Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

CULPABLE MENTAL STATES (ME096)

Also see Insanity; Intoxication.

In general

Purposely

Knowingly

Recklessly

Negligently

Strict liability

R.C. 2901.21 -- Requirements for criminal liability.

R.C. 2901.22 -- Culpable mental states.

In general

State v. Wamsley, 117 Ohio St. 3d 388, 2008-Ohio-1195 – Failure to instruct on the culpable mental state applicable to an offense is not structural error, and is subject to plain error review.

State v. Colon, 118 Ohio St. 3d 26, 2008-Ohio-1624 – Syllabus: "When 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." Robbery indictment failed to allege recklessness as the culpable mental state with regard to the harm element. State conceded this made it defective. Majority opinion turns on the constitutional importance of the grand jury and indictments, notwithstanding Crim.R. 12(C)(2) stating defects are waived if not raised before trial. Moreover, the court finds structural error. But see State v. Colon, 119 Ohio St. 3d 204, 2008-Ohio-3749 backing away from structural error to plain error and declaring Colon 1 applies prospectively. As to application of Colon see State v. Robertson, 180 Ohio App. 3d 365, 2008-Ohio-6909.

State v. Lester, 123 Ohio St. 3d 396, 2009-Ohio-4225 – Strict liability is the culpable mental state within the crime of aggravated robbery for the element of brandishing, displaying, using, or indicating possession of a deadly weapon. Indictment was not defective. State v. Wharf (1999), 86 Ohio St. 3d 375, followed. ¶8 reiterates Colon II‘s limitation of Colon I to pervasive failure to address mens rea. See concurring opinion for further discussion of Colon, calling those cases "aberrant."

State v. Smith, Lucas App. No. L-07-1346, 2009-Ohio-48 – Colon I does not apply to guilty pleas. Also see cases cited at State v. Mickens, Franklin App. Nos. 08AP-743, 744, 745, 2009-Ohio-2554, ¶59.

State v. Haney, 180 Ohio App. 3d 554, 2009-Ohio-149 – Colon does not apply to aggravated robbery indictments. Applying State v. Wharf (1999), 86 Ohio St. 3d 375, the state must prove the culpable mental state of the underlying theft offense, but the deadly weapons element is a matter of strict liability. Also see State v. Mickens, Franklin App. Nos. 08AP-743, 744, 745, 2009-Ohio-2554, ¶61-69 reaching the same conclusion with respect to aggravated robbery and burglary, further noting that the mens rea element of a predicate offense need not be alleged in the indictment, citing State v. Buehner, 110 Ohio St. 3d 403, 2006-Ohio-4707, ¶11.

State v. Maxwell, 95 Ohio St. 3d 254, 2002-Ohio-2121 -- The General Assembly distinguishes between sections and divisions in the Ohio Revised Code. Therefore, a division defining a particular manner in which an offense may be committed may carry a specific culpable mental state, but the section as a whole may carry a different culpable mental state.

State v. Manns, 169 Ohio App. 3d 687, 2006-Ohio-5802, ¶13-14 -- The aggravated robbery statute does not specify a culpable mental state applicable to the infliction of serious physical harm. Thus the state must prove recklessness in that regard and the culpable mental state of the underlying offense, here theft, which requires a knowing act.

State v. Howell (2000), 137 Ohio App. 3d 804, 815 -- No error in refusal to instruct jury on the lesser culpable mental state of negligence when the culpable mental state required for guilt was recklessness. Defense strategy was to show driving off with dog leashed to trailer hitch was negligent but not reckless.

In re T.K., 109 Ohio St. 3d 512, 2006-Ohio-3056 -- The doctrine of transferred intent applies in complicity cases.

Bradshaw v. Richey (1995), 126 S.Ct. 602 -- The doctrine of transferred intent applies to aggravated felony murder under R.C. 2903.01(B). Citing State v. Richey (1992), 64 Ohio St. 3d 353, 364.

