State v. Wharf

715 N.E.2d 172, 86 Ohio St. 3d 375
Ohio Supreme Court·Decided September 8, 1999·No. No. 98-1925·Published·Cited by 69 cases

Opinion

Douglas, J.

The question certified by the court of appeals is “whether R.C. 2901.21(B) requires the particular robbery element, codified in R.C. 2911.02(A)(1), ‘[h]ave a deadly weapon on or about the offender’s person or under the offender’s control,’ to be committed with the mens rea of recklessness.” In other words, the issue presented for our determination is whether robbery, as defined by R.C. 2911.02(A)(1), requires that, in order to prove the deadly weapon element of the offense, it is necessary that the defendant had recklessness as a state of mind.

[377] R.C. 2901.21 provides in relevant part:

“(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless * * * :

a & & &

“(2) He has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.

“(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.”

As previously mentioned, the offense of robbery is defined in R.C. 2911.02. Appellant was convicted of violating R.C. 2911.02(A)(1), which provides:

“No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender’s person or under the offender’s control.”

The parties agree that there is no mental state for culpability specified in R.C. 2911.02(A)(1). Because R.C. 2911.02(A)(1) is silent as to the necessary mental state of the offender, the certified question before us can be resolved by determining whether this statute plainly indicates an intent on the part of the General Assembly to impose strict criminal liability.

Appellant contends that the deadly weapon element set forth in R.C. 2911.02(A)(1) does not plainly indicate that robbery was intended to be a strict liability offense. In contrast, appellee argues that while the predicate offense to robbery, i.e., theft, requires a mental state of knowingly,1 no separate mens rea requirement should be read into the deadly weapon element of the offense of robbery. Appellee contends that possession alone of a deadly weapon is sufficient to find an offender in violation of the robbery statute.

Our reading of the statute leads us to conclude that the General Assembly intended that a theft offense, committed while an offender was in possession or control of a deadly weapon, is robbery and no intent beyond that required for the theft offense must be proven. According to the statutory language, possession of a deadly weapon is all that is required to elevate a theft offense to robbery. See [378] State v. Merriweather (1980), 64 Ohio St.2d 57, 59, 18 O.O.3d 259, 260-261, 413 N.E.2d 790, 791.2 In fact, R.C. 2911.02(A)(1) provides that the offender need not have actual physical possession of the weapon but only that it be “under [his or her] control.” See State v. Brown (1992), 63 Ohio St.3d 349, 351, 588 N.E.2d 113, 114 (citing Chimel v. California [1969], 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694, construing the phrase as meaning “the area from within which [the offender] might gain possession of a weapon * * * ”). Furthermore, one need not have the weapon in one’s possession or under one’s control while committing or attempting to commit a theft offense. A violation of R.C. 2911.02(A)(1) will also be found if the offender has a deadly weapon on or about his person, or under his control, while fleeing after such offense or attempt. Thus, no use, display, or brandishing of a weapon, or intent to do any of the aforementioned acts, is necessary according to the plain language of the statute. Had the legislature so intended, it certainly could have required a level of conduct more severe than it did in order to show a violation of the statute. Thus, by employing language making mere possession or control of a deadly weapon, as opposed to actual use or intent to use, a violation, it is clear to us that the General Assembly intended that R.C. 2911.02(A)(1) be a strict liability offense.

Furthermore, the 1973 Legislative Service Commission Comment to Am.Sub. H.B. No. 511 clearly indicates that the legislature, in defining the offenses of robbery and aggravated robbery, intended to punish the potential for harm to persons as well as actual harm. See Committee Comment to Am.Sub.H.B. No. 511, R.C. 2911.01 and 2911.02. In this regard, we find the rationale of State v. Edwards (1976), 50 Ohio App.2d 63, 4 O.O.3d 44, 361 N.E.2d 1083, compelling. At issue in Edwards was the deadly weapon element of former R.C. 2911.01(A)(1), which contained essentially the same statutory language at issue here.3 The Montgomery County Court of Appeals construed the statutory language of former R.C. 2911.01(A)(1), as well as the legislative comments, and held that “[a] person who commits a theft offense is guilty of aggravated robbery, * * * if at the time he has possession or control of a deadly weapon, even though he does not display, use or intend to use such weapon.” Id. at syllabus. The Edwards court noted that “[t]he thrust and philosophy of [Am.Sub.] H.B. [No.] 511 is to remove the potential for harm that exists while one is committing a theft [379] offense. The anti-social act is the theft offense, committed while armed with a weapon. Merely having the weapon is the potentially dangerous factual condition warranting the more severe penalty. As to the weapon, no mental condition or actual use is necessary or required under the statute.” (Emphasis in original.) Id. at 66-67, 4 O.O.3d at 46, 361 N.E.2d at 1086. We find the reasoning in Edwards to be persuasive.

We are mindful of the appellate court decisions, cited supra, holding that “recklessness” is the mental state necessary to prove the deadly weapon element of R.C. 2911.02(A)(1). However, for the following reasons, we find the reasoning behind those decisions not persuasive.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Wharf, 715 N.E.2d 172, 86 Ohio St. 3d 375 (Ohio 1999).

715 N.E.2d 172 (State v. Wharf) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Mercedes Wilson
978 F.3d 990 (Sixth Circuit, 2020)
State v. Griffin
2020 Ohio 3707 (Ohio Court of Appeals, 2020)
Ugbe Ojile v. Shelbie Smith
Sixth Circuit, 2019
State v. Lilly
2018 Ohio 949 (Ohio Court of Appeals, 2018)
Kenyatta Erkins v. Rick Chuvalas
684 F. App'x 493 (Sixth Circuit, 2017)
State v. Tolliver (Slip Opinion)
2014 Ohio 3744 (Ohio Supreme Court, 2014)
State v. Tolliver
2013 Ohio 115 (Ohio Court of Appeals, 2013)
State v. Willan
2011 Ohio 6603 (Ohio Court of Appeals, 2011)
State v. Johnson
2010 Ohio 6301 (Ohio Supreme Court, 2010)
State v. Segines
944 N.E.2d 1186 (Ohio Court of Appeals, 2010)
State v. Horner
2010 Ohio 3830 (Ohio Supreme Court, 2010)
State v. Lester
2009 Ohio 4225 (Ohio Supreme Court, 2009)
State v. Singfield
918 N.E.2d 187 (Ohio Court of Appeals, 2009)
State v. Humble, 22765 (5-8-2009)
2009 Ohio 2180 (Ohio Court of Appeals, 2009)
State v. Crusse, 06 Ca 154 (5-4-2009)
2009 Ohio 2687 (Ohio Court of Appeals, 2009)
State v. McCain, 22716 (4-17-2009)
2009 Ohio 1959 (Ohio Court of Appeals, 2009)
State v. Morgan
910 N.E.2d 1075 (Ohio Court of Appeals, 2009)
State v. Williams, 2008-T-0101 (3-27-2009)
2009 Ohio 1435 (Ohio Court of Appeals, 2009)
State v. Manning, 22414 (3-27-2009)
2009 Ohio 1414 (Ohio Court of Appeals, 2009)
State v. Jones
909 N.E.2d 191 (Ohio Court of Appeals, 2009)