Petition for Writ of Certiorari — Coyne v. Ohio

Office - Supreme Court, U.S.

838-1975 FILED

Bs excita m a

L. STEVAS,

CLERK

In The ;

Supreme Court of the United States

October Term, 1983

°

JOHN E. COYNE,

Petitioner,

vs.

THE STATE OF OHIO,

Respondent.

PETITION FOR A WRiT OF CERTIORARI TO THE

COURT OF APPEALS, TWELFTH APPELLATE

DISTRICT, CLERMONT COUNTY, OHIO

Awnprew B. DENNISON

200 Main Street

Batavia, Ohio, 45103

(513) 732-6800

Attorney for Petitioner

COCKLE LAW BRIE PRINTING CO., (800) 835-7427 Ext. 333

Ot ag OE,

1

QUESTIONS PRESENTED FOR REVIEW

I.

Whether the conduct of a prosecuting attorney con-

stitutes misconduct denying the petitioner his right to fair

trial repugnant to the Fifth, Sixth and Fourteenth Amend-

ments of the Constitution of the United States, where, in

closing argument before a jury, comment is made on the

petitioner’s exercise of his Fifth and Sixth Amendment

rights and comment on matters which were not evidence

in the case and which was designed to prejudice petitioner.

Il.

Whether the felonious assault crime in the state of

Ohio, which requires the mental culpability state of “know-

ingly,” defined, in pertinent part, as “regardless of pur-

b

pose,” and as instructed by the trial court to the jury,

mandates that the jury disregard petitioner’s “purpose”

in his defense of self-defense, which shifts from the prose-

cution its burden of proof beyond a reasonable doubt of

criminal intent and impesed upon the petitioner the bur-

den to prove his self-defense beyond a reasonable doubt,

or at a minimum by a preponderance of evidence, as to his

“purpose” of defending himself, as being repugnant to

due process of law vested by the Fifth and Fourteenth

Amendments of the Constitution of the United States.

IIT.

Whether the verdicts of the jury were inconsistent in

the acquittal of petitioner for the state crime of murder

but in finding petitioner guilty of two counts of the state

crime of felonious assault, as a lesser included offense of

il

attempted murder, and were repugnant to the Due Process

Clause of the Fourteenth Amendment of the Constitution

of the United States, where the evidence established that

petitioner, a property owner, guarding his business prop-

erty at night, was confronted by three thieves on his

property in the dark and, to stop the advance of the three

intruders toward petitioner, he discharged a firearm to-

ward the intruders in which one is killed and the other two

receive injury from debris and not gunshot, and the self-

defense justification for killing one thief is transferred to

the two thieves sustaining injury, as a transferred inno-

cent intent, requiring acquittal following the verdict as to

the murder charge.

a

ili

PARTIES TO THE PROCEEDINGS BEFORE THE

COURT OF APPEALS, TWELFTH APPELLATE

DISTRICT, CLERMONT COUNTY, OHIO

The caption of the case in this court contains the

names of all parties.

TABLE OF CONTENTS

Pages

Questions Presented For Review

Parties to the Proceedings Before the Court of Ap-

peal, Twelfth Appellate District, Clermont County,

GEE -siaadiratepeaiapniosssisicinsnpustcbnanibnttinaicnsalans Z

RR ee eae

BERET RE Fe Se en kT Xe

Constitutional and Statutory Provisions Involved ..

We I a escieeusinmasieeliuiaiiaben

Reasons For Granting The Writ

INI Schccderstarithacalchaiey nies cstiesishasieaniocsiclovirdlgsaibomssinestionetedunsinacomanet

RR AN RAR A Ns I SA Da eT

TABLE OF AUTHORITIES

CasEs:

Berger v. United States, 295 U.S. 78 (1935) ...............

Cole v. Arkansas, 333 U.S. 196 (1948) 0

Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558 (1982) .....

Erwin v. State, 29 Ohio St. 186 (1876)

Escobedo v. Illinois, 378 U.S. 478 (1964)

Gregory v. City of Chicago, 394 U.S. 111 (1969)

Griffin v. California, 380 U.S. 609 (1965) 200. .

In Re Winship, 397 U.S. 358 (1970) 00. snkgnaonaes

Isaac v. Engle, 646 F.2d 1129 (6th Cir., 1980) 00.

Marts v. State, 26 Ohio St. 162 (1875)

Miranda v. Arizona, 384 U.S. 436 (1966) 00.

Mullaney v. Wilbur, 421 U.S. 684 (1975) 0... iaeicue

ill

TABLE OF AUTHORITIES—Cortinued

Pages

State v. Agner, 30 Ohio App.2d 96, 283 N.E.2d 443

PUTTITIIID. ‘ctashaceisetllenictinsalagiibandi-ousiiacusteteaiassolechaceseiieanaualmeamieidinaseasiiiele 16

State v. Clifton, 32 Ohio App.2d 284, 290 N.E.2d

ES. UNTIIN wchasdosiapcteaateeeeniiteentacdaabiaeingsbclinasiniciatnbnaateanenaed 20, 23

State v. Hill, 52 Ohio App.2d 393, 370 N.E.2d 775

SEMEN DD scicesincienheccnchaaneieheicsvetihccbiaS nighebaan 16

State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d

Ie I cictcsscciesethseniclerisinlnncictahibelaisndeitaitalbaeadailitesliadindiibeabsioite 19

State v. Muskin, 158 Ohio St. 276, 109 N.E.2d 15

ITI « iasechelesdscaai dass biiasspaitdenslecaphedialcesisabassoioasasdiadlgniniahciealiniiaanatan 16

State v. Poole, 33 Ohio St.2d 18, 294 N.E.2d 888

CIT | caulaciceanshdashdianain animasinblnpaaiseeaanaaammanaNaalaaes 19

State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d

PANE PIED sch: kere ceiestelnpliandane lig ialtneadanmnaniaaienmniaititl 19

State v. Stephens, 24 Ohio St.2d 72, 263 N.E.2d

Oe IEE icici aechinssnheiniidicinininlaelininnipeacakateiadlingaaanenaiies 16, 17

State v. Thayer, 124 Ohio St. 1, 176 N.E.2d 656

ESIIIED - snsaiiestnsiesdactenebdeighdietedisdeeniaiiaiscgaicaiaiioeaaaaaiisiaidaamaaian 17

United States v. Brinson, 411 F.2d 1057 (6th Cir.,

TEE: sinicesssnccsaninaneite ON re Mare NE Nn BIH TN TE 16

United States v. Nolan, 416 F.2d 588 (10th Cir.,

SUI winsdivnsnialersesnensesediciitpnitaciecaanpaeedisndiaaianiaainaaals 16

CONSTITUTIONAL PROVISIONS:

Fifth Amendment of the Constitution of the United

ID ciciticccntedetedaiasmmsabaemaomnaeaiiae 3, 12, 14, 17, 18

Sixth Amendment of the Constitution of the United

States . ss saiiatabcchacaciutsciesnucis sien claciideapaetiaceaNe me merle ane 3, 12, 14

Fourteenth Amendment of the Constitution of the

United States — 3, 13, 14, 13, 18, 21,

vi

TABLE OF AU'THORITIES—Continued

STATUTES:

Section 2901.05, Revised Code of Ohi nn.

Section 2901.21, Revised Code of Ohio ..... |

Section 2901.22, Revised Code of Ohio ...................... ;

Section 2903.02, Revised Code of Ohio .....................

Section 2903.11, Revised Code of Ohio ....................

28 U.S.C. Section 1257(3)

ES

°

In The

Supreme Court of the United States

October Term, 1983

JOHN E. COYNE,

Petitioner,

vs.

THE STATE OF OHIO,

Respondent.

?

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS, TWELFTH APPELLATE

DISTRICT, CLERMONT COUNTY, .HIO

sy.

“

OPINIONS BELOW

The orders of the Supreme Court of Ohio overruling

petitioner’s motion to certify the record and dismissing

petitioner’s appeal as of right are unreported and set

forth herein as Appendices A and B, respectively. The

1

to

opinion of the Court of Appeals, Twelfth Appellate Dis-

trict, Clermont County, Ohio, affirming the conviction of

petitioner is unreported and set forth herein as Appendix

C. The Judgment Entry on Jury Verdict; the Entry De-

nying Motions; and the Entry Sentencing Defendant of

the Court of Common Pleas, Clermont County, Ohio, are

unreported and set forth herein as Appendices D, E and

F, respectively.

JURISDICTION

The Court of Appeals, Twelfth Appellate District,

Clermont County, Ohio, affirmed the judgments and sen-

tence of the Court of Common Pleas, Clermont County,

Ohio, on September 30, 1983. The Supreme Court of Ohio

refused to accept petitioner's appeal and dismissed the

motion for leave to appeal and the appeal as of right on

April 4, 1984.

The jurisdiction of this Court is founded upon the

presence of federal questions governed by the Constitu-

tion of the United States as a continuity of state appellate

review to provide procedural and substantive due process

safeguards within the state of Ohio’s criminal justice sys-

tem. The issues raised for review range from prosecutor-

ial misconduct, in jury comment within the spectrum from

statements not contained within the evidence to comment

upon petitioner’s right to remain silent and to confer with

counsel, to burden shift upon such fundamental concepts

of criminal intent under state law clashing with the his-

torical right of self-defense and inconsistency of verdicts

3

implicating the transfer of innocent intent. Each issue

complements the other to establish a clear demarcation

from essential due process of law concepts protected by

the Constitution.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257(3) and Part V of the Rules of this

Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth, Sixth and pertinent provisions of the Four-

teenth Amendments of the Constitution of the United

States are set forth in Appendix G. Sections 2901.05,

2901.21, 2901.22, 2903.02, 2903.11 and 2923.02, Revised

Code of Ohio, are set forth in Appendix H.

sy

Vv

STATEMENT OF THE CASE

Petitioner John E. Coyne is the owner and operator

of a scrap metal and salvage business situated on Twelve

Mile Road in Clermont County, Ohio. The business prem-

ises consist of 56 acres, fenced, lighted and with a small

office housing tools, portable radios and other equipment.

The premises contain large machinery, scrap, crushed ve-

hicles, discarded vehicles and various metals.

Over a period of years petitioner had experienced sev-

eral thefts. He had employed night watchmen to appre-

hend thieves and experimented with lighting the premises

at night without success in deterring inventory and equip-

ment loss. On only one occasion were the police successful

in apprehending the thief and recovering the stolen prop-

erty.

Approximately two months before August 28, 1981 peti-

tioner commenced guarding his property at night to pro-

tect against thefts. On August 28, 1981 he was asleep in

a closed truck. He kept with him a Heckler and Kock .308

caliber semi-automatic rifle and a Mauser .380 caliber pis-

tol. The rifle was equipped with a 20-cartridge magazine

and the handgun with a seven-round clip.

Philip Osborne, age 18, deceased, Leslie Oberschlake,

age 16, and Anthony Dodson, age 16, around 6:30 to 7:00

p.m. visited a friend until approximately midnight on Au-

gust 27, 1981. While at the friend’s house the trio drank

Little Kings Ale and smoked marijuana. After leaving

the friend’s home the three elected to go to petitioner’s

business premises to steal a tire and wheel. Enroute they

smoked more marijuana.

The three arrived at petitioner’s business and Os-

borne backed his automobile into a lane paralleling the

front fence of the business premises and parked the ear.

The three crawled under the east gate of petitioner’s fence

and in four or five trips gathered radiators and batteries

and placed them at the gate. They crawled under the gate

and carried the items to the vehicle placing the batteries

in the trunk and the radiators in the back seat.

The night was dark, misting rain, foggy and neither

natural nor artificia! light was present.

nL ORL EEA et

Petitioner was awakened by what he thought was the

sound of a footstep on gravel and he heard muffled voices.

He was sleeping in white long underwear and being con-

cerned that he would be detected by what he assumed to

be intruders, he dressed as quickly and as quietly as pos-

sible. He took with him from the truck the rifle, hand-

gun and a flashlight. Petitioner proceeded to his office,

inspected the door and lock, found them to be intact, and

carefully, fearing detection, illuminated the flashlight

briefly into the office to satisfy himself that his tools and

equipment had not been stolen.

Petitioner proceeded east toward the area where he

thought he heard noises. As he proceeded eastward the

trio had reentered the premises and were walking in a

southwesterly direction. The time was approximately

12:30 a.m.

At a substantial distance from the gate there was an

area containing an air compressor, cable and several bar-

rels filled with debris. As the three came into the air com-

pressor-barrel area the petitioner was approximately 10

to 20 feet south and slightly west of them. He saw one

individual in the lead, followed by two others. He fired a

warning shot from the rifle over their heads, followed im-

mediately by the command to stop. The three continued

forward and petitioner immediately directed rifle fire to-

ward them to halt the advance. At that point petitioner

lost sight of two of the three and did not see the two

again until he discovered them later at the Weiner resi-

dence, two houses east of his property. Osborne, the lead

individual, continued to advance toward petitioner. Peti-

tioner continued to fire the rifle until he had exhausted its

magazine. (At an undetermined point Osborne sustained

a rifle wound to his upper right arm.) Osborne advanced

a distance of approximately 40 feet south from the initial

contact into the premises and toward petitioner. At that

point and from a distance greater than eight feet peti-

tioner fired one round from the handgun which fatally

struck Osborne. Within approximately four minutes Os-

borne died. There were no powder burns present on the

body.

Petitioner then commenced searching for the remain-

ing two individuals. He first searched around the bar-

rel area where he had last seen them and proceeded from

his property where he observed the parked vehicle. He

cautiously approached the car and observed blood on the

vehicle, concluding that the two individuals were wounded

and no longer a threat to him. He returned to his office

and telephoned the Sheriff’s dispatcher reporting an at-

tempted breaking and entering. The time recorded by the

dispatcher was 12:56 a.m. He then telephoned his at-

torney and requested his presence.

Petitioner commenced searching again for the other

two individuals. He heard knocking and approaching

the Weiner residence observed Dodson and Oberschlake

on the front porch. He noted that they were wounded,

advised them to stop pounding and that help had been

summoned. He returned to his office, met his attorney

and telephoned the Sheriff’s dispatcher requesting a life

squad. The time recorded for the second call was 1:06

am. At approximately 1:08 a.m. the first police officer

arrived at the scene.

At 2:30 a.m. a police officer, in the presence of coun-

sel, obtained a recorded statement from the petitioner.

He stated the foregoing events and further stated that

in the dark he was unable to discern if the three indi-

viduals had weapons. He stated that he first observed

them walking between barrels near the air compressor

and that it was then, and thereafter, difficult to distin-

guish forms in the dark. At the approximate location

of a fan blade petitioner fired a warning shot, ordered

them to stop and, as they advanced, directed fire toward

them. At that point he stated that he lost sight of two

while the third continued to advance and he continued

to direct fire to stop the advance until he had exhausted

the 20-round magazine.

Petitioner stated that he was approximately 10 to 20

feet from the group when he first discharged the rifle.

He stated that the second shot came moments after the

first. He stated that he was not taking account of time

or distance, that adrenaline was pumping through his

body and that he was in fear for his life with three as-

sailants coming toward him on his property and in the

dark. He was concerned about the three being armed

and he being outnumbered. Upon discharging the weapon

the three dispersed, he couldn’t locate two of them and he

feared retaliation from the two of whom he had lost vis-

ual contact.

On September 1, 1981 petitioner was again ques-

tioned by the police in the presence of counsel. He re-

lated again the foregoing events. In response to ques-

tions he stated that distances continued to vary, that

he and the others were in motion, he and they may have

stopped at points in time, he lost visual contact at times,

he may have retreated, but he didn’t know. He didn’t

think that he remained in one position and felt that his

position must have changed because he was attempting

to prevent any retalition by the two of whom he had lost

visual contact. Both recorded statements by petitioner

were introduced into evidence and presented to the jury.

Dodson and Oberschlake testified that while they

were in the barrel area that the ground exploded—one

stated that a barrel was blown into two parts: there

was no evidence of any explosions or barrels damaged,

except for bullet holes—and that they did not see or hear

anyone. Each stated that when the “explosions” com-

menced they fell to the ground and then ran from the

property, waited for a period of time at the automobile

for Osborne and then proceeded to the residences seek-

ing help. They heard no command to stop, but each

admitted that following the first discharge from the rifle

that their ears were ringing and they could not hear.

Neither Dodson nor Oberschlake sustained a gunshot

wound; each was wounded from debris mainly in the

front of their bodies. There was no evidence as to the

location where they sustained injury. Dodson and Ober-

schlake were hospitalized, respectively, 16 and 8 days.

Each was adjudicated delinquent in a juvenile proceed-

ing for theft.

The physical evidence revealed two patterns, of

ten spent casings approximately 34 feet apart. Spent

casings from the rifle ejected forward and to the right

at a 45-degree angle for a distance of approximately 12

to 19 feet. The first group of casings was near the bar-

rel area, consistent with petitioner’s statement that when

he first discharged the rifle they were in the barrel area

and he was approximately 10 to 20 feet from them:

plae ag petitioner in the area of the fan blade. The sec-

rere

ond group of casings was 32 feet south and slightly west

of the first group and a short distance from where the

spent Mauser casing was found. This was consistent

with the consumption of the rifle magazine, the continu-

ing approach of Osborne, rifle fire directed toward the

advancing Osborne; and Dodson and Oberschlake at all

time being in that path of fire, and the fatal handgun

shot.

Human blood was found in the barrel area, in the

location where the fatal shot was fired, from the barrel

area to the east gate, on Twelve Mile Road and on the

vehicle.

From the east gate to the area of the fatal shot, the

deepest point into the property concerning the events,

the terrain is a severe incline. Ali builet holes in the

barrel area were three feet and less from the ground,

one bullet hole being found in the fan blade on the

ground. The remaining bullet holes, at the greater dis-

tance and at a severe descent from the area, and in the

direction of fire, were found in a rear fender of a junked

automobile near the gate, one bullet hole in the gatepost

and two in the gate.

It was determined by police test that the rifle was

eapable of firing 20 rounds in 13 seconds. The prosecu-

tion’s firearms expert stated that the weapon was ex-

tremely accurate, has a velocity of twenty-seven hundreds

feet per second with the ability to penetrate and pass

through metal as ‘‘a terrific amount of penetration.”

Petitioner requested the trial court to grant a judg-

ment of acquittal at the close of the state’s case on the

basis that the prosecution’s evidence had failed to estab-

10

lish a prima facie case of murder and attempted murder

and had, to the contrary, established, as a matter of law,

petitioner’s self-defense. The trial court denied petition-

er’s motion.

Petitioner offered two photographs into evidence, did

not testify, offered no further evidence and rested his case.

In final argument to the jury, the prosecutor stated

that Osborne went into petitioner’s property wearing eye

glasses (there were no eye glasses on the corpse and

police recovered the eye glasses from the driver’s side

on the dash of the automobile), that Osborne’s eyesight

was comparable to the prosecutor’s and that he, the

prosecutor, would not have gone onto the property in the

dark without his glasses. He misstated evidence and

opined as to what would be general conduct of lighting

an area to deter thefts. He continued, stating that peti-

tioner was not present to protect his property but to

lure, hunt and punish a thief. The prosecutor misstated

that petitioner was required to prove that he was not the

aggressor and that he did not provoke the confrontation

with full knowledge that the trial court was going to in-

struct the jury that petitioner was not at fault in creat-

ing the situation.

The prosecutor told the jury that the petitioner

waited 25 minutes before he called the police, failed to

advise that he had killed an individual, and stated that

petitioner was acting out a fantasy. Continuing, he stated

that the petitioner waited 25 minutes deciding what to

do with the body, commenting that the petitioner did not

tell the police that the body was there because he was

thinking of removing the body, otherwise he would have

reported it. The jury was advised that petitioner didn’t

11

report the body in the first call to the police or in the

second eall, and that his third and fourth statements to the

police were made in the presence of, and after consultation

with, counsel, followed by: “[we] don’t know. They don’t

answer many questions.’’ He concluded by stating that if

the jury found the petitioner not guilty they should elect

him sheriff.

Petitioner moved the trial court for a mistrial on the

basis of prosecutorial misconduct. The trial judge denied

the motion without admonishment to the jury.

At the appropriate point in the court’s instruction

to the jury petitioner objected to the instruction that

petitioner must establish self-defense by a preponder-

ance of evidence and that the burden of proof shift was

a denial of due process. The trial court declined to cor-

rect the instruction.

The jury returned verdicts of not guilty as to the

murder and attempted murder counts, but found petition-

er guilty of felonious assault.

Following receipt of the verdicts, petitioner timely

moved the trial court, in the alternative, for judgment of

acquittal and for a new trial. The grounds for the mo-

tions were that self-defense was the basis for the mur-

der acquittal finding an innocent mens rea which must

be transferred to Dodson’s and Oberschlake’s injuries,

rendering the verdicts inconsistent; that the regardless-

of-purpose provision in the criminal intent aspect of fe-

lonious assault denied to petitioner due process of law

vested by the Fourteenth Amendment as a burden shift

from the state to the petitioner on his plea of self-de-

fense; and the misconduct of the prosecutor in closing

de

a ie |

12

argument, including petitioner’s right to remain silent

and to consult with counsel commentary, together with

other comment, was designed to prejudice petitioner and

deny to him his constitutional right of fair trial. The

trial court denied petitioner’s motions.

Petitioner was sentenced to not less than three nor

more than fifteen years in the Ohio State Penitentiary

on each count, sentences to be consecutive.

From the judgments and sentence of the trial court,

petitioner pursued his appeal before the state appellate

court. Petitioner again raised the issue that the trial

court’s denial of petitioner’s motion for mistrial and

motions for acquittal and new trial based upon prosecu-

torial misconduct denied to petitioner rights vested to

him by the Fifth, Sixth and Fourteenth Amendments of

the Constitution of the United States as a denial of fair

trial, inciuding impermissible comment on _petitioner’s

right to remain silent and to consult with counsel. He

further raised the issue of the trial court’s erroneous

instruction to the jury imposing upon petitioner the bur-

den of establishing self-defense by a preponderance ot

evidence and that the criminal intent aspect of felonious

assault, instructing the jury to disregard the purpose for

petitioner’s conduct, shifted the burden of proof from

the state to petitioner, as timely raised by petitioner

at trial and by motion which denied to petitioner due

process of law vested to him by the Fifth and Fourteenth

Amendments of the Constitution of the United States.

The final issue raised and pursued here was the denial

of due process in petitioner’s conviction for felonious

assault as being inconsistent with the verdict of acquit-

tal for murder where the innocent criminal intent of selt-

13

defense on the murder charge was transferred, and must

be applied, to the felonious assault charge.

The foregoing issues were presented to the Supreme

Court of Ohio; however, that court declined to accept

jurisdiction of the appeal.

°

REASONS FOR GRANTING THE WRIT

Petitioner seeks a review by this Court to safeguard

petitioner’s right to fair trial within due process con-

cepts within the state court criminal justice system to im-

pose restraints upon the prosecutorial misconduct here

by establishing constitutional guