[Cite as State v. Wright, 2016-Ohio-5894.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00028
JOHNNY R. WRIGHT                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Canton Municipal
                                                   Court, Case No. 2015CRB05763



JUDGMENT:                                          Reversed and Remanded



DATE OF JUDGMENT ENTRY:                            September 19, 2016

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOE MARTUCCIO
CANTON LAW DIRECTOR
TASHA FORCHIONE                                    BERNARD HUNT
ASSISTANT CITY PROSECUTOR                          2395 McGinty Rd. N.W.
218 Cleveland Ave. S.W.                            North Canton, OH 44720
Canton, OH 44702
Stark County, Case No. 2016CA00028                                                         2

Gwin, P.J.

       {¶1}   Defendant-appellant Johnny R. Wright [“Wright”] appeals his conviction and

sentence after a jury trial in the Canton Municipal Court on one count of Child Enticement

in violation of R.C. 2905.05(C).

                                   Facts and Procedural History

       {¶2}   Twelve-year-old S. S. was a sixth grader at Lehman School. On December

16, 2015, around 4:17 pm she had gotten off the school bus when Wright said to her "Hey

pretty girl...Hey pretty girl; come over here...come here.” He then told her “don't run.”

She ran home and informed her parents of the event. S.S. testified that Wright’s tone of

voice was not threatening or menacing; rather his tone of voice was “Nice.” (T. at 91).

S.S. further testified that as she ran Wright said, “Come back.” (T. at 95). S.S. identified

Wright as the man who had approached her.

       {¶3}   S. S. further testified that she was afraid of Wright because he was a

stranger and she was taught not to talk to strangers. She was unable to tell if she was

followed because she did not look back. (T. at 95).

       {¶4}   Canton Police Officer Steve Shackle was on routine patrol on December

16, 2015, along with his partner when they received a trouble call. While investigating

that call, Wright came up to them and kept repeating, "Hey pretty little lady"..."Hi.” (T. at

103). Wright was then put into an available police cruiser. Officer Shackle later spoke to

S.S.’s, father, who related that he was hunting for the person who had scared his

daughter. Officer Shackle spoke to S.S. and narrowed the area to roughly the nine

hundred block of McKinley N.W. She related the same incident and use of words. Wright,

who was still in the cruiser, again repeated the phrase "Hey pretty little lady.”
Stark County, Case No. 2016CA00028                                                        3


       {¶5}   Officer Shackle testified on cross-examination that he has had contact

with Wright many times and has concerns for Wright’s mental health. (T. at 110).

       {¶6}   Officer Shackle testified S. S.’ s statements, her level of fear of harm, and

her fear that Wright would get her, led him to charge Wright with Criminal Child

Enticement, R.C. 2905.05 (A)(1).

       {¶7}   Prior to trial, on January 11, 2016 Wright’s attorney moved to dismiss the

complaint on the grounds that the Ohio Supreme Court had ruled R.C. 2905.05(A)(1)

unconstitutional in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156.

       {¶8}   Also on January 11, 2016, the state filed a written motion to amend the

charge to R.C. 2905.05(C). Wright’s attorney filed a written motion to continue the trial in

the event the trial court was to grant the state’s motion to amend.

       {¶9}   The trial court addressed all three motions on the record before the start of

the jury trial on January 11, 2016. The trial court overruled defense counsel’s motion to

dismiss, granted the state’s motion to amend and denied the defense a continuance.

       {¶10} The jury found Wright guilty of the amended charge. The court sentenced

Wright to serve one hundred twenty days in the Stark County Jail, pay court costs, and

have no contact with the minor victim. The court scheduled a hearing regarding the issue

of sex offender registration.    The state advised the court regarding the statutes,

explaining that the Revised Code explicitly required registration for Section 2905.05(A)

and (B), but not subsection (C). The court found that Wright was required to register

because subsection (C) is identical to subsection (A).

                                      Assignments of Error

       {¶11} Wright raises four assignments of error,
Stark County, Case No. 2016CA00028                                                                            4


          {¶12} “I.       THE TRIAL          COURT       ERRED WHEN              IT   OVERRULED            THE

APPELLANT'S MOTION FOR CONTINUANCE.

          {¶13} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE

APPELLANT'S CRIMINAL RULE 29, MOTION FOR ACQUITTAL.

          {¶14} “III. THE TRIAL COURT ERRED WHEN IT HELD THAT THE APPELLANT

WAS REQUIRED UNDER 2905.05 (C) TO REGISTER AS A CHILD VICTIM

OFFENDER, WHICH REQUIRES REGISTRATION.

          {¶15} “IV.         OHIO        REVISED         CODE         SECTION         2905.05        (C)     IS

UNCONSTITUTIONAL AS WRITTEN BECAUSE IT IS DEFINED AS CRIMINAL,

CONDUCT WHICH INCLUDES PROHIBITIONS AGAINST THE CONSTITUTION'S

PROTECTED ACTIVITY.”

                                                             I.

          {¶16} Although the assignment of error states that it was error to deny the defense

a continuance in response to the state’s amendment of the charge, the argument Wright

sets forth appears to be that the trial court erred in permitting the state to amend the

charge1. In the interest of justice, we shall attempt to address Wright’s arguments.

          {¶17} The function of an indictment or a complaint is to give adequate notice to

the defendant of what he is being charged with and a fair chance to defend. State v.

Sellards 17 Ohio St.3d 169, 170, 478 N.E.2d 781(1985). A criminal indictment serves

two purposes. First, an indictment “compels the government to aver all material facts

constituting the essential elements of an offense,” providing the accused adequate notice

and the opportunity to defend the charges. State v. Childs, 88 Ohio St.3d 194, 198, 724


          1   We note that the state addressed the issue of the propriety of the amendment in the appellee brief
at 7-8.
Stark County, Case No. 2016CA00028                                                       5


N.E.2d 781(2000). Second, the indictment, “by identifying and defining the offense, * * *

serves to protect the accused from future prosecutions for the same offense.” Id.

      {¶18} In the case at bar, Wright was originally charged with a violation of R.C.

2905.05(A),

              (A) No person, by any means and without privilege to do so, shall

      knowingly solicit, coax, entice, or lure any child under fourteen years of age

      to accompany the person in any manner, including entering into any vehicle

      or onto any vessel, whether or not the offender knows the age of the child,

      if both of the following apply:

              (1) The actor does not have the express or implied permission of the

      parent, guardian, or other legal custodian of the child in undertaking the

      activity.

              (2) The actor is not a law enforcement officer, medic, firefighter, or

      other person who regularly provides emergency services, and is not an

      employee or agent of, or a volunteer acting under the direction of, any board

      of education, or the actor is any of such persons, but, at the time the actor

      undertakes the activity, the actor is not acting within the scope of the actor’s

      lawful duties in that capacity.

      {¶19} Crim.R. 7(D) specifies when a court may permit an amendment to an

indictment,

              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, or of any variance
Stark County, Case No. 2016CA00028                                                        6


      with the evidence, provided no change is made in the name or identity of

      the crime charged. If any amendment is made to the substance of the

      indictment, information, or complaint, or to cure a variance between the

      indictment, information, or complaint and the proof, the defendant is entitled

      to a discharge of the jury on the defendant's motion, if a jury has been

      impaneled, and to a reasonable continuance, unless it clearly appears from

      the whole proceedings that the defendant has not been misled or prejudiced

      by the defect or variance in respect to which the amendment is made, or

      that the defendant's rights will be fully protected by proceeding with the trial,

      or by a postponement thereof to a later day with the same or another jury.

      Where a jury is discharged under this division, jeopardy shall not attach to

      the offense charged in the amended indictment, information, or complaint.

      No action of the court in refusing a continuance or postponement under this

      division is reviewable except after motion to grant a new trial therefor is

      refused by the trial court, and no appeal based upon such action of the court

      shall be sustained nor reversal had unless, from consideration of the whole

      proceedings, the reviewing court finds that a failure of justice resulted.

      {¶20} In the case at bar, the charge against Wright was amended to R.C.

2905.05(C),

              (C) No person, for any unlawful purpose other than, or in addition to,

      that proscribed by division (A) of this section, shall engage in any activity

      described in division (A) of this section.
Stark County, Case No. 2016CA00028                                                        7


       {¶21} Upon examination of the statute, it is readily apparent that the amendment

in the instant matter did not change the name of the crime charged; however, because

we find that the two offenses contain different elements, we find the amendment did

indeed change the identity of the crime.

       {¶22} R.C. 2905.05(C) adds an additional element “unlawful purpose” which is not

contained in R.C. 2905.05(A). As R.C. 2905.05(A) has been declared unconstitutional,

then R.C. 2905.05(C) must contain different or additional elements from R.C. 2905.05(A)

in order for the state to proceed under R.C. 2905.05(C). If it did not, then R.C. 2905.05(C)

would suffer from the same infirmity that caused the Ohio Supreme Court to declare R.C.

2905.05(A) unconstitutional. In fact, R.C. 2905.05(C) requires the state to prove beyond

a reasonable doubt that the accused acted “for any unlawful purpose other than or in

addition to that proscribed by division (A)…”

       {¶23} Under Crim.R. 7(D), a change in the name or identity of the charged crime

occurs when an indictment or complaint is amended so that the offense alleged in the

original indictment or complaint and the offense alleged in the amended indictment or

complaint contain different elements requiring independent proof. See State v. Fairbanks,

172 Ohio App.3d 766, 2007–Ohio–4117, 876 N.E.2d 1293, ¶ 19–21 (12th Dist.); State v.

Moore, 8th Dist. Cuyahoga No. 103123, 2016-Ohio-2836, ¶28; State v. Trimble, 4th Dist.

Pickaway No. 13CA8, 2013-Ohio-5094, ¶13.

       {¶24} Because Crim.R. 7(D) flatly prohibits an amendment to an indictment,

information, or complaint that changes the name or identity of the crime charged therein,

Wright need not demonstrate that he suffered any prejudice as a result of the forbidden

amendment. State v. Pignaloso, 11th Dist. Portage No. 2006-P-0068, 2007-Ohio-3194,
Stark County, Case No. 2016CA00028                                                       8

¶30; State v. Smith, 10th Dist. Franklin No. 03AP-1157, 2004-Ohio-4786, ¶10; State v.

Rihm, 101 Ohio App.3d 626, 629, 656 N.E.2d 372(2nd Dist. 1995); Middletown v. Blevins,

35 Ohio App.3d 65, 67, 519 N.E.2d 846 (12th Dist. 1987); see also, State v. Wozniak,

172 Ohio St. 517, 520-521, 178 N.E.2d 800(1961). A trial court's decision allowing an

amendment that changes the name or identity of the offense charged constitutes

reversible error regardless of whether the accused can demonstrate prejudice.

      {¶25} For the forgoing reasons, Wright’s first assignment of error is sustained.

                                         II. III and IV.

      {¶26} In light of our disposition of Wright’s first assignment of error, we find

Wright’s second, third and fourth assignments of error to be premature.
Stark County, Case No. 2016CA00028                                                 9


      {¶27} The judgment of the Canton Municipal Court is reversed and this matter is

remanded for proceedings in accordance with our opinion and the law.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur