State v. O'Brien

• Decision Date: 20 May 1987
• Docket Number: No. 86-1732,86-1732
• Citation: 30 Ohio St.3d 122,30 OBR 436,508 N.E.2d 144
• Parties: , 30 O.B.R. 436 The STATE of Ohio, Appellant, v. O'BRIEN, Appellee.
• Court: Ohio Supreme Court

Page 122

30 Ohio St.3d 122

508 N.E.2d 144, 30 O.B.R. 436

The STATE of Ohio, Appellant, v. O'BRIEN, Appellee.

No. 86-1732.

Supreme Court of Ohio.

May 20, 1987.

Syllabus by the Court

1. The culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(B)(3). (State v. Adams [1980], 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph one of the syllabus, approved and followed.)

2. 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 the identity of the crime is not changed, and the accused has not been misled or prejudiced by the omission of such element from the indictment. (Crim.R. 7[D], construed and applied.)

The instant case arises both from the sexual conduct which occurred between defendant-appellee, James R. O'Brien, and O'Brien's then eight-year-old stepson, Brian Blair, ¹ and the excessive discipline inflicted upon the boy by O'Brien. Appellee would intermittently force the boy to engage in anal intercourse with him under threats that he would "cut * * * [the boy's] head off or throw * * * [the boy] out the window." In addition, appellee repeatedly subjected the boy to unwarranted beatings with a "whip," which was constructed from a piece of garden hose split down the sides and attached to a wooden handle.

Based on the foregoing facts, appellee was indicted on a number of counts, involving a variety of offenses, including endangering children in violation of R.C. 2919.22(B)(3). ² On December 2, 1985, prior to impanelling the jury at appellee's trial, appellee moved to dismiss the two endangering children counts of the indictment on the basis that these counts failed to include the requisite mens rea element of "recklessness." ³ This motion was overruled, and the jury was impanelled. At the conclusion of the state's case-in-chief, one of the endangering children counts was dismissed by the court. After the defense rested, appellant, the state of Ohio, moved to amend the remaining endangering children count of the indictment to include the element of "recklessness." The trial court granted this motion and simultaneously denied appellee's renewed motion to dismiss that count of the indictment. It is undisputed that the trial court subsequently charged the jury on "recklessness" as an essential element of the offense of endangering children, and submitted the following counts of the indictment to the jury for its determination: one count of receiving stolen property under R.C. 2913.51, one count of endangering children under R.C. 2919.22(B)(3), one count of gross sexual imposition under R.C. 2907.05(A)(3), and two counts of rape under R.C. 2907.02(A)(3).

Appellee was found guilty by the jury of endangering children under R.C. 2919.22(B)(3) and not guilty of receiving stolen property under R.C. 2913.51. A mistrial was declared as to the counts of the indictment upon which the jury could not reach a verdict. Appellee was sentenced to a definite term of confinement of one and one-half years in the Ohio State Penitentiary for the crime of endangering children.

Upon appeal, the court of appeals reversed the judgment of the trial court, holding that the trial court erred when it permitted appellant to amend the endangering children indictment to include "recklessness." The court of appeals reasoned that the omission of the mental state element fatally flawed the indictment, and that allowing appellant to cure such an error permitted the jury to convict the accused on a charge essentially different from that upon which the grand jury indicted him.

The cause is now before this court upon the allowance of a motion for leave to appeal.

Lynn C. Slaby, Pros. Atty., Marc R. Wolff and Philip D. Bogdanoff, Akron, for appellant.

Donald E. George, Akron, for appellee.

DOUGLAS, Justice.

The case at bar poses two questions for the court. The first question is whether R.C. 2919.22(B)(3), endangering children, is a strict liability offense. The second issue is whether an indictment may be amended to include an essential element of the offense charged.

As to the first question, appellant asks this court to expressly overrule its holding in State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169 404 N.E.2d 144, and find that the crime of endangering children under R.C. 2919.22(B)(3) is now a strict liability offense. We decline to make such a finding.

