Indictments and Complaints


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Criminal Rule 3 -- Complaint.
Criminal Rule 7 -- The indictment and the information.
R.C. 2941.02, 2941.021 -- Informations.
R.C. 2941.03 -- Sufficiency of indictments or informations.
R.C. 2941.04 -- Two or more offenses in one indictment.
R.C. 2941.05 -- Statement charging an offense.
R.C. 2941.06 -- Form of indictment or information.
R.C. 2941.07 -- Bill of particulars.
R.C. 2941.08 -- Certain defects do not render indictment invalid.
R.C. 2941.11, 2945.75(A)(1) -- Pleading prior conviction.
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.
R.C. 2941.1410 -- 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 R.C. 2913.02(A). 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.
State v. 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, 2005-Ohio-2828.
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 judicial determination.
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, 2004-Ohio-3479.
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. 04CA5, 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.
United 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 complicity.
State v. Childs (2000), 88 Ohio St. 3d 194 -- While most offenses may be charged by reciting statutory language, R.C. 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 charged.
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 institution.
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 subsequent prosecution."
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 duplicity.
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.)"

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-3749, 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. 3d 139, 2009-Ohio-1883.
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.
State v. Lawrence, 180 Ohio App. 3d 468, 2009-Ohio-33 – Court declines to extend Colon to cases where the defendant pleaded guilty.
State v. 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 I 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.
State v. 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 indictment.
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 indictment."
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 convicted."'"
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.

Indictments, Amendment

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, 2009-Ohio-6812.
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. 3d 211, 2008-Ohio-4781.
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.
State v. 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.
State v. 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.
State v. 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.
State v. 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.
State v. 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 (A)(4) improperly 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 consent.
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.

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 R.C. 2941.01(B); 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 v. Hill (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 [1982], 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 offense.
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.

Bills of Information

State v. Pitts, 159 Ohio App. 3d 852, 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. 19569, 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.

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 R.C. 2935.09(D) 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 R.C. 2935.09, 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.
Cleveland 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 preclude retrial.
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 case.
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. 02AP-1036, 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. 19687, 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, 2004-Ohio-435.
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 matter jurisdiction."
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 properly granted.
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 complaint.
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.

Complaints, Amendment

Last updated 3/1/2016
State v. Rosemond, 1st Dist. Hamilton No. C-150199, 2015-Ohio-4878
Trial court erred in granting the state's motion to amend the complaint from a violation of R.C. 4511.19(A)(1)(b) to a violation of R.C. 4511.19(A)(1)(h), because the amendment changed the penalty for the offense, which constituted a change in the name or identity of the crime charged.
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 due process.
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. 3d 298, 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.
State v. 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 rather than an assault violation 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.

Traffic Citations

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 trial.
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.

Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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