dissenting in part and concurring in part. Richard Joseph was convicted of the crime of aggravated murder beyond a reasonable doubt. No prejudicial error occurred in the guilt phase of his trial. I partially dissent, however, because I am unable to reach a similar conclusion with respect to the death penalty specification. In my view, the indictment issued against Joseph by the grand jury did not contain a specification upon which a. death sentence could legally be based. I similarly do not find evidence in this record sufficient to support a finding beyond a reasonable doubt that Joseph was a “principal offender” in the death of Ryan Young, as that term has consistently been interpreted by this court. I therefore dissent from the majority’s affirmation of Joseph’s death sentence. I would remand this case ,to the trial court with instructions that Joseph be resentenced, in accordance with R.C. 2929.03(A),2 to *464life imprisonment with parole eligibility after serving twenty years of imprisonment.
The state concedes that the specification included in the indictment was flawed. The indictment3 charged Joseph and Jose Bulerin (who was tried separately and sentenced to twenty years to life imprisonment) with aggravated murder (R.C. 2903.01[B]). The specification charged both Joseph and Bulerin as principal offenders in the commission of the kidnapping of Young rather than the principal offenders in the commission of Young’s aggravated murder. However, where prior calculation and design has not been alleged, as it was not here, Ohio's statutorily defined aggravating circumstance of felony-murder requires that the defendant be “the principal offender in the commission of the aggravated murder.” R.C. 2929.04(A)(7).4 The specification included in the Joseph-Bulerin indictment simply did not give notice of that element, either by setting it forth in the words of the statute, or by including a reference to the statutory number of the felony-murder specification. I do not believe that the Ohio Constitution, governing statutes, or rules of procedure, or this court’s precedent allows this flaw to be dismissed as harmless.
The majority opinion asserts that Joseph’s death sentence may be upheld because defense counsel never challenged the sufficiency of the specification in *465the indictment, and imputes to the defense knowledge of the elements of the felony-murder death specification. Our established precedent is clear that the “principal offender” requirement of the felony-murder specification set forth in R.C. 2929.04(A)(7) equates to a finding of “actual killer.” State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744; State v. Wiles (1991), 59 Ohio St.3d 71, 92, 571 N.E.2d 97, 122; State v. Taylor (1993), 66 Ohio St.3d 295, 308, 612 N.E.2d 316, 325. See, also, State v. Doty (1916), 94 Ohio St. 258, 113 N.E. 811; State v. Rogers (1938), 64 Ohio App. 39, 55, 17 O.O. 340, 347, 27 N.E.2d 791, 799 (“Adams was the principal offender as the evidence discloses that he, Adams, was the one who fired the shot that killed the Dickey boy.”). My review of the record supports the conclusion that inclusion in the indictment of the phrase “principal offenders in the commission of the kidnapping ” of Ryan Young was more than a mere clerical or typographical error. The error indicates that this case was tried upon the mistaken theory that a death sentence based upon the statutory aggravating circumstance of felony-murder (R.C. 2929.04[A][7]) could be imposed upon Joseph irrespective of whether Joseph actually inflicted knife wounds on Young.
This conclusion is evidenced most strongly by the prosecutor’s own words. During his closing argument made to the jury at the conclusion of the guilt phase, the prosecutor stated:
“We have to prove to you beyond a reasonable doubt that this crime, or crimes, was committed between the 26th day of June of this year and the 4th day of July. We’ve got a time frame. Frankly, the State of Ohio can’t prove to you exactly when the death occurred. We can tell you when [the victim] was last seen. We can tell you when the car was seen out there. We can tell you where the car was found. The State of Ohio doesn’t know.