State v. Frey, 166 Ohio App. 3d 819, 2006-Ohio-2452 -- Chillicothe had two ordinances proscribing trespass in a vehicle. Illogically, the offense with the greater culpable mental state carried the lesser penalty. Majority holds they are not in conflict. Dissenting judge believes the later enacted impliedly repealed the earlier ordinance.

State v. Ross (1967), 12 Ohio St. 2d 37 -- Syllabus: "Where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient. (Sections 2941.05 and 2905.34, Revised Code.)

State v. O'Brien (1987), 30 Ohio St. 3d 122 -- An indictment which fails to set forth the requisite mental element is deficient, but may be amended to cure this defect, provide the nature and identity of the offense is not changed.

State v. Curry (1989), 45 Ohio St. 3d 109 -- Syllabus: "Insanity may be a defense to any crime regardless of whether the particular offense requires that the defendant's conduct be purposeful, knowing, reckless, or negligent."

State v. Wilcox (1982), 70 Ohio St. 2d 182 -- Syllabus: "(1) The partial defense of diminished capacity is not recognized in Ohio. (State v. Jackson 32 Ohio St. 2d 203...,followed.) (2) A defendant may not offer expert psychiatric testimony, unrelated to the insanity defense to show that the defendant lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime."

State v. Cooey (1989), 46 Ohio St. 3d 20 -- Paragraph one of the syllabus: "Except in the mitigation phase of the trial, a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime. (State v. Wilcox [1982], 70 Ohio St. 2d 182...approved and followed.)"

State v. Garner (1995), 74 Ohio St. 3d 49, 60 -- "The law has long recognized that intent, lying as it does within the privacy of a person's own thoughts, is not susceptible to objective proof. The law recognizes that intent can be determined from the surrounding facts and circumstances, and persons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts...Intent '"'"can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances....'"'"'" (Citations omitted.)

State v. Holt (March 30, 1982), Franklin Co. App. No. 81AP-661, unreported (1982 Opinions 791, 798) -- "The mere fact that the defendant testified in her own behalf and denied guilt does not preclude her from presenting evidence from other witnesses tending to indicate a lesser degree of guilt that the State's evidence would otherwise indicate, assuming the jury did not believe the defendant's testimony. Intent is seldom arrived at directly...Accordingly, the psychological makeup of a defendant can be an important factor in determining the intent with which that person acted." Also see State v. Thomas (1983), 13 Ohio App. 3d 211.

State v. Williams (1996), 74 Ohio St. 3d 569 -- Paragraph one of the syllabus: "Neither the felony murder statute nor Ohio case law requires the intent to commit a felony to precede the murder in order to find a defendant guilty of a felony-murder specification." If a crime was committed as an afterthought during a continuing course of conduct, it may be tacked on as a predicate felony, even if it occurs after the victim has expired of suffered the fatal injuries. See pp. 576-578. Also see State v. Palmer (1997), 80 Ohio St. 3d 543, 570-571.

Mentor v. Hamercheck (1996), 112 Ohio App. 3d 291, 295 -- A finding of accident negates the mens rea element of an offense.

Takacs v. Engle 6th Cir. 1985), 768 F. 2d 122, 126 -- The affirmative defense of duress does not negate the requirement that there be a voluntary act as an element of a crime.

State v. Snowden (1982), 7 Ohio App. 3d 358 -- Headnote 2: "Mistake of fact can, in an appropriate circumstance, negate either the 'knowingly' or 'purposely' elements of specific intent crimes such as theft."

Mann v. Gray (D.C. Ohio 1985), 622 F. Supp. 1225, 1230 -- Court concludes that under Ohio law intoxication does not excuse conduct, but may negate intent, and is an affirmative defense to the extent that the burden of proof rests on the defendant. Also see State v. Norman (1982), 7 Ohio App. 3d 17.

State v. Sanders (1978), 59 Ohio App. 2d 187 -- Person who received property stolen in three separate incidents did not have a separate animus towards each owner and may be convicted of only one count.

State v. Tolliver (1976), 49 Ohio App. 2d 258 -- Where the jury finds that the defendant acted knowingly but not purposely, he must be acquitted of rape, which requires proof of purpose, but may be convicted of sexual battery which only requires proof that he acted knowingly.

State v. Grimsley (1982), 3 Ohio App. 3d 265 -- If a person suffers from multiple personalities it is immaterial which state of consciousness the person is in, so long as, being in the personality then controlling behavior, the defendant was conscious and her actions were a product of her own volition.

State v. Solomon (1981), 66 Ohio St. 2d 214 -- Under the doctrine of transferred intent, if a person acts with the purpose to kill one person, but causes the death of another instead, he may be found guilty of the degree of offense he intended to commit against the intended victim. Also see Wareham v. State (1874), 25 Ohio St. 601; State v. Sowell (1988), 39 Ohio St. 3d 322 -- Paragraph two of the syllabus and pp. 331-332.

State v. Wear (1984), 15 Ohio App. 3d 77 -- Failure to include a culpable mental state in a statute proscribing presence at a cockfight rendered the statute unconstitutionally vague and overbroad.

State v. Ziko (1991), 71 Ohio App. 3d 832, 836-837 -- Involuntary manslaughter is not a strict liability offense, nor is recklessness the culpable mental state. While the state must prove proximate cause, the court is not required to instruct on any culpable mental state other than that specified for the underlying offense.

Return to top of page

State v. Hill, Hamilton App. No. 030678, 2004-Ohio-2275, ¶8 -- Although "wilfully" as used in the fleeing statute is not a culpable mental state defined by R.C. 2901.22, it is the equivalent of acting purposely.

State v. Scott (1980), 61 Ohio St. 2d 155 -- Paragraph four of the syllabus: "The existence of an accused's purpose to kill must be found by the jury under proper instructions from the trial court and can never be determined by the court as a matter of law."

State v. Shue (1994), 97 Ohio App. 3d 459, 466 -- "Purpose or intent can be established by circumstantial evidence. State v. Nicely (1988), 39 Ohio St. 3d 147...Intent may be ascertained from the surrounding facts and circumstances in the case. State v. Johnson (1978), 56 Ohio St. 2d 35, 38...State v. Lott (1990), 51 Ohio St. 3d 160, 168...The element of purpose required by R.C. 2903.02 may be presumed where the natural and probable consequences or a wrongful act are to produce death. State v. Robinson (1954), 161 Ohio St. 213...paragraph five of the syllabus; State v. Fugate (1973), 36 Ohio App. 2d 131...Intent may be inferred from all of the surrounding circumstances, such as the instrument used to produce death and the manner of inflicting the fatal wound. State v. Robinson, supra; State v. Fugate, supra."

Clark v. Jago (6th Cir. 1982), 676 F. 2d 1099 -- When purpose to kill is at issue, an instruction permitting that element of culpability to be found in either the defendant or his accomplice violates principles of due process. Also see State v. Mabry (1982), 5 Ohio App. 3d 13.

State v. Johnson (1994), 71 Ohio St. 3d 332, 335-337 -- Second degree murder conviction from Florida could not provide basis for R.C. 2929.05(A)(5) death penalty specification. Specification requires proof of purposeful killing. Florida statute only required proof of ill-will, hatred, spite or evil intent.

State v. Lockett (1976), 49 Ohio St. 2d 48 -- Paragraph three of the syllabus: Purpose to kill on the part of all involved in a robbery may be inferred from joint planning, including the use of an inherently dangerous instrumentality. Also see State v. Clark (1978), 55 Ohio St. 2d 257.

State v. Johnson (1978), 56 Ohio St. 2d 35, 39 -- Purpose to kill may be inferred from circumstances, including striking victim on the head with a shotgun and leaving him handcuffed to a bannister.

State v. Mundy (1994), 99 Ohio App. 3d 275, 287 -- Gross sexual imposition is not a strict liability offense. The culpable mental state is that the offender acted "for the specific purpose or intention of sexually arousing or gratifying either himself or the victim."

State v. Stoudemire (1997), 118 Ohio App. 3d 752, 760 -- An instruction on causal relationship based on foreseeability is not advisable in murder, where purpose is the culpable mental state.

Return to top of page

In re A.C.T., 158 Ohio App. 3d 473, 2004-Ohio-4935 -- Student was prepared to strike another student, but a teacher stepped between the combatants and received the blow. Student is guilty of assault with respect to the teacher, but not guilty of the elevated offense of assault on a teacher. Since all victims are not treated equally, the doctrine of transferred intent does not apply. The student did not knowingly strike a teacher.

State v. Bumphus (1976), 53 Ohio App. 2nd 171 -- Though the aggravated robbery statute does not set forth a culpable mental state, the reference to a theft offense incorporates the mens rea requirement of that offense - knowingly in the case of plain theft. To avoid the issue of which mens rea requirement applies to the possession of a deadly weapon while committing a theft offense, the court endorses the standard OJI instruction which simply presents to the jury the issue whether or not the defendant was in possession of a deadly weapon. Also see State v. Crawford (1983), 10 Ohio App. 3d 207.

State v. Bissantz (1982), 3 Ohio App. 3d 108, 111 -- When a statute requires that the offender have acted knowingly, it is inappropriate to instruct the jury that a higher degree of culpable mental state applies.

State v. Gould (1994), 95 Ohio App. 3d 634, 637 -- "'(K)nowingly' is cast on probability; anything short will create an unwarranted defense to a culpable mental state of a criminal mind...The trial court's instruction cannot be unconstitutional when the statute from whence it came is constitutional."

State v. Phillips (1991), 77 Ohio App. 3d 663 -- "Knowingly" refers to the mental state of the defendant and not to whether he knew the identity of the victim.

State v. Robinette (1997), 118 Ohio App. 3d 450, 455-457 -- In a domestic violence prosecution requiring proof of knowing conduct by the defendant, it was erroneous to instruct the jury that it was to consider the mental state of the victim. Consideration of the victim's state of mind is appropriate only when the charge is premised on menacing.

State v. Salinas (1997), 124 Ohio App. 3d 379, 389-391 -- The knowingly element of felonious assault was satisfied where the defendant sprayed lit houses with gunfire, the presence of cars in driveways and the time of day suggested people would be present, and the defendant later expresses relief that no one was hurt.

Return to top of page

Columbus v. Nolan, 150 Ohio Misc. 2d, 2009-Ohio-1083 – The default culpable mental state of recklessness does not necessarily displace differently defined culpable mental states included in municipal ordinances. Here the "reasonably prudent person" standard used in an ordinance remains in effect and the distinction is crucial to acquittal.

State v. Peck, 172 Ohio App. 3d 25, 2007-Ohio-2730 -- At ¶12-13 -- "A mere failure to perceive or avoid a risk, because of a lack of due care, does not constitute reckless conduct...Instead, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk...In contrast to the actor who proceeds with knowledge of risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligence. R.C. 2901.22(D). Recklessness requires more than ordinary negligent conduct. The difference between the terms 'recklessly' and 'negligently' is normally one of a kind, rather than of a degree. 'Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.'..." At ¶17: A court must assess the defendant's knowledge of the specific risk created by his conduct, not the general risk inherent in the activity.

State v. Clemens (2001), 145 Ohio App. 3d 299 -- Taking the view that recklessness does not involve a specific intent, court states that intoxication is not a defense to offenses where recklessness is the culpable mental state. This may be incorrect, but R.C. 2901.21(C), as effective 10-27-2000, largely eliminates the defense of intoxication.

Miller v. Barberton Municipal Court (6th Cir. 1991), 935 F. 2d 775 -- Skinny dipping in lighted pool while the neighbors watched with binoculars was reckless. See dissent.

In the following cases, where the statute fails to state a scienter element, recklessly has been held to be the requisite mental element through application of R.C. 2901.21(B):

Cruelty to animals [R.C. 959.13] -- State v. Hafle (1977), 52 Ohio App. 2d 9, 14.

Endangering children [R.C. 2919.22(B)(3)] -- State v. O'Brien (1987), 30 Ohio St.3d 122; State v. Adams (1980), 62 Ohio St. 2d 151.

Fictitious license plates [R.C. 4549.08(A)] - State v. Williams (1987), 40 Ohio Misc.2d 14.

Possession of child pornography [R.C. 2907.323(A)(3)] -- State v. Young (1988),37 Ohio St. 3d 249.

Reckless operation [R.C. 4511.201] -- State v. Klein (1977), 51 Ohio App. 2d 1.

State v. Hartman (1998), 130 Ohio App. 3d 643 -- Though in theory a person who acts knowingly also acts recklessly, a court may not instruct on a lesser included offense when the only versions of the fact before the jury imply knowing conduct, and instruction on recklessness invites the jury to compromise the truth by inventing an additional version.

State v. Horan (1993), 92 Ohio App. 3d 78 -- (1) Bar owner prosecuted for recklessly permitting premises to be used for gambling had undertaken sufficient investigation before agreeing to sell "tip tickets" that the evidence was insufficient to establish that she acted recklessly.

State v. McSwain (1992), 79 Ohio App. 3d 600 -- The mens rea element of the theft element of aggravated robbery is knowingly. Since no culpable mental state is specified for the harm element, recklessness applies. Also see State v. Crawford (1983), 10 Ohio App. 3d 207. Compare State v. Bumphus (1976), 53 Ohio App. 2nd 171.

State v. Pack (1996), 110 Ohio App. 3d 632 -- Evidence insufficient to support felonious assault conviction where gun was discharged during a sales demonstration. Prosecutor's reference to recklessness in argument warranted an instruction that recklessness was not sufficient for conviction.

State v. Kavlich (1986), 33 Ohio App. 3d 240 -- Blood alcohol level of .152 and involvement in a head on collision were sufficient to establish recklessness in an aggravated vehicular homicide prosecution. Also see State v. Runnels (1989), 56 Ohio App. 3d 120 (blood alcohol concentration); State v. Gates (1983), 10 Ohio App. 3d 265 (alcohol and elaborate analysis of accident); In re Underwood (1989), 64 Ohio App. 3d 326 (left of center); State v. Hennessee (1984), 13 Ohio App. 3d 436 (alcohol and failure to yield); State v. Stinson (1984), 21 Ohio App. 3d 14 (alcohol).

State v. Klein (1977), 51 Ohio App. 2d 1 -- Criminal recklessness has not been proven when the evidence merely establishes operation of a motor vehicle in a manner establishing civil negligence.

State v. Cortner (1992), 76 Ohio App. 3d 648 -- Teacher did not act recklessly in holding behaviorally handicapped student's arm behind his back to bring him under control during an outburst. Disorderly conduct conviction reversed.

Return to top of page

Negligently

In re Vermatten (1996), 116 Ohio App. 3d 639, 641 -- Tort law negligence only requires a showing a failure to exercise ordinary care. Criminal negligence, according to R.C. 2901.22(D), requires a substantial lapse from due care which causes the defendant to fail to perceive or avoid a risk that his conduct may cause a certain result or be of a certain nature.

Cleveland v. Pellech (1983), 8 Ohio Misc. 2d 87 -- Driving under the influence of alcohol at twice the speed limit constitutes criminal negligence in a vehicular homicide case.

State v. Smith (1978), 11 Ohio Ops. 3d 343, 350 -- In a vehicular homicide case, the death of the victim by itself is not indicative of a substantial lapse from due care.

State v. Owens (1974), 44 Ohio App. 2d 428 -- Whether or not a lapse from due care is "substantial" is a question for the trier of fact.

State v. Allied Pest Control (1986), 33 Ohio App. 3d 134 -- Poor quality work by an exterminator is not sufficient to establish criminal negligence for purposes of a statute proscribing negligent application of pesticides.

