Survey of Ohio Law Supreme Court of Ohio Decisions I. STATE AND FEDERAL CONSTITUTIONAL LAW. A. Due Process. State v. Lynn

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1 Survey of Ohio Law 2011 Supreme Court of Ohio Decisions I. STATE AND FEDERAL CONSTITUTIONAL LAW A. Due Process State v. Lynn 129 OHIO ST. 3D 146, 2011-OHIO-2722, 950 N.E.2D 931 DECIDED JUNE 9, 2011 I. INTRODUCTION In State v. Lynn, 1 the Supreme Court of Ohio reversed the Second District Court of Appeals by holding that a criminal defendant s due process rights were not violated when, prior to trial, the defendant was aware that an underlying offense in an aggravated-burglary indictment was improperly stated. 2 In this case, the trial court conformed the jury instructions, at the closing of trial, to comport to the correct predicate offense as demonstrated by the evidence offered by the prosecution. 3 Since the defendant did not object to the trial court s jury instructions on both underlying offenses of theft and assault, the court utilized a plain-error analysis to determine whether the defendant s due process rights had been violated when the indictment incorrectly asserted theft as the underlying offense and the jury was instructed on assault as the offense underlying the charge for aggravated burglary. 4 The court held that the indictment was not deficient, even though it contained an error, since all essential elements of aggravated burglary were included in the indictment. 5 Furthermore, the inclusion of theft was a mere clerical error and considered harmless surplusage Ohio St. 3d 146, 2011-Ohio-2722, 950 N.E.2d 931 (2011). 2. Id. at 151, 2011-Ohio , 950 N.E.2d at See id. at 147, 2011-Ohio , 950 N.E.2d at Id. at , 2011-Ohio , 950 N.E.2d at Id. at 150, 2011-Ohio , 950 N.E.2d at State v. Lynn, 129 Ohio St. 3d at 151, 2011-Ohio , 950 N.E.2d at

2 1116 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. Factual Background On the night of April 28, 2008, Defendant-Appellee, Jeffrey Lynn, went to the apartment of his girlfriend, Juanita Turnage. 7 After a verbal altercation, where Lynn threatened Turnage, he was denied permission to enter the domicile. 8 During the fracas Turnage managed to forge her way back inside the apartment, where she locked the door and phoned police. 9 Lynn then proceeded to kick the apartment s door causing it to become unhinged. 10 Once inside Lynn hurtled Turnage against the wall. 11 Lynn also slammed a door on Turnage s foot, chipping a bone on her left foot. 12 The police then arrived on the scene and arrested Lynn. 13 B. Procedural History On May 22, 2008, the Montgomery County Grand Jury indicted Lynn for aggravated burglary, as found in section (A)(1) of the Ohio Revised Code. 14 The indictment, in its relevant portions, stated: LYNN, on or about April [28], 2008 in the County of Montgomery, aforesaid, and State of Ohio, by force, stealth or deception, did trespass in an occupied structure, to-wit: residence, located at 1207 W. Fairview Avenue, Apt. # 1 or in a separately secured or separately occupied portion of the occupied structure, when another person, other than an accomplice of the offender, was present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure, any criminal offense, to 7. State v. Lynn, 185 Ohio App. 3d 390, 391, 2009-Ohio , 924 N.E.2d 397, 397 (2nd Dist. 2009). 8. Id., 2009-Ohio , 294 N.E.2d at Id., 2009-Ohio , 294 N.E.2d at Id., 2009-Ohio , 294 N.E.2d at Id., 2009-Ohio , 294 N.E.2d at Lynn, 185 Ohio App. 3d at 391, 2009-Ohio , 294 N.E.2d at Id. at 392, 2009-Ohio , 294 N.E.2d at Id., 2009-Ohio , 294 N.E.2d at 398; see section (A)(1), which provides: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another. OHIO REV. CODE ANN (A)(1) (West 2012).

3 2012] STATE V. LYNN 1117 wit: theft, and did recklessly inflict, or attempt or threaten to inflict physical harm on another However, the State had no evidence that Lynn had entered the residence with intent to steal. 16 Two days before the trial was to begin the State sought to amend the indictment. 17 The prosecution argued that the word theft was not integral to the charge and was merely superfluous. 18 Lynn countered, arguing that by amending the indictment, the identity or the name of the charge would change. 19 After hearing counsels contentions, the trial court overruled the State s motion, stating that it would ask the jury to determine what criminal offense Lynn intended to commit when he allegedly trespassed into [the] apartment. 20 The trial court accomplished this goal by instructing the jury on the elements of assault and theft. 21 The court also provided the jury with separate interrogatories on both offenses to investigate which underlying crime Lynn had committed when he entered the apartment. 22 Lynn did not object to either the jury instructions or the providing of the interrogatories at trial. 23 The jury unanimously found that Lynn was guilty of aggravated burglary, but did not find that Lynn had performed the predicate offense of theft as stated in the indictment. 24 Instead, the jury decided that Lynn had committed the crime of assault. 25 Lynn then filed an appeal in the Second District Court of Appeals, arguing that his due process rights were violated by the trial court s jury instructions. 26 Lynn also asserted that the indictment misled him of the charge, since it included the incorrect underlying offense of theft. 27 Thus, Lynn maintained, he did not receive adequate notice of the charges against him. 28 The court of appeals ruled in favor of Lynn, holding that [t]he action taken by the trial court in instructing on assault, as well as theft, broadened 15. Lynn, 185 Ohio App. 3d at 392, 2009-Ohio , 924 N.E.2d at 398 (emphasis in original). 16. Id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at Lynn, 185 Ohio App. 3d at 392, 2009-Ohio , 924 N.E.2d at See id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at Id. at 393, 2009-Ohio , 924 N.E.2d at Id. at 392, 2009-Ohio , 924 N.E.2d at Lynn, 185 Ohio App. 3d at 392, 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at See id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at 398.

4 1118 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 the possible basis for conviction beyond that considered and specified by the grand jury. 29 Ergo, the trial court erred in instructing the jury on assault. 30 The court concluded that Lynn was found guilty of a crime that was different than the one presented to the grand jury. 31 In other words, the grand jury found probable cause to indict Lynn, based upon the wording of the indictment that included theft. 32 The court further announced that Lynn had the right to rely on the grand jury indictment s language to prepare his defense. 33 Also highlighted, was the fact that even though the underlying offense did not have to be included in the indictment, the State decided to insert theft into the indictment, as the predicate offense needed to establish aggravated burglary; thus, the State was required to prove that that was Lynn s purpose in entering Turnage s home. 34 Judge Brogan respectfully dissented from his fellow justices on the court of appeals. 35 The judge relied on State v. Gardner, 36 a Supreme Court of Ohio plurality opinion, which asserted that the specific underlying offense is not an element of aggravated burglary. 37 The prosecution only needs to prove that a person, charged under section (A) of the Ohio Revised Code, entered into an occupied structure with purpose to commit any criminal offense. 38 Moreover, the inclusion of theft into the indictment was a drafting error and amendment of the indictment would not have changed the identity of the charge. 39 Lynn should have been aware that the State s case would attempt to prove the predicate offense of assault. 40 Lynn would not have been prejudiced by the trial court s permitting the State to amend the indictment, since Lynn was provided access to the prosecution s extensive discovery records. 41 Additionally, Lynn was informed that the State would attempt to prove assault from the presentation of its case at trial, since the prosecution never referenced the elements of theft Id. at 394, 2009-Ohio , 924 N.E.2d at Lynn, 185 Ohio App. 3d at 394, 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at See id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at Id at 393, 2009-Ohio , 924 N.E.2d at Lynn, 185 Ohio App. 3d at 395, 2009-Ohio , 924 N.E.2d at Ohio St. 3d 420, 2008-Ohio-2787, 889 N.E.2d 995 (2008) (plurality opinion). 37. Lynn, 185 Ohio App. 3d at 395, 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at See id., 2009-Ohio , 924 N.E.2d at Id., 2009-Ohio , 924 N.E.2d at See Lynn, 185 Ohio App. 3d at 395, 2009-Ohio , 924 N.E.2d at 401.

