[Cite as Brecksville v. Bickerstaff, 2015-Ohio-5410.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102170




                               CITY OF BRECKSVILLE
                                                              PLAINTIFF-APPELLEE

                                                        vs.

                            EDWARD E. BICKERSTAFF
                                                              DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                      Criminal Appeal from the
                                   Garfield Heights Municipal Court
                                       Case No. TRD 1407405

        BEFORE: E.T. Gallagher, J., Keough, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: December 24, 2015
FOR APPELLANT

Edward E. Bickerstaff, pro se
9909 Garfield Avenue
Cleveland, Ohio 44108


ATTORNEY FOR APPELLEE

Sergio I. Digeronimo
City of Brecksville Prosecutor
8748 Brecksville Road, Suite 216
Brecksville, Ohio 44141
EILEEN T. GALLAGHER, J.:

        {¶1} Defendant-appellant, Edward E. Bickerstaff (“Bickerstaff”), pro se, appeals

from the judgment of the Garfield Heights Municipal Court finding him guilty of

violating Brecksville Ordinances (“B.C.O.”) 331.27. While Bickerstaff’s brief does not

set forth specific assignments of error as required by App.R. 16, he generally argues the

trial court erred by failing to dismiss his case where his traffic ticket erroneously

referenced an incorrect ordinance section.

        {¶2} After careful review of the record and relevant case law, we affirm the trial

court’s judgment.

                               I. Procedural and Factual History

        {¶3} In July 2014, Bickerstaff was cited in the city of Brecksville (the “City”) for

failing to change lanes away from a stationary public safety vehicle in violation of B.C.O.

331.27.1 The traffic ticket issued to Bickerstaff contained a handwritten description that

indicated that he “failed to veer left or slow speed passing police cars w/ disabled


        1   B.C.O. 331.27(b), which mirrors the language of R.C. 4511.213, states in relevant part:

(A) The driver of a motor vehicle, upon approaching a stationary public safety vehicle, an emergency
vehicle, or a road service vehicle that is displaying the appropriate visual signals by means of
flashing, oscillating, or rotating lights, as prescribed in section 4513.17 of the Revised Code, shall do
either of the following:

(1) If the driver of the motor vehicle is traveling on a highway that consists of at least two lanes that
carry traffic in the same direction of travel as that of the driver’s motor vehicle, the driver shall
proceed with due caution and, if possible and with due regard to the road, weather, and traffic
conditions, shall change lanes into a lane that is not adjacent to that of the stationary public safety
vehicle, an emergency vehicle, or a road service vehicle.
motorist.” However, the numerical citation of the offense was incorrectly written as

B.C.O. 337.27, as opposed to B.C.O. 331.27.

       {¶4} On the day of the trial, the City notified the court that Bickerstaff’s traffic

ticket contained an incorrect numerical citation. Following a brief discussion, the court

permitted the City to proceed with its case against Bickerstaff for his alleged violation of

B.C.O. 331.27. Bickerstaff, who represented himself pro se at the trial, did not raise an

objection.

       {¶5} At trial, Patrol Officer Paul Leigh (“Officer Leigh”) of the Brecksville Police

Department testified that while on patrol in his police cruiser he responded to a disabled

vehicle on Interstate 77. Officer Leigh stated that he pulled his patrol vehicle behind the

disabled vehicle and activated his overhead lights. As Officer Leigh was assisting the

disabled vehicle in the right-hand berm, Bickerstaff’s vehicle passed by “at a high rate of

speed.”      According to Officer Leigh, Bickerstaff was traveling in the lane directly

adjacent to the right-hand berm and he did not attempt to “move over” or “slow down.”

       {¶6} Based on these observations, Officer Leigh pursued Bickerstaff’s vehicle and

initiated a traffic stop. Officer Leigh testified that he cited Bickerstaff “for failing to

yield or move over passing a public safety vehicle.”

       {¶7} At the conclusion of trial, Bickerstaff was found guilty of violating B.C.O.

331.27 and fined $100, plus court costs.

       {¶8} Bickerstaff now appeals from the trial court’s judgment.

                                   II. Law and Analysis
       {¶9} In his sole assignment of error, Bickerstaff argues the trial court erred by

permitting the City to amend the ordinance section cited on his traffic ticket.

