IN THE SUPREME COURT OF OHIO 2018

STATE OF OHIO,

Case No. 2017-344

Plaintiff-Appellant, On Appeal from the Franklin County Court

-vs- of Appeals, Tenth Appellate District DARIN IRELAND, Court of Appeals Defendant-Appellee. Case No. 15AP-1134

BRIEF OF PLAINTIFF-APPELLANT STATE OF OHIO

RON O’BRIEN 0017245 Franklin County Prosecuting Attorney 373 South High Street–13th Fl. Columbus, Ohio 43215 614/525-3555

PAUL GIORGIANNI 0064806 Attorney at Law 1538 Arlington Avenue Columbus, Ohio 43212 614-205-5550 paul@giorgiannilaw.com COUNSEL FOR DEFENDANT-APPELLEE

and MICHAEL P. WALTON 0087265 (Counsel of Record) Assistant Prosecuting Attorney mwalton@franklincountyohio.gov COUNSEL FOR PLAINTIFF-APPELLANT

Supreme Court of Ohio Clerk of Court - Filed January 02, 2018 - Case No. 2017-0344

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT ...................................................................................................................................7

Proposition of Law: The defense of blackout or automatism is an affirmative defense that must be proven by a defendant by a preponderance of the evidence, because it involves an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence. ................................................................................................................. 7

CONCLUSION ..............................................................................................................................20

CERTIFICATE OF SERVICE ......................................................................................................20

Appendix: Notice of Appeal………………………………………………………………………………..A-1 10th Dist. Judgment (filed January 25, 2017)…………………………………………………. A-4 10th Dist. Decision (filed January 24, 2017)…………………………………………………...A-6 Revised Code 2901.05………………………………………………………………………...A-26

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TABLE OF AUTHORITIES

Cases

Fulcher v. State, 633 P.2d 142 (Wyoming 1981) ......................................................................... 14

Miller Chevrolet v. Willoughby Hills, 38 Ohio St.2d 298, 313 N.E.2d 400 (1974) ..................... 20

State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 522 N.E.2d 524 (1988) ................................ 20

State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975) ............................................................... 13

State v. Deer, 175 Wash.2d 725, 287 P.3d 539 (2012) ................................................................. 16

State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052 ..................................... 18

State v. Hackedorn, 5th Dist. No. 2004-COA-053, 2005-Ohio-1475............................................ 11

State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996) .............................................................. 15

State v. Jackson, 32 Ohio St.2d 206, 291 N.E.2d 432 (1972)....................................................... 18

State v. LaFreniere, 85 Ohio App.3d 840, 621 N.E.2d 812 (11th Dist.1993) ............................... 11

State v. Mobley, 5th Dist. No. 2010-CA-0018, 2011-Ohio-309 .................................................... 12

State v. Murray, 9th Dist. No. 89CA004648, 1990 WL 50165 (Apr. 18, 1990) ........................... 10

State v. Myers, 164 N.E.2d 585, 589-90 (Franklin County 1959) .............................................. 8, 9

State v. Robinson, 2nd Dist. No. 9547, 1986 WL 6109 (May 27, 1986) ......................................... 9

State v. Wilcox, 70 Ohio St.2d 182, 436 N.E.2d 523 (1982) ........................................................ 19

Statutes

R.C. 2901.05(A) .............................................................................................................................. 7

R.C. 2901.05(D)(1) ................................................................................................................... 7, 18

R.C. 2903.11(A)(1) ......................................................................................................................... 7

Other Authorities

Black’s Law Dictionary, 10th Ed. 2014 ........................................................................................... 8

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STATEMENT OF FACTS

On October 19, 2013, after a day of golfing, Drew Coen (“Drew”) and his brother Cris

arrived at Cappy’s Bar on North Waggoner Road at approximately 7 p.m. (T. 72-74) The

brothers stayed for several hours, playing a video game, listening to a band, and talking with a

couple they happened to meet while there. (T. 75) Drew and Cris also consumed alcohol

throughout that time. (T. 80)

Also at the bar that evening was an organization known as the Combat Motorcycle

Veterans Association (“CVMA”). (T. 75) CVMA was holding an event at the bar to raise

money for former members of the military. Among the members present were Tyler Thrash

(“Thrash”) and defendant. Defendant’s wife was also in attendance. (Exhibit E)

At some point in the evening, members of the CVMA approached Drew and his brother

to ask for a donation to benefit veterans. Drew remembers making a donation. (T. 77)

After many hours of playing pool and conversing with the couple they had met, Drew and

Cris decided it was time to go. (T. 78) As the brothers headed out, Cris was called back into the

bar in order to sign the credit card slip to close out his tab. (Id.)

The next thing that Drew remembered was waking up at Grant Medical Center in the

middle of the night, and being given a phone to call anyone he needed to call. (Id.) Drew

testified that he was in a lot of pain and was confused and angry when he woke up. (T. 80)

Drew’s injuries were extensive. He suffered a large amount of damage to his face, including a

broken jaw, broken nose, and a broken orbital bone. (T. 82) Drew also had an injury to one of

his knees and a gash on his forehead. (Id.)

Adam McMillen was also at Cappy’s the night of October 19th. (T. 151-52) He also

testified that CVMA members were present that night. (T. 153) Further, some of the members

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of CVMA were regulars of Cappy’s, including defendant and defendant’s wife, Pam. (T. 153-

54)

At some point in the evening, McMillen was standing outside near the front door of the

bar. (T. 155) McMillen saw Thrash put Drew into a headlock and squeeze so tight that Drew

was unable to speak. (T. 157-58) While Thrash was choking Drew, Thrash said “[n]obody

grabs my brother’s girl, you know. You’re going out, bitch.” (T. 160) McMillen assisted bar

owner Lou Capodanno (“Capodanno”) in separating Thrash from Drew. (T. 158) At some

point, defendant came over to help break up the altercation as well. (Id.) McMillen testified that

defendant was close enough to the altercation to hear what Thrash had said to Drew. (T. 160)

After being separated, Drew stumbled toward the parking lot while hunched over, and

ended up standing against a vehicle in the lot. (T. 161-62) McMillen testified that he saw

Thrash run after Drew and “do a running punch” causing Drew to fall to the ground. (T. 162)

McMillen and others grabbed Thrash and got him away from Drew. (Id.)

After a very short period of time, McMillen heard Pam screaming and turned to see

defendant “over the victim and punching.” (Id.) Defendant also kicked Drew, and that’s when

Capodanno and McMillen moved to intervene. (T. 163) While defendant was punching and

kicking Drew, Drew was unconscious and not moving. (Id.)

After defendant was separated from Drew, McMillen found a cell phone, sunglasses, and

keys. (T. 165) He assumed that they belonged to defendant and put the items in Pam’s car. (T.

168) Pam drove away from Cappy’s with defendant in her car. (Id.) A short time later, Pam

drove back into the parking lot and returned the phone, sunglasses, and keys to McMillen. (T.

168-69) Once the ambulance arrived, McMillen gave the items to the driver. (T. 176)

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Theresa Luginbuhl (“Luginbuhl”) testified that on October 19, 2013, she was working at

Cappy’s, which was owned at that time by her boyfriend, Capodanno. (T. 229-30) She was the

one who called Cris back into the bar to sign for his tab. (T. 234) After Cris closed out his tab,

Luginbuhl went out the front door to smoke a cigarette and saw “a body flying across the parking

lot.” (Id.) Then, she saw a cell phone being broken over Drew’s head. (Id.) Luginbuhl also saw

defendant repeatedly stomping on Drew’s head before anyone intervened. (T. 237)

Capodanno and a few others moved to intervene, and Capodanno told Luginbuhl to go

back inside and call 911. (Id.) After calling 911, Luginbuhl went back outside after a few

minutes. (T. 240) When she came out, she saw defendant repeatedly punching Drew, who was

unconscious on the ground. (T. 241) Luginbuhl also saw Capodanno laying on top of Drew,

attempting to protect him. (Id.)

Capodanno testified that, when he and defendant separated Thrash and Drew from the

initial altercation, Drew was not bleeding. (T. 262-63) While being separated, Thrash continued

to threaten Drew, saying “[y]ou wanna touch one of our women?” (T. 262) In response,

defendant asked Drew, “[w]hose woman did you touch? You touched my woman?” (Id.)

Capodanno helped Drew to his feet and moved him away from the front door toward the

parking lot while asking him what had happened. (T. 263) Someone came up behind

Capodanno, said “[y]ou wanna touch one of our women?” and punched Drew. (T. 266) Drew

fell to the ground on his back, and defendant began kicking Drew in the side of the body and

delivering kicks to his head and face. (Id.)

Capodanno tried to protect Drew with his own body and wound up getting kicked and

punched by defendant as a result. (T. 267-69)

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As a result of the injuries, Drew was in reconstructive surgery the next morning. (T. 82-

83) His jaw was wired shut and metal plates and screws were installed in various places on his

skull. (T. 83) During recovery from the surgery, Drew developed complications with the metal

plates and screws. (T. 86) The screws holding the plates in place were interacting with the

nerves in his face and causing a great deal of pain. (Id.)

Eventually, the screws were removed. (Id.) However, the pain from the permanent nerve

damage remained. (T. 87) The nerve damage has made Drew’s front teeth so sensitive that he

cannot use them for anything without experiencing excruciating pain. (T. 88)

Drew also suffers from lasting psychological effects of the attack. (T. 91) Whenever he

leaves the house, and is out in public with other people moving around him, he has a difficult

time because everything in his blind spot becomes a concern. (Id.)

Cris testified that while he was resolving the bar tab issue, multiple people came up to

him saying that he needed to go help his brother. (T. 132) Cris didn’t recognize his own brother,

based upon the injuries to Drew’s face. (T. 133) Cris grabbed some towels and applied pressure

to Drew’s face, holding him until paramedics arrived. (Id.)

On January 22, 2014, the grand jury charged defendant with a single count of felonious

assault, a second-degree felony. (R. 4) Defendant entered a plea of not guilty and the matter

proceeded to a trial by jury.

Prior to trial, defendant, on the advice of his counsel, engaged Dr. Reardon to conduct a

mental evaluation. (T. 301) Additionally, defendant requested a special jury instruction

concerning blackout. (R. 225) The requested instruction read as follows:

BLACKOUT: Where a person commits an act while unconscious as in a blackout due to disease or injury, such an act is not a criminal offense even though it would be a crime if such act were the product of the person’s volition.

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If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony that the act was knowingly committed.

At the close of evidence, the trial court rejected the proposed instruction and instead gave

the following instruction related to blackout:

The defendant is asserting an affirmative defense known as blackout.

The burden of going forward with the evidence of blackout and the burden of proving an affirmative defense are upon the defendant. He must establish such a defense by a preponderance of the evidence.

* * *

If the defendant fails to establish the defense of blackout, the state still must prove to you beyond a reasonable doubt all the elements of the crime charged.

Where a person commits an act while unconscious as in a coma, blackout, or convulsion due to heart failure, disease, sleep, or injury, such act is not a criminal offense even though it would be a crime if such act were the product of a person’s will or volition.

If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony that the act was knowingly committed.

(R. 234)

On October 30, 2015, a jury returned a verdict of guilty. (R. 229) On December 8, 2015,

the trial court imposed a prison sentence of six years. (R. 258) However, the trial court granted

an appeal bond. (R. 263) Defendant filed a timely notice of appeal. (R. 270) He raised five

assignments of error. (App. Rec. 25)

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In his first assignment of error, defendant argued that the trial court had committed error

in instructing the jury that his defense of blackout or automatism was an affirmative defense.

(Id.) A majority of the three-member panel agreed, reversed the decision of the trial court, and

remanded the matter for further proceedings. State v. Ireland, 10th Dist. No. 15AP-1134, 2017-

Ohio-263. The State filed a motion to certify a conflict, which was denied. (App. Rec. 37, 45)

On March 14, 2017, the State filed a notice of appeal. (App. Rec. 42)

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ARGUMENT

Proposition of Law: The defense of blackout or automatism is an affirmative defense that must be proven by a defendant by a preponderance of the evidence, because it involves an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.

A.

In criminal prosecutions, the State bears the burden of establishing all elements of a

charged offense beyond a reasonable doubt. R.C. 2901.05(A). However, R.C. 2901.05(A) also

provides that “[t]he burden of going forward with the evidence of an affirmative defense, and the

burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the

accused.” The phrase “affirmative defense” is defined by R.C. 2901.05(D)(1) as:

(a) A defense expressly designated as affirmative; [or]

(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.

In this case, defendant was charged with felonious assault, which required the State to

prove beyond a reasonable doubt that defendant knowingly caused serious physical harm to the

victim. R.C. 2903.11(A)(1). There was no dispute that Drew Coen suffered serious physical

harm. Similarly, defendant did not dispute his conduct. At trial, defendant raised the defense of

blackout or automatism in order to excuse or otherwise justify his conduct. Defendant argued

that he was unconscious due to PTSD at the time he committed the felonious assault and was not

in control of his mental faculties. Thus, under defendant’s argument, the relentless beating

specifically and repeatedly targeting Drew Coen’s face and head was not “voluntary” and the

State was required to prove that defendant was not unconscious with proof beyond a reasonable

doubt. The trial court rejected defendant’s argument, instead finding that, by raising the defense

of blackout, defendant bore the burden to establish that he was unconscious by a preponderance

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of the evidence. The Tenth District majority reversed, finding that the State was required to

prove beyond a reasonable doubt all essential elements of the offense of felonious assault, but

also was required to prove that defendant’s act was not the result of a reflex or convulsion while

defendant was in an unconscious state.

There is no dispute that the Revised Code does not expressly designate the blackout or

automatism defense as being affirmative. There is also no dispute that the Revised Code does

not define the terms “excuse” or “justification.” However, Black’s Law Dictionary defines both

terms, and the definition of each supports the conclusion that blackout or automatism should be

considered an affirmative defense in Ohio. As used in the criminal law context, Black’s defines

“excuse” as “[a] defense that arises because the defendant is not blameworthy for having acted in

a way that would otherwise be criminal.” Black’s Law Dictionary, 10th Ed. 2014. Black’s

defines “justification” as:

1. A lawful or sufficient reason for one’s acts or omissions; any fact that prevents an act from being wrongful. 2. A showing, in court, of a sufficient reason why a defendant acted in a way that, in the absence of the reason, would constitute the offense with which the defendant is charged.

Id.

Until the majority decision in this case, the blackout or automatism defense was

considered an affirmative defense within Franklin County. See State v. Myers, 164 N.E.2d 585,

589-90 (Franklin County 1959). In Myers, the defendant requested a blackout instruction that

placed the burden on the State to prove that he was conscious at the time of a vehicular crash,

which the trial court refused to give. Myers was eventually convicted of vehicular homicide and

filed a direct appeal. Myers argued that the trial court had committed error by failing to give his

requested instruction. The State argued that there were multiple problems with the instruction

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proposed by the defendant, one of which was that the proposed instruction “fail[ed] to place the

burden on the defendant to prove by a preponderance of the evidence that the happening was

excusable.” Id. at 590. The Franklin County Court of Appeals agreed with the State on every

criticism of the proposed instruction, including that a defendant bears the burden of proving the

defense of blackout by a preponderance of the evidence. See id. at 591 (“‘It would be difficult, if

not impossible, for a plaintiff to prove a defendant conscious, and particularly to prove that if he

were unconscious whether such condition was foreseeable, such as sleepiness or an intoxicated

condition, or resulted from an unforeseen cause.’”) quoting Lehman v. Haynam, 164 Ohio St.

595, 600, 133 N.E.2d 97 (1956). By failing to adhere to this precedent, the Tenth District

majority created both an intra-district conflict and an inter-district conflict as explained below.

B.

Subsequent to Myers, at least four other district courts addressed the issue. Each court

came to a conclusion supporting the State’s proposition of law that blackout must be considered

an affirmative defense.

State v. Robinson

In State v. Robinson, 2nd Dist. No. 9547, 1986 WL 6109 (May 27, 1986), the defendant

was charged with two counts of aggravated vehicular homicide and two counts of involuntary

manslaughter. In order to establish the recklessness element of aggravated vehicular homicide,

the State intended to present evidence that defendant had been drinking and was intoxicated at

the time of the crash. Id. at *3. The defendant claimed surprise at such testimony/evidence and

moved the trial court to dismiss the case based upon an alleged discovery violation. Id. The

motion to dismiss as a sanction for a discovery violation was understandable, given that

Robinson’s defense to the charges was that, while driving, he had blacked out due to a previous

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head injury after having been twice shot in the head. Id. As noted by the Robinson court,

evidence of alcohol use would be devastating to such a defense. At the conclusion of the

evidence, the trial court instructed the jury concerning blackout and that defendant bore the

burden of establishing the defense by a preponderance of the evidence. Id. at *6. On appeal, the

Second District held that, while not expressly designated as an affirmative defense, “blackout, in

our view, comes clearly within the statutory definition of an affirmative defense.” Id. at *7

citing former R.C. 2901.05(C)(2).1

State v. Murray

In State v. Murray, 9th Dist. No. 89CA004648, 1990 WL 50165 (Apr. 18, 1990), the

defendant was charged with vehicular homicide and an ACDA violation. Id. at *1. At the close

of evidence, Murray requested a blackout instruction. Id. at *1-2. This was based on the

testimony of Murray’s treating physician, who testified that Murray likely had suffered a loss of

consciousness in the moments leading up to the vehicular crash. Id. at *2. The trial court

refused to give the instruction. Id. On appeal, the Ninth District reversed, holding that Murray

had introduced sufficient evidence to be entitled to the instruction on blackout. Id. at *3. In

reaching its conclusion, the Ninth District did not explicitly state that the blackout defense is an

affirmative defense. The court did not discuss R.C. 2901.05. However, that is the only

reasonable conclusion to be drawn from the court’s analysis. The court placed significance of

the fact that both Murray and his treating physician testified concerning whether Murray was

unconscious (or likely to be unconscious) at the time of the crash. Id. at *2-3. From this

testimony, the Ninth District held that Murray had introduced sufficient evidence of blackout to

1 Former R.C. 2901.05(C)(2) was later amended and became R.C. 2901.05(D)(1)(b). See 2008 S. 184, effective 9-9-08.

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warrant giving the instruction. Id. at *2. This conclusion includes the assumption that Murray

had a burden to introduce sufficient evidence to warrant the instruction in the first place.

State v. LaFreniere

In State v. LaFreniere, 85 Ohio App.3d 840, 621 N.E.2d 812 (11th Dist.1993), the

defendant was convicted of murder. During trial, LaFreniere testified that he had briefly lost

consciousness in the moments leading up to the shooting. Id. at 844. At the close of evidence,

LaFreniere requested the blackout instruction and the trial court refused. Id. at 844-45. On

appeal, the Eleventh District reversed, holding that LaFreniere had introduced sufficient

evidence to be entitled to the instruction on the “affirmative defense of blackout.” Id. at 849-50.

State v. Hackedorn

In State v. Hackedorn, 5th Dist. No. 2004-COA-053, 2005-Ohio-1475, the defendant was

convicted for assault. During trial, the following testimony was produced. After a night out

drinking, the victim found Hackedorn, a recent acquaintance, passed out in front of her

residence. Id. at ¶¶2-3. When she went to check on him, Hackedorn suddenly awoke and

attacked the victim, repeatedly punching her while calling her a vulgar name. Id. at ¶¶3-4. On

appeal, defendant argued that the trial court had committed plain error in failing to instruct the

jury concerning blackout. Id. at ¶24. The Fifth District rejected his argument that the instruction

should have been given. The Fifth District came to several significant conclusions. First, the

court held that the continuous assault administered by Hackedorn was not an act that could have

been committed while in a blackout state. Id. at ¶43. The court observed that no reflexes,

convulsions, or other involuntary bodily movements could have accounted for the sustained,

targeted attack. Id. Second, the court held that blackout is an affirmative defense and that

Hackedorn had failed to produce any evidence to support such an instruction. Id. Finally, the

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court held that the jury could infer from circumstantial evidence that Hackedorn was acting

voluntarily at the time of the assault. Hackedorn is especially relevant as a parallel to the instant

matter, as both involve specific, sustained assaultive conduct by the defendant. As in

Hackedorn, the assault committed by defendant in this case constitutes substantial circumstantial

evidence that defendant was conscious and acting voluntarily at the time of the assault.

State v. Mobley

Finally, in State v. Mobley, 5th Dist. No. 2010-CA-0018, 2011-Ohio-309, the defendant

was convicted for attempted aggravated murder, aggravated burglary, felonious assault, and

discharging a firearm into a habitation. The convictions arose as a result of a confrontation

between Mobley and his ex-wife. Id. at ¶¶2-14. Mobley initially entered a plea of NGRI, but

after the evaluation, it was determined that he could not satisfy the statutory criteria for such a

finding by a trier of fact. Id. at ¶15. However, Mobley still wanted to call the evaluating expert

to support his ultimate argument that his actions were not the result of a voluntary act, based

upon a disabling depressive disorder. Id. The trial court refused to allow the testimony. On

appeal, the Fifth District once again recognized that blackout is an affirmative defense and that

the acts of Mobley were not the type that could be committed while in a blackout state. Id. at

¶¶43, 45-46. The court also held that, by attempting to put on expert testimony concerning his

mental state, Mobley had attempted to raise the “functional equivalent” of a diminished capacity

defense. Id. at ¶46. Of course, because Ohio does not recognize the defense of diminished

capacity, the Fifth District rejected Mobley’s argument on appeal and affirmed his convictions.

Id. at ¶47.

All of the cases cited above, with the exception of Myers, post-date the adoption of the

1974 Criminal Code and therefore all take into account the current definition of “affirmative

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defense.” These cases cannot be distinguished on the basis that the current case involved a

PTSD-based claim of blackout while the other cases involved alleged other causes of potential

“blackout,” whether it be a head injury in Robinson and LaFreniere, an alleged unforeseen loss

of consciousness in Murray, or lack of voluntary act due to disabling depressive disorder in

Mobley. Whatever the purported cause, the issue remains the same as to whether blackout,

regardless of the cause, is an affirmative defense within the meaning of R.C. 2901.05.

C.

Several Supreme Courts in other jurisdictions have addressed the issue as well. Of the

four cases cited below, three have concluded that blackout or automatism should be considered

an affirmative defense.

State v. Caddell

In State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975), the defendant was convicted of

kidnapping. Id. at 268. The evidence showed that Caddell had abducted the victim from the

driveway of her residence, transported her to a wooded area and both physically and sexually

assaulted her. Id. at 269-70. At trial, Caddell testified at length in an “incoherent jumble” in an

attempt to establish the impression that he was mentally deranged. Id. at 271. Caddell testified

that he had never met the victim and had no memory of the events of the day of the incident. Id.

The trial court instructed the jury that Caddell bore no burden to establish the defense of

unconsciousness. Id. at 284. On appeal, Caddell argued that the instruction was error and that

the trial court should have instructed the jury that Caddell should be found not guilty unless the

jury found that Caddell was not unconscious beyond a reasonable doubt. Id. The North Carolina

Supreme Court held that the trial court had incorrectly instructed the jury, but that defendant had

benefitted from the error. In overruling a previous case, the high court held that unconsciousness

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is an affirmative defense and that a defendant bears the burden to prove the defense by a

preponderance of the evidence. Id. at 290. In so holding, the court noted a general presumption

of consciousness. See id. at 286 (“‘Men are presumed to be conscious when they act as if they

were conscious, and if they would have the jury know that things are not what they seem, they

must impart that knowledge by affirmative proof.’”) quoting People v. Nihell, 144 Cal. 200, 77

P. 916 (1904).

Fulcher v. State

In Fulcher v. State, 633 P.2d 142 (Wyoming 1981), the defendant was convicted at a

bench trial of aggravated assault for an incident in which he violently beat a cellmate after his

arrest for public intoxication and disturbing the peace. Id. at 143. Fulcher initially entered a plea

of not guilty by reason of temporary mental illness but quickly withdrew the plea in favor of a

straight not guilty plea when he discovered that the former plea would require his commitment

for examination. Id. Nevertheless, Fulcher engaged an expert who testified at trial that Fulcher

suffered a brain injury prior to his arrival in the holding cell and that he was essentially in a state

of “traumatic automatism” at the time he administered the beating. Id. at 143-44. The expert

defined this state as a state in which a person does not have conscious and willful control over

his actions. Id. at 144.

On appeal, the high court followed Caddell and held that unconsciousness is considered

an affirmative defense. The rationale for this rule is that when a defendant is claiming

unconsciousness, only the defendant knows what his actual state of consciousness is.

Furthermore, the court held that, at trial, Fulcher had not overcome the presumption of mental

competency and that there was an abundance of other credible evidence in the record that he was

not unconscious at the time of the assault.

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State v. Hinkle

In State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996), Hinkle was convicted for

involuntary manslaughter. Id. at 281. The charge was not based upon operation of a vehicle

while intoxicated. Rather, the charge was based upon an allegation that Hinkle had operated a

motor vehicle in an “unlawful manner[.]” Id. at 282. The evidence showed that, on the day of

the incident, Hinkle went to a tavern and ordered a beer, of which he drank approximately one-

third. Id. at 281. Hinkle then complained of dizziness and double-vision and left the

establishment. Id. A few hours later, Hinkle was at the wheel of his car when it began to

gradually cross the centerline and travel in a straight line for approximately 200 yards in the

southbound lane before colliding with another vehicle. Id. at 282. Eyewitnesses said that Hinkle

did not attempt to swerve, brake, change directions, or stop prior to the crash. Id. At the

hospital, a blood draw revealed that, while there was a minute trace of alcohol, Hinkle was not

intoxicated. Further, a MRI showed that Hinkle had an undiagnosed brain disorder in “the

portion of his brain that regulates consciousness.” Id.

Hinkle requested a jury instruction on insanity, which was rejected by the trial court. The

intermediate court affirmed and the Supreme Court of West Virginia reversed, finding that the

jury should have been instructed on unconsciousness. Id. at 285-89. The court held that the

burden of proof on the issue “once raised by the defense” is on the state to prove that the act was

voluntary beyond a reasonable doubt. Id. at 286. The court further concluded that an instruction

on unconsciousness must be given when there is “reasonable evidence that the defendant was

unconscious at the time of the commission of the crime.” Id. at 286-87.

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State v. Deer

In State v. Deer, 175 Wash.2d 725, 287 P.3d 539 (2012), the defendant was convicted for

rape of a child after having intercourse with a 15-year-old on multiple occasions. Id. at ¶1.

During trial, Deer argued that she was asleep during several of the acts and thus did not act with

volition on those occasions. At the close of evidence, Deer requested a jury instruction that the

prosecution was required to prove beyond a reasonable doubt that she was awake during the

charged conduct. Id. at ¶3. The trial court refused to give the instruction and instead instructed

the jury that Deer was required to prove her unconsciousness by a preponderance of the

evidence. Id. On appeal, the intermediate court reversed. On further appeal, the Supreme Court

of Washington reversed the appellate court. The only question addressed by the court was

whether the prosecution bears the burden of disproving a defendant’s claim that she was asleep

because volition is an element of every crime. Id. at ¶6. The high court held that the actus reus

must not be broken down to such a degree as to require the prosecution to prove an additional

element of volition or consciousness. Id. at ¶10. Such a claim by a defendant, according to the

court, should be treated instead as an affirmative defense. Id. at ¶11. The court held that, as the

party with the knowledge required to establish the additional evidence to support it, the burden of

proof was properly applied to Deer. Id. at ¶¶20-21.

D.

The critical question in this case, which was ignored by the Tenth District majority, is

who had the knowledge of the defendant’s alleged blackout condition at the time of the alleged

crime and thereafter. There is no doubt that the State had absolutely no knowledge of

defendant’s alleged condition. Furthermore, there was no way for the State to have gained such

knowledge during the investigation of this incident, in the absence of a statement by defendant to

17

investigating law enforcement officers indicating his alleged condition. The record of this case

shows that defendant chose not to speak with investigating officers.

Defendant’s argument in support of his first assignment of error, which was eventually

sustained by the majority, boiled down to one key conclusion: that in every single criminal trial,

the State has an additional burden to prove that the defendant was not in a blackout state at the

time of the alleged criminal act for which they are on trial. The Tenth District majority adopted

this precise reasoning in its decision. Ireland, ¶¶38-39. This reasoning adds an element to every

single offense in every single trial; an element that is not contained in the statutory definition of

the crime charged. While the State must prove the mens rea and actus reus of a charged offense,

those components are proven by establishing the statutorily-defined elements of the charged

offense. In the context of a felonious assault prosecution, the State is required to prove that

defendant knowingly caused serious physical harm to another. The State is not required to prove

a negative – i.e. that defendant was not in a blackout state – in order to prove the mens rea and

actus reus. But, the Tenth District majority ultimately held that the State should have been

required to prove that defendant was not in a blackout state at the time of the offense in order to

sustain a conviction for felonious assault, simply because his expert testified that defendant may

have been in a blackout state.

The most significant problem with the conclusion of the Tenth District majority is that

the very nature of the blackout defense, and the evidence required to support it, is “within the

peculiar knowledge” of defendant. In fact, it is exclusively within the knowledge of defendant.