5 2012] STATE V. LYNN 1119 III. DECISION AND RATIONALE A. Majority Opinion by Justice Cupp Five members of the Supreme Court of Ohio, in an opinion authored by Justice Robert Cupp, reversed the Second District Court of Appeals. 43 The court s analysis began with a discussion of the concept of due process, which in application is an uncertain enterprise which must discover what fundamental fairness consists of in a particular situation by first considering any relevant precedents and then by assessing the several interest that are at stake. 44 The court believed that, in accordance with Ohio Criminal Rule 30(A), 45 Lynn s failure to object when the trial court instructed the jury on assault, constituted a waiver. 46 When a waiver occurs the court will employ plain-error analysis to determine if the trial court s conduct resulted in fundamental unfairness to a defendant. 47 The court noted that there are three limitations on a reviewing court s decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule.... Second, the error must be plain. To be plain within the meaning of Crim[inal Rule] 52(B), an error must be an obvious defect in the trial proceedings.... Third, the error must have affected substantial rights. We have interpreted this aspect of the rule to mean that the trial court s error must have affected the outcome of the trail. 48 However, the court still has leeway to determine if the error should be corrected or not, even if all three of the above-mentioned factors have been 43. Lynn, 129 Ohio St. 3d at 151, 2011-Ohio , 950 N.E.2d at Id. at 148, 2011-Ohio , 950 N.E.2d at 935 (quoting Lassiter v. Dept. of Social Servs. of Durham Cty., N.C., 452 U.S. 18, (1981)). 45. Ohio Criminal Rule 30(A) states: On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. OHIO CRIM. R. 30(A). 46. Lynn, 129 Ohio St. 3d at 148, 2011-Ohio , 950 N.E.2d at See id. at 149, 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at 935 (quoting State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240, 1247 (2002)).

6 1120 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 fulfilled. 49 The court will exercise this discretion in order to prevent a miscarriage of justice and will find plain error only in exceptional circumstances. 50 When applying plain-error analysis to the case at bar, the court found that the instructions given to the jury were not fundamentally unfair to Lynn. 51 The majority affirmed the plurality holding in Gardner, stating that the jury instructions do not need to include the specific crime that was intended to be carried out within the burglarized premises, since that underlying crime is not an essential element of aggravated burglary. 52 Since due process only dictates that the state establish beyond a reasonable doubt every fact necessary to constitute the crime charged, and the offense that Lynn intended to commit once inside the apartment is not an essential element to aggravated burglary, the trial court did not have to instruct the jury on any predicate offense. 53 However, echoing Gardner, the majority did express a preference that the judge on the trial court level instruct as to the underlying offense, but the instruction is not mandated. 54 The court felt that the trial judge is best suited for determining the content of the jury instructions from what evidence was presented at trial. 55 Even though the trial court should have allowed the State s pretrial motion to amend the indictment, which would have been permissible under Ohio Criminal Rule 7(D), 56 the court found that the trial judge s actions did not prejudice Lynn. 57 The inclusion of the theft instructions was considered mere surplusage, since theft is a nonessential element of the crime of aggravated burglary. 58 In the court s mind the inclusion of the term theft was meaningless. 59 In examining the indictment itself, the court concluded that it passed constitutional muster, since the indictment informed Lynn of the charge that he was to defend against and all of the elements of aggravated burglary were clearly included. 60 Even if the underlying offense is not identified, but 49. Id., 2011-Ohio , 950 N.E.2d at 935 (citing State v. Noling, 98 Ohio St. 3d 44, 56, 2002-Ohio , 781 N.E.2d 88, 104 (2002)). 50. Id., 2011-Ohio , 950 N.E.2d at 935 (quoting Barnes, 94 Ohio St. 3d at 27, 759 N.E.2d at 1247). 51. Lynn, 129 Ohio St. 3d at 149, 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at 935 (quoting Gardner, 118 Ohio St. 3d at 437, 2008-Ohio , 889 N.E.2d at 1011). 53. Id., 2011-Ohio , 950 N.E.2d at Id. at 150, 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at See OHIO CRIM. R. 7(D). 57. See Lynn, 129 Ohio St. 3d at 150, 2011-Ohio , 950 N.E.2d at Id. at , 2011-Ohio , 950 N.E.2d at See id. at 151, 2011-Ohio , 950 N.E.2d at See id. at , 2011-Ohio , 950 N.E.2d at 936.

