COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77152 STATE OF OHIO, Plaintiff-appellant JOURNAL ENTRY vs. AND ANTHONY WISNIEWSKI, OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 2000 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court, Case No. CR-379700 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor PAUL J. DALEY, ESQ. Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: THOMAS E. SHAUGHNESSY, ESQ. 11510 Buckeye Road Cleveland, Ohio 44104 -2- KARPINSKI, P.J.: Plaintiff-appellant State of Ohio appeals, in this interlocutory appeal, from an order of the common pleas court dismissing two of four charges against defendant-appellee Anthony Wisniewski. Defendant was indicted on August 17, 1999, on a four-count indictment in the case at bar, Case No. CR-379700. The first two counts alleged that defendant committed ethnic intimidation against two different persons approximately one year earlier, between September 10 to 13, 1998, in violation of R.C. 2927.12. The first count alleged that defendant unlawfully did violate Section 2903.21 of the Revised Code by knowingly causing another, to-wit: Yancy Valentine, to believe that the offender would cause serious physical harm to the person or property of such person or a member of the other person's immediate family by reason of race, color, religion, or national origin of another person or group of persons. The second count was identical to the first, except that it substituted the name of Lewis Valentine, Jr. The remaining two counts alleged that defendant committed felonious assault against the same two persons during the same time period in violation of R.C. 2903.11. On September 27, 1999, defendant filed a motion to dismiss the two ethnic intimidation counts on speedy trial grounds. His motion alleged that he had been arrested on the charges approximately eleven months earlier on October 27, 1998 and that he was arraigned in Case No. CR-379700 on August 25, 1999, three hundred and two -3- days after his arrest. He argued, inter alia, that he was not indicted and brought to trial within the two hundred and seventy- day statutory speedy trial limit set forth in R.C. 2945.71(C)(2). The record does not contain a brief in opposition by the prosecution, but the matter proceeded to a hearing on September 27, 1999. The transcript of proceedings filed on appeal commences with the trial court stating that it is going to "resume here in Case [CR-]379700." The court recited verbatim the indictments in the case at bar, No. CR-379700, as set forth above and referred to a separate action previously filed against defendant in Case No. CR-373446, but not made a part of the record in the instant case. The two cases involved identical felonious assault charges in the third and fourth counts, but contained differences in the first and second counts relating to ethnic intimidation. The court's references to the ethnic intimidation counts in prior Case No. CR-373446 were somewhat cryptic. The court stated that the first and second counts in prior Case No. CR-373446 did not assert the acts which defendant allegedly committed, did not recite the elements of aggravated menacing, and did not name the victims, but instead simply referred to the numerical section of the Revised Code which established the offense of aggravated menacing. The court described the two counts in Case No. CR-373446 as follows: Count 2 was entitled a true bill indictment for ethnic intimidation,Ohio Revised Code Section 2927.12, and did say that the defendant did unlawfully violate Section 2903.21 of the Revised Code which is the aggravated menacing section without naming any specific individual by means of race, color, religion or national origin. -4- Count 1 has the same language and also does not recite the name of anybody nor does it recite the language of 2903.21. The court discussed the proceedings in Case No. CR-373446. It stated that defendant executed a speedy trial waiver in Case No. CR-373446, but the court did not recite the terms of the waiver. The court stated that when the case was called for trial the prosecution requested a continuance to obtain a re-indictment to cure a defect in the two ethnic intimidation counts in Case No. CR-373446. The prosecution thereafter obtained indictments in the case at bar, Case No. CR-379700, and nolled the charges in prior Case No. CR-373446. Defense counsel argued at the hearing that defendant was denied his right to speedy trial. He asserted that he was never properly charged with either count of ethnic intimidation in Case No. CR-373446 because of omissions in the indictments. He argued that defendant was arrested on October 27, 1998 and posted bail that day, but was not ultimately arraigned on proper charges until more than 270 days, approximately ten months later, on August 25, 1999. He also argued