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State v. Briscoe

December 4, 2008

STATE OF OHIO PLAINTIFF-APPELLEE
v.
HARRY BRISCOE DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-487410 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

The opinion of the court was delivered by: James J. Sweeney, A.J.

JOURNAL ENTRY AND OPINION

BEFORE: Sweeney, A.J., Gallagher, J., and Stewart, J.

{¶1} Defendant-appellant, Harry Briscoe ("defendant"), relying on State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, appeals his murder and aggravated robbery convictions. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

{¶2} In October 2006, defendant was charged in a four-count indictment. Counts one and two charged him with aggravated murder. Counts three and four charged him with aggravated robbery. Counts one through three carried one- and three-year firearm specifications, a felony murder specification, two notice of prior conviction specifications, and two repeat violent offender specifications.*fn1 Count four, the remaining aggravated robbery charge, carried one- and three-year firearm specifications, two notice of prior conviction specifications, and two repeat violent offender specifications.

{¶3} The matter proceeded to a jury trial, at which he was found guilty of murder, the lesser included offense under count two and both counts of aggravated robbery.*fn2 The jury also found defendant guilty of the one- and three-year firearm specifications attached to all the three counts.

{¶4} The notice of prior conviction and repeat violent offender specifications were bifurcated and heard by the trial court, which found defendant guilty of the notice of prior conviction specification as charged in counts two, three, and four. The trial court found defendant not guilty of the repeat violent offender specifications.

{¶5} The trial court sentenced defendant to three years in prison on the firearm specifications, 15 years to life for murder, and 10 years for each aggravated robbery charge, to be served concurrently to each other, but consecutively to the murder charge, for an aggregate of 28 years to life in prison.

{¶6} Defendant now appeals, raising two assignments of error for our review.

{¶7} "I. The trial court erred in convicting Mr. Briscoe based upon a constitutionally defective indictment that failed to state a necessary element of the charged offenses."

{¶8} Under this assignment of error, defendant contends that the counts of his indictment for aggravated robbery, in violation of R.C. 2911.01(A)(1) and 2911.01(A)(3), were defective because they omitted the mens rea element of the crime. Defendant relies on State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 ("Colon I"), to support his argument that the omission of the mens rea element constitutes structural error that requires reversal of the convictions, where the error permeates the entire criminal proceedings.

{¶9} The Ohio Supreme Court, on reconsideration, clarified its decision in Colon I, in a subsequent opinion, see State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 ("Colon II"). In Colon II, the court instructed:

{¶10} "Applying structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment. In Colon I, the error in the indictment led to errors that 'permeate[d] the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence.' Id. at ¶23. Seldom will a defective indictment have this effect, and therefore, in most defective indictment cases, the court may analyze the error pursuant to Crim.R. 52(B) plain-error analysis. Consistent with our discussion herein, we emphasize that the syllabus in Colon I is confined to the facts in that case." Id. at ¶8 (emphasis added).

{ΒΆ11} In Colon II, the Ohio Supreme Court clarified that multiple errors must permeate the trial before the omission of the mens rea from an indicted offense can be considered under a structural error analysis. Specifically, the court cited a failure to include recklessness as an element of the crime in the jury instructions, or ...


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