As Introduced

127th General Assembly
Regular Session
2007-2008
S. B. No. 100


Senator Austria 

Cosponsors: Senators Carey, Clancy, Gardner, Goodman, Grendell, Harris, Padgett, Schaffer 


A BILL
To amend sections 2903.01, 2903.11, 2903.12, 2903.13, 1
2903.21, and 2929.04 and to enact section 2903.23 2
of the Revised Code to increase the penalties for 3
certain offenses when a judge or magistrate is the 4
victim, to prohibit a person from threatening a 5
judge or magistrate, and to make the killing of a 6
judge or magistrate an aggravating circumstance 7
for the imposition of the death penalty for 8
aggravated murder.9


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

       Section 1. That sections 2903.01, 2903.11, 2903.12, 2903.13, 10
2903.21, and 2929.04 be amended and section 2903.23 of the Revised 11
Code be enacted to read as follows:12

       Sec. 2903.01.  (A) No person shall purposely, and with prior13
calculation and design, cause the death of another or the unlawful14
termination of another's pregnancy.15

       (B) No person shall purposely cause the death of another or16
the unlawful termination of another's pregnancy while committing17
or attempting to commit, or while fleeing immediately after18
committing or attempting to commit, kidnapping, rape, aggravated19
arson, arson, aggravated robbery, robbery, aggravated burglary,20
burglary, terrorism, or escape.21

       (C) No person shall purposely cause the death of another who22
is under thirteen years of age at the time of the commission of23
the offense.24

       (D) No person who is under detention as a result of having25
been found guilty of or having pleaded guilty to a felony or who26
breaks that detention shall purposely cause the death of another.27

       (E) No person shall purposely cause the death of a judge, 28
magistrate, or law enforcement officer whom the offender knows or 29
has reasonable cause to know is a judge, magistrate, or law 30
enforcement officer when either of the following applies:31

       (1) The victim, at the time of the commission of the offense, 32
is engaged in the victim's duties.33

       (2) It is the offender's specific purpose to kill a judge, 34
magistrate, or law enforcement officer.35

       (F) Whoever violates this section is guilty of aggravated36
murder, and shall be punished as provided in section 2929.02 of37
the Revised Code.38

       (G) As used in this section:39

       (1) "Detention" has the same meaning as in section 2921.01 of 40
the Revised Code.41

       (2) "Law enforcement officer" has the same meaning as in42
section 2911.01 of the Revised Code.43

       (3) "Judge" means a judge of a court created under the 44
constitution or statutes of this state or of a United States court 45
located in this state.46

       (4) "Magistrate" means a magistrate of a court created under 47
the constitution or statutes of this state or of a United States 48
court located in this state.49

       Sec. 2903.11.  (A) No person shall knowingly do either of the50
following:51

       (1) Cause serious physical harm to another or to another's 52
unborn;53

       (2) Cause or attempt to cause physical harm to another or to 54
another's unborn by means of a deadly weapon or dangerous 55
ordnance.56

       (B) No person, with knowledge that the person has tested 57
positive as a carrier of a virus that causes acquired 58
immunodeficiency syndrome, shall knowingly do any of the 59
following:60

       (1) Engage in sexual conduct with another person without 61
disclosing that knowledge to the other person prior to engaging in 62
the sexual conduct;63

       (2) Engage in sexual conduct with a person whom the offender 64
knows or has reasonable cause to believe lacks the mental capacity 65
to appreciate the significance of the knowledge that the offender 66
has tested positive as a carrier of a virus that causes acquired67
immunodeficiency syndrome;68

       (3) Engage in sexual conduct with a person under eighteen 69
years of age who is not the spouse of the offender.70

       (C) The prosecution of a person under this section does not71
preclude prosecution of that person under section 2907.02 of the 72
Revised Code.73

       (D)(1) Whoever violates this section is guilty of felonious 74
assault, a felony of the second degree. If the victim of a 75
violation of division (A) of this section is a judge, magistrate,76
peace officer, or an investigator of the bureau of criminal 77
identification and investigation, felonious assault is a felony of 78
the first degree. If the victim of the offense is a judge, 79
magistrate, peace officer, or an investigator of the bureau of 80
criminal identification and investigation, and if the victim 81
suffered serious physical harm as a result of the commission of 82
the offense, felonious assault is a felony of the first degree, 83
and the court, pursuant to division (F) of section 2929.13 of the 84
Revised Code, shall impose as a mandatory prison term one of the 85
prison terms prescribed for a felony of the first degree.86

       (2) In addition to any other sanctions imposed pursuant to 87
division (D)(1) of this section for felonious assault committed in 88
violation of division (A)(2) of this section, if the deadly weapon 89
used in the commission of the violation is a motor vehicle, the 90
court shall impose upon the offender a class two suspension of the 91
offender's driver's license, commercial driver's license, 92
temporary instruction permit, probationary license, or nonresident 93
operating privilege as specified in division (A)(2) of section 94
4510.02 of the Revised Code.95

       (E) As used in this section:96

       (1) "Deadly weapon" and "dangerous ordnance" have the same 97
meanings as in section 2923.11 of the Revised Code.98

       (2) "Motor vehicle" has the same meaning as in section 99
4501.01 of the Revised Code.100

       (3) "Peace officer" has the same meaning as in section 101
2935.01 of the Revised Code.102

       (4) "Sexual conduct" has the same meaning as in section 103
2907.01 of the Revised Code, except that, as used in this section, 104
it does not include the insertion of an instrument, apparatus, or 105
other object that is not a part of the body into the vaginal or 106
anal opening of another, unless the offender knew at the time of 107
the insertion that the instrument, apparatus, or other object 108
carried the offender's bodily fluid.109

       (5) "Investigator of the bureau of criminal identification 110
and investigation" means an investigator of the bureau of criminal 111
identification and investigation who is commissioned by the 112
superintendent of the bureau as a special agent for the purpose of 113
assisting law enforcement officers or providing emergency 114
assistance to peace officers pursuant to authority granted under 115
section 109.541 of the Revised Code.116

       (6) "Investigator" has the same meaning as in section 109.541 117
of the Revised Code.118

       (7) "Judge" and "magistrate" have the same meanings as in 119
section 2903.01 of the Revised Code.120

       Sec. 2903.12.  (A) No person, while under the influence of121
sudden passion or in a sudden fit of rage, either of which is122
brought on by serious provocation occasioned by the victim that is 123
reasonably sufficient to incite the person into using deadly124
force, shall knowingly:125

       (1) Cause serious physical harm to another or to another's 126
unborn;127

       (2) Cause or attempt to cause physical harm to another or to 128
another's unborn by means of a deadly weapon or dangerous 129
ordnance, as defined in section 2923.11 of the Revised Code.130

       (B) Whoever violates this section is guilty of aggravated131
assault, a felony of the fourth degree. If the victim of the132
offense is a judge, magistrate, peace officer, or an investigator 133
of the bureau of criminal identification and investigation, 134
aggravated assault is a felony of the third degree. If the victim 135
of the offense is a judge, magistrate, peace officer, or an136
investigator of the bureau of criminal identification and 137
investigation, and if the victim suffered serious physical harm as 138
a result of the commission of the offense, aggravated assault is a 139
felony of the third degree, and the court, pursuant to division 140
(F) of section 2929.13 of the Revised Code, shall impose as a 141
mandatory prison term one of the prison terms prescribed for a 142
felony of the third degree.143

       (C) As used in this section:144

       (1) "Investigator of the bureau of criminal identification 145
and investigation" has the same meaning as in section 2903.11 of 146
the Revised Code.147

       (2) "Peace officer" has the same meaning as in section 148
2935.01 of the Revised Code.149

       (3) "Judge" and "magistrate" have the same meanings as in 150
section 2903.01 of the Revised Code.151

