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State v. Davis9/12/2003
standing that he was charged with involuntary manslaughter as a result of handling weapons while intoxicated. Davis further claims that he would have pled guilty if he had known he was being charged with negligently causing Powers's death, since that charge, at most, is a misdemeanor.
. We disagree with this analysis. In the first place, the indictment clearly indicates that Davis was not charged merely with a misdemeanor. As a further matter, the bill of particulars states that Davis used an "assault rifle while under the influence of alcohol or a drug of abuse or negligently caused" Powers' death. The use of the disjunctive term "or" indicates two potential grounds of liability, not just one. If the State had intended to link alcohol with negligence, it would have used the word "and." We also note that defense counsel specifically acknowledged at trial that the bill of particulars alleged two underlying misdemeanors.
. Under Crim. R. 7(D), the court may amend the indictment or bill of particulars at any time before, during, or after trial, "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." In the present case, the name and identity of the charged crime did not change, as Davis was charged both before and after the amendment with involuntary manslaughter as a proximate cause of committing a misdemeanor.
. An indictment does not have to recite the evidence supporting various facts. Instead, the indictment must contain "language sufficient to alert the person named therein that certain generally specified conduct constitutes a violation of an existing statute." State v. Gingell (1982), 7 Ohio App.3d 364, 367. In fact, an indictment " `may be in the words of the applicable section of the statute so long as the words of that statute charge an offense.' " State v. O'Brien (1987), 30 Ohio St.3d 122, 124, quoting Crim. R. 7(B).
. In contrast, the purpose of a bill of particulars is "to provide the accused, upon proper demand, with greater detail concerning the nature of the offense charged and of the criminal conduct alleged to constitute the offense, and is appropriately supplied where the indictment, although legally sufficient in describing the elements of the charged offense, is so general in nature that the accused is not given a fair and reasonable opportunity to prepare his defense." 7 Ohio App.3d at 367.
. In the present case, the indictment was not defective. The bill of particulars did reveal additional information about the criminal conduct alleged to have caused the offense. The conduct was the use of drugs or alcohol or a negligent assault. In fact, the trial court indicated, in discussing the amendment, that it had already used negligent assault in preparing instructions to the jury. The State then remarked that the evidence was more consistent with a simple assault, and that was the reason for changing the term "negligently" to "recklessly."
. In arguing that the amendment was improper, Davis also relies on State v. Headley (1983), 6 Ohio St.3d 475, which held that an indictment cannot be amended to include the type of a controlled substance involved in an aggravated trafficking charge. In Headley, the indictment alleged that the defendant had knowingly provided money or other items of value to permit others to obtain and sell controlled substances. However, the type of drug was not specified, and the trial court later let the state amend the indictment to identify the drug as cocaine. Id. at 475.
. The statute in question covered more than one offense, and the severity of the o
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