OHIO CRIMINAL LAW DISTINCTIONS PROFESSOR RIC SIMMONS THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW

Transcription

1 OHIO CRIMINAL LAW DISTINCTIONS PROFESSOR RIC SIMMONS THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW GENERAL PRINCIPLES, HOMICIDE Ohi des nt fllw the Mdel Penal Cde. Instead, crimes are defined by the statutes passed by the Ohi legislature. A. Mens Rea Mst crimes require bth an actus reus (physical act) and a mens rea (intent). There are sme strict liability crimes that nly require an actus reus, but they are rare. Mens rea is nt the same as. Ohi has adpted the Mdel Penal Cde degrees f mens rea. Fur degrees f mens rea in Ohi: 1) Purpsely: Act with t cause a particular result, r When the actin itself is prhibited, specific intent t engage in cnduct f that nature Example 1: Theft has a purpsely mens rea. The prsecutr must prve that the defendant knwingly tk prperty that did nt belng t him and that the defendant had the intent t permanently deprive the wner f the prperty. If the defendant merely takes the item intending t brrw it fr a few minutes and give it back, he is nt guilty f theft he is guilty f unauthrized use f prperty. 2) Knwingly: Regardless f the persn s purpse, she is aware that her cnduct will a certain result r will be f a certain nature. Example 2: If the defendant is fleeing a rbbery and shts a security guard in the chest, he knws that his actin will prbably cause the death f the security guard, even thugh his intent is merely t safely escape and whether r nt the guard dies is irrelevant t him. Thus, he is guilty f knwingly, but nt purpsely, killing the guard. Mst pssessin crimes have a knwingly mens rea.

2 3) Recklessly With t cnsequences, a persn a knwn risk that her cnduct is likely t cause a certain result r be f a certain nature The defendant knew f the substantial risk and acted anyway. Example 3: An arsnist wh burns dwn a hme with peple inside des nt knw fr certain that the residents will be killed they may escape the fire safely but he knws there is a substantial risk that they will be killed. The arsnist has acted recklessly. 4) Negligently Due t a substantial lapse in, the defendant a risk that her cnduct may cause a certain result r be f a certain nature. The defendant was nt aware f the risk, but a reasnable persn in his r her situatin wuld have been aware f the risk. The difference between recklessness and negligence is whether the defendant is unaware f the risk. Example 4: Assume that the arsnist frm Example 3 is setting fire t a hme with peple inside, and any reasnable persn wuld knw there are peple inside and there is a risk that the peple will be killed but the arsnist is hnestly unaware f that fact and he is nly guilty f a negligent crime. Ohi als has sme strict liability crimes, in which the act alne is sufficient t cnvict the defendant. is usually given as an example f a strict liability crime. The defendant must knwingly have sex with an individual under thirteen, but his awareness f the victim's age is strict liability thus, even if n reasnable persn wuld be expected t knw that the victim is under thirteen, the defendant will be guilty f the crime. Under Ohi law, as with the Mdel Penal Cde, the default mens rea is. If an ffense des nt specify a mens rea, the curt will apply a mens rea f recklessness if the statutry definitin f the ffense des nt require prf f a culpable mental state fr any element f the ffense and there is n indicatin in the statutry language that the purpse is t impse strict liability Themis Bar Review, LLC OH Criminal Law Distinctins

3 B. Parties t a Crime Under the MULTISTATE RULE, the parties t a crime can be a principal, an accessry after the fact, and an accessry befre the fact (ften called an accmplice). Under the MULTISTATE RULE, an accmplice is smene wh has the intent that the crime be cmmitted, plus aids r abets the primary wrngder in the crime OHIO law uses the cncept f "cmplicity" instead f accmplice liability. The crime f cmplicity ccurs when: A persn acts with the required t cmmit an ffense; and T carry ut the ffense, she a) anther, b) Aids r abets anther, c) with anther, r d) Causes an t cmmit the ffense. A cmplicitr (accmplice) may be prsecuted and punished as thugh she was the actr in the crime. It is an affirmative defense t cmplicity if, prir t the crime, the persn terminates her cmplicity under circumstances manifesting a and renunciatin f her criminal purpse. Nte that cmplicity is nt the same as cnspiracy. Cnspiracy requires the mens rea, acting in cncert, and a substantial vert act by ne f the parties. Cmplicity requires the mens rea, acting in cncert, and the cmpleted crime. Cnspiracy can be an element f cmplicity. Example 5: Gary decides he wants t rb a bank. He cntacts Dnald and asks if Dnald is willing t drive the getaway car. Dnald agrees. The next day Gary ges ut and buys a gun at a pawn shp t use in the rbbery. He and Dnald are nw bth guilty f, because they made an agreement t cmmit the crime, they have the mens rea t cmmit the crime, and Gary has cmmitted a substantial vert act twards the crime. Neither Gary nr Dnald are guilty f cmplicity, because the act has nt yet ccurred. The day befre the rbbery, Dnald decides he cannt g thrugh with the plan. Instead, he recruits his friend Steve and cnvinces him t drive the getaway car. On the day f the plan, Gary rbs the bank and Steve drives the getaway car. Dnald des nt participate in the crime. OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 3

