dissenting.
{¶ 23} I respectfully dissent from the majority opinion. The Ohio Supreme Court held in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, that the “elements” of the offense of aggravated burglary under R.C. 2911.11(A)(2) are that no person by force, stealth, or deception, shall trespass into an occupied structure with purpose to commit in the structure any criminal offense if the offender inflicts or attempts or threatens to inflict physical harm on another, or the offender has a dangerous weapon or ordnance on or about his person. The underlying criminal offense the defendant intended to commit during the trespass is not an element of the aggravated-burglary offense. See Gardner at ¶ 71. It is obvious from the trial record that the prosecutor’s insertion of the underlying offense as “theft” was a drafting error because there was no evidence presented by the state at trial that Lynn had a purpose to commit theft when he trespassed into the apartment where his former girlfriend was staying. The insertion of theft as the underlying criminal offense was mere surplusage and the trial court erred in not permitting the state to amend the indictment. Crim.R. 7(D) allows the amendment of the indictment at any time before, during or after the trial consistent with due process. The amendment did not change the identity of the aggravated-burglary charge. The record discloses that Lynn and his counsel received the extensive discovery packet provided by the state, which includes the police offense reports surrounding the alleged aggravated burglary. Undoubtedly, in light of the trial record, they included no reference to any alleged theft by the defendant. Lynn would not have been prejudiced by the trial court’s permitting the state to amend the indictment. I would affirm the appellant’s convictions.