[Cite as State v. Tolliver, 2013-Ohio-115.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 24716
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 2010-CR-2996
v.                                                :
                                                  :
KEVIN D. TOLLIVER                                 :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                       :
                                                  :

                                               ...........

                                              OPINION

                              Rendered on the 18th day of January, 2013.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHARLES M. BLUE, Atty. Reg. #0074329, Murr, Compton, Claypoole & Macbeth, 401 East
Stroop Road, Kettering, Ohio 45429-2829
       Attorney for Defendant-Appellant

                                              .............

FAIN, J.

        {¶ 1}      Defendant-appellant Kevin Darvon Tolliver appeals from his conviction and
                                                                                           2


sentence for Robbery, in violation of R.C. 2911.02(A)(3), a felony of the third degree. He

contends that the trial court committed plain error when it failed to instruct the jury on

recklessness as the mens rea applicable to the element of the use, or threat of immediate use,

of force against a person. We agree. The judgment of the trial court is Reversed, and this

cause is Remanded for further proceedings consistent with this opinion.



           I. Tolliver Leaves a Dollar General Store with Stolen Merchandise

       {¶ 2}    Jasmine Jordan, an assistant manager at a Dollar General store, saw Tolliver

enter the store empty-handed, one day in September, 2010. Later, she saw Tolliver in a

confrontation with Sean Fields, a store employee. Tolliver had Dollar General bags full of

t-shirts, socks, and underwear, which Fields was asking him to give back. Tolliver said that

he had come in with the merchandise, and was attempting to return it.

       {¶ 3}    Jordan told Tolliver that she would take the merchandise and do the return,

intending thereby to regain possession of the merchandise. Tolliver said he did not have his

receipt with him, and began to leave the store with the merchandise. Jordan described what

happened next as follows:

               A. I am still standing, you know, face to face and I do – I put my arms out like

       this trying to get him to stop walking. And I’m pushed out of the way. And I push

       him back. And he raises his fist back like he’s going to punch me in my face.

               Q. Okay. Let me back up a little bit. When you put your arms out, what are

       you doing? Why did you put your arms out like that?

               A. Because I was trying to get him to stop and talk.
                                                                                                  3


              Q. Okay. And why was that?

              A. So I could try and get the stuff back. I was being calm and I was trying to

      get him to calm down. And, you know, and talk.

              Q. And again, is this Defendant saying anything to you at that time?

              A. That he’s not giving the merchandise back. He’s not going to give it to

      me.

              Q. And when you indicated that you were pushed out of the way, could you

      describe that push?

              A. Yes. I was standing in the doorway. And he shoved me. I did go back a

      little, but he didn’t – it wasn’t – it was kind of a powerful push, it was enough to move

      me out of the way.

              Q. Okay. Could you describe what Defendant used to push you?

              A. His hands.

              Q. One hand or two hands?

              A. Two hands.

              Q. You said it was enough to move you out of the way. What does that

      mean?

              ***

              THE WITNESS: When he pushed me I was standing in the doorway. And he

      knocked me back into the vestibule.

      {¶ 4}   Jordan clarified that she was standing in the inner doorway, between the

vestibule and the interior of the store, when she was shoved into the vestibule. Jordan
                                                                                            4


continued:

               Q. What happens after the push?

               A. I push him back.

               Q. Which direction is the Defendant facing when you push him?

               A. He is facing towards the door.

               ***

               Q. And what happens at that point when you push him back?

               A. His fist goes back and it looked as if he was getting ready to punch me in

       my face. And Sean Fields comes in between and pushes us both back.

       {¶ 5}    Tolliver made his way out of the store with the merchandise.

       {¶ 6}    Tolliver testified in his own defense. He admitted that he was shoplifting,

and that he told Fields and Jordan, falsely, that he was there to return the merchandise for

credit. He initially described the confrontation as follows:

               I’m like, “You know what, ma’am, I’m all right. I – you know, I go get my

       receipt.” I’m trying to go. So as I’m walking, she jumps in front of [sic] and we

       make contact. And so when we make the contact, she steps backs [sic] and, you

       know, push me. So I had to – you know, I’m like, man, what’s – you know, I come

       back like this off of the push, and when they fall back I leave.

               And so I’m like – I’m like at that point I just – I’m kind of like wired up, like

       all – because of the extra static. She just offered me, you know, exchange for the stuff

       and I was declined it. So I felt like I was free to go, you know. And as a result of

       that, all the other stuff came into play. That’s – you know, and like I was saying in
                                                                                               5


my opening statement, that a crime had been committed but not the crime in question

based on how that was going on. I wasn’t in there to cause no extra friction and stuff.

 If they would have ask – see, with the bag – took the bags or whatever, it would have

just been that, you know. But that’s pretty much.

       BY MR. CLOUD [defense counsel]:

       Q. So when they told you you were free to go –

       A. Yes, sir.

       Q. – and they tried to stop you –

       A. They – they – in actual – being honest, they never told me I was free to go,

per se. They just offered me to in-store credit. I declined it and I said, “Well, I go get

my receipt,” I’m just trying to leave with this – you know, go on about my business. I

said – when I asked – she said, “I’ll give you in-store credit,” I said, “No, I’ll go get my

receipt.”

       She said, “Well, hold on” – because I wanted to get cash. She said, “Hold on,

I give you cash,” trying to convince me to take cash.

       Q. Now when –

       A. I’m like, “Ma’am, I” – you know, I don’t got my receipt. I’m trying to go

ahead and go, you know, and she’s –

       ***

       Q. Why do you say you didn’t use force?

       A. Because I didn’t. I was just trying to leave. I never was in nor [sic]

forceful manner. I wasn’t like when they pulled up on me – when they asked me, I
                                                                                                   6


       wasn’t like freak out and try to bust out of the store. You know, I didn’t do that.

       You know, I said what I said, and they gave me the response they gave me. It’s like it

       was all right you know, but they – but the action of standing up and getting in front of

       me was like – like – it’s like, would the fish take the bait if he knew there was a hook

       on it. You know what I mean?

               It was like – you know what I’m saying? I – I didn’t – I knew I – you know,

       this was it, man. I was just trying to leave the store, man. I wasn’t trying – I didn’t –

       you know, didn’t have no intentions of using no force. I didn’t recklessly use force. I

       was trying to leave. They came onto me like, you know – and trying to force me to

       take the cash.

       {¶ 7}    On cross-examination, Tolliver testified that his arm motion, which Jordan

had described as his cocking his fist, was a defensive reaction to his having been pushed, and

was not intended as a threat.



                                II. The Course of Proceedings

       {¶ 8}    Tolliver was charged by indictment with Robbery (use of force), in violation

of R.C. 2911.02(A)(3).      Specifically, the indictment charged 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 another, to-wit:

JASMINE JORDAN; * * * .”

       {¶ 9}    At trial, Tolliver admitted to having committed the theft of the merchandise,

but denied that he intended to use or threaten force against Jordan, or that he was reckless in
                                                                                              7


that regard. The jury was not instructed that Tolliver had to have any particular mental state

of culpability with respect to the use or threatened use of force element of the offense, and

defense counsel did not request any instruction along those lines.

       {¶ 10} In its closing argument, the State alluded to the lack of a requirement of a

culpable mental state, at least concerning an intent to cause injury or harm:

               And basically what you have here is the Defendant, when he is trying to leave,

       uses that force. He uses that compulsion. He moves her out of the way. He’s trying

       to get away. He – you’ll notice nowhere in the instructions does it say he had to have

       a purpose to hurt her or to cause her injury at all. It just – he had to have used any

       form of compulsion or constraint, and that’s what he did when he put on [sic] his

       hands on her to move her out of the way so he could complete the theft. So he used

       force against her right when he pushed her.

       {¶ 11} The State claimed in closing argument that Tolliver admitted, “ ‘Yeah, when I

cocked my arm back it was to threaten her,’ because he said, ‘Well, I felt threatened.’ ” We

have reviewed the transcript, however, and Tolliver never admitted that he had a purpose to

threaten Jordan, despite the State’s attempts to get him to so admit.

       {¶ 12} The State then argued to the jury:

               * * * . And that’s because there isn’t any kind of – you don’t have to

       knowingly do it. It’s – frankly, if you do this at all during a theft offense, use any

       compulsion or threat of violence that’s sufficient under the law of Ohio to – to be a

       robbery.    Whether you think that’s right or not, that’s what the law is.        That’s

       something that the state of the law is. For whatever reason, that’s what the law is.
[Cite as State v. Tolliver, 2013-Ohio-115.]
        {¶ 13} The jury found Tolliver guilty as charged. Tolliver was sentenced to four

years, to be served consecutively with a sentence in another case. He was also ordered to pay

$100 in restitution to Dollar General.

        {¶ 14} From his conviction and sentence, Tolliver appeals.



 III. Recklessness Is the Mens Rea Applicable to the Element of the Use or Threatened

            Use of Force in a Prosecution for Robbery Under R.C. 2911.02(A)(3)

        {¶ 15} Tolliver’s sole assignment of error is as follows:

                 APPELLANT WAS PREJUDICED BY THE OMISSION OF AN ELEMENT

        OF THE CHARGED OFFENSE IN THE JURY INSTRUCTIONS, THEREBY

        DENYING THE APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW

        UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

        STATES CONSTITUTION AND ARTICLE 1 [sic], SECTION 10 OF THE

        CONSTITUTION OF THE STATE OF OHIO.

        {¶ 16} Tolliver relies upon 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), for the proposition that recklessness is the requisite mens rea for the element

of the use or threatened use of force in a prosecution for Robbery. The conviction under

review in Colon I was for Robbery in violation of R.C. 2911.02(A)(2), in which the element of

the offense in addition to the commission or attempted commission of a theft offense is to:

“Inflict, attempt to inflict, or threaten to inflict physical harm on another[.]” The Supreme

Court held that the required mens rea for this additional element is recklessness. Colon I, at ¶

11-15. Because the indictment in that case failed to allege recklessness in connection with
                                                                                                 9


the element of physical harm, there was structural error, which required reversal even though

the defendant had not challenged the sufficiency of the indictment in the trial court. Colon I,

at ¶ 32.

           {¶ 17} Colon I was reconsidered in Colon II. In reconsideration, the Supreme Court

of Ohio held that in a defective-indictment case, unless there are “multiple errors that are

inextricably linked to the flawed indictment,” as occurred in that case, the proper analysis is a

plain-error analysis, rather than a structural-error analysis, when the defendant has not

challenged the indictment in the trial court. Colon II, at ¶ 7-8. The Supreme Court cited as

the multiple errors justifying a structural-error analysis in that case the additional facts that the

State had not argued that the defendant’s conduct was reckless, but treated Robbery as a

strict-liability offense, and that the trial court did not include recklessness as an element of the

crime in its instructions to the jury. Id., at ¶ 6.

           {¶ 18} The State notes that in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830,

935 N.E.2d 26, a decision post-dating appellate cases cited by Tolliver, the Supreme Court of

Ohio overruled Colon I and Colon II. But Horner, at ¶ 45, only overruled that aspect of those

cases that held that an indictment tracking the language of the criminal statute describing the

offense, but lacking a mens rea element of the crime, is defective:

                  Today we recognize the confusion created by Colon I and II and hold that when

           an indictment fails to charge a mens rea element of the crime, but tracks the language

           of the criminal statute describing the offense, the indictment provides the defendant

           with adequate notice of the charges against him and is, therefore, not defective. See

           State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162 (an
                                                                                                   10


       indictment that does not identify the elements of a predicate offense provides adequate

       notice by citing the statute defining the predicate offense). * * * . In fact, Colon I is

       overruled, and Colon II is overruled to the extent that it holds that such an indictment

       is defective.

       {¶ 19} Curiously, as noted by Justice Pfeiffer in his dissent in Horner, it was

unnecessary in that case to reach the question of whether an indictment that omits a mens rea

element, but tracks the language of the statute, is defective. In Horner, the convictions under

review were for Aggravated Robbery, in violation of R.C. 2911.01(A)(3), which, in addition

to containing the element of committing or attempting to commit a theft offense, includes the

additional element to: “Inflict, or attempt to inflict, serious physical harm on another.” The

Supreme Court held that no mens rea was required for this additional element – as to that

element, Aggravated Robbery is a strict-liability offense. Id., at ¶ 53. Thus, even if the

indictment in that case had been required to include applicable mens rea elements, it was not

missing any; no mens rea element applied to the infliction-of-serious-physical-harm element.

Therefore, the Supreme Court would have reached the same result, even without overruling

Colon I and Colon II.

       {¶ 20} The net result of State v. Horner, supra, leaves the case before us in a legal

vacuum. Horner involved a conviction for Aggravated Robbery, not Robbery, and it did not

overrule that part of Colon I holding that recklessness is the mens rea required for the R.C.

2911.02(A)(2) element of infliction of physical harm, or an attempt to inflict harm, or a threat

to inflict harm. Furthermore, neither Horner, nor Colon I and Colon II involved the offense

at issue in the case before us, Robbery in violation of R.C. 2911.02(A)(3), which requires the
                                                                                             11


element (in addition to Theft) of the use of force against another, or the threat of immediate

force against another.     Notably, there is no corresponding additional element in the

Aggravated Robbery statute.

       {¶ 21} That the General Assembly regards a Robbery under R.C. 2911.02(A)(3) as

distinct from Robbery under either division (A)(1) or (A)(2) of the statute is apparent from the

fact that Robbery under division (A)(3) is a felony of the third degree, while a Robbery under

either of the other divisions of the statute is a felony of the second degree. The distinction

lies in the extent of the risk of physical harm to a person posed by the different offenses. A

Robbery under R.C. 2911.02(A)(1) involves a theft offense committed while the offender has

a deadly weapon on or about his person, or under his control. Obviously, this offense

involves a substantial risk of physical harm to a person or persons. A Robbery under R.C.

2911.02(A)(2) involves a theft offense in which the offender inflicts, attempts to inflict, or

threatens to inflict, physical harm on another. Here, too, there is a substantial risk of physical

harm to a person or persons.

       {¶ 22} The use, or the threat of immediate use, of force against another – the

additional element under R.C. 2911.02(A)(3) – may or may not pose a substantial risk of

physical harm to another, depending upon the degree of force involved. The risk of physical

harm is, generally speaking, less with regard to an (A)(3) Robbery. And, of course, it is much

less than the risk of physical harm in an Aggravated Robbery under R.C. 2911.01(A)(3),

which has as the additional element to Theft, the infliction, or attempt to inflict, serious

physical harm on another – the offense involved in State v. Horner, supra. Noticeably

missing from this additional element is the mere threat to inflict physical harm on another,
                                                                                          12


which is part of the additional element for a Robbery under R.C. 2911.02(A)(2) – the offense

involved in Colon I and Colon II.

       {¶ 23} The risk of physical harm is a significant part of the Horner analysis:

              Accordingly, under the [State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299,

       428 N.E.2d 428]/[State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d

       242] approach to applying R.C. 2901.21(B), in defining the offense of

       serious-physical-harm aggravated robbery, R.C. 2911.01(A)(3) “plainly indicates a

       purpose to impose strict liability.” It is clear that the General Assembly intended R.C.

       2911.01(A)(3) to hold persons responsible for aggravated robbery because of the

       heightened potential for even accidental physical harm that results from the

       commission of the robbery.

              The section defining the offense – R.C. 2911.01 – specifies “knowingly” as a

       mens rea for the crime defined in division (B) of that statute, and R.C. 2911.01(A)(3)

       includes as an element an underlying theft offense, which itself includes a mens rea.

       Additionally, R.C. 2911.01(A)(3), defining the offense of serious-physical-harm

       aggravated robbery, plainly indicates a purpose to impose strict liability. Accordingly,

       R.C. 2911.01(A)(3) does not require proof of a mental state, and an indictment that

       does not identify a mental state is not defective. State v. Horner, supra, at ¶ 52-53

       (emphasis added).

       {¶ 24} In short, as we understand the rationale in Horner, the General Assembly

intends that a person who actually inflicts, or who attempts to inflict, serious physical harm

upon another, while committing a Theft offense, should be punished for Aggravated Robbery,
                                                                                              13


regardless of his or her intent to injure the other person. Actually, conviction for an attempt

to commit an offense necessarily involves the mens rea of purposely or knowingly. R.C.

2923.02(A).    Therefore, under Horner, the only instances in which someone could be

convicted of an Aggravated Robbery under R.C. 2911.01(A)(3) as a strict-liability offense are

those in which the offender has, in fact, inflicted serious physical harm on another in

attempting to commit a Theft offense. We understand Horner to stand for the proposition

that if an offender commits a Theft offense, the offender accepts the risk that if the

commission of that offense proximately results in the infliction of serious physical harm on

another, the offender will be criminally liable for Aggravated Robbery. It is the serious

physical harm resulting from the train of events set in motion by the offender’s commission of

the Theft offense that makes the offender guilty of Aggravated Robbery as a strict-liability

offense, regardless of the offender’s lack of an intent to injure.

       {¶ 25} By contrast, in the case before us, no physical harm to Jordan, or to anyone

else, was alleged, nor is there any evidence in the record that anyone suffered physical harm,

serious or otherwise. In other words, the dire consequence of the offender’s commission of a

Theft offense – serious physical harm, which animated the Supreme Court of Ohio to hold, in

Horner, that the offense in that case was a strict-liability offense, is missing in the case before

us.

       {¶ 26} The issue is close. We hold that the mens rea applicable to the additional

element of Robbery under R.C. 2911.02(A)(3) – the use, or the threat of the immediate use, of

force against another – is that of recklessness. That element was not submitted to the jury,

and the State argued, in closing argument, that no recklessness was required, although it did
                                                                                                                                 14


argue, incorrectly, that Tolliver had admitted, in his testimony, that he had intended to threaten

Jordan.



                         IV. The Failure to Submit an Element of the Offense

                                        to the Jury Constitutes Plain Error

          {¶ 27} Tolliver acknowledges that he did not request that the jury be instructed on the

element of recklessness, did not object to the failure of the trial court’s charge to the jury to

include that instruction, and did not object to the State’s argument that it was not required to

prove mens rea in connection with the use, or threat of use, of force against another.

Therefore, unless the structural-error analysis adopted in Colon I applies, this assignment of

error must be analyzed under a plain-error analysis. Because we conclude that the omission

of an element of the offense from the instructions to the jury does constitute plain error, we

will assume, for purposes of analysis, that a plain-error analysis applies to this issue, not a

structural-error analysis.1

          {¶ 28} The failure to instruct a jury concerning an essential element of a charged

offense is a serious error, since it effectively removes that element of the offense from the

jury’s consideration.           If the jury is not instructed that it must find the element beyond

reasonable doubt to convict, it cannot be presumed from a verdict of guilty that the jury did, in

fact, find the essential element beyond reasonable doubt.


           1
               An argument can be made, under Colon I, that a structural-error analysis applies. As in that case, the jury was not instructed
 concerning the element of recklessness, and the State argued that proof of recklessness was not necessary, treating the offense as a
 strict-liability offense. Unlike Colon I, the indictment in this case charged recklessness. The State argues that this was mere surplusage,
 the result of uncertainty brought on by Colon I and II, with Horner only having been decided two months before the indictment in this case.
[Cite as State v. Tolliver, 2013-Ohio-115.]
        {¶ 29} Tolliver cites three cases for the proposition that the failure to instruct a jury

concerning an essential element of a criminal offense is always plain error, since it effectively

deprives the defendant of his full right to a jury trial: State v. Collins, 88 Ohio App.3d 291,

623 N.E.2d 1269 (2d Dist. 1993); State v. Endicott, 99 Ohio App.3d 688, 694-695, 651

N.E.2d 1024 (6th Dist. 1994); and State v. Stacy, 12th Dist., Butler No. CA2002-03-073,

2003-Ohio-3695, ¶ 7. The State has not cited any authority to the contrary.

        {¶ 30} State v. Collins was a decision of this court, but it was overruled in State v.

Tolliver, 2d Dist. Montgomery No. 15184, 1996 WL 715438 *5 (Dec. 13, 1996).2 In that

case, at *4, we held that even when the plain error asserted is the failure to instruct the jury on

an essential element of the offense, a manifest miscarriage of justice must be shown to secure

reversal. In that case, the defendant was convicted of Kidnapping, and the jury was never

instructed “that an essential element of the charged offense was that [the defendant’s] purpose

in removing [the victim] from the place where he was found or restraining him of his liberty

was for the purpose of terrorizing him or inflicting serious physical harm upon him.” Id., at

*2. We described the facts in that case as follows:

                  The State presented evidence that [the defendant] conspired with seven

        teenagers to lure her boyfriend, Brian Denney, into her basement, where they would

        beat him, tie him up, and cut off his hair. When Denney arrived home from work, he

        went to the basement, as was his custom, to change clothes. He was struck in the

        head from behind with a board, and fell to the floor where he was beaten by several of

        the teenagers and [the defendant]. [The defendant] and one teenager then tied Denney



          2
           The defendant in the case cited was Jackie Tolliver, not the same person as the defendant in the case before us.
                                                                                                   16


       to a chair, and [the defendant] and at least one of the teenagers beat Denney with

       pistols. [The defendant] then cut Denney's hair. While Denney was in the chair, one

       of the teenagers pointed a gun at Denney, and it discharged.           Afterwards, [the

       defendant] ordered Denney to leave the house.           Denney was treated at Good

       Samaritan Hospital for injuries inflicted during the incident. He lost a tooth and

       sustained a basilar skull fracture. When the police searched [the defendant’s] home

       pursuant to a warrant, they found blood not only on the floor, but high up on the walls

       of the basement. They also found Denney's hair. Id., at *1.

       {¶ 31} In concluding that the failure to have instructed the jury on the element of

having had the purpose of inflicting serious physical harm upon, or terrorizing, the victim was

not a manifest injustice, we noted that the attention of the jury was focused on a different

issue, exclusively:

               In the case before us, the real point of dispute between the parties was whether

       [the defendant] was a knowing participant in the brutal attack upon Denney.

       Although [the defendant] did not testify, her counsel argued in closing that she had no

       foreknowledge that the teenagers were going to tie Denney to a chair and beat him; the

       teenagers, on the other hand, testified that she had planned and instigated the assault.

       The question for the jury was whom to believe.

               Because the attention of the jury was never focused on whether [the defendant],

       assuming that she instigated and planned the assault, had the requisite purpose in doing

       so, it is unlikely that the jury's verdict turned upon the failure to have given the jury

       this instruction. We cannot, therefore, say that a manifest miscarriage of justice
                                                                                                     17


          occurred in this case. Id., at *2-3.

          {¶ 32} By contrast, in the case before us, Tolliver, who testified, did focus the

attention of the jury on his purpose, and state of mind, generally, during his physical

confrontation with Jordan, even going so far, at one point, as testifying that: “I didn’t

recklessly use force.”      (Emphasis added.)     Unlike the defendant in Tolliver, supra, the

defendant in the case before us did not claim that he was just a bystander to events involving

others.

          {¶ 33} We conclude that State v. Tolliver, supra, is distinguishable. While the jury

in the case before us might well have found on the evidence in the record that Tolliver

recklessly used force, or recklessly threatened the immediate use of force, against Jordan (or

even that he had the intent to do so), that element was very much in dispute between the

parties. The failure to submit that essential element to the jury worked a manifest injustice

upon Tolliver, because it deprived him of his right to have a jury decide that issue beyond

reasonable doubt.

          {¶ 34} The trial court’s failure to have submitted the issue of recklessness to the jury

was plain error. Tolliver’s sole assignment of error is sustained.



                                          V. Conclusion

          {¶ 35} Tolliver’s sole assignment of error having been sustained, the judgment of the

trial court is Reversed; and this cause is Remanded for further proceedings consistent with this

opinion.

                                                    .............
[Cite as State v. Tolliver, 2013-Ohio-115.]
DONOVAN, J., concurs.

HALL, J., dissenting:

        {¶ 36} Because I believe the use-of-force element in a prosecution for robbery under

R.C. 2911.02(A)(3) should not have recklessness added as a culpable mental state, I dissent.

        {¶ 37} I start with the wording of the statute itself, which does not include

recklessness as an element. The robbery statute in question already has two culpable mental

states. Robbery, in violation of R.C. 2911.02(A)(3), involves the commission of a theft

offense by force against a person. The theft statute, R.C. 2913.02, states: “(A) No person, with

purpose to deprive the owner of property or services, shall knowingly obtain or exert control

over either property or services * * *.” Therefore, to commit a robbery, an offender must both

purposely deprive the owner and knowingly obtain the property. Those are the only

mental-state elements of the offense.

        {¶ 38} A survey of case law interpreting the various forms of aggravated robbery and

robbery reveals that recklessness is not added as an element of those offenses. Aggravated

robbery in violation of R.C. 2911.01(A)(1) is the commission of a theft offense while having

and displaying or using a deadly weapon. In State v. Lester, 123 Ohio St.3d 396,

2009-Ohio-4225, 916 N.E.2d 1038, the Ohio Supreme Court held that recklessness should not

be read into the statute and that the weapon-display-or-use portion of the offense involved

strict liability. Likewise, for the R.C. 2911.01(A)(3) form of aggravated robbery, which

involves the commission of a theft offense with infliction of serious physical harm, the Ohio

Supreme Court has held that the infliction-of-serious-physical-harm element is strict liability.

State v. Horner, 126 Ohio St.3d 466, 2010–Ohio–3830, 935 N.E.2d 26. That form of

aggravated robbery does not require any further mens rea beyond what is encompassed in the
                                                                                           19


theft portion of the statute. Id. at ¶53. Similarly, robbery, in violation of R.C. 2911.02(A),

requires the commission of a theft offense while the offender merely has a deadly weapon. (A

lack of display or use of the weapon distinguishes this offense from aggravated robbery under

R.C. 2911.01(A)(1)).     In State v. Wharf, 86 Ohio St.3d 375, 715 N.E.2d 172 (1999),

paragraph one of the syllabus, the Ohio Supreme Court held that “[t]he deadly weapon

element of R.C. 2911.02(A)(1) * * * does not require the mens rea of recklessness.”

       {¶ 39} This brings us to the case that first added a reckless mens rea to a robbery

statute, State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (“Colon I”).

There the court determined that recklessness is an element of robbery in violation of R.C.

2911.02(A)(2), which involves the commission of a theft offense with infliction of physical

harm. I would not rely on Colon I as precedent for this proposition for at least two reasons.

First, as noted in Lester, “[i]n Colon I, there was ‘no dispute’ that the defendant's indictment

for robbery in violation of R.C. 2911.02(A)(2) was defective for failure to allege a mens rea.”

Lester at ¶29, quoting Colon I at ¶10. “‘[T]he state agree[d] that the omission in the

indictment of one of the essential elements of the crime of robbery,’ i.e., the mens rea,

rendered the indictment defective.” Id. Therefore, Colon I never really analyzed the

recklessness issue because the State had conceded the point. Second, in Horner, at both ¶45

and ¶54, the Ohio Supreme Court overruled Colon I, although perhaps not precisely on the

recklessness issue. Nevertheless, the clear implication of ¶54 of Horner is that Colon I was

wrongly decided regarding the addition of a reckless mens rea requirement to robbery under

R.C. 2911.02(A)(2).
[Cite as State v. Tolliver, 2013-Ohio-115.]
        {¶ 40} A review of other statutory wording, and its analysis or lack thereof, further

convinces me that recklessness should not be added as a culpable mental state for the force

element of robbery under R.C. 2911.02(A)(3). I note that the resisting-arrest statute, R.C.

2921.33, distinguishes between recklessness and force: “(A) No person, recklessly or by force,

shall resist or interfere with a lawful arrest * * *.” Because recklessness is distinguished from

force in that iteration, one could conclude the legislature viewed force and recklessness as

separate concepts. In the same vein, when the legislature requires the use of force to be

accompanied by a reckless mental state it does so explicitly, as in the assault statute, which

provides: “No person shall recklessly cause serious physical harm * * *.” R.C. 2903.13(B).

The absence of a similar reckless modifier for the word “force” in the robbery statute should

be viewed as an intention to exclude it. Moreover, force appears in numerous statutes, and I

could find no case law for any of them appending an unmentioned culpable mental state of

recklessness to the force element. For example, R.C. 2905.01, the kidnapping statute,

provides: “(A) No person, by force, * * * shall remove another * * *.” No case law supports

the notion that this force element must be accomplished recklessly. The standard OJI

instruction on the kidnapping offense does not suggest that recklessness should be included

for the force element. OJI 505.01. Similarly, R.C. 2911.11(A)(1), the aggravated burglary

statute, states: “No person, by force, * * * shall trespass * * *.” No case law supports the

notion that this force element must be accomplished recklessly. The standard instruction, OJI

511.11, does not suggest inclusion of a reckless instruction with regard to the force element. I

see no reason why the word “force” in the robbery statute, R.C. 2911.02(A)(3), should be

interpreted any differently than it is in these other statutes.

        {¶ 41} I recognize some courts of appeals have held that recklessness is a necessary
                                                                                           21


part of the force component of robbery under R.C. 2911.02(A)(3). See, e.g., State

v.Ripperger,12th Dist. Butler No. CA2007-11-304, 2009-Ohio-925, ¶14; State v. Adams,

12th Dist. Fayette No. CA2009–09–018, 2010–Ohio–1942, ¶13; State v. Robertson, 180 Ohio

App.3d 365, 2008-Ohio-6909, 905 N.E.2d 678, ¶ 23 (10th Dist.2008). But each of these cases

pre-dates Horner and the overruling of Colon I. There is also a reference in State v. Tyson,

10th Dist. Franklin No. 10AP–830, 2011–Ohio–4981, ¶ 33, that an R.C. 2911.02(A)(3)

robbery requires the reckless use of force. However, that statement is made without citation, or

analysis, and without recognition of the Horner result.

       {¶ 42} My conclusion is that robbery by force, prohibited by R.C. 2911.02(A)(3),

does not include a reckless mens rea for the force element. Thus, the trial court could not have

been at fault for not instructing the jury about recklessness. Accordingly, I would affirm the

judgment of the trial court.

                                                  .............



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