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Criminal Rule Bars Amended Indictment When Change Alters Penalty or Degree of Charged Crime

2007-1039.  State v. Davis, Slip Opinion No. 2008-Ohio-4537.
Highland App. No. 06CA26, 2007-Ohio-2249.  Judgment affirmed.
Moyer, C.J., and Pfeifer, O'Connor, and Lanzinger, JJ., concur.
Cupp, J., concurs in judgment only.
Lundberg Stratton and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-4537.pdf

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(Sept. 16, 2008)  The Supreme Court of Ohio ruled today that when a grand jury has indicted a defendant for one or more specific offenses, the state may not amend the indictment if the amendment changes the penalty or degree of the specific charged offense. In a 5-2 decision authored by Chief Justice Thomas J. Moyer, the Court held that amending an indictment to alter the penalty or degree of a crime charged against the defendant “changes the identity” of the charged offense and therefore violates the state’s Rules of Criminal Procedure.

The case involved Michael Davis, who was indicted by a Highland County grand jury in April 2005 on multiple criminal counts for allegedly trafficking in the prescription painkilling drug OxyContin. Among the charges included in Davis’ indictment was a count of aggravated drug trafficking alleging that he sold or offered to sell less than the statutory “bulk amount” of  the drug, an offense punishable as a fourth-degree felony.

The prosecutor later entered a motion in the trial court to amend the aggravated trafficking charge to allege that the amount of OxyContin that Davis sold or offered to sell was actually between five times and 50 times the statutory bulk amount, an offense punishable as a second-degree felony. Davis’ attorney did not object to the amendment, and the court granted the motion to amend the indictment. Davis was subsequently tried and convicted of second-degree felony drug trafficking, and was sentenced to a mandatory two-year term of imprisonment on that charge.

Davis subsequently appealed his conviction and sentence on the amended trafficking charge, asserting that the trial court violated his constitutional right to due process of law by improperly allowing the state to amend the fourth-degree felony charge against him that had been reviewed and affirmed by a grand jury to a second-degree felony without requiring a new indictment. The 4th District Court of Appeals reversed Davis’ conviction and remanded the case for a new trial, holding that the trial court’s acceptance of the amended indictment was contrary to Ohio Criminal Rule 7(D), which bars any amendment that changes “the name or identity” of a crime for which a defendant was indicted by a grand jury. The 4th District also held that, because the trial court’s error violated Davis’ substantial constitutional right to grand jury review, it qualified as “plain error” that must be reversed on appeal even though the defendant did not object to the amended indictment before or during his trial.

The state, represented by the Highland County prosecutor’s office, sought and was granted Supreme Court review of the 4th District’s ruling.

In today’s decision affirming the court of appeals, Chief Justice Moyer cited two prior decisions in which the Supreme Court of Ohio addressed the issue of amended indictments.  In State v. O’Brien (1987), he noted, the Court held that an amendment to a criminal indictment that added reference to a guilty mental state that had been omitted from the defendant’s original indictment did not alter the identity of the charged offense because “‘Neither the penalty nor the degree of the offense was changed as a result of the amendment.’ ...  This court thus held that the amendment in O’Brien did not change the identity of the crime charged because it did not change the penalty or the degree of the offense.”

“In State v. Headley (1983) ... the state amended the indictment to specify the type of controlled substance involved in a drug-trafficking charge, when the original indictment had not identified it. Although the issue was whether the original indictment was fatally defective—not whether the amendment was proper—this court analyzed the omission and subsequent amendment pursuant to Crim.R. 7(D),” wrote the Chief Justice. “The court noted that ‘[t]he severity of the offense is dependent upon the type of drug involved,’ and in particular, that possession of certain controlled substances merits a charge of aggravated trafficking, while possession of others merits a charge of trafficking in drugs, a lesser offense. Following these statements, we concluded that an amendment to specify the type of drugs involved was improper: ‘Under this analysis, it is evident that R.C. 2925.03 sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved.’ (Emphasis added.) Amendment was improper because changing the type of drug involved would ‘change the very severity of the offense charged.’”

Applying the holdings in O’Brien and Headley to the current case, Chief Justice Moyer wrote: “We hold that Crim.R. 7(D) does not permit the amendment of an indictment when the amendment changes the penalty or degree of the charged offense; amending the indictment to change the penalty or degree changes the identity of the offense. In the present case, the amendment significantly increased the quantity of drugs alleged to have been sold. The amendment thereby changed the degree of the offense to a second-degree felony from a fourth-degree felony and altered the potential penalties as well. The amendment is therefore not permitted by Crim.R. 7(D).”

The Chief Justice went on to reject the state’s argument that, even if the trial court erred in accepting an amended indictment, that mistake did not rise to the level of “plain error” that requires reversal even though the defendant failed to object to it at trial. He wrote: “Pursuant to Crim.R. 52(B), ‘[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.’ ... Under Article I, Section 10 of the Ohio Constitution, ‘no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.’  If a court were permitted to amend an indictment to increase the penalty or degree of the offense, the court would be able to ‘convict the accused on a charge essentially different from that found by the grand jury.’ ... The error in this case thus clearly affected substantial rights and produced an outcome that would have been otherwise but for the error. It is also necessary to correct the error in order to prevent a manifest miscarriage of justice. We therefore hold that the court of appeals was correct to hold that the error in this case was plain error.”

The majority opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor and Judith Ann Lanzinger.  Justice Robert C. Cupp concurred in judgment only. 

Justice Terrence O’Donnell entered a dissenting opinion, joined by Justice Evelyn Lundberg Stratton, stating that in his view the majority decision misconstrued the criminal rule addressing amended indictments. “As set forth in Crim.R. 7(D), a trial court may amend an indictment ‘provided no change is made in the name or identity of the crime charged.’ The Rule does not, however, specify that the identity of an offense includes its severity or penalty. In my view, the ‘identity’ of the crime refers to its statutory definition, not its penalty,” wrote Justice O’Donnell. Because the amended indictment in this case did not charge Davis with a different statutory offense, but merely with a heightened level of the same offense charged in the original indictment, Justice O’Donnell indicated that the trial court properly permitted amendment of the indictment, especially in the absence of any objection.

“The majority’s decision further disrupts the long-standing practice of trial courts throughout the state. If trial courts may no longer use Crim.R. 7(D) to amend indictments to conform to the evidence, then they will be forced to dismiss cases and send them back to the grand juries for reindictment. Not only is this result unnecessary, in my view, but it will prevent trial courts from effectively managing their dockets and their ever-increasing case loads.”

William L. Archer, 937.393.1851, for the State of Ohio and Highland County prosecutor’s office.

Michael P. Kelly, 937.444.2563, for Michael Davis.