“Another thing the State of Ohio doesn’t know and can’t tell you, and it doesn’t make any difference as long as you find the two people, Jose Bulerin and Richard E. Joseph, jointly committed these crimes, or this crime, the law is very clear in Ohio that if one person is an aider and abettor, no matter what part he has in it, if he plays a part in the commission of that crime then he’s as guilty as the other guy. The State of Ohio can’t tell you. I wish I could. I wish I could tell you exactly what happened. I don’t know who struck the death blow. But, I believe the evidence is very clear that it was one of the two that’s charged here. If you find one of them did it, or the other one did it, they’re both just as guilty as if each of them had their hands around the hilt of that knife when it was stuck in Ryan Young.” (Emphasis added.)
Later in closing argument, the prosecutor argued to the jury: “You’ll find that they took Ryan Young to some area. Here again, it doesn’t make any difference who did what; who did the cutting.” (Emphasis added.)
*466During his rebuttal argument the prosecutor stated:
“[Defense counsel] wants you to infer or surmise that this defendant was not there and it was somebody else. We don’t have to show that this defendant was the one who administered the fatal blows. He was with him. We don’t know which one did it. We don’t have to prove that.” (Emphasis added.)
These comments did not materially misstate the law in regard to obtaining a guilty verdict as to the aggravated murder charge against Joseph. An aider and abettor may be found guilty of aggravated murder even though he is not himself the actual killer. However, “[t]he fact that, pursuant to R.C. 2923.03(F), a defendant who aids and abets another in committing an offense ‘shall be prosecuted and punished as if he were a principal offender’ and so may be convicted of aggravated murder under R.C. 2903.01(B) does not make the defendant ‘the principal offender’ for- purposes of imposing the death penalty under R.C. 2929.04(A)(7).” State v. Taylor, syllabus.
It seems unlikely that the prosecutor in this case would have admitted the state’s failure to prove the identity of the actual killer had he realized that such an admission precluded a guilty verdict as to the felony-murder death specification. Similarly, the fact that trial defense counsel never raised the issue of the indictment’s flaw, and did not address, let alone focus, its defense on the absence of proof of Joseph’s “principal offender” status, leads to the conclusion that the defense accepted the prosecutor’s legal interpretation. In affirming Joseph’s death sentence, this court enters dangerous grounds, by effectively holding that the state may obtain a death sentence based not upon what was actually charged in the indictment, but upon what the state meant to charge, or should have charged in the indictment.
The framers of the Ohio Constitution clearly were aware of the importance of grand jury review in criminal matters, and thus included Section 10, Article I, which provides in part: “[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” I find the majority’s willingness to excuse the defect in this .indictment to significantly undercut the protection against unjust prosecution this constitutional provision was intended to guarantee. In that the prosecutor conceded at trial that it could not prove who actually killed Young, it seems more than simply academic to question whether the grand jury would have ever issued an indictment with a felony-murder specification in the first place had its members been aware that such a specification required proof that Bulerin, Joseph, or both, were “principal offenders in the aggravated murder” of Young rather than proof that they both were principal offenders in his kidnapping. This being the case, it is of little significance that the trial court prepared verdict forms consistent with the *467statutory specification language.5 Cf. State v. Headley (1983), 6 Ohio St.3d 475, 478-479, 6 OBR 526, 529, 453 N.E.2d 716, 720 (in light of Section 10 of Article I of the Ohio Constitution, “where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury”). See, also, State v. O’Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144; State v. Dilley (1989), 47 Ohio St.3d 20, 546 N.E.2d 937.
In addition, in my view Ohio’s statutes governing capital punishment preclude imposition of the death penalty in this case. Pursuant to R.C. 2929.03(A), where an indictment fails to contain one or more specifications of aggravating circumstances listed in division (A) of section R.C. 2929.04, a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment must be imposed where a defendant is found guilty of aggravated murder. R.C. 2929.04 provides that “[i]mposition of the death penalty for aggravated murder is precluded” unless one of the specifications set forth in subsections (A)(1) through (7) is specified in the indictment. R.C. 2941.14(B) precludes imposition of the death penalty for aggravated murder “unless the indictment * * * specifies one or more of the aggravating circumstances listed in division (A)” of R.C. 2929.04. Although R.C. 2941.14(C) provides for specifications to be stated “in the words of the subdivision in which it appears, or in words sufficient to give the accused notice of the same,” I do not believe that the specification included in the indictment issued against Joseph does either.