Only a defendant knows whether he was in a blackout state at the time of the offense, as noted by

the court in Fulcher and Deer. And only defendant can bring forth such evidence. Defendant

has a constitutionally protected right against incriminating himself. Furthermore, the State is

18

prohibited from submitting evidence or commenting on the fact that defendant exercised his

constitutional right to remain silent when questioned by law enforcement or if, as here, a

defendant exercises the same right by refusing to testify at trial. Therefore, if the State is

required to prove a negative in order to sustain a conviction in cases like this, all any defendant

would be required to do to prevent a conviction is refuse to submit to questioning by law

enforcement, refuse to participate in a psychiatric evaluation, and refuse to testify at trial. At that

point, under the majority’s conclusion, the State would be incapable of proving that a defendant

was not in a blackout state at the time of the offense.

That is precisely why the blackout defense is, and must be, considered an affirmative

defense; because only defendant has the knowledge of whether he was blacked out. Only

defendant has the ability to produce evidence of the alleged blackout. Therefore, it is only

“fair[]” that he be required to produce such evidence at trial in order to excuse or justify what

would otherwise be criminal conduct, since he is the only one that can do so. R.C.

2901.05(D)(1)(b).

E.

Finally, it must be noted that the sum total of defendant’s argument that blackout is not

an affirmative defense is essentially an argument for the functional equivalent of a diminished

capacity defense. Indeed, in this case, defendant offered expert psychiatric testimony, which was

unrelated to an insanity defense, in order to show that he lacked the mental capacity to form the

specific mental state required for felonious assault. Of course, such a defense is not recognized

in Ohio. State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052 citing State v.

Jackson, 32 Ohio St.2d 206, 291 N.E.2d 432 (1972) and State v. Wilcox, 70 Ohio St.2d 182, 436

19

N.E.2d 523 (1982). As in Fulmer, this Court should reject the defendant’s attempt to raise a

functional equivalent of a diminished capacity defense in this case.

F.

In conclusion, defendant submitted a misleading jury instruction that was properly

rejected by the trial court. Because blackout or automatism must be considered an affirmative

defense, the Tenth District majority committed error in reversing the conviction on the basis of a

jury instruction that held defendant to the proper standard of proof regarding his defense.

Accordingly, this Court should reverse the judgment of the Tenth District majority and remand

this matter to the Tenth District for further proceedings.

20

CONCLUSION

For the foregoing reasons, the State respectfully requests that this Court reverse the

judgment of the Tenth District Court of Appeals and remand the case to the Tenth District for

further proceedings consistent with this Court’s opinion.2

Respectfully submitted,

RON O’BRIEN 0017245 Prosecuting Attorney /s/ M.Walton Michael P. Walton 0087265 Assistant Prosecuting Attorney 373 South High Street, 13th Floor Columbus, Ohio 43215 614-525-3555 mwalton@franklincountyohio.gov

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent by regular U.S. Mail, this day,

January 2, 2018, to PAUL GIORGIANNI at 1538 Arlington Avenue, Columbus, Ohio 43212;

Counsel for Defendant-Appellee.

/s/ M.Walton Michael P. Walton 0087265 Assistant Prosecuting Attorney

2 If this Court sua sponte contemplates a decision upon an issue not briefed, the State respectfully requests notice of that intention and requests an opportunity to brief the issue before this Court makes its decision. Miller Chevrolet v. Willoughby Hills, 38 Ohio St.2d 298, 301 & n. 3, 313 N.E.2d 400 (1974); State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988).

IN THE SUPREME COURT OF OHIO 2017

STATE OF OHIO,

Plaintiff-Appellant,

.V5.

DARIN IRELAND,

Defendant—Appellee.

Case No.I~

On Appeal from the Franklin County Court of Appeals, Tenth Appellate District

Court of Appeals Case No. 15AP-1134

NOTICE OF APPEAL OF PLAINTIFF-APPELLANT STATE OF OHIO RON O’BRIEN 0017245 Franklin County Prosecuting Attorney 373 South High Street, 13th Floor Columbus, Ohio 43215 Phone: 614-525-3555 Fax: 614-525-6103 E-mail: mwalton@franklincountyohio.gov

and

MICHAEL P. WALTON 0087265 (Counsel of Record) Assistant Prosecuting Attorney

COUNSEL FOR PLAINTIFF-APPELLANT PAUL GIORGIANNI 0064806 (Counsel of Record) Attorney at Law 1538 Arlington Avenue Columbus, Ohio 43212 614-205-5550

COUNSEL FOR DEFENDANT-APPELLEE

~~~~

~~~ MAR 10 29:; CLERK or c

sumema C0URT0i)mo~~

A-1

NOTICE OF APPEAL OF PLAINTIFF-APPELLANT STATE OF OHIO Plaintiff-appellant, the State of Ohio, hereby gives notice ofappeal to the

Supreme Court of Ohio from the judgment and the journal entry of the Franklin

County Court of Appeals, Tenth Appellate District, entered in State v. Ireland, 10th

Dist. N0. ISAP-1134, on January 24, 2017. This appeal is being timely filed pursuant

to S.Ct.Prac.R. 7.01(A)(1)(a).

The State of Ohio invokes the jurisdiction of the Supreme Court on the

grounds that the case presents questions of public or great general interest, and

involves a felony and warrants the granting of leave to appeal.

Respectfully submitted,

RON O’BRIEN 0017245 Prosecuting Attomey

MICHAEL P. WALTON 0087265 (Counsel of Record) Assistant Prosecuting Attorney 373 South High Street—13"‘ F1. Columbus, Ohio 43215 614/525-3555

Counsel for Plaintiff-Appellant

A-2

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was sent by regular U.S. Mail,

this day, March 10, 2017, to PAUL GIORGIANNI at 1538 Arlington Avenue,

Columbus, Ohio 43212; Counsel for Defendant—Appellee, and to Timothy Young,

Ohio Public Defender, 250 E. Broad St., Suite 1400, Columbus, Ohio, 43215. z/42 MICHAEL P, WALTON 0087265 Assistant Prosecuting Attorney

A-3

A-4

A-5

[Cite as State v. Ireland, 2017-Ohio-263.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, : Plaintiff-Appellee, : No. 15AP-1134 v. : (C.P.C. No. 14CR-362) Darin K. Ireland, : (REGULAR CALENDAR) Defendant-Appellant. :

D E C I S I O N

Rendered on January 24, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton. On brief: Giorgianni Law LLC, and Paul Giorgianni, for appellant. Argued: Paul Giorgianni.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Darin K. Ireland, appeals the December 8, 2015

judgment of the Franklin County Court of Common Pleas convicting him, pursuant to a

jury verdict, and imposing sentence. For the following reasons, we reverse the judgment

of the trial court.

I. History

A. Factual History

{¶ 2} On October 19, 2013, appellant, his wife, Pam Ireland, his friend, Tyler

Thrash, and Tyler Thrash's girlfriend, were at Cappy's Bar in Blacklick, Ohio for a

fundraiser for a military combat veteran's organization. Between 7 and 8 p.m. on the

same night, Drew Coen and his brother, Cris Coen, also arrived at Cappy's Bar.

A-6

No. 15AP-1134 2

{¶ 3} According to Thrash, around midnight, a very intoxicated man grabbed

Pam's buttocks as he exited the bar. Thrash followed the man, later identified as Drew,

out of the bar, placed him in a headlock, and forced him to the ground. Thrash told Drew:

"Don't touch my brother's girl's ass ever again." (Thrash Depo. at 2:12:30.)1 After he

forced Drew to the ground, Thrash was pulled away by appellant and others. Thrash

returned to the bar and resumed drinking. Shortly afterward, he heard a commotion

outside. When he exited the bar, he saw appellant hitting someone in the parking lot.

Seconds after observing appellant hitting the person "one to two times," Thrash and his

girlfriend left the bar. (Thrash Depo. at 2:17:30.) Thrash testified that he and appellant

had been drinking prior to this incident.

{¶ 4} Louis Capodanno, the owner of Cappy's Bar at the time of the incident,

testified that he observed appellant's actions before Thrash attacked Drew. According to

Capodanno, immediately before the incident, appellant was "his normal self" and was not

intoxicated. (Tr. Vol. III at 261.) When Capodanno witnessed Thrash assaulting Drew, he

and appellant tried to pull Thrash away from Drew. Capodanno then heard Thrash say to

Drew, "You wanna touch one of our women?" Appellant then asked Drew, "Whose

woman did you touch? You touched my woman?" (Tr. Vol. III at 262.) Capodanno then

moved to assist Drew. While Capodanno was moving Drew away from the building into

the parting lot, appellant said, "You wanna touch one of our women?" and began hitting

Drew. (Tr. Vol. III at 266.) Capodanno tried to shield Drew with his own body and

received kicks and punches from appellant.

{¶ 5} Theresa Luginbuhl, a manager at Cappy's Bar, testified that she observed

appellant assault Drew in the parking lot outside the bar. Luginbuhl ran back inside the

bar to call 911. When she came back outside after calling 911, she witnessed appellant

striking Drew:

[Luginbuhl]: I came out and I had called the cops and I came out and I saw [Capodanno] was on top of Drew Coen, and [appellant] was punching [Capodanno]. * * *

1 We note that Thrash's testimony was taken before a magistrate prior to trial. A video recording of his testimony was played to the jury at trial. Although this recording was not transcribed in the record, we note the location of the testimony in question by reference to a time-stamp present in the recording.

A-7

No. 15AP-1134 3

I saw [Capodanno] on top of [Drew], and I saw someone try to pull [appellant] off, but [appellant] wouldn't -- [appellant] wouldn't stop. * * * [Appellant] was still punching and probably still would have been stomping. * * * [Assistant Prosecutor]: So Drew -- Drew is on the ground; [Capodanno] is on top of him protecting him. What was [appellant] doing? [Luginbuhl]: Punching, punching, trying to get to Drew but punching [Capodanno]. I mean, he didn't care. He was just punching. He didn't care what was in his way, who it was. He didn't care. He would have punched anyone.