7 2012] STATE V. LYNN 1121 the language of the indictment follows the statue, the indictment is not considered defective. 61 Moreover, Lynn was aware that the offense the prosecution was prepared to prove was not theft, but assault. 62 Lynn was conscious of this fact, because he was given the State s evidence in its entirety. 63 Thus, Lynn was given proper notice to prepare his defense. 64 The court concluded that Lynn s due process rights were not violated in this case. 65 The holding stated that when a defendant is aware prior to the trial that the indictment improperly stated the underlying criminal offense, the trial court does not err or infringe on the defendant s constitutional rights when the judge conforms the jury instructions to the evidence presented at trial. 66 B. Concurring Opinion by Justice Lanzinger Justice Lanzinger agreed with her colleagues in judgment, but raised a concern about calling the added word harmless surplusage. 67 The Justice believed that this label lessens the requirement that indictments contain all the necessary elements of the crime charged. 68 The underlying criminal offense that has to be proven in an aggravated-burglary charge must be defined with particularity and the jury should be instructed on that specific charge. 69 Thus, Justice Lanzinger disagreed with the majority s adoption of the Gardner rule that states that predicate offense is not one that has to be included in the jury instructions. 70 Justice Lanzinger, however, concurred in the outcome of this case because Lynn could not demonstrate plain error. 71 The jury deliberated on all elements of aggravated burglary and Lynn was not prejudiced by the court s jury instructions, which conformed to the evidence presented at trial. 72 Furthermore, Lynn did not object to the trial court s assault instructions or interrogatories to the jury Id., 2011-Ohio , 950 N.E.2d at See Lynn, 129 Ohio St. 3d at 150, 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at Id. at 151, 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at Lynn, 129 Ohio St. 3d at 151, 2011-Ohio , 950 N.E.2d at 937 (Lanzinger, J., concurring) (quoting id. at 151, 2011-Ohio , 950 N.E.2d at 936 (majority opinion)). 68. Id., 2011-Ohio , 950 N.E.2d at 937 (Lanzinger, J., concurring). 69. See id. at 152, 2011-Ohio , 950 N.E.2d at 937 (citing Gardner, 118 Ohio St. 3d at 440, 2008-Ohio , 889 N.E.2d at 1014 (Lanzinger, J., dissenting)). 70. Id., 2011-Ohio , 950 N.E.2d at Lynn, 129 Ohio St. 3d at 152, 2011-Ohio , 950 N.E.2d at 937 (Lanzinger, J., concurring). 72. Id., 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at 937.

8 1122 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 C. Dissenting Opinion by Justice Pfeifer Justice Pfeifer started his dissent by agreeing with the bulk of Justice Lanzinger s concurrence, but disagreed with the utilization of plain-error scrutiny used by both the majority and Justice Lanzinger. 74 Justice Pfeifer contended that, even though Lynn did not object to jury instructions at trial, the issue was properly preserved for appeal when Lynn objected to the State s pretrial motion to amend the indictment. 75 The lone dissenter agreed with the court of appeals assessment of this case, especially with regard to the fact that the grand jury found probable cause determination was based upon the language of the indictment. 76 Additionally, Lynn had the right to rely on that wording to prepare his defense. 77 Since the grand jury only considered theft in their indictment of Lynn, the trial court s jury instructions on both theft and assault extended the possible basis for conviction. 78 Lynn was convicted of aggravated burglary on an underlying offense that was not considered by the grand jury, thus his due process rights were violated. 79 The dissenting opinion ended with a description of the negative results of the majority s holding. 80 Justice Pfeifer believed that the court does harm to all defendants by not requiring precision in the indictment process. Today, the majority plants another close enough is good enough garden for the state. Expect weeds. 81 IV. ANALYSIS The decision of the Supreme Court of Ohio in State v. Lynn, held that an aggravated burglary indictment that incorrectly stated the underlying offense of aggravated burglary was not deficient. 82 Since all the essential elements were included in the indictment, the inclusion of the theft language was deemed a clerical and error and mere surplusage. Surplusage is defined as an averment that may be stricken and still leave a sufficient description of the offense. 83 This analysis will focus on the court s treatment of the superfluous words contained in the indictment. The ruling 74. Id., 2011-Ohio , 950 N.E.2d at 937 (Pfeifer, J., dissenting). 75. Id., 2011-Ohio , 950 N.E.2d at See Lynn, 129 Ohio St. 3d at 152, 2011-Ohio , 950 N.E.2d at (Pfeifer, J., dissenting). 77. Id., 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at See id. at 153, 2011-Ohio , 950 N.E.2d at Lynn, 129 Ohio St. 3d at 152, 2011-Ohio , 950 N.E.2d at 938 (Pfeifer, J., dissenting). 82. Id. at 151, 2011-Ohio , 950 N.E.2d at 936 (majority opinion) OH. JUR. 3D Criminal Law: Procedure 968 (West 2012).

