State v. SloaneState v. Sloane
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 02 CR 311
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. J. Dean Carro Appellate Review Office University of Akron School of Law Akron, Ohio 44325-2901
JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro
{¶1} Appellant, Alfie T. Sloane, appeals his conviсtion on six counts of rape, in violation of
{¶2} His victims were his stepdaughter, T.W., who was between the ages of eight and nine at all times relevant to the superseding indictment, and three of her friends who regularly spent the night at Appellant’s home: T.P., who was between the ages of six and seven at all times relevant to the superseding indictment, (Trial Tr., p. 18), A.S., who was between the ages of eight and nine at all times relevant to the superseding indictment, and A.S.’s sister, B.G., who was between the ages of four and five at all times relevant to the superseding indictment. Appellant received a mandatory sentence of life imprisonment based upon the jury’s additional findings that he used force or the threat of force in committing the rape crimes.
{¶3} In addition to the rape and gross sexual imposition charges, Appellant was also charged with four counts of disseminating matter harmful to juveniles in violation of
{¶4} After Appellant executed a valid waiver of his speedy trial rights, the state filed a superseding indictment charging him with the same crimes, except that the displaying material harmful to juveniles charges were replacеd with disseminating material harmful to juveniles charges. Counts One though Four of the superseding indictment charged that Appellant did, “directly sell, deliver, furnish, disseminate, provide, exhibit, rent or present to a juvenile * * * any material or performance that is obscene or harmful to juveniles.” (4/6/06 Superseding Indictment, Counts One through Four.)
{¶5} The superseding indictment also added language to the rape and gross sexual imposition charges. The original indictment failed to spеcifically charge that Appellant was not the spouse of his victims, which is an essential element of those crimes. In addition to the required statutory language, the superseding indictment also added a list of aliases used by Appellant, and indicated that each of the victims was under ten years of age when the crimes were committed.
{¶6} Appellant filed a motion to dismiss the superseding indictment, arguing that the original indictment was defective, and as a consequence, void. Appellant reasoned that the waiver of his speedy trial rights was likewise a nullity and should not apply to the superseding indictment. Appellant further argued that the charges in the superseding indictment were distinct from the charges in the original indictment,
{¶7} Relying on our decision in State v. Clark, 7th Dist. No. 04MA246, 2006-Ohio-1155, the trial court dismissed the disseminating matters harmful to juveniles charges, but denied the motion with respect to the rape and gross sexual imposition charges. In Clark, we held that a defendant’s speedy trial waiver applies to a superseding indictment where the superseding indictment does not change the charged offenses or add any additional charges. Id. at ¶18.
{¶8} In his first assignment of error, Appellant challenges the trial court’s denial of his motion to dismiss the rape and gross sexual imposition charges. Appellant contends that the original indictment actually charged him with importuning, not rape, and, therefore, the rape charges in the superseding indictment are distinct charges to which his speedy trial waiver should not apply.
{¶9} In his second and third assignments of error, Appellant argues that there was insufficient evidence to establish that he purposely compelled A.S. to submit to rape through force or threat of force. Therefore, he should not have been subject tо the sentencing enhancement in
PROCEDURAL HISTORY
{¶11} Appellant’s counsel, both in his brief and in his oral argument, underscored the fact that four years passed between the original indictment and the jury trial in this case. A brief review of the procedural history of this case is informative. The original indictment in this case was filed on April 25, 2002. On June 5, 2002, Appellant filed the first of his four motions to evaluate his competency to stand trial. The trial court granted the motion, and, following a hearing conducted on October 7, 2002, the trial court concluded that Appellant was not competent to stand trial. As a consequence, Appellant was transferred to Northcoast Behavioral Healthcare System for treatment.
{¶12} Appellant filed a motion for a second evaluation on March 10, 2003, indicating in the motion that a physician at Northcoast had informed the trial court by letter the previous month that Appellant was competent to stand trial. At a hearing conducted on March 19, 2003, the parties stipulated to the physician’s report referred to in the motion, and the trial court concluded that Appellant was competent to stand trial. (3/19/03 J.E., p. 1.) In the judgment entry memorializing the competency hearing, Appellant was granted leave to amend his plea to not guilty and not guilty by reason of insanity, and a sanity evaluation was ordered by the trial court.
{¶14} On March 12, 2004, Appellant filed a motion to withdraw his guilty plea, and his trial counsel filed a motion to withdraw. Appellаnt requested his fourth and final competency evaluation on June 1, 2004. The trial court granted his motion and, at a hearing concluded on July 27, 2004, the parties stipulated to Appellant’s competency to stand trial. On August 10, 2004, another attorney was appointed to replace Appellant’s original trial counsel.
{¶15} On November 23, 2004, the trial court permitted Appellant to withdraw his guilty plea, and he entered a valid waiver of his speedy trial rights. On that sаme date, a pre-trial conference was scheduled for December 22, 2004. On February 11, 2005, after the pretrial conference had been continued twice at Appellant’s request, the trial court scheduled the trial for June 8, 2005.
{¶16} Over the course of the next ten months, the trial was continued three times, twice based upon joint requests of the parties (to October 3, 2005 and December 5, 2005), and once upon a motion to continue filed by Apрellant (to April 3, 2006).
{¶18} On April 6, 2006, the state filed the superseding indictment. Two months later, on June 6, 2006, Appellant filed his motion to dismiss the superseding indictment. On June 14, 2006, the trial court granted the state’s unopposed motion to continue the trial to August 7, 2006. Prior to empanelling a jury on August 7, 2006, the trial court stated on the record that it was denying the motion to dismiss on the rape and gross sexual imposition charges pursuant to our holding in Clark, supra.
{¶19} The charges at issue in this appeal allege crimes committed between January 1, 2000, and December 31, 2000. As a consequencе, the following version of
{¶20} “2907.02 RAPE; EVIDENCE; MARRIAGE OR COHABITATION NOT DEFENSES TO RAPE CHARGES
{¶21} “(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
{¶22} “* * *
{¶23} “(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
{¶25} “(B) Whoever violates this section is guilty of rape, a felony of thе first degree. * * * If the offender under division (A)(1)(b) of this section purposely compels the victim to submit by force or threat of force, whoever violates division (A)(1)(b) of this section shall be imprisoned for life.”
{¶26} The trial court appears to have applied a later version of
ASSIGNMENT OF ERROR I
{¶27} “THE TRIAL COURT DEPRIVED APPELLANT SLOANE OF HIS CONSTITUTION [sic] RIGHT TO A SPEEDY TRIAL, UNDER THE SIXTH AMENDMENT, AND HIS STATUTORY RIGHT TO A SPEEDY TRIAL, UNDER
{¶29} Appellant’s argument in his first assignment of error turns on the failure of the original indictment to include statutory language that statеs that the victims of the rape and gross sexual imposition charges in this case were “not the spouse of the offender.” Appellant argues that, because the original indictment omitted the required statutory language, he was actually charged with importuning, in violation of
{¶30} In Adams, the defendant was charged with a violation of
{¶31} The state argued that the charges in the original indictment and the superseding indictment were substantially similar, in that they were derived from the same statute and generally involved the same conduct. However, Adams successfully argued that his waiver, as applied to the subsequent charges, was not knowingly, voluntarily and intelligently made because the subsequent charges were “distinct” from the original charges and could have, “involve[d] different defenses at the time of trial.” Id. at 69, 538 N.E.2d 1025. The Ohio Supreme Court held that the application of Adams’ waiver to the charges in the superseding indictment violated his due process rights because he did not know, “the exact nature of the crime he [was] charged with,” when he executed the waiver. Id. at 70, 538 N.E.2d 1025.
{¶32} We undertook an analysis of the rule announced in Adams in Clark, supra. In that case, the original indictment charged Clark with rape and gross sexual imposition, but did not include the statutory language that he purposely compelled his victim to submit by force or threat of force. Id. at ¶8. Although the original indictment omitted the statutory language, the indictment twiсe stated that Clark was facing life imprisonment as a penalty for the crimes charged. Clark waived his speedy trial rights, then, approximately one year later, the state filed a superseding indictment that included the missing statutory language.