       Sec. 2903.13.  (A) No person shall knowingly cause or attempt 152
to cause physical harm to another or to another's unborn.153

       (B) No person shall recklessly cause serious physical harm to 154
another or to another's unborn.155

       (C) Whoever violates this section is guilty of assault. 156
Except as otherwise provided in division (C)(1), (2), (3), (4), or 157
(5) of this section, assault is a misdemeanor of the first degree.158

       (1) Except as otherwise provided in this division, if the159
offense is committed by a caretaker against a functionally160
impaired person under the caretaker's care, assault is a felony of161
the fourth degree. If the offense is committed by a caretaker162
against a functionally impaired person under the caretaker's care,163
if the offender previously has been convicted of or pleaded guilty164
to a violation of this section or section 2903.11 or 2903.16 of165
the Revised Code, and if in relation to the previous conviction166
the offender was a caretaker and the victim was a functionally167
impaired person under the offender's care, assault is a felony of168
the third degree.169

       (2) If the offense is committed in any of the following170
circumstances, assault is a felony of the fifth degree:171

       (a) The offense occurs in or on the grounds of a state172
correctional institution or an institution of the department of173
youth services, the victim of the offense is an employee of the174
department of rehabilitation and correction, the department of175
youth services, or a probation department or is on the premises of176
the particular institution for business purposes or as a visitor,177
and the offense is committed by a person incarcerated in the state178
correctional institution, by a person institutionalized in the179
department of youth services institution pursuant to a commitment180
to the department of youth services, by a parolee, by an offender 181
under transitional control, under a community control sanction, or 182
on an escorted visit, by a person under post-release control, or 183
by an offender under any other type of supervision by a government 184
agency.185

       (b) The offense occurs in or on the grounds of a local186
correctional facility, the victim of the offense is an employee of187
the local correctional facility or a probation department or is on188
the premises of the facility for business purposes or as a189
visitor, and the offense is committed by a person who is under190
custody in the facility subsequent to the person's arrest for any191
crime or delinquent act, subsequent to the person's being charged192
with or convicted of any crime, or subsequent to the person's193
being alleged to be or adjudicated a delinquent child.194

       (c) The offense occurs off the grounds of a state195
correctional institution and off the grounds of an institution of196
the department of youth services, the victim of the offense is an197
employee of the department of rehabilitation and correction, the198
department of youth services, or a probation department, the199
offense occurs during the employee's official work hours and while200
the employee is engaged in official work responsibilities, and the201
offense is committed by a person incarcerated in a state202
correctional institution or institutionalized in the department of203
youth services who temporarily is outside of the institution for204
any purpose, by a parolee, by an offender under transitional 205
control, under a community control sanction, or on an escorted 206
visit, by a person under post-release control, or by an offender 207
under any other type of supervision by a government agency.208

       (d) The offense occurs off the grounds of a local209
correctional facility, the victim of the offense is an employee of210
the local correctional facility or a probation department, the211
offense occurs during the employee's official work hours and while212
the employee is engaged in official work responsibilities, and the213
offense is committed by a person who is under custody in the214
facility subsequent to the person's arrest for any crime or215
delinquent act, subsequent to the person being charged with or216
convicted of any crime, or subsequent to the person being alleged217
to be or adjudicated a delinquent child and who temporarily is218
outside of the facility for any purpose or by a parolee, by an 219
offender under transitional control, under a community control 220
sanction, or on an escorted visit, by a person under post-release221
control, or by an offender under any other type of supervision by 222
a government agency.223

       (e) The victim of the offense is a school teacher or224
administrator or a school bus operator, and the offense occurs in225
a school, on school premises, in a school building, on a school226
bus, or while the victim is outside of school premises or a school227
bus and is engaged in duties or official responsibilities228
associated with the victim's employment or position as a school229
teacher or administrator or a school bus operator, including, but230
not limited to, driving, accompanying, or chaperoning students at231
or on class or field trips, athletic events, or other school232
extracurricular activities or functions outside of school233
premises.234

       (3) If the victim of the offense is a judge, magistrate,235
peace officer, or an investigator of the bureau of criminal 236
identification and investigation, a firefighter, or a person 237
performing emergency medical service, while in the performance of 238
their official duties, assault is a felony of the fourth degree.239

       (4) If the victim of the offense is a judge, magistrate,240
peace officer, or an investigator of the bureau of criminal 241
identification and investigation and if the victim suffered 242
serious physical harm as a result of the commission of the 243
offense, assault is a felony of the fourth degree, and the court, 244
pursuant to division (F) of section 2929.13 of the Revised Code, 245
shall impose as a mandatory prison term one of the prison terms 246
prescribed for a felony of the fourth degree that is at least 247
twelve months in duration.248

       (5) If the victim of the offense is an officer or employee of 249
a public children services agency or a private child placing250
agency and the offense relates to the officer's or employee's251
performance or anticipated performance of official252
responsibilities or duties, assault is either a felony of the253
fifth degree or, if the offender previously has been convicted of254
or pleaded guilty to an offense of violence, the victim of that255
prior offense was an officer or employee of a public children256
services agency or private child placing agency, and that prior257
offense related to the officer's or employee's performance or258
anticipated performance of official responsibilities or duties, a259
felony of the fourth degree.260

       (D) As used in this section:261

       (1) "Peace officer" has the same meaning as in section262
2935.01 of the Revised Code.263

       (2) "Firefighter" has the same meaning as in section 3937.41264
of the Revised Code.265

       (3) "Emergency medical service" has the same meaning as in266
section 4765.01 of the Revised Code.267

       (4) "Local correctional facility" means a county,268
multicounty, municipal, municipal-county, or multicounty-municipal269
jail or workhouse, a minimum security jail established under270
section 341.23 or 753.21 of the Revised Code, or another county,271
multicounty, municipal, municipal-county, or multicounty-municipal272
facility used for the custody of persons arrested for any crime or273
delinquent act, persons charged with or convicted of any crime, or274
persons alleged to be or adjudicated a delinquent child.275

       (5) "Employee of a local correctional facility" means a276
person who is an employee of the political subdivision or of one277
or more of the affiliated political subdivisions that operates the278
local correctional facility and who operates or assists in the279
operation of the facility.280

       (6) "School teacher or administrator" means either of the281
following:282

       (a) A person who is employed in the public schools of the283
state under a contract described in section 3319.08 of the Revised284
Code in a position in which the person is required to have a285
certificate issued pursuant to sections 3319.22 to 3319.311 of the286
Revised Code.287

       (b) A person who is employed by a nonpublic school for which288
the state board of education prescribes minimum standards under289
section 3301.07 of the Revised Code and who is certificated in290
accordance with section 3301.071 of the Revised Code.291

       (7) "Community control sanction" has the same meaning as in292
section 2929.01 of the Revised Code.293

       (8) "Escorted visit" means an escorted visit granted under294
section 2967.27 of the Revised Code.295

       (9) "Post-release control" and "transitional control" have296
the same meanings as in section 2967.01 of the Revised Code.297

       (10) "Investigator of the bureau of criminal identification 298
and investigation" has the same meaning as in section 2903.11 of 299
the Revised Code.300

       (11) "Judge" and "magistrate" have the same meanings as in 301
section 2903.01 of the Revised Code.302

       Sec. 2903.21.  (A) No person shall knowingly cause another to 303
believe that the offender will cause serious physical harm to the 304
person or property of the other person, the other person's unborn, 305
or a member of the other person's immediate family.306

       (B) Whoever violates this section is guilty of aggravated307
menacing. Except as otherwise provided in this division,308
aggravated menacing is a misdemeanor of the first degree. If the309
victim of the offense is a judge or magistrate or an officer or 310
employee of a public children services agency or a private child 311
placing agency and the offense relates to the judge's, 312
magistrate's, officer's, or employee's performance or anticipated 313
performance of official responsibilities or duties, aggravated 314
menacing is a felony of the fifth degree or, if the offender 315
previously has been convicted of or pleaded guilty to an offense 316
of violence, the victim of that prior offense was a judge or 317
magistrate or an officer or employee of a public children services 318
agency or private child placing agency, and that prior offense 319
related to the judge's, magistrate's, officer's, or employee's 320
performance or anticipated performance of official 321
responsibilities or duties, a felony of the fourth degree.322

       (C) As used in this section, "judge" and "magistrate" have 323
the same meanings as in section 2903.01 of the Revised Code.324

       Sec. 2903.23.  (A) As used in this section:325

       (1) "Immediate family" includes a person's spouse, brothers 326
and sisters of the whole or half blood, children, including 327
adopted children and stepchildren, parents, and grandparents.328

       (2) "Judge" and "magistrate" have the same meanings as in 329
section 2903.01 of the Revised Code.330

       (B) No person, with intent to influence or interfere with a 331
judge or magistrate in the performance of the judge's or 332
magistrate's official duties or to retaliate against a judge or 333
magistrate for any decision made or action taken in the 334
performance of the judge's or magistrate's official duties, shall 335
knowingly threaten a judge or magistrate with physical harm to the 336
person or property of the judge or magistrate, the judge's or 337
magistrate's unborn, or a member of the judge's or magistrate's 338
immediate family.339

       (C) Whoever violates division (B) of this section is guilty 340
of threatening a judge or magistrate, a felony of the fifth 341
degree.342

       Sec. 2929.04.  (A) Imposition of the death penalty for343
aggravated murder is precluded unless one or more of the following344
is specified in the indictment or count in the indictment pursuant345
to section 2941.14 of the Revised Code and proved beyond a346
reasonable doubt:347

       (1) The offense was the assassination of the president of the 348
United States or a person in line of succession to the presidency, 349
the governor or lieutenant governor of this state, the350
president-elect or vice president-elect of the United States, the351
governor-elect or lieutenant governor-elect of this state, or a352
candidate for any of the offices described in this division. For353
purposes of this division, a person is a candidate if the person354
has been nominated for election according to law, if the person355
has filed a petition or petitions according to law to have the356
person's name placed on the ballot in a primary or general357
election, or if the person campaigns as a write-in candidate in a358
primary or general election.359

       (2) The offense was committed for hire.360

       (3) The offense was committed for the purpose of escaping361
detection, apprehension, trial, or punishment for another offense362
committed by the offender.363

       (4) The offense was committed while the offender was under364
detention or while the offender was at large after having broken365
detention. As used in division (A)(4) of this section, "detention" 366
has the same meaning as in section 2921.01 of the Revised Code,367
except that detention does not include hospitalization,368
institutionalization, or confinement in a mental health facility369
or mental retardation and developmentally disabled facility unless 370
at the time of the commission of the offense either of the 371
following circumstances apply:372

       (a) The offender was in the facility as a result of being373
charged with a violation of a section of the Revised Code.374

       (b) The offender was under detention as a result of being375
convicted of or pleading guilty to a violation of a section of the376
Revised Code.377

       (5) Prior to the offense at bar, the offender was convicted378
of an offense an essential element of which was the purposeful379
killing of or attempt to kill another, or the offense at bar was380
part of a course of conduct involving the purposeful killing of or381
attempt to kill two or more persons by the offender.382

       (6) The victim of the offense was a law enforcement officer,383
as defined in section 2911.01 of the Revised Code, or a judge or 384
magistrate, as defined in section 2903.01 of the Revised Code,385
whom the offender had reasonable cause to know or knew to be a law386
enforcement officer or a judge or magistrate as so defined, and 387
either the victim, at the time of the commission of the offense, 388
was engaged in the victim's duties, or it was the offender's 389
specific purpose to kill a law enforcement officer or a judge or 390
magistrate as so defined.391

       (7) The offense was committed while the offender was392
committing, attempting to commit, or fleeing immediately after393
committing or attempting to commit kidnapping, rape, aggravated394
arson, aggravated robbery, or aggravated burglary, and either the395
offender was the principal offender in the commission of the396
aggravated murder or, if not the principal offender, committed the397
aggravated murder with prior calculation and design.398

       (8) The victim of the aggravated murder was a witness to an399
offense who was purposely killed to prevent the victim's testimony400
in any criminal proceeding and the aggravated murder was not401
committed during the commission, attempted commission, or flight402
immediately after the commission or attempted commission of the403
offense to which the victim was a witness, or the victim of the404
aggravated murder was a witness to an offense and was purposely405
killed in retaliation for the victim's testimony in any criminal406
proceeding.407

       (9) The offender, in the commission of the offense,408
purposefully caused the death of another who was under thirteen409
years of age at the time of the commission of the offense, and410
either the offender was the principal offender in the commission411
of the offense or, if not the principal offender, committed the412
offense with prior calculation and design.413

       (10) The offense was committed while the offender was414
committing, attempting to commit, or fleeing immediately after415
committing or attempting to commit terrorism.416

       (B) If one or more of the aggravating circumstances listed in 417
division (A) of this section is specified in the indictment or418
count in the indictment and proved beyond a reasonable doubt, and419
if the offender did not raise the matter of age pursuant to420
section 2929.023 of the Revised Code or if the offender, after421
raising the matter of age, was found at trial to have been422
eighteen years of age or older at the time of the commission of423
the offense, the court, trial jury, or panel of three judges shall424
consider, and weigh against the aggravating circumstances proved425
beyond a reasonable doubt, the nature and circumstances of the426
offense, the history, character, and background of the offender,427
and all of the following factors:428

       (1) Whether the victim of the offense induced or facilitated429
it;430

       (2) Whether it is unlikely that the offense would have been431
committed, but for the fact that the offender was under duress,432
coercion, or strong provocation;433

       (3) Whether, at the time of committing the offense, the434
offender, because of a mental disease or defect, lacked435
substantial capacity to appreciate the criminality of the436
offender's conduct or to conform the offender's conduct to the437
requirements of the law;438

       (4) The youth of the offender;439

       (5) The offender's lack of a significant history of prior440
criminal convictions and delinquency adjudications;441

       (6) If the offender was a participant in the offense but not442
the principal offender, the degree of the offender's participation443
in the offense and the degree of the offender's participation in444
the acts that led to the death of the victim;445

       (7) Any other factors that are relevant to the issue of446
whether the offender should be sentenced to death.447

       (C) The defendant shall be given great latitude in the448
presentation of evidence of the factors listed in division (B) of449
this section and of any other factors in mitigation of the450
imposition of the sentence of death.451

       The existence of any of the mitigating factors listed in452
division (B) of this section does not preclude the imposition of a453
sentence of death on the offender but shall be weighed pursuant to454
divisions (D)(2) and (3) of section 2929.03 of the Revised Code by455
the trial court, trial jury, or the panel of three judges against456
the aggravating circumstances the offender was found guilty of457
committing.458

       Section 2.  That existing sections 2903.01, 2903.11, 2903.12, 459
2903.13, 2903.21, and 2929.04 of the Revised Code are hereby 460
repealed.461

       Section 3.  Section 2903.11 of the Revised Code is presented 462
in this act as a composite of the section as amended by both Sub. 463
H.B. 347 and Am. Sub. H.B. 461 of the 126th General Assembly. The 464
General Assembly, applying the principle stated in division (B) of 465
section 1.52 of the Revised Code that amendments are to be 466
harmonized if reasonably capable of simultaneous operation, finds 467
that the composite is the resulting version of the section in 468
effect prior to the effective date of the section as presented in 469
this act.470