The State of Ohio v. HORNER

• Decision Date: 27 August 2010
• Docket Number: No. 2009-0079 and 2009-0311.,2009-0079 and 2009-0311.
• Citation: 126 Ohio St.3d 466,935 N.E.2d 26,2010 Ohio 3830
• Parties: The STATE of Ohio, Appellee, v. HORNER, Appellant.
• Court: Ohio Supreme Court

126 Ohio St.3d 466

935 N.E.2d 26

2010 Ohio 3830

The STATE of Ohio, Appellee,

v.HORNER, Appellant.

Nos. 2009-0079 and 2009-0311.

Supreme Court of Ohio.

Submitted April 20, 2010.

Decided Aug. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Syllabus of the Court

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. ( State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, reaffirmed; State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, overruled; State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, overruled in part.)

2. When the General Assembly includes a mens rea element in one discrete clause, subsection, or division of a statute but not in another discrete clause, subsection, or division of that statute, courts must apply the analysis in State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, and State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, to determine the mental state where none is specified.

3. By failing to timely object to a defect in an indictment, a defendant waives all but plain error on appeal. (Crim.R.12(C)(2) and 52(B), followed; State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, overruled.)

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.

John F. Potts, Columbus, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecutor.

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

LUNDBERG STRATTON, J.

{¶ 1} Pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25, the Sixth District Court of Appeals certified its judgment in this case as being in conflict with the judgments of the Eighth District Court of Appeals in State v. Briscoe, 8th Dist. No. 89979, 2008-Ohio-6276, 2008 WL 5084720, and the Third District Court of Appeals in State v. Alvarez, 3d Dist. No. 4-08-02, 2008-Ohio-5189, 2008 WL 4455611, on the following issue: “Whether the holdings of State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 are applicable to the offense of aggravated robbery in violation of R.C. 2911.01(A)(3) or only to the offense of robbery, a violation of R.C. 2911.02(A)(2).” We also accept appellant's discretionary appeal on Proposition of Law Nos. I and II but stayed briefing on the appeal. ¹

{¶ 2} We hold that neither of the two Colon cases are applicable and the indictment was not defective. Accordingly, we affirm the judgment of the court of appeals.

I. Facts

{¶ 3} In March 2006, Gregory Horner, defendant-appellant, and his codefendant, James Hahn, met two Michigan businessmen, Robert Peck and Tim Mulroy, and Robert's son, Kyle, on the pretense of selling Peck and Mulroy a muscle car. Horner and Hahn beat the victims and robbed them of cash.

{¶ 4} A grand jury indicted Horner on six counts relating to his crimes, including two counts of aggravated robbery, in violation of R.C. 2911.01(A)(3), with firearm specifications, in relation to the two adult victims; one count of aggravated robbery in violation of R.C. 2911.01(A)(3), which was later amended to R.C. 2911.01(A)(1), with a firearm specification; and three counts of felonious assault in violation of R.C. 2903.11(A)(1), with firearm specifications.

{¶ 5} Horner pleaded no contest to five counts. In exchange, the state nolled one count of felonious assault and recommended a maximum sentence of ten years. Horner's codefendant was sentenced to 12 years rather than the state-recommended sentence of ten years. Horner then orally requested leave to obtain new counsel and to file a motion to withdraw his no-contest plea. The trial court held a hearing on the motion to withdraw his plea in May 2007. Horner, who had retained new counsel, testified on direct and cross-examination. The trial court denied the motion to withdraw the plea and sentenced him to 11 years.

{¶ 6} On appeal, Horner argued for the first time that the two counts of aggravated robbery in the indictment were insufficient pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (“ Colon I ”), and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (“ Colon II ”), because a culpable mental state was not included in the indictment. The Sixth District Court of Appeals disagreed, holding that Colon I and Colon II apply only to cases in which a defendant has been indicted for robbery pursuant to R.C. 2911.02(A)(2). Since Horner was charged with aggravated robbery rather than robbery, the court held that his indictment was not defective. Thus, the court held that there was no plain error and, accordingly, affirmed the judgment of the trial court.

{¶ 7} The Sixth District certified a conflict over the applicability of Colon I and Colon II, and recognizing the conflict, we accepted jurisdiction.

II. Law and Analysis

A. The Indictment

{¶ 8} Section 10, Article I of the Ohio Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Crim.R. 7(B) explains the structure and sufficiency requirements of an indictment: “The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.”

[1] {¶ 9} When the offense does not track the language of the statute, Crim.R. 7(D) addresses amendments to criminal indictments: “The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.” We have held that “[a]n 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.)” State v. O'Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, paragraph two of the syllabus.

[2] {¶ 10} The purpose of a grand jury indictment has always been to give notice to the accused: “[A] criminal offense must be charged with reasonable certainty in the indictment so as to apprise the defendant of that which he may expect to meet and be required to answer; so that the court and jury may know what they are to try, and the court may determine without unreasonable difficulty what evidence is admissible.” Horton v. State (1911), 85 Ohio St. 13, 19, 96 N.E. 797.

[3] {¶ 11} Expanding on the idea of notice to the accused, we have held that “[t]he purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks (1962), 173 Ohio St. 415, 417, 20 O.O.2d 43, 183 N.E.2d 373, and State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781. In Buehner, we held that an indictment that tracked the language of the charged offense and identified a predicate offense by statute number but did not include each element of the predicate offense still provided the defendant with adequate notice of the charges against him. Id. at syllabus.

{¶ 12} In Buehner, the defendant was charged with ethnic intimidation under R.C. 2927.12(A), an element of which is the commission of a predicate offense (“No person shall violate [R.C.] 2903.21, 2903.22, 2909.06, or 2917.21 * * * by reason of the race, color, religion, or national origin of another person or group of persons”). The indictment tracked the language of the statute and identified by statute number which of the several predicate offenses was being charged. We rejected the argument that the indictment was defective for failing to list the elements of the predicate offense, concluding that it is the predicate offense itself and not the elements of the predicate offense that is an essential element of the charged offense. Therefore, the indictment provided the defendant with adequate notice of the charge against him. Id. at ¶ 12.

{¶ 13} Here, the two counts of the indictment in question read: “[I]n attempting or committing a theft offense as defined in § 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, [Horner] did inflict, or attempt to inflict, serious physical harm on another, in violation of § 2911.01(A)(3) OF THE OHIO REVISED CODE, AGGRAVATED ROBBERY, BEING A FELONY OF THE FIRST DEGREE.”

{¶ 14} R.C. 2911.01 defines the elements of aggravated robbery as follows:

{¶ 15} “(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:

{¶ 16} “* * *

{¶ 17} “(3) Inflict, or attempt to inflict, serious physical harm on another.”

{¶ 18} As required by Buehner, the language of the indictment tracked the language of the statute. However, Horner argues that this court's post- Buehner decisions in Colon I and Colon II render his indictment defective...