State v. Lester

• Citation: 2009 Ohio 4225,916 N.E.2d 1038,123 Ohio St.3d 396
• Decision Date: 27 August 2009
• Docket Number: No. 2008-1725.,2008-1725.
• Parties: THE STATE of Ohio, Appellant, v. LESTER, Appellee.
• Court: United States State Supreme Court of Ohio

916 N.E.2d 1038

123 Ohio St.3d 396

2009-Ohio-4225

THE STATE of Ohio, Appellant, v. LESTER, Appellee.

No. 2008-1725.

Supreme Court of Ohio.

Submitted April 21, 2009.

Decided August 27, 2009.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Tanner B. McFall, Assistant Prosecuting Attorney, for appellant.

Christine Y. Jones, for appellee.

Timothy Young, State Public Defender, and Spencer Cahoon, Assistant State Public Defender, urging affirmance for amicus curiae, Ohio Public Defender.

CUPP, J.

{¶ 1} The issue before us is whether, in the crime of aggravated robbery in violation of R.C. 2911.01(A)(1), the element of brandishing, displaying, using, or indicating possession of a deadly weapon has a mens rea of recklessness, or whether strict liability is imposed with regard to that element. We conclude that R.C. 2911.01(A)(1) imposes strict liability for that element. Consequently, we reverse the court of appeals' judgment.

I

A

{¶ 2} James Lester and an unnamed accomplice stole money from three different men by drawing the victims into playing three-card monte. One of the victims ("victim two") became suspicious and asked to see the bag that supposedly contained the players' money. (At the start of the game, the players, including the victim, put their money in a paper bag ostensibly held for the winner of the game.) The bag that victim two saw turned out to be empty. Lester fled. Victim two then realized that a bank envelope containing $1,800, which had been in a briefcase near where Lester was sitting, was gone.

{¶ 3} Victim two chased Lester. Lester then pulled out a knife, showed it to victim two, and said to him: "I know how to use this knife and I will cut you." Victim two tried to dial 9-1-1 on his cell phone to get help, but Lester grabbed the phone from his hand. Victim two gave chase, and some young boys helped him get the cell phone back. Lester escaped in a car with Tennessee license plates. Victim two identified the car, and the police apprehended Lester.

{¶ 4} Lester was charged with aggravated robbery in violation of R.C. 2911.01(A)(1) and robbery, based on the theft of money from victim two, and two counts of theft from the elderly based on two other incidents.

{¶ 5} The jury convicted Lester of aggravated robbery, robbery, and the two counts of theft from the elderly. The trial court merged the count for robbery into the count for aggravated robbery before sentencing.

B

{¶ 6} On appeal, the First District Court of Appeals reversed Lester's aggravated-robbery conviction based on its conclusion that Lester's indictment was defective for failing to allege a mens rea element for the aggravated-robbery charge. State v. Lester, 1st Dist. No. C070383, 2008-Ohio-3570, 2008 WL 2781033, ¶ 21, 23. The issue whether Lester's indictment for aggravated robbery was defective because it omitted a mens rea element was raised for the first time on appeal. Under the usual rule, errors not timely raised in the trial court are subject to review only for plain error. Crim.R. 52(B).

{¶ 7} Pursuant to this court's decision in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 ("Colon I"), however, the First District held that Lester's conviction was subject to automatic reversal because the indictment's failure to specify a mens rea element for aggravated robbery was structural error.¹ Lester, 2008-Ohio-3570, 2008 WL 2781033, ¶ 20-24. The First District noted: "In this case, the trial court correctly instructed the jury on what would have been the proper mens rea element, i.e., knowingly, had that element not been omitted in the indictment. But under Colon [I] this was without consequence because at inception the defective indictment tainted the entire process." Id. at ¶ 21. The First District's reference to "knowingly" was to the mens rea element for the theft, which was an element of the aggravated-robbery offense. The appellate court did not identify recklessness as the mens rea required in displaying or brandishing the deadly weapon.

