[Cite as State v. Pence , 2024

- Ohio

- 3067.]



## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

STATE OF OHIO,

Plaintiff

- Appellee,

- vs

-
RANDY W. PENCE,

Defendant

- Appellant. CASE NO. 2024

- T

- 0004

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2022 CR 00719

O P I N I O N

Decided: August 12, 2024 Judgment: Affirmed

Dennis Watkins , Trumbull County Prosecutor, and Ryan J. Sanders , Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio 44481 (For Plaintiff

- Appellee).

Byron D. Corley

, 3 North Main Street, Suite 602, Mansfield, Ohio 44902 (For Defendant

Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Randy W. Pence (“Mr. Pence”), appeals from the judgment of the

Trumbull County Court of Common Pleas that sentenced him, following his guilty pleas

to two counts of felonious assault against a peace officer, to an indefinite prison term of

six t o nine years and a concurrent definite prison term of six years.

{¶2} Mr. Pence raises one assignment of error on appeal, contending the trial

court erred by permitting the State to amend the indictment pursuant to Crim.R. 7(D) to

omit “serious” from the phrase “serious physical harm.”2

Case No. 2024

- T

- 0004 {¶3} After a careful review of the record and pertinent law, we find Mr. Pence’s

assignment of error is without merit. The State’s amendment did not change the nature

or identity of the crimes charged, and the change mirrored the language of R.C.

2903.11(A)(2) . Further, the grand jury’s finding of “serious physical harm” necessarily

included the finding of “physical harm.”

{¶4} The judgment of the Trumbull County Court of Common Pleas is affirmed.

Substantive and Procedural Facts

{¶5} In September 2022, the Trumbull County Grand Jury indicted Mr. Pence on

three counts: (1) & (2) felonious assault against a peace officer, first

- degree felonies, in

violation of R.C. 2903.11(A)(2) and (D)(1)(a), and (3) felonious assault, a second

- degree

felony, in violation of R.C. 2903.11(A)(2) and (D)(1)(a).

{¶6} The charges against Mr. Pence arose from an incident in which officers

responded to his property to serve an arrest warrant. Mr. Pence locked himself in a shed

at the back of the property. His mother’s boyfriend agreed to force the door open for the

offi cers, and when he did so, Mr. Pence hit him with an axe, lacerating his arm. The

officers forcibly opened the shed door a second time, and Mr. Pence threw an axe at

them. The axe narrowly missed one officer’s head, sailed over his shoulder, and struck

an other officer in the arm, causing a minor injury.

{¶7} As relevant, in September 2023, the State filed a motion to amend the

indictment to omit “serious” from the phrase “physical harm” to mirror the text of R.C.

2903.11(A)(2). 1

1 . The trial court found Mr. Pence incompetent to stand trial, which delayed the proceedings while he received treatment.3

Case No. 2024

- T

- 0004 {¶8} Mr. Pence opposed the motion, contending the change in the amendment

would violate his right to due process.

{¶9} Later that month, the trial court issued a judgment entry granting the State’s

motion, finding that Mr. Pence would not suffer any prejudice from the change since “the

indictment does specifically state that Defendant violated R.C. 2903.11(A)(2) which only

includes ‘physical harm’.”

{¶10} On the same day, Mr. Pence reached a plea deal with the State and pleaded

guilty to counts one and two, felonious assault against a peace officer.

{¶11} The trial court sentenced Mr. Pence to an indefinite prison term of six to

nine years on count one and a concurrent six

- year prison term on count two.

{¶12} Mr. Pence raises one assignment of error for our review:

{¶13} “The trial court erred in permitting the State to amend the indictment under

Criminal Rule 7(D) to reflect an essential phrase of facts not in the indictment as

presented to the grand jury over the objection of the appellant.”

Indictment Amendment

{¶14} In his sole assignment of error, Mr. Pence contends the trial court erred by

permitting the State to amend the indictment by omitting “serious” from the phrase

“serious physical harm” because such an amendment is a violation of his right to due

process.

{¶15} Article I, Section 10 of the Ohio Constitution provides that “no person shall

be held to answer for a capital, or otherwise infamous, crime, unless on presentment or

indictment of a grand jury.” Thus, the Ohio Constitution guarantees an accused that the4

Case No. 2024

- T

- 0004 essential facts constituting the offense for which he is tried will be found in the indictment

by the grand jury. State v. Pepka

, 2010

- Ohio

- 1045, ¶ 14.

{¶16} “Under 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.’” State v. Davis

,

2008

- Ohio

- 4537, ¶ 1. 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). Pepka

at ¶ 15. 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 o ffense

with which the defendant is charged. Id

. {¶17} “‘The purposes of an indictment are to give an accused adequate notice of

the charge, and enable an accused to protect himself or herself from any future

prosecutions for the same incident.’” Pepka at ¶ 20, quoting State v. Buehner

, 2006

-

Ohio

- 4707, ¶ 7. An indictment meets constitutional requirements if it (1) contains the

elements of the offense charged and fairly informs a defendant of the charge against

which he or she must defend, and (2) enables him or her to plead an acquittal or a

conviction that b ars future prosecutions for the same offense. Id.

