[Cite as State v. Madding, 2011-Ohio-3865.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :            C.A. CASE NO.    24412

v.                                                       :            T.C. NO.    10CRB11846

EDWARD W. MADDING                                        :            (Criminal appeal from
                                                                       Municipal Court)
        Defendant-Appellant                    :

                                                         :

                                              ..........

                                              OPINION

                         Rendered on the           5th       day of      August     , 2011.

                                              ..........

EBONY N. WREH, Atty. Reg. No. 0080629, Assistant City Prosecutor, 335 W. Third Street,
Rm. 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

DENNIS L. BAILEY, Atty. Reg. No. 0017205, Assistant Public Defender, 117 S. Main Street,
Suite 400, Dayton, Ohio 45422
       Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Edward W. Madding appeals his conviction and sentence for

one count of resisting arrest, in violation of R.C. 2921.33(B), a misdemeanor of the first degree.

As a result of his conviction, Madding was ordered to serve ninety days in jail, with seventy-one
                                                                                           2

days of his sentence suspended. The trial court gave Madding jail time credit for nine days he

already served and ordered him to pay court costs. Additionally, the trial court placed Madding

under non-reporting community control for two years. Madding filed a timely notice of appeals

with this Court on December 21, 2010.

                                                   I

       {¶ 2} On December 1, 2010, Dayton Police Officer Adam Sharp was on routine patrol

in a marked cruiser when he observed a motor vehicle matching the description and license plate

of a vehicle which had recently fled during a traffic stop initiated by another Dayton police

officer. Officer Sharp followed the vehicle until the driver, later identified as Madding, pulled

into a parking lot and stopped. Upon exiting his cruiser, Officer Sharp displayed his taser and

ordered Madding to put his hands up and step out of the vehicle. Madding complied with the

officer’s request but kept dropping his hands to his sides.     Officer Sharp testified that he

repeatedly ordered Madding to put his hands back up on top of his vehicle.

       {¶ 3} Shortly thereafter, Officer Gregory Orick arrived at the parking lot in order to

assist Officer Sharp. Officer Orick informed Madding that he was being detained on suspicion

of fleeing and eluding and ordered him to place his hands behind his back. Madding resisted

and the officers had to forcibly handcuff him. Officer Orick attempted to perform a pat down

search of Madding before placing him in the back of a police cruiser. Madding refused to

cooperate during the pat down and tried to pull away from Officer Orick.

       {¶ 4} Officer Orick then attempted to place Madding in the back of his cruiser, but

Madding intentionally fell to the ground and refused to walk any farther. Madding refused to

stand up even after being repeatedly asked to by both officers. With no other alternative, the
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officers began pulling Madding by his pants’ legs. At this point, Madding began kicking the

officers. Officer Orick was struck several times in the back of his leg, while Madding kicked

Officer Sharp in his left hand. At trial, both officers testified that they suffered pain as a result

of being kicked by Madding.

       {¶ 5} Madding was subsequently arrested and charged by complaint with resisting arrest

pursuant to R.C. 2921.33(A), characterizing it as a first degree misdemeanor. On December 1,

2010, Madding was arraigned and pled not guilty to the charge. At the conclusion of the bench

trial held on December 9, 2010, defense counsel asserted that the complaint incorrectly

characterized R.C. 2921.33(A) as a first degree misdemeanor, when it is actually a misdemeanor

of the second degree. The State then moved to amend the complaint to reflect a violation of

R.C. 2921.33(B) which is, in fact, a first degree misdemeanor. Defense counsel objected. The

trial court granted the State’s motion to amend pursuant to Crim. R. 7(D) and found Madding

guilty of resisting arrest, in violation of R.C. 2921.33(B), a misdemeanor of the first degree. The

trial court sentenced Madding to ninety days in jail plus court costs, gave him credit for nine days

already served, suspended seventy-one days of the sentence, and ordered to him to serve the

remaining ten days in jail. The court also sentenced Madding to two years of non-reporting

community control.

       {¶ 6} It is from this sentence that Madding now appeals.

                                                     II

       {¶ 7} Madding’s first assignment of error is as follows:

       {¶ 8} “THE TRIAL COURT ERRED IN ALLOWING THE AMENDMENT OF THE

COMPLAINT AT THE CONCLUSION OF THE TRIAL, THEREBY ELEVATING THE
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DEGREE OF THE OFFENSE AND CHANGING THE ELEMENTS.”

