COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72859 CITY OF CLEVELAND HEIGHTS : : ACCELERATED DOCKET PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : : AND ULYSSES PEARSON, JR. : : OPINION DEFENDANT-APPELLANT : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Heights Municipal Court Case No. TRD-9709584. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellee: Kim Segebarth, Esq. City Prosecutor City of Cleveland Heights 40 Severance Circle Cleveland Heights, Ohio 44118 For Defendant-appellant: Ronald A. Skingle, Esq. 2450 St. Clair Avenue, #2 Cleveland, Ohio 44114 Ulysses Pearson, Jr., pro se 2605 Jay Avenue Cleveland, Ohio 44113 -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Ulysses Pearson, Jr., appeals from his conviction for driving at an excessive speed in a school zone in violation of Cleveland Heights Codified Ordinances 333.03(b)(1)(A). For the reasons adduced below, we affirm. A review of the record on appeal indicates that at the commencement of the hearing before the trial court, prior to the testimony of the first witness, the prosecution pointed out that the time of the speeding offense noted on the citation was incorrectly stated: instead of the stated 12:07 a.m., the correct time of the offense was 12:07 p.m. The prosecution, arguing that the amendment would not change the nature of the offense or the identity of the crime charged, made a motion to amend the charge to reflect the time of the offense as 12:07 p.m. Over the objection of the defense, the court granted this motion to amend. See R. 3- 4. The lone assignment of error presented by appellant provides: THE TRIAL COURT VIOLATED DEFENDANT, ULYSSES PEARSON JR.'S CONSTITUTIONAL PROTECTION OF A FAIR AND IMPARTIAL TRIAL IN VIOLATION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT TAKES OVER THE PROSECUTORIAL ROLE AND ADVISES THE PROSECUTOR PRIOR TO TRIAL THAT THE TIME STATED -3- ON THE TRAFFIC COMPLAINT IS INACCURATE RESULTING IN THE AMENDMENT OF A FATAL DEFECT. The basis of this assignment is that the trial court advised the prosecution of the inaccurate time of the offense contained in the citation, thereby exhibiting a lack of impartiality. This argument, like Mr. Pearson's namesake in Homer's Odyssey1, attempts to brave an obvious danger posed by the record, much as Homer's Ulysses had to navigate past the dangers posed by Scylla and Charybdis2. While the historical Ulysses successfully navigated the natural hazards before him, the defendant herein cannot overcome the record on appeal. The record clearly discloses that appellant misstates the record3, which indicates that the prosecutor brought the fact of the inaccuracy to the judge's attention: 1The court recognizes that the main character in Homer's Odyssey was Odysseus, a Greek king from the island of Ithaca, whose name was later translated by the ancient Romans as Ulysses. The court relies upon the Roman translation of the name. 2These two natural features, Scylla and Charybdis, are located in the Straits of Messina between Italy and Sicily. Scylla is a large rock on the coast of Italy which was thought to be the abode of the monster Scylla. Charybdis is a whirlpool on the opposite side of the Straits and was thought to be the abode of the monster Charybdis. The danger posed to passing ships was that to avoid one would force a passing ship into the danger of the other. 3Mr. Pearson was acting pro se before the trial court. The only witness to testify at the hearing was the police officer, Officer Michael Gazer, who issued the citation and stated that the date and time of the offense was Thursday, May 15, 1997, at 12:07 p.m. and that radar clocked the defendant's vehicle traveling 30 m.p.h. in a 20 m.p.h. school zone while school was in session. Upon conviction, Mr. Pearson was fined $26 plus court costs. -4- THE COURT: Okay. Mr. Pearson, we are calling your Case, a speeding violation, May 15, 1997. The ticket says 12:07 a.m. Do you want to swear in the witnesses? THE BAILIFF: Is the officer going to testify? MR. SEGEBARTH: Your Honor, that's 12:07 p.m. MR. PEARSON: My complaint is marked 12:07 a.m. THE COURT: I understand. That's fine. MR. SEGEBARTH: The city moves to dismiss (Inaudible) that does not change the nature of the offense or the identity of the crime charged. MR. PEARSON: It is a change in the material statement of facts. There is a section, 333.03 that says that time is material to the violation. THE COURT: Well, I'm not particularly aware of that section, but I do know that the nature of the offense has not been changed. You're not being caught by surprise. You know you're here on a speeding ticket. I can allow the amendment to occur. (R. 3-4, italicization added.) * * * Apart from the fact that the prosecution informed the trial court of the inaccurate information in the uniform traffic citation, we further conclude that the trial court was permitted to amend the complaint by virtue of the application of Crim.R. 7(D), which permits a court to amend a complaint at any time provided no change is made in the name or identity of the crime charged. This rule, which is applicable to traffic ticket complaints, City of Tiffen v. Ruden (1988), 46 Ohio App.3d 138, also provides that where the amendment causes a change to the substance of the complaint the defendant is to be afforded a reasonable continuance, -5- unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant's 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. Also see, Akron v. Jaramillo (1994), 97 Ohio App.3d 51, 53; State v. Jackson (1992), 78 Ohio App.3d 479, 481-482; Cleveland Heights v. Perryman (1983), 8 Ohio App.3d 443. In the case sub judice, neither the name or identity of the offense was changed by virtue of the amendment. What was a speeding ticket under a specific ordinance prior to the notification of the defect remained a speeding ticket under that same exact ordinance subsequent to the amendment. Additionally, upon reviewing the entire proceeding, it cannot be said that the defendant was misled or materially prejudiced by the defect in the traffic citation, nor was the defendant denied the reasonable opportunity to prepare his defense to the complaint due to the amendment. Assignment overruled. Judgment affirmed. -6- 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 Cleveland Heights Municipal Court 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. ______________________________ ANN DYKE, PRESIDING JUDGE ______________________________ DIANE KARPINSKI, JUDGE ______________________________ JAMES D. SWEENEY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .