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[Cite as State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830.]

THE STATE OF OHIO, APPELLEE, v. HORNER, APPELLANT.

[Cite as State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830.]

Criminal law — Indictments — Sufficiency — Indictment charging offense by

tracking language of criminal statute not defective for failure to identify

culpable mental state when statute itself fails to specify mental state —

When criminal statute includes mens rea element in one discrete clause,

subsection, or division but not in another, State v. Wac and State v.

Maxwell apply to determine mental state — Failure to object to defect in

indictment constitutes waiver of all but plain error.

(Nos. 2009-0079 and 2009-0311 — Submitted April 20, 2010 — Decided

August 27, 2010.)

APPEAL from and CERTIFIED by the Court of Appeals for Lucas County,

No. L-07-1224, 2008-Ohio-6169.

__________________

SYLLABUS OF THE COURT

1. An indictment that charges an offense by tracking the language of the

criminal statute is not defective for failure to identify a culpable mental

state when the statute itself fails to specify a mental state. (State v.

Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162,

reaffirmed; State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885

N.E.2d 917, overruled; State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-

3749, 893 N.E.2d 169, overruled in part.)

2. When the General Assembly includes a mens rea element in one discrete

clause, subsection, or division of a statute but not in another discrete

clause, subsection, or division of that statute, courts must apply the

analysis in State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428

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N.E.2d 428, and State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121,

767 N.E.2d 242, to determine the mental state where none is specified.

3. By failing to timely object to a defect in an indictment, a defendant waives

all but plain error on appeal. (Crim.R. 12(C)(2) and 52(B), followed; State

v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917,

overruled.)

__________________

LUNDBERG STRATTON, J.

{¶ 1} Pursuant to Section 3(B)(4), Article IV of the Ohio Constitution

and App.R. 25, the Sixth District Court of Appeals certified its judgment in this

case as being in conflict with the judgments of the Eighth District Court of

Appeals in State v. Briscoe, 8th Dist. No. 89979, 2008-Ohio-6276, and the Third

District Court of Appeals in State v. Alvarez, 3rd Dist. No. 4-08-02, 2008-Ohio-

5189, on the following issue: “Whether the holdings of State v. Colon, 118 Ohio

St.3d 26, 2008-Ohio-1624 [885 N.E.2d 917] and State v. Colon, 119 Ohio St.3d

204, 2008-Ohio-3749 [893 N.E.2d 169] are applicable to the offense of

aggravated robbery in violation of R.C. 2911.01(A)(3) or only to the offense of

robbery, a violation of R.C. 2911.02(A)(2).” We also accept appellant’s

discretionary appeal on Proposition of Law Nos. I and II but stayed briefing on

the appeal.1

{¶ 2} We hold that neither of the two Colon cases are applicable and the

indictment was not defective. Accordingly, we affirm the judgment of the court

of appeals.

I. Facts

{¶ 3} In March 2006, Gregory Horner, defendant-appellant, and his

codefendant, James Hahn, met two Michigan businessmen, Robert Peck and Tim

1. In view of our resolution of the certified question, we dismiss the appeal as having been improvidently accepted.

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Mulroy, and Robert’s son, Kyle, on the pretense of selling Peck and Mulroy a

muscle car. Horner and Hahn beat the victims and robbed them of cash.

{¶ 4} A grand jury indicted Horner on six counts relating to his crimes,

including two counts of aggravated robbery, in violation of R.C. 2911.01(A)(3),

with firearm specifications, in relation to the two adult victims; one count of

aggravated robbery in violation of R.C. 2911.01(A)(3), which was later amended

to R.C. 2911.01(A)(1), with a firearm specification; and three counts of felonious

assault in violation of R.C. 2903.11(A)(1), with firearm specifications.

{¶ 5} Horner pleaded no contest to five counts. In exchange, the state

nolled one count of felonious assault and recommended a maximum sentence of

ten years. Horner’s codefendant was sentenced to 12 years rather than the state-

recommended sentence of ten years. Horner then orally requested leave to obtain

new counsel and to file a motion to withdraw his no-contest plea. The trial court

held a hearing on the motion to withdraw his plea in May 2007. Horner, who had

retained new counsel, testified on direct and cross-examination. The trial court

denied the motion to withdraw the plea and sentenced him to 11 years.

{¶ 6} On appeal, Horner argued for the first time that the two counts of

aggravated robbery in the indictment were insufficient pursuant to State v. Colon,

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

Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (“Colon II”),

because a culpable mental state was not included in the indictment. The Sixth

District Court of Appeals disagreed, holding that Colon I and Colon II apply only

to cases in which a defendant has been indicted for robbery pursuant to R.C.

2911.02(A)(2). Since Horner was charged with aggravated robbery rather than

robbery, the court held that his indictment was not defective. Thus, the court held

that there was no plain error and, accordingly, affirmed the judgment of the trial

court.

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{¶ 7} The Sixth District certified a conflict over the applicability of

Colon I and Colon II, and recognizing the conflict, we accepted jurisdiction.

II. Law and Analysis

A. The Indictment

{¶ 8} Section 10, Article I of the Ohio Constitution provides that “no

person shall be held to answer for a capital, or otherwise infamous, crime, unless

on presentment or indictment of a grand jury.” Crim.R. 7(B) explains the

structure and sufficiency requirements of an indictment: “The statement may be

made in ordinary and concise language without technical averments or allegations

not essential to be proved. The statement may be in the words of the applicable

section of the statute, provided the words of that statute charge an offense, or in

words sufficient to give the defendant notice of all the elements of the offense

with which the defendant is charged.”

{¶ 9} When the offense does not track the language of the statute,

Crim.R. 7(D) addresses amendments to criminal indictments: “The court may at

any time before, during, or after a trial amend the indictment, information,

complaint, or bill of particulars, in respect to any defect, imperfection, or

omission in form or substance, or of any variance with the evidence, provided no

change is made in the name or identity of the crime charged.” We have held that

“[a]n indictment, which does not contain all the essential elements of an offense,

may be amended to include the omitted element, if the name or the identity of the

crime is not changed, and the accused has not been misled or prejudiced by the

omission of such element from the indictment. (Crim.R. 7[D] construed and

applied.)” State v. O’Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d

144, paragraph two of the syllabus.

{¶ 10} The purpose of a grand jury indictment has always been to give

notice to the accused: “[A] criminal offense must be charged with reasonable

certainty in the indictment so as to apprise the defendant of that which he may

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expect to meet and be required to answer; so that the court and jury may know

what they are to try, and the court may determine without unreasonable difficulty

what evidence is admissible.” Horton v. State (1911), 85 Ohio St. 13, 19, 96 N.E.

797.

{¶ 11} Expanding on the idea of notice to the accused, we have held that

“[t]he purposes of an indictment are to give an accused adequate notice of the

charge, and enable an accused to protect himself or herself from any future

prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-

Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks (1962), 173 Ohio St.

415, 417, 20 O.O.2d 43, 183 N.E.2d 373 and State v. Sellards (1985), 17 Ohio

St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781. In Buehner, we held that an

indictment that tracked the language of the charged offense and identified a

predicate offense by statute number but did not include each element of the

predicate offense still provided the defendant with adequate notice of the charges

against him. Id. at syllabus.

{¶ 12} In Buehner, the defendant was charged with ethnic intimidation

under R.C. 2927.12(A), an element of which is the commission of a predicate

offense (“No person shall violate [R.C.] 2903.21, 2903.22, 2909.06, or 2917.21 *

* * by reason of the race, color, religion, or national origin of another person or

group of persons”). The indictment tracked the language of the statute and

identified by statute number which of the several predicate offenses was being

charged. We rejected the argument that the indictment was defective for failing to

list the elements of the predicate offense, concluding that it is the predicate

offense itself and not the elements of the predicate offense that is an essential

element of the charged offense. Therefore, the indictment provided the defendant

with adequate notice of the charge against him. Id. at ¶ 12.

