[Cite as State v. Villamor-Goubeaux,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2015-CA-29 : v. : T.C. NO. 14CR151 : EVA O. VILLAMOR-GOUBEAUX : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the ___21st___ day of _____October_____, 2016.

...........

RYAN C. SPITZER, Atty. Reg. No. 0093515 and PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorneys, 201 W. Main Street, Safety Building, Troy, Ohio 45373 Attorneys for Plaintiff-Appellee

DAVID P. WILLIAMSON, Atty. Reg. No. 0032614, 400 PNC Center, 6 N. Main Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

FROELICH, J.

{¶ 1} Eva O. Villamor-Goubeaux was found guilty after a bench trial in the Miami

County Court of Common Pleas of interference with custody in violation of R.C.

2919.23(A)(1), a felony of the fifth degree. She was sentenced to three years of -2-

community control and was ordered to pay restitution to her former husband, Michael

Goubeaux, in the amount of $1,570.74. Villamor-Goubeaux appeals from her conviction.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 3} Villamor-Goubeaux and Goubeaux were married in 2009 and had one child

during their marriage, a daughter. They separated in December 2012, and Goubeaux

filed for divorce in January 2013. On April 3, 2013, the parties filed a “Magistrate’s Order/

Agreed Entry” related to their “temporary parenting times and child support.” The

agreement provided, in pertinent part, that: 1) the child would live at the marital residence

in Troy; 2) Goubeaux was entitled to parenting time with the child pursuant to the Miami

County Standard Order of Parenting Time, which was attached; 3) Villamor-Goubeaux

was granted “exclusive occupancy” of the marital home; and 4) neither party would

remove the child from the State of Ohio “except for a period not to exceed 14 days during

their scheduled parenting times.” The Agreed Entry did not otherwise expressly address

the issue of “custody.”

{¶ 4} In the fall of 2013, Villamor-Goubeaux left her employment as a nursing

instructor in hopes of finding a better-paying job. Soon thereafter, she concluded that

her job prospects were better in other states, and she spoke with her attorney about

seeking a modification of the provision in the Agreed Entry that prevented either party

from removing the child from Ohio for more than 14 days, because she wanted to move

out of state. Around Thanksgiving 2013, before a motion for modification of the

agreement had been filed or granted and without notice to Goubeaux, Villamor-Goubeaux

moved to New Jersey with the child, who was then four years old. -3-

{¶ 5} On December 11, 2013, Villamor-Goubeaux’s attorney requested a

continuance of a final hearing on the parties’ divorce, which was scheduled for December

19, due to personal health issues; he indicated that, if the request were denied, he would

“have to resign” from the case. On December 12, the attorney informed Goubeaux’s

attorney that Villamor-Goubeaux was out of state seeking employment. After Goubeaux

was notified of Villamor-Goubeaux’s departure from the state,1 Goubeaux filed a “Motion

for Emergency Interim Custody; Motion for Restraining Order; Motion for Exclusive Use

[of the marital property].”

{¶ 6} On December 16, the trial court granted temporary interim custody of the

child to Goubeaux. The same day, Villamor-Goubeaux’s attorney filed a motion to

modify the Agreed Entry of April 2013 and requested that the court address the issue at

the December 19 hearing (which the attorney had already asked to continue). The court

agreed to address the requested modification at the hearing, but it did not rule on the

request for a continuance.

{¶ 7} Neither Villamor-Goubeaux nor her attorney appeared at the December 19

hearing, and the trial court denied the attorney’s “request to withdraw.” The trial court

proceeded to hear the issues related to the divorce. Villamor-Goubeaux later claimed

that she had been traveling to Ohio from New Jersey for the hearing when she learned

from her attorney via voicemail that he had resigned, that the case “shouldn’t go ahead,”

and that she needed to hire a different lawyer. Villamor-Goubeaux, who was then in

1 At trial, Villamor-Goubeaux presented, as exhibits, copies of numerous filings with the trial court in the custody proceedings. Because these copies do not include the court’s file stamp, and because the court’s record of the custody proceedings is not part of the criminal proceedings and therefore is not before us, the exact dates of some filings are unclear. -4-

Youngstown, Ohio, turned around and returned to New Jersey.

{¶ 8} In January 2014, Villamor-Goubeaux hired a new Ohio attorney and

accepted a job offer in Nevada. On February 4, 2014, a complaint for interference with

custody was filed by the Troy Police Department against Villamor-Goubeaux in the Miami

County Municipal Court, and a warrant for her arrest was issued. She was arrested in

Nevada on February 27, 2014.

{¶ 9} Villamor-Goubeaux did not communicate with Goubeaux or the court about

her whereabouts or attempt to arrange any contact between Goubeaux and their child at

any time between Thanksgiving 2013 and February 27, 2014.

{¶ 10} On May 22, 2014, Villamor-Goubeaux was indicted in the Miami County

Common Pleas Court for interference with custody, in violation of R.C. 2919.23(A)(1).

She pled not guilty and filed a motion to dismiss the indictment, which was denied. The

matter was tried to the court in September 2015, and she was found guilty. She was

sentenced as described above.

{¶ 11} Villamor-Goubeaux appeals from her conviction, raising three assignments

of error.

II. Legal Effect of “Custody”

{¶ 12} The first assignment of error states:

The trial court erred by denying Appellant’s motions [sic] to dismiss

and failing to find that custody is an essential element of the statute

(O.R.C. §2919.23).

{¶ 13} Under this assignment of error, Villamor-Goubeaux argues that, as a

matter of law, a custodial parent cannot be found to have interfered with custody. On -5-

this basis, she asserts that the trial court should have granted her motion to dismiss or

should have acquitted her.

{¶ 14} As a preliminary matter, we observe that the parties’ Agreed Entry refers

only to the parenting times of each party and the “primary residence” of the child, which

was the marital home; the parties also agreed that Villamor-Goubeaux would have

“exclusive occupancy” of the marital home until further order of the court. Thus, the child

resided primarily with Villamor-Goubeaux at the marital home. The parenting time

schedule also gave Villamor-Goubeaux more time with the child. Although both parties

testified at the criminal trial using the terminology that Villamor-Goubeaux had “custody”

of the child under the April 2013 Agreed Entry, that agreement did not designate Villamor-

Goubeaux as the custodial parent or otherwise specify that she had superior rights to

Goubeaux in making decisions involving the child.

{¶ 15} In In re: P.T.P., 2d Dist. Greene No. 2005 CA 148,

,

involving parties that were never married, the trial court originally granted father’s motion

for visitation, but never designated either party as residential parent or legal custodian.

The court addressed a subsequent motion for custody by father as an original custody

determination, and thus did not require a finding of change of circumstances pursuant to

R.C. 3109.04(E)(1)(a). We held that although the trial court could have treated the prior

order as a “de facto designation of custody,” it did not err in finding that its prior order was

limited to visitation.

{¶ 16} In re: A.N., 2d Dist. Greene Nos. 2010-CA-83 and 2011-CA-7, 2011-Ohio-

2422, also dealt with an unmarried couple; the parties filed an agreed entry that did not

specifically mention custody or identify mother as the residential parent, but provided that -6-

the “father shall have parenting time with minor child in accordance with the Standard

Order of Parenting Time.” Id. at ¶ 3. The trial court found that this language constituted

a de facto designation of mother as the child’s residential parent and legal custodian.

We affirmed on appeal and commented:

Custody and visitation, or parenting time, are related but distinct legal

concepts. State ex rel Mosier v. Fornof,

,

,

, citing Braatz v. Braatz (1999),

,

. “ ‘Custody’ refers to the right to ultimate legal and

physical control over a child, while ‘parenting time rights’ grant a parent the

power of temporary physical control for the purpose of visitation.”

quoting Williamson v. Cooke, Franklin App. No. 09AP-222, 2009-Ohio-

6842, ¶ 22, in turn citing

,

.

Id. at ¶ 14.

{¶ 17} In Villamor-Goubeaux’s criminal appeal, the State does not dispute her

characterization that she was the “custodial” parent, and both parents seem to have

accepted this term. Accordingly, we will assume that Villamor-Goubeaux had “custody”

of the child for the purpose of considering Villamor-Goubeaux’s argument that a

“custodial” parent cannot interfere with custody, without determining whether this

characterization is legally correct.

{¶ 18} Villamor-Goubeaux argues that “interference with custody” can only occur

if the child in question is taken from a person who has “custody.” Villamor-Goubeaux

contends that “interference with custody is not the same as interference with the parental

interest of visitation.” She relies, in part, on the title of R.C. 2919.23, “Interference with -7-

Custody.” Except with respect to certain sections embodying the Uniform Commercial

Code, the “Title, Chapter, and section headings * * * do not constitute any part of the law

as contained in the ‘Revised Code’.” R.C. 1.01. See also State v. Beener,

,

(2d Dist. 1977) (holding that resort to a title in interpreting

a statute “is unnecessary and improper”); Dade v. Bay Village Bd. of Zoning Appeals,

8th Dist. Cuyahoga No. 87728,

. The text of a statute, not its title,

determines its intent and scope.

{¶ 19} R.C. 2919.23(A)(1) provides:

No person, knowing the person is without privilege to do so or being

reckless in that regard, shall entice, take, keep, or harbor a person identified

in division (A)(1), (2), or (3) of this section from the parent, guardian, or

custodian of the person identified in division (A)(1), (2), or (3) of this section:

(1) A child under the age of eighteen, or a mentally or physically

handicapped child under the age of twenty-one[.]

The language of the statute itself provides no support for Villamor-Goubeaux’s argument

that its provisions do not apply to a “custodial” parent.

{¶ 20} Villamor-Goubeaux further argues that “[h]er designation as

residential/custodial parent granted her the privilege” to have the child in her care,

custody, and control, and therefore she was not “without privilege” to take or keep the

child away from the child’s father, as prohibited by R.C. 2919.23(A)(1). This position is

basically an assertion that the “custodial” parent can do whatever he or she wants with

respect to the care, custody and control of a child, notwithstanding the limitations imposed

and rights granted to the non-custodial parent in a court’s judgment, and not be held in -8-

violation of the criminal law. In other words, Villamor-Goubeaux’s argument concedes

that she might be in contempt of court for violating the Agreed Entry’s provisions

concerning Goubeaux’s right to have regular parenting time with the child and the

prohibition on either parties’ leaving the state with the child for more than 14 days, but

she asserts that she was not in violation of R.C. 2919.23(A)(1) and consequently not

criminally liable.

{¶ 21} Villamor-Goubeaux cites two cases in support of her position.

{¶ 22} In State v. Cornelius, 2d Dist. Miami No. 10CA10,

, L.M.,

a teenaged girl with developmental, social, and academic problems, had been placed in

the custody of her cousins by a juvenile court, with the consent of her mother,

approximately eight months before her 18th birthday. The placement was pursuant to

an agreed order and based on the girl’s best interests; the juvenile court made no findings

with respect to the girl’s mental or physical disabilities. Id. at ¶ 23, 27. Several months

after L.M.’s 18th birthday, and more than one year after the juvenile court’s custody order,

L.M. left her cousins’ home with a man she had met online (Cornelius) and went with him

to North Carolina. L.M. was found the next day, and Cornelius was charged with two

felonies: abduction and interference with custody in violation of R.C. 2919.23(A)(1). The

State subsequently dismissed the abduction charge. Id. at ¶ 4.

{¶ 23} After a bench trial, the trial court found Cornelius guilty of interference with

custody. The conviction was predicated on the court’s conclusion that the juvenile

court’s custody order remained in effect beyond L.M.’s 18th birthday. The trial court

relied on Castle v. Castle,

,

(1984), which held that,

absent a statute to the contrary, the common law duty imposed on parents for the care of -9-

their children may continue beyond the age of majority if a child is unable to care for

himself or herself because of mental or physical disabilities. On appeal, however, we

rejected the applicability of Castle to the case, because there had been no findings made

regarding L.M.’s mental or physical disabilities. Cornelius,

. We

also noted that, unlike in a civil case (such as Castle), statutes defining a criminal offense

must “be strictly construed against the state, and liberally construed in favor of the

accused.”

{¶ 24} In Cornelius, we stated that in order to find the defendant guilty, the court

was required to find that the victim was “subject to rights conferred by law on the victim’s

parent, guardian, or custodian, and that the offender, being without privilege or reckless

in that regard, enticed, took, kept, or harbored the victim from the victim’s parent,

guardian, or custodian.” Id. at ¶ 18. We found that there was insufficient evidence that

Cornelius had acted without privilege when he took the 18-year-old out of state, “because

she was not then subject to any parental, custodial or guardianship rights conferred by

law on another person.” Since the juvenile court’s prior order granting custody of the 18-

year-old terminated before she was taken out of state, the evidence was “insufficient to

support the trial court’s express finding that, on that date, defendant took [the 18-year-

old] from a person to whose custody she had been committed.” Id. at ¶ 29. Further,

“[b]ecause the element of custody is essential to a violation of R.C. 2919.23(A)(1) alleged,

the trial court erred when it found defendant guilty of that offense and convicted him

accordingly.” Id. (Emphasis added).

{¶ 25} Villamor-Goubeaux argues that since she had custody and Goubeaux only

had visitation, she could not interfere with her own custody. However, while “custody” -10-

was indeed an element to the violation alleged in Cornelius, that case does not stand for

the proposition that Villamor-Goubeaux had the privilege to keep a child who was subject

to rights conferred by law on the child’s other parent. After the child turned 18 in the

Cornelius case, she was not subject to rights conferred by law on anyone; the minor child

here was still subject to the rights conferred on her father by the court’s Agreed Entry,

which ordered visitation and prohibited the child’s removal from the state for more than

14 days.

{¶ 26} The question in Cornelius was whether, after L.M. had turned 18, any court

order remained in effect so as to bring her (the “child”) within the scope of R.C.

2919.23(A)(1) and permit a charge for interference with custody. Although Cornelius

contains a statement that “the element of custody is essential to a violation of R.C.

2919.23(A)(1),” upon which Villamor-Goubeaux relies, the issues presented were very

different from this case. In essence, we held that in the absence of findings regarding

disability, there was no court order in effect with which the defendant could interfere. Our

statement in Cornelius about the role of “custody” is inapplicable to the facts of this case.

Cornelius cannot reasonably be interpreted as holding that, as between two parents of a

minor child, one with “custody” of the child cannot be charged with interference with

custody.

{¶ 27} Similarly, Villamor-Goubeaux cites State v. Brickles, 2d Dist. Montgomery

No. 17526,

(Sept. 3, 1999) for the proposition that R.C. 2919.23(A)(1)

can be applied against a parent with visitation, but not a parent with custody.

{¶ 28} In Brickles, the defendant was a non-custodial father with visitation rights,

and a dispute arose over whether he had properly exercised an option to keep his child -11-

for a week of “summer vacation.” When he did not return the child from an April weekend

visitation, the police were called, and the father was charged with interference with

custody under R.C. 2919.23(A)(1). The trial court found father guilty, based on its

conclusion that “summer visitation” could not be exercised in April, without addressing the

conflicting evidence about whether father had given and mother had received notice of

the proposed extended visit.

{¶ 29} Although we recognized that “a criminal sanction is a rather blunt

instrument for dealing with the myriad conflicts and minor violations that can occur in the

context of custody and visitation,” we rejected father’s argument that a parent with

visitation rights could not be charged under R.C. 2919.23(A)(1). Id. at * 5. We affirmed

the trial court’s judgment, noting that “no objectively reasonable interpretation of the

visitation agreement would have given [father] the right to demand a week of visitation in

April as ‘summer visitation,[’]” and that the trial court did not lose its way or create a

manifest miscarriage of justice in concluding, based on the evidence presented, that

father had acted recklessly in refusing to return the child after he learned of mother’s

objection to the extended visitation in April. Id. at * 9-10.

{¶ 30} Likewise, the Sixth District Court of Appeals has observed that, while

custody and visitation matters may be better addressed through contempt proceedings in

a domestic relations setting, it found no authority that mandates deference to such a court.

Toledo v. Parra, 6th Dist. Lucas No. L-12-1261,

, ¶ 16-18. We agree

with this assessment. To conclude that contempt proceedings must be utilized

exclusively would nullify the language of R.C. 2919.23(A)(1).

{¶ 31} Villamor-Goubeaux argues that applying R.C. 2919.23(A)(1) to custodial -12-

parents creates the possibility of criminal charges being filed when one parent is mere

minutes late for an exchange of parenting time. However, other factual variations on this

offense – whether de minimis violations or extreme ones – are not before us.

{¶ 32} Villamor-Goubeaux acknowledges that the parties’ Agreed Entry stated

that, “unless the parties agreed otherwise or subject to a modifying order, the following

[agreement] shall be the temporary and permanent Order of this Court relative to the

rights and obligations of the residential and non-residential parent.” She emphasizes

that she had discussed obtaining a modification with her attorney and “was in the process

of seeking a modification of the domestic relations order” when she left the state with the

child. Villamor-Goubeaux seems to equate requesting a modification – or simply having

discussions with her lawyer about doing so – with actually obtaining a modification from

the court.

{¶ 33} But a request for a modification does not authorize the movant to take the

actions for which permission is sought. Villamor-Goubeaux’s subsequent actions

disregarded the fact that the Agreed Entry granted rights and responsibilities to both

parties, and that she had no right to unilaterally alter the agreement. Villamor-Goubeaux

had the “ultimate legal and physical control over” the child by virtue of having custody, but

this did not give her the privilege to disregard a court order granting Goubeaux “the power

of temporary physical control for the purpose of visitation.” In re: A.N., 2d Dist. Greene

Nos. 2010-CA-83 and 2011-CA-7,

. Her argument that she “had

the privilege to take, keep, and harbor her child,” without regard for Goubeaux’s visitation

rights, until the trial court modified its custody order (or otherwise ruled on her motion) is

not well taken. -13-

{¶ 34} Moreover, even if we were to accept Villamor-Goubeaux’s argument that

she had any privilege2 to keep the child away from Goubeaux under the Agreed Entry

(which we do not), this privilege would have terminated when the trial court awarded

temporary interim custody to Goubeaux in December 2013, and Villamor-Goubeaux

would have kept the child without such “privilege” until the end of February. The fact that

Villamor-Goubeaux may not have known of the change in custody because she was

voluntarily out of state and not in communication with Goubeaux or the court does not

alter the legal relationships among the parties; at most, it factors into the trial court’s

finding regarding mens rea (see below).

{¶ 35} Villamor-Goubeaux’s argument that she was the “custodial” parent and

that, as a matter of law, she therefore could not be charged under R.C. 2919.23(A)(1) is

without merit.

{¶ 36} The first assignment of error is overruled.

III. Sufficiency and Weight of the Evidence Regarding Mens Rea

{¶ 37} Villamor-Goubeaux’s second assignment of error states:

The verdict of the trial court was against the manifest weight of the

evidence and supported by insufficient evidence.

{¶ 38} Villamor-Goubeaux contends that the trial court erred in finding that she

knew she had taken the child out of state for more than 14 days without privilege to do so

or was reckless in that regard. She argues that she did not have the applicable mens rea

2 “Privilege” is defined as “an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12). -14-

because she acted in good faith reliance on the advice of her counsel.

{¶ 39} An argument based on the sufficiency of the evidence challenges whether

the State has presented adequate evidence on each element of the offense to allow the

case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins,

,

(1997). “An appellate court's function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 40} When reviewing an argument challenging the weight of the evidence, an

appellate court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses, and determines whether, in resolving

conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Thompkins,

,

(1997), quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 41} A person acts knowingly, regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature. R.C. 2901.22(B). A person acts recklessly when, with heedless

indifference to the consequences, the person perversely disregards a known risk that his -15-

or her conduct is likely to cause a certain result or is likely to be of a certain nature. R.C.

2901.22(C).

{¶ 42} The testimony at trial with respect to Villamor-Goubeaux’s mens rea was

as follows.

{¶ 43} Villamor-Goubeaux’s attorney testified that he first learned that Villamor-

Goubeaux was out of state in mid-December 2013. (Villamor-Goubeaux had been gone

more than 14 days at that time.) The attorney and Villamor-Goubeaux had discussed

her desire to file a motion to modify the provision requiring her to return to the state within

14 days, and the attorney had agreed to file such a motion; he told Villamor-Goubeaux “it

was probably * * * a reasonable expectation” that she would get more time. The attorney

testified, however, that he never told Villamor-Goubeaux she could go ahead and move

out of state.

{¶ 44} Villamor-Goubeaux testified that she talked with her attorney about moving

before she left town and that it was her “understanding,” based on these discussions, that

it was “ok” to seek employment out of state “because he [the attorney] will file a

modification.” Villamor-Goubeaux further testified that she believed her attorney would

inform the court and opposing counsel of her plan.

{¶ 45} Villamor-Goubeaux testified that she had “full physical custody” of her

daughter. She admitted to taking the child out of state for more than 14 days, and she

stated that she did not attempt to contact Goubeaux at any point during the more than

three months she was gone, including the time she briefly returned to Ohio in anticipation

of the hearing on December 19, 2013. She offered various explanations for this lack of

communication, including that she and Goubeaux were “not really communicating well” -16-

around that time and that Goubeaux frequently cancelled his visits with their daughter.

{¶ 46} Villamor-Goubeaux also testified that she and Goubeaux had agreed to

communicate only through their attorneys, but she was unable to document such an

agreement. The Agreed Entry provided that the parents would communicate via email,

and she did not send Goubeaux any emails during her absence. Villamor-Goubeaux

also acknowledged that she did not have an attorney through which communications

could have been made during some of the time she was out of state. She could not

remember whether, when she did hire her second attorney to replace the first, she had

told the second attorney about the parenting time agreement with Goubeaux.

{¶ 47} Based on the timeline presented by the attorney’s and Villamor-

Goubeaux’s testimony, Villamor-Goubeaux had moved out of state several weeks before

the request for a modification of the Agreed Entry was filed. Moreover, Villamor-

Goubeaux never asserted that she believed the motion had been granted. She claimed

to rely on her first attorney for all communication with Goubeaux about her and her

daughter’s whereabouts, notwithstanding the parties’ agreement that they would

communicate by email and that neither party would remove the child from the state for

more than 14 days. She made no effort to permit Goubeaux to talk or visit with the child

during the three months that she was out of state.

{¶ 48} Based on this evidence, a rational trier of fact could have found the

essential elements of the interference with custody proven beyond a reasonable doubt;

thus, Villamor-Goubeaux’s conviction was supported by sufficient evidence. Further, we

cannot conclude that the trial court clearly lost its way and created a manifest miscarriage

of justice in finding that, at the very least, Villamor-Goubeaux had acted recklessly, i.e., -17-

she had perversely disregarded a known risk that her behavior was without privilege and

would keep her child from Goubeaux for a period of time well beyond what was permitted

by the parties’ agreement and that she had acted with heedless indifference to the

consequences of doing so. Thus, her conviction was not against the manifest weight of

the evidence.

{¶ 49} The second assignment of error is overruled.

IV. Amendment of the Indictment

{¶ 50} The third assignment of error states:

The trial court erred in granting the State’s motion to amend the

indictment.

{¶ 51} The State filed a motion to amend the indictment on April 15, 2015, almost

five months before the trial took place. The motion stated that the “indictment misstates

the full date range of the offense * * * . The indictment should read, ‘On or about

November 25, 2013 to on or about February 27, 2014’ rather than the current, ‘on or about

November 25, 2013.’ ” Villamor-Goubeaux objected to the proposed amendment.

Although the trial was, at one point, scheduled to begin the day after the motion was filed,

the trial was continued to September 10, 2015, for reasons unrelated to the motion. In

light of the continuance, the trial court granted the motion to amend the indictment, finding

that Villamor-Goubeaux would have adequate time to prepare for trial.

{¶ 52} Villamor-Goubeaux argues that the change in the dates listed on the

indictment “substantively changed the identity of the offense,” because the proposed

dates spanned more than one court order related to the custody of the child.

{¶ 53} Crim.R. 7(D) provides that: -18-

The court may at any time before, during, or after a trial amend the

indictment * * * in respect to any defect, imperfection, or omission in form or

substance, or of any variance with the evidence, provided no change is

made in the name or identity of the crime charged. If any amendment is

made to the substance of the indictment, * * * or to cure a variance between

the indictment * * * and the proof, the defendant is entitled * * * to a

reasonable continuance, unless it clearly appears from the whole

proceedings that the defendant has not been misled or prejudiced by the

defect or variance in respect to which the amendment is made * * *.

{¶ 54} Whether an amendment changes the name or identity of the offense

charged is a matter of law that we review de novo. State v. Frazier, 2d Dist. Clark No.

2008 CA 118,

, ¶ 22. “If the amendment does not change the name or

identity of the crime charged, then we apply an abuse of discretion standard to review the

trial court’s decision to allow a Crim.R. 7(D) amendment.” (Citations omitted.) Id. at ¶ 23.

An abuse of discretion occurs when the decision of a court is “unreasonable, arbitrary, or

unconscionable.” (Citation omitted.) State v. Jones,

,

, ¶

125 (2d Dist.), citing AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp.,

,

(1990).

{¶ 55} Villamor-Goubeaux argues that she was denied her right to have the grand

jury consider whether anything happened up to February 27, 2014, as opposed to

November 25, 2013, as its indictment stated; and that she was convicted of a charge

different than that returned by the grand jury. In a case involving sexual offenses against

children, the Twelfth District has stated: -19-

“An indictment compels the government to aver all material facts

constituting the essential elements of an offense, the purpose of which is to

afford the accused adequate notice and an opportunity to defend, and to

enable the accused to protect himself from any future prosecutions for the

same offense.” State v. Murrell,

(12th Dist.

1991), citing State v. Sellards,

(1985). Ordinarily,

specificity as to the time and date are not essential elements of an offense,

especially where the crimes alleged in the indictment constitute sexual

offenses against children. Id.; [State v.] Wagers, 12th Dist. No. CA2009-

06-018,

at ¶ 17-18. The state’s inability to produce

specific dates and times with regard to an alleged offense is without

prejudice, and without constitutional consequence, when such does not

present a material detriment to the preparation of a defense.

. As such, in order for appellant’s convictions to be reversed due to the

amended indictment, appellant must show that his defense had been

prejudiced by the amendment.

.

First, we note that the amendment to the indictment in this case was

proper under Crim.R. 7(D). In addition, appellant did not present any sort

of defense, including an alibi defense, which would have been prejudiced

by the amendment to the indictment. Therefore, even had the amendment

to the indictment permitted appellant to be tried for offenses not reviewed

by the grand jury, appellant was not prejudiced by the amendment. Thus,

regardless of whether the amendment to the indictment affected appellant’s -20-

right to prosecution by grand jury indictment, appellant was not prejudiced

by the amendment. * * *

State v. Bokeno, 12th Dist. Butler No. CA2011-03-044,

, ¶ 37.

{¶ 56} Villamor-Goubeaux did not demonstrate any prejudice as a result of the

amendment, and the different court orders that were in effect during the period in question

do not appear to have been relevant to the State’s presentation of the evidence or the

trial court’s finding of guilt. Although the trial court did grant temporary custody of the

child to Goubeaux during the period set forth in the indictment, which reflected a change

in the parental status, this change did not have any direct bearing on the more general

issue of whether Villamor-Goubeaux had kept the child from Goubeaux throughout the

period listed in the indictment. As discussed above, we have rejected Villamor-

Goubeaux’s argument that her status as the custodial parent during part of the time period

stated in the amended indictment precluded charging her under R.C. 2919.23(A)(1). The

trial court did not abuse its discretion in permitting the State to amend the indictment

several months before trial.

{¶ 57} The third assignment of error is overruled.

V. Conclusion

{¶ 58} The judgment of the trial court will be affirmed.

.............

DONOVAN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Ryan C. Spitzer Paul M. Watkins David P. Williamson Hon. Christopher Gee