Similarly, the majority’s reliance on Crim.R. 7(D),6 which authorizes amendment of indictments in certain circumstances, is misplaced. The fact is that no *468Crim.R. 7(D) motion was ever made in this case. Assuming, arguendo, that the defect in the amendment was of a nature capable of correction by amendment, had that deficiency been noticed earlier and the provisions of Crim.R. 7(D) been invoked, the defendant would have been entitled by the express terms of the rule to ask for discharge of the sitting jury, and a reasonable continuance. In my view, an appellate court improperly precludes a defendant from invoking that right where the provisions of Crim.R. 7 are first asserted upon appeal. Nor is it our role, as a reviewing court, to determine in the first instance that it “clearly appears from the whole proceedings that the defendant [was not] misled or prejudiced by the defect or variance in respect to which the amendment [was] made,” or that the defendant’s rights were otherwise fully protected.
The simple facts remain that the grand jury in this case issued an indictment which did not make factual allegations falling within the scope of a statutorily defined aggravating circumstance, nor did it reference R.C. 2929.04(A)(7) by statutory number. This deficiency was never corrected by amendment pursuant to Crim.R. 7 or otherwise. I believe that these factual circumstances, combined with a record which shows the case to have been tried pursuant to a misunder*469standing of the law’s requirements, constituted plain error, which, had it not occurred, might well have resulted in a different verdict as to the death specification. I therefore believe that this error precludes imposition of a death sentence upon Joseph.
Insufficiency of the Evidence Related to the Death Penalty
I agree with the majority to the extent that significant circumstantial evidence was produced by the state to support a finding that Joseph was involved in the murder of Young and that he was either himself the killer or was an aider and abettor in the murder, and that either finding would support a conviction of aggravated felony-murder. R.C. 2903.01(B); Taylor, supra. However, this record contains no evidence, either direct or circumstantial, as to who held the knife (or knives) that were thrust into Young causing his death. The state simply did not prove Joseph guilty of a felony-murder death specification beyond a reasonable , doubt. It instead conceded that it knew virtually nothing as to the precise circumstances by which Young was murdered, including the facts as to who was his actual killer (or killers).
This court has decided past cases in which more than one individual have been deemed to be a “principal offender” in one murder. In those cases, however, there has been evidence supporting a finding that the physical acts of more than one defendant together contributed to cause death. In other cases the evidence supports the conclusion that only one actor was involved in an aggravated murder. See, e.g., State v. Murphy (1992), 65 Ohio St.3d 554, 584, 605 N.E.2d 884, 908. In those cases, the actor has been recognized to be death-eligible as the “principal offender” because, in the absence of an aider or abettor, a finding of guilt of aggravated murder necessarily requires a finding that the guilty party was also the “principal offender.”
The evidence produced by the state at this trial is unlike the evidence in these categories of cases. In this case only two people (Joseph and his co-indictee Jose Bulerin) know which of them “actually killed” Young, or whether they both did. Neither of them testified in this trial, nor did the state produce confessions to disclose those facts. The state never found the murder weapon; hence, the weapon could not be traced to one or both of the defendants through fingerprints or other circumstantial evidence. We do not know exactly where Young was killed (no evidence was presented of blood in either Young’s car or the Forest car) or any other circumstances surrounding his stabbing. Perhaps most significantly, the state conceded in its arguments to the jury that it did not know who stabbed Young (“I don’t know who struck the death blow. * * * [I]t was one of the two that’s charged here.” “[I]t doesn’t make any difference who did what; who did the cutting.”)
*470In short, the record is sufficient to support speculation as to who actually lolled Young. Clearly this defendant had a motive. However, proof of a motive is not proof of guilty conduct. On the other hand, testimony was presented that the co-defendant Bulerin (age late thirties) was highly involved with martial arts, and protective of “his kid” (Joseph). Forest confirmed that Bulerin had indicated that he would “either snap your neck or put a bullet through your head and throw you out alongside the road” if you ever “screwed with or messed with” him or Joseph. Joseph’s mother testified that, on one occasion when her son was ill, Bulerin told her not to “waste [her] time” in attempting to take Joseph home with her because she “wasn’t going to get [her] son.” She testified that Bulerin had threatened to break into her home and take something, or kill her dogs. At Joseph’s mitigation hearing, Bulerin’s ex-wife testified that, while she could not believe Joseph actually killed Young, she could believe that behavior of Bulerin.
Unfortunately, however, the evidence produced by the state does not confirm either speculation. We simply do not know, on the basis of this record, who killed Young. Having complied with our statutory responsibility pursuant to R.C. 2929.05 to make an independent review of the record to “determine if the evidence supports the finding of the aggravating circumstances the trial jury * * * found the offender guilty of committing,” I do not find that this record supports a finding that Joseph was proven guilty of being a principal offender, ie., actual killer, in the felony-murder of Young. I therefore believe it is the duty of this court to disaffirm the sentence of death imposed upon Richard Joseph.
Deshler, J., concurs in the foregoing opinion.. R.C. 2929.03 provides in part:
“(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on the offender.”
. The indictment states:
“THE JURORS OF THE GRAND JURY of the State of Ohio, * * * do find and present that from on or about the 26th day of June, 1990 to on or about the 4th day of July, 1990, at Allen County, Ohio,
“JOSE E. BULERIN AND RICHARD E. JOSEPH, whose real and true names are to the Grand Jury unknown did jointly purposely cause the death of another, to wit: Ryan R. Young, while committing or while fleeing immediately after committing kidnapping;
“SPECIFICATION
“The Grand Jurors further find and specify that the offense was committed while the offenders were committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, and the offenders were the principal offenders in the commission of the kidnapping; in violation of the Ohio Revised Code, Section 2903.01(B) and against the peace and dignity of the State of Ohio. [Emphasis added.]
“[s/ David E. Bowers] “Prosecuting Attorney”
. R.C. 2929.04 provides in relevant part:
“(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt: « * * *
“(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” (Emphasis added.)
. The verdict form signed and returned by the jury read as follows:
“SPECIFICATION
“The offense charge [sic ] [was] committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit Kidnapping, and the offender was the principal offender in the commission of the Aggravated Murder.
“[dated and signed by 12 jurors].” (Emphasis added.)
. Crim.R. 7 provides:
“(A) Use of indictment or information. A felony that may be punished by death or life imprisonment shall be prosecuted by indictment. All other felonies shall be prosecuted by indictment, except that after a defendant has been advised by the court of the nature of the charge against the defendant and of the defendant’s right to indictment, the defendant may waive that right in writing and in open court.
K * * *
“(B) Nature and contents. The indictment shall be signed, in accordance with Crim.R. 6(C) and (F) and contain a statement that the defendant has committed a public offense specified in the indictment. The information shall be signed by the prosecuting attorney or in the name of the prosecuting attorney by an assistant prosecuting attorney and shall contain a statement that the *468defendant has committed a public offense specified in the information. The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the. applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. Each count of the indictment or information shall state the numerical designation of the statute that the defendant is alleged to have violated. Error in the numerical designation or omission of the numerical designation shall not be ground for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not prejudicially mislead the defendant.
» $ ‡ $
“(D) Amendment of indictment, information, or complaint. The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission inform or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant’s motion, if a jury has been impanelled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant’s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. Where a jury is discharged under this division, jeopardy shall not attach to the offense charged in the amended indictment, information, or complaint. No action of the court in refusing a continuance or postponement under this division is reviewable except after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such action of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justice resulted.” (Emphasis added.)