Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Specifications; Bill of Particulars;
Elements of Offenses; Dismissal;
Indictments in general
Indictments, manner of challenging sufficiency or defects
Indictments, date and time issues
Bills of information
Complaints in general
Criminal Rule 3 -- Complaint.
Criminal Rule 7 -- The indictment and the
2941.021 -- Informations.
R.C. 2941.03 -- Sufficiency of indictments or informations.
R.C. 2941.04 -- Two or more offenses in one
R.C. 2941.05 -- Statement charging an offense.
R.C. 2941.06 -- Form of indictment or
R.C. 2941.07 -- Bill of particulars.
R.C. 2941.08 -- Certain defects do not render
2945.75(A)(1) -- Pleading prior
R.C. 2941.141 -- Requirements as to form of
one year firearm specification.
R.C. 2941.144 -- Requirements as to form of
six year firearm specification.
R.C. 2941.145 -- Requirements as to form for
three years firearm specification.
R.C. 2941.146 -- Requirements as to form for
drive by specification.
R.C. 2941.147 -- Requirements as to form for
sexual motivation specification.
R.C. 2941.148 -- Requirements as to form for
sexually violent predator specification.
R.C. 2941.149 -- Requirements as to form for
repeat violent offender specification.
-- Requirements as to form for major drug offender specification.
Indictments in general
State v. Smith,
121 Ohio St. 3d 409,
2009-Ohio-787 – Same case as 117 Ohio St. 3d 447 on reconsideration. The
elements of theft are as set forth in
Additional matters affecting punishment are deemed "special findings" and are
not elements. In an indictment for theft due process requires such matters be
alleged, but the fact the defendant has been indicted for robbery is sufficient
to place him on notice that if found guilty of the lesser included offense of
theft his penalty might be increased by "special findings" such as value.
Payne, 178 Ohio App. 3d 617,
2008-Ohio-5447, ¶22 – While Ohio law requires an indictment
be signed by the grand jury foreman, a signature by mark is
adequate. Initials are sufficient.
State v. Christian,
184 Ohio App. 3d 1,
2009-Ohio-4811 – During a chase three passengers fired at
the police from a car driven by the defendant. He was indicted
on multiple counts of felonious assault. Using the verdict forms
provided, the jury found him not guilty of felonious assault as
a principal offender, but indicated they were unable to reach a
verdict on a separate form based on complicity. The trial court
erroneously discharged the defendant for want of a charging
document. Complicity remained a viable theory of culpability
based on the verdict forms without the need for reindictment.
Complicity is implicated by every indictment. Decision follows
the rationale of cases where the jury acquits on the indicted
offense but hangs on a lesser.
State v. Buehner, 110 Ohio St. 3d 403,
2006-Ohio-4707 -- Syllabus: "An indictment that tracks the language of the
charged offense and identifies a predicate offense by reference to the statute
number need not also include each element of the predicate offense in the
indictment." Ethnic intimidation complaint did not spell out the elements of the
predicate offense of aggravated menacing. Reverses State v. Buehner, 161
Ohio App. 3d 546,
State v. Roach, 165 Ohio App. 3d 167,
2005-Ohio-6301 -- Trial judge sua sponte dismissed making terroristic threats
count because if did allege specifically which predicate felony the defendant
threatened to commit. Bill of particulars referring to the allegation he would
make "9/11 look tame" if his unemployment benefits were not forthcoming was
sufficient to give notice the predicate offense was felonious assault.
Apprendi v. New Jersey (2000), 530 U.S.
466 -- Except for prior convictions, any fact which increases the penalty for a
crime beyond the statutory maximum must be charged and proved beyond a
reasonable doubt at trial. Also see Castillo v. United States
(2000), 530 U.S. 120, 120 S.Ct. 2090. Compare Harris v. United States
(2002), 122 S.Ct. 2406 concluding that increasing mandatory minimum sentences
based on the manner a firearm was employed in the commission of an offense were
sentencing factors within a single federal drug offense and a proper subject for
Blakely v. Washington (2004), 124 S.Ct.
2531 -- Washington sentencing scheme permitting an increased sentence based on
fact finding by the court, not the jury, violates the Sixth Amendment right to
trial by jury. Also see United States v. Booker, (2005), 125 S.Ct. 738.
For a conflicting Ohio case involving sentencing of repeat violent offenders see
State v. Smith, Cuyahoga App. No. 344957,
State v. Singh, 157 Ohio App. 3d 603,
2004-Ohio-3213 -- Physician was indicted for possession of Oxycontin following a
car crash. Indictment did not have to carry a negative averment that he fell
beyond the statutory exception for licensed health care professionals. The
exception is a matter of defense, not a part of the definition of the crime.
State v. Thacker, Lawrence App. No.
2004-Ohio-3978 -- Common pleas court's jurisdiction to accept guilty plea
derived from the complaint. Subject matter jurisdiction did not depend on
complaints initially filed in municipal court. Also see Foston v. Maxwell
(1964), 177 Ohio St. 74, 76.
State v. Byrd, Hamilton App. Nos.
C-040005 and C-040017, ¶6-8 -- The indictment was not rendered invalid for
misidentifying the applicable subsection of the aggravated robbery statute where
the text gave proper notice of the conduct at issue.
States v. Resendiz-Ponce (2007), 127 S.Ct. 782 -- Though
a federal indictment failed to specifically allege an overt act
constituting a substantial step towards commission of the
charged offense of attempted unlawful reentry to the U.S., it
was sufficient because "attempt" was understood to include such
action. The constitutional requirements for an indictment are
notice of the charge against which the defendant must defend and
sufficient information to permit pleading a prior acquittal or
conviction as a bar to prosecution.