{¶ 13} Here, the two counts of the indictment in question read: “[I]n

attempting or committing a theft offense as defined in §2913.01 of the Revised

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Code, or in fleeing immediately after the attempt or offense, [Horner] did inflict,

or attempt to inflict, serious physical harm on another, in violation of

§2911.01(A)(3) OF THE OHIO REVISED CODE, AGGRAVATED ROBBERY,

BEING A FELONY OF THE FIRST DEGREE.”

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

follows:

{¶ 15} “(A) No person, in attempting or committing a theft offense, as

defined in section 2913.01 of the Revised Code, or in fleeing immediately after

the attempt or offense, shall do any of the following:

{¶ 16} “ * * *

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

{¶ 18} As required by Buehner, the language of the indictment tracked the

language of the statute. However, Horner argues that this court’s post-Buehner

decisions in Colon I and Colon II render his indictment defective on counts one

and two and, in turn, require this court to vacate those convictions. We disagree.

B. Absence of a Culpable Mental State and the Role of R.C. 2901.21(B)

{¶ 19} As can be seen above, the aggravated-robbery statute does not

expressly state a mental state for aggravated robbery when it involves inflicting or

attempting to inflict serious physical harm on another during the commission of

the robbery. Consequently, we must turn to R.C. 2901.21(B), which provides

guidance in determining the requirements for criminal liability when a statute

defining an offense does not provide a mental state.

{¶ 20} R.C. 2901.21(B) provides:

{¶ 21} “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

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nor plainly indicates a purpose to impose strict liability, recklessness is sufficient

culpability to commit the offense.” (Emphasis added.)

{¶ 22} In deciding whether, pursuant to R.C. 2901.21(B), recklessness is

the culpable mental state required to commit the crime of aggravated robbery as

defined in R.C. 2911.01(A)(3), we first consider the words of the statute to

determine legislative intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101,

105, 65 O.O.2d 296, 304 N.E.2d 378. We must “give effect to the words used,

not * * * delete words used or * * * insert words not used.” Columbus-Suburban

Coach Lines, Inc. v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d

445, 254 N.E.2d 8.

{¶ 23} Horner argues that recklessness is the requisite culpable mental

state for aggravated robbery under R.C. 2911.01(A)(3). The state contends that

no specific mental state must be charged or proven. Under R.C. 2901.21(B),

recklessness is sufficient culpability to commit an offense if two factors are

present. First, the section of the Revised Code defining the offense must not

specify any degree of culpability. Second, the section must not plainly indicate a

purpose to impose strict liability.

1. Analysis of R.C. 2901.21(B) in State v. Wac and State v. Maxwell

{¶ 24} Our line of cases conducting this analysis begins with the seminal

case of State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428,

where we found plain indications that the General Assembly meant to impose

strict criminal liability for the crimes of bookmaking in violation of R.C.

2915.02(A)(1) and operating a gambling house in violation of R.C.

2915.03(A)(1). Wac argued that recklessness was an element of bookmaking

because R.C. 2915.02(A)(1) neither specified a culpable mental state nor plainly

indicated a purpose to impose strict liability.

{¶ 25} R.C. 2915.02 provides:

{¶ 26} “(A) No person shall do any of the following:

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{¶ 27} “(1) Engage in bookmaking, or knowingly engage in conduct that

facilitates bookmaking.”

{¶ 28} We held that “[t]he General Assembly included the culpable

mental state of ‘knowingly’ as an element of facilitating bookmaking.

Nevertheless, there is no such requirement in the same subsection for bookmaking

per se. This exclusion ‘plainly indicates a purpose to impose strict criminal

liability * * *.’ R.C. 2901.21(B).” (Emphasis sic.) Id., 68 Ohio St.2d at 86, 22

O.O.3d 299, 428 N.E.2d 428.

{¶ 29} Further, Wac argued that recklessness was an element of operating

a gambling house because R.C. 2915.03(A)(1) did not specify a culpable mental

state for using or occupying premises for gambling. The statute provides:

{¶ 30} “(A) No person, being the owner or lessee, or having custody,

control, or supervision of premises, shall:

{¶ 31} “(1) Use or occupy such premises for gambling in violation of

section 2915.02 of the Revised Code;

{¶ 32} “(2) Recklessly permit such premises to be used or occupied for

gambling in violation of section 2915.02 of the Revised Code.”

{¶ 33} With regard to operating a gambling house, we held that “[t]he

General Assembly included recklessness as an element of permitting gambling on

one’s premises in subsection (2). Subsection (1), however, does not contain a

comparable standard. This exclusion ‘plainly indicates a purpose to impose strict

criminal liability * * *.’ R.C. 2901.21(B).” Wac, 68 Ohio St.2d at 87, 22 O.O.3d

299, 428 N.E.2d 428.

{¶ 34} Thus, in R.C. 2915.02 (bookmaking), we concluded that when a

single subsection of a statute with two discrete clauses contains one clause that

expresses a culpable mental state and another discrete clause that does not, the

General Assembly has plainly indicated a purpose to impose strict criminal

liability under R.C. 2901.21(B). In addition, in R.C. 2915.03 (gambling house),

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which involved two separate divisions of the statute rather than a single

subsection with two discrete clauses, we concluded that the inclusion of a

culpable mental state in one division and the omission of a culpable mental state

from another division means that the General Assembly plainly indicated a

purpose to impose strict criminal liability for the second division.

{¶ 35} Continuing the analysis from State v. Wac, in State v. Maxwell, 95

Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, this court considered R.C.

2907.321(A)(6), which provides:

{¶ 36} “(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

{¶ 37} “* * *

{¶ 38} “(6) Bring or cause to be brought into this state any obscene

material that has a minor as one of its participants or portrayed observers.”

{¶ 39} In examining whether R.C. 2901.21(B) supplied the culpable

mental state of recklessness for the element of bringing child pornography into the

state, we noted that “we need to determine whether the entire section includes a

mental element, not just whether division (A)(6) includes such an element.”

(Emphasis sic.) Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242,

at ¶ 22. We concluded that in R.C. 2907.321(A), “knowledge is a requirement

only for the discrete clause within which it resides: ‘with knowledge of the

character of the material or performance involved.’ Thus, the state must prove

that appellee knew the character of the material at issue. The state is not required

to prove that appellee knew that in downloading files via America Online he was

also transmitting those files from Virginia into Ohio.” Id., ¶ 29. The court held

that the statute plainly indicated a purpose to impose strict liability, thus

precluding the application of recklessness as the culpable mental state.

2. Robbery, Aggravated Robbery, and State v. Colon

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{¶ 40} Turning now to robbery and aggravated robbery, we have

previously held that the deadly-weapon element of robbery in R.C. 2911.02(A)(1)

does not require proof of a mens rea. State v. Wharf (1999), 86 Ohio St.3d 375,

715 N.E.2d 172. Similarly, we have also held that the deadly-weapon element of

aggravated robbery in R.C. 2911.01(A)(1) does not require a mens rea. State v.

Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038. Neither case

followed the Wac or Maxwell analysis, but in both cases, we concluded that the

General Assembly had intended that a theft offense committed while an offender

was in possession or control of a deadly weapon constituted robbery (and that

brandishing or using a deadly weapon constituted aggravated robbery), and no

intent beyond that required for the theft offense must be proven.

