were clearly "oral communications" as 

defined in R.C. 2933.51(B). The voices heard over the 

Crippens' baby monitor came from the Bidinosts' cordless 

telephone handset when the Bidinosts used the telephone to 

communicate with others. Maria Crippen did not hear and record 

"radio waves." Rather, she heard and recorded people speaking 

on a cordless telephone. The definition of "oral 

communication" in R.C. 2933.51(B) is not specifically limited 

to face-to-face human speech. The definition refers to any 

human speech used to communicate by one person to another. 

 Additionally, appellant correctly recognizes that cordless 

telephone conversations also fit the statutory definition of 

"wire communication." The evidence at the suppression hearing 
indicated that when a telephone call is made from a cordless 

telephone, the outgoing communications travel from the handset 

to the base unit via radio waves. From there, the 

communication travels through the telephone lines. Although no 

evidence was presented at the hearing regarding incoming 

communications, the same physical principles apply. See, 

generally, State v. McVeigh (1993), 224 Conn. 593, 598-599, 620 

A.2d 133, 136. Namely, if a call is made to a home serviced by 

a cordless telephone, and the cordless phone is used to receive 

the call, the incoming message travels through the telephone 

lines to the cordless telephone base unit. From the base unit, 

the incoming message is transmitted to the handset via radio 

waves. Thus, incoming and outgoing communications on a 

cordless telephone are made, in part, through the use of the 

facilities for the transmission of communications through the 

aid of wires connecting the point of origin of the 

communication to the point of reception. Therefore, radio wave 

portions of cordless telephone communications are also "wire 

communications" as defined in R.C. 2933.51(A). Accord McVeigh, 

supra (Radio wave portions of cordless telephone communications 

are "wire communications" protected by Connecticut Wiretap 

Act.). 

 Further, there is no question that the Bidinosts' cordless 

telephone communications were "intercepted" by Maria Crippen. 

Again, the term "intercept" is defined as "the aural 

acquisition of the contents of any wire or oral communication 

through the use of an interception device." R.C. 2933.51(C). 

The contents of the Bidinosts' oral communications were 

"aurally" acquired through the use of the Crippens' electronic 

baby monitor. The monitor was indeed an "interception device," 

within the meaning of R.C. 2933.51(D), since the device was 

obviously capable of intercepting the Bidinosts' cordless 

telephone communications when used for that purpose. 

 Accordingly, we find that the purposeful interception of 

the Bidinosts' cordless telephone conversations was prohibited 

by the terms of R.C. 2933.52(A). Therefore, pursuant to R.C. 

2933.63, the trial court was required to suppress the contents 

of the recorded communications. We hold that the provisions of 

R.C. 2933.52(A), prohibiting the purposeful interception of 

wire or oral communications through the use of an interception 

device, apply to cordless telephone communications that are 

intentionally intercepted and recorded. 

 We recognize, as did the court of appeals, that there 

exists a substantial body of case law from other jurisdictions 

holding that cordless and/or mobile telephone communications do 

not fit within the protections afforded by statutes prohibiting 

the interception of oral communications, since users of 

cordless or cellular telephones have no reasonable expectation 

of privacy in their telephone communications. See, e.g., Tyler 

v. Berodt (C.A.8, 1989), 877 F.2d 705; Edwards v. Bardwell 

(M.D.La.1986), 632 F.Supp. 584, affirmed (C.A.5, 1986), 808 

F.2d 54; State v. Smith (1989), 149 Wis.2d 89, 438 N.W.2d 571; 

People v. Fata (Cty.Ct.1988), 139 Misc.2d 979, 529 N.Y.S.2d 

683; and State v. Howard (1984), 235 Kan. 236, 679 P.2d 197. 

See, also, United States v. Hall (C.A.9, 1973), 488 F.2d 193; 

and State v. Delaurier (R.I. 1985), 488 A.2d 688. However, the 

above-cited cases address the protections afforded radio 
telephone or cordless telephone communications in light of 

applicable federal and/or state statutory definitions of "oral 

communication," which differ from Ohio's statutory definition 

of that term. 

 For instance, the federal law prohibiting interception of 

oral communications defines an "oral communication," as one in 

which a person has a justifiable expectation that the 

communication is not subject to interception. Section 2510(2), 

Title 18, U.S. Code. Conversely, under Ohio's statutory 

scheme, the question whether users of cordless telephones have 

a reasonable expectation of privacy is not an issue that must 

be considered in determining whether a communication is an 

"oral communication," as defined in R.C. 2933.51(B). R.C. 

2933.51(B) is clear and unambiguous. In Ohio, the terms of the 

statute defining "oral communication" clearly encompass 

cordless telephone conversations. In any event, we seriously 

question the proposition that people communicating on cordless 

telephones have no legitimate expectation of privacy.8 

Fundamental rights should not be sacrificed on the altar of 

advancing technology. 

 Similarly, we recognize that our determination today that 

cordless telephone communications are protected "wire 

communications" is contra to a number of decisions from other 

jurisdictions which have held that cordless telephone 

communications are not wire communications. However, we are 

not persuaded to reach a similar conclusion under Ohio law. In 

our judgment, Ohio's definition of "wire communication" is free 

from ambiguity and clearly encompasses cordless telephone 

communications. Therefore, we are not at liberty to interpret 

Ohio's definition of "wire communication" as excluding cordless 

telephone communications. Where, as here, a legislative 

enactment is free from ambiguity, we must apply, not interpret, 

the enactment. See Cleveland Elec. Illum. Co. v. Cleveland 

(1988), 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of 

the syllabus ("In matters of construction, it is the duty of 

this court to give effect to the words used, not to delete 

words used or to insert words not used."); Ohio Dental 

Hygienists Assn. v. Ohio State Dental Bd. (1986), 21 Ohio St.3d 

21, 23, 21 OBR 282, 284, 487 N.E.2d 301, 303 ("Absent 

ambiguity, a statute is to be construed without resort to a 

process of statutory construction."). 

 Accordingly, we believe that the very terms of Ohio's 

statutory scheme prohibiting the purposeful interception of 

wire or oral communications mandate the conclusions we have 

reached in this case. Further, we are unable to reconcile the 

state's arguments in this case with the arguments it advanced 

in State v. Larabee (1994), 69 Ohio St.3d 357, 632 N.E.2d 511. 

 In Larabee, Gerald Larabee recorded a number of cellular 

telephone calls he was able to overhear on a ham radio. For 

this activity, Larabee was indicted for purposely intercepting 

oral communications in violation of R.C. 2933.52(A). Larabee 

moved to dismiss the indictment. The trial court granted the 

motion, finding that the indictment failed to state an offense 

under R.C. 2933.52(A). Thereafter, the state appealed to the 

court of appeals, urging that the trial court had erred in 

dismissing the indictment. However, the court of appeals 

dismissed the matter without addressing the merits of the 
state's appeal. Upon further appeal, this court remanded the 

cause to the court of appeals to address the merits whether 

Larabee had committed an indictable offense. Id. at 360, 632 

N.E.2d at 513-514. 

 In Larabee, we did not discuss whether the matters alleged 

in the indictment constituted indictable offenses. However, 

both Larabee and the state of Ohio presented arguments before 

this court concerning that issue. Specifically, Larabee 

claimed that R.C. 2933.52 did not apply to his recording of the 

unscrambled cellular telephone radio transmissions. In a reply 

brief, the state made the following argument in response to 

Larabee's assertions: 

 "Ohio Revised Code Sections 2933.51 through 2933.66 were 

passed as a package effective March 25, 1987, to set forth a 

procedure whereby wire and oral communications could be 

intercepted and the terms upon which it could be done. Much 

detail is used in how the warrant can be obtained (2933.56 and 

2933.57) and civil and criminal penalties for violating the 

same (2933.65). 

 "As previously set forth O.R.C. Section 2933.51 in 

defining oral communication defines it as 'any human speech 

that is used to communicate by one person to another person.' 

Obviously this would encompass a cellular telephone call since 

indeed it is human speech used to communicate between 

individuals. The Defendant [Larabee] did intercept 

conversations through the use of [an] interception device, 

to-wit his ICM AT 24 Hand Held Unit. Therefore by the very 

definition of the statute, Defendant's conduct fits the 

statute. It is obvious that a telephone call from one 

individual to another, is indeed an oral communication within 

the definition set out by O.R.C. Section 2933.51(B). It is 

also obvious that conversations initiated from a radio 

telephone logically fall within the category or oral 

communication. * * * Conversations aminating [sic, emanating] 

from a radio telephone should logically be treated in the same 

way as an oral communication. * * * A radio receiver does 

indeed fit the definition of interception devise [sic, device] 

since it is an electronic devise [sic] capable of interception 

of an oral communication when used for that purpose. 

 "The purpose of the Ohio General Assembly in enacting 

O.R.C. Sections 2933.51 et seq. was to protect the privacy of 

certain communications. It is clear that those individuals 

using cellular telephones expect their message only to be 

accepted, heard, and communicated with the other party with 

whom the call is made. * * * 

 "The Trial Court specifically dwelled upon the fact that 

the Federal Law included a category of 'electronic 

communications' which specifically includes cellular telephone 

calls and Ohio Law does not. The Court incorrectly reasoned 

that this meant that electronic communications were not covered 

under Ohio Law. * * *." 

 Therefore, in Larabee, the state urged that the provisions 

of R.C. 2933.51 and 2933.52 clearly and unambiguously prohibit 

the intentional interception of cellular and "radio" telephone 

communications, that there exists no room for any other 

interpretation of Ohio law, and that people who speak on these 

types of phones enjoy a reasonable expectation of privacy in 
their telephone communications. Conversely, in the case at 

bar, the state essentially urges that R.C. 2933.51 and 2933.52 

do not mean what the statutes say, that this court should 

interpret Ohio law in accordance with federal laws on the 

subject, and that it would be absurd to conclude that there 

exists a reasonable expectation of privacy in cordless 

telephone communications. Obviously, the state cannot have it 

both ways! 

 In the case at bar, the trial court clearly erred in 

failing to suppress the contents of the recorded telephone 

conversations. However, under the circumstances here, we find 

that the error was harmless beyond a reasonable doubt. 

 The state did not use the recorded telephone conversations 

during its case-in-chief. Rather, the only time any recorded 

statement was used by the prosecution was during the 

cross-examination of appellant's father and sister. 

Specifically, appellant's father was questioned concerning 

various statements he had made on the cordless telephone. None 

of the recorded statements was particularly damning, especially 

when the statements were explained by him. Further, in our 

judgment, the recorded statements did not significantly affect 

the credibility of appellant's father. Appellant's sister was 

also questioned concerning statements that she had made on the 

cordless telephone. While the cross-examination of appellant's 

sister may have had some impact on the jury's assessment of her 

credibility, we are convinced that the jury's ultimate findings 

were not adversely affected. 

 Hence, given the overwhelming evidence of appellant's 

guilt, we find, beyond a reasonable doubt, that the outcome of 

appellant's trial would not have been different had the state 

been precluded from using the contents of the recorded 

telephone conversations during the cross-examination of 

appellant's father and sister. Thus, no reversible error 

occurred. See Crim.R. 52(A). 

 In this proposition, appellant also contends that the 

recorded telephone communications should have been excluded on 

the basis that only one party to any given conversation could 

be overheard and, thus, there existed a "great possibility" 

that the jury would misinterpret the sum and substance of the 

conversations. However, the appellant's father and sister were 

given the opportunity to explain their recorded statements and 

to describe the context in which the statements were made. 

Further, we have already determined that the use of the 

recorded telephone conversations during the cross-examination 

of appellant's father and sister did not taint the outcome of 

appellant's trial. 

 As a final matter, we note that Maria Crippen was 

permitted to testify as a rebuttal witness for the prosecution 

with respect to one cordless telephone conversation she had 

overheard shortly after appellant's arrest. According to 

Maria, appellant's sister was speaking with appellant and 

commented that appellant should consider plea bargaining. This 

statement was overheard by Maria before she began recording the 

Bidinosts' telephone communications at the urging of the police 

and prosecutor. In this regard, since the conversation was not 

recorded the oral communication was not purposely intercepted 

in violation of law. Therefore, the contents of the 
conversation were properly admitted for purposes of impeaching 

the testimony of a defense witness, appellant's sister, who 

denied making the statement. 

 Accordingly, we find no reversible error in the matters 

raised in appellant's third proposition of law. 

 IV 

 For the foregoing reasons, we affirm the judgment of the 

court of appeals. 

 Judgment affirmed. 

 Moyer, C.J., A.W. Sweeney, Wright, F.E. Sweeney and 

Pfeifer, JJ., concur. 

 Resnick, J., concurs in the syllabus and judgment only. 

 

FOOTNOTES: 

1 Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 

L.Ed.2d 694. 

2 In general, the typical characteristic symptoms of 

post-traumatic stress disorder "involve reexperiencing the 

traumatic event, avoidance of stimuli associated with the event 

or numbing of general responsiveness, and increased arousal." 

American Psychiatric Association, Diagnostic and Statistical 

Manual of Mental Disorders (3 Ed. Rev. 1987) ("DSM-III-R") 247, 

Section 309.89. In addition, a child may refuse to discuss the 

trauma and may also exhibit additional physical symptoms. Id. 

at 249. 