State v. Cimpritz (1953), 158 Ohio St. 490
-- Every element of a crime must be alleged in the indictment. A judgment of
conviction based on an indictment which fails to state an offense is void for
lack of subject matter jurisdiction. Also see Harris v. State (1932), 125
Ohio St. 257; State v. Wohlever
(1985), 27 Ohio App. 3d 192.
State v. Oliver (1972), 32 Ohio St. 2d 109
-- Syllabus: An indictment need not be in the exact language of the statute
defining the offense, so long as all the essential elements of the crime are
contained in language equivalent to that used in the statute, and the accused is
advised in the indictment of the nature and cause of the accusation he is
expected to meet."
State v. Simmans (1970), 21 Ohio St. 2d
258 -- Syllabus: "An indictment which employs fully the words of the statute
describing the offense will support the conviction of the accused where no bill
of particulars is requested or where no objection to the sufficiency of the
indictment is interposed before submission of the case to a jury. (Kennedy v.
State, 34 Ohio St. 310, overruled.)"
State v. Burgun (1976), 49 Ohio App. 2d
112 -- Headnote 2: "The numerical designation of the applicable criminal statute
in a complaint does not cure the defect in failing to charge on all the
essential elements of the crime."
State v. Reyna (1985), 24 Ohio App. 3d 79
-- An indictment is not defective because it identifies an offense by Revised
Code section number instead of by its popular name.
Stinson v. Maxwell (1965), 1 Ohio St. 2d
134 -- A conviction will not be set aside because of typographical errors or
other minor imperfections in the indictment. Also see Criminal Rule 33(E)(1);
Braxton v. Maxwell (1965), 1 Ohio St. 2d 134.
State v. Ewing (1983), 9 Ohio App. 3d 285
-- Indictment not invalid merely because prosecutor or assistant failed to sign.
Also see State v. Sabbah (1982), 13 Ohio App. 3d 124 -- Indictment not
invalid because signed by assistant prosecutor instead of elected prosecutor.
State v. Bunyan (1988), 51 Ohio App. 3d 190 -- Indictment not invalid
because signed by special prosecutor.
State v. Wilson (1991), 77 Ohio App. 3d
701 -- Though an indictment is framed in terms of the principal offense, by
virtue of R.C. 2923.03(F) a defendant is on notice that evidence may be
presented that he was an aider and abettor. Also see
State v. Dotson (1987), 35 Ohio App. 3d 135, 138.
State v. Grimsley (1998), 131 Ohio App. 3d
44 -- Indictment was not invalid because it failed to specifically allege the
existence of a principal offender. It did name other defendants and allege
State v. Childs (2000), 88 Ohio St. 3d 194
-- While most offenses may be charged by reciting statutory language,
2923.01 requires a substantial overt act in furtherance of a conspiracy be both
"alleged and proved." This means an indictment not setting forth such an act is
deficient and conviction, notwithstanding a bill of particulars setting forth
the additional allegation. Conviction reversed.
State v. Headley (1983), 6 Ohio St. 3d 475
-- Paragraph two of the syllabus: "The type of controlled substance involved in
the crime of aggravated trafficking under
R.C. 2925.03 is an essential element
which must be included in the indictment, the omission of which cannot be cured
by amendment under Crim. R. 7(D)." Also see State v. Wohlever (1985), 27
Ohio App. 3d 192 (Indictment must be precise as to prohibited nature or
classification of substance involved); State v. Shuttlesworth (1995), 104
Ohio App. 3d 281, 285-286.
State v. Phillips (1991), 75 Ohio App. 3d
785, 792-793 -- An indictment remains valid even though it fails to state the
names of the victims, provided the names are not an element of the offense
State v. Noggle (1993), 67 Ohio St. 3d 31
-- Paragraph two of the syllabus: "Indictments based upon an alleged offender's
status as a person in loco parentis should at least state the very basic
facts upon which that alleged status is based."
State v. Coburn (1992), 84 Ohio App. 3d
170 -- Indictment charging RSP of a motor vehicle does not have to allege the
value of the vehicle. Allegation that a motor vehicle is the property involved
is sufficient to establish the degree of the offense.
State v. Gordon (1971), 28 Ohio St. 2d 45
-- In order for second offense penalty to apply, it is necessary that the
indictment charge the prior offense as an element of the crime and that such a
prior offense be proved as a matter of fact. Also see State v. Henderson
(1979), 58 Ohio St. 2d 171.
State v. Allen (1987), 29 Ohio St. 3d 53
-- Syllabus: "Where the existence of a prior conviction enhances the penalty for
a subsequent offense, but does not elevate the degree thereof, the prior
conviction is not an essential element of the subsequent offense, and need not
be alleged in the indictment or proved as a matter of fact.
State v. Midwest Pride IV, Inc. (1998),
131 Ohio App. 3d 1, 21-22 -- (1) Indictment did not have to identify prior
conviction in detail. (2) Indictment could rely upon prior conviction still on
appeal at the time of filing. Had there been reversal, conviction could still
have been entered on offense of lesser degree.
Stacy v. Van Coren (1969), 18 Ohio St. 2d
188 -- Defendant's plea to a charge other than that stated in the indictment can
not be collaterally attacked since defendant's participation amounts to a waiver
of the right to be charged by indictment.
State v. Linton (1985), 27 Ohio App. 3d 97
-- Indictment is not required merely because court might have the option of
ordering consecutive misdemeanor sentences be served in a state penal
Ohio v. Johnson (1984), 467 U.S. 493 -- A
single homicide may be indicted in multiple counts setting forth alternative
theories of culpability. Guilty plea to a less serious charge at arraignment
does not deny prosecution right to try the defendant on the more serious counts.
State v. Stratton (1982), 5 Ohio App. 3d
228, 230 -- "If more than one offense is stated in a single count, the
indictment suffers from duplicity. If one offense is stated in several counts of
the indictment, the problem is multiplicity. The presence of these issues
depends on whether a single offense is involved. If an indictment suffers from
multiplicity and the counts are tried separately, then double jeopardy bars
State v. Hill (1996), 112 Ohio App. 3d 473
-- Bill of particulars and evidence at trial indicated multiple events were
encompassed in a single count of rape, and instructions did not narrow focus of
jurors. Majority and dissent split on whether this amounted to impermissible
State v. Graven (1977), 52 Ohio St. 2d 112
-- Syllabus: "The trial court has discretion in a criminal case to permit the
jury to take the indictment to the jury room. (R.C. 2945.35 construed.)"
to top of page
Indictments, manner of challenging sufficiency or defects
State v. Horner, 126 Ohio St. 3d 466,
2010-Ohio-3830 – Syllabus: “(1) An indictment that charges an offense by
tracking the language of the criminal statute is not defective for failure to
identify a culpable mental state when the statute itself fails to specify a
mental state. (State v. Buehner, 110 Ohio St. 3d 403,
2006-Ohio-4707, 843 N.E.2d 1162, reaffirmed; State v. Colon, 118
Ohio St. 3d 26,
2008-Ohio-1624, 885 N.E. 2d 917, overruled; State v. Colon, 119
Ohio St. 3d 204,
2008-Ohio-3479, 893 N.E. 2d 169, overruled in part.) (2) When the General
Assembly includes a mens rea element in one discrete clause, subsection, or
division of a statute but not in another discrete clause, subsection, or
division of that statute, courts must apply the analysis in State v. Wac
(1981), 68 Ohio St. 2d 84, 22 O.O. 3d 299, 428 N.E. 2d 428, and State v.
Maxwell, 95 Ohio St. 3d 254,
2002-Ohio-2121, 767 N.E. d 242, to determine the mental state when none is
specified. (3) By failing to timely object to a defect in an indictment, a
defendant waives all but plain error on appeal. (Crim. R. 12(C)(2) and 52(B)
followed; State v. Colon, 118 Ohio St. 3d 26,
2008-Ohio-1624, 885 N.E. 2d 917, overruled)”
State v. Colon,
118 Ohio St. 3d 26,
2008-Ohio-1624 – Syllabus: "When an indictment fails to charge a mens rea
element of a crime and the defendant fails to raise that defect in the trial
court, the defendant has not waived the defect in the indictment." Robbery
indictment failed to allege recklessness as the culpable mental state with
regard to the harm element. State conceded this made it defective. Majority
opinion turns on the constitutional importance of the grand jury and
indictments, notwithstanding Crim.R. 12(C)(2) stating defects are waived if not
raised before trial. Moreover, the court finds structural error. But see State v. Colon, 119 Ohio St. 3d 204,
2008-Ohio-3749 backing away from structural error to plain error and
declaring Colon 1 applies prospectively. As to
application of Colon see State
v. Robertson, 180 Ohio App. 3d 365,
2008-Ohio-6909. For cases where Colon I and II
were followed and conviction reversed, see State v. Buford,
178 Ohio App. 3d 640,
2008-Ohio-5505; State v. Summers, 182 Ohio App.
State v. Hamilton,
183 Ohio App. 3d 819,
2009-Ohio-4602 – Pre-trial the defendant moved to dismiss
the indictment which failed to allege a culpable mental state.
Instead the court allowed amendment. This violated the
defendant’s right to indictment by a grand jury. In the court’s
view Colon I supersedes State v. O’Brien
(1987), 30 Ohio St. 3d 122.
Lawrence, 180 Ohio App. 3d 468,
2009-Ohio-33 – Court declines to extend Colon to cases where the defendant pleaded guilty.
Morgan, 181 Ohio App. 3d 747,
2009-Ohio-1370 – A guilty plea waives a Colon claim. Court reserves judgment on whether a no
contest plea does so as well. Colon
was a certified conflict with State v.
Shugars, 165 Ohio App. 3d 379,
2006-Ohio-718 and thus overruled the First District‘s
decision in that case.
Yslas, 173 Ohio App. 3d 396,
2007-Ohio-5646 – Though powder cocaine was seized, the
indictment alleged possession of crack weighing between 5 and 25
grams. Defendant failed to challenge the indictment and pled no
contest. Reversed as plain error. The jury grand jury failed to
allege possession of the actual substance involved. Nor did the
subsection relied upon did not make possession of crack in that
quantity an offense at the F4 level.
State v. Lomax, 96 Ohio St. 3d 318,
2002-Ohio-4453 -- Death penalty case was tried to a three judge panel which
found the defendant not guilty of a prior calculation and design count, but
guilty of a felony murder count and a
2929.04(A)(7) specification. The
specification failed to allege the defendant was the principal offender in the
commission of the predicate felony. Since the panel had found the defendant not
guilty of the prior calculation and design count, appellant was not convicted of
a death-eligible offense. Held that the prosecutor was not entitled to appeal
the denial of a post-verdict motion to amend the indictment either as a matter
of right or by leave of court. Doing so amounted to a collateral attack on the
verdict. The trial court's ruling was not a dismissal of all or part of the
indictment. Instead it was a ruling based on the language contained in the
State v. Biros (1997), 78 Ohio St. 3d 426,
436-439 -- Alleged defects in an indictment must be asserted before trial, or
they are waived. If the indictment gives sufficient notice to the defendant of
what must be proven, plain error will not be found.
State v. Silos (1995), 104 Ohio App. 3d
23, -- "A motion to dismiss an indictment tests the sufficiency of the
indictment, 'without regard to the quantity or quality of evidence that may be
produced by either the state or the defendant.'...The purpose of a bill of
particulars is to provide a defendant with greater detail of the nature and
causes of the charges against him...It cannot support or defeat a motion to
dismiss an indictment because it cannot create or cure a defect in an
Cincinnati v. Contemporary Arts Center
(1990), 57 Ohio Misc. 2d 9 -- Ohio law does not provide for a motion to dismiss
an indictment for lack of probable cause. Also see State v. Hartley
(1988), 51 Ohio App. 3d 47.
Luna v. Russell (1994), 70 Ohio St. 3d 561
-- Habeas corpus is not available to attack the validity or sufficiency of an
indictment. The remedy lies in direct appeal.
State ex rel Wilcox v. Seidner (1996), 76
Ohio St. 3d 412, 415 -- Habeas corpus may not be used to attack the validity of
an indictment. "In other words, an indictment cannot be attacked following a
judgment of conviction '" because the judgment of conviction necessarily binds a
defendant, where the court rendering the judgment of conviction had jurisdiction
of the person of the defendant and also jurisdiction of the subject matter,
i.e., jurisdiction to try the defendant for the crime for which he was
State v. Luna (1994), 96 Ohio App. 3d 207
-- (1) A no contest plea preserves the issue of the sufficiency of an indictment
for appeal. (2) A theft by deception count of an indictment is insufficient when
it fails to allege essential facts showing the element of deception, or to
allege that the deception occurred. The indictment must also allege that the
offense occurred within the jurisdiction of the court.
State v. Marcinski (1921), 103 Ohio St.
613 -- Paragraph one of the syllabus: "A judgment upon a plea of guilty to a
criminal charge contained in an affidavit, information, or indictment, is
reviewable on error as to the question whether or not the act set forth in such
written charge constitutes an offense against the statutes of Ohio.
to top of page
State v. Lynn, 129 Ohio St. 3d 146,
2011-Ohio-2722 – Indictment charged aggravated burglary, alleging the
defendant trespassed with the purpose to commit “any criminal offense, to wit
theft.” State’s motion to amend, deleting the identity of the specific offense
was denied. Subsequently the jury was instructed on both assault and theft as
predicate offenses. Better practice would have been to allow amendment. While it
preferable to instruct on the elements of the predicate offense, that is
unnecessary. Defendant objected to amendment, but not instructions, so is left
with plain error review. ¶22: “We hold that when a defendant is aware prior to
trial that an aggravated-burglary indictment incorrectly states the underlying
criminal offense, the trial court does not violate defendant’s due process
rights by conforming the jury instructions to the evidence presented at trial
and instructing the jury on the correct underlying offense.” Reverses State
v. Lynn, 185 Ohio App. 3d 391,
State v. Rohrbaugh, 126 Ohio St. 3d 421,
2010-Ohio-3286 – Syllabus: “A defendant may plead guilty to an indictment
that was amended to change the name and identity of the charged crime when the
defendant is represented by counsel, has bargained for the amendment, and is not
prejudiced by the change.” Reverses State v. Rohrbaugh, 178 Ohio App.
State v. Davis,
121 Ohio St. 3d 239,
2008-Ohio-4537 – During trial the indictment was amended increasing the
quantity of drugs trafficked, thus increasing the penalty. Defense did not
object. Court of appeals found plain error. Affirmed. Syllabus: "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."
State v. Graves, 184
Ohio App. 3d 39,
2009-Ohio-974 – Trial court dismissed three counts of
illegal use of a minor in nudity oriented material because they
failed to allege lewd exhibition or a graphic focus on the
genitals, in accordance with the narrowing interpretation of the
statute set forth in State v. Young (1988), 37 Ohio St.
3d 249. Trial court properly found the counts failed to state a
punishable offense. Furthermore, the state was properly denied
leave to amend the indictment as the further allegation might
reflect matters not considered by the grand jury.
Owens, 181 Ohio App. 3d 725,
2009-Ohio-1508 – Defendant was indicted for trafficking in
marijuana and fleeing, but as part of a plea bargain the
trafficking count was amended to engaging in a pattern of
corrupt activity. In a pro se assignment of error the defendant
claimed this denied his right to indictment by a grand jury.
Court finds he made a sufficiently express waiver of this right
on advice of counsel.
Craft, 181 Ohio App. 3d 150,
2009-Ohio-675, ¶19-30 -- Indictment was amended changing the
basis for a weapon under disability charge. Name of the offense
was not changed, nor was the nature, since the penalty remained
the same. Trial court did not abuse its discretion in permitting
amendment to correspond with the proof.
Wilkinson, 178 Ohio App. 3d 99,
2008-Ohio-4400 – Parolee was indicted for escape before he
was picked up. Prior to trial the indictment was amended to
include the entire time he was on the run, including days
following the return of the indictment. This did not violate
Criminal Rule 7, as the date of the escape is not an element,
but it did violate the constitutional requirement of presentment
and consideration by a grand jury.
Fairbanks, 172 Ohio App. 3d 766,
2007-Ohio-4117 -- Indictment identified intimidation counts
as third degree felonies but the body of the counts failed to
include the force element elevating the offense to an F-3 from
an M-1. Court erroneously allowed amendment as it changed the
identity of the offense and subjected the defendant to trial on
conduct beyond the findings of the grand jury.
Maisch, 173 Ohio App. 3d 724,
2007-Ohio-6230, ¶30-37 – Bill of information in an
importuning prosecution failed to allege in the conjunctive that
the defendant was four or more years older than the identity
assumed by a police office in an online sting operation. This
rendered the information defective, and a conviction base on an
indictment that fails to state an offense is void for lack of
subject matter jurisdiction. However, because the court lacked
jurisdiction jeopardy did not attach and the state is free to
reindict Court sidesteps whether judge‘s proposed amendment
would have been valid by noting it was never journalized.
State v. McNichols (2000), 139 Ohio App.
