2016 Ohio 5894
Ohio Ct. App.2016Background
- On Dec. 16, 2015, 12-year-old S.S. testified that Johnny R. Wright called to her off a school bus saying “Hey pretty girl…come here,” and she ran home frightened. Police located Wright that day repeating similar phrases to officers.
- Wright was originally charged in Canton Municipal Court with Child Enticement under R.C. 2905.05(A). The state moved to amend the complaint to R.C. 2905.05(C) before trial; defense moved to dismiss and for a continuance if amendment were allowed.
- The trial court denied the motion to dismiss, granted the state’s motion to amend the charge to subsection (C), and denied a continuance; a jury convicted Wright under subsection (C).
- The trial court sentenced Wright to 120 days jail, costs, and no-contact; it also ordered registration as a child-victim offender, reasoning subsection (C) was identical to (A).
- On appeal Wright raised four assignments: (1) denial of continuance/impermissible amendment, (2) denied Crim.R. 29 motion, (3) erroneous registration requirement under 2905.05(C), (4) unconstitutionality of 2905.05(C).
- The Fifth District found the amendment changed the identity of the offense (adding an "unlawful purpose" element) and therefore was impermissible under Crim.R. 7(D); it reversed and remanded, holding the remaining assignments premature.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Wright) | Held |
|---|---|---|---|
| 1) Whether permitting amendment from R.C. 2905.05(A) to 2905.05(C) was proper / denial of continuance | Amendment was permissible under Crim.R. 7(D); no prejudice shown and crime name unchanged | Amendment altered identity of the crime and prejudiced defense; continuance required | Amendment changed identity (added "unlawful purpose"); amendment impermissible; assignment sustained |
| 2) Sufficiency of evidence / Crim.R. 29 acquittal motion | Evidence (victim testimony, officer observations) supported conviction under amended charge | Evidence insufficient as a matter of law | Not reached (deemed premature after reversal) |
| 3) Whether 2905.05(C) requires sex-offender/child-victim registration | State: subsection (C) requires registration because it is identical to (A) | Wright: (C) does not mirror (A); registration improper | Not reached (premature) |
| 4) Constitutional challenge to 2905.05(C) | State: (C) is constitutional / prosecutes unlawful conduct beyond (A) | Wright: (C) criminalizes protected activity and is unconstitutional as written | Not reached (premature) |
Key Cases Cited
- State v. Sellards, 17 Ohio St.3d 169 (discusses indictment purpose and notice)
- State v. Childs, 88 Ohio St.3d 194 (indictment functions: allege material facts and protect against double jeopardy)
- State v. Romage, 138 Ohio St.3d 390 (declared R.C. 2905.05(A) unconstitutional)
- State v. Fairbanks, 172 Ohio App.3d 766 (explains when amendment changes identity of an offense)
- Wozniak v. State, 172 Ohio St. 517 (establishes that amendments changing identity of offense are reversible error)
- State v. Rihm, 101 Ohio App.3d 626 (amendment that changes identity of offense requires reversal)
- Middletown v. Blevins, 35 Ohio App.3d 65 (same principle regarding impermissible amendments)