In State v. Adams, supra, this court considered the identical argument made by appellant herein and, in an opinion written by Justice Sweeney, stated that:

"R.C. 2919.22(B)(2) * * * does not 'specify any degree of culpability' nor does it 'plainly indicat[e] a purpose to impose strict criminal liability for the conduct described in such section.' R.C. 2901.21(B). Recklessness therefore is sufficient culpability to commit the offense." Id. at 152-153, 16 O.O.3d at 170, 404 N.E.2d at 145-146.

Appellant has not persuaded this court to deviate from the rule set forth in Adams, supra. We, therefore, reaffirm our holding in Adams, supra, that the culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(B)(3).

The second issue before this court is whether an indictment may be amended to include an essential element of the offense. For the following reasons, we answer in the affirmative.

We agree with the appellate court's determination that recklessness is the culpable mental state for the crime of endangering children under R.C. 2919.22(B)(3). We also agree that an indictment charging an offense solely in the language of a statute is insufficient when a specific intent element has been judicially interpreted for that offense. See State v. Adams, supra; State v. Ross (1967), 12 Ohio St.2d 37, 41 O.O.2d 220, 231 N.E.2d 299. We do not agree, however, that the omission of such intent element necessarily precludes a later amendment to the indictment.

Crim.R. 7 controls the sufficiency of and amendments to criminal indictments. Crim.R. 7(B) deals with sufficiency of indictments and provides in pertinent part:

"The indictment * * * shall contain a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the applicable section of the statute as long as the words of that statute charge an offense, or in any words sufficient to give the accused notice of all the elements of the offense with which he is charged. * * * "

The indictment in the instant case provided in pertinent part that:

" * * * JAMES R. O'BRIEN * * * did commit the crime of ENDANGERING CHILDREN in that he did repeatedly administer unwarranted disciplinary measures to Brian Blair, a child under eighteen years of agen [sic], when there was a substantial risk that such conduct, if continued, would seriously impair or retard the child's mental health or development, in violation of Section 2919.22 of the Ohio Revised Code[.] * * * " (Emphasis added.)

The indictment is set forth in the words of the applicable endangering children statute. Further, this indictment substantially follows the form of indictment set forth in R.C. 2941.06. ⁴ However, our analysis does not conclude here. This court, as previously noted, has provided an additional essential element for the offense of child endangering, the mental state of "recklessness." State v. Adams, supra. Thus, any indictment charging endangering children solely in the language of that statute necessarily omits an essential element of the offense, i.e., recklessness. As such, the indictment does not give the accused notice of all the elements of the offense with which he is charged. Therefore, the indictment in its original form was insufficient under Crim.R. 7(B). Accord State v. Ross, supra, a pre-Criminal Rules case, wherein a similar result was obtained through interpretation of R.C. 2941.05, the predecessor statute to Crim.R. 7(B). ⁵ If the question before us today were solely one regarding the sufficiency of the initial indictment, we would affirm the court of appeals and our analysis would be at an end.

That, however, is not the question before us, as appellant sought and was granted the right to amend the indictment. Therefore, we must consider whether the amendment comported with Crim.R. 7(D), which sets forth the procedures for amending indictments. This rule provides in 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.)

The rule clearly permits errors of omission to be corrected during the course of or even after the trial, as long as such amendment makes no change in the name or identity of the crime charged. Crim.R. 7(D). Accordingly, provided that appellant's amendment herein changed neither the name nor the identity of the crime charged, such amendment will have passed the first stage of our Crim.R. 7(D) analysis.

We believe the addition of the term "recklessness" changed neither the name nor the identity of the crime charged herein. Both before and after the amendment of the indictment, the name of the crime remained the same: endangering children. Likewise, the identity of this crime was not changed by the addition of "recklessness" to the indictment. Neither the penalty nor the degree of the offense was changed as a result of the amendment. Since the addition of the culpable mental state of "recklessness" did not change the name or the identity of the crime of endangering children, the amendment was proper pursuant to Crim.R. 7(D).

Crim.R. 7(D)...