[This opinion has been published in Ohio Official Reports at
86 Ohio St.3d 375.]
THE STATE OF OHIO, APPELLEE, v. WHARF, APPELLANT.
[Cite as State v. Wharf, 1999-Ohio-112.]
Criminal law—Robbery—Deadly weapon element of R.C. 2911.02(A)(1) does not
require the mens rea of recklessness—It is not necessary to prove a specific
mental state regarding the deadly weapon element of the offense of robbery
to establish a violation of R.C. 2911.02(A)(1).
1. The deadly weapon element of R.C. 2911.02(A)(1), to wit, “[h]ave a deadly
weapon on or about the offender’s person or under the offender’s 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 robbery.
(No. 98-1925—Submitted April 20, 1999—Decided September 8, 1999.)
CERTIFIED by the Court of Appeals for Warren County, No. CA97-08-087.
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{¶ 1} On November 12, 1996, appellant, Stephen M. Wharf, was driving an
Isuzu Trooper (“Isuzu”) that he had stolen from an automobile dealership in
Louisville, Kentucky. Appellant drove the Isuzu into a SuperAmerica gas station
in Clermont County, Ohio, filled the vehicle’s gas tank with gasoline, and drove
away from the gas station without paying. Trooper Matt Evans of the Ohio State
Highway Patrol proceeded, in a police vehicle, to follow the Isuzu shortly after
appellant exited the gas station. After receiving a radio dispatch regarding the theft
of gasoline from the SuperAmerica, Evans activated his “pursuit lights,” signaling
appellant to pull over. At that point, the Isuzu accelerated rapidly and appellant led
Evans on a high-speed chase with speeds exceeding 100 miles per hour and
spanning three counties. During the chase, Evans noticed appellant reaching in the
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backseat of the Isuzu for “something.” That something turned out to be a .22 caliber
rifle.
{¶ 2} Evans’s high-speed pursuit of appellant lasted approximately twenty
minutes and also involved law enforcement personnel from several localities. The
pursuit ended when law enforcement officers placed “stop sticks” across the
roadway and were able to disable the Isuzu by deflating its tires. Evans testified
that when he approached the Isuzu to make the arrest, appellant was pointing a rifle
at him through the vehicle’s passenger side window. As a result, Evans fired his
weapon at appellant, striking appellant in the head. After appellant dropped his
rifle, he was removed from the Isuzu and placed under arrest.
{¶ 3} Appellant was indicted for, among other things, aggravated robbery
in violation of R.C. 2911.01(A)(1). The trial court amended the indictment to
robbery in violation of R.C. 2911.02(A)(1). During trial, appellant proposed a jury
instruction to the trial court regarding the deadly weapon element of R.C.
2911.02(A)(1). The elements of robbery set forth in R.C. 2911.02(A)(1) are that
“[n]o 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.” Appellant requested an
instruction that, before the jury could find appellant guilty of robbery, they must
find that appellant acted recklessly in having a deadly weapon on or about his
person. The trial court declined to give the proposed jury instruction.
{¶ 4} Appellant was convicted of committing robbery. On appeal, appellant
claimed that the trial court erred in failing to instruct the jury that “recklessly” was
the requisite mental state for the deadly weapon element of robbery in R.C.
2911.02(A)(1). The Warren County Court of Appeals disagreed. In affirming the
trial court’s judgment, the court of appeals held that no mental condition or actual
use of a deadly weapon is required pursuant to the statute. Thereafter, the court of
appeals determined its judgment to be in conflict with the judgments of the courts
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of appeals in State v. Anthony (Sept. 30, 1994), Lake App. No. 93-L-096,
unreported, 1994 WL 587882; State v. Gulley (June 17, 1992), Summit App. No.
15137, unreported,
1992 WL 140006; State v. Steel (Oct. 21, 1997), Defiance App.
No. 4-96-29, unreported,
1997 WL 661108; and State v. Westbrook (Sept. 23,
1992), Licking App. No. 92-CA-2, unreported,
1992 WL 307874. Accordingly,
the court of appeals entered an order certifying a conflict. This cause is now before
this court upon our determination that a conflict exists.
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Tim Oliver, Warren County Prosecuting Attorney, and Andrew L. Sievers,
Assistant Prosecuting Attorney, for appellee.
Allen & Crossley, L.P.A., and Paige A. Crossley, for appellant.
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DOUGLAS, J.
{¶ 5} 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.
{¶ 6} 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 … :
“…
“(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.
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“(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.”
{¶ 7} 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.”
{¶ 8} 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.
{¶ 9} 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.
1. “Theft” is defined in R.C. 2913.02(A), which provides in part that “[n]o person, with purpose to
deprive the owner of property or services, shall knowingly obtain or exert control over either the
property or services in any of the following ways: (1) Without the consent of the owner or person
authorized to give consent.”
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{¶ 10} 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 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.
2. While Merriweather dealt with former R.C. 2911.01, defining “aggravated robbery,” the
statutory language setting forth the deadly weapon element therein is essentially identical to the
statutory language regarding the deadly weapon element of R.C. 2911.02(A)(1) at issue here. See
infra.
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{¶ 11} 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 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.
{¶ 12} 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.
3. Former R.C. 2911.01(A) set forth the elements of aggravated robbery and provided in pertinent
part that “[n]o person, in attempting or committing a theft offense … or in fleeing immediately
after such attempt or offense, shall … (1) [h]ave a deadly weapon or dangerous ordnance on or
about his person or under his control.” See Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866,
1922.
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{¶ 13} The Summit County Court of Appeals in Gulley, the Lake County
Court of Appeals in Anthony, and the Licking County Court of Appeals in
Westbrook based their decisions largely on the case of State v. Crawford (1983), 10
Ohio App.3d 207, 10 OBR 280,
461 N.E.2d 312. As appellee points out, reliance
on Crawford in resolving the issue at hand is misplaced. Crawford involved former
R.C. 2911.01(A)(2), aggravated robbery, which provided in pertinent part that
“[n]o person, in attempting or committing a theft offense, … or in fleeing
immediately after such attempt or offense, shall … [i]nflict, or attempt to inflict
serious physical harm on another.” (Emphasis added.) Am.Sub.H.B. No. 511, 134
Ohio Laws, Part II, 1866, 1922. In Crawford, the Hamilton County Court of
Appeals held “recklessness [to] be the standard which the prosecution must meet
in proving, beyond a reasonable doubt, that the defendant inflicted, or attempted to
inflict, serious physical harm on another.” Crawford,
10 Ohio App.3d 207, 10 OBR
280,
461 N.E.2d 312, paragraph one of the syllabus. Accordingly, we conclude
that the physical harm element of former R.C. 2911.01(A)(2) and the deadly
weapon element of R.C. 2911.02(A)(1) are not analogous provisions and cannot be
compared in deciding the question, herein, certified to us for determination.
{¶ 14} The Defiance County Court of Appeals did not rely on Crawford in
reaching its decision in the Steel case. That court instead cited State v.
Merriweather (1980), 64 Ohio St.2d 57,
18 O.O.3d 259,
413 N.E.2d 790, and State
v. McSwain (1992),
79 Ohio App.3d 600,
607 N.E.2d 929, for the proposition that
recklessness was the mental state necessary to prove the deadly weapon element of
R.C. 2911.02(A)(1). We respectfully disagree. We find, instead, that
Merriweather stands for the proposition that “robbery under [former] R.C. 2911.02
[was] not a lesser-included offense of the crime of aggravated robbery under
[former] R.C. 2911.01(A)(1).” Merriweather,
64 Ohio St.2d 57,
18 O.O.3d 259,
413 N.E.2d 790, syllabus. In fact, the court in Merriweather stated, in dictum, that
“as long as the accused merely possesses a deadly weapon or dangerous ordnance
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during the commission of a theft[,]” the accused could be convicted of aggravated
robbery pursuant to former R.C. 2911.01(A)(1). Id. at 59,
18 O.O.3d at 261,
413
N.E.2d at 791. Conversely, McSwain did involve the “physical harm” element of
former R.C. 2911.01(A)(2) and, thus, in resolving the issue in McSwain, the
Cuyahoga County Court of Appeals placed proper reliance on Crawford. However,
we have already noted that the premise that Crawford and the physical harm
element of former R.C. 2911.01(A)(2) are analogous is not well taken.
{¶ 15} It is apparent that this case bears out precisely the potential type of
harm the General Assembly sought to prevent when it enacted R.C. 2911.02(A)(1).
Appellant committed a relatively minor theft offense. However, in attempting to
elude law enforcement officials, the severity of appellant’s unlawful actions and
the risk of harm quickly escalated due, in large measure, to a deadly weapon being
readily accessible to appellant. This was not a case of neglect, innocent mistake,
or pure accident on the part of appellant. This was a situation where the potential
for violence was greatly enhanced because appellant, in fleeing after committing a
theft offense, had in his possession a firearm.
{¶ 16} By making offenders like appellant strictly accountable for this type
of conduct, the General Assembly clearly had in mind the laudable goal of
protecting law enforcement officers, but also members of the general public from
any potential increased risks of harm. It is axiomatic that an effective means of
achieving that goal would be the reduction of criminal activity involving the use of
firearms. Accordingly, we answer the certified question in the negative and hold
that the deadly weapon element of R.C. 2911.02(A)(1), to wit, “[h]ave a deadly
weapon on or about the offender’s person or under the offender’s control[,]” does
not require the mens rea of recklessness. In order to prove a violation of R.C.
2911.02(A)(1), no specific mental state is necessary regarding the deadly weapon
element of the offense of robbery. The judgment of the court of appeals is affirmed.
Judgment affirmed.
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MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
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