State v. Schmolz

[Cite as State v. Schmolz, 2013-Ohio-1220.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0004-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DANIELLE E. SCHMOLZ COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 11CR0190
DECISION AND JOURNAL ENTRY
Dated: March 29, 2013
CARR, Judge.
{¶1} Appellant Danielle Schmolz appeals her conviction in the Medina County Court
of Common Pleas. This Court affirms.
I.
{¶2} Schmolz was indicted on one count of receiving stolen property in violation of
R.C. 2913.51(A), a felony of the fifth degree as the grand jury found that the stolen property was
a vehicle license plate. Schmolz filed a motion for a bill of particulars, and the State responded
by reiterating the charge in the indictment. The indictment read that Schmolz “unlawfully did
receive, retain or dispose of certain property, being a license plate, the property of another, * * *
knowing or having reasonable cause to believe said property had been obtained through the
commission of a theft offense, the property involved is any of the property listed in Section
2913.71 of the Revised Code, in violation of Section 2913.51(A) of the Ohio Revised Code, a
felony of the fifth degree * * *.”
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{¶3} The matter proceeded to trial. The State presented evidence to show that the
alleged stolen property received by Schmolz was a temporary license placard rather than a
license plate. After the State rested, Schmolz moved to dismiss the indictment as fatally
defective. The State orally moved to amend the indictment to substitute “temporary license
placard” for “license plate” as the alleged subject property. Schmolz objected to such an
amendment, arguing that it changed the identity of the offense as prohibited by Crim.R. 7(D).
The trial court granted the motion to amend the indictment. Schmolz did not move either to
discharge the jury or for a continuance. She presented the testimony of two witnesses and
further testified in her own defense in her case in chief.
{¶4} At the conclusion of trial, the jury found Schmolz guilty of receiving stolen
property and made a special property finding that the property involved was a temporary license
placard. Schmolz moved for a new trial on grounds not relevant to this appeal. The trial court
denied the motion for new trial. Thereafter, the trial court sentenced Schmolz to 30 days of
home incarceration and placed her on community control for three years under general
supervision. Schmolz appealed, raising one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY PERMITTING THE STATE OF OHIO TO
AMEND THE INDICTMENT UNDER CRIM.R. 7(D) INSTEAD OF
DISMISSING THE INDICTMENT UPON APPELLANT’S MOTION
BECAUSE THE AMENDMENT CHANGED THE IDENTITY OF THE
OFFENSE.
{¶5} Schmolz argues that the trial court erred by allowing the State to amend the
charge to indicate that the property involved was a temporary license placard rather than a
license plate. This Court disagrees with her argument, but we are troubled that this factual error
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appeared in the indictment, that the State repeated it in the bill of particulars, and that it was not
corrected until after the State rested its case at trial.
{¶6} The indictment is the charging instrument. Its purpose is to provide notice to the
defendant of the charge the State intends to prove. The bill of particulars serves a different
purposes. It is supposed “‘to elucidate or particularize the conduct of the accused alleged to
constitute the charged offense.’” (Citations omitted) State v. Brumback, 109 Ohio App.3d 65,
81 (9th Dist.1996). It should inform the defendant of the exact nature of the charges against her
so that she can prepare to defend against those charges. Id., quoting State v. Fowler, 174 Ohio
St. 362, 364 (1963).
{¶7} In this case, Schmolz may have requested a bill of particulars because she knew
that no license plate was involved. It is, after all, not what the defendant knows that is important,
but whether she could tell from the indictment what charge the State intended to prove. Fowler,
174 Ohio St. at 365. The State prepared a bill of particulars that notified Schmolz that she was
charged with receiving stolen property and that the property was a license plate. Both the
indictment and bill of particulars in this case were factually incorrect. Crim.R. 7 allows
amendment of the indictment before, during, or after a trial, as long as no change is made in the
name or identity of the crime charged and as long as the defendant cannot demonstrate that the
amendment prejudiced her. Brumback at 81.
{¶8} Crim.R. 7(D) provides, in relevant part:
The court may at any time before, during, or after a trial amend the indictment * *
* 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 * * *, or to cure a variance between the indictment * * * 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
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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} Inherent in the plain language of the rule is a two-step analysis. First, the court
must determine whether the amendment to the indictment changes the name or identity of the
crime charged. An amendment that changes the penalty or degree of the charged offense
necessarily changes the identity of the offense and is, therefore, prohibited by Crim.R. 7(D).
State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, syllabus. Second, the court must determine
“whether any variation in the substance of the indictment requires that the jury be discharged or
that the defendant be granted a continuance to prevent any confusion or prejudice.” State v.
Helton, 1st Dist. No. C-790175, 1980 WL 352807 (Mar. 19, 1980).
{¶10} While a criminal indictment serves the significant purpose of providing notice to
the accused and the opportunity to defend, it generally accomplishes that purpose through the
mere recitation of the language of the criminal statute. State v. Childs, 88 Ohio St.3d 194, 198-
199 (2000). Furthermore, the Ohio Supreme Court has recognized that the indictment need not
articulate the precise underlying conduct giving rise to the offense where the indictment tracks
the statutory language. State v. Murphy, 65 Ohio St.3d 554, 583 (1992). For example, the
elements of an offense underlying the charged offense, e.g., “any criminal offense” underlying a
charge of aggravated burglary, are not essential elements of the aggravated burglary; rather, the
specific underlying offense is merely a fact that must be proved to establish the essential element
that a trespasser had purpose to commit in the structure “any criminal offense.” See State v.
Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722, ¶ 16, citing State v. Gardner, 118 Ohio St.3d 420,
2008-Ohio-2787, ¶ 71. Applying similar reasoning, this Court previously recognized that a
Crim.R. 7(D) amendment that changed the description of the dangerous ordnance underlying two
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charges of felonious assault “did not pertain to the essence of the offenses charged.” State v.
Flood, 9th Dist. No. 95CA006248, 1998 WL 852799 (Dec. 9, 1998). Accordingly, we
concluded that the amendment to the indictment was not improper. Id.{¶11} Over 50 years ago, the United States Supreme Court recognized that it had, “in
recent years, upheld many convictions in the face of questions concerning the sufficiency of the
charging papers. Convictions are no longer reversed because of minor and technical deficiencies
which did not prejudice the accused.” Smith v. United States, 360 U.S. 1, 9. There is no
question that the indictment and bill of particulars in this case specifically – and incorrectly –
named a license plate as the stolen property. According to the Ohio Supreme Court, the
inclusion of the wrong stolen property in this indictment would not even constitute a minor or
technical deficiency because all that is required is that the indictment track the language of the
statute, which this one did.
{¶12} Schmolz was charged with receiving stolen property in violation of R.C.
2913.51(A) which states that “[n]o person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has been obtained through
commission of a theft offense.” A violation of the statute constitutes a misdemeanor of the first
degree. However, the degree of the offense is elevated to a felony of the fifth, fourth, or third
degree if the subject stolen property is of certain values or types. “[I]f the property involved is
any of the property listed in section 2913.71 of the Revised Code, receiving stolen property is a
felony of the fifth degree.” (Emphasis added.) R.C. 2913.51(C). Pursuant to R.C. 2913.71(C),
receiving stolen property is a felony of the fifth degree if the subject property is “[a] motor
vehicle identification license plate as prescribed by section 4503.22 of the Revised Code, a
temporary license placard or windshield sticker as prescribed by section 4503.182 of the Revised
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Code, or any comparable license plate, placard, or sticker as prescribed by the applicable law of
another state or the United States[.]”
{¶13} Schmolz’ indictment tracked the statutory language of the offense and
furthermore stated that “the property involved is any of the property listed in [R.C.] 2913.71.”
Although the offense level, and accordingly the identity, of the crime of receiving stolen property
depends on the value or type of the property at issue, all property of the type listed in R.C.
2913.71 implicates a felony of the fifth degree. Moreover, R.C. 2913.71(C) encompasses a
general category of items used to identify the person to whom the motor vehicle is registered,
including permanent plates, temporary placards, and stickers. The First District in Helton, supra,
analyzed the propriety of an amendment to an indicted charge of receiving stolen property,
wherein the identity of the property was changed from a motorcycle to parts of a motorcycle
valued at $150.00 or more. The Helton court concluded that the amendment did not change the
name or identity of the offense, reasoning that “[n]otwithstanding the changes, the appellant was
still charged with receiving stolen property, a felony of the fourth degree, under the same
subsection of the same statute.” Id. We are compelled to reach the same conclusion in this case.
Notwithstanding the correction of the property from a license plate to a temporary license
placard, however, Schmolz remained charged with receiving stolen property, a felony of the fifth
degree, under the same subsection of the same statute. In addition, the subsection of the statute
listing property that elevated the offense to a felony of the fifth degree remained the same.
Accordingly, we conclude that the amendment did not change the name or identity of the
charged offense.
{¶14} The inquiry does not stop here, however. We must now determine whether the
change constituted a variation in the substance of the indictment and, if so, whether that variation
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prejudiced Schmolz. R.C. 2913.71 contains five categories of property, all of which elevate the
offense of receiving stolen property to a felony of the fifth degree. Both license plates and
temporary license placards are included in subsection (C) which encompasses a general category
of items used to identify the person to whom the motor vehicle is registered. Assuming,
however, that changing the named property from a license plate to a temporary placard
constituted a variation in the substance of the indictment, this Court nevertheless concludes that
Schmolz was not prejudiced by the indictment.
{¶15} As did the Helton court, we conclude that Schmolz’ “rights were fully protected
by immediately concluding the trial with the same jury and, therefore, that the court below acted
in compliance with Rule 7(D) when it allowed the amendment to conform to the evidence
presented.” See Helton, supra. Schmolz did not move the trial court for a continuance or to
discharge of the jury. She thoroughly cross-examined the State’s witnesses with regard to a
temporary license placard, not a license plate. Moreover, she presented the testimony of two
witnesses and testified in her own defense as well. There is nothing to indicate that she was
somehow misled by the substance of the State’s evidence. Furthermore, Schmolz does not argue
on appeal that she was prejudiced by the amendment. In fact, she argues that she does not need
to establish prejudice.
{¶16} Because the Ohio Supreme Court has held that an indictment that tracks the
language in the statute, like the one in this case, is valid, this Court must affirm the trial court’s
decision. We should not lose sight of the fact, however, that the process failed. According to the
indictment, the grand jury found that Schmolz received, retained, or disposed of a license plate.
Based on the current state of the law, this Court need not be concerned with the surplus words
“license plate” because the remainder of the indictment charged an offense as set forth by statute.
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An appellate court can parse the language in the indictment to determine whether it charged an
offense, as we have done in this case. Defendants and defense counsel must do the same thing as
they prepare for trial so they are not misled by surplus facts alleged in the indictment.
{¶17} Finally, the record in this case does not suggest that the erroneous inclusion of
“license plate” in the indictment was anything but an accident. Nevertheless, the State has an
obligation to correctly charge an offense in the indictment. There are many places where the
error could have occurred, from the officer who witnessed the offense to a simple typographical
error in the indictment and bill of particulars. To earn and keep the trust of everybody who is
subject to the laws of this state, it is imperative that these mistakes be prevented either by
omitting surplus language or taking measures to ensure that the language of the indictment and
bill of particulars is accurate. To be clear, our decision to affirm the trial court’s judgment
should not be misunderstood as approval of the method the State used to prepare the indictment
and bill of particulars.
{¶18} Under these circumstances, we conclude that Schmolz did not suffer any
prejudice as a result of the trial court’s amendment of the indictment to conform to the evidence
presented at trial. Schmolz’ assignment of error is overruled.
III.
{¶19} Schmolz’ sole assignment of error is overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, 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(C). The Clerk of the Court of Appeals is
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.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.