State v. Childs , 88 Ohio St. 3d 194 ( 2000 )

Moyer, C.J.

The issue presented in this appeal is whether an indictment for conspiracy pursuant to R.C. 2923.01, which fails to allege at least one specific, substantial, overt act in furtherance of the conspiracy, is fatally defective for such failure. For the reasons stated in this opinion, we answer that question in the affirmative.

Childs was convicted of conspiracy to commit aggravated trafficking in violation of R.C. 2923.01(A)(2) and (former) 2925.03(A)(2). R.C. 2923.01(B) describes the crime of conspiracy. This section of the Revised Code provides:

“No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by the accused or a person with whom the accused conspired, subsequent to the accused’s entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed.” (Emphasis added.)

Count fourteen of the indictment, charging Childs with conspiracy to commit aggravated trafficking, alleges that Childs and various other conspirators:

“[B]etween the dates of December 2, 1993 and February 13, 1995, in the County of Montgomery, aforesaid, and State of Ohio, with purpose to commit, or to promote or facilitate the commission of Aggravated Trafficking, a violation of Section 2925.03(A)(2) of the Revised Code, did agree with another person or persons that one (1) or more of them would engage in conduct that facilitated the commission of any such offense, and that subsequent to each defendant’s entrance into said conspiracy, a substantial overt act was done by each defendant or a person with whom they conspired; contrary to the form of the statute (in violation of Section 2923.01(A)(2) of the Ohio Revised Code).”

This indictment does include language asserting that Childs or one of his co-conspirators performed a substantial, overt act after his or her entrance into the conspiracy. However, while the indictment does allege that “a substantial overt act was done by each defendant or a person with whom they conspired,” it does not specifically detail any overt act done in furtherance of the conspiracy. Instead, the phrase “a substantial overt act was done” merely recites the generic words of the statute. The words of the indictment are little more than a recitation of the words of R.C. 2923.01(B), which defines the crime of conspiracy.

In addition to the indictment, Childs was furnished with a bill of particulars. This bill of particulars does, in fact, set forth the nature of the charges against Childs and the specific conduct constituting the crimes with which he was charged. The state asserts that the indictment, when read in conjunction with the bill of particulars, is sufficient to enable Childs to prepare a defense and that it is sufficient to support Childs’s conviction for conspiracy to commit aggravated trafficking.' We agree with the court of appeals that it is not.

Section 10, Article I of the Ohio Constitution provides:

“[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.”

A criminal indictment serves several purposes. First, by identifying and defining the offenses of which the individual is accused, the indictment serves to protect the individual from future prosecutions for the same offense. State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 411, 478 N.E.2d 781, 783-784. In addition, the indictment compels the government to aver all material facts constituting the essential elements of an offense, thus affording the accused adequate notice and an opportunity to defend. Id. at 170, 17 OBR at 411, 478 N.E.2d at 783.

The state contends that, despite the fact that the indictment in this case failed to specify a substantial, overt act done in furtherance of the crime, Childs was afforded the notice necessary to allow him to prepare an adequate defense because the bill of particulars set forth specifically the nature of the charges against him and the conduct constituting those offenses. However, the bill of particulars is not signed by the grand jury foreman, and there is no evidence that the material contained in the bill of particulars was ever presented to the grand jury.

“ ‘The material and essential facts constituting an offense are found by the presentment of the grand jury; and if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.’ ” State v. Wozniak (1961), 172 Ohio St. 517, 521, 18 O.O.2d 58, 60, 178 N.E.2d 800, 803, quoting Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104, 106.

Generally, the requirements of an indictment may be met by reciting the language of the criminal statute. See State v. Murphy (1992), 65 Ohio St.3d 554, 583, 605 N.E.2d 884, 907. In Murphy, this court rejected the appellant’s proposition that the indictment was defective because it failed to identify the precise type of conduct by which he violated R.C. 2911.01 (aggravated robbery), and 2911.11 (aggravated burglary). Citing State v. Landrum (1990), 53 Ohio St.3d 107, 119, 559 N.E.2d 710, 724, we held that an indictment using the words of the applicable statute was sufficient to charge a defendant with these crimes. However, in this case, the plain words of the statute defining the crime of conspiracy can produce only one conclusion: an indictment for conspiracy requires more than a mere recitation of the exact wording of the statute defining the offense of conspiracy.

R.C. 2923.01(B) provides that no person shall be convicted of the crime of conspiracy unless a substantial overt act is “alleged and proved.” Clearly, this section of the Revised Code requires that the substantial, overt act not only be proved, but also alleged in the indictment. If the statute did not require that the substantial, overt act be both alleged and proved by the state, it would not contain the word “alleged.” It is that statutory direction that distinguishes the issue in this case from the issue cited by the state in support of its appeal.

Had the General Assembly intended that the state be required to prove only that the substantial, overt act occurred, it could have worded R.C. 2923.01 in such a manner as to convey that intention. Unlike the offense of aggravated robbery, for instance, which requires the state to prove only that the offender committed the act constituting the crime, the offense of conspiracy, as defined in R.C. 2923.01, requires the substantial, overt act to be alleged and proved.

Therefore, while the state may satisfy its burden by reciting the exact words of a criminal statute in an indictment for some offenses, an indictment for conspiracy to commit aggravated trafficking pursuant to R.C. 2923,01 must allege some specific, substantial, overt act performed in furtherance of the conspiracy. The state’s failure to allege a specific, substantial, overt act committed in furtherance of the conspiracy in count fourteen of the indictment against Childs renders the indictment invalid.

For all of these reasons, we hold that the indictment for conspiracy to commit aggravated trafficking pursuant to R.C. 2923.01 was fatally defective in this case. Therefore, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Douglas, Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Cook, J., dissents.