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State v. Lambert

Court of Appeals of Ohio, Fourth District, Pickaway

June 6, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
TARA J. LAMBERT, Defendant-Appellant.

         CRIMINAL CASE FROM COMMON PLEAS COURT

          Samuel H. Shamansky, Donald L. Regensburger, and Colin E. Peters, Columbus, Ohio, for appellant.

          Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          PETER B. ABELE, JUDGE.

         {¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of conviction and sentence. A jury found Tara J. Lambert, defendant below and appellant herein, guilty of conspiracy to commit aggravated murder in violation of R.C. 2923.01(A)(1). Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:
"THE INDICTMENT IS FATALLY FLAWED FOR FAILURE TO ALLEGE A SUBSTANTIAL OVERT ACT IN FURTHERANCE OF THE CONSPIRACY AS REQUIRED BY R.C. 2923.01 AND IN VIOLATION OF APPELLANT'S RIGHT TO A GRAND JURY UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
SECOND ASSIGNMENT OF ERROR:
"TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO DISMISS THE INDICTMENT OR RAISE ANY OBJECTION TO ITS FATAL DEFECT CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS."
THIRD ASSIGNMENT OF ERROR:
"APPELLANT'S CONVICTION FOR CONSPIRACY TO COMMIT AGGRAVATED MURDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF HER RIGHT TO DUE PROCESS AS GUARANTEED BY THE OHIO CONSTITUTION."

         {¶ 2} The present appeal arises out of appellant's plot to murder Kellie and Shawn Cooke. On August 7, 2015, a Pickaway County grand jury returned an indictment that charged appellant with two counts of conspiracy to commit aggravated murder in violation of R.C. 2923.01. Counts one and two contained identical language and alleged:

On or about the 21st day of July, 2015 through the 28th day of July, 2015, at the County of Pickaway, or by some manner enumerated in Section 2901.12 of the Ohio Revised Code whereby proper venue is placed in the county aforementioned, Tara J. Lambert, did with purpose to commit, promote or facilitate the commission of Aggravated Murder with another person, plan or aid in planning the commission of such offense;
Contrary to and in violation of Section 2923.01(A)(1) of the Ohio Revised Code and being a Felony of the First Degree, being against the peace and dignity of the State of Ohio.

         {¶ 3} The state subsequently filed a bill of particulars that alleged that with respect to count one, appellant "solicited the aid of an undercover officer in planning and promoting the murder of Kellie Cooke, " and with respect to count two, appellant "solicited the aid of an undercover officer in planning and promoting the murder of Shawn Cooke."

         {¶ 4} At the conclusion of the jury trial on January 27, 2016, the jury found appellant guilty of the first count of conspiracy to commit murder, but not guilty of the second count. On February 24, 2016, the trial court sentenced appellant to serve seven years in prison. This appeal followed.

         I

         {¶ 5} In her first assignment of error, appellant asserts that the indictment omits an essential element of a conspiracy offense and, thus, violates her right to indictment by a grand jury, as provided in Article I, Section 10 of the Ohio Constitution. In particular, appellant asserts that the commission of a substantial overt act in furtherance of the conspiracy is an essential element of a conspiracy offense that must be alleged in the indictment. Appellant claims that under State v. Childs, 88 Ohio St.3d 194, 724 N.E.2d 781 (2000), the indictment's failure to allege this element renders it fatally defective and mandates a reversal of her conviction. Appellant points out that in Childs, the court held that a conspiracy indictment that fails to allege the defendant committed a substantial over act in furtherance of the conspiracy is fatally defective and warrants automatic reversal.

         {¶ 6} In response, the state raises three basic arguments to counter appellant's assertion that Childs mandates a reversal of her conviction: (1) subsequent cases have effectively overruled or limited Childs; (2) appellant had adequate notice of the charges; and (3) the indictment sufficiently alleged a substantial overt act by alleging that appellant planned or aided in planning the commission of aggravated murder.

         A

         RIGHT TO GRAND JURY INDICTMENT

         {¶ 7} Section 10, Article I of the Ohio Constitution provides: "[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury." This provision "'guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury.'" State v. Jackson, 134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, ¶12, quoting State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶14.

         B

         PURPOSES OF INDICTMENT

         {¶ 8} "The purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident." State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶7, citing Weaver v. Sacks, 173 Ohio St. 415, 417, 183 N.E.2d 373 (1962), and State v. Sellards, 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781 (1985); accord State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶11. As expounded upon in State v. Childs, 88 Ohio St.3d 194, 198, 724 N.E.2d 781 (2000):

A criminal indictment serves several purposes. First, by identifying and defining the offenses of which the individual is accused, the indictment serves to protect the individual from future prosecutions for the same offense. State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 411, 478 N.E.2d 781, 783-784. In addition, the indictment compels the government to aver all material facts constituting the essential elements of an offense, thus affording the accused adequate notice and an opportunity to defend. Id. at 170, 17 OBR at 411, 478 N.E.2d at 783.

         C

         SUFFICIENCY OF INDICTMENT

         {¶ 9} "The sufficiency of an indictment is subject to the requirements of Crim.R. 7 and the constitutional protections of the Ohio and federal ...


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