Indictment Charging Child Endangerment as Third-Degree Felony May Be Amended to Include Serious Physical Harm Element

Court Rules Amendment Does Not Change ‘Name or Identity of Crime Charged’

2009-0678. State v. Pepka, Slip Opinion No. 2010-Ohio-1045.
Lake App. No. 2008-L-016, 2009-Ohio-1440. Judgment of the court of appeals reversed, and appellee’s convictions and sentence reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and O'Donnell, J., dissent and would dismiss the appeal as having been improvidently accepted.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1045.pdf

(March 25, 2010) The Supreme Court of Ohio ruled today that an indictment that charges a defendant with child endangering in violation of R.C. 2919.22(A) as a third-degree felony, but does not contain language that the victim suffered serious physical harm, adequately informs the defendant of the charge against which he must defend and is therefore legally sufficient.

The Court’s 5-2 majority opinion, authored by Justice Maureen O’Connor, reversed a decision of the 11th District Court of Appeals.

The offense of child endangerment in violation of R.C. 2919.22(A) is punishable as a first-degree misdemeanor except where the defendant’s acts or omissions cause “serious physical harm” to a child, in which case pursuant to R.C. 2919.22(E)(2)(c), the offense is elevated to a third-degree felony. In this case, Joseph Pepka of Lake County was indicted on three counts of child endangerment. Each count in the indictment indicated that the offense with which Pepka was charged was a third-degree felony, but the indictment returned by the grand jury did not include a specific finding that the victim had suffered serious physical harm as a result of Pepka’s acts or omissions.

Before Pepka came to trial, the state sought and was granted permission by the trial court to amend the indictment to add to each count the element that the child victim suffered serious physical harm. At trial, before opening arguments, Pepka’s attorneys objected to the amended indictment, arguing that addition of the element of serious physical harm changed the nature of the crime with which he was charged. The court overruled that objection and Pepka was subsequently found guilty and sentenced on three felony counts of child endangerment.

Pepka appealed, arguing that his convictions should be reduced from felonies to first-degree misdemeanors because the grand jury had not made findings that he caused the victim serious physical harm, and without such a finding he had not been properly indicted for felony child endangerment. The 11th District Court of Appeals held that the trial court erred in allowing the state to amend the indictment to add an element not found by the grand jury, and remanded the case to the trial court with a directive to vacate Pepka’s felony convictions and resentence him for three misdemeanor counts of child endangerment. The state sought and was granted Supreme Court review of the 11th District’s judgment.

In today’s decision, Justice O’Connor wrote: “(T)he Ohio Constitution guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment by the grand jury. As this court recently reaffirmed, ‘[u]nder Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” ’ ... An amendment that changes the penalty or degree of the charged offense changes the identity of the offense, and is not permitted by Crim.R. 7(D). ... As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.”

“(I)t is undisputed that the name of the crime alleged against Pepka was never amended—he was always charged with endangering children in violation of 2919.22(A) ... However, the Eleventh District held that by adding the language specifying that the alleged crimes resulted in serious physical harm to the victim, the state modified the charges from first-degree misdemeanors to third-degree felonies. As a result, the court of appeals concluded, the amendment did not satisfy Crim.R. 7(D), because it impermissibly changed the identity of the crimes.”

“We hold that the indictment was sufficient. ... The original indictment set forth the elements of child endangering under R.C. 2919.22(A) and specified that Pepka was charged with third-degree felonies. The only circumstance in which child endangering in violation of R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. ... Thus, the original indictment was sufficient to provide Pepka adequate notice of both the offenses and the degree of the offenses with which he was charged. In fact, Pepka’s counsel conceded at trial and at oral argument in this court that Pepka knew ‘[f]rom the beginning’ that he was facing third-degree-felony charges and that the state would argue that (the victim) suffered serious physical harm. Pepka was also aware that the state planned to submit evidence at trial of the seriousness of (the victim’s) injuries, based on discovery received from the state months before trial – including ... medical records and the consulting physician’s report.”

Justice O’Connor concluded that: “Pepka was on notice from the initial indictment that he was charged with a third-degree felony for violating R.C. 2919.22(A), and the Revised Code makes it clear that the only circumstance in which endangering children under R.C. 2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. Pepka’s original indictment was sufficient to charge him with a third-degree-felony offense, and the amended indictment did not change the name or identity of the crime charged. Therefore, we reverse the decision of the court of appeals and reinstate Pepka’s third-degree-felony convictions and sentence.”

The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith A. Lanzinger and Robert R. Cupp.

Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell dissented, stating that they would dismiss the state’s appeal as having been improvidently accepted for review.

Contacts
Joshua S. Horacek, 440.350.2683, for the State of Ohio and Lake County prosecutor’s office.

Albert L. Purola, 440.951.2323, for Joseph Pepka.

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