       {¶ 9} In his first assignment, Madding contends that the trial court erred when it granted

the State’s motion to amend the complaint which originally charged him with a violation of R.C.

2921.33(A), which is, in fact, a second degree misdemeanor, to a violation of R.C. 2921.33(B),

which is a first degree misdemeanor. Specifically, Madding asserts that the amendment was a

violation of Crim. R. 7(D) because it changed the penalty or degree of the offense. At issue in

this assignment is whether the trial court’s application of Crim. R. 7(D) was proper.

       {¶ 10} Crim. R. 7(D) provides in 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.” However, Crim. R.

7(B) also states in part that: “Error in the numerical designation or omission of the numerical

designation shall not be ground for dismissal of the indictment or information, or for reversal of a

conviction, if the error or omission did not prejudicially mislead the defendant.”

       {¶ 11} Because amendment is allowed under Crim. R. 7(D) in the court’s discretion, our

review is for abuse of discretion. State v. Brumback (1996), 109 Ohio App.3d 65, 81; State v.

Lewis (1993), 85 Ohio App.3d 29, 32-33. In addition, a defendant must show prejudice as a

result of the amendment. Brumback, 109 Ohio App.3d at 81.

       {¶ 12} The complaint stated as follows:

       {¶ 13} “Edward W. Madding (Defendant), in the City of Dayton in Montgomery County,

in the State of Ohio, on or about December 1, 2010, did commit the offense of RESISTING

ARREST, in violation of section 2921.33 A1.M1 of the Ohio Revised Code.
                                                                                           5

           {¶ 14} “IN THAT EDWARD W. MADDING DID UNLAWFULLY, BY FORCE,

RESIST A LAWFUL ARREST WHICH RESULTED IN PHYSICAL HARM TO A LAW

ENFORCEMENT OFFICER.”

           {¶ 15} In the instant case, the name and the identity of the charged offense did not

change, as Madding was charged both before and after the amendment with resisting arrest.

Prior to the amendment, the complaint clearly denominated Madding’s offense as a first degree

misdemeanor. After the numerical amendment, the charged offense was, in fact, a first degree

misdemeanor. The only aspect of the complaint that was altered was the subsection designation

from R.C. 2921.33(A)(1) to R.C. 2921.33(B). We note that every essential element of R.C.

2921.33(B) was set forth in the original complaint, thereby specifically placing Madding on

notice that he was charged with resisting arrest which resulted in physical harm to a police

officer.

           {¶ 16} Madding asserts in his argument that the court erred in permitting an amendment

to the complaint. To support this argument, Madding cites State v. Davis, 121 Ohio St.3d 239,

2008-Ohio-4537. Davis, however, is distinguishable from the instant case. In Davis, the trial

court amended an aggravated drug trafficking charge, finding that the amount of oxycontin found

in the defendant’s possession was more than five times the bulk amount. Id. at 240. This

amendment changed the degree of the charged offense from a felony of the fourth degree, to a

felony of the second degree. Id. While the Court in Davis recognized that an amendment is

proper if it does not change the penalty or the degree of the offense, it held that an amendment

that does alter the penalty or degree implicitly alters the identity of the offense and is not

permitted under Crim. R. 7(D). Id. at 243.
                                                                                           6

       {¶ 17} However, in the instant case, both the identity and the degree of the offense were

known to the defendant at all times. In addition to the complaint labeling the offense as a first

degree misdemeanor, and citing Madding for resisting a lawful arrest “which resulted in physical

harm to a law enforcement officer,” the Public Defender Intake Referral Sheet, signed by

Madding, correctly indicates that he had been charged with a first degree misdemeanor.

Accordingly, the penalty or the degree of the offense remained unchanged after the typographical

error in the complaint was corrected.

       {¶ 18} Upon review of the transcript of the trial, we conclude that Madding was not

prejudiced by the amendment of the incorrect subsection designation in the complaint. The

record establishes that Madding was aware that he was charged with causing physical harm to the

police officers while resisting arrest as evidenced by his counsel’s questioning regarding the

nature and extent of the injuries suffered by the police officers during cross-examination of the

State’s witnesses. This is exemplified in the following exchange between defense counsel and

Officer Sharp:

       {¶ 19} “Defense Counsel: OK, you indicated that as the two of you are pulling

[Madding], he’s lying on his back, his hands handcuffed behind his back, and you’re pulling him

each of you on a pants leg across a paved parking lot?

