State v. Tolliver (Slip Opinion)
140 Ohio St. 3d 420
| Ohio | 2014Background
- Tolliver was indicted for robbery under R.C. 2911.02(A)(3) alleging recklessly using or threatening force in theft-related conduct.
- At trial Tolliver admitted shoplifting and that he raised his fist toward Jordan; he conceded extending his arms into her chest but denied pushing.
- The indictment added the word “recklessly” to the force element, though the statute itself does not specify a mens rea for that element.
- The trial court did not instruct the jury that force element required a mental state; the instruction mirrored robbery and theft elements but omitted force-specific culpability.
- The court of appeals reversed Tolliver’s conviction for plain error; the state sought review, and the Supreme Court of Ohio granted jurisdiction.
- The majority holds that R.C. 2901.21(B) does not apply because robbery’s force element is tied to the predicate theft offense that already contains mens rea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recklessness is required for the force element of 2911.02(A)(3). | Tolliver argues force element requires recklessness. | State contends force element is tied to theft’s mens rea and need not add recklessness. | No; force element need not be proven with recklessness. |
| Whether R.C. 2901.21(B) applies to R.C. 2911.02. | Tolliver asserts 2901.21(B) should apply, imposing recklessness if not otherwise specified. | State argues 2901.21(B) does not apply because robbery already includes mens rea via theft predicate. | Does not apply; robbery predicated on theft supplies mens rea. |
| Whether the robbery statute’s mens rea is supplied by the predicate theft offense. | Tolliver maintains no separate mens rea for force; theft elements suffice. | State relies on predicate theft’s mens rea being incorporated. | Yes; the theft elements supply culpability, so force element is not independent. |
| Whether Johnson/Maxwell/Wharf limit application of 2901.21(B) to this case. | Tolliver relies on Johnson-like logic that no extra mens rea is required. | State argues 2911.02 is controlled by prior interpretations that tie to theft. | Robbery statute’s structure precludes 2901.21(B) here; the force element isn’t independently silent. |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 107 (2010-Ohio-6301) (clarified 2901.21(B) applicability based on whether offense specifies culpability)
- State v. Maxwell, 95 Ohio St.3d 254 (2002-Ohio-2121) (two-step inquiry for 2901.21(B) applicability)
- State v. Wharf, 86 Ohio St.3d 375 (1999) (deadly-weapon element of robbery does not require recklessness beyond theft mens rea)
- Morissette v. United States, 342 U.S. 246 (1952) (presumption of mens rea absent contrary direction; counterpoint to strict liability)
- Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125 (1969) (principle of giving effect to words used; avoid inserting or deleting terms)