State v. DavisState v. Davis
{¶1} Michael Davis appeals his conviction for second-degree aggravated trafficking in drugs. He asserts that the trial court erred by permitting the state to amend the original indictment from a fourth-degree felony to a second-degree felony as the amendment changed the identity of the offense. We agree. The amendment‘s increase in the degree of the offense changed its identity in violation of
I. FACTS
{¶3} The Highland County grand jury returned a thirty-three count indictment that named eleven defendants, including Davis. The indictment charged Davis with: (1) engaging in a pattern of corrupt activity, in violation of
{¶4} Count Fifteen, one of the aggravated trafficking offenses, charged:
On or about February 21, 2005 and February 26, 2005, and in Highland County, Ohio and as part of a course of criminal conduct in Fayette, Ross and other counties, Charles R. Davis, Michael A. Davis and Charles Davis Motor Sales, Inc. did knowingly sell or offer to sell Oxycontin, a schedule II controlled substance in an amount less than the bulk amount, to wit: approximately 7.2 grams, in violation of
R.C. 2925.03(A)(1) * * *.
{¶5} The court subsequently granted the state‘s motion to amend count fifteen of the indictment to read:
On or about February 21, 2005 and February 26, 2006, [sic] and in Highland County, Ohio and as a part of a course of criminal conduct, Michael A. Davis and Charles R. Davis and Charles Davis Motor Sales, Inc. did knowingly sell or offer to sell Oxycontin, a schedule II controlled substance in an amount greater than five times the bulk amount but less than fifty times the bulk amount, in violation of
R.C. 2925.03(A)(1) * * *.
{¶7} After the jury returned its verdict, Davis filed a motion for acquittal under
II. ASSIGNMENTS OF ERROR
{¶8} In his appeal, Davis raises the following assignments of error.
First Assignment of Error:
The trial court erred when it permitted the amendment of Count Fifteen, aggravated trafficking in drugs which elevated the offense from a felony of the fourth degree to a felony of the second degree.Second Assignment of Error: The trial court erred in overruling defendant-appellant‘s motion to set aside the jury verdict.
Third Assignment of Error: Appellant was denied effective assistance of counsel under Article I, Sections 10 and 16 of the Ohio Constitution and the Sixth Amendment to the United States Constitution.
III. AMENDMENT OF INDICTMENT
{¶9} We find Davis‘s first assignment of error dispositive of his appeal. There, Davis argues that the trial court erred by permitting the state to amend count fifteen of the indictment. He asserts that amending the indictment from a fourth-degree felony aggravated trafficking offense to a second-degree felony aggravated trafficking offense violated his Fifth Amendment right to be indicted by a grand jury.
{¶10} Because Davis failed to object to the amendment of the indictment, he has waived all but plain error. See
{¶11} We have previously recognized an amendment to an indictment that violates
B. GENERAL PRINCIPLES GOVERNING AMENDMENTS OF INDICTMENTS
{¶12} Although Davis frames this as a Fifth Amendment issue under the United States Constitution, the United States Supreme Court has not found that amendment applicable to the states through the Fourteenth Amendment. See Ring v. Arizona (2002), 536 U.S. 584, 597, fn.4, 122 S.Ct. 2428, 153 L.Ed.2d 556 (stating that the Fourteenth Amendment has not been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury), quoting Apprendi v. New Jersey (2000), 530 U.S. 466, 477, fn.3, 120 S.Ct. 2348, 147
{¶13}
{¶14} By specifying when a court may permit an amendment to an indictment,
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant‘s motion, if a jury has been impanelled, and to a reasonable continuance, unless it
clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant‘s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. Where a jury is discharged under this division, jeopardy shall not attach to the offense charged in the amended indictment, information, or complaint. No action of the court in refusing a continuance or postponement under this division is reviewable except after motion to grant a new trial therefore is refused by the trial court, and no appeal based upon such action of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justice resulted.
{¶15} Thus, the rule permits most amendments but flatly prohibits amendments that change the name or identity of the crime charged. See State v. Kittle, Athens 04CA41, 2005-Ohio-3198, at ¶12, citing State v. O‘Brien (1987), 30 Ohio St.3d 122, 126, 508 N.E.2d 144, which approved an amendment that added an essential element to the charge. But, a trial court commits reversible error when it permits any amendment that changes the name or identity of the offense charged. Kittle; State v. Smith, Franklin App. No. 03AP1157, 2004-Ohio-4786, at ¶10; see also, State v. Headley (1983), 6 Ohio St.3d 475, 478-479, 453 N.E.2d 716. Whether an amendment changes the name or identity of the crime charged is a matter of law. Kittle; see, also, State v. Cooper (June 25, 1998), Ross App. No. 97CA2326, citing State v. Jackson (1992), 78 Ohio App.3d 479, 605 N.E.2d 426. Hence, we review this question de novo. Kittle.
{¶16} Here, the name of the offense remained the same: aggravated trafficking in drugs. The question we must resolve is whether elevating the degree of the offense from a fourth-degree felony to a second-degree felony changed the identity of the offense. As one court has noted, [t]he issue is not
C. INCREASE IN DEGREE OR SEVERITY
{¶17} The Supreme Court of Ohio has indicated an amendment that changes neither the degree nor the severity of an offense does not change the identity of the offense. See State v. O‘Brien (1987), 30 Ohio St.3d 122, 126-127, 508 N.E.2d 144, which concluded that amending indictment to include the essential mens rea element of recklessness did not change the identity of the offense. The court held the identity of this crime was not changed by the addition * * * to the indictment. Neither the penalty nor the degree of the offense was changed as a result of the amendment. See, generally, State v. Martin, Brown App. No. CA2003-09-011, 2004-Ohio-4309, at ¶24; State v. Smith, Franklin App. No. 03AP1157, 2004-Ohio-4786, at ¶11; State v. Daughenbaugh, Seneca App. No. 13-04-11, 2004-Ohio-4528, at 9; State v. Hickman, Summit App. No. 20883, 2002-Ohio-3406, at ¶43; State v. Waites (Dec. 20, 1996), Lake App. No. 93-L-009; State v. Finn (Apr. 29, 1994), Montgomery App. No. 14096; State v. Head (Nov. 21, 1991), Cuyahoga App. No. 59367 (all noting that the amendment did not increase the degree of the offense).
{¶18} While the court in O‘Brien stated its conclusion in the negative, we believe it can fairly be construed to mean an amendment that increases the
In this case, [the defendant] was charged under
R.C. 2925.03 , relating to trafficking in drugs. Generally, that statute prohibits the selling, distribution, production or possession of certain controlled substances, or drugs, for certain purposes. The severity of the offense is dependent upon the type of drug involved. UnderR.C. 2925.03(C) , the offense is aggravated trafficking if the substance involved is a Schedule I drug, with the exception of marijuana, or a Schedule II drug. UnderR.C. 2925.03(D) , if the substance involved is a Schedule III, IV or V drug, the offense is the lesser one of trafficking in drugs.Under this analysis, it is evident that
R.C. 2925.03 sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved. As such, the type of controlled substance involved constitutes an essential element of the crime which must be included in the indictment. The omission of that information cannot be cured by amendment, as to do so would change the very identity of the offense charged.(Emphasis supplied)
Id. at 479.
{¶19} However, in a case somewhat analogous to ours, one appellate court determined that amending the indictment to change the amount of drugs involved did not change the identity of the offense. See State v. Durr (July 28, 2000), Sandusky S-97-056, where the original indictment charged:
On or about December 13, 1996, in the vicinity of North Front and Milton Streets, Fremont, Sandusky County, Ohio, the
defendant did knowingly obtain, possess or use a controlled substance, to wit: 5.2 grams of Crack Cocaine, a Schedule II drug.
The indictment further alleged that the offense was in violation of
{¶20} Here, the state changed the indictment to charge a greater amount of drugs was involved, which consequently elevated the degree of the offense from a fourth-degree felony to a second-degree felony. Generally, a violation of
{¶21} The state nevertheless asserts that under State v. Smith (1983), 14 Ohio App.3d 366, 471 N.E.2d 795, the amendment did not change the name or identity of the offense. In that case, the court held that an amendment to an
{¶22} The appellate court framed the issue as whether in a complicity indictment the addition of the amount sold or offered to be sold by the principal constitutes a change in the name or identity of the crime charged. Id. at 368. The court concluded Headley was not controlling because it involved the type of drug, whereas the Smith indictment involved the amount of a previously specified drug. The court stated that the degree of the offense or severity of the penalty does not necessarily control the question of a change in the name or identity of the crime or whether a material element has been omitted. Id. at 369.
{¶23} We choose not to follow Smith as it pre-dates subsequent Ohio Supreme Court and intermediate appellate court cases interpreting Headley, and in our opinion, it runs counter to those subsequent cases. As O‘Brien (decided
E. CONCLUSION
{¶24} Under
{¶25} Because
JUDGMENT REVERSED
AND CAUSE REMANDED.
It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that the Appellant recover of Appellee costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion as to Assignments of Error I & III; Dissents as to Assignment of Error II.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.