State v. Williams

• Decision Date: 30 August 1988
• Docket Number: 88AP-214,Nos. 88AP-213,s. 88AP-213
• Citation: 557 N.E.2d 818,53 Ohio App.3d 1
• Parties: The STATE of Ohio, Appellant, v. WILLIAMS, Appellee. The STATE of Ohio, Appellant, v. DR. WILLIAMS & ASSOCIATES, Vincent Patrick Williams, D.D.S., Inc., Appellee.
• Court: Ohio Court of Appeals

Page 1

53 Ohio App.3d 1

557 N.E.2d 818

The STATE of Ohio, Appellant, v. WILLIAMS, Appellee.

The STATE of Ohio, Appellant, v. DR. WILLIAMS & ASSOCIATES, Vincent Patrick Williams, D.D.S., Inc., Appellee.

Nos. 88AP-213, 88AP-214.

Court of Appeals of Ohio, Tenth District, Franklin County.

Aug. 30, 1988.

Syllabus by the Court

1. A trial court is permitted to amend an indictment by inserting the county where the offense was committed as long as the accused was neither misled nor prejudiced in his defense by the defect in the indictment.

2. R.C. 2941.08(F) provides that an indictment is not made invalid for want of an allegation of the time or place of a material fact when the time or place has been once stated therein.

3. Crim.R. 7(D) permits the trial court to amend an indictment to allege venue with specificity.

Anthony J. Celebrezze, Jr., Atty. Gen., Paul J. Coval Robert J. Goldstein and Denise Smith Golonka, Columbus, for appellant.

Jim Rimedio, Cincinnati, for appellees.

McCORMAC, Judge.

Plaintiff-appellant, state of Ohio, appeals the trial court's order dismissing counts two through twelve of an indictment returned against Dr. Williams & Associates, Vincent Patrick Williams, D.D.S., Inc., and Dr. Vincent P. Williams, defendants-appellees.

On April 10, 1987, the Special Grand Jury of Franklin County, Ohio, returned a twelve-count indictment against appellees, Dr. Williams and his corporation, Dr. Williams & Associates, Vincent Patrick Williams, D.D.S., Inc. ("the corporation"). Each were charged with one count of theft by deception in violation of R.C. 2913.02(A)(3) and five counts of forgery in violation of R.C. 2913.31(A)(3).

Count one of the indictment avers that Dr. Williams took property by deception within Franklin County and that the victim was the state of Ohio, Department of Human Services. Counts two through twelve do not specifically state that Dr. Williams or his corporation committed the alleged acts within Franklin County.

On the day of the trial, March 7, 1988, appellees filed a motion to dismiss counts two through twelve for failure to allege that any element of the offense was committed in any county in the state of Ohio. Their alleged basis was that the court lacked venue to hear these counts. The state then moved to amend the indictment to specifically include in counts two through twelve the statement that the offenses charged occurred within Franklin County, Ohio.

After hearing oral arguments, the trial court granted appellees' motion to dismiss counts two through twelve of the indictment and denied the state's motion to amend the indictment. The trial court continued the trial of count one pending the conclusion of the appeal process.

Appellant appeals from this decision and asserts the following assignments of error:

"1. The trial court erred as a matter of law when it granted defendants' pre-trial motion to dismiss counts two through twelve of the indictment for failure to specifically allege that the offense or an element thereof occurred within Franklin County, Ohio, when, in fact, the place had once been stated within the indictment.

"2. The trial court erred as a matter of law when it dismissed counts two through twelve of the indictment on the basis that a failure to state venue in counts two through twelve of the indictment constitutes a lack of subject matter jurisdiction as to those counts.

"3. The trial court abused its discretion when it denied the state of Ohio's pre-trial motion to amend counts two through twelve of the indictment to specifically allege that the offense, or an element thereof, occurred within Franklin County, Ohio, where no change would have been made in the names or identities of the crimes charged."

In its first assignment of error, appellant argues that the trial court erred as a matter of law when it granted appellees' pretrial motion to dismiss counts two through twelve of the indictment for failure to specifically allege that the offense, or an element of the offense, had occurred within Franklin County, Ohio, when, in fact, the place had been stated once within the indictment.

Although the indictment is poorly drawn, the first count charges Dr. Williams with depriving the Ohio Department of Human Services ("ODHS") of property by deception within Franklin County from approximately April 1, 1983 to approximately December 31, 1985. It claims he charged ODHS for dental services that were never performed.

Count one of the indictment states, in pertinent part:

"In the Court of Common Pleas, Franklin County, Ohio, of the Special Grand Jury Term beginning the 11th day of July, in the year of our Lord, one thousand nine hundred and eighty-six.

"The Jurors of the Special Grand Jury of the State of Ohio, duly selected, impaneled and sworn, on their oaths, in the name and by the authority of the State of Ohio, do find and present that Vincent P. Williams, DDS, within the County of Franklin aforesaid, over the period of on or about April 1, 1983 to on or about December 31, 1985, as a continuing course of criminal conduct, with purpose to deprive the owner, the State of Ohio, Department of Human Services (formerly known as the Department of Public Welfare), of property, to-wit: money obtained for alleged dental services that were not rendered, did knowingly obtain or exert control over said property by deception." (Emphasis added.)

Count two of the indictment charges appellee corporation with the identical offense of theft by deception. It states that the commission of this offense was authorized, commanded, or tolerated by a high managerial officer, agent or employee of the corporation, i.e., Dr. Williams. The alleged acts occurred over the same time period as in the first count and the victim was the same as in the first count, that is, ODHS.

In counts three through twelve, Dr. Williams and his corporation were charged with five counts each of uttering forged documents. In those allegedly forged documents, the dentist and his corporation claimed that they had provided dental services to four different individuals on Medicaid. The alleged victim of these frauds is ODHS. ODHS, located in Franklin County, is also the victim in counts one and two.

Appellees argue that, since counts two through twelve of the indictment did not specifically mention in which county the theft or Medicaid fraud occurred, the court did not have venue over these counts.

R.C. 2901.12, Ohio's venue statute, establishes that venue is the place where the offense or an element of the offense occurred.

R.C. 2941.08(F) states that an indictment is sufficient when the place of the offense, or an element of it, is stated once therein. An indictment is not made invalid if it does not reallege the place of a material fact.

In oral argument before the trial court, appellees argued and the trial court agreed that, based on State v. Headley (1983), 6 Ohio St.3d 475, 6 OBR 526, 453 N.E.2d 716, the court cannot cure defects in the counts of an indictment if the county in which the offense occurred is not stated. However, Headley concerns the sufficiency of evidence needed to prove that an offense occurred in a certain county. In Headley, no evidence was presented at the trial showing the offense charged had occurred in the county. Therefore, the court concluded that the county's court did not have venue.

Our case involves the issue of the sufficiency of an indictment and does not involve the question of the sufficiency of evidence needed at a trial to prove venue. Therefore, Headley is not determinative.

In oral argument before the trial court, appellees also cited Knight v. State (1896), 54 Ohio St. 365, 43 N.E. 995. In that case, the issue was whether venue was sufficiently alleged in the indictment. The court found that nowhere in the indictment was there any allegation that the offense was committed in Wood County. It found that the case was not saved by R.S. 7215 (predecessor of R.C. 2941.08[F] ) because the time or place was not stated once in the indictment. Therefore, venue was not sufficiently alleged in the indictment. However, in this case, the county and state were alleged in count one.

At the hearing, the trial court mentioned that it also relied on the Ohio Constitution in making its decision to dismiss counts two through twelve. Section 10, Article I of the Ohio Constitution states, in part:

" * * * In any trial, in any court, the party accused shall be allowed * * * to demand the nature and cause of the accusation against him, * * * and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * * ."

In Breinig v. State (1931), 124 Ohio St. 39, 44, 176 N.E. 674, 676, the Ohio Supreme...