Is Aggravated Burglary Conviction Void if Jury Was Instructed on Underlying Offense Not in Indictment?

State of Ohio v. Jeffrey L. Lynn, Case no. 2010-0251

2nd District Court of Appeals (Montgomery County)

ISSUE: If an indictment for aggravated burglary returned against a defendant indicates that he unlawfully entered an occupied residence in order to commit the underlying offense of theft, and the trial judge later instructs jurors that they may find the defendant guilty if they find that he intended to commit either theft or assault, is the defendant's subsequent conviction for aggravated burglary invalid because jurors may have based their guilty verdict on an underlying offense (assault) that was not reviewed by the grand jury or included in its indictment?