[Cite as State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301.]




            THE STATE OF OHIO, APPELLANT, v. JOHNSON, APPELLEE.
        [Cite as State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301.]
Criminal law — R.C. 2901.21 — Determination of mens rea for element for which
        none is specified — R.C. 2923.13(A)(3).
  (No. 2009-1469 — Submitted May 12, 2010 — Decided December 28, 2010.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 91701,
                                    2009-Ohio-3101.
                                 __________________
                               SYLLABUS OF THE COURT
1. A conviction for violation of the offense of having weapons while under
        disability as defined by R.C. 2923.13(A)(3) does not require proof of a
        culpable mental state for the element that the offender is under indictment
        for or has been convicted of any offense involving the illegal possession,
        use, sale, administration, distribution, or trafficking in any drug of abuse.
2. R.C. 2901.21(B) does not supply the mens rea of recklessness unless there is a
        complete absence of mens rea in the section defining the offense and there
        is no plain indication of a purpose to impose strict liability.
                                 __________________
        LANZINGER, J.
        {¶ 1} In this case, we are asked to determine whether there is a missing
culpable mental state in the offense of having weapons while under disability, a
felony of the third degree. Appellee, Steven Johnson, was convicted of this
offense, as defined by R.C. 2923.13(A)(3), based on two previous convictions for
drug-related offenses.        The question before this court is whether R.C.
2923.13(A)(3) requires proof of the mens rea of recklessness with respect to a
defendant’s prior conviction.        We now hold that the state need not prove a
                                   SUPREME COURT OF OHIO




culpable mental state for the element that a defendant is under indictment for or
has been convicted of any offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse for a conviction
under R.C. 2923.13(A)(3).
         {¶ 2} We therefore reverse the judgment of the court of appeals and
remand for consideration of Johnson’s remaining assignments of error.
                                              I. Facts
         {¶ 3} Johnson was arrested after a fight in a Cleveland apartment in the
early morning of April 3, 2008, and was discovered in possession of a firearm.
He was charged with a third-degree felony, violating R.C. 2923.13(A)(3),1 which
criminalizes knowing possession of a firearm if “[a] person is under indictment
for or has been convicted of any offense involving * * * any drug of abuse.” The
indictment tracked the language of the statute and charged that Johnson
“knowingly acquired, had, carried, or used a firearm * * * having been convicted
of * * * Drug Possession, in violation of [R.C.] 2925.11, * * * and/or * * * having
been convicted of the crime of Possession of Counterfeit Controlled Substance, in
violation of [R.C.] 2925.37.”2
         {¶ 4} During trial, the judge instructed the jury that “there has been a
stipulation” that Johnson had been convicted of the two offenses listed in the

1. {¶ a} R.C. 2923.13 provides:
    {¶ b} “(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code,
no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any
of the following apply:
    {¶ c} “* * *
    {¶ d} “(3) The person is under indictment for or has been convicted of any offense involving
the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or
has been adjudicated a delinquent child for the commission of an offense that, if committed by an
adult, would have been an offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse.”

2. Johnson argued before the court of appeals that his conviction for possession of a counterfeit
controlled substance was not a disabling conviction. That issue is not before us. He also argues
that to impose strict liability would violate due process of law. Because Johnson did not raise that
argument before the court of appeals in a separate assignment of error, we decline to address it.




                                                  2
                                January Term, 2010




indictment, but neither the indictment nor the jury instructions mentioned a
culpable mental state to be proved with regard to the prior convictions. The jury
was told that the state was required to prove beyond a reasonable doubt that
Johnson knowingly possessed the firearm but was not told that the state had to
prove any mental state with respect to his prior convictions or that he was aware
that they prohibited him from possessing a firearm.
       {¶ 5} Johnson was found guilty and was sentenced to one year in prison.
He appealed his conviction, arguing that his trial was structurally flawed because
the indictment failed to allege, and the jury failed to consider, whether he knew or
was recklessly unaware that his prior convictions prohibited him from possessing
a firearm.
       {¶ 6} On appeal, the Eighth District Court of Appeals determined that
the state was required to show that Johnson had knowingly possessed a firearm
and that he had done so recklessly with regard to knowledge that “he had been
convicted of an offense that prohibited him from having a weapon.” (Emphasis
sic.) State v. Johnson, 8th Dist. No. 91701, 2009-Ohio-3101, ¶ 32.
       {¶ 7} We accepted the state’s discretionary appeal on the following
proposition of law: “When a disability is based on a prior conviction, the State is
not required to prove that a defendant is reckless in his knowledge that a prior
conviction creates a disability that criminalizes knowing possession of a firearm
or dangerous ordnance.” We agree with the state’s proposition of law and hold
that a conviction of the offense of having weapons while under disability as
defined by R.C. 2923.13(A)(3) does not require proof of a culpable mental state
for the element that the offender is under indictment for or has been convicted of
any offense involving the illegal possession, use, sale, administration, distribution,
or trafficking in any drug of abuse. We further hold that R.C. 2901.21(B) does
not supply the mens rea of recklessness unless there is a complete absence of




