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State v. Davis9/12/2003
minor misdemeanor or a municipal ordnance (sic) the (sic) is substantially equivalent to any section contained in Title XLV (45) of the Revised Code that is a minor misdemeanor in violation of Ohio Revised Code Section 2903.04(B)."
. Although the indictment contains some typographical errors, it essentially tracks the language in R.C. 2903.04(B), which prohibits the crime of misdemeanor involuntary manslaughter. The State subsequently filed a bill of particulars, indicating that " n addition to the information contained in Count III of the indictment the defendant used a norinco (sic) model assault rifle while under the influence of alcohol or a drug of abuse or negligently caused the death of Randall D. Powers."
. On the second day of trial, the State filed a motion to amend the bill of particulars to substitute the word "recklessly" where the word "negligently" appeared. While discussing this point, the State noted that two underlying misdemeanors existed in the case - (1) being under the influence of drugs or alcohol; and (2) negligence. Concerning the latter misdemeanor, the State explained that one element of negligence was physical harm. However, the State felt the evidence at trial was more consistent with serious physical harm, as was required for the misdemeanor of assault. The State also pointed out that Davis would not be prejudiced by the amendment, since the State would be held to a higher burden of proof. The trial court agreed, and allowed the amendment over defense objection.
. In arguing that this was error, Davis's first point is that the original indictment makes no sense. We disagree. Although the indictment does contain typographical errors, and some extra words are inserted that are not completely in context, we have no difficulty understanding what crime is being alleged.
. Davis next claims that the indictment improperly lists two charges in Count III, instead of placing each charge in a separate count. Again, we disagree. Under R.C. 2941.04, indictments may charge different statements of the same offense, or may charge two or more different offenses of the same class of crimes of offenses, under separate counts. This requirement is satisfied in the present case because the two charges of involuntary manslaughter are listed in different counts.
. Count III, itself, contains only one charged offense-involuntary manslaughter as the proximate result of the offender attempting to commit a misdemeanor. The misdemeanor is not specified, but that is not a problem, because manslaughter indictments do not need to plead the specific felony or misdemeanor forming the basis for the charge. See, e.g., State v. Haffey (Sept. 2, 1993), Cuyahoga App. No.63576, 1993 WL 335443, *6.
. The bill of particulars does mention two underlying misdemeanors, but Davis does not point to any prohibition against offering more than one factual basis for a charge in the indictment. We have also not been able to find any prohibition against this procedure. We further note that Davis did not challenge the indictment on this ground in the lower court. As a result, he has waived all but plain error. State v. Reynolds, 148 Ohio App.3d 578, 581, 2002-Ohio-3811, . For the reasons just mentioned, we find no error, let alone any plain error.
. In the remaining discussion of the fourth assignment of error, Davis focuses on the amendment of the bill of particulars that occurred at trial. Davis contends that Count III did not originally contain all the essential elements of the offense and that he was convicted on different evidence than the evidence for which he was indicted. In particular, Davis argues that he went to trial with the under
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