2016 OHIO 5775 - State v. McKenzie

[Cite as State v. McKenzie,

2016-Ohio-5775

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,                                           CASE NO. 13-16-07

       PLAINTIFF-APPELLEE,

      v.
                                                         OPINION
FENTON MCKENZIE,

       DEFENDANT-APPELLANT.


                     Appeal from Tiffin-Fostoria Municipal Court

                                Trial Court No. 15TRD2539

                                     Judgment Affirmed

                          Date of Decision: September 12, 2016



APPEARANCES:

        Tim A. Dugan for Appellant

        Hunter M. Brown for Appellee
Case No. 13-16-07


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Fenton McKenzie (“McKenzie”) brings this

appeal from the judgment of the Tiffin Municipal Court granting the State’s motion

to amend the citation. For the reasons set forth below, the judgment is affirmed.

       {¶2} On July 15, 2015, McKenzie was issued a citation for speeding. Doc.

1. The citation indicates that the speed was over the legal limit and was a violation

under R.C. 4511.21(D)(1).

Id.

 However, the citation stated that the speed was six

miles per hour (“mph”) in a 55 mph zone.

Id.

 On August 7, 2015, the State filed a

motion to amend the citation to reflect that McKenzie was actually traveling at 67

mph in the 55 mph zone. Doc. 4. The motion indicated that the trooper had

mistakenly entered “6” instead of “67” in the system.

Id.

 McKenzie objected to the

amendment claiming that it would change the penalty or degree of the charged

offense and that the change is prohibited by Crim.R 7(D). Doc. 7. A hearing was

held on the motion and on December 9, 2015, the trial court granted the motion to

amend the citation. Doc. 14. On December 28, 2015, McKenzie changed his plea

to one of “no contest” and was found guilty of the speed violation. Doc. 18.

McKenzie appeals the judgment and raises one assignment of error.

       The trial court erred in amending the complaint that changed the
       identity of the charge.




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Case No. 13-16-07


       {¶3} On appeal, Mckenzie claims that the trial court was prohibited from

amending the citation by Crim.R. 7(D) and the Ohio Supreme Court’s ruling in State

v. Davis,

121 Ohio St.3d 239

2008-Ohio-4537

903 N.E.2d 609

.

       The court may at any time before, during, or after a trial amend
       the … complaint …, 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.

Crim.R. 7(D). The Supreme Court in Davis indicated that an indictment cannot be

amended if it would alter the name of the offense or the identity of the crime.

Davis, supra.

 The identity of a crime is changed when the penalty or degree of the offense

is altered by the amendment. Id. at ¶ 5.

       {¶4} In this case, the sole change to the complaint was one which stated the

factual speed that McKenzie was traveling.        The citation, aka the complaint,

provided notice to McKenzie that he had been driving at a speed in excess of the

posted speed limit in violation of R.C. 4511.21(D)(1). This statute provides notice

that to be an offense, the driver had to be operating the vehicle in excess of 55 mph.

Id. The error on the ticket was that the officer wrote 6 instead of 67. However, this

error had nothing to do with either the name of the offense or the identity of the

crime charged. The typographical error went to an underlying fact in support of the

offense, not the crime itself. The documents provided in support of the motion to

amend the citation included the information that McKenzie indicated that he “knew

he was doing 65, was looking for a speed limit sign, coming from Toledo” and that

                                           -3-
Case No. 13-16-07


he was cited for driving 67 mph in a 55 mph speed zone. Doc. 4. The information

sought to be amended was just an evidentiary element, the speed which McKenzie

was traveling, that would need to be proven at trial. The proof would not have come

from the citation, but from the testimony of the trooper. McKenzie received notice

of the name and identity of the offense with which he was charged. No change was

made to either of these by the amendment. Thus, pursuant to Crim.R. 7(D), the

State could amend the complaint and the trial court did not err in permitting the

State to do so. The assignment of error is overruled.

       {¶5} Having found no error in the particulars assigned and argued, the

judgment of the Tiffin Municipal Court is affirmed.

                                                              Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/hls




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