The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Sub. H. B. No. 405 As Passed by the HouseAs Passed by the House
129th General Assembly | Regular Session | 2011-2012 |
| |
Representative Rosenberger
Cosponsors:
Representatives Johnson, Landis, Pillich, Bubp, Butler, Milkovich, Yuko, Adams, R., Amstutz, Anielski, Antonio, Ashford, Baker, Barnes, Beck, Blair, Boose, Boyd, Brenner, Buchy, Carney, Celebrezze, Celeste, Cera, Combs, Conditt, Damschroder, Derickson, DeVitis, Dovilla, Driehaus, Duffey, Fedor, Fende, Foley, Gardner, Garland, Gerberry, Gonzales, Goodwin, Grossman, Hackett, Hagan, C., Hagan, R., Hall, Hayes, Henne, Hill, Hottinger, Kozlowski, Letson, Lundy, Lynch, Maag, Mallory, Martin, McGregor, Murray, Newbold, O'Brien, Okey, Patmon, Pelanda, Phillips, Ramos, Reece, Roegner, Ruhl, Scherer, Schuring, Sears, Slaby, M., Smith, Sprague, Stautberg, Stebelton, Terhar, Thompson, Uecker, Wachtmann, Williams, Winburn, Young Speaker Batchelder
A BILL
To amend sections 124.23, 124.26, 3319.085, 3737.881,
3781.10, 5321.04, 5903.10, 5903.11, 5911.07,
5923.12, 5924.01, 5924.02, 5924.03, 5924.06,
5924.07, 5924.08, 5924.09, 5924.10, 5924.11,
5924.13, 5924.14, 5924.15, 5924.16, 5924.17,
5924.18, 5924.19, 5924.20, 5924.22, 5924.23,
5924.24, 5924.25, 5924.26, 5924.27, 5924.28,
5924.29, 5924.30, 5924.31, 5924.32, 5924.33,
5924.34, 5924.35, 5924.36, 5924.37, 5924.38,
5924.39, 5924.41, 5924.42, 5924.43, 5924.44,
5924.45, 5924.46, 5924.47, 5924.48, 5924.49,
5924.50, 5924.51, 5924.52, 5924.54, 5924.56,
5924.57, 5924.58, 5924.59, 5924.60, 5924.63,
5924.72, 5924.73, 5924.74, 5924.75, 5924.76,
5924.77, 5924.78, 5924.82, 5924.83, 5924.84,
5924.85, 5924.86, 5924.87, 5924.88, 5924.89,
5924.90, 5924.91, 5924.92, 5924.93, 5924.94,
5924.95, 5924.96, 5924.97, 5924.98, 5924.103,
5924.108, 5924.109, 5924.111, 5924.113, 5924.115,
5924.128, 5924.131, 5924.132, 5924.133, and
5924.146, to enact new sections 5924.21, 5924.61,
5924.62, 5924.64, 5924.65, 5924.66, 5924.70,
5924.71, and 5924.120 and sections 4743.04,
5924.501, 5924.502, 5924.503, 5924.504, 5924.505,
5924.506, 5924.581, 5924.582, 5924.67, 5924.68,
5924.69, 5924.761, and 5924.1121, and to repeal
sections 5924.04, 5924.12, 5924.21, 5924.61,
5924.62, 5924.64, 5924.65, 5924.66, 5924.70,
5924.71, 5924.99, 5924.100, 5924.101, 5924.102,
5924.104, 5924.105, 5924.106, 5924.110, 5924.114,
5924.118, 5924.119, 5924.120, 5924.122, 5924.1231,
5924.124, 5924.125, 5924.126, 5924.129, 5924.130,
5924.145, and 5924.147 of the Revised Code to
allow extra credit to military veterans and
reserve component members on state civil service
examinations, to provide for the reemployment of
nonteaching school employees following military
service in accordance with federal law, to extend
the period of time within which persons serving in
the Ohio National Guard may meet continuing
education requirements for occupational licenses
and renew their licenses, to require landlords to
observe the rights of tenants who are service
members under federal law, to modify the order of
priority in which veterans may participate in job
training programs, to permit but not require the
use of armories by patriotic and national
organizations, to update references in the Revised
Code to federal statutes relating to the National
Guard, to conform the Ohio Code of Military
Justice to the United States Code of Military
Justice, and to make other changes to the Ohio
Code of Military Justice.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 124.23, 124.26, 3319.085, 3737.881,
3781.10, 5321.04, 5903.10, 5903.11, 5911.07, 5923.12, 5924.01,
5924.02, 5924.03, 5924.06, 5924.07, 5924.08, 5924.09, 5924.10,
5924.11, 5924.13, 5924.14, 5924.15, 5924.16, 5924.17, 5924.18,
5924.19, 5924.20, 5924.22, 5924.23, 5924.24, 5924.25, 5924.26,
5924.27, 5924.28, 5924.29, 5924.30, 5924.31, 5924.32, 5924.33,
5924.34, 5924.35, 5924.36, 5924.37, 5924.38, 5924.39, 5924.41,
5924.42, 5924.43, 5924.44, 5924.45, 5924.46, 5924.47, 5924.48,
5924.49, 5924.50, 5924.51, 5924.52, 5924.54, 5924.56, 5924.57,
5924.58, 5924.59, 5924.60, 5924.63, 5924.72, 5924.73, 5924.74,
5924.75, 5924.76, 5924.77, 5924.78, 5924.82, 5924.83, 5924.84,
5924.85, 5924.86, 5924.87, 5924.88, 5924.89, 5924.90, 5924.91,
5924.92, 5924.93, 5924.94, 5924.95, 5924.96, 5924.97, 5924.98,
5924.103, 5924.108, 5924.109, 5924.111, 5924.113, 5924.115,
5924.128, 5924.131, 5924.132, 5924.133, and 5924.146 be amended
and new sections 5924.21, 5924.61, 5924.62, 5924.64, 5924.65,
5924.66, 5924.70, 5924.71, and 5924.120 and sections 4743.04,
5924.501, 5924.502, 5924.503, 5924.504, 5924.505, 5924.506,
5924.581, 5924.582, 5924.67, 5924.68, 5924.69, 5924.761, and
5924.1121 of the Revised Code be enacted to read as follows:
Sec. 124.23. (A) All applicants for positions and places in
the classified service shall be subject to examination, except for
applicants for positions as professional or certified service and
paraprofessional employees of county boards of developmental
disabilities, who shall be hired in the manner provided in section
124.241 of the Revised Code.
(B) Any examination administered under this section shall be
public and be open to all citizens of the United States and those
persons who have legally declared their intentions of becoming
United States citizens. For examinations administered for
positions in the service of the state, the director of
administrative services or the director's designee may determine
certain limitations as to citizenship, age, experience, education,
health, habit, and moral character.
(C)(1) Any person who has completed service in the uniformed
services, who has been honorably discharged from the uniformed
services or transferred to the reserve with evidence of
satisfactory service, and who is a resident of this state and any
member of the national guard or a reserve component of the armed
forces of the United States, including the Ohio national guard,
who has completed more than one hundred eighty days of active duty
service pursuant to an executive order of the president of the
United States or an act of the congress of the United States may
file with the director a certificate of service or honorable
discharge, and, upon this filing, the person shall receive
additional credit of twenty per cent of the person's total grade
given in the examination in which the person receives a passing
grade.
(2) A member in good standing of a reserve component of the
armed forces of the United States, including the Ohio national
guard, who successfully completes the member's initial entry-level
training shall receive a credit of fifteen per cent of the
person's total grade given in the examination in which the person
receives a passing grade.
(3) As used in this division, "service in the uniformed
services" and "uniformed services" have the same meanings as in
the "Uniformed Services Employment and Reemployment Rights Act of
1994," 108 Stat. 3149, 38 U.S.C.A. 4303.
(D) An examination may include an evaluation of such factors
as education, training, capacity, knowledge, manual dexterity, and
physical or psychological fitness. An examination shall consist of
one or more tests in any combination. Tests may be written, oral,
physical, demonstration of skill, or an evaluation of training and
experiences and shall be designed to fairly test the relative
capacity of the persons examined to discharge the particular
duties of the position for which appointment is sought. Tests may
include structured interviews, assessment centers, work
simulations, examinations of knowledge, skills, and abilities, and
any other acceptable testing methods. If minimum or maximum
requirements are established for any examination, they shall be
specified in the examination announcement.
(E) Except as otherwise provided in sections 124.01 to 124.64
of the Revised Code, when a position in the classified service of
the state is to be filled, an examination shall be administered.
The director of administrative services shall have control of all
examinations administered for positions in the service of the
state and all other examinations the director administers as
provided in section 124.07 of the Revised Code, except as
otherwise provided in sections 124.01 to 124.64 of the Revised
Code. The director shall, by rule adopted under Chapter 119. of
the Revised Code, prescribe the notification method that is to be
used by an appointing authority to notify the director that a
position in the classified service of the state is to be filled.
In addition to the positions described in section 124.30 of the
Revised Code, the director may, with sufficient justification from
the appointing authority, allow the appointing authority to fill
the position by noncompetitive examination. The director shall
establish, by rule adopted under Chapter 119. of the Revised Code,
standards that the director shall use to determine what serves as
sufficient justification from an appointing authority to fill a
position by noncompetitive examination.
(F) No questions in any examination shall relate to political
or religious opinions or affiliations. No credit for seniority,
efficiency, or any other reason shall be added to an applicant's
examination grade unless the applicant achieves at least the
minimum passing grade on the examination without counting that
extra credit.
(G) Except as otherwise provided in sections 124.01 to 124.64
of the Revised Code, the director of administrative services or
the director's designee shall give reasonable notice of the time,
place, and general scope of every competitive examination for
appointment that the director or the director's designee
administers for positions in the classified service of the state.
The director or the director's designee shall post notices via
electronic media of every examination to be conducted for
positions in the classified civil service of the state. The
electronic notice shall be posted on the director's internet site
on the world wide web for a minimum of one week preceding any
examination involved.
Sec. 124.26. From the returns of the examinations, the
director of administrative services or the director's designee
shall prepare an eligible list of the persons whose general
average standing upon examinations for the class or position is
not less than the minimum fixed by the rules of the director, and
who are otherwise eligible. Those persons shall take rank upon the
eligible list as candidates in the order of their relative
excellence as determined by the examination without reference to
priority of the time of examination. If two or more applicants
receive the same mark in an open competitive examination, priority
in the time of filing the application with the director or the
director's designee shall determine the order in which their names
shall be placed on the eligible list, except that applicants
eligible for the veteran's or the reserve component member's
preference under section 124.23 of the Revised Code shall receive
priority in rank on the eligible list over nonveterans and
nonmembers of the reserve component on the list with a rating
equal to that of the veteran or reserve component member. Ties
among veterans or among reserve component members shall be decided
by priority of filing the application.
A tie between a veteran
and a reserve component member shall be decided in favor of the
veteran.
. An eligible list expires upon the filling or closing of the
position. An expired eligible list may be used to fill a position
of the same classification within the same appointing authority
for which the list was created. But, in no event shall an expired
list be used more than one year past its expiration date.
Sec. 3319.085. Any nonteaching school employee who,
subsequent to September 1, 1962, has left, or leaves, the employ
of a board of education for the purpose of entering on extended
active duty in the armed services of the United States or the
auxiliaries thereof, and within eight weeks enters such service
performs service in the uniformed services or service under
section 5923.12 of the Revised Code and who has returned, or
returns, from such that service with an honorable a discharge
under honorable conditions or certificate of is released from
service under section 5923.12 of the Revised Code shall be
re-employed by the board of education of the district in which he
the nonteaching school employee held such the nonteaching school
employee position, under the same type of contract as that which
he last held in such district, if such nonteaching school employee
applies, within ninety days after such discharge, to such board of
education for re-employment. Upon such application, such
nonteaching school employee shall be re-employed at the first of
the next school semester, if such application is made not less
than thirty days prior to the first of such next school semester,
in which case such nonteaching school employee shall be
re-employed the first of the following school semester, unless the
board of education waives the requirement for such thirty-day
period.
For the purposes of seniority and placement on the salary
schedule, years of absence on extended active duty in the armed
services of the United States or the auxiliaries thereof shall not
exceed four, and shall be counted as though school service had
been performed during such time as required by the "Uniformed
Services Employment and Reemployment Rights Act of 1994," 108
Stat. 3149, 38 U.S.C. 4303.
The board of education of this the district in which such the
nonteaching school employee was employed and is re-employed under
this section may suspend the contract of the nonteaching school
employee whose services become unnecessary by reason of the return
of a nonteaching school employee from service in the armed
uniformed services or auxiliaries thereof.
As used in this section, "service in the uniformed services"
and "uniformed services" have the same meanings as in the
"Uniformed Services Employment and Reemployment Rights Act of
1994," 108 Stat. 3149, 38 U.S.C. 4303.
Sec. 3737.881. (A) The fire marshal shall certify
underground storage tank systems installers who meet the standards
for certification established in rules adopted under division
(D)(1) of this section, pass the certification examination
required by this division, and pay the certificate fee established
in rules adopted under division (D)(5) of this section. Any
individual who wishes to obtain certification as an installer
shall apply to the fire marshal on a form prescribed by the fire
marshal. The application shall be accompanied by the application
and examination fees established in rules adopted under division
(D)(5) of this section.
The fire marshal shall prescribe an examination designed to
test the knowledge of applicants for certification as underground
storage tank system installers in the installation, repair,
abandonment, and removal of those systems. The examination shall
also test the applicants' knowledge and understanding of the
requirements and standards established in rules adopted under
sections 3737.88 and 3737.882 of the Revised Code pertaining to
the installation, repair, abandonment, and removal of those
systems.
Installer certifications issued under this division shall be
renewed annually, upon submission of a certification renewal form
prescribed by the fire marshal, provision of proof of successful
completion of continuing education requirements, and payment of
the certification renewal fee established in rules adopted under
division (D)(5) of this section. In addition, the fire marshal may
from time to time prescribe an examination for certification
renewal and may require applicants to pass the examination and pay
the fee established for it in rules adopted under division (D)(5)
of this section.
The fire marshal may, in accordance with Chapter 119. of the
Revised Code, deny, suspend, revoke, or refuse to renew an
installer's certification or renewal thereof if he finds after
finding that any of the following applies:
(1) The applicant for certification or certificate holder
fails to meet the standards for certification or renewal thereof
under this section and rules adopted under it;
(2) The certification was obtained through fraud or
misrepresentation;
(3) The certificate holder recklessly caused or permitted a
person under his the certificate holder's supervision to install,
perform major repairs on site to, abandon, or remove an
underground storage tank system in violation of the performance
standards set forth in rules adopted under section 3737.88 or
3737.882 of the Revised Code.
As used in division (A)(3) of this section, "recklessly" has
the same meaning as in section 2901.22 of the Revised Code.
(B) The fire marshal shall certify persons who sponsor
training programs for underground storage tank system installers
who meet the criteria for certification established in rules
adopted by the fire marshal under division (D)(4) of this section
and pay the certificate fee established in rules adopted under
division (D)(5) of this section. Any person who wishes to obtain
certification to sponsor such a training program shall apply to
the fire marshal on a form prescribed by him the fire marshal.
Training program certificates issued under this division shall
expire annually. Upon submission of a certification renewal
application form prescribed by the fire marshal and payment of the
application and certification renewal fees established in rules
adopted under division (D)(5) of this section, the fire marshal
shall issue a training program renewal certificate to the
applicant.
The fire marshal may, in accordance with Chapter 119. of the
Revised Code, deny an application for, suspend, or revoke a
training program certificate or renewal thereof if he finds or
renewal of a training program certificate after finding that the
training program does not or will not meet the standards for
certification established in rules adopted under division (D)(4)
of this section.
(C) The fire marshal may conduct or cause to be conducted
training programs for underground storage tank systems installers
as he the fire marshal considers to be necessary or appropriate.
The fire marshal is not subject to division (B) of this section
with respect to training programs conducted by employees of the
office of the fire marshal.
(D) The fire marshal shall adopt, and may amend and rescind,
rules doing all of the following:
(1) Defining the activities that constitute supervision over
the installation, performance of major repairs on site to,
abandonment of, and removal of underground storage tank systems;
(2) Establishing standards and procedures for certification
of underground storage tank systems installers;
(3) Establishing standards and procedures for continuing
education for certification renewal, subject to the provisions of
section 5903.12 of the Revised Code relating to active duty
military service;
(4) Establishing standards and procedures for certification
of training programs for installers;
(5) Establishing fees for applications for certifications
under this section, the examinations prescribed under division (A)
of this section, the issuance and renewal of certificates under
divisions (A) and (B) of this section, and attendance at training
programs conducted by the fire marshal under division (C) of this
section. Fees received under this section shall be credited to the
underground storage tank administration fund created in section
3737.02 of the Revised Code and shall be used to defray the costs
of implementing, administering, and enforcing this section and the
rules adopted thereunder, conducting training sessions, and
facilitating prevention of releases.
(6) That are necessary or appropriate for the implementation,
administration, and enforcement of this section.
(E) Nothing in this section or the rules adopted under it
prohibits an owner or operator of an underground storage tank
system from installing, making major repairs on site to,
abandoning, or removing an underground storage tank system under
the supervision of an installer certified under division (A) of
this section who is a full-time or part-time employee of the owner
or operator.
(F) On and after the date one hundred eighty days after the
effective date of this section January 7, 1990, no person shall do
any of the following:
(1) Install, make major repairs on site to, abandon, or
remove an underground storage tank system unless the activity is
performed under the supervision of a qualified individual who
holds a valid installer certificate issued under division (A) of
this section;
(2) Act in the capacity of providing supervision for the
installation of, performance of major repairs on site to,
abandonment of, or removal of an underground storage tank system
unless the person holds a valid installer certificate issued under
division (A) of this section;
(3) Except as provided in division (C) of this section,
sponsor a training program for underground storage tank systems
installers unless the person holds a valid training program
certificate issued under division (B) of this section.
Sec. 3781.10. (A)(1) The board of building standards shall
formulate and adopt rules governing the erection, construction,
repair, alteration, and maintenance of all buildings or classes of
buildings specified in section 3781.06 of the Revised Code,
including land area incidental to those buildings, the
construction of industrialized units, the installation of
equipment, and the standards or requirements for materials used in
connection with those buildings. The board shall incorporate those
rules into separate residential and nonresidential building codes.
The standards shall relate to the conservation of energy and the
safety and sanitation of those buildings.
(2) The rules governing nonresidential buildings are the
lawful minimum requirements specified for those buildings and
industrialized units, except that no rule other than as provided
in division (C) of section 3781.108 of the Revised Code that
specifies a higher requirement than is imposed by any section of
the Revised Code is enforceable. The rules governing residential
buildings are uniform requirements for residential buildings in
any area with a building department certified to enforce the state
residential building code. In no case shall any local code or
regulation differ from the state residential building code unless
that code or regulation addresses subject matter not addressed by
the state residential building code or is adopted pursuant to
section 3781.01 of the Revised Code.
(3) The rules adopted pursuant to this section are complete,
lawful alternatives to any requirements specified for buildings or
industrialized units in any section of the Revised Code. Except as
otherwise provided in division (I) of this section, the board
shall, on its own motion or on application made under sections
3781.12 and 3781.13 of the Revised Code, formulate, propose,
adopt, modify, amend, or repeal the rules to the extent necessary
or desirable to effectuate the purposes of sections 3781.06 to
3781.18 of the Revised Code.
(B) The board shall report to the general assembly proposals
for amendments to existing statutes relating to the purposes
declared in section 3781.06 of the Revised Code that public health
and safety and the development of the arts require and shall
recommend any additional legislation to assist in carrying out
fully, in statutory form, the purposes declared in that section.
The board shall prepare and submit to the general assembly a
summary report of the number, nature, and disposition of the
petitions filed under sections 3781.13 and 3781.14 of the Revised
Code.
(C) On its own motion or on application made under sections
3781.12 and 3781.13 of the Revised Code, and after thorough
testing and evaluation, the board shall determine by rule that any
particular fixture, device, material, process of manufacture,
manufactured unit or component, method of manufacture, system, or
method of construction complies with performance standards adopted
pursuant to section 3781.11 of the Revised Code. The board shall
make its determination with regard to adaptability for safe and
sanitary erection, use, or construction, to that described in any
section of the Revised Code, wherever the use of a fixture,
device, material, method of manufacture, system, or method of
construction described in that section of the Revised Code is
permitted by law. The board shall amend or annul any rule or issue
an authorization for the use of a new material or manufactured
unit on any like application. No department, officer, board, or
commission of the state other than the board of building standards
or the board of building appeals shall permit the use of any
fixture, device, material, method of manufacture, newly designed
product, system, or method of construction at variance with what
is described in any rule the board of building standards adopts or
issues or that is authorized by any section of the Revised Code.
Nothing in this section shall be construed as requiring approval,
by rule, of plans for an industrialized unit that conforms with
the rules the board of building standards adopts pursuant to
section 3781.11 of the Revised Code.
(D) The board shall recommend rules, codes, and standards to
help carry out the purposes of section 3781.06 of the Revised Code
and to help secure uniformity of state administrative rulings and
local legislation and administrative action to the bureau of
workers' compensation, the director of commerce, any other
department, officer, board, or commission of the state, and to
legislative authorities and building departments of counties,
townships, and municipal corporations, and shall recommend that
they audit those recommended rules, codes, and standards by any
appropriate action that they are allowed pursuant to law or the
constitution.
(E)(1) The board shall certify municipal, township, and
county building departments and the personnel of those building
departments, and persons and employees of individuals, firms, or
corporations as described in division (E)(7) of this section to
exercise enforcement authority, to accept and approve plans and
specifications, and to make inspections, pursuant to sections
3781.03, 3791.04, and 4104.43 of the Revised Code.
(2) The board shall certify departments, personnel, and
persons to enforce the state residential building code, to enforce
the nonresidential building code, or to enforce both the
residential and the nonresidential building codes. Any department,
personnel, or person may enforce only the type of building code
for which certified.
(3) The board shall not require a building department, its
personnel, or any persons that it employs to be certified for
residential building code enforcement if that building department
does not enforce the state residential building code. The board
shall specify, in rules adopted pursuant to Chapter 119. of the
Revised Code, the requirements for certification for residential
and nonresidential building code enforcement, which shall be
consistent with this division. The requirements for residential
and nonresidential certification may differ. Except as otherwise
provided in this division, the requirements shall include, but are
not limited to, the satisfactory completion of an initial
examination and, to remain certified, the completion of a
specified number of hours of continuing building code education
within each three-year period following the date of certification
which shall be not less than thirty hours. The rules shall provide
that continuing education credits and certification issued by the
council of American building officials, national model code
organizations, and agencies or entities the board recognizes are
acceptable for purposes of this division. The rules shall specify
requirements that are consistent with the provisions of section
5903.12 of the Revised Code relating to active duty military
service and are compatible, to the extent possible, with
requirements the council of American building officials and
national model code organizations establish.
(4) The board shall establish and collect a certification and
renewal fee for building department personnel, and persons and
employees of persons, firms, or corporations as described in this
section, who are certified pursuant to this division.
(5) Any individual certified pursuant to this division shall
complete the number of hours of continuing building code education
that the board requires or, for failure to do so, forfeit
certification.
(6) This division does not require or authorize the board to
certify personnel of municipal, township, and county building
departments, and persons and employees of persons, firms, or
corporations as described in this section, whose responsibilities
do not include the exercise of enforcement authority, the approval
of plans and specifications, or making inspections under the state
residential and nonresidential building codes.
(7) Enforcement authority for approval of plans and
specifications and enforcement authority for inspections may be
exercised, and plans and specifications may be approved and
inspections may be made on behalf of a municipal corporation,
township, or county, by any of the following who the board of
building standards certifies:
(a) Officers or employees of the municipal corporation,
township, or county;
(b) Persons, or employees of persons, firms, or corporations,
pursuant to a contract to furnish architectural, engineering, or
other services to the municipal corporation, township, or county;
(c) Officers or employees of, and persons under contract
with, a municipal corporation, township, county, health district,
or other political subdivision, pursuant to a contract to furnish
architectural, engineering, or other services.
(8) Municipal, township, and county building departments have
jurisdiction within the meaning of sections 3781.03, 3791.04, and
4104.43 of the Revised Code, only with respect to the types of
buildings and subject matters for which they are certified under
this section.
(9) Certification shall be granted upon application by the
municipal corporation, the board of township trustees, or the
board of county commissioners and approval of that application by
the board of building standards. The application shall set forth:
(a) Whether the certification is requested for residential or
nonresidential buildings, or both;
(b) The number and qualifications of the staff composing the
building department;
(c) The names, addresses, and qualifications of persons,
firms, or corporations contracting to furnish work or services
pursuant to division (E)(7)(b) of this section;
(d) The names of any other municipal corporation, township,
county, health district, or political subdivision under contract
to furnish work or services pursuant to division (E)(7) of this
section;
(e) The proposed budget for the operation of the building
department.
(10) The board of building standards shall adopt rules
governing all of the following:
(a) The certification of building department personnel and
persons and employees of persons, firms, or corporations
exercising authority pursuant to division (E)(7) of this section.
The rules shall disqualify any employee of the department or
person who contracts for services with the department from
performing services for the department when that employee or
person would have to pass upon, inspect, or otherwise exercise
authority over any labor, material, or equipment the employee or
person furnishes for the construction, alteration, or maintenance
of a building or the preparation of working drawings or
specifications for work within the jurisdictional area of the
department. The department shall provide other similarly qualified
personnel to enforce the residential and nonresidential building
codes as they pertain to that work.
(b) The minimum services to be provided by a certified
building department.
(11) The board of building standards may revoke or suspend
certification to enforce the residential and nonresidential
building codes, on petition to the board by any person affected by
that enforcement or approval of plans, or by the board on its own
motion. Hearings shall be held and appeals permitted on any
proceedings for certification or revocation or suspension of
certification in the same manner as provided in section 3781.101
of the Revised Code for other proceedings of the board of building
standards.
(12) Upon certification, and until that authority is revoked,
any county or township building department shall enforce the
residential and nonresidential building codes for which it is
certified without regard to limitation upon the authority of
boards of county commissioners under Chapter 307. of the Revised
Code or boards of township trustees under Chapter 505. of the
Revised Code.
(F) In addition to hearings sections 3781.06 to 3781.18 and
3791.04 of the Revised Code require, the board of building
standards shall make investigations and tests, and require from
other state departments, officers, boards, and commissions
information the board considers necessary or desirable to assist
it in the discharge of any duty or the exercise of any power
mentioned in this section or in sections 3781.06 to 3781.18,
3791.04, and 4104.43 of the Revised Code.
(G) The board shall adopt rules and establish reasonable
fees for the review of all applications submitted where the
applicant applies for authority to use a new material, assembly,
or product of a manufacturing process. The fee shall bear some
reasonable relationship to the cost of the review or testing of
the materials, assembly, or products and for the notification of
approval or disapproval as provided in section 3781.12 of the
Revised Code.
(H) The residential construction advisory committee shall
provide the board with a proposal for a state residential building
code that the committee recommends pursuant to division (D)(1) of
section 4740.14 of the Revised Code. Upon receiving a
recommendation from the committee that is acceptable to the board,
the board shall adopt rules establishing that code as the state
residential building code.
(I)(1) The committee may provide the board with proposed
rules to update or amend the state residential building code that
the committee recommends pursuant to division (E) of section
4740.14 of the Revised Code.
(2) If the board receives a proposed rule to update or amend
the state residential building code as provided in division (I)(1)
of this section, the board either may accept or reject the
proposed rule for incorporation into the residential building
code. If the board does not act to either accept or reject the
proposed rule within ninety days after receiving the proposed rule
from the committee as described in division (I)(1) of this
section, the proposed rule shall become part of the residential
building code.
(J) The board shall cooperate with the director of job and
family services when the director promulgates rules pursuant to
section 5104.05 of the Revised Code regarding safety and
sanitation in type A family day-care homes.
(K) The board shall adopt rules to implement the requirements
of section 3781.108 of the Revised Code.
Sec. 4743.04. (A) The renewal of a license or other
authorization to practice a trade or profession issued under Title
XLVII of the Revised Code is subject to the provisions of section
5903.10 of the Revised Code relating to service in the armed
forces of the United States or the Ohio national guard.
(B) Continuing education requirements applicable to the
licensees under Title XLVII of the Revised Code are subject to the
provisions of section 5903.12 of the Revised Code relating to
active duty military service.
(C) A department, agency, or office of this state or of any
political subdivision of this state that issues a license or
certificate to practice a trade or profession may, pursuant to
rules adopted by the department, agency, or office, issue a
temporary license or certificate to practice the trade or
profession to a person whose spouse is on active military duty in
this state.
Sec. 5321.04. (A) A landlord who is a party to a rental
agreement shall do all of the following:
(1) Comply with the requirements of all applicable building,
housing, health, and safety codes that materially affect health
and safety;
(2) Make all repairs and do whatever is reasonably necessary
to put and keep the premises in a fit and habitable condition;
(3) Keep all common areas of the premises in a safe and
sanitary condition;
(4) Maintain in good and safe working order and condition all
electrical, plumbing, sanitary, heating, ventilating, and air
conditioning fixtures and appliances, and elevators, supplied or
required to be supplied by him the landlord;
(5) When he the landlord is a party to any rental agreements
that cover four or more dwelling units in the same structure,
provide and maintain appropriate receptacles for the removal of
ashes, garbage, rubbish, and other waste incidental to the
occupancy of a dwelling unit, and arrange for their removal;
(6) Supply running water, reasonable amounts of hot water,
and reasonable heat at all times, except where the building that
includes the dwelling unit is not required by law to be equipped
for that purpose, or the dwelling unit is so constructed that heat
or hot water is generated by an installation within the exclusive
control of the tenant and supplied by a direct public utility
connection;
(7) Not abuse the right of access conferred by division (B)
of section 5321.05 of the Revised Code;
(8) Except in the case of emergency or if it is impracticable
to do so, give the tenant reasonable notice of his the landlord's
intent to enter and enter only at reasonable times. Twenty-four
hours is presumed to be a reasonable notice in the absence of
evidence to the contrary.
(9) Promptly commence an action under Chapter 1923. of the
Revised Code, after complying with division (C) of section 5321.17
of the Revised Code, to remove a tenant from particular
residential premises, if the tenant fails to vacate the premises
within three days after the giving of the notice required by that
division and if the landlord has actual knowledge of or has
reasonable cause to believe that the tenant, any person in the
tenant's household, or any person on the premises with the consent
of the tenant previously has or presently is engaged in a
violation as described in division (A)(6)(a)(i) of section 1923.02
of the Revised Code, whether or not the tenant or other person has
been charged with, has pleaded guilty to or been convicted of, or
has been determined to be a delinquent child for an act that, if
committed by an adult, would be a violation as described in that
division. Such actual knowledge or reasonable cause to believe
shall be determined in accordance with that division.
(10) Comply with the rights of tenants under the
Servicemembers Civil Relief Act, 117 Stat. 2835, 50 U.S.C. App.
501.
(B) If the landlord makes an entry in violation of division
(A)(8) of this section, makes a lawful entry in an unreasonable
manner, or makes repeated demands for entry otherwise lawful that
have the effect of harassing the tenant, the tenant may recover
actual damages resulting from the entry or demands, obtain
injunctive relief to prevent the recurrence of the conduct, and
obtain a judgment for reasonable attorney's fees, or may terminate
the rental agreement.
Sec. 5903.10. Any (A) A holder of an expired license or
certificate from this state or any political subdivision or agency
of the state to practice a trade or profession, whose license or
certificate was not renewed because of the holder's service in the
armed forces of the United States, or in the national guard or in
a reserve component, shall, upon presentation of satisfactory
evidence of honorable discharge or separation under honorable
conditions therefrom within six months of such discharge or
separation, be granted a renewal of said the license or
certificate by the issuing board or authority at the usual cost
without penalty and without re-examination if not otherwise
disqualified because of mental or physical disability and if
either of the following applies:
(1) The license or certificate was not renewed because of the
holder's service in the armed forces of the United States or a
reserve component of the armed forces of the United States,
including the Ohio national guard.
(2) The license or certificate was not renewed because the
holder's spouse served in the armed forces of the United States or
a reserved component of the armed forces of the United States,
including the Ohio national guard, and the service resulted in the
holder's absence from this state.
(B) A renewal shall not be granted under division (A) of this
section unless the holder or the holder's spouse, whichever is
applicable, has presented satisfactory evidence of the service
member's discharge under honorable conditions or release under
honorable conditions from active duty or national guard duty
within six months after the discharge or release.
Sec. 5903.11. (A) Any federally funded employment and
training program administered by any state agency including, but
not limited to, the "Job Training Partnership Workforce Investment
Act of 1998," 96 112 Stat. 1322 (1982) 936, codified in scattered
sections of 29 U.S.C.A. 1501, as amended, shall include a veteran
priority system to provide maximum employment and training
opportunities to veterans and
other eligible persons within each
targeted group as established by federal law and state and federal
policy in the service area. Disabled veterans, veterans of the
Vietnam era, other veterans, and other eligible persons shall
receive preference over nonveterans within each targeted group in
the provision of employment and training services available
through these programs as required by this section.
(B) Each state agency shall refer qualified applicants to job
openings and training opportunities in programs described in
division (A) of this section in the following order of priority:
(1) Special disabled veterans;
(2) Veterans of the Vietnam era;
(5) Other eligible persons;
(C) Each state agency providing employment and training
services to veterans and other eligible persons under programs
described in division (A) of this section shall submit an annual
written report to the speaker of the house of representatives and
the president of the senate on the services that it provides to
veterans and other eligible persons. Each such agency shall report
separately on all entitlement programs, employment or training
programs, and any other programs that it provides to each class of
persons described in divisions (B)(1) to (6) of this section. Each
such agency shall also report on action taken to ensure compliance
with statutory requirements. Compliance and reporting procedures
shall be in accordance with the reporting procedures then in
effect for all employment and training programs described in
division (A) of this section, with the addition of veterans as a
separate reporting module.
(D) All state agencies that administer federally funded
employment and training programs described in division (A) of this
section for veterans and other eligible persons shall do all of
the following:
(1) Ensure that veterans are treated with courtesy and
respect at all state governmental facilities;
(2) Give priority in referral to jobs to qualified veterans
and other eligible persons;
(3) Give priority in referral to and enrollment in training
programs to qualified veterans and other eligible persons;
(4) Give preferential treatment to special disabled veterans
in the provision of all needed state services;
(5) Provide information and effective referral assistance to
veterans and other eligible persons regarding needed benefits and
services that may be obtained through other agencies.
(E) As used in this section:
(1) "Special disabled veteran" means a veteran who is
entitled to, or who but for the receipt of military pay would be
entitled to, compensation under any law administered by the
department of veterans affairs for a disability rated at thirty
per cent or more or a person who was discharged or released from
active duty because of a service-connected disability.
(2) "Veteran of the Vietnam era" means an eligible veteran
who served on active duty for a period of more than one hundred
eighty days, any part of which occurred from August 5, 1964,
through May 7, 1975, and was discharged or released therefrom with
other than a dishonorable discharge or a person who was discharged
or released from active duty for a service-connected disability if
any part of the active duty was performed from August 5, 1964,
through May 7, 1975.
(3) "Disabled veteran" means a veteran who is entitled to, or
who but for the receipt of military retirement pay would be
entitled to compensation, under any law administered by the
department of veterans affairs and who is not a special disabled
veteran.
(4) "Eligible veteran" means a person who served on active
duty for more than one hundred eighty days and was discharged or
released from active duty with other than a dishonorable discharge
or a person who was discharged or released from active duty
because of a service-connected disability.
(5) "Other eligible person" means one of the following:
(a) The spouse of any person who died of a service-connected
disability;
(b) The spouse of any member of the armed forces serving on
active duty who at the time of the spouse's application for
assistance under any program described in division (A) of this
section is listed pursuant to the "Act of September 6, 1966," 80
Stat. 629, 37 U.S.C.A. 556, and the regulations issued pursuant
thereto, as having been in one or more of the following categories
for a total of ninety or more days:
(ii) Captured in line of duty by a hostile force;
(iii) Forcibly detained or interned in line of duty by a
foreign government or power.
(c) The spouse of any person who has a total disability
permanent in nature resulting from a service-connected disability
or the spouse of a veteran who died while such a disability was in
existence.
(6) "Veteran" means either of the following:
(a) Any person who was a member of the armed forces of the
United States for a period of one hundred eighty days or more or a
person who was discharged or released from active duty because of
a service-connected disability;
(b) A person who served as a member of the United States
merchant marine and to whom either of the following applies:
(i) The person has an honorable report of separation from
active duty military service, form DD214 or DD215.
(ii) The person served in the United States merchant marine
between December 7, 1941, and December 31, 1946, and died on
active duty while serving in a war zone during that period of
service.
(7) "Armed forces of the United States" means the army, air
force, navy, marine corps, coast guard, and any other military
service branch that is designated by congress as a part of the
armed forces of the United States.
(8) "Employment program" means a program which provides
referral of individuals to employer job openings in the federal,
state, or private sector.
(9) "Training program" means any program that upgrades the
employability of qualified applicants.
(10) "Entitlement program" means any program that enlists
specific criteria in determining eligibility, including but not
limited to the existence in special segments of the general
population of specific financial needs.
(11) "Targeted group" means a group of persons designated by
federal law or regulations or by state law to receive special
assistance under an employment and training program described in
division (A) of this section.
(12) "United States merchant marine" includes the United
States army transport service and the United States naval
transport service.
Sec. 5911.07. The armories erected by the state are for the
use of the organized militia; but in each armory there shall
may
be provided and maintained, except as provided in this section, a
suitable room including heating, lighting, and janitor services,
for the free use of the patriotic and national organizations known
as the women's relief corps, sons of veterans, sons of veterans'
auxiliary, daughters of veterans, united Spanish war veterans,
auxiliary united Spanish war veterans, veterans of foreign wars of
the United States, veteran organizations of World War I and World
War II, army and navy union of the United States, and honorably
retired officers of the Ohio national guard, Ohio military
reserve, and Ohio naval militia chartered under part B of subtitle
II of Title 36 of the United States Code, unless such rooms are
already provided by the erection of a county memorial building or
otherwise by the state, or by the county, township, or municipal
corporation. This section does not require a separate room to be
maintained for each organization. The room provided in this
section may be used for military training when not in actual use
by one of the aforenamed organizations. This section applies only
during the time that such armory is being used by an active
military organization or a unit of the organized militia.
Sec. 5923.12. When ordered to state active duty by the
governor, for which duty federal basic pay and allowances are not
authorized, members of the organized militia of Ohio shall receive
the same pay and allowances for each day's service as is provided
for commissioned officers, warrant officers, noncommissioned
officers, and enlisted personnel of like grade and longevity in
the armed forces of the United States, together with the necessary
transportation, housing, and subsistence allowances as prescribed
by the United States department of defense pay manual, or an
amount not less than seventy-five dollars per day as base pay for
each day's duty performed, whichever is greater.
When ordered by the governor to perform training or duty
under this section or section 5919.29 of the Revised Code, members
of the Ohio national guard shall have the protections afforded to
persons on federal active duty by "The Soldiers and Sailors
Servicemembers Civil Relief Act of 1940," 54 117 Stat. 1178 2835,
50 App. U.S.C.A. App. 501-548 and 560-591.
Sec. 5924.01. As used in Chapter 5924. of the Revised Code
unless the context otherwise requires:
(A) "Organized militia" means the Ohio national guard, the
Ohio naval militia, and the Ohio military reserve.
(B) "Officer" means commissioned or warrant officer.
(C) "Commissioned officer" includes a commissioned warrant
officer.
(D) "Commanding officer" includes only commissioned or
warrant officers in command of a unit.
(E) "Superior commissioned officer" means a commissioned
officer superior in rank or command.
(F) "Enlisted member" means a person in an enlisted grade.
(G) "Grade" means a step or degree, in a graduated scale of
office or military rank, that is established and designated as a
grade by law or regulation.
(H) "Rank" means the order of precedence among members of the
armed forces.
(I) "Active state State active duty" means full-time duty in
the active military service of the state under an order a
proclamation of the governor issued pursuant to authority vested
in him the governor by law, and while going to and returning from
such duty.
(J) "Duty status other than active state active duty" means
any other types of duty and while going to and returning from such
duty.
(K) "Military court" means a court-martial, a court of
inquiry, or a provost court.
(L) "Military judge" means an official of a general or
special court-martial who is a commissioned officer, who has been
duly certified to be qualified for duty as a military judge by the
state judge advocate, and who has been properly detailed in
accordance with section 5924.26 of the Revised Code.
(M) "Law specialist" means a commissioned officer of the
organized naval militia of the state designated for special duty.
(N) "Legal officer" means any commissioned officer of the
organized naval militia of the state designated to perform legal
duties for a command.
(O) "State judge advocate" means the commissioned officer
responsible for supervising the administration of the military
justice in the organized militia.
(P) "Accuser" means a person who reports an offense subject
to trial by court-martial and who signs and swears to charges, any
person who directs that charges nominally be signed and sworn to
by another, and or any other person who has an interest other than
an official interest in the prosecution of the accused.
(Q) "Military" refers to any or all of the armed forces.
(R) "Convening authority" includes, in addition to the person
who convened the court, a commissioned officer commanding for the
time being, or a successor in command.
(S) "May" is used in a permissive sense. The words "no person
may ............" mean that no person is required, authorized, or
permitted to do the act prescribed.
(T) "Shall" is used in an imperative sense.
(U) "Code" means the Ohio code of military justice, as set
forth in Chapter 5924. of the Revised Code.
(V) "Trial counsel" means the prosecuting attorney in a
general or special court-martial.
(W) "Detention facility" means any place that is owned or
operated by a municipal corporation, by a county, or by one or
more municipal corporations, counties, or both and that is used
for the confinement of persons charged with or convicted of any
crime in this state or another state or under the laws of the
United States.
(X) "Examiner" has the same meaning as in division (A)(2)(a)
of section 2945.37 of the Revised Code.
(Y) "Nonsecured status," "unsupervised, off-grounds
movement," "trial visit," "conditional release," and "licensed
clinical psychologist" have the same meanings as in section
2945.37 of the Revised Code.
Sec. 5924.02. The following persons who are not in federal
service are subject to this code:
(A) Members of the organized militia, including Ohio national
guard dual-status technicians during their normal duty hours;
(B) Persons who have been placed on the state reserve list or
the state retired list pursuant to section 5913.07 or 5919.13 of
the Revised Code;
(C) All other persons lawfully ordered to duty in or with the
organized militia, from the dates they are required by the terms
of the order or other directive to obey the same order or
directive, including any time during which they are going to or
returning from duty in the organized militia.
Sec. 5924.03. (A) Each person discharged from the organized
militia who is later charged with having fraudulently obtained his
the discharge is, subject to section 5924.43 of the Revised Code,
subject to trial by court-martial on that charge and is, after
apprehension, subject to this code while in the custody of the
military for that trial. Upon conviction of that charge he the
person is subject to trial by court-martial for all offenses under
this code committed before the fraudulent charge.
(B) No person who has deserted from the organized militia may
be relieved from amenability to the jurisdiction of this code by
virtue of a separation from any later period of service.
Sec. 5924.06. (A) The governor, on the recommendation of the
adjutant general, shall appoint an officer of the organized
militia Ohio national guard as state judge advocate, who. The
officer shall be a member in good standing of the bar of the
supreme court of this state and shall have been a member of the
bar of the state and a member of the organized militia for at
least five years be eligible to be recognized as a colonel under
regulations prescribed by the national guard bureau.
(B) The adjutant general may shall appoint as many assistant
state judge advocates
as he shall deem necessary, which assistant
state judge and legal officers on the recommendation of the state
judge advocate. Judge advocates and legal officers shall be
officers of the organized militia and members in good standing of
the bar of the this state.
(C) The state judge advocate or his assistants subordinate
judge advocates shall make frequent inspections in the field in
supervision of the administration of military justice.
(D) The provisions of section 109.02 of the Revised Code
shall not be a restriction upon the appointment and duties as
provided in this section.
(E) Convening authorities shall at all times communicate
directly with their staff judge advocates or legal officers in
matters relating to the administration of military justice; and
the. A staff judge advocate or legal officer of any a command is
entitled to communicate directly with the any staff judge advocate
or legal officer of a superior or subordinate command, or with the
state judge advocate.
(F)(E) No person who has acted as member, military judge,
trial counsel, assistant trial counsel, defense counsel, assistant
defense counsel, or investigating officer, or who has been a
witness for either the prosecution or defense, in any case may
later act as staff judge advocate or legal officer to any
reviewing authority upon the same case.
Sec. 5924.07. (A) Apprehension is the taking of a person
into custody.
(B) Any person authorized by this code, or by regulations
issued pursuant
thereto to this code, to apprehend persons subject
to this code, any marshal of a court-martial appointed pursuant to
the provisions of this code, and any peace officer authorized to
do so by law may do so upon reasonable belief that an offense has
been committed and that the person apprehended committed it.
(C) Commissioned officers, warrant officers, petty officers,
and noncommissioned officers have authority may take reasonable
action to quell quarrels, frays, and disorders among persons
subject to this code and to apprehend persons subject to this code
who take part therein.
(D) A person subject to this code may be apprehended in the
person's home, with the assistance of a local law enforcement
agency, only upon probable cause to believe that the person is
legally subject to apprehension and that the person is or will be
present to be apprehended.
Sec. 5924.08. Any civil A peace officer having authority to
apprehend offenders under the laws of the United States, or of a
state, territory, commonwealth, or possession, or the District of
Columbia may summarily apprehend a deserter from the organized
militia and deliver him the deserter into the custody of the
organized militia. If an offender is apprehended outside the
state, his return to the area must be in accordance with normal
extradition procedures, or reciprocal agreement.
Sec. 5924.09. (A) Arrest is the restraint of a person by an
oral or written order, not imposed as a punishment for an offense,
directing him the person to remain within certain specified
limits. Confinement is the physical restraint of a person that is
imposed by order of competent authority and deprives the person of
freedom pending disposition of criminal charges.
(B) An enlisted member may be ordered into arrest or
confinement by any
commissioned commanding officer by an order,
oral or written, delivered in person or through other persons
subject to this code or through any person authorized by this code
to apprehend persons. A commanding officer may authorize warrant
officers, petty officers, or noncommissioned officers to order
enlisted members of his the commanding officer's command or
enlisted members subject to his
the commanding officer's authority
into arrest or confinement.
(C) A commissioned officer or a warrant officer may be
ordered apprehended or into arrest or confinement only by a
commanding officer to whose authority
he the commissioned officer
or warrant officer is subject, by an order, oral or written,
delivered in person or by another commissioned officer. The
authority to order such persons apprehended or into arrest or
confinement may not be delegated.
(D) No person may be ordered apprehended or into arrest or
confinement except for probable cause.
(E) Nothing in this section shall be construed to limit the
authority of persons authorized to apprehend offenders to secure
the custody of an alleged offender until proper authority may be
notified.
Sec. 5924.10. (A) Any person subject to this code charged
with an offense under this code shall be ordered into arrest or
confinement, as circumstances may require; but when charged only
with an offense normally tried by a summary court-martial, such
person shall not ordinarily be placed into confinement. When any
person subject to this code is placed into arrest or confinement
prior to trial, immediate steps shall be taken to inform him the
person shall be informed within seventy-two hours of the specific
wrong of which he the person is accused and to try him or to
dismiss the charges and release him of the person's rights under
this code.
(B) Confinement other than in a guard house, whether before,
during, or after trial by a military court, shall be
executed, to
the maximum extent practicable, in civil jails or prisons
designated by the governor or by such person as he may authorize
to act like facilities. An order that an accused person be placed
in pretrial confinement shall be reviewed by a military judge
within seven days and if confirmed may be reviewed after that
confirmation only on motion.
Sec. 5924.11. (A) No provost marshal, commander of a guard,
master at arms, warden sheriff, keeper, or officer of a city or
county jail or any other jail or prison designated under section
5924.10 of the Revised Code, detention facility may refuse to
receive or keep any prisoner committed to his
the sheriff's,
keeper's, or officer's charge, when the committing person
furnishes a statement, signed by him the committing person, of the
offense charged against the prisoner.
(B) Every commander of a guard, master at arms A sheriff,
warden, keeper, or officer of a city or county jail or of any
other jail or prison designated under section 5924.10 of the
Revised Code, detention facility to whose charge a prisoner is
committed, shall, within twenty-four hours after that commitment
or as soon as he is relieved from guard, report to the commanding
officer of the prisoner the name of the prisoner, the offense
charged against
him the prisoner, and the name of the person who
ordered or authorized the commitment.
Sec. 5924.13. Subject to section 5924.57 of the Revised
Code, no No person, while being held for or after trial or the
result of trial, may be subjected to punishment or penalty other
than arrest or confinement upon the charges pending against
him,
nor shall the person. The arrest or confinement imposed upon
him
the person shall not be any more rigorous than the circumstances
require to insure his the person's presence, but he. The person
may be subjected to minor punishment during that period for
infractions of discipline, and may be required to perform such
labor as may be necessary for the policing and sanitation of his
living quarters and messing facilities and the area immediately
adjacent thereto.
Sec. 5924.14. (A) Under such regulations as may be
prescribed under this code, a person on active state active duty
subject to this code or duty under Title 32 of the United States
Code who is accused of an offense against civil authority may be
delivered, upon request, to the civil authority for trail trial.
(B) When delivery under this section is made to any civil
authority of a person undergoing sentence of a court-martial, the
delivery, if followed by conviction in a civil tribunal,
interrupts the execution of the sentence of the court-martial, and
the offender after having answered to the civil authorities for
his the offender's offense shall, upon the request of competent
military authority, be returned to military custody for the
completion of his the offender's sentence.
Sec. 5924.15. (A) Under such regulations as the governor
adjutant general may prescribe, and under such additional
regulations as may be prescribed by the adjutant general of Ohio,
limitations may be placed on the powers granted by this section
with respect to the kind and amount of punishment authorized, the
categories of commanding officers and warrant officers exercising
command authorized to exercise those powers, the applicability of
this section to an accused who demands trial by court-martial, and
the kinds of courts-martial to which the case may be referred upon
such a demand. However, except in the case of a member attached
to, or embarked in a vessel, punishment may not be imposed upon
any person subject to this code under this section a member of the
organized militia if such person the member has, before the
imposition of such the punishment, demanded trial by court-martial
in lieu of
such the punishment. Under similar regulations, rules
may be prescribed with respect to the suspension of punishments
authorized hereunder under this section. If authorized by
regulations prescribed under this section, the governor or a
general officer or officer of flag rank in command may delegate
the powers of the governor or general officer under this section
to a principal assistant. In all proceedings, the accused shall be
allowed a reasonable period of time, normally not exceeding
forty-eight hours, to reply to the notification of intent to
impose punishment under this section.
(B) Subject to the foregoing division (A) of this section,
any commanding officer, and for the purposes of this section the
adjutant general of Ohio, may, in addition to or in lieu of
admonition or reprimand, impose one or more of the following
disciplinary punishments for minor offenses without the
intervention of a court-martial:
(A)(1) Upon officers of the commanding officer's command, any
of the following:
(1)(a) Restriction to certain specified limits, with or
without suspension from duty, for not more than thirty consecutive
days;
(2)(b) If imposed by the governor, the adjutant general, the
commanding an officer
of a force of the organized militia
exercising general court-martial jurisdiction, a general officer,
or the commanding general of a division flag officer, any of the
following:
(a)(i) Arrest in quarters for not more than thirty
consecutive days;
(b) Fine or forfeiture (ii) Forfeiture of not more than
one-half of one month's pay per month for two months, or the sum a
fine of one not more than two hundred fifty dollars, whichever is
greater;
(c)(iii) Restriction to certain specified limits, with or
without suspension from duty, for not more than sixty consecutive
days;
(d) Detention of not more than one-half of one month's pay
per month for three months, or the sum of two hundred twenty-five
dollars, whichever is greater.
(B)(2) Upon other military personnel of the commanding
officer's command, any of the following:
(1) If imposed upon a person attached to or embarked in a
vessel, confinement on bread and water or diminished rations for
not more than three consecutive days;
(2)(a) Correctional custody for not more than seven
consecutive days;
(3) Fine or forfeiture (b) Forfeiture of not more than seven
days' pay, or the sum of twenty-five dollars, whichever is greater
a fine of not more than one-quarter of one month's actual pay;
(4)(c) Reduction to the next inferior pay grade, if the grade
from which the service member demoted is within the promotion
authority of the officer imposing the reduction or any officer
subordinate to the one who imposes the reduction;
(5)(d) Extra duties, including fatigue or other duties, for
not more than fourteen consecutive days or for a total of thirty
nonconsecutive days;
(6)(e) Restriction to certain specified limits, with or
without suspension from duty, for not more than fourteen
consecutive days;
(7) Detention of not more than fourteen days' pay, or the sum
of fifty dollars, whichever is greater;
(8)(f) If imposed by an officer of the grade of major or
lieutenant commander, or above., any of the following:
(a)(i) The punishment authorized under division (B)(1)(2)(a)
of this section;
(b)(ii) Correctional custody for not more than thirty
consecutive days;
(c) Fine or forfeiture (iii) Forfeiture of not more than
one-half of one month's pay per month for two months, or the sum
of fifty dollars, whichever is greater
a fine of not more than
one-half of one month's actual pay for two months;
(d)(iv) Reduction to the lowest or any intermediate pay
grade, if the grade from which demoted is within the promotion
authority of the officer imposing the reduction or any officer
subordinate to the one who imposes the reduction, but an enlisted
member in pay grade above E-4 may not be reduced more than two
one pay
grades grade;
(e)(v) Extra duties, including fatigue or other duties, for
not more than forty-five consecutive days, which need not be
consecutive, and for not more than two hours per day;
(f)(vi) Restriction to certain specified limits, with or
without suspension from duty, for not more than sixty consecutive
days, which need not be consecutive;
(g) Detention of not more than one-half of one month's pay
per month for three months, or the sum of seventy-five dollars,
whichever is greater.
Detention of pay shall be for a stated period of not more
than one year, but if the offender's term of service expires
earlier, the detention shall terminate upon that expiration. No
two or more of the punishments of arrest in quarters, confinement
on bread and water or diminished rations, correctional custody,
extra duties, and restriction may be combined to run consecutively
in the maximum amount imposable for each. Whenever any of those
punishments are combined to run consecutively, there must be an
apportionment. In addition, forfeiture of pay may not be combined
with detention of pay without an apportionment. For the purposes
of this section "correctional custody" is the physical restraint
of a person during duty or nonduty hours and may include extra
duties, fatigue duties, or hard labor. If practicable,
correctional custody will not be served in immediate association
with persons awaiting trial or held in confinement pursuant to
trial by court-martial or civilian court.
(C) No two or more of the punishments of arrest in quarters,
correctional custody, extra duties, and restriction may be
combined to run consecutively in the maximum amount imposable for
each. If any of those punishments are combined to run
consecutively, there must be apportionment. For the purposes of
this section, "correctional custody" means the physical restraint
of a person during duty or nonduty hours and may include extra
duties, fatigue duties, or hard labor.
(D) An officer in charge may impose upon enlisted members
assigned to the unit of which the officer is in charge such any of
the punishments authorized under divisions
(B)(1)(A)(2)(a) to
(B)(7)(f) of this section, as that the governor or adjutant
general may specifically prescribe by regulation.
(D)(E) The officer who imposes the punishment authorized in
divisions (A) or division (B) of this section, or the officer's
successor in command, may, at any time, suspend probationally any
part or amount of the unexecuted punishment imposed and may
suspend probationally a reduction in grade or a forfeiture or fine
imposed under
divisions (A) or division (B) of this section,
whether or not executed. In addition, the officer who imposed the
punishment may, at any time, remit or mitigate any part or amount
of the unexecuted punishment imposed and may set aside in whole or
in part the punishment, whether executed or unexecuted, and
restore all rights, privileges, and property affected. The officer
who imposed the punishment may also mitigate reduction in grade to
forfeiture or detention of pay or a fine. When mitigating:
(1) Arrest arrest in quarters to restriction;
(2) Confinement on bread and water or diminished rations to
correctional custody;
(3) Correctional custody or confinement on bread and water or
diminished rations to extra duties or restriction, or both; or
(4) Extra extra duties to restriction;
the, the mitigated punishment shall not be for a greater period
than the punishment mitigated. When mitigating forfeiture of pay
to detention of pay, the amount of the detention shall not be
greater than the amount of the forfeiture. When mitigating
reduction in grade to fine or forfeiture or detention of pay, the
amount of the fine or forfeiture or detention shall not be greater
than the amount that could have been imposed initially under this
section by the officer who imposed the punishment mitigated.
(E)(F) A person punished under this section who considers the
punishment unjust or disproportionate to the offense may, through
the proper channel, appeal to the next superior authority within
seven calendar days. The appeal shall be promptly forwarded and
decided, but the person punished may in the meantime be required
to undergo the punishment adjudged. The superior authority may
exercise the same powers with respect to the punishment imposed as
may be exercised under division (D)(E) of this section by the
officer who imposed the punishment. Before acting on an appeal
from a punishment of:
(1) Arrest in quarters for more than seven days;
(2) Correctional custody for more than seven days;
(3) Forfeiture of more than seven days' pay;
(4) Reduction of one or more pay grades from the fourth or a
higher pay grade;
(5) Extra duties for more than fourteen days;
(6) Restriction for more than fourteen days; or
(7) Detention of more than fourteen days' pay;
any of the following, the authority who is to act on the appeal
shall refer the case to a judge advocate or legal officer of the
Ohio organized militia for consideration and advice, and may
so
also refer the case upon appeal from any punishment imposed under
divisions (A) or division (B) of this section:
(1) Arrest in quarters for more than seven days;
(2) Correctional custody for more than seven days;
(3) Fine or forfeiture of more than seven days' pay;
(4) Reduction of one or more pay grades from the fourth or a
higher pay grade;
(5) Extra duties for more than fourteen days.
(F)(G) The imposition and enforcement of disciplinary
punishment under this section for any act or omission is not a bar
to trial by court-martial for a serious crime or offense growing
out of the same act or omission, and not properly punishable under
this section; but the. The fact that a disciplinary punishment has
been enforced may be shown by the accused upon trial, and, when so
shown, shall be considered in determining the measure of
punishment to be adjudged in the event of a finding of guilty.
(G)(H) The governor or the adjutant general may, by
regulation, prescribe the form of records to be kept of
proceedings under this section and may also prescribe that certain
categories of those proceedings shall be in writing.
(H) The punishments imposed pursuant to this section, except
fine and forfeiture of pay, shall not extend beyond the
termination of the duty status of the individual punished.
(I) A commanding officer may delegate authority to make a
reduction in pay grade under division (B)(2)(c) of this section to
the commanding officer's executive officer, deputy commander, vice
commander, or principal assistant.
Sec. 5924.16. (A) In the organized militia not in federal
service, there are general, special, and summary courts-martial
constituted like similar courts of the army and the air force.
They have the jurisdiction and powers, except as to punishments,
and shall follow the forms and procedures provided for those
courts. General and special courts-martial are courts of record
with original jurisdiction.
(B) The constitutions of the three kinds of courts-martial
are:
(1) General courts-martial, consisting A general
court-martial consists of one of the following:
(A)(1) A military judge and not less fewer than five members;
or
(B)(2) Only a military judge, if, before the court is
assembled, the accused, knowing the identity of the military judge
and after consultation with defense counsel, requests in writing a
court composed only of a military judge and the military judge
approves;
(2) Special courts-martial, consisting.
(C) A special court-martial consists of one of the following:
(A) not less than three (1) Three or more members; or
(B)(2) A military judge and not less fewer than three
members; or
(C)(3) Only a military judge, if one has been detailed to the
court, and the accused so requests in writing under the same
conditions as those prescribed in division (B)(1)(b) of this
section;
(3) Summary courts-martial, consisting before the court is
assembled the accused, knowing the identity of the military judge
and after consultation with defense counsel, requests in writing a
court composed only of a military judge and the military judge
approves.
(D) A summary court-martial consists of one commissioned
officer in the grade of captain or above.
Sec. 5924.17. Each force of the organized militia The Ohio
national guard has court-martial jurisdiction over all persons
subject to this code. The exercise of jurisdiction by one force
the Ohio national guard over personnel of another force element of
the organized militia shall be in accordance with regulations
prescribed by the governor adjutant general.
Sec. 5924.18. (A) Subject to section 5924.17 of the Revised
Code, general courts-martial have jurisdiction to try persons
subject to this code for any offense made punishable by this code
and may, under such any limitations as that the governor may
prescribe, adjudge any punishment not forbidden by this code,
including the penalty of death when specifically authorized by
this code. General courts-martial also have jurisdiction to try
any person who by the law of war is subject to trial by a military
tribunal and may adjudge any punishment permitted by the law of
war. A general court-martial of the kind specified in division
(B)(1)(b) of section 5924.16 of the Revised Code does not have
jurisdiction to try any person for any offense for which the death
penalty may be adjudged unless the case has been previously
referred to trial as a noncapital case of the following
punishments:
(1) A fine of not more than two thousand five hundred dollars
or confinement for not more than three hundred sixty-five days;
(2) Forfeiture of all pay and allowances;
(4) Dismissal and dishonorable discharge or a bad conduct
discharge;
(5) Reduction of a noncommissioned officer to the lowest or
any intermediate rank;
(6) Any combination of the foregoing punishments.
(B) A general court-martial may not adjudge dismissal or
dishonorable discharge unless a complete record of the proceedings
and testimony is made, counsel having the qualifications
prescribed under division (B) of section 5924.27 of the Revised
Code is detailed to represent the accused, and a military judge is
detailed to the trial.
Sec. 5924.19. Subject to section 5924.17 of the Revised
Code, special courts-martial shall have jurisdiction to try
persons subject to this code for any non-capital offense for which
they may be punished under this code. A special court-martial may
adjudge any punishment a general court-martial may adjudge, except
death, dishonorable discharge, dismissal, confinement for that a
special court-martial may not impose a fine of more than six
months, hard labor without one thousand dollars, confinement for
more than three months, forfeiture of pay exceeding two-thirds pay
per month, or forfeiture of pay for more than six months one
hundred eighty days for a single offense, or dismissal or
dishonorable discharge. A bad-conduct discharge
special
court-martial may not be adjudged adjudge a bad-conduct discharge
unless a complete record of the proceedings and testimony has been
is made, counsel having the qualifications prescribed under
division (B) of section 5924.27 of the Revised Code was is
detailed to represent the accused, and a military judge was is
detailed to the trial. In any case in which a military judge was
not detailed to the trial, except when due to physical conditions
or military exigencies, the convening authority shall make a
written statement, to be appended to the record, stating the
reason or reasons a military judge could not be detailed.
Sec. 5924.20. (A) Subject to section 5924.17 of the Revised
Code, summary courts-martial have jurisdiction to try persons
subject to this code, except officers and warrant officers, for
any offense made punishable by this code.
(B) No person with respect to whom summary courts-martial
have jurisdiction may be brought to trial before a summary
court-martial if he the person objects thereto to being brought to
trial before a summary court-martial. If objection to trial by
summary court-martial is made by an accused, trial may be ordered
by special or general court-martial, as may be appropriate.
(C) Summary courts-martial may, under such limitations as the
governor may prescribe, adjudge punishment of a fine not forbidden
by this code, except death, dismissal, dishonorable or bad conduct
discharge, exceeding five hundred dollars, confinement for not
more than one month, hard labor without confinement for more than
forty-five days, restriction to specified limits for more than two
months, or thirty days, forfeiture of not more than two-thirds of
one month's pay, and reduction to the lowest or any intermediate
pay grade. For enlisted members in pay grade above E-4, summary
courts-martial may not adjudge confinement or reduction except to
the next inferior pay grade.
Sec. 5924.21. The provisions of this code that confer
jurisdiction on courts-martial do not deprive military
commissions, provost courts, other military tribunals, or state or
federal courts of concurrent jurisdiction with respect to
offenders or offenses that by statute or by the law of war may be
tried by military commissions, provost courts, other military
tribunals, or state or federal courts.
Sec. 5924.22. In the organized militia not in federal
service, the governor, adjutant general, assistant adjutant
general for army, or assistant adjutant general for air may
convene general courts-martial may be convened by the governor.
Sec. 5924.23. In the organized militia not in federal
service, the commanding officer of a garrison, fort, post, camp,
air base, auxiliary air base, or other place where troops are on
duty, or of a division, brigade, regiment, battle group, wing,
group, detached battalion, separate squadron, or other detached
command, any commander authorized by regulation in the grade of
colonel or a higher grade may convene special courts-martial.
Special courts-martial may also be convened by superior authority.
When any such officer is an accuser, the court shall be convened
by superior competent authority.
Sec. 5924.24. (A) In the organized militia not in federal
service, the commanding officer of a garrison, fort, post, camp,
air base, auxiliary air base, or other place where troops are on
duty, or of a division, brigade, regiment, battle group, wing,
group, detached battalion, detached squadron, detached company, or
other detachment, any commander authorized by regulation in the
grade of lieutenant colonel or a higher grade may convene a
summary court-martial
consisting of one commissioned officer. The
proceedings shall be informal.
(B) When only one commissioned officer is present with a
command or detachment he shall be the summary court-martial of
that command or detachment and shall hear and determine all
summary court-martial cases brought before him. Summary
courts-martial may, however, be convened in any case by superior
competent authority when considered desirable by him.
Sec. 5924.25. (A) Any commissioned officer of or on in a
duty with the organized militia status is eligible to serve on all
courts-martial for the trial of any person who may lawfully be
brought before such courts for trail trial.
(B) Any warrant officer of or on in a duty with the organized
militia status is eligible to serve on general and special
courts-martial for the trial of any person, other than a
commissioned officer, who may lawfully be brought before such
courts for trail trial.
(C)(1) Any enlisted member of the organized militia in a duty
status who is not a member of the same unit as the accused is
eligible to serve on general and special courts-martial for the
trial of any enlisted member of the organized militia who may
lawfully be brought before such courts for trial, but he shall
serve as a member of a court only if, before the conclusion of a
session called by the military judge under division (A) of section
5924.39 of the Revised Code or, in the absence of such a session
called by the military judge, before the court is assembled for
the trial of the accused, the accused personally has requested in
writing that enlisted members serve on it. After such a request,
the accused may not be tried by a general or special
court-martial, the membership of which does not include enlisted
members in a number comprising at least one-third of the total
membership of the court, unless eligible members cannot be
obtained on account of physical conditions or military exigencies.
If such enough enlisted members cannot be obtained, the court may
be assembled and trial held without them, but the convening
authority shall make a detailed written statement, to be appended
to the record, stating why they could not be obtained.
(2) In As used in division (C) of this section, the word
"unit" means any regularly organized body of the organized militia
not larger than a company, a squadron, a division of the naval
militia, or a body corresponding to one of them.
(D)(1) When If it can be avoided, no a person subject to this
code shall not be tried by a court-martial, any member of which is
junior to him the person in rank or grade.
(2) When convening a court-martial, the convening authority
shall detail as members thereof such of the court-martial members
as of the organized militia who, in his the convening authority's
opinion, are best qualified for the duty by reason of age,
education, training, experience, length of service, and judicial
temperament. No member of the organized militia is eligible to
serve as a member of a general or special court-martial when he if
the member of the organized militia is the accuser or a witness
for the prosecution or has acted as investigating officer or as
counsel in the same case. If within the command of the convening
authority there is present and not otherwise disqualified a
commissioned officer who is a member of the bar of the state and
of appropriate rank, the convening authority shall appoint him as
president of a special court-martial. Although this requirement is
binding on the convening authority, failure to meet it in any case
does not divest a military court of jurisdiction.
Sec. 5924.26. (A) The authority convening a A military judge
shall be detailed to each general court-martial shall, and,
subject to regulations promulgated by the governor, the authority
convening a and special court-martial may, detail a. A military
judge to shall preside over each open session of the court-martial
to which the judge has been detailed.
(B) A military judge shall be a commissioned officer of the
organized militia who is a member in good standing of the bar of
this state, or a member of the bar of a federal court, and who is
certified to be qualified for such duty as a military judge by the
state judge advocate.
(C) The military judge of a general or special court-martial
shall be designated by the state judge advocate or his designee
for detail by the convening authority. Unless the court-martial
was convened by the governor or the adjutant general, neither the
convening authority nor his the convening authority's staff, other
than the state judge advocate or deputy state judge advocate,
shall prepare or review any report concerning the effectiveness,
fitness, or efficiency of the military
judge so detailed which
relates to his judge's performance of duty as a military judge. A
commissioned officer who is certified as a military judge of a
general court-martial may perform duties other than those relating
to his being a military judge of a general court-martial when such
duties are assigned to him by or with the approval of the state
judge advocate or his designee.
(D) No person is eligible to act as a military judge in a
case if he
the person is the accuser, is a witness for the
prosecution, has acted as investigating officer, or is a counsel
in the same case.
(E) The military judge of a court-martial may not consult
with the members of the court, except in the presence of the
accused, trial counsel, and defense counsel, nor may he the
military judge vote with the members of the court.
(F) A trial counsel, defense counsel, military judge, legal
officer, summary court officer, or any other person from any one
component of the organized militia certified by the state judge
advocate to perform legal functions under this code may perform
those functions, as needed, for any other component of the
organized militia.
Sec. 5924.27. (A) For each general and special court-martial
the authority convening the court The state judge advocate shall
detail trial counsel and, defense counsel, and such assistants as
he that the state judge advocate considers appropriate. No person
who has acted as investigating officer, military judge, or court
member in any case may act later as trial counsel, assistant trial
counsel, or, unless expressly requested by the accused, as defense
counsel, or assistant defense counsel in the same case. No person
who has acted for the prosecution may act later in the same case
for the defense, nor may any person who has acted for the defense
act later in the same case for the prosecution.
(B) Trial counsel or defense counsel detailed for a general
court-martial must be both of the following:
(1) Must be a person who is a A member in good standing of
the bar of the highest court of this state, or a member of the bar
of a federal court, or a law specialist; and
(2) Must be certified Certified as competent to perform such
the duties of trial counsel or defense counsel in a general
court-martial by the state judge advocate.
(C) In the case of a special court-martial, the accused shall
be afforded the opportunity to be represented at the trial by
counsel having the qualifications prescribed by division (B) of
this section. If counsel having such qualifications cannot be
obtained because of physical conditions or military exigencies,
the court may be convened and the trial held, but the convening
authority shall make a detailed written statement explaining the
reasons, which shall be appended to the record.
Sec. 5924.28. Under such regulations as the governor
adjutant general may prescribe, the convening authority of a
general or special court-martial or court of inquiry shall detail
or employ qualified court reporters, who shall record the
proceedings of and testimony taken before that court. Under like
regulations the convening authority of a military court, and may
detail or employ interpreters, who shall interpret for the court.
Sec. 5924.29. (A) No member of a general or special
court-martial shall be absent or excused after the court has been
assembled for the trial of the accused except for physical
disability, as a result of a challenge, or by order of the
convening authority for good cause.
(B) Whenever a general court-martial, other than a general
court-martial composed of a military judge only, is reduced below
five members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not
less fewer than five members. When the new members have been
sworn, the trial may proceed with the new members present after
the recorded evidence previously introduced before the members of
the court has been read to the court in the presence of the
military judge, the accused, and counsel for both sides.
(C) Whenever a special court-martial, other than a special
court-martial composed of a military judge only, is reduced below
three members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not
less fewer than three members. When the new members have been
sworn, the trial shall proceed with the new members present as if
no evidence had previously been introduced at the trial, unless a
verbatim record of the evidence previously introduced before the
members of the court or a stipulation thereof is read to the court
in the presence of the military judge, if any, the accused, and
counsel for both sides.
(D) If the military judge of a court-martial composed of a
military judge only is unable to proceed with the trial because of
physical disability, as a result of a challenge, or for other good
cause, the trial shall proceed, subject to any applicable
conditions of division (B)(1)(b) or division (B)(2)(c) of section
5924.16 of the Revised Code, after the detail of a new military
judge as if no evidence had previously been introduced, unless a
verbatim record of the evidence previously introduced or a
stipulation thereof is read in court in the presence of the new
military judge, the accused, and counsel for both sides.
Sec. 5924.30. (A) Charges and specifications shall be signed
by a person subject to this code under oath before a person
commissioned officer of the organized militia authorized by this
code to administer oaths and shall state both of the following:
(1) That the signer has personal knowledge of, or has
investigated, the matters set forth therein in the charges and
specifications; and
(2) That they those matters are true in fact to the best of
his the person's knowledge and belief.
(B) Upon the preferring of charges, the proper authority
shall take immediate steps to determine what the disposition that
should be made thereof of the charges in the interest of justice
and discipline, and the person accused shall be informed of the
charges
against him as soon as practicable.
Sec. 5924.31. (A) No person subject to this code may compel
any other person to incriminate himself the other person or to
answer any question, the answer to which may tend to incriminate
him the other person.
(B) No person subject to this code may interrogate, or
request any statement from an accused or a person suspected of an
offense, without first informing
him the accused or person
suspected of the nature of the accusation and advising him the
accused or person suspected that
he the accused or person
suspected does not have to make any statement regarding the
offense of which he the accused or person suspected is accused or
suspected and that any statement made by him the accused or person
suspected may be used as evidence against him the accused or
person suspected in a trial by court-martial.
(C) No person subject to this code may compel any other
person to make a statement or produce evidence before any military
tribunal court-martial if the statement or evidence is not
material to the issue and may tend to degrade him the other
person.
(D) No statement obtained from any person in violation of
this section, or through the use of coercion, unlawful influence,
or unlawful inducement may be received in evidence against him the
person in a trial by court-martial.
Sec. 5924.32. (A) No charge or specification may be referred
to a general court-martial for trial until a thorough and
impartial investigation of all the matters set forth therein in
the charge or specification has been made. This investigation
shall include inquiry as to the truth of the matter set forth in
the charges, consideration of the form of charges, and a
recommendation as to the disposition which that should be made of
the case in the interest of justice and discipline.
(B) The accused shall be advised of the charges against him
the accused and of his the accused's right to be represented at
that investigation by counsel. Upon his the accused's own request
he, the accused shall be represented by civilian counsel if
provided by him the accused at the accused's own cost, or by
military counsel of his the accused's own selection if such
counsel is reasonably available, or by counsel detailed by the
officer exercising general court-martial jurisdiction over the
command. At that investigation full opportunity shall be given to
the accused to cross-examine witnesses against
him the accused if
they are available and to present anything he the accused may
desire in his the accused's own behalf, either in defense or
mitigation, and the investigating officer shall examine reasonably
available witnesses requested by the accused. If the charges are
forwarded after the investigation, they shall be accompanied by a
statement of the substance of the testimony taken on both sides,
and a copy thereof of that statement shall be given to the
accused.
(C) If an investigation of the subject matter of an offense
has been conducted before the accused is charged with the offense,
and if the accused was present at the investigation and afforded
the opportunities for representation, cross-examination, and
presentation prescribed in division (B) of this section, no
further investigation of that charge is necessary under this
section unless it is demanded by the accused after he the accused
is informed of the charge. A demand for further investigation
entitles the accused to recall witnesses for further
cross-examination and to offer any new evidence in his the
accused's own behalf.
(D) The requirements of this section are binding on all
persons administering this code but failure to follow them does
not divest a military court of jurisdiction.
Sec. 5924.33. When a person is held for trial by general
court-martial, the commanding officer shall, within eight days not
later than the eighth day after the accused is ordered into arrest
or confinement, if practicable, forward the charges, together with
the investigation and allied papers, to the governor general
court-martial convening authority. If that is not practicable,
he
the commanding officer shall report in writing to the governor
convening authority the reasons for delay.
Sec. 5924.34. (A) Before directing the trial of any charge
by general court-martial, the convening authority shall refer it
to the state convening authority's staff judge advocate or legal
officer for consideration and advice. The convening authority may
not refer a charge to a general court-martial for trial unless he
the convening authority has found that the charge alleges an
offense under this code and is warranted by evidence indicated in
the report of the investigation.
(B) If the charges or specifications are not formally correct
or do not conform to the substance of the evidence contained in
the report of the investigating officer, formal corrections and
such changes in the charges and specifications as are needed to
make them conform to the evidence may be made.
Sec. 5924.35. The trial counsel to whom court-martial
charges are referred for trial shall cause to be served upon the
accused a copy of the charges upon which trial is to be had. In
Except in time of peace declared war, no person may, against his
the person's objection, be brought to trial or be required to
participate by himself alone or with counsel in a session called
by the military judge under division (A) of section 5924.39 of the
Revised Code, in a general or special court-martial case within a
period of five days twenty-four hours after the service of charges
upon him, or in a special court-martial within a period of three
days after the service of the charges upon him the person.
Sec. 5924.36. The procedure, including modes of proof, in
cases before military courts and other military tribunals may be
prescribed by the governor adjutant general by regulations, which
that shall, so far as he the adjutant general considers
practicable, apply the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the courts
of the this state, but which that may not be contrary to or
inconsistent with this code.
Sec. 5924.37. (A) No authority convening a general, special,
or summary court-martial, nor any other commanding officer, or
officer serving on the staff thereof, of a convening authority or
other commanding officer may censure, reprimand, or admonish the
court or any member, military judge, or counsel thereof of the
court, with respect to the findings or sentence adjudged by the
court, or with respect to any other exercise of its or his the
member's, military judge's, or counsel's functions in the conduct
of the proceeding. No person subject to this code may attempt to
coerce or, by any unauthorized means, influence the action of the
court-martial or any other military tribunal or any member thereof
of the court-martial or military tribunal in reaching the findings
or sentence in any case, or the action of any convening,
approving, or reviewing authority with respect to his the
authority's judicial acts. This division does not apply to:
(1) General instructional or informational courses in
military justice, if such courses are designed solely for the
purpose of instructing members of a command in the substantive and
procedural aspects of courts-martial;
(2) Statements and instructions given in open court by the
military judge, the president of a special court-martial, or
counsel.
(B) In the preparation of an effectiveness, a fitness, or
efficiency evaluation, or performance report, or any other report
or document used in whole or in part for the purpose of
determining whether a member of the organized militia is qualified
to be advanced in grade, or in determining the assignment or
transfer of a member of the organized militia, or in determining
whether a member of the organized militia should be retained in an
active status on duty, no person subject to this code may, in
preparing any such report do either of the following:
(1) Consider or evaluate the performance of duty of any such
the member as a member of a court-martial;
(2) Give a less favorable rating or evaluation of any member
of the organized militia because of the zeal with which such the
member, as counsel, represented any accused before a
court-martial.
Sec. 5924.38. (A) The trial counsel of a general or special
court-martial shall prosecute in the name of the state, and shall,
under the direction of the court, prepare the record of the
proceedings.
(B) The accused has the right to be represented in his the
accused's defense before a general or special court-martial by
civilian counsel if provided by him
the accused at the accused's
own cost, or by military counsel of his the accused's own
selection if reasonably available, or by the
detailed military
defense counsel detailed under section 5924.27 of the Revised
Code. Should the accused have civilian counsel of his the
accused's own selection, the defense counsel, and any assistant
defense counsel, if any, who were detailed, shall, if the accused
so desires, act as his the accused's associate counsel; otherwise
they shall be excused by the military judge or by the president of
a court-martial without a military judge.
(C) In every court-martial proceeding, the defense counsel
may, in the event of conviction, forward for attachment to the
record of proceedings a brief of such matters as he the defense
counsel feels should be considered in behalf of the accused on
review, including any objection to the contents of the record
which he
the defense counsel considers appropriate.
(D) An assistant trial counsel of a general court-martial
may, under the direction of the trial counsel or when he the
assistant trial counsel is qualified to be a trial counsel as
required by section 5924.27 of the Revised Code, perform any duty
imposed by law, regulation, or the custom of the service upon the
trial counsel of the court. An assistant trial counsel of a
special court-martial may perform any duty of the trial counsel.
(E) An assistant defense counsel of a general or special
court-martial may, under the direction of the defense counsel or
when he the assistant defense counsel is qualified to be the
defense counsel as required by section 5924.27 of the Revised
Code, perform any duty imposed by law, regulation, or the custom
of the service upon counsel for the accused.
Sec. 5924.39. (A) At any time after the service of charges
which that have been referred for trial to a court-martial
composed of a military judge and members, the military judge may,
subject to section 5924.35 of the Revised Code, call the court
into session without the presence of the members for the following
purposes:
(1) Hearing and determining motions raising defenses or
objections which that are capable of determination without trial
of the issues raised by a plea of not guilty;
(2) Hearing and ruling upon any matter which that may be
ruled upon by the military judge under this code, whether or not
the matter is appropriate for later consideration or decision by
the members of the court;
(3) If permitted by regulations prescribed by the governor,
holding the arraignment and receiving the pleas of the accused;
(4) Performing any other procedural function which that may
be performed by the military judge under this code or under rules
regulations prescribed pursuant to section 5924.36 of the Revised
Code and which that does not require the presence of the members
of the court.
These proceedings shall be conducted in the presence of the
accused, the defense counsel, and the trial counsel, and shall be
made a part of the record.
(B) When the members of a court-martial deliberate or vote,
only the members may be present. All other proceedings, including
any other consultation of the members of the court with counsel or
the military judge, shall be made a part of the record and shall
be in the presence of the accused, the defense counsel, the trial
counsel, and, in cases in which a military judge has been detailed
to the court, the military judge.
Sec. 5924.41. (A) The military judge and members of a
general or special court-martial may be challenged by the accused
or the trial counsel for cause stated to the court. The military
judge or, if none, the court, shall determine the relevancy and
validity of challenges for cause, and may not receive a challenge
to more than one person at a time. Challenges by the trial counsel
shall ordinarily be presented and decided before those by the
accused are offered.
(B) Each accused and the trial counsel is entitled to one
peremptory challenge, but the military judge may not be challengd
challenged except for cause.
(C) If the exercise of a peremptory challenge reduces the
number of members of a court-martial below the minimum required
under section 5924.16 of the Revised Code, any remaining
peremptory challenges shall be exercised or waived before
additional members are detailed.
(D) Additional members detailed to a court-martial may be
challenged for cause as provided in division (A) of this section.
After challenges for cause against the additional members are
presented and decided, each accused and trial counsel is entitled
to one peremptory challenge against members not previously
challenged peremptorily.
Sec. 5924.42. (A) Before performing their respective duties,
military judges, interpreters, members of general and special
courts-martial, the trial counsel, the assistant trial counsel,
the defense counsel, the assistant defense counsel, and reporters
shall take an oath or affirmation to perform their duties
faithfully. The form of the oath or affirmation, the time and
place of the taking thereof, the manner of recording, and whether
the oath shall be taken for all cases in which these duties are to
be performed or for a particular case, shall be as prescribed in
regulations promulgated by the governor. These regulations may
provide that an oath or affirmation to faithfully perform duties
as a military judge, trial counsel, assistant trial counsel,
defense counsel, or assistant defense counsel may be taken at any
time by any judge advocate, law specialist, or other person
certified to be qualified or competent for the duty, and if such
oath is taken it need not again be taken at the time the judge
advocate, law specialist, or other person is detailed to that duty
in the presence of the accused and shall be substantially as
follows:
(1) For a member of the court:
"You, .........., do swear (or affirm) that you will
faithfully perform all the duties incumbent upon you as a member
of this court; that you will faithfully and impartially try,
according to the evidence, your conscience, and the laws and
regulations provided for trials by courts-martial, the case of
(the) (each) accused now before this court; and that if any doubt
should arise not explained by the laws and regulations, then
according to the best of your understanding and the customs of the
service in like cases; that you will not divulge the findings or
sentence in any case until they shall have been duly announced by
the court; and that you will not disclose or discover the vote or
opinion of any particular member of the court upon a challenge or
upon the findings or sentence unless required to do so before a
court of justice in due course of law. So help you God (or under
penalty of perjury)."
(2) For a military judge:
"You, .........., do swear (or affirm) that you will
faithfully and impartially perform, according to your conscience
and the laws and regulations provided for trials by
courts-martial, all the duties incumbent upon you as military
judge of this court; that if any doubt should arise not explained
by the laws and regulations, then according to the best of your
understanding and the customs of the service in like cases; and
that you will not divulge the findings or sentence in any case
until they shall have been duly announced by the court. So help
you God (or under penalty of perjury)."
(3) For trial counsel and assistant trial counsel:
"You, .........., do swear (or affirm) that you will
faithfully perform the duties of trial counsel and will not
divulge the findings or sentence of the court to any but the
proper authority until they shall be duly disclosed. So help you
God (or under penalty of perjury)."
(4) For defense counsel and assistant defense counsel:
"You, .........., do swear (or affirm) that you will
faithfully perform the duties of defense counsel and will not
divulge the findings or sentence of the court to any but the
proper authority until they shall be duly disclosed. So help you
God (or under penalty of perjury)."
(5) For a reporter or interpreter:
"You, ..........., do swear (or affirm) that you will
faithfully perform the duties of reporter (or interpreter) to this
court. So help you God (or under penalty of perjury)."
(B) Each witness before a military court court-martial shall
be examined on oath or affirmation. The presiding officer shall
administer an oath or affirmation in substantially the following
form:
"You, .........., do swear (or affirm) that the evidence you
shall give in the case now in hearing shall be the truth, the
whole truth, and nothing but the truth. So help you God (or under
penalty of perjury)."
Sec. 5924.43. (A) A person charged with desertion or absence
without leave in time of war, or with aiding the enemy or with
mutiny, or with murder, may be tried and punished at any time
without limitation.
(B) Except as otherwise provided in this section, a person
charged with desertion in time of peace or any of the offenses
punishable under sections 5924.119 to 5924.132 of the Revised
Code, is not liable to be tried by court-martial if the offense
was committed more than three years before the receipt of sworn
charges and specifications by an officer exercising summary
court-martial jurisdiction over the command.
(C) Except as otherwise provided in this section, a person
charged with any an offense punishable under this code is not
liable to be tried by court-martial or punished under section
5924.15 of the Revised Code if the offense was committed more than
two four years before the receipt of sworn charges and
specifications by an officer exercising
summary court-martial
jurisdiction over the command or before the imposition of
punishment under section 5924.15 of the Revised Code.
(D)(B) Periods in which the accused was absent from territory
in which the state
has the authority to apprehend him, or is in
the custody of civil authorities, or in the hands of the enemy,
shall be excluded in computing the period of limitation prescribed
in this section.
Sec. 5924.44. (A) No person may, without his consent, be
tried a second time in any military or civil court court-martial
of the this state for the same offense.
(B) No proceeding in which an accused has been found guilty
by a court-martial upon any charge or specification is a trial in
the sense for purposes of this section until the finding of guilty
has become final after review of the case has been fully
completed.
(C) A proceeding which that, after the introduction of
evidence but before a finding, is dismissed or terminated by the
convening authority or on motion of the prosecution for failure
want of available evidence or witnesses without any fault of the
accused is a trial in the sense for purposes of this section.
Sec. 5924.45. (A) If an An accused after arraignment makes
an irregular pleading, or after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he has entered
the plea of guilty improvidently or through lack of understanding
of its meaning and effect, or if he fails or refuses to may plead,
a plea of not guilty shall be entered in the record, and the court
shall proceed as though he had pleaded not guilty.
(B) A plea of guilty by the accused may not be accepted to
any charge or specification alleging an offense for which the
death penalty may be adjudged. If a plea of guilty has been
accepted by the military judge or by a court-martial without a
military judge, a finding of guilty, if permitted by regulations
promulgated by the governor, shall be entered immediately without
vote and shall constitute the finding of the court. If the plea of
guilty is withdrawn prior to announcement of the sentence, the
proceedings shall continue as though the accused had pleaded, not
guilty by reason of insanity, guilty, or, with the consent of the
court, no contest. A plea of not guilty by reason of insanity
shall be made in writing by either the accused or the accused's
attorney. All other pleas may be made orally. The pleas of not
guilty and not guilty by reason of insanity may be joined.
(B) If an accused refuses to plead, the court shall enter a
plea of not guilty on behalf of the accused.
(C) Before accepting a plea of guilty, the military judge
shall address the accused personally and inform the accused of,
and determine that the accused understands, all of the following:
(1) The nature of the offense to which the plea is offered
and the maximum possible penalty provided by law;
(2) In a general or special court-martial, if the accused is
not represented by counsel, that the accused has the right to be
represented by counsel at every stage of the proceedings;
(3) That the accused has the right to plead not guilty or to
persist in that plea if already made, that the accused has the
right to be tried by a court-martial, and that at trial the
accused has the right to confront and cross-examine witnesses
against the accused and the right against self-incrimination.
(4) That if the accused pleads guilty, there will not be a
trial of any kind as to those offenses to which the accused has so
pleaded and that by pleading guilty the accused waives the rights
described in division (C)(3) of this section;
(5) That, if the accused pleads guilty, the military judge
will question the accused about the offenses to which the accused
has pleaded guilty, and that, if the accused answers the questions
under oath, on the record, and in the presence of counsel, the
accused's answers may later be used against the accused in a
prosecution for perjury or false statement.
(D) The military judge shall not accept a plea of guilty
without first addressing the accused personally and determining
that the plea is voluntary and not the result of fear, threats, or
promises. The military judge shall also inquire as to whether the
accused's willingness to plead guilty results from prior
discussions between the convening authority, a representative of
the convening authority, or trial counsel and the accused or
defense counsel.
(E) The military judge shall not accept a plea of guilty
without making an inquiry of the accused that satisfies the
military judge that there is a factual basis for the plea. The
accused shall be questioned under oath about the offenses charged.
(F) When a negotiated plea of guilty or no contest to one or
more offenses charged or to one or more other or lesser offenses
is offered, the underlying agreement upon which the plea is based
shall be stated on the record in open court.
(G) If the court refuses to accept a plea of guilty or no
contest, the court shall enter a plea of not guilty on behalf of
the accused, and neither plea shall be admissible in evidence or
be the subject of comment by the trial counsel or court.
(H) The defense of not guilty by reason of insanity must be
pleaded at the time of arraignment, except that the court for good
cause shown shall permit a plea of not guilty by reason of
insanity to be entered at any time before trial.
(I) A motion to withdraw a plea of guilty or no contest may
be made only before sentence is imposed, but to correct manifest
injustice the court after sentence may set aside the judgment of
conviction and permit the accused to withdraw the plea.
(J) An accused who is found guilty after pleading guilty
waives any objection, whether or not previously raised, relating
to the factual issue of guilt of the offense to which the plea was
made.
Sec. 5924.46. (A) The trial counsel, the defense counsel,
and the court-martial shall have equal opportunity to obtain
witnesses and other evidence in accordance with such regulations
as the governor adjutant general may prescribe.
(B) The president of a court-martial or a summary court
officer may:
(1) Issue a warrant for the arrest of any accused person who,
having been served with a warrant and a copy of the charges,
disobeys a written order by the convening authority to appear
before the court;
(2) Issue subpoenas duces tecum and other subpoenas;
(3) Enforce by attachment the attendance of witnesses and the
production of books and papers; and
(4) Sentence for refusal to be sworn or to answer, as
provided in actions before civil courts of the state.
(C) Process issued in court-martial cases to compel witnesses
to appear and testify and to compel the production of other
evidence shall be substantially similar to process that may be
issued by the courts of this state in criminal cases and shall run
to any part of the state.
Sec. 5924.47. (A) Any person not subject to this code who:
(1) Has has been duly subpoenaed to appear as a witness or to
produce books and records before a military court or before any
military or civil officer designated to take a deposition to be
read in evidence before such a military court;
(2) Has or has been duly paid or tendered the fees and
mileage of a witness at the rates provided for under section
119.094 of the Revised Code; and
(3) Willfully who willfully neglects or refuses to appear, or
refuses to qualify as a witness or to testify or to produce any
evidence
which that the person may have been legally subpoenaed
to produce; is guilty of an offense against the state and, may be
punished for contempt in the
same manner as if committed before
civil courts of the state provided for in Chapter 2705. of the
Revised Code.
Sec. 5924.48. A military court, in the manner provided for
in Chapter 2705. of the Revised Code, may punish for contempt any
person who uses any menacing word, sign, or gesture in its
presence, or who disturbs its proceedings by any riot or disorder.
The punishment may not exceed confinement for thirty days or a
fine of one hundred dollars, or both is guilty of any act
described in section 2705.02 of the Revised Code.
Sec. 5924.49. (A) At any time after charges have been signed
as provided in section 5924.30 of the Revised Code, any party may
take oral or written depositions unless the military judge or
court-martial without a military judge hearing the case or, if the
case is not being heard, an authority competent to convene a
court-martial for the trial of those charges forbids it for good
cause. If a deposition is to be taken before charges are referred
for trial, such an authority may designate commissioned officers
to represent the prosecution and the defense and may authorize
those officers to take the deposition of any witness.
(B) The party at whose instance a deposition is to be taken
shall give to every other party reasonable written notice of the
time and place for taking the deposition.
(C) Depositions may be taken before and authenticated by any
military or civil officer authorized by the laws of the state or
by the laws of the place where the deposition is taken to
administer oaths.
(D) A duly authenticated deposition, taken upon reasonable
notice to the other parties, so far as otherwise admissible under
the rules of evidence, may be read in evidence before any
court-martial or in any proceeding before a court of inquiry, if
it appears:
(1) That the witness resides or is beyond the state in which
the court-martial or court of inquiry is ordered to sit, or beyond
the distance of one hundred miles from the place of trial or
hearing;
(2) That the witness by reason of death, age, sickness,
bodily infirmity, imprisonment, military necessity, nonamenability
to process, or other reasonable cause, is unable or refused to
appear and testify in person at the place of trial or hearing;
(3) That the present whereabouts of the witness is unknown;
or
(4) That the deposition was taken in the physical presence of
the accused in the manner and for the purposes provided in the
Ohio Rules of Criminal Procedure.
Sec. 5924.50. (A) In any case not capital and not extending
to the dismissal of a commissioned officer, the sworn testimony,
contained in the duly authenticated record of proceedings of a
court board of inquiry, officers of a person whose oral testimony
cannot be obtained, may, if otherwise admissible under the rules
of evidence, be read in evidence by any party before a
court-martial if the accused was a party before the court board of
inquiry officers and if the same issue was involved or if the
accused consents to the introduction of such evidence, and if the
accused was physically present when the testimony was taken.
(B) Such testimony may be read in evidence only by the
defense in cases extending to the dismissal of a commissioned
officer.
(C) Such testimony may also be read in evidence before a
court of inquiry or a
military board of officers.
Sec. 5924.501. (A) In an action under this code, the
military judge, trial counsel, defense counsel, or civilian
counsel may raise the issue of the accused's competence to stand
trial. If the issue is raised before the trial has commenced, the
court shall hold a hearing on the issue as provided in this
section. If the issue is raised after the trial has commenced, the
court shall hold a hearing on the issue only for good cause shown
or on the court's own motion.
(B) The court shall conduct the hearing required or
authorized under division (A) of this section within thirty days
after the issue is raised unless the accused has been referred for
evaluation in which case the court shall conduct the hearing
within ten days after the filing of the report of the evaluation.
A hearing may be continued for good cause.
(C) The accused shall be represented by counsel at the
hearing conducted under division (B) of this section.
(D) The trial counsel and defense counsel may submit evidence
on the issue of the accused's competence to stand trial. A written
report of the evaluation of the accused may be admitted into
evidence at the hearing by stipulation, but, if either the
government or defense objects to its admission, the report may be
admitted under seal of court in camera to the military judge.
(E) The court shall not find an accused incompetent to stand
trial solely because the accused is receiving or has received
treatment as a voluntary or involuntary mentally ill patient under
Chapter 5122. of the Revised Code or because the accused is
receiving or has received psychotropic drugs or other medication,
even if the accused might become incompetent to stand trial
without the drugs or medication.
(F) An accused is presumed to be competent to stand trial.
If, after a hearing, the court finds by a preponderance of the
evidence that, because of the accused's present mental condition,
the accused is incapable of understanding the nature and objective
of the proceedings against the accused or of assisting in the
accused's defense, the court shall find the accused incompetent to
stand trial and shall enter an order authorized by section
5924.503 of the Revised Code.
Sec. 5924.502. (A) If the issue of an accused's competence
to stand trial is raised or if an accused enters a plea of not
guilty by reason of insanity, the court may order one or more
evaluations of the accused's present mental condition or, in the
case of a plea of not guilty by reason of insanity, of the
accused's mental condition at the time of the offense charged. An
examiner shall conduct the evaluation.
(B) If the court orders more than one evaluation under
division (A) of this section, the trial counsel and the defense
counsel may recommend to the court an examiner whom each prefers
to perform one of the evaluations. If an accused enters a plea of
not guilty by reason of insanity and if the court does not
designate an examiner recommended by the defense counsel, the
court shall inform the accused that the accused may have
independent expert evaluation and that it will be obtained for the
accused at public expense.
(C) If the court orders an evaluation under division (A) of
this section, the accused shall be available at the times and
places established by the examiners who are to conduct the
evaluation. The court may order an accused who is not being held
in pretrial confinement to submit to an evaluation under this
section. If an accused who is not being held in pretrial
confinement refuses to submit to a complete evaluation, the court
may order the sheriff to take the accused into custody and deliver
the accused to a center, program, or facility operated or
certified by the department of mental health where the accused may
be held for evaluation for a reasonable period of time not to
exceed twenty days.
(D) An accused who is being held in pretrial confinement may
be evaluated at the accused's place of detention. Upon the request
of the examiner, the court may order the sheriff to transport the
accused to a program or facility operated or certified by the
department of mental health, where the accused may be held for
evaluation for a reasonable period of time not to exceed twenty
days, and to return the accused to the place of detention after
the evaluation.
(E) If a court orders the evaluation to determine an
accused's mental condition at the time of the offense charged, the
court shall inform the examiner of the offense with which the
accused is charged.
(F) In conducting an evaluation of an accused's mental
condition at the time of the offense charged, the examiner shall
consider all relevant evidence. If the offense charged involves
the use of force against another person, the relevant evidence to
be considered includes, but is not limited to, any evidence that
the accused suffered at the time of the commission of the offense
from the "battered woman syndrome."
(G) The examiner shall file a written report with the court
within thirty days after entry of a court order for evaluation,
and the court shall provide copies of the report to the trial
counsel and defense counsel. The report shall include all of the
following:
(1) The examiner's findings;
(2) The facts in reasonable detail on which the findings are
based;
(3) If the evaluation was ordered to determine the accused's
competence to stand trial, all of the following findings or
recommendations that are applicable:
(a) Whether the accused is capable of understanding the
nature and objective of the proceedings against the accused or of
assisting in the accused's defense;
(b) If the examiner's opinion is that the accused is
incapable of understanding the nature and objective of the
proceedings against the accused or of assisting in the accused's
defense, whether the accused presently is mentally ill;
(c) If the examiner's opinion is that the accused is
incapable of understanding the nature and objective of the
proceedings against the accused or of assisting in the accused's
defense, the examiner's opinion as to the likelihood of the
accused becoming capable of understanding the nature and objective
of the proceedings against the accused and of assisting in the
accused's defense within one year if the accused is provided with
a course of treatment;
(d) If the examiner's opinion is that the accused is
incapable of understanding the nature and objective of the
proceedings against the accused or of assisting in the accused's
defense and that the accused presently is mentally ill, the
examiner's recommendation as to the least restrictive placement or
commitment alternative, consistent with the accused's treatment
needs for restoration to competency and with the safety of the
community;
(e) If the accused is charged before a special or summary
court-martial with an offense that is not a violation of section
5924.120, 5924.127, or 5924.128 of the Revised Code and the
examiner's opinion is that the accused is incapable of
understanding the nature and objective of the proceedings against
the accused or of assisting in the accused's defense and that the
accused is presently mentally ill, the examiner's recommendation
as to whether the accused is amenable to engagement in mental
health treatment.
(4) If the evaluation was ordered to determine the accused's
mental condition at the time of the offense charged, the
examiner's findings as to whether the accused at the time of the
offense charged did not know, as a result of a severe mental
disease or defect, the wrongfulness of the accused's acts charged.
(H) An examiner appointed under divisions (A) and (B) of this
section to evaluate an accused to determine the accused's
competence to stand trial also may be appointed to evaluate an
accused who has entered a plea of not guilty by reason of
insanity, but an examiner of that nature shall prepare separate
reports on the issue of competence to stand trial and the defense
of not guilty by reason of insanity.
(I) No statement that an accused makes in an evaluation or
hearing under divisions (A) to (H) of this section relating to the
accused's competence to stand trial or to the accused's mental
condition at the time of the offense charged may be used against
the accused on the issue of guilt in any criminal action or
proceeding, but, in a criminal action or proceeding, the trial
counsel or defense counsel may call as a witness any person who
evaluated the accused or prepared a report pursuant to a referral
under this section. Neither the appointment nor the testimony of
an examiner appointed under this section precludes the trial
counsel or defense counsel from calling other witnesses or
presenting other evidence on competency or insanity issues.
(J) Persons appointed as examiners under divisions (A) and
(B) of this section or under division (H) of this section shall be
paid a reasonable amount for their services and expenses, as
certified by the court.
Sec. 5924.503. (A) If the issue of an accused's competence
to stand trial is raised and if the court, upon conducting the
hearing provided for in section 5924.502 of the Revised Code,
finds that the accused is competent to stand trial, the accused
shall be proceeded against as provided by law. If the court finds
the accused competent to stand trial and the accused is receiving
psychotropic drugs or other medication, the court may authorize
the continued administration of the drugs or medication or other
appropriate treatment in order to maintain the accused's
competence to stand trial unless the accused's attending physician
advises the court against continuation of the drugs, other
medication, or treatment.
(B)(1)(a) If, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
accused is incompetent to stand trial and that there is a
substantial probability that the accused will become competent to
stand trial within one year if the accused is provided with a
course of treatment, the court shall order the accused to undergo
treatment. If the accused is being tried by a general
court-martial and if, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
accused is incompetent to stand trial, but the court is unable at
that time to determine whether there is a substantial probability
that the accused will become competent to stand trial within one
year if the accused is provided with a course of treatment, the
court shall order continuing evaluation and treatment of the
accused for a period not to exceed four months to determine
whether there is a substantial probability that the accused will
become competent to stand trial within one year if the accused is
provided with a course of treatment.
(b) The court order for the accused to undergo treatment or
continuing evaluation and treatment under division (B)(1)(a) of
this section shall specify that the accused, if determined to
require mental health treatment or continuing evaluation and
treatment, shall be committed to the department of mental health
for treatment or continuing evaluation and treatment at a
hospital, facility, or agency determined to be clinically
appropriate by the department of mental health. The order may
restrict the accused's freedom of movement as the court considers
necessary. The trial counsel in the accused's case shall send to
the chief clinical officer of the hospital, facility, or agency
where the accused is placed by the department of mental health or
to the managing officer of the institution, the director of the
facility, or the person to which the accused is committed copies
of relevant investigative reports and other background information
that pertains to the accused and is available to the trial counsel
unless the trial counsel determines that the release of any of the
information in the investigative reports or any of the other
background information to unauthorized persons would interfere
with the effective prosecution of any person or would create a
substantial risk of harm to any person.
In committing the accused to the department of mental health,
the court shall consider the extent to which the person is a
danger to the person and to others, the need for security, and the
type of crime involved and, if the court finds that restrictions
on the accused's freedom of movement are necessary, shall specify
the least restrictive limitations on the person's freedom of
movement determined to be necessary to protect public safety. In
weighing these factors, the court shall give preference to
protecting public safety.
(c) If the accused is found incompetent to stand trial, if
the chief clinical officer of the hospital, facility, or agency
where the accused is placed, or the managing officer of the
institution, the director of the facility, or the person to which
the accused is committed for treatment or continuing evaluation
and treatment under division (B)(1)(b) of this section determines
that medication is necessary to restore the accused's competency
to stand trial, and if the accused lacks the capacity to give
informed consent or refuses medication, the chief clinical officer
of the hospital, facility, or agency where the accused is placed
or the managing officer of the institution, the director of the
facility, or the person to which the accused is committed for
treatment or continuing evaluation and treatment may petition the
court for authorization for the involuntary administration of
medication. The court shall hold a hearing on the petition within
five days of the filing of the petition. Following the hearing,
the court may authorize the involuntary administration of
medication or may dismiss the petition.
(d) If the accused is charged before a special or summary
court-martial with an offense that is not a violation of section
5924.120, 5924.127, or 5924.128 of the Revised Code, the trial
counsel may hold the charges in abeyance while the accused engages
in mental health treatment.
(2) If the court finds that the accused is incompetent to
stand trial and that, even if the accused is provided with a
course of treatment, there is not a substantial probability that
the accused will become competent to stand trial within one year,
the court shall order the discharge of the accused, unless upon
motion of the trial counsel or on its own motion, the court either
seeks to retain jurisdiction over the accused pursuant to division
(A)(2) of section 5924.504 of the Revised Code or files an
affidavit in the probate court for the civil commitment of the
accused pursuant to Chapter 5122. of the Revised Code alleging
that the accused is a mentally ill person subject to
hospitalization by court order. If an affidavit is filed in the
probate court, the trial court shall send to the probate court
copies of all written reports of the accused's mental condition
that were prepared pursuant to section 5924.502 of the Revised
Code.
The trial court may issue the temporary order of detention
that a probate court may issue under section 5122.11 of the
Revised Code, to remain in effect until the probable cause or
initial hearing in the probate court. Further proceedings in the
probate court are civil proceedings governed by Chapter 5122. of
the Revised Code.
(C) No accused shall be required to undergo treatment,
including any continuing evaluation and treatment, under division
(B)(1) of this section for longer than whichever of the following
periods is applicable:
(1) One year, if the accused is being tried by a general
court-martial;
(2) Six months, if the accused is being tried before a
special court-martial;
(3) Sixty days, if the accused is being tried before a
summary court-martial.
(D) Any accused who is committed pursuant to this section
shall not voluntarily admit the accused or be voluntarily admitted
to a hospital or institution pursuant to section 5122.02 or
5122.15 of the Revised Code.
(E) Except as otherwise provided in this division, an accused
who is charged with an offense and is committed by the court under
this section to the department of mental health with restrictions
on the accused's freedom of movement shall not be granted
unsupervised on-grounds movement, supervised off-grounds movement,
or nonsecured status except in accordance with the court order.
The court may grant an accused supervised off-grounds movement to
obtain medical treatment or specialized habilitation treatment
services if the person who supervises the treatment or the
continuing evaluation and treatment of the accused ordered under
division (B)(1)(a) of this section informs the court that the
treatment or continuing evaluation and treatment cannot be
provided at the hospital or facility where the accused is placed
by the department of mental health. The chief clinical officer of
the hospital or facility where the accused is placed by the
department of mental health or the managing officer of the
institution or director of the facility to which the accused is
committed or a designee of any of those persons may grant an
accused movement to a medical facility for an emergency medical
situation with appropriate supervision to ensure the safety of the
accused, staff, and community during that emergency medical
situation. The chief clinical officer of the hospital or facility
where the accused is placed by the department of mental health or
the managing officer of the institution or director of the
facility to which the accused is committed shall notify the court
within twenty-four hours of the accused's movement to the medical
facility for an emergency medical situation under this division.
(F) The person who supervises the treatment or continuing
evaluation and treatment of an accused ordered to undergo
treatment or continuing evaluation and treatment under division
(B)(1)(a) of this section shall file a written report with the
court at the following times:
(1) Whenever the person believes the accused is capable of
understanding the nature and objective of the proceedings against
the accused and of assisting in the accused's defense;
(2) Fourteen days before expiration of the maximum time for
treatment as specified in division (C) of this section and
fourteen days before the expiration of the maximum time for
continuing evaluation and treatment as specified in division
(B)(1)(a) of this section;
(3) At a minimum, after each six months of treatment;
(4) Whenever the person who supervises the treatment or
continuing evaluation and treatment of an accused ordered under
division (B)(1)(a) of this section believes that there is not a
substantial probability that the accused will become capable of
understanding the nature and objective of the proceedings against
the accused or of assisting in the accused's defense even if the
accused is provided with a course of treatment.
(G) A report under division (F) of this section shall contain
the examiner's findings, the facts in reasonable detail on which
the findings are based, and the examiner's opinion as to the
accused's capability of understanding the nature and objective of
the proceedings against the accused and of assisting in the
accused's defense. If, in the examiner's opinion, the accused
remains incapable of understanding the nature and objective of the
proceedings against the accused and of assisting in the accused's
defense and there is a substantial probability that the accused
will become capable of understanding the nature and objective of
the proceedings against the accused and of assisting in the
accused's defense if the accused is provided with a course of
treatment, if in the examiner's opinion the accused remains
mentally ill, and if the maximum time for treatment as specified
in division (C) of this section has not expired, the report also
shall contain the examiner's recommendation as to the least
restrictive placement or commitment alternative that is consistent
with the accused's treatment needs for restoration to competency
and with the safety of the community. The court shall provide
copies of the report to the trial counsel and defense counsel.
(H) If an accused is committed pursuant to division (B)(1) of
this section, within ten days after the treating physician of the
accused or the examiner of the accused who is employed or retained
by the treating facility advises that there is not a substantial
probability that the accused will become capable of understanding
the nature and objective of the proceedings against the accused or
of assisting in the accused's defense even if the accused is
provided with a course of treatment, within ten days after the
expiration of the maximum time for treatment as specified in
division (C) of this section, within ten days after the expiration
of the maximum time for continuing evaluation and treatment as
specified in division (B)(1)(a) of this section, within thirty
days after an accused's request for a hearing that is made after
six months of treatment, or within thirty days after being advised
by the treating physician or examiner that the accused is
competent to stand trial, whichever is the earliest, the court
shall conduct another hearing to determine if the accused is
competent to stand trial and shall do whichever of the following
is applicable:
(1) If the court finds that the accused is competent to stand
trial, the accused shall be proceeded against as provided by law.
(2) If the court finds that the accused is incompetent to
stand trial, but that there is a substantial probability that the
accused will become competent to stand trial if the accused is
provided with a course of treatment, and the maximum time for
treatment as specified in division (C) of this section has not
expired, the court, after consideration of the examiner's
recommendation, shall order that treatment be continued, may
change least restrictive limitations on the accused's freedom of
movement.
(3) If the court finds that the accused is incompetent to
stand trial, if the accused is being tried by a general
court-martial, and if the court finds that there is not a
substantial probability that the accused will become competent to
stand trial even if the accused is provided with a course of
treatment, or if the maximum time for treatment as specified in
division (C) of this section has expired, further proceedings
shall be as provided in sections 5924.504 to 5924.506 of the
Revised Code.
(4) If the court finds that the accused is incompetent to
stand trial, if the accused is being tried before a special
court-martial, and if the court finds that there is not a
substantial probability that the accused will become competent to
stand trial even if the accused is provided with a course of
treatment, or if the maximum time for treatment as specified in
division (C) of this section has expired, the court shall dismiss
the charge against the accused. A dismissal under this division is
not a bar to further prosecution based on the same conduct. The
court shall discharge the accused unless the court or trial
counsel files an affidavit in probate court for civil commitment
pursuant to Chapter 5122. of the Revised Code. If an affidavit for
civil commitment is filed, the court may detain the accused for
ten days pending civil commitment. All of the following provisions
apply to persons being tried by a special court-martial who are
committed by the probate court subsequent to the court's or trial
counsel's filing of an affidavit for civil commitment under
authority of this division:
(a) The chief clinical officer of the entity, hospital, or
facility, the managing officer of the institution, or the person
to which the accused is committed or admitted shall do all of the
following:
(i) Notify the trial counsel in writing of the discharge of
the accused, send the notice at least ten days prior to the
discharge unless the discharge is by the probate court and state
in the notice the date on which the accused will be discharged;
(ii) Notify the trial counsel in writing when the accused is
absent without leave or is granted unsupervised, off-grounds
movement and send this notice promptly after the discovery of the
absence without leave or prior to the granting of the
unsupervised, off-grounds movement, whichever is applicable;
(iii) Notify the trial counsel in writing of the change of
the accused's commitment or admission to voluntary status, send
the notice promptly upon learning of the change to voluntary
status, and state in the notice the date on which the accused was
committed or admitted on a voluntary status.
(b) The trial counsel shall promptly inform the convening
authority of any notification received under division (H)(4)(a) of
this section. Upon receiving notice that the accused will be
granted unsupervised, off-grounds movement, the convening
authority either shall refer the charges against the accused to an
investigating officer again or promptly notify the court that the
convening authority does not intend to refer the charges against
the accused again.
(I) If an accused is convicted of a crime and sentenced to
confinement, the accused's sentence shall be reduced by the total
number of days the accused is confined for evaluation to determine
the accused's competence to stand trial or treatment under this
section and sections 5924.502 and 5924.504 of the Revised Code or
by the total number of days the accused is confined for evaluation
to determine the accused's mental condition at the time of the
offense charged.
Sec. 5924.504. (A) If an accused being tried by a general
court-martial is found incompetent to stand trial, after the
expiration of the maximum time for treatment as specified in
division (C) of section 5924.503 of the Revised Code or after the
court finds that there is not a substantial probability that the
accused will become competent to stand trial even if the accused
is provided with a course of treatment, one of the following
applies:
(1) The court or the trial counsel may file an affidavit in
probate court for civil commitment of the accused in the manner
provided in Chapter 5122. of the Revised Code. If the court or
trial counsel files an affidavit for civil commitment, the court
may detain the accused for ten days pending civil commitment. If
the probate court commits the accused subsequent to the court's or
trial counsel's filing of an affidavit for civil commitment, the
chief clinical officer of the entity, hospital, or facility, the
managing officer of the institution, or the person to which the
accused is committed or admitted shall send to the trial counsel
the notices described in divisions (H)(4)(a)(i) to (iii) of
section 5924.503 of the Revised Code within the periods of time
and under the circumstances specified in those divisions.
(2) On the motion of the trial counsel or on its own motion,
the court may retain jurisdiction over the accused if at a hearing
the court finds both of the following by clear and convincing
evidence:
(a) The accused committed the offense with which the accused
is charged.
(b) The accused is a mentally ill person subject to
hospitalization by court order.
(B) In making its determination under division (A)(2) of this
section as to whether to retain jurisdiction over the accused, the
court may consider all relevant evidence, including, but not
limited to, any relevant psychiatric, psychological, or medical
testimony or reports, the acts constituting the offense charged,
and any history of the accused that is relevant to the accused's
ability to conform to the law.
(C) If the court conducts a hearing as described in division
(A)(2) of this section and if the court does not make both
findings described in divisions (A)(2)(a) and (b) of this section
by clear and convincing evidence, the court shall dismiss the
charges against the accused. Upon the dismissal, the court shall
discharge the accused unless the court or trial counsel files an
affidavit in probate court for civil commitment of the accused
pursuant to Chapter 5122. of the Revised Code. If the court or
trial counsel files an affidavit for civil commitment, the court
may order that the accused be detained for up to ten days pending
the civil commitment. If the probate court commits the accused
subsequent to the court's or trial counsel's filing of an
affidavit for civil commitment, the chief clinical officer of the
entity, hospital, or facility, the managing officer of the
institution, or the person to which the accused is committed or
admitted shall send to the trial counsel the notices described in
divisions (H)(4)(a)(i) to (iii) of section 5924.503 of the Revised
Code within the periods of time and under the circumstances
specified in those divisions. A dismissal of charges under this
division is not a bar to further criminal proceedings based on the
same conduct.
(D)(1) If the court conducts a hearing as described in
division (A)(2) of this section and if the court makes the
findings described in divisions (A)(2)(a) and (b) of this section
by clear and convincing evidence, the court shall commit the
accused, if determined to require mental health treatment, to the
department of mental health for treatment at a hospital, facility,
or agency as determined clinically appropriate by the department
of mental health. In committing the accused to the department of
mental health, the court shall specify the least restrictive
limitations on the accused's freedom of movement determined to be
necessary to protect public safety.
(2) If a court makes a commitment of an accused under
division (D)(1) of this section, the trial counsel shall send to
the hospital, facility, or agency where the accused is placed by
the department of mental health or to the accused's place of
commitment all reports of the accused's current mental condition
and, except as otherwise provided in this division, any other
relevant information, including, but not limited to, a transcript
of the hearing held pursuant to division (A)(2) of this section,
copies of relevant investigative reports, and copies of any prior
arrest and conviction records that pertain to the accused and that
the trial counsel possesses. The trial counsel shall send the
reports of the accused's current mental condition in every case of
commitment, and, unless the trial counsel determines that the
release of any of the other relevant information to unauthorized
persons would interfere with the effective prosecution of any
person or would create a substantial risk of harm to any person,
the trial counsel also shall send the other relevant information.
(3) If a court makes a commitment under division (D)(1) of
this section, all further proceedings shall be in accordance with
Chapter 5122. of the Revised Code.
Sec. 5924.505. For purposes of sections 5924.502 and
5924.506 of the Revised Code, a person is "not guilty by reason of
insanity" relative to a charge of an offense only as described in
division (A)(14) of section 2901.01 of the Revised Code. Proof
that a person's reason, at the time of the commission of an
offense, was so impaired that the person did not have the ability
to refrain from doing the person's act or acts, does not
constitute a defense.
Sec. 5924.506. (A) If an accused person is found not guilty
by reason of insanity, the verdict shall state that finding, and
the trial court shall conduct a full hearing to determine whether
the person is a mentally ill person subject to hospitalization by
court order. Prior to the hearing, if the military judge believes
that there is probable cause that the person found not guilty by
reason of insanity is a mentally ill person subject to
hospitalization by court order, the military judge may issue a
temporary order of detention for that person to remain in effect
for ten court days or until the hearing, whichever occurs first.
Any person detained pursuant to a temporary order of
detention issued under this division shall be held in a suitable
facility, taking into consideration the place and type of
confinement prior to and during trial.
(B) The court shall hold the hearing under division (A) of
this section to determine whether the person found not guilty by
reason of insanity is a mentally ill person subject to
hospitalization by court order within ten court days after the
finding of not guilty by reason of insanity. Failure to conduct
the hearing within the ten-day period shall cause the immediate
discharge of the respondent, unless the judge grants a continuance
for not longer than ten court days for good cause shown or for any
period of time upon motion of the respondent.
(C) If a person is found not guilty by reason of insanity,
the person has the right to attend a hearing conducted pursuant to
this section. At the hearing, the court shall inform the person
that the person has all of the following rights:
(1) The right to be represented by defense counsel or to
retain civilian counsel, if the person so chooses;
(2) The right to have independent expert evaluation;
(3) The right to subpoena witnesses and documents, to present
evidence on the person's behalf, and to cross-examine witnesses
against the person;
(4) The right to testify in the person's own behalf and to
not be compelled to testify;
(5) The right to have copies of any relevant medical or
mental health document in the custody of the state or of any place
of commitment other than a document for which the court finds that
the release to the person of information contained in the document
would create a substantial risk of harm to any person.
(D) The hearing under division (A) of this section shall be
open to the public, and the court shall conduct the hearing in
accordance with regulations prescribed by the adjutant general.
The court shall make and maintain a full transcript and record of
the hearing proceedings. The court may consider all relevant
evidence, including, but not limited to, any relevant psychiatric,
psychological, or medical testimony or reports, the acts
constituting the offense in relation to which the person was found
not guilty by reason of insanity, and any history of the person
that is relevant to the person's ability to conform to the law.
(E) Upon completion of the hearing under division (A) of this
section, if the court finds there is not clear and convincing
evidence that the person is a mentally ill person subject to
hospitalization by court order, the court shall discharge the
person, unless a detainer has been placed upon the person by the
department of rehabilitation and correction, in which case the
person shall be returned to that department.
(F) If, at the hearing under division (A) of this section,
the court finds by clear and convincing evidence that the person
is a mentally ill person subject to hospitalization by court
order, it shall commit the person to the department of mental
health for placement in a hospital, facility, or agency as
determined clinically appropriate by the department of mental
health. Further proceedings shall be in accordance with Chapter
5122. or 5123. of the Revised Code. In committing the accused to
the department of mental health, the court shall specify the least
restrictive limitations on the accused's freedom of movement
determined to be necessary to protect public safety.
(G) If a court makes a commitment of a person under division
(F) of this section, the trial counsel shall send to the hospital,
facility, or agency where the defendant is placed by the
department of mental health or to the accused's place of
commitment all reports of the person's current mental condition,
and, except as otherwise provided in this division, any other
relevant information, including, but not limited to, a transcript
of the hearing held pursuant to division (A) of this section,
copies of relevant investigative reports, and copies of any prior
arrest and conviction records that pertain to the person and that
the trial counsel possesses. The trial counsel shall send the
reports of the person's current mental condition in every case of
commitment, and, unless the trial counsel determines that the
release of any of the other relevant information to unauthorized
persons would interfere with the effective prosecution of any
person or would create a substantial risk of harm to any person,
the trial counsel also shall send the other relevant information.
(H) A person who is committed pursuant to this section shall
not voluntarily admit the person or be voluntarily admitted to a
hospital or institution pursuant to sections 5122.02 and 5122.15
of the Revised Code.
Sec. 5924.51. (A) Voting by members of a general or special
court-martial on the findings and on the sentence, and by members
of a court-martial without a military judge upon questions of
challenge, shall be by secret written ballot. The junior member of
the court shall in each case count the votes. The count shall be
checked by the president, who shall forthwith announce the result
of the ballot to the members of the court.
(B) The military judge and, except for questions of
challenge, the president of a court-martial without a military
judge shall rule upon all questions of law and all interlocutory
questions arising during the proceedings. Any such ruling made by
the military judge upon any question of law or any interlocutory
question other than the factual issue of mental responsibility of
the accused, or by the president of a special court-martial,
without a military judge upon any question of law other than a
motion for a finding of not guilty, is final and constitutes the
ruling of the court. However, the military judge or the president
of a court-martial without a military judge may change the ruling
at any time during the trial. Unless the ruling is final, if any
member objects thereto, the court shall be cleared and closed and
the question decided by a voice vote as provided in section
5924.52 of the Revised Code, beginning with the junior in rank.
(C) Before a vote is taken on the findings, the military
judge or the president of a court-martial without a military judge
shall, in the presence of the accused and counsel, instruct the
members of the court as to the elements of the offense and charge
the court them:
(1) That the accused must be presumed to be innocent until
his guilt is established by legal and competent evidence beyond
reasonable doubt;
(2) That in the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the doubt must be
resolved in favor of the accused, and he the accused must be
acquitted;
(3) That, if there is a reasonable doubt as to the degree of
guilt, the finding must be in a lower degree as to which there is
no reasonable doubt; and
(4) That the burden of proof to establish the guilt of the
accused beyond reasonable doubt is upon the state.
(D) Divisions (A), (B), and (C) of this section do not apply
to a court-martial composed of a military judge only. The military
judge of such a court-martial shall determine all questions of law
and fact arising during the proceedings and, if the accused is
convicted, adjudge an appropriate sentence. The military judge of
such a court-martial shall make a general finding and shall in
addition on request find the facts specially make specific
findings of fact. If an opinion or memorandum of decision is
filed, it will be sufficient if the findings of fact appear
therein.
Sec. 5924.52. (A)(1) No person may be convicted of an
offense for which the death penalty is made mandatory by law,
except by the concurrence of all members of the court-martial
present at the time the vote is taken.
(2) No person may be convicted of any other offense, except
as provided in division (B) of section 5924.45 of the Revised Code
or by the concurrence of two-thirds of the members of the
court-martial present at the time the vote is taken.
(B)(1) No person may be sentenced to suffer death, except by
the concurrence of all members of the court-martial present at the
time the vote is taken and for an offense in this chapter
expressly made punishable by death.
(2) No person may be sentenced to life imprisonment or to
confinement for more than ten years, except by the concurrence of
three-fourths of the members present at the time the vote is
taken.
(3) All other sentences shall be determined by the
concurrence of two-thirds of the members present at the time the
vote is taken.
(C) All other questions to be decided by the members of a
general or special court-martial shall be determined by a majority
vote, but a determination to reconsider a finding of guilty or to
reconsider a sentence, to decrease or lessen it, may be made by
any lesser vote which that indicates that the reconsideration is
not opposed by the number of votes required for that finding or
sentence. A tie vote on a challenge disqualifies the member
challenged. A tie vote on a motion for a finding of not guilty or
on a motion relating to the question of the accused's sanity is a
determination against the accused. A tie vote on any other
question is a determination in favor of the accused.
Sec. 5924.54. (A) Each general court-martial shall keep a
separate record of the proceedings in each case brought before it,
and the record shall be authenticated by the signature of the
military judge. If the record cannot be authenticated by the
military judge by reason of his death, disability, or absence, it
shall be authenticated by the signature of the trial counsel or by
that of a member if the trial counsel is unable to authenticate it
by reason of his death, disability, or absence. In a court-martial
consisting of only a military judge, the record shall be
authenticated by the court reporter under the same conditions
which that would impose such a duty on a member under this
division if the proceedings have resulted in an acquittal of all
charges and specifications or, if not affecting a general or flag
officer, in a sentence not including discharge and not in excess
of that which may otherwise be adjudged by a special
court-martial. The record shall contain matters as may be
prescribed by regulations of the governor.
(B) Each special and summary court-martial shall keep a
separate record of the proceedings in each case, which and the
record shall contain such matter and be authenticated in such the
manner as may be required by regulations which the governor may
prescribe prescribed by the adjutant general.
(C)(1) A complete record of the proceedings and testimony
shall be prepared in the following cases:
(a) Each case tried before a general court-martial in which
the sentence adjudged includes a dismissal, a discharge, or any
punishment that exceeds the punishment that may otherwise be
adjudged by a special court-martial;
(b) Each case tried before a special court-martial in which
the sentence adjudged includes a bad-conduct discharge or
confinement for more than six months.
(2) In all other cases tried before a court-martial, the
record shall contain any matters that are required by regulations
of the adjutant general. A copy of the record of the proceedings
of each general and special court-martial shall be given to the
accused as soon as it is authenticated.
If a verbatim record of
trial by general or special court-martial is not required under
divisions (A) and (B) of this section, the accused may buy such a
record under such regulations as the governor may prescribe.
Sec. 5924.56. The punishment which that a court-martial may
direct for an offense may not exceed limits prescribed by this
code or such lesser limits as the
governor may prescribe adjutant
general for the offense.
Sec. 5924.57. (A) Whenever a sentence of a court-martial as
lawfully adjudged and approved includes a forfeitures (1) A
forfeiture of pay or allowances in addition to confinement not
suspended or deferred, the forfeiture may apply to pay or
allowances becoming due on or after the date the sentence is
approved by the convening authority. No forfeiture may extend to
any pay or allowances accrued before that date or reduction in
grade that is included in a sentence of a court-martial takes
effect on the earlier of the date that is fourteen days after the
date on which the sentence is adjudged or the date on which the
sentence is approved by the convening authority.
(2) On application of an accused, the convening authority may
defer a forfeiture of pay or allowances or reduction in grade that
would otherwise become effective on the date that is fourteen days
after the date on which the sentence is adjudged until the date on
which the sentence is approved by the convening authority. The
convening authority may at any time rescind a deferment granted
under this division.
(3) A forfeiture of pay or allowances applies to pay or
allowances accruing on and after the date on which the sentence
takes effect.
(B) Any period of confinement included in a sentence of a
court-martial begins to run from the date the sentence is adjudged
by the court-martial, but periods during which the sentence to
confinement is suspended or deferred shall be excluded in
computing the service of the term of confinement. Regulations
prescribed by the governor may provide that sentences of
confinement may not be executed until approved by designated
officers.
(C) All other sentences of courts-martial are effective on
the date ordered executed.
(D)(1) On application by an accused who is under sentence to
confinement that has not been ordered executed, the convening
authority or, if the accused is no longer under his the convening
authority's jurisdiction, the
governor, officer exercising general
court-martial jurisdiction over the command to which the accused
is currently assigned may in his the officer's sole discretion
defer service of the sentence to confinement. The deferment shall
terminate when the sentence is ordered executed. The deferment may
be rescinded at any time by the officer who granted it or, if the
accused is no longer under his
the officer's jurisdiction, by the
governor officer exercising general court-martial jurisdiction
over the command to which the accused is currently assigned.
(2) In any case in which a court-martial sentences a person
described in division (D)(3) of this section to confinement, the
convening authority may defer the service of the sentence to
confinement, without the consent of that person, until after the
person has been permanently released to the armed forces by a
state or foreign country referred to in that division.
(3) Division (D)(2) of this section applies to a person
subject to this chapter who, while in the custody of a state or
foreign country, is temporarily returned by that state or foreign
country to the armed forces for trial by court-martial and after
the court-martial is returned to that state or foreign country
under the authority of a mutual agreement or treaty.
(4) As used in division (D)(3) of this section, "state"
includes the District of Columbia and any state, commonwealth,
territory, or possession of the United States having a national
guard.
(E) In any case in which a sentence to confinement has been
ordered executed but in which review of the case under section
5924.64 of the Revised Code is pending, the adjutant general may
defer further service of the sentence while the review is pending.
Sec. 5924.58. (A) A Subject to regulations prescribed by the
adjutant general, a sentence of confinement adjudged by a
court-martial or other military court tribunal, whether or not the
sentence includes discharge or dismissal, and whether or not the
discharge or dismissal has been executed, may be carried into
execution by confinement in any
place of confinement under the
control of any of the forces of the organized militia or in any
jail or prison designated for that purpose jail or correctional
facility in this state. Persons so confined in a jail or prison
are subject to the same discipline and treatment as persons
confined or committed to the jail or prison correctional facility
by the courts of the state or of any political subdivision
thereof of the state.
(B) The omission of the words "hard labor" from any sentence
or punishment of a court-martial adjudging confinement does not
deprive the authority executing that sentence or punishment of the
power to require hard labor as a part of the punishment.
(C) The keepers, officers, and wardens of city or county
jails and of other jails or prisons designated by the governor, or
by such person as he may authorize to act under section 5924.11 of
the Revised Code and of this code, shall receive persons ordered
into confinement before trial and persons committed to confinement
by a military court and shall confine them according to law. No
such keeper, officer, or warden may require payment of any fee or
charge kind may be required for so receiving or confining a person
housing a prisoner under this code.
Sec. 5924.581. (A) Except as otherwise provided in
regulations made by the adjutant general, a court-martial sentence
of an enlisted member in a pay grade above E-1 that includes a
dishonorable or bad-conduct discharge, confinement, or hard labor
without confinement reduces the member to pay grade E-1, effective
on the date the convening authority approves the sentence.
(B) If the sentence of a member who is reduced in pay grade
under division (A) of this section is set aside or disapproved, or
as finally approved does not include a dishonorable or bad-conduct
discharge, confinement, or hard labor without confinement, the
rights and privileges of which the member was deprived because of
the reduction in pay are restored, and the member shall be paid
the pay and allowances that the member would have been paid for
the period the reduction was in effect had the member not been
reduced in pay.
Sec. 5924.582. (A) A member who receives a court-martial
sentence that includes confinement for more than six months or
confinement for six months or less and a dishonorable or
bad-conduct discharge or dismissal forfeits pay, or pay and
allowances, during any period of confinement or parole. The
forfeiture takes effect on the date determined under section
5924.57 of the Revised Code and may be deferred as provided by
that section. The pay and allowances forfeited as a result of a
sentence imposed by a general court-martial shall be all pay and
allowances due during any period of confinement or parole. The pay
and allowances forfeited as a result of a sentence imposed by a
special court-martial shall be two-thirds of all pay and
allowances due during any period of confinement or parole.
(B) If a member subject to forfeiture of pay or pay and
allowances under division (A) of this section has dependents, the
convening authority or other person acting under section 5924.60
of the Revised Code may waive all or part of the forfeiture of pay
and allowances for a period not exceeding six months. Any pay or
allowances paid as a result of a waiver shall be paid, as the
convening authority or other person taking action directs, to the
dependents of the accused member.
(C) If the sentence of a member who forfeits pay and
allowances under division (A) of this section is set aside or
disapproved or, as finally approved, does not provide for a
punishment that includes confinement for more than six months or
confinement for six months or less and a dishonorable or
bad-conduct discharge or dismissal, the member shall be paid the
pay and allowances that the member would have been paid for the
period the forfeiture was in effect had the member's pay and
allowances not been forfeited.
Sec. 5924.59. (A) A finding or sentence of a court-martial
may not be held incorrect on the ground of an error of law unless
the error materially prejudices the substantial rights of the
accused.
(B) Any reviewing authority with the power to approve or
affirm a finding of guilty may instead approve or affirm so much
of the finding as includes a lesser included offense.
Sec. 5924.60. After a trial by (A) A court-martial, the
record shall be forwarded report its findings and sentence to the
convening authority, as reviewing authority, and action thereon
may be taken by after announcing the person who convened the
court, a commissioned officer commanding for the time being, a
successor in command, or by the governor sentence.
(B)(1) The accused may submit to the convening authority
matters relating to the findings and sentence to the convening
authority for its consideration. A submission shall be in writing.
A submission shall be made within ten days after the accused has
been given an authenticated record of trial and, if applicable,
the recommendation of the staff judge advocate or legal officer
under division (D) of this section or, in a summary court-martial
case, within seven days after the sentence is announced.
(2) The convening authority or other person taking action
under this section, for good cause shown by the accused, may
extend the period for submission of matters under division (B)(1)
of this section for not more than twenty days.
(3) In a summary court-martial case, the summary court
officer shall promptly provide the accused with a copy of the
record of trial for use in preparing a submission authorized by
division (B)(1) of this section.
(4) The accused may waive the right to make a submission
under division (B)(1) of this section. A waiver shall be made in
writing and may not be revoked. The time within which the accused
may make a submission under this subsection expires upon the
submission of a waiver to the convening authority.
(C)(1) The authority under this section to act on the
findings and sentence of a court-martial is a matter of command
prerogative involving the sole discretion of the convening
authority. Pursuant to regulations prescribed by the adjutant
general, a commissioned officer commanding for the time being, a
successor in command, or any person exercising general
court-martial jurisdiction may act under this section in place of
the convening authority.
(2) The convening authority or another person authorized to
act under this section may act on the sentence of a court-martial
pursuant to division (B)(3) of this section. Subject to
regulations prescribed by the adjutant general, the convening
authority or other authorized person may act only after the
accused submits matters under division (B) of this section or the
time for submitting matters expires, whichever is earlier. If the
accused makes a submission, the convening authority or other
authorized person shall take the submission into consideration
before acting.
(3) The convening authority or other authorized person, in
the convening authority's or other authorized person's sole
discretion, may approve, disapprove, commute, or suspend the
sentence of a court-martial in whole or in part. The convening
authority or other authorized person acting on a sentence may but
is not required to take action on the findings of the
court-martial. A convening authority or other authorized person
that chooses to act on the findings may dismiss any charge or
specification by setting aside a finding of guilt with regard to
that charge or specification or may change a finding of guilty
with regard to a charge or specification to a finding of guilty to
an offense that is a lesser included offense of the offense stated
in the charge or specification.
(D) Before acting under this section on any general
court-martial case or on any special court-martial case that
includes a bad-conduct discharge, the convening authority or other
authorized person shall obtain and consider the written
recommendation of the convening authority's or other authorized
person's staff judge advocate or legal officer. The convening
authority or other authorized person shall refer the record of
trial to the staff judge advocate or legal officer. The staff
judge advocate or legal officer shall use the record in the
preparation of a recommendation. The recommendation shall include
any matters that the adjutant general may require by regulation
and shall be served on the accused. The accused may submit any
matter in response under division (B) of this section. If in the
accused's response, the accused does not object to one or more
matters contained in the recommendation, the accused waives the
right to object to those matters.
(E)(1) The convening authority or other authorized person, in
the convening authority's or other authorized person's sole
discretion, may order a proceeding in revision or a rehearing.
(2) The convening authority or other authorized person may
order a proceeding in revision if there is an apparent error or
omission in the record of a court-martial or if the record shows
improper or inconsistent action by a court-martial with respect to
the findings or sentence that can be rectified without material
prejudice to the substantial rights of the accused. In a
proceeding in revision, the convening authority or other
authorized person may not do any of the following:
(a) Reconsider a finding of not guilty of any specification
or a ruling that amounts to a finding of not guilty;
(b) Reconsider a finding of not guilty of any charge, unless
there has been a finding of guilty under a specification laid
under that charge that sufficiently alleges a violation of any
provision of this chapter;
(c) Increase the severity of the sentence.
(3) The convening authority or other authorized person may
order a rehearing if the convening authority or other authorized
person disapproves the findings or sentence and states the reasons
for disapproval of the findings or sentence. If the convening
authority or other authorized person disapproves the findings or
sentence and does not order a rehearing, the convening authority
or other authorized person shall dismiss the charges. A convening
authority or other authorized person may not order a rehearing as
to the findings if the record does not contain sufficient evidence
to support the findings. A convening authority or other authorized
person may order a rehearing as to the sentence if the convening
authority or other authorized person disapproves the sentence.
Sec. 5924.61. (A) An accused may appeal a finding of guilty
or the sentence of a court-martial to the court of military
appeals. The court shall hear an appeal if the convening authority
or other authorized person approved a sentence of dismissal of a
commissioned officer, dishonorable or bad conduct discharge, or
confinement for one year or more and if the appeal was timely
filed. The court may hear any other appeals that the court, in its
sole discretion, allows.
(B) An accused who is found guilty may appeal under this
section by filing a notice of appeal with the convening authority
that ordered the court-martial within thirty calendar days after
the convening authority serves a copy of the approved findings and
sentence on the trial attorney of record for the accused or, if
the accused waived the right to counsel, on the accused in
accordance with regulations prescribed by the adjutant general.
The notice of appeal shall state the name of the party taking the
appeal, the findings, sentence, or parts of the findings or
sentence appealed from, and the grounds for the appeal. Failure to
file a notice of appeal in a timely manner constitutes a waiver of
the right to appeal.
(C) Upon receiving a notice of appeal, the convening
authority shall serve a copy of the notice on the trial counsel
and on the trial attorney of record for any codefendant or, if a
codefendant waived the right to counsel, on the codefendant in
accordance with regulations prescribed by the adjutant general.
The convening authority shall note on each copy served the date on
which the notice of appeal was filed. Failure of the convening
authority to serve a copy of the notice of appeal does not affect
the validity of the appeal. Service in accordance with division
(C) of this section is sufficient notwithstanding the death of a
party or a party's counsel. The convening authority shall note on
its docket the names of the parties served, the dates on which
they were served, and the method of service.
(D) An accused may waive appellate review by filing with the
convening authority, within ten days after the action under
section 5924.60 of the Revised Code is served on the accused or on
defense counsel, a written waiver signed by the accused and by
defense counsel. The convening authority or other person taking
such action, for good cause, may extend the period for filing by
not more than thirty days.
(E) An accused may voluntarily withdraw an appeal at any time
by filing a notice of withdrawal with the convening authority.
(F) A waiver of the right to appellate review or the
withdrawal of an appeal bars any further review under this section
or section 5924.69 of the Revised Code.
Sec. 5924.62. (A) In a trial by court-martial in which a
military judge presides and in which a punitive discharge may be
adjudged, the state may appeal any of the following, except an
order or ruling that is, or that amounts to, a finding of not
guilty with respect to the charge or specification:
(1) An order or ruling that terminates the proceedings with
respect to a charge or specification;
(2) An order or ruling that excludes evidence that is of
substantial consequence to the determination of the material
issues in the proceeding;
(3) An order or ruling that directs the disclosure of
classified information;
(4) An order or ruling that imposes sanctions for
nondisclosure of classified information;
(5) A refusal by the military judge to issue a protective
order sought by the state to prevent the disclosure of classified
information;
(6) A refusal by the military judge to enforce a protective
order that has previously been issued by appropriate authority to
prevent the disclosure of classified information.
(B) The state may not appeal an order or ruling unless within
seventy-two hours after the military judge serves the order or
ruling the trial counsel files with the military judge a written
notice of appeal from the order or ruling. The notice shall
include a certification by the trial counsel that the appeal is
not taken for the purpose of delay and, if the order or ruling
appealed is one that excludes evidence, that the evidence excluded
is substantial proof of a fact material in the proceeding.
(C) Appellate government counsel shall diligently prosecute
an appeal under this section to the court of military appeals
created by section 5924.66 of the Revised Code.
(D) Any period of delay resulting from an appeal under this
section shall be excluded in deciding any issue regarding denial
of a speedy trial unless an appropriate authority determines that
the appeal was filed solely for the purpose of delay with the
knowledge that it was totally frivolous and without merit.
Sec. 5924.63. (A) If the convening authority disapproves the
findings and sentence of a court-martial he may, except where
there is lack of sufficient evidence in the record to support the
findings, order a rehearing. In such a case he shall state the
reasons for disapproval. If he disapproves the findings and
sentence and does not order a rehearing, he shall dismiss the
charges.
(B) Each rehearing ordered pursuant to section 5924.60 of the
Revised Code or by the court of military appeals shall take place
before a court-martial composed of members who were not members of
the court-martial
which that first heard the case. Upon a
rehearing the accused may not be tried for any offense of which he
the accused was found not guilty by the first court-martial, and
no sentence in excess of or more severe than the original sentence
may be imposed, approved unless the sentence is based upon a
finding of guilty of an offense not considered upon the merits in
the original proceedings, or unless the sentence prescribed for
the offense is mandatory. If the sentence approved after the first
court-martial was in accordance with a pretrial agreement and the
accused at the rehearing changes the accused's plea with respect
to the charges or specifications upon which the pretrial agreement
was based or otherwise does not comply with the pretrial
agreement, the approved sentence as to those charges or
specifications may include any punishment not in excess of the
punishment lawfully adjudged at the first court-martial.
Sec. 5924.64. (A) A judge advocate shall review pursuant to
regulations prescribed by the adjutant general each case in which
there has been a finding of guilty and in which no appeal is
taken. A judge advocate may not review a case under this section
if the judge advocate has acted in the same case as an accuser,
investigating officer, member of the court, military judge, or
counsel or has otherwise acted on behalf of the prosecution or
defense. For each case reviewed under this section, the judge
advocate shall issue written findings and recommendations that
contain all of the following:
(1) Conclusions as to whether the court had jurisdiction over
the accused and the offense;
(2) Conclusions as to whether the charge and specification
stated an offense;
(3) Conclusions as to whether the sentence was within the
limits prescribed by law;
(4) A response to each allegation of error made in writing by
the accused;
(5) If the case is sent for action under division (B) of this
section, a recommendation as to the appropriate action to be taken
and an opinion as to whether corrective action is required as a
matter of law.
(B) The record of trial and related documents in each case
reviewed under division (A) of this section shall be sent for
further action under division (C) of this section to the person
exercising general court-martial jurisdiction over the accused at
the time the court was convened or that person's successor in
command if any of the following applies:
(1) The judge advocate who reviewed the case recommends
corrective action.
(2) The sentence approved under division (C) of section
5924.60 of the Revised Code includes dismissal, a bad-conduct or
dishonorable discharge, or confinement for more than six months.
(3) Regulations prescribed by the adjutant general require
further review.
(C) The person to whom the record of trial and related
documents are sent under division (B) of this section may do any
of the following:
(1) Approve or disapprove the findings or sentence in whole
or in part;
(2) Remit, commute, or suspend the sentence in whole or in
part;
(3) Order a rehearing on the findings, the sentence, or both;
(D) If a rehearing is ordered but the convening authority
finds that a rehearing is impracticable, the convening authority
shall dismiss the charges.
(E) If the opinion of the judge advocate who reviews a case
under division (A) of this section finds that corrective action is
required as a matter of law and the person required to take action
under division (B) of this section does not take action that is at
least as favorable to the accused as that recommended by the judge
advocate, the convening authority shall transmit the record of
trial and action on that record to the state judge advocate for
review.
(F) The judge advocate who under this section reviews a case
conducted by a general court-martial shall be the state judge
advocate.
Sec. 5924.65. If an accused files a notice of appeal, the
convening authority shall transmit the record of trial and
post-trial proceedings in the case to the state judge advocate for
appropriate action. If the accused does not file a notice of
appeal or files a notice of appeal and withdraws the appeal, then
following completion of all post-trial review, the record of trial
and related documents shall be transmitted and disposed of as the
adjutant general may prescribe by regulation.
Sec. 5924.66. (A) There is hereby created the court of
military appeals. The court is a court of record and has exclusive
jurisdiction of all appeals from courts-martial convened pursuant
to this code. The court shall sit in Franklin county. All hearings
conducted by the court shall be public.
(B) The judges of the court of military appeals shall be
military appellate judges appointed by the adjutant general. Each
judge shall be a retired judge advocate officer who has previously
served in the rank of colonel or above in either the Ohio army
national guard or the Ohio air national guard. The judges shall
sit in panels of not less than three members.
(C) The adjutant general may make rules governing practice
and procedure in the court of military appeals. The Rules of
Appellate Procedure apply in proceedings in the court to the
extent that they are not inconsistent with this code or with rules
made by the adjutant general under this division.
Sec. 5924.67. A judge of the court of military appeals shall
receive as compensation for each day of attendance on the business
of the court an amount equal to the annual compensation of a judge
of a court of appeals divided by the number of days in the
calendar year. A judge who resides more than fifty miles from the
location of the court also shall be reimbursed for the judge's
actual and necessary expenses of traveling to and from the court
to attend the business of the court.
Sec. 5924.68. The court of military appeals may subpoena
witnesses, require the production of evidence, and punish for
contempt in the same manner and to the same extent as a common
pleas court.
Sec. 5924.69. Appeals from orders and judgments of the court
of military appeals may be taken to the supreme court in the same
manner and to the same extent as criminal appeals from orders and
judgments of a court of appeals.
Sec. 5924.70. (A) The state judge advocate shall detail one
or more judge advocates as appellate government counsel and one or
more judge advocates assigned to the United States army trial
defense service or the United States air force area defense
counsel as appellate defense counsel. Appellate counsel shall be
members in good standing of the bar of this state and certified by
the state judge advocate to be competent to act as appellate
counsel.
(B) Appellate government counsel shall represent the state in
the court of military appeals. In a case arising under this code
that is heard in the supreme court, appellate government counsel
shall represent the state in the supreme court unless the attorney
general elects to represent the state.
(C) Appellate defense counsel shall represent the accused in
the court of military appeals and the supreme court unless the
accused elects to be represented by civilian counsel at the
accused's own expense.
(D) Appellate government and defense counsel shall perform
any additional functions in connection with post-trial proceedings
in court-martial cases that the state judge advocate directs.
Sec. 5924.71. (A) If the sentence of a court-martial of a
commissioned officer or cadet includes dismissal, that part of the
sentence providing for dismissal may not be executed until it is
approved by the adjutant general. The adjutant general may
commute, remit, or suspend the sentence or any part of the
sentence as the adjutant general sees fit. In time of war or
national emergency, the adjutant general may commute a sentence of
dismissal to reduction to any enlisted grade. A person so reduced
may be required to serve for the duration of the war or emergency
and for six months after the end of the war or emergency.
(B)(1) If the sentence of a court-martial includes dismissal
or dishonorable or bad-conduct discharge and the accused appeals
to the court of military appeals, the dismissal or discharge part
of the sentence may not be executed until the appellate process
has been completed and, in case of dismissal, approval of the
sentence by the adjutant general. The appellate process is
completed when any of the following occurs:
(a) The accused withdraws the appeal.
(b) The court of military appeals renders a decision, and the
time for filing a notice of appeal to the supreme court elapses
without the accused having filed a notice of appeal.
(c) The supreme court issues an order dismissing the appeal
or entering judgment on the leave to appeal.
(2) If the sentence of a court-martial includes dismissal or
dishonorable or bad-conduct discharge and the accused fails to
appeal to the court of military appeals, waives appellate review,
or withdraws an appeal, the dismissal or discharge part of the
sentence may not be executed until a judge advocate has reviewed
the case and the convening authority has completed action in the
review pursuant to section 5924.64 of the Revised Code. Any other
part of a court-martial sentence may be ordered executed by the
convening authority or other person acting on the case under
section 5924.60 of the Revised Code.
(C) The convening authority or other person taking action on
a court-martial case under section 5924.60 of the Revised Code may
suspend at any time the execution of any sentence or part of a
sentence.
Sec. 5924.72. (A) An officer having special court-martial
jurisdiction over a person whose sentence has been suspended may
recommend vacation of the suspension of an approved sentence or
part of a sentence that was imposed by a special court-martial and
includes a bad-conduct discharge or that was imposed by a general
court-martial.
(B) Before the vacation of vacating the suspension of a
special court-martial sentence which as approved includes a bad
conduct discharge, or of any general court-martial or part of a
sentence under division (A) of this section, the an officer having
special court-martial jurisdiction over the probationer a person
whose sentence has been suspended shall hold a hearing on the
alleged violation of probation the terms of suspension. The
probationer shall person has the right to be represented at the
hearing by counsel
if he so desires.
(B)(C) The record of the hearing and the recommendation of
the officer having special court-martial jurisdiction shall be
sent for action to the governor in cases involving a officer
exercising general court-martial sentence and to the commanding
officer of the force of the organized militia of which
jurisdiction over the probationer is a member in all other cases
covered by division (A) of this section person whose sentence has
been suspended. If the governor or commanding that officer vacates
the suspension, any unexecuted part of the sentence except a
dismissal shall be executed, subject to applicable restrictions
set forth in section 5924.71 of the Revised Code. A vacation of
the suspension of a dismissal is not effective until it is
approved by the adjutant general.
(C)(D) The suspension of any other sentence may be vacated by
any authority competent to convene, for the command in which the
accused is serving or assigned, a court of the kind that imposed
the sentence.
Sec. 5924.73. At any time within two years after approval by
the convening authority of a court-martial sentence, the accused
may petition the governor adjutant general for a new trial on the
ground of newly discovered evidence or fraud on the court-martial.
The adjutant general shall act upon the petition unless the case
is pending before the court of military appeals or the supreme
court, in which case the adjutant general shall refer the petition
to the court in which the appeal is pending.
Sec. 5924.74. (A) A The adjutant general, the state judge
advocate when authorized by the adjutant general, or a convening
authority may remit or suspend any part or amount of the
unexecuted part of any sentence, including all uncollected
forfeitures, other than a sentence approved by the governor or a
superior convening authority.
(B) The governor adjutant general may, for good cause,
substitute an administrative form of discharge for a discharge or
dismissal executed in accordance with the sentence of a
court-martial.
Sec. 5924.75. (A) Under such any regulations as that the
governor
adjutant general may prescribe, all rights, privileges,
and property affected by an executed part of a court-martial
sentence
which that has been set aside or disapproved, except an
executed dismissal or discharge, shall be restored unless a new
trial or rehearing is ordered and such the executed part of the
sentence is included in a sentence imposed upon the new trial or
rehearing.
(B) If a previously executed sentence of dishonorable or bad
conduct discharge is not imposed on a new trial, the governor
adjutant general shall substitute therefor a form of discharge
authorized for administrative issuance unless the accused is to
serve out the remainder of his the accused's enlistment.
(C) If a previously executed sentence of dismissal is not
imposed on a new trial, the governor adjutant general shall
substitute therefor a form of discharge authorized for
administrative issue, and the commissioned officer dismissed by
that sentence may be reappointed by the governor adjutant general
alone to such commissioned grade and with such rank as in the
opinion of the governor adjutant general that former officer would
have attained had he the former officer not been dismissed. The
reappointment of such a former officer may shall be made if
without regard to the existence of a position vacancy is available
under applicable tables and shall affect the promotion status of
organization other officers only to the extent directed by the
adjutant general. All time between the dismissal and the
reappointment shall be considered as service for all purposes
including the right to pay and allowances.
(D) Pursuant to regulations prescribed by the adjutant
general, an accused who has been sentenced by a court-martial may
be required to take leave pending completion of action under this
code if the sentence, as approved under section 5924.60 of the
Revised Code, includes an unsuspended dismissal or an unsuspended
dishonorable or bad-conduct discharge. The accused may be required
to begin leave on the date on which the sentence is approved or at
any time after that date. Leave may be continued until the date on
which action is completed or may be terminated at any earlier
time.
Sec. 5924.76. The appellate review of records of trial
pursuant to this code, the proceedings, findings, and sentences of
courts-martial as
reviewed and approved, as required by reviewed,
or affirmed pursuant to this code, and all dismissals and
discharges carried into execution under sentences by
courts-martial following
review and approval, as required by
review, or affirmation pursuant to this code, are final and
conclusive. Orders publishing the proceedings of courts-martial
and all action taken pursuant to those proceedings are binding
upon all departments, courts, agencies, and officers of the state,
subject only to action upon a petition for a new trial as provided
in section 5924.73 of the Revised Code and to action by the
adjutant general under section 5924.74 of this code the Revised
Code.
Sec. 5924.761. Pursuant to regulations prescribed by the
adjutant general, an accused who has been sentenced by a
court-martial may be required to take leave pending completion of
action under sections 5924.59 to 5924.761 of the Revised Code if
the sentence, as approved under section 5924.60 of the Revised
Code, includes an unsuspended dismissal or an unsuspended
dishonorable or bad-conduct discharge. The accused may be required
to begin the leave on the date on which the sentence is approved
under section 5924.60 of the Revised Code or at any time after
that date, and the leave may be continued until the date on which
action under sections 5924.59 to 5924.761 of the Revised Code is
terminated or completed.
Sec. 5924.77. Any person subject to this code is a principal
who if the person does either of the following:
(A) Commits an offense punishable by this code, or aids,
abets, counsels, commands, or procures its commission;
(B) Causes an act to be done which if directly performed by
him the person would be punishable by this code.
Sec. 5924.78. Any person subject to this code who, knowing
that an offense punishable by this code has been committed,
receives, comforts, or assists the offender in order to hinder or
prevent his the offender's apprehension, trial, or punishment
shall be punished as a court-martial may direct.
Sec. 5924.82. (A) Any person subject to this code who
solicits or advises another or others to desert in violation of
section 5924.85 of the Revised Code and of this code or mutiny in
violation of section 5924.94 of the Revised Code and of this code
shall, if the offense solicited or advised is attempted or
committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or
advised is not committed or attempted, he the person shall be
punished as a court-martial may direct.
(B) Any person subject to this code who solicits or advises
another or others to commit an act of misbehavior before the enemy
in violation of section 5924.99 of the Revised Code and of this
code or sedition in violation of section 5924.94 of the Revised
Code and of this code shall, if the offense solicited or advised
is committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or
advised is not committed, he the person shall be punished as a
court-martial may direct.
Sec. 5924.83. Any person who does either of the following
shall be punished as a court-martial may direct:
(A) Procures his the person's own enlistment or appointment
in the organized militia by knowingly false representation or
deliberate concealment as to his
the person's qualifications for
that enlistment or appointment and receives pay or allowances
thereunder; or
(B) Procures his the person's own separation from the
organized militia by knowingly false representation or deliberate
concealment as to his the person's eligibility for that
separation;
shall be punished as a court-martial may direct.
Sec. 5924.84. Any person subject to this code who effects an
enlistment or appointment in or a separation from the organized
militia of any person who is known to him the person to be
ineligible for that enlistment, appointment, or separation because
it is prohibited by law, regulation, or order shall be punished as
a court-martial may direct.
Sec. 5924.85. (A) Any member of the organized militia who
does any of the following is guilty of desertion:
(1) Without authority goes or remains absent from his the
member's unit, organization, or place of duty with intent to
remain away
therefrom from the unit, organization, or place of
duty permanently;
(2) Quits his the member's unit, organization, or place of
duty with intent to avoid hazardous duty or to shirk important
service; or
(3) Without being regularly separated from one of the forces
of the organized militia enlists or accepts an appointment in the
same or another one of the forces of the organized militia without
fully disclosing the fact that he the member has not been
regularly separated;
(4) Without being regularly separated from one of the forces
of the organized militia enters any foreign armed services without
the authorization of the United States.
(B) Any commissioned officer of the organized militia who,
after tender of his the commissioned officer's resignation and
before notice of its acceptance, quits his the commissioned
officer's post or proper duties without leave and with intent to
remain away therefrom permanently is guilty of desertion.
(C) Any person found guilty of desertion or attempt to desert
shall be punished, if the offense is committed in time of war, by
death or such other punishment as a court-martial may direct, but
if the desertion or attempt to desert occurs at any other time, by
such punishment, other than death, as a court-martial may direct.
Sec. 5924.86. Any person subject to this code who, without
authority, does any of the following shall be punished as a
court-martial may direct:
(A) Fails to go to his the person's appointed place of duty
at the time prescribed;
(B) Goes from his the person's appointed place of duty; or
(C) Absents himself self or remains absent from his
the
person's unit, organization, or place of duty at which he the
person is required to be at the time prescribed; shall be punished
as a court-martial may direct.
Sec. 5924.87. Any person subject to this code who through
neglect or design misses the movement of a ship, aircraft, or unit
with which he the person is required in the course of duty to move
shall be punished as a court-martial may direct.
Sec. 5924.88. Any person subject to this code commissioned
officer who uses contemptuous words against the president, the
governor, or the legislature, or the governor or legislature of
any this state, territory, commonwealth, or possession wherein
that person may be serving, shall be punished as a court-martial
may direct.
Sec. 5924.89. Any person subject to this code who behaves
with disrespect toward his the person's superior commissioned
officer shall be punished as a court-martial may direct.
Sec. 5924.90. Any person subject to this code who does
either of the following shall be punished as a court-martial may
direct:
(A) Strikes his the person's superior commissioned officer or
draws or lifts up any weapon or offers any violence against him
the person's superior commissioned officer while he that officer
is in the execution of his office official duties; or
(B) Willfully disobeys a lawful command of his the person's
superior commissioned officer;
shall be punished as a court-martial may direct.
Sec. 5924.91. Any warrant officer or enlisted member who
does any of the following shall be punished as a court-martial may
direct:
(A) Strikes or assaults a warrant officer, or noncommissioned
officer, or petty officer, while that officer is in the execution
of his office
official duties;
(B) Willfully disobeys the lawful order of a warrant officer,
or noncommissioned officer, or petty officer; or
(C) Treats with contempt or is disrespectful in language or
deportment toward a warrant officer, or noncommissioned officer,
or petty officer, while that officer is in the execution of his
office;
shall be punished as a court-martial may direct official duties.
Sec. 5924.92. Any person subject to this code who does any
of the following shall be punished as a court-martial may direct:
(A) Violates or fails to obey any lawful general order or
regulation;
(B) Having knowledge of any other lawful order issued by a
member of the organized militia, which it that is his the person's
duty to obey, fails to obey the order; or
(C) Is derelict in the performance of his the person's
duties;
shall be punished as a court-martial may direct.
Sec. 5924.93. Any person subject to this code who is guilty
of cruelty toward, or oppression or maltreatment of, any other
person subject to
his the person's orders shall be punished as a
court-martial may direct.
Sec. 5924.94. (A)(1) Any person subject to this code who:
(1) With, with intent to usurp or override lawful military
authority, refuses, in concert with any other person, to obey
orders or otherwise do his
the person's duty or creates any
violence or disturbance is guilty of mutiny;.
(2) With Any person subject to this code who, with intent to
cause the overthrow or destruction of lawful civil authority,
creates, in concert with any other person, revolt, violence, or
other disturbance against that authority is guilty of sedition;.
(3) Fails Any person subject to this code who fails to do his
the person's utmost to prevent and suppress a mutiny or sedition
being committed in his the person's presence, or fails to take all
reasonable means to inform his the person's superior commissioned
officer or commanding officer of a mutiny or sedition
which he
that the person knows or has reason to believe is taking place, is
guilty of a failure to suppress or report a mutiny or sedition.
(B) A person who is found guilty of attempted mutiny, mutiny,
sedition, or failure to suppress or report a mutiny or sedition
shall be punished by death or such other punishment as a
court-martial may direct.
Sec. 5924.95. Any person subject to this code who resists
apprehension or, flees from apprehension, breaks arrest, or who
escapes from physical restraint lawfully imposed custody or
confinement shall be punished as a court-martial may direct.
Sec. 5924.96. Any person subject to this code who, without
proper authority, releases any prisoner committed to his the
person's charge, or who through neglect or design suffers any such
prisoner committed to the person's charge to escape, shall be
punished as a court-martial may direct, whether or not the
prisoner was committed in strict compliance with law.
Sec. 5924.97. Any person subject to this code, who, except
as provided by law
or regulation, apprehends, arrests, or confines
any person shall be punished as a court-martial may direct.
Sec. 5924.98. Any person subject to this code who:
(A) Is is responsible for unnecessary delay in the
disposition of any case of a person accused of an offense under
this code; or
(B) Knowingly who knowingly and intentionally fails to
enforce or comply with any provision of this code regulating the
proceedings before, during, or after trial of an accused;
shall be punished as a court-martial may direct.
Sec. 5924.103. (A) All persons subject to this code shall
secure all public property taken from the enemy for the service of
the United States, and this state and shall give notice and turn
over to the proper authority without delay all captured or
abandoned property in their possession, custody, or control.
(B) Any person subject to this code who does any of the
following shall be punished as a court-martial may direct:
(1) Fails to carry out the duties prescribed in division (A)
of this section;
(2) Buys, sells, trades, or in any way deals in or disposes
of captured or abandoned property, whereby he the person receives
or expects any profit, benefit, or advantage to himself self or
another directly or indirectly connected with himself self; or
(3) Engages in looting or pillaging;
shall be punished as a court-martial may direct.
Sec. 5924.108. Any person subject to this code who, without
proper authority, does any of the following with regard to any
military property of the United States or of this state shall be
punished as a court-martial may direct:
(A) Sells or otherwise disposes of the property;
(B) Willfully or through neglect damages, destroys, or loses
the property;
or
(C) Willfully or through neglect suffers to be lost, damaged,
destroyed, sold, or wrongfully disposed of;
any military property of the United States or of the state, shall
be punished as a court-martial may direct the property.
Sec. 5924.109. Any person subject to this code who, while in
a duty status, willfully or recklessly wastes, spoils, or
otherwise willfully and wrongfully destroys or damages any
property other than military property of the United States or of
the state shall be punished as a court-martial may direct.
Sec. 5924.111. Any (A) Subject to division (B) of this
section, any person subject to this code who operates does any of
the following shall be punished as a court-martial may direct:
(1) Operates or physically controls any vehicle while drunk,
or, aircraft, or vessel in a reckless or wanton manner, shall be
punished as a court-martial may direct;
(2) Operates or physically controls any vehicle, aircraft, or
vessel while under the influence of alcohol, a drug of abuse, or a
combination of them;
(3) Operates or physically controls any vehicle, aircraft, or
vessel while having in the person's whole blood, blood serum or
plasma, breath, or urine the minimum concentrations of alcohol set
forth in divisions (A)(1)(b) to (A)(1)(i) of section 4511.19 of
the Revised Code;
(4) Operates or physically controls any vehicle, aircraft, or
vessel while having in the person's whole blood, blood serum or
plasma, or urine the concentrations of controlled substances or
metabolites of a controlled substance set forth in division
(A)(1)(j) of section 4511.19 of the Revised Code.
(B) If a military installation is located partially in this
state and partially in one or more other states, the adjutant
general may select the alcohol and controlled substance levels set
forth in the impaired operating laws of one of the other states to
apply on the installation in place of the levels set forth in
division (A) of this section.
Sec. 5924.1121. (A) As used in this section, "prohibited
substance" means any of the following:
(1) Opium, heroin, cocaine, amphetamine, lysergic acid
diethylamide, methamphetamine, phencyclidine, barbituric acid, or
marihuana or any compound or derivative of any of those
substances;
(2) Any substance not specified in division (A)(1) of this
section that the adjutant general lists on a schedule of
controlled substances or that is listed on a schedule established
under section 202 of the Federal Controlled Substances Act, 21
U.S.C. 812, 84 Stat. 1247, as amended.
(B) A person subject to this code who wrongfully uses,
possesses, manufactures, distributes, imports into the customs
territory of the United States, exports from the United States, or
introduces into an installation, vessel, vehicle, or aircraft used
by or under the control of the armed forces of the United States
or of the organized militia a prohibited substance shall be
punished as a court-martial may direct.
Sec. 5924.113. Any sentinel or lookout who is found drunk or
sleeping on his the sentinel's or lookout's post, or leaves it
before he the sentinel or lookout is regularly relieved, shall be
punished, if the offense is committed in time of war, by death or
such other punishment as a court-martial may direct, but if the
offense is committed at any other time, by such punishment other
than death as a court-martial may direct.
Sec. 5924.115. Any person subject to this code who for the
purpose of avoiding work, duty, or service in the organized
militia does either of the following shall be punished as a
court-martial may direct:
(A) Feigns illness, physical disablement, mental lapse, or
derangement; or
(B) Intentionally inflicts self-injury;
shall be punished as a court-martial may direct.
Sec. 5924.120. (A) As used in this section:
(1) "Affirmative defense" means any special defense that,
although not denying that the accused committed the objective acts
constituting the offense charged, denies, in whole or in part,
criminal responsibility for those acts.
(2) "Bodily harm" means any offensive touching of another,
however slight, that does not result in grievous bodily harm.
(3) "Consent" means words or overt acts indicating a freely
given agreement to the sexual conduct at issue by a competent
person.
(4) "Dangerous weapon or object" means any of the following:
(a) Any firearm, whether loaded or not and whether operable
or not;
(b) Any other weapon, device, instrument, material, or
substance, whether animate or inanimate, that as used or intended
to be used is known to be capable of producing death or grievous
bodily harm;
(c) Any object fashioned or used in such a manner as to lead
a person on whom the object is used or threatened to be used to
reasonably believe under the circumstances that the object is
capable of producing death or grievous bodily harm.
(5) "Force" means action to compel submission of another or
to overcome or prevent another's resistance by either of the
following:
(a) The use, display, or suggestion of possession of a
dangerous weapon or object;
(b) Physical violence, strength, power, or restraint applied
to another person sufficient to prevent the other person from
avoiding or escaping sexual contact.
(6) "Grievous bodily harm" means serious bodily injury,
including but not limited to fractured or dislocated bones, deep
cuts, torn members of the body, and serious damage to internal
organs.
(7) "Indecent conduct" means that form of immorality relating
to sexual impurity that is grossly vulgar, obscene, and repugnant
to common propriety and tends to excite sexual desire or deprave
morals with respect to sexual relations. Indecent conduct includes
observing or making a videotape, photograph, motion picture,
print, negative, slide, or other mechanically, electronically, or
chemically reproduced visual material, without another person's
consent and contrary to that other person's reasonable expectation
of privacy, of either of the following:
(a) That other person's genitalia, anus, or buttocks, or, if
that other person is female, that person's areola or nipple;
(b) That other person while that other person is engaged in a
sexual act, sexual contact, or sodomy.
(8) "Lesser degree of harm" means any of the following:
(a) Physical injury to the person or property of a person
other than the victim of the offense;
(b) A threat to do any of the following:
(i) Accuse any person of a crime;
(ii) Expose a secret or publicize an asserted fact, whether
true or false, tending to subject some person to hatred, contempt,
or ridicule;
(iii) Through the use or abuse of military position, rank, or
authority, to affect or threaten to affect, either positively or
negatively, the military career of some person.
(9) "Mistake of fact as to consent" means a belief that is
incorrect, as a result of ignorance or mistake, that a person
engaging in sexual conduct consented to engage in that conduct, if
both of the following apply:
(a) The ignorance or mistake existed in the mind of the
accused at the time the sexual conduct in issue occurred and was
based on information or lack of information that would have
indicated to a reasonable person that the other person consented;
(b) The ignorance or mistake was not based on the accused's
failure to discover facts that a reasonably careful person would
have discovered under the same or similar circumstances.
(10) "Sexual act" means either of the following:
(a) Contact between the penis and the vulva, including any
penetration, however slight;
(b) Anal intercourse, fellatio, and cunnilingus between
persons, regardless of sex;
(c) The penetration, however slight, of the genital opening
of another by a hand or finger or any object with an intent to
abuse, humiliate, harass, or degrade any person or to arouse or
gratify the sexual desire of any person.
(11) "Sexual contact" means the intentional touching, either
directly or through clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks of another person with an intent
to abuse, humiliate, or degrade any person or to arouse or gratify
the sexual desire of any person.
(12) "Sexual conduct" means any act that is prohibited by
this section.
(13)(a) For purposes of divisions (B) and (D) of this
section, "threatening or placing that other person in fear" means
making a communication or performing an action of sufficient
consequence to cause that other person to reasonably fear that
noncompliance will result in that person or another being
subjected to death, grievous bodily harm, or kidnapping.
(b) For purposes of divisions (C) and (E) of this section,
"threatening or placing that other person in fear" means making a
communication or performing an action of sufficient consequence to
cause a victim of the offense to reasonably fear that
noncompliance will result in the victim or another being subjected
to a lesser degree of harm than death, grievous bodily harm, or
kidnapping.
(B) Any person subject to this chapter who causes another
person of any age to engage in a sexual act by doing any of the
following is guilty of rape and shall be punished as a
court-martial may direct:
(1) Using force against that other person;
(2) Causing grievous bodily harm to any person;
(3) Threatening or placing that other person in fear;
(4) Rendering another person unconscious;
(5) Administering to another person by force or threat of
force, or without the knowledge or permission of that person, a
drug, intoxicant, or other similar substance that substantially
impairs the ability of that other person to appraise or control
conduct.
(C) Any person subject to this chapter who does either of the
following is guilty of aggravated sexual assault and shall be
punished as a court-martial may direct:
(1) Causes another person of any age to engage in a sexual
act by doing either of the following:
(a) Threatening or placing that other person in fear;
(2) Engages in a sexual act with another person of any age if
that other person is substantially incapable of doing any of the
following:
(a) Appraising the nature of the sexual act;
(b) Declining to participate in the sexual act;
(c) Communicating unwillingness to engage in the sexual act.
(D) Any person subject to this chapter who engages in sexual
contact or causes sexual contact with or by another person by
doing any of the following is guilty of aggravated sexual contact
and shall be punished as a court-martial may direct:
(1) Using force against that other person;
(2) Causing grievous bodily harm to any person;
(3) Threatening or placing that other person in fear;
(4) Rendering another person unconscious;
(5) Administering to another person by force or threat of
force, or without the knowledge or permission of that person, a
drug, intoxicant, or other similar substance that substantially
impairs the ability of that other person to appraise or control
conduct.
(E) Any person subject to this chapter who does either of the
following is guilty of abusive sexual contact and shall be
punished as a court-martial may direct:
(1) Engages in or causes sexual contact with or by another
person by doing either of the following:
(a) Threatening or placing that other person in fear;
(2) Engages in sexual contact with another person of any age
if that other person is substantially incapable of doing any of
the following:
(a) Appraising the nature of the sexual contact;
(b) Declining to participate in the sexual contact;
(c) Communicating unwillingness to engage in the sexual
contact.
(F) Any person subject to this chapter who engages in
indecent conduct is guilty of an indecent act and shall be
punished as a court-martial may direct.
(G) Any person subject to this chapter who, without legal
justification or lawful authorization, engages in sexual contact
with another person without that other person's permission is
guilty of wrongful sexual contact and shall be punished as a
court-martial may direct.
(H) Any person subject to this chapter who intentionally
exposes, in an indecent manner, in any place where the conduct
involved may reasonably be expected to be viewed by people other
than members of the person's family or household, the person's
genitalia, anus, buttock, or female areola or nipple is guilty of
indecent exposure and shall be punished as a court-martial may
direct.
(I) In a prosecution under this section, in proving that the
accused made a threat, it need not be proven that the accused
actually intended to carry out the threat.
(J)(1) In a prosecution under division (C)(2), (G), or (H) of
this section, it is an affirmative defense that the accused and
the other person, when they engaged in the sexual conduct were
married to each other.
(2) Division (J)(1) of this section does not apply if the
accused's intent at the time of the sexual conduct is to abuse,
humiliate, or degrade any person.
(K)(1) Lack of permission is an element of the offense under
division (G) of this section. Consent and mistake of fact as to
consent are affirmative defenses only to the sexual conduct in
issue in a prosecution under division (B), (C), (D), or (E) of
this section.
(2) The enumeration in this section of some affirmative
defenses shall not be construed as excluding the existence of
other affirmative defenses.
(3) The accused has the burden of proving an affirmative
defense by a preponderance of evidence. After the defense meets
this burden, the prosecution has the burden of proving beyond a
reasonable doubt that the affirmative defense did not exist.
(L)(1) An expression of lack of consent through words or
conduct means there is no consent. Lack of verbal or physical
resistance or submission resulting from an accused's use of force,
threat of force, or placing another person in fear does not
constitute consent. A current or previous dating relationship by
itself or the manner of dress of a person involved with the
accused in the sexual conduct does not constitute consent.
(2) A person cannot consent to sexual conduct if the person
is substantially incapable of any of the following:
(a) Appraising the nature of the sexual conduct due to mental
impairment or unconsciousness resulting from consumption of
alcohol, drugs, or a similar substance or any other cause or to
mental disease or defect that renders the person unable to
understand the nature of the sexual conduct;
(b) Physically declining to participate in the sexual
conduct;
(c) Physically communicating unwillingness to engage in the
sexual conduct.
(M) An accused's state of intoxication, if any, at the time
of an offense under this section occurs is not relevant to the
existence of a mistake of fact as to consent.
Sec. 5924.128. (A) Any person subject to this code who
attempts or offers with unlawful force or violence to do bodily
harm to another person, whether or not the attempt or offer is
consummated, is guilty of assault and shall be punished as a
court-martial may direct.
(B) Any person subject to this code who does either of the
following is guilty of aggravated assault and shall be punished as
a court-martial may direct:
(1) Commits an assault with a dangerous weapon or other means
or force likely to produce death or grievous bodily harm; or
(2) Commits an assault and intentionally inflicts grievous
bodily harm with or without a weapon;
is guilty of aggravated assault and shall be punished as a
court-martial may direct.
Sec. 5924.131. Any person subject to this code who, in a
judicial proceeding or in a course of justice conducted under this
code, willfully and corruptly gives, upon does either of the
following is guilty of perjury and shall be punished as a
court-martial may direct:
(A) Upon a lawful oath or in any form allowed by law to be
substituted for an oath, gives any false testimony material to the
issue or matter of inquiry is guilty of perjury and shall be
punished as a court-martial may direct;
(B) In any declaration, certification, verification, or
statement made under penalty of perjury subscribes any false
statement material to the issue or matter of inquiry.
Sec. 5924.132. Any person subject to this code who does any
of the following shall be punished as a court-martial may direct:
(A) Who, knowing it Knowing a claim to be false or fraudulent
does either of the following:
(1) Makes any claim against the United States, the state, or
any officer thereof of the United States or the state; or
(2) Presents to any person in the civil or military service
thereof of the United States or the state, for approval or
payment, any claim against the United States, the state, or any
officer thereof of the United States or the state;
(B) Who, for For the purpose of obtaining the approval,
allowance, or payment of any claim against the United States, the
state, or any officer thereof of the United States or the state
does any of the following:
(1) Makes or uses any writing or other paper knowing it to
contain any false or fraudulent statements;
(2) Makes any oath to any fact or to any writing or other
paper knowing the oath to be false; or
(3) Forges or counterfeits any signature upon any writing or
other paper, or uses any such forged or counterfeit signature
knowing it to be forged or counterfeited;
(C) Who, having Having charge, possession, custody, or
control of any money, or other property of the United States or
the state, furnished or intended for the armed forces of the
United States or the organized militia or any force thereof,
knowingly delivers to any person having authority to receive it,
any amount thereof less than that for which he the person making
the delivery receives a certificate or receipt; or
(D) Who, being Being authorized to make or deliver any paper
certifying the receipt of any property of the United States or the
state, furnished or intended for the armed forces of the United
States or the organized militia or any force thereof, makes or
delivers to any person such writing without having full knowledge
of the truth of the statements therein contained and with intent
to defraud the United States or the state;
shall, upon conviction, be punished as a court-martial may direct.
Sec. 5924.133. Any commissioned officer who is convicted of
conduct unbecoming an officer and a lady or gentleman shall be
punished as a court-martial may direct.
Sec. 5924.146. No person may be tried or punished for any
offense provided for in sections 5924.77 to 5924.134, inclusive,
of the Revised Code and of this code, unless it was committed
while he the person was in a military or national guard technician
duty status.
Section 2. That existing sections 124.23, 124.26, 3319.085,
3737.881, 3781.10, 5321.04, 5903.10, 5903.11, 5911.07, 5923.12,
5924.01, 5924.02, 5924.03, 5924.06, 5924.07, 5924.08, 5924.09,
5924.10, 5924.11, 5924.13, 5924.14, 5924.15, 5924.16, 5924.17,
5924.18, 5924.19, 5924.20, 5924.22, 5924.23, 5924.24, 5924.25,
5924.26, 5924.27, 5924.28, 5924.29, 5924.30, 5924.31, 5924.32,
5924.33, 5924.34, 5924.35, 5924.36, 5924.37, 5924.38, 5924.39,
5924.41, 5924.42, 5924.43, 5924.44, 5924.45, 5924.46, 5924.47,
5924.48, 5924.49, 5924.50, 5924.51, 5924.52, 5924.54, 5924.56,
5924.57, 5924.58, 5924.59, 5924.60, 5924.63, 5924.72, 5924.73,
5924.74, 5924.75, 5924.76, 5924.77, 5924.78, 5924.82, 5924.83,
5924.84, 5924.85, 5924.86, 5924.87, 5924.88, 5924.89, 5924.90,
5924.91, 5924.92, 5924.93, 5924.94, 5924.95, 5924.96, 5924.97,
5924.98, 5924.103, 5924.108, 5924.109, 5924.111, 5924.113,
5924.115, 5924.128, 5924.131, 5924.132, 5924.133, and 5924.146 and
sections
5924.04, 5924.12, 5924.21, 5924.61,
5924.62, 5924.64,
5924.65, 5924.66, 5924.70, 5924.71, 5924.99,
5924.100, 5924.101,
5924.102,
5924.104, 5924.105, 5924.106,
5924.110, 5924.114,
5924.118,
5924.119, 5924.120, 5924.122,
5924.1231,
5924.124,
5924.125, 5924.126, 5924.129,
5924.130,
5924.145, and 5924.147
of the Revised Code are hereby repealed.
|
|