that the speedy trial waiver filed in Case No. CR-373446 did not apply to the ethnic intimidation charges filed in Case No. CR-379700 because the original indictments in Case No. CR-373446 were defective. The prosecutor asserted that defendant was not denied a speedy trial. He argued that the original indictments in prior Case No. CR-373446 gave defendant sufficient notice of the offenses. He stated that the ethnic intimidation indictments in Case No. -5- CR-373446 referred to the Revised Code section number of the underlying offense of aggravated menacing and had no victim names. The prosecutor asserted that the court refused to permit amendment of the ethnic intimidation counts to correct any defect. He stated the prosecution did not thereafter nolle prior Case No. CR-373446 until after defendant was re-indicted in Case No. CR-379700. He asserted that because the same charges were brought in Case No. CR-379700, the waiver from Case No. CR-373446 should apply to render the trial against him timely in Case No. CR-379700. The trial court recounted that it sua sponte brought up the defect in the indictments in Case No. CR-373446. It decided that amendment was improper because defendant was entitled to be indicted by the grand jury on a proper offense. The court concluded that a speedy trial waiver does not waive the right to a proper charge, but merely the time within which to proceed on the charges as filed. The court specifically interpreted the speedy trial waiver in Case No. CR-373446 not to waive any defects in the ethnic intimidation indictments. The court concluded the original ethnic intimidation indictments in Case No. CR-373446 did not charge any offense because they had "important missing gaps." Instead of proceeding to trial on the third and fourth counts of felonious assault in Case No. CR-379700, the court stated it would grant the prosecution a continuance to file for leave to appeal from the dismissal of the first two counts. At no time during the hearing or the following morning when discussing the continuance, did the prosecutor seek in Case No. CR-379700 to -6- introduce any exhibits into the record from Case No. CR-373446. The trial court thereafter journalized its ruling dismissing the first and second ethnic intimidation counts in Case No. CR-379700, and granting the prosecution a continuance to seek leave to appeal. The prosecution thereafter filed a notice of appeal. The praecipe filed with it requested the court reporter prepare a transcript of the dismissal hearing. The clerk of court submitted the transcript together with the other original papers filed in Case No. CR-379700 with the court of appeals. During the course of the proceedings, the prosecution never sought to supplement the record on appeal with any documents from prior Case No. CR-373446. The prosecution raises the following sole assignment of error: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT ALLOWING AMENDMENT OF THE INDICTMENT AND BY GRANTING THE DEFENDANT'S MOTION TO DISMISS, RELYING ON STATE V. ADAMS (1989), 43 OHIO ST.3D 67, 538 [] N.E.2D 1025, A CASE THAT IS EASILY DISTINGUISHED FROM THE INSTANT CASE. This assignment lacks merit. The prosecution argues the trial court improperly required it to re-indict defendant and improperly dismissed the ethnic intimidation charges. It contends that the original indictments in Case No. CR-373446 were sufficient and that the speedy trial waiver filed by defendant in that case extended the time to try defendant in Case No. CR-379700 at bar. The prosecution's argument ignores, however, that none of the materials from prior Case No. CR-373446 is contained in the record of Case No. CR-379700 on appeal. The record does not contain the prior indictments, a speedy trial waiver form, a bill of -7- particulars, a motion to amend the indictments, or an order denying such a motion. Ironically, the transcript of the dismissal hearing reveals that the prosecution objected to any reference by defense counsel to off-record proceedings. At that time, the prosecution deliberately made a tactical decision to exclude reference to such materials. Once the trial court ruled against the prosecution, however, the absence of an adequate record works to the detriment of the prosecution rather than the defendant. See, e.g., Tallmadge v. Gang (1994), 97 Ohio App.3d 56 (failure by prosecution to certify transcript of suppression hearing). The first part of the prosecution's assignment of error contends the trial court abused its discretion by denying it an opportunity to amend the indictments in prior Case No. CR-373446. We lack jurisdiction to review this assignment because the prosecution did not appeal from such an order in Case No. CR- 373446. Even if we were inclined to indulge the prosecution's argument, however, we would be unable to do so because the record