State v. O'Brien , 30 Ohio St. 3d 122 ( 1987 )

Wright, J.,

concurring in part and dissenting in part. While I concur in the first paragraph of the syllabus, I cannot agree with the construction and application of Crim. R. 7(D) announced by the majority. I believe the court of appeals correctly reasoned that the omission of the requisite mental state of “recklessness” fatally flawed the indictment. Allowing appellant to “cure” this admitted error permitted the jury to convict the accused on a charge that varied substantially and was essentially different from that upon which the grand jury indicted him. This we should not sanction. The legal requisites of “recklessness” are substantially different from the language used by the grand jury in indicting appellee. In my view, State v. Headley (1983), 6 Ohio St. 3d 475, 6 OBR 526, 453 N.E. 2d 716, resolved this issue and should not be either ignored or overruled. As was stated in Headley at 478-479, 6 OBR at 529-530, 453 N.E. 2d at 720:

“Section 10 of Article I of the Ohio Constitution provides that, ‘* * * no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury * * This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury. Harris v. State (1932), 125 Ohio St. 257, 264. 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. Id.; State v. Wozniak (1961), 172 Ohio St. 517, 520 [18 O.O. 3d 58].

“The essence of this constitutional guarantee is further manifested in Crim. R. 7(D). That rule limits the court’s power to amend the indictment and provides, in part:

“ ‘Amendment of indictment, information or complaint. 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. * * *’ (Emphasis added.)”

The majority opinion concedes that omission of the essential element of “recklessness” made for a defective indictment. The majority correctly holds that R.C. 2919.22(B)(3) is not a strict liability offense but treats the omission of an essential element of the indictment as merely a failure of “best practice.” I am satisfied that the “best practice” is to meet requisite constitutional requirements. The effect of today’s decision is to render meaningless much of the constitutional function of the grand jury. Thus, I must respectfully dissent.

Locher, J., concurs in the foregoing opinion.