State v. Bennett , 2011 Ohio 6679 ( 2011 )

[Cite as State v. Bennett, 2011-Ohio-6679.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 10CA009917
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRANDON M. BENNETT COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 07CR074804
DECISION AND JOURNAL ENTRY
Dated: December 27, 2011
MOORE, Judge.
{¶1} Appellant, Brandon Bennett, appeals from the judgment of the Lorain County
Court of Common Pleas. This Court affirms.
I.
{¶2} On or about August 7, 2007, Jeffrey Wing was “hanging out” at the home of a
friend, Robert “Steve” Tipton, along with appellant Brandon Bennett, a mutual acquaintance.
Around midnight, Bennett and Wing were alone behind Tipton’s garage when Bennett attacked
Wing. Bennett hit Wing multiple times in his arms and chest demanding that he give Bennett his
money. Wing testified that he gave Bennett the $20 he had on his person. Wing did not
immediately tell the police because Bennett had warned him not to and because Wing thought no
one would believe him because he was “slow.” A few weeks later, Wing was robbed a second
time by a man named Larry Woods. The next day, Wing reported both incidents to the police.
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{¶3} Officer Terrance Folley, a police officer with the Elyria Police Department,
interviewed Wing about the incident. Wing explained that Bennett punched him multiple times
and demanded $20, but Wing could not remember the exact date on which the robbery occurred.
Wing knew that the robbery took place a couple of paychecks ago, and after reviewing Wing’s
bi-weekly Tuesday paydays, August 7, 2007, was established as the time frame for the robbery.
{¶4} On November 14, 2007, Bennett was indicted on one count of robbery in
violation of R.C. 2911.02(A)(3), a felony of the third degree. On June 12, 2008, the State filed a
supplemental indictment that charged Bennett with robbery in violation of R.C. 2911.02(A)(3), a
felony of the third degree. On July 12, 2010, the first count was dismissed, Bennett waived his
right to jury trial, and the case was tried to the court under count two of the supplemental
indictment. At the close of its case, the State moved to amend the indictment to reflect that the
offense occurred “[o]n or about the week of August 7, 2007” rather than “[o]n or about August 7,
2007.” The motion was granted.
{¶5} On July 14, 2010, the trial court found Bennett guilty. On October 15, 2010, the
court sentenced Bennett to thirty days in the Lorain County Correctional Facility, three years of
community control, and ordered him to pay restitution in the amount of $50.
{¶6} Bennett timely filed a notice of appeal and raises two assignments of error for our
review.
II.
ASSIGNMENT OF ERROR I
“WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO
AMEND THE INDICTMENT UNDER CRIMINAL RULE 7 TO REFLECT
ESSENTIAL FACTS NOT IN THE INDICTMENT PRESENTED TO THE
GRAND JURY.”
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{¶7} In his first assignment of error, Bennett argues that the trial court erred in
allowing the State to amend the indictment. We do not agree.
{¶8} Amendment of indictments is governed by Crim.R. 7(D), which provides in part:
“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 amendment is made to the substance of the indictment,
information, or complaint, or to cure a variance between the indictment,
information, or complaint and the proof, the defendant is entitled to a discharge of
the jury on the defendant's motion, if a jury has been impaneled, and to a
reasonable continuance, unless it clearly appears from the whole proceedings that
the defendant has not been misled or prejudiced by the defect or variance in
respect to which the amendment is made, or that the defendant's rights will be
fully protected by proceeding with the trial, or by a postponement thereof to a
later day with the same or another jury.”
{¶9} At the close of the defense’s case, the prosecutor moved to amend the indictment
to conform to the evidence regarding the time the offense occurred. The original indictment
stated that the robbery occurred “[o]n or about August 7, 2007.” The court allowed the State to
amend the indictment to include “[o]n or about the week of August 7, 2007.” Bennett objected
and noted that there was testimony from the victim that the incident had occurred a month prior.
The court “acknowledge[d] that the State’s main witness may have some deficiencies of
intellect,” but that the State may still be permitted to amend the indictment and the defense may
still make arguments regarding the victim’s credibility.
