The STATE of Ohio, Appellee, v. WILKINSON, Appellant, 178 Ohio App. 3d 99

Walters, Judge. {¶ 1} Defendant-appellant, Malik S. Wilkinson, appeals the judgment of the Montgomery County Common Pleas Court convicting him of escape, R.C. 2921.34(A), a felony of the second degree, and sentencing him to a prison sentence of four years. Wilkinson claims that the trial court erred in allowing the indictment against him to be amended to include dates subsequent to the date the grand jury returned the indictment. For the reasons set forth herein, we reverse the trial court’s judgment. {¶ 2} Wilkinson was convicted in 1986 of felonious assault of a peace officer. R.C. 2903.11(D)(1).

He was sentenced to serve from six to 25 years in prison. On March 29, 2005, Wilkinson was released on parole. {¶ 3} The terms of his parole required Wilkinson to keep his parole officer advised of his place of residence. Following his discharge from a residential program on January 25, 2006, Wilkinson failed to present himself for supervision or submit a current place of residence. {¶ 4} On May 10, 2006, Wilkinson was charged by indictment for the crime of escape, R.C. 2921.34(A), a felony of the second degree. The indictment charged that Wilkinson’s offense occurred from January 24 through January 31, 2006.

He was subsequently arrested on June 4, 2006, for violating the terms of his parole. {¶ 5} Three days prior to defendant’s trial, the state moved to amend the indictment to allege that the escape offense occurred between January 24 and June 4, 2006, the date defendant was arrested. Defendant objected. The trial court allowed the amendment, finding that it did not change the elements of the crime of escape that the state was required to prove.

Defendant then entered a plea of no contest to the escape charge and was sentenced to an agreed prison term of four years. {¶ 6} Defendant timely appealed to this court from his conviction and sentence. His appellate counsel filed an Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, stating that he could not find any meritorious issue for appellate review. In a decision and entry filed on July 20, 2007, this court found arguable merit in defendant’s contention that the trial court erred when it granted the state’s motion to amend the indictment.

Accordingly, we appointed new appellate counsel to raise that issue in defendant’s direct appeal. Wilkinson now asserts three assignments of error for our consideration. First Assignment of Error {¶ 7} “The court erred in granting the amendment of the indictment as the state violated Wilkinson’s due process rights when the date range on the indictment was amended and expanded. Second Assignment of Error {¶ 8} “In allowing the changing of the dates on the indictment, the prosecution changed the identity of the crime, thus violating Wilkinson’s constitutional rights.

Third Assignment of Error {¶ 9} “The trial court erred in finding Wilkinson guilty, accordingly, Wilkinson’s conviction should be reversed and this court should enter a judgment of acquittal.” {¶ 10} In these related assignments of error, Wilkinson argues that the trial court erred in allowing the state to amend the indictment, over his objection, by expanding the time frame during which defendant’s escape offense occurred from the period originally specified, January 24 through January 31, 2006, to a greatly expanded period of January 24 through June 4, 2006. Wilkinson relies on the holdings of State v.

Vitale (1994), 96 Ohio App.3d 695, 645 N.E.2d 1277, and State v. Plaster, 164 Ohio App.3d 750, 2005-Ohio-6770, 843 N.E.2d 1261, claiming that the expanded time frame changed the identity of the crime charged and created a substantial risk that his conviction was based upon acts that were never presented to or considered by the grand jury. The state claims that Crim.R. 7(

D) permits the amendment here. {¶ 11} Crim.R. 7(

D) governs amendment of indictments and provides: {¶ 12} “(

D) The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.

If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant’s motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant’s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury.” {¶ 13} In this case, unlike in Plaster and Vitale, the trial court could properly enlarge the dates in the indictment, pursuant to Crim.R. 7(D), because defendant’s failure to report to his parole officer, which is the basis of the alleged breaking of detention in violation of R.C. 2921.34(A)(1), was a continuing, recurring offense and a pattern of conduct spanning every day until defendant was finally apprehended.

That apprehension occurred on June 4, 2006. In both Plaster and Vitale, the offenses that were charged in the amended indictment involved discrete instances of the commission of the same crime over a period of time, not a continuing course of conduct, such as the escape charge here. See also State v. Honeycutt, Montgomery App. No. 19004, 2002-Ohio-3490, 2002 WL 1438648. {¶ 14} Because the exact date and time of the offense are not elements of the crime of escape under R.C. 2921.34(A)(1), the failure to provide an exact date or time is not a basis for dismissing the charge. State v.

Sellaras (1985), 17 Ohio St.3d 169, 17 OBR 410, 478 N.E.2d 781; State v. White (April 17, 1986), Greene App. No. 85 CA 38, 1986 WL 4613. Furthermore, because the date and time are not elements of the offense of escape, and because the crime of escape is a continuing course of conduct that does not involve the commission of discrete offenses during the time frame, any change in the date does not change the name or identity of the crime charged.

White, Crim.R. 7(D). {¶ 15} In Honeycutt, we held, consistent with that rationale, that an amendment did not change the name or identity of the crime charged in the indictment because the amendment merely charged a pattern of conduct in which the additional time frame involved the same crime. However, unlike here, the amendment to the Honeycutt indictment did not include dates subsequent to the return of the indictment. {¶ 16} While Crim.R. 7(

D) attempts to embody the protection guaranteed by

Section 10,

Article I of the Ohio Constitution that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury,” in this case it fails in one very important respect. {¶ 17} That constitutional guarantee not only protects the accused but also serves the public at large, as a barrier against unjust prosecution. See State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, at ¶ 17; State v. Joseph (1995), 73 Ohio St.3d 450, 466, 653 N.E.2d 285 (Moyer, C.J., dissenting).

This “presentment” is the sine qua non of the state invoking its power to prosecute an individual absent a clear waiver of that important right by the individual accused. {¶ 18} It is clear that the date of an offense is not an essential element of the offense that is required to be stated in the indictment. Nonetheless, R.C. 2941.05 provides that an indictment generally “is sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.” And, among other things, it “is sufficient if it can be understood therefrom: * * * (

E) That the offense was committed at some time prior to the time of finding of the indictment.” (Emphasis added.) R.C. 2941.03. In this case, the amended indictment obviously describes an offense that was committed both prior to and subsequent to the finding of the indictment by the grand jury. The effect of the amendment, including the dates between May 10, 2006, and June 4, 2006, is that the amended indictment charges a crime that had not yet occurred at the time the grand jury returned it.

This is clearly improper. {¶ 19} Consequently, the amended indictment does not fail for reason of the failure to notify the defendant of the crime that he has allegedly committed, because the crime itself has not changed, and the amendment is otherwise proper pursuant to Crim.R. 7. However, by amending the indictment to include dates after the filing of the indictment, it is also clear that the crime alleged in the amended indictment was, at least in part, neither presented to nor considered and returned by the grand jury, and the amended indictment is therefore improper.

It is conceivable that the finder of fact in such a case might find the defendant guilty of a criminal act occurring only after the return of the indictment, but not based upon any acts prior thereto. {¶ 20} The amended indictment is not valid for the reason that it included dates subsequent to the filing of the indictment returned by the grand jury, and therefore, the trial court erred in amending the indictment to include dates after the return of the indictment.

The first assignment of error is sustained, the second assignment of error is overruled, and the third assignment of error is moot. {¶ 21} The judgment of conviction and sentence entered by the Montgomery County Common Pleas (Jourt is reversed, and the cause is remanded for further proceedings consistent herewith. Judgment reversed and cause remanded. Fain, J., concurs. Grady, J., dissents. Sumner E. Walters, J., retired, of the Third District Court of Appeals, sitting by assignment.