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 [email protected] COUNSEL FOR DEFENDANT-APPELLEE
and MICHAEL P. WALTON 0087265 (Counsel of Record) Assistant Prosecuting Attorney [email protected] 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
13
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
14
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.
15
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.
16
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 [email protected]
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: [email protected]
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~~
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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
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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
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[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
A-19
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.
A-21
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.
Page 1 of 2Lawriter - ORC - 2901.05 Burden of proof - reasonable doubt - self-defense.
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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 .
Page 2 of 2Lawriter - ORC - 2901.05 Burden of proof - reasonable doubt - self-defense.
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