2008 Ohio 6276 | Ohio Ct. App. | 2008
{¶ 2} In October 2006, defendant was charged in a four-count indictment. Counts one and two charged him with aggravated murder. Counts three and four charged him with aggravated robbery. Counts one through three carried one-and three-year firearm specifications, a felony murder specification, two notice of prior conviction specifications, and two repeat violent offender specifications.1 Count four, the remaining aggravated robbery charge, carried one-and three-year firearm specifications, two notice of prior conviction specifications, and two repeat violent offender specifications.
{¶ 3} The matter proceeded to a jury trial, at which he was found guilty of murder, the lesser included offense under count two and both counts of aggravated robbery2 The jury also found defendant guilty of the one-and three-year firearm specifications attached to all the three counts.
{¶ 4} The notice of prior conviction and repeat violent offender specifications were bifurcated and heard by the trial court, which found defendant guilty of the notice of prior *4 conviction specification as charged in counts two, three, and four. The trial court found defendant not guilty of the repeat violent offender specifications.
{¶ 5} The trial court sentenced defendant to three years in prison on the firearm specifications, 15 years to life for murder, and 10 years for each aggravated robbery charge, to be served concurrently to each other, but consecutively to the murder charge, for an aggregate of 28 years to life in prison.
{¶ 6} Defendant now appeals, raising two assignments of error for our review.
{¶ 7} "I. The trial court erred in convicting Mr. Briscoe based upon a constitutionally defective indictment that failed to state a necessary element of the charged offenses."
{¶ 8} Under this assignment of error, defendant contends that the counts of his indictment for aggravated robbery, in violation of R.C.
{¶ 9} The Ohio Supreme Court, on reconsideration, clarified its decision in Colon I, in a subsequent opinion, see State v. Colon,
{¶ 10} "Applying structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment. In Colon I, the error in the indictment led to errors that `permeate[d] the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence.' Id. at ¶ 23. Seldom will a defective indictment have this effect, and therefore, in most defective indictment cases, the court may analyze the error pursuant to Crim. R. 52(B) plain-error analysis. Consistent with our discussion herein, we emphasize that the syllabus inColon I is confined to the facts in that case." Id. at ¶ 8 (emphasis added).
{¶ 11} In Colon II, the Ohio Supreme Court clarified that multiple errors must permeate the trial before the omission of the mens rea from an indicted offense can be considered under a structural error analysis. Specifically, the court cited a failure to include recklessness as an element of the crime in the jury instructions, or during closing argument, and that the State treated the offense as one of strict liability.
{¶ 12} In Colon, the Ohio Supreme Court addressed the omission of the mens rea element from an indictment for robbery in violation of R.C.
{¶ 13} "(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
{¶ 14} "* * *
{¶ 15} "(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another." *6
{¶ 16} The court held "R.C.
{¶ 17} This Court has subsequently addressed the application ofColon to an indictment for aggravated robbery in violation of R.C.
{¶ 18} "(A) No person, in attempting or committing a theft offense, as defined in section
{¶ 19} "(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;"
{¶ 20} In Peterson, this Court held that Colon has no application to an indictment for aggravated robbery in violation of R.C.
{¶ 21} Accordingly, defendant's indictment for aggravated robbery in violation of R.C.
{¶ 22} However, in this case, defendant was also charged with, and convicted of, aggravated robbery in violation of R.C.
{¶ 23} "(A) No person, in attempting or committing a theft offense, as defined in section
{¶ 24} "* * *
{¶ 25} "(3) Inflict, or attempt to inflict, serious physical harm on another."
{¶ 26} The Ohio Supreme Court has determined that the required mental state under R.C.
{¶ 27}
{¶ 28} The State contends that Colon should not be applied to R.C.
{¶ 29} Based on the rationale set forth by the Ohio Supreme Court inColon I, the failure to include the requisite mens rea of recklessness in defendant's indictment for aggravated robbery in violation of R.C.
{¶ 30} This assignment of error is overruled in part and sustained in part.
{¶ 31} "II. The trial court erred in convicting Mr. Briscoe of murder and firearm specifications based upon a constitutionally defective indictment that failed to state a necessary element of the offenses underlying the count of murder and the firearm specifications."
{¶ 32} Defendant ties his argument under this assignment of error to his previously asserted position that both counts of aggravated robbery against him were defective. Since we have found no error concerning his indictment and conviction for aggravated robbery *10
pursuant to R.C.
{¶ 33} Further, according to the record the parties agreed to the jury instruction on R.C.
{¶ 34} Finally, while the defense placed several objections to the jury instructions on the record, the defense did not object to the jury instruction given on the lesser included offense of R.C.
{¶ 35} Assignment of Error II is overruled.
Judgment affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. *11
It is ordered that appellee and appellant shall each pay their respective 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 Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR KEYWORD SUMMARY
"(1) Have a deadly weapon on or about the offender's person or under the offender's control."
*1