[Cite as State v. Rhodus, 2016-Ohio-7292.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                          Court of Appeals Nos. L-14-1255
                                                                             L-14-1256
        Appellee
                                                       Trial Court Nos. CR0201401470
v.                                                                      CR0201402091

Vicki Rhodus                                           DECISION AND JUDGMENT

        Appellant                                      Decided: October 7, 2016

                                                *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brad A. Smith, Assistant Prosecuting Attorney, for appellee.

        Eric Allen Marks, for appellant.

                                                *****

        YARBROUGH, J.

                                             I. Introduction

        {¶ 1} Appellant, Vicki Rhodus, appeals the judgment of the Lucas County Court

of Common Pleas, convicting her of nine counts of theft of drugs. For the following

reasons, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} In the months of August and September 2012, appellant was working as a

registered nurse. During that time period, she was assigned to the neurological surgery

unit on the 9th floor of the Toledo Hospital. As a nurse, part of her job duties included

the administration of certain medications to her assigned patients. Medication

distribution at the Toledo Hospital is controlled through a Pyxis machine. The Pyxis

machine is an automated medication dispensary which allows a nurse to receive

medication to administer to patients. It records the doctor’s order, the time the

medication is removed, the name of the nurse who removes the medication, the name of

the patient, and the time the medication is either administered to a patient or wasted.

       {¶ 3} On nine separate occasions between August 1 and September 16, 2012,

appellant removed dilaudid, a schedule II narcotic painkiller, from the Pyxis machine

without her patient being prescribed that particular medication. Typically, a nurse would

not be able to dispense medication from the machine that was not ordered by the doctor;

however on each of these occasions, appellant used the override to dispense the

medication outside of a doctor’s order. Pyxis records indicate that on seven occasions,

the medicine was wasted, while there is no indication what happened on the other two

occasions. The record is clear that in none of the nine instances was the medication

administered to the patient.

       {¶ 4} On March 24, 2014, appellant was indicted on one count of theft of drugs, in

violation of R.C. 2913.02(A)(3) and (B)(6), a felony of the fourth degree. The indictment




2.
alleged that on or about August 3, 20131, appellant deprived the owner of property, that

she knowingly obtained or exerted control over that property by deception, and that the

property stolen was a dangerous drug.

       {¶ 5} After pretrial negotiations failed, appellant was indicted on eight additional

counts of theft of drugs, in violation of R.C. 2913.02(A)(3) and (B)(6), all felonies of the

fourth degree. But for the date, the language of the additional counts mirrored the

language of the original indictment. All nine counts were then set for a bench trial on

September 8, 2014.

       {¶ 6} Prior to the commencement of trial, the state requested that all nine charges

be amended to reflect an alternative theory of guilt. Specifically, the state requested that

the indictments be amended to include the language in R.C. 2913.02(A)(2), that appellant

knowingly obtained the property beyond the scope of the expressed or implied consent of

the owner or person authorized to give consent. Defense counsel objected, arguing that

the amendment would change the nature of the offense. After brief arguments, the court

agreed with appellant and denied the amendments. The case then proceeded to trial.

       {¶ 7} At the close of evidence, the state renewed its motion to amend the

indictments. The state submitted case law supporting its position that the amendment

should be allowed. Defense counsel again objected, and the court took the matter under

advisement before proceeding to closing arguments. After closing arguments, the court


1
 This indictment was subsequently amended, without objection, to reflect the correct
date of August 3, 2012.




3.
began deliberations. Before deliberations were completed, the court announced its

decision to accept the amendments requested by the state. The court then gave appellant

the opportunity to present additional evidence in her defense of the charges as amended.

Appellant’s trial counsel noted that although he may have defended the case differently,

there was no additional evidence to be presented. The court then continued its

deliberation.

       {¶ 8} On September 10, 2014, the court found appellant guilty on all nine counts

of theft. Specifically, the court found that the state had proven beyond a reasonable

doubt that defendant had committed theft under the original language of the indictments,

and also under the alternative theory pursuant to R.C. 2913.02(A)(2). On October 30,

2014, appellant was sentenced to three years of community control with certain added

conditions. Appellant’s timely consolidated appeal followed.

                                B. Assignments of Error

       {¶ 9} On appeal, appellant has raised the following assignments of error for our

review:

                FIRST ASSIGNMENT OF ERROR

                THE TRIAL COURT ERRED BY AMENDING THE

       INDICTMENTS.

                SECOND ASSIGNMENT OF ERROR

                THE TRIAL COURT ERRED BY FAILING TO NOTIFY

       APPELLANT OF HER RIGHT TO HAVE A NEW TRIER OF FACT.




4.
                                        II. Analysis

       {¶ 10} In her first assignment of error, appellant suggests that the trial court erred

to the prejudice of appellant by allowing the state to amend the indictments to reflect an

alternative theory of theft. Appellant argues that the amendment changed the identity of

the crime charged by substituting the elements necessary for a conviction. We disagree.

       {¶ 11} Crim.R. 7(D) allows for the amendment of indictments under certain

circumstances and reads in pertinent part:

              (D) Amendment of indictment, information, or complaint. 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.

