As Introduced

128th General Assembly
Regular Session
2009-2010
H. B. No. 103


Representatives Fende, Harwood 

Cosponsors: Representatives Zehringer, Murray, Huffman, Ujvagi, Uecker, Evans, Letson, Chandler, Okey, Luckie, Williams, S., Yuko, Domenick, Slesnick 

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)(a) Whoever violates this section is guilty of 74
felonious assault. Except as otherwise provided in this division 75
or division (D)(1)(b) of this section, felonious assault is a 76
felony of the second degree. If the victim of a violation of77
division (A) of this section is a judge, magistrate, peace 78
officer, or an investigator of the bureau of criminal 79
identification and investigation, felonious assault is a felony80
of the first degree. 81

       (b) Regardless of whether the felonious assault is a felony 82
of the first or second degree under division (D)(1)(a) of this 83
section, if the offender also is convicted of or pleads guilty to 84
a specification as described in section 2941.1423 of the Revised 85
Code that was included in the indictment, count in the 86
indictment, or information charging the offense, except as 87
otherwise provided in this division or unless a longer prison term 88
is required under any other provision of law, the court shall 89
sentence the offender to a mandatory prison term as provided in 90
division (D)(8) of section 2929.14 of the Revised Code. If the 91
victim of the offense is a judge, magistrate, peace officer, or an92
investigator of the bureau of criminal identification and 93
investigation, and if the victim suffered serious physical harm 94
as a result of the commission of the offense, felonious assault 95
is a felony of the first degree, and the court, pursuant to 96
division (F) of section 2929.13 of the Revised Code, shall impose 97
as a mandatory prison term one of the prison terms prescribed for 98
a felony of the first degree.99

       (2) In addition to any other sanctions imposed pursuant to 100
division (D)(1) of this section for felonious assault committed in 101
violation of division (A)(2) of this section, if the deadly weapon 102
used in the commission of the violation is a motor vehicle, the 103
court shall impose upon the offender a class two suspension of the 104
offender's driver's license, commercial driver's license, 105
temporary instruction permit, probationary license, or nonresident 106
operating privilege as specified in division (A)(2) of section 107
4510.02 of the Revised Code.108

       (E) As used in this section:109

       (1) "Deadly weapon" and "dangerous ordnance" have the same 110
meanings as in section 2923.11 of the Revised Code.111

       (2) "Motor vehicle" has the same meaning as in section 112
4501.01 of the Revised Code.113

       (3) "Peace officer" has the same meaning as in section 114
2935.01 of the Revised Code.115

       (4) "Sexual conduct" has the same meaning as in section 116
2907.01 of the Revised Code, except that, as used in this section, 117
it does not include the insertion of an instrument, apparatus, or 118
other object that is not a part of the body into the vaginal or 119
anal opening of another, unless the offender knew at the time of 120
the insertion that the instrument, apparatus, or other object 121
carried the offender's bodily fluid.122

       (5) "Investigator of the bureau of criminal identification 123
and investigation" means an investigator of the bureau of criminal 124
identification and investigation who is commissioned by the 125
superintendent of the bureau as a special agent for the purpose of 126
assisting law enforcement officers or providing emergency 127
assistance to peace officers pursuant to authority granted under 128
section 109.541 of the Revised Code.129

       (6) "Investigator" has the same meaning as in section 109.541 130
of the Revised Code.131

       (7) "Judge" and "magistrate" have the same meanings as in 132
section 2903.01 of the Revised Code.133

       Sec. 2903.12.  (A) No person, while under the influence of134
sudden passion or in a sudden fit of rage, either of which is135
brought on by serious provocation occasioned by the victim that is 136
reasonably sufficient to incite the person into using deadly137
force, shall knowingly:138

       (1) Cause serious physical harm to another or to another's 139
unborn;140

       (2) Cause or attempt to cause physical harm to another or to 141
another's unborn by means of a deadly weapon or dangerous 142
ordnance, as defined in section 2923.11 of the Revised Code.143

       (B) Whoever violates this section is guilty of aggravated144
assault. Except as otherwise provided in this division, 145
aggravated assault is a felony of the fourth degree. If the victim 146
of the offense is a judge, magistrate, peace officer, or an147
investigator of the bureau of criminal identification and 148
investigation, aggravated assault is a felony of the third149
degree. Regardless of whether the offense is a felony of the 150
third or fourth degree under this division, if the offender also 151
is convicted of or pleads guilty to a specification as described 152
in section 2941.1423 of the Revised Code that was included in the 153
indictment, count in the indictment, or information charging the 154
offense, except as otherwise provided in this division, the court 155
shall sentence the offender to a mandatory prison term as 156
provided in division (D)(8) of section 2929.14 of the Revised 157
Code. If the victim of the offense is a judge, magistrate, peace 158
officer, or an investigator of the bureau of criminal 159
identification and investigation, and if the victim suffered 160
serious physical harm as a result of the commission of the161
offense, aggravated assault is a felony of the third degree, and 162
the court, pursuant to division (F) of section 2929.13 of the 163
Revised Code, shall impose as a mandatory prison term one of the 164
prison terms prescribed for a felony of the third degree.165

       (C) As used in this section:166

       (1) "Investigator of the bureau of criminal identification 167
and investigation" has the same meaning as in section 2903.11 of 168
the Revised Code.169

       (2) "Peace officer" has the same meaning as in section 170
2935.01 of the Revised Code.171

       (3) "Judge" and "magistrate" have the same meanings as in 172
section 2903.01 of the Revised Code.173

       Sec. 2903.13.  (A) No person shall knowingly cause or attempt 174
to cause physical harm to another or to another's unborn.175

       (B) No person shall recklessly cause serious physical harm to 176
another or to another's unborn.177

       (C) Whoever violates this section is guilty of assault, and 178
the court shall sentence the offender as provided in this division 179
and divisions (C)(1), (2), (3), (4), (5), and (6) of this section. 180
Except as otherwise provided in division (C)(1), (2), (3), (4), or 181
(5) of this section, assault is a misdemeanor of the first degree.182

       (1) Except as otherwise provided in this division, if the183
offense is committed by a caretaker against a functionally184
impaired person under the caretaker's care, assault is a felony of185
the fourth degree. If the offense is committed by a caretaker186
against a functionally impaired person under the caretaker's care,187
if the offender previously has been convicted of or pleaded guilty188
to a violation of this section or section 2903.11 or 2903.16 of189
the Revised Code, and if in relation to the previous conviction190
the offender was a caretaker and the victim was a functionally191
impaired person under the offender's care, assault is a felony of192
the third degree.193

       (2) If the offense is committed in any of the following194
circumstances, assault is a felony of the fifth degree:195

       (a) The offense occurs in or on the grounds of a state196
correctional institution or an institution of the department of197
youth services, the victim of the offense is an employee of the198
department of rehabilitation and correction, the department of199
youth services, or a probation department or is on the premises of200
the particular institution for business purposes or as a visitor,201
and the offense is committed by a person incarcerated in the state202
correctional institution, by a person institutionalized in the203
department of youth services institution pursuant to a commitment204
to the department of youth services, by a parolee, by an offender 205
under transitional control, under a community control sanction, or 206
on an escorted visit, by a person under post-release control, or 207
by an offender under any other type of supervision by a government 208
agency.209

       (b) The offense occurs in or on the grounds of a local210
correctional facility, the victim of the offense is an employee of211
the local correctional facility or a probation department or is on212
the premises of the facility for business purposes or as a213
visitor, and the offense is committed by a person who is under214
custody in the facility subsequent to the person's arrest for any215
crime or delinquent act, subsequent to the person's being charged216
with or convicted of any crime, or subsequent to the person's217
being alleged to be or adjudicated a delinquent child.218

       (c) The offense occurs off the grounds of a state219
correctional institution and off the grounds of an institution of220
the department of youth services, the victim of the offense is an221
employee of the department of rehabilitation and correction, the222
department of youth services, or a probation department, the223
offense occurs during the employee's official work hours and while224
the employee is engaged in official work responsibilities, and the225
offense is committed by a person incarcerated in a state226
correctional institution or institutionalized in the department of227
youth services who temporarily is outside of the institution for228
any purpose, by a parolee, by an offender under transitional 229
control, under a community control sanction, or on an escorted 230
visit, by a person under post-release control, or by an offender 231
under any other type of supervision by a government agency.232

       (d) The offense occurs off the grounds of a local233
correctional facility, the victim of the offense is an employee of234
the local correctional facility or a probation department, the235
offense occurs during the employee's official work hours and while236
the employee is engaged in official work responsibilities, and the237
offense is committed by a person who is under custody in the238
facility subsequent to the person's arrest for any crime or239
delinquent act, subsequent to the person being charged with or240
convicted of any crime, or subsequent to the person being alleged241
to be or adjudicated a delinquent child and who temporarily is242
outside of the facility for any purpose or by a parolee, by an 243
offender under transitional control, under a community control 244
sanction, or on an escorted visit, by a person under post-release245
control, or by an offender under any other type of supervision by 246
a government agency.247

       (e) The victim of the offense is a school teacher or248
administrator or a school bus operator, and the offense occurs in249
a school, on school premises, in a school building, on a school250
bus, or while the victim is outside of school premises or a school251
bus and is engaged in duties or official responsibilities252
associated with the victim's employment or position as a school253
teacher or administrator or a school bus operator, including, but254
not limited to, driving, accompanying, or chaperoning students at255
or on class or field trips, athletic events, or other school256
extracurricular activities or functions outside of school257
premises.258

       (3) If the victim of the offense is a judge, magistrate,259
peace officer, or an investigator of the bureau of criminal 260
identification and investigation, a firefighter, or a person 261
performing emergency medical service, while in the performance of 262
their official duties, assault is a felony of the fourth degree.263

       (4) If the victim of the offense is a judge, magistrate,264
peace officer, or an investigator of the bureau of criminal 265
identification and investigation and if the victim suffered 266
serious physical harm as a result of the commission of the 267
offense, assault is a felony of the fourth degree, and the court, 268
pursuant to division (F) of section 2929.13 of the Revised Code, 269
shall impose as a mandatory prison term one of the prison terms 270
prescribed for a felony of the fourth degree that is at least 271
twelve months in duration.272

       (5) If the victim of the offense is an officer or employee of 273
a public children services agency or a private child placing274
agency and the offense relates to the officer's or employee's275
performance or anticipated performance of official276
responsibilities or duties, assault is either a felony of the277
fifth degree or, if the offender previously has been convicted of278
or pleaded guilty to an offense of violence, the victim of that279
prior offense was an officer or employee of a public children280
services agency or private child placing agency, and that prior281
offense related to the officer's or employee's performance or282
anticipated performance of official responsibilities or duties, a283
felony of the fourth degree. 284

       (6) If an offender who is convicted of or pleads guilty to 285
assault when it is a misdemeanor also is convicted of or pleads 286
guilty to a specification as described in section 2941.1423 of the 287
Revised Code that was included in the indictment, count in the 288
indictment, or information charging the offense, the court shall 289
sentence the offender to a mandatory jail term as provided in 290
division (G) of section 2929.24 of the Revised Code.291

       If an offender who is convicted of or pleads guilty to 292
assault when it is a felony also is convicted of or pleads guilty 293
to a specification as described in section 2941.1423 of the 294
Revised Code that was included in the indictment, count in the 295
indictment, or information charging the offense, except as 296
otherwise provided in division (C)(4) of this section, the court 297
shall sentence the offender to a mandatory prison term as 298
provided in division (D)(8) of section 2929.14 of the Revised 299
Code.300

       (D) As used in this section:301

       (1) "Peace officer" has the same meaning as in section302
2935.01 of the Revised Code.303

       (2) "Firefighter" has the same meaning as in section 3937.41304
of the Revised Code.305

       (3) "Emergency medical service" has the same meaning as in306
section 4765.01 of the Revised Code.307

       (4) "Local correctional facility" means a county,308
multicounty, municipal, municipal-county, or multicounty-municipal309
jail or workhouse, a minimum security jail established under310
section 341.23 or 753.21 of the Revised Code, or another county,311
multicounty, municipal, municipal-county, or multicounty-municipal312
facility used for the custody of persons arrested for any crime or313
delinquent act, persons charged with or convicted of any crime, or314
persons alleged to be or adjudicated a delinquent child.315

       (5) "Employee of a local correctional facility" means a316
person who is an employee of the political subdivision or of one317
or more of the affiliated political subdivisions that operates the318
local correctional facility and who operates or assists in the319
operation of the facility.320

       (6) "School teacher or administrator" means either of the321
following:322

       (a) A person who is employed in the public schools of the323
state under a contract described in section 3319.08 of the Revised324
Code in a position in which the person is required to have a325
certificate issued pursuant to sections 3319.22 to 3319.311 of the326
Revised Code.327

       (b) A person who is employed by a nonpublic school for which328
the state board of education prescribes minimum standards under329
section 3301.07 of the Revised Code and who is certificated in330
accordance with section 3301.071 of the Revised Code.331

       (7) "Community control sanction" has the same meaning as in332
section 2929.01 of the Revised Code.333

       (8) "Escorted visit" means an escorted visit granted under334
section 2967.27 of the Revised Code.335

       (9) "Post-release control" and "transitional control" have336
the same meanings as in section 2967.01 of the Revised Code.337

       (10) "Investigator of the bureau of criminal identification 338
and investigation" has the same meaning as in section 2903.11 of 339
the Revised Code.340

       (11) "Judge" and "magistrate" have the same meanings as in 341
section 2903.01 of the Revised Code.342

       Sec. 2903.21.  (A) No person shall knowingly cause another to 343
believe that the offender will cause serious physical harm to the 344
person or property of the other person, the other person's unborn, 345
or a member of the other person's immediate family.346

       (B) Whoever violates this section is guilty of aggravated347
menacing. Except as otherwise provided in this division,348
aggravated menacing is a misdemeanor of the first degree. If the349
victim of the offense is a judge or magistrate or an officer or 350
employee of a public children services agency or a private child 351
placing agency and the offense relates to the judge's, 352
magistrate's, officer's, or employee's performance or anticipated 353
performance of official responsibilities or duties, aggravated 354
menacing is a felony of the fifth degree or, if the offender 355
previously has been convicted of or pleaded guilty to an offense 356
of violence, the victim of that prior offense was a judge or 357
magistrate or an officer or employee of a public children services 358
agency or private child placing agency, and that prior offense 359
related to the judge's, magistrate's, officer's, or employee's 360
performance or anticipated performance of official 361
responsibilities or duties, a felony of the fourth degree.362

       (C) As used in this section, "judge" and "magistrate" have 363
the same meanings as in section 2903.01 of the Revised Code.364

       Sec. 2903.23.  (A) As used in this section:365

       (1) "Immediate family" includes a person's spouse, brothers 366
and sisters of the whole or half blood, children, including 367
adopted children and stepchildren, parents, and grandparents.368

       (2) "Judge" and "magistrate" have the same meanings as in 369
section 2903.01 of the Revised Code.370

       (B) No person, with intent to influence or interfere with a 371
judge or magistrate in the performance of the judge's or 372
magistrate's official duties or to retaliate against a judge or 373
magistrate for any decision made or action taken in the 374
performance of the judge's or magistrate's official duties, shall 375
knowingly threaten a judge or magistrate with physical harm to the 376
person or property of the judge or magistrate, the judge's or 377
magistrate's unborn, or a member of the judge's or magistrate's 378
immediate family.379

       (C) Whoever violates division (B) of this section is guilty 380
of threatening a judge or magistrate, a felony of the fifth 381
degree.382

       Sec. 2929.04.  (A) Imposition of the death penalty for383
aggravated murder is precluded unless one or more of the following384
is specified in the indictment or count in the indictment pursuant385
to section 2941.14 of the Revised Code and proved beyond a386
reasonable doubt:387

       (1) The offense was the assassination of the president of the 388
United States or a person in line of succession to the presidency, 389
the governor or lieutenant governor of this state, the390
president-elect or vice president-elect of the United States, the391
governor-elect or lieutenant governor-elect of this state, or a392
candidate for any of the offices described in this division. For393
purposes of this division, a person is a candidate if the person394
has been nominated for election according to law, if the person395
has filed a petition or petitions according to law to have the396
person's name placed on the ballot in a primary or general397
election, or if the person campaigns as a write-in candidate in a398
primary or general election.399

       (2) The offense was committed for hire.400

       (3) The offense was committed for the purpose of escaping401
detection, apprehension, trial, or punishment for another offense402
committed by the offender.403

       (4) The offense was committed while the offender was under404
detention or while the offender was at large after having broken405
detention. As used in division (A)(4) of this section,406
"detention" has the same meaning as in section 2921.01 of the407
Revised Code, except that detention does not include408
hospitalization, institutionalization, or confinement in a mental409
health facility or mental retardation and developmentally disabled410
facility unless at the time of the commission of the offense411
either of the following circumstances apply:412

       (a) The offender was in the facility as a result of being413
charged with a violation of a section of the Revised Code.414

       (b) The offender was under detention as a result of being415
convicted of or pleading guilty to a violation of a section of the416
Revised Code.417

       (5) Prior to the offense at bar, the offender was convicted418
of an offense an essential element of which was the purposeful419
killing of or attempt to kill another, or the offense at bar was420
part of a course of conduct involving the purposeful killing of or421
attempt to kill two or more persons by the offender.422

       (6) The victim of the offense was a law enforcement officer,423
as defined in section 2911.01 of the Revised Code, or a judge or 424
magistrate, as defined in section 2903.01 of the Revised Code,425
whom the offender had reasonable cause to know or knew to be a law426
enforcement officer or a judge or magistrate as so defined, and 427
either the victim, at the time of the commission of the offense, 428
was engaged in the victim's duties, or it was the offender's 429
specific purpose to kill a law enforcement officer or a judge or 430
magistrate as so defined.431

       (7) The offense was committed while the offender was432
committing, attempting to commit, or fleeing immediately after433
committing or attempting to commit kidnapping, rape, aggravated434
arson, aggravated robbery, or aggravated burglary, and either the435
offender was the principal offender in the commission of the436
aggravated murder or, if not the principal offender, committed the437
aggravated murder with prior calculation and design.438

       (8) The victim of the aggravated murder was a witness to an439
offense who was purposely killed to prevent the victim's testimony440
in any criminal proceeding and the aggravated murder was not441
committed during the commission, attempted commission, or flight442
immediately after the commission or attempted commission of the443
offense to which the victim was a witness, or the victim of the444
aggravated murder was a witness to an offense and was purposely445
killed in retaliation for the victim's testimony in any criminal446
proceeding.447

       (9) The offender, in the commission of the offense,448
purposefully caused the death of another who was under thirteen449
years of age at the time of the commission of the offense, and450
either the offender was the principal offender in the commission451
of the offense or, if not the principal offender, committed the452
offense with prior calculation and design.453

       (10) The offense was committed while the offender was454
committing, attempting to commit, or fleeing immediately after455
committing or attempting to commit terrorism.456

       (B) If one or more of the aggravating circumstances listed in 457
division (A) of this section is specified in the indictment or458
count in the indictment and proved beyond a reasonable doubt, and459
if the offender did not raise the matter of age pursuant to460
section 2929.023 of the Revised Code or if the offender, after461
raising the matter of age, was found at trial to have been462
eighteen years of age or older at the time of the commission of463
the offense, the court, trial jury, or panel of three judges shall464
consider, and weigh against the aggravating circumstances proved465
beyond a reasonable doubt, the nature and circumstances of the466
offense, the history, character, and background of the offender,467
and all of the following factors:468

       (1) Whether the victim of the offense induced or facilitated469
it;470

       (2) Whether it is unlikely that the offense would have been471
committed, but for the fact that the offender was under duress,472
coercion, or strong provocation;473

       (3) Whether, at the time of committing the offense, the474
offender, because of a mental disease or defect, lacked475
substantial capacity to appreciate the criminality of the476
offender's conduct or to conform the offender's conduct to the477
requirements of the law;478

       (4) The youth of the offender;479

       (5) The offender's lack of a significant history of prior480
criminal convictions and delinquency adjudications;481

       (6) If the offender was a participant in the offense but not482
the principal offender, the degree of the offender's participation483
in the offense and the degree of the offender's participation in484
the acts that led to the death of the victim;485

       (7) Any other factors that are relevant to the issue of486
whether the offender should be sentenced to death.487

       (C) The defendant shall be given great latitude in the488
presentation of evidence of the factors listed in division (B) of489
this section and of any other factors in mitigation of the490
imposition of the sentence of death.491

       The existence of any of the mitigating factors listed in492
division (B) of this section does not preclude the imposition of a493
sentence of death on the offender but shall be weighed pursuant to494
divisions (D)(2) and (3) of section 2929.03 of the Revised Code by495
the trial court, trial jury, or the panel of three judges against496
the aggravating circumstances the offender was found guilty of497
committing.498

       Section 2.  That existing sections 2903.01, 2903.11, 2903.12, 499
2903.13, 2903.21, and 2929.04 of the Revised Code are hereby 500
repealed.501