{¶10} On appeal, Bennett argues that the amendment violates Crim.R. 7(D) because it
“changes the identity of the crime charged” because “the date of the crime was an essential fact
of the original indictment, the amendment of which changed the identity of the crime.”
{¶11} “[P]recise times and dates are not ordinarily essential elements of an offense[.]”
State v. Ritchie (Apr. 2, 1997), 9th Dist. No. 95CA006211, citing State v. Sellards (1985), 17
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Ohio St.3d 169, 171. Bennett was convicted of robbery in violation of R.C. 2911.02(A)(3)
which provides: “No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * * [u]se or threaten the immediate use of force
against another.” The Revised Code does not provide that the date of the offense is an essential
element of the offense of robbery. The amendment merely changed the date of the offense.
Amendments that change “only the date on which the offense occurred * * * [do] not charge a
new or different offense, nor * * * change the substance of the offense.” State v. Quivey, 4th
Dist. No. 04CA8, 2005-Ohio-5540, at ¶28. See, also, State v. Bevins, 1st Dist. No. C-050481,
2006-Ohio-5455, at ¶33 (“The amendment added no new language to the indictment, nor did it
add any additional elements that the state was required to prove.”).
{¶12} In support of his argument, Bennett cites State v. Vitale (1994), 96 Ohio App.3d
695, for the proposition that the State should not have been permitted to amend the indictment to
increase the time frame of dates in which the alleged offense occurred. However, in Vitale, the
original indictment alleged a single theft that occurred on June 14, 1991. The trial court
permitted the State to amend the indictment to increase the time period to June 14, 1991, through
June 21, 1991, which could include a second crime. Id. at 699-700. The Eighth District reversed
because the amendment presented “grave risk * * * that [the] defendant was convicted by the
trial court of a felony on evidence that was never presented to the grand jury,” specifically the
second theft. Id.
{¶13} Here, Bennett was charged with only one crime, the robbery that occurred at
Tipton’s home. Amending the indictment to reasonably expand the time frame did not change
the name or identity of the offense. As such, the trial court did not err in allowing the State to
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amend the indictment to include “[o]n or about the week of August 7, 2007.” Bennett’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
“[BENNETT]’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
{¶14} In his second assignment of error, Bennett argues that his conviction is against the
manifest weight of the evidence. We do not agree.
{¶15} When a defendant asserts that his conviction is against the manifest weight of the
evidence, “an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.
Otten (1986), 33 Ohio App.3d 339, 340. In making this determination, this Court is mindful that
“[e]valuating the evidence and assessing credibility are primarily for the trier of fact.” State v.
Shue (1994), 97 Ohio App.3d 459, 466, citing Ostendorf-Morris Co. v. Slyman (1982), 6 Ohio
App.3d 46, 47 and Crull v. Maple Park Body Shop (1987), 36 Ohio App.3d 153, 154.
{¶16} Bennett argues that the trial court lost its way when it found him guilty of robbery
because the victim’s testimony “can only be described as vague and lacking credibility.”
Specifically, he references Wing’s “mental deficiency.” He further argues that there were
inconsistencies in Wing’s testimony. For instance, Wing testified that the incident occurred near
a fire pit behind Tipton’s garage, while Tipton’s mother testified that there is no fire pit behind
the garage. In addition, Tipton testified that Wing and Bennett were never at his house at the
same time. Finally, he argues that the state failed to present “corroborating testimony.”
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{¶17} We have repeatedly stated that “the trier of fact is in the best position to determine
the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist.
No. 25161, 2010-Ohio-3296, at ¶15. The trier of fact, here the trial court, “has the right to place
considerable weight on the testimony of the victim.” State v. Felder (July 29, 1992), 9th Dist.
No. 91CA005230, at *1. The trial court here chose to believe the victim’s testimony
notwithstanding any minor inconsistencies in his testimony. We cannot say that the trial court
“clearly lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.” Otten, 33 Ohio App.3d at 340. Bennett’s second
assignment of error is overruled.
III.
{¶18} Bennett’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
DAVID NEHR, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.