State v. Lynn, 2010–0251.

• Decision Date: 09 June 2011
• Docket Number: No. 2010–0251.,2010–0251.
• Parties: The STATE of Ohio, Appellant,v.LYNN, Appellee.
• Court: Ohio Supreme Court

129 Ohio St.3d 146

950 N.E.2d 931

2011 -Ohio- 2722

The STATE of Ohio, Appellant,

v.LYNN, Appellee.

No. 2010–0251.

Supreme Court of Ohio.

Submitted Jan. 19, 2011.Decided June 9, 2011.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Lynn Nothstine, Assistant Prosecuting Attorney, for appellant.Timothy Young, Ohio Public Defender, and Melissa M. Prendergast, Assistant Public Defender, for appellee.CUPP, J.

Facts and Procedural History

{¶ 1} Appellee-defendant, Jeffrey Lynn, kicked Marion Jefferson's apartment door numerous times, until he kicked it in. Lynn then proceeded into the apartment and entered the bedroom where his girlfriend, Juanita Turnage, was located. Lynn slammed the door on Turnage's foot, causing a bone to chip. Subsequently, the police arrived and arrested Lynn.

{¶ 2} The Montgomery County Grand Jury indicted Lynn on May 22, 2008, on one count of aggravated burglary in violation of R.C. 2911.11(A)(1): “Lynn, on or about April [28], 2008 * * * by force, stealth or deception, did trespass in an occupied structure, to-wit: * * * when another person, other than an accomplice of the offender, was present, with purpose to commit in the structure * * * any criminal offense, to wit: theft, and did recklessly inflict, or attempt or threaten to inflict physical harm on another, to-wit: Juanita Turnage * * *.” (Boldface omitted.)

{¶ 3} Two days before the trial was to commence, the state filed a motion to amend the indictment. The state sought to remove the word “theft” from the indictment, arguing that it was superfluous language and its removal did not change the substance of the indictment. Lynn filed a written objection to the proposed amendment.

{¶ 4} The morning of trial, the trial court orally denied the state's request to amend the indictment. In so doing, the trial court noted the open discovery required by local rule and that Lynn had received all the state's evidence. However, at the conclusion of the trial, the trial court instructed the jury on the elements of assault and of theft. In addition, the trial court provided interrogatories to the jury to probe whether the jury found that the criminal offense that Lynn entered the apartment with purpose to commit was theft or assault. Lynn did not object to the trial court instructing the jury on the elements of assault and of theft or to the trial court providing the interrogatories to the jury.

{¶ 5} The jury found Lynn guilty of aggravated burglary. In answering the separate interrogatories, the jury unanimously found that Lynn had committed the underlying criminal offense of assault but that he had not committed the underlying criminal offense of theft.

{¶ 6} Lynn appealed to the Second District Court of Appeals. The court of appeals held that the trial court erred in instructing the jury on assault, and it reversed the conviction. 185 Ohio App.3d 390, 2009-Ohio-6812, 924 N.E.2d 397, ¶ 20, 22. As a consequence of this holding, Lynn's second assignment of error, which asserted that his conviction was against the manifest weight of the evidence, was deemed moot by the court of appeals. Id. at ¶ 21.

{¶ 7} We accepted the state's appeal under our discretionary jurisdiction for review of a single proposition of law: “Where there is a clerical error in an aggravated burglary indictment regarding the name of the underlying offense, and the defense is notified of the error, the court does not violate due process by instructing the jury on the underlying offense that was demonstrated by the evidence at trial.” See 125 Ohio St.3d 1413, 2010-Ohio-1893, 925 N.E.2d 1001.

{¶ 8} The issue in this case is whether a defendant's due-process rights are violated when the defendant knows prior to trial that an aggravated-burglary indictment incorrectly states the underlying criminal offense, but the trial court, at the conclusion of the trial, conforms the jury instructions to the evidence presented at trial and instructs the jury on the correct underlying criminal offense. For the reasons that follow, we conclude that due process is not violated under these circumstances. We reverse the judgment of the court of appeals and remand this matter to the court of appeals for consideration of the remaining assignment of error.

Analysis

{¶ 9} The state argues that the jury instruction on assault did not violate Lynn's due-process rights because the indictment tracked the language of the aggravated-burglary statute and included the essential elements of the offense. Thus, the state asserts that Lynn was on notice of the charge of aggravated burglary against him.

{¶ 10} Lynn acknowledges that the indictment did not have to delineate the underlying criminal offense. However, Lynn asserts that once the indictment stated the underlying offense as theft, a jury instruction on assault or any other predicate offense was error. Lynn further asserts that providing the assault interrogatory allowed the jury to convict him of a crime for which he had not been properly indicted.

{¶ 11} “For all its consequence, ‘due process' has never been, and perhaps can never be, precisely defined. * * * [D]ue process ‘is not a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria Workers v. McElroy [ (1961) ], 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230. Rather, the phrase expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.” Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina (1981), 452 U.S. 18, 24–25, 101 S.Ct. 2153, 68 L.Ed.2d 640.

{¶ 12} Although Lynn objected to the state's motion to amend the indictment, he failed to object to the trial court instructing the jury on the underlying offense of assault. Lynn's “ ‘failure to object [to the jury instructions] before the jury retire[d] in accordance with the second paragraph of Crim.R. 30(A), absent plain error, constitutes a waiver.’ ” State v. Keenan (1998), 81 Ohio St.3d 133, 151, 689 N.E.2d 929, quoting State v. Williford (1990), 49 Ohio St.3d 247, 251, 551 N.E.2d 1279.

{¶ 13} We therefore consider this matter under a plain-error analysis. Crim.R. 52(B) states that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Thus, there are “three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious' defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.” State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240.

{¶ 14} Even when all three prongs are satisfied, a court still has discretion whether or not to correct the error. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 62. This court “acknowledged the discretionary aspect of Crim.R. 52(B) by admonishing courts to notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” Barnes at 27, 759 N.E.2d 1240, quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.

{¶ 15} We find no plain error in the actions of the trial court because the jury instructions given by the trial court did not result in fundamental unfairness to Lynn. Due process requires that the state establish beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368. “[A] defendant is entitled to have the jury instructed on all elements that must be proved to establish the crime with which he is charged.” State v. Adams (1980), 62 Ohio St.2d 151, 153, 16 O.O.3d 169, 404 N.E.2d 144.

{¶ 16} The relevant portion of the aggravated-burglary statute states: “No person, by force * * * shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another.” R.C. 2911.11(A)(1). We agree with the statement that “ ‘the specific crime or crimes intended to be committed inside burglarized premises is not an element of burglary that must be included in the * * * jury instructions * * *.’ ” (Emphasis sic.) State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 71 (plurality opinion), quoting State v. Bergeron (1985), 105 Wash.2d 1, 16, 711 P.2d 1000. Consequently, the trial court was not required to instruct the jury on the elements of any underlying offense.

{¶ 17} Although a trial court is not required to instruct on the elements of the underlying offense that a defendant intends to commit while trespassing in an occupied structure, this court has previously expressed a preference that the trial court do so. “We think that it is preferable for the trial judge to instruct the jury in all aggravated-burglary cases as to which criminal offense the defendant is alleged to have intended to commit once inside the premises and the elements of that offense. Such instructions provide an important road map for the jury in its deliberations and help ensure that jurors focus on specific conduct that constitutes a criminal offense.” Id . at ¶ 73. Further, “[t]...