State v. Napier, No. B–16–01948

CourtCourt of Common Pleas of Ohio
Writing for the CourtCurt C. Hartman, Judge, Hamilton County Common Pleas Court
Citation108 N.E.3d 788
Parties STATE of Ohio, Plaintiff, v. Jim W. NAPIER, Defendant.
Docket NumberNo. B–16–01948
Decision Date28 June 2018

108 N.E.3d 788

STATE of Ohio, Plaintiff,
v.
Jim W. NAPIER, Defendant.

No. B–16–01948

COURT OF COMMON PLEAS OF OHIO, HAMILTON COUNTY

Entered June 28, 2018


108 N.E.3d 789

ENTRY DENYING MOTION TO AMEND COUNTS 1 TO 4 OF THE INDICTMENT

Curt C. Hartman, Judge, Hamilton County Common Pleas Court

This matter is before the Court on the Motion to Amend Counts 1 to 4 of the Indictment wherein the STATE OF OHIO seeks, pursuant to Ohio R. Crim. P. 7(D), to expand the date ranges specified in the Indictment as to when Defendant JIM NAPIER allegedly engaged in certain criminal conduct. Because allowing the amendment of an indictment so as to expand or broaden the scope of the allegations therein violates the principles of separation of powers and violates the constitutional right by which felony criminal proceedings may proceed only on presentment or indictment of a grand jury, the Motion to Amend is DENIED.

I.

A.

On January 26, 2017, the Hamilton County Grand Jury returned an indictment,

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charging Defendant JIM NAPIER with four counts of rape, all in violation of Ohio Rev. Code § 2907.02(A)(1)(b), viz., engaging in sexual conduct with a person not one's spouse and who was less than thirteen years of age.

As set forth in the Indictment, Counts 1 and 2 involve the same victim, identified as V.C., with the actus reus of Count 1 allegedly occurring between March 2005 and March 2006, and the actus reus of Count 2 allegedly occurring between March 2006 and March 2007.1 Though the Indictment does not specifically allege it, the STATE OF OHIO maintains that these counts arise from an on-going series of acts occurring "on multiple occasions and on multiple indeterminate dates". Motion to Amend, at 4.

Counts 3 and 4 involve a different victim, identified as D.N., with the actus rei of both counts allegedly occurring during the same period of time, i.e., sometime between July 2009 and September 2009. With respect to these counts and in contrast to Counts 1 and 2, the STATE OF OHIO does not maintain such acts were part of an on-going series of acts by Mr. NAPIER during the date range, but, instead, occurred on two distinct occasions during the date range.

B.

Through the Motion to Amend, the STATE OF OHIO seeks to expand the date ranges when Mr. NAPIER allegedly engaged in the criminal conduct. Specifically, the STATE OF OHIO seeks to expand the date ranges for Counts 1 and 2 from March 2005 to March 2006 and from March 2006 and March 2007, respectively, to having both counts now being from August 2002 to March 2007; and, with respect to Counts 3 and 4, the STATE OF OHIO wants to expand the date ranges from July 2009 to September 2009 to now being from December 2007 to October 2009.

Simply stated, the issue sub judice is whether, notwithstanding the clear pronouncement of the grand jury as contained in the Indictment as to its accusation as to when the alleged criminal conduct of Mr. NAPIER occurred, the Court may, solely at the request of the STATE OF OHIO, broaden the date range so as to include a period of time during which the grand jury did not find probable cause that criminal conduct occurred.

II.

"[A]lthough the State is required to supply specific dates and times regarding an offense where it possesses such information," State v. Henderson , 2006-Ohio-5567, 2006 WL 3028429 ¶ 14 (8th Dist.), "an allowance for inexactitude in the date and time of the offense is permissible, and must be made especially in cases involving the sexual abuse of young children where there are several instances of abuse spread out over an extended time period." State v. Bolling, 2005-Ohio-2509, 2005 WL 1208103 ¶ 36 (2d Dist.) ; see State v. Rucker, 2012-Ohio-185, 2012 WL 171143 ¶ 43 (1st Dist.) ("[i]n many cases involving the sexual abuse of children, the victims are simply unable to remember exact dates, especially where the crimes involve a repeated course of conduct over an extended period of time"). Thus, "[u]nder Ohio law, an indictment for repeated sexual contact

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need not specify the exact dates of each contact where the state does not possess or cannot reasonably obtain such information." State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist. 1990) (syllabus ¶ 1).

Oftentimes, in such cases, additional information comes into the State's possession as preparations for trial advance, thus, allowing it to more precisely and narrowly identify the date range of the alleged criminal conduct. See, e.g., State v. Barnes, 2011-Ohio-5226, 2011 WL 4790887 ¶ 13 (12th Dist.) ("[o]riginally, the indictment alleged the offense occurred between June 14, 1999 and June 13, 2000. However, through a series of amendments, the state finally narrowed the time range for the offense between March 22, 2000 and September 22, 2000"). In fact, when it can reasonably do so, the State has a duty to narrow the time frame or date range of alleged criminal conduct.

In the case sub judice, however, the STATE OF OHIO seeks not to narrow the date ranges during which the criminal conduct of Mr. NAPIER allegedly occurred, but, instead, to broaden the date ranges of such conduct beyond that specifically set forth within the Indictment. In considering the present effort of the STATE OF OHIO, the fountainhead of felony criminal charges must be considered and, ultimately, respected.

A.

Article I, Section 10, of the Ohio Constitution affords individuals a substantive right that a presentment or indictment of a grand jury is required before the STATE OF OHIO may proceed in criminally prosecuting an individual for allegedly committing a felony:

No person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereof necessary to concur in finding such indictment shall be determined by law.

In fact, without issuance of a proper indictment by a grand jury, a common pleas court is without jurisdiction to proceed in a felony criminal prosecution. State v. Sands, 2014-Ohio-3439, 2014 WL 3891943 ¶ 7 (6th Dist.) ("[t]he felony jurisdiction of the court of common pleas is invoked by the return of a proper indictment by the grand jury of the county"); State v. Holland, 2013-Ohio-4136, 2013 WL 5406742 ¶ 11 (5th Dist.) ("[f]elony jurisdiction of the court of common pleas is invoked upon the return of an indictment by the grand jury").

"The grand jury clause of Section 10, Article I has been part of the Ohio Constitution since 1802. It was adopted in its present form in 1851." State v. Sullivan, 2011-Ohio-2976, 2011 WL 2436890 ¶ 56 (2d Dist.) (Grady, J., dissenting). "This constitutional provision, at the time of its adoption, assumed the grand jury to be an existing institution in Ohio, or, in short, recognized the grand jury as it existed at common law." State ex rel. Doerfler v. Price, 101 Ohio St. 50, 54, 128 N.E. 173, 17 Ohio Law Rep. 488 (1920). Stated otherwise, "[t]he grand jury is a pre-constitutional institution." Roger A. Fairfax, Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 726 (2008) (quoting United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir. 1977) ). And, as such, "the whole theory of [the grand jury's] function is that it belongs to no branch of the institutional government." United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) ; see also Fairfax, Grand Jury Discretion, 93 Cornell L. Rev. at 726 ("[c]ontrary to popular belief, and despite its usual physical location in the courthouse and its reliance

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on the process and compulsion power of the courts, the grand jury is not a part of the judicial branch. Likewise, the grand jury is not an arm of the Executive even though the prosecutor wields a great deal of (at least perceived) power over the grand jury"). Instead, "the grand jury has been likened to a fourth branch of government." United States ex rel. Underwood v. Genentech, Inc., 2010 WL 3955786, at *2 (E.D. Pa. Oct. 5, 2010).

As the grand jury is a common-law, pre-constitutional institution of both the federal and state governments, the principles relating thereto are comparable. See State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 ¶ 40 ("the grand jury provision of the federal Constitution [is] very similar to the grand jury provision of the Ohio Constitution").

It is unnecessary to trace the earliest history of the grand jury, further than to say that it has existed under the common law for centuries.... Its adoption in this country, both in federal and state jurisdictions, has no doubt been upon the theory that it was one of the most substantial and serviceable guaranties against official tyranny, malicious prosecution, and ill-advised and expensive trials, which might generally be avoided if the formal accusation of crime were first made by one's peers, as represented by the grand jury. One's individual rights are those safeguarded against private malice, party passion, or
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