{¶18} A trial court commits reversible error when it permits an amendment that

changes the name or identity of the offense charged, regardless of whether the defendant

suffered prejudice. State v. Frazier

, 2010

- Ohio

- 1507, ¶ 22 (2d Dist.). Whether an

amendment changes the name or identity of the crime charged is a matter of law, which

we review de novo. Id.

{¶19} If the amendment does not change the name or identity of the crime

charged, then we apply an abuse of discretion standard to review the trial court’s decision5

Case No. 2024

- T

- 0004 to allow a Crim.R. 7(D) amendment. Id. at ¶ 23. An abuse of discretion is the trial court’s

“‘failure to exercise sound, reasonable, and legal decision

- making.’” State v. Beechler

,

2010

- Ohio

- 1900, ¶ 62, (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004). Where

the issue on review has been confided to the discretion of the trial court , the mere fact

that the reviewing court would have reached a different result is not enough, without more,

to find error. Id. at ¶ 67. When a pure issue of law is involved in appellate review,

however, the mere fact that the reviewing court would decide the issue differently is

enough to find error. Id.

{¶20} Mr. Pence pleaded guilty to counts one and two of the indictment, which

originally alleged that he “did knowingly cause or attempt to cause serious physical harm

to another by means of a deadly weapon or dangerous ordnance, to wit: an axe, and the

victim of the offense is a peace officer . . .” in violation of R.C. 2903.11(A)(2) and (D)(1)(a).

(Emphasis added.)

{¶21} R.C. 2903.11(A)(2) provides that “[n]o person shall knowingly . . . [c]ause or

attempt to cause physical harm to another . . . by means of a deadly weapon or dangerous

ordnance.” (Emphasis added.) (We note this contrasts with felonious assault in violation

of R.C. 2903.11(A)(1), which provides that “[n]o person shall knowingly . . . [c]ause serious

physical har m to another . . . .”)

{¶22} The original indictment accurately identified the offense and applicable Ohio

Revised Code section and stated the essential elements. The language of the

amendment did not change the name or identity of felonious assault but merely omitted

“serious” to mi rror the language of the statute. The essential elements remained the

same. Further, Mr. Pence’s argument that the State’s amendment alters an “essential6

Case No. 2024

- T

- 0004 phrase of facts” not in the indictment as presented to the grand jury neglects the fact that

the grand jury’s finding of “serious physical harm” necessarily included the lesser included

finding of “physical harm.”

{¶23} As the Second District explained in Frazier , 2010

- Ohio

- 1507 (2d Dist.), an

apposite case:

{¶24} “We regard the inclusion of the word ‘serious’ in the indictment as mere
surplusage, which is ‘an averment which may be stricken, leaving sufficient description of

the offense.’ State v. Berecz, Washington App. No. 08CA48, 2010

- Ohio

- 285, at ¶ 24,

quoting [ State v. ] Kittle

, . . . [2005

- Ohio

- 3198, ¶ 15 (4th Dist.)], in turn, quoting State v.

Bush (1996), 83 Ohio Misc.2d 61, 65, 679 N.E.2d 747. An indictment is valid even when

it contains ‘surplusage or repugnant allegations when there is sufficient matter a lleged to

indicate the crime and person charged [.]’ R.C. 2941.08(I). And Crim.R. 7(C) permits a

court to strike surplusage from the indictment. Here, ‘serious’ is surplusage because it is

not relevant to a charge of felonious assault under R.C. 2903.11(A)(2) and can be

removed from the indictment while leaving all the essential elements of the crime.

Therefore, the trial court’s decision to allow the amendments was proper.” Id. at ¶ 26.

See also State v. Cervantes

, 2022

- Ohio

- 2536, ¶ 22

- 33 (3d Dist.) (contrary to the

appellant’s argument, the removal of the word “serious” before the phrase “physical harm”

did not change the name or identity of the felonious assault offense; rather, it changed

the language of the indictment to mirror that of R.C. 2903.11(A)(2)).

{¶25} In sum, the State’s amendment did not “reflect an essential phrase of facts

not in the indictment as presented to the grand jury” and did not violate Mr. Pence’s right

to notice of the charges against him.7

Case No. 2024

- T

- 0004 {¶26} Mr. Pence’s assignment of error is without merit.

{¶27} The judgment of the Trumbull County Court of Common Pleas is affirmed.

JOHN J. EKLUND, J.

, ROBERT J. PATTON, J.

,

concur

.