                                          3
                               SUPREME COURT OF OHIO




mens rea in the section defining the offense and there is no plain indication of a
purpose to impose strict liability.
                                  II. Legal Analysis
            A. Basic Requirements for Criminal Liability — R.C. 2901.21
          {¶ 8} As we analyze what the state is required to prove to convict an
accused of an offense, we first recognize that all conduct is innocent unless there
is a statute that criminalizes it. See R.C. 2901.03(A) (“No conduct constitutes a
criminal offense against the state unless it is defined as an offense in the Revised
Code”).      Generally, an offense will be defined in terms of a prohibited act
accompanied by a culpable mental state, the “mens rea” or guilty mind. R.C.
2901.21 sets forth the basic requirements for criminal liability.         The statute
provides:
          {¶ 9} “(A) Except as provided in division (B) of this section, a person is
not guilty of an offense unless both of the following apply:
          {¶ 10} “(1) The person's liability is based on conduct that includes either a
voluntary act, or an omission to perform an act or duty that the person is capable
of performing;
          {¶ 11} “(2) The person has the requisite degree of culpability for each
element as to which a culpable mental state is specified by the section defining the
offense.
          {¶ 12} “ * * *
          {¶ 13} “(D) As used in this section:
          {¶ 14} “ * * *
          {¶ 15} “(3) ‘Culpability’ means purpose, knowledge, recklessness, or
negligence, as defined in section 2901.22 of the Revised Code.” (Emphasis
added.)




                                            4
                                 January Term, 2010




        {¶ 16} Thus, every criminal offense is made up of (1) a voluntary act or
failure to act when there is a duty and (2) a culpable mental state for each element
that specifies a mental state. R.C. 2901.21(A).
      B. The Statute that Supplies Missing Mental States — R.C. 2901.21(B)
        {¶ 17} As the emphasized portion of R.C. 2901.21(A)(2) shows, a
separate mental state need not be specified for every element of an offense. And
although the general rule for criminal liability requires a culpable mental state, a
guilty intent is not necessary for every offense. State v. Morello (1959), 169 Ohio
St. 213, 8 O.O.2d 192, 158 N.E.2d 525. Offenses without any culpable mental
state are strict- liability offenses, and they impose liability for simply doing a
prohibited act. In this type of case, ignorance of a fact or an element of the
offense is not a defense. See State v. Kelly (1896), 54 Ohio St. 166, 43 N.E. 163.
        {¶ 18} Because strict liability for an offense is the exception to the rule,
the General Assembly set forth in R.C. 2901.21(B) a test that indicates whether an
offense is a strict liability offense: “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.” (Emphasis added.)
        {¶ 19} The first sentence of R.C. 2901.21(B) explains that an offense is a
strict liability offense when the section defining the offense does not specify a
mens rea and the section also plainly indicates a purpose to impose strict liability.
The second sentence instructs us to impose the default mens rea of recklessness
when the section defining the offense does not specify a mens rea and the section
does not plainly indicate an intent to impose strict liability.
                              1. Previous interpretations




                                           5
                                SUPREME COURT OF OHIO




        {¶ 20} Prior cases under R.C. 2901.21(B) have focused on whether the
statute in question plainly indicated a purpose to impose strict liability. In some
of those cases, we addressed a complete absence of a mens rea in the section
defining the offense.3 In State v. Adams (1980), 62 Ohio St.2d 151, 152-153, 16
O.O.3d 169, 404 N.E.2d 144, for example, we looked at child endangering, as
formerly defined in R.C. 2919.22(B)(2) (now (B)(3)):
        {¶ 21} “(B) No person shall do any of the following to a child under
eighteen or a mentally or physically handicapped child under twenty-one:
        {¶ 22} “* * *
        {¶ 23} “(2) Administer corporal punishment or other physical disciplinary
measure, or physically restrain the child in a cruel manner or for a prolonged
period, which punishment, discipline, or restraint is excessive under the
circumstances and creates a substantial risk of serious physical harm to the child.”
        {¶ 24} Because the General Assembly did not specify any degree of
culpability and did not plainly indicate a purpose to impose strict criminal
liability, we held that the state must prove recklessness.
        {¶ 25} In another case involving the complete absence of a mens rea
element, we considered the offense of robbery, a felony of the second degree, as
defined in R.C. 2911.02(A)(1). State v. Wharf (1999), 86 Ohio St.3d 375, 715
N.E.2d 172. That statute states: “No 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.”
We stated, “Our reading of the statute leads us to conclude that the General


3. See State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144 (R.C.
2919.22(B)(2)); State v. Parrish (1984), 12 Ohio St.3d 123, 12 OBR 164, 465 N.E.2d 873 (R.C.
2907.25(A)); State v. O’Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144 (R.C.
2919.22(B)(3)); State v. Young (1988), 37 Ohio St.3d 249, 525 N.E.2d 1363 (R.C.
2907.323(A)(3)); State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975 (R.C. 2919.22(A));
State v. Collins, 89 Ohio St.3d 524, 733 N.E.2d 1118 (R.C. 2919.21(B)); State v. Moody, 104 Ohio
St.3d 244, 2004-Ohio-6395, 819 N.E.2d 268 (R.C. 2919.24).




                                               6
                                   January Term, 2010




Assembly intended that a theft offense, committed while an offender was in
possession or control of a deadly weapon, is robbery and no intent beyond that
required for the theft offense must be proven. According to the statutory language,
possession of a deadly weapon is all that is required to elevate a theft offense to
robbery.” Id. at 377. This court therefore held that there was a plain intent for
R.C. 2911.02(A)(1) to be a strict liability offense.
        {¶ 26} In a second line of cases, we analyzed offenses in which the
General Assembly has specified a mens rea in one discrete clause or subsection of
a section defining the offense but not in another clause or subsection.4 R.C.
2915.03, for example, defines the offense of operating a gambling house:
        {¶ 27} “(A) No person, being the owner or lessee, or having custody,
control, or supervision of premises, shall:
        {¶ 28} “(1) Use or occupy such premises for gambling in violation of
section 2915.02 of the Revised Code;
        {¶ 29} “(2) Recklessly permit such premises to be used or occupied for
gambling in violation of 2915.02 of the Revised Code.”
        {¶ 30} Because the General Assembly specified the mental state of
recklessly in subsection (A)(2) but did not specify a mens rea for subsection
(A)(1), we determined that the missing mens rea in (A)(1) was a plain indication
of a purpose to impose strict criminal liability for a violation of R.C.
2915.03(A)(1). State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428
N.E.2d 428.
        {¶ 31} We now conclude, however, that the plain language of R.C.
2901.21(B) does not cover this second line of cases in which the General


4. See State v. Wac (1981), 68 Ohio St.2d 84, 428 N.E.2d 428 (R.C. 2915.02(A)(1) and
2915.03(A)(1)); State v. Jordan (2000), 89 Ohio St.3d 488, 733 N.E.2d 601 (R.C. 2923.17); State
v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242 (R.C. 2907.321(A)(6)); State v
Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770 (R.C. 2925.03(C)(5)(b)); Clay, 120
Ohio St.3d 528, 2008-Ohio-6325, 900 N.E.2d 1000 (R.C. 2923.13(A)(3)).




                                              7
                            SUPREME COURT OF OHIO




Assembly has specified a mens rea in only one discrete clause or subsection of a
section defining the offense, excluding another clause or subsection of the
offense. R.C. 2901.21(B) requires us to examine the entire section defining the
offense, not merely a clause or subsection.
                       2. Clarification of R.C. 2901.21(B)
       {¶ 32} We recognize that discerning the General Assembly’s intent to
impose strict criminal liability has been fraught with difficulty. See Felicia I.
Phipps, Strict Liability or Recklessness: Untangling the Web of Confusion
Created by Ohio Revised Code Section 2901.21(B) (2010), 35 U.Dayton L.Rev.
199. A close reading of the statute shows the error of previous interpretation and
application.
   a. The mens rea of recklessness can be supplied only if the definition of the
                offense as a whole is missing a mens rea element
       {¶ 33} Both sentences in R.C. 2901.21(B) require that the section defining
the offense lack any degree of culpability. Although R.C. 2901.21(A)(2) provides
for the possibility that each element of an offense may have its own mens rea,
there is no requirement that every element have one. Our statute contrasts with
Section 2.02(1) of the Model Penal Code, which requires proof of culpability as to
each element of the offense except for minor noncriminal violations punishable
by fine only.
       {¶ 34} R.C. 2901.21(B) requires us to examine the section defining the
offense as a whole; it does not require an element-by-element analysis. R.C.
2901.21(B) offers a default rule to use when language defining an offense fails to
include any culpability.   Unless there is a plain indication of strict liability,
recklessness is sufficient culpability for the offense. However, if the General
Assembly has specified a mens rea in one part of the section defining the offense,
then the requirements of R.C. 2901.21(A) have been satisfied and there is no need
for analysis under R.C. 2901.21(B). R.C. 2901.21(B) was designed to apply only




                                         8
                                January Term, 2010




when there is a complete absence of culpability in the section defining the
offense.
       {¶ 35} The 1973 Legislative Service Commission comment to 1972
Am.Sub.H.B. No. 511 supports this determination. It explains, “The first part of
this section codifies the fundamental distinction between criminal conduct on the
one hand and innocent conduct or accident on the other: that, generally, an
offense is not committed unless a person not only does a forbidden act or fails to
meet a prescribed duty, but also has a certain guilty state of mind at the time of his
act or failure. The guilty state of mind, the mens rea, may attach to one, several,
or all of the elements of an offense, and different culpable (blameworthy) mental
states may attach to different elements in the same offense, depending on the
statute defining the offense.
       {¶ 36} “The second part of the section provides a uniform rule for
determining whether culpability is required when the statute is silent as to the
offender’s mental state at the time of the offense. Although the case law is not
entirely clear, the apparent rule is that even if the statute fails to specify a degree
of culpable mental state, strict criminal liability will not be applied unless the
statute plainly indicates that the legislature intended to impose strict liability. In
essence, the section codifies this rule, and also provides that when an intention to
impose strict liability is not apparent, recklessness is sufficient culpability to
commit the offense.” (Emphasis added.)
       {¶ 37} In other words, the General Assembly can impose a culpable
mental state on all, some, or none of the elements of an offense. Because R.C.
2901.21(B) is concerned with the offense as a whole, we should not examine
whether a particular element has been assigned a culpable mental state. We look
to the section defining the offense. When the General Assembly fails to include
any mens rea in the section defining the offense, we apply R.C. 2901.21(B) to
determine whether the offense is a strict liability offense or whether we must



                                          9
                                  SUPREME COURT OF OHIO




impose the default mens rea of recklessness to the offense. But when the General
Assembly chooses to specify a mens rea for each element of an offense, it is clear
that R.C. 2901.21(B) does not apply.
                  b. The General Assembly may, but need not, attach a
                     specific mens rea to each element of an offense
         {¶ 38} Johnson’s case represents a third category of offenses, in which the
General Assembly has included a mens rea for one element but not for the other
elements in the section defining the offense. For these offenses, if the General
Assembly intends for the additional elements to carry their own mens rea, it must
say so. Otherwise, no culpable mental state need be proved for those elements.
The dissent would adopt the approach of the Model Penal Code and, in this case,
would apply “knowingly” to the element of being “under indictment for or
                                                            5
[having] been convicted of” any drug offense.                   Section 2.02(4) of the Model
Penal Code states that when a mens rea is prescribed without distinguishing
among the material elements of the offense, that mens rea applies to all the
material elements.        In contrast, R.C. 2901.21(A)(2) provides that a culpable
mental state attaches only to the element specified.
         {¶ 39} Our determination that R.C. 2901.21(B) applies only to those
offenses for which there is a complete absence of a culpable mental state is
consistent with the two-part test we created in State v. Maxwell, 95 Ohio St.3d
254, 2002-Ohio-2121, 767 N.E.2d 242. When deciding whether a missing mens
rea must be inserted into the definition of an offense, “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


5. Although the dissent begins by citing R.C. 2901.21(A)(2) correctly, it then reads out certain
language that expressly provides that a person is not guilty of a criminal offense absent proof “of
culpability for each element as to which a culpable mental state is specified by the section defining
the offense.” In focusing on every element separately, the dissent fails to understand that the
General Assembly may choose not to specify a mens rea for every element.




                                                 10
                                 January Term, 2010




specify any degree of culpability, and (2) does the section plainly indicate a
purpose to impose strict criminal liability?” Id. at ¶ 21. In other words, if the
section defining the offense contains a mens rea, we answer the first question
“yes” and do not insert recklessness into the definition of the offense. We also do
not need to determine whether the section defining the offense contains a plain
indication to impose strict criminal liability.
        {¶ 40} Although we recently addressed the offense of having weapons
while under disability in State v. Clay, 120 Ohio St.3d 528, 2008-Ohio-6325, 900
N.E.2d 1000, a fresh look at R.C. 2923.13(A)(3) is necessary because our use of
R.C. 2901.21(B) has been imprecise.
           C. No Additional Mens Rea Required for R.C. 2923.13(A)(3)
        {¶ 41} Johnson was charged with having weapons while under disability
as defined in R.C. 2923.13(A)(3): “(A) * * * [N]o person shall knowingly acquire,
have, carry, or use any firearm or dangerous ordnance, if any of the following
apply: * * * (3) The person is under indictment for or has been convicted of any
offense involving the illegal possession, use, sale, administration, distribution, or
trafficking in any drug of abuse * * *.” (Emphasis added.)
        {¶ 42} In defining the offense, the General Assembly chose to specify a
culpable mental state for the element of possession of a weapon, but it did not
assign an additional mens rea for the additional elements of being under
indictment or having been convicted. Because R.C. 2923.13(A), which is part of
the definition of the offense, already contains the mens rea of “knowingly,” R.C.
2901.21(B) does not apply. We therefore need not determine whether there is a
plain indication of purpose to impose strict liability for these additional elements.
Furthermore, because R.C. 2901.21(B) does not apply, there is no statutory
provision that allows us to insert the mens rea recklessness into the statute. As a
result, for the offense of having weapons while under disability defined by R.C.
2923.13(A)(3), the state is not required to prove a culpable mental state for the



                                          11
                             SUPREME COURT OF OHIO




element that a defendant is under indictment for or has been convicted of any
offense involving a drug of abuse.
                                  III. Conclusion
       {¶ 43} For the foregoing reasons, we hold that for the offense of having
weapons while under disability as defined by R.C. 2923.13(A)(3), the state is
required to prove knowing possession but is not required to prove a culpable
mental state for the element that a defendant is under indictment for or has been
convicted of any offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse.
       {¶ 44} We therefore reverse the judgment of the court of appeals and
remand for consideration of the remaining assignments of error.
                                                                     Judgment reversed
                                                                and cause remanded.
       PFEIFER, LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.
       O’DONNELL, J., concurs in judgment only.
       BROWN, C.J., dissents.
                               __________________
       BROWN, C.J., dissenting.
       {¶ 45} R.C. 2901.21(A)(2) expressly provides that a person is not guilty
of a criminal offense absent proof “of culpability for each element as to which a
culpable mental state is specified by the section defining the offense.” (Emphasis
added.) Directly contrary to this statutory mandate, the majority determines that
where the General Assembly “has included a mens rea for one element but not for
the other elements in the section defining the offense,” no culpable mental state
will be required for the latter elements. (Emphasis sic.) Majority opinion, ¶ 38.
The majority concludes that “[f]or these offenses, if the General Assembly intends
for the additional elements to carry their own mens rea, it must say so.” Id. I fear




                                         12
                                    January Term, 2010




that this holding of potentially breathtaking scope will produce untold confusion
and litigation as prosecutors, defense counsel, and courts struggle to apply it.6
        {¶ 46} R.C. 2901.21(B) establishes rules for determining the required
degree of culpability (or mens rea), if any, where a section of the criminal code
fails to specify mens rea. The majority states that R.C. 2901.21(B) does not apply
to prosecutions for violations of the criminal code in which “the General
Assembly has specified a mens rea in only one discrete clause or subsection of a
section defining the offense,” but not in another discrete clause or subsection.
Majority opinion at ¶ 31. The majority includes R.C. 2923.23(A)(3), the statute
forbidding having weapons while under a disability (“WUD”), in this category of
cases. I agree.
        {¶ 47} I disagree, however, with the next analytical step taken by the
majority. Having found that R.C. 2901.21(B) does not apply to a WUD offense,
the majority determines that the express degree of culpability specified by the
General Assembly for conviction of a WUD offense (“knowingly”) applies only
to the element of possessing weapons and not to the remainder of elements set
forth in the WUD statute. The majority concludes that strict liability may be
imposed as to some elements of a statutorily defined offense, despite the express
inclusion of a required state of culpability in another “discrete clause or
subsection of a section defining the offense.” Id.


6. {¶ a} By way of example, consider R.C. 2913.02(A), which establishes the crime of theft by
providing:
   {¶ b} “No person, with purpose to deprive the owner of property or services, shall knowingly
obtain or exert control over either the property or services in any of the following ways:
   {¶ c} “(1) Without the consent of the owner or person authorized to give consent.” (Emphasis
added.)
   {¶ d} Presumably, because no culpability requirement is expressly stated as to the subsection
(A)(1) element of the crime, the majority would allow conviction for theft even in the absence of
proof that the alleged offender knew or was reckless or negligent as to whether he or she lacked
the consent of the owner to use the property. Teenaged drivers throughout Ohio might well
henceforth beware of using the family car.




                                               13
                             SUPREME COURT OF OHIO




       {¶ 48} R.C. 2901.21(A)(2) establishes that a person is not guilty of a
criminal offense absent proof “of culpability for each element as to which a
culpable mental state is specified by the section defining the offense” (emphasis
added)—not a statutory subsection or subdivision or “discrete clause” contained in
the section defining the offense. The general rule established in R.C.
2901.21(A)(2) applies, by the express language of the statute, where the General
Assembly has included a required degree of culpability within a section of the
code defining a criminal offense. As to those offenses, the strict-liability fallback
rules of R.C. 2901.21(B) are irrelevant. Accordingly, in my view, and consistent
with R.C. 2901.21(A)(2), conviction of a WUD offense should be dependent upon
proof of the required degree of culpability (“knowingly”) for “each element” of
that offense, i.e., both (1) possession of a weapon and (2) the fact that created the
disability to the carrying of a weapon, e.g., conviction of certain drug offenses (as
in the case at bar) or indictment for certain drug offenses (as in State v. Clay, 120
Ohio St.3d 528, 2008-Ohio-6325, 900 N.E.2d 1000). The first clause of R.C.
2901.21(A) requires that a person charged with a criminal offense have the
requisite degree of culpability for each element of the offense. The culpable
mental state specified for a WUD conviction under           R.C. 2923.13(A)(3) is
“knowingly,” and “knowingly” is thus the culpable mental state “specified by the
section defining the [WUD] offense.”
       {¶ 49} Nothing in the text of the WUD statute justifies the conclusion that
the General Assembly’s legislative drafting choice not to expressly repeat the
word “knowingly” in subsection (A)(3) reflects a legislative determination that no
culpability requirement exists as to the subsection (A)(3) element. Indeed, the
contrary inference should be drawn in accordance with generally accepted
principles of criminal law.      See, for example, the dictionary definition of
culpability stated in Black’s Law Dictionary (9th Ed.2009) 435: “Except in cases
of absolute liability, criminal culpability requires a showing that the person acted




                                         14
                                   January Term, 2010




purposely, knowingly, recklessly or negligently with respect to each material
element of the offense.” (Emphasis added.) In contrast, in Clay, this court
determined that “recklessly” rather than “knowingly” was the degree of
culpability required to be proved as to the defendant’s status of being under
indictment. That is, the court held that in order to obtain a conviction of the
WUD offense established in R.C. 2923.13(A)(3) the state was required to prove
the mens rea element of recklessness as to the defendant’s awareness that he had
been indicted. Had I been a member of the court in 2008, when State v. Clay was
decided, I would have taken the position that the correct answer to the question
certified to the court7 was as follows: Knowledge of the pending indictment is
required for a conviction for having a weapon while under disability pursuant to
R.C. 2923.13(A)(3) when the disability is based on a pending indictment. But the
court in Clay held otherwise. I recognize that Clay is a case decided barely two
years ago, and I acknowledge its status as controlling precedent.
        {¶ 50} The court of appeals did not find it difficult to apply Clay to the
case at bar, nor should it have. The General Assembly has expressly provided
that proof that an accused acted “knowingly” also constitutes proof that the
defendant acted “recklessly.” R.C. 2901.22(E) (“When recklessness suffices to
establish an element of an offense, then knowledge or purpose is also sufficient
culpability for such element”). Thus, in accordance with Clay, the state in the
case at bar could have proved the culpable mental state of recklessness required
for a WUD conviction by demonstrating that Johnson actually knew, or was at
least reckless in not knowing, at the time of possessing the weapon, that he had
been previously convicted of a drug-abuse charge. The state would have had little
difficulty in proving this fact in its prosecution of Johnson—its burden could have

7. In Clay, the 8th District Court of Appeals had certified the following issue to this court:
“Whether knowledge of the pending indictment is required for a conviction for having a weapon
while under disability pursuant to R.C. 2923.13(A)(3) when the disability is based on a pending
indictment.”




                                              15
                             SUPREME COURT OF OHIO




been satisfied by the production of proof that the defendant knew that he had been
convicted of a drug-abuse charge. The prosecutor needed only to introduce
evidence from the record of the earlier criminal proceedings—Johnson
undoubtedly was told during the sentencing process after conviction of the drug
offenses that he had been found guilty of drug offenses.
       {¶ 51} Contrary to the suggestion of the state, the court of appeals in the
case at bar did not require the state to prove that the defendant was reckless in not
knowing the legal consequences of being under indictment.           Nowhere in its
opinion did the court of appeals suggest that the state was required to prove that
the defendant knew that the fact that he was under indictment meant that he could
not legally carry a weapon. Nor does this court’s opinion in Clay imply that
requirement. The effect of Clay was that the state in WUD prosecutions must
prove that if the defendant did not actually know he was under indictment or had
been convicted of a drug offense, he was at least reckless in not knowing that fact
at the time he possessed the weapon. Nothing in Clay warrants the conclusion
that the state must prove additionally that a person charged with a WUD offense
knew, or was reckless in not knowing, that a legal consequence of an indictment
or conviction was that he or she was prohibited by law from possessing a weapon.
To do so would contradict the well-established principle that ignorance of the law
is no excuse.
       {¶ 52} I do not believe that Clay can be logically distinguished from the
case at bar. Johnson was convicted of R.C. 2923.13(A)(3) just as Clay was—
even though the disability in Clay resulted from an indictment for drug offenses
and the disability in Johnson resulted from convictions of drug offenses. Thus,
the factual underpinnings of the case at bar differ from the facts in Clay only in
that, in this case, Johnson had not only been indicted but had also been convicted
of the drug offense. I believe that these two circumstances present a distinction
without a difference for purposes of legal analysis of the culpability requirements




                                         16
                                January Term, 2010




for a WUD conviction and that attempts to rationally distinguish Clay from the
case before us are futile.
        {¶ 53} In my view, the court of appeals correctly applied Clay. I do not
believe that adequate justification existed for this court to accept the case at bar
for review. I would therefore dismiss the state’s appeal in this case as having
been improvidently accepted. There not being a majority of votes in favor of that
disposition, it is my opinion that the judgment of the court of appeals should be
affirmed. I therefore respectfully dissent.
                               __________________
        William D. Mason, Cuyahoga County Prosecuting Attorney, and Thorin
Freeman and Daniel Van, Assistant Prosecuting Attorneys, for appellant.
        Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellee.
        D. Timothy Huey, urging affirmance for amicus curiae, Ohio Association
of Criminal Defense Lawyers.
                             ______________________




                                           17
