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State v. Kolvek

Court of Appeals of Ohio, Ninth District, Summit

December 20, 2017

STATE OF OHIO Appellee
v.
ROBERT M. KOLVEK Appellant

         APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL, Presiding Judge.

         {¶1} Robert Kolvek appeals his convictions and sentences from the Summit County Court of Common Pleas. For the following reasons, this Court affirms.

         I.

         {¶2} 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.

         {¶3} 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.

         II.

         ASSIGNMENT OF ERROR I

         MR. KOLVEK'S INDICTMENT IN CR 2015-04-1206(B) VIOLATED HIS RIGHTS UNDER THE U.S. CONSTITUTION BECAUSE IT WAS DUPLICITOUS, MERITING REVERSAL.

         {¶4} 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.

         {¶5} "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).

         {¶6} 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 houses.[1]

         {¶7} 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 each charge.

         {¶8} "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, ¶ 26.

         {¶9} 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 ...


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