Crim Law - Ohio Distinctions

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Ohio Point of Law: Mens Rea

Ohio has adopted the Model Penal Code degrees of culpability and defines them as follows:

i) Purposely—Acting with the specific intention to cause a certain result, or when the gist of the offense is a prohibition against conduct of a certain nature regardless of what the defendant intends to accomplish;

ii) Knowingly—Regardless of purpose, a person is aware that her conduct will probably cause a certain result or will be of a certain nature;

iii) Recklessly—With heedless indifference to consequences, a person perversely disregards a known risk that her conduct is likely to cause a certain result or be of a certain nature;

iv) Negligently—Due to a substantial lapse in due care, a person fails to perceive or avoid a risk that her conduct may cause a certain result or be of a certain nature.

Ohio Point of Law: Mens Rea Not Stated

In Ohio, if an offense does not specify the requisite mens rea and it is clear that its purpose is not to impose strict criminal liability, recklessness is the sufficient degree of culpability to commit such offense.

Ohio Distinction: Complicity

A person who acts with the kind of culpability required to commit an offense may not (i) solicit another to commit the offense, (ii) aid or abet another in committing the offense, (iii) conspire with another to commit the offense, or (iv) cause an innocent person to commit the offense. If he does so, the person will be found guilty of complicity.

Ohio Point of Law: Criminal Liability

An accomplice/complicitor may be prosecuted and punished as if he were a principal offender. Ohio Rev. Code § 2923.03(F).

Example: D encourages E to burn V's house and E does so. The fire spreads to W's house and it was foreseeable that it would do so. D is an accomplice to the burning of W's house.

An accomplice may be criminally liable even though the accomplice cannot be a principal.

Example: A woman who cannot commit rape as a principal can be liable for rape if she aids the male principal (e.g., restraining the victim) in his rape of the victim.

Ohio Distinction: Withdrawal

It is an affirmative defense to complicity that prior to the commission or attempted commission of the crime, the person terminated her complicity under circumstances manifesting a complete and voluntary renunciation of her criminal purpose.

Ohio Point of Law: Insanity

Ohio has adopted the M'Naghten test. A person is not guilty by reason of insanity if the person proves at the time of the commission of the offense, that he did not know, as a result of a severe mental disease or defect, the wrongfulness of his acts.

Ohio Distinction: Burden of Proof

The burden of both going forward with evidence of and proving an affirmative defense by a preponderance of the evidence is upon the accused.

Ohio Point of Law: Voluntary Intoxication

In Ohio, voluntary intoxication may not be considered in determining the existence of a mental state that is an element of the crime charged. Additionally, it may not relieve a person of a duty to act if the failure to do so constitutes a crime. Voluntary intoxication may, however, be admissible to show whether or not a person was physically capable of performing the charged crime.

Ohio Distinction: Murder

Ohio refers to common law second-degree murder simply as "murder." A person is guilty of murder if (i) he purposely causes another's death or the unlawful termination of another's pregnancy, or (ii) causes another's death as a proximate result of committing or attempting to commit a violent first- or second-degree felony as long as the violent act is not elevated to become a first- or second-degree felony solely as a result of a prior conviction.

Ohio Distinction: Voluntary Manslaughter

In Ohio, a person is guilty of voluntary manslaughter if, while under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation by the victim that is reasonably sufficient to incite the person into using deadly force, he knowingly causes another's death or the unlawful termination of another's pregnancy.

Ohio Point of Law: Involuntary Manslaughter

A person is guilty of involuntary manslaughter if the person causes another's death or the unlawful termination of another's pregnancy as a proximate result of committing or attempting to commit a felony (not enumerated in the aggravated murder or murder statutes), misdemeanor, or regulatory offense

Ohio Distinctions: Reckless Homicide; Negligent Homicide

Ohio has adopted a reckless homicide statute and a negligent homicide statute. Reckless homicide prohibits a person from recklessly causing another's death or the unlawful termination of another's pregnancy. Negligent homicide prohibits another from negligently causing another's death or the unlawful termination of another's pregnancy by means of a deadly weapon. Ohio Rev. Code §§ 2903.041; 2903.05.

"Deadly weapon" is defined as any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. Ohio Rev. Code § 2923.11(A).

Ohio Distinction: Crimes Against Property

Ohio does not distinguish between the common law crimes of larceny, embezzlement, and false pretenses; instead, Ohio addresses these crimes in the theft statute.

Ohio Distinction: Larceny

Ohio refers to larceny as theft. Theft occurs when a person, with a purpose to deprive the owner of property or services, knowingly obtains or exerts control over such property or services:

i) Without the consent of the owner or other authorized person;

ii) Beyond the scope of the express or implied consent of the owner or authorized person; or

iii) By deception, threat, or intimidation.

Ohio Distinction: Forgery

In Ohio, forgery prohibits a person, with the purpose to defraud, or knowing that he is facilitating a fraud, from:

i) Forging another's writing without the other's authority;

ii) Forging a writing so that it purports to be genuine when it is not, a copy of an original when no original existed, or was executed at a time or place or with terms different from what was the case; or

iii) Uttering, or possessing with purpose to utter, any writing that the person knows to have been forged.

Ohio Point of Law: Robbery

In Ohio, a robbery occurs if, in attempting or committing a theft offense or fleeing therefrom, a person:

i) Possesses a deadly weapon on or about his person or under his control;

ii) Inflicts, attempts to inflict, or threatens to inflict physical harm on another; or

iii) Uses or threatens the immediate use of force against another.

Ohio Rev. Code § 2911.02(A).

To establish robbery, it is not necessary to prove a specific mental state regarding the deadly weapon element; mere possession is sufficient. Contrast that with aggravated robbery, which requires an offender to possess and either display, brandish, or indicate that he possesses, or use a deadly weapon in the commission of a robbery. Ohio Rev. Code § 2911.01(A)(1); State v. Wharf, 715 N.E.2d 172 (Ohio 1999).

Ohio Point of Law: Burglary

Ohio follows the modern trend in abolishing the nighttime burglary requirement. To commit burglary, a person by force, stealth, or deception must trespass in (i) an occupied structure, (ii) a separately secured or occupied portion of an occupied structure, or (iii) a permanent or temporary habitation of another when a person other than an accomplice is present with the purpose to commit a criminal offense inside. Ohio Rev. Code § 2911.12.

A person commits aggravated burglary if during the commission of burglary, the offender inflicts, attempts, or threatens to inflict physical harm on another, or the offender has a deadly weapon on or about his person. Ohio Rev. Code § 2911.11.

A person commits the crime of "breaking and entering" if:

i) By force, stealth, or deception, he trespasses in an unoccupied structure with purpose to commit a theft or felony inside; or

ii) He trespasses on another's land or premises with purpose to commit a felony.

Ohio Rev. Code § 2911.13.

Burglary and Ohio Trespass statutes

Ohio also has a criminal trespass statute that prohibits a person, without privilege to do so, from:

i) Knowingly entering or remaining on another's land or premises or on another's land or premises that are lawfully restricted to certain persons, purposes, modes, or hours if the person knows he is in violation of such restriction or is reckless in that regard;

Ohio Point of Law: Burglary (cont'd.)

ii) Recklessly entering or remaining on another's land or premises if notice against unauthorized access is given by actual communication, in a manner prescribed by law, by posting notice, or by fencing the property to restrict access; or

iii) Negligent failure or refusal to leave another's land or premises after notification by signage posted or otherwise being notified by the owner or his agent.

Ohio Rev. Code § 2911.21.

A person commits aggravated criminal trespass if he enters or remains on another's land or premises with purpose to commit a misdemeanor that involves causing physical harm to another or causing that person to believe that he will cause physical harm. Ohio Rev. Code § 2911.211.

Ohio Point of Law: Arson

In Ohio, a person commits arson if he, by means of fire or explosion, knowingly causes or creates a substantial risk of physical harm to:

i) Another's property without consent;

ii) His or another's property with the purpose to defraud;

iii) The statehouse, courthouse, school, or other building or structure that is owned or controlled by the state, any political subdivision, department, agency, or instrumentality of the state that is used for public purposes;

iv) Another's property, through the offer or acceptance of an agreement for hire or consideration without consent or to another's or his property with the purpose to defraud;

v) Any park, preserve, wildlands, brush-covered land, cut-over land, forest, timberland, greenlands, woods, or similar real property owned or controlled by another, the state, or political subdivision without consent; or

vi) Any park, preserve, wildlands, brush-covered land, cut-over land, forest, timberland, greenlands, woods, or similar real property that is owned or controlled by the offender, another, the state, or political subdivision with the purpose to defraud.

Ohio Aggravated Arson elements

A person commits aggravated arson if, by means of fire or explosion, he knowingly:

i) Creates a substantial risk of serious physical harm to another person;

ii) Causes physical harm to an occupied structure; or

iii) Creates, through the offer or acceptance of an agreement for hire or consideration, a substantial risk of physical harm to an occupied structure.

Ohio Rev. Code § 2909.02.

Ohio Distinction: Battery

Statutorily, Ohio has abolished the crime of battery by encompassing it in the assault offenses.

Ohio Distinction: Assault

In Ohio, an assault occurs if a person knowingly causes or attempts to cause physical harm to another or another's unborn child. Additionally, a person who recklessly causes serious physical harm to another or another's unborn child commits assault.

Ohio: Felonious Assault

A person commits the crime of felonious assault if he knowingly causes serious physical harm to another or another's unborn child or causes or attempts to cause physical harm to another or another's unborn child by means of a deadly weapon.

Ohio: Aggravated Assault

A person commits the crime of aggravated assault if he knowingly commits felonious assault while under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation by the victim that is reasonably sufficient to incite a person into using deadly force.

Ohio: Negligent Assault

A person commits the crime of negligent assault if he negligently causes physical harm to another or another's unborn child by means of a deadly weapon. Ohio Rev. Code § 2903.14.

Ohio Point of Law: Domestic Violence

Ohio recognizes domestic violence as a specific assault offense. A person commits domestic violence when he (i) knowingly causes (or attempts to cause) physical harm to a family member, (ii) recklessly causes serious physical harm to a family member, or (iii) uses force or threat of force to cause a family member to believe the person will cause imminent physical harm to the family member.

Ohio Point of Law: Kidnapping

Kidnapping occurs if a person by force, threat, or deception, or in the case of a victim who is under age 13 or mentally incompetent, by any means, removes the victim from the place where she is found or restrains the victim's liberty:

i) To hold for ransom, as a shield, or as a hostage;

ii) To facilitate the commission of or flight from any felony;

iii) To terrorize or inflict serious physical harm on the victim or another;

iv) To engage in sexual activity with the victim against her will;

v) To hinder, impede, or obstruct a function of government or to force any action or concession of governmental authority; or

vi) To hold in a condition of involuntary servitude.

Ohio Point of Law: Unlawful Restraint

In Ohio, false imprisonment is referred to as "unlawful restraint." Ohio Rev. Code § 2905.03.

Ohio Point of Law: Rape

Ohio followed the modern trend and abolished the rule that rape occurs only when the victim is (i) a female, and (ii) not the offender's spouse. Instead, gender-neutral terms are used, and spousal rape may occur if the two are living separate and apart, or if force is used.

A person commits rape by engaging in sexual conduct (i.e., intercourse, the insertion of a foreign object or other body part into the vaginal or anal opening of another) with one who is not the person's spouse, or is the person's spouse but they are living separate and apart, when any of the following occurs:

i) To prevent resistance, the person substantially impairs one's judgment or control by administering any drug, intoxicant, or controlled substance surreptitiously or by force, threat of force, or deception;
ii) The victim is less than 13 years old, regardless of whether or not the offender knows the victim's age (statutory rape);
iii) Force or threat of force is used; or
iv) The victim's ability to resist or consent is substantially impaired due to a mental or physical condition or advanced age and the offender knows or has reasonable cause to know of such conditions.

A victim need not prove physical resistance to prove rape.

Ohio Rev. Code § 2907.02(A)(1)(b) which defines sexual activity with a child under the age of 13 as rape is unconstitutional as applied to sexual conduct between two children who are both under 13 when neither child uses force or impairs the other in any way. In re D.B., 950 N.E.2d 528 (Ohio 2011).

Ohio Point of Law: Sexual Battery

Sexual battery occurs if a person engages in sexual conduct (i.e., intercourse, the insertion of a foreign object or other body part into the vaginal or anal opening of another) with another who is not the person's spouse, and the offender:
i) Knowingly coerces the victim to submit by any means that would prevent resistance by a person of ordinary resolution;
ii) Knows that the victim's ability to appraise the nature of or control the victim's own conduct is substantially impaired;
iii) Knows that the victim submits because the victim is unaware that the act is being committed;
iv) Knows that the victim submits because the victim mistakenly identifies the offender as the victim's spouse;
v) Is the victim's natural or adoptive parent, stepparent, guardian, custodian, or person in loco parentis;
vi) Has supervisory or disciplinary authority over the victim who is in custody in law, in a hospital, or in another institution;
vii) Is a teacher, administrator, coach, or person of authority employed by a school and the minor victim is a student;
viii) Is an athletic coach, other coach, instructor, scouting troop leader, or another person with temporary or occasional disciplinary control over the minor victim;
ix) Is a mental health professional and the victim is a patient induced to submit by the offender's falsely representing that sexual conduct is necessary for treatment purposes;
x) Is an employee of a detention facility where the victim is confined;
xi) Is a cleric and the minor victim is a member of or attends the offender's church or congregation; or
xii) Is a peace officer, the victim is a minor, and the offender is more than two years older than the victim.

Ohio Distinction: Merger

In Ohio, a person cannot be convicted of attempt if he is convicted of committing (i) a specific offense, (ii) complicity in the commission of an offense, or (iii) conspiracy to commit an offense. Ohio Rev. Code § 2923.02(C). Additionally, a person cannot be convicted of conspiracy of a specific crime if he is convicted of (i) committing, (ii) attempting to commit, or (iii) complicity in the commission or attempt of the underlying offense.

Ohio Distinction: Conspiracy

The Ohio conspiracy statute provides a list of specific crimes that a person may conspire to commit (e.g., murder, aggravated murder, kidnapping). A person commits conspiracy if, with purpose to commit, promote, or facilitate the commission of the specified crimes, he does the following:

i) Plans or aids in planning the commission of any of the specified offenses with another person or persons; or

ii) Agrees with another person or persons that one or more of them will engage in conduct that facilitates the commission of any of the specified offenses.

Ohio Point of Law: Unilateral Conspiracy

Ohio follows the Model Penal Code and allows for unilateral conspiracies. State v. Marian, 405 N.E.2d 267 (Ohio 1980).

Ohio Point of Law: Overt Act

Ohio follows the modern trend and requires the completion of a substantial overt act in furtherance of the conspiracy. The substantial overt act must manifest a purpose on the part of the actor that the object of the conspiracy be completed.

Ohio Point of Law: Unknown Conspirators

A person can be found guilty of conspiracy in Ohio even though the other person's identity may not be known to the offender as long as the offender knows or has reasonable cause to believe that he is conspiring with someone who has conspired or is conspiring with another to commit the same offense.

Ohio Point of Law: Impossibility

In Ohio, it is not a defense to conspiracy that the commission of the underlying offense was impossible under the circumstances. Ohio Rev. Code § 2923.01(D).

Ohio Point of Law: Withdrawal from Conspiracy

Ohio allows the following two affirmative defenses for the crime of conspiracy if after conspiring to commit an offense:

i) The actor thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose; or

ii) The actor abandoned the conspiracy prior to the commission of or attempt to commit the underlying crime by advising all conspirators of such abandonment or by informing law enforcement of the existence of the conspiracy and his participation in it.

Ohio Point of Law: Conspiracy Termination

In Ohio, a conspiracy terminates when the underlying offense is committed or abandoned by all conspirators. However, it is not a defense to conspiracy that there was no abandonment and that no offense that was the object of the conspiracy was committed. Ohio Rev. Code § 2923.01(E).

Ohio Point of Law: Mens Rea for Attempt

The mens rea required to commit attempt in Ohio is "purposely or knowingly."

Ohio Point of Law: Impossibility

Ohio does not distinguish between legal impossibility and factual impossibility. In other words, it is not a defense that the crime attempted is either factually or legally impossible under the circumstances as long as the offense could have been committed had the circumstances been as the actor believed them to be. Ohio Rev. Code § 2923.02(B).

Ohio Point of Law: Abandonment

Ohio follows the modern trend in that it is an affirmative defense to an attempt crime that the actor abandoned his effort to commit the offense or prevented its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. Ohio Rev. Code § 2923.02(D).

Ohio Distinction: Battered Woman Syndrome

Ohio allows for evidence of "battered woman syndrome" to be introduced if a person uses force against another to show that the person suffered from the syndrome and had the belief that she was in imminent danger of death or great bodily harm. Ohio Rev. Code § 2901.06.

Ohio Point of Law: Self-Defense

In Ohio, a rebuttable presumption is created that a person has acted in self-defense or in defense of another when using defensive force that is intended or likely to cause great bodily harm to another if the person against whom such force is used is, without privilege to do so, in the process of unlawfully and entering or has already entered the residence or vehicle occupied by the person using defensive force. This presumption may be rebutted by a preponderance of the evidence.

This presumption does not apply if:
i) The person against whom deadly force is used has a right to be in or is a lawful resident of the residence or vehicle; or
ii) The person who uses the defensive force uses it while unlawfully in a residence or vehicle.

Ohio Distinction: Retreat

Ohio does not allow a person to use deadly force in self-defense if he has a reasonable means of retreat from the confrontation available. State v. Williford, 551 N.E.2d 1279 (Ohio 1990).

Ohio Distinction: Resisting Arrest

Ohio follows the minority rule that a person is not permitted to resist arrest, even if the arrest is illegal, when he knows that the individual making the arrest is an authorized police officer. Columbus v. Fraley, 324 N.E.2d 735 (Ohio 1975).

Ohio Point of Law: Entrapment

Ohio follows the subjective approach in defining entrapment.

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