COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68508 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MIDTOWN CENTER MARKET : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 11, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-306,450 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor FRANK GASPER, Assistant JOHN W. MONROE, Assistant Justice Center, Courts Tower 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113 For defendant-appellant: JAMES R. WILLIS Attorney at Law Courthouse Square Building, #350 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113 JOHN V. CORRIGAN, J.: Defendant Midtown Center Market, Inc. (hereafter referred to as "Midtown") appeals from a conviction for illegal use of food stamps and assigns three errors for our review. For the reasons set forth below, we affirm. On February 3, 1994, defendant Midtown, its employee Nazih Chedid and the Aurora Market, Inc. (hereafter referred to as "Aurora") were indicted for trafficking in food stamps. In the first count of the indictment, the state alleged that on or about November 8, 1993, Midtown negligently allowed an employee to sell, transfer or exchange food stamp coupons for cash, in violation of R.C. 2913.46(B). In count two, the state alleged that on or about November 8, 1993, Midtown employee Nazih Chedid possessed, bought, sold or transferred food stamps in violation of the Food Stamp Act of 1977. In count three, Aurora was charged with accepting food stamps in violation of the Food Stamp Act of 1977. The charges against the defendants proceeded to a jury trial on December 8, 1994. For its case against Midtown, the state presented the testimony of Cleveland Police Detectives Sharon Dickerson and Helen Parries, United States Secret Service Special Agent Gerard Rooney and United States Department of Agriculture, Food and Consumer Service employee William Krause. - 3 - Detective Dickerson testified that in October 1993, she was assigned to work on food stamp investigations undertaken by the Cleveland Police Department, the Department of Agriculture and the Secret Service. In connection with this investigation, the police were issued food stamps and recorded their serial numbers. Thereafter, on November 8, 1993, Dickerson and her partners drove an undercover vehicle to Midtown. Dickerson approached the counter with an envelope containing $300 in food stamps and asked defendant Chedid if he would buy them. According to Dickerson, Chedid told her that she had to buy food, so she picked up two boxes of cereal, then returned to the counter with the envelope containing food stamps. Chedid removed a booklet of fifty stamps from the envelope, tore out two $5 coupons and gave the booklet back to her. He then placed the envelope of remaining food stamps into a drawer beneath the cash register, gave Dickerson $3 and loose change and told her to wait while he attended to other customers in the store. Later, Chedid retrieved the food stamps from the drawer and went to the office area of the store. When he returned, he gave Dickerson $190 in currency. She subsequently photocopied the currency and recorded the serial numbers of the food stamps which Chedid had retained. On cross-examination, Dickerson admitted that she did not record the transaction in the store on audio or video tape and that a portion of her written report does not indicate that she purchased cereal. She further admitted that signs were posted in - 4 - the store which indicated that it is illegal to traffick in food stamps. Detective Parries testified, over strenuous defense objec- tion, that on October 8, 1993, or one month prior to the incident giving rise to the indictments, she went to Midtown with $300 in food stamps and approached a clerk working at the office. Parries passed the stamps to the clerk and asked if she could obtain cash for them. The clerk directed Parries to the pharmacy area of the store. Parries displayed the stamps to a man on a public tele- phone near this area, who asked her, "How much?" Parries said, "Three," and the man returned to the office area, spoke with the clerk, then returned to the telephone, picked up the receiver and reached out for the stamps. He turned his back and counted the stamps then said, "Two twenty-five," and gave Parries $225 in currency. Parries then exited the store and later prepared a report which detailed the transaction and listed the serial numbers of the food stamps which she had sold. On cross-examination, Parries stated that following the raids made in connection with this matter, during which various mer- chants were arrested, she was unable to identify the man who had accepted her food stamps. She further admitted that although she had been in the store on numerous occasions, she had never seen him in the store before or after that date. In addition, Parries was unable to identify the clerk who had directed her to this man. Finally, Parries admitted that the transaction was not recorded. - 5 - Special Agent Rooney testified that he reviewed the serial numbers of various food stamps which were recovered following arrests and determined that the food stamps which Detective Parries had exchanged for cash on October 8, 1993 were subsequently redeemed at defendant Aurora. On cross-examination, Rooney admitted that he was unable to recover the food stamps sold on November 8, 1993. William Krause testified that his office administers the food stamp program for the federal government and manages licensing of stores, administrative disciplinary action of stores and redemp- tion of stamps in an area which includes Cuyahoga County. He further stated that Midtown became licensed to redeem food stamps in 1989, but its license was withdrawn on August 3, 1994. Krause further testified that merchants are permitted to give currency in exchange for food stamps only when they are giving $.99 or less in change for a purchase. Following presentation of the state's case, Midtown moved for a judgment of acquittal, and the following exchange occurred: [By the Prosecuting Attorney:] We ask the court to amend the period of time to reflect the period from October 8th to November 8th, 1993, to conform to the evidence in this case as to the de- fendants involved ***. [By the Court:] *** I'm going to allow *** the indictment to be amended to show the negligent conduct on the earlier date. - 6 - (Tr. 205-207). The court then denied the motion for acquittal as to defendants Midtown and Chedid but granted it as to defendant Aurora. Midtown elected to put forth evidence and presented the tes- timony of Elie Abboud. Abboud testified that he and his brothers operated five stores, including Midtown and Aurora, and also operated various money exchanges which issue food stamps. In early 1993, he received complaints from clients that people near their establishments had offered to buy food stamps for cash. In re- sponse, Abboud contacted Barbara Simmons Jones and Sarah Sesner of the Welfare Department. Upon their advice, Abboud posted signs indicating that it is illegal to sell food stamps, and he also contacted Commander Joe Sadie, Joe Brady and John Fryer of the Cleveland Police Department. Abboud subsequently met with Brady and Fryer and gave them a tour of some of the establishments. At this time, he explained that the trafficking in food stamps had adversely affected his business. Abboud further testified that he hired a detective to deter- mine whether any of his employees were involved in illegal activ- ities and that it was the policy of the corporation to discourage and prohibit any employee from dealing in food stamps. Finally, Abboud testified that he was not at Midtown on October 8, 1993 and November 8, 1993. Nazih Chedid testified that he is the manager of Midtown. He further stated that his job duties confine him to a bullet-proof - 7 - counter and that he does not wait on customers outside of this area. Chedid denied seeing Det. Dickerson on November 8, 1993 and also denied purchasing food stamps from her or any other indivi- duals. The matter was subsequently submitted to the jury. Midtown was later convicted of illegal use of food stamps, the face value of which were determined to be $200 or more. In addition, Chedid was convicted of trafficking in food stamps, the value of which were determined to be $500 or less. I. Midtown's first assignment of error states as follows: THE COURT ERRED AND THE DEFENDANT WAS DENIED DUE PROCESS WHEN THE COURT AMENDED THE INDICTMENT, IN WHICH THE GRAND JURY HAD CHARGED A "SINGLE ACT" OFFENSE OF TRAFFICKING IN FOOD STAMPS IN VIOLATION OF R.C. OF OHIO, SECTION 2913.46(B)(2), TO CHARGE THE DEFENDANT WITH HAVING COMMITTED A DIFFERENT OFFENSE, ONE HAVING DIFFERENT PARAMETERS THAN THE CHARGE MADE BY THE GRAND JURY. Within this assignment of error, Midtown contends that the trial court erroneously authorized an "amendment" of the charges issued in the indictment, and thereby violated R.C. 2941.30 and Crim. R. 7(D), when it allowed the state to introduce evidence that on October 8, 1993, Helen Parries exchanged food stamps for currency at Midtown and then instructed the jury that it was to consider whether defendant Midtown was criminally negligent between - 8 - this date and November 8, 1993. This assignment of error lacks merit. As an initial matter, we note that in State v. Ambrosia (1990), 67 Ohio App.3d 552, 556-557, the court held that Ohio's Criminal Rules do not require the time and date of an alleged offense to be specified in the indictment. The court also noted that the Supreme Court of Ohio has likewise held that the exact time and date of an alleged offense need not be specified in the indictment unless the time and date are essential elements of the offense. See State v. Sellards (1985), 17 Ohio St.3d 169, 171. Accord State v. Staples (1993), 88 Ohio App.3d 359, 363; R.C. 2941.08(B). Further, pursuant to R.C. 2941.03(E), an indictment is suffi- cient if it can be understood from the document that an offense was committed "at some time prior to the time of finding" of the indictment. See State v. Price (1992), 80 Ohio App.3d 35, 38. Pursuant to R.C. 2941.08(B), an indictment or information is not made invalid for stating time imperfectly. Amendments are governed by Crim.R. 7(D), which provides in pertinent part as follows: The trial court may at any time *** amend the indictment *** in respect to any *** variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to *** cure a vari- ance between the indictment *** and the proof, the accused is entitled to a discharge of the jury on his motion *** and to a reasonable continuance, unless it clearly appears from the whole proceedings that he has not been misled - 9 - or prejudiced by the *** variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. *** No appeal based upon such action of the court shall be sustained, nor reversal had, unless from a consideration of the whole proceedings, the reviewing court finds that a failure of justice resulted. Thus, it has been held that defects in an indictment of form or substance or of variance with the evidence may be corrected by the court at any time before, during or after trial so long as no change is made in the name or identity of the crime charged. State v. Price, supra; State v. Staples, supra, at 362. Accord R.C. 2941.30. In this matter, Midtown was charged with a single count of illegal use of food stamps and remained charged with a single count of this offense following the amendment. There was no change in the name of the offense alleged. Further, the essential elements of illegal use of food stamps are set forth in R.C. 2913.46(B), and this statute does not include the date of the offense as