This is аn appeal from the judgment and sentence of the Court of Common Pleas of Logan County which found defendant-appellant, DeAnna L. McGee, guilty of child endangering in violation of R.C. 2919.22(A).
On March 8, 1994, an indictment was issued which read:
“Deanna [sic] L. McGee, on or about the 24th day of February, 1994, at the County of Logan aforesaid, being the parent of a child under the age of eighteen years, did creаte a substantial risk to the health or safety of said child, by violating a duty of care, protection or support resulting in serious physical harm. In violation of Section 2919.22(A), Endangering Children, а felony of the fourth degree. ”
This indictment mirrors the statutory language of R.C. 2919.22(A).
Subsequent to the indictment, McGee waived her right to a jury trial and proceeded to a bench trial. The trial сourt convicted McGee as charged. McGee was sentenced to imprisonment for one and one-half years.
Because McGee believed that it was error fоr the trial court to consider the then applicable precedent of
State v. Deringer
(Nov. 8,1985), Hardin App. No. 6-84-6, unreported,
Upon review, this court overruled the portions of
Deringer
that found R.C. 2919.22(A) to be a strict-liability crime.
State v. McGee
(Dec. 12, 1995), Logan App. No. 8-94-38, unreported,
Citing a conflict among the appellate districts of Ohio, McGee sought review of that decision by the Supreme Court of Ohio. In
State v. McGee
(1997),
“The existence of the culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(A).”
The Supreme Court further stated:
“Recklessness is an еssential element of the crime charged, and the defendant was not found to have acted recklessly. Accordingly, we reverse the judgment of the court of appeаls and remand the cause to the trial court for further proceedings consistent with this decision.” Id. at 196,680 N.E.2d at 977 .
Once placed on notice of the remand, the trial court ordered the рarties to submit any desired motions. In response, two motions were filed. The first was a request from the state that it be permitted to amend the indictment to include the essential element of recklessness. Crim.R. 7(D) was cited as the controlling authority for this request. Upon consideration, the trial court granted this motion. The second motion filed was by McGee, in which she requеsted withdrawal of her previously filed jury waiver and a new trial. Each of these requests was denied.
The trial court reconvened this matter on December 10, 1997. At that time, McGee was found guilty of child endangering as charged in the amended indictment. The court also determined that McGee’s son had suffered serious physical harm. She was sentenced to imprisonment for one and one-half years. Thereafter, McGee sought this appeal, and the following are the listed assignments of error: •
“I. The trial court erred when it permitted the indictment tо be amended.
“II. The trial court erred when it failed to grant Ms. McGee a new trial.
“III. The trial court erred when it returned a verdict of guilty as to endangering children.”
Upon a review of the record, McGee’s first assignment of error is overruled, the second sustained, and the third rendered moot. Each of the assigned errors will be addressed in turn.
At the heart of this matter is the interpretation of the Supreme Court’s opinion in
McGee,
The O’Brien case involved a child endangering conviction pursuant to R.C. 2919.22(B). In that matter, the Ohio Supreme Court stated:
“[A]ny indictment charging endangering children solely in the language of that statute necessarily omits an essential element of the offense, i.e., recklessness. As such, the indictment does not give the accused notice of all the elements of the offensе with which he is charged. Therefore, the indictment in its original form was insufficient under Crim.R. 7(B).” O’Brien,30 Ohio St.3d at 125 , 30 OBR at 438,508 N.E.2d at 147 .
In other words, even though the recklessness element is judicially imposed, it is, nonetheless, an essential element of a violation of R.C. 2919.22(B).
However, the Supreme Court in the
O’Brien
case also noted that pursuant to Crim.R. 7(D), an indictment may be amended “at any time before, during, or after a trial * * *, provided no change is made in the nаme or identity of the crime charged.” Crim.R. 7(D). Thus, finding that the name or identity o'f the crime of child endangering was not changed, nor the penalty or degree of that offense altered uрon amendment of the indictment to include the term recklessness, the Supreme Court permitted the amendment.
O’Brien,
“In the case before us, [the defendant] was charged with the crime of endangering children. Failure to include the element of ‘recklessness’ in an indictment for endangering childrеn in no way alters either the name, identity, or severity of the offense charged.” Id. at 127, 30 OBR at 440,508 N.E.2d at 148 .
In this case, our review of the Supreme Court’s directives in
McGee,
79' Ohio St.3d at 196,
In her second assignment of error, McGee challenges the manner in which the trial court proceeded from the point of permitting the indictment to be amended. In short, McGee claims that the remand and amended indictment entitled her to proceed anew as if upon thе arraignment, to an entirely new jury trial, if desired, wherein the state would be required to prove every element of the newly amended indictment beyond a reasonable doubt.
On the оther hand, the trial court apparently took the position that the Supreme Court’s remand of the case was merely for a continuation or reopening of the previous trial and that the amended indictment was, in essence, simply to conform it to the evidence already adduced in the first trial. Thus, the trial court permitted McGee the optiоn to recall state witnesses as on cross-examination, call her own witnesses, and present final arguments on the issue of recklessness. However, in the absence of any suсh additional evidence presented by McGee, the state was not permitted to present any evidence of its own.
Further, the rationale used to deny McGee’s revocation of her jury waiver and new trial request was that these proceedings were merely a continuation and reconsideration of the previous trial evidence. For еxample, the September 24, 1997 judgment entry denying McGee’s motion for a new trial stated:
“Accordingly, it is ORDERED that the trial be recommenced to the Court as set forth in this Court’s Entry of September 3, 1997, on October 16, 1997.” (Emphasis sic.)
We cannot agree with the trial court’s interpretation of the Supreme Court’s McGee decision. In view of the fact that the Supreme Court reversed McGee’s conviction on the basis that she was neither charged with nor found guilty of an essential element of the offense, we believe that the only appropriate action for the trial court to take is to proceed anew from arraignment on the amended indictment to a new trial. We further conclude that McGee’s previous waiver of a jury trial is also inherently revoked by the reversal of the conviction and the new indictment in this case. Accordingly, McGee’s second assignment of error is sustained.
McGee’s third assignment of error questions the sufficiеncy of the trial court’s evidence in its judgment finding her guilty of violating R.C. 2919.22(A). Considering the foregoing discussion concluding that a new trial is in order, this assignment of error is now moot. Accordingly, we decline tо address it. App.R. 12(A)(1)(c).
In sum, McGee’s first assignment of error is overruled, the second is sustained, and the third is rendered moot. Therefore, the judgment and sentence of the *546 Court of Common Pleas of Logan County are reversed, and the matter is remanded to that court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.