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As Introduced
122nd General Assembly
Regular Session
1997-1998 | S. B. No. 32 |
SENATORS HOWARD-GILLMOR-WHITE-CUPP-DIX-LATTA
A BILL
To amend sections 2903.01, 2929.04, and 2941.14 of the Revised Code to expand
the offense of aggravated murder to also prohibit purposely causing the death
of a victim under thirteen years of age and to prohibit causing the death of a
victim under thirteen years of age as a proximate result of committing or
attempting to commit felonious assault or aggravated assault against the
victim, and to include as a capital offense
aggravating circumstance the commission of the aggravated murder against a
victim under thirteen years of age when the offender was the principal
offender or committed the aggravated murder with prior calculation and design.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2903.01, 2929.04, and 2941.14 of the Revised Code be
amended to read as follows:
Sec. 2903.01. (A) No person shall purposely, and with
prior calculation and design, cause the death of another or the unlawful
termination of another's pregnancy.
(B) No person shall purposely cause the death of another or the unlawful
termination of another's pregnancy
while committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit kidnapping,
rape, aggravated arson or arson, aggravated robbery or robbery,
aggravated burglary or burglary, or escape.
(C) NO PERSON SHALL PURPOSELY CAUSE THE DEATH OF ANOTHER WHO IS UNDER
THIRTEEN YEARS OF AGE AT THE TIME OF THE COMMISSION OF THE OFFENSE.
(D) NO PERSON SHALL CAUSE THE DEATH OF ANOTHER WHO IS UNDER
THIRTEEN YEARS OF AGE AT THE TIME OF THE COMMISSION OF THE OFFENSE AS A
PROXIMATE RESULT OF THE OFFENDER'S COMMITTING OR ATTEMPTING TO COMMIT A
VIOLATION OF SECTION 2903.11 OR 2903.12 of the Revised Code AGAINST THE PERSON WHO IS UNDER
THIRTEEN YEARS OF AGE.
(E) Whoever violates this section is guilty of aggravated
murder, and shall be punished as provided in section 2929.02 of
the Revised Code.
(D)(F) No person shall be convicted of aggravated murder
IN VIOLATION OF DIVISION (A) OR (B) OF THIS SECTION
unless the person is specifically found to have intended to cause the
death of another or the unlawful termination of another's pregnancy.
In no case shall a jury in an aggravated
murder case INVOLVING AN ALLEGED VIOLATION OF DIVISION (A) OR
(B) OF THIS SECTION be instructed in such a manner that it may
believe that a person who commits or attempts to commit any offense
listed in division (B) of this section is to be conclusively
inferred, because the person engaged in a common design with
others to commit the offense by force and violence or because the offense
and the manner of its commission would be likely to produce
death or the unlawful termination of another's pregnancy, to have
intended to cause the death of any person who is
killed or the unlawful termination of another's pregnancy during the
commission of, attempt to commit, or flight
from the commission of or attempt to commit, the offense. If a
jury in an aggravated murder case INVOLVING AN ALLEGED VIOLATION OF
DIVISION (A) OR (B) OF THIS SECTION is instructed that a
person who commits or attempts to commit any offense listed in division (B)
of this section may be inferred, because the offender engaged in a common
design with others to commit the offense by force or violence or
because the offense and the manner of its commission would be
likely to produce death or the unlawful termination of another's
pregnancy, to have intended to cause the death of
any person who is killed or the unlawful termination of another's
pregnancy during the commission of, attempt to
commit, or flight from the commission of or attempt to commit the
offense, the jury also shall be instructed that the inference is
nonconclusive, that the inference may be considered in
determining intent, that it is to consider all evidence
introduced by the prosecution to indicate the person's intent and
by the person to indicate the person's lack of intent in
determining
whether the person specifically intended to cause the death of
the person killed or the unlawful termination of another's pregnancy,
and that the prosecution must prove the
specific intent of the person to have caused the death or the unlawful
termination of another's pregnancy by proof
beyond a reasonable doubt.
Sec. 2929.04. (A) Imposition of the death penalty for
aggravated murder is precluded, unless one or more of the
following is specified in the indictment or count in the
indictment pursuant to section 2941.14 of the Revised Code and
proved beyond a reasonable doubt:
(1) The offense was the assassination of the president of
the United States or person in line of succession to the
presidency, or of the governor or lieutenant governor of this
state, or of the president-elect or vice president-elect of the
United States, or of the governor-elect or lieutenant
governor-elect of this state, or of a candidate for any of the
foregoing offices. For purposes of this division, a person is a
candidate if he THE PERSON has been nominated for election
according to law, or if he THE PERSON has filed a petition or
petitions according to law to have his THE PERSON'S name placed
on the ballot in a primary or general election, or if he THE
PERSON campaigns as a write-in candidate in a primary or general election.
(2) The offense was committed for hire.
(3) The offense was committed for the purpose of escaping
detection, apprehension, trial, or punishment for another offense
committed by the offender.
(4) The offense was committed while the offender was a
prisoner in a detention facility as defined in section 2921.01 of
the Revised Code.
(5) Prior to the offense at bar, the offender was
convicted of an offense an essential element of which was the
purposeful killing of or attempt to kill another, or the offense
at bar was part of a course of conduct involving the purposeful
killing of or attempt to kill two or more persons by the
offender.
(6) The victim of the offense was a peace officer, as
defined in section 2935.01 of the Revised Code, whom the offender
had reasonable cause to know or knew to be such, and either the
victim, at the time of the commission of the offense, was engaged
in his THE VICTIM'S duties, or it was the offender's specific
purpose to kill a peace officer.
(7) The offense was committed while the offender was
committing, attempting to commit, or fleeing immediately after
committing or attempting to commit kidnapping, rape, aggravated
arson, aggravated robbery, or aggravated burglary, and either the
offender was the principal offender in the commission of the
aggravated murder or, if not the principal offender, committed
the aggravated murder with prior calculation and design.
(8) The victim of the aggravated murder was a witness to
an offense who was purposely killed to prevent his THE VICTIM'S
testimony in any criminal proceeding and the aggravated murder was not
committed during the commission, attempted commission, or flight
immediately after the commission or attempted commission of the
offense to which the victim was a witness, or the victim of the
aggravated murder was a witness to an offense and was purposely
killed in retaliation for his THE VICTIM'S testimony in any
criminal proceeding.
(9) THE VICTIM OF THE AGGRAVATED MURDER WAS UNDER THIRTEEN YEARS
OF AGE AT THE TIME OF THE COMMISSION OF THE OFFENSE, AND EITHER THE OFFENDER
WAS THE PRINCIPAL OFFENDER IN THE COMMISSION OF THE AGGRAVATED MURDER OR, IF
NOT THE PRINCIPAL OFFENDER, COMMITTED THE AGGRAVATED MURDER WITH PRIOR
CALCULATION AND DESIGN.
(B) If one or more of the aggravating circumstances listed
in division (A) of this section is specified in the indictment or
count in the indictment and proved beyond a reasonable doubt, and
if the offender did not raise the matter of age pursuant to
section 2929.023 of the Revised Code or if the offender, after
raising the matter of age, was found at trial to have been
eighteen years of age or older at the time of the commission of
the offense, the court, trial jury, or panel of three judges
shall consider, and weigh against the aggravating circumstances
proved beyond a reasonable doubt, the nature and circumstances of
the offense, the history, character, and background of the
offender, and all of the following factors:
(1) Whether the victim of the offense induced or
facilitated it;
(2) Whether it is unlikely that the offense would have
been committed, but for the fact that the offender was under
duress, coercion, or strong provocation;
(3) Whether, at the time of committing the offense, the
offender, because of a mental disease or defect, lacked
substantial capacity to appreciate the criminality of his THE
OFFENDER'S conduct or to conform his THE OFFENDER'S conduct
to the requirements of the law;
(4) The youth of the offender;
(5) The offender's lack of a significant history of prior
criminal convictions and delinquency adjudications;
(6) If the offender was a participant in the offense but
not the principal offender, the degree of the offender's
participation in the offense and the degree of the offender's
participation in the acts that led to the death of the victim;
(7) Any other factors that are relevant to the issue of
whether the offender should be sentenced to death.
(C) The defendant shall be given great latitude in the
presentation of evidence of the factors listed in division (B) of
this section and of any other factors in mitigation of the
imposition of the sentence of death.
The existence of any of the mitigating factors listed in
division (B) of this section does not preclude the imposition of
a sentence of death on the offender, but shall be weighed
pursuant to divisions (D)(2) and (3) of section 2929.03 of the
Revised Code by the trial court, trial jury, or the panel of
three judges against the aggravating circumstances the offender
was found guilty of committing.
Sec. 2941.14. (A) In an indictment for aggravated murder,
murder, or voluntary or involuntary manslaughter, the manner in
which, or the means by which the death was caused need not be set
forth.
(B) Imposition of the death penalty for aggravated murder
is precluded unless the indictment or count in the indictment
charging the offense specifies one or more of the aggravating
circumstances listed in division (A) of section 2929.04 of the
Revised Code. If more than one aggravating circumstance is
specified to an indictment or count, each shall be in a
separately numbered specification, and if an aggravating
circumstance is specified to a count in an indictment containing
more than one count, such specification shall be identified as to
the count to which it applies.
(C) A specification to an indictment or count in an
indictment charging aggravated murder shall be stated at the end
of the body of the indictment or count, and may be in
substantially the following form:
Specification "SPECIFICATION (or,
Specification 1 SPECIFICATION 1, orSpecification to the First Count
SPECIFICATION TO THE FIRST COUNT, or,Specification 1 to the First Count SPECIFICATION 1 TO THE
FIRST COUNT). The Grand
Jurors further find and specify that (set forth the applicable
aggravating circumstance listed in divisions (A)(1) to (8)(9)
of section 2929.04 of the Revised Code. The aggravating
circumstance may be stated in the words of the subdivision in
which it appears, or in words sufficient to give the accused
notice of the same)."
Section 2. That existing sections 2903.01, 2929.04, and 2941.14 of the Revised
Code are hereby repealed.
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