Court indictment not defective when it tracks language of statute

In answering a certified question presented it last Friday, the Supreme Court of Ohio overruled its 2008 decision in State v. Colon holding:

• 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.


• 2) When the General Assembly includes a culpable mental state in one discrete clause, subsection, or division of a statute, but not in another discrete clause, subsection, or division of the same statute, courts must apply the analysis prescribed in the Supreme Court’s decisions in State v. Wac (1981) and State v. Maxwell (2002) to determine the necessary mental state where none is specified.
• 3) By failing to enter a timely objection to a defect in an indictment, a defendant waives all but plain error on appeal.

"In order to convict a defendant of a criminal offense," the Court said, "the state must prove: 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty or 'culpable' mental state (in Latin, the mens rea) which is set forth in the section of law defining that offense. The culpable mental states set forth in Ohio criminal statutes, in increasing order of severity, are 'negligently,' 'recklessly,' 'knowingly', and 'intentionally'.

"R.C. 2901.21(B) provides that when a state law that defines a criminal offense does not specify a required mens rea for that offense, courts hearing charges under that statute must determine whether or not the language of the statute 'plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.' If it is determined that the legislature intended to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not impose strict liability, R.C. 2901.21(B) requires the state to prove at trial that the defendant acted with at least the guilty mental state of 'recklessly.'"

State v. Horner