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State v. Hills

Court of Appeals of Ohio, Eighth District

July 3, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ERIK D. HILLS, II DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-559495

ATTORNEY FOR APPELLANT Richard Agopian The Hilliard.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Mark J. Mahoney James M. Price Assistant County Prosecutors.

BEFORE: Stewart, A.J., Rocco, J., and Keough, J.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, ADMINISTRATIVE JUDGE.

{¶1} Defendant-appellant Erik Hills, II elected to have the court try him on charges of felonious assault, intimidating a crime witness, aggravated menacing, and having weapons while under disability. Some of the counts had firearm specifications. After the court denied Hills's motion for judgment of acquittal, the court allowed the state to amend the intimidation count to insert the name of the victim. The court subsequently found Hills not guilty of felonious assault, but guilty on the intimidation, menacing, weapons disability counts, and firearm specifications. On appeal, Hills complains that the indictment charging intimidation was legally insufficient both in form and substance and that the court erred by allowing the state to amend it during trial; that trial counsel was ineffective during the plea bargaining stages; and that there was insufficient evidence to prove that the firearm was operable.

I

{¶2} We first address Hills's several arguments relating to the intimidation count — whether the count should have been dismissed because it did not list a victim; whether the court erred by allowing the state to amend the indictment to state the name of the victim; and whether there was sufficient evidence to prove the intimidation count.

A

{¶3} In Count 1 of the indictment, the grand jury charged that Hills "did knowingly and by force or by unlawful threat of harm to any person or property, attempt to influence, intimidate, or hinder [a] * * * witness * * *." In his Crim.R. 29 motion for judgment of acquittal offered at the close of the state's evidence, Hills argued that the indictment was defective because it omitted the name of the witness-victim. In response to Hills's motion for judgment of acquittal on the intimidation count, the state argued that the name of a victim was not a necessary element of intimidation under R.C. 2921.04(B). On the assumption that the victim's name was a necessary element of intimidation, the state argued that the court should amend the indictment to state the victim's name because there had never been any question about the victim's identity given that he testified at trial. The court allowed the amendment.

{¶4} "Ohio law does not require that a victim be named in an indictment when the identity of the victim is not an essential element of the crime." State v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 35, fn. 7 (8th Dist). The victim's name is not an essential element of R.C. 2921.04(B). The elements of intimidation of a witness, as stated under the version of R.C. 2921.04(B) in effect at the time Hills committed his offense, required the state to show that Hills, knowingly and by force or by unlawful threat of harm to any person, attempted to influence, intimidate, or hinder a witness to a criminal act.

{¶5} The witness's name is not essential to proving an act of intimidation. What is essential is proving that the victim was a witness to a criminal act. So the court had no basis for granting a motion for judgment of acquittal on the intimidation count merely because it failed to state the name of the victim.

B

{¶6} Morever, even had there been some defect in the form of the witness intimidation count, the court did not abuse its discretion by amending that count to state the victim's name. The court may amend an indictment at any time before, during, or after a trial to correct any "omission in form or substance" provided the amendment makes no change to the name or identity of the crime charged. See Crim.R. 7(D). The rule is consistent with the principle that the purpose of a grand jury indictment is to give notice to the accused so that he can know what he has been charged with and prepare to defend those charges in criminal proceedings. See State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ΒΆ 10. So if an amendment does not change ...


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