       {¶ 12} Appellant concedes that the amendment allowing the state to prove both

R.C. 2913.02(A)(2) and (A)(3) does not change the name of the crime charged, but

suggests that changing specific elements alters the identity of the crime.

       {¶ 13} Appellant was originally indicted under R.C. 2913.02(A)(2), which

requires proof that appellant 1) with purpose to deprive the Toledo Hospital of certain

drugs; 2) knowingly obtained or exerted control over those drugs; 3) and that she did so

by deception. The alternative theory, under R.C. 2913.02(A)(3), requires the same proof

of the first two elements. The third element under the alternative theory was that she did




5.
so beyond the scope of the express or implied consent of the Toledo Hospital or a person

authorized to give consent.

       {¶ 14} Appellant argues that this court, in State v. Leister, 6th Dist. Lucas No.

L-93-012, 1993 Ohio App. LEXIS 5895 (Dec. 10, 1993), decided this issue in appellant’s

favor. We find our decision in Leister distinguishable from the case sub judice. In

Leister, the defendant was charged with vandalism, purporting that he had done $300

worth of damage to property used by its owner in the owner’s course of business. Prior

to trial, the state moved to amend the indictment to instead claim that the defendant had

done damage to property, regardless of value, that was necessary for the owner to engage

in his profession. In that case, we held that the amendment changed the identity of the

crime by adding the element of necessity, an element the defendant was unaware he

would have to defend against.

       {¶ 15} The state points to the First District’s finding in State v. Nelson, 1st Dist.

Hamilton Nos. C-910658, C-910663, 1992 Ohio App. LEXIS 4812 (Sep. 23, 1992). In

Nelson, the court dealt with the same amendment argued in the case sub judice. In

finding the amendment appropriate, the court held that “the amended language did not

change the name or identity of the theft offense within the meaning of Crim.R. 7(D).” Id.

at 9. In making this decision, the court noted that “the bill of particulars provided

appellant with the facts necessary to defend against the charge that the money was taken

beyond the scope of the express or implied consent of the city’s police officers.” Id.




6.
       {¶ 16} Although appellant correctly states that the decision of the First District is

not binding upon this court, we agree with the rationale behind the decision. Just as in

Nelson, the record in this case demonstrates that the state provided sufficient discovery to

appellant so that she was aware of the allegations against her. Further, the state provided

a bill of particulars, specifically laying out the exact allegations against appellant. Those

allegations remained constant between the original charge and the alternative theory

provided for in the amendment. Further, the trial court offered appellant the opportunity

to present additional evidence to defend against the alternative theory. Appellant’s

counsel, after discussing this with appellant, informed the court that additional evidence

would not be necessary.

       {¶ 17} Finally, we would note that the court specifically found that the state had

proven that appellant had committed theft under the initial language of the complaint, as

well as the language of the amendment. Therefore, we find that appellant has not been

prejudiced in any way by the amendment.

       {¶ 18} Because we find that the amendment did not change the name or identity of

the theft offense, the amendment was proper under Crim.R. 7(D). As such, appellant’s

first assignment of error is not well-taken.

       {¶ 19} In her second assignment of error, appellant argues that the court abused its

discretion by not affording her the right to have a new trier of fact after allowing the

amendment. We would note at the outset that appellant never asked to remove the trier

of fact in this case.




7.
       {¶ 20} Appellant argues that when an indictment is properly amended under

Crim.R. 7(D), the accused is afforded the right to a discharge of the jury or a continuance,

and as such, an accused in a bench trial should be afforded the opportunity to discharge

the judge and proceed with a new trier of fact.

       {¶ 21} Appellant relies on State v. Martin, 12th Dist. Brown No. CA200309011,

2004-Ohio-4309. In Martin, after an amendment was allowed, which unlike in the

present case, did change the name and identity of the charge, the court asked the

defendant if he was requesting to discharge the trier of fact or declare the trial a nullity.

On appeal, the defendant argued that the case should not have been allowed to proceed

until the prejudice was cured by the filing of a new jury waiver. Id. at ¶ 25. Ultimately,

and contrary to appellant’s position, the court in Martin held that the trial court did not

err by not reopening the case or not obtaining a new jury waiver. Id. at ¶ 37. The court

also found that the trial court did not abuse its discretion in permitting an amendment of

the indictment and proceeding to the conclusion of the trial. Id. In making this finding,

the court stated:

              We agree that considerations should be made of whether the

       amendment was misleading to or prejudiced appellant. However, we are

       not persuaded by appellant’s bare assertions of prejudice. Appellant did not

       delineate how he would have handled the evidentiary portion of the trial

       differently. Id. at ¶ 29.




8.
       {¶ 22} Consistent with the court in Martin, appellant’s bare assertions of prejudice

are not persuasive. We find nothing in Crim.R. 7 to support the proposition that a new

jury waiver must be filed after an indictment is amended. Consequently, we find that the

court did not abuse its discretion in failing to notify appellant of a right to have a new

trier of fact. Appellant’s second assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 23} Based on the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with

App.R. 24.

                                                                           Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
Stephen A. Yarbrough, J.                                     JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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