3 Evid.R. 702 was amended effective July 1, 1994. As 

indicated by the Staff Notes, the amendment was to clarify 

circumstances in which expert testimony is admissible, but no 

substantive change from prior law was intended. In any event, 

we believe that Timmons-Mitchell's testimony was clearly 

admissible under the former or current version of the rule. 

Currently, Evid.R. 702 provides: 

 "A witness may testify as an expert if all of the 

following apply: 

 "(A) The witness' testimony either relates to matters 

beyond the knowledge or experience possessed by lay persons or 

dispels a misconception common among lay persons; 

 "(B) The witness is qualified as an expert by specialized 

knowledge, skill, experience, training, or education regarding 

the subject matter of the testimony; 

 "(C) The witness' testimony is based on reliable 

scientific, technical, or other specialized information. To 

the extent that the testimony reports the result of a 

procedure, test, or experiment, the testimony is reliable only 

if all of the following apply: 

 "(1) The theory upon which the procedure, test or 

experiment is based is objectively verifiable or is validly 

derived from widely accepted knowledge, facts, or principles; 

 "(2) The design of the procedure, test, or experiment 

reliable implements the theory; 

 "(3) The particular procedure, test, or experiment was 

conducted in a way that will yield an accurate result." 

4 Evid.R. 403 provides: 

 "(A) Exclusion Mandatory. Although relevant, evidence is 

not admissible if its probative value is substantially 

outweighed by the danger of unfair prejudice, of confusion of 

the issues, or of misleading the jury. 
 "(B) Exclusion Discretionary. Although relevant, evidence 

may be excluded if its probative value is substantially 

outweighed by considerations of undue delay, or needless 

presentation of cumulative evidence." 

5 Our conclusion that the trial court did not abuse its 

discretion in permitting Brazie to testify should not be 

construed as an approval of the discovery violation that 

occurred in this case. Crim.R. 1(B) provides that the "* * * 

rules are intended to provide for the just determination of 

every criminal proceeding. They shall be construed and applied 

to secure the fair, impartial, speedy, and sure administration 

of justice * * *." Crim.R. 16 is no exception! We are 

constrained to remind all who are involved with the use of 

Crim.R. 16 (and all the rules) that the rule is there to be 

applied and followed -- not in part but in whole. 

6 R.C. 2933.63 provides: 

 "(A) Any aggrieved person in any trial, hearing, or 

proceeding in or before any court, department, officer, agency, 

regulatory body, or other authority of this state or of any 

political subdivision of this state, other than a grand jury, 

may request the court by motion to suppress the contents, or 

any evidence derived from the contents, of any intercepted wire 

or oral communication for any of the following reasons: 

 "(1) The communication was unlawfully intercepted; 

 "(2) The interception warrant under which the 

communication was intercepted is insufficient on its face; 

 "(3) The interception was not made in conformity with the 

interception warrant; 

 "(4) The communications are of a privileged character and 

a special need for their interception is not shown or is 

inadequate as shown. 

 "(B) Any motion filed pursuant to division (A) of this 

section shall be made before the trial, hearing, or proceeding 

at which the contents, or evidence derived from the contents, 

is to be used * * *[.]" 

7 R.C. 2933.52(B) sets forth exceptions to the prohibitions 

contained in R.C. 2933.52(A). For example, the prohibitions do 

not apply to the interception of wire or oral communications 

obtained through the use of an interception warrant. See R.C. 

2933.52(B)(1). 

8 R.C. 2933.65 provides, in part: 

 "(A) Any person whose wire or oral communications are 

intercepted, disclosed, or used in violation of sections 

2933.51 to 2933.66 of the Revised Code shall have a civil cause 

of action against any person who intercepts, discloses, uses, 

or procures any other person to intercept, disclose, or use the 

communications and shall be entitled to recover any of the 

following from the person: 

 "(1) Whichever of the following is greater: 

 "(a) Liquidated damages computed at a rate of two hundred 

dollars per day for each day of violation, up to, but not 

exceeding an aggregate total of two thousand dollars; 

 "(b) Actual damages. 

 "(2) Punitive damages; 

 "(3) Reasonable attorney's fees and other litigation 

expenses that are reasonably incurred in bringing the civil 

action. 
 "(B) Good faith reliance on an interception warrant, or 

other court order, or oral approval for an interception is a 

complete defense to a civil action or criminal action that is 

brought under the laws of this state and that arises out of the 

execution of the warrant." 

 In our judgment, these provisions at least arguably (if 

not actually) constitute a legislative recognition that a right 

to privacy exists in Ohio with respect to wire and oral 

communications.