State v. BellState v. Bell
JUDGMENT: REVERSED AND REMANDED
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: William Leland
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert Tobik
Chief Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, the state of Ohio, appeals the decision of the Cuyahoga County Court of Common Pleas that dismissed the indictment against appellee, Jacqueline Bell. For the reasons stated herein, we reverse and remand.
{¶ 2} Bell was indicted on August 14, 2008, on two counts of aggravated burglary in violation of
“[Bell], on or about [July 24, 2007], in the County of Cuyahoga, unlawfully did, by force, stealth, or deception, trespass, as defined in
Section 2911.21(A)(1) , in an occupied structure, as defined inSection 2909.01 of the Revised Code , or in a separately secured or separately occupied portion of an occupied structure when [the victim], not an accomplice of the offender, was present, with the purpose to commit in the structure or in a separately secured or separately occupied portion of the structure any criminal offense to wit: AssaultR.C. 2903.13(A) and recklessly inflicted or attempted to inflict or threatened to inflict physical harm on [the victim].”
(Emphasis added.)
{¶ 3} Bell filed a motion to dismiss the indictment for failure to include all the essential elements of burglary. Bell argued that the indictment was fatally flawed because it did not contain a mens rea for trespass and because it used the word “recklessly,” which does not appear in the statute. The trial court
{¶ 4} The state has appealed the trial court‘s decision and has raised one assignment of error challenging the dismissal of the indictment. We recognize that “the state may appeal the dismissal of an indictment whether the dismissal is with or without prejudice.” State v. Craig, 116 Ohio St.3d 135, 138, 2007-Ohio-5752, 876 N.E.2d 957.
{¶ 5} The Ohio Supreme Court has long held that an indictment is defective if it fails to state all the essential elements of a charged offense. State v. Colon, 118 Ohio St.3d at 29; State v. Headley (1983), 6 Ohio St.3d 475, 478-479, 453 N.E.2d 716; State v. Wozniak (1961), 172 Ohio St. 517, 520, 178 N.E.2d 800. Bell was charged with two counts of burglary under
”
R.C. 2911.11(A)(1) provides as follows: “No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in a separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another[.]”
{¶ 6} In this case, the indictment tracked the language of the statute insofar as it alleged that Bell had a purpose to commit a criminal offense. However, the indictment inserted the word “recklessly” as to the causing of
{¶ 7} In Colon, 118 Ohio St.3d 26, the Ohio Supreme Court held that an indictment for robbery in violation of
{¶ 8} The Colon decision dealt with a robbery statute and did not address burglary statutes. Thus, this court and others have rejected the application of Colon to a charge of aggravated burglary or burglary. See State v. Goldick, Montgomery App. No. 22611, 2009-Ohio-2177; State v. Day, Clark App. No. 07-CA-139, 2009-Ohio-56; State v. Davis, Cuyahoga App. No. 90050, 2008-Ohio-3453. Further, unlike the robbery statute addressed in Colon, the level of intent to commit a burglary offense is clearly expressed in the statute, i.e., “with purpose to commit * * * any criminal offense.” Therefore, we have held that
{¶ 9} In Davis, we did not reach the issue of whether any intent is required to be specified as to the “physical harm” element for aggravated burglary under
{¶ 10} Following Gardner, it has been held that “[p]urpose to inflict harm is not an element of aggravated burglary; the purpose prohibited by the statute is only the purpose to commit ‘any criminal offense.‘” State v. Young, Scioto App. No. 07CA3195, 2008-Ohio-4752. Indeed, the statute specifies only that the offender act with purpose to commit a criminal offense and that at some point
{¶ 11} Bell also asserts that the indictment is defective because the term “trespass” requires a mens rea of “knowingly” that has not been alleged. Further, Bell argues that the term “trespass” as used in the burglary statute is a verb and does not reference any statute number.
{¶ 12} Trespass is an essential element of aggravated burglary. State v. O‘Neal, 87 Ohio St.3d 402, 408, 2000-Ohio-449, 721 N.E.2d 73.
{¶ 13} We find that the burglary indictment herein sets forth the essential elements of the aggravated burglary offense and that Bell was put on notice of the requisite mental state that the state was required to prove at trial. Therefore, the trial court erred in dismissing the indictment. The state‘s sole assignment of error is sustained.
Judgment reversed, case remanded.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
CHRISTINE T. MCMONAGLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR