Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
CULPABLE MENTAL STATES
Also see Insanity;
R.C. 2901.21 -- Requirements for criminal liability.
R.C. 2901.22 -- Culpable mental states.
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.
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,
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."
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,
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,
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.
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
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,
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
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 , 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
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
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
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
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
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.
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State v. Hill, Hamilton App. No.
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
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.
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
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.
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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
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 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.
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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.
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
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
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
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.
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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
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.
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In the following cases, where the statute
fails to state a scienter element, strict criminal liability has been held to
apply through application of
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
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
State v. Schlosser (1997), 79 Ohio St. 3d
329 -- Syllabus: "Ohio's Racketeer and Corrupt Organization statute,
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.)
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