As Passed by the Senate                       1            

122nd General Assembly                                             4            

   Regular Session                             Sub. S. B. No. 193  5            

      1997-1998                                                    6            


     SENATORS SUHADOLNIK-WATTS-WHITE-GAETH-SCHAFRATH-CARNES-       8            

       GARDNER-ZALESKI-SWEENEY-CUPP-LATELL-BLESSING-LATTA-         9            

                 B. JOHNSON-HOWARD-OELSLAGER-RAY                   10           


                                                                   12           

                           A   B I L L                                          

             To amend sections 2903.01 and 2929.04 of the Revised  14           

                Code to expand aggravated murder to also include   15           

                purposely causing the death of a law enforcement                

                officer or of a Department of Rehabilitation and   16           

                Correction employee who is acting within the       17           

                course and scope of the employee's duties and to                

                enact a capital punishment aggravating             19           

                circumstance that includes the killing in                       

                specified circumstances of a Department of         20           

                Rehabilitation and Correction employee.                         




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        22           

      Section 1.  That sections 2903.01 and 2929.04 of the         24           

Revised Code be amended to read as follows:                        25           

      Sec. 2903.01.  (A)  No person shall purposely, and with      34           

prior calculation and design, cause the death of another or the    35           

unlawful termination of another's pregnancy.                       36           

      (B)  No person shall purposely cause the death of another    38           

or the unlawful termination of another's pregnancy while           40           

committing or attempting to commit, or while fleeing immediately   41           

after committing or attempting to commit kidnapping, rape,         42           

aggravated arson or arson, aggravated robbery or robbery,                       

aggravated burglary or burglary, or escape.                        43           

      (C)  No person shall purposely cause the death of another    45           

who is under thirteen years of age at the time of the commission   46           

                                                          2      

                                                                 
of the offense.                                                                 

      (D)  NO PERSON SHALL PURPOSELY CAUSE THE DEATH OF EITHER OF  48           

THE FOLLOWING:                                                                  

      (1)  A LAW ENFORCEMENT OFFICER;                              51           

      (2)  AN EMPLOYEE OF THE DEPARTMENT OF REHABILITATION AND     53           

CORRECTION WHO IS ACTING WITHIN THE COURSE AND SCOPE OF THE        54           

EMPLOYEE'S DUTIES.                                                              

      (E)  Whoever violates this section is guilty of aggravated   56           

murder, and shall be punished as provided in section 2929.02 of    57           

the Revised Code.                                                  58           

      (E)(F)  No person shall be convicted of aggravated murder    60           

unless the person is specifically found to have intended to cause  61           

the death of another or, if the case involves an alleged           62           

violation of division (A) or (B) of this section, the unlawful     63           

termination of another's pregnancy.  In no case shall a jury in    64           

an aggravated murder case be instructed in such a manner that it   65           

may believe that a person who commits or attempts to commit any    66           

offense listed in division (B) of this section is to be            67           

conclusively inferred, because the person engaged in a common      68           

design with others to commit the offense by force and violence or  69           

because the offense and the manner of its commission would be      70           

likely to produce death or the unlawful termination of another's   71           

pregnancy, to have intended to cause the death of any person who   72           

is killed or the unlawful termination of another's pregnancy       73           

during the commission of, attempt to commit, or flight from the    75           

commission of or attempt to commit, the offense.  If a jury in an  76           

aggravated murder case is instructed that a person who commits or  77           

attempts to commit any offense listed in division (B) of this      78           

section may be inferred, because the offender engaged in a common               

design with others to commit the offense by force or violence or   79           

because the offense and the manner of its commission would be      80           

likely to produce death or the unlawful termination of another's   81           

pregnancy, to have intended to cause the death of any person who   83           

is killed or the unlawful termination of another's pregnancy       84           

                                                          3      

                                                                 
during the commission of, attempt to commit, or flight from the    85           

commission of or attempt to commit the offense, the jury also      86           

shall be instructed that the inference is nonconclusive, that the  87           

inference may be considered in determining intent, that it is to   88           

consider all evidence introduced by the prosecution to indicate    89           

the person's intent and by the person to indicate the person's     90           

lack of intent in determining whether the person specifically      92           

intended to cause the death of the person killed or the unlawful   93           

termination of another's pregnancy, and that the prosecution must  94           

prove the specific intent of the person to have caused the death   95           

or the unlawful termination of another's pregnancy by proof        96           

beyond a reasonable doubt.                                         97           

      Sec. 2929.04.  (A)  Imposition of the death penalty for      108          

aggravated murder is precluded unless one or more of the           109          

following is specified in the indictment or count in the           110          

indictment pursuant to section 2941.14 of the Revised Code and     111          

proved beyond a reasonable doubt:                                  112          

      (1)  The offense was the assassination of the president of   114          

the United States or a person in line of succession to the         115          

presidency, the governor or lieutenant governor of this state,     117          

the president-elect or vice president-elect of the United States,  118          

the governor-elect or lieutenant governor-elect of this state, or  119          

a candidate for any of the offices described in this division.     120          

For purposes of this division, a person is a candidate if the      122          

person has been nominated for election according to law, if the    123          

person has filed a petition or petitions according to law to have  124          

the person's name placed on the ballot in a primary or general     125          

election, or if the person campaigns as a write-in candidate in a  126          

primary or general election.                                                    

      (2)  The offense was committed for hire.                     128          

      (3)  The offense was committed for the purpose of escaping   130          

detection, apprehension, trial, or punishment for another offense  131          

committed by the offender.                                         132          

      (4)  The offense was committed while the offender was a      134          

                                                          4      

                                                                 
prisoner in a detention facility, as defined in section 2921.01    135          

of the Revised Code.                                               136          

      (5)  Prior to the offense at bar, the offender was           138          

convicted of an offense an essential element of which was the      139          

purposeful killing of or attempt to kill another, or the offense   140          

at bar was part of a course of conduct involving the purposeful    141          

killing of or attempt to kill two or more persons by the           142          

offender.                                                          143          

      (6)  The victim of the offense was a law enforcement         145          

officer, as defined in section 2911.01 of the Revised Code, whom   146          

the offender had reasonable cause to know or knew to be a law      147          

enforcement officer as so defined, and either the victim, at the   149          

time of the commission of the offense, was engaged in the          150          

victim's duties, or it was the offender's specific purpose to      151          

kill a law enforcement officer as so defined.                                   

      (7)  The offense was committed while the offender was        153          

committing, attempting to commit, or fleeing immediately after     154          

committing or attempting to commit kidnapping, rape, aggravated    155          

arson, aggravated robbery, or aggravated burglary, and either the  156          

offender was the principal offender in the commission of the       157          

aggravated murder or, if not the principal offender, committed     158          

the aggravated murder with prior calculation and design.           159          

      (8)  The victim of the aggravated murder was a witness to    161          

an offense who was purposely killed to prevent the victim's        162          

testimony in any criminal proceeding and the aggravated murder     163          

was not committed during the commission, attempted commission, or  164          

flight immediately after the commission or attempted commission    165          

of the offense to which the victim was a witness, or the victim    166          

of the aggravated murder was a witness to an offense and was       167          

purposely killed in retaliation for the victim's testimony in any  168          

criminal proceeding.                                               169          

      (9)  The offender, in the commission of the offense,         171          

purposefully caused the death of another who was under thirteen    172          

years of age at the time of the commission of the offense, and     173          

                                                          5      

                                                                 
either the offender was the principal offender in the commission   174          

of the offense or, if not the principal offender, committed the    175          

offense with prior calculation and design.                         176          

      (10)  THE VICTIM OF THE OFFENSE WAS AN EMPLOYEE OF THE       179          

DEPARTMENT OF REHABILITATION AND CORRECTION, AND EITHER OF THE     180          

FOLLOWING APPLIES:                                                              

      (a)  THE VICTIM, AT THE TIME OF THE COMMISSION OF THE        183          

OFFENSE, WAS ENGAGED IN THE VICTIM'S DUTIES AS AN EMPLOYEE OF THE  184          

DEPARTMENT.                                                                     

      (b)  IT WAS THE OFFENDER'S SPECIFIC PURPOSE TO KILL THE      187          

VICTIM BECAUSE THE VICTIM WAS AN EMPLOYEE OF THE DEPARTMENT, OR    188          

IT WAS THE OFFENDER'S SPECIFIC PURPOSE TO KILL ANY EMPLOYEE OF     189          

THE DEPARTMENT.                                                                 

      (B)  If one or more of the aggravating circumstances listed  191          

in division (A) of this section is specified in the indictment or  192          

count in the indictment and proved beyond a reasonable doubt, and  193          

if the offender did not raise the matter of age pursuant to        194          

section 2929.023 of the Revised Code or if the offender, after     195          

raising the matter of age, was found at trial to have been         196          

eighteen years of age or older at the time of the commission of    197          

the offense, the court, trial jury, or panel of three judges       198          

shall consider, and weigh against the aggravating circumstances    199          

proved beyond a reasonable doubt, the nature and circumstances of  200          

the offense, the history, character, and background of the         201          

offender, and all of the following factors:                        202          

      (1)  Whether the victim of the offense induced or            204          

facilitated it;                                                    205          

      (2)  Whether it is unlikely that the offense would have      207          

been committed, but for the fact that the offender was under       208          

duress, coercion, or strong provocation;                           209          

      (3)  Whether, at the time of committing the offense, the     211          

offender, because of a mental disease or defect, lacked            212          

substantial capacity to appreciate the criminality of the          213          

offender's conduct or to conform the offender's conduct to the     215          

                                                          6      

                                                                 
requirements of the law;                                                        

      (4)  The youth of the offender;                              217          

      (5)  The offender's lack of a significant history of prior   219          

criminal convictions and delinquency adjudications;                220          

      (6)  If the offender was a participant in the offense but    222          

not the principal offender, the degree of the offender's           223          

participation in the offense and the degree of the offender's      224          

participation in the acts that led to the death of the victim;     225          

      (7)  Any other factors that are relevant to the issue of     227          

whether the offender should be sentenced to death.                 228          

      (C)  The defendant shall be given great latitude in the      230          

presentation of evidence of the factors listed in division (B) of  231          

this section and of any other factors in mitigation of the         232          

imposition of the sentence of death.                               233          

      The existence of any of the mitigating factors listed in     235          

division (B) of this section does not preclude the imposition of   236          

a sentence of death on the offender but shall be weighed pursuant  238          

to divisions (D)(2) and (3) of section 2929.03 of the Revised      239          

Code by the trial court, trial jury, or the panel of three judges  240          

against the aggravating circumstances the offender was found       241          

guilty of committing.                                                           

      Section 2.  That existing sections 2903.01 and 2929.04 of    243          

the Revised Code are hereby repealed.                              244          

      Section 3.  Section 2929.04 of the Revised Code is           246          

presented in this act as a composite of the section as amended by  247          

both Sub. H.B. 151 and Am. S.B. 32 of the 122nd General Assembly,  248          

with the new language of neither of the acts shown in capital      250          

letters.  This is in recognition of the principle stated in        251          

division (B) of section 1.52 of the Revised Code that such         252          

amendments are to be harmonized where not substantively            253          

irreconcilable and constitutes a legislative finding that such is  254          

the resulting version in effect prior to the effective date of     255          

this act.