       {¶ 20} “Officer Sharp: Yes.

       {¶ 21} “Q: And he’s kicking and thrashing at that point?

       {¶ 22} “A: He starts kicking, yes.

       {¶ 23} “Q: OK, you indicated that you got kicked on your hand one time?

       {¶ 24} “A: Yes.
                                                                                           7

       {¶ 25} “Q: Did it cause a laceration?

       {¶ 26} “A: No.

       {¶ 27} “Q: Break any bones?

       {¶ 28} “A: No.

       {¶ 29} “Q: Did you miss any work?

       {¶ 30} “A: No.

       {¶ 31} “Q: Did you seek medical attention?

       {¶ 32} “A: No.”

       {¶ 33} After reviewing the record, we find no abuse of discretion. To the contrary, the

trial court acted reasonably in allowing the amendment to the complaint. The record also

establishes that Madding was not prejudiced by the amendment. Neither the name nor the

identity of the offense of resisting arrest in violation of R.C. 2921.33 was changed when the

Revised Code designation in the complaint was amended. The complaint listed the offense as a

misdemeanor of the first degree and included the essential element of physical harm to a police

officer. The only error in the complaint was the subsection designation. The instant case

presents a perfect example of the reason behind Crim. R. 7(D), thus allowing for the amendment

of a complaint in the event of a simple typographical error which neither misleads nor prejudices

the defendant.

       {¶ 34} Madding’s first assignment of error is overruled.

                                                    III

       {¶ 35} Madding’s second and final assignment of error is as follows:

       {¶ 36} “THE      COURT’S     FINDING      OF       GUILT   TO   THE    FIRST    DEGREE
                                                                                            8

MISDEMEANOR RESISTING ARREST WAS BASED ON INSUFFICIENT EVIDENCE.”

       {¶ 37} In his second assignment, Madding argues that his conviction for resisting arrest

in violation of R.C. 2921.33(B) was not supported by sufficient evidence.

       {¶ 38} If the evidence that supports a material element of an offense is insufficient, the

defendant must be acquitted of that offense. In reviewing a claim of insufficient evidence, the

relevant inquiry is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Britton, 181 Ohio App.3d 415, 2009-Ohio-1282. A guilty

verdict will not be disturbed on appeal unless “reasonable minds could not reach the conclusion

reached by the trier of fact.” State v. Cole, Miami App. No. 2009 CA 20, 2010-Ohio-1608.

       {¶ 39} R.C. 2921.33(B) states as follows:

       {¶ 40} “No person, recklessly or by force, shall resist or interfere with a lawful arrest of

the person or another person and, during the course of or as a result of the resistance or

interference, cause physical harm to a law enforcement officer.”

       {¶ 41} “Physical harm” is defined in R.C. 2901.01(A)(3) as “any injury, illness, or other

physiological impairment, regardless of its gravity or duration.”

       {¶ 42} Madding argues that the evidence does not support a finding that he caused harm

to either of the officers while he resisted arrest. Essentially, Madding asserts that since neither

officer had visible injuries or required medical attention, there was no physical harm.

       {¶ 43} In State v. Cole, we found sufficient evidence of physical harm to support a

conviction under R.C. 2921.33(B) when an officer complained of soreness in his knee after being

kicked by a defendant during an arrest. Miami App. No. 2009 CA 20, 2010-Ohio-1608. The
                                                                                          9

officer, however, did not have any trouble walking, seek medical attention, or miss work due to

being kicked. Id.

        {¶ 44} Additionally, we have previously held that evidence of visible injury is not

necessary to prove that physical harm has occurred. In Dayton v. Hadley (June 2, 1986),

Montgomery App. No. 9509, the defendant grabbed the witness by her arms with enough force to

cause pain, but not enough to cause any bruising or other physical signs of injury. In analyzing

the plain meaning of the term “pain” and the definition of “physical harm” within the statute at

issue, we found that “physical harm” encompasses any form of pain, no matter how fleeting. Id.

“We find no indication that pain must be evidenced by an outward physical manifestation in

order to constitute ‘physical harm.’” Id.

        {¶ 45} In the present case, Officer Sharp testified that he was in pain after Madding

kicked him in the hand while attempting to resist arrest. Officer Orick testified that Madding

kicked him several times causing “sharp” pains. Officer Orick further testified that one of

Madding’s kicks caused his leg to buckle. Although neither officer sought medical attention or

missed any work because of Madding’s kicks, the evidence adduced at trial was sufficient to

establish that Madding caused physical harm to Officers Sharp and Orick.

        {¶ 46} Madding’s final assignment of error is overruled.

                                                   IV

        {¶ 47} All of Madding’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

                                              ..........

        FAIN, J., concurs.
                                                                                            10

       GRADY, P.J., dissenting:

       {¶ 48} I respectfully dissent from the decision of the majority.

       {¶ 49} Crim.R. 7(B) governs the nature and content of an indictment or information. It

provides, in pertinent part:

       {¶ 50} “Each count of the indictment or information shall state the numerical designation

of the statute the defendant is alleged to have violated. Error in the numerical designation or

omission of the numerical designation shall not be grounds for dismissal of the indictment or

information, or for reversal of a conviction, if the error or omission did not prejudicially mislead

the defendant.”

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

       {¶ 52} “The court may at anytime 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.” (Emphasis supplied)

       {¶ 53} At the conclusion of his trial, Defendant brought to the court’s attention the fact

that the complaint charging him with a violation of R.C. 2921.33(A), which is a second degree

misdemeanor, incorrectly alleged that the crime is a first degree misdemeanor. Absent a finding

that an error in the numerical designation of the offense had prejudicially misled the Defendant,

the defect was not ground for dismissal of the complaint. Crim.R. 7(B). On that basis, the

court could convict Defendant of the second degree misdemeanor charged.               Instead, over

Defendant’s objection, the court “corrected” the defect by amending the complaint to change the

numerical designation of the offense charged to a first-degree misdemeanor offense, R.C.
                                                                                            11

2921.33(B), and convicted Defendant of that first degree misdemeanor offense.

       {¶ 54} In State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, the Supreme Court held

that amending an indictment to change the penalty or degree of the charged offense changes the

identity of the offense in violation of Crim.R. 7(D), and is error. In Davis, contrary to the

suggestion made by the majority in the present case, the Supreme Court did not predicate its

holding on a due process failure involving a lack of notice. Instead, the Court explained that

changing the name or identity of an offense charged in an indictment violates Section 10, Article

I of the Ohio Constitution, which provides that “no person shall be held to answer for a capital, or

otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Changing the

name or identity of a charged offense permits a conviction for a criminal violation which the

grand jury neither considered nor found. Id.

       {¶ 55} Subsequently, in State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, the

Supreme Court, relying on Davis, held:

       {¶ 56} “{¶5} The Ohio Constitution provides that ‘no person shall be held to answer for a

capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.’

Section 10, Article I. Crim.R. 7(A) mirrors the constitutional provision by requiring that all

felonies, absent proper waiver, be prosecuted by indictment. Indictments may be amended

‘before, during, or after a trial * * * , provided no change is made in the name or identity of the

crime charged.’ Crim.R. 7(D)”

       {¶ 57} Section 10, Article I, by its terms, applies to felony offenses. Nevertheless, per

Rohrbaugh, Crim.R. 7(D), which also applies to complaints by which misdemeanor offenses are

charged, extends the protections of Section 10, Article I to misdemeanor offenses. Crim.R. 3
                                                                                       12

provides that the complaint must “state the numerical designation of the statute or ordinance”

allegedly violated.

       {¶ 58} Pursuant to the holdings in Davis and Rohrbaugh, the trial court erred when it

amended the complaint to charge an offense that is a first degree misdemeanor, R.C. 2921.33(B),

instead of the second degree misdemeanor offense originally charged, R.C. 2921.33(A), because

the amendment changed the degree of the charged offense, thereby changing the identity of the

offense charged in violation of Crim.R. 7(D). I would reverse Defendant’s conviction for a

violation of R.C. 2921.33(B) and remand the case to enter a conviction for the lesser-included

offense, R.C. 2921.33(A).

                                         ..........

Copies mailed to:

Ebony N. Wreh
Dennis L. Bailey
Hon. John S. Pickrel
