On February 20, 1987, the defendant-appellant was indicted on five counts of gross sexual imposition and one count of rape. All counts involved girls less than thirteen years of age at the time of the alleged offense. Defendant entered pleas of not guilty to all counts.
The offenses were alleged to have occurred, in the words of the indictment, as follows: *Page 154
COUNT I Lee Ann Friesner — during the month of May 1983. COUNT II Lee Ann Friesner — during the month of June 1983. COUNT III Andrea Christine Bailey — during the calendar year 1983. COUNT IV Yashonna Lynn Lowder — during the calendar year 1982. COUNT V Yashonna Lynn Lowder — during the calendar year 1983. COUNT VI Yashonna Lynn Lowder — during the summer of calendar year 1982.
At trial and over defendant's objection, the state was permitted to amend Counts I and II as follows:
Count I to read "during the summer months of 1981" instead of "during the month of May, 1983."
Count II to read "during the summer months" instead of "during the month of June."
The requested bill of particulars was no more specific as to the dates of the alleged offenses than was the indictment.
Defendant moved to dismiss the indictment because of the inexactitude in times and dates alleged, citing a denial of due process pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and to Section 10, Article I of the Ohio Constitution.
Defendant's motion to dismiss was overruled and the case proceeded to trial.
At trial, all the victims were permitted to testify as to their present recollection of the events occurring at an unspecified time sometime during years 1981 through 1983. The complaining witnesses were aged seven through eleven years of age.
At the close of the state's case defendant again moved for dismissal of the charges upon grounds of denial of due process for inability to prepare a defense and insufficiency of the evidence. This motion was overruled.
The state having dismissed Count V of the indictment, the jury returned a verdict of guilty to all other counts, and defendant was sentenced July 30, 1987. A notice of appeal was filed August 5, 1987.
I would sustain the first two assignments of error and overrule the third assignment for the reasons that follow.
Although the first two counts have been drafted to escape the problem inherent in a broader time frame than a period of one month (see State v. Sellards [1985], 17 Ohio St. 3d 169, 17 OBR 410, 478 N.E.2d 781), there is no testimony in the record to support even that limited time in the record.
In contrast to the allegations that Count I was "during the month of May 1983" and Count II "during the month of June 1983," the complaining-witness testimony fell far short of that limitation as to time. Lee Ann Friesner, the complaining witness, testified as follows:
"Q. You understand that it is important to tell the truth?
"A. Yes.
"Q. You were in his shop in Lancaster when he did this to you?
"A. Yes.
"Q. And he did this about three or four times?
"A. Yes.
"Q. Would you say he did this in the wintertime?
"A. No.
"Q. Do you know what time of the year he did it?
"A. Spring or summer.
"Q. Okay. And was it nighttime or daylight? *Page 155
"A. Day.
"* * *
"Q. Lea Anne [sic], I'd like you to look on page 3 of the statement. Around in the middle of the page, does it say `Would you say this happened in the spring, or the summer, or the fall?'
"A. Yes.
"Q. Okay. And what was your answer then?
"A. `Spring and summer.'
"Q. Then did he ask you just about the time spring changes into summer?
"A. Yes.
"Q. And then did he ask you, `And this was when you were nine years old?'
"A. Yes.
"Q. And what was your answer?
"A. `Uh-huh.'
"Q. Does that mean yes?
"A. Yes.
"Q. Okay. Do you know whether you were nine or seven when this happened?
"A. I was seven.
"Q. So you were wrong when you told Gary Pierce?
"A. Yeah.
"Q. Was it in the spring or summer?
"A. Yes.
"Q. So that would mean it would have been during the spring or summer of 1981?
"A. Yeah.
"Q. Because you were born in 1974. You would have been seven years old in March of 1981, right?
"A. Yeah.
"Q. So if it happened when you were seven, that would have been some time during the spring or summer of 1981, right?
"A. Yeah.
"Q. Okay. Do you — what do you consider the spring and summer months to be?
"A. June, July.
"Q. So, would you say it's accurate to say that Barney touched your breasts during June or July of 1981?
"Q. Yes."
Thereafter the trial court, over objection, permitted this indictment to be amended to read as to Count I "on a date certain during the summer months of 1981" and Count II to read "on a date certain during the summer months of 1983."
Although the indictment was worded to claim "a date certain," no date certain was ever established by any testimony of any witness as to any count.
As to the Count III, Andrea Christine Bailey testified that the events took place during the last six months she was in the fifth grade and that was 1983.
As to Count IV and Count VI, Yashonna Lowder testified that the events took place when she was eight years old and she was born July 24, 1974. Her testimony as to time frame was no more narrow than the indictment, "during the summer of 1982."
Count V was dismissed.
No other witness was able further to narrow the time frames. In no instance was there either a fresh complaint or a medical examination.
It is manifest that the accused could not possibly prepare any defense to these broad time frames. A search for exculpatory witnesses who might have been present at the time and place alleged was not possible.
The right to defend is guaranteed by the Due Process Clauses of both federal and state Constitutions. Moreover, the amendment of Count I from the year 1983 to the year 1981 violated the Ohio constitutional right not to be called upon to answer a charge of infamous crime unless on presentment or indictment of a grand jury.
I concur in overruling the third *Page 156 assignment of error because the judgment is not against the manifest weight of the evidence.
In my opinion, the reversed counts taint the balance of the counts. Their display to the jury denied a fair trial to the accused. The judgment of the Court of Common Pleas of Fairfield County should be reversed as to all counts. *Page 157