{¶ 41} In Colon I, we considered the culpable mental state for the offense

of robbery in violation of R.C. 2911.02(A)(2), i.e., physical-harm robbery. Again,

this court did not apply the analysis used in Wac and Maxwell. However, neither

did Colon I overrule Wac or Maxwell. Rather, we simply concluded in Colon I

that while the statute did not specify a particular degree of culpability for the

physical-harm element, its language does not plainly indicate that strict liability is

the mental standard. Thus, the court concluded that the state was required to

prove recklessness and that the indictment was defective for failure to charge

recklessness, a point that the state conceded. 118 Ohio St.3d 26, 2008-Ohio-

1624, 885 N.E.2d 917, at ¶ 14-15.

{¶ 42} We went on to hold that “[w]hen 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,” id. at syllabus,

and that instead, a structural error analysis is appropriate, id. at ¶ 23.

{¶ 43} Upon reconsideration in Colon II, 119 Ohio St.3d 204, 2008-Ohio-

3749, 893 N.E.2d 169, we limited Colon I, holding that it was prospective only,

id. at ¶ 3, and that structural-error analysis is not appropriate unless there are

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multiple errors throughout the trial that are inextricably linked to the defective

indictment, id. at ¶ 7, and that the syllabus in Colon I was confined to the facts of

that case, id. at ¶ 8.

{¶ 44} Still, the effect of our Colon holdings meant that for the first time,

an indictment that charged an offense in the exact language of the Revised Code

could still be defective when the statute itself failed to specify a culpable mental

state. As a result, Colon I and Colon II have been called “a boon to defendants, a

headache to appellate courts, and a nightmare to prosecutors.” State v. Lester,

123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, ¶ 35 (Lanzinger, J.,

concurring in judgment only).

{¶ 45} 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 indictment that does not identify the elements of a

predicate offense provides adequate notice by citing the statute defining the

predicate offense). Consequently, we respond to the certified question by holding

that Colon I, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, and Colon II,

119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, are inapplicable to the

offense of aggravated robbery in violation of R.C. 2911.01(A)(3). In fact, Colon I

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

indictment is defective.

{¶ 46} Further, we hold that failure to timely object to a defect in an

indictment constitutes a waiver of the error. Crim.R. 12(C)(2) (objections to

defect in indictment must be raised before trial). Any claim of error in the

indictment in such a case is limited to a plain-error review on appeal. State v.

Frazier (1995), 73 Ohio St.3d 323, 652 N.E.2d 1000; Crim.R. 52(B).

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C. Application of R.C. 2901.21(B) to 2911.01(A)(3)

{¶ 47} It remains to be determined what mental state, if any, applies to

aggravated robbery as described in R.C. 2911.01(A)(3). As stated previously,

R.C. 2901.21(B) supplies the mental state of recklessness only when two

conditions are present: (1) no mental state is specified in the relevant statute and

(2) the statute does not plainly indicate a purpose to impose strict liability.

{¶ 48} We reaffirm our Wac/Maxwell analysis. Therefore, we need to

examine the entire section — not just division (A)(3) — for references to a mental

state. This existence or nonexistence of specified mental states elsewhere in R.C.

2911.01 will inform our analysis of whether (A)(3) was meant to be a strict-

liability offense.

{¶ 49} R.C. 2911.01(A) includes the element of attempting or committing

a theft offense, which incorporates all the elements of theft, including its mental

state. However, that mental state is applicable to the theft aspect in division (A)

only, and its incorporation into division (A) does not provide a mental state for

the physical-harm element described in subsection (A)(3). See Maxwell, 95 Ohio

St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, ¶ 23 (rejecting the argument that the

mental state in a division of the relevant statute for one element of an offense also

applies to a subsection in that division that does not specify a mental state).

{¶ 50} Moreover, division (B) of the aggravated-robbery statute specifies

the culpable mental state of “knowingly” (“ No person, without privilege to do so,

shall knowingly remove or attempt to remove a deadly weapon from the person of

a law enforcement officer, or shall knowingly deprive or attempt to deprive a law

enforcement officer of a deadly weapon * * *”).

{¶ 51} Additionally, this court has alrea