{¶ 8} The First District's decision preceded by two weeks this court's decision on reconsideration in State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 ("Colon II"), which clarified Colon I: "In a defective-indictment case that does not result in multiple errors that are inextricably linked to the flawed indictment such as those that occurred in Colon I, structural-error analysis would not be appropriate." Id. at ¶ 7. This court in Colon II noted that not only was the indictment in that case defective for failure to state the mens rea element of "recklessness," the trial court had not instructed the jury on recklessness as the applicable mens rea. Id. at ¶ 6. When the only error was the omission of the applicable mens rea from the indictment, traditional concepts of plain error would apply. Id. at ¶ 6-7.

{¶ 9} The state appealed the First District's decision, and we accepted review of its sole proposition of law. State v. Lester, 120 Ohio St.3d 1416, 2008-Ohio-6166, 897 N.E.2d 652. The state's proposition of law asserts: "There is no distinction, for the purpose of assigning a mens rea element, between the acts of possessing or controlling a deadly weapon during a theft and brandishing, displaying, using or indicating possession of a deadly weapon during a theft."

II

{¶ 10} The parties disagree whether the state is required to charge any mens rea for the element of displaying, brandishing, indicating possession of, or using a deadly weapon in the aggravated-robbery statute. The state argues that the statute imposes strict liability for that element, and thus no mens rea must be charged, while Lester argues that the state must charge that a defendant acted recklessly. R.C. 2911.01 provides:

{¶ 11} "(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:

{¶ 12} "(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it." (Emphasis added.)

{¶ 13} Ohio law requires that for one to be found guilty of an offense, "[t]he person [must have] the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense." R.C. 2901.21(A)(2). R.C. 2901.21(B) then provides:

{¶ 14} "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."

{¶ 15} R.C. 2911.01(A)(1) does not specify a degree of culpability, or a mens rea. The question here, then, is whether the General Assembly plainly indicated a purpose to impose strict liability for the conduct of displaying or using a deadly weapon, or whether recklessness is sufficient culpability for that element of the offense of aggravated robbery under R.C. 2911.01(A)(1).

A

{¶ 16} The indictment against Lester did not specify a mens rea for the element of brandishing, displaying, using, or indicating possession of a deadly weapon during the theft offense. As noted above, Colon II clarified that the omission of the mens rea element from an indictment does not require automatic reversal if the trial court properly instructs the jury. The trial court in this case did not instruct the jury that the element of brandishing, displaying, or using a deadly weapon during a theft offense requires a specific level of culpability, although the trial court did instruct the jury that it must find that Lester knowingly committed theft.

{¶ 17} The state's failure to specify the mens rea in the indictment and the failure to instruct the jury on the mens rea for the element of brandishing, displaying, using, or indicating possession of a deadly weapon constitute error only if a specific level of culpability is required for the element. By contrast, if R.C. 2911.01(A)(1) imposes strict liability for the element, then the court of appeals erred in reversing Lester's conviction.

B

{¶ 18} In answering the question whether the aggravated-robbery statute, R.C. 2911.01(A)(1), "plainly impose[s] strict liability" with regard to the element of brandishing, displaying, using, or indicating possession of a deadly weapon, we must consider what we have previously said about the mens rea applicable to similar statutes.

1.

{¶ 19} In State v. Wharf (1999), 86 Ohio St.3d 375, 715 N.E.2d 172, paragraph one of the syllabus, this court held that "[t]he deadly weapon element of R.C. 2911.02(A)(1) * * * does not require the mens rea of recklessness." In Wharf, the defendant was charged with robbery in violation of R.C. 2911.02(A)(1), which provides that "[n]o person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control." Wharf, 86 Ohio St.3d at 376, 715 N.E.2d 172. Wharf had requested an instruction that would have required the jury to find that he acted recklessly in possessing a deadly weapon during the offense, but the trial court declined to give the instruction.

{¶ 20} This court concluded that "by employing language making mere possession or control of a deadly weapon, as opposed to actual use or intent to use, a violation, it is clear to us that the General Assembly intended that R.C. 2911.02(A)(1) be a strict liability offense." Id. at 378, 715 N.E.2d 172. The element of having a deadly weapon in one's possession or under one's control under R.C. 2911.02(A)(1)—an element...