State v. Lynn, 2011 Ohio 2722

Lynn was charged with aggravated burglary under R.C. 2911.11(A)(1) for trespassing with intent to commit a criminal offense and inflicting harm.
Indictment stated underlying offense as theft; the state sought to amend to remove theft two days before trial; Lynn objected in writing.
Trial court denied pre-trial amendment but later instructed the jury on assault and theft with interrogatories to determine which underlying offense was proved.
Jury found aggravated burglary and, in interrogatories, that assault (not theft) was proven as the underlying offense.
Court of Appeals reversed, holding the assault instruction was improper; the Ohio Supreme Court granted review to consider whether due process was violated when the jury was instructed on a different underlying offense than the indictment.
Court held that due process was not violated where defendant knew of the clerical error pre-trial and the trial court instructed the jury consistent with the evidence; indictment surplusage was harmless and the matter was remanded for consideration of the remaining assignment of error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a due-process violation occur when the indictment misstates the underlying offense but the trial court later instructs on the proved offense?	Lynn argues pre-trial misstatement requires dismissal or reversal.	Lynn contends the error broadens the basis for conviction beyond the indictment.	No due-process violation; instructions conformed to evidence; harmless surplusage.
Is plain-error review appropriate where no objection was preserved to jury instructions?	Lynn preserved the issue by objecting to amendment; plain-error applies.	Plain-error doctrine should apply to assess obvious defects.	Plain error analysis applied; no reversible error found.
Must an aggravated-burglary instruction include the specific underlying offense intended inside the premises?	The underlying offense (theft) must be identified; misstatement risks prejudice.	The specific offense is not an element of aggravated burglary; instruction sufficient.	Not required to instruct on underlying offense; inference permitted; surplusage harmless.
Was the clerical error in the indictment actionable given the state’s motion to amend prior to trial?	Amendment should have been granted; error was not harmless.	Amendment prior to trial was proper under Crim.R. 7(D); not necessary to change substance.	Better practice to amend pre-trial; not reversible error given evidence and instruction.

State v. Adams, 62 Ohio St.2d 151 (1980) (entitlement to have all elements proved; due process standard for jury instructions)
In re Winship, 397 U.S. 358 (1970) (beyond a reasonable doubt standard for proving elements)
State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error review discretionary, rare application)
State v. Keenan, 81 Ohio St.3d 133 (1998) (waiver principle for trial objections; Crim.R. 52(B) plain-error standard)
State v. Gardner, 118 Ohio St.3d 420 (2008) (plurality on whether underlying offense must be instructed; framework for burglary cases)
State v. Buehner, 110 Ohio St.3d 403 (2006) (indictment sufficiency; elements and notice analysis)