{¶33} Citing Adams, supra, Clark argued that the new language changed the potential punishment that he faced. Id. at ¶16. However, we concluded that Clark
{¶34} At oral argument in the case sub judice, Appellant’s counsel asserted that the original indictment in this case was distinguishable from the original indictment in Clark, because the original indictment in this case was defective. In other words, the original indictment in Clark could have survived a motion to dismiss, because the missing language in that case involved a sentencing enhancement rather than an essential element of the crime. To the extent that the original indictment in the case sub judice was void, so too, Appellant argues, was his speedy trial waiver based on that indictment.
{¶35} Appellant premises his argument on a Supreme Court of Ohio case that stands for the rule that, “[a] judgment of conviction based on an indictment which does not charge an offense is void for lack of jurisdiction of the subject matter and may be successfully attacked * * * on direct appeal to a reviewing court * * *.” State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416, paragraph six of the syllabus. In Cimpritz, the Supreme Court of Ohio affirmed a decision reversing an attempted burglary conviction, because the indictment did not state that Cimpritz acted “maliciously and forcibly” when he attempted to break and enter. Because intent was an essential element of the crime of attempted burglary, the Supreme Court concluded that the indictment was void.
{¶37} Eight years later in State v. Wozniak (1961), 172 Ohio St. 517, 178 N.E.2d 800, the Supreme Court of Ohio affirmed an appellate court decision reversing an attempted burglary conviction because the trial court had permitted the state to amend the indictment to include the essential element of intent. Contrary to its earlier holding in Cimpritz, the Wozniak Court conceded that the curative statutory provisions cited in that case, standing alone, might have required reversal of the appellate court’s decision. The Court chose instead to predicate its decision on
{¶39} Of equal significance, the Supreme Court of Ohio appears to have abandoned the strict rule announced in Wozniak, supra, in favor of a broader rule premised upon notice and prejudice. In State v. O’Brien (1987), 30 Ohio St.3d 122, 508 N.E.2d 144, the Court reinstated a child endangerment conviction despite the fact that the trial court had permitted the state to amend the indictment, prior to empanelling the jury, to include the essential element of recklessness. Although the appellate court concluded that the amendment allowed the jury to convict the accused on a charge essentially different from the charge for which he was indicted, the Supreme Court held that the amendment was, nonetheless, authorized by
{¶40}
{¶41} “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
{¶42} Applying
{¶43} Second, because adding an essential elemеnt constituted an amendment to the substance of the indictment, the Court examined the procedural and substantive history of the case to determine whether O’Brien was misled or prejudiced by the amendment. The Court concluded that O’Brien had notice of both the offense and the applicable statute, and knowledge of the appropriate mental state, which was evidenced by his continuing efforts, before and during trial, to seek a dismissal оf the indictment based upon the deficiency. Id.
{¶45} The O’Brien Court distinguished its prior opinion in Headley writing, “[i]n the case before us, [the defendant] was charged with the crime of endangering children. Failure to include the element of ‘recklessness’ in an indictment for endangering children in no way alters eithеr the name, identity or severity of the offense charged.” Id. at 127, 508 N.E.2d 144. The O’Brien Court ultimately held that, “an indictment which does not contain all the essential elements of an offense may be amended to include the omitted element, if the name or the identity of the crime is not changed, and the accused has not been misled or prejudiced by the omission of such element from the indictment.” Id. at 127-128, 508 N.E.2d 144.
{¶47} In the сase sub judice, there is no question that Appellant had notice that he was being charged with rape and gross sexual imposition. First, the addition of the “not the spouse of the offender” language did not change the name, identity, or the penalty of the crimes charged in the original indictment, which were clearly identified as rape and gross sexual imposition. Second, although the amendment was substantive in nature, Appellant cannot demonstrate that he was misled or suffered prejudice as a result of the amendment.
{¶48} The rape and gross sexual imposition charges were listed in the caption of the original indictment, and the statutory sections were clearly identified in each individual count. Moreover, a review of the procedural and substantive history of the case reveals that Appellant actually pleaded guilty to all of the rape charges (later withdrawing his plea), and specifically listed the rape and gross sexual imposition