(Tr. Vol. III at 237-38, 241.)

{¶ 6} Adam Joseph McMillen testified that he witnessed Thrash assault Drew.

According to McMillen, he, Capodanno, and appellant pulled Thrash away from Drew.

After they pulled Thrash away from Drew, Thrash ran across the parking lot, and punched

Drew in the face. McMillen then heard Pam screaming and saw appellant standing over

Drew punching and kicking him. McMillen testified that appellant appeared very angry

and "had this tunnel vision, like when you get in a fight." (Tr. Vol. II at 188.) McMillen

witnessed appellant fall and then he stopped assaulting Drew. According to McMillen, "it

was just like he was just kind of stumbling around, out of it." (Tr. Vol. II at 167.)

McMillen then helped place appellant in Pam's car.

{¶ 7} According to Cris Coen, around 1 a.m., he and his brother exited the bar

together when he was summoned back inside to sign a receipt by Luginbuhl. He signed

the receipt and then went to the restroom. Shortly afterward, he was informed that his

brother had been injured. Cris testified that, at first, he did not recognize Drew because of

the severity of his injuries and the amount of blood covering his face and clothing. After

recognizing his brother, Cris ran into the bar to grab towels which he then used to apply

pressure to the injuries to Drew's face.

{¶ 8} Drew testified that he drank "quite a bit" of alcohol at the bar and was

"pretty intoxicated that night." (Tr. Vol. II at 101; 80.) He recalled leaving the bar with

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No. 15AP-1134 4

Cris who was then summoned back inside the bar to sign a receipt. Drew testified that his

next memory was waking up in OhioHealth Grant Medical Center in Columbus, Ohio.

For some days following his arrival at the hospital, Drew suffered from memory loss and

was unable to recall anything between his exiting the bar and waking up at the hospital.

However, after some time, Drew testified that some of his memory of the night returned

and he now recalls someone approaching him from behind and choking him.

{¶ 9} Drew received treatment for severe injuries to his face and head in addition

to pain in his knee. Dr. Mark Douglas Wells, a physician at OhioHealth Grant Medical

Center, testified that when Drew arrived at the hospital, he was alert and suffering from a

variety of injuries including swelling around his eyes, a broken nose, and a broken upper

jaw. At the hospital, it was determined that Drew had a blood alcohol content of .3. Drew

underwent three surgeries to repair the damage to his face and head. As a result of the

incident, Drew suffered from chronic pain, scarring, permanent physical injuries, and

psychological injuries.

{¶ 10} At trial, the defense called James P. Reardon, Ph.D., a psychologist, as its

sole witness. Following the incident, Dr. Reardon performed a psychological examination

of appellant. Dr. Reardon testified that it was his opinion within a reasonable degree of

psychological certainty that appellant was experiencing a dissociative episode when he

attacked Drew. According to Dr. Reardon, appellant's dissociative episode was a

manifestation of post-traumatic stress disorder ("PTSD"), from which appellant suffered

as a result of his experience in the Persian Gulf War in 1991. Dr. Reardon testified that as

a result of appellant's combat experience, he had "a significant capacity for dissociation."

(Tr. Vol. III at 346.) Dr. Reardon offered the following explanation for dissociative

episodes:

[Appellant's Counsel]: And when a person experiences what you call a "dissociative episode," if that happens, do they have a conscious awareness of what's going on around them? [Dr. Reardon]: No. I mean, a dissociative episode, by definition, is an alteration in consciousness, memory, and the ability to make kind of rational decisions. I mean, the whole point of dissociating is if you can't escape -- it's been described as dissociation is an escape when there's no escape * * * when you can't physically remove yourself. * * *

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No. 15AP-1134 5

[Appellant's Counsel]: Are you saying then that's a conscious decision to escape to this dissociative place? [Dr. Reardon]: No. I mean, by definition, it is not a volitional experience. It's not something you do; it's something you experience. [W]hen they disassociate [sic], when they are in a flashback, it's a disorientation for right here, right now because they feel like they're right there, right then. * * * And their reactions are automatic reactions that kind of kept them alive.

(Tr. Vol. III at 357-58; 360.) Under cross-examination, Dr. Reardon explained whether

someone who is experiencing a dissociative episode is acting voluntarily or involuntarily:

[Assistant Prosecutor]: [I]n this incident, [appellant] reported having no memory of the contact? [Dr. Reardon]: It's an alteration of consciousness. And then when a dissociative episode occurs, people don't consciously -- they're not consciously present at that moment. * * * [Assistant Prosecutor]: [I]f someone's disassociated [sic], you're saying this action is involuntary; right? They have no control over it? [Dr. Reardon]: It's not a manifestation of conscious thought or awareness. [Assistant Prosecutor]: Okay. Meaning they can't control it? [Dr. Reardon]: They don't control it. * * * [A]nd they can't because it's not a product of their consciousness and decision making.

(Tr. Vol. III at 381, 387.)

{¶ 11} For purposes of rebuttal, plaintiff-appellee, State of Ohio, offered the

testimony of Dennis Eshbaugh, Ph.D., a clinical and forensic psychologist. Dr. Eshbaugh

stated that, based on his review of appellant's records, including Dr. Reardon's report, it

was his opinion within a reasonable degree of psychological and scientific certainty that

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No. 15AP-1134 6

"the evidence argued against PTSD and argued in favor of substance abuse having

anything related to the instant charge." (Tr. Vol. IV at 515.) Dr. Eshbaugh stated that he

did not interview appellant and therefore could not diagnose him.

B. Procedural History

{¶ 12} On January 22, 2014, a Franklin County Grand Jury filed an indictment

charging appellant with a single count of felonious assault, in violation of R.C. 2903.11, a

felony of the second degree. On October 26, 2015, the matter proceeded to trial. At trial,

appellant requested an instruction on the defense of "blackout" as contained in The Ohio

Jury Instruction Manual ("The OJI"). The OJI provides the following instruction on

blackout:

1. DEFINED. Where a person commits an act while unconscious as in a (coma) (blackout) (convulsion) due to (heart failure) (disease) (sleep) (injury), such act is not a criminal offense even though it would be a crime if such act were the product of a person's (will) (volition).

2. CONCLUSION. If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony (all elements of the crime charged) (any lesser included offense) [that the act was (purposely) (knowingly) committed].

Ohio Jury Instructions, CR Section 417.07 (2016).

{¶ 13} The state objected to the inclusion of the instruction. Additionally, the state

argued that the defense of "blackout" was an affirmative defense for which appellant bore

the burden of proof. Appellant repeatedly objected to the characterization of "blackout"

as an affirmative defense. After hearing arguments, the trial court concluded that it would

instruct the jury on blackout, and found that blackout was an affirmative defense. The

court then issued the following instruction:

The defendant is asserting an affirmative defense known as blackout. The burden of going forward with the evidence of blackout and the burden of proving an affirmative defense is upon the defendant. He must establish such a defense by a preponderance of the evidence. Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it

A-11

No. 15AP-1134 7

outweighs or overbalances, in your minds, the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may or may not be identical with the greater number of witnesses. In determining whether or not an affirmative defense has been proved by a preponderance of the evidence, you should consider all the evidence bearing upon that affirmative defense regardless of who produced it. If the weight of the evidence is equally balanced or if you are unable to determine which side of an affirmative defense has the preponderance of evidence, then the defendant has not established such affirmative defense. If the defendant fails to establish the defense of blackout, the State still must prove to you beyond a reasonable doubt all the elements of the crime charged. Where a person commits an act while, as in a coma, blackout, or convulsion due to heart failure, disease, sleep, or injury, such act is not a criminal offense even though it would be a crime if such act were the product of a person's will or volition. If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the State of its burden of establishing by the required weight of the testimony that the act was knowingly committed. This instruction would not apply to one who recklessly or negligently became intoxicated. Reflexes, convulsions, body movements during uncon-sciousness or sleep and body movements that are not otherwise a product of the act's will or volition are involuntary acts. Intoxication is not an excuse for an offense.

(Tr. Vol. V at 646-48.)

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No. 15AP-1134 8

{¶ 14} On October 30, 2015, the jury returned a verdict of guilty on the count

charged in the indictment. On December 7, 2015, the trial court held a sentencing

hearing. At the hearing, the court sentenced appellant to a six-year term of incarceration

and a three-year mandatory period of post-release control. On December 8, 2015, the

trial court filed a judgment entry reflecting appellant's conviction and sentence.

II. Assignments of Error

{¶ 15} Appellant appeals and assigns the following five assignments of error for

our review:

[I.] The court instructed the jury that Mr. Ireland had the burden of proving his defense, thereby depriving Mr. Ireland of his constitutional right to a jury trial under the "beyond a reasonable doubt" standard of proof. [II.] Prosecutorial misconduct during closing argument violated Mr. Ireland's due-process right to a fair trial. [III.] The cumulative effect of errors violated Mr. Ireland's due-process right to a fair trial. [IV.] The judge misstated OJI 417.07 by omitting the word "unconscious." [V.] The judge failed to give a curative instruction when the State's psychology expert purported to tell the jury "what the law requires."

III. Discussion

A. First Assignment of Error—Burden of Proof

{¶ 16} In his first assignment of error, appellant asserts the trial court erred by

instructing the jury that blackout was an affirmative defense and, therefore, appellant

bore the burden of proving the defense of blackout by a preponderance of the evidence.

Appellant contends that by failing to properly instruct on the state's burden to prove all

essential elements of the crime beyond a reasonable doubt, the trial court committed

structural error. Importantly, we note that the state does not contest on appeal whether it

was proper for the trial court to offer the instruction on blackout. Instead, the state

argues only that the trial court properly instructed that appellant bore the burden of

proving the defense of blackout as an affirmative defense.

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No. 15AP-1134 9

1. Standard of Review

{¶ 17} Crim.R. 52 affords appellate courts limited power to correct errors that

occurred during criminal proceedings in the trial court. Crim.R. 52 provides:

(A) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. (B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Thus, Crim.R. 52(B) distinguishes between errors to which a defendant objected at trial

and errors that a defendant failed to raise at trial. State v. Perry, 101 Ohio St.3d 118,

2004-Ohio-297, ¶ 14. If the defendant failed to raise an error affecting substantial rights

at trial, an appellate court reviews the error under the plain error standard in Crim.R.

52(B). Under that rule, the defendant bears the burden of demonstrating that a plain

error affected his substantial rights. See id., citing United States v. Olano, 507 U.S. 725,

734 (1993). "Even if the defendant satisfies this burden, an appellate court has discretion

to disregard the error and should correct it only to ' "prevent a manifest miscarriage of

justice." ' " Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting State v.

Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

{¶ 18} However, if the defendant has objected to an error in the trial court, an

appellate court employs a more lenient standard of review, namely the "harmless error"

standard in Crim.R. 52(A). Perry at ¶ 15, citing United States v. Curbelo, 343 F.3d 273,

286 (4th Cir.2003). Under Crim.R. 52(A), the state bears the burden of demonstrating

that the error, if any, did not affect the substantial rights of the defendant. Olano at 741;

State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 136 ("Once [the defendant] objected

to the [error], the burden shifted to the state to demonstrate an absence of prejudice.").

"This burden-shifting device 'is dictated by a subtle but important difference in language

between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the

error "does not affect substantial rights," (emphasis added), Rule 52(b) authorizes no

remedy unless the error does "affect substantial rights." ' " Perry at ¶ 15, quoting Olano at

734-35. Unlike under Crim.R. 52(A), an appellate court must reverse the defendant's

conviction if the state fails to satisfy its burden under Crim.R. 52(B). Id., citing Olano at

735-36.

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No. 15AP-1134 10

{¶ 19} Here, appellant objected to the trial court's characterization of the blackout

defense as an affirmative defense. Therefore, we would ordinarily review the purported

error under the harmless error standard provided in Crim.R. 52(A). Appellant, however,

contends that due to the nature of this purported error, we should review for "structural

error." (Appellant's Brief at 91-92.)

{¶ 20} The United States Supreme Court has recognized that " 'most constitutional

errors can be harmless.' " Neder v. United States, 527 U.S. 1, 8 (1999), quoting Arizona v.

Fulminante, 499 U.S. 279, 306 (1991). Indeed, "if the defendant had counsel and was

tried by an impartial adjudicator, there is a strong presumption that any other errors that

may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570,

579 (1986). However, certain constitutional errors, termed "structural errors," have been

recognized to "defy analysis by 'harmless error' standards." Fulminante at 309.

Structural errors are defined as constitutional defects that " 'affect[] the framework within

which the trial proceeds, rather than simply [being] an error in the trial process itself.' "

State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, ¶ 9, quoting Fulminante at 310.

Structural errors permeate "the entire conduct of the trial from beginning to end,"

rendering the trial court unable to " 'reliably serve its function as a vehicle for

determination of guilt or innocence.' " Fulminante at 309-10, quoting Rose at 577-78. As

a result of the severity of their impact on the proceedings, structural errors "require

automatic reversal (i.e., 'affect substantial rights') without regard to their effect on the

outcome." Neder at 7; see also Perry at ¶ 17.

{¶ 21} "Consistent with the presumption that errors are not 'structural,' the United

States Supreme Court 'has found an error to be "structural," and thus subject to automatic

reversal, only in a "very limited class of cases." Johnson v. United States, 520 U.S. 461,

468 * * * (1997) (citing Gideon v. Wainwright, 372 U.S. 335 * * * (1963) (complete denial

of counsel); Tumey v. Ohio, 273 U.S. 510 * * * (1927) (biased trial judge); Vasquez v.

Hillery, 474 U.S. 254 * * * (1986) (racial discrimination in selection of grand jury);

McKaskle v. Wiggins, 465 U.S. 168 * * * (1984) (denial of self-representation at trial);

Waller v. Georgia, 467 U.S. 39 * * * (1984) (denial of public trial); Sullivan v. Louisiana,

508 U.S. 275 * * * (1993) (defective reasonable-doubt instruction).' " Perry at ¶ 18,

quoting Neder at 8.

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No. 15AP-1134 11

{¶ 22} The United States Supreme Court has recognized "[w]hat the factfinder

must determine to return a verdict of guilty is prescribed by the Due Process Clause."

Sullivan at 277. Specifically, "the Due Process Clause requires the prosecution to prove

beyond a reasonable doubt all of the elements included in the definition of the offense of

which the defendant is charged." Patterson v. New York, 432 U.S. 197, 210 (1977). See In

re Winship, 397 U.S. 358, 364 (1970) (holding that "the Due Process Clause protects the

accused against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged"). Furthermore, the "beyond a

reasonable doubt" standard applies in both state as well as federal proceedings. Sullivan

at 278, citing Winship.

{¶ 23} In Sullivan, the United States Supreme Court found that "the Fifth

Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment

requirement of a jury verdict are interrelated." Id. at 278. The United States Supreme

Court stated that "[i]t would not satisfy the Sixth Amendment to have a jury determine

that the defendant is probably guilty, and then leave it up to the judge to determine (as

Winship requires) whether he is guilty beyond a reasonable doubt." (Emphasis sic.) Id.

Therefore, "the jury verdict required by the Sixth Amendment is a jury verdict of guilty

beyond a reasonable doubt." Id. Finally, in considering whether to apply the harmless

error or structural error standard of review, the United States Supreme Court found that

"[d]enial of the right to a jury verdict of guilt beyond a reasonable doubt * * * with

consequences that are necessarily unquantifiable and indeterminate, unquestionably

qualifies as 'structural error.' " Id. at 281-82.

{¶ 24} Here, appellant asserts the trial court failed to properly instruct the jury

regarding the reasonable doubt standard. We agree and, consistent with Sullivan, review

for structural error.

2. Applicable Law

{¶ 25} Generally, criminal offenses contain two elements: the "actus reus," or

"guilty act," and "mens rea," or "guilty mind." State v. Johnson, 128 Ohio St.3d 107,

2010-Ohio-6301, ¶ 8 ("Generally, an offense will be defined in terms of a prohibited act

accompanied by a culpable mental state, the 'mens rea' or guilty mind."); State v.

Hackedorn, 5th Dist. No. 2004-COA-053, 2005-Ohio-1475, ¶ 35 ("An essential element of

every crime is the defendant's actus reus, or criminal act."). See Joshua Dressler,

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No. 15AP-1134 12

Understanding Criminal Law, Sections 9.01 and 10.01 (7th Ed.2015). R.C. 2901.21

codifies these basic requirements for criminal liability, providing in pertinent part:

(A) [A] person is not guilty of an offense unless both of the following apply: (1) The person's liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing; (2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense.

"Thus, every criminal offense is made up of (1) a voluntary act or failure to act when there

is a duty and (2) a culpable mental state for each element that specifies a mental state."

Johnson at ¶ 16.

{¶ 26} Furthermore, Ohio has codified the burden of proof in all criminal

proceedings. R.C. 2901.05. See State v. Jenkins, 15 Ohio St.3d 164, 210 (1984).

R.C. 2901.05(A) provides:

Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Thus, R.C. 2901.05 contains two different burdens of proof. First, with regard to all of the

essential elements of the offense, the burden of proof remains on the state. This remains

true where the defendant presents evidence tending to disprove an essential element of

the case.2 Second, the defendant bears the burden of proof by a preponderance of the

2 We note some examples of defenses where the burden of proof remains on the state include alibi and accident or mistake of fact. State v. Childs, 14 Ohio St.2d 56, 64 (1968) (stating that "the general rule, followed in this jurisdiction, that the burden of proof remains with the state even with respect to alibi evidence"); State v. Wilson, 2d Dist. No. 24577, 2012-Ohio-3098, ¶ 115, citing State v. Goetz, 1st Dist. No. C-970503 (Oct. 23, 1998); State v. Shaw, 10th Dist. No. 98AP-1338 (Sept. 23, 1999); State v. Poole, 33 Ohio St.2d 18, 20-21 (1973) ("[I]t has long been established that accident is not an affirmative defense in this state. * * * Accident is generally embraced in a charge dealing with the elements of the offense and the burden imposed upon the state to establish the existence of those elements); State v. Snowden, 7 Ohio App.3d 358, 363 (10th Dist.1982) ("When defendant, due to a mistake of fact, does not have the specific mens rea required by the statute, the maxim ignorantia facti excusat applies. * * * Mistake of fact can, in an appropriate circumstance, negate either 'knowingly' or 'purposely.' "); State v. Cooper, 10th Dist. No. 09AP-511, 2009-Ohio-6275, ¶ 9.

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No. 15AP-1134 13

evidence for affirmative defenses. An affirmative defense is defined as either "[a] defense

expressly designated as affirmative," or "[a] defense involving an excuse or justification

peculiarly within the knowledge of the accused, on which the accused can fairly be

required to adduce supporting evidence." R.C. 2901.05(D)(1)(a) and (b). Thus, where the

defendant does not seek to negate an element of the charged offense, the defendant bears

the burden of demonstrating an excuse or justification in order to defeat criminal

liability.3

{¶ 27} The statutory authority cited for the defense at issue in the present matter,

i.e., unconsciousness or blackout4 can be found in R.C. 2901.21(E)(2), which provides:

"Reflexes, convulsions, body movements during unconsciousness or sleep, and body

movements that are not otherwise a product of the actor's volition, are involuntary acts."

See Hackedorn at ¶ 39, citing former R.C. 2901.21(C)(2).

{¶ 28} Here, blackout is not expressly designated by statute as an affirmative

defense. Therefore, we must determine whether blackout relates to an essential element

of the crime or is "[a] defense involving an excuse or justification peculiarly within the

knowledge of the accused, on which the accused can fairly be required to adduce

supporting evidence." R.C. 2901.05(D)(1)(b).

{¶ 29} Legal scholars have recognized that the issue of whether a voluntary act is

an element of a crime is an issue of considerable debate. See Joshua Dressler,

Understanding Criminal Law, Sections 9.02 and 10.01 (7th Ed.2015) ("There is serious

dispute regarding whether 'involuntariness'—claims of seizure, acts during

unconsciousness, and the like—should be characterized as a 'defense.' "); Farrell and 3 By way of example, we note that the affirmative defense of self-defense, where established, provides a justification for an act that would otherwise be considered criminal conduct. See State v. Martin, 21 Ohio St.3d 91, 94 (1986) ("[T]he burden of proving self-defense by a preponderance of the evidence does not require the defendant to prove his innocence by disproving an element of the offense with which he is charged. * * * Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged."); State v. Edgerson, 8th Dist. No. 101283, 2015-Ohio-593, ¶ 17 (noting that "self-defense is unlike other defenses in that it is more than a denial or contradiction of the prosecution's evidence of the essential elements of the charged crime"). Similarly, insanity has been recognized as an affirmative defense. State v. Filiaggi, 86 Ohio St.3d 230, 242 (1999), citing State v. Brown, 5 Ohio St.3d 133 (1983) ("A plea of not guilty by reason of insanity is an affirmative defense that must be proven by a preponderance of the evidence."). 4 This defense is also referred to as "automatism." See Melissa Hamilton, Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder, 16 Berkeley J. Crim. L. 340, 352 ("Automatistic actions are generally accepted as a category of involuntary act for purposes of abrogating criminal culpability."); Black's Law Dictionary 160 (10th Ed.2014) ("Automatism may be asserted as a criminal defense to negate the requisite mental state of voluntariness."); 2 Wayne R. LaFave, Substantive Criminal Law, Section 9.4(b) (2d Ed.2003).

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No. 15AP-1134 14

Marceau, Taking Voluntariness Seriously, 54 B.C. L. Rev. 1545, 1545-46 ("[T]he

'voluntary act requirement' is a foundational component of criminal law. Courts,

commentators, and theorists overwhelmingly assert that criminal law contains an act

requirement. This surface consensus, however, belies the underlying reality of deep

disagreement about the meaning, scope, and application of the act requirement in

criminal law."); 1 Wayne R. LaFave, Substantive Criminal Law, Section 6.1(c) (2d

Ed.2003).

{¶ 30} Indeed, courts have reached varying conclusions regarding this issue. See

State v. Hinkle, 200 W.Va. 280, 286 (1996) ("[W]e hold that unconsciousness (or

automatism) is not part of the insanity defense, but is a separate claim which may

eliminate the voluntariness of the criminal act. Moreover, the burden of proof on this

issue, once raised by the defense, remains on the State to prove that the act was voluntary

beyond a reasonable doubt."); State v. Deer, 175 Wash.2d 725, 741 (2012) ("While a

defendant must be allowed to argue that her actions were involuntary, thus excusing her

from criminal liability, we hold that it is the defendant's burden to prove this defense by a

preponderance of the evidence."); Polston v. State, 685 P.2d 1, 6 (Wyo.1984) (holding that

"the burden is upon the defendant who raises the defense of automatism to prove the

elements necessary to establish the defense; and the burden remains with the defendant

throughout the trial"); McClain v. State, 678 N.E.2d 104, 107-09 (Ind.1997), quoting

Baird v. State, 604 N.E.2d 1170, 1176 (Ind.1992) (" 'Once evidence in the record raises the

issue of voluntariness, the state must prove the defendant acted voluntarily beyond a

reasonable doubt.' * * * Automatism is simply a denial of one element—voluntary

action—that the Legislature has required for most crimes."); State v. Caddell, 287 N.C.

266, 290 (1975) (holding that "unconsciousness, or automatism, is a complete defense to

a criminal charge, separate and apart from the defense of insanity; that it is an affirmative

defense; and that the burden rests upon the defendant to establish this defense, unless it

arises out of the State's own evidence, to the satisfaction of the jury"); State v.

Weatherford, 416 N.W.2d 47, 55 (S.D.1987) (finding that "the burden of proof rests on the

State to prove the defendant was conscious at the time he committed the act, or acts,

constituting the offense charged" and that the defendant had only the burden of

producing evidence that would raise a reasonable doubt in the mind of the jury); State v.

Mishne, 427 A.2d 450, 458 (Me.1981) ("The burden is on the state to prove that the

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No. 15AP-1134 15

defendant was not acting in an unconscious, involuntary way."); People v. Babbitt, 45

Cal.3d 660, 693-94 (1988) (finding that "because consciousness is not an element of the

offense of murder (nor of any offense), * * * there is no constitutional impediment to the

state's use of a rebuttable presumption in meeting its assumed burden—once the issue has

been raised—to prove consciousness beyond a reasonable doubt").5

{¶ 31} In Ohio, courts have historically characterized the defense of blackout or

unconsciousness as an affirmative defense. State v. LaFreniere, 85 Ohio App.3d 840, 849

(11th Dist.1993), citing State v. Myers, 10th Dist. No. 6100 (July 14, 1959); State v.

Mobley, 5th Dist. No. 2010-CA-0018, 2011-Ohio-309, ¶ 43; State v. Hinton, 8th Dist. No.

99581, 2014-Ohio-490, ¶ 27; Hackedorn at ¶ 42; State v. Singleton, 11th Dist. No. 2002-

L-077, 2004-Ohio-1517, ¶ 36; and State v. Robinson, 2d Dist. No. 9547 (May 27, 1986).

{¶ 32} In Myers, the defendant was charged with "driving while under the

influence of intoxicating liquor" after he drove his car through an intersection without

stopping, resulting in a one-vehicle crash in which the passenger of his car was killed. Id.

The defendant claimed he had no memory of going through the intersection and that "he

must have gone to sleep." Id. On appeal, the state objected to the jury instruction on

blackout because it failed to account for circumstances in which the loss of consciousness

was induced by intoxication, and because it failed to place the burden on the defendant of

proving the defense of blackout by a preponderance of the evidence. The court relied on

Lehman v. Haynam, 164 Ohio St. 595 (1956), for the following proposition: "Where in an

action for injuries arising from a collision of automobiles the defense of the defendant

driver is that he was suddenly stricken by a period of unconsciousness, which rendered it

impossible for him to control the car he was driving and which he had no reason to

anticipate or foresee, the burden of proof as to such defense rests upon such driver." Id.

at paragraph three of the syllabus. Although it noted that "the Lehman case was a civil

5 Although not a state Supreme Court case, People v. Nelson, 2 N.E.3d 613, 619 (Ill.App.2013), appears to place the burden on the state to prove voluntary action with similar statutory language: "In addition to proving that the defendant performed the actus reus with the requisite mens rea, the State must also prove beyond a reasonable doubt that the defendant engaged in a voluntary act, for it is a 'fundamental principle that a person is not criminally responsible for an involuntary act.' People v. Grant, 71 Ill.2d 551, 558 (1978). Thus, the Criminal Code of 1961 provides that '[a] material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.' 720 ILCS 5/4-1 (West 2010)." See also Palmer v. State, 379 P.3d 981 (Alaska App.2016), quoting State v. Simpson, 53 P.3d 165, 169 (Alaska App.2002) (finding that "although rarely disputed, the performance of a voluntary act 'remains an implicit element of all crimes' for which the State bears the burden of proof beyond a reasonable doubt").

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No. 15AP-1134 16

action for damages," the court found that "in a criminal proceeding, the burden is upon

the defendant to prove [that he was unconscious as] an affirmative defense." Myers.

{¶ 33} In Robinson, the court recognized the holding of Myers for the proposition

that blackout was an affirmative defense. Further, the court stated that "the defense of

blackout is very similar to the defense of insanity which also has been recognized as an

affirmative defense since it is based on an excuse which is 'peculiarly within the

knowledge of the accused' for which he can be fairly required to produce evidence." Id.

Therefore, the court found that the defendant had the burden of proving blackout as an

affirmative defense by a preponderance of the evidence pursuant to R.C. 2901.05(A).

{¶ 34} In LaFreniere, the court relied on Myers and Robinson to conclude that

blackout was an affirmative defense. The court found that where the record contained

"some credible, competent evidence supporting a finding of blackout * * * an instruction

on the affirmative defense of blackout had to be given." Id. at 850, citing State v. Payne,

104 Ohio App. 410 (10th Dist.1957).

3. Analysis

{¶ 35} We begin our analysis by examining whether voluntariness is a requirement

for establishing criminal liability. As previously stated, R.C. 2901.21(A) contains the basic

requirements for criminal liability, providing in pertinent part that a "person is not guilty

of an offense" unless that person commits "conduct that includes * * * a voluntary act."6

{¶ 36} In construing R.C. 2901.21(A), we must consider the General Assembly's

intent when including the term "voluntary" in the statutory requirements for criminal

liability. "The primary goal of statutory construction is to give effect to the intent of the

legislature." State v. Wilson, 77 Ohio St.3d 334, 336 (1997), citing Carter v. Youngstown,

146 Ohio St. 203 (1946), paragraph one of the syllabus. "It is a basic tenet of statutory

construction that 'the General Assembly is not presumed to do a vain or useless thing, and

that when language is inserted in a statute it is inserted to accomplish some definite

purpose.' " Id., quoting State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio St. 476,

479 (1959). Furthermore, "[a] court should give effect to the words actually employed in a

statute, and should not delete words used, or insert words not used, in the guise of

interpreting the statute." State v. Taniguchi, 74 Ohio St.3d 154, 156 (1995), citing State v.

6 While we note that R.C. 2901.21(A)(1) also provides that "an omission" can satisfy the requirement of conduct sufficient to establish criminal liability, we limit our discussion to acts, as omissions are not relevant to our resolution of the instant matter.

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No. 15AP-1134 17

Waddell, 71 Ohio St.3d 630, 631 (1995). See State ex rel. Savarese v. Buckeye Local

School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996), citing State ex rel. Herman v.

Klopfleisch, 72 Ohio St.3d 581, 584 (1995) ("If the meaning of the statute is unambiguous

and definite, it must be applied as written and no further interpretation is necessary.").

Following from these principles of statutory construction and consistent with the plain

language of R.C. 2901.21(A), we find the General Assembly intended to require that an act

be "voluntary" in order to establish criminal liability.

{¶ 37} Because, pursuant to R.C. 2901.21(A), criminal liability cannot be

established without proof of conduct including a voluntary act, and we have found that

the General Assembly intended to include the requirement that the act be voluntary, we

conclude that voluntariness is an essential element of a criminal offense. See Wilson at

336, citing MacDonald v. Bernard, 1 Ohio St.3d 85, 89 (1982) ("In reviewing a statute, a

court cannot pick out one sentence and disassociate it from the context, but must look to

the four corners of the enactment to determine the intent of the enacting body."). Indeed,

it has been recognized by some Ohio courts that actus reus is "[a]n essential element of

every crime." Mobley at ¶ 36. See also Hackedorn at ¶ 35; State v. Cloud, 7th Dist. No.

98 CO 51, 2001-Ohio-3396; State v. Brown, 12th Dist. No. CA2008-12-049, 2009-Ohio-

3933, ¶ 15, fn. 1.

{¶ 38} Thus, because a voluntary act is an essential element of the offense, the state

constitutionally bears the burden of proving such element beyond a reasonable doubt.

R.C. 2901.05(A); Patterson at 210 (finding "the Due Process Clause requires the

prosecution to prove beyond a reasonable doubt all of the elements included in the

definition of the offense of which the defendant is charged"); Winship at 364 (holding that

"the Due Process Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged"). Some Ohio courts, including the Supreme Court of Ohio and this court, have

stated that the burden rests with the state to prove that the accused engaged in a

voluntary act. State v. Nucklos, 121 Ohio St.3d 332, 2009-Ohio-792, ¶ 6 ("In a criminal

case, the state must prove that the accused engaged in a voluntary act * * * with the

requisite degree of culpability for each element of the alleged offense in order to obtain a

conviction. The state has the burden of establishing all material elements of a crime by

proof beyond a reasonable doubt.") (Internal citations and quotations omitted.); State v.

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No. 15AP-1134 18

Ferguson, 10th Dist. No. 07AP-999, 2008-Ohio-6677, ¶ 73, citing State v. Squires, 108

Ohio App.3d 716, 718 (2d Dist.1996) (finding that where an accused is charged with a

strict liability crime, thus negating the mens rea requirement, "the prosecution need only

prove that the offender engaged in a voluntary act or omission"). See State v. Swiger, 9th

Dist. No. 26556, 2013-Ohio-3519, ¶ 17, quoting State v. Colon, 9th Dist. No. 91CA005003

(Mar. 25, 1992) ("The 'fundamental requirement' of the defendant having committed a

voluntary act or omission 'is entirely separate and distinct from the element of

"culpability" which must also be established for all non-strict liability crimes.' ").

{¶ 39} Therefore, having found that the state constitutionally bears the burden of

proving beyond a reasonable doubt that the defendant engaged in a voluntary act, we

cannot agree that the defendant must prove by a preponderance of the evidence that his

or her actions were involuntary. Our review of Myers, Robinson, and LaFreniere does

not compel a different conclusion. First, it is relevant that Myers was decided prior to the

enactment in 1974 of R.C. 2901.21(A), which codified the requirements for actus reus and

mens rea in order to establish criminal liability. Second, we find the reliance of Myers on

Lehman to be unpersuasive, because Lehman was a civil action. Third, unlike in Myers,

this case involves a claim of involuntariness arising from a PTSD-induced blackout,

whereas Myers involved a claim of involuntariness arising from a voluntary action to

drink alcohol ("defendant * * * engaged in drinking beer from early evening until after

midnight"). Id. at 218. As a result, we cannot find that Myers is controlling over our

analysis of the instant matter. Similarly, we find Robinson and LaFreniere to be

unpersuasive because both cases rely on Myers in support of their holding, and do not

support with analysis of R.C. 2901.21(A) the conclusion that blackout is an affirmative

defense.

{¶ 40} Furthermore, we find that blackout resulting from PTSD is not "an excuse

or justification peculiarly within the knowledge of the accused, on which the accused can

fairly be required to adduce supporting evidence." R.C. 2901.05(D)(1)(b). First, we find

that the issue of voluntariness is not an excuse or justification. By disputing the

voluntariness of his or her actions, the defendant is not admitting the elements of the

crime but, nonetheless, seeking to escape the imposition of criminal liability. Instead, the

defendant is disputing that the state met its burden of proof on an essential element of the

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No. 15AP-1134 19

offense, i.e., the voluntary act. Therefore, the defense of blackout is not in the nature of an

excuse or justification.

{¶ 41} Second, a defense challenging voluntariness does not involve evidence

peculiarly within the knowledge of the accused. In most cases, the voluntariness of the

defendant's actions is not an issue, as the presentation of evidence sufficient to prove the

other elements of the crime is also sufficient to demonstrate that the defendant acted

voluntarily. Thus, much like the defenses of alibi and mistake of fact, the defendant

would necessarily have the burden of producing evidence sufficient to create a reasonable

doubt as to the voluntariness of the defendant's actions. In response, the state is free to

present its own evidence, including testimony from an expert witness, to carry its burden

of proof that the defendant was acting voluntarily. Indeed, in the instant matter, the state

subjected appellant's expert witness to cross-examination and presented testimony from

its own expert witness relevant to the issue of the voluntariness of appellant's actions.

Thus, we find that the defense of blackout does not involve evidence peculiarly within the

knowledge of the accused.

{¶ 42} Here, the trial court instructed the jury that appellant bore the burden of

establishing the defense of blackout, i.e. that appellant acted involuntarily, by a

preponderance of the evidence as an affirmative defense. Because we have found that the

state bears the burden of proving beyond a reasonable doubt that the defendant

committed a voluntary act, we find that the trial court committed structural error.

Sullivan at 281-82. Appellant's first assignment of error is sustained. As a result, we

reverse appellant's conviction and remand this matter for further proceedings. Finally,

we note that our holding in this case is limited to claims of involuntariness resulting from

PTSD-induced blackout. See R.C. 2901.21(E)(2); OJI CR Section 417.07 (2016). Our

holding does not implicate cases involving the voluntary intoxication of the defendant. See

R.C. 2901.21(D).7

7 We note that the defense of voluntary intoxication is governed by R.C. 2901.21(D), which provides: "Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. Voluntary intoxication does not relieve a person of a duty to act if failure to act constitutes a criminal offense. Evidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged."

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No. 15AP-1134 20

B. Second, Third, Fourth, and Fifth Assignments of Error

{¶ 43} In his second assignment of error, appellant asserts the prosecutor

committed misconduct during closing argument, violating appellant's due process right to

a fair trial. In his third assignment of error, appellant asserts the cumulative effect of

errors violated his due process right to a fair trial. In his fourth assignment of error,

appellant asserts the trial court erred by omitting the word "unconscious" in the jury

instructions. In his fifth assignment of error, appellant asserts the trial court erred by

failing to give a curative instruction. Having sustained appellant's first assignment of

error, appellant's remaining four assignments of error are rendered moot.

IV. Conclusion

{¶ 44} Having sustained appellant's first assignment of error and rendered moot

appellant's remaining four assignments of error, we reverse the judgment of the Franklin

County Court of Common Pleas and remand this matter for further proceedings

consistent with law and this decision.

Judgment reversed and cause remanded.

BRUNNER, J., concurs. LUPER SCHUSTER, J., dissents.

A-25

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonabledoubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden ofgoing forward with the evidence of an affirmative defense, and the burden of proof, by apreponderance of the evidence, for an affirmative defense, is upon the accused.

(B)

(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense ordefense of another when using defensive force that is intended or likely to cause death or great bodilyharm to another if the person against whom the defensive force is used is in the process of unlawfullyand without privilege to do so entering, or has unlawfully and without privilege to do so entered, theresidence or vehicle occupied by the person using the defensive force.

(2)

(a) The presumption set forth in division (B)(1) of this section does not apply if the person againstwhom the defensive force is used has a right to be in, or is a lawful resident of, the residence orvehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who usesthe defensive force uses it while in a residence or vehicle and the person is unlawfully, and withoutprivilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may berebutted by a preponderance of the evidence.

(C) As part of its charge to the jury in a criminal case, the court shall read the definitions of"reasonable doubt" and "proof beyond a reasonable doubt," contained in division (D) of this section.

(D) As used in this section:

(1) An "affirmative defense" is either of the following:

(a) A defense expressly designated as affirmative;

(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, onwhich the accused can fairly be required to adduce supporting evidence.

(2) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designedto be occupied by people lodging in the building or conveyance at night, regardless of whether thebuilding or conveyance is temporary or permanent or is mobile or immobile. As used in this division, abuilding or conveyance includes, but is not limited to, an attached porch, and a building or conveyancewith a roof over it includes, but is not limited to, a tent.

(3) "Residence" means a dwelling in which a person resides either temporarily or permanently or isvisiting as a guest.

(4) "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transportpeople or property.

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(E) "Reasonable doubt" is present when the jurors, after they have carefully considered and comparedall the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based onreason and common sense. Reasonable doubt is not mere possible doubt, because everything relatingto human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proofbeyond a reasonable doubt" is proof of such character that an ordinary person would be willing to relyand act upon it in the most important of the person's own affairs.

Effective Date: 11-01-1978; 2008 SB184 09-09-2008 .

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