130th Ohio General Assembly
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H. B. No. 89  As Introduced
As Introduced

128th General Assembly
Regular Session
2009-2010
H. B. No. 89


Representative Zehringer 

Cosponsors: Representatives Adams, R., Derickson, Hite, Huffman, Bacon, Stebelton, Combs, Stautberg, McGregor, Jordan, Daniels, Balderson, Blair 



A BILL
To amend sections 2903.01, 2903.11, 2903.12, 2903.13, 2903.21, 2921.01, 2921.03, 2921.05, and 2929.04 of the Revised Code to provide that the purposeful killing of a judge or magistrate in specified circumstances is aggravated murder; to increase the penalty for felonious assault, aggravated assault, and assault in specified circumstances when the victim is a judge, a magistrate, or a law enforcement officer, to change the circumstances in which the penalty for those offenses is increased when the victim is a BCII investigator, and to remove the increased penalty for those offenses when the victim is a peace officer; to increase the penalty for assault when the offense is committed in a courthouse in specified circumstances and to change the circumstances in which the penalty for that offense is increased when the victim is a children services worker; to increase the penalty for aggravated menacing in specified circumstances when the victim is a law enforcement officer, judge, or magistrate and to change the circumstances in which the penalty for that offense is increased when the victim is a children services worker; to expand intimidation to also prohibit attempting to intimidate a public servant, party official, attorney, or witness by making an unlawful threat of harm to an unborn of that person; to expand retaliation to also prohibit using force against or making an unlawful threat to harm an unborn of a public servant, party official, attorney, or witness and to modify the culpable mental state for and other elements of that offense; and to make the killing of a judge or magistrate in specified circumstances 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, 2921.01, 2921.03, 2921.05, and 2929.04 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, 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 peace law enforcement officer, judge, magistrate, or an investigator of the bureau of criminal identification and investigation whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or 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 peace law enforcement officer, judge, magistrate, or an investigator of the bureau of criminal identification and investigation whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or 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)(4) "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)(5) "Investigator" has the same meaning as in section 109.541 of the Revised Code.
(6) "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 peace law enforcement officer, judge, magistrate, or an investigator of the bureau of criminal identification and investigation whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or 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 peace law enforcement officer, judge, magistrate, or an investigator of the bureau of criminal identification and investigation whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or 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 "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.
(f) The offense occurs in or on the grounds of a courthouse or on premises where a courtroom is located, the offense is committed by a person who is in or on those grounds or on those premises by reason of or in relation to an action or proceeding that is occurring, has occurred, or is scheduled to occur at the courthouse or courtroom, and the offense occurs during the action or proceeding or while the parties to the action or proceeding or the officials involved in conducting the action or proceeding are on their way to or are departing after the action or proceeding.
(3) If the victim of the offense is a peace law enforcement officer, judge, magistrate, or an investigator of the bureau of criminal identification and investigation whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or 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 peace law enforcement officer, judge, magistrate, or an investigator of the bureau of criminal identification and investigation whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or 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 whom the offender knows or has reasonable cause to know is an officer or employee of a public children services agency or 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 whom the offender knew or had reasonable cause to know 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)(2) "Emergency medical service" has the same meaning as in section 4765.01 of the Revised Code.
(4)(3) "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)(4) "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)(5) "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)(6) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.
(8)(7) "Escorted visit" means an escorted visit granted under section 2967.27 of the Revised Code.
(9)(8) "Post-release control" and "transitional control" have the same meanings as in section 2967.01 of the Revised Code.
(10)(9) "Investigator of the bureau of criminal identification and investigation" has the same meaning as in section 2903.11 of the Revised Code.
(10) "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 an a law enforcement officer, judge, magistrate, or officer or employee of a public children services agency or a private child placing agency whom the offender knows or has reasonable cause to know is a law enforcement officer, judge, magistrate, or officer or employee of a public children services agency or private child placing agency and the offense relates to the law enforcement officer's, 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 an a law enforcement officer, judge, magistrate, or officer or employee of a public children services agency or private child placing agency whom the offender knew or had reasonable cause to know was a law enforcement officer, judge, magistrate, or officer or employee of a public children services agency or private child placing agency, and that prior offense related to the law enforcement officer's, 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. 2921.01.  As used in sections 2921.01 to 2921.45 of the Revised Code:
(A) "Public official" means any elected or appointed officer, or employee, or agent of the state or any political subdivision, whether in a temporary or permanent capacity, and includes, but is not limited to, legislators, judges, and law enforcement officers.
(B) "Public servant" means any of the following:
(1) Any public official;
(2) Any person performing ad hoc a governmental function, including, but not limited to, a juror, member of a temporary commission, master, arbitrator, advisor, or consultant;
(3) A person who is a candidate for public office, whether or not the person is elected or appointed to the office for which the person is a candidate. A person is a candidate for purposes of this division if the person has been nominated according to law for election or appointment to public office, or if the person has filed a petition or petitions as required by law to have the person's name placed on the ballot in a primary, general, or special election, or if the person campaigns as a write-in candidate in any primary, general, or special election.
(C) "Party official" means any person who holds an elective or appointive post in a political party in the United States or this state, by virtue of which the person directs, conducts, or participates in directing or conducting party affairs at any level of responsibility.
(D) "Official proceeding" means any proceeding before a legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, and includes any proceeding before a referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with an official proceeding.
(E) "Detention" means arrest; confinement in any vehicle subsequent to an arrest; confinement in any public or private facility for custody of persons charged with or convicted of crime in this state or another state or under the laws of the United States or alleged or found to be a delinquent child or unruly child in this state or another state or under the laws of the United States; hospitalization, institutionalization, or confinement in any public or private facility that is ordered pursuant to or under the authority of section 2945.37, 2945.371, 2945.38, 2945.39, 2945.40, 2945.401, or 2945.402 of the Revised Code; confinement in any vehicle for transportation to or from any facility of any of those natures; detention for extradition or deportation; except as provided in this division, supervision by any employee of any facility of any of those natures that is incidental to hospitalization, institutionalization, or confinement in the facility but that occurs outside the facility; supervision by an employee of the department of rehabilitation and correction of a person on any type of release from a state correctional institution; or confinement in any vehicle, airplane, or place while being returned from outside of this state into this state by a private person or entity pursuant to a contract entered into under division (E) of section 311.29 of the Revised Code or division (B) of section 5149.03 of the Revised Code. For a person confined in a county jail who participates in a county jail industry program pursuant to section 5147.30 of the Revised Code, "detention" includes time spent at an assigned work site and going to and from the work site.
(F) "Detention facility" means any public or private place used for the confinement of a person charged with or convicted of any crime in this state or another state or under the laws of the United States or alleged or found to be a delinquent child or unruly child in this state or another state or under the laws of the United States.
(G) "Valuable thing or valuable benefit" includes, but is not limited to, a contribution. This inclusion does not indicate or imply that a contribution was not included in those terms before September 17, 1986.
(H) "Campaign committee," "contribution," "political action committee," "legislative campaign fund," "political party," and "political contributing entity" have the same meanings as in section 3517.01 of the Revised Code.
(I) "Provider agreement" and "medical assistance program" have the same meanings as in section 2913.40 of the Revised Code.
(J)(1) "Unborn of a public servant, party official, attorney, or witness" means any of the following:
(a) For purposes of section 2921.03 of the Revised Code, a member of the species homo sapiens who is or was carried in the womb of a public servant, a party official, or an attorney or witness who was involved in a civil action or proceeding, or who is or was the offspring of a public servant, a party official, or an attorney or witness who was involved in a civil action or proceeding and is or was carried in the womb of another, during a period that begins with fertilization and that continues unless and until live birth occurs.
(b) For purposes of section 2921.05 of the Revised Code, a member of the species homo sapiens who is or was carried in the womb of a public servant, a party official, or an attorney or witness who was involved in civil or criminal action or proceeding, or who is or was the offspring of a public servant, a party official, or an attorney or witness who was involved in a civil or criminal action or proceeding and is or was carried in the womb of another, during a period that begins with fertilization and that continues unless and until live birth occurs.
(2) Notwithstanding divisions (J)(1)(a) and (b) of this section, in no case shall the definition of the term "unborn of a public servant, party official, attorney, or witness" that is set forth in those divisions be applied or construed in any of the following manners:
(a) Except as otherwise provided in division (J)(2)(a) of this section, in a manner so that section 2921.03 or 2921.05 of the Revised Code prohibits or is construed as prohibiting any pregnant woman or her physician from performing an abortion with the actual consent of the pregnant woman, with the consent of the pregnant woman implied by law in a medical emergency, or with the approval of a person otherwise authorized by law to consent to medical treatment on behalf of the pregnant woman. An abortion that is performed without the consent or approval described in the immediately preceding sentence may be punished as a violation of section 2921.03 or 2921.05 of the Revised Code, as applicable. An abortion that is performed with the consent or approval described in the second immediately preceding sentence, but that violates section 2919.12, division (B) of section 2919.13, or section 2919.151, 2919.17, or 2919.18 of the Revised Code, may be punished as a violation of section 2919.12, division (B) of section 2919.13, or section 2919.151, 2919.17, or 2919.18 of the Revised Code, as applicable.
(b) In a manner so that section 2921.03 or 2921.05 of the Revised Code is applied or is construed as applying to a woman based on an act or omission of the woman that occurs while she is or was pregnant and that results in any act, occurrence, or consequence identified in divisions (C)(2)(a) to (e) of section 2903.09 of the Revised Code.
Sec. 2921.03.  (A) No person, knowingly and by force, by unlawful threat of harm to any person or property, by unlawful threat of harm to an unborn of the public servant, party official, attorney, or witness involved in the action or proceeding, or by filing, recording, or otherwise using a materially false or fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder a public servant, a party official, or an attorney or witness involved in a civil action or proceeding in the discharge of the person's the duties of the public servant, party official, attorney, or witness.
(B) Whoever violates this section is guilty of intimidation, a felony of the third degree.
(C) For purposes of division (A) of this section, an "unlawful threat" includes a threat that is made directly or indirectly.
(D) A person who violates this section is liable in a civil action to any person harmed by the violation for injury, death, or loss to person or property incurred as a result of the commission of the offense and for reasonable attorney's fees, court costs, and other expenses incurred as a result of prosecuting the civil action commenced under this division. A civil action under this division is not the exclusive remedy of a person who incurs injury, death, or loss to person or property as a result of a violation of this section.
Sec. 2921.05.  (A) No person, purposely and by force or by unlawful threat of harm to any person or property, shall retaliate against because a public servant, a party official, or an attorney or witness who was involved in a civil or criminal action or proceeding because the public servant, party official, attorney, or witness discharged the duties of the public servant, party official, attorney, or witness, shall knowingly do any of the following:
(1) Use force against or make an unlawful threat of harm to any person or property;
(2) Use force against or make an unlawful threat to harm an unborn of the public servant, party official, attorney, or witness.
(B) No person, purposely and by shall knowingly use force against or by make an unlawful threat of harm to any person or property, shall retaliate against the because a victim of a crime because the victim filed or prosecuted criminal charges.
(C) For purposes of divisions (A)(1) and (2) of this section, an "unlawful threat" includes a threat that is made directly or indirectly.
(D) Whoever violates this section is guilty of retaliation, a felony of the third 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, 2921.01, 2921.03, 2921.05, and 2929.04 of the Revised Code are hereby repealed.
Section 3. Section 2921.03 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 88 and Sub. H.B. 644 of the 121st General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composites are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act.
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