As Reported by the Senate Judiciary Committee            1            

122nd General Assembly                                             4            

   Regular Session                               Am. S. B. No. 32  5            

      1997-1998                                                    6            


          SENATORS HOWARD-GILLMOR-WHITE-CUPP-DIX-LATTA-            8            

                      B. JOHNSON-OELSLAGER                         9            


                                                                   11           

                           A   B I L L                                          

             To amend sections 2903.01, 2929.04, and 2941.14 of    13           

                the Revised Code to expand the offense of          14           

                aggravated murder to also prohibit purposely                    

                causing the death of a victim under thirteen       15           

                years of age and to include as a capital offense   16           

                aggravating circumstance that the offender, in     18           

                the commission of the offense, purposefully                     

                caused the death of a child under thirteen years   19           

                of age when the offender either was the principal  20           

                offender or committed the aggravated murder with   21           

                prior calculation and design.                                   




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        23           

      Section 1.  That sections 2903.01, 2929.04, and 2941.14 of   25           

the Revised Code be amended to read as follows:                    26           

      Sec. 2903.01.  (A)  No person shall purposely, and with      35           

prior calculation and design, cause the death of another or the    36           

unlawful termination of another's pregnancy.                       37           

      (B)  No person shall purposely cause the death of another    39           

or the unlawful termination of another's pregnancy while           41           

committing or attempting to commit, or while fleeing immediately   42           

after committing or attempting to commit kidnapping, rape,         43           

aggravated arson or arson, aggravated robbery or robbery,                       

aggravated burglary or burglary, or escape.                        44           

      (C)  NO PERSON SHALL PURPOSELY CAUSE THE DEATH OF ANOTHER    46           

WHO IS UNDER THIRTEEN YEARS OF AGE AT THE TIME OF THE COMMISSION   47           

                                                          2      

                                                                 
OF THE OFFENSE.                                                                 

      (D)  Whoever violates this section is guilty of aggravated   49           

murder, and shall be punished as provided in section 2929.02 of    50           

the Revised Code.                                                  51           

      (D)(E)  No person shall be convicted of aggravated murder    53           

IN VIOLATION OF DIVISION (A) OR (B) OF THIS SECTION unless the     55           

person is specifically found to have intended to cause the death   56           

of another or the unlawful termination of another's pregnancy.                  

In no case shall a jury in an aggravated murder case INVOLVING AN  58           

ALLEGED VIOLATION OF DIVISION (A) OR (B) OF THIS SECTION be        59           

instructed in such a manner that it may believe that a person who  60           

commits or attempts to commit any offense listed in division (B)   61           

of this section is to be conclusively inferred, because the        62           

person engaged in a common design with others to commit the        63           

offense by force and violence or because the offense and the       64           

manner of its commission would be likely to produce death or the   65           

unlawful termination of another's pregnancy, to have intended to   66           

cause the death of any person who is killed or the unlawful        67           

termination of another's pregnancy during the commission of,       68           

attempt to commit, or flight from the commission of or attempt to  69           

commit, the offense.  If a jury in an aggravated murder case       70           

INVOLVING AN ALLEGED VIOLATION OF DIVISION (A) OR (B) OF THIS      71           

SECTION is instructed that a person who commits or attempts to     72           

commit any offense listed in division (B) of this section may be   73           

inferred, because the offender engaged in a common design with     74           

others to commit the offense by force or violence or because the   75           

offense and the manner of its commission would be likely to        76           

produce death or the unlawful termination of another's pregnancy,  77           

to have intended to cause the death of any person who is killed    78           

or the unlawful termination of another's pregnancy during the      79           

commission of, attempt to commit, or flight from the commission    80           

of or attempt to commit the offense, the jury also shall be        81           

instructed that the inference is nonconclusive, that the           82           

inference may be considered in determining intent, that it is to   83           

                                                          3      

                                                                 
consider all evidence introduced by the prosecution to indicate    84           

the person's intent and by the person to indicate the person's     85           

lack of intent in determining whether the person specifically      87           

intended to cause the death of the person killed or the unlawful   88           

termination of another's pregnancy, and that the prosecution must  89           

prove the specific intent of the person to have caused the death   90           

or the unlawful termination of another's pregnancy by proof        91           

beyond a reasonable doubt.                                         92           

      Sec. 2929.04.  (A)  Imposition of the death penalty for      101          

aggravated murder is precluded, unless one or more of the          102          

following is specified in the indictment or count in the           103          

indictment pursuant to section 2941.14 of the Revised Code and     104          

proved beyond a reasonable doubt:                                  105          

      (1)  The offense was the assassination of the president of   107          

the United States or person in line of succession to the           108          

presidency, or of the governor or lieutenant governor of this      109          

state, or of the president-elect or vice president-elect of the    110          

United States, or of the governor-elect or lieutenant              111          

governor-elect of this state, or of a candidate for any of the     112          

foregoing offices.  For purposes of this division, a person is a   113          

candidate if he THE PERSON has been nominated for election         114          

according to law, or if he THE PERSON has filed a petition or      115          

petitions according to law to have his THE PERSON'S name placed    116          

on the ballot in a primary or general election, or if he THE       117          

PERSON campaigns as a write-in candidate in a primary or general   118          

election.                                                                       

      (2)  The offense was committed for hire.                     120          

      (3)  The offense was committed for the purpose of escaping   122          

detection, apprehension, trial, or punishment for another offense  123          

committed by the offender.                                         124          

      (4)  The offense was committed while the offender was a      126          

prisoner in a detention facility as defined in section 2921.01 of  127          

the Revised Code.                                                  128          

      (5)  Prior to the offense at bar, the offender was           130          

                                                          4      

                                                                 
convicted of an offense an essential element of which was the      131          

purposeful killing of or attempt to kill another, or the offense   132          

at bar was part of a course of conduct involving the purposeful    133          

killing of or attempt to kill two or more persons by the           134          

offender.                                                          135          

      (6)  The victim of the offense was a peace officer, as       137          

defined in section 2935.01 of the Revised Code, whom the offender  138          

had reasonable cause to know or knew to be such, and either the    139          

victim, at the time of the commission of the offense, was engaged  140          

in his THE VICTIM'S duties, or it was the offender's specific      141          

purpose to kill a peace officer.                                   142          

      (7)  The offense was committed while the offender was        144          

committing, attempting to commit, or fleeing immediately after     145          

committing or attempting to commit kidnapping, rape, aggravated    146          

arson, aggravated robbery, or aggravated burglary, and either the  147          

offender was the principal offender in the commission of the       148          

aggravated murder or, if not the principal offender, committed     149          

the aggravated murder with prior calculation and design.           150          

      (8)  The victim of the aggravated murder was a witness to    152          

an offense who was purposely killed to prevent his THE VICTIM'S    153          

testimony in any criminal proceeding and the aggravated murder     154          

was not committed during the commission, attempted commission, or  155          

flight immediately after the commission or attempted commission    156          

of the offense to which the victim was a witness, or the victim    157          

of the aggravated murder was a witness to an offense and was       158          

purposely killed in retaliation for his THE VICTIM'S testimony in  159          

any criminal proceeding.                                           160          

      (9)  THE OFFENDER, IN THE COMMISSION OF THE OFFENSE,         162          

PURPOSEFULLY CAUSED THE DEATH OF ANOTHER WHO WAS UNDER THIRTEEN    163          

YEARS OF AGE AT THE TIME OF THE COMMISSION OF THE OFFENSE, AND     164          

EITHER THE OFFENDER WAS THE PRINCIPAL OFFENDER IN THE COMMISSION   165          

OF THE OFFENSE OR, IF NOT THE PRINCIPAL OFFENDER, COMMITTED THE    166          

OFFENSE WITH PRIOR CALCULATION AND DESIGN.                         167          

      (B)  If one or more of the aggravating circumstances listed  169          

                                                          5      

                                                                 
in division (A) of this section is specified in the indictment or  170          

count in the indictment and proved beyond a reasonable doubt, and  171          

if the offender did not raise the matter of age pursuant to        172          

section 2929.023 of the Revised Code or if the offender, after     173          

raising the matter of age, was found at trial to have been         174          

eighteen years of age or older at the time of the commission of    175          

the offense, the court, trial jury, or panel of three judges       176          

shall consider, and weigh against the aggravating circumstances    177          

proved beyond a reasonable doubt, the nature and circumstances of  178          

the offense, the history, character, and background of the         179          

offender, and all of the following factors:                        180          

      (1)  Whether the victim of the offense induced or            182          

facilitated it;                                                    183          

      (2)  Whether it is unlikely that the offense would have      185          

been committed, but for the fact that the offender was under       186          

duress, coercion, or strong provocation;                           187          

      (3)  Whether, at the time of committing the offense, the     189          

offender, because of a mental disease or defect, lacked            190          

substantial capacity to appreciate the criminality of his THE      191          

OFFENDER'S conduct or to conform his THE OFFENDER'S conduct to     193          

the requirements of the law;                                                    

      (4)  The youth of the offender;                              195          

      (5)  The offender's lack of a significant history of prior   197          

criminal convictions and delinquency adjudications;                198          

      (6)  If the offender was a participant in the offense but    200          

not the principal offender, the degree of the offender's           201          

participation in the offense and the degree of the offender's      202          

participation in the acts that led to the death of the victim;     203          

      (7)  Any other factors that are relevant to the issue of     205          

whether the offender should be sentenced to death.                 206          

      (C)  The defendant shall be given great latitude in the      208          

presentation of evidence of the factors listed in division (B) of  209          

this section and of any other factors in mitigation of the         210          

imposition of the sentence of death.                               211          

                                                          6      

                                                                 
      The existence of any of the mitigating factors listed in     213          

division (B) of this section does not preclude the imposition of   214          

a sentence of death on the offender, but shall be weighed          215          

pursuant to divisions (D)(2) and (3) of section 2929.03 of the     216          

Revised Code by the trial court, trial jury, or the panel of       217          

three judges against the aggravating circumstances the offender    218          

was found guilty of committing.                                    219          

      Sec. 2941.14.  (A)  In an indictment for aggravated murder,  228          

murder, or voluntary or involuntary manslaughter, the manner in    229          

which, or the means by which the death was caused need not be set  230          

forth.                                                             231          

      (B)  Imposition of the death penalty for aggravated murder   233          

is precluded unless the indictment or count in the indictment      234          

charging the offense specifies one or more of the aggravating      235          

circumstances listed in division (A) of section 2929.04 of the     236          

Revised Code.  If more than one aggravating circumstance is        237          

specified to an indictment or count, each shall be in a            238          

separately numbered specification, and if an aggravating           239          

circumstance is specified to a count in an indictment containing   240          

more than one count, such specification shall be identified as to  241          

the count to which it applies.                                     242          

      (C)  A specification to an indictment or count in an         244          

indictment charging aggravated murder shall be stated at the end   245          

of the body of the indictment or count, and may be in              246          

substantially the following form:                                  247          

      Specification "SPECIFICATION (or, Specification 1            250          

SPECIFICATION 1, or Specification to the First Count               251          

SPECIFICATION TO THE FIRST COUNT, or, Specification 1 to the       253          

First Count SPECIFICATION 1 TO THE FIRST COUNT).  The Grand        254          

Jurors further find and specify that (set forth the applicable     255          

aggravating circumstance listed in divisions (A)(1) to (8)(9) of   257          

section 2929.04 of the Revised Code.  The aggravating                           

circumstance may be stated in the words of the subdivision in      258          

which it appears, or in words sufficient to give the accused       259          

                                                          7      

                                                                 
notice of the same)."                                              260          

      Section 2.  That existing sections 2903.01, 2929.04, and     262          

2941.14 of the Revised Code are hereby repealed.                   263