Return to top of page

In the following cases, where the statute fails to state a scienter element, strict criminal liability has been held to apply through application of R.C. 2901.21(B):

Bookmaking [R.C. 2915.02(A)(1)] -- State v. Wac (1981), 68 Ohio St. 2d 84.

Contributing to the delinquency or unruliness of a child [R.C. 2151.41] -- State v. Cole (1982), 8 Ohio App. 3d 416.

Failure to yield the right of way (turning left into a police cruiser) [R.C. 4511.42] -- Akron v. Charley (1982), 2 Ohio Misc. 2d 1.

Littering [R.C. 3767.32] -- State v. Waugh (1991), 72 Ohio App. 3d 253.

Operating a gambling house [R.C. 2915.03(A)(1)] -- State v. Wac (1981), 68 Ohio St.2d 84.

Operating a motor vehicle while intoxicated [R.C. 4511.19] -- State v. Grimsley (1982), 3Ohio App. 3d 265.

Sexual battery based on incest [R.C. 2907.03(A)(5)] -- State v. Hannah (June 10, 1986),Franklin Co. App. No. 85AP-896, unreported (1986 Opinions 1446).

State v. Moody, 104 Ohio St. 3d 244, 2004-Ohio-6395 -- Syllabus: "The culpable mental state of recklessness applies to the offense of contributing to the unruliness or delinquency of a child under former R.C. 2919.24." At ¶15: "The fact the statute contains the phrase 'No person shall' does not mean that it is a strict liability offense."

State v. Schors, 160 Ohio App. 3d 431, 2005-Ohio-1668 -- Sale of a firearm to a minor is a strict liability offense. Neither use of the word shall nor public policy are sufficient to compel this conclusion, but the inclusion of a culpable mental state in other subsections is enough to plainly indicate a legislative intent to impose strict liability. Also see State v. Maxwell, 95 Ohio St. 3d 254, 2002-Ohio-2121; State v. Wac (1981), 68 Ohio St. 2d 84, 86.

State v. Wharf (1999), 86 Ohio St. 3d -- Defendant was convicted of robbery because he had a gun in his car when he left a gas station without paying. Syllabus: "(1) The deadly weapon element of R.C. 2911.02(A)(1), to wit, '[h]ave a deadly weapon on or about the offender's person or under his control[,]' does not require the mens rea of recklessness. (2) To establish a violation of R.C. 2911.02(A)(1), it is not necessary to prove a specific mental state regarding the deadly weapon element of the offense of robbery."

State v. Schlosser (1997), 79 Ohio St. 3d 329 -- Syllabus: "Ohio's Racketeer and Corrupt Organization statute, R.C. 2923.32(A)(1), plainly indicates a purpose to impose strict liability."

State v. Brewer (1994), 96 Ohio App. 3d 413 -- Recklessness and not strict liability is the culpable mental state for failure to obey the order of a traffic officer, R.C. 2921.331(A). Statute was not structured so as to provide differing degrees of culpability for different acts, which might permit inference that strict liability was intended. Highway Patrol officer arrested medic who refused to move ambulance at wreck location because it would interfere with medical assistance.

State v. Smelcer (1993), 89 Ohio App. 3d 115, 124 -- "Rape of a person less than thirteen years old by means of fellatio is a strict liability offense."

State v. Squires (1996), 108 Ohio App. 3d 716 -- R.C. 955.22(C) leash law imposes strict liability.

State v. Cheraso (1988), 43 Ohio App. 3d 221 -- Unqualified use of the words "no person shall" is indicative of an intent to impose strict liability. But compare State v. Parrish (1984), 12 Ohio St. 3d 123.

State v. Borges (1983), 10 Ohio App. 3d 158 -- When an offense is one of strict liability, if possession and control, contrary to law, can be proven, guilty knowledge need not be shown. Absentee owner of fishing boat proved to have ownership interest in undersized fish. Also see State v. Cole (1982), 8 Ohio App. 3d 416 (Contributing to the unruliness of a child who was already unruly.)

Return to top of page

Return to Index