3d 282 -- Defendant was indicted for conduct completed prior to the effective
date of the charging statute. Amendment of this indictment to state an offense
under a statute that was in effect was of no effect, since an indictment
insufficient to state an offense can not be amended. However, jeopardy did not
attach, so a new indictment may be obtained under the proper statute. Case
involved babysitter's unauthorized calls to 900 numbers.
State v. Dukes (May 13, 2003), Allen App. Nos. 1-02-64,
92 and 93 -- Amendment of kidnapping count from allegation of ransom, shield or
hostage under R.C. 2905.01(A)(1) to sexual activity under
changed the identity of the offense.
State v. O'Brien (1987), 30 Ohio St. 3d
122 - Paragraph two of the syllabus: "An indictment, which does not contain all
the essential elements of an offense, may be amended to include the omitted
element, if the name or identity of the crime is not changed, and the accused
has not been mislead or prejudiced by the omission of such element from the
indictment. (Crim. R. 7[D], construed and applied.)" Compare State v.
Radebaugh (1982), 5 Ohio App. 3d 152; State v. Cimpritz (1953), 158
Ohio St. 490; Maynard v. State
(1958), 108 Ohio App. 191 (No amendment requested, defendant discharged when
sought post-conviction relief.)
State v. Dilley (1989), 47 Ohio St. 3d 20
-- Syllabus: "The state may not amend an indictment pursuant to Crim. R. 7(D) so
as to include a specification contained in
R.C. 2941.143 without first
presenting the specification to the grand jury or following other alternatives
contained in R.C. 2941.143.
State v. Fryling (1992), 85 Ohio App. 3d
557 -- Amendment of indictment by agreement to include a specification alleging
prior conviction for an offense of violence, as a part of plea negotiations,
waived the defendant's right to have the specification presented to the grand
jury. State v. Dilley (1989), 47 Ohio St. 3d 20, distinguished.
State v. Earle (1997), 120 Ohio App. 3d
457, 466-467 -- Indictment was amended to state the proper name of the code
section set forth, and to change expression as to quantity from weight to units
without changing the degree of the offense. Amendment was proper.
State v. Smith (1983), 14 Ohio App. 3d 366
-- Amendment as to amount of drug involved, but not as to identity of drug, does
not change the name or identity of the offense and is permissible.
State v. Woody (1986), 29 Ohio App. 3d 364
-- Amendment was an erroneous change in name or identity of offense changed when
court permitted amendment of theft indictment from allegation taking was without
the owner's consent to allegation that was beyond the scope of the owner's
State v. Ahedo (1984), 14 Ohio App. 3d 254
-- Absent showing of prejudice, court may amend indictment to change date of
offense following guilty plea since does not supply an essential element or
change the identity of the crime charged.
State v. Williams (1988), 53 Ohio App. 3d
1 -- A court may amend an indictment to include the county where the offense
took place so long as the accused was neither misled nor prejudiced thereby.
to top of page
Indictments, date and time issues
State v. Plaster, 164 Ohio App. 3d 750,
2005-Ohio-6770 -- Single count indictment charged conveyance of a prohibited
item into a detention facility on March 22nd. This was the date of aborted
attempt to record a transfer of money. Before trial the state amended the
indictment to cover the period February 1st and March 31st when other acts that
were a part of the investigation took place. This meant the jury was able to
consider acts other than those found by the grand jury in returning the
indictment. This changed the identity of the offense. Whether or not there had
been a course of conduct, this was not alleged in the indictment.
State v. Stepp (1997), 117 Ohio App. 3d
561, 564-567 -- Neither an indictment nor a bill of particulars is required to
set forth a date when a specific date is not an element of the offense. The
state must supply specific dates in a bill of particulars when it possesses such
information. The failure to supply known dates is fatal to a prosecution only if
the absence of specifics prejudices the accused's ability to fairly defend
himself. Also see State v. Sellards
(1985), 17 Ohio St. 3d 169, 171; State v. Lawrinson (1990), 49 Ohio St.
3d 238, 239; State v. Gingell (1982), 7 Ohio App. 3d 364, 367.
State v. Madden (1984), 15 Ohio App. 3d
130, 131 -- "An indictment is not rendered invalid for failing to state the time
at which the offense was committed in those cases in which time is not an
essential element of the crime." Also see
State v. Gingell
(1982), 7 Ohio App. 3d 364 (approximation of time OK); Tesca v. State
(1923), 108 Ohio St. 287 (on or about language OK; State v. Carey (1958),
107 Ohio App. 149 (Sunday in January and four successive Sundays OK); State
(1989), 59 Ohio App. 3d 31.
State v. Vitale (1994), 96 Ohio App. 3d
695 -- Indictment alleged the date of offense to be on or about June 14th. Bill
of particulars further limited time to 12:00 p.m. on that date. Amendment of
indictment to specify time between June 14th and June 21st was improper as it
must be presumed that the evidence presented to the grand jury did not cover any
time other than June 14th.
State v. Sellards (1985), 17 Ohio St. 3d
169 -- Syllabus: "In a criminal prosecution the state must, in response to a
request for a bill of particulars or demand for discovery, supply specific days
and times with regard to an alleged offense where it possesses such information.
(State v. Gingell
, 7 Ohio App. 3d 364, approved.)"
State v. Barnecut (1988), 44 Ohio App. 3d
149 -- If no evidence is presented that an alleged offense occurred within the
time frame stated in the indictment, the charge should be dismissed as proof of
an incident outside the specified period of time may constitute a separate
State v. Staples (1993), 88 Ohio App. 3d
359 -- Amendment of aggravated drug trafficking indictment to change dates of
offenses by one and four days did not change the name or identity of the crime,
not was the specific time of the offense an element.
to top of page
State v. Pitts, 159 Ohio App.
