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Failure to Include Mental State in Indictment May Be ‘Structural’ Error That May be Raised on Appeal

2006-2139 and 2006-2250.  State v. Colon, Slip Opinion No. 2008-Ohio-1624.
Cuyahoga App. No. 87499, 2006-Ohio-5335.  Certified question answered in the negative and judgment reversed.
Moyer, C.J., and 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.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1624.pdf

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(April 9, 2008) The Supreme Court of Ohio ruled today that, when a criminal indictment fails to state the mens rea (guilty mental state) that the state must prove in order to secure a conviction for a charged offense, and the defendant fails to object to that defect in the trial court, the defendant has not waived the defect and may raise it for the first time in an appeal. 

The Court’s 4-3 majority decision was written by Chief Justice Thomas J. Moyer.

Vincent Colon of Cleveland was charged with robbery in a grand jury indictment that failed to include the essential element that he acted with the guilty mental state of  “recklessness” in inflicting or attempting to inflict physical harm on a neighbor when Colon tried to take the neighbor’s wallet. At his trial, the judge did not instruct the jury that it must find that Colon acted “recklessly” in inflicting or attempting to inflict harm on the victim in order to find him guilty of robbery. Colon did not enter an objection to the defective indictment during his trial. He was convicted of robbery and sentenced to seven years in prison.

Colon appealed his conviction and sentence, alleging among other assignments of error a claim that the indictment against him was fatally deficient because the grand jury did not find that he acted with the guilty mental state required to commit robbery. The 8th District Court of Appeals affirmed Colon’s robbery conviction and declined to review his claim regarding the defective indictment, holding that he could not raise that issue on appeal because his failure to raise it at trial constituted a permanent waiver of the issue.

The 8th District also certified, however, that its ruling with regard to the appealability of the defective indictment was in conflict with rulings by two other court of appeals districts. The Supreme Court accepted the case to resolve the conflict among appellate districts, and also agreed to hear arguments on a closely related proposition of law raised by Colon as a discretionary appeal.

Writing for the majority in today’s decision, Chief Justice Moyer noted that, because the state law defining the criminal offense of robbery does not specify a guilty mental state with which a defendant inflicted or threatened to inflict physical harm, the state was required to prove, beyond a reasonable doubt, that the defendant acted “recklessly” in  inflicting, attempting to inflict or threatening to inflict physical harm. Because the grand jury’s indictment failed to charge that the physical harm was recklessly inflicted, and this defect permeated the defendant’s entire criminal proceeding, the Chief Justice wrote: “(T)he 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.”

Quoting from the Court’s 2004 decision in State v. Perry, the Chief Justice wrote: “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. … 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. … In determining whether an alleged error is structural, our threshold inquiry is whether such error involves the deprivation of a constitutional right.”  (Quotations omitted.)

Applying that standard to Colon’s indictment and trial, the Chief Justice wrote: “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. 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. In addition … 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. … 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).”

“In summary,” Chief Justice Moyer concluded, “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.”

In rejecting the state’s argument that Colon should not be allowed to challenge his defective indictment in an appeal when he did not raise that objection before or during his trial, the Chief Justice wrote: “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. … 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.”

“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.” 

The majority opinion was joined by Justices Paul E. Pfeifer and Maureen O’Connor and Judge William H. Wolff Jr. of the 2nd District Court of Appeals, who sat in place of Justice Robert R. Cupp.

Justices Terrence O’Donnell and Judith Ann Lanzinger entered separate dissenting opinions, both of which were joined by Justice Evelyn Lundberg Stratton.

Justice O’Donnell disputed the majority’s finding that the defect in Colon’s indictment constituted structural error that Colon was entitled to raise for the first time on appeal despite having failed to object to it at trial.  Citing numerous state and federal court decisions, including the U.S. Supreme Court’s 1999 holding in Neder v. United States, Justice O’Donnell wrote: “In Neder,… the court reviewed an issue that is analogous to the one before us here. There, the trial court had given an instruction to the jury that omitted a necessary element of the offense, and the defendant asserted that this constituted structural error.  The Supreme Court rejected this argument, however, stating, ‘Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ (Emphasis sic.)  This conclusion is instructive, because if it is not structural error when a jury returns a guilty verdict based on an instruction that omitted a necessary element of the offense, then neither should it be structural error when an indictment omits a necessary element.”

“In my view,” wrote Justice O’Donnell, “the instant matter does not fall into the ‘very limited class of cases’ in which structural errors have been found … nor does the defect in Colon’s indictment resemble the errors that the United States Supreme Court has previously deemed to be structural in nature, such as the total denial of counsel in Gideon, the biased trial judge in Tumey, the grand jury selected on the basis of race in Vasquez, or the denial of self-representation at trial in Wiggins.”[case citations omitted] “Moreover, the majority’s holding in this case contradicts our decisions in numerous other cases in which we applied the plain-error doctrine when a defendant failed to object in the trial court to a defective indictment.”

Agreeing that the defective indictment in this case did not rise to the level of structural error, Justice Lanzinger wrote that because Colon waived the mens rea defect by failing to object to it before or during his trial, the court of appeals should have reviewed the error “if at all, under the plain error analysis of Crim.R. 52(B).” 

Justice Lanzinger cited numerous prior decisions, including two capital murder cases, in which the Court has held that the omission of an element of a charged crime from an indictment was not structural error requiring that the defendant receive a new trial. She concluded: “Because appellant failed to raise the defect in his indictment as an issue before the trial court, he waived the defect pursuant to Crim.R. 12. The issue of the defect in the indictment, having not been raised until the appeal, is subject to an analysis under plain error, which means that the court of appeals should have determined whether this error in the indictment should be noticed to correct a manifest injustice, and if so, whether appellant has met his burden to show prejudice in that but for the error the outcome would have been different. ... I would hold that in failing to raise a mens rea defect in his indictment during his proceedings in the trial court, appellant waived his objections pursuant to Crim.R. 12. Therefore, I would reverse the judgment and remand the case to the court of appeals.”

Cullen Sweeney, 216.443.3660, for Vincent Colon.

Jon W. Oebker, 216.443.8146, for the state and Cuyahoga County prosecutor’s office.