State v. Colon

{¶ 1} Pursuant to Section 3(B)(4), Article IV of the Ohio Constitution and App.R. 25, the Eighth District Court of Appeals certified its judgment in this case as being in conflict with the judgments of the First District Court of Appeals in State v. Shugars, 165 Ohio App.3d 379, 2006-Ohio-718, 846 N.E.2d 592, and the Third District Court of Appeals in State v. Daniels, Putnam App. No. 12-03-12, 2004-Ohio-2063, 2004 WL 877695, on the following issue: “Where an indictment fails to charge the mens rea element of the crime, and the defendant fails to raise that issue in the trial court, has the defendant waived the defect in the indictment?” The answer to this question is no.

{¶ 2} Defendant-appellant, Vincent Colon, was convicted by a jury of the offense of robbery in violation of R.C. 2911.02(A)(2). Prior to the trial, the Cuyahoga County Grand Jury had returned a single-count indictment against the defendant, charging: “[I]n 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 upon [the victim, the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim].”

{¶ 3} At the defendant’s trial, the court instructed the jury on the elements of robbery pursuant to R.C. 2911.02(A)(2) and summarized the elements as (1) “in attempting or committing a theft offense or in fleeing immediately after the attempt or offense,” (2) the defendant inflicted, or attempted to “inflict, or threatened to inflict physical harm upon [the victim].” The jury found the defendant guilty.

{¶ 4} On appeal, the defendant argued that his “state constitutional right to a grand jury indictment and state and federal constitutional rights to due process were violated when his indictment omitted an element of the offense.” The indictment did not expressly charge the mens rea element of the crime of robbery.

{¶ 5} The court of appeals did not address the defect in the indictment; instead, the court affirmed the defendant’s conviction pursuant to Crim.R. 12(C)(2). Crim.R. 12(C)(2) states that defects in an indictment are waived if not raised before trial, except that failure to show jurisdiction in the court or failure to charge an offense may be raised at any time during the pendency of the proceeding. The court of appeals held that because defendant did not raise the issue before his trial, he waived the argument that his indictment was defective.

{¶ 6} Defendant was convicted of the offense of robbery, pursuant to R.C. 2911.02(A)(2). That statute states:

{¶ 7} “(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:

{¶ 8} “ * *

{¶ 9} “(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another.”

I

{¶ 10} There is no dispute that the defendant’s indictment was defective. The indictment purportedly charged the defendant with robbery in violation of R.C. 2911.02(A)(2), but the indictment omitted a mens rea element for the actus reus element stated in subsection (2): “Inflict, attempt to inflict, or threaten to inflict physical harm on another.”

A

{¶ 11} While the robbery statute does not expressly state the degree of culpability required for subsection (2), the mental state of the offender is a part of every criminal offense in Ohio, except those that plainly impose strict liability. See State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, ¶ 18. Under R.C. 2901.21(A)(2), in order to be found guilty of a criminal offense, a 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.”

{¶ 12} R.C. 2901.21(B) addresses both strict-liability statutes and those statutes, like the robbery statute (R.C. 2911.02), that do not expressly state a culpable mental state. State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, at ¶ 19. R.C. 2901.21(B) states that “[w]hen 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.”

{¶ 13} Thus, “recklessness is the catchall culpable mental state for criminal statutes that fail to mention any degree of culpability, except for strict liability statutes, where the accused’s mental state is irrelevant. However, for strict liability to be the mental standard, the statute must plainly indicate a purpose to impose it.” State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, at ¶ 21.

{¶ 14} R.C. 2911.02(A)(2) does not specify a particular degree of culpability for the act of “[i]nflict[ing], attempting] to inflict, or threatening] to inflict physical harm,” nor does the statute plainly indicate that strict liability is the mental standard. As a result, the state was required to prove, beyond a reasonable doubt, that the defendant recklessly inflicted, attempted to inflict, or threatened to inflict physical harm.

{¶ 15} In this case, the indictment failed to charge that the physical harm was recklessly inflicted. The state agrees that the omission in the indictment of one of the essential elements of the crime of robbery rendered the defendant’s indictment defective.

B

{¶ 16} This court has consistently protected defendants’ rights to a proper indictment. As early as 1855, Chief Justice Ranney stated the importance of including all the essential elements in an indictment: “ ‘The nature and cause of the accusation’ are not sufficiently stated to enable the accused to know what he might expect to meet upon the trial; and it is neither consistent with general principles nor constitutional safeguards, to allow a man to be thus put to trial upon a criminal charge in the dark.” Dillingham v. State (1855), 5 Ohio St. 280, 285.

{¶ 17} Our case law follows the Ohio Constitution, which 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.” Section 10, Article I, Ohio Constitution. “The material and essential facts constituting an offense are found by the presentment of the grand jury; and if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.” Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104.

{¶ 18} The Ohio Rules of Criminal Procedure reflect the principle that an indictment that fails to include all the essential elements of an offense is a defective indictment. Crim.R. 7(B) provides that an indictment must include a statement that “the defendant has committed a public offense specified in the 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.” (Emphasis added.)

II

{¶ 19} Having concluded that the indictment in this case was defective because it failed to charge an essential element of the offense, we next determine whether an indictment that fails to include the mens rea of the offense charged may be challenged for the first time on appeal. In this case, the defective indictment resulted in structural error, and the court of appeals erred when it held that the error could not be raised for the first time on appeal.

A

{¶ 20} Structural errors are “constitutional defects that ‘ “defy analysis by ‘harmless error’ standards” because they “affect[ ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.” ’ ” (Brackets added in Fisher.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, at ¶ 9, quoting Arizona v. Fulminante (1991), 499 U.S. 279, 309, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. “Such errors permeate ‘[t]he entire conduct of the trial from beginning to end’ so that the trial cannot ‘ “reliably serve its function as a vehicle for determination of guilt or innocence.” ’ ” Id., quoting Arizona at 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302, quoting Rose v. Clark (1986), 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. “[A] structural error mandates a finding of ‘per se prejudice.’ ” (Emphasis sic.) State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, at ¶ 9.

{¶ 21} “In determining whether an alleged error is ‘structural,’ our threshold inquiry is whether such error ‘involves the deprivation of a constitutional right.’ ” Id., citing State v. Issa (2001), 93 Ohio St.3d 49, 74, 752 N.E.2d 904 (Cook, J., concurring). If an error in the trial court is not a constitutional error, then the error is not structural error. See State v. Issa at 74, 752 N.E.2d 904 (Cook, J., concurring).

{¶ 22} We have previously cautioned against applying a structural-error analysis in cases that would otherwise be governed by Crim.R. 52(B) because the defendant did not raise the error in the trial court. See State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 23. “This caution is born of sound policy. For to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed.” (Emphasis omitted.) Id.

{¶ 23} The instant case could be decided by applying plain-error analysis pursuant to Crim.R. 52(B), because the defendant’s substantial rights were prejudiced by the errors in the indictment, and the defendant failed to object to the indictment at the trial court. However, here, the defects in the indictment led to significant errors throughout the defendant’s trial, and therefore, structural-error analysis is appropriate. As stated previously, structural errors permeate the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17.

B

{¶ 24} Our holding in the instant case that the defect in the indictment resulted in structural error is supported by the Ohio Constitution, which states that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Section 10, Article I, Ohio Constitution. In order to establish structural error, the defendant must first establish that a constitutional error has occurred.

{¶ 25} As we explained in State v. Wozniak (1961), 172 Ohio St. 517, 520, 18 O.O.2d 58, 178 N.E.2d 800, “[t]o require defendants to answer for the crime sought to be charged in [the indictment] after amendment of the indictment by addition thereto of a missing charge of an essential element of that crime would be to require defendants to answer for a crime other than on ‘presentment or indictment of a grand jury.’ ” In State v. Wozniak, the indictment did not include the element of intent specified in former R.C. 2907.10, now R.C. 2911.13, breaking and entering. Id. at 519, 18 O.O.2d 58, 178 N.E.2d 800. This court held that the prosecutor was not permitted to perfect the defective indictment by amendment, because “the grand jury and not the prosecutor, even with the approval of the court, must charge the defendant with each essential element of that crime.” Id. at 520, 18 O.O.2d 58, 178 N.E.2d 800.

{¶ 26} Crim.R. 7, first adopted in 1973, affected the rule with respect to the amendment of indictments. Crim.R. 7(D) states: “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.”

{¶ 27} Despite the language of Crim.R. 7(D) permitting amendment, an indictment must still meet constitutional requirements, and its failure to do so may violate a defendant’s constitutional rights. In order to be constitutionally sufficient, an indictment must, first, contain “ ‘the elements of the offense charged and fairly inform[ ] a defendant of the charge against which he must defend, and, second, enable[] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ ” State v. Childs (2000), 88 Ohio St.3d 558, 565, 728 N.E.2d 379, quoting Hamling v. United States (1974), 418 U.S. 87, 117-118, 94 S.Ct. 2887, 41 L.Ed.2d 590.

{¶ 28} In the instant case, the indictment did not meet constitutional requirements, as it did not include all the essential elements of the offense charged against the defendant. Thus, the defendant was not properly informed of the charge so that he could put forth his defense.

{¶ 29} The defective indictment in this case resulted in several violations of the defendant’s constitutional rights. First, the indictment against the defendant did not include all the elements of the offense charged, as the indictment omitted the required mens rea for the crime of robbery. Therefore, the defendant’s indictment was unconstitutional.

{¶ 30} Second, there is no evidence in the record that the defendant had notice that the state was required to prove that he had been reckless in order to convict him of the offense of robbery, and thus the defendant’s due process rights were violated. Further, the state did not argue that the defendant’s conduct in inflicting physical harm on the victim constituted reckless conduct.

{¶ 31} In addition to the defendant being unaware of the elements of the crime with which he was charged, and the prosecutor failing to argue that the defendant’s conduct in this case was reckless, when the trial court instructed the jury on the elements of robbery necessary to find the defendant guilty, the court failed to include the required mens rea for the offense. The defendant’s counsel did not object to the incomplete instruction. There is no evidence in the record that the jury considered whether the defendant was reckless in inflicting, attempting to inflict, or threatening to inflict physical harm, as is required to convict under R.C. 2911.02(A)(2). Finally, during closing argument, the prosecuting attorney treated robbery as a strict-liability offense.

{¶ 32} In summary, the defective indictment in this case failed to charge all the essential elements of the offense of robbery and resulted in a lack of notice to the defendant of the mens rea required to commit the offense. This defect clearly permeated the defendant’s entire criminal proceeding. The defendant did not receive a constitutional indictment or trial, and therefore the defective indictment in this case resulted in structural error.

c

{¶ 33} The state agrees that the indictment charging the defendant is defective, but argues that the Ohio Rules of Criminal Procedure require that any objection based on defects in the indictment must be raised before trial. Crim.R. 12(C) provides:

{¶ 34} “Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue. The following must be raised before trial:

{¶ 35} “ * * *

{¶36} “(2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding).”

{¶ 37} As stated in Crim.R. 12(C)(2), there are two specific exceptions to the general rule. Defects in an indictment that fail either “to show jurisdiction in the court” or “to charge an offense” do not need to be raised prior to trial and can be raised any time during the pendency of the proceeding. An indictment that omits the mens rea element of recklessness fails to charge the offense of robbery and is therefore an exception to the general rule stated in Crim.R. 12(C).

{¶ 38} Our conclusion that an indictment that omits an essential element fails to charge an offense is supported by case law. In State v. Wozniak, 172 Ohio St. 517, 18 O.O.2d 58, 178 N.E.2d 800, paragraph one of the syllabus, we held that the intent element of an offense is an essential element of the crime and an indictment that does not charge a defendant with intent does not charge a defendant with the crime. Also, in State v. Childs, we concluded that the defendant did not waive his challenge to an indictment that omitted a material element identifying the crime by not raising it prior to trial. Id., 88 Ohio St.3d 194, 724 N.E.2d 781. “ ‘ “[I]f one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.” ’ ” Id. at 198, 724 N.E.2d 781, quoting Wozniak at 521, 18 O.O.2d 58, 178 N.E.2d 800, quoting Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104.

Ill

{¶ 39} Our holding today, that a defendant can challenge for the first time on appeal an indictment that omits an essential element of the crime, protects defendants’ right to a grand jury indictment. The grand jury is an important part of American citizens’ constitutional rights. Our grand jury system is derived from its English counterpart, and the concept was brought to this country by early colonists and incorporated into the federal Constitution. Costello v. United States (1956), 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397. “The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. * * * Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges.” Id.

{¶ 40} In discussing the grand jury provision of the federal Constitution, which is very similar to the grand jury provision of the Ohio Constitution, the Supreme Court of the United States has stated that the grand jury is a “ ‘ “constitutional fixture in its own right.” ’ ” United States v. Williams (1992), 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352, quoting United States v. Chanen (C.A.9, 1977), 549 F.2d 1306, 1312, quoting Nixon v. Sirica (C.A.D.C.1973), 487 F.2d 700, 712, fn. 54. “In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by ‘a presentment or indictment of a Grand Jury.’ The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.” (Citation omitted.) United States v. Calandra (1974), 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561.

{¶ 41} The state argues that despite the constitutional significance of the grand jury, permitting defendants to challenge a defective indictment for the first time on appeal will encourage defendants to withhold their challenges until after trial, resulting in inefficient proceedings. Our answer to this argument is simple: the state can thwart a defendant’s ability to harbor his challenge until after judgment by securing an indictment from the grand jury that properly charges all the essential elements of the offense.

{¶ 42} Crim.R. 7(B) plainly states that an “indictment shall * * * contain a statement that the defendant has committed a public offense specified in the indictment.” Further, Crim.R. 7(B) states, “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.” (Emphasis added.) “[A]n 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.” 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.

{¶ 43} Applying Crim.R. 7(B) to this case, since the language of R.C. 2911.02(A)(2) does not include the mental element required to commit the offense, the indictment was required to be in “words sufficient to give the defendant notice of all the elements.” Further, pursuant to State v. O’Brien, the defendant’s indictment was required to include the term “recklessly” in order to properly charge the offense. It is not an unreasonable burden to require counsel for the state to ensure that the defendant receives the benefit of his fundamental constitutional protections, nor is it unreasonable to expect a trial judge to properly instruct the jury regarding all the elements of the crime with which the defendant is charged.

{¶ 44} A defendant has a constitutional right to grand jury indictment and to notice of all the essential elements of an offense with which he is charged. The state must meet its duty to properly indict a defendant, and we will not excuse the state’s error at the cost of a defendant’s longstanding constitutional right to a proper indictment. When a defective indictment so permeates a defendant’s trial such that the trial court cannot reliably serve its function as a vehicle for determination of guilt or innocence, the defective indictment will be held to be structural error. See State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17.

{¶ 45} In conclusion, we hold that when an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the defendant has not waived the defect in the indictment.

Judgment reversed.

Pfeifer, O’Connor, and Wolff, JJ., concur.

Lundberg Stratton, O’Donnell, and Lanzinger, JJ., dissent.

William H. Wolff Jr., J., of the Second Appellate District, sitting for Cupp, J.

. {¶ a} Crim.R. 52 provides:

{¶ b} “(A) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.

{¶ e} “(B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”

. In closing, the prosecuting attorney said, “Vincent Colon robbed Samuel Woodie. He attempted to commit a theft offense, and he inflicted harm. It’s simple. I ask you to keep it that simple and find him guilty.”