       {¶10} In traffic cases, the Ohio Uniform Traffic Ticket serves as the complaint and

summons. Traf.R. 3(A). This court has previously held that, although a traffic ticket

may contain sufficient language to apprise an offender of the nature of the charge, if it

does not contain a reference to the correct ordinance or statute violated, it is fatally

deficient, unless amended. Cleveland v. Austin, 55 Ohio App.2d 215, 380 N.E.2d 1357

(8th Dist.1978); Cleveland Hts. v. Perryman, 8 Ohio App.3d 443, 457 N.E.2d 926 (8th

Dist.1983); N. Olmsted v. Greiner, 9 Ohio App.3d 158, 458 N.E.2d 1284 (8th Dist.1983).

       {¶11} The Ohio Traffic Rules make no specific provision for the amendment of a

ticket complaint. However, they do direct that “the Rules of Criminal Procedure and the

applicable law apply” whenever “no procedure is specifically prescribed by these [traffic]

rules.” Traf.R. 20.

       {¶12} Crim.R. 7(D), provides in relevant 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.

       {¶13} Pursuant to Crim.R. 7(D), any amendment resulting in a change in the name

or identity of the crime charged is prohibited, regardless of whether the accused can

demonstrate prejudice.     Columbus v. Cordova, 10th Dist. Franklin No. 11AP-602,

2012-Ohio-1812, ¶ 9. Nevertheless, courts have distinguished between modifications
that change the name or identity of the charge and those that correct certain administrative

errors, holding “[a] trial court may, pursuant to Crim.R. 7(D), amend an indictment to

correct typographical or clerical errors.”        State v. Williams, 10th Dist. Franklin

No. 08AP-719, 2009-Ohio-3237, ¶ 12, citing State v. Alexander, 10th Dist. Franklin No.

06AP-647, 2007-Ohio-4177, ¶ 43-44. See also State v. Moore, 9th Dist. Summit No.

19544, 2000 Ohio App. LEXIS 1698 (Apr. 19, 2000); State v. Cooper, 4th Dist. Ross No.

97CA2326, 1998 Ohio App. LEXIS 2958 (June 25, 1998) (noting that “[w]here a traffic

ticket/complaint clearly sets forth the offense charged, but contains an error in the

numerical designation of the statute the defendant is alleged to have violated, so long as

the error does not prejudicially mislead the defendant, such error should be subject to

amendment under Crim.R. 7(D)”); Crim.R. 7(B).

       {¶14} Because a traffic ticket “is designed to inform a defendant of the charge

against which he must defend,” a reviewing court must evaluate the information in the

complaint to ascertain whether the requested change would deprive defendant of a

fundamental due process right to be informed of the charge. Cordova at ¶ 13, citing

State v. Alley, 11th Dist. Portage No. 2006-P-0070, 2007-Ohio-4483, ¶ 21.

       {¶15} Thus, this court has held that a traffic ticket may be amended to correct a

clerical error so long as (1) the original traffic ticket gave the defendant notice of the true

nature of the offense; (2) the defendant was not deprived of a reasonable opportunity to

prepare a defense; and (3) the amendment merely clarifies or amplifies the information in
the original ticket.        Mayfield Hts. v. Parker, 8th Dist. Cuyahoga No. 80974,

2003-Ohio-1502, ¶ 40.

          {¶16} Under the particular facts of this case, it is undeniable that the original

citation gave Bickerstaff notice of the true nature of the offense; to-wit, describing the

offense as the “failure to veer left or slow speed passing police cars w/ disabled motorist.”

 Furthermore, there is nothing in the record to suggest Bickerstaff was deprived of the

opportunity to prepare a defense to the charge. Significantly, Bickerstaff did not object

to the correction of the clerical error, and his level of preparation for his pro se defense

demonstrated his awareness that he was cited for violating B.C.O. 331.27. Lastly, we

find the amendment simply clarified the information contained on the original traffic

ticket.

          {¶17} Based on the foregoing, we find the amendment herein did not serve to

change the identity of the crime charged, but rather, served to amend the ticket so that it

correctly designated B.C.O. 331.27 as the statute violated by Bickerstaff’s “failure to veer

or slow speed” as he passed Officer Leigh’s stationary police vehicle.

          {¶18} Accordingly, we find the court did not err by permitting the City to amend

Bickerstaff’s citation to correct a clerical error. Bickerstaff’s sole assignment of error is

overruled.

          {¶19} Judgment affirmed.

          It is ordered that appellee recover from appellant costs herein taxed.

          The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the Garfield

Heights Municipal Court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR
