State v. O'Brien, No. 86-1732

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDOUGLAS; MOYER; WRIGHT; LOCHER
Citation30 Ohio St.3d 122,30 OBR 436,508 N.E.2d 144
Docket NumberNo. 86-1732
Decision Date20 May 1987
Parties, 30 O.B.R. 436 The STATE of Ohio, Appellant, v. O'BRIEN, Appellee.

Page 122

30 Ohio St.3d 122
508 N.E.2d 144, 30 O.B.R. 436
The STATE of Ohio, Appellant,
v.
O'BRIEN, Appellee.
No. 86-1732.
Supreme Court of Ohio.
May 20, 1987.
Syllabus by the Court

1. The culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(B)(3). (State v. Adams [1980], 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph one of the syllabus, approved and followed.)

2. An 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.)

[508 N.E.2d 145] The instant case arises both from the sexual conduct which occurred between defendant-appellee, James R. O'Brien, and O'Brien's then eight-year-old stepson, Brian Blair, 1 and the excessive discipline inflicted upon the boy by O'Brien. Appellee would intermittently force the boy to engage in anal intercourse with him under threats that he would "cut * * * [the boy's] head off or throw * * * [the boy] out the window." In addition, appellee repeatedly subjected the boy to unwarranted beatings with a "whip," which was constructed from a piece of garden hose split down the sides and attached to a wooden handle.

Based on the foregoing facts, appellee was indicted on a number of counts, involving a variety of offenses, including endangering children in violation of R.C. 2919.22(B)(3). 2 On December 2, 1985, prior to impanelling the jury at appellee's trial, appellee moved to dismiss the two endangering children counts of the indictment on the basis that these counts

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failed to include the requisite mens rea element of "recklessness." 3 This motion was overruled, and the jury was impanelled. At the conclusion of the state's case-in-chief, one of the endangering children counts was dismissed by the court. After the defense rested, appellant, the state of Ohio, moved to amend the remaining endangering children count of the indictment to include the element of "recklessness." The trial court granted this motion and simultaneously denied appellee's renewed motion to dismiss that count of the indictment. It is undisputed that the trial court subsequently charged the jury on "recklessness" as an essential element of the offense of endangering children, and submitted the following counts of the indictment to the jury for its determination: one count of receiving stolen property under R.C. 2913.51, one count of endangering children under R.C. 2919.22(B)(3), one count of gross sexual imposition under R.C. 2907.05(A)(3), and two counts of rape under R.C. 2907.02(A)(3).

Appellee was found guilty by the jury of endangering children under R.C. 2919.22(B)(3) and not guilty of receiving stolen property under R.C. 2913.51. A mistrial was declared as to the counts of the indictment upon which the jury could not reach a verdict. Appellee was sentenced to a definite term of confinement of one and one-half years in the Ohio State Penitentiary for the crime of endangering children.

Upon appeal, the court of appeals reversed the judgment of the trial court, holding that the trial court erred when it permitted appellant to amend the endangering children indictment to include "recklessness." The court of appeals reasoned that the omission of the mental state element fatally flawed the indictment, and that allowing appellant to cure such an error permitted the jury to convict the accused on a charge essentially different from that upon which the grand jury indicted him.

The cause is now before this court upon the allowance of a motion for leave to appeal.

Lynn C. Slaby, Pros. Atty., Marc R. Wolff and Philip D. Bogdanoff, Akron, for appellant.

Donald E. George, Akron, for appellee.

DOUGLAS, Justice.

The case at bar poses two questions for the court. The first question is whether [508 N.E.2d 146] R.C. 2919.22(B)(3), endangering children, is a strict liability offense. The second issue is whether an indictment may be amended to include an essential element of the offense charged.

As to the first question, appellant asks this court to expressly overrule its holding in State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169,

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404 N.E.2d 144, and find that the crime of endangering children under R.C. 2919.22(B)(3) is now a strict liability offense. We decline to make such a finding.

In State v. Adams, supra, this court considered the identical argument made by appellant herein and, in an opinion written by Justice Sweeney, stated that:

"R.C. 2919.22(B)(2) * * * does not 'specify any degree of culpability' nor does it 'plainly indicat[e] a purpose to impose strict criminal liability for the conduct described in such section.' R.C. 2901.21(B). Recklessness therefore is sufficient culpability to commit the offense." Id. at 152-153, 16 O.O.3d at 170, 404 N.E.2d at 145-146.

Appellant has not persuaded this court to deviate from the rule set forth in Adams, supra. We, therefore, reaffirm our holding in Adams, supra, that the culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(B)(3).

The second issue before this court is whether an indictment may be amended to include an essential element of the offense. For the following reasons, we answer in the affirmative.

We agree with the appellate court's determination that recklessness is the culpable mental state for the crime of endangering children under R.C. 2919.22(B)(3). We also agree that an indictment charging an offense solely in the language of a statute is insufficient when a specific intent element has been judicially interpreted for that offense. See State v. Adams, supra; State v. Ross (1967), 12 Ohio St.2d 37, 41 O.O.2d 220, 231 N.E.2d 299. We do not agree, however, that the omission of such intent element necessarily precludes a later amendment to the indictment.

