Paul Pfeifer
By Paul Pfeifer

Earlier this year, we – the Supreme Court of Ohio- reviewed a child-endangering case that involved a man named Joseph Pepka. Pepka lived in an apartment in Eastlake, Ohio, with his girlfriend, Kaysie Perry, and her eight-month-old daughter, M.P.

On the morning of March 3, 2007, Pepka gave M.P. a bath, but when he placed her in the tub, the water was too hot, and the little girl cried. Pepka and Kaysie cooled the water, and Pepka finished giving the bath. After the bath, Kaysie noticed that M.P.’s feet were pink. Pepka and Kaysie argued, and then Kaysie left the apartment to do laundry, leaving M.P. with Pepka.

A little while later, Pepka called Kaysie and told her that he thought M.P. was having seizures. Pepka claimed that he took off M.P.’s clothes, put her in a little bit of cold water in the tub to revive her, wrapped her in towels, and called 9-1-1.

The paramedics later testified that they found M.P. lying on a wet towel in the living room. She was partially dressed, and her clothes were wet. Her lips and extremities were blue, she was unresponsive, and her body temperature was 85.7 degrees.

In route to the hospital the paramedics managed to restore M.P. to consciousness, but she ultimately suffered permanent and serious physical injury as a result of Pepka’s actions.

Pepka was charged with three counts of third-degree-felony child endangering. He entered a not-guilty plea. But just prior to the trial, the state moved the trial court to amend the indictment to add additional language to each of the counts against Pepka specifying that he had caused “serious physical harm” to M.P. The trial court granted the motion.

Before the opening statements, Pepka objected to the amended indictment and requested that the new language be removed, or that the judge give his lawyer a two-week continuance. Pepka’s attorney argued that he wasn’t prepared to defend against the allegation that Pepka had caused serious physical harm.

But upon questioning by the trial court, Pepka’s attorney admitted knowing upon the initial indictment that the charges brought were for third-degree felonies, not misdemeanors, and that the state would argue that M.P. had suffered serious physical harm.

Indeed, at the trial a consulting physician testified that M.P.’s body temperature had dropped dangerously low, that her left foot had been burned from submersion into something hot, and that she had suffered further injuries that were consistent with her having been shaken. The physician also testified that M.P.’s injuries were inconsistent with the history given by Pepka.

Pepka’s attorney also admitted that he had received the medical records and the physician’s report, which described the seriousness of M.P.’s injuries, two or three months before trial.

The trial court concluded that the amendment did not change the nature of the harm alleged, and that Pepka had sufficient notice regarding the serious-physical-harm allegation, and that he didn’t need additional time to prepare to defend against that allegation.

A jury returned guilty verdicts on all three counts, and Pepka was sentenced to four years in prison on the felony convictions. But when Pepka appealed his convictions, the court of appeals reversed the judgment of the trial court and held that the original indictment had been fatally defective for failing to specify the serious-physical-harm element.

The court of appeals agreed with Pepka that by allowing the state to amend the indictment, the trial court had permitted Pepka to be convicted of a charge that was “essentially different from that found by the grand jury.”

After ruling, his case came before us for a final review. The issue we were concerned with was whether the language added to the indictment- that the victim suffered serious physical harm- impermissibly changed the name or identity of the offense.

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 Constitution guarantees an accused that the essential facts constituting the offense for which he is tried will be found in the indictment.

But, according to the rules that govern criminal trials, a court may amend an indictment at any time if the amendment does not change “the name or identity of the crime charged.” As long as the state complies with the criminal rules, it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense.

In a prior case, our court stated, “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.”

The name of the crime alleged against Pepka was never amended- he was always charged with endangering children in violation of a specific Ohio law. The original indictment set forth the elements of child endangering and specified that Pepka was being charged with third-degree felonies.

The only circumstances in which child endangering is a third-degree felony is when the victim suffers serious physical harm. Thus, the original indictment was sufficient to provide Pepka with adequate notice of both the offense and the degree of the offenses with which he was charged.

As Justice Maureen O’Connor pointed out in writing for the majority, Pepka’s attorney conceded at trial that Pepka knew from the beginning “that he was facing third-degree-felony charges and that the state would argue that M.P. had suffered serious physical harm.”

Pepka was on notice from the initial indictment that he was charged with a third-degree felony, and Ohio law makes it clear that the only circumstance in which endangering children is a third-degree felony is when the victim suffers serious physical harm.

Therefore we concluded – by a five-to-two vote- that Pepka’s original indictment was sufficient, and the amendment didn’t change the name or identity of the crime charged. We thus reversed the court of appeals and reinstated Pepka’s convictions and sentence.