DocketNumber: Case No. 02CA2671.
Judges: ABELE, J.
Filed Date: 4/15/2003
Status: Non-Precedential
Modified Date: 4/18/2021
First assignment of error:
"The trial court abused its discretion when allowing the state of Ohio to amend the indictment."
Second assignment of error:
"Trial counsel's assistance was ineffective."
{¶ 2} On the evening of April 20, 2001, appellant encountered Anthony Lowery at the "Saddle Bar" in Chillicothe.2 The two men started talking and Lowery told appellant that his sister was on vacation in Florida and that he was watching her house. Lowery also told him about some of the personal items that the family had in the house.
{¶ 3} The two men spent the night together and, the next morning, drove to Lowery's sister's house. Lowery entered the house through a basement window and then opened the garage door so that appellant could enter the house. They took a variety of personal property from the house including guns and an arrowhead collection.
{¶ 4} On August 31, 2001, the Ross County Grand Jury returned an indictment charging appellant with complicity to burglary. The indictment specifically charged that appellant "did knowingly aid or abet another in committing a violation" of R.C.
{¶ 6} Our analysis begins with Crim.R. 7(D) which specifies as follows:
"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 impanelled, 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. Where a jury is discharged under this division, jeopardy shall not attach to the offense charged in the amended indictment, information, or complaint. No action of the court in refusing a continuance or postponement under this division is reviewable except after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such action of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justice resulted."
{¶ 7} Thus, under this rule an indictment can be amended to include a missing element of an offense so long as the amendment does not change the name or identity of the crime and the accused has not been misled or prejudiced by the omission of such an element from the indictment. State v. Brooks (1996),
{¶ 8} The amendment at issue in the case sub judice did not change the name or identity of the charged crime. Appellant was charged with complicity — that is, the aiding or abetting of another in commission of a burglary in violation of R.C.
{¶ 9} Moreover, we cannot discern any prejudice from allowing the indictment's amendment. Appellant presented no evidence in his defense at trial. His theory of the case was to argue that the prosecution's only evidence was Lowery's testimony and that Lowery was unreliable both because he is "slow"6 and because he cooperated with police and the prosecution. Appellant did not base his defense on the applicable mental state. Thus, appellant's case could not have been harmed when the court amended the indictment to reflect the proper mens rea. We also note that neither during the proceedings below nor in his brief on appeal, has appellant articulated how he would have proceeded differently if the correct mental state had initially been included in the indictment.
{¶ 10} For all these reasons, we find no merit to appellant's first assignment of error and it is accordingly overruled.
{¶ 12} In order to obtain the reversal of a conviction on the grounds of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient, and (2) such deficient performance prejudiced the defense so as to deprive him of a fair trial. See Strickland v. Washington (1984),
{¶ 13} As we noted infra, under the circumstances present in the instant case, the inclusion of an incorrect mental state in the indictment could properly be amended under Crim.R. 7(D). Thus, even if counsel had discovered this issue and requested a dismissal of the indictment the prosecution could have requested an amendment of the indictment. The trial court would certainly have granted the motion. In short, we would be at exactly the situation that we now occupy. Therefore, appellant cannot demonstrate that he suffered any prejudice as a result of his attorney's failure to recognize the defect and we will not presume that such prejudice exists. See e.g. State v. Tucker (Apr. 2, 2002), Ross App. No. 01CA2592; State v. Kuntz (Feb. 26, 1992), Ross App. No. 1691, unreported; State v. Maughmer (Feb. 7, 1991), Ross App. No. 1667, unreported.
{¶ 14} Appellant also points out that counsel presented no evidence at trial in his defense. Appellant does not, however, demonstrate that he had any mitigating evidence to present and we will not simply assume that such evidence existed somewhere. He also claims that trial counsel was "obviously unprepared." It is not, however, obvious to us that counsel was unprepared. What is obvious is that the prosecution had eyewitness testimony (i.e. Lowery) to prove appellant's complicity to burglary. Furthermore, we note that when a defendant's claims of ineffective assistance of counsel is based upon facts not present in the record, the appropriate course of action is to pursue a petition for post conviction relief. See, generally, State v. Fryer
(1993),
{¶ 15} For these reasons, we find that the second assignment of error is without merit and it is hereby overruled.
{¶ 16} Having considered all the errors assigned and argued in the briefs, and after finding merit in none of them, we hereby affirm the trial court's judgment.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. Kline, J.: Concur in Judgment Opinion.