does not contain the indictments, a motion by the prosecution to amend them, or an order by the trial court denying such a motion. It is anomalous to request the trial court nolle Case No. CR- 373446, but then seek to resuscitate the matter by challenging rulings in that case on appeal in a subsequent case, No. CR-379700. The remainder of the prosecution's assignment of error challenges the dismissal of the ethnic intimidation charges in the -8- case at bar, No. CR-379700. The prosecution argues that the original indictments in the prior case, No. CR-373446, were valid and that defendant's speedy trial waiver in that case was effective to extend the time for trial on the re-indictments in the case at bar. The Ohio Supreme Court has held that a speedy trial waiver must be made in writing or on the record in open court. State v. King(1994), 70 Ohio St.3d 158, syllabus. The Court recognized in this context that courts indulge every reasonable presumption against waiver. State v. Adams (1989), 43 Ohio St.3d 67, 69 (citations omitted.) Even case law cited by the prosecution recognizes these principles. For example, the court in State v. Clark(1995), 107 Ohio App.3d 141, rejected the prosecution's claim that defense counsel orally agreed off the record not to challenge re-indictments in a subsequent case on speedy trial grounds because there was no evidence in the record demonstrating such an agreement. Id. at 151. The prosecution has offered no convincing reason to depart from these principles in the case at bar. Finally, even if the prosecution had made a proper record, we would reject its claims on the merits in the case at bar. The prosecution contends that the original ethnic intimidation indictments in Case No. CR-373446 were valid despite the fact that they did not recite the material elements of the offense because they mentioned Revised Code Section numbers 2927.12 for ethnic -9- intimidation and 2903.21 for the predicate offense of aggravated menacing. This court has previously rejected this precise claim and held that using the numerical designation of an applicable criminal statute does not cure the defect in failing to charge on all the material elements of a crime. State v. Burgun (1976), 49 Ohio App.2d 112, 118-120. Burgun involved a misdemeanor complaint for pandering obscenity. As noted by the trial court, however, these principles apply with at least equal force to felony indictments by grand juries: Section 10 of Article I of the Ohio Constitution provides that, *** no person shall be held to answer for capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury ***. 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. Where one of the 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 an 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]. State v. Headley (1983), 6 Ohio St.3d 475, 478-479. The crime of ethnic intimidation occurs when a person commits a specified predicate offense by reason of race, color, religion, or national origin. The degree of the ethnic intimidation offense depends upon the degree of the underlying predicate offense. R.C. 2927.12 provides as follows: (A) No person shall violate section 2903.21, 2903.22, 2909.06, or 2909.07, or division (A)(3), (4), or (5) of section 2917.21 of the Revised Code by reason of race, color, religion, or national origin of another person or group of persons. -10- (B) Whoever violates this section is guilty of ethnic intimidation. Ethnic intimidation is an offense of the next higher degree than the offense the commission of which is a necessary element of ethnic intimidation. The ethnic intimidation offenses the prosecution attempted to charge were fifth degree felonies because the underlying offenses of aggravated menacing were first degree misdemeanors. Under Burgun,to effectively charge an accused with the crime of ethnic intimidation, however, the prosecution must charge all material elements of the crime. The prosecution cannot effectively charge an accused with this offense by simply reciting Revised Code section numbers (such as R.C. 2927.12 or, on the other hand, even R.C. 2927.12 and the section number of any particular listed predicate offense, such as R.C. 2903.21) as the prosecution did in prior Case No. CR-373446.1 The prosecution ultimately specified the material elements of the offenses in the case at bar, No. CR-379700. For example, count one alleged that, contrary to R.C. 2927.12, defendant unlawfully: did violate Section 2903.21 of the Revised Code by knowingly causing another, to-wit: Yancy Valentine, to believe that the offender would cause serious physical harm to the person or property of such person or a member of the other person's immediate family by reason of race, color, religion, or national origin of another person or group of persons. 1 R.C. 2903.21 defines the crime of aggravated menacing as follows: (A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to that person or property of such other person, such other person's unborn, or a member of the other person's immediate family. -11- The failure of the grand jury indictments in prior Case No. CR- 373446 to specify any of these elements of the predicate offenses of aggravated menacing, rendered defective the charges of ethnic intimidation. We are also unpersuaded by the prosecution's contention that the speedy trial waiver in prior Case No. CR-373446 extends the time for trial on the two ethnic intimidation charges in Case No. CR-379700 at bar. The trial court in the case at bar expressly construed the speedy trial waiver in prior Case No. CR-373446 not to waive any defects in the original ethnic intimidation indictments or to extend the time for trial on them in Case No. CR- 379700. There is no basis in the record to dispute the trial court's interpretation because no speedy trial waiver document is in the record. Moreover, the Ohio Supreme Court has described the limited scope of a speedy trial waiver on new charges filed in a subsequent case as follows: When an accused waives the right to a speedy trial as to an initial charge, this waiver is not applicable to additional charges arising from the same set of circumstances that are brought subsequent to the execution of the waiver. State v. Adams, supra, at syllabus. The prosecution seeks to distinguish Adams by string-citing four cases.2 But each of the cases cited by the prosecution is distinguishable from the case at 2 State v. Clark, supra; State v. Gee (June 2, 1994), Cuyahoga App. Nos. 64410 and 64111, unreported; State v. Luff (1993), 85 Ohio App.3d 785; and State v. Lucey (May 16, 1991), Cuyahoga App. No. 58545, unreported. -12- bar o ch correctly recited the material elements of the particular offense, before the subsequent re-indictments. Tbecause, unlike the case at bar, each of them involved validriginal indic CR-373446, however, were inadequate because they merely referred to Revised Code Section numbers and did not charge the material elements of the offense. Burgun, supra. As a result, the trial court in Case No. CR-379700 found that the prior waiver of speedy trial relating to such defective charges did not apply to extend the time for trial on the valid subsequent charges in Case No. CR- 379700 arising from the same circumstances. In other words, the failure to properly raise the ethnic intimidation charges in the first Case, No. CR-373446, made them additional charges in the second Case, No. CR-379700, within the meaning of Adams, supra. The trial court did not, on the other hand, dismiss the remaining two felonious assault charges in the case at bar, No. CR- 379700, which were properly raised in prior Case No. CR-373446. It is undisputed that no speedy trial violation occurred in connection with them. This result is consistent with both Clark and Luff, in which the courts retained the charges validly made in the first case, but dismissed the charges properly filed for the first time in the second case.3 3 It is not clear why the prosecution cited Lucey, supra, because the case involved the identical valid felonious assault charge filed in both the first and second cases. Id. at pp. 10-11. The speedy trial waiver on the valid felonious assault charge in the first case extended the time for trial on the valid felonious assault charge in the second case. Id. The case at bar is (continued...) -13- Finally, this case is distinguishable from Gee, supra. The court in Geefound that although the defendant had not been charged in the first case with aggravated robbery, his speedy trial waiver extended the time for bringing such a charge in the second case because he had been charged in the first case with felony murder based on the aggravated robbery. For the same reasoning to apply in the case at bar, defendant would have to have been charged with the underlying charge of aggravated menacing in prior Case No. CR- 373446. Because defendant was not charged with aggravated menacing in Case No. CR-373446, and the ethnic intimidation charges themselves were invalid, we cannot deem the prosecution to have complied with speedy trial requirements. Accordingly, the prosecution's sole assignment of error is overruled. Judgment affirmed. 3(...continued) distinguishable because the ethnic intimidation charge in the first case was defective and did not extend the time for trial on the corrected indictments in the second case. -14- It is ordered that appellee recover of appellant his 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 Common Pleas 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. TIMOTHY E. McMONAGLE, J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI PRESIDING 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .