[Cite as State v. Harding, 2018-Ohio-1148.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 17-CA-37
JOAN HARDING

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Municipal
                                               Court, Case No. 16CRB02283


JUDGMENT:                                      Judgment Reversed,
                                               Final Judgment Entered

DATE OF JUDGMENT ENTRY:                         March 26, 2018

APPEARANCES:

For Defendant-Appellant                        For Plaintiff-Appellee

STEPHANIE L. TACKETT                           BRIAN ZETS
Reese, Pyle, Drake & Myer, P.L.L.,             City of Pataskala Law Director
36 N. Second Street                            Issac, Wiles, Burkholder & Teetor
P.O. Box 919                                   2 Miranova Place, Suite 700
Newark, Ohio 43058-0919                        Columbus, Ohio 43215
Licking County, Case No. 17-CA-37                                                       2

Hoffman, P.J.

      {¶1}   Appellant Joan Harding appeals the judgment entered by the Licking

County Municipal Court convicting her of failure to disclose personal information (R.C.

2921.29) and sentencing her to thirty days incarceration. Appellee is the state of Ohio.1

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   On October 28, 2016, Pataskala police were summoned to the Haunted

Hoochie by security officers who were having difficulty with a female patron of the site.

The Haunted Hoochie is a haunted house attraction in Pataskala, Ohio. When Patrolman

Shane Mills arrived, he noted the woman looked like she fell on her face, and she was

visibly intoxicated. The woman smelled like alcohol, had slurred speech and glassy eyes,

and was irritated. She stated she had been assaulted in the Haunted Hoochie, but based

on video surveillance, security officers and police found her claim was not credible.

      {¶3}   The woman wanted to walk to her friend’s house, but police did not feel it

was safe for her attempt to walk on Broad Street. While waiting for medics to arrive on

the scene, police repeatedly asked her name, and she would not provide her name.

Approximately three days later, the woman was identified as Appellant from California

Bureau of Motor Vehicle records.

      {¶4}   Appellant was charged with one count of disorderly conduct while

intoxicated (R.C. 2917.11(B)) and one count of obstructing official business (R.C.

2921.31). The case proceeded to bench trial on May 8, 2017.




1  The State did not file a brief in the instant appeal. Pursuant to App.R. 18(C), we may
accept Appellant’s statement of the facts and issues as correct and reverse the judgment
if Appellant’s brief reasonably appears to sustain such action.
Licking County, Case No. 17-CA-37                                                         3


        {¶5}   After the State rested its case, the court dismissed both charges upon

Appellant’s Crim. R. 29 motion. The court then permitted the State to amend the charge,

over Appellant’s objection, to one count of failure to disclose personal information in

violation of R.C. 2321.29.

        {¶6}   Appellant testified at trial she was in Ohio for a friend’s birthday party in

Columbus. She stayed with friends in Pataskala, and one of her friends was the sister of

the owner of the Haunted Hoochie. After a dinner in a restaurant in Gahanna where an

alcoholic beverage was spilled on Appellant, she testified she toured the Haunted

Hoochie without purchasing a ticket, due to her connection to the owner’s sister. While

in the attraction, she testified she was punched in the face and ear by the gentleman

wielding a chainsaw. She testified the police officer was very aggressive toward her,

accusing her of trespassing because she did not have a ticket for the attraction. Because

of his manner, she did not believe he was a real police officer, and therefore refused to

provide him with her name.

        {¶7}   Appellant was convicted of the amended charge of failure to disclose

personal information and sentenced to thirty days incarceration, with twenty-nine days

suspended, and given credit for one day served. She was placed on probation for one

year.

        {¶8}   From the May 8, 2017 judgment of conviction and sentence Appellant

prosecutes this appeal, assigning as error:



               I. IT WAS ERROR AND A VIOLATION OF DUE PROCESS FOR

        THE TRIAL COURT TO AMEND THE CHARGES DURING TRIAL TO
Licking County, Case No. 17-CA-37                                                           4


       INCLUDE A CHARGE THAT CHANGED THE NAME AND IDENTITY OF

       THE CRIME CHARGED IN VIOLATION OF CRIMINAL RULE 7(D).

              II.   EVEN IF THE TRIAL COURT WAS NOT ERRONEOUS IN

       AMENDING THE CHARGES, THE DEFENSE COUNSEL PROVIDED

       INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO MOVE FOR

       A REASONABLE CONTINUANCE OF THE TRIAL IN THIS MATTER TO

       PRESERVE THE APPELLANT’S RIGHT TO A FAIR TRIAL IN ORDER TO

       PRESERVE JUSTICE AND PREVENT PREJUDICE.



                                                 I.

       {¶9}   In her first assignment of error, Appellant argues the trial court erred in

allowing an amendment of the crime charged which changed the name and identity of the

offense. We agree.

       {¶10} Crim. R. 7(D) provides in pertinent part, “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

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

charged.”

       {¶11} Although the rule permits most amendments, it flatly prohibits amendments

which change the name or identity of the crime charged. State v. O'Brien, 30 Ohio St.3d

122, 126, 508 N.E.2d 144 (1987). A trial court commits reversible error when it permits

an amendment which changes the name or identity of the offense charged, regardless of

whether the defendant suffered prejudice. State v. Smith, 10th Dist. Franklin No. 03AP-
Licking County, Case No. 17-CA-37                                                      5

1157, 2004-Ohio-4786, ¶10. See, also, State v. Headley, 6 Ohio St.3d 475, 453 N.E.2d

716. “Whether an amendment changes the name or identity of the crime charged is a

matter of law.” State v. Cooper (June 25, 1998), 4th Dist. Ross No. 97CA2326, 1998 WL

340700, at 1 (June 25, 1998), citing State v. Jackson, 78 Ohio App.3d 479, 605 N.E.2d

426 (1992).

      {¶12} Appellant was charged with disorderly conduct while intoxicated in violation

of R.C. 2917.11(B), which states:



              (B) No person, while voluntarily intoxicated, shall do either of the

      following:

              (1) In a public place or in the presence of two or more persons,

      engage in conduct likely to be offensive or to cause inconvenience,

      annoyance, or alarm to persons of ordinary sensibilities, which conduct the

      offender, if the offender were not intoxicated, should know is likely to have

      that effect on others;

              (2) Engage in conduct or create a condition that presents a risk of

      physical harm to the offender or another, or to the property of another.



      {¶13} She was also charged with obstructing official business as defined by R.C.

R.C. 2921.31:



              (A) No person, without privilege to do so and with purpose to prevent,

      obstruct, or delay the performance by a public official of any authorized act
Licking County, Case No. 17-CA-37                                                          6


      within the public official's official capacity, shall do any act that hampers or

      impedes a public official in the performance of the public official's lawful

      duties.

                (B) Whoever violates this section is guilty of obstructing official

      business. Except as otherwise provided in this division, obstructing official

      business is a misdemeanor of the second degree. If a violation of this

      section creates a risk of physical harm to any person, obstructing official

      business is a felony of the fifth degree.



      {¶14} After dismissing both charges upon Appellant’s Crim. R. 29 motion for

directed verdict of acquittal, the court amended the charge to failure to disclose personal

information as defined by R.C. R.C. 2921.29:



                (A) No person who is in a public place shall refuse to disclose the

      person's name, address, or date of birth, when requested by a law

      enforcement officer who reasonably suspects either of the following:

                (1) The person is committing, has committed, or is about to commit

      a criminal offense.

                (2) The person witnessed any of the following:

                (a) An offense of violence that would constitute a felony under the

      laws of this state;

                (b) A felony offense that causes or results in, or creates a substantial

      risk of, serious physical harm to another person or to property;
Licking County, Case No. 17-CA-37                                                       7


              (c) Any attempt or conspiracy to commit, or complicity in committing,

       any offense identified in division (A)(2)(a) or (b) of this section;

              (d) Any conduct reasonably indicating that any offense identified in

       division (A)(2)(a) or (b) of this section or any attempt, conspiracy, or

       complicity described in division (A)(2)(c) of this section has been, is being,

       or is about to be committed.



       {¶15} We find the amendment was clearly a change in both the identity and the

name of the offense from the two offenses with which Appellant was originally charged.

As such, the amendment was prohibited by the plain language of Crim. R. 7(D).

       {¶16} The first assignment of error is sustained.

                                                  II.

       {¶17} The second assignment of error is rendered moot by our disposition of the

first assignment of error.
Licking County, Case No. 17-CA-37                                                   8


       {¶18} The May 8, 2017, judgment of conviction and sentence is vacated.

Pursuant to App. R. 12(B), we hereby enter final judgment acquitting Appellant of the

offense of failure to disclose personal information in violation of R.C. 2921.29.


By: Hoffman, P.J.

Delaney, J. and

Wise, Earle, J. concur
