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."'" Id., ¶ 37, quoting State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 12, quoting State v. Headley, 6 Ohio St.3d 475, 478-479, 6 OBR 526, 453 N.E.2d 716. The court of appeals vacated Pepka's felony convictions, remanded the case to the trial court, and ordered the trial court to enter judgments of conviction on three counts of first-degree-misdemeanor child endangering.

{¶ 21} Pursuant to Crim. R. 7(D), a trial court may amend an indictment "at any time" "provided no change is made in the name or identity of the crime charged." See also R.C. 2941.30; State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. A trial court that permits an amendment to an indictment that changes the name or identity of the crime charged commits reversible error whether or not a continuance was granted.

Where the "name" of the crime remains the same, even after amendment, there is no violation of Crim.R. 7(D) regarding that prohibition. See, e.g., Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609 at ¶ 5; State v. Corrill (1999), 133 Ohio App.3d 550, 552, 729 N.E.2d 403; State v. Dukes, Allen App. Nos. 1-02-64, 1-02-92, and 1-02-93, 2003-Ohio-2386, 2003 WL 21057285, ¶ 10. In order to determine whether the identity is changed, we must determine whether the amended indictment changes the "penalty or degree" of the offense.

An amendment is impermissible if it "changes the penalty or degree of the charged offense[ ] because such a change alters the identity of the offense." State v. Davis , 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. Conversely, "[a]mendments that change ‘only the date on which the offense occurred * * * [do] not charge a new or different offense, nor * * * change the substance of the offense.’ " State v. Bennett , 9th Dist. Lorain No. 10CA009917, 2011-Ohio-6679, 2011 WL 6838655, ¶ 11, quoting State v. Quivey , 4th Dist. Meigs No. 04CA8, 2005-Ohio-5540, 2005 WL 2671416, ¶ 28.

On the other hand, in a case in which the crime remains the same, even after amendment, there is no violation of Crim. R. 7(D). State v. Craft, 181 Ohio App.3d 150, 2009-Ohio-675, 908 N.E.2d 476, at ¶ 23, citing State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609 at ¶ 5. To determine whether the "identity" of a crime has changed, the court must examine whether the "penalty or degree" changed.

In these circumstances, the amendment "changes the identity of the offense." State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, P 9.[*P64] Before Count One was amended, the State was required to prove that Lackey, with another person, planned or aided in the planning of Aggravated Arson, and that after Lackey entered into the conspiracy, a substantial act in furtherance of the conspiracy was done by Lackey or by another person with whom he conspired.

"Under Crim.R. 7(D), a court may amend an indictment 'at any time' if the amendment does not change 'the name or identity of the crime charged.'" State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. "As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged."

{¶ 69} Under Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” An amendment that changes the penalty or degree of the charged offense changes the identity of the offense and is not permitted by Crim.R. 7(D). State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus. However, “[a]s long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.”

See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. {¶ 9} In State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 12, we found plain error when a trial court amended an indictment to allow a defendant to be prosecuted for a higher degree of a crime. In that case, there was a miscarriage of justice because the prosecution was attempting to "increase the penalty or degree of the offense" charged.

{¶ 39} "Plain error does not exist unless `but for the error, the outcome of the trial clearly would have been otherwise.'" State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 11, quoting State v. Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 372 N.E.2d 804. Speculation does not suffice to demonstrate plain error. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108 (finding no plain error when the accused's claim "is totally speculative").