[Cite as State v. McCain , 2011-Ohio-2565.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24159

v. : T.C. NO. 93CR1038 REGGIE ALLEN McCAIN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 27 th day of May , 2011.

. . . . . . . . . . JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee REGGIE ALLEN McCAIN, #277-223, London Corr ectional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Reginald Allen McCain appeals from an order of the Montgomery County Court of Common Pleas, which denied his mo tion to vacate his convictions. For the following reasons, the trial court’s judgment will be affirmed. {¶ 2} In April 1993, McCain was indicted for burglary, aggravated robbery,2 aggravated murder, and two counts of kidnappi ng. (McCain’s co-defendant was charged with the same offenses, plus an additional c ount of having weapons while under disability.) All of the counts included a firearm specificati on; the burglary count also included a cause harm specification and an actua l threat of harm with a deadly weapon specification. McCain pled guilty to murder (a lesser included offense of aggravated murder) with a firearm specification and one count of kidnapping. In exchange for the plea, the remaining

counts were dismissed. The c ourt sentenced McCain to 3 to 15 years for kidnapping and 15 years to life for murder, to be served concurrently with each other, but consecutive with and subsequent to three years of actual incarceration for the firearm specification accompanying

the murder count. {¶ 3} In June 2010, McCain filed a Motion to Vacate Conviction. He argued that the indictment for aggravated robbery (Count 2) omitted the mens rea, an element of the charged offense. He asserted that this omission constituted a structural error that “clearly permeated [his] entire criminal proceedings.” The State responded that McCain was not convicted of aggravated robbery and, regardless, aggravated robbery in violation of R.C. 2911.01(A)(1) is a strict liability offense. {¶ 4} The trial court construed McCain’s motion as a request to vacate his conviction for aggravated robbery. The court denied the motion, noting that McCain pled guilty to murder and kidnapping and was never convicted of aggravated robbery. {¶ 5} McCain appeals from the tria l court’s order, claiming that his convictions for murder and kidnapping should have been vacated due to the faulty indictment for aggravated robbery3 {¶ 6} First, we agree that by accepting the pl ea bargain and pleading guilty to other indicted charges and having th e aggravated robbery charge dismissed, McCain has waived any possible error in the indic tment for aggravated robbery. However, even if we very liberally construed his argument to be that the aggrav ated robbery indictment somehow tainted the guilty pleas to murder and kidnapping, the trial court’s decision was correct. {¶ 7} McCain’s argument a ppears to be based on State v. Colon , 118 Ohio St.3d 26, 2008-Ohio-1624 (“ Colon I ”), which held that “[w]hen an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the

defendant has not waived the defect in the indi ctment.” Id. at sylla bus. If the defective indictment “permeated” the defendant’s trial, the defective indictment was structural error. Id. at ¶44. {¶ 8} On reconsideration, the Supr eme Court clarified that Colon I was “prospective only” and “that where a defective indictment was not inextricably linked to other errors, plain error analysis, rather than st ructural error analysis, would be appropriate.” State v. Taylor , Montgomery App. No. 22564, 2009-Ohio-806, at ¶17, citing State v. Colon , 119 Ohio St.3d 204, 2008-Ohio-3749, ¶7 (“ Colon II ”). {¶ 9} On August 27, 2010 (two months after McCain filed his motion to vacate), the Ohio Supreme Court overruled Colon I and Colon II , holding: “An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state.”

State v. Horner , 126 Ohio St.3d 466, 2010-Ohio-3830, pa ragraph one of the syllabus. {¶ 10} At the time of McCain’s offe nses, R.C. 2911.01(A)(1) provided:4 {¶ 11} “(A) No person, in attempting or committin g a theft offense, as defined in section 2913.01 of the Revised Code, or in fl eeing immediately after such attempt or offense, shall do either of the following: {¶ 12} “(1) Have a deadly weapon or danger ous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control[.]” {¶ 13} McCain’s indictment tracked that language, stating that McCain and his

co-defendant “on or about the 8 th day of April , 19 93 , *** in attempting or committing a theft offense against another, to wit: Lucinda Smithson , as defined in Section 2913.01(K) of the Revised Code, to wit: a violation of Section 2913.02 of the Revised Code or in fleeing immediately after such attempt or offense , did have a deadly weapon, to wit: a firearm , on or about their person or under their control; contrary to the form of the statute (in violation of Section 2911.01(A)(1) of the Oh io Revised Code) ***.” (Emphasis sic.) {¶ 14} Because McCain’s indictment for aggrav ated robbery tracked the language of the statutory section under which he was charged, the indictment was not deficient for failing to specify a mens rea. See State v. Stevens , Montgomery App. No. 23817, 2010-Ohio-4766. We find no error – structural, plain, or otherwise – in McCain ’s indictment for aggravated robbery. Accordingly, we find no error to tain t McCain’s pleas and convictions for murder and kidnapping. {¶ 15} McCain’s assignment of error is overruled. {¶ 16} The trial court’s order will be affirmed.

. . . . . . . . . . FAIN, J. and HALL, J., concur.5 Copies mailed to:

Johnna M. Shia Reggie Allen McCain Hon. Connie S. Price