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Indictment for Charged Offense Is Valid Without Listing Elements of Underlying ‘Predicate’ Offense
2005-1347. State v. Buehner, 2006-Ohio-4707.
Cuyahoga App. No. 84985, 161 Ohio App.3d 546, 2005-Ohio-2828. Judgment reversed and cause remanded.
Resnick, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Moyer, C.J., and Pfeifer, J. dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4707.pdf
(Sept. 27, 2006) In a 5-2 decision announced today, the Supreme Court of Ohio held that a criminal indictment that tracks the statutory language of the charged offense and identifies a predicate offense by referring to its statute number need not also include each element of the predicate offense.
The case involved Richard Buehner of Cleveland, who was indicted by a Cuyahoga County grand jury for the 5 th degree felony offense of “ethnic intimidation.” R.C. 2927.12 defines ethnic intimidation as the commission of one of several “predicate” criminal offenses, including menacing and aggravated menacing, with the additional factor that the predicate offense was committed for the purpose of intimidating another person based on the victim's race, color, religion or national origin.
The Cuyahoga County Common Pleas Court granted a pretrial motion to dismiss the charge against Buehner on the ground that the indictment was defective. On review, the 8th District Court of Appeals affirmed the trial court, holding 2-1 that, because the grand jury indictment charging Buehner with intimidation mentioned the predicate offense of aggravated menacing only by reference to its statute number, and did not detail the essential elements of the crime of aggravated menacing, the indictment did not adequately inform the defendant of the charge against him. The Cuyahoga County prosecutor's office appealed the 8th District's ruling and the Supreme Court agreed to hear arguments in the case.
Writing for the majority in today's decision, Justice Alice Robie Resnick held that the indictment obtained by prosecutors in the case was sufficient to meet the due process rights of the defendant.
Quoting from this Court's 2000 decision in State v. Childs and a 1974 U.S. Supreme Court decision, Hamling v. United States, Justice Resnick wrote: “An indictment meets constitutional requirements if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.' Further, we have previously rejected the argument [in State v. Murphy (1992)] that an indictment is defective for the state's failure to identify the elements of the underlying offense of the charged crime. … The state's failure to list the elements of a predicate offense in the indictment in no way prevents the accused from receiving adequate notice of the charges against him.”
In this case, wrote Justice Resnick, “the indictment followed the language of the charged offense, ethnic intimidation in violation of R.C. 2927.12. An element of the offense of ethnic intimidation is that the accused violated one of the predicate offenses identified in the ethnic-intimidation statute by reference to the statute numbers. In this case, the indictment specifically identified one of the predicate offenses listed in the ethnic-intimidation statute – R.C. 2903.21. As the dissenting member of the appellate panel stated, it is the predicate offense itself and not the elements of the predicate offense that is an essential element of the charged offense. Therefore, the indictment in this case was sufficient to provide the appellee with adequate notice of the charge against him.”
Justice Resnick's opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger.
Chief Justice Thomas J. Moyer entered a dissenting opinion that was joined by Justice Paul E. Pfeifer. The Chief Justice noted that the provision of the Ohio Constitution requiring grand jury indictment prior to a felony prosecution (Section 10, Article I) not only guarantees notice to a defendant regarding the specific crime(s) with which he is being charged, but also “requires a grand jury to consider every element of a charged offense before issuing an indictment. When an indictment refers to a predicate offense only by statute number, uncertainty exists as to whether the grand jury considered the elements of the underlying offense.”
In this case, the Chief Justice wrote, Buehner's indictment on a charge of ethnic intimidation required the grand jury to find probable cause both that he committed all elements of the predicate offense of aggravated menacing and that his motive for committing that offense was to intimidate the victim based on race, religion or one of the other criteria spelled out in the intimidation statute. Because the indictment in this case did not state the elements of the crime of aggravated menacing, the Chief Justice wrote, “there is no evidence that the grand jury found probable cause for each of (those elements).” Suggesting that it would have taken “minimal additional effort” for the state to set out for the grand jury the elements of the predicate offense in this case, Moyer wrote: “In view of the important constitutional protection at stake, we should require the state to include the elements of a predicate offense in an indictment.”
Contacts
Kelley Barnett, 216.443.7612, for
the State of Ohio and Cuyahoga County prosecutor's office.
David Doughten, 216.361.1112, for Richard Buehner.
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