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H. B. No. 103 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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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,
2903.21, and 2929.04 and to enact section 2903.23
of the Revised Code to increase the penalties for
certain offenses when a judge or magistrate is the
victim, to prohibit a person from threatening a
judge or magistrate, and to make the killing of a
judge or magistrate an aggravating circumstance
for the imposition of the death penalty for
aggravated murder.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2903.01, 2903.11, 2903.12, 2903.13,
2903.21, and 2929.04 be amended and section 2903.23 of the Revised
Code be enacted 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, arson, aggravated robbery, robbery,
aggravated
burglary,
burglary,
terrorism, 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 who is
under detention as a result of having
been found guilty of or
having pleaded guilty to a felony or who
breaks that detention
shall purposely cause the death of another.
(E) No person shall purposely cause the death of a judge,
magistrate, or
law
enforcement officer whom the offender knows or
has
reasonable
cause to know is a judge, magistrate, or law
enforcement officer when
either of the
following applies:
(1) The victim, at the time of the commission of the
offense,
is engaged in the victim's duties.
(2) It is the offender's specific purpose to kill a judge,
magistrate, or law
enforcement officer.
(F) Whoever violates this section is guilty of aggravated
murder, and shall be punished as provided in section 2929.02 of
the Revised Code.
(G) As used in this section:
(1) "Detention" has the same meaning as in section
2921.01
of
the Revised Code.
(2) "Law enforcement officer" has the same meaning as in
section 2911.01 of the Revised
Code.
(3) "Judge" means a judge of a court created under the
constitution or statutes of this state or of a United States court
located in this state.
(4) "Magistrate" means a magistrate of a court created under
the constitution or statutes of this state or of a United States
court located in this state.
Sec. 2903.11. (A) No person shall knowingly do either of the
following:
(1) Cause serious physical harm to another or to another's
unborn;
(2) Cause or attempt to cause physical harm to another or to
another's
unborn by means of a deadly weapon or dangerous
ordnance.
(B) No person, with knowledge that the person has tested
positive as a
carrier of a virus that causes acquired
immunodeficiency syndrome, shall
knowingly do any of the
following:
(1) Engage in sexual conduct with another person without
disclosing that
knowledge to the other person prior to engaging in
the sexual conduct;
(2) Engage in sexual conduct with a person whom the offender
knows or has
reasonable cause to believe lacks
the mental capacity
to appreciate the significance of the knowledge that the
offender
has tested positive as a carrier of a virus that causes acquired
immunodeficiency syndrome;
(3) Engage in sexual conduct with a person under eighteen
years of age who
is not the spouse of the offender.
(C) The prosecution of a person under this section does not
preclude prosecution of that person under
section 2907.02 of the
Revised Code.
(D)(1)(a) Whoever violates this section is guilty of
felonious
assault. Except as otherwise provided in this division
or division (D)(1)(b) of this section, felonious
assault is
a
felony of
the second degree. If the victim of a
violation of
division (A) of this section is a judge, magistrate, peace
officer, or an
investigator of the bureau of criminal
identification and
investigation, felonious assault
is a
felony
of the first degree.
(b) Regardless of whether the felonious assault is a felony
of the first or
second degree under division (D)(1)(a) of this
section, if the offender also is
convicted of or pleads guilty to
a specification as described in
section 2941.1423 of the Revised
Code that was included in the
indictment, count in the
indictment, or information charging the
offense, except as
otherwise provided in this division or unless a longer prison term
is required under any other provision of law, the court
shall
sentence the offender to a mandatory prison term as provided
in
division (D)(8) of section 2929.14 of the Revised Code. If the
victim of the offense is a judge, magistrate, peace officer, or an
investigator
of
the bureau of criminal identification and
investigation, and if
the victim suffered
serious physical harm
as a result of the
commission of the offense, felonious
assault
is a felony of the
first degree, and the court, pursuant to
division
(F) of section
2929.13 of the Revised Code, shall impose
as a mandatory prison
term one of the prison terms prescribed for
a felony of the first
degree.
(2) In addition to any other sanctions imposed pursuant to
division (D)(1) of this section for felonious assault committed in
violation of division (A)(2) of this section, if the deadly weapon
used in the commission of the violation is a motor vehicle, the
court shall impose upon the offender a class two suspension of the
offender's driver's license, commercial driver's license,
temporary instruction permit, probationary license, or nonresident
operating privilege as specified in division (A)(2) of section
4510.02 of the Revised Code.
(E) As used in this section:
(1) "Deadly weapon" and "dangerous ordnance" have the same
meanings as in
section 2923.11 of the Revised Code.
(2) "Motor vehicle" has the same meaning as in section
4501.01 of the Revised Code.
(3) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(4) "Sexual conduct" has the same meaning as in section
2907.01 of the Revised Code,
except that, as used in this section,
it does not include the insertion of an
instrument, apparatus, or
other object that is not a part of the body into the
vaginal or
anal opening of another, unless the offender knew at the time of
the
insertion that the instrument, apparatus, or other object
carried the
offender's bodily fluid.
(5) "Investigator of the bureau of criminal identification
and investigation" means an investigator of the bureau of criminal
identification and investigation who is commissioned by the
superintendent of the bureau as a special agent for the purpose of
assisting law enforcement officers or providing emergency
assistance to peace officers pursuant to authority granted under
section 109.541 of the Revised Code.
(6) "Investigator" has the same meaning as in section 109.541
of the Revised Code.
(7) "Judge" and "magistrate" have the same meanings as in
section 2903.01 of the Revised Code.
Sec. 2903.12. (A) No person, while under the influence of
sudden passion or in a sudden fit of rage, either of which is
brought on by serious provocation occasioned by the victim that
is
reasonably sufficient to incite the person into using deadly
force, shall knowingly:
(1) Cause serious physical harm to another or to another's
unborn;
(2) Cause or attempt to cause physical harm to another or to
another's
unborn by
means of a deadly weapon or dangerous
ordnance, as defined in
section 2923.11 of the Revised Code.
(B) Whoever violates this section is guilty of aggravated
assault. Except as otherwise provided in this division,
aggravated assault is a felony of the fourth degree. If the victim
of the
offense is a judge, magistrate, peace officer, or an
investigator of the bureau
of criminal identification and
investigation, aggravated assault
is a felony of the third
degree. Regardless of whether the offense
is a felony of the
third or fourth degree under this division, if
the offender also
is convicted of or pleads guilty to a
specification as described
in section 2941.1423 of the Revised
Code that was included in the
indictment, count in the indictment,
or information charging the
offense, except as otherwise provided
in this division, the court
shall sentence the offender to a
mandatory prison term as
provided in division (D)(8) of section
2929.14 of the Revised
Code. If the victim of the offense is a judge, magistrate,
peace
officer, or an investigator of the bureau of criminal
identification and investigation, and if the
victim suffered
serious physical harm as a result of the commission of the
offense, aggravated assault is a felony of the third degree, and
the court,
pursuant to division (F) of section 2929.13 of the
Revised
Code, shall impose as a mandatory prison term one of the
prison terms
prescribed for a felony of the third degree.
(C) As used in this section:
(1) "Investigator of the bureau of criminal identification
and investigation" has the same meaning as in section 2903.11 of
the Revised Code.
(2) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(3) "Judge" and "magistrate" have the same meanings as in
section 2903.01 of the Revised Code.
Sec. 2903.13. (A) No person shall knowingly cause or
attempt
to cause physical harm to another or to another's unborn.
(B) No person shall recklessly cause serious physical harm
to
another or to another's unborn.
(C) Whoever violates this section is guilty of assault, and
the court shall sentence the offender as provided in this division
and divisions (C)(1), (2), (3), (4), (5), and (6) of this section.
Except as otherwise provided in division (C)(1), (2), (3),
(4),
or
(5) of
this section, assault is a
misdemeanor of the first
degree.
(1) Except as otherwise provided in this division, if the
offense is committed by a caretaker against a
functionally
impaired person under the caretaker's care, assault is
a felony
of
the fourth degree. If the offense is committed by a caretaker
against a functionally impaired person under the caretaker's care,
if the
offender previously has been convicted of or pleaded guilty
to a
violation of this section or section 2903.11 or 2903.16 of
the
Revised Code, and if in relation to the previous conviction
the
offender was a caretaker and the victim was a functionally
impaired person under the offender's care, assault is a felony of
the third degree.
(2) If the offense is committed in any of the following
circumstances, assault is a felony of the fifth degree:
(a) The offense occurs in or on the grounds of a state
correctional institution or an institution of the department of
youth services, the victim of the offense is an employee of the
department of rehabilitation and correction, the department of
youth services, or a probation department or is on the premises
of
the particular institution for business purposes or as a
visitor,
and the offense is committed by a person incarcerated in
the state
correctional institution, by a person institutionalized in
the
department of youth services institution pursuant to a
commitment
to the department of youth services, by a
parolee,
by an offender
under transitional
control, under
a community
control sanction, or
on an escorted visit, by a person under
post-release control,
or
by an
offender under any other type of
supervision by a government
agency.
(b) The offense occurs in or on the grounds of a local
correctional facility, the victim of the offense is an employee
of
the local correctional facility or a probation department or
is on
the premises of the facility for business purposes or as a
visitor, and the offense is committed by a person who is under
custody in the facility subsequent to the person's arrest for any
crime or
delinquent act, subsequent to the person's being charged
with or
convicted
of any crime, or subsequent to the person's
being alleged to be or
adjudicated a delinquent child.
(c) The offense occurs off the grounds of a state
correctional institution and off the grounds of an institution of
the department of youth services, the victim of the offense is an
employee of the department of rehabilitation and correction, the
department of youth services, or a probation department, the
offense occurs during the employee's official work hours and
while
the employee is engaged in official work responsibilities, and
the
offense is committed by a person incarcerated in a state
correctional institution or institutionalized in the department
of
youth services who temporarily is outside of the institution
for
any purpose, by a
parolee,
by an offender under
transitional
control, under a
community control sanction, or on an
escorted
visit, by a person under
post-release control, or by an
offender
under any other type of supervision by
a government
agency.
(d) The offense occurs off the grounds of a local
correctional facility, the victim of the offense is an employee
of
the local correctional facility or a probation department, the
offense occurs during the employee's official work hours and
while
the employee is engaged in official work responsibilities, and
the
offense is committed by a person who is under custody in the
facility subsequent to the person's arrest for any crime or
delinquent
act, subsequent to the person being charged with or
convicted of any
crime, or subsequent to the person being alleged
to be or
adjudicated a
delinquent child and who temporarily is
outside of the facility
for any purpose or by a
parolee, by an
offender under
transitional control, under a
community
control
sanction, or on an escorted visit, by a person
under post-release
control, or by an offender under any other type
of supervision by
a government
agency.
(e) The victim of the offense is a school teacher or
administrator or a
school bus operator, and the offense occurs in
a school, on school premises,
in a school
building, on a school
bus, or while the victim is outside of school premises
or a school
bus and is engaged in duties or official
responsibilities
associated with the victim's employment or position
as a school
teacher or
administrator or a school bus operator, including, but
not limited to,
driving, accompanying, or chaperoning students at
or on class or field trips,
athletic events, or other school
extracurricular activities or functions
outside of school
premises.
(3) If the victim of the offense is a judge, magistrate,
peace officer, or an
investigator of the bureau of criminal
identification and
investigation, a
firefighter, or a person
performing emergency
medical service,
while in the performance of
their official
duties, assault is a
felony of the fourth degree.
(4) If the victim of the offense is a judge, magistrate,
peace officer, or an
investigator of the bureau of criminal
identification and
investigation and if
the victim
suffered
serious physical harm as
a result of the
commission of the
offense,
assault is a felony of
the fourth
degree, and the court,
pursuant to division
(F) of
section 2929.13
of the Revised Code,
shall
impose as a mandatory
prison term one
of the prison terms
prescribed for a
felony of the
fourth degree
that is at least
twelve months in duration.
(5) If the victim of the offense is an officer or employee
of
a public
children services agency or a private child placing
agency and the offense
relates to the officer's or employee's
performance or anticipated performance
of official
responsibilities or duties, assault is either a felony of the
fifth degree
or, if the offender previously has been convicted of
or pleaded guilty
to an offense of violence, the victim of that
prior offense was an officer or
employee of a public children
services agency or private child placing agency,
and that prior
offense related to the officer's or employee's performance or
anticipated performance of official responsibilities or duties, a
felony of
the fourth degree.
(6) If an offender who is convicted of or pleads guilty to
assault when it is a misdemeanor also is convicted of or pleads
guilty to a specification as described in section 2941.1423 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense, the court shall
sentence the offender to a mandatory jail term as provided in
division (G) of section 2929.24 of the Revised Code.
If an offender who is convicted of or pleads guilty to
assault when it is a felony also is convicted of or pleads guilty
to a specification as described in section 2941.1423 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense, except as
otherwise provided in division (C)(4) of this section, the court
shall
sentence the offender to a mandatory prison term as
provided in
division (D)(8) of section 2929.14 of the Revised
Code.
(D) As used in this section:
(1) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(2) "Firefighter" has the same meaning as in
section
3937.41
of the Revised Code.
(3) "Emergency medical service" has the same meaning as in
section 4765.01 of the Revised Code.
(4) "Local correctional facility" means a county,
multicounty, municipal, municipal-county, or
multicounty-municipal
jail or workhouse, a minimum security
jail established under
section 341.23 or 753.21 of
the Revised Code, or another county,
multicounty, municipal,
municipal-county, or multicounty-municipal
facility used for the
custody of persons arrested for any crime or
delinquent act,
persons charged with or convicted of any crime, or
persons
alleged to be or adjudicated a delinquent child.
(5) "Employee of a local correctional facility" means a
person who is an employee of the political subdivision or of one
or more of the affiliated political subdivisions that operates
the
local correctional facility and who operates or assists in
the
operation of the facility.
(6) "School teacher or administrator" means either of the
following:
(a) A person who is employed in the public schools of the
state under a
contract described in section 3319.08 of the Revised
Code in a position in
which the person is required to have a
certificate issued pursuant to sections
3319.22 to 3319.311 of the
Revised Code.
(b) A person who is employed by a nonpublic school for
which
the state board
of education prescribes minimum standards under
section 3301.07 of the Revised
Code and who is certificated in
accordance with section 3301.071 of the
Revised Code.
(7) "Community control sanction" has the same meaning as
in
section 2929.01 of the Revised Code.
(8) "Escorted visit" means an escorted visit granted under
section 2967.27 of the Revised Code.
(9) "Post-release control" and "transitional control" have
the
same meanings as in section 2967.01 of the Revised Code.
(10) "Investigator of the bureau of criminal identification
and investigation" has the same meaning as in section 2903.11 of
the Revised Code.
(11) "Judge" and "magistrate" have the same meanings as in
section 2903.01 of the Revised Code.
Sec. 2903.21. (A) No person shall knowingly cause another
to
believe that
the offender will cause serious physical harm to
the
person or property of
the other person, the other person's
unborn,
or a member of the other person's immediate family.
(B) Whoever violates this section is guilty of aggravated
menacing. Except as otherwise provided in this division,
aggravated menacing is a misdemeanor of the first degree. If the
victim of the offense is a judge or magistrate or an officer or
employee of a public
children services agency or a private child
placing agency and the
offense
relates to the judge's,
magistrate's, officer's, or employee's performance or
anticipated
performance
of official responsibilities or duties,
aggravated
menacing is a felony of the
fifth degree
or, if the
offender
previously has been convicted of or pleaded guilty
to an
offense
of violence, the victim of that prior offense was a judge or
magistrate or an
officer or
employee of a public children services
agency or
private child placing agency,
and that prior offense
related to
the judge's, magistrate's, officer's, or employee's
performance or
anticipated performance
of official
responsibilities or duties, a felony of
the fourth
degree.
(C) As used in this section, "judge" and "magistrate" have
the same meanings as in section 2903.01 of the Revised Code.
Sec. 2903.23. (A) As used in this section:
(1) "Immediate family" includes a person's spouse, brothers
and sisters of the whole or half blood, children, including
adopted children and stepchildren, parents, and grandparents.
(2) "Judge" and "magistrate" have the same meanings as in
section 2903.01 of the Revised Code.
(B) No person, with intent to influence or interfere with a
judge or magistrate in the performance of the judge's or
magistrate's official duties or to retaliate against a judge or
magistrate for any decision made or action taken in the
performance of the judge's or magistrate's official duties, shall
knowingly threaten a judge or magistrate with physical harm to the
person or property of the judge or magistrate, the judge's or
magistrate's unborn, or a member of the judge's or magistrate's
immediate family.
(C) Whoever violates division (B) of this section is guilty
of threatening a judge or magistrate, a felony of the fifth
degree.
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 a person in line of succession to the
presidency,
the governor or lieutenant governor of this
state, the
president-elect or vice president-elect of the
United States, the
governor-elect or lieutenant
governor-elect of this state, or a
candidate for any of the
offices described in this division. For
purposes of this division, a person
is a
candidate if the person
has been nominated for election
according to law, if the person
has filed a petition or
petitions according to law to have the
person's name placed
on the ballot in a primary or general
election, or if 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
under
detention or while the
offender was at large after having broken
detention. As used
in division (A)(4)
of this section,
"detention"
has the same meaning as
in section 2921.01 of
the
Revised Code,
except that detention does not include
hospitalization,
institutionalization, or confinement in a mental
health facility
or mental retardation and developmentally disabled
facility
unless
at the time of the commission of the offense
either of
the
following circumstances apply:
(a) The offender was in the facility as a result
of being
charged with a violation of a section of the
Revised Code.
(b) The offender was under detention as a result
of being
convicted of or pleading guilty to a violation of a
section 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 law enforcement officer,
as
defined in section 2911.01 of the Revised Code, or a judge or
magistrate, as defined in section 2903.01 of the Revised Code,
whom the
offender
had reasonable cause to know or knew to be a law
enforcement officer or a judge or magistrate as so
defined, and
either the
victim, at the
time of the commission of the offense,
was engaged
in the victim's
duties, or it was the offender's
specific
purpose to kill a law
enforcement officer or a judge or
magistrate as so defined.
(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 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 the victim's testimony in any
criminal
proceeding.
(9) The offender, in the commission of the offense,
purposefully
caused the death of another who 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 offense or, if
not the principal offender, committed the
offense with prior
calculation and design.
(10) The offense was committed while the offender was
committing,
attempting to commit, or fleeing immediately after
committing or
attempting to commit terrorism.
(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 the
offender's conduct or to conform 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.
Section 2. That existing sections 2903.01, 2903.11, 2903.12,
2903.13, 2903.21, and 2929.04 of the Revised Code are hereby
repealed.
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