COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68163 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION PAULA PITTMAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 16, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-312219 JUDGMENT Reversed; defendant discharged. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender JEFFREY H. MARGOLIS, Assistant ROBERT M. INGERSOLL, Assistant Prosecuting Attorney Public Defender Justice Center - 8th Floor 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1513 - 2 - JAMES M. PORTER, J., Defendant-appellant Paula Pittman appeals from her conviction following a bench trial for conspiracy to commit aggravated murder (R.C. 2323.01). Defendant contends that the evidence was insufficient to support the conviction, the indictment failed to allege every material element of the crime and she was denied her constitutional right to effective assistance of counsel who failed to object to the allegedly deficient indictment. We find merit to defendant's Assignments of Error II and III and reverse. This case arose out of defendant's plan to murder a co- worker, Veronica Adkins, who had started dating her former boyfriend, Buck, early in 1994. She expressed her intentions on numerous occasions to two of her co-workers, Michelle Albert and Holly Miller, at a Taco Bell in Parma. She described in varying details the steps she had taken and would take to achieve her ends. She attempted to involve the cooperation of Ms. Albert and Ms. Miller in her plans and threatened them if they failed to go along with her plans. Defendant indicated in these conversations that she was going to get a gun from her parent's house for the killing; she displayed three bullets she was going to use to Ms. Miller. She tried to get Miller to lure the victim over to defendant's house so that the killing could be accomplished. Ms. Miller became frightened by these matters in June 1994 and went to the Parma police and advised them of her concerns that the - 3 - murder was to take place in the next day or two. The police placed a tape recording device on Miller for conversations with defendant the next day. Further conversations reflecting defendant's plans ensued and were recorded while Miller and defendant were at work the next day. A Parma detective overheard these conversations through a transmitting device as he waited in the Taco Bell parking lot. Defendant was arrested 20 minutes after the taped conversations concluded. After her arrest, defendant gave a consensual statement to the police in which she acknowledged her conversations about killing Veronica Adkins, her plan to accomplish this by shooting her with her father's gun for which she had eleven bullets. She signed the statement and acknowledged it was consented to by her. She also voluntarily consented to a search of her bedroom in the father's house where the police found the gun and bullets in the dresser drawer on top of her clothes. Following a trial to the bench, the court entered its verdict and opinion on September 14, 1994, finding defendant guilty of the conspiracy charge. A timely appeal ensued. We will address the defendant's Assignments of Error II and III first because we find them dispositive of the appeal. - 4 - II. PAULA PITTMAN WAS DENIED HER CONSTITUTIONAL RIGHT TO NOTICE, WHEN THE INDICTMENT CHARGING HER FAILED TO ALLEGE EVERY MATERIAL ELEMENT OF THE CRIME. III. PAULA PITTMAN WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHEN COUNSEL FAILED TO OBJECT TO THE INDICTMENT WHICH WAS, AS A MATTER OF LAW, INSUFFICIENT TO CHARGE HER WITH A CRIME. The thrust of defendant's argument is that no overt act is alleged in the indictment and there is, therefore, no assurance that the grand jury found that the defendant committed an overt act in furtherance of the conspiracy. Defendant properly argues that when one of the vital elements of the crime is omitted from the indictment, the indictment is defective on its face and insufficient to charge any offense. Such a defect cannot be cured by the court, as such a procedure would permit the court to convict on a charge that was essentially different from that found by the grand jury. See, e.g., Harris v. State (1932), 125 Ohio St. 257, 264 and State v. Wozniak (1961), 172 Ohio St. 517, 520. The conspiracy statute, R.C. 2923.01(B), states that "no person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by him." The plain language of the statute requires that any indictment charging a conspiracy allege both that the defendant and another person or persons planned together to commit a crime and that one of the conspirators committed a substantial overt act in furtherance of the conspiracy. - 5 - The essential text of the indictment herein charges that between May 30 and June 8, 1994, the defendant "unlawfully and with the purpose to commit or to promote or facilitate the commission of Aggravated Murder R.C. 2903.01, did with another person or persons, to wit: Holly Miller and Michelle Albert, plan or aid in planning the commission of Aggravated Murder R.C. 2901.01." The indictment does not contain either the generic allegation of an overt act or the description of an overt act. Both the planning and the overt act are essential elements of the crime which must be alleged in the indictment. In State v. Papp (1980), 68 Ohio App.2d 21, 23, the court ruled that simply alleging the conspiracy itself, "namely, the discussion and planning of the conspiracy" is not sufficient to satisfy the requirement that a substantial overt act also be alleged in the indictment. "R.C. 2923.01(B) requires not only that a substantial overt act be alleged in the indictment, but also that it be proved." Id. at 24. The indictment herein did not plead any substantial overt act committed in furtherance of the conspiracy as R.C. 2923.01 requires. As such, the indictment was deficient on its face and any conviction obtained thereunder was void. See Harris and Wozniak, supra. There must be some assurance that defendant was indicted on the same essential facts on which she was tried and convicted. We have no such assurance here. Recently, this Court had occasion to evaluate an indictment that failed to allege an essential element of the crime charged. - 6 - State v. Vitale (1994), 96 Ohio App.3d 695. This Court stated as follows at 699: [T]here is a grave risk in this case that defendant was convicted by the trial court of a felony on evidence that was not presented to the grand jury. "[N]o 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, Ohio Constitution. This provides an inalienable protection to the defendant that he will be tried on the same essential facts on which the grand jury found probable cause. As stated in State v. Headley (1983), 6 Ohio St.3d 475, 478- 479, 6 OBR 526, 529, 453 N.E.2d 716, 720: "This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury. Harris v. State (1932), 125 Ohio St. 257, 264 [181 N.E. 104, 106]. Where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury. Id.; State v. Wozniak (1961), 172 Ohio St. 517, 520, [18 O.O.3d 58, 59], 178 N.E.2d 800, 802." In reversing Vitale's conviction, this Court noted that the issue was not whether the defendant was surprised or prejudiced by the deficient indictment, but whether the defendant "was convicted on the same evidence on which he was indicted." Id. at 701. Citing the Supreme Court of Ohio's holding that a deficient indictment is inherently prejudicial in State v. Dilley (1989), 47 Ohio St.3d 20, the Vitale court held at 701, "it does not matter whether the defendant can show prejudice." Thus, under Vitale and - 7 - Dilley, the error in the indictment in the case at bar is presumptively prejudicial requiring reversal. It is true that trial counsel did not object to the deficient indictment, but said failure does not, however, preclude this Court from deciding the issue presented. Crim. R. 52(B) allows a reviewing court to address "[p]lain errors or defects affecting substantial rights *** although they were not brought to the attention of the [trial] court." The constitutional right to be tried for the same offense for which one is indicted is one of our most fundamental constitutional rights of due process. The failure to include an essential element in an indictment does adversely affect said substantial right. Moreover, as said failure is presumptively prejudicial, see Vitale and Dilley, it did affect the outcome of the case. We find this plain error materially prejudiced the defendant's cause and requires reversal. With what we have said before, it logically follows that defendant failed to receive the effective assistance of counsel who should have attacked the deficient indictment. Such oversight cannot be excused as a mere choice of trial tactics as it goes to the heart of defendant's right to constitutional due process. In view of our disposition of Assignments of Error II and III, it is not necessary to address Assignment of Error I. See App. R. 12(A)(1)(c). We sustain defendant's Assignment of Error II and III, reverse the defendant's conviction and discharge the defendant. - 8 - It is ordered that appellant recover of appellee her costs herein taxed. It is ordered that a special mandate be sent to the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and DYKE, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .