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Crim.R. 7(D): Amending Indictments in Ohio

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Granting state's motion to amend indictment was not error where amendment was to correct typographical error regarding the degree of the offense; amendment did not change the name or identity of the offense and defendant was not prejudiced. State v. Samuel Lomack, 5th Dist. (Licking County, OH) 1/2/13 http://www.sconet.state.oh.us/rod/docs/pdf/5/2013/2013-ohio-5.pdf

Mr. Lomack was indicted for trafficking in a schedule III drug The indictment stated the offense correctly, including the juvenile vicinity specification; however, it stated the offense was an F4 when in fact it was an F3. All other aspects of the indictment were sound. Mr. Lomack objected to the amendment of the indictment. That amendment was permitted by the judge in Licking County, Ohio.

Crim.R. 7(D) supplements this constitutional right by specifying when a court may permit an amendment to an indictment: “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.”

A trial court's decision allowing an amendment that changes the name or identity of the offense charged constitutes reversible error regardless of whether the accused can demonstrate prejudice. The misnumbering of the statute in an indictment does not invalidate the indictment. State ex rel. Dix v. McAllister, 81 Ohio St.3d 107, 108, 1998-Ohio-646, citing State v. Morales, 32 Ohio St.3d 252, 254, 513 N.E.2d 267(1987).