An Ohio man convicted of smuggling his Honda Civic out of a downtown Cleveland repossession lot in 2022 will not get the chance to convince the state’s highest court that he was ambushed by new allegations during his trial.
On March 3, the Ohio Supreme Court in a 7-1 vote denied John R. Hicks’ request that it reconsider his robbery conviction on grounds that the Cuyahoga County Prosecutor’s Office added new details to Hicks’ indictment before and during trial — a move that Hicks argued was prejudicial to his criminal defense.
By denying jurisdiction over Hicks’ appeal, the Supreme Court left undisturbed Hicks’ conviction and the Eighth District Court of Appeals ruling which held in a 2-1 decision that the prosecutor’s office acted within its authority to amend Hicks’ indictment.
And, in refusing to hear Hicks’ appeal, the Court may have missed an opportunity to clarify what is needed to show prejudice — and who has the burden of showing it — under Rule 7(D) of the Ohio Rules of Criminal Procedure, according to Jonathan Witmer-Rich, law professor and co-director of the Criminal Justice Center at Cleveland State University College of Law.
“If the Supreme Court had taken the case, it would have been able to highlight that language and explain what that language means,” Witmer-Rich said in an interview with Ohio Court Watch.
In the Eighth District’s majority opinion, Judge William Klatt explained that Rule 7(D) authorizes the State to move to amend an indictment to conform with the evidence before, during, or after trial — so long as doing so does not alter the “name or identity” of the charge or otherwise prejudice the accused.
“When the amendment does not change the name or identity of the offense, an appellate court should not disturb the trial court’s decision to permit the amendment absent an abuse of discretion and a showing of prejudice,” Judge Klatt wrote for the Eighth District.
The primary purpose of Rule 7(D) is to “strike a balance” between the prosecutor’s ability to efficiently try the case and the defendant’s right to be on notice with what they’re being charged with “both legally and factually,” Witmer-Rich said.
“On the one hand, you don’t want to be too hyper-technical where you have to restart from the beginning, get a new indictment, start the whole proceeding again just because there was some minor change, right?” Witmer-Rich said.
“On the other hand, we do have a right to indictment by jury. And if that’s going to mean anything, it means that — not just that the jury indicted you — but that they indicted you for the thing that you’re going to trial on,” he said.
During Hicks’ trial in 2024, the trial court allowed the prosecutor’s office to make three changes to Hicks’ indictment.
First, the State made an oral motion before trial began to amend the date of Hicks’ alleged conduct from September 27, 2022, to a three-week period between September 27 to October 14, 2022, in order to reflect a “continuous course of conduct” of the original offense.
After presenting its evidence at trial, the State requested two more changes to Hicks’ indictment — namely, to include a new victim and replace “firearm” with “motor vehicle” for the deadly weapon reportedly used to commit the offense.
The Eighth District ultimately determined, however, that Hicks could not show “that the amendments prejudiced his defense.” Nor did the amendments add “events not already included in the indictment,” Judge Klatt explained.
“Those amendments were made to conform with the evidence, which is specifically permitted under Crim.R. 7(D),” Judge Klatt wrote.
Dissenting from her colleagues, Eighth District Judge Anita Laster Mays found otherwise: “The amendments in this case were not minor clarifications; they were substantive alterations that changed the nature of the charged offense.”
Because the amendments “fundamentally shifted the factual basis of the offense and the theory upon which the State proceeded,” Judge Laster Mays argued that they amounted to a substantive change to the “identity of the offense.”
“Permitting the State to amend an indictment to reflect newly developed factual theories during trial, particularly when those theories were not presented to the grand jury, erodes the defendant’s constitutional right to notice and contravenes Crim.R. 7(D),” Judge Mays wrote.
By declining to review the case, the Ohio Supreme Court may leave lingering questions about the extent of a prosecutor’s ability to alter the “substance” of a defendant’s indictment — and whose burden it is to show that the alteration caused prejudice, according to Witmer-Rich.
Witmer-Rich said he agreed with the Eighth District’s interpretation that the factual amendments at issue here — the new victim, date range, and deadly weapon — did not amount to a change in the “name or identity” of the charges Hicks faced per the first sentence of Rule 7(D).
“If you were charged with robbery, and they changed it to burglary, that would be a change in the name of the offense, right?” he said. “Here, I think the majority is correct that the first sentence, there was not a change to the name or identity of the crime charged.”
But Witmer-Rich said the Ohio Supreme Court could have clarified the Eighth District’s application of the second sentence of Rule 7(D), which provides that if an amendment is made to the substance of the indictment, the court must evaluate whether it “clearly appears from the whole proceeding that the defendant has not been misled or prejudiced by defect or variance.”
“That’s language that is placing something of a burden on the prosecutor or the trial judge, at least, to determine that it’s clear that there’s not prejudice, so creating somewhat of a high bar, right?” Witmer-Rich said. “If you’re going to change the nature of the factual allegations, it has to be clear that the defendant is not prejudiced.”
The majority’s opinion “reads kind of the opposite,” Witmer-Rich said, by appearing to place the burden on the defendant. “[The State] should have to show that it clearly appears that there’s no prejudice as opposed to putting that burden on the defendant to show prejudice. It’s maybe a subtle difference, but I think it’s an important one.”
Hicks, who appealed his case to the Ohio Supreme Court as a pro-se petitioner, is expected to serve the remainder of his two- to three-year prison sentence.