THE STATE OF OHIO, APPELLEE, v. HORNER, APPELLANT.
Nos. 2009-0079 and 2009-0311
SUPREME COURT OF OHIO
August 27, 2010
126 Ohio St.3d 466, 2010-Ohio-3830
Submitted April 20, 2010
{¶1} Pursuant to
{¶2} We hold that neither of the two Colon cases are applicable and the indictment was not defective. Accordingly, we affirm the judgment of the court of appeals.
I. Facts
{¶3} In March 2006, Gregory Horner, defendant-appellant, and his codefendant, James Hahn, met two Michigan businessmen, Robert Peck and Tim Mulroy, and Robert‘s son, Kyle, on the pretense of selling Peck and Mulroy a muscle car. Horner and Hahn beat the victims and robbed them of cash.
{¶4} A grand jury indicted Horner on six counts relating to his crimes, including two counts of aggravated robbery, in violation of
{¶5} Horner pleaded no contest to five counts. In exchange, the state nolled one count of felonious assault and recommended a maximum sentence of ten years. Horner‘s codefendant was sentenced to 12 years rather than the state-recommended sentence of ten years. Horner then orally requested leave to obtain new counsel and to file a motion to withdraw his no-contest plea. The trial court held a hearing on the motion to withdraw his plea in May 2007. Horner, who had retained new counsel, testified on direct and cross-examinаtion. The trial court denied the motion to withdraw the plea and sentenced him to 11 years.
{¶6} On appeal, Horner argued for the first time that the two counts of aggravated robbery in the indictment were insufficient pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (”Colon I“), and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (”Colon II“), because a culpable mental state was not included in the indictment. The Sixth District Court of Appeals disagreed, holding that Colon I and Colon II apply only to cases in which a defendant has been indicted for robbery pursuant to
{¶7} The Sixth District certified a conflict over the applicability of Colon I and Colon II, and recognizing the conflict, we accepted jurisdiction.
II. Law and Analysis
A. The Indictment
{¶8}
{¶9} When the offense does not track the language of the statute,
{¶10} The purpose of a grand jury indictment has always been to give notice to the accused: “[A] criminal offense must be charged with reasonable certainty in the indictment so as to apprise the defendant of that which he may expect to
{¶11} Expanding on the idea of notice to the accused, we have held 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 hеrself from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks (1962), 173 Ohio St. 415, 417, 20 O.O.2d 43, 183 N.E.2d 373, and State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781. In Buehner, we held that an indictment that tracked the language of the charged offense and identified a predicate offense by statute number but did not include each element of the predicate offense still provided the defendant with adequate notice of the charges against him. Id. at syllabus.
{¶12} In Buehner, the defendant was charged with ethnic intimidation under
{¶13} Here, the two counts of the indictment in question read: “[I]n attempting or committing a theft offense as defined in § 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, [Horner] did inflict, or attempt to inflict, serious physical harm on another, in violation of § 2911.01(A)(3) OF THE OHIO REVISED CODE, AGGRAVATED ROBBERY, BEING A FELONY OF THE FIRST DEGREE.”
{¶14}
{¶15} “(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
{¶16} “* * *
{¶17} “(3) Inflict, or attempt to inflict, serious physical harm on another.”
{¶18} As required by Buehner, the language of the indictment tracked the language of the statute. However, Horner argues that this court‘s post-Buehner
B. Absence of a Culpable Mental State and the Role of R.C. 2901.21(B)
{¶19} As can be seen above, the aggravated-robbery statute does not expressly state a mental state for aggravated robbery when it involves inflicting or attempting to inflict serious physical harm on another during the commission of the robbery. Consequently, we must turn to
{¶20}
{¶21} “When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.” (Emphasis added.)
{¶22} In deciding whether, pursuant to
{¶23} Horner argues that recklessness is the requisite culpable mental state for aggravated robbery under
1. Analysis of R.C. 2901.21(B) in State v. Wac and State v. Maxwell
{¶24} Our line of cases conducting this analysis begins with the seminal case of State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, where we found plain indications that the General Assembly meant to impose strict criminal liability for the crimes of bookmaking in violation of
{¶25}
{¶26} “(A) No person shall do any of the following:
{¶27} “(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking.”
{¶28} We held that “[t]he General Assembly included the culpable mental state of ‘knowingly’ as an element of facilitating bookmaking. Nevertheless, there is no such requirement in the same subsection for bookmaking per se. This exclusion ‘plainly indicates a purpose to impose strict criminal liability * * *,’
{¶29} Further, Wac argued that recklessness was an element of operating a gambling house because
{¶30} “(A) No person, being the owner or lessee, or having custody, control, or supervision of premises, shall:
{¶31} “(1) Use or occupy such premises for gambling in violation of section 2915.02 of the Revised Code;
{¶32} “(2) Recklessly permit such premises to be used or occupied for gambling in violation of section 2915.02 of the Revised Code.”
{¶33} With regard to operating a gambling house, we held that “[t]he General Assembly included recklessness as an element of permitting gambling on one‘s premises in subsection (2). Subsection (1), however, does not contain a comparable standard. This exclusion ‘plainly indicates a purpose to impose strict criminal liability * * *.’
{¶34} Thus, in
{¶35} Continuing the analysis from State v. Wac, in State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, this court considered
{¶36} “(A) No person, with knowledge of the character of the material or performance invоlved, shall do any of the following:
{¶37} “* * *
{¶38} “(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers.”
{¶39} In examining whether
2. Robbery, Aggravated Robbery, and State v. Colon
{¶40} Turning now to robbery and aggravated robbery, we have previously held that the deadly-weapon element of robbery in
{¶41} In Colon I, we considered the culpable mental state for the offense of robbery in violation of
{¶42} We went on to hold that “[w]hen 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,” id. at syllabus, and that instead, a structural error analysis is appropriate, id. at ¶ 23.
{¶43} Upon reconsideration in Colon II, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, we limited Colon I, holding that it was prospective only, id. at ¶ 3, and that structural-error analysis is not appropriate unless there are multiple errors throughout the trial that are inextricably linked to the defective indictment, id. at ¶ 7, and that the syllabus in Colon I was confined to the facts of that case, id. at ¶ 8.
{¶44} Still, the effect of our Colon holdings meant that for the first time, an indictment that charged an offense in the exact language of the Revised Code could still be defеctive when the statute itself failed to specify a culpable mental state. As a result, Colon I and Colon II have been called “a boon to defendants, a headache to appellate courts, and a nightmare to prosecutors.” State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, ¶ 35 (Lanzinger, J., concurring in judgment only).
{¶45} Today we recognize the confusion created by Colon I and II and hold that when an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute describing the offense, the indictment provides the defendant with adequate notice of the charges against him and is, therefore, not defective. See State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162 (an indictment that does not identify the elements of a predicate offense provides adequate notice by citing the statute defining the predicate offense). Consequently, we respond to the certified question by holding that Colon I, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, and Colon II, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, are inapplicable to the offense of aggravated robbery in violation of
{¶46} Further, we hold that failure to timely object to a defect in an indictment constitutes a waiver of the error.
C. Application of R.C. 2901.21(B) to 2911.01(A)(3)
{¶47} It remains to be determined what mental state, if any, applies to aggravated robbery as described in
{¶48} We reaffirm our Wac/Maxwell analysis. Therefore, we need to examine the entire section—not just division (A)(3)—for references to a mental state. This existenсe or nonexistence of specified mental states elsewhere in
{¶49}
{¶50} Moreover, division (B) of the aggravated-robbery statute specifies the culpable mental state of “knowingly” (“No person, without privilege to do so, shall knowingly remove or attempt to remove a deadly weapon from the person of a law enforcement officer, or shall knowingly deprive or attempt to deprive a law enforcement officer of a dеadly weapon * * *“).
{¶51} Additionally, this court has already held that subsection (1) of division (A), which also does not specify a mental element, is a strict-liability offense, based on the court‘s conclusion that
{¶52} Accordingly, under the Wac/Maxwell approach to applying
{¶53} The section defining the offense—
III. Conclusion
{¶54} For all of the reasons expressed above, we hold that an indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state. We further hold that when the General Assembly includes a mens rea element in one discrete clause, subsection, or division of a statute but not in another discrete clаuse, subsection, or division of that statute, courts must apply the analysis in State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, and State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, to determine the mental state where none is specified. We hold that by failing to timely object to a defect in an indictment, a defendant waives all but plain error on appeal. Because Colon I represents a departure from these principles, it is overruled.
{¶55} Thus, because the language of Horner‘s indictment charging him with aggravated robbery tracked the aggravated-robbery statute,
Judgment affirmed.
O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
LANZINGER, J., concurs in part and dissents in part.
PFEIFER, J., dissents.
BROWN, C.J., not participating.
LANZINGER, J., concurring in part and dissenting in part.
{¶56} I concur in the judgment of the court and in the first and third syllabus paragraphs of the majority‘s opinion; however, I dissent from the majority‘s
{¶57}
{¶58} The majority has mistakenly held that the lack of mens rea alone is sufficient to indicate an intention to impose strict liability, stating, “By choosing language in
{¶59} In concluding that
{¶60} The first two divisions in
{¶61} This method of analysis is consistent with Wac and Maxwell. In those cases, we examined the definitions of each offense, just as
{¶62} Similarly, in Maxwell, we examined only the language in
{¶63} The mere lack of a mental state in
{¶64} We explained how the General Assembly shows an intent to dispense with a mens rea and impose strict liability in State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770. Under
{¶65} The majority also relies upon State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, and State v. Wharf (1999), 86 Ohio St.3d 375, 715 N.E.2d 172, as support for its conclusion that
{¶66} Furthermore, Lester contradicts both Lozier and
{¶67} Since the General Assembly has not specified a degree of culpability in its definition of the offense of inflicting or attеmpting to inflict serious physical harm on another during the attempt or commission of a theft offense, I would take the General Assembly at its word and hold that the default mens rea of recklessness is applicable to
PFEIFER, J., dissenting.
{¶69} I agree with Justice Lanzinger‘s conclusion that
{¶70} Had the majority found recklessness as the operative mens rea here, then Colon I and Colon II would have been fair game, since Colon I and Colon II involved a situation in which
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
John F. Potts, for appellant.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecutor.
Timothy Young, Ohio Public Defender, and Spencer Cahoon, Assistant Public Defender, urging reversal for amicus curiae Ohio Public Defender.