State v. Tolliver 140 OHIO ST.3D 420, 2014-OHIO-3744, 19 N.E.3D 870 DECIDED SEPTEMBER 2, 2014

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1 State v. Tolliver 140 OHIO ST.3D 420, 2014-OHIO-3744, 19 N.E.3D 870 DECIDED SEPTEMBER 2, 2014 I. INTRODUCTION On September 2, 2014, the Supreme Court of Ohio issued a final ruling in State v. Tolliver, 1 a mere shoplifting case at a Dollar General only a small amount of merchandise was taken, no weapons were used, and no one was injured. 2 However, the devil is in the details. The four-three decision carries significant weight regarding statutory interpretation of Ohio s most basic criminal statutes. The case also provides insight into how a court is likely to rule when the legislature is silent on an offender s culpable mental state, as well as the factors Ohio judges are likely to consider in order to render a fair and accurate statutory reading. II. STATEMENT OF FACTUAL AND PROCEDURAL HISTORY In September 2010, Kevin Darvon Tolliver entered a Dollar General convenience store and attempted to leave without paying for bags full of merchandise. 3 Assistant Manager, Jasmine Jordan, stood in the doorway of the store to block Tolliver s exit. 4 Tolliver shoved Jordan backwards into the store vestibule and proceeded to leave. 5 Jordan responded by pushing Tolliver back. 6 Tolliver then spun around and raised his right fist as if to punch Jordan in the face. 7 At that point, employee Sean Fields interjected, pushed Jordan and Tolliver away from each other, and allowed Tolliver to exit the store with the merchandise in hand. 8 Tolliver was charged with robbery in violation of section (A)(3) of the Ohio Revised Code, a felony of the third degree. 9 The indictment charged that Tolliver, in attempting or committing a theft offense, or in fleeing immediately after the attempt or offense, did recklessly use or threaten the immediate use of force against another. 10 Tolliver claimed Ohio St. 3d 420, 2014-Ohio-3744, 19 N.E.3d 870 (2014). 2. Id. at 421, 2014-Ohio , 19 N.E.3d at Id., 2014-Ohio , 19 N.E.3d at Id., 2014-Ohio , 19 N.E.3d at Id., 2014-Ohio , 19 N.E.3d at State v. Tolliver, 140 Ohio St. 3d at 421, 2014-Ohio , 19 N.E.3d at Id., 2014-Ohio , 19 N.E.3d at See State v. Tolliver, 2013-Ohio-115 4, 986 N.E.2d 34, 36 (2d Dist.). 9. See id., 2013-Ohio-115 8, 986 N.E.2d at See id., 2013-Ohio-115 8, 986 N.E.2d at

2 858 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 41 that, while it was never his intention to use force against either of the employees, the force he ultimately resorted to was not reckless he was simply trying to exit the store after being shoved. 11 The trial court convicted Tolliver, ordered him to pay $100 in restitution to Dollar General, and consecutively with another case, sentenced him to four years in prison. 12 On appeal, Tolliver theorized that the trial court failed to instruct the jury that recklessness was the necessary mens rea required for the use, or threat of immediate use, of force against another. 13 In fact, the jury was not instructed on any particular mental state regarding the force element of the offense. 14 Based on section (B) of the Ohio Revised Code, Tolliver argued that where there is neither a stated mental culpability nor an indication of strict liability, recklessness by default must be demonstrated for a conviction. 15 By omitting the mens rea in the jury instructions, Tolliver argued that he was effectively denied his constitutional rights to a fair trial and due process of law. 16 Finding that the trial court committed plain error in failing to provide such instruction, the appellate court ruled in Tolliver s favor and issued a reversal. 17 On appeal, the Supreme Court of Ohio considered whether a culpable mental state of recklessness applied to the force element contained in the applicable robbery statute that element being defined in section (A)(3) of the Ohio Revised Code. 18 III. THE COURT S DECISION AND RATIONALE A. Majority Opinion by Justice French Justice Judith L. French wrote the majority opinion, to which Chief Justice Maureen O Connor and Justices Terrence O Donnell and Sharon L. Kennedy joined. 19 In a prosecution for robbery, the Court conceded that, by statute, the General Assembly requires proof of a culpable mental state for some elements of the offense, while remaining silent on others. 20 Tolliver was charged with violating section (A)(3) of the Ohio Revised Code, which states, (A) No person, in attempting or committing a theft 11. See id., 2013-Ohio , 986 N.E.2d at See id., 2013-Ohio , 986 N.E.2d at Tolliver, 140 Ohio St. 3d at 421, 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at See Tolliver, 2013-Ohio , 986 N.E.2d at See id., 2013-Ohio , 986 N.E.2d at See id., 2013-Ohio , 986 N.E.2d at Tolliver, 140 Ohio St. 3d at 421, 2014-Ohio , 19 N.E.3d at See id. at , 2014-Ohio , 19 N.E.3d at See id. at 425, 2014-Ohio , 19 N.E.3d at 874.

3 2015] STATE V. TOLLIVER 859 offense or in fleeing immediately after the attempt or offense, shall... (3) Use or threaten the immediate use of force against another. 21 Generally, when a criminal statute is silent on the particular mens rea, a court may consider section (B) of the Ohio Revised Code, which provides that when a section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense. 22 However, the Supreme Court of Ohio held that the strict liability and read-in recklessness rules of section (B) of the Ohio Revised Code did not apply; therefore, the State need not prove a culpable mental state for the force element of robbery. 23 In making this decision, the Supreme Court of Ohio relied on State v. Maxwell. 24 There, the Supreme Court of Ohio adopted a two-step inquiry in which both of the following questions must be answered in the negative in order to apply default recklessness: (1) does the section defining an offense specify any degree of culpability, and (2) does the section plainly indicate a purpose to impose strict criminal liability? 25 In Tolliver, the Supreme Court of Ohio first addressed the plain text of the robbery statute and determined that while silent on the element of force, the statute expressly demanded proof of culpability for other elements of the offense. 26 Because division (A) provides that robbery is inherently a theft offense, all culpable mental states of theft apply. 27 The theft offense at issue section (A)(1) of the Ohio Revised Code requires a showing of purpose and knowingly. 28 Thus, the General Assembly has spoken and culpability has been specified; the jury merely had to find that Tolliver knowingly engaged in the wrongful conduct. 29 Applying the above Maxwell inquiry, the Court held the robbery statute could not imply recklessness to the force element because both questions could not be answered in the negative: (1) the predicate offense already required proof of a culpable mental state for its subdivision and (2) the section did not clearly state a purpose to impose strict liability OHIO REV. CODE ANN (A)(3) (LexisNexis 2014). 22. Tolliver, 140 Ohio St. 3d at 426, 2014-Ohio , 19 N.E.3d at 875 (quoting OHIO REV. CODE ANN (B) (LexisNexis 2014)). 23. See id. at 426, 2014-Ohio , 19 N.E.3d at Ohio St. 3d 254, 2002-Ohio-2121, 767 N.E.2d 242 (2002). 25. Tolliver, 140 Ohio St. 3d at 424, 2014-Ohio , 19 N.E.3d at See id. at 422, 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at 872 (citing OHIO REV. CODE ANN (A)(1) (LexisNexis 2014)). 28. See id., 2014-Ohio , 19 N.E.3d at 872 (citing OHIO REV. CODE ANN (A)(1)). 29. See id., 2014-Ohio , 19 N.E.3d at See Tolliver, 140 Ohio St. 3d at , 2014-Ohio , 19 N.E.3d at 874.

4 860 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 41 The Supreme Court of Ohio acknowledged that its past precedent had been somewhat inconsistent with this view. 31 However, in State v. Johnson, 32 the Court reestablished the Maxwell rule by refusing to apply default recklessness to a statute that prohibited the possession of a weapon while under disability, wherein a mental state of knowingly was specified in division (A). 33 The Supreme Court of Ohio found the robbery statute no different because, as a theft offense, the robbery statute necessarily requires the predicate mens rea of purpose and knowingly. 34 Thus, because section (B) of the Ohio Revised Code did not apply, the Supreme Court of Ohio reversed the appellate court s decision, and held that the State was not required to prove a culpable mental state for the force element of the robbery statute. 35 B. Dissenting Opinion by Justice Lanzinger Justice Judith Ann Lanzinger, joined by Justices Paul E. Pfeifer and William M. O Neill, issued a dissenting opinion, stating that because a predicate theft offense should not apply, the force element in a prosecution for robbery should include default recklessness. 36 Opposing the majority s Johnson analogy, Justice Lanzinger wrote, Johnson did not contemplate the incorporation by reference of elements from another statute. On its face, the third-degree-felony offense of robbery... does not contain any mens rea. 37 The dissent was particularly weary of the majority s reliance on the predicate offense because a theft offense may carry multiple meanings and not all theft offenses contain a culpable mental state. 38 Additionally, the use or threat of force element is a defining element of a third-degree-felony robbery, distinct from all other theft offenses. 39 Applying the same Maxwell inquiry, the dissent determined: (1) the language of the statute did not specify any degree of culpable mental state and (2) no words within the statute indicate the General Assembly s plain intention to impose strict liability. 40 Ultimately, after applying the same test, the dissent reached a contrary conclusion: The default mens rea of recklessness should apply and the appellate court s judgment should be affirmed See id. at 424, 2014-Ohio , 19 N.E.3d at Ohio St. 3d 107, 2010-Ohio-6301, 942 N.E.2d 347 (2010). 33. See Tolliver, 140 Ohio St. 3d at 424, 2014-Ohio , 19 N.E.3d at Id., 2014-Ohio , 19 N.E.3d at 874; see OHIO REV. CODE ANN (A). 35. See id. at 426, 2014-Ohio , 19 N.E.3d at See id. at 428, 2014-Ohio , 19 N.E.3d at See id. at 427, 2014-Ohio , 19 N.E.3d at Tolliver, 140 Ohio St. 3d at 427, 2014-Ohio , 19 N.E.3d at See id. at 428, 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at 877.

5 2015] STATE V. TOLLIVER 861 IV. ANALYSIS A. Introduction While the Model Penal Code requires culpability for all material elements of an offense, 42 the General Assembly may selectively assign culpable mental states to some elements and not others. 43 Just because a mens rea is missing for one element, does not mean that there is a complete absence of culpability. 44 For this reason, it was well within the Supreme Court s power to hold that robbery, defined by section of the Ohio Revised Code, is foremost a theft offense and that it incorporates the culpable mental states of that predicate offense. 45 The default recklessness rule, section (B) of the Ohio Revised Code, is applicable only to those statutes that are silent on culpability and express no intention to impose strict liability. 46 The State is therefore not required to prove a culpable mental state for the force element in the robbery statute. 47 An analysis of the theories of statutory interpretation, other statutory phrasing noted by the appellate court s dissent, and public policy, demonstrate that the majority s reasoning was well founded. B. Discussion 1. The Plain Language Rule Followers of Blackstone and modern textualists like Justice Scalia believe that judges should only stray from the plain meaning of the text to avoid an absurd result. 48 Justice Scalia is well known for his loyalty to the text and the plain language rule first, a court ought to construe a statute by finding the ordinary meaning of the language in its textual context, then, and only then, apply established canons of construction. 49 Textual context means any of the following three structural indicia of meaning: (1) how the word or phrase is used throughout the statute or in other statutes; (2) how the possible meanings fit with the statute as a whole; or (3) the interaction of different statutory schemes to determine statutory plain meaning MODEL PENAL CODE 2.02(4). 43. See Tolliver, 140 Ohio St. 3d at 425, 2014-Ohio , 19 N.E.3d at See id. at 426, 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at See Maxine D. Goodman, Reconstructing the Plain Language Rule of Statutory Construction: How and Why, 65 MONT. L. REV. 229, 233 (2004). 49. See Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting). 50. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, (1990).

6 862 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 41 The majority in Tolliver follows this road map. By its plain meaning, as well as contextual clues from other statutes, the majority found that the robbery statute necessarily incorporates culpable mental states of the predicate theft offense. 51 Although section (A)(3) of the Ohio Revised Code requires the use or the threat of the use of force, it does not expressly modify that force with a culpable mental state. 52 The robbery statute provides, in pertinent part: (A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall... (3) Use or threaten the immediate use of force against another. 53 By its plain meaning and grammatical context in section (A), the majority logically concluded that any robbery is considered a subset of a theft offense. 54 Without deviating from the plain language rule, the Court correctly identifies that, under the umbrella of the theft offense, robbery is already tied to two culpable mental states: to (1) purposefully deprive the owner and (2) knowingly obtain the property. 55 The applicable theft statute, section of the Ohio Revised Code, states: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either property or services. 56 Therefore, to commit a robbery, an offender must, and only must, purposely deprive the owner and knowingly obtain the property. 2. Context Clues from Other Statutes: The Dissenting Appellate Judge Got it Right! Similar statutory wording supports the majority s view that recklessness should not accompany the use-of-force element as a culpable mental state for robbery. Judge Michael T. Hall, the dissenting judge at the appellate level, provided some convincing examples. 57 He noted that Ohio s resisting-arrest statute, section of the Ohio Revised Code, draws a distinct line between recklessness and force: (A) No person, recklessly or 51. See Tolliver, 140 Ohio St. 3d at 426, 2014-Ohio , 19 N.E.3d at OHIO REV. CODE ANN (A)(3). 53. Id. 54. See Tolliver, 140 Ohio St. 3d at 426, 2014-Ohio , 19 N.E.3d at See id. at 422, 2014-Ohio , 19 N.E.3d at OHIO REV. CODE ANN (A). 57. See Tolliver, 2013-Ohio , 986 N.E.2d at 44.

7 2015] STATE V. TOLLIVER 863 by force, shall resist or interfere with a lawful arrest. 58 The fact that the two words are distinguished illustrates the legislature s intent to identify them as separate concepts. 59 More convincing still is the express inclusion of recklessly in the assault statute: No person shall recklessly cause serious physical harm. 60 This provides evidence that when the legislature intends to include recklessness as mental state, it does so and has done so unequivocally. Finally, Ohio courts have never interpreted any form of aggravated robbery 61 to require recklessness. 62 In addition to similar statutory phrasing, Ohio lacks case law for interpreting other force elements as implicating reckless culpability. 63 The kidnapping statute, for example, reads: (A) No person, by force... shall remove another from the place where the other person is found or restrain the liberty of the other person. 64 Would it not be absurd to interpret the force element for kidnapping to require one to act recklessly or else be off the hook? In his dissent, Judge Hall stated, No case law supports the notion that such force must be accomplished recklessly, and the jury instructions on the kidnapping offense [do] not suggest that recklessness should be included for the force element. 65 The same could be said for Ohio s aggravated burglary statute, which provides in pertinent part, No person, by force... shall trespass Policy Considerations As a final justification for the ruling, the Supreme Court of Ohio held tight to the policy against judicial gap filling. 67 The duty of the judiciary is to give effect to the words used, not to delete words used or to insert words not used. 68 To allow judges to fill in these blanks, is to inch toward the dreaded notion of judicial activism, a term defined by one Professor as the practice by judges of disallowing policy choices by other governmental 58. See id., 2013-Ohio , 986 N.E.2d at 44 (quoting OHIO REV. CODE ANN (LexisNexis 2014)). 59. See id., 2013-Ohio , 986 N.E.2d at See id., 2013-Ohio , 986 N.E.2d at 44 (quoting OHIO REV. CODE ANN (LexisNexis 2014)). 61. See OHIO REV. CODE ANN (LexisNexis 2014); see also OHIO REV. CODE ANN See Tolliver, 2013-Ohio , 986 N.E.2d at See id., 2013-Ohio , 986 N.E.2d at OHIO REV. CODE ANN (LexisNexis 2014). 65. See Tolliver, 2013-Ohio , 986 N.E.2d at OHIO REV. CODE ANN (LexisNexis 2014). 67. See Tolliver, 140 Ohio St. 3d at 422, 2014-Ohio , 19 N.E.3d at Columbus-Suburban Coach Lines, Inc. et al. v. Pub. Utilities Comm n. of Ohio, 20 Ohio St. 2d 125, 127, 254 N.E.2d 8, 9 (1969).

8 864 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 41 officials or institutions that the Constitution does not clearly prohibit. 69 In other words, a court engages in judicial activism when it ignores, restricts, or overrides the penmanship of the other government branches. Had the legislature intended to modify force, by use of the term recklessly or otherwise, it would have done so. As it should be, it is not within the duty or discretion of the courts to say otherwise. V. CONCLUSION When constitutionally protected interests are threatened, it is most imperative for the legislature to formulate clear laws laws that can be clearly comprehended and strictly applied by the judiciary. In this case, the Supreme Court of Ohio correctly relied on textual context and held that the State need not prove that the defendant recklessly utilized force in his attempt to commit a robbery. 70 Through careful language, the General Assembly intended every robbery to include the culpable mental states of the predicate theft offense and, consequently, the strict-liability and read-inrecklessness rules do not automatically apply. 71 KAITLIN L. HOOP 69. Lino A. Graglia, It s Not Constitutionalism, It s Judicial Activism, 19 HARV. J.L. & PUB. POL Y 293, 296 (1996). 70. See Tolliver, 140 Ohio St. 3d at 426, 2014-Ohio , 19 N.E.3d at See id., 2014-Ohio , 19 N.E.3d at 875.