And There Is No Plain Indication of Intent to Impose Strict Liability
State v. Johnson, Slip Opinion No. 2010-Ohio-6301.
Cuyahoga App. No. 91701, 2009-Ohio-3101. Judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Brown, C.J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6301.pdf
(Dec. 28, 2010) The Supreme Court of Ohio held today that R.C. 2901.21(B), a provision of state law that supplies the default culpable mental state (mens rea) of “recklessly” to a criminal offense when the statute defining that offense does not state a required mens rea and does not plainly indicate a purpose to impose strict liability, applies only when there is a complete absence of a mens rea in the Revised Code section defining that offense.
Applying that standard to a Cuyahoga County case, the Court held that a conviction for the offense of having a weapon under disability as defined by R.C. 2923.13(A)(3) does not require proof of a culpable mental state for the element that a defendant was under indictment for or had previously been convicted of a drug-related offense.
The Court’s 6-1 decision, which reversed a ruling by the 8th District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
In this case, Steven Johnson of Cleveland was charged with violating R.C. 2923.13(A)(3), which prohibits any person from “knowingly” possessing, carrying or using a firearm or dangerous ordnance after “having been convicted of an offense involving the illegal possession ... of any drug of abuse.” Neither the indictment nor the judge’s instructions to the jury at his trial mentioned any mens rea that must be proven with regard to his awareness that his prior drug convictions barred him from possessing a firearm. The jury found Johnson guilty on the firearm charge, and he was sentenced to one year in prison.
Johnson appealed, asserting among other claims that his indictment and conviction were invalid because the state had failed to establish a required mens rea for the prior drug conviction element of the crime. The 8th District Court of Appeals reversed his conviction and remanded the case for a new trial. In its decision, the court of appeals held that in order to obtain a valid conviction under R.C. 2923.13(A)(3) the state was required to show not only that Johnson had “knowingly” possessed a firearm, but also that he had done so “recklessly” with regard to knowledge that “he had been convicted of an offense that prohibited him from having a weapon.” The state sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s decision, Justice Lanzinger explained that generally, in order to obtain a criminal conviction, the state is required not only to show that a defendant engaged in conduct that is prohibited by a provision of the Revised Code, but also, under R.C. 2901.01(A)(2), that the defendant acted with “the requisite culpability for each element as to which a culpable mental state is specified by the section defining the offense.” She noted that the four culpable mental states or mens rea set forth in Ohio criminal statutes are “purpose, knowledge, recklessness, or negligence.”
“(A)lthough the general rule for criminal liability requires a culpable mental state,” Justice Lanzinger wrote, “a guilty intent is not necessary for every offense. Offenses without any culpable mental state are strict-liability offenses, and they impose liability for simply doing a prohibited act. In this type of case, ignorance of a fact or an element of the offense is not a defense. ... Because strict liability for an offense is the exception to the rule, the General Assembly set forth in R.C. 2901.21(B) a test that indicates whether an offense is a strict liability offense: “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.”
Justice Lanzinger noted that in prior decisions the Court has analyzed and applied R.C. 2901.21(B) in two different lines of cases: those in which there is a complete absence of a mens rea in the entire Revised Code section defining an offense, and a second line of cases in which the General Assembly has specified a mens rea in one discreet clause or subsection of a Revised Code section, but not in another clause or subsection of the same section. Based on the Court’s review of those decisions, however, Justice Lanzinger wrote: “We now conclude ... that the plain language of R.C. 2901.21(B) does not cover this second line of cases in which the General Assembly has specified a mens rea in only one discrete clause or subsection of a section defining the offense, excluding another clause or subsection of the offense. ... R.C. 2901.21(B) offers a default rule to use when language defining an offense fails to include any culpability. Unless there is a plain indication of strict liability, recklessness is sufficient culpability for the offense. However, if the General Assembly has specified a mens rea in one part of the section defining the offense, then the requirements of R.C. 2901.21(A) have been satisfied and there is no need for analysis under R.C. 2901.21(B).”
In this case, Justice Lanzinger wrote: “Johnson was charged with ... the offense of having weapons while under disability as defined in R.C. 2923.13(A)(3): ‘(A) ... [N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: ... (3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”
“In defining the offense, the General Assembly chose to specify a culpable mental state for the element of possession of a weapon, but it did not assign an additional mens rea for the additional elements of being under indictment or having been convicted. Because R.C. 2923.13(A), which is part of the definition of the offense, already contains the mens rea of ‘knowingly,’ R.C. 2901.21(B) does not apply. We therefore need not determine whether there is a plain indication of purpose to impose strict liability for these additional elements. Furthermore, because R.C. 2901.21(B) does not apply, there is no statutory provision which allows us to insert recklessness into the statute. As a result, for the offense of having weapons under disability defined by R.C. 2923.13(A)(3), the state is not required to prove a culpable mental state for the element that a defendant is under indictment for or has been convicted of any offense involving a drug of abuse.”
Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only.
Chief Justice Eric Brown entered a dissent in which he stated that, in his view, the court of appeals correctly applied controlling precedent that was barely two years old. He disputed the majority’s conclusion that R.C. 2901.21(A)(2) does not require the state to prove a culpable mental state for any element of a charged offense for which the defining statute does not set forth a separate mens rea. Instead, he wrote that, where a culpable mental state is specified anywhere within the Revised Code section defining a criminal offense, the statute should be read to require proof of the stated level of culpability for each essential element of that offense.
He wrote: “Accordingly, in my view, and consistent with R.C. 2901.21(A)(2), conviction of a WUD (weapon under disability) offense should be dependent upon proof of the required degree of culpability (‘knowingly’) for ‘each element’ of that offense, i.e., both (1) possession of a weapon and (2) the fact that created the disability to the carrying of a weapon, e.g., conviction of certain drug offenses (as in the case at bar) or indictment for certain drug offenses...” He noted that the prosecutor would have had little difficulty proving that Johnson knew he had been convicted.
Contacts
Daniel Van, 216.443.7800, for the state and Cuyahoga County Prosecutor's Office.
John T. Martin, 216.443.3675, for Steven Johnson.
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