Indictment

Short answer: No — this count is not a proper felony-murder indictment under Ohio law as written. Long answer below, with precise legal reasons and what Ohio courts require.

I. WHAT MAKES AN INDICTMENT “PROPER” IN OHIO

Under Ohio Crim.R. 7(B) and controlling Ohio Supreme Court precedent, an indictment must:

Contain all essential elements of the offense
Fairly inform the defendant of the charge
Not be internally inconsistent or legally impossible
State an offense recognized by Ohio law

Failure to allege an essential element is a jurisdictional defect that can be raised at any time.

II. WHAT A PROPER FELONY-MURDER INDICTMENT MUST ALLEGE

For R.C. 2903.02(B), the indictment must allege:

A death
A specific predicate felony (F1 or F2 offense of violence)
That the death occurred as a proximate result of that predicate felony
That the predicate felony is legally capable of serving as the predicate

III. WHY THIS INDICTMENT IS LEGALLY DEFECTIVE

1. The Predicate Felony Is Not Legally Independent

The indictment states the predicate felony is:

Felonious Assault … [the act of shooting Daniel A. Peek, Sr.]

This creates a fatal defect.

Ohio law prohibits using:

The same act that caused the death
As the predicate felony

This violates the merger doctrine and renders the felony-murder charge legally impossible.

In plain terms:

The indictment alleges that the death was caused by the act that caused the death.

That is not an offense under R.C. 2903.02(B).

2. The “Proximate Result” Element Is Illusory

“Proximate result” requires:

A separate felony
A death that results from that felony

Here:

The felony is the killing
There is no causal chain
Cause and result collapse into one act

Ohio courts have repeatedly held that an indictment must allege facts that legally satisfy causation, not just recite statutory language.

3. The Indictment Fails to State an Offense Recognized by Law

An indictment that:

Alleges conduct that cannot constitute the charged crime
Even if proven exactly as alleged

Is void, not merely voidable.

This count alleges a legal impossibility:

felony murder predicated on the homicidal act itself

4. Count Three Cannot Cure This Defect

Ohio law is clear:

Each count must stand on its own
A court may not infer elements from another count
A predicate felony must be alleged within the felony-murder count

Because this count explicitly defines the predicate as the shooting, no other felony can be substituted.

IV. WHY THIS IS NOT SAVED BY “TRACKING THE STATUTE”

While indictments may generally track statutory language, that rule does not apply when:

The statute requires a legally distinct predicate
And the indictment affirmatively alleges facts that defeat that requirement

Tracking statutory language while adding disqualifying facts makes the indictment defective.

V. OHIO AUTHORITY SUPPORTING THIS CONCLUSION

You can rely on these controlling principles:

Crim.R. 7(B) – indictment must state the offense
State v. Wesson, 137 Ohio St.3d 309 (2013) – omission of an essential element invalidates indictment
State v. Colon, 118 Ohio St.3d 26 (2008) – structural error where indictment fails to properly charge an offense
State v. Bissell, 2024-Ohio-5317 (8th Dist.) – felony murder requires death as proximate result of predicate felony
Long-standing Ohio merger doctrine prohibiting assaultive acts from serving as their own felony-murder predicate