State v. FairbanksState v. Fairbanks
{¶ 1} Defendant-appellant, Wayne A. Fairbanks, appeals his conviction from the Fayette County Court of Common Pleas for intimidation of a witness.
{¶ 2} Appellant was charged with two counts of
{¶ 4} Bartram and Browning testified at trial that they had stopped by appellant’s home in March 2005 and told him that the police had “caught” them for the check-writing scheme and that they were talking with law enforcement. Both indicated that appellant had waved a small handgun around and had threatened them. Bartram testified that appellant told them that if they “snitched,” they would be shot. Browning indicated that appellant told her that no one “better tell on him,” and he pushed her out the door.
{¶ 5} Appellant was indicted on two counts of intimidation. The caption portion of the indictment indicated: “INDICTMENT CHARGING: INTIMIDATION OF A WITNESS, in violation of O.
{¶ 6} “On or about March 8, 2005, and in Fayette County, Ohio, the Defendant did knowingly attempt to influence, intimidate or hinder [Bartram and Browning], a witness involved in a criminal action or proceeding in discharge of the duties of the witness, in violation of
{¶ 7}
{¶ 8}
{¶ 9} Before opening statements to the jury on the day of trial, the state asked to amend the indictment to include the “force or unlawful threat of harm” language. The state also asked to amend the bill of particulars to reflect the same language change.
1
Appellant’s objection was noted for the record, but the actual objection was not made part of the record. The trial court granted the
{¶ 10} The trial proceeded, and appellant was convicted of both felony charges. Appellant now presents three assignments of error on appeal for our review.
{¶ 11} Assignment of Error No. 1:
{¶ 12} “The trial court abused its discretion by permitting an amendment to the indictment and to the bill of particulars on the morning of the trial.”
{¶ 13} Section 10, Article I of the Ohio Constitution states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury.”
{¶ 14} This provision in the Ohio Constitution ensures the accused that the essential facts constituting the offense for which he is on trial will be found in the indictment issued by the grand jury.
State v. Kittle,
Athens App. No. 04CA41,
{¶ 15} An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge against which he must defend, and enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense.
Hamling v. United States
(1974),
{¶ 16}
{¶ 17} An amendment to the indictment that changes the name or identity of the crime is unlawful whether or not the defendant was granted a continuance to prepare for trial; further, a defendant need not demonstrate that he suffered any prejudice as a result of the forbidden amendment.
Middletown v. Blevins
(1987),
{¶ 18} It appears that a determination of what constitutes a change in the name or identity of the crime can prove problematical. See, e.g.,
State v. Davis,
Highland App. No. 06CA26,
{¶ 19} Under
{¶ 20} Where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court, as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury.
Kittle,
{¶21} An amendment that effectively increases the severity of the charged offense changes the identity of the offense and, consequently, is prohibited by
{¶ 22} A bill of particulars has a limited purpose to elucidate the conduct of the defendant alleged to constitute the charged offense.
State v. Miller
(1989),
{¶ 23} We have reviewed the indictment and amendment to the indictment and find appellant’s assignment of error well taken. The amendment granted by the trial court was a change in the identity of the crime for which appellant was indicted by the grand jury. 2
{¶ 24} We are aware that the caption or heading of the indictment listed the felony subsection and indicated that the charge was a felony of the third degree. However, the text or body of the indictment did not list the level of the offense or the specific statutory subsection, and most importantly, contained no “force or unlawful threat of harm” element to constitute the felony charge. Cf.
State v. Lewis
(Feb. 7, 1994), Stark App. No. 9393,
{¶ 25} The grand jury indicted appellant for two counts that did not involve the use of force or unlawful threat of harm. By later adding the essential element of “force or unlawful threat of force,” the level of the offense was increased from a misdemeanor to a felony. It appears that the amendment permitted a procedure in which the trial court convicted the accused on a charge essentially different from that found by the grand jury. Appellant’s first assignment of error is sustained.
{¶ 26} Assignment of Error No. 2:
{¶27} “The trial court erred by overruling the defendant’s Rule 29 motion for acquittal, as co-defendants are not statutory equivalent of witnesses under the Ohio Revised Code.”
{¶ 29} Appellant apparently argues that the state could not prove that Bartram and Browning were witnesses at the time they were allegedly intimidated because they were suspects or co-defendants and not witnesses until the alleged act of intimidation occurred.
{¶ 30} Appellant cites the definition of “witness” in Black’s Law Dictionary to include “one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. One who is called to testify before a court. One who testifies to what he has seen, heard, or otherwise observed.” Black’s Law Dictionary (6th Ed.1990) 1603.
{¶31} The criminal charge at issue states that no person shall knowingly attempt to intimidate or hinder a -witness involved in a criminal action or proceeding in discharge of the duties of the witness. See
{¶ 32} Browning and Bartram both testified about their conversations with law enforcement and their participation in the police investigation, as well as the events leading to the charges. Evidence was presented that appellant knew that Browning and Bartram had knowledge about appellant’s alleged participation in the scheme and were meeting and talking with police.
{¶ 33} We hold that the trial court did not err in overruling appellant’s
{¶ 34} Assignment of Error No. 3:
{¶ 35} “R.C. statute is void for vagueness on the meaning of ‘discharge of his or her duties’ as a -witness and whether ‘discharge of his or her duties’ constitutes a necessary element of the offense of intimidation of a witness.”
{¶ 37} A review of the record indicates that appellant never raised the constitutionality of the statute with the trial court. An appellate court will not consider any error that counsel for the complaining party could have called to the attention of the lower court at a time when that alleged error could have been avoided or corrected by the lower court.
State v. Awan
(1986),
{¶ 38} We decline to exercise our discretion to consider this issue that was not raised in the court below. See, e.g.,
State v. Davis
(June 2, 1988), Franklin App. No. 87AP-1111,
{¶ 39} The judgment is reversed, and the cause is remanded to the trial court for further proceedings in accordance with the law and this opinion.
Judgment reversed and cause remanded.
Notes
. The trial court noted that a bill of particulars was not located in the case file. Both counsel and the trial judge discussed on the record a bill of particulars that the state asserted it had previously provided to appellant. No bill of particulars was provided to this court.
. As we previously stated, the bill of particulars, while not presented to this court, apparently also omitted the language at issue and was amended at the same time as the indictment, and, therefore, the bill of particulars exacerbated the concerns raised in this assignment of error.
. Though it was not cited by the parties, we are aware of this court’s decision in
State v. Smith
(1983),