[Cite as State v. Campbell, 100 Ohio St.3d 361, 2003-Ohio-6804.]




           THE STATE OF OHIO, APPELLEE, v. CAMPBELL, APPELLANT.
        [Cite as State v. Campbell, 100 Ohio St.3d 361, 2003-Ohio-6804.]
Criminal law — Amendment to criminal charge from one subparagraph of R.C.
        4511.19(A) to another subparagraph of the same subsection does not
        change the name and identity of the charged offense within the meaning of
        Crim.R. 7(D).
 (No. 2003-0045 — Submitted October 7, 2003 — Decided December 31, 2003.)
 CERTIFIED by the Court of Appeals for Hamilton County, No. C-010727, 2002-
                                        Ohio-6064.
                                 __________________
                               SYLLABUS OF THE COURT
The amendment of a criminal charge from one subparagraph of R.C. 4511.19(A)
        to another subparagraph of the same subsection does not change the name
        and identity of the charged offense within the meaning of Crim.R. 7(D).
                                 __________________
        O’CONNOR, J.
        {¶1}    We are presented with a question of law certified by the First
District Court of Appeals as having received conflicting answers from the various
districts. To harmonize the application of the laws of the state of Ohio, we hold
that the amendment of a criminal charge from one subparagraph of R.C.
4511.19(A) to another subparagraph of the same subsection does not change the
name and identity of the charged offense within the meaning of Crim.R. 7(B).
        {¶2}    Christopher Campbell was cited for driving while under the
influence of alcohol in violation of R.C. 4511.19 following an automobile
collision on May 26, 2001. On Campbell’s citation, the arresting officer recorded
Campbell’s “blood alcohol concentration” as “.203” and checked a box indicating
                            SUPREME COURT OF OHIO




that he obtained this result via a breath test. This information indicates that
Campbell violated R.C. 4511.19(A)(6).            The officer, however, mistakenly
indicated that the charge was for violation of R.C. 4511.19(A)(5), which may be
charged following a blood test. Campbell was charged with violating R.C.
4511.19(A)(5) and 4511.19(A)(1) and with failure to control his motor vehicle.
       {¶3}    On August 28, 2001, the state moved that the R.C. 4511.19(A)(5)
charge be amended to a charge of violating R.C. 4511.19(A)(6). The motion was
granted over Campbell’s objection, and the cause was reset for trial.            On
September 27, 2001, Campbell changed his plea to no contest on the (A)(6)
charge. The state dropped the (A)(1) charge and the charge of failure to control.
Campbell was found guilty of violating R.C. 4511.19(A)(6) and sentenced
accordingly.
       {¶4}    On appeal, Campbell argued that amending the charge violated
Crim.R. 7(D). Noting conflicting opinions from other appellate districts, the court
of appeals affirmed the conviction and certified the conflict to us. Upon due
consideration, we affirm the court of appeals.
       {¶5}    We were faced with an analogous question in State v. Spirko
(1991), 59 Ohio St.3d 1, 570 N.E.2d 229. In Spirko, we unanimously affirmed a
conviction and death sentence where the defendant claimed undue surprise
because the state had amended the charge to allege a violation of a different
paragraph of the same statute. “[I]t is clear that the state merely caused the
correct section number to be applied to the indictment. The language itself was
not changed, and it is unclear how defendant can claim that he was ‘surprised’ in
any way.” Id. at 21, 570 N.E.2d 229. This reasoning holds true here.
       {¶6}    The officer clearly indicated that he determined alcohol
concentration by a breath test. Despite the officer’s erroneous reference to R.C.
4511.19(A)(5), the substantive information provided on the citation provided
ample warning to Campbell that he was charged with violating R.C.




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                                January Term, 2003




4511.19(A)(6). There is no prejudice to the defendant and no surprise, undue or
otherwise.
       {¶7}    Subparagraphs (2) through (7) of R.C. 4511.19(A) have the same
name and identity—driving with specified concentrations of alcohol in bodily
substances. The only difference among them is the particular bodily substance
and thus the method by which evidence is obtained to prove the offense.
                                                             Judgment affirmed.
       MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
       O’DONNELL, J., concurs in judgment only.
                              __________________
       Michael K. Allen and Philip R. Cummings, for appellee.
       Richard Feil III, for appellant.
                              __________________




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