State v. ColonState v. Colon
Lead Opinion
{¶ 1} Pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and
{¶ 2} Defendant-appellant, Vincent Colon, was convicted by a jury of the offense of robbery in violation of
{¶ 3} At the defendant’s trial, the court instructed the jury on the elements of robbery pursuant to
{¶ 4} On appeal, the defendant argued that his “state constitutional right to a grand jury indictment and state and federal constitutional rights to due process were violated when his indictment omitted an element of the offense.” The indictment did not expressly charge the mens rea element of the crime of robbery.
{¶ 5} The court of appeals did not address the defect in the indictment; instead, the court affirmed the defendant’s conviction pursuant to
{¶ 7} “(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:
{¶ 8} “ * *
{¶ 9} “(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another.”
I
{¶ 10} There is no dispute that the defendant’s indictment was defective. The indictment purportedly charged the defendant with robbery in violation of
A
{¶ 11} While the robbery statute does not expressly state the degree of culpability required for subsection (2), the mental state of the offender is a part of every criminal offense in Ohio, except those that plainly impose strict liability. See State v. Lozier,
{¶ 12}
{¶ 13} Thus, “recklessness is the catchall culpable mental state for criminal statutes that fail to mention any degree of culpability, except for strict liability statutes, where the accused’s mental state is irrelevant. However, for strict liability to be the mental standard, the statute must plainly indicate a purpose to impose it.” State v. Lozier,
{¶ 14}
{¶ 15} In this case, the indictment failed to charge that the physical harm was recklessly inflicted. The state agrees that the omission in the indictment of one of the essential elements of the crime of robbery rendered the defendant’s indictment defective.
B
{¶ 16} This court has consistently protected defendants’ rights to a proper indictment. As early as 1855, Chief Justice Ranney stated the importance of including all the essential elements in an indictment: “ ‘The nature and cause of the accusation’ are not sufficiently stated to enable the accused to know what he might expect to meet upon the trial; and it is neither consistent with general principles nor constitutional safeguards, to allow a man to be thus put to trial upon a criminal charge in the dark.” Dillingham v. State (1855),
{¶ 17} Our case law follows the Ohio Constitution, which provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Section 10, Article I, Ohio Constitution. “The material and essential facts constituting an offense are found by the presentment of the grand jury; and if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.” Harris v. State (1932),
{¶ 18} The Ohio Rules of Criminal Procedure reflect the principle that an indictment that fails to include all the essential elements of an offense is a defective indictment.
{¶ 19} Having concluded that the indictment in this case was defective because it failed to charge an essential element of the offense, we next determine whether an indictment that fails to include the mens rea of the offense charged may be challenged for the first time on appeal. In this case, the defective indictment resulted in structural error, and the court of appeals erred when it held that the error could not be raised for the first time on appeal.
A
{¶ 20} Structural errors are “constitutional defects that ‘ “defy analysis by ‘harmless error’ standards” because they “affect[ ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.” ’ ” (Brackets added in Fisher.) State v. Perry,
{¶ 21} “In determining whether an alleged error is ‘structural,’ our threshold inquiry is whether such error ‘involves the deprivation of a constitutional right.’ ” Id., citing State v. Issa (2001),
{¶ 22} We have previously cautioned against applying a structural-error analysis in cases that would otherwise be governed by
{¶ 23} The instant case could be decided by applying plain-error analysis pursuant to
B
{¶ 24} Our holding in the instant case that the defect in the indictment resulted in structural error is supported by the Ohio Constitution, which states that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Section 10, Article I, Ohio Constitution. In order to establish structural error, the defendant must first establish that a constitutional error has occurred.
{¶ 25} As we explained in State v. Wozniak (1961),
{¶ 26}
{¶ 27} Despite the language of
{¶ 28} In the instant case, the indictment did not meet constitutional requirements, as it did not include all the essential elements of the offense charged against the defendant. Thus, the defendant was not properly informed of the charge so that he could put forth his defense.
{¶ 29} The defective indictment in this case resulted in several violations of the defendant’s constitutional rights. First, the indictment against the defendant did not include all the elements of the offense charged, as the indictment omitted the required mens rea for the crime of robbery. Therefore, the defendant’s indictment was unconstitutional.
{¶ 30} Second, there is no evidence in the record that the defendant had notice that the state was required to prove that he had been reckless in order to convict him of the offense of robbery, and thus the defendant’s due process rights were violated. Further, the state did not argue that the defendant’s conduct in inflicting physical harm on the victim constituted reckless conduct.
{¶ 31} In addition to the defendant being unaware of the elements of the crime with which he was charged, and the prosecutor failing to argue that the defendant’s conduct in this case was reckless, when the trial court instructed the jury on the elements of robbery necessary to find the defendant guilty, the court failed to include the required mens rea for the offense. The defendant’s counsel did not object to the incomplete instruction. There is no evidence in the record that the jury considered whether the defendant was reckless in inflicting, attempting to inflict, or threatening to inflict physical harm, as is required to convict under
{¶ 32} In summary, the defective indictment in this case failed to charge all the essential elements of the offense of robbery and resulted in a lack of notice to the defendant of the mens rea required to commit the offense. This defect clearly permeated the defendant’s entire criminal proceeding. The defendant did not receive a constitutional indictment or trial, and therefore the defective indictment in this case resulted in structural error.
{¶ 33} The state agrees that the indictment charging the defendant is defective, but argues that the Ohio Rules of Criminal Procedure require that any objection based on defects in the indictment must be raised before trial.
{¶ 34} “Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue. The following must be raised before trial:
{¶ 35} “ * * *
{¶36} “(2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding).”
{¶ 37} As stated in
{¶ 38} Our conclusion that an indictment that omits an essential element fails to charge an offense is supported by case law. In State v. Wozniak,
Ill
{¶ 39} Our holding today, that a defendant can challenge for the first time on appeal an indictment that omits an essential element of the crime, protects defendants’ right to a grand jury indictment. The grand jury is an important
{¶ 40} In discussing the grand jury provision of the federal Constitution, which is very similar to the grand jury provision of the Ohio Constitution, the Supreme Court of the United States has stated that the grand jury is a “ ‘ “constitutional fixture in its own right.” ’ ” United States v. Williams (1992),
{¶ 41} The state argues that despite the constitutional significance of the grand jury, permitting defendants to challenge a defective indictment for the first time on appeal will encourage defendants to withhold their challenges until after trial, resulting in inefficient proceedings. Our answer to this argument is simple: the state can thwart a defendant’s ability to harbor his challenge until after judgment by securing an indictment from the grand jury that properly charges all the essential elements of the offense.
{¶ 42}
{¶ 44} A defendant has a constitutional right to grand jury indictment and to notice of all the essential elements of an offense with which he is charged. The state must meet its duty to properly indict a defendant, and we will not excuse the state’s error at the cost of a defendant’s longstanding constitutional right to a proper indictment. When a defective indictment so permeates a defendant’s trial such that the trial court cannot reliably serve its function as a vehicle for determination of guilt or innocence, the defective indictment will be held to be structural error. See State v. Perry,
{¶ 45} In conclusion, we hold that when an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the defendant has not waived the defect in the indictment.
Judgment reversed.
Notes
. {¶ a}
{¶ b} “(A) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
{¶ e} “(B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
. In closing, the prosecuting attorney said, “Vincent Colon robbed Samuel Woodie. He attempted to commit a theft offense, and he inflicted harm. It’s simple. I ask you to keep it that simple and find him guilty.”
Dissenting Opinion
dissenting.
{¶ 46} As the majority acknowledges, there is no dispute that Colon’s indictment is constitutionally defective because it omitted a necessary element for the offense of robbery. I respectfully dissent, however, from the conclusion that this defect is structural. Thus, in my view, a defendant forfeits all but plain error associated with such a defect by failing to object at a time when it could have been corrected by the trial court. Therefore, I would affirm the judgment of the court of appeals and answer the certified question in the affirmative.
{¶ 47} A structural error, according to Johnson v. United States (1997),
{¶ 48} In Johnson,
{¶ 49} Importantly, we recently explained in State v. Payne,
A Defective Indictment Does Not Constitute Structural Error
{¶ 50} The majority correctly concludes that Colon’s indictment was constitutionally defective because it omitted a necessary element of the charged offense. See Almendarez-Torres v. United States (1998),
{¶ 51} The majority asserts that the defect in Colon’s indictment led to the following constitutional violations during his trial: (1) “the indictment * * * did not include all the elements of the offense charged,” (2) “the defendant [was] unaware of the elements of the crime with which he was charged,” (3) “the [trial] court failed to include the required mens rea for the offense” in the jury instructions, and (4) the prosecutor implied during closing argument that there is no mens rea element. The first and second of these, however, are not additional errors; rather, they merely repeat the reasons for concluding that Colon’s indictment was constitutionally defective, an issue that is not disputed here. Moreover, the last two are confined to parts of the proceedings that occurred after the presentation of evidence. In short, the majority fails to explain how the defective indictment “infect[ed] the entire trial process” (emphasis added), Brecht,
{¶ 52} In Neder,
{¶ 54} Moreover, the majority’s holding in this case contradicts our decisions in numerous other cases in which we applied the plain-error doctrine when a defendant failed to object in the trial court to a defective indictment. For example, in State v. Carter (2000),
Conclusion
{¶ 55} In State v. Perry,
{¶ 56} In concluding that a structural error occurs when an indictment omits an element of the offense charged, the majority authorizes defendants to treat the defect as a trump card in that, upon the jury’s returning a guilty verdict, it can be
{¶ 57} For these reasons, it is my view that the defect in Colon’s indictment is not structural in nature, and by failing to object at a time when it could have been corrected, Colon forfeited all but plain error related to that defect. Accordingly, I would affirm the judgment of the court of appeals and answer the certified question in the affirmative.
Lundberg Stratton, J., concurs in the foregoing opinion.