2005-Ohio-1389, ¶8-12 -- A guilty plea to an
information waives any claimed right to be charged by
indictment. Also see State ex rel. Beaucamp v. Lazaroff
(1997), 77 Ohio St. 3d 237; Stacy v. Van Coren
(1969), 18 Ohio St. 2d 188.
State v. Mosley, Montgomery App. No.
2003-Ohio-2398 -- Defendant pled no contest to a bill of information
charging attempted abduction. (1) An information is sufficient when written in
the words of the charging statute. (2) A trial court need not obtain a statement
of facts before entering a finding of guilty on a no contest plea in a felony
case. (3) The information was a separate filing and not merely an amendment of
the indictment. Even if it were an amendment, a defendant waives any objection
to an amendment when it is the result of plea negotiations.
State v. Johnson (1995), 101 Ohio App. 3d
129 -- A bill of information which is not signed by either the prosecuting
attorney or an assistant is void ab initio. Such defect is not waived by
the entry of a guilty plea.
State ex rel. Parker v. State (1999), 86
Ohio St. 3d 624 -- A plea of guilty to a charge contained in an information
waives the right to indictment.
to top of page
Complaints in general
State v. Mbodji, 129 Ohio St. 3d 325,
2011-Ohio-2880 – Wife privately filed a complain charging her husband with
domestic violence. Though
requires review of such complaints if an arrest warrant is to be issued, this
was not done. Defendant did not challenge the complaint before trial, but on
appeal maintained the omission meant the court did not have jurisdiction.
Syllabus: “(1) A complaint that meets the requirements of Crim.R. 3 invokes the
subject matter jurisdiction of a trial court. (2) When a criminal complaint and
affidavit are signed by a private citizen but are not reviewed by a reviewing
official before filing pursuant to
the defect is not jurisdictional but may be the subject of a Crim.R. 12(C)
motion before trial.
Zanesville v. Rouse, 126 Ohio St. 3d 1,
2010-Ohio-2218 – Complaint was not file-stamped by the clerk of courts.
Defendant moved to dismiss. Syllabus: “(1) A document is ‘filed’ when it is
deposited properly for filing with the clerk of courts. The clerk’s duty to
certify the act of filing arises only after a document has been filed. (2) When
a document lacks an endorsement from the clerk of courts indicating that it has
been filed, filing may be proved by other means.”
State v. Hoerig,
181 Ohio App. 3d 86,
2009-Ohio-541 – Custodian of a pit bull pled no contest to failure to obtain
liability insurance on a vicious dog. (1) Complaint was insufficient to support
conviction on a no contest plea as it only identified the charging statute and
stated the maximum penalty. It failed to include a written statement of the
facts constituting the offense charged. (2) Ordinarily the defendant would have
lost the ability to make this challenge once sentence had been imposed, because
Crim. R. 12(C)(2) provides challenges may be made at any time while the action
is pending. But the defendant raised the issue in a motion in arrest of judgment
prior to the filing of a notice of appeal. The first appeal was dismissed
because the judgment entry failed to state the offense on which conviction was
entered. Thus the case remained pending until a proper judgment entry was filed.
v. Washington Mutual Bank, 179 Ohio App. 3d 692,
2008-Ohio-6956 – Bank was sent summons for building and
housing code violations, but did not respond. Court devised a
stratagem for trial in absentia. Court finds that while there is
a procedure for enforcing a response to indictments, none is
provided with respect to summons sent corporations, as opposed
to individuals. Nor is there a procedure provided for trial in
absentia in these circumstances.
Cleveland v. Simpkins,
192 Ohio App. 3d 808,
2011-Ohio-1249 – Complaint was dismissed with prejudice as
defective. City appealed. Reversed. Though the complaint was
missing the date and time stamp of the clerk of courts office
the electronic docket indicates that it was actually filed.
Second, though the complaint was missing the date it was signed
by a deputy clerk, the accompanying statement of facts and
probable cause determination was signed and dated by the clerk.
Since defects went to jurisdiction of the court matter could be
raised even though trial had commenced. Double jeopardy does not
In re M.H., 186 Ohio App. 3d 513,
2010-Ohio-689 – Juvenile complaint was not defective because
it did not set forth a mens rea element. Colon era
State v. Moss, Hrometz, appellant,
Stark App. No. 2003CA00218,
2003-Ohio-6053 -- Though the prosecutor may believe
a privately filed complaint is without merit, if the complaint is in proper form
the complainant is entitled to have probable cause judicially determined.
State v. Shaw, Franklin App. No.
2003-Ohio-2139 -- Municipal Court erred by looking beyond the face of
the complaint in ruling on a motion to dismiss for failure to allege the
commission of a crime. Evidentiary hearing relied on additional evidence in
reaching the conclusion an alleged violation was based on guidelines to
laboratories which did not impose a legal duty.
Centerville v. Reno, Montgomery App. No.
2003-Ohio-3779 -- Motion to dismiss complaint should have been sustained
where the complaint failed to establish probable cause for the summons or to
adequately inform the defendant of the nature of the offense. Complaint stated
in conclusory terms that an offense had been committed, but did not state the
source of the information, notwithstanding the fact the complainant conducted
the investigation and had such information.
State v. English, 120 Ohio Misc. 2d 16,
2002-Ohio-5440 -- The word "complaint" as used in
R.C. 2921.15 (filing a false
complaint against a peace officer) means a criminal complaint and not a
department citizen complaint form. In any even the statute violates the Free
Speech Clause of the First Amendment. Also see Akron v. Davenport, Summit
App. No. 21522,
State v. Shugars, 165 Ohio App. 3d 379,
2006-Ohio-718 -- Defendant pled no contest to a housing code offense for which
the culpable mental state was declared to be recklessness. Since the complaint
failed to allege an essential element, and there was nothing in evidence
establishing recklessness, there was insufficient evidence to support
conviction. Even a guilty plea does not waive insufficiency of the complaint.
Since the complaint did not state an offense, double jeopardy would not bar refiling.
Cincinnati v. Gardner (1991), 61 Ohio
Misc. 2d 552 -- Headnotes: (1) Crim. R. 3 requires that a complaint set forth
the essential facts constituting the offense charged. (2) A complaint that does
not contain every element does not charge an offense and is void for subject
State v. Steele (1952), 95 Ohio App. 107,
109 -- "So far as the sufficiency of the affidavit is concerned, in a criminal
proceeding the person making it need not have any personal knowledge of the
facts alleged or have seen any of the acts committed." Also see Cleveland v.
Weaver (1983), 10 Ohio Misc. 2d 15; State v. Biedenharn (1969), 19
Ohio App. 2d 204; State v. Villagomez (1974), 44 Ohio App. 2d 209.
Compare South Euclid v. Clapacs
(1966), 6 Ohio Misc. 101.
State v. Atwood (1990), 61 Ohio App. 3d
650, 654 -- "When two separate offenses are set forth in a statute, Crim. R. 3
implicitly requires the complaint to set forth the specific subsection under
which the defendant is being charged." If it fails to do so, the court lacks
subject matter jurisdiction. Compare State v. Broughton (1988), 51 Ohio
App. 3d 10 finding failure to specify a subsection not fatal if language of
complaint is sufficient to identify the subsection.
State v. Mays (1995), 104 Ohio App. 3d 241
-- Complaint charging discharging a firearm within city limits gave the wrong
ordinance number, probably due to a typographical error, but alleged in
substance a violation of the applicable ordinance. Since the complaint put the
defendant on notice as to what he was charged with, it was not fatally
defective. State v. Coldwell (1982), 3 Ohio App. 3d 283 distinguished on
the basis that the subsection cited in the complaint in that case had been
deleted from the reenacted provision, and the content of the former subsection
spread among various subdivisions of the revised statute.
In re Fetters (1996), 110 Ohio App. 3d 483
-- Parents filed neglect action against agency and foster parent based on
improper attendance to child's medical problems. Court erroneously dismissed
complaint for citing the dependency statute instead of the neglect statute.
State ex rel Strothers v. Turner (1997),
79 Ohio St. 3d 272 -- TV story maintained juvenile clerk submitted false expense
reports. Following investigation, prosecutor determined there was no probable
cause. Citizen attempted to file complaint, and brought mandamus action after he
was refused. Mandamus will not issue to compel a vain act. Summary judgment
In re Elliott (1993), 87 Ohio App. 3d 816
-- Where the original complaint charged the defendant with being a delinquent
child, upon failure of proof of the principal charge the court was without
authority to find the defendant to be a juvenile traffic offender. In re
Burgess (1984), 13 Ohio App. 3d 374, distinguished.
New Albany v. Dalton (1995), 104 Ohio App.
3d 307 -- Court lacks jurisdiction when the complaint is not properly sworn.
Since the issue goes to jurisdiction, it is not waived if not raised through
pretrial motion. Complaint was not sworn before mayor as purported. Mayor's
signature was by means of a rubber stamp. Claim that complaint was sworn before
a notary was not substantiated by acknowledgement of notary on the complaint.
State v. Green (1988), 48 Ohio App. 3d 121
-- Headnote: "Where a charging officer signs a complaint but fails to execute
the jurat (oath), such complaint is void and any conviction resulting therefrom
is also void. (Crim. R. 3, applied.)
State v. Miller (1988), 47 Ohio App. 3d
113 -- Headnote 2: "A municipal court does not acquire competent jurisdiction in
a criminal case when the complaint and affidavit are not properly signed by the
complainant." But jeopardy did not bar second trial on properly executed
Akron v. Meissner (1993), 92 Ohio App. 3d
1 -- In cases where an officer may issue a citation before filing a sworn
complaint, if the complaint ultimately filed is not sworn, the defendant is not
properly charged with an offense.
to top of page
Toledo v. Pena, 185 Ohio App. 3d 645,
2010-Ohio-184 – Defendant was charged with M-4 disorderly conduct. After a
jury returned a not guilty verdict the judge amended the complaint to state a
minor misdemeanor violation of the statute premised on intoxication, and found
the defendant guilty. Since the minor misdemeanor offense is not a lesser
included to the M-4, amendment changed the identity of the crime charged. Court
does not address a second assignment of error sounding in double jeopardy and
State v. Campbell, 100 Ohio St. 3d 361,
2003-Ohio-6804 -- Syllabus: "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)." Officer checked breath text box on ticket, but cited portion
of the statute relating to blood tests.
In re Reed, 147 Ohio App. 3d 182,
2002-Ohio-43 -- Juvenile emulated a TV wrestling move at a school bus stop,
dropping a companion on her head. Original charge was felonious assault premised
on serious physical harm. Before trial the state reduced the charge to attempt,
but the court found the juvenile guilty of felonious assault premised on the use
of a deadly weapon - the ground. Reversed. Opinion focuses on surprise and
lesser included offense analysis. DYS term on violation of probation would be
longer for the greater offense.
Akron v. Holland Oil Company 146 Ohio App.
2001-Ohio-1415 -- Corporation was prosecuted for underage sale of
alcohol in violation of
R.C. 4301.69(A). At the pretrial the state was allowed
to amend the complaint to allege a violation of
R.C. 2901.23. Before trial the
prosecutor realized that section related to organizational liability, but does
not define offense. No prejudice in allowing amendment back to original form.
Initial complaint and a fax indicating amendment would be sought gave adequate
notice to the accused.
