Lead Opinion
{¶ 1} Pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25, the Sixth District Court of Appeals certified its judgment in this case as being in conflict with the judgments of the Eighth District Court of Appeals in State v. Briscoe, 8th Dist. No. 89979,
{¶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 codefen-dant, 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 R.C. 2911.01(A)(3), with firearm specifications, in relation to the two adult victims; one count of aggravated robbery in violation of R.C. 2911.01(A)(3), which was later amended to R.C. 2911.01(A)(1), with a firearm specification; and three counts of felonious assault in violation of R.C. 2903.11(A)(1), with firearm specifications.
{¶ 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, whо had retained new counsel, testified on direct and cross-examination. The trial court denied the motion to withdraw the plea and sentenced him to 11 years.
{¶ 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} 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.” Crim.R. 7(B) explains the structure and sufficiency requirements of an indictment: “The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.”
{¶ 9} When the offense does not track the language of the statute, Crim.R. 7(D) addresses amendments to criminal indictments: “The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substаnce, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.” We have held that “[a]n indictment, which does not contain all the essential elements of an offense, may be amended to include the omitted element, if the name or the identity of the crime is not changed, and the accused has not been misled or prejudiced by the omission of such element from the indictment. (Crim.R. 7[D], construed and applied.)” State v. O'Brien (1987),
{¶ 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 herself from any future proseсutions for the same incident.” State v. Buehner,
{¶ 12} In Buehner, the defendant was charged with ethnic intimidation under R.C. 2927.12(A), an element of which is the commission of a predicate offense (“No person shall violate [R.C.] 2903.21, 2903.22, 2909.06, or 2917.21 * * * by reason of the race, color, religion, or national origin of another person or group of persons”). The indictment tracked the language of the statute and identified by statute number which of the several predicate offenses was being charged. We rejected the argument that the indictment was defective for failing to list the elements of the predicate offense, concluding that it is the predicate offense itself and not the elements of the predicate offense that is an essential element of the charged offense. Therefore, the indictment provided the defendant with adequate notice of the charge against him. Id. at ¶ 12.
{¶ 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} R.C. 2911.01 defines the elements of aggravated robbery as follows:
{¶ 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 R.C. 2901.21(B), which provides guidance in determining the rеquirements for criminal liability when a statute defining an offense does not provide a mental state.
{¶ 20} R.C. 2901.21(B) provides:
{¶ 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 R.C. 2901.21(B), recklessness is the culpable mental stаte required to commit the crime of aggravated robbery as defined in R.C. 2911.01(A)(3), we first consider the words of the statute to determine legislative intent. Provident Bank v. Wood (1973),
{¶ 23} Horner argues that recklessness is the requisite culpable mental state for aggravated robbery under R.C. 2911.01(A)(3). The state contends that no specific mental state must be charged or proven. Under R.C. 2901.21(B), recklessness is sufficient culpability to commit an offense if two factors are present. First, the section of the Revised Code defining the offense must not specify any degrеe of culpability. Second, the section must not plainly indicate a purpose to impose strict liability.
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),
{¶ 25} R.C. 2915.02 provides:
{¶ 26} “(A) No person shall do any of the following:
{¶ 27} “(1) Engage in bookmaking, оr 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 * * *.’ R.C. 2901.21(B).” (Emphasis sic.) Id.,
{¶ 29} Further, Wac argued that recklessness was an element of operating a gambling house because R.C. 2915.03(A)(1) did not specify a culpable mental state for using or occupying premises for gambling. The statute provides:
{¶ 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 * * *.’ R.C. 2901.21(B).” Wac,
{¶ 34} Thus, in R.C. 2915.02 (bookmaking), we concluded that when a single subsection of a statute with two discrete clauses contains one clause that expresses a culpable mental state and another discrete clause that does not, the General Assembly has plainly indicated a purpose to impose strict criminal liability under R.C. 2901.21(B). In addition, in R.C. 2915.03 (gambling house), which involved two separate divisions of the statute rather than a single subsection with two discrete clauses, we concluded that the inclusion of a culpable mental state in one division and the omission of a culpаble mental state from another division means that the General Assembly plainly indicated a purpose to impose strict criminal liability for the second division.
{¶ 36} “(A) No person, with knowledge of the character of the material or performance involved, 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 R.C. 2901.21(B) supplied the culpable mental state of recklessness for the element of bringing child pornography into the state, we noted that “we need to determine whether the entire section includes a mental element, not just whether division (A)(6) includes such an element.” (Emphasis sic.) Maxwell,
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 R.C. 2911.02(A)(1) does not require proof of a mens rea. State v. Wharf (1999),
{¶ 41} In Colon I, we considered the culpable mental state for the offense of robbery in violation of R.C. 2911.02(A)(2), i.e., physical-harm robbery. Again, this court did not apply the analysis used in Wac and Maxwell. However, neither did Colon I overrule Wac or Maxwell. Rather, we simply concluded in Colon I that while the statute did not specify a particular degree of culpability for the physical-harm element, its language does not plainly indicate that strict liability is
{¶ 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,
{¶ 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 defective 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,
{¶ 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,
{¶ 46} Further, we hold that failure to timely object tо a defect in an indictment constitutes a waiver of the error. Crim.R. 12(C)(2) (objections to defect in indictment must be raised before trial). Any claim of error in the indictment in such a case is limited to a plain-error review on appeal. State v. Frazier (1995),
{¶ 47} It remains to be determined what mental state, if any, applies to aggravated robbery as described in R.C. 2911.01(A)(3). As stated previously, R.C. 2901.21(B) supplies the mental state of recklessness only when two conditions are present: (1) no mental state is specified in the relevant statute and (2) the statute does not plainly indicate a purpose to impose strict liаbility.
{¶ 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 existence or nonexistence of specified mental states elsewhere in R.C. 2911.01 will inform our analysis of whether (A)(3) was meant to be a strict-liability offense.
{¶ 49} R.C. 2911.01(A) includes the element of attempting or committing a theft offense, which incorporates all the elements of theft, including its mental state. However, that mental state is applicable to the theft aspect in division (A) only, and its incorporation into division (A) does not provide a mental state for the рhysical-harm element described in subsection (A)(3). See Maxwell,
{¶ 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 attеmpt to deprive a law enforcement officer of a deadly 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 R.C. 2911.01(A)(1) plainly indicates a purpose to impose strict liability. Lester,
{¶ 52} Accordingly, under the Wac/Maxwell approach to applying R.C. 2901.21(B), in defining the offense of serious-physical-harm aggravated robbery, R.C. 2911.01(A)(3) “plainly indicates a purpose to impose strict liability.” It is clear that the General Assembly intended R.C. 2911.01(A)(3) to hold persons responsible for aggravated robbery because of the heightened potential for even accidental physical harm that results from the commission of the robbery.
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 а mens rea element in one discrete clause, subsection, or division of a statute but not in another discrete clause, subsection, or division of that statute, courts must apply the analysis in State v. Wac (1981),
{¶ 55} Thus,' because the language of Horner’s indictment charging him with aggravated robbery tracked the aggravated-robbery statutе, R.C. 2911.01(A)(3), and because the statute does not require any further mens rea requirement beyond that encompassed in the theft portion of the statute, the grand jury considered the essential elements of aggravated robbery. Accordingly, we uphold the appellate court’s determinations that the indictment was not defective and that there was no plain error, and we affirm the judgment of the court of appeals.
Judgment affirmed.
Notes
. In view of our resolution of the certified question, we dismiss the appeal as having been improvidently accepted.
Concurrence Opinion
concurring in part and dissenting in part.
{¶ 56} I concur in the judgment of the court and in thе first and third syllabus paragraphs of the majority’s opinion; however, I dissent from the majority’s
{¶ 57} R.C. 2901.21(B) establishes the mens rea of recklessness as the default standard of liability when no mens rea is specified: “When the section [defining an offense] neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.” (Emphasis added.)
{¶ 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 R.C. 2911.01(A)(3) that makes it a crime to merely inflict or attеmpt to inflict serious physical harm, as opposed to requiring a purpose or intent to injure, the General Assembly * * * has indicated its purpose to impose strict liability.” Majority opinion at ¶ 51. In other words, the majority rewrites the statute to say that unless there is “specific intent,” the default standard is strict liability, and no mental state need be proven. But to “inflict or attempt to inflict serious physical harm,” as that phrase is used in R.C. 2911.01(A)(3), implies action on the part of a defendant that requires a mental state of some degree, unless it has been clearly dispensed with. The General Assembly explicitly provides in R.C. 2901.21(B) that recklessness is the default mens rea, unless there is a clear indication that strict liability is intended.
{¶ 59} In concluding that R.C. 2911.01(A)(3) plainly indicates an intent to impose strict liability, the majority purports to follow the approach outlined in State v. Wac (1981),
{¶ 60} The first two divisions in R.C. 2911.01, however, relate to two different courses of conduct: (A) refers to attempting, committing, or fleeing after a theft offense, while (B) concerns removing a deadly weapon from a law-enforcement officer. Thе majority’s reading ignores the plain language of R.C. 2901.21(B), which states that we are to analyze the language defining an offense to determine whether that definition plainly indicates a purpose to impose strict liability for a
{¶ 61} This method of analysis is consistent with Wac and Maxwell. In those cases, we examined the definitions of each offense, just as R.C. 2901.21(B) requires, to determine whether the General Assembly plainly indicated a purpose to impose strict liability for the specific conduct involved. In analyzing R.C. 2915.02 in Wac, we looked only at the language in R.C. 2915.02(A)(1), which criminalizes bookmaking. Id.,
{¶ 62} Similarly, in Maxwell, we examined only the language in R.C. 2907.321(A)(6), which defined the offense of bringing child pornogrаphy into the state. We ignored the other offenses defined in R.C. 2907.321, such as creating child pornography (R.C. 2907.321(A)(1)) or buying, purchasing, possessing, or controlling child pornography (R.C. 2907.321(A)(5)).
{¶ 63} The mere lack of a mental state in R.C. 2911.01(A)(3) does not plainly indicate to me a purpose to impose strict criminal liability for the conduct of inflicting or attempting to inflict serious physical harm on another during the attempt or commission of a theft offense. At the very least, the state should be charged with proving that the conduct was reckless. “A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a knotvn risk that such circumstances are likely to exist.” (Emphasis added.) R.C. 2901.22(C).
{¶ 64} We explained how the General Assembly shows an intent to dispense with a mens rea and impose strict liability in State v. Lozier,
{¶ 65} The majority also relies upon State v. Lester,
{¶ 66} Furthermore, Lester contradicts both Lozier and R.C. 2901.21(B) by holding that the lack of a mens rea in R.C. 2911.01(A)(1) plainly indicates a purpose to impose strict liability. See Lester,
{¶ 67} Since the General Assembly has nоt specified a degree of culpability in its definition of the offense of inflicting or attempting 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 R.C. 2911.01(A)(3). Thus, I respectfully dissent with respect to the portion of the majority opinion that concludes that aggravated robbery in violation of R.C. 2911.01(A)(3) is a strict-liability offense.
{¶ 68} Because the indictment in this case tracked the language of R.C. 2911.01(A)(3), which fails to specify a mental state, the indictment is not defective for failure to identify a mental state. I would hold that Horner was on notice that the default mens rea of recklessness applied under R.C. 2901.21(B) and would affirm the judgment of the court of appeals that the indictment was not defective. I therefore concur only in the judgment of the court and in the first and third syllabus paragraphs of the majority opinion.
. R.C. 2925.01(P) was amended shortly after Lozier was decided to add language similar to that in division (BB), making it explicit that the offender need not be aware that he is near a school to be guilty of the offense.
Dissenting Opinion
dissenting.
{¶ 69} I agree with Justice Lanzinger’s conclusion that R.C. 2901.21(B) imposes a mens rea of recklessness on R.C. 2911.01(A)(3). Had the majority so concluded, instead of determining that R.C. 2911.01(A)(3) is a strict-liability offense, the majority could have properly weighed in on the continued viability of this court’s decisions in State v. Colon,
{¶ 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 R.C. 2901.21(B) imposed a mens rea of recklessness and the indictment failed to set forth that mens rea. Here, the majority overrules Colon I and Colon II even before determining whether they are applicable. You can overrule the Colon cases or you can find strict liability for an R.C. 2911.01(A)(3) offense, but you cannot do both in this case.