State v. Davis

In State v. Davis, Slip Opinion No. 2008 Ohio 4537, the Supreme Court revisited the issue. In Davis, the defendant was indicted on several drug-related charges, including two counts of aggravated trafficking in drugs. Unlike the indictment in the case at bar, the indictment in Davis apparently did not expressly state the felony level with which the defendant was charged. However, the statute under which the defendant was charged reflected that the charge was a felony of the fourth degree. During trial, the court amended the charge and increased the amount of controlled substances involved. As amended, the charge was a felony of the second degree. The Supreme Court determined, pursuant to O'Brien and Headley, such an amendment was improper, holding that "amending the indictment to change the penalty or degree changes the identity of the offense." Id. at P9.