an essential element. Thus, the identity of the crime alleged in the indictment was not altered. Further, we note that in a Motion to Suppress filed by de- fense counsel on March 22, 1994, defense counsel quoted directly from the affidavit filed in support of the search warrant which was executed in this matter and noted that it stated that "[o]n Friday October 8, 1993, an officer entered the store and handed the clerk Food Stamps valued at three hundred dollars [and] the clerk - 10 - subsequently entered the cash register and handed the officer two hundred twenty five dollars in cash." It therefore appears, from the whole proceedings, that Midtown was clearly on notice of this prior occurrence and was not misled or prejudiced, and we are therefore unable to find that there has been a failure of justice in this matter. Midtown's first assignment of error is overruled. II. Midtown's second assignment of error states as follows: GIVEN THE STATUTE HERE INVOLVED, WHICH PRO- HIBITED THE TRAFFICKING IN FOOD STAMPS, THE TRIAL COURT DENIED THE DEFENDANT DUE PROCESS WHEN IT PERMITTED THE STATE TO PREJUDICE THE DEFENDANT BY HAVING THE JURY CONSIDER, AS SUBSTANTIVE PROOF OF GUILT, EVIDENCE OF WHAT WAS SHOWN TO HAVE BEEN AN UNCHARGED OFFENSE THAT THE STATE CONTENDED WAS PART OF A COURSE OF CRIMINAL CONDUCT. In State v. Barnecut (1988), 44 Ohio App.3d 149, 151, the court stated as follows: The Sellards court noted that the absence of specifics must truly prejudice the accused's ability to defend himself. [State v.] Sellards [(1985), 17 Ohio St. 3d 169] at 172, 17 OBR at 412, 478 N.E. 2d at 784. Absent material detriment to the preparation of a defense, the omission of specific dates and times is without prejudice, and without constitutional consequence. Sellards, supra, at 172, 17 OBR at 413, 478 N.E. 2d at 785. If such is not fatal to an indictment, it follows that impreciseness and inexactitude of the evidence at trial is not "per se impermissible or necessarily fatal to a prosecution." State v. Robinette (Feb. 27, 1987), Morrow App. No. CA- 652, unreported at 6. The question in such - 11 - cases is whether the inexactitude of temporal formation truly prejudices the accused's ability fairly to defend himself. Sellards, supra[.] As noted previously, appellant had notice of the October 8, 1993 transaction some eight months prior to trial and was not prejudiced in its ability to defend itself. Further, we believe that when viewed in its entirety, the court's action was tanta- mount to allowing evidence of a prior wrong or act, which, pursu- ant to Evid.R. 404(B), would be admissible to show plan, or absence of mistake or accident, in connection with the charge that Midtown was negligent. Cf. State v. Brown (1986), 31 Ohio App.3d 86, 88. Midtown's second assignment of error is overruled. III. Midtown's third assignment of error states as follows: THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S POST-TRIAL MOTION FOR JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL FILED UNDER FAVOR OF RULES 29(C) AND 33(A)(4), OHIO RULES OF CRIMINAL PROCEDURE. With regard to Midtown's contention that the trial court erred in denying its motion for acquittal, we note that Crim.R. 29(A) provides for motions for judgment of acquittal and states as follows: (A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a - 12 - conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. The Supreme Court of Ohio, in State v. Bridgeman (1978), 55 Ohio St.2d 261, established that a trial court shall not grant a Crim.R. 29(A) motion for acquittal where the evidence presented at trial demonstrates that reasonable minds can reach different conclusions with regard to whether the elements of the charged offense have been proved beyond a reasonable doubt. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. Id., syllabus. The evidence presented demonstrated that on November 8, 1993, the store's manager, Chedid, accepted Dickerson's food stamps and traded them for cash. We conclude that reasonable minds could determine from this evidence that Midtown was negligent in permit- ting this transaction to occur in light of Chedid's position with the store. Therefore, we conclude that this portion of Midtown's third assignment of error lacks merit. With regard to Midtown's contention that the trial court erred in denying its motion for a new trial, pursuant to Crim. R. 33(A)(4), we observe that this rule provides in relevant part as follows: New Trial: - 13 - (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * (4) That the verdict is not sus- tained by sufficient evidence or is contrary to law ***. As a general matter, the trial court's ruling on such motion will not be disturbed on appeal absent a clear showing that the court abused its discretion. Toledo v. Stuart (1983), 11 Ohio App.3d 292, 293. As to the claim of insufficient evidence, the test is whe- ther, after viewing the probative evidence and inferences reason- ably drawn therefrom in the light most favorable to the prosecu- tion, any rational trier of fact could have found all the essen- tial elements of the offense beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319. We believe that a rational trier of fact could, viewing the evidence most favorably to the prosecution, determine that Midtown negligently allowed Chedid to exchange food stamps for currency. Accordingly, we are unable to conclude that the trial court abused its discretion in denying the motion, and this portion of Midtown's third assignment of error is overruled. Midtown's third assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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. JAMES D. SWEENEY, P.J. and SARA J. HARPER, J. CONCUR JUDGE JOHN V. CORRIGAN* *SITTING BY ASSIGNMENT: John V. Corrigan, retired Judge of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .