State v. Ericksen , 2019 Ohio 3644 ( 2019 )

[Cite as State v. Ericksen, 2019-Ohio-3644.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
CARROLL COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
CHRISTOPHER C. ERICKSEN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 CA 0928
Criminal Appeal from the
Court of Common Pleas of Carroll County, Ohio
Case No. 18 CR 6205
BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
Atty. Steven D. Barnett, Carroll County Prosecutor, and Atty. Michael Roth, Chief
Assistant Prosecuting Attorney, 7 East Main Street, Carrollton, Ohio 44615, for Plaintiff-
Appellee and
Atty. Rick Ferrara, 2077 East Fourth Street, Second Floor, Cleveland, Ohio 44114, for
Defendant-Appellant.
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Dated: September 6, 2019
D’APOLITO, J.
{¶1} Appellant, Christopher C. Ericksen, appeals from the September 28, 2018
judgment of the Carroll County Court of Common Pleas, sentencing him to an agreed 48-
month mandatory prison term for aggravated vehicular assault, vehicular assault, and
driving while under the influence of alcohol or drugs, following a no contest plea. On
appeal, Appellant mainly asserts that the indictment is defective. Finding no reversible
error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant operated a motor vehicle and caused a serious collision with
Kimberly Jo Locker (“the victim”). The victim lost both of her legs to amputation, received
injuries to her optic nerves, and sustained burns over 70 percent of her body. The victim
is bed-ridden and has incurred approximately $2,000,000 in medical expenses.
{¶3} On March 6, 2018, Appellant was indicted by the Carroll County Grand Jury
on four counts: count one, aggravated vehicular assault, a felony of the third degree, in
violation of R.C. 2903.08(A)(1)(a); count two, vehicular assault, a felony of the fourth
degree, in violation of R.C. 2903.08(A)(2)(b); count three, driving while under the
influence of alcohol or drugs, a misdemeanor of the first degree, in violation of R.C.
4511.19(A)(1)(a); and count four, driving while under the influence of alcohol or drugs, a
misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(b) (alleging that
Appellant had a concentration of eight-hundredths of one percent or more but less than
seventeen-hundredths of one percent by weight per unit volume of alcohol in his blood).
Appellant was represented by counsel and initially pleaded not guilty at his arraignment.
{¶4} Thereafter, Appellant entered into plea negotiations with Appellee, the State
of Ohio. A change of plea hearing was held on September 27, 2018. The trial court
personally addressed Appellant and advised him of his rights pursuant to Crim.R. 11.
Appellant withdrew his former not guilty plea and pleaded no contest to an agreed 48-
month mandatory prison term. After determining that Appellant’s no contest plea was
Case No. 18 CA 0928
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knowing, intelligent, and voluntary, the court accepted his plea and found him guilty of the
charges contained in the indictment.
{¶5} Pursuant to the plea negotiations, the trial court merged all offenses into
count one, sentenced Appellant to 48 months in prison, imposed a $1,000 fine,
suspended his Class Three operator’s license for five years, and advised him that
postrelease control is mandatory up to a maximum of three years. Appellant filed a timely
appeal and raises one assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILT ON A
DEFECTIVE INDICTMENT.
Article I, Section 10, of the Ohio Constitution guarantees that “no person
shall be held to answer for a capital, or otherwise infamous, crime, unless
on presentment or indictment of a grand jury.” An indictment shall contain
“a statement that the defendant has committed a public offense specified in
the indictment.” Crim.R. 7(B). “The statement may be made in ordinary
and concise language without technical averments or allegations not
essential to be proved. The statement may be in the words of the applicable
section of the statute, provided the words of that statute charge an offense,
or in words sufficient to give the defendant notice of all the elements of the
offense with which the defendant is charged.” Id.State v. Thompson, 7th Dist. Columbiana No. 16 CO 0031, 2017-Ohio-9044, ¶ 41.
{¶6} A no contest plea to an indictment forecloses an appellant from challenging
the factual merits of the underlying charge. State v. Bird, 81 Ohio St.3d 582, 584, 692
N.E.2d 1013 (1998). A no contest plea is “not an admission of defendant’s guilt, but is an
admission of the truth of the facts alleged in the indictment[.]” Crim.R. 11(B)(2). An
accused that pleads no contest “‘waives all nonjurisdictional defects to a felony conviction
and leaves open for review only the sufficiency of the indictment.’” State v. Watson, 12th
Dist. Clinton No. CA2007-04-020, 2008-Ohio-629, ¶ 11, quoting State v. Palm, 9th Dist.
Summit No. 22298, 2005-Ohio-1637, ¶ 13. A trial court must find a defendant guilty of
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the charged offense where the indictment contains sufficient allegations to state a felony
offense and the defendant pleads no contest. Bird, supra, at 584, citing State ex rel. Stern
v. Mascio, 75 Ohio St.3d 422, 425, 662 N.E.2d 370, 373 (1996). An appellant’s failure to
raise an argument regarding the sufficiency of the indictment at the trial court level
amounts to forfeiture of this argument on appeal and is limited to a plain error review
under Crim.R. 52(B). Watson, supra, at ¶ 11.
{¶7} As stated, pursuant to the plea negotiations, the trial court merged all
offenses into count one, aggravated vehicular assault, a felony of the third degree, in
violation of R.C. 2903.08(A)(1)(a). Because Appellant pleaded no contest, the State only
had to allege sufficient facts to charge a violation for R.C. 2903.08(A)(1)(a). See Bird,
supra, at 584, citing Mascio, supra, at 425. The State fulfilled its obligations.
{¶8} The indictment, which is not defective, charged the following:
COUNT ONE: THE JURORS OF THE GRAND JURY of the State of Ohio *
* * do find and present that on or about the 29th day of September, 2017,
at the County of Carroll, State of Ohio, aforesaid, one CHRISTOPHER C.
ERICKSEN, * * * while operating or participating in the operation of a motor
vehicle, did cause serious physical harm to another person, to wit: Kimberly
Jo Locker, which was the proximate result of committing a violation of
division (A) of section 4511.19 of the Revised Code or of a substantially
equivalent municipal ordnance, being AGGRAVATED VEHICULAR
ASSAULT, a felony of the third degree and contrary to Ohio Revised Code
Section 2903.08(A)(1)(a) and, contrary to the form of the statute in such
case made and provided, and against the peace and dignity of the State of
Ohio.
(3/6/18 Indictment.)
{¶9} The State also filed a sufficient bill of particulars. Regarding count one, the
State specified:
At Trial in this cause as to Count One of the Indictment herein, the State of
Ohio will prove that on or about the 29th day of September, 2017, at the
Case No. 18 CA 0928
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County of Carroll, State of Ohio, aforesaid, one CHRISTOPHER C.
ERICKSEN, * * * while operating or participating in the operation of a motor
vehicle, did cause serious physical harm to another person, to wit: Kimberly
Jo Locker, which was the proximate result of committing a violation of
division (A) of section 4511.19 of the Revised Code or of a substantially
equivalent municipal ordnance, being AGGRAVATED VEHICULAR
ASSAULT, a felony of the third degree and contrary to Ohio Revised Code
Section 2903.08(A)(1)(a).
(4/3/18 Bill of Particulars.)
{¶10} R.C. 2903.08(A)(1)(a) states:
(A) No person, while operating or participating in the operation of a motor
vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall
cause serious physical harm to another person or another’s unborn in any
of the following ways:
(1)(a) As the proximate result of committing a violation of division (A) of
section 4511.19 of the Revised Code or of a substantially equivalent
municipal ordinance[.]
{¶11} In this case, Appellant mainly takes issue with the indictment and asserts
that neither the indictment nor the bill of particulars, which “can mitigate the effect of an
omission in an indictment[,]” adequately identified the predicate offense to count one.
Thompson, supra, at ¶ 40. Essentially, Appellant is arguing that unless the indictment
includes the specific subsection of a statute defining the offense charged, the indictment
is defective. However, because Crim.R. 7 only requires that the elements of a crime
charged be set forth in the indictment, and the indictment here is not defective, Appellant’s
Case No. 18 CA 0928
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position is without merit.1 See Crim.R. 7; State v. Dudas, 11th Dist. Lake Nos. 2008-L-
109 and 2008-L-110, 2009-Ohio-1001, ¶ 40.
{¶12} Regarding the four-count indictment, Appellant admitted the truth of the
allegations by pleading no contest. Bird, supra, at 585. Count one identifies the
underlying offense charged by section number, R.C. 4511.19(A). The indictment
language further mirrors the statutory language of R.C. 2903.08(A)(1)(a) in that the
material element the State must prove is that Appellant’s operation of his vehicle caused
serious physical harm to the victim as a proximate result of a violation of R.C. 4511.19(A).
Taking all four counts in the indictment in its entirety, Appellant was on notice that the
underlying violation of R.C. 4511.19(A) involved a prohibited concentration and/or that
Appellant was impaired, which are both predicate offenses under R.C. 4511.19(A). Thus,
the indictment is sufficient to charge an offense and is not defective. Crim.R. 7(B); Bird,
supra, at 585.
{¶13} Regarding the bill of particulars, it sets forth the date of the alleged offense,
the general nature of the alleged conduct, and the applicable statute. Therefore, the bill
of particulars provided was sufficient to fulfill its intended purpose, i.e., to particularize the
conduct of the accused alleged to constitute the charged offense. See State v. Brown,
7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 86-87. With respect to this case,
this court notes that we do “not consider prejudice if the indictment was not defective in
the first place.” Thompson, supra, at ¶ 40. This court further notes that all of the State’s
evidence was available for Appellant and his counsel to examine pursuant to Crim.R.
16(A) and the prosecutor’s “open discovery” policy.
1 To support his position that his conviction for count one was consequently void, Appellant cites to a three-
paragraph, Per Curiam Opinion, State ex rel. Bandarapalli v. Gallagher, 128 Ohio St.3d 314, 2011-Ohio-
230, 943 N.E.2d 1020. Appellant’s reliance on Gallagher, however, is misplaced. In Gallagher, the Ohio
Supreme Court found the petitioner had ample remedies in the course of regular appeal by means of a
motion to dismiss an alleged defective indictment and that a writ of prohibition was not a proper remedy.
Appellant also cites to State v. Headley, 6 Ohio St.3d 475, 453 N.E.2d 716 (1983) to support his position
that this case should be reversed. Like Gallagher, Appellant’s reliance on Headley is also misplaced based
on the facts presented here. In Headley, the Ohio Supreme Court held that “[t]he type of controlled
substance involved in the crime of aggravated trafficking under R.C. 2925.03 is an essential element which
must be included in the indictment, the omission of which cannot be cured by amendment under Crim.R.
7(D).” Id. at paragraph two of the syllabus.
Case No. 18 CA 0928
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{¶14} As stated, the indictment is not defective. Because the record demonstrates
that the indictment and the bill of particulars provided Appellant with sufficient detail to
place him on notice of the charges against him, this court does not find plain error.
CONCLUSION
{¶15} For the foregoing reasons, Appellant’s sole assignment of error is not well-
taken. The judgment of the Carroll County Court of Common Pleas, sentencing Appellant
to an agreed 48-month mandatory prison term for aggravated vehicular assault, vehicular
assault, and driving while under the influence of alcohol or drugs, following a no contest
plea, is affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.
Case No. 18 CA 0928
[Cite as State v. Ericksen, 2019-Ohio-3644.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Carroll County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.