Court Holds Indictment Lacking Culpable Mental State Is Not Defective When It Tracks Language of Statute

State v. Horner, Slip Opinion No. 2010-Ohio-3830.
Lucas App. No. L-07-1224, 2008-Ohio-6169. Certified question answered, and judgment of the court of appeals affirmed.
Lundberg Stratton, 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.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3830.pdf

(Aug. 27, 2010) – In a decision announced today, the Supreme Court of Ohio overruled its 2008 decision in State v. Colon and ruled that:
1) 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.
2) When the General Assembly includes a culpable mental state in one discrete clause, subsection, or division of a statute, but not in another discrete clause, subsection, or division of the same statute, courts must apply the analysis prescribed in the Supreme Court’s decisions in State v. Wac (1981) and State v. Maxwell (2002) to determine the necessary mental state where none is specified.
3) By failing to enter a timely objection to a defect in an indictment, a defendant waives all but plain error on appeal.

The Court’s 4-2 majority opinion was authored by Justice Evelyn Lundberg Stratton.

In order to convict a defendant of a criminal offense, the state must prove: 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty or “culpable” mental state (in Latin, the mens rea) which is set forth in the section of law defining that offense. The culpable mental states set forth in Ohio criminal statutes, in increasing order of severity, are “negligently,” “recklessly,” “knowingly,” and “intentionally.”

R.C. 2901.21(B) provides that when a state law that defines a criminal offense does not specify a required mens rea for that offense, courts hearing charges under that statute must determine whether or not the language of the statute “plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.” If it is determined that the legislature intended to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not impose strict liability, R.C. 2901.21(B) requires the state to prove at trial that the defendant acted with at least the guilty mental state of “recklessly.”

In this case, Gregory Horner of Toledo was indicted on six criminal counts arising from an incident in which he and a codefendant assaulted two other men during a robbery. One charge was dismissed by the state. Two of the five remaining counts in the indictment alleged that Horner had committed aggravated robbery in violation of R.C. 2911.01(A)(3), which prohibits the infliction or attempted infliction of “serious physical harm” on another person during the commission of a theft offense. R.C. 2911.01(A)(3) does not specify a culpable mental state. The state did not allege and the grand jury did not find that Horner had acted with any specified mens rea in committing the aggravated robbery counts in his indictment. Horner did not object to the absence of a mens rea in the aggravated robbery counts of the indictment at any point in the trial court proceedings. He entered no-contest pleas to each of the five counts of the indictment, and was convicted on all counts and sentenced to 11 years in prison.

In a subsequent appeal, Horner cited the Supreme Court’s 2008 holding in State v. Colon that failure by the state to include a required guilty mental state of “recklessly” in a defendant’s indictment for the crime of robbery rendered his indictment fatally defective, and that the defendant’s failure to object to that error at the time of his trial did not bar him from raising it later on appeal. Horner asked the 6th District Court of Appeals to rule that he was entitled to a new trial because his indictment for aggravated robbery lacked a mens rea and therefore was invalid on the same basis as the indictment in Colon. The 6th District denied the appeal, stating that in Colon the Supreme Court had considered only the mens rea required for a violation of the robbery statute, R.C. 22911.02(A)(2), and therefore its holding applied only to indictments for that offense and not to indictments for the separate offense of aggravated robbery chargedunder R.C. 2911.01(A)(3).

The 6th District subsequently certified that its decision on the applicability of Colon was in conflict with a ruling in a similar case by another appellate district. The Supreme Court agreed to review the case to resolve the conflict between districts.

Writing for the Court in today’s decision, Justice Stratton observed that, prior to the Colon decision, prosecutors and trial courts across the state had relied on the Supreme Court’s holdings in State v. Wac and State v. Maxwell. In those cases, she noted, the Court ruled that where one clause or section of a criminal statute sets forth a required mens rea for one form or element of a crime, but a different section of the same statute does not include a mens rea, the legislature’s omission of a mens rea in the latter provision indicated intent that the element set forth in the latter section of the law be considered a “strict liability” element for which the state was not required to prove any mens rea. Applying that standard to this case, Justice Stratton said the legislature’s inclusion of a mens rea in another section of the statute under which Horner was charged, R.C. 2911.01(B), means that the exclusion of a required mens rea in R.C. 2911.01(A)(3) showed clear legislative intent that the latter section be read as a strict liability provision.

Justice Stratton also wrote that, despite a second opinion (Colon II) in which the Supreme Court reconsidered and limited its holding in Colon I to cases where a defective indictment leads to multiple other errors by a trial court, “(T)he 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.’ ... 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.”

“Consequently, we respond to the certified question by holding that Colon I and (Colon II) are inapplicable to the offense of aggravated robbery in violation of R.C. 2911.01(A)(3). In fact, Colon I is overruled, and Colon II is overruled to the extent that it holds that such an indictment is defective. Further, we hold that failure to timely object to a defect in an indictment constitutes a waiver of the error. ... Any claim of error in the indictment in such a case is limited to a plain-error review on appeal. ... (B)ecause the language of Horner’s indictment charging him with aggravated robbery tracked the aggravated robbery statute, 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.”

Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger concurred in judgment and agreed with the first and third paragraphs of the majority opinion syllabus. She dissented, however, from the majority holding that because another section of R.C. 2911.01 includes the required mens rea of “knowingly,” the absence of a required mens rea in R.C. 2911.01(A)(3) indicated legislative intent to impose strict liability for the element that a defendant inflicted or attempted to inflict physical harm.

She wrote: “R.C. 2901.21(B) establishes the mens rea of recklessness as the default standard of liability when no mens rea is specified ... The majority has mistakenly held that the lack of mens rea alone is sufficient to indicate an intention to impose strict liability, stating ‘[b]y choosing language in R.C. 2911.01(A)(3) that makes it a crime to merely inflict or attempt 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.’ 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.”

Justice Paul E. Pfeifer entered a dissent in which he agreed with Justice Lanzinger’s view that the physical harm form of aggravated robbery set forth in R.C. 2911.01(A)(3) is not a strict liability offense but is rather an offense for which the state must show the “default” culpability of recklessness set forth in R.C. 2901.21(B). Justice Pfeifer wrote further that, by holding that the aggravated robbery charge brought against Horner was a strict liability offense, the majority had made it unnecessary and therefore improper for the Court to overturn its earlier decisions in Colon I and Colon II in order to resolve this case.

He wrote: “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.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
David F. Cooper, 419.213.2061, for the state and Lucas County Prosecutor’s Office.

John F. Potts, 419.255.2800, for Gregory Horner.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Defendant May Plead Guilty to Amended Indictment That Changes Identity of Crime

When Defendant Was Represented by Counsel and Bargained for Change

State v. Rohrbaugh, Slip Opinion No. 2010-Ohio-3286.
Logan App. No. 8-07-28, 2008-Ohio-4781. Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3286.pdf

(July 20, 2010) The Supreme Court of Ohio ruled today that a defendant may plead guilty to an indictment that was amended to change the name or identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change.

The court’s 6-0 decision, authored by Justice Paul E. Pfeifer, reversed a ruling by the 3rd District Court of Appeals.

A Logan County grand jury indicted John Rohrbaugh on eight felony counts including breaking and entering, theft and drug possession. As the result of a plea bargain, the prosecutor amended the first count of the indictment from breaking and entering to receiving stolen property, and dismissed all other counts in the indictment except the drug possession charge. The prosecutor did not seek a written or oral waiver of indictment from Rohrbaugh on the receiving stolen property charge. On the same day the indictment was amended, Rohrbaugh entered guilty pleas to both the receiving stolen property and drug possession charges. He was convicted and sentenced to eleven months in prison on each count, with those terms to be served concurrently, and ordered to pay restitution.

Rohrbaugh subsequently appealed the restitution portion of his sentence. On review, the 3rd District Court of Appeals ruled that, because Rohrbaugh had not been indicted by the grand jury for the crime of receiving stolen property, and had not formally waived his constitutional right to indictment before being charged with that felony offense, the trial court had committed plain error by accepting a guilty plea to an indictment that had been amended to change the name or identity of a charged crime. Based on that ruling, the court of appeals ordered that Rohrbaugh’s guilty plea be vacated and remanded the case to the trial court for further proceedings.

The state sought and was granted Supreme Court review of the 3rd District’s decision. The Court also determined that there was a conflict between the court of appeals’ ruling in this case and a 2008 decision of the 8th District Court of Appeals.

Writing for the majority in today’s decision, Justice Pfeifer acknowledged that Section 10, Article I of the Ohio Constitution and Rule 7(A) of the state’s rules of criminal procedure require that all felonies, absent proper waiver, must be prosecuted by indictment, and noted that Crim. R.7(D) permits the amendment of an indictment before, during or after trial ... provided no change is made in the name or identity of the crime charged. He also noted, however, that because Rohrbaugh failed to object to the change in his indictment before or during his trial, he waived all but “plain error,” meaning error so serious that it affected the outcome of his trial and requires reversal “to prevent a manifest miscarriage of justice.”

Applying that standard to the facts of Rohrbaugh’s case, Justice Pfeifer wrote: “We conclude that although there was error in this case, it was not reversible plain error, because there was no miscarriage of justice. Furthermore, Rohrbaugh cannot take advantage of an error that he invited through the plea negotiations.”

“The trial court erred because the amendment to the indictment changed the name or identity of the crime charged in count one. ... The error was plain because Crim.R. 7(D) clearly bans such amendments. The error also ‘affected the outcome of the trial’ because if not for the amendment, Rohrbaugh could not have pleaded guilty to the crime of receiving stolen property. In State v. Davis (2008) ... we found plain error when a trial court amended an indictment to allow a defendant to be prosecuted for a higher degree of a crime. In that case, there was a miscarriage of justice because the prosecution was attempting to ‘increase the penalty or degree of the offense’ charged. ... Unlike the defendant in Davis, Rohrbaugh was not prejudiced by the amendment to the indictment; to the contrary, he gained a benefit when the prosecution dismissed six charges against him. In Davis, the crime was amended from a felony of the fourth degree to a felony of the second degree. ... In this case, the amended charge of receiving stolen property and the original charge of breaking and entering are both felonies of the fifth degree. Moreover, Rohrbaugh was represented by counsel and signed a statement that he had reviewed and understood the amended indictment. We conclude that there was no miscarriage of justice in this case.”

“This case also differs from Davis in that Rohrbaugh invited the alleged error. We have repeatedly held that a defendant may not ‘take advantage of an error that he himself invited or induced.’... In Davis, there was no invited-error issue because the prosecution acted unilaterally during trial. ... In this case, Rohrbaugh negotiated for the amended indictment and agreed to plead guilty to the amended charge. He cannot now argue that the amendment is plain error. Rohrbaugh argues that he was not indicted and did not properly waive the right to indictment under the rule, even though Crim.R. 7(A) requires that a crime be prosecuted by indictment unless the indictment is properly waived. We conclude that Rohrbaugh was prosecuted by an indictment and that he was sufficiently informed of the charges in the indictment. ... Because Rohrbaugh was prosecuted by indictment, Crim.R. 7(A) and its waiver requirements are not applicable to this case.”

Based on that analysis, Justice Pfeifer concluded, “We reverse the judgment of the court of appeals and remand the cause to the court of appeals so that it may reach the error concerning restitution that Rohrbaugh alleged in his appeal.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.

Contacts
Eric C. Stewart, 937.599.7272, for the Logan County prosecutor’s office.

Marc S. Triplett, 937.593.6591, for John Rohrbaugh.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."