State v. FicklinState v. Ficklin
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-513660
ATTORNEY FOR APPELLANT
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Aaron Brockler
Katherine Mullin
Mary Court Weston
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, David Ficklin, entered a no contest plea to, among other counts, burglary. The indictment originally charged Ficklin with a single count of burglary under
{¶ 2} Ficklin argues that the “and/or” language of the indictment was so duplicitous that it cannot be ascertained whether a sufficient number of grand jurors found probable cause to believe that he had committed one individual crime. In other words, he claims that the existence of two different degrees of felony charged within a single count made it possible for the nine grand jurors to differ on the subject of probable cause for each felony; for example, five jurors could have found probable cause to believe he
{¶ 3} An indictment is characterized as “duplicitous” if it joins two or more distinct crimes in a single count. United States v. Aracri (C.A.2, 1992), 968 F.2d 1512, 1518; State v. Moore, Cuyahoga App. No. 80416, 2003-Ohio-1154, at ¶43. Duplicitous indictments create uncertainty as to whether the defendant‘s conviction was based on a unanimous jury decision. United States v. Savoires (C.A.6, 2005), 430 F.3d 376, 377 (count of indictment fatally duplicitous because it “cast substantial doubt on whether the defendant was unanimously convicted“). Duplicity in an indictment is not fatal, however, if the state chooses “either the count or charge within the count upon which it will rely.” United States v. Hood (C.A.6, 2000), 210 F.3d 660, 663.
{¶ 4} The vehicle for choosing which count of a duplicitous indictment upon which the state intends to rely is
{¶ 5} Ficklin argues that the court should not have allowed the state to amend the indictment because the “and/or” language of the indictment left the court with no way of knowing which offense the grand jury meant to charge: the second or third degree felony.
{¶ 6} The return of an indictment by the grand jury is prima facie evidence of probable cause. Deoma v. Shaker Hts. (1990), 68 Ohio App.3d 72, 77. Even though there were two different degrees of felony listed in the single count, the return of the indictment necessarily meant that the grand jury had probable cause to find that both degrees of felony had been committed. The “and/or” language proves the point: had the grand jury been undecided on what degree of felony Ficklin had committed under
{¶ 7} Admittedly, the use of “and/or” is awkward. “And/or” has been criticized as “[a] device, or shortcut, that damages a sentence and often leads to confusion or ambiguity.” Strunk and White, Elements of Style (3d.Ed. 1979) 40. See, also, Raine v. Drasin (1981), 621 S.W.2d 895, 905 (Lukowsky, J., dissenting) (criticizing “and/or” as a “much condemned conjunctive-disjunctive crutch of sloppy thinkers“). The better practice is for the state to list each offense as a separate count in the indictment. But its failure to do so in this case does not inexorably lead to the conclusion that the grand jury did not find probable cause to believe that Ficklin committed burglary in violation of
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, JUDGE
COLLEEN CONWAY COONEY, A.J., CONCURS
KENNETH A. ROCCO, J., DISSENTS WITH SEPARATE OPINION
{¶ 8} I respectfully disagree with the majority opinion‘s disposition of Ficklin‘s assignment of error.
{¶ 9} The trial court‘s decision in this case, in essence, permitted the state to “reindict” him on Count 3 to a more serious offense without the necessity of pursuing the grand jury process. Since the trial court thereby forced him into this situation, Ficklin had no choice but to enter a no contest plea.
{¶ 10} “Duplicity,” as the term is used with regard to criminal charges, is the joinder of two or more distinct offenses in one count. State v. Moore, Cuyahoga App. No. 80416, 2003-Ohio-1154, at ¶43, citing State v. Johnson (1960), 112 Ohio App. 124, 127. “The test of duplicity is whether the proof of one offense will tend to establish guilt of the other.” (Emphasis added.) Id.; cf., State v. Minifee, Cuyahoga App. No. 91017, 2009-Ohio-3089, at ¶57.
{¶ 11} In this case, the caption of Count 3 indicated Ficklin was charged with two distinct subsections of the burglary statute, viz., (A)(2) “and/or” (A)(3). Subsection (A)(2) contains an additional element, viz., “when a person other than an accomplice * * * is present or likely to be present,” therefore, subsection (A)(3) is a lesser included offense. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974. Proof of one subsection clearly tends to establish proof of the other.
{¶ 12} This particular use of “and/or” in a single count presents a problem. Although an indictment “may allege conjunctively the offense to have been committed in more than one way,” it may do so only when the “statute states a number of ways disjunctively in which an offense may be committed, and the same punishment is prescribed for the crime regardless of whether it is committed in one or all of the ways named.” (Emphasis added.) State v. Moore, at ¶44.
{¶ 13} Obviously, a lesser included offense prescribes a lesser penalty. Count 3 alleged Ficklin committed burglary, but, in using “and/or,” failed to specify precisely which particular way he committed burglary; one type
{¶ 14}
{¶ 15}
{¶ 16} “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 [App. No.] 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. [Citations omitted.] * * *.” Id. at ¶15.
{¶ 18} “As the Supreme Court of Ohio made clear in Headley, the identity of a crime is changed where an amendment purports to add an element that results in subjecting the defendant to a more serious penalty.” (Emphasis added.) State v. Pepka, Lake App. No. 2008-L-016, 2009-Ohio-1440, at ¶31.
{¶ 19} The state argues that since Count 3 charged Ficklin with violating both sections of the burglary statute, the crime itself was not changed by the trial court‘s amendment. To paraphrase the court in Pepka, the problem with the state‘s argument is that there is no way to tell, from the face of the unamended indictment, whether a majority of the grand jurors agreed that Ficklin committed the higher degree of the offense. Id. at ¶32. See, also, State v. Fairbanks, 172 Ohio App.3d 766, 2007-Ohio-4117. They merely indicated he committed one “and/or” the other.
{¶ 20} “In State v. Colon [118 Ohio St.3d 26, 2008-Ohio-1624], the Supreme Court of Ohio emphatically reiterated that a defendant‘s
{¶ 21} From the foregoing, it can be gleaned that when a count contains both an offense and its lesser included offense, the indictment is defective. Whether the trial court has the authority to amend such an indictment to eliminate duplicity depends on whether
{¶ 22} In this case, the trial court permitted the state to eliminate the lesser-included offense. However, while the majority opinion finds no difficulty with that action, the grand jury did not specify that in Count 3 that it found Ficklin committed a violation of
{¶ 24} Ficklin had a constitutional right to be indicted by the grand jury. In my opinion, by eliminating the lesser included offense, the trial court erred.
{¶ 25} The record reflects that although Ficklin objected to the amendment, and moved for a dismissal of the indictment, he indicated to the court he would accede to an amendment of the indictment to charge only the lesser offense. Had the trial court followed this course, the remedy would have been appropriate. Pepka, supra. See, also, State v. Hous, Greene App. No. 02CA116, 2004-Ohio-666; State v. Hayes, Mahoning App. No. 07-MA-134, 2008-Ohio-4813. This would have been in accord with the “rule of lenity.”
{¶ 26} The trial court, however, instead eliminated the language that charged Ficklin with committing a violation of the lesser included offense,