COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

                           COUNTY OF CUYAHOGA

                               NO. 61076


   STATE OF OHIO                      :
                                      :
                                      :
             PLAINTIFF-APPELLEE       :    JOURNAL ENTRY
                                      :
   v.                                 :        AND
                                      :
   JAMES DAVIS                        :      OPINION
                                      :
                                      :
             DEFENDANT-APPELLANT      :


   DATE OF ANNOUNCEMENT
   OF DECISION:                       SEPTEMBER 17, 1992

   CHARACTER OF PROCEEDING:           CRIMINAL APPEAL FROM THE
                                      COMMON PLEAS COURT
                                      CASE NO. CR-253841


   JUDGMENT:                          AFFIRMED.

   DATE OF JOURNALIZATION:


   APPEARANCES:

   For Plaintiff-Appellee:            STEPHANIE TUBBS JONES
                                      Cuyahoga County Prosecutor
                                      BY:  SCOTT SALISBURY
                                      Assistant County Prosecutor
                                      The Justice Center
                                      1200 Ontario Street
                                      Cleveland, OH  44113

   For Defendant-Appellant:           DAVID M. MAISTROS
                                      REG. No. 0047390
                                      800 Standard Building
                         Cleveland, OH   44113



















                                - 2 -
   SPELLACY, J.:

        Defendant-appellant James Davis appeals  from his conviction

   for theft  and contends  the trial  court improperly  amended his
              1
   indictment.    Finding that  the trial  court did  not amend  the

   indictment, we affirm Davis's conviction.

        The grand  jury indicted  Davis for  robbery (R.C.  2911.02)

   with an aggravated  felony specification  stating that Davis  had

   been convicted of robbery  on a previous occasion.  After a bench

   trial, the trial  court found  Davis not guilty  of robbery,  but

   guilty of  the lesser included  offense of theft  (R.C. 2913.02).

   The trial court subsequently found the  conviction to be a felony

   of  the fourth degree based on  the prior robbery conviction.  It

   then sentenced Davis to a one year term of imprisonment.

        Davis's contention is  based on the  premise that the  prior

   conviction specification applied to the robbery charge and not to

   the lesser included offense of theft.  This premise is false.

        "The purpose of  an indictment is  to inform the accused  of

   the crime  with which he is charged."   State v. Flowers  (1971),

   29 Ohio  App.2d 105,  107.   The indictment,  therefore, provides







        1
           Davis raises the following assignment of error:

             THE  TRIAL  COURT  ERRED  BY CONSIDERING  THE
             DEFENDANT-APPELLANT'S  PRIOR  CONVICTION  AND
             AMENDING  THE INDICTMENT IN  SUCH A MANNER SO
             AS TO CHANGE  THE DEGREE  OF THE OFFENSE  THE
             DEFENDANT-APPELLANT    WAS    CONVICTED    OF
             COMMITTING.












                                  -3-


   notice to the defendant of the charges against him so that he may

   prepare a defense.  State v. Cook (1987), 35 Ohio App.3d 20.

        The  indictment is  not  required to  set  out all  possible

   lesser included offenses.   See R.C.  2945.74.  Clearly, this  is

   because the including of the original offense  puts the defendant

   on notice that he may be convicted of any of the potential lesser

   included offenses.  Similarly,  we find the including of  a prior

   conviction specification in  an indictment places a  defendant on

   notice  that if he is convicted of a lesser included offense, the

   prior conviction specification may be  applied to the conviction.

             Accordingly, Davis's  assignment of  error is  not well

   taken.    Judgment affirmed.








































                                  -4-






        It  is ordered that appellee recover  of appellant its costs

   herein taxed.

        The  court  finds  there were  reasonable  grounds  for this

   appeal.   It is ordered that a special  mandate issue out of this

   court directing the  Common Pleas  Court to  carry this  judgment

   into execution.  The defendant's conviction having been affirmed,

   any bail  pending appeal  is terminated.   Case  remanded to  the

   trial court for execution of sentence.

        A certified copy of this  entry shall constitute the mandate

   pursuant to Rule 27 of the Rules of Appellate Procedure.


   DAVID T. MATIA, C.J., AND

   JOHN F. CORRIGAN, J., CONCUR.


                                             LEO M. SPELLACY
                                                  JUDGE







   N.B. This entry is  made pursuant to  the third sentence of  Rule
   22(D),  Ohio   Rules  of  Appellate   Procedure.    This   is  an
   announcement of decision (see  Rule 26).  Ten (10) days  from the
   date  hereof   this  document   will  be   stamped  to   indicate
   journalization, at  which time  it will  become the  judgment and
   order of the court and time period for review will begin  to run.



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