City of Middletown v. Blevins, CA85-09-103

Decision Date17 February 1987
Docket NumberNo. CA85-09-103,CA85-09-103
Citation35 Ohio App.3d 65,519 N.E.2d 846
PartiesCITY OF MIDDLETOWN, Appellee, v. BLEVINS, Appellant.
CourtOhio Court of Appeals

Syllabus by the Court

1. Crim.R. 7(D) applies to the amendment of a traffic complaint. (Traf.R. 1[A] and 20, applied.)

2. An amendment to a charging instrument which changes the name or identity of the offense charged is forbidden by Crim.R. 7(D). The fact that a continuance is granted or that the defendant cannot demonstrate prejudice flowing from the amendment, which is flatly prohibited by the rule, does not cure the reversible error thereby committed.

3. An amendment to a charging instrument from a charge of driving a motor vehicle while intoxicated (R.C. 4511.19) to a charge of operating a motor vehicle without reasonable control (R.C. 4511.202) is a change in the name or identity of the crime charged and is prohibited by Crim.R. 7(D).

4. Where a defendant is charged with an offense and the state wishes to amend that charge to another one which is neither the same offense in name or identity nor a lesser included offense to the original charge, the defendant must be served with a new charging instrument, unless the defendant agrees to waive service of another charging instrument.

Jeff Guiliano, Pros. Atty., for appellee.

Grove & Matre and Deborah L. Kurfiss, Fairfield, for appellant.

PER CURIAM.

This cause came on to be heard upon an appeal from the Middletown Municipal Court of Butler County, Ohio.

This is an appeal by defendant-appellant, Charles Blevins, from his conviction in the Middletown Municipal Court for failing to maintain reasonable control of his automobile.

On July 5, 1985, Middletown Police Officer Roger Knabel responded to a call from Ruthie's Drive-In, which is a food preparation establishment in the city of Middletown. Upon his arrival, he observed appellant's automobile lodged atop a guardrail next to the drive-in. Upon approaching appellant, Knabel suspected he was under the influence of alcohol or drugs. Appellant was arrested for driving under the influence of alcohol or drugs ("DUI") and transported to police headquarters where he took an intoxilyzer test with a .00% breath-alcohol content. Appellant was then required to submit to a blood test, but its subsequently discovered result was also .00% blood-alcohol content.

On July 8, 1985, appellant was arraigned on the DUI charge. He entered a not guilty plea and his case was continued pending the result of the blood test.

On August 5, 1985, appellant again returned to court. However, when the case was called, probably due to the negative blood-alcohol test result, appellee moved the court to amend the charge saying:

"Mr. Guiliano: Your Honor before we proceed I'd like to amend the charge of DWI to failure to maintain reasonable control of a motor vehicle under Middletown Ordinances."

When asked by the court whether there was any objection to the amend ment, appellant's counsel responded, "no," but appellant responded, "yes." Faced with this response to the motion to amend, the court granted appellant four additional days to prepare for trial.

On August 9, 1985, the parties returned to court, and the failure-to-maintain-reasonable-control charge proceeded to a bench trial (the charge was now only a minor misdemeanor). After hearing testimony by Knabel and appellant, the judge found appellant guilty of a failure to maintain reasonable control of his automobile. He was fined $25 and costs.

This appeal followed.

In his brief, appellant raises two assignments of error:

Assignment of Error No. 1:

"The trial court erred in granting the prosecutor's motion to amend the complaint over appellant's objection."

Assignment of Error No. 2:

"The trial court erred in finding defendant guilty of failure to control under Middletown Municipal Ordinance 432.38 because the guilty verdict was clearly and manifestly against the weight of the evidence as the city failed to prove the essential element that defendant was operating a motor vehicle upon a street or highway."

For his first assignment of error, appellant claims that the trial court erred in permitting appellee to amend the charge of DUI to failure to maintain reasonable control. Appellant contends Crim.R. 7(D) forbids amending a charge so that the name or identity of the offense is changed. Not disputing that appellant objected to the amendment and conceding "the identity of the charge was changed," appellee responds that both appellant and his counsel were aware of the amendment and were given time to prepare for a trial of the amended charge.

Although the Ohio Traffic Rules control procedures in Ohio traffic cases in all Ohio courts, Traf.R. 1(A), they do not provide for the amendment of traffic citations. However, Traf.R. 20 provides, "[i]f no procedure is specifically prescribed by these rules, the Rules of Criminal Procedure and the applicable law apply."

Turning to the Rules of Criminal Procedure, we find that Crim.R. 7 applies to the amendment of indictments, informations and complaints. Crim.R. 7(D) provides in pertinent part:

"The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. * * * " (Emphasis added.)

While Crim.R. 7(D) permits a trial court to correct defects, imperfections or omissions in the form or substance of the indictment, information, complaint or bill of particulars (i.e., changes that do not go to the very essence of the offense charged), it clearly forbids, whether a continuance is granted or not, a trial court from permitting an amendment of a complaint, indictment or information which changes the name or identity of the offense charged. Cf. State v. Hogg (July 21, 1986), Warren App. No. CA86-01-001, unreported; State v. Rose (Oct. 28, 1985), Madison App. No. CA84-03-012, unreported.

In this case, a DUI charge was amended to allege a violation of a completely different ordinance, failure to maintain reasonable control. In State v. Butcher (1983), 12 Ohio App.3d 87, 88-89, 12 OBR 286, 288-289, 466 N.E.2d 189, 190-191, the Court of Appeals for Wood County concluded proof of a violation of the failure-to-maintain-reasonable-control statute (R.C. 4511.202) is a separate offense addressing the actual operation of a motor vehicle and therefore is unrelated to a DUI charge under R.C. 4511.19, which focuses on the physical condition of the driver while operating.

Based on Butcher, supra, and our examination of the Middletown ordinances in question (both of which mirror their Revised Code counterparts, R.C. 4511.19 and 4511.202), we conclude that the city's amendment of the charge against appellant from DUI to failure to maintain reasonable control was a change in the name of the charge. Because Crim.R. 7(D) flatly forbids amendments changing the name or identity of...

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