2021 Ohio 1583
Ohio Ct. App.2021Background
- Jonah Ketchum was indicted by a grand jury on four counts; Counts 2 and 3 charged menacing by stalking and (by indictment and bill of particulars) alleged the offenses occurred "on or about October 26, 2018."
- The bill of particulars likewise specified October 26, 2018, and the two menacing counts differed only in the "furthermore" clauses (threat; history of violence).
- Before trial the state obtained leave to amend the indictment to expand the date allegation for the menacing counts from a single date to a range: October 26, 2018 through December 24, 2018.
- Trial evidence included an October 26 assault (victim testified Ketchum did not threaten her that day) and a December 23–24 episode in which the victim testified Ketchum threatened her and was arrested at the scene.
- The jury convicted Ketchum on both menacing-by-stalking counts; the court declared mistrials on two other counts and later dismissed them without prejudice.
- On appeal the majority reversed and vacated the two convictions, holding the pretrial amendment impermissibly changed the identity of the offenses by adding an incident (December 24) not presented to the grand jury.
Issues
| Issue | State's Argument | Ketchum's Argument | Held |
|---|---|---|---|
| Whether permitting the indictment to be amended from a single date to a date range improperly changed the identity of the charged offenses | Amendment was permissible under Crim.R. 7(D) to conform the indictment to the evidence | Amendment added a new incident/date (Dec. 24) that was not presented to the grand jury and thus changed the charged offense | Reversed: majority held the amendment impermissibly changed the identity of the crime because the grand jury and bill of particulars limited the charges to on or about Oct. 26 and evidence did not show two qualifying incidents on that date |
| Whether counsel was ineffective for acquiescing to the amendment and failing to move for directed verdict on Counts 2 and 3 | N/A (State did not concede ineffectiveness) | Trial counsel’s acquiescence was prejudicial | Not reached on the merits: majority found disposition of the amendment issue dispositive and vacated convictions |
| Whether Counts 2 and 3 were allied offenses of similar import (sentencing issue) | N/A | Counts are allied and should not be separately sentenced | Not addressed: court declined to reach remaining assignments after resolving amendment issue |
| Proper standard of review where defendant did not object to amendment (forfeiture/plain error) | Amendment did not prejudice defendant; even if forfeited, no plain error occurred | Defense urged reversal on merits; dissent argued failure to object forfeits all but plain-error review and would affirm under plain-error test | Mixed: majority decided on the merits (finding reversible error), concurring and dissent debated forfeiture/plain-error standards; dissent would have affirmed under forfeiture/plain-error principles |
Key Cases Cited
- State v. Vitale, 96 Ohio App.3d 695 (8th Dist. 1994) (amending indictment to add a different date/range can change identity of the crime and be impermissible)
- State v. Sellards, 17 Ohio St.3d 169 (Ohio 1985) (dates and times are ordinarily not essential elements; some inexactitude acceptable)
- State v. Horner, 126 Ohio St.3d 466 (Ohio 2010) (purpose of indictment is to give notice; must charge with reasonable certainty)
- Russell v. United States, 369 U.S. 749 (U.S. 1962) (defendant must not be convicted on facts not presented to the grand jury)
- State v. Headley, 6 Ohio St.3d 475 (Ohio 1983) (indictment defective if it omits vital elements and cannot be cured)
- State v. Rogers, 143 Ohio St.3d 385 (Ohio 2015) (forfeited error is reviewed for plain error and is reversible only if it affected the outcome)