FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE Nos. CR 2010 03 0633(A), CR 2010 06 1617,
CR 2010 10 2988(A), CR 2015 04 1206(B), CR 2015 05 1474(A)
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, Presiding Judge.
Robert Kolvek appeals his convictions and sentences from the
Summit County Court of Common Pleas. For the following
reasons, this Court affirms.
In April 2015, Akron police officers found materials and
equipment used in the manufacturing of methamphetamine during
their search of two houses. After police connected Mr. Kolvek
to the locations, the Grand Jury indicted him for illegal
manufacture of drugs, illegal assembly or possession of
chemicals for the manufacture of drugs, and aggravated
possession of drugs. A few days later, police arrested Mr.
Kolvek after he and a woman attempted to purchase Sudafed
from a store. Following his arrest, the Grand Jury indicted
him for another count of illegal assembly or possession of
chemicals for the manufacture of drugs. The State also
charged Mr. Kolvek with violating the terms and conditions of
the community control he received upon being released early
from prison in three prior cases.
The indicted charges were consolidated for trial, and a jury
found Mr. Kolvek guilty of the offenses. In light of the
jury's verdicts, the trial court found that Mr. Kolvek
violated the terms and conditions of his community control.
It, therefore, ordered him to serve the remainder of his
prison sentences in the prior cases. It also sentenced him to
a total of 12 years imprisonment for the new offenses, which
it ordered to run consecutively to his prior sentences. Mr.
Kolvek has appealed, assigning five errors.
OF ERROR I
KOLVEK'S INDICTMENT IN CR 2015-04-1206(B) VIOLATED HIS
RIGHTS UNDER THE U.S. CONSTITUTION BECAUSE IT WAS
DUPLICITOUS, MERITING REVERSAL.
Mr. Kolvek argues that the indictment that arose out of the
search of the two houses did not adequately inform him about
what he would have to defend against at trial. He notes that
one of the searches occurred on Archwood Avenue and the other
on Stanley Road. The first count of the indictment, however,
only accused him of manufacturing methamphetamine in the
presence of the children that live at the Archwood Avenue
house. He, therefore, thought that all of the counts arose
out of the search of the Archwood Avenue house. According to
Mr. Kolvek, he did not learn that the State was also accusing
him of committing offenses at the Stanley Road house until
trial was imminent.
"An indictment meets constitutional requirements if it
first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he
must defend, and, second, enables him to plead an acquittal
or conviction in bar of future prosecutions for the same
offense." State v. Jackson, 134 Ohio St.3d 184,
2012-Ohio-5561, ¶ 13, quoting State v. Childs,
88 Ohio St.3d 558, 565 (2000); see Crim. R.7(B). In
addition, under Revised Code Section 2941.03(D), an
indictment must indicate that the offense "was committed
at some place within the jurisdiction of the court[.]"
An indictment is not "required to list the precise
actions which constitute an offense." State v.
Brust, 4th Dist. Pike No. 95CA551, 1995 Ohio App. LEXIS
5681, *18 (Nov. 20, 1995) (concluding that indictment that
included the county of the offense was not defective for
failing to include a place of occurrence).
Mr. Kolvek has not alleged that the indictment failed to
contain the elements of each offense or that he is not
protected from future prosecution for the same offenses. Each
count indicated that it occurred with Summit County,
satisfying Section 2941.03(D). Accordingly, upon review of
the record, we reject Mr. Kolvek's argument that the
indictment was defective because it did not indicate that the
alleged offenses arose out of the searches of both
Mr. Kolvek also argues that the indictment was impermissibly
duplicitous because it charged multiple acts in the same
count. According to Mr. Kolvek, because the charges accused
him of committing offenses at both the Stanley Road house
and, separately, at the Archwood Avenue house, the jury
became confused about what evidence it could consider for
"Duplicity in an indictment is the joinder of two or
more separate offenses in a single count." State v.
Abuhilwa, 9th Dist. Summit No. 16787, 1995 Ohio App.
LEXIS 1260, *14 (Mar. 29, 1995). "The prohibition
against duplicity is geared to protect the accused's
Sixth Amendment right to notice of the nature of the charge
against him and prevent confusion as to the basis of the
verdict." State v. Smith, 9th Dist. Summit No.
8869, 1978 Ohio App. LEXIS 8415 (Oct. 4, 1978); see
generally Cooksey v. State, 752 A.2d 606, 609-618
(Md.App.2000). The fact that an indictment is duplicitous,
however, does not compel its dismissal. R.C. 2941.28(B).
"Instead, the trial court may sever the indictment into
separate indictments or separate counts." State v.
Ward, 9th Dist. Lorain No. 09CA009720, 2011-Ohio-518,
¶ 5. Alternatively, the court may give an instruction on
unanimity to the jury. State v. Johnson, 46 Ohio
St.3d 96, 104-105 (1989); State v. Miller, 9th Dist.
Lorain Nos. 10CA009922, 10CA009915, 2012-Ohio-1263, ¶
At trial, Mr. Kolvek moved to dismiss the indictment because
it included offenses allegedly committed at two different
locations under the same charge. When the court denied his
motion, Mr. Kolvek did not request that the court sever the
charge into two separate counts or request an instruction on
unanimity. Severing the charge or including a unanimity
instruction would have prevented juror confusion about what
evidence it could consider for each offense and would have
avoided the possibility that the jury's verdict would not
be unanimous. See Crim.R. 31(A). Although Mr. Kolvek
has not forfeited plain error regarding the court's
failure to sever the charges or its failure to provide a
unanimity instruction, he has not developed an argument in
his brief that the trial court committed plain error when it
failed to sever the ...