Does Failure to Object to Defective Indictment During Trial Waive All But 'Plain Error' Analysis on Appeal?
When Indictment Does Not State Required Guilty Mental State for Offense
State of Ohio v. Gregory Horner, Case no. 2009-0311
6th District Court of Appeals (Lucas County)
* Pursuant to the Supreme Count of Ohio's 2008 holding in State v. Colon that an indictment for robbery under R.C.2911.02(A)(2) is defective if it does not allege that the defendant acted with the guilty mental state of "recklessly," is an indictment for the offense of aggravated robbery under R.C. 2911.02(A)(3) also defective if it fails to specify the same guilty mental state?
* When an indictment quotes or paraphrases the language of a statute in charging a criminal offense, and at trial the defendant enters a plea of no contest and does not object to the sufficiency of the indictment despite the absence of a required guilty mental state, does the defendant waive all but "plain error" analysis of the sufficiency of the indictment in a subsequent appeal of his conviction?