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State v. Endsley10/19/2005
nother as the proximate result of committing a violation of R.C. 4511.19(A). R.C. 4511.19(A)(1) provides that, " o person shall operate any vehicle, * * * if, at the time of the operation, any of the following" conditions apply. It then lists nine conditions.
{ } Appellant argues the indictments were defective because they did not specify which subsection of R.C. 4511.19(A) he was accused of violating. He further notes that the bill of particulars also failed to identify the subsection of R.C. 4511.19(A) that he violated. Additionally, appellant argues that the superseding indictment did not put him on notice as to what suspension appellee intended to rely on to elevate the offense from a second degree to a first degree felony.
{ } Appellant relies on State v. Headley (1983), 6 Ohio St.3d 475, 453 N.E.2d 716, for support. In Headley, the Ohio Supreme Court held that the "type of controlled substance involved in the crime of aggravated trafficking under R.C. 2925.03 is an essential element which must be included in the indictment, the omission of which cannot be cured by amendment under Crim.R. 7(D)." Id. at paragraph two of the syllabus.
{ } As was the case with appellant's first assignment of error, appellant failed to raise the issue of a defective indictment with the trial court. Thus again, appellant has waived all but plain error. In State v. Haberek (1988), 47 Ohio App.3d 35, 43, 546 N.E.2d 1361, the Eighth District noted, in a case where the defendant alleged a deficient indictment on appeal, that the defendant was provided with a bill of particulars. It then stated, "Ambiguity, if any, in the indictment which was not cured by the bill of particulars should have been brought to the attention of the court. Since defendant made no such request or motion it is presumed he possessed sufficient notice of the charges; any error in this regard is waived." Id.
{ } Furthermore, even if appellant had raised this issue in the trial court he would not have prevailed. The Ohio Supreme Court has set out what is required in an indictment as follows:
{ } "The sufficiency of an indictment is subject to the requirements of Crim.R. 7 and the constitutional protections of the Ohio and federal Constitutions. Under Crim.R. 7(B), an indictment may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.'
{ } "An indictment meets constitutional requirements if it 'first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. * * * "Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged."' Hamling v. United States (1974), 418 U.S. 87, 117-118, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 621, quoting United States v. Hess (1888), 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516, 518." State v. Childs (2000), 88 Ohio St.3d 558, 564-65 728 N.E.2d 379.
{ } Here, appellant was charged with aggravated vehicular homicide. The indictment charged the offense in the words of the statute. It also provided a statement of the facts and circumstances to info
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