2013 Ohio 115
Ohio Ct. App.2013Background
- Tolliver was convicted of Robbery under R.C. 2911.02(A)(3) after the jury was not instructed on recklessness as to the use or threat of force.
- The State argued recklessness was not required and treated Robbery as a strict-liability offense for the force element.
- Tolliver admitted theft but denied an intent to use or threaten force; defense did not request a recklessness instruction.
- The State suggested in closing that no mens rea was required for the force element; Tolliver contested this.
- Horner overruled Colon I/II to the extent they held a mens rea was unnecessary for certain robbery forms, but the case here concerns Robbery under 2911.02(A)(3).
- The trial court failed to instruct on recklessness; the appellate court reversed and remanded for new proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recklessness is the mens rea for the force element in Robbery 2911.02(A)(3). | Tolliver | State | Recklessness is the required mens rea for the force element. |
Key Cases Cited
- State v. Colon, 118 Ohio St.3d 26 (2008) (recklessness as an element for 2911.02(A)(2))
- State v. Colon, 119 Ohio St.3d 204 (2008) (reconsideration of Colon I/II (plain error vs structural error))
- State v. Horner, 126 Ohio St.3d 466 (2010) (indictment not defective for lack of mens rea; Horner cited re: strict liability for some elements)
- State v. Wac, 68 Ohio St.2d 84 (1981) (approach to defining offense under 2901.21(B))
- State v. Maxwell, 95 Ohio St.3d 254 (2002) (analysis of mens rea in robbery/related offenses)
- State v. Lester, 123 Ohio St.3d 396 (2009) (held that some force-related elements are strict liability)
- State v. Wharf, 86 Ohio St.3d 375 (1999) (deadly weapon element not requiring recklessness)