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

ELEMENTS OF OFFENSES (031)

Also see individual offenses; Weight of the Evidence; Specifications; Indictments and Complaints.

State v. Smith, 117 Ohio St. 3d 447, 2008-Ohio-1260 – Syllabus: "(1) In determining whether an offense is a lesser included offense of another when a statute sets forth mutually exclusive ways of committing the greater offense, a court is required to apply the second part of the test established in State v. Deem (1988), 40 Ohio St. 3d 205, 533 N.E. 2d 294, paragraph three of the syllabus, to each alternative method of creating the greater offense. (2) Theft, as defined in R.C. 2913.02, is a lesser included offense of robbery, as defined in R.C. 2911.02." From the body of the opinion it appears this does not apply to robbery premised on attempted theft which is a mutually exclusive way of committing the greater offense. The degree of the theft conviction is not limited to M-1 theft as the court views value as a special finding to determine the degree of the offense and not a part of the definition of the crime.

State v. Smith, 121 Ohio St. 3d 409, 2009-Ohio-787 – Same case as 117 Ohio St. 3d 447 on reconsideration. The elements of theft are as set forth in R.C. 2913.02(A). Additional matters affecting punishment are deemed "special findings" and are not elements. In an indictment for theft due process requires such matters be alleged, but the fact the defendant has been indicted for robbery is sufficient to place him on notice that if found guilty of the lesser included offense of theft his penalty might be increased by "special findings" such as value.

State v. Horner, 126 Ohio St. 3d 466, 2010-Ohio-3830 – Syllabus: “(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, 843 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-3479, 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 N.E. 2d 428, and State v. Maxwell, 95 Ohio St. 3d 254, 2002-Ohio-2121, 767 N.E. d 242, to determine the mental state when 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)”

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. For cases where Colon I and II were followed and conviction reversed, see State v. Buford, 178 Ohio App. 3d 640, 2008-Ohio-5505; State v. Summers, 182 Ohio App. 3d 139, 2009-Ohio-1883.

Apprendi v. New Jersey (2000), 530 U.S. 466 -- Except for prior convictions, any fact which increases the penalty for a crime beyond the statutory maximum must be charged and proved beyond a reasonable doubt at trial. Also see Castillo v. United States (2000), 530 U.S. 120, 120 S.Ct. 2090. Compare Harris v. United States (2002), 122 S.Ct. 2406 concluding that increasing mandatory minimum sentences based on the manner a firearm was employed in the commission of an offense were sentencing factors within a single federal drug offense and a proper subject for judicial determination.

Ring v. Arizona (2002), 122 S.Ct. 2428 -- Arizona's scheme whereby a jury determines guilt, and a judge determines whether to impose the death penalty, violates the Sixth Amendment right to jury trial. Apprendi v. New Jersey (2000), 530 U.S. 466, applied. Walton v. Arizona (1990), 497 U.S. 639, overruled.

Schriro v. Summerlin (2004), 124 S.Ct. 2519 -- Ring is procedural, not substantive, and does not apply retroactively.

Blakely v. Washington (2004), 124 S.Ct. 2531 -- Washington sentencing scheme permitting an increased sentence based on fact finding by the court, not the jury, violates the Sixth Amendment right to trial by jury.  Also see United States v. Booker, (2005), 125 S.Ct. 738.For a conflicting Ohio case involving sentencing of repeat violent offenders see State v. Smith, Cuyahoga App. No. 344957, 2004-Ohio-3479.

State v. Zima, 102 Ohio St. 3d 61, 2004-Ohio-1807 -- When the Blockberger test is applied to a statute containing alternate elements constituting the offense, each statutory alternative should be construed as constituting a separate offense. Defendant pleaded guilty to driving under the influence. This barred prosecution for aggravated vehicular assault under R.C. 2903.08(A)(1) where driving under the influence is an element.  But it does not bar prosecution under (A)(2) premised on recklessness.

State v. Maxwell, 95 Ohio St. 3d 254, 2002-Ohio-2121 -- Ohio resident was convicted of pandering obscenity involving a minor premised on R.C. 2907.321(A)(6), which proscribes: "No person, with knowledge of the character of the material or performance involved, shall do any of the following...Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers. (1) Though knowledge of the character of the material must be proven, overall, strict liability applies. 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. (2) Material was received in Ohio via AOL servers in Virginia. Majority finds application of the statute is appropriate even though it predates the Internet. Dissent would not apply statute in circumstances unforeseen at the time it was enacted, noting users may have no knowledge as to the route Internet communications travel.

State v. Elkins, 148 Ohio App. 3d 370, 2002-Ohio-2914 -- The additional sentence which may be given major drug offender does not violate due process. Apprendi v. New Jersey (2000), 530 U.S. 466 distinguished on the basis that major drug offender status rests on the jury's finding the defendant possessed a quantity equaling or exceeding 100 time bulk. Though R.C. 2941.1410(B) leaves the determination of major drug offender status to the court, R.C. 2925.11(C)(1)(e) makes such status automatic based on quantity. The latter is deemed controlling because it is a specific provision with an effective date after that of the general provision.

State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533 -- ¶8: "When existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state." Also see State v. Allen (1987), 29 Ohio St. 3d 53, 54.

State v. O'Neill (2000), 140 Ohio App. 3d 48 -- A prior uncounselled OMVI conviction may not be used as one of the prior convictions forming the basis for a felony OMVI prosecution. This includes prior convictions where the mandatory jail time was served in the form of pretrial detention for which jail time credit was given.

State v. Culberson (2001), 142 Ohio App. 3d 656 -- Felony OMVI defendant sought to suppress use of prior convictions claiming they were constitutionally infirm based on failure to comply with Crim. R. 11. Court refuses to recognize this as a basis for suppression. Only uncounselled priors may be suppressed.

State v. Chamblin, Adams App. No. 02CA753, 2004-Ohio-2252, ¶13 -- "A jury cannot return a verdict on an offense for which it did not return an instruction." Instructions failed to cover the weight element elevating marijuana possession to a felony.  Defendant was not required to object to omission.

State v. Nucklos, 171 Ohio App. 3d 38, 2007-Ohio-1025 -- Physician was charged with trafficking in drugs based on writing prescriptions for oxycontin. Licensed health professionals are exempted from such charges provided they act in accordance with specified portions of the code. Following OJI, the trial court instructed the jury that such compliance was an affirmative defense on which the defendant bore the burden of proof by a preponderance of the evidence. In fact it is an element the state must prove. Reversed. ¶57: "OJI is a respected and authoritative source of the law, but it is merely a product of the Ohio Judicial Conference and not binding on the courts."

State v. Endicott (1994), 99 Ohio App. 3d 688 -- Syllabus by the Court: "A trial court commits plain error when it fails to instruct a jury on the essential elements of a principal crime which is the subject of an alleged conspiracy for which an accused is standing trial."

State v. Scott (1983), 8 Ohio App. 3d 1, 5 -- "The state is required to prove all the elements of the crime beyond a reasonable doubt, including those elements relating to the corpus delicti. State v. Nutter (1970), 22 Ohio St. 2d 116. The corpus delicti of a crime is 'the body or the substance of the crime, included in which are usually two elements: the act and the criminal agency of the act.' State v. Black (1978), 54 Ohio St. 2d 304, 307."

State v. Furlow (1993), 90 Ohio App. 3d 699 -- Court of appeals reversed a robbery conviction and remanded for resentencing on the lesser included offense of theft. Court erroneously sentenced the defendant for grand theft, as the element of value, necessary to elevate the degree of the offense, had not been submitted to the jury at the robbery trial.

State v. Brown (1993), 85 Ohio App. 3d 716 -- Because an elevated penalty is provided for trafficking in drugs within 1000 feet of a school, such proximity is an element of the offense. The jury must be instructed in accordance with the statutory definitions of "school" and "school premises" set forth in R.C. 2925.01(Q) and (R).

State v. Leslie (1984), 14 Ohio App. 3d 343 -- The provision in the kidnapping statute reducing the offense one degree if the victim is released in a safe place, unharmed, is not an element of the offense, but rather a mitigating circumstance in the nature of an affirmative defense. Also see State v. Cornute (1979), 64 Ohio App. 2d 199.

State v. Swift (1993), 86 Ohio App. 3d 407 -- While courts have not held that the elements of an offense must be explained in detail when a guilty plea is taken, where the colloquy between the judge and the defendant makes it unclear whether the defendant understand the meaning of an element of the offense he was pleading guilty to.

Old Chief v. United States (1997), 519 U.S. 172 -- Defendant charged in federal court with having a weapon while under a disability offered to stipulate existence of prior conviction in order to avoid jury learning that it was for assault causing serious bodily injury. Applying Evidence Rule 403, held to be an abuse of discretion to allow prosecution to reject the stipulation and prove the prior offense.

State v. Riley (1994), 98 Ohio App. 3d 801 -- Defendant was charged with aggravated trafficking, with the penalty enhanced on the basis of a prior conviction. In response to a motion in limine relating to mention of the defendant's prior record, counsel stipulated the validity of the prior conviction, and in exchange no mention was made of this element of the offense by the prosecution or in instructions. In effect, this element was tried to the court. Court of appeals finds it was error to withhold this element from the jury without a proper waiver of the right to trial by jury, but that the error was harmless in view of the stipulation. Might cite case in support of the proposition that some elements may be tried to the court and others to the jury, if there is a proper waiver. Compare State v. Riley (1995), 106 Ohio App. 3d 139 -- No error in refusing to accept stipulation of prior conviction in order to avoid prejudicial disclosure to the jury. For a case comparing the trial of a prior offense element to the jury to throwing a skunk into the jury box, see State v. Rivera (1994), 99 Ohio App. 3d 325, 331. Also see State v. Day (1994), 99 Ohio App. 3d 514, dissent.

State v. Henton (1997), 121 Ohio App. 3d 510 -- Prosecutor refused defendant's offer to stipulate he had a prior drug offense conviction, then, though proof of only one such conviction was required, offered evidence concerning two priors. Reversed.

Almendarez-Torres v. United States (1998), 523 U.S. 224 -- 8 U.S.C. 1326(a) makes it a crime for a deported alien to return without permission. The maximum sentence is two years. Division (b)(2) authorizes a twenty-year sentence if deportation had followed conviction of an aggravated felony. Though the indictment failed to allege the prior conviction, court upholds imposition of the greater sentence, construing the prior as a sentencing factor and not an element. See Scalia dissent.

State v. Allen (1987), 29 Ohio St. 3d 53 -- "Where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact." (syllabus).

State v. Gordon (1971), 28 Ohio St. 2d 45 -- When an indictment alleges prior theft offense convictions as the basis for increasing the degree of an offense, the existence of the prior conviction or convictions is an element to be proven to the jury. Also see State v. Henderson (1979), 58 Ohio St. 2d 171.

State v. Johnson (1994), 71 Ohio St. 3d 332, 335-337 -- Second degree murder conviction from Florida could not be used as the basis for a 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, which is not equivalent.

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