9 2012] STATE V. LYNN 1123 in Lynn appears to be contrary to the spirit of Ohio Criminal Rule 7, and precedent from both the state court and the United States Supreme Court. Ohio Criminal Rule 7 sets forth the requirements for an indictment and also the rules for its amendment the segment germane to this case states that an indictment may be in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged. 84 Also apropos, is the rule s preference that nonessential allegations should not be included in the indictment s language, and such wording should be as concise as possible. 85 The statement in Lynn s indictment followed none of Rule 7 s predilections. 86 The indictment contained excessive language, evidenced by the addition of the theft language, not necessary to the charge and deceived him as to what underlying offense the prosecution was to present at trial, which is necessary for an aggravated burglary conviction. 87 Therefore, the indictment Lynn received defied the preferences contained in Ohio Criminal Rule 7. In examining the indictment, the inclusion of the superfluous word theft or any other underlying crime adequate to prove aggravated burglary would seem to be contrary to the norms for indictments set forth by the United States Supreme Court. In explicating the Fifth Amendment to the United Stated Constitution, which contains the same wording as the Ohio Constitution concerning grand juries, the United States Supreme Court listed the criteria to measure the sufficiency of an indictment. 88 One factor is that the indictment must contain the elements of the offense, which sufficiently apprises the defendant of what he must be prepared to meet. 89 The document indicting Lynn specifically included the offense of theft and not the underlying offense that the State had intended to prove at trial. 90 Since a predicate offense had to be demonstrated in order to prosecute Lynn for aggravated robbery, Lynn was misled by the indictment as to what he was to defend against at trial. As Justice Lanzinger illuminates, the phrase with the purpose to commit in the structure... any criminal offense in [the aggravated burglary statute] defines the mens rea that the state must prove In the case at bar, the grand jury, via the wording in the indictment, found Lynn s mens rea to specifically be to the 84. OHIO CRIM. R. 7(B). 85. See id. 86. See Lynn, 185 Ohio App. 3d at 392, 2009-Ohio , 924 N.E.2d at See OHIO REV. CODE ANN (A)(1). 88. See Russell v. United States, 369 U.S. 749, 763 (1962). 89. Id. (quoting Cochran and Sayre v. United States, 157 U.S. 286, 290 (1895)). 90. Lynn, 129 Ohio St. 3d at 147, 2011-Ohio , 950 N.E.2d at Id. at 152, 2011-Ohio , 950 N.E.2d at 937 (Lanzinger, J., concurring) (citing Gardner, 118 Ohio St. 3d at 440, 2008-Ohio , 889 N.E.2d at 1014 (Lanzinger, J., dissenting)).

10 1124 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 intention to commit theft, not assault. 92 Therefore, not only was Lynn found guilty of a different crime than was considered by the grand jury, he was not adequately made aware that the State was going to prove that he intended to commit assault when he entered Turnage s home. The Court in United States v. Cruikshank, 93 articulated that an indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged. 94 Further expounding on the requirements of an effective indictment the Court said that every element of an offense must be accurately and clearly alleged. 95 Lastly, the Cruikshank Court opined that a crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances. 96 The rules set forth in Cruikshank concerning indictments do not appear to be followed by the Supreme Court of Ohio in Lynn. The court s ruling allows for imprecise and misleading indictments, where the defendant must guess at what charge the prosecution will try to prove at trial. In Lynn s case, the indictment did not accurately or clearly explain the charge and it was certainly not clear. The inclusion of theft in the indictment was misleading at best. In addition, the Supreme Court of Ohio s decision concerning surplus language in indictments appears to be contradictory to prior state court precedent. In Griffin v. State, 97 the court adopted the reasoning contained in the case of State v. Noble, 98 in which an individual was indicted for fraudulently stealing and converting a pine log. 99 The indictment included a detailed description of the log supposedly taken, but at trial the evidence presented showed that the item had been marked in a different manner than what was described in the indictment. 100 The Supreme Judicial Court of Maine held that the defendant could be legally called upon to answer only for taking the log there described. 101 Thus, there could be no conviction, even though the special description of the log in the indictment was unnecessary. 102 In Griffin, the indictment incorrectly stated that counterfeit 92. See Lynn, 129 Ohio St. 3d at 147, 2011-Ohio , 950 N.E.2d at 933 (majority opinion) U.S. 542 (1875). 94. Id. at 558 (quoting United States v. Mills, 7 Pet. 138, 142 (1833)). 95. Id. (quoting United States v. Cook, 17 Wall. 168, 174 (1872)). 96. Id Ohio St. 55 (1862) Me. 476 (1835). 99. Griffin v. State, 14 Ohio St. at Id State v. Noble, 15 Me. at Griffin, 14 Ohio St. at 62.

11 2012] STATE V. LYNN 1125 bills contained the serial number 175, however the bills admitted into evidence actually had the integers of 1750 and Applying the reasoning from Noble, the Griffin court held that it does not follow that descriptive averments unnecessarily inserted in an indictment may be rejected as surplusage. On the contrary, no allegation descriptive of the identity of that which is legally essential to the charge can ever be rejected. 104 If Griffin would come before the court today, after the ruling in Lynn, it would be quite possible that the court would find the improper serial number a mere drafting error or meaningless, since the indictment and open discovery would properly inform the defendant of the charge he would face at trial. Furthermore, in the present case, the language included in the indictment was unnecessary, however the prosecution decided to include the language anyway. 105 Since the indictment was not amended, the State should have therefore been required to prove the element of theft in order to convict Lynn. A defendant can only be called upon to answer what is included in the indictment. When an indictment does not adequately inform a defendant of the charge against which he must defend, the indictment is considered defective. 106 To further demonstrate the past need for precision in indictment, it is beneficial to examine another Ohio case, Moore v. State. 107 The Moore court also dealt with the issue of an error in an indictment. 108 In Moore, the indictment improperly stated the township where illegal liquor had been sold. 109 The court found that since the State could only prove that the sale was occurring in another township it was fatal to the prosecution s case. 110 In addition, the justices in Moore held that we are clearly of the opinion, that the settled rules of law require such averments, when made, to be proved as laid. 111 Even though the locale did not have to be mentioned in the indictment, since it was, the prosecution must prove such a statement. 112 This case further exhibits the fact that when the prosecution lists a fact or allegation in an indictment, although not necessary, the State should have to 103. Id Id. at See Lynn, 129 Ohio St. 3d at 147, 2011-Ohio , 950 N.E.2d at See United States v. Cruikshank, 92 U.S. at 558 (1875); State v. Childs, 88 Ohio St. 3d 558, 565, 728 N.E.2d 379, 386 (2000) Ohio St. 387 (1861) See id. at Id Id. at Id Moore v. State, 12 Ohio St. at

12 1126 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38 prove such fact at trial. In Lynn, the State decided to insert the charge of theft into the indictment, and thus must live with the consequences. The court also relied on the case of State v. Buehner 113 to examine the constitutional efficiency of an indictment. 114 The court concluded that Lynn s indictment passed constitutional muster, and thus was not defective, based on the test laid down in Buehner. 115 This was because the indictment tracked the statutory language in a sufficient manner. 116 However, the case at bar can be distinguished from Buehner. Even though Lynn s indictment did track the wording contained in the aggravated burglary law, it contained more than just the exact language of the statute. The defendant in Buehner received an indictment that lacked certain information. 117 Therefore, the cases involve two differing situations concerning indictments. V. CONCLUSION With today s holding the court appears to forget that precision in the administration of the State s criminal laws is vital to due process rights, especially with regard to the indictment process. Carelessly crafted indictments do not further the noble goal set by the court over 150 years ago, when it elegantly stated that we are to remember that the ignorant, poor, and unfriended are quite as likely to be charged with the crime, as those who have intelligence, friends, and ability to protect their rights at the trial. Nothing marks more clearly the enlightened civilization of a people, than the jealous care with which they protect the life, liberty, and personal security of the citizen in the administration of the penal code. 118 The court of appeals warned that harmful consequences would flaunt themselves in criminal trials if the court had not ruled for Lynn. 119 Moreover, Justice Pfeifer reiterated this position by warning his fellow justices that injury, to defendants and the rule of law, will occur by not mandating accuracy in drafting indictments. 120 Defendants will not be Ohio St. 3d 403, 2006-Ohio-4707, 853 N.E.2d Lynn, 129 Ohio St. 3d at 150, 2011-Ohio , 950 N.E.2d See id., 2011-Ohio , 950 N.E.2d at Id., 2011-Ohio , 950 N.E.2d at 936 (citing State v. Buehner, 110 Ohio St. 3d at , 2006-Ohio , 853 N.E.2d at 1164) Buehner, 110 Ohio St. 3d at 404, 2006-Ohio , 853 N.E.2d at Dana v. State, 2 Ohio St. 91, 98 (1853) See Lynn, 185 Ohio App. 3d at 394, 2009-Ohio , 924 N.E.2d at Lynn, 129 Ohio St. 3d at 153, 2011-Ohio , 950 N.E.2d at 938 (Pfeifer, J., dissenting).

13 2012] STATE V. LYNN 1127 properly informed by inaccurate indictments, and more importantly they will not be able to suitably prepare for their defense. In sum, Lynn was denied his constitutional right to be indicted by the grand jury, and therefore other defendants facing a similar situation will suffer the same fate. DAVID M. MCGORON