State v. Montoya, 2021 Ohio 3429

In a Loveland apartment parking lot, Brandon Montoya called a 5‑year‑old to his car, exposed himself, and masturbated in front of her.
The state charged Montoya with two counts of public indecency and one count of child enticement, but the child‑enticement count did not list a statutory subsection.
The complaint’s language tracked R.C. 2905.05(A), which the Ohio Supreme Court had declared unconstitutionally overbroad in State v. Romage.
The state orally moved pretrial to amend the complaint to specify R.C. 2905.05(B) (which requires that the act be committed “with a sexual motivation”); the trial court granted the amendment.
Montoya pleaded no contest to the amended charge and appealed, arguing the amendment added an element (sexual motivation) and thus changed the identity of the offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether amending the complaint to specify R.C. 2905.05(B) changed the identity of the charged offense	Complaint’s factual allegations (coaxing a child to car and exposing/masturbating) gave notice of sexually‑motivated conduct; amendment corrected a scrivener’s error	Amendment added the element of "sexual motivation," changing the crime charged and violating Crim.R. 7(D)	No change in identity: the complaint’s substance sufficiently notified Montoya that sexual motivation was alleged, so R.C. 2905.05(B) was the only plausible subdivision at issue
If identity did not change, whether allowing the amendment was an abuse of discretion	Amendment merely cured omission; defendant suffered no prejudice and did not seek continuance	Amendment was improper because it added an element and could prejudice defense	No abuse of discretion: Montoya had notice, showed no prejudice, and pled no contest after amendment

State v. Romage, 138 Ohio St.3d 390 (Ohio 2014) (declaring R.C. 2905.05(A) unconstitutionally overbroad)
State v. O'Brien, 30 Ohio St.3d 122 (Ohio 1987) (Crim.R. 7(D) permits liberal amendments so long as name/identity of crime do not change)
State v. Broughton, 51 Ohio App.3d 10 (Ohio Ct. App.) (complaint must inform accused of identity and essential facts of offense)
State v. Sellards, 17 Ohio St.3d 169 (Ohio 1985) (function of indictment/complaint is to give adequate notice to prepare a defense)
State v. West, 52 Ohio App.3d 110 (Ohio Ct. App.) (amendment changes identity when original and amended offenses have different elements requiring independent proof)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion)