[Cite as State v. Faulkner, 2019-Ohio-4549.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P .J.
        Plaintiff-Appellant                        Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2019 CA 0035
ROBERT FAULKNER

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2018 CR 0393


JUDGMENT:                                       Reversed and Remanded



DATE OF JUDGMENT ENTRY:                         November 4, 2019



APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

GARY BISHOP                                     JAMES J. MAYER, III
PROSECUTING ATTORNEY                            34 South Park Street
JOSEPH C. SNYDER                                Mansfield, Ohio 44902
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0035                                                   2


Wise, J.

       {¶1}   Plaintiff-Appellant State of Ohio appeals the April 30, 2019, amendment to

the indictment by the Richland County Court of Common Pleas.

                                  Facts and Procedural History

       {¶2}   The relevant facts and procedural history are as follows:

       {¶3}   On May 21, 2018, Appellee Robert Faulkner was indicted with a two-count

indictment. Both Counts charged Appellee with Aggravated Possession of Drugs, felonies

of the fifth-degree, in violation of R.C. §2925.11(A) and (C)(1)(a).

       {¶4}   On June 28, 2018, Appellee was arraigned and retained counsel entered

their appearance.

       {¶5}   On January 16, 2019, Appellee filed a Motion to Dismiss with the State filing

a reply on February 12, 2019. Appellee's brief argued that the indictment was invalid due

to the assertion that THC could not be prosecuted as a Schedule I controlled substance

when paired with CBD oil.

       {¶6}   On April 17, 2019, a hearing was held on the motion. At the hearing, the

parties stipulated that Count Two should be a minor misdemeanor. The substance at

issue is CBD oil and THC.

       {¶7}   At the hearing, Appellee argued that Count One should also be a minor

misdemeanor and that because of this, it should be dismissed. The State argued that

R.C. §3719.41(C)(27) lists Delta-9-Tetrahydrocannabinol as a Schedule I controlled

substance, which was present in the substance in question.
Richland County, Case No. 2019 CA 0035                                                    3


      {¶8}   On April 30, 2019, the trial court, over the State's objection, amended Count

One to a minor misdemeanor under R.C. §2925.11(A) and (C)(3)(a). The trial court then

ordered this case be transferred to Mansfield Municipal Court.

      {¶9}   The State of Ohio now appeals, assigning the following error for review:

                                      Assignment of Error

      {¶10} “I. THE TRIAL COURT ERRED IN SUA SPONTE AMENDING COUNT

ONE OF THE INDICTMENT.”

                                                I.

      {¶11} The state of Ohio argues that the trial court erred in sua sponte amending

count one of the indictment. We agree.

      {¶12} Here, the State is challenging a purely legal issue, i.e., the court's authority

to amend the charge over the prosecution's objection. Akron v. Shuman, 9th Dist. Summit

No. 18851, 1998 Ohio App. LEXIS 2472, 1998 WL 281360 (May 27, 1998).

      {¶13} Crim.R. 7(D) provides in pertinent part:

             The court may at any time before, during, or after a trial amend the

      *** complaint ***, 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. ***

      {¶14} Appellee in this case was charged with violating R.C. §2925.11(A) and

(C)(1)(a), Aggravated Possession of Drugs, a fifth degree felony. The trial court amended

the charge to R.C. §2925.11(A) and C(3)(a), Possession of Marijuana, a minor

misdemeanor.
Richland County, Case No. 2019 CA 0035                                                        4


         {¶15} The trial court clearly changed “the name or identity of the crime” in

contravention of Crim.R. 7(D). Akron v. Jaramillo, 97 Ohio App.3d 51, 646 N.E.2d 212

(9th Dist.1994), cited with approval in Cleveland Hts. v. Pearson, 8th Dist. Cuyahoga No.

72859, 1998 Ohio App. LEXIS 118, 1998 WL 12335 (Jan. 15, 1998), State v. Jackson,

78 Ohio App.3d 479, 482, 605 N.E.2d 426 (2d Dist.1992), compare Lakewood v. Sheeran,

8th Dist. Cuyahoga No. 68728, 1997 Ohio App. LEXIS 576, 1997 WL 72144 (Feb. 20,

1997).

         {¶16} In Akron v. Robertson, 118 Ohio App.3d 241, 242, 692 N.E.2d 641 (9th

Dist.1997), the court noted:

                Crim.R. 7(D), while permitting some changes to a criminal complaint

         at any time before, during or after trial, “flatly forbids the court to change the

         name or identity of the crime charged.” Akron v. Jaramillo (1994), 97 Ohio

         App.3d 51, 53, 646 N.E.2d 212. As this Court previously held in Jaramillo,

         a trial court has no discretion to amend a complaint over the state's

         objection if the amendment changes the name or identity of the crime. In

         the present case the crime originally charged, possession of marijuana, a

         drug offense, is completely different in nature from the amended charge,

         disorderly conduct, an offense against the public peace: the underlying

         elements of the two crimes are different.

                The trial court must not forget the state, as the complainant, is

         “entitled to its day in court.” Id. (citation omitted.) By amending the charge

         against Robertson, the lower court deprived the state of a fair trial. Although

         Robertson may have presented the court with facts seemingly mitigating his
Richland County, Case No. 2019 CA 0035                                                  5


       culpability, “the place to take into account facts that have occurred outside

       the crime, in order to accord the accused some broader sense of justice, is

       in the sentencing procedure after the controversy has been fairly and

       impartially determined, not in the process whereby the controversy is

       determined.” Id. at 54, 692 N.E.2d 641. (Citation omitted.) The state should

       not in such a manner be deprived of the opportunity to prove its case.

       (Emphasis added.)

       {¶17} Upon review, we find the trial court erred in amending the indictment in this

matter as it was without authority to do so.

       {¶18} The state’s sole assignment of error is sustained.

       {¶19} The judgment of the Court of Common Pleas, Richland County, Ohio, is

reversed and this matter is remanded for further proceeding consistent with the law and

this opinion.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.


JWW/d 1028