Crim.R. 7 controls the sufficiency of and amendments to criminal indictments. Crim.R. 7(B) deals with sufficiency of indictments and provides in pertinent part:

"The indictment * * * shall contain a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the applicable section of the statute as long as the words of that statute charge an offense, or in any words sufficient to give the accused notice of all the elements of the offense with which he is charged. * * * "

The indictment in the instant case provided in pertinent part that:

" * * * JAMES R. O'BRIEN * * * did commit the crime of ENDANGERING CHILDREN in that he did repeatedly administer unwarranted disciplinary measures to Brian Blair, a child under eighteen years of agen [sic], when there was a substantial risk that such conduct, if continued, would seriously impair or retard the child's mental health or development, in violation of Section 2919.22 of the Ohio Revised Code[.] * * * " (Emphasis added.)

The indictment is set forth in the words of the applicable endangering

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children statute. Further, this indictment substantially follows the form of indictment set forth in R.C. 2941.06. 4 However, our [508 N.E.2d 147] analysis does not conclude here. This court, as previously noted, has provided an additional essential element for the offense of child endangering, the mental state of "recklessness." State v. Adams, supra....

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298 practice notes
  • State v. McMillen, 2009 Ohio 210 (Ohio App. 1/20/2009), No. 2008-CA-00122.
    • United States
    • United States Court of Appeals (Ohio)
    • January 20, 2009
    ...does not contain the culpable mental state of Page 7 recklessness is insufficient to charge that offense. State v. O'Brien (1987), 30 Ohio St.3d 122, 508 N.E.2d {¶33} R.C. 2919.22, endangering children provides, in relevant part: {¶34} "(A) No person, who is the parent, guardian, custodian,......
  • State v. Colon, No. 2006-2139.
    • United States
    • United States State Supreme Court of Ohio
    • April 9, 2008
    ...of a statute is insufficient when a specific intent element has been judicially interpreted for that offense." State v. O'Brien (1987), 30 Ohio St.3d 122, 124, 30 OBR 436, 508 N.E.2d 144, citing State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144. 118 Ohio St.3d 35 {¶ 43......
  • McGlothin v. Jackson, Case No. 1:09-cv-48
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 15, 2013
    ...McGlothin had the right to request that the jury be discharged or that a continuance be granted. See, also, State v. O'Brien (1987), 30 Ohio St. 3d 122, 30 Ohio B. 436, 508 N.E. 2d 144. But he made no such request. And even if he had requested the discharge of the jury or a continuance, it ......
  • State v. Wright, Case No. CT2011-0046
    • United States
    • United States Court of Appeals (Ohio)
    • April 23, 2012
    ...not stated in R.C. §2919.22, recklessness is the culpable mental state for the crime of child endangering. State v. O'Brien (1987), 30 Ohio St.3d 122, 508 N.E.2d 144; State v. Conley, Perry App. No. 03-CA-18, 2005-Ohio-3257 at ¶ 20. Recklessness is defined in R.C. 2901.22(C), which states: ......
  • Request a trial to view additional results
298 cases
  • State v. McMillen, 2009 Ohio 210 (Ohio App. 1/20/2009), No. 2008-CA-00122.
    • United States
    • United States Court of Appeals (Ohio)
    • January 20, 2009
    ...does not contain the culpable mental state of Page 7 recklessness is insufficient to charge that offense. State v. O'Brien (1987), 30 Ohio St.3d 122, 508 N.E.2d {¶33} R.C. 2919.22, endangering children provides, in relevant part: {¶34} "(A) No person, who is the parent, guardian, custodian,......
  • State v. Colon, No. 2006-2139.
    • United States
    • United States State Supreme Court of Ohio
    • April 9, 2008
    ...of a statute is insufficient when a specific intent element has been judicially interpreted for that offense." State v. O'Brien (1987), 30 Ohio St.3d 122, 124, 30 OBR 436, 508 N.E.2d 144, citing State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144. 118 Ohio St.3d 35 {¶ 43......
  • McGlothin v. Jackson, Case No. 1:09-cv-48
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 15, 2013
    ...McGlothin had the right to request that the jury be discharged or that a continuance be granted. See, also, State v. O'Brien (1987), 30 Ohio St. 3d 122, 30 Ohio B. 436, 508 N.E. 2d 144. But he made no such request. And even if he had requested the discharge of the jury or a continuance, it ......
  • State v. Wright, Case No. CT2011-0046
    • United States
    • United States Court of Appeals (Ohio)
    • April 23, 2012
    ...not stated in R.C. §2919.22, recklessness is the culpable mental state for the crime of child endangering. State v. O'Brien (1987), 30 Ohio St.3d 122, 508 N.E.2d 144; State v. Conley, Perry App. No. 03-CA-18, 2005-Ohio-3257 at ¶ 20. Recklessness is defined in R.C. 2901.22(C), which states: ......
  • Request a trial to view additional results

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