State not required to prove mental state for use of force in third-degree robbery

The Supreme Court of Ohio ruled on Tuesday that the state does not have to prove a culpable mental state (mens rea) for certain elements of a third-degree robbery charge under O.R.C. 2911.02, according to Court News Ohio. Specifically, the Court found that no criminal intent is required on the elements of using or threatening to use force. The Court held that because there is already a mental state expressly required to prove the theft elements of the offense, the state is not required to prove a mental state for the other elements in the statute.

The case out of Montgomery County involved Kevin Tolliver, who shoplifted at a Dollar General Store. Employee Jasmine Jordan attempted to stop him. She testified at trial that he pushed her and she pushed him back and, then he raised his fist as if to hit her. Tolliver testified that he stole the items and raised his fist, but did not admit to pushing Ms. Jordan, although surveillance footage showed his actions. At trial, the jury instructions did not require the jury to make any findings about Tolliver’s intention to use force against Jordan. The jury convicted Tolliver, and he appealed, arguing that the court committed plain error by not requiring the state to prove that he had recklessly used force during the theft. The Court of Appeals reversed the decision.

Justice French, writing for the majority, held that because the robbery statute includes a required mental state for the theft portions of the statute, but remains silent on any required mental state for the use of force element, the Court would not impute a mental state to that second element. She wrote, “the state need prove culpability only for the elements for which a mental state is specified in the section defining the offense, and courts should not fill any gaps by inserting culpability requirements that the text and ordinary rules of construction cannot bear.”

She went on to distinguish O.R.C. 2901.21(B), which provides that for statutes which do not prescribe a required mental state or set a strict liability standard, the state must prove that the offender's actions were reckless. The Court held that this provision did not apply to the statute at issue, stating “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).” With this decision the Court found that O.R.C. 2901.21(B) does not apply to statutes when there is a section within that statute that provides a required mental state, holding that "there must be 'a complete absence of culpability in the section defining the offense.'"

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy joined in the majority opinion. Justice Lanzinger drafted a dissent, which was joined by Justices Pfeifer and O’Neill.

See 2013-0351 for more information about the case.