STATE OF OHIO v. KEVIN D. TOLLIVER
Appellate Case No. 24716
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 18, 2013
2013-Ohio-115
Trial Court Case No. 2010-CR-2996 (Criminal Appeal from Common Pleas Court)
CHARLES M. BLUE, Atty. Reg. #0074329, Murr, Compton, Claypoole & Macbeth, 401 East Stroop Road, Kettering, Ohio 45429-2829 Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Kevin Darvon Tolliver appeals from his conviction and
I. Tolliver Leaves a Dollar General Store with Stolen Merchandise
{¶ 2} Jasmine Jordan, an assistant manager at a Dollar General store, saw Tolliver enter the store empty-handed, one day in September, 2010. Later, she saw Tolliver in a confrontation with Sean Fields, a store employee. Tolliver had Dollar General bags full of t-shirts, socks, and underwear, which Fields was asking him to give back. Tolliver said that he had come in with the merchandise, and was attempting to return it.
{¶ 3} Jordan told Tolliver that she would take the merchandise and do the return, intending thereby to regain possession of the merchandise. Tolliver said he did not have his receipt with him, and began to leave the store with the merchandise. Jordan described what happened next as follows:
A. I am still standing, you know, face to face and I do – I put my arms out like this trying to get him to stop walking. And I’m pushed out of the way. And I push him back. And he raises his fist back like he’s going to punch me in my face.
Q. Okay. Let me back up a little bit. When you put your arms out, what are you doing? Why did you put your arms out like that?
A. Because I was trying to get him to stop and talk.
Q. Okay. And why was that?
A. So I could try and get the stuff back. I was being calm and I was trying to get him to calm down. And, you know, and talk.
Q. And again, is this Defendant saying anything to you at that time?
A. That he’s not giving the merchandise back. He’s not going to give it to me.
Q. And when you indicated that you were pushed out of the way, could you describe that push?
A. Yes. I was standing in the doorway. And he shoved me. I did go back a little, but he didn’t – it wasn’t – it was kind of a powerful push, it was enough to move me out of the way.
Q. Okay. Could you describe what Defendant used to push you?
A. His hands.
Q. One hand or two hands?
A. Two hands.
Q. You said it was enough to move you out of the way. What does that mean?
* * *
THE WITNESS: When he pushed me I was standing in the doorway. And he knocked me back into the vestibule.
{¶ 4} Jordan clarified that she was standing in the inner doorway, between the vestibule and the interior of the store, when she was shoved into the vestibule. Jordan
Q. What happens after the push?
A. I push him back.
Q. Which direction is the Defendant facing when you push him?
A. He is facing towards the door.
* * *
Q. And what happens at that point when you push him back?
A. His fist goes back and it looked as if he was getting ready to punch me in my face. And Sean Fields comes in between and pushes us both back.
{¶ 5} Tolliver made his way out of the store with the merchandise.
{¶ 6} Tolliver testified in his own defense. He admitted that he was shoplifting, and that he told Fields and Jordan, falsely, that he was there to return the merchandise for credit. He initially described the confrontation as follows:
I’m like, “You know what, ma’am, I’m all right. I – you know, I go get my receipt.” I’m trying to go. So as I’m walking, she jumps in front of [sic] and we make contact. And so when we make the contact, she steps backs [sic] and, you know, push me. So I had to – you know, I’m like, man, what’s – you know, I come back like this off of the push, and when they fall back I leave.
And so I’m like – I’m like at that point I just – I’m kind of like wired up, like all – because of the extra static. She just offered me, you know, exchange for the stuff and I was declined it. So I felt like I was free to go, you know. And as a result of that, all the other stuff came into play. That’s – you know, and like I was saying in
my opening statement, that a crime had been committed but not the crime in question based on how that was going on. I wasn’t in there to cause no extra friction and stuff. If they would have ask – see, with the bag – took the bags or whatever, it would have just been that, you know. But that’s pretty much. BY MR. CLOUD [defense counsel]:
Q. So when they told you you were free to go –
A. Yes, sir.
Q. – and they tried to stop you –
A. They – they – in actual – being honest, they never told me I was free to go, per se. They just offered me to in-store credit. I declined it and I said, “Well, I go get my receipt,” I’m just trying to leave with this – you know, go on about my business. I said – when I asked – she said, “I’ll give you in-store credit,” I said, “No, I’ll go get my receipt.”
She said, “Well, hold on” – because I wanted to get cash. She said, “Hold on, I give you cash,” trying to convince me to take cash.
Q. Now when –
A. I’m like, “Ma’am, I” – you know, I don’t got my receipt. I’m trying to go ahead and go, you know, and she’s –
* * *
Q. Why do you say you didn’t use force?
A. Because I didn’t. I was just trying to leave. I never was in nor [sic] forceful manner. I wasn’t like when they pulled up on me – when they asked me, I
wasn’t like freak out and try to bust out of the store. You know, I didn’t do that. You know, I said what I said, and they gave me the response they gave me. It’s like it was all right you know, but they – but the action of standing up and getting in front of me was like – like – it’s like, would the fish take the bait if he knew there was a hook on it. You know what I mean? It was like – you know what I’m saying? I – I didn’t – I knew I – you know, this was it, man. I was just trying to leave the store, man. I wasn’t trying – I didn’t – you know, didn’t have no intentions of using no force. I didn’t recklessly use force. I was trying to leave. They came onto me like, you know – and trying to force me to take the cash.
{¶ 7} On cross-examination, Tolliver testified that his arm motion, which Jordan had described as his cocking his fist, was a defensive reaction to his having been pushed, and was not intended as a threat.
II. The Course of Proceedings
{¶ 8} Tolliver was charged by indictment with Robbery (use of force), in violation of
{¶ 9} At trial, Tolliver admitted to having committed the theft of the merchandise, but denied that he intended to use or threaten force against Jordan, or that he was reckless in
{¶ 10} In its closing argument, the State alluded to the lack of a requirement of a culpable mental state, at least concerning an intent to cause injury or harm:
And basically what you have here is the Defendant, when he is trying to leave, uses that force. He uses that compulsion. He moves her out of the way. He’s trying to get away. He – you’ll notice nowhere in the instructions does it say he had to have a purpose to hurt her or to cause her injury at all. It just – he had to have used any form of compulsion or constraint, and that’s what he did when he put on [sic] his hands on her to move her out of the way so he could complete the theft. So he used force against her right when he pushed her.
{¶ 11} The State claimed in closing argument that Tolliver admitted, ” ‘Yeah, when I cocked my arm back it was to threaten her,’ because he said, ‘Well, I felt threatened.’ ” We have reviewed the transcript, however, and Tolliver never admitted that he had a purpose to threaten Jordan, despite the State’s attempts to get him to so admit.
{¶ 12} The State then argued to the jury:
* * * . And that’s because there isn’t any kind of – you don’t have to knowingly do it. It’s – frankly, if you do this at all during a theft offense, use any compulsion or threat of violence that’s sufficient under the law of Ohio to – to be a robbery. Whether you think that’s right or not, that’s what the law is. That’s something that the state of the law is. For whatever reason, that’s what the law is.
{¶ 13} The jury found Tolliver guilty as charged. Tolliver was sentenced to four years, to be served consecutively with a sentence in another case. He was also ordered to pay $100 in restitution to Dollar General.
{¶ 14} From his conviction and sentence, Tolliver appeals.
III. Recklessness Is the Mens Rea Applicable to the Element of the Use or Threatened Use of Force in a Prosecution for Robbery Under R.C. 2911.02(A)(3)
{¶ 15} Tolliver’s sole assignment of error is as follows:
APPELLANT WAS PREJUDICED BY THE OMISSION OF AN ELEMENT OF THE CHARGED OFFENSE IN THE JURY INSTRUCTIONS, THEREBY DENYING THE APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 [sic], SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.
{¶ 16} Tolliver relies upon 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), for the proposition that recklessness is the requisite mens rea for the element of the use or threatened use of force in a prosecution for Robbery. The conviction under review in Colon I was for Robbery in violation of
{¶ 17} Colon I was reconsidered in Colon II. In reconsideration, the Supreme Court of Ohio held that in a defective-indictment case, unless there are “multiple errors that are inextricably linked to the flawed indictment,” as occurred in that case, the proper analysis is a plain-error analysis, rather than a structural-error analysis, when the defendant has not challenged the indictment in the trial court. Colon II, at ¶ 7-8. The Supreme Court cited as the multiple errors justifying a structural-error analysis in that case the additional facts that the State had not argued that the defendant’s conduct was reckless, but treated Robbery as a strict-liability offense, and that the trial court did not include recklessness as an element of the crime in its instructions to the jury. Id., at ¶ 6.
{¶ 18} The State notes that in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, a decision post-dating appellate cases cited by Tolliver, the Supreme Court of Ohio overruled Colon I and Colon II. But Horner, at ¶ 45, only overruled that aspect of those cases that held that an indictment tracking the language of the criminal statute describing the offense, but lacking a mens rea element of the crime, is defective:
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). * * * . In fact, Colon I is overruled, and Colon II is overruled to the extent that it holds that such an indictment is defective.
{¶ 19} Curiously, as noted by Justice Pfeiffer in his dissent in Horner, it was unnecessary in that case to reach the question of whether an indictment that omits a mens rea element, but tracks the language of the statute, is defective. In Horner, the convictions under review were for Aggravated Robbery, in violation of
{¶ 20} The net result of State v. Horner, supra, leaves the case before us in a legal vacuum. Horner involved a conviction for Aggravated Robbery, not Robbery, and it did not overrule that part of Colon I holding that recklessness is the mens rea required for the
{¶ 21} That the General Assembly regards a Robbery under
{¶ 22} The use, or the threat of immediate use, of force against another – the additional element under
{¶ 23} The risk of physical harm is a significant part of the Horner analysis:
Accordingly, under the [State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428]/[State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242] 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 intendedR.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.The section defining the offense –
R.C. 2911.01 – specifies “knowingly” as a mens rea for the crime defined in division (B) of that statute, andR.C. 2911.01(A)(3) includes as an element an underlying theft offense, which itself includes a mens rea. Additionally,R.C. 2911.01(A)(3) , defining the offense of serious-physical-harm aggravated robbery, plainly indicates a purpose to impose strict liability. Accordingly,R.C. 2911.01(A)(3) does not require proof of a mental state, and an indictment that does not identify a mental state is not defective. State v. Horner, supra, at ¶ 52-53 (emphasis added).
{¶ 24} In short, as we understand the rationale in Horner, the General Assembly intends that a person who actually inflicts, or who attempts to inflict, serious physical harm upon another, while committing a Theft offense, should be punished for Aggravated Robbery,
{¶ 25} By contrast, in the case before us, no physical harm to Jordan, or to anyone else, was alleged, nor is there any evidence in the record that anyone suffered physical harm, serious or otherwise. In other words, the dire consequence of the offender’s commission of a Theft offense – serious physical harm, which animated the Supreme Court of Ohio to hold, in Horner, that the offense in that case was a strict-liability offense, is missing in the case before us.
{¶ 26} The issue is close. We hold that the mens rea applicable to the additional element of Robbery under
IV. The Failure to Submit an Element of the Offense to the Jury Constitutes Plain Error
{¶ 27} Tolliver acknowledges that he did not request that the jury be instructed on the element of recklessness, did not object to the failure of the trial court’s charge to the jury to include that instruction, and did not object to the State’s argument that it was not required to prove mens rea in connection with the use, or threat of use, of force against another. Therefore, unless the structural-error analysis adopted in Colon I applies, this assignment of error must be analyzed under a plain-error analysis. Because we conclude that the omission of an element of the offense from the instructions to the jury does constitute plain error, we will assume, for purposes of analysis, that a plain-error analysis applies to this issue, not a structural-error analysis.1
{¶ 28} The failure to instruct a jury concerning an essential element of a charged offense is a serious error, since it effectively removes that element of the offense from the jury’s consideration. If the jury is not instructed that it must find the element beyond reasonable doubt to convict, it cannot be presumed from a verdict of guilty that the jury did, in fact, find the essential element beyond reasonable doubt.
{¶ 29} Tolliver cites three cases for the proposition that the failure to instruct a jury concerning an essential element of a criminal offense is always plain error, since it effectively deprives the defendant of his full right to a jury trial: State v. Collins, 88 Ohio App.3d 291, 623 N.E.2d 1269 (2d Dist. 1993); State v. Endicott, 99 Ohio App.3d 688, 694-695, 651 N.E.2d 1024 (6th Dist. 1994); and State v. Stacy, 12th Dist., Butler No. CA2002-03-073, 2003-Ohio-3695, ¶ 7. The State has not cited any authority to the contrary.
{¶ 30} State v. Collins was a decision of this court, but it was overruled in State v. Tolliver, 2d Dist. Montgomery No. 15184, 1996 WL 715438 *5 (Dec. 13, 1996).2 In that case, at *4, we held that even when the plain error asserted is the failure to instruct the jury on an essential element of the offense, a manifest miscarriage of justice must be shown to secure reversal. In that case, the defendant was convicted of Kidnapping, and the jury was never instructed “that an essential element of the charged offense was that [the defendant’s] purpose in removing [the victim] from the place where he was found or restraining him of his liberty was for the purpose of terrorizing him or inflicting serious physical harm upon him.” Id., at *2. We described the facts in that case as follows:
The State presented evidence that [the defendant] conspired with seven teenagers to lure her boyfriend, Brian Denney, into her basement, where they would beat him, tie him up, and cut off his hair. When Denney arrived home from work, he went to the basement, as was his custom, to change clothes. He was struck in the head from behind with a board, and fell to the floor where he was beaten by several of the teenagers and [the defendant]. [The defendant] and one teenager then tied Denney
to a chair, and [the defendant] and at least one of the teenagers beat Denney with pistols. [The defendant] then cut Denney‘s hair. While Denney was in the chair, one of the teenagers pointed a gun at Denney, and it discharged. Afterwards, [the defendant] ordered Denney to leave the house. Denney was treated at Good Samaritan Hospital for injuries inflicted during the incident. He lost a tooth and sustained a basilar skull fracture. When the police searched [the defendant’s] home pursuant to a warrant, they found blood not only on the floor, but high up on the walls of the basement. They also found Denney‘s hair. Id., at *1.
{¶ 31} In concluding that the failure to have instructed the jury on the element of having had the purpose of inflicting serious physical harm upon, or terrorizing, the victim was not a manifest injustice, we noted that the attention of the jury was focused on a different issue, exclusively:
In the case before us, the real point of dispute between the parties was whether [the defendant] was a knowing participant in the brutal attack upon Denney. Although [the defendant] did not testify, her counsel argued in closing that she had no foreknowledge that the teenagers were going to tie Denney to a chair and beat him; the teenagers, on the other hand, testified that she had planned and instigated the assault. The question for the jury was whom to believe.
Because the attention of the jury was never focused on whether [the defendant], assuming that she instigated and planned the assault, had the requisite purpose in doing so, it is unlikely that the jury‘s verdict turned upon the failure to have given the jury this instruction. We cannot, therefore, say that a manifest miscarriage of justice
occurred in this case. Id., at *2-3.
{¶ 32} By contrast, in the case before us, Tolliver, who testified, did focus the attention of the jury on his purpose, and state of mind, generally, during his physical confrontation with Jordan, even going so far, at one point, as testifying that: “I didn’t recklessly use force.” (Emphasis added.) Unlike the defendant in Tolliver, supra, the defendant in the case before us did not claim that he was just a bystander to events involving others.
{¶ 33} We conclude that State v. Tolliver, supra, is distinguishable. While the jury in the case before us might well have found on the evidence in the record that Tolliver recklessly used force, or recklessly threatened the immediate use of force, against Jordan (or even that he had the intent to do so), that element was very much in dispute between the parties. The failure to submit that essential element to the jury worked a manifest injustice upon Tolliver, because it deprived him of his right to have a jury decide that issue beyond reasonable doubt.
{¶ 34} The trial court’s failure to have submitted the issue of recklessness to the jury was plain error. Tolliver’s sole assignment of error is sustained.
V. Conclusion
{¶ 35} Tolliver’s sole assignment of error having been sustained, the judgment of the trial court is Reversed; and this cause is Remanded for further proceedings consistent with this opinion.
DONOVAN, J., concurs.
HALL, J., dissenting:
{¶ 36} Because I believe the use-of-force element in a prosecution for robbery under
{¶ 37} I start with the wording of the statute itself, which does not include recklessness as an element. The robbery statute in question already has two culpable mental states. Robbery, in violation of
{¶ 38} A survey of case law interpreting the various forms of aggravated robbery and robbery reveals that recklessness is not added as an element of those offenses. Aggravated robbery in violation of
{¶ 39} This brings us to the case that first added a reckless mens rea to a robbery statute, State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (”Colon I“). There the court determined that recklessness is an element of robbery in violation of
{¶ 40} A review of other statutory wording, and its analysis or lack thereof, further convinces me that recklessness should not be added as a culpable mental state for the force element of robbery under
{¶ 41} I recognize some courts of appeals have held that recklessness is a necessary
{¶ 42} My conclusion is that robbery by force, prohibited by
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