Ohio Crim R 7(D) Interpretation

In State v. O'Brien (1987), 30 Ohio St.3d 122, 30 Ohio B. 436, 508 N.E.2d 144, the Court reinstated a child endangerment conviction despite the fact that the trial court had permitted the state to amend the indictment, prior to empanelling the jury, to include the essential element of recklessness. Although the appellate court concluded that the amendment allowed the jury to convict the accused on a charge essentially different from the charge for which he was indicted, the Supreme Court held that the amendment was, nonetheless, authorized by Crim.R. 7. Crim.R. 7(D), captioned "Amendment of indictment, information, or complaint," reads, in pertinent part: "The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, 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, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant's motion, if a jury has been impaneled, and 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, or that the defendant's rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury." Applying Crim.R. 7(D), the O'Brien Court administered a two-part test: First, the Court determined that the additional language charging O'Brien with recklessness did not change the name of the crime, or alter the penalty or degree of the offense. Id. at 126, 508 N.E.2d 144. In other words, O'Brien knew that he was being charged with child endangerment despite the fact that the original indictment omitted the essential element of recklessness. Second, because adding an essential element constituted an amendment to the substance of the indictment, the Court examined the procedural and substantive history of the case to determine whether O'Brien was misled or prejudiced by the amendment. The Court concluded that O'Brien had notice of both the offense and the applicable statute, and knowledge of the appropriate mental state, which was evidenced by his continuing efforts, before and during trial, to seek a dismissal of the indictment based upon the deficiency. Id. O'Brien argued that the defect in the indictment could not be cured by amendment because the amendment allowed the jury to convict him on a charge different from the charge handed down from the grand jury, citing State v. Headley (1983), 6 Ohio St.3d 475, 6 Ohio B. 526, 453 N.E.2d 716.