Dissenting Opinion
dissenting.
{¶ 58} Although I agree that in charging appellant with robbery under
The Indictment
{¶ 59} The majority concludes that appellant’s constitutional rights were violated in this case. Section 10, Article I of the Ohio Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Recently, we explained that “[t]he purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.” State v. Buehner,
{¶ 60} The form that the indictment is to take is explained in
{¶ 61} In Buehner, we held that an indictment that tracked the language of the charged offense but did not include each element of the predicate offense still provided the defendant with adequate notice of the charges against him.
{¶ 62} Adding the word “recklessly” to the indictment simply would have notified appellant that the state was required to prove beyond a reasonable doubt the default level of mens rea.
{¶ 63} In State v. Wharf (1999),
{¶ 64} Nevertheless, in spite of arguments that might have been made, the state accepts the proposition that appellant’s indictment is defective for lack of a mens rea element. Since the state does not dispute that there is a defect in the indictment, the issue remaining is whether appellant’s failure to raise the issue in the trial court results in a waiver. I accept the state’s view that our criminal rules and precedent require this court to hold that if a defendant fails to raise the issue at the trial level, a defendant may succeed on appeal only by establishing plain error.
Waiver Applies Pursuant to
{¶ 65} The court of appeals relied on
{¶ 66} We have consistently found that failure to timely object to a defect in an indictment constitutes a waiver of the issues involved. This is true even in capital cases. In State v. Joseph (1995),
{¶ 67} In State v. Carter (2000),
{¶ 68} Furthermore,
Plain Error Applies
{¶ 70} The test for plain error is stringent. A party claiming plain error must show that (1) an error occurred, (2) the error was obvious, and (3) the error affected the outcome of the trial. See State v. Barnes (2002),
{¶ 71} The burden of demonstrating plain error is on the party asserting it. See, e.g., State v. Jester (1987),
{¶ 72} When a manifest miscarriage of justice occurs, it may be corrected through the trial court’s granting of a new trial. The majority does not, however, mention the statute that prevents the granting of new trials and the setting aside of verdicts for certain errors.
{¶ 73} “No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
{¶ 74} “(A) An inaccuracy or imperfection in the indictment, * :|! * provided that the charge is sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him.”
{¶ 75} Subsection (E) provides that a new trial should not be granted for “[a]ny other cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”
{¶ 76} Appellant has not shown that he was prejudiced in the defense of his case or that he would have proceeded differently had this error been corrected. Indeed, had the error been discovered, it would have been properly subject to
The Error in the Indictment Is Not Structural
{¶ 77} Although appellant did not challenge his indictment until his appeal, the majority, after first concluding that appellant was never properly charged with a crime, decides that the missing element of recklessness made the indictment unconstitutional and caused structural error. I cannot agree.
{¶ 78} The majority cites State v. Perry,
{¶ 79} In State v. Payne,
{¶ 80} What are the significant errors in this jury trial, according to the majority? First, appellant has been called to answer for a charge on which the grand jury did not indict him. Second, even though the indictment tracked the
{¶ 81} These conclusions are incorrect, for although the indictment failed to add the word “recklessly” to the element “inflict, attempt to inflict, or threaten to inflict physical harm on [the victim],” the grand jury considered the essential elements of robbery because the indictment tracks the language of the robbery statute. As we noted in Harris v. State (1932),
{¶ 82} This is also not a case where a defendant was indicted on one crime and convicted of another. Appellant does not show how he would have defended against the charge differently had he known that the state had to prove that he had recklessly inflicted, attempted to inflict, or threatened to inflict physical harm.
{¶ 83} Finally, the majority is not accurate in saying that the state was required to prove that appellant “had been reckless in order to convict him of the offense of robbery.” Majority opinion at ¶ 30. The state was required to show for this element that he recklessly inflicted, attempted to inflict, or threatened to inflict physical harm on the victim. It was unnecessary for the state to indict or prove the higher mental states of purpose or knowledge. As the majority itself notes, recklessness, the “catchall culpable mental state,” is sufficient. The indictment states that he “did * * * inflict, attempt to inflict, or threaten to inflict physical harm” (emphasis added), clearly informing appellant what the state would have had to prove to convict him of robbery.
{¶ 84} The jury heard evidence on every element of the offense of robbery. As the court of appeals noted, “[a] reasonable jury could find that, by throwing Mr. Woodie to the ground and struggling with him, appellant perversely disregarded a known risk that the septuagenarian victim would be injured.” State v. Colon, 8th Dist. No. 87499,
{¶ 85} Moreover, in similar circumstances, the United States Supreme Court has refused to perform a structural-error analysis. In Neder v. United States (1999),
{¶ 86} In my view, the circumstances of this case do not rise to the level of structural error or require an automatic reversal of the conviction.
Conclusion
{¶ 87} Because appellant failed to raise the defect in his indictment as an issue before the trial court, he waived the defect pursuant to
{¶ 88} I would hold that in failing to raise a mens rea defect in his indictment during his proceedings in the trial court, appellant waived his objections pursuant to