State v. Tolliver, 2013–0351.

• Decision Date: 02 September 2014
• Docket Number: No. 2013–0351.,2013–0351.
• Citation: 2014 Ohio 3744,19 N.E.3d 870,140 Ohio St.3d 420
• Parties: The STATE of Ohio, Appellant, v. TOLLIVER, Appellee.
• Court: Ohio Supreme Court

140 Ohio St.3d 420

19 N.E.3d 870

2014 Ohio 3744

The STATE of Ohio, Appellant,

v.TOLLIVER, Appellee.

No. 2013–0351.

Supreme Court of Ohio.

Submitted Feb. 5, 2014.

Decided Sept. 2, 2014.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Andrew T. French, Assistant Prosecuting Attorney, for appellant.

Murr, Compton, Claypoole & Macbeth, Kettering, and Charles M. Blue, for appellee.

Timothy Young, Ohio Public Defender, and Kenneth R. Spiert, Assistant Public Defender, urging dismissal of the appeal as improvidently accepted, or, in the alternative, affirmance for amicus curiae Office of the Ohio Public Defender.

FRENCH, J.

{¶ 1} The General Assembly has defined the offense of robbery to require proof of a culpable mental state (or mens rea) for some elements of the offense but not for others. In this appeal, we consider whether the state must prove a culpable mental state with respect to the element contained in R.C. 2911.02(A)(3), that the offender did "[u]se or threaten the immediate use of force against another." We hold that it need not and that the strict-liability and read-in-recklessness rules of R.C. 2901.21(B) do not apply.

Background

{¶ 2} The Montgomery County Grand Jury indicted appellee, Kevin Tolliver, on one count of robbery under R.C. 2911.02(A)(3). The indictment alleged that Tolliver, "in attempting or committing a theft offense, or in fleeing immediately after the attempt or offense, did recklessly use or threaten the immediate use of force against" Jasmine Jordan. The indictment largely tracked the language of the robbery statute, but it added the word "recklessly" with respect to the force element; R.C. 2911.02(A)(3) does not specify any such mental state.

{¶ 3} At Tolliver's jury trial, evidence established that Tolliver stole merchandise from a Dollar General store and escaped by using and threatening force against a store employee who tried to stop him. The employee, Jasmine Jordan, testified that Tolliver pushed her and that she pushed back, at which point Tolliver raised his fist as if to punch her in the face. Tolliver took the stand and admitted shoplifting and raising his fist at Jordan. He also admitted that the surveillance video showed that he extended his arms into Jordan's chest, causing her to move backward, but he refused to admit that he pushed her.

{¶ 4} The trial court's instructions to the jury mirrored the statutory definition of robbery and did not instruct the jury that the state was required to prove any mental state with respect to the force element in R.C. 2911.02(A)(3). In defining the elements of a completed or attempted "theft offense," an element of robbery set forth in R.C. 2911.02(A), the trial court instructed the jury on the elements of theft in R.C. 2913.02(A)(1), including the mental states of "purpose" to deprive the owner of property or services and "knowingly" obtaining or exerting control over the property or services without consent. R.C. 2913.02(A). The trial court also defined an "attempt" as an offender "knowingly" engaging in conduct that, if successful, would have resulted in the completed offense. The jury found Tolliver guilty as charged in the indictment.

{¶ 5} Tolliver appealed, arguing that the trial court committed plain error by not instructing the jury that the state had to prove that he had recklessly used force while committing or attempting to commit theft. The court of appeals agreed and reversed Tolliver's conviction. 2013-Ohio-115, 986 N.E.2d 34, at ¶ 26, 35.

{¶ 6} We accepted jurisdiction over the state's appeal.

Analysis

{¶ 7} As it applies to Tolliver, R.C. 2911.02 defines robbery as follows: "(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: * * * (3) Use or threaten the immediate use of force against another." The issue in this appeal is whether the state must prove the culpable mental state of "recklessness" in proving the force element R.C. 2911.02(A)(3) requires.

{¶ 8} We begin with the text of R.C. 2911.02, which does not explicitly or impliedly require proof of any culpable mental state for the force element in subdivision (A)(3). It does, however, require proof of culpability for other elements of the offense. Division (A) expressly predicates every robbery on the elements of a completed or attempted "theft offense," including all culpable mental states. R.C. 2911.02(A)

{¶ 9} Tolliver's predicate theft offense, according to the jury instructions, was the theft offense defined in R.C. 2913.02(A)(1), which includes the mental states of "purpose" and "knowingly." To find Tolliver guilty of an "attempted" theft offense, the jury had to find that Tolliver "knowingly" engaged in conduct that, if successful, would have resulted in the completed offense.

{¶ 10} The analysis is straightforward for statutes like R.C. 2911.02, in which the General Assembly has already said which elements of the offense require proof of culpability and which do not. "For these offenses, if the General Assembly intends for the additional elements to carry their own mens rea, it must say so." State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶ 38. The state need prove culpability only for the elements for which a mental state is specified in the section defining the offense, and courts should not fill any gaps by inserting culpability requirements that the text and ordinary rules of construction cannot bear. See id . at ¶ 42. It is our duty "to give effect to the words used, not to delete words used or to insert words not used." Columbus–Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969).

{¶ 11} The only way to read a culpable mental state where one does not exist is through R.C. 2901.21(B), which applies only to those statutes that "do [ ] not specify any degree of culpability." Today, we hold that R.C. 2901.21(B) does not apply to the statute defining robbery.

Mens Rea, Legislative Silence, and R.C. 2901.21(B)

{¶ 12} Before the General Assembly enacted R.C. 2901.21(B) in 1974, there was no universal rule for construing statutes that did not specify any element of mens rea. When legislatures first began codifying criminal offenses, courts (including this one) interpreted those statutes to require an element of mens rea, even though the legislature did not specify one. See Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 62 (1933) (collecting decisions); see, e.g., Birney v. State, 8 Ohio 230, 238 (1837) (stating, "We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself"). This presumption of mens rea rested on the common-law tradition that all crime included "some mental element," and courts assumed that legislative silence "merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation." Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

{¶ 13} With the advent of statutes defining newer offenses and the strict-liability offense, however, it became less clear whether statutory silence assumed a culpable mental state or, in the case of strict liability, imposed liability "without any kind of mental state whatsoever." 1 LaFave, Substantive Criminal Law, Section 5.1, at 336 (2d Ed.2003) ; Sayre at 62–66. The United States Supreme Court addressed this issue, stating that courts should presume that a culpable mental state should be proven unless the statute contained a "contrary direction," Morissette at 263, or "clear expression" to impose liability without fault, id. at 254, fn. 14. This court took the opposite approach and construed statutes as imposing strict liability unless they specified an element of intent. See State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph one of the syllabus (holding that "if a statute defining an offense is silent on the question of intent, it is not necessary to allege and prove an intent to commit the offense").

{¶ 14} Against this backdrop, the General Assembly enacted R.C. 2901.21(B), which provides the following rule for determining whether statutes not specifying any culpable mental state impose strict liability or instead require some level of culpability, that is, recklessness:

(B) 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} This text identifies two conditions that must exist before a court can read recklessness into an offense. First, the "section" defining the offense must not specify "any degree of culpability," meaning that the section does not already require proof of a culpable mental state for any element of the offense in any division or subdivision. R.C. 2901.21(B) ; see also Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, at ¶ 31 (" R.C. 2901.21(B) requires us to examine the entire section defining the offense, not merely a clause or subsection"); State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, ¶ 22 ("we need to determine whether the entire section includes a mental element, not just whether division (A)(6) includes such an element" [emphasis sic] ). Second, the section must not plainly indicate a purpose to impose strict liability. R.C. 2901.21.

{¶ 16} In Maxwell, we phrased this standard as a two-step inquiry:

[A] court must be able to answer in the negative the following two questions before applying the element of recklessness pursuant to R.C. 2901.21(B) : (1) does the section defining an offense specify any degree of

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