The STATE of Ohio, Appellant, v. BUEHNER, Appellee, 161 Ohio App. 3d 546

Cooney, Presiding Judge. {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s dismissal of the indictment against defendant-appellee, Richard Buehner, for ethnic intimidation in violation of R.C. 2927.12. Finding no merit to the appeal, we affirm. {¶ 2} On April 2, 2004, Buehner was indicted on one count of ethnic intimidation.

The indictment stated that the Cuyahoga County Grand Jury found that Buehner violated “Section 2903.21 of the Revised Code by reason of race, color, religion, or national origin of another person or group of persons.” {¶ 3} Buehner moved to dismiss the indictment on the grounds that it failed to list the elements of R.C. 2903.21, thereby depriving him of sufficient notice of the charge against him. The trial court granted the motion. {¶ 4} In its sole assignment of error, the state argues that the trial court abused its discretion in dismissing the indictment as defective.

The state contends that the indictment provided Buehner with sufficient notice of the offense. To the extent that the indictment did not spell out the elements of R.C. 2903.21, the state claims that that information was available through discovery. Further, the state argues that other courts have found that indictments are sufficient when they refer to other statutes, without specifically setting forth the language of those statutes. See State v. Saunders (Dec. 1, 1993), Ross App. No. 1896, 1993 WL 524968; State v. Houseman (June 23, 1992), Allen App.

No. 1-92-23, 1992 WL 142382. {¶ 5} However, this court has previously addressed this same issue and held that using the numerical designation of an applicable criminal statute did not cure the defect in failing to charge all the material elements of a crime. State v. Wisniewski (Nov. 9, 2000), Cuyahoga App. No. 77152, 2000 WL 1689714, citing State v. Burgun (1976), 49 Ohio App.2d 112, 118-120, 3 O.O.3d 177, 359 N.E.2d 1018. See, also, State v.

Headley (1983), 6 Ohio St.3d 475, 478-479, 6 OBR 526, 453 N.E.2d 716 (“Where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court as such a procedure would permit the court to convict an accused on a charge essentially different from that found by the grand jury”).

In explaining why a mere reference to R.C. 2903.21 was insufficient to support an indictment on ethnic intimidation under R.C. 2927.12, this court stated: The crime of ethnic intimidation occurs when a person commits a specified predicate offense by reason of race, color, religion, or national origin. The degree of the ethnic intimidation offense depends upon the degree of the underlying predicate offense. R.C. 2927.12 provides as follows: (

A) No person shall violate

section 2903.21, 2903.22, 2909.06, or 2909.07, or division (A)(3), (4), or (5) of

section 2917.21 of the Revised Code by reason of race, color, religion, or national origin of another person or group of persons. (

B) Whoever violates this

section is guilty of ethnic intimidation. Ethnic intimidation is an offense of the next higher degree than the offense the commission of which is a necessary element of ethnic intimidation. The ethnic intimidation offenses the prosecution attempted to charge were fifth degree felonies because the underlying offenses of aggravated menacing were first degree misdemeanors. Under Burgun, to effectively charge an accused with the crime of ethnic intimidation, however, the prosecution must charge all material elements of the crime. The prosecution cannot effectively charge an accused with this offense by simply reciting Revised Code

section numbers * * *. The failure of the grand jury indictments * * * to specify any of these elements of the predicate offenses of aggravated menacing, rendered defective the charges of ethnic intimidation. Wisniewski, supra. {¶ 6} In light of this court’s decision in Wisniewski, we overrule the state’s sole assignment of error. Judgment affirmed. Kaepinski, J., concurs. Gallagher, J., dissents. . Buehner was originally indicted in December 2003 for the same offense. However, because the indictment failed to state the victim's name, the trial court granted Buehner's motion to dismiss.

The state subsequently reindicted Buehner on the same charge. . However, the indictments at issue in those cases identified the underlying offense by name, i.e., theft offense, in addition to citing the applicable statute. In the instant case, the words "aggravated menacing” did not appear in the indictment. . The state did not appeal our decision in Wisniewski, nor did it seek to certify a conflict.