State v. Carter

• Decision Date: 13 September 2000
• Docket Number: No. 98-921.,98-921.
• Citation: 734 NE 2d 345,89 Ohio St.3d 593
• Parties: THE STATE OF OHIO, APPELLEE, v. CARTER, APPELLANT.
• Court: Ohio Supreme Court

89 Ohio St.3d 593

734 NE 2d 345

THE STATE OF OHIO, APPELLEE, v. CARTER, APPELLANT.

No. 98-921.

Supreme Court of Ohio.

Submitted February 22, 2000.

Decided September 13, 2000.

Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne Annos, Assistant Prosecuting Attorney, for appellee.

Thomas E. Zena and John B. Juhasz, for appellant.

Per Curiam.

In this appeal, Carter raises fourteen propositions of law. For the reasons that follow, we reject each of his propositions of law and affirm each conviction and the death sentence.

Missing Element in Indictment

In his first proposition of law, Carter argues that his death sentence is void because an element of the offense of rape was missing from the charge in the fourth count of the indictment. The fourth count alleged as follows: "THE JURORS OF THE GRAND JURY of the State of Ohio, within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that on or about the 14th day of September 1997, at Trumbull County, Ohio, SEAN M. CARTER did by purposefully compelling Veader Prince to submit by force or threat of force, in violation of the Ohio Revised Code, Title 29, Section 2907.02(A)(2), and against the peace and dignity of the State of Ohio [sic ]."

R.C. 2907.02(A)(2) provides that "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." A comparison of the indictment and the statute reveals that the words "engage in sexual conduct" are missing from the indictment. The state concedes that the indictment on the rape count is missing the "engaging in sexual conduct" language, but argues that even if this court were to find this to be reversible error, only the fourth count of the indictment would be affected.

In the bill of particulars, the state specified as follows: "The defendant repeatedly beat the victim with his fists, stabbed her multiple times with a knife and he forcibly engaged in sexual conduct with the victim (specifically the defendant had anal intercourse with Mrs. Prince)." Carter never objected to the indictment and there is no indication that Carter was unaware of the charges against him.

Crim.R. 7 provides in pertinent part:

"(B) Nature and contents

"The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. Each count of the indictment or information shall state the numerical designation of the statute that the defendant is alleged to have violated. Error in the numerical designation or omission of the numerical designation shall not be ground for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not prejudicially mislead the defendant."

Carter argues now that he did not have notice of the charges against him and was unable to defend himself. However, Carter never challenged the sufficiency of the indictment at any time before or during his trial. An appellate court need not consider an error that was not called to the attention of the trial court at a time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St.2d 112, 117, 5 O.O.3d 98, 101, 364 N.E.2d 1364, 1367. As a result, such error is waived absent plain error. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899. Plain error does not exist unless, but for the error, the outcome at trial would have been different. Id.

The record reveals that of all the charges against him, Carter vigorously defended against the charge of rape. Carter challenged the state's forensic experts on evidence that supported the charge of rape and even sought appointment of his own expert to testify concerning the evidence of rape. His claim now that he did not have notice of the charges is without merit.

Carter alleges that the error in the indictment is fatal error. Were this true, it would be fatal only as it relates to count four, the rape count. While Carter argues that this defect also affects the aggravated murder charge and the capital specification attached thereto, this argument lacks merit. If the state seeks the death penalty for a defendant who commits aggravated murder, the indictment charging the offense must contain at least one of the specifications enumerated in R.C. 2929.04(A)(1) through (9). R.C. 2929.04(A) provides: "Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt." That section then sets out nine different aggravating circumstances. See State v. Joseph (1995), 73 Ohio St.3d 450, 456, 653 N.E.2d 285, 291-292.

The form of the specification is governed by R.C. 2941.14(C), which requires that the aggravating circumstance "`may be stated in the words of the subdivision in which it appears, or in words sufficient to give the accused notice of the same.'" Thus, the language of the statute clearly provides that the specification is sufficient if the accused knows which subsection or which aggravating circumstance of the nine listed in R.C. 2929.04(A) has been alleged.

Here, the aggravated murder count specifies that the victim was purposefully killed during the course of a rape, and specification three charges Carter under R.C. 2929.04(A)(7) with committing the offense during the course of a rape. Further, the trial court correctly instructed the jury as to all the elements constituting rape. The capital offense remains unaffected by this defect in the indictment.

Furthermore, even as it relates to the rape count, appellant has not shown that he was prejudiced in the defense of his case by this error or that he would have proceeded differently had this error been corrected. Indeed, had the error been discovered, it was properly subject to amendment. Crim.R. 7(D); State v. O'Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, paragraph two of the syllabus.

Carter had sufficient notice that he was charged with raping Prince and he was not prejudiced by the error in the indictment. Carter's first proposition of law is overruled.

Failure to Give Lesser-Included-Offense Instructions

In his second proposition of law, Carter argues that the trial court erred by failing to give the jury lesser-included-offense instructions on aggravated murder (murder and manslaughter requested), aggravated robbery (theft requested), and rape (gross sexual imposition requested). The trial court denied these requests.¹ In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph three of the syllabus, this court set out the test used to determine whether one offense constitutes a lesser-included-offense of another:

"An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense."

An instruction on a lesser-included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser-included offense. State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus; State v. Palmer (1997), 80 Ohio St.3d 543, 562, 687 N.E.2d 685, 702.

Aggravated Robbery. Carter argues that the jury should have received a lesser-included-offense instruction because he did not take money until after Prince was dead.² Carter argues that he did not form the intent to take the money until after his grandmother was dead, and even then, only when he realized that he needed money. Carter supports his reasoning by noting that he took only one hundred and fifty dollars from Prince's purse, even though the purse contained approximately four hundred and fifty dollars.

Carter was indicted for aggravated robbery under R.C. 2911.01(A)(1) and 2911.01(A)(3). Those sections provide as follows:

"(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:

"(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;

" * * *

"(3) Inflict, or attempt to inflict, serious physical harm on another."

A "theft offense" is defined in R.C. 2913.02 as follows: "(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

"(1) Without the consent of the owner or person authorized to give consent;

"(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;

"(3) By deception;

"(4) By threat;

"(5) By intimidation."

Theft carries a lesser penalty than aggravated robbery. Further, one element of aggravated robbery, R.C. 2911.01(A)(1), having a deadly weapon on or about the accused's person or under his or her control, is not required to prove theft. Thus, the first and third elements of the Deem test are...