State v. Lambert
| Decision Date | 06 June 2017 |
| Docket Number | No. 16CA6.,16CA6. |
| Citation | 82 N.E.3d 29,2017 Ohio 4310 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Tara J. LAMBERT, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Samuel H. Shamansky, Donald L. Regensburger, and Colin E. Peters, Columbus, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of conviction and sentence. A jury found Tara J. Lambert, defendant below and appellant herein, guilty of conspiracy to commit aggravated murder in violation of R.C. 2923.01(A)(1). Appellant raises the following assignments of error for review:
{¶ 2} The present appeal arises out of appellant's plot to murder Kellie and Shawn Cooke. On August 7, 2015, a Pickaway County grand jury returned an indictment that charged appellant with two counts of conspiracy to commit aggravated murder in violation of R.C. 2923.01. Counts one and two contained identical language and alleged:
{¶ 3} The state subsequently filed a bill of particulars that alleged that with respect to count one, appellant "solicited the aid of an undercover officer in planning and promoting the murder of Kellie Cooke," and with respect to count two, appellant "solicited the aid of an undercover officer in planning and promoting the murder of Shawn Cooke."
{¶ 4} At the conclusion of the jury trial on January 27, 2016, the jury found appellant guilty of the first count of conspiracy to commit murder, but not guilty of the second count. On February 24, 2016, the trial court sentenced appellant to serve seven years in prison. This appeal followed.
{¶ 5} In her first assignment of error, appellant asserts that the indictment omits an essential element of a conspiracy offense and, thus, violates her right to indictment by a grand jury, as provided in Article I, Section 10 of the Ohio Constitution. In particular, appellant asserts that the commission of a substantial overt act in furtherance of the conspiracy is an essential element of a conspiracy offense that must be alleged in the indictment. Appellant claims that under State v. Childs , 88 Ohio St.3d 194, 724 N.E.2d 781 (2000), the indictment's failure to allege this element renders it fatally defective and mandates a reversal of her conviction. Appellant points out that in Childs , the court held that a conspiracy indictment that fails to allege the defendant committed a substantial over act in furtherance of the conspiracy is fatally defective and warrants automatic reversal.
{¶ 6} In response, the state raises three basic arguments to counter appellant's assertion that Childs mandates a reversal of her conviction: (1) subsequent cases have effectively overruled or limited Childs ; (2) appellant had adequate notice of the charges; and (3) the indictment sufficiently alleged a substantial overt act by alleging that appellant planned or aided in planning the commission of aggravated murder.
{¶ 7} Section 10, Article I of the Ohio Constitution provides: "[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury." This provision " ‘guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury.’ " State v. Jackson , 134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, ¶ 12, quoting State v. Pepka , 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 14.
{¶ 8} "The purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident." State v. Buehner , 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks , 173 Ohio St. 415, 417, 183 N.E.2d 373 (1962), and State v. Sellards , 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781 (1985) ; accord State v. Horner , 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 11. As expounded upon in State v. Childs , 88 Ohio St.3d 194, 198, 724 N.E.2d 781 (2000) :
A criminal indictment serves several purposes. First, by identifying and defining the offenses of which the individual is accused, the indictment serves to protect the individual from future prosecutions for the same offense. State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 411, 478 N.E.2d 781, 783–784. In addition, the indictment compels the government to aver all material facts constituting the essential elements of an offense, thus affording the accused adequate notice and an opportunity to defend. Id. at 170, 17 OBR at 411, 478 N.E.2d at 783.
{¶ 9} "The sufficiency of an indictment is subject to the requirements of Crim.R. 7 and the constitutional protections of the Ohio and federal Constitutions." Buehner at ¶ 8.
{¶ 10} Crim.R. 7(B) specifies the "nature and contents" of an indictment and states:
The indictment shall be signed in accordance with Crim.R. 6(C) and (F) and contain a statement that the defendant has committed a public offense specified in the indictment. * * * * 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.
{¶ 11} "An indictment meets constitutional requirements if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ " State v. Childs , 88 Ohio St.3d 558, 565, 728 N.E.2d 379 (2000), quoting Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ; accord United States v. Resendiz–Ponce , 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) ; Jackson at ¶ 13 ; State v. Lynn , 129 Ohio St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 20 ; Buehner at ¶ 9. An indictment must charge a criminal offense " ‘with reasonable certainty * * * so as to apprise the defendant of that which he may expect to meet and be required to answer; so that the court and jury may know what they are to try, and the court may determine without unreasonable difficulty what evidence is admissible.’ " Horner at ¶ 10, quoting Horton v. State , 85 Ohio St. 13, 19, 96 N.E. 797 (1911).
{¶ 12} "Generally, the requirements of an indictment may be met by reciting the language of the criminal statute."
Childs , 88 Ohio St.3d at 199, 724 N.E.2d 781, citing State v. Murphy , 65 Ohio St.3d 554, 583, 605 N.E.2d 884 (1992) ; accord Jackson at ¶ 14. However, "if the indictment does not name the essential elements of the criminal offense charged, the indictment is insufficient to charge the defendant with that offense." Jackson at ¶ 14, citing State v. Jester , 32 Ohio St.3d 147, 149, 512 N.E.2d 962 (1987). State v. Oliver , 32 Ohio St.2d 109, 110, 61 O.O.2d 371, 290 N.E.2d 828 (1972) (citations omitted). However, an indictment is not defective for failing to omit a culpable mental state when the indictment otherwise tracks the statutory language and when the statute does not specify a culpable mental state. Horner at paragraph one of the syllabus ("An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental...
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...appeal in the ordinary course of law and cannot be challenged collaterally by an extraordinary writ. See generally, State v. Lambert, 2017-Ohio-4310, 82 N.E.3d 29, ¶ 15 (4th Dist.), citing State ex rel. Bandarapalli v. Gallagher, 128 Ohio St.3d 314, 2011-Ohio-230, 943 N.E.2d 1020, ¶ 1; see ......