State v. Moore (2001), 145 Ohio App. 3d
213 -- Carrying a firearm while intoxicated is not a lesser included offense to
carrying concealed weapons. Court refuses to treat the situation as a sua
sponte amendment of the indictment to charge the lesser offense. Such
amendment would have changed the nature and identity of the offense and violated
the defendant's due process right to defend himself fairly against the crime
charged. Initial acquiescence was not waiver.
Kates, 169 Ohio App. 3d 766,
2006-Ohio-6779 -- Any error in late amendment of the
complaint regarding the specific conduct constituting the
offense is waived when the defendant seeks neither discharge of
the jury nor a continuance.
State v. Robinette (1997), 118 Ohio App.
3d 450 -- Amendments to complaint changing who signed which line and adding
"knowingly" did not mean the complaint as first filed was insufficient to invoke
the jurisdiction of the court.
State v. Rihm (1995), 101 Ohio App. 3d 626
-- Amendment of the complaint to reflect a menacing violation of the domestic
violence statute [R.C. 2919.25(C)] rather than an assault violation [R.C.
2919.25(A)] erroneously changed the identity of the offense. Nor is a menacing
violation of the statute a lesser included offense of an assault violation. Also
see State v. Corrill
(1999), 133 Ohio App. 3d 550.
State v. Burdine-Justice (1998), 125 Ohio
App. 3d 707 -- Amending the complaint in order to proceed on a lesser included
offense to the stated charge does not change the nature and identity of the
offense. Also see State v. Briscoe
(1992), 84 Ohio App. 3d 569, 572.
State v. Taylor (1982), 8 Ohio App. 3d 20
-- Amendment of voyeurism complaint to disorderly conduct changed the nature and
identity of the offense.
State v. West (1988), 52 Ohio App. 3d 110
-- Amendment of complaint charging obstructing official business to disorderly
conduct impermissibly changed the name and identity of the offense charged.
to top of page
State v. Campbell, 150 Ohio App. 3d 90,
2002-Ohio-6064 -- (1) Amendment of DUI ticket from blood to breath subsection
did not change the name or identity of the offense charged. (2) It was not
necessary to serve the defendant with a copy of the amended complaint. (3)
Calculation of time for speedy trial must recognize periods during which time
was tolled prior to amendment.
Barberton v. O'Connor (1985), 17 Ohio St.
3d 218 -- Syllabus: A Uniform Traffic Ticket properly charges the defendant with
an offense when it describes the nature of the offense as 'DWI' and makes
reference to the ordinance that gives rise to the offense, even if it does not
indicate the substance that causes the defendant to be intoxicated. (Traf. R.
3[C], construed and applied.) (2) A Uniform Traffic Ticket effectively charges
an offense even if the defendant has to make some reasonable inquiry in order to
know exactly what offense is charged. Such inquiry should be made before trial
by filing a request for a bill of particulars. (Traf. R. 3[C] and Crim. R. 7[E],
construed and applied.)"
Norwalk v. Hoffman (1989), 64 Ohio App. 3d
34 -- Incompletely made out uniform traffic citation, which did not include the
operative facts giving rise to the offense, failed to state an offense. Also see
Sylvania v. Badger (1978), 64 Ohio App. 2d 78. Compare Cleveland v.
Austin (1978), 55 Ohio App. 2d 215.
Middleton v. Blevins (1987), 35 Ohio App.
3d 65 -- Criminal Rule 7(D) concerning amendment of charging instrument applies
to traffic tickets. Erroneous change in name and identity of offense when OMVI
ticket amended to allege operation a motor vehicle without reasonable control.
Defendant must be served with a new charging instrument unless he agrees to
waive such right.
Tiffin v. Ruden (1988), 46 Ohio App. 3d
138 -- Amendment of traffic ticket should be permitted only if the defendant
still has a reasonable opportunity to prepare his defense and the amendment
simply clarifies or amplifies in a manner consistent with the original
complaint. Amendment beyond this at time of closing arguments was improper.
Akron v. Jaramillo (1994), 97 Ohio App. 3d
51 -- Trial judge was without authority to amend OMVI complaint to charge
reckless operation over the objection of the prosecutor. Amendment changed the
name and identity of the crime charged. Also see Akron v. Robertson
(1997), 118 Ohio App. 3d 241.
Toledo v. Weber (1997), 87 Ohio Misc. 2d
26 -- Mayor of Toledo charged a motorist with a stoplight violation. Held that
the mayor qualified as a "law enforcement officer" but that he improperly used
the long form complaint instead of a uniform traffic ticket.
State v. King (1996), 114 Ohio App. 3d
669, 673 -- For purposes of the statute of limitations, the issuance of uniform
traffic ticket, which serves as both complaint and summons, served to commence
prosecution of a traffic offense.
Springfield Township v. Quicci (1994), 97
Ohio App. 3d 664 -- Uniform Traffic Ticket was insufficient to state the offense
of OMVI where the only information which might identify the offense was that
there was a B.A.C. test, the result was "209%" and a check mark in a box next to
Ohio R.C., but no designation of a statute number.
Warren v. Granitto (1994), 93 Ohio App. 3d
723 -- Parking ticket form found fatally defective for (1) failure to state
address or telephone number of issuing authority, (2) failure to state how and
where to appear to pay or contest the ticket, and (3) providing only a single
signature line applying to both entry of a not guilty plea and waiver of speedy
State v. Mullins (1997), 124 Ohio App. 3d
112 -- Defendant was cited for ACDA, but convicted of making an illegal turn.
Reversed as the finding amounted to an improper amendment of the complaint,
changing the name or identity of the charged crime.
State v. Jackson (1992), 78 Ohio App. 3d
479 -- While the trial court had the authority to amend a uniform traffic ticket
to add the number of the statute violated, it did not have authority to amend
the ticket to name a statute other than that proscribing the conduct generally
referred to by the issuing officer in the ticket.
to top of page