4 Gary is guilty f bth cmplicity and rbbery. Steve is guilty f cmplicity because he aided and abetted Gary in the crime. Dnald is guilty f because he slicited anther t cmmit the crime. The MULTISTATE rule has an accessry after the fact OHIO has created the crime f A persn is guilty f bstructing justice if she purpsely the discvery, apprehensin, prsecutin, r cnvictin f an ffender. Merely nt cperating with the plice is nt bstructing justice yu must affirmatively hinder the investigatin r prsecutin. Example 6: Smene shts smebdy and hides at his brther's huse. The plice g t the brther's huse t find ut what happened. The brther says he wuld nt answer any questins. This is nt bstructin f justice because he is nt affirmatively hindering them. Hwever, if the brther said, "I saw the guy that cmmitted the crime and he ran than way, he's wearing a red jacket, in the park." This wuld be bstructin f justice. C. Hmicide Under the MULTISTATE rules, yu learned abut cmmn law murder and the degrees f hmicide set ut by mdern statutes. Under OHIO law, there are six types f hmicide: Aggravated murder (which ther states might call "first-degree murder"), Murder (which ther states might call "secnd-degree murder"), Vluntary manslaughter Invluntary manslaughter Reckless hmicide Negligent hmicide 1. Aggravated Murder Occurs when any ne f the fllwing five things ccurs: 1) A persn and with prir calculatin and causes the death f anther Fcus is n actins f the defendant 2) A persn purpsely causes the death f anther while cmmitting ne f these enumerated felnies: kidnapping, rape, aggravated arsn, aggravated rbbery, rbbery, aggravated burglary, burglary, terrrism, r escape (i.e., prisn escape) Themis Bar Review, LLC OH Criminal Law Distinctins

5 Usually referred t as aggravated murder Fcus is n actins f the defendant 3) A persn purpsely causes the death f anther while under as a result f being fund guilty r entering a guilty plea t a felny Fcus is n status f the defendant 4) A persn purpsely causes the death f smene under the age f Fcus is n status f the victim 5) A persn purpsely causes the death f a and bth f the fllwing are true: a) The defendant knws r has reasnable cause t knw that the victim is an fficer; AND b) The fficer was engaged in his duties at the time OR the defendant had the specific purpse f killing the fficer. Fcus is n status f the victim 2. Murder Occurs when a persn causes anther s death N need t prve prir calculatin Felny-Murder: Murder als ccurs when a persn causes anther s death as a f cmmitting r attempting t cmmit a first- r secnd-degree felny as lng as the vilent act is nt elevated t first r secnd degree status as a result f a prir cnvictin. Example 7: Steve decides t kill his wife. He waits fr her when she leaves wrk late at night and shts her in the parking lt as she gets int her car. Steve is guilty f aggravated murder because he had the purpse f killing his victim and he planned the killing ut ahead f time. Example 8: Luanne is standing n the subway platfrm next t Charlie, wh is an undercver plice fficer n duty lking fr pickpckets. Charlie accidentally spills his cffee n Luanne, and she becmes very angry, yelling at Charlie and ultimately pushing him ff the platfrm int the path f an ncming train. Charlie is killed instantly. Luanne is prbably guilty f murder, because we can infer she had the purpse f killing Charlie when she pushed him ff the platfrm. Hwever, she is nt guilty f aggravated murder because OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 5

6 she did nt knw, nr culd she reasnably have knwn, that Charlie was a plice fficer. Example 9: Rnald ges t his regular drug dealer t buy crack. During the transactin, the tw f them get int an argument abut the quality f the crack that is being sld. Rnald pulls ut his gun and shts the crack dealer in the chest, killing him. Rnald is guilty f murder, because he had the purpse f killing the victim. Nne f the aggravating circumstances apply. In Ohi, there is n crime f felny-murder An attempt crime must be cmmitted knwingly r purpsely 3. Other Killings One cannt purpsely r knwingly cause an unintended death Under the MULTISTATE rules, vluntary manslaughter ccurs when the murder is cmmitted in the "heat f passin" in respnse t adequate prvcatin. Under OHIO law, vluntary manslaughter has fur elements: 1) The defendant causes anther s death; 2) While under the influence f sudden r in a sudden fit f rage; 3) Brught n by serius by the victim; and 4) This is the type f prvcatin that is t incite the persn t use deadly frce. Ohi requires that the serius prvcatin be brught n by the victim, s if yu kill an inncent bystander, yu will nt get this mitigatin. Example 10: In Example 8 abve, Luanne gt angry with Charlie because he spilled cffee n her, and s she shved him int the path f a subway train. We have the ther example f Rnald wh gt angry with his crack dealer because f the pr quality f the prduct that the dealer was selling, and Rnald sht the crack dealer in the chest. Althugh bth Luanne and Rnald were arguably under the influence f a sudden passin r fit f rage, neither were acting in respnse t "reasnably sufficient" prvcatin that is, a reasnable persn wuld nt becme enraged enugh t kill based n these minr prvcatins. Thus, neither Luanne nr Rnald get the benefit f the manslaughter mitigatin. Example 11: Harld was walking his ten-year-ld sn t schl and he happened t pass next t where the crack dealer and Rnald were having an argument. Rnald takes ut his gun t sht the crack dealer, but instead Themis Bar Review, LLC OH Criminal Law Distinctins

7 Rnald misses and hits Harld's sn instead, killing him. Overcme by grief and rage, Harld jumps n tp f Rnald and stabs him t death with his pcketknife. Harld wuld nly be guilty f, nt murder, because he was under the influence f a sudden passin that was brught n by a serius prvcatin that was reasnably sufficient t incite his actin. Under the MULTISTATE rules, invluntary manslaughter is an unintentinal hmicide cmmitted with criminal negligence during an unlawful act. OHIO has three different lesser crimes: invluntary manslaughter, reckless hmicide, and negligent hmicide. Invluntary manslaughter: A hmicide that ccurs as a prximate result f cmmitting an that is nt enumerated in the aggravated murder statute r the murder statute that is, mst felnies, all misdemeanrs and all regulatry ffenses. Reckless hmicide: A hmicide cmmitted with reckless intent. Negligent hmicide: Any hmicide cmmitted with criminal negligence by means f a. A "deadly weapn" is any instrument capable f inflicting death and designed r specially adapted fr use as a weapn r carried r used as a weapn. Example 12: Jerry is driving abve the speed limit and crashes int anther car, killing his passenger. He has killed smene while vilating the speed limit, and is therefre guilty f invluntary manslaughter. Example 13: Sarah is cleaning her gun while it is laded, and it accidentally ges ff and shts her six-year-ld sn in the head, killing him. If a jury decides that the act f cleaning a laded gun is reckless, Sarah is guilty f reckless hmicide. If a jury decides that the act f cleaning a laded gun is merely negligent, Sarah is nly guilty f negligent hmicide. OTHER CRIMES A. Theft The MULTISTATE rules distinguish between larceny, embezzlement, and false pretenses. OHIO cmbines all f these crimes int the single crime f theft. Theft is when a persn acts with the purpse t f prperty (r services) and knwingly btains r exerts cntrl ver such prperty: Withut the f the wner r ther authrized persn; OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 7

8 Beynd the f the wner (whether express r implied); r By deceptin, threat, r. Example 14: Samantha wns a car. She lans the car t her friend Charlie, but tells him he must return it by the end f the day. Instead Charlie takes the car t a used car dealer and sells it fr mney, which he uses t pay ff his gambling debts. Charlie has gne beynd the scpe f the cnsent given t him by Samantha and is guilty f theft. B. Frgery In OHIO, frgery is a brader crime. Occurs when the defendant, with the intent t, des ne f the fllwing five things: 1) Frges anther persn's writing withut the ther persn's ; 2) Frges a writing s that it purprts t be when it is nt; 3) Frges a writing s that it purprts t be a cpy f an that never existed; 4) Frges a writing s that it purprts t be at a time r place different frm the actual time r place; OR 5) r pssesses with intent t utter, any writing that the defendant knws t have been frged. Smene wh is nt the frger knwingly uses, r pssesses with intent t use, the frged dcument Example 15: Zach runs a small hardware stre. At the end f the day he is cunting up the mney in his cash register and he ntices smething dd abut a hundred dllar bill he tk in that day. He examines it clsely and realizes it is a frgery. He desn't want t take a lss fr the $100, s he puts the cunterfeit $100 bill in an envelpe with the rest f the mney frm the day and then depsits the mney int his bank accunt. Zach is guilty f frgery he knew the bill had been frged and he "uttered" it by depsiting it in his bank accunt. C. Rbbery OHIO has a brader definitin f rbbery. Occurs when a persn is attempting, cmmitting, r fleeing frm a AND: Themis Bar Review, LLC OH Criminal Law Distinctins

9 He pssesses r cntrls a (n specific mental state regarding the deadly weapn is required mere pssessin is enugh); r Inflicts, attempts t inflict, r threatens t inflict physical n anther; r Uses r threatens the use f against anther. Ohi als has the crime f aggravated rbbery. Mere pssessin f a deadly weapn is nt enugh. The ffender must pssess and either use, display, brandish, r f the deadly weapn t the victim. D. Extrtin OHIO is ne f thse jurisdictins which has enacted its wn extrtin statute. A defendant is guilty f extrtin if, in rder t btain a thing f value r induce anther t cmmit an unlawful act, the accused: Threatens (directly r indirectly) t cmmit a felny r an act f vilence; Engages in cnduct cnstituting ; Makes a threat t make a statement; OR Expses r threatens t expse a matter that wuld subject a persn t hatred, ridicule, r harm their. E. Burglary and Related Crimes OHIO has refined the law f burglary and created a number f different crimes: burglary, aggravated burglary, breaking and entering, and aggravated criminal trespass. 1. Burglary Fr burglary, Ohi has ablished the cmmn-law requirements f "breaking," "dwelling," and "at nighttime." Thus, in Ohi, a persn cmmits burglary if (i) with the purpse t cmmit a inside, that persn (ii) frcefully, secretly/sneakily, r deceptively int either: A structure which is at the time, r any prtin f a structure that is separately r, r An ccupied permanent r temprary f anther. Remember that fr ANY burglary, the intended crime need nt be theft (thugh that is usually what we think f as burglary). As lng as the defendant trespasses int an ccupied OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 9

10 structure with the specific intent t cmmit SOME crime (e.g., assault, vandalism, etc.), the defendant is guilty f burglary. 2. Aggravated Burglary A persn cmmits aggravated burglary, if during the cmmissin f a burglary, the ffender: Inflicts, attempts, r threatens t inflict n anther; r The ffender has a n r abut his persn. 3. Breaking and Entering A persn cmmits breaking and entering if by frce (e.g., breaking a windw), stealth (e.g., secretly), r deceptin (e.g., claiming t landlrd that yu have the right t enter and they let yu in), he trespasses in an with the purpse t cmmit a r a inside; OR He trespasses n anther s land with the purpse t cmmit a. 4. Criminal Trespass A persn cmmits a trespass when, withut the privilege t d s, he enters r remains n anther s land r premises, and the persn knws r recklessly disregards that he is vilating restrictins set by the wner; r Recklessly enters r remains n anther s land r premises if ntice against unauthrized access is given by actual cmmunicatin (fr instance, if there is a sign r if there is a fence arund the prperty t restrict access); r fails r refuses t leave anther s land r premises after ntificatin by psted signs r ntice frm the wner. 5. Aggravated Criminal Trespass A persn cmmits aggravated criminal trespass if he: Enters r remains n anther s land r premises, With the purpse t cmmit a, That invlves causing t anther, r causing that persn t believe that the trespasser will cause Example 16: Charlie ges nt his neighbr's prperty withut permissin and steals a shvel that his neighbr left in the driveway. He is nly guilty f he Themis Bar Review, LLC OH Criminal Law Distinctins

11 did nt enter a structure, and he did nt have any intent f cmmitting a misdemeanr that will cause physical harm. Example 17: Charlie ges back n the prperty the next day and steals the riding mwer that his neighbr left in the yard. The riding mtr is wrth ver $2,000, s the theft is a felny. Charlie is nw guilty f breaking and entering, because he trespassed n smene's land with the intent t cmmit a felny. Example 18: Charlie ges back the next day and sneaks int his neighbr's barn t steal a pitchfrk. He has again cmmitted breaking and entering he has entered a structure and cmmitted a theft (since he is in a structure, it need nt be a felny). Example 19: Charlie returns ne final time and sneaks his neighbr's huse thrugh the windw, intending t use his neighbr's phne t make an bscene and harassing phne call t his ex-girlfriend. Hwever, his neighbr is waiting fr Charlie and grabs him as sn as he enters the hme. Charlie is nw guilty f he entered an ccupied structure (a hme) with the intent t cmmit a crime (hwever small). The fact that he did nt, in fact, cmmit the crime he intended t cmmit is irrelevant. If Charlie happened t have a gun n him when he entered the hme, he is guilty f aggravated burglary, because he had a deadly weapn. F. Arsn Under the MULTISTATE rules, arsn is the (i) malicius (ii) burning (iii) f a dwelling (iv) f anther. In OHIO, a persn cmmits arsn if, by means f fire r explsin, he knwingly causes r creates a substantial risk f physical harm t: Anther s prperty withut ; His r anther s prperty with the intent t ; His r anther s prperty thrugh engaging in an agreement fr hire r ther cnsideratin (including fr purpses t defraud); T a building r structure that is wned r cntrlled by the ; OR T a park, wild lands, brush-cvered land, r preserve that is wned r cntrlled by anther r the state. In OHIO, a persn cmmits aggravated arsn if, by means f a fire r explsin, he knwingly: Creates a substantial risk f t anther persn; Causes physical harm t an ; r OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 11

12 Creates, thrugh the ffer r acceptance f an agreement fr hire r ther cnsideratin, a substantial risk f physical harm t an. Example 20: Miranda burns dwn her child's public schl building at night when nbdy is present. This is arsn because it is a building cntrlled by the state. Example 21: Fred decides t burn dwn his wn summer hme in rder t cllect the insurance mney. It is nighttime in the middle f winter, and s he believes that the hme is empty. He sets it n fire, burning it t the grund. Unbeknwnst t him, a hmeless wman has been sleeping in the hme, and she perishes in the flames. There was n car parked ut frnt and n sign that anyne had been living in the hme. Fred is guilty f (he caused harm by means f fire t his hme with the purpse t defraud his insurance cmpany), but nt aggravated arsn. Althugh the structure was ccupied, he did nt knw it was ccupied, nr did he knw he was creating a substantial risk f physical harm t anther persn. G. Receiving Stlen Prperty OHIO has the crime f receiving stlen prperty, which is a brader crime than the multistate rule. A defendant is guilty f this crime if she: Receives, retains, r f anther persn's prperty; and Knwing r having that the prperty was stlen. Nt a defense that the prperty was nt in fact stlen if the defendant was explicitly tld that it was stlen prperty Example 22: The plice are cnducting a sting peratin. The items they are ffering t sell t the defendant are nt really stlen. If the defendant has reasnable cause t believe they are stlen and buys the prperty, he is guilty f receiving stlen prperty. H. Assault Ohi Distinctin: Battery There is n separate statute fr battery. Instead, it is encmpassed int the assault ffenses. Ohi Distinctin: Assault Five categries: assault, felnius assault, aggravated assault, negligent assault, and Themis Bar Review, LLC OH Criminal Law Distinctins

13 a. Assault is when a persn: causes r attempts t cause physical injury t anther. b. Felnius assault is when a persn: Knwingly causes physical harm t anther; r Knwingly causes r attempts t cause harm t anther by means f a. c. Aggravated assault: A persn wh knwingly cmmits felnius assault while under the influence f sudden r fit f rage brught n by serius by the victim that is reasnably sufficient t incite the persn int using deadly frce, cmmits aggravated assault. d. Negligent assault: A persn negligently causes physical harm by means f a. e. Dmestic vilence ccurs when a persn: Cmmits an assault n a ; OR Uses frce r threat f frce t cause a family member t believe the persn will cause t the family member. I. Kidnapping In OHIO, kidnapping is: Using frce, threat, r (r by any means in the case f a victim under 13 r mentally incmpetent) T remve a victim frm a place r put a n a victim s liberty In rder t: Hld fr ransm, use as a shield, r as a hstage; T facilitate the cmmissin f r flight frm any felny; T r inflict serius physical harm n the victim r anther; T engage in sexual activity with the victim against her will; T hinder, impede, r bstruct a functin f the gvernment r t frce any actin r cncessin f gvernmental authrity; OR T hld in a cnditin f. OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 13

14 Thus, in Ohi, kidnapping is a specific intent crime the prsecutr must prve the restraint n liberty was dne fr a specific purpse. J. Unlawful Restraint In OHIO, unlawful restraint is the unlawful f a persn withut cnsent. Under the multistate rules, this is knwn as "false imprisnment." K. Rape Under the MULTISTATE cmmn-law rules, rape is the (i) unlawful (ii) sexual intercurse (iii) with a female (iv) against her will by frce r threat f immediate frce. A husband had abslute immunity frm a rape charge invlving his wife. OHIO, like mst states, has ablished the requirement that the victim be a, has weakened, and has bradened the prhibited acts t include nt just intercurse but als and the insertin f any bdy part r bject int the vagina r anus f anther. Thus, the elements f rape are as fllws: Engaging in sexual cnduct (intercurse, ral sex, r the insertin f any bdy part r bject int the vagina r anus); With anther wh is nt the defendant's spuse (r is a spuse living separate and apart); T prevent resistance, the defendant substantially impairs the victim's judgment r cntrl by administering any r surreptitiusly r by frce, threat f frce, r deceptin; The victim is less than years ld, regardless f whether the defendant knws the victim's age; r threat f frce is used; OR The defendant knws r has reasnable cause t knw that the victim has a that cmprmises his r her ability t resist r cnsent. If the victim is the spuse and the defendant and the victim are nt separated, then the defendant is nly guilty f rape if is used. Example 23: Sam and Rachel are having dinner tgether. When Rachel is nt lking, Sam spikes her drink with a pwerful narctic that causes a persn t be semi-cnscius and nn-respnsive. An hur later, when Rachel is under the effects f the drug, Sam takes ff her clthes and has intercurse with her. Sam is guilty f rape. Hwever, if Sam and Rachel are married, Sam is nt guilty f rape because he did nt use frce r threat f frce. OHIO has n separate crime f statutry rape Themis Bar Review, LLC OH Criminal Law Distinctins

15 Anyne wh has sex with a persn less than 13 years ld is guilty f rape. (It is nt a crime if bth individuals are less than 13 years ld, unless frce is used). Hwever, unlawful sexual cnduct ccurs when smene 18 years f age r lder engages in sex with a persn wh is between the ages f 13 and 16. The mens rea fr the age f the victim is knwingly r. Finally, an individual is guilty f sexual battery if he r she engages in with a persn wh is nt his r her spuse, and the defendant: Knwingly cerces the victim t submit by any means that wuld prevent resistance by a persn f rdinary reslutin; Knws the victim's inability t understand what is happening r cntrl his r her cnduct is ; Knws the victim submits because he r she is unaware that act is being cmmitted; Knws that the victim submits because he r she mistakenly believes the defendant is his r her ; Is the victim's ; Has ver a victim wh is in custdy; Is a teacher r fficial at the schl and the victim is a at the schl; Is a cach r scuting instructr with disciplinary cntrl ver the minr victim; Is a mental health prfessinal, the victim is a patient, and the defendant falsely claims that sexual cnduct is necessary fr treatment purpses; Wrks at a where victim is cnfined; Is a and the minr victim is a member f cngregatin; OR Is a mre than tw years lder than the minr victim. Example 24: Le is Susan's supervisr at wrk, and tnight they are ut n their first date. After dinner, they g back t Le's place, where they begin kissing n the cuch. When Le begins t take ff her pants, Susan says, "N, stp." Le des nt stp. Instead he cntinues t take ff her clthes and says: "Yu knw, I can't wrk with a clleague wh desn t cperate. D yu want t find yurself unemplyed tmrrw?" Susan is frightened and upset and repeats her demand that Le stp, but she puts up n physical resistance. Le cntinues t take ff her clthes and he ends up having sexual intercurse with her. Le is nt guilty f rape, because n frce r threat f frce was used. He is guilty f sexual battery if a jury finds that his threat t fire her wuld prevent resistance by a persn f "rdinary reslutin." OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 15

16 A. Inchate Crimes 1. Merger INCHOATE CRIMES AND DEFENSES If tw crimes "merge," it means that the defendant cannt be cnvicted f bth crimes, since ne f them merges int the ther. Under OHIO law, the crimes f and bth merge with the underlying crime. They als merge with each ther (i.e., a defendant cannt be cnvicted f bth attempt and cnspiracy fr the same crime). They als merge with (i.e., a defendant cannt be cnvicted f attempt and cmplicity r cnspiracy and cmplicity fr the same crime). Example 25: Rebecca and Thmas create a plan t burn dwn their neighbr's huse. They purchase twenty gallns f kersene, pur it n their neighbr's rf, and are abut t light it n fire when their neighbrs cme hme and stp them. They are bth arrested. They can be charged with bth attempted arsn and cnspiracy t cmmit arsn, but they can nly be cnvicted f ne crime r the ther. They cannt be charged with cmplicity, because under Ohi law, cmplicity requires a cmpleted crime. 2. Slicitatin N separate crime f slicitatin in Ohi Incrprated int the cmplicity rules, described earlier 3. Cnspiracy a. In general Under OHIO law, a defendant cmmits a cnspiracy if, with the purpse t cmmit, prmte, r facilitate a crime, he r she: in the planning f the cmmissin f the ffense with ne r mre ther peple; r with anther persn(s) that ne r mre f them will engage in cnduct that facilitates the cmmissin f the ffense; AND Sme member f the cnspiracy must cmplete an " in furtherance f the cnspiracy, which manifests a purpse n the part f the actr that the bject f the cnspiracy be cmpleted. Ohi nly allws a cnspiracy charge if the defendants cnspire t cmmit ne f the crimes that is specified in the cnspiracy statute In Ohi, ne can be unilaterally liable fr cnspiracy Themis Bar Review, LLC OH Criminal Law Distinctins

17 Tw r mre persns are still required t frm a cnspiracy, but a defendant can be unilaterally liable if his c-cnspiratr(s) are actually feigning agreement (e.g., is an undercver plice fficer) r if all f the alleged c-cnspiratrs are. In Ohi, a defendant need nt knw the identity f any f the ther members f the cnspiracy. Unlike the multistate rule, there need nt be a "cmmunity f interest" amng the cnspiratrs; the prsecutr need nly prve that the defendant r had that he was cnspiring with thers. Cnsistent with the multistate rules, it is nt a defense t cnspiracy that the cmmissin f the underlying ffense was under the circumstances. b. Withdrawal frm cnspiracy Under the COMMON LAW, withdrawal is nt a defense t cnspiracy. OHIO allws fr withdrawal as a defense t cnspiracy. There are tw ways t withdraw: A cmplete and vluntary f the cnspiracy which the success f the cnspiracy; OR the cnspiracy prir t the cmmissin r attempt f the crime by advising all cnspiratrs f such abandnment r by law enfrcement f the existence f the cnspiracy and the individual's participatin in it. c. Terminating the cnspiracy In Ohi, a cnspiracy terminates when the underlying ffense is cmmitted r by all participants. NOT a defense t cnspiracy that n ffense that was the bject f the cnspiracy was cmmitted 4. Attempt Under OHIO law, any act r that strngly crrbrates a criminal purpse cunts as a substantial step. In Ohi, the mens rea t cmmit attempt is r. OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 17

18 a. Impssibility Under the MULTISTATE RULES, there are tw kinds f impssibility. Factual impssibility meaning that it is impssible t cmmit the crime because f circumstances unknwn t the defendant Nt a defense Legal impssibility meaning that it is impssible t cmmit the crime because yu are mistaken abut the legal status f a persn r an item Is a defense t attempt Under OHIO law, there is n distinctin between factual impssibility and legal impssibility neither is a defense. Hwever, "pure legal impssibility" is still a defense that is, if the defendant cmmits an actin and merely believes that it is illegal (but it is nt in fact a crime), she is nt guilty f attempt. Example 26: Yu plan n killing yur father. Yu buy a gun, g t his huse, and creep int his bedrm. Yu see a figure in the bed and yu sht it six times. Yu then turn n the lights and see that the figure was nly a pile f pillws. Yur father is, unbeknwnst t yu, currently in China n a three-week business trip. Yu have made a factual mistake there is n way yu culd have cmpleted yur crime because f circumstances unknwn t yu. Yu are guilty f under bth the multistate rules and under Ohi law. Example 27: Yu plan n killing yur father. Yu think he is sleeping. Yu want t kill him and yu sht him. Hwever, he had already died f a heart attack ne hur earlier. This is a case f impssibility. Under the multistate rules, yu wuld nt be guilty f attempted murder it was legally impssible fr yu t cmmit murder because yu made a mistake abut the legal status f the "victim" yu thught he was alive, but he was nt. Under Ohi law, hwever, yu are guilty f attempted murder. Yur mistake abut the legal status f the "victim" is nt a defense. Example 28: Yu purchase marijuana in a state that has legalized marijuana. Hwever, yu are unaware that the state has legalized marijuana; yu hnestly believe yu are cmmitting a crime by pssessing it. This is a case f "pure legal impssibility yu are nt guilty f attempted pssessin under the multistate rules r Ohi law Themis Bar Review, LLC OH Criminal Law Distinctins

19 b. Abandnment Under OHIO law, it is an affirmative defense t attempt that the defendant abandned his effrt t cmmit the ffense r prevented its cmmissin under circumstances manifesting a and renunciatin f his criminal purpse. Hwever, nce the defendant has already frmed intent and taken a substantial vert step twards cmmitting the crime, it is t late t "abandn" the crime. This is because the attempt is already cmpleted the attempt crime has already ccurred nce the substantial vert step has ccurred. Example 29: Terry has sme heated wrds with his friend Jhn in a bar. Jhn decides he wants t kill Terry in retaliatin fr the things Terry said abut him. Jhn takes ut a knife and thrws it at Terry's chest. Terry ddges the knife. Jhn suddenly feels terrible abut what he has dne and aplgizes t Terry, cmpletely renuncing his intent t kill him. Hwever, he has already cmpleted the crime f attempted murder thrwing the knife at Terry was a substantial vert step and s it is t late fr him t abandn the crime. B. Defenses in Criminal Law 1. Burden f Prf Under the MULTISTATE rule, yu learned in mst jurisdictins the burden f prf fr affirmative defenses is that the defendant bears the initial burden f raising the defense, and then the burden f persuasin shifts t the prsecutr, wh must prve the lack f the defense by prepnderance f the evidence, clear and cnvincing evidence, r beynd a reasnable dubt. In OHIO, the bears the burden f prf fr all affirmative defenses, and she must prve the defense by a. 2. Insanity Under the MULTISTATE rule, yu learned that insanity is a mental abnrmality that affects legal respnsibility fr an actin. A legal term, nt a scientific term Fur tests fr insanity: The M'Naghten test, the irresistible impulse test, the Durham rule, and the Mdel Penal Cde test. OHIO s test fr insanity is mst similar t M Naghten. A persn is nt guilty by reasn f insanity if the persn prves he did nt knw, as a result f severe mental disease r defect,. OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 19

20 Nte that the standard M'Naghten test defines insanity as a persn wh did nt knw, as a result f a severe mental disease r defect, the nature and quality f his act OR the wrngfulness f his act. Ohi has nly adpted the f the M'Naghten test. Example 30: Carl is charged with stabbing his girlfriend in the thrat. He argues that at the time f the incident, he was suffering frm a mental disease and hnestly believed his girlfriend was a zmbie wh was abut t cnsume his brains. Under the majrity rule, nce Carl raises this defense, the prsecutr bears the burden f prving (by prepnderance, clear and cnvincing, r beynd a reasnable dubt) that at the time f the incident, Carl did nt hnestly believe that his girlfriend was a zmbie, and therefre he understd the wrngfulness f his actin. Under Ohi's rule, Carl wuld have the burden f prving t the jury by a prepnderance f the evidence that he hnestly did believe his girlfriend was a zmbie and therefre he did nt understand the wrngfulness f his actin. 3. Vluntary Intxicatin Under the MULTISTATE rule, vluntary intxicatin is a defense fr specific intent crimes if the intxicatin prevents the frmatin f the required intent. In OHIO, there is essentially n vluntary intxicatin defense, since vluntary intxicatin can never be used t negate the f a crime. Nr will vluntary intxicatin a persn f a duty t act if failure t act is a crime. Hwever, whether a persn is intxicated may be relevant t determine whether a defendant was physically capable f cmmitting the crime. Example 31: Sarah is the mther f a tw-year-ld sn. One afternn she is sitting n the beach with her sn and she shts up sme herin. She becmes s high frm the herin that she des nt ntice her sn wander int the cean. Her sn drwns, and she is charged with manslaughter under the thery that she had a duty t prtect her sn frm harm and she recklessly ignred the risk f him wandering int the cean. She attempts t argue that because f her intxicatin, she was unaware f the risk invlved. Her defense f vluntary intxicatin will nt be permitted. In ther wrds, she will be charged and prsecuted just as she wuld be if she were cmpletely sber when the incident ccurred. 4. Self-Defense In general, a nn-aggressr is justified in using reasnable frce against anther persn t prevent immediate unlawful harm t himself Themis Bar Review, LLC OH Criminal Law Distinctins

21 In OHIO, as elsewhere, if the defendant is the aggressr, she cannt claim self-defense. If she was merely engaging in that did nt create the aggressive cnduct, she is nt precluded frm claiming self-defense. a. Rebuttable presumptin when defending hme r vehicle If the defendant uses frce against smene wh is unlawfully entering r already has unlawfully entered a residence r vehicle where the defendant is present, then the defendant gets a rebuttable presumptin f self-defense. The presumptin may be rebutted by the prsecutr by a. Des nt apply if deadly frce is used against smene wh has a right t be in r is a lawful resident f the residence r vehicle Example 32: Frank and Sarah are in the prcess f getting a divrce. Because Frank has beaten Sarah in the past, the curts have issued a restraining rder telling Frank t stay away frm Sarah. One day Frank attempts t enter the huse which he and Sarah still jintly wn. He knws Sarah is present, s he is unlawfully entering the residence. There is a struggle and Sarah stabs Frank in the leg. At trial, Sarah asks the judge fr a rebuttable presumptin f self-defense since Frank unlawfully entered the residence. Hwever, Sarah des NOT get the presumptin because Frank had a right t be in the residence as a lawful wner. (Sarah culd still plead selfdefense, but she des nt get the presumptin). b. Retreat OHIO allw a persn t use deadly frce in self-defense if he has available a means f retreat frm the cnfrntatin. Castle Dctrine: N duty t retreat frm yur r c. Battered Wman Syndrme Ohi allws fr expert testimny evidence f battered wman s syndrme t be intrduced t shw that the persn suffered frm the syndrme and had the belief that she was in f death r great bdily harm. OH Criminal Law Distinctins 2016 Themis Bar Review, LLC 21

22 5. Unlawful Arrest Under the MAJORITY rule, a defendant may use nn-deadly frce t resist an unlawful arrest. Under OHIO law, a persn may nt resist arrest, even if the arrest is illegal, if the persn knws an is making the arrest. 6. Entrapment Under the MULTISTATE rules, there are tw different dctrines fr entrapment. Under the subjective apprach, curts fcus n the defendant and whether r nt he was predispsed t cmmit the crime. Under the bjective apprach, curts fcus n the gvernment's actin and the effect it wuld have n a reasnable persn. OHIO fllws the apprach in defining entrapment. Under this apprach, entrapment ccurs when: The crime is by a gvernment fficial r agent, AND The defendant was nt (i.e., ready and willing) t cmmit the crime. Example 33: Steve, a 55-year-ld man, enters an nline chat rm intended fr teenagers and begins chatting with thers in the chat rm. A law enfrcement fficer psing as a 15-year ld girl begins chatting with him and, after abut ten minutes, she states that she wuld be willing t "get physical" with him. He tells her he will cme t her huse. When he shws up at the address, he is arrested and charged with sliciting a minr fr sex. He pleads an entrapment defense. Althugh the defendant was prbably "induced" by the undercver fficer, under Ohi law, the prsecutr can defeat the entrapment defense if she can prve that the defendant was already willing t cmmit the crime befre the undercver agent prpsed sex. [END OF HANDOUT] Themis Bar Review, LLC OH Criminal Law Distinctins