State v. Cook
2019 Ohio 3610
Ohio Ct. App.2019Background
- Defendant Ronald E. Cook was indicted for rape and importuning; indictment and bill of particulars originally alleged offenses occurred between Aug. 1, 2015 and Nov. 1, 2015.
- Victim (an eleven-year-old at reporting) testified at trial that some acts occurred when she was about five (circa 2012) and at other times she gave inconsistent ages in prior interviews.
- At close of the State’s case the prosecutor moved to amend the indictment/bill of particulars to expand the date range to include 2012 (to conform to the victim’s trial testimony); the defense objected and moved for a mistrial if amendment was allowed.
- Trial court granted the Crim.R. 7(D) amendment, offered the defense a continuance (which defense declined), and denied the mistrial motion.
- Jury convicted Cook of rape and acquitted on importuning; Cook appealed only the denial of mistrial/allowance of the date-amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in permitting amendment of dates in indictment under Crim.R. 7(D) and denying mistrial | Amendment merely cured a variance between indictment and proof; dates not an element; amendment permitted to conform to evidence | Amendment prejudiced defense because its strategy relied on the date discrepancy; mistrial or continuance necessary | No error: amendment allowed; mistrial denied — defendant not prejudiced and trial protections preserved |
Key Cases Cited
- State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (Ohio 1985) (precise times/dates are not essential elements and omission is not prejudicial if defense not materially deprived)
- State v. Daniel, 97 Ohio App.3d 548, 647 N.E.2d 174 (10th Dist. 1994) (indictment may be amended to conform to the evidence where dates are not essential)
- State v. Gingell, 7 Ohio App.3d 364, 455 N.E.2d 1066 (1st Dist. 1982) (omission of specific dates is without prejudice when not essential)
- State v. Madden, 15 Ohio App.3d 130, 472 N.E.2d 1126 (12th Dist. 1984) (children victims may be unable to recall exact dates; courts recognize this in sexual-abuse cases)
- State v. Geboy, 145 Ohio App.3d 706, 764 N.E.2d 451 (3d Dist. 2001) (same principle regarding imprecision of dates in child sexual-abuse prosecutions)
- State v. Buchanan, 88 N.E.3d 686 (8th Dist. 2017) (changing dates does not change substance of sexual-offense indictment when defendant’s defense is denial rather than alibi)