State v. Copas , 2013 Ohio 2184 ( 2013 )

[Cite as State v. Copas, 2013-Ohio-2184.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 12-CA-24
DAVID E. COPAS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County
Court of Common Pleas, Case No.
10CR000159
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN LINDSEY K. DONEHUE
Prosecuting Attorney 120 Southgate Parkway
139 West 8th Street Box 464
Cambridge, OH 43725 Cambridge, OH 43725
[Cite as State v. Copas, 2013-Ohio-2184.]
Gwin, P.J.
{¶1} Defendant-appellant David Copas [“Copas”] appeals from his re-
sentencing after remand by this Court.
Facts and Procedural History
{¶2} On October 27, 2010, the Guernsey County Grand Jury indicted Copas on
six counts of rape in violation of R.C. 2907.02(A)(1)(b), one count of rape in violation of
R.C. 2907.02(A)(2), and one count of disseminating matter harmful to juveniles in
violation of R.C. 2907.31. The six counts of rape under R.C. 2907.02(A)(1)(b) included
specifications that the victim was under thirteen years of age and they occurred by force
or threat of force. The R.C. 2907.02(A)(2) rape count included a specification that it
occurred by force or threat of force. Said charges arose from incidents which involved a
minor over a continuous course of conduct from August 1999 to June 2007 (the R.C.
2907.02(A)(1)(b) counts) and July 28, 2007 to May 31, 2010 (the R.C. 2907.02(A)(2)
count), starting when the minor was five years old.
{¶3} A jury trial commenced on March 29, 2011. The jury found Copas guilty
as charged. By judgment entry filed May 3, 2011, the trial court sentenced Copas to an
aggregate term of eighty-five years to life in prison.
{¶4} This Court affirmed Copas’ convictions; however, this Court found,
We note prior to the amendment on January 2, 2007, a defendant
found guilty of R.C. 2907.02(A)(1)(b) involving force or threat of force was
subject to life imprisonment. See, Former R.C. 2907.02(B). Appellant
argues pursuant to 2967.13(A)(5), he would be entitled to parole eligibility
after ten years on the offenses he committed prior to January 2, 2007.
Guernsey County, Case No. 12-CA-24 3
Upon review, we find the sentencing entry is silent as to the time
period of when the six individual R.C. 2907.02(A)(1)(b) counts occurred,
before or after January 2, 2007. We hereby vacate the sentence and
remand the matter to the trial court for a specific determination as to when
each R.C. 2907.02(A)(1)(b) count occurred, before or after January 2,
2007, and to resentence appellant.
State v. Copas, 5th Dist. No. 11CA000012, 2012-Ohio-1556, ¶¶43-44.
{¶5} The re-sentencing hearing was held October 1, 2012. The court noted that
the sentences on counts seven and eight and the consecutive and concurrent findings
had been reviewed by this Court and affirmed. The court then found as to count one
through six that the appropriate sentence was a life imprisonment sentence with the
eligibility of parole after ten years. In accord with the court's prior judgment the trial court
found counts one, two, and three should be served consecutive with counts four, five,
and six. Counts four, five and six were to be served concurrently with each other and
concurrent to counts one, two, and three. Count seven was ordered consecutive and
count eight was ordered to be served concurrently.
Assignments of Error
{¶6} Copas raises one assignment of error,
{¶7} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
AMENDED THE INDICTMENT AND CHANGED THE NATURE OF THE CRIME
CHARGED.”
Guernsey County, Case No. 12-CA-24 4
Analysis
{¶8} Copas argues that the trial court impermissibly amended the indictment to
find that all of the offenses occurred prior to January 2, 2007. Copas claims that the
date the events occurred is a finding of fact that must be made by a jury; therefore, he
asserts he is entitled to a new jury trial.
{¶9} The function of an indictment is to give adequate notice to the defendant
of what he is being charged with and a fair chance to defend. State v. Sellards, 17 Ohio
St.3d 169, 170, 478 N.E.2d 781(1985). A criminal indictment serves two purposes. First,
an indictment “compels the government to aver all material facts constituting the
essential elements of an offense,” providing the accused adequate notice and the
opportunity to defend the charges. State v. Childs, 88 Ohio St.3d 194, 198, 724 N.E.2d
781(2000). Second, the indictment, “by identifying and defining the offense, * * * serves
to protect the accused from future prosecutions for the same offense.” Id.{¶10} A trial court's decision allowing an amendment that changes the name or
identity of the offense charged constitutes reversible error regardless of whether the
accused can demonstrate prejudice. State v. Honeycutt, 2nd Dist. No. 19004, 2002-
Ohio-3490; State v. Brown, 5th Dist. No. 2005CAA01002, 2005-Ohio-5639, ¶45. When
an amendment is allowed that does not change the name or identity of the offense
charged, the accused is entitled to a discharge of the jury or a continuance, “unless it
clearly appears from the whole of the proceedings that the defendant has not been
misled or prejudiced by the defect or variance in respect to which the amendment is
made.” Id., quoting Crim.R. 7(D). A trial court's decision to permit the amendment of an
indictment is reviewed under an abuse of discretion standard. State v. Beach, 148 Ohio
Guernsey County, Case No. 12-CA-24 5
App.3d 181, 772 N.E.2d 677, 2002-Ohio-2759, ¶23, appeal not allowed, 96 Ohio St.3d
1516, 2002-Ohio-4950. “The term ‘abuse of discretion’ connotes more than an error of
law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144(1980). To
demonstrate error, defendant must show not only that the trial court abused its
discretion, but that the amendment prejudiced his defense. Id.{¶11} The Supreme Court of Ohio has held that the exact time and date of the
alleged offense need not be specified in the indictment unless the time and date are
essential elements of the offense. State v. Sellards, 17 Ohio St.3d at 171, 478 N.E.2d
781. It is axiomatic that in cases involving sexual misconduct with a young child, precise
times and dates of the conduct or offenses often will not be determined. State v. Boyer,
10th Dist. No. 06AP–05, 2006-Ohio-6992, ¶11, citing State v. Barnecut, 44 Ohio App.3d
149, 151–152, 542 N.E.2d 353 (5th Dist.1988).
{¶12} 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, 5th Dist. No. CA-652, 1987 WL 7153(Feb. 27, 1987).
The question in such cases is whether the inexactitude of temporal information truly
prejudices the accused's ability fairly to defend himself. Sellards, supra; State v. Gingell,
7 Ohio App.3d 364, 368, 455 N.E.2d 1066, 1071(1st Dist. 1982); State v. Kinney, 35
Ohio App.3d 84, 519 N.E.2d 1386(1st Dist. 1987).
{¶13} Grafted upon the question of prejudice is a problem that cases of child
abuse invariably present, i.e., a victim-witness who, due to tender years, does not have
Guernsey County, Case No. 12-CA-24 6
the temporal memory of an adult and has problems remembering exact times. As this
court has noted: “[t]ime is neither essential nor an element of the crime of sexual
battery.” State v. Robinette.
{¶14} In Robinette this court stated,
We note that these particular cases often make it more difficult to
ascertain specific dates. The victims are young children who may
reasonably be unable to remember exact times and dates of
psychologically traumatic sexual abuses. This is especially true where the
crimes involve several instances of abuse spread out over an extended
period of time. State v. Humfleet (Sept. 9, 1985), Clermont App. No.
CA84-04-031, unreported, at 15. The problem is compounded where the
accused and the victim are related or reside in the same household,
situations which often facilitate an extended period of abuse. An allowance
for reasonableness and inexactitude must be made for such cases
considering the circumstances.
1987 WL 7153 at *3.
{¶15} In State v. Sellards, the Supreme Court gave two examples of when the
failure to provide specific dates and times could be prejudicial to the accused. The court
first noted that if the age of the victim were an element of the crime with which the
accused had been charged and the victim bordered on the age required to make the
conduct criminal, then the failure to provide a more specific time frame would be
prejudicial. This is true because “specific dates of sexual conduct might well have
become critical to the accused's ability to prepare a defense, since sexual conduct
Guernsey County, Case No. 12-CA-24 7
toward one thirteen years of age or older would not constitute the offense of rape as
defined in the charged section of the criminal code, R.C. 2907.02(A)(3).” Sellards, 17
Ohio St.3d at 172, 478 N.E.2d at 785. The second situation is where “the defendant had
been imprisoned or was indisputably elsewhere during part but not all of the intervals of
time set out in the indictment. Again, under such circumstances, the inability of the state
to produce a greater degree of specificity would unquestionably prejudice the defense.”
Id. The Sellards court noted, “the record in this case does not indicate that the failure to
provide the accused with a specific date was a material detriment to the preparation of
his defense. In this regard, we note that while appellee claims on appeal that the
inexactitude of the indictment and bill of particulars as to date denied him the ability to
present an alibi defense, appellee never filed a notice of intent to rely on an alibi as is
required by Crim.R. 12.1. (Cf. State v. Dingus [1970], 26 Ohio App.2d 131, 137, 269
N.E.2d 923 [55 O.O.2d 280]; Gingell, supra, at 368, 455 N.E.2d 1066.)” Id.{¶16} In the case at bar, Copas’ defense was that the incidents did not occur at
any time. Copas did not file a notice of alibi for any of the time period set forth in the
original indictment. Time was not an essential element of any of the crimes charged.
Therefore, it was not necessary for the jury to make a finding with respect to the date
upon which the incidents occurred.
{¶17} The Ohio Supreme Court has held that an amendment changes the
identity of the crime if the penalty or degree of the offense would be increased because
of the amendment. State v. O'Brien 30 Ohio St.3d at 127, 508 N.E.2d at 148-149(1987).
In O'Brien, the Supreme Court stated,
Guernsey County, Case No. 12-CA-24 8
Both before and after the amendment of the indictment, the name
of the crime remained the same: endangering children. Likewise, the
identity of this crime was not changed by the addition of ‘recklessness' to
the indictment. Neither the penalty nor the degree of the offense was
changed as a result of the amendment. Since the addition of the culpable
mental state of ‘recklessness' did not change the name or identity of the
crime of endangering children, the amendment was proper pursuant to
Crim.R. 7(D). (Emphasis added.)
Id. at 126.
{¶18} In the present case, the state agreed that Copas should be sentenced
under the least sever penalty provided in the pre-amended version of R.C.
2907.02(A)(1)(b). The trial court gave Copas that benefit upon resentencing. Thus, this
is not a case where the trial courts actions increased either the penalty or the degree of
the offenses. Rather, it is clear that Copas has benefited from the trial court’s re-
sentencing order.
{¶19} In the case at bar, the indictment and the bill of particulars alleged that the
incidents occurred as a continuing course of conduct between August 1999 and June
2007. By sentencing Copas as if all counts occurred between August 1999 and before
January 2, 2007 the trial court did not enlarge the period alleged in the indictment and
the bill of particulars. Copas has not shown that the prosecution possessed more
specific information in terms of the dates and times of the offenses. Nor has Copas
shown that such information was material to any defense theory he put forth at trial.
Copas never filed a notice of intent to rely on an alibi as is required by Crim.R. 12.1. Nor
Guernsey County, Case No. 12-CA-24 9
did Copas raise any issue in his original appeal that the lack of temporal information
prejudiced his ability to fairly defend himself. Rather, in the case before us, Copas
makes only a generalized assertion.
{¶20} For these reasons, we conclude Copas has failed to demonstrate either
that the trial court abused its discretion in sentencing him in accordance with the
provision of R.C. 2907.02(A)(1)(b) in effect prior to January 2, 2007, or that this change
prejudiced his defense.
Guernsey County, Case No. 12-CA-24 10
{¶21} Copas’ sole assignment of error is overruled and the judgment of the
Guernsey Court of Common Pleas, Guernsey County, Ohio is affirmed.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE
WSG:clw 0514
[Cite as State v. Copas, 2013-Ohio-2184.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DAVID E. COPAS :
:
:
Defendant-Appellant : CASE NO. 12-CA-24
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Guernsey Court of Common Pleas, Guernsey County, Ohio is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE