As Reconsidered and Passed by the House               1            

122nd General Assembly                                             4            

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

      1997-1998                                                    6            


    SENATORS HOWARD-GILLMOR-WHITE-CUPP-DIX-LATTA-B. JOHNSON-       8            

 OELSLAGER-NEIN-CARNES-ZALESKI-DRAKE-BLESSING-WATTS-J. JOHNSON-    9            

   LATELL-SCHAFRATH-REPRESENTATIVES LUCAS-GARCIA-MYERS-TAYLOR-     10           

    WINKLER-CLANCY-O'BRIEN-COUGHLIN-DAMSCHRODER-REID-BRADING-      11           

   THOMAS-BATEMAN-MOTTL-VERICH-BENDER-SCHULER-TIBERI-FORD-OGG-     12           

     JONES-KREBS-MEAD-CORBIN-CORE-VESPER-GARDNER-MAIER-PERZ-       13           

     HAINES-WESTON-CAREY-SALERNO-KASPUTIS-ROMAN-TERWILLEGER-       14           

               HARRIS-METZGER-HOUSEHOLDER-PRINGLE                  15           


                                                                   17           

                           A   B I L L                                          

             To amend sections 2903.01, 2929.04, and 2941.14 of    19           

                the Revised Code to expand the offense of          20           

                aggravated murder to also prohibit  purposely      21           

                causing the death of a victim under thirteen       22           

                years of age and to include as a capital offense   23           

                aggravating circumstance that the offender, in     25           

                the commission of the offense,  purposefully       26           

                caused the death of a child under thirteen years   27           

                of age when  the offender either was the           28           

                principal offender or committed the aggravated     30           

                murder with prior calculation  and design.         31           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        33           

      Section 1.  That sections 2903.01, 2929.04, and 2941.14 of   35           

the Revised Code be amended to read as follows:                    36           

      Sec. 2903.01.  (A)  No person shall purposely, and with      45           

prior calculation and design, cause the death of another or the    46           

unlawful termination of another's pregnancy.                       47           

      (B)  No person shall purposely cause the death of another    49           

or the unlawful termination of another's pregnancy while           51           

                                                          2      

                                                                 
committing or attempting to commit, or while fleeing immediately   52           

after committing or attempting to commit kidnapping, rape,         53           

aggravated arson or arson, aggravated robbery or robbery,                       

aggravated burglary or burglary, or escape.                        54           

      (C)  NO PERSON SHALL PURPOSELY CAUSE THE DEATH OF ANOTHER    56           

WHO IS UNDER THIRTEEN YEARS OF AGE AT THE TIME OF THE COMMISSION   57           

OF THE OFFENSE.                                                                 

      (D)  Whoever violates this section is guilty of aggravated   59           

murder, and shall be punished as provided in section 2929.02 of    60           

the Revised Code.                                                  61           

      (D)(E)  No person shall be convicted of aggravated murder    63           

unless the person is specifically found to have intended to cause  64           

the death of another or, IF THE CASE INVOLVES AN ALLEGED           65           

VIOLATION OF DIVISION (A) OR (B) OF THIS SECTION, the unlawful     66           

termination of another's pregnancy.  In no case shall a jury in    68           

an aggravated murder case  be instructed in such a manner that it  69           

may believe that a person who commits or attempts to commit any    70           

offense listed in division (B) of this section is to be            71           

conclusively inferred, because the person engaged in a common      72           

design with others to commit the offense by force and violence or  73           

because the offense and the manner of its commission would be      74           

likely to produce death or the unlawful termination of another's   75           

pregnancy, to have intended to cause the death of any person who   76           

is killed or the unlawful termination of another's pregnancy       77           

during the commission of, attempt to commit, or flight from the    79           

commission of or attempt to commit, the offense.  If a jury in an  80           

aggravated murder case is instructed that a person who commits or  81           

attempts to commit any offense listed in division (B) of this      82           

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

design with others to commit the offense by force or violence or   83           

because the offense and the manner of its commission would be      84           

likely to produce death or the unlawful termination of another's   85           

pregnancy, to have intended to cause the death of any person who   87           

is killed or the unlawful termination of another's pregnancy       88           

                                                          3      

                                                                 
during the commission of, attempt to commit, or flight from the    89           

commission of or attempt to commit the offense, the jury also      90           

shall be instructed that the inference is nonconclusive, that the  91           

inference may be considered in determining intent, that it is to   92           

consider all evidence introduced by the prosecution to indicate    93           

the person's intent and by the person to indicate the person's     94           

lack of intent in determining whether the person specifically      96           

intended to cause the death of the person killed or the unlawful   97           

termination of another's pregnancy, and that the prosecution must  98           

prove the specific intent of the person to have caused the death   99           

or the unlawful termination of another's pregnancy by proof        100          

beyond a reasonable doubt.                                         101          

      Sec. 2929.04.  (A)  Imposition of the death penalty for      110          

aggravated murder is precluded, unless one or more of the          111          

following is specified in the indictment or count in the           112          

indictment pursuant to section 2941.14 of the Revised Code and     113          

proved beyond a reasonable doubt:                                  114          

      (1)  The offense was the assassination of the president of   116          

the United States or person in line of succession to the           117          

presidency, or of the governor or lieutenant governor of this      118          

state, or of the president-elect or vice president-elect of the    119          

United States, or of the governor-elect or lieutenant              120          

governor-elect of this state, or of a candidate for any of the     121          

foregoing offices.  For purposes of this division, a person is a   122          

candidate if he THE PERSON has been nominated for election         123          

according to law, or if he THE PERSON has filed a petition or      124          

petitions according to law to have his THE PERSON'S name placed    125          

on the ballot in a primary or general election, or if he THE       126          

PERSON campaigns as a write-in candidate in a primary or general   127          

election.                                                                       

      (2)  The offense was committed for hire.                     129          

      (3)  The offense was committed for the purpose of escaping   131          

detection, apprehension, trial, or punishment for another offense  132          

committed by the offender.                                         133          

                                                          4      

                                                                 
      (4)  The offense was committed while the offender was a      135          

prisoner in a detention facility as defined in section 2921.01 of  136          

the Revised Code.                                                  137          

      (5)  Prior to the offense at bar, the offender was           139          

convicted of an offense an essential element of which was the      140          

purposeful killing of or attempt to kill another, or the offense   141          

at bar was part of a course of conduct involving the purposeful    142          

killing of or attempt to kill two or more persons by the           143          

offender.                                                          144          

      (6)  The victim of the offense was a peace officer, as       146          

defined in section 2935.01 of the Revised Code, whom the offender  147          

had reasonable cause to know or knew to be such, and either the    148          

victim, at the time of the commission of the offense, was engaged  149          

in his THE VICTIM'S duties, or it was the offender's specific      150          

purpose to kill a peace officer.                                   151          

      (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 his 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 his THE VICTIM'S testimony in  168          

any 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          

      (B)  If one or more of the aggravating circumstances listed  178          

in division (A) of this section is specified in the indictment or  179          

count in the indictment and proved beyond a reasonable doubt, and  180          

if the offender did not raise the matter of age pursuant to        181          

section 2929.023 of the Revised Code or if the offender, after     182          

raising the matter of age, was found at trial to have been         183          

eighteen years of age or older at the time of the commission of    184          

the offense, the court, trial jury, or panel of three judges       185          

shall consider, and weigh against the aggravating circumstances    186          

proved beyond a reasonable doubt, the nature and circumstances of  187          

the offense, the history, character, and background of the         188          

offender, and all of the following factors:                        189          

      (1)  Whether the victim of the offense induced or            191          

facilitated it;                                                    192          

      (2)  Whether it is unlikely that the offense would have      194          

been committed, but for the fact that the offender was under       195          

duress, coercion, or strong provocation;                           196          

      (3)  Whether, at the time of committing the offense, the     198          

offender, because of a mental disease or defect, lacked            199          

substantial capacity to appreciate the criminality of his THE      200          

OFFENDER'S conduct or to conform his THE OFFENDER'S conduct to     202          

the requirements of the law;                                                    

      (4)  The youth of the offender;                              204          

      (5)  The offender's lack of a significant history of prior   206          

criminal convictions and delinquency adjudications;                207          

      (6)  If the offender was a participant in the offense but    209          

not the principal offender, the degree of the offender's           210          

participation in the offense and the degree of the offender's      211          

participation in the acts that led to the death of the victim;     212          

      (7)  Any other factors that are relevant to the issue of     214          

whether the offender should be sentenced to death.                 215          

                                                          6      

                                                                 
      (C)  The defendant shall be given great latitude in the      217          

presentation of evidence of the factors listed in division (B) of  218          

this section and of any other factors in mitigation of the         219          

imposition of the sentence of death.                               220          

      The existence of any of the mitigating factors listed in     222          

division (B) of this section does not preclude the imposition of   223          

a sentence of death on the offender, but shall be weighed          224          

pursuant to divisions (D)(2) and (3) of section 2929.03 of the     225          

Revised Code by the trial court, trial jury, or the panel of       226          

three judges against the aggravating circumstances the offender    227          

was found guilty of committing.                                    228          

      Sec. 2941.14.  (A)  In an indictment for aggravated murder,  237          

murder, or voluntary or involuntary manslaughter, the manner in    238          

which, or the means by which the death was caused need not be set  239          

forth.                                                             240          

      (B)  Imposition of the death penalty for aggravated murder   242          

is precluded unless the indictment or count in the indictment      243          

charging the offense specifies one or more of the aggravating      244          

circumstances listed in division (A) of section 2929.04 of the     245          

Revised Code.  If more than one aggravating circumstance is        246          

specified to an indictment or count, each shall be in a            247          

separately numbered specification, and if an aggravating           248          

circumstance is specified to a count in an indictment containing   249          

more than one count, such specification shall be identified as to  250          

the count to which it applies.                                     251          

      (C)  A specification to an indictment or count in an         253          

indictment charging aggravated murder shall be stated at the end   254          

of the body of the indictment or count, and may be in              255          

substantially the following form:                                  256          

      Specification "SPECIFICATION (or, Specification 1            259          

SPECIFICATION 1, or Specification to the First Count               260          

SPECIFICATION TO THE FIRST COUNT, or, Specification 1 to the       262          

First Count SPECIFICATION 1 TO THE FIRST COUNT).  The Grand        263          

Jurors further find and specify that (set forth the applicable     264          

                                                          7      

                                                                 
aggravating circumstance listed in divisions (A)(1) to (8)(9) of   266          

section 2929.04 of the Revised Code.  The aggravating                           

circumstance may be stated in the words of the subdivision in      267          

which it appears, or in words sufficient to give the accused       268          

notice of the same)."                                              269          

      Section 2.  That existing sections 2903.01, 2929.04, and     271          

2941.14 of the Revised Code are hereby repealed.                   272