State v. Marinik2/1/1989
Baird, P.J.
Defendant-appellant, Christopher Marinik, was indicted oscharges of aggravated vehicular homicide in violation of R.C. 2903.06(A), involuntary manslaughter in violation of R.C. 2903.04(B), leaving the scene of an accident in violation of R.C. 4549.02, and driving a vehicle with a concentration of ten-hundredths of one percent or more by weight of alcohol in his blood in violation of R.C. 4511.19(A)(2), following an incident in which the vehicle he was driving struck and killed a young woman riding a bicycle. Following a trial to a jury, appellant was convicted on each of the counts, the fourth of which had been amended. The state elected to dismiss the conviction of involuntary manslaughter. Appellant was sentenced to one and one-half to five years with a lifetime driver's license suspension on the conviction on aggravated vehicular homicide, six months concurrent and a fine of $750 on the conviction of driving with a .10 percent concentration of alcohol in violation of R.C. 4511.19 (A)(3) following the amendment of the indictment, and six months concurrent and a fine of $500 on the conviction of failure to stop and give information. It is from this conviction that appellant appeals, raising two assignments of error.
"The trial court erred when the State of Ohio was permitted to amend the indictment from an alleged violation of R.C. 4511.19(A)(2) to a violation of R.C. 4511.19(A)(3) thereby denying defendant his right to due process as guaranteed under the Fourteenth Amendment, United States Constitution."
At the close of the state's evidence, appellant moved for acquittal on the charge of violating R.C. 4511.19(A)(2). This was based on the fact that the state had presented no evidence on his blood-alcohol concentration, but had presented breathalyzer results which would support a conviction only under R.C. 4511.19(A)(3), with which appellant was not charged. Following the appellant's motion, the state moved to amend the indictment to a charge of violating R.C. 4511.19(A)(3). The trial court permitted the amendment over appellant's objection.
Crim. R. 7(D) sets forth the provisions for amending an indictment as follows:
"Amendment of indictment, information or complaint. 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, provided no change is made in the name or identity of the crime charged * * *." (Emphasis added.)
Thus, an indictment may be amended during trial only so long as the name or identity of the offense with which a defendant is charged does not change. State v. O'Brien (1987), 30 Ohio St.3d 122, 125-126, 30 OBR 436, 439, 508 N.E.2d 144, 147; Cleveland Heights v. Perryman (1983), 8 Ohio App.3d 443, 445, 8 OBR 567, 569, 457 N.E.2d 926, 928. An amendment to an indictment which changes the name or identity of the offense charged is forbidden by Crim. R. 7(D). Middletown v. Blevins (1987), 35 Ohio App.3d 65, 67, 519 N.E.2d 846, 848. Additionally, since Crim. R. 7 flatly prohibits amendments to indictments which change the name or identity of the charges, appellant need not show that a request for a continuance was denied or demonstrate any prejudice as a result of the forbidden amendment. Id.
Charges of violation of R.C. 4511.19(A)(2) and 4511.19(A)(3) for concentration of blood to alcohol and breath to alcohol, respectively, are separate offenses. State v. Wilcox (1983), 10 Ohio App.3d 11, 12, 10 OBR 17, 18, 460 N.E.2d 323, 325; State v.
Mendieta (1984), 20 Ohio App
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