Is Culpable Mental State of Recklessness An Essential Element for Indictment In a Child Endangerment Case ?

In State v. Conley, 5th Dist. No. 03-CA-18, 2005 Ohio 3257, a jury convicted the defendant of child endangering and involuntary manslaughter. The defendant appealed arguing that the indictment was defective because it failed to contain a culpable mental state and the jury instructions also failed to contain the culpable mental state. The Fifth District agreed and reversed the convictions finding that because the indictment did not contain all of the elements required for child endangering, which included the culpable mental state of recklessness, the trial court did not have subject matter jurisdiction. The court applied the plain error test and concluded: "The failure to state the essential element of recklessness in regard to an indictment for child endangering and to subsequently fail to amend the indictment or otherwise correct the error is plain error. Such an indictment is insufficient and invalid. Appellant was never given notice of the elements of the offenses for which she was charged." (Internal citations omitted.) Conley, 5th Dist. No. 03-CA-18, at P26. In Conley, the court noted that an indictment can be amended implicitly, as long as the name and identity of the crime do not change, through the use of proper jury instructions that include the missing element, thereby indicating that the parties and the jury were aware of the elements of the offense. Id. at P23. But the court went on to find that the indictment was not amended at trial to correct the defect and the jury instructions did not include the culpable mental state of recklessness. Id.