The State Of Ohio v. Lynn

• Decision Date: 23 December 2009
• Docket Number: No. 22946.,22946.
• Citation: 924 N.E.2d 397,185 Ohio App.3d 390,2009 Ohio 6812
• Parties: The STATE of Ohio, Appellee,v.LYNN, Appellant.
• Court: Ohio Court of Appeals

185 Ohio App.3d 390

924 N.E.2d 397

2009 Ohio 6812

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

No. 22946.

Court of Appeals of Ohio Second District, Montgomery County.

Decided Dec. 23, 2009.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Lynn Nothstine, Assistant Prosecuting Attorney, for appellee.

Michael L. Wright, Dayton, for appellant.

DONOVAN, Presiding Judge.

{¶ 1} Jeffrey Lynn appeals from his conviction of aggravated burglary after a jury trial. In his first assignment of error, Lynn contends that the trial court denied him due process because the indictment was misleading. In the second assignment, Lynn contends that his conviction is against the manifest weight of the evidence.

{¶ 2} The incident giving rise to the indictment occurred on April 28, 2008. At that time, Lynn's girlfriend, Juanita Turnage, was living with Marion Jefferson at her apartment on West Fairfield Avenue in Dayton. On occasion, Lynn would stay overnight with Turnage but he did not have a key to Jefferson's apartment. In the early morning of April 28, Lynn came to Jefferson's apartment and began knocking on the apartment windows. When Turnage and Jefferson did not respond, Lynn left and returned at 5:30 that evening, but again Turnage did not respond to Lynn's repeated knocking on the apartment windows. Later, at 11:00 p.m., Lynn returned to the apartment and began knocking on the apartment windows. Turnage went to the front door of the apartment to talk to Lynn.

{¶ 3} Lynn told Turnage, “Bitch, I'm about to fuck you up,” and then grabbed her, ripping her shirt. Jefferson came out into the hallway and told Turnage to go back inside and call the police. Turnage went back into their apartment, shut and locked the apartment door and called the police. Outside, Lynn was yelling, “Bitch, you better open up the fucking door. You're going to make things worse for yourself.”

{¶ 4} Lynn kicked the apartment door several times until he eventually kicked it off its hinges and entered the apartment. Once inside, Lynn slammed Turnage against a wall and slammed a door on her left foot, which chipped a bone in her foot. When the police arrived, they observed Lynn moving toward Turnage, who was backing up toward a wall, with fists clenched. He was arrested and taken to jail where he told Officer Dustin Phillips that he was going to go back and kick the door in again as soon as he posted bail.

{¶ 5} The Montgomery County Grand Jury issued the following indictment in this matter:

{¶ 6} “THE GRAND JURORS of the County of Montgomery, in the name, and by the authority of the State of Ohio, upon their oaths do find and present that JEFFREY L. LYNN on or about April 298 [sic], 2008 in the County of Montgomery, aforesaid, and State of Ohio, by force, stealth or deception, did trespass in an occupied structure, to-wit: residence, located at 1207 W. Fairview Avenue, Apt. # 1 or in a separately secured or separately occupied portion of the occupied structure, when another person, other than an accomplice of the offender, was present, with purpose to commit in the structure or in the separately secured or separately occupied portion of 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; contrary to the form of the statute (in violation of Section 2911.11(A)(1) of the Ohio Revised Code) in such case made and provided, and against the peace and dignity of the State of Ohio.” (Emphasis sic.)

{¶ 7} Because there was no evidence that Lynn trespassed into Jefferson's apartment with the intent to steal, the state moved prior to trial to amend the indictment to remove the word “theft” as superfluous language. Lynn objected to the motion because he contended the amendment would change the name or identity of the charge. The trial court overruled the state's motion, stating that it would ask the jury to determine what criminal offense Lynn intended to commit when he allegedly trespassed into Jefferson's apartment. At the conclusion of the trial, the jury signed a verdict form stating it had found Lynn guilty of aggravated burglary as charged in the indictment. In a separate interrogatory, the jury found that Lynn had not committed the offense of theft as set forth specifically in the indictment. In an additional interrogatory, the jury found that Lynn had committed the criminal offense of assault “as charged in the aggravated burglary indictment.”

{¶ 8} In his first assignment of error, Lynn argues that the trial court erred by violating his due process rights to receive adequate notice of the charges against him as a result of a misleading indictment and erroneous jury instructions.

{¶ 9} R.C. 2911.11 provides as follows:

{¶ 10} “(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another.”

{¶ 11} Lynn concedes that the additional language of the underlying offense was not required to be included in the indictment, but argues that since the state did include it, the state was required to prove that his purpose in committing the trespass into the apartment was to commit a theft offense. He further argues that the court should not have instructed the jury that it could consider assault as the underlying offense in the aggravated-burglary charge. He argues that the jury instruction concerning the assault permitted the jury to convict him on a charge different from that found by the grand jury.

{¶ 12} The state argues that Lynn waived his right to raise a defect in the indictment because he did not raise an objection to it in the trial court. The state also argues that its motion to amend the indictment placed Lynn on notice that it did not intend to prove he broke into Jefferson's apartment to commit a theft offense. The state also argues that the Ohio Supreme Court has held that changing the identity of the predicate offense does not change the nature of the aggravated-burglary charge because the specific crime an offender intended to commit inside the occupied structure is not an element of the aggravated burglary, citing State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995. Thus, the state argues that the jury could be instructed to consider as the predicate offense any crime that is supported by the facts in the case without changing the nature of the offense of aggravated burglary. The state argues that the trial court properly instructed the jury regarding the specific criminal acts that would support the criminal-offense element of the aggravated-burglary charge. Further, the state argues that Lynn's due process rights were protected by having the jurors...