[Cite as State v. McKenzie, 2016-Ohio-5775.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, CASE NO. 13-16-07 

 PLAINTIFF-APPELLEE, 

 v. 

 O P I N I O N 

FENTON MCKENZIE, 

 DEFENDANT-APPELLANT. 

 

Appeal from Tiffin-Fostoria Municipal Court 

Trial Court No. 15TRD2539 

Judgment Affirmed 

Date of Decision: September 12, 2016 

 

APPEARANCES: 

Tim A. Dugan for Appellant 

Hunter M. Brown for Appellee 

 
Case No. 13-16-07 

-2- 

WILLAMOWSKI, J. 

{¶1} Defendant-appellant Fenton McKenzie (“McKenzie”) brings this 

appeal from the judgment of the Tiffin Municipal Court granting the State’s motion 

to amend the citation. For the reasons set forth below, the judgment is affirmed. 

{¶2} On July 15, 2015, McKenzie was issued a citation for speeding. Doc. 

1. The citation indicates that the speed was over the legal limit and was a violation 

under R.C. 4511.21(D)(1). Id. However, the citation stated that the speed was six 

miles per hour (“mph”) in a 55 mph zone. Id. On August 7, 2015, the State filed a 

motion to amend the citation to reflect that McKenzie was actually traveling at 67 

mph in the 55 mph zone. Doc. 4. The motion indicated that the trooper had 

mistakenly entered “6” instead of “67” in the system. Id. McKenzie objected to the 

amendment claiming that it would change the penalty or degree of the charged 

offense and that the change is prohibited by Crim.R 7(D). Doc. 7. A hearing was 

held on the motion and on December 9, 2015, the trial court granted the motion to 

amend the citation. Doc. 14. On December 28, 2015, McKenzie changed his plea 

to one of “no contest” and was found guilty of the speed violation. Doc. 18. 

McKenzie appeals the judgment and raises one assignment of error. 

The trial court erred in amending the complaint that changed the 

identity of the charge. 
Case No. 13-16-07 

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{¶3} On appeal, Mckenzie claims that the trial court was prohibited from 

amending the citation by Crim.R. 7(D) and the Ohio Supreme Court’s ruling in State 

v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609. 

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

the * * * complaint * * *, 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. 

Crim.R. 7(D). The Supreme Court in Davis indicated that an indictment cannot be 

amended if it would alter the name of the offense or the identity of the crime. Davis, 

supra. The identity of a crime is changed when the penalty or degree of the offense 

is altered by the amendment. Id. at ¶ 5. 

{¶4} In this case, the sole change to the complaint was one which stated the 

factual speed that McKenzie was traveling. The citation, aka the complaint, 

provided notice to McKenzie that he had been driving at a speed in excess of the 

posted speed limit in violation of R.C. 4511.21(D)(1). This statute provides notice 

that to be an offense, the driver had to be operating the vehicle in excess of 55 mph. 

Id. The error on the ticket was that the officer wrote 6 instead of 67. However, this 

error had nothing to do with either the name of the offense or the identity of the 

crime charged. The typographical error went to an underlying fact in support of the 

offense, not the crime itself. The documents provided in support of the motion to 

amend the citation included the information that McKenzie indicated that he “knew 

he was doing 65, was looking for a speed limit sign, coming from Toledo” and that 
Case No. 13-16-07 

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he was cited for driving 67 mph in a 55 mph speed zone. Doc. 4. The information 

sought to be amended was just an evidentiary element, the speed which McKenzie 

was traveling, that would need to be proven at trial. The proof would not have come 

from the citation, but from the testimony of the trooper. McKenzie received notice 

of the name and identity of the offense with which he was charged. No change was 

made to either of these by the amendment. Thus, pursuant to Crim.R. 7(D), the 

State could amend the complaint and the trial court did not err in permitting the 

State to do so. The assignment of error is overruled. 

{¶5} Having found no error in the particulars assigned and argued, the 

judgment of the Tiffin Municipal Court is affirmed. 

Judgment Affirmed 

PRESTON and ROGERS, J.J., concur. 

/hls