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State v. Davis9/12/2003
ffense was based on the type of drug involved. Id. at 479. As a result, the Ohio Supreme Court held that the identity of the drug was an essential element and had to be included in the indictment. This omission could not be cured by amendment, since the identity of the offense would change. Id.
. The present case is unlike Headley, however, because the severity of an offense under R.C. 2903.04(B) does not depend on the type of misdemeanor involved. Instead, a defendant who causes the death of another while committing any misdemeanor (with certain non-relevant exceptions), is guilty of involuntary manslaughter.
. After Headley, the Ohio Supreme Court allowed the State to amend an indictment that failed to include a term of intent required for the crime of endangering children. O'Brien, 30 Ohio St.3d at 124-26. Although intent had previously been held an essential element of that crime, the Supreme Court noted that the crime's name and identity (endangering children) remained the same after the indictment was amended. Moreover, neither the penalty nor the degree of child endangering changed as a result of the amendment.
. This is the situation that exists in the present case. In O'Brien, the court did go on to find that the substance of the indictment had changed. Consequently, the Ohio Supreme Court considered, as required by Crim. R. 7(D), whether the change prejudiced the defendant. Id. at 126. After reviewing the record, the court found no prejudice. The court first noted that the defendant could have moved for discharge of the jury under Crim. R. 7(D), but failed to do so. Id. The court also found that a motion for discharge would have been overruled in any event, because the defendant failed to show that he was prejudiced or misled by the amendment.
. Because amendment is allowed under Crim. R. 7(D) in the court's discretion, our review is for abuse of discretion. State v. Brumback (1996), 109 Ohio App.3d 65, 81, and State v. Lewis (1993), 85 Ohio App.3d 29, 32-33. In addition, a defendant must show prejudice as a result of the amendment. 109 Ohio App.3d at 81.
. After reviewing the record, we find no abuse of discretion. To the contrary, the trial court acted reasonably in allowing the amendment. The court had already prepared an instruction on negligent assault before the State asked to amend the bill of particulars. The statute for negligent assault provides that " o person shall negligently, by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code, cause physical harm to another or to another's unborn." R.C. 2903.14(A).
. In comparison, the statute for assault provides that " o person shall recklessly cause serious physical harm to another or to another's unborn." R.C. 2903.14(B). Although negligent assault is a third degree misdemeanor and assault is a first degree misdemeanor, the degree of the particular misdemeanor is irrelevant for purposes of a conviction for misdemeanor involuntary manslaughter. See R.C. 2903.04(B) (referring to "the offender's committing or attempting to commit a misdemeanor of any degree").
. As a further matter, Davis was already charged in Count II with violating R.C. 2903.02(B). The bill of particulars for Count II stated that " n addition to the information contained in Count II of the indictment the defendant knowingly caused Randall D. Powers serious physical harm or caused or attempted to cause Powers physical harm by use of a deadly weapon." Thus, Davis knew before trial and before amendment that the State would attempt to prove that he caused Powers serious physical harm. Notably, this element is the only difference between negligent as
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