COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 84985 STATE OF OHIO : : Plaintiff-Appellant : : JOURNAL ENTRY : vs. : and : : OPINION RICHARD BUEHNER : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: June 9, 2005 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-450510 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: ____________________ APPEARANCES: For Plaintiff-Appellant: WILLIAM D. MASON Cuyahoga County Prosecutor KELLEY J. BARNETT, Assistant 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: DAVID L. DOUGHTEN PATRICIA J. SMITH 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- COLLEEN CONWAY COONEY, P.J.: Plaintiff-appellant State of Ohio ("State") appeals the trial court's dismissal of the indictment against defendant-appellee Richard Buehner ("Buehner") for ethnic intimidation in violation of R.C. 2927.12. Finding no merit to the appeal, we affirm. On April 2, 2004, Buehner was reindicted1 on one count of ethnic intimidation. The indictment stated that the Cuyahoga County Grand Jury found that Buehner unlawfully: "did violate Section 2903.21 of the Revised Code by reason of race, color, religion, or national origin of another person or group of persons." Buehner moved to dismiss the indictment on the grounds that it failed to list the elements of R.C. 2903.21, thereby depriving him of sufficient notice of the charge against him. The trial court granted the motion. In its sole assignment of error, the State argues that the trial court abused its discretion in dismissing the indictment as defective. The State contends that the indictment provided Buehner sufficient notice of the offense. To the extent that the indictment did not spell out the elements of R.C. 2903.21, the State claims that such information was available through discovery. Further, the State argues that other courts have found an 1Buehner was originally indicted in December 2003 for the same offense. However, because the indictment failed to state the victim's name, the trial court granted Buehner's motion to dismiss. The State subsequently reindicted Buehner on the same charge. -3- indictment to be sufficient when it references other statutes, without specifically defining the elements of those statutes. See State v. Saunders (Dec. 1, 1993), Ross App. No. 1896; State v. Houseman (June 23, 1992), Allen App. No. 1-92-23.2 However, this court addressed the same issue and held that using the numerical designation of an applicable criminal statute did not cure the defect in failing to charge on all the material elements of a crime. State v. Wisniewski (Nov. 9, 2000), Cuyahoga App. No. 77152, citing State v. Burgun (1976), 49 Ohio App.2d 112, 118-120. See also State v. Headley (1983), 6 Ohio St.3d 475, 478- 479 ("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."). In explaining why the mere reference to R.C. 2903.21 was insufficient to support an indictment on ethnic intimidation under R.C. 2927.12, this court stated: "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: 2 However, the indictments at issue in these cases at least identified the underlying offense by name, i.e., theft offense, in addition to referencing the applicable statute. In the instant case, the words "aggravated menacing" did not appear in the indictment. -4- (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. (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 * * *. * * * The failure of the grand jury indictments * * * to specify any of these elements of the predicate offenses of aggravated menacing, rendered defective the charges of ethnic intimidation." Wisniewski, supra. In light of this court's decision in Wisniewski, we overrule the State's sole assignment of error.3 Judgment affirmed. 3The State never appealed our decision in Wisniewski nor sought to certify a conflict. -5- It is ordered that appellee recover of appellant the 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, J. CONCURS SEAN C. GALLAGHER, DISSENTS (SEE SEPARATE OPINION) PRESIDING JUDGE COLLEEN CONWAY COONEY N.B. This entry is an announcement of the courts 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). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 84985 STATE OF OHIO : : DISSENTING Plaintiff-Appellant : : OPINION vs. : : RICHARD BUEHNER : : Defendant-Appellee : : : DATE: June 9, 2005 SEAN C. GALLAGHER, J., DISSENTING: I respectfully dissent from the majority opinion. I do not believe that an indictment that clearly follows the language of the charged offense must also list the elements of a predicate offense that has been identified. In this case, Buehner was indicted on a charge of ethnic intimidation in violation of R.C. 2927.12. The ethnic intimidation statute provides: "(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 the race, color, religion, or national origin of another person or group of persons. "(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." R.C. 2927.12. -2- The predicate offense for the ethnic intimidation charge in this case was R.C. 2903.21, aggravated menacing. Specifically, the indictment provided that Buehner "did violate Section 2903.21 of the Revised Code by reason of race, color, religion, or national origin of another person or group of persons." After being indicted, Buehner filed a motion for bill of particulars. The state provided Buehner with a bill of particulars and discovery responses that further described the offense charged. Nevertheless, the trial court dismissed the indictment, finding that it was defective because it did not spell out the elements of the predicate offense and that merely citing a statute was not proper. R.C. 2941.05, sets forth what information an indictment or other charging instrument must contain. The statute provides: "In an indictment or information charging an offense, each count shall contain, and is sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the section of the Revised Code describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged." The Supreme Court of Ohio has held that an indictment meets constitutional requirements if it "`first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an -3- acquittal or conviction in bar of future prosecutions for the same offense.'"State v. Childs, 88 Ohio St.3d 558, 565, 2000-Ohio-425, quoting Hamling v. United States (1974), 418 U.S. 87, 117-118. In this case, the indictment clearly set forth the essential elements of the offense with which Buehner was charged, ethnic intimidation. One of the essential elements of this crime is that the defendant violate one of the predicate offenses set forth in the ethnic intimidation statute. However, it is the predicate statute itself, not the elements of the predicate offense, that is an essential element of the primary offense. In State v. Landrum (1990), 53 Ohio St.3d 107, 119, the Supreme Court of Ohio held that Crim.R. 7(B) authorizes indictments to utilize the words of the applicable section of the statute. There is no requirement that the elements of an underlying charge or predicate offense be set forth in the indictment, especially when a bill of particulars may be used to obtain additional information. See State v. Murphy (1992), 65 Ohio St.3d 554, 583; State v. Smith, Cuyahoga App. No. 83007, 2004-Ohio-3619. The state is not required to list each element of the underlying crime, so long as the indictment provides the accused with sufficient notice and the means of identifying the nature of the underlying crime the accused is alleged to have committed. State v. Martin (June 26, 1998), Lake App. No. 96-L-157. -4- Thus, an indictment that employs substantially the same words of a statute describing the offense is sufficient to provide a defendant with notice of the offense with which he is charged. State v. Houseman (June 23, 1992), Allen App. No. 1-92-23. Moreover, where a statute sets forth a predicate offense that must be violated, an indictment is not fatally flawed where it refers to that statute for the predicate offense without specifically identifying the elements of that offense. Id.; see, also,State v. Nieves (Feb. 26, 1997), Lorain App. No. 96CA006379; State v. Saunders (Dec. 1, 1993), Ross App. No. 1896. In this case, the indictment followed the same words of the ethnic intimidation statute, R.C. 2927.12. It identified one of the predicate offenses listed, R.C. 2903.21. Nothing in R.C. 2927.12 requires the words or elements of the predicate offense to be included; it simply requires the statutory section of the predicate offense to be identified. The indictment was clearly sufficient to provide Buehner with notice of the offense charged against him. It is also clear from the record that the state provided Buehner with a bill of particulars and discovery responses that further apprised him of the details of the offense charged. I would find that there were no fatal defects in the indictment and that the trial court abused its discretion in dismissing the action. -5- I further disagree with the majority 's reliance on State v. Wisniewski (Nov. 9, 2000), Cuyahoga App. No. 77152. In Wisniewski, this court found an indictment on ethnic intimidation was defective where it failed to specify the elements of the predicate offense. The court indicated that the degree of the ethnic intimidation offense was dependent upon the degree of the underlying predicate offense. However, R.C. 2945.75(A)(1) provides that, "[w]hen the presence of one or more additional elements makes an offense one of more serious degree[,] the affidavit, complaint, indictment, or information either shall state the degree of the offense which the accused is alleged to have committed, or shall allege such additional element or elements. Otherwise such affidavit, complaint, indictment, or information is effective to charge only the least degree of the offense." Since the failure to specify the degree of the predicate offense for ethnic intimidation would result in a charge for the least degree of the offense, the degree of the predicate offense is not a material element of the crime. Further, I would follow the authority cited in this dissent and find the indictment in this case, which employed substantially the same words of a statute describing the offense of ethnic intimidation, was sufficient to provide Buehner with notice of the offense with which he was charged. .