State v. Campbell ( 2003 )


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  • [Cite as State v. Campbell, 
    100 Ohio St. 3d 361
    , 2003-Ohio-6804.]
    THE STATE OF OHIO, APPELLEE, v. CAMPBELL, APPELLANT.
    [Cite as State v. Campbell, 
    100 Ohio St. 3d 361
    , 2003-Ohio-6804.]
    Criminal law — Amendment to criminal charge from one subparagraph of R.C.
    4511.19(A) to another subparagraph of the same subsection does not
    change the name and identity of the charged offense within the meaning of
    Crim.R. 7(D).
    (No. 2003-0045 — Submitted October 7, 2003 — Decided December 31, 2003.)
    CERTIFIED by the Court of Appeals for Hamilton County, No. C-010727, 2002-
    Ohio-6064.
    __________________
    SYLLABUS OF THE COURT
    The amendment of a criminal charge from one subparagraph of R.C. 4511.19(A)
    to another subparagraph of the same subsection does not change the name
    and identity of the charged offense within the meaning of Crim.R. 7(D).
    __________________
    O’CONNOR, J.
    {¶1}    We are presented with a question of law certified by the First
    District Court of Appeals as having received conflicting answers from the various
    districts. To harmonize the application of the laws of the state of Ohio, we hold
    that the amendment of a criminal charge from one subparagraph of R.C.
    4511.19(A) to another subparagraph of the same subsection does not change the
    name and identity of the charged offense within the meaning of Crim.R. 7(B).
    {¶2}    Christopher Campbell was cited for driving while under the
    influence of alcohol in violation of R.C. 4511.19 following an automobile
    collision on May 26, 2001. On Campbell’s citation, the arresting officer recorded
    Campbell’s “blood alcohol concentration” as “.203” and checked a box indicating
    SUPREME COURT OF OHIO
    that he obtained this result via a breath test. This information indicates that
    Campbell violated R.C. 4511.19(A)(6).            The officer, however, mistakenly
    indicated that the charge was for violation of R.C. 4511.19(A)(5), which may be
    charged following a blood test. Campbell was charged with violating R.C.
    4511.19(A)(5) and 4511.19(A)(1) and with failure to control his motor vehicle.
    {¶3}    On August 28, 2001, the state moved that the R.C. 4511.19(A)(5)
    charge be amended to a charge of violating R.C. 4511.19(A)(6). The motion was
    granted over Campbell’s objection, and the cause was reset for trial.            On
    September 27, 2001, Campbell changed his plea to no contest on the (A)(6)
    charge. The state dropped the (A)(1) charge and the charge of failure to control.
    Campbell was found guilty of violating R.C. 4511.19(A)(6) and sentenced
    accordingly.
    {¶4}    On appeal, Campbell argued that amending the charge violated
    Crim.R. 7(D). Noting conflicting opinions from other appellate districts, the court
    of appeals affirmed the conviction and certified the conflict to us. Upon due
    consideration, we affirm the court of appeals.
    {¶5}    We were faced with an analogous question in State v. Spirko
    (1991), 
    59 Ohio St. 3d 1
    , 
    570 N.E.2d 229
    . In Spirko, we unanimously affirmed a
    conviction and death sentence where the defendant claimed undue surprise
    because the state had amended the charge to allege a violation of a different
    paragraph of the same statute. “[I]t is clear that the state merely caused the
    correct section number to be applied to the indictment. The language itself was
    not changed, and it is unclear how defendant can claim that he was ‘surprised’ in
    any way.” 
    Id. at 21,
    570 N.E.2d 229
    . This reasoning holds true here.
    {¶6}    The officer clearly indicated that he determined alcohol
    concentration by a breath test. Despite the officer’s erroneous reference to R.C.
    4511.19(A)(5), the substantive information provided on the citation provided
    ample warning to Campbell that he was charged with violating R.C.
    2
    January Term, 2003
    4511.19(A)(6). There is no prejudice to the defendant and no surprise, undue or
    otherwise.
    {¶7}    Subparagraphs (2) through (7) of R.C. 4511.19(A) have the same
    name and identity—driving with specified concentrations of alcohol in bodily
    substances. The only difference among them is the particular bodily substance
    and thus the method by which evidence is obtained to prove the offense.
    Judgment affirmed.
    MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
    JJ., concur.
    O’DONNELL, J., concurs in judgment only.
    __________________
    Michael K. Allen and Philip R. Cummings, for appellee.
    Richard Feil III, for appellant.
    __________________
    3
    

Document Info

Docket Number: 2003-0045

Judges: O'Connor, Moyer, Resnick, Sweeney, Pfeifer, Stratton, O'Donnell

Filed Date: 12/31/2003

Precedential Status: Precedential

Modified Date: 10/19/2024