Proving Intent to Use Force Not Required to Convict for Third-Degree Robbery
The state does not have to prove the intention to use or threaten to use force against another to convict an offender of third-degree robbery, the Ohio Supreme Court ruled today.
In a 4-3 ruling, the court clarified how a 1974 law applies to robbery in Ohio. The decision reverses a ruling by the Second District Court of Appeals and affirms the conviction of Kevin Tolliver for robbing a Montgomery County Dollar General store.
Justice Judith L. French, in the majority opinion, wrote the Ohio General Assembly defined the offense of robbery to require proof of a culpable mental state for some elements but not for others. The state does not have to prove the culpable mental state (mens rea) of the offender for the threat or use of force element of robbery, she stated.
At trial, Tolliver admitted to shoplifting from the Dollar General in September 2010. When trying to leave, he said he extended his hands to prevent a store clerk from trying to stop him and raised his fist. The clerk said Tolliver pushed her and raised his fist as if to punch her. The grand jury indicted Tolliver for one count of robbery alleging that “in attempting or committing a theft offense, or in fleeing immediately after the attempt or offense,” Tolliver “did recklessly use or threaten the immediate use of force against” the clerk. However, the relevant law does not include the word “recklessly,” Justice French noted.
The jury convicted Tolliver. The appeals court reversed the decision, ruling that the state had to prove Tolliver recklessly threatened or used force while committing or attempting to commit theft in order to convict him of robbery.
Robbery is defined in the statute at issue in this case (R.C. 2911.02) as: “(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: … (3) Use or threaten the immediate use of force against another.”
Justice French wrote that the nation’s courts were divided for many decades on how to interpret whether a state of mind, or intent, had to be proven when a specific law itself was silent on the matter. In 1952 the U.S. Supreme Court in Morissette v. United States stated that when a law is silent, then the state must prove a culpable mental state in order to convict, Justice French wrote, but the Ohio Supreme Court took the opposite approach in State v. Huffman (1936), holding that if a law is silent, then it was not necessary to prove intent.
French explained that with the advent of newer offenses by the General Assembly, it became less clear whether the silence assumed a culpable mental state or not. The General Assembly enacted R.C. 2901.21(B) in 1974 to address the issue. If the statute does not specifically require proof of intent and it does not plainly impose strict liability, where no intent has to be proven, then proving “recklessness” is enough to convict.
“R.C. 2911.02(A) predicates every robbery on the elements of a completed or an attempted ‘theft offense,’ which, for Tolliver, included the mental states of ‘purpose’ and ‘knowingly,’” Justice French reasoned. “Because R.C. 2911.02(A) ‘already contains [a] mens rea,’ by reference to the predicate theft offense, the section already specifies culpability.”
The statute for determining whether an offense imposes strict liability or requires proof of recklessness comes into play only in specific circumstances, she added.
“R.C. 2901.21(B) … applies only if ‘the section defining an offense does not specify any degree of culpability.’ If the section already requires proof of a culpable mental state for any element of the offense in any division or subdivision, R.C. 2901.21(B) does not apply, and the state need prove culpability only as specified in the section. Because R.C. 2911.02 defines every robbery to include the culpable mental states of the predicate theft offense, R.C. 2901.21(B) … does not apply, and the state need not prove a culpable mental state with respect to the force element in R.C. 2911.02(A)(3).”
Joining the majority were Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy.
In her dissenting opinion, Justice Judith Ann Lanzinger noted that state law defines “theft offense” to include several different offenses with varying degrees of mental states or none at all. She referred to a recent case that refused to apply R.C. 2901.21(B) to a statute in which all the elements of the offense were spelled out in one section. Here, in contrast, the majority is adding a cupable mental state by “the incorporation by reference of elements from another statute,” Justice Lanzinger concluded.
“On its face, the third-degree-felony offense of robbery defined in R.C. 2911.02(A)(3) does not contain any mens rea,” she wrote. “The use of force or the threat of the immediate use of force on another distinguishes third-degree felony robbery from other theft offenses. Without the use of force, Tolliver could not have been convicted of robbery. In my opinion, we should look only at the language in the section that defines the offense.”
Joining in the dissent were Justices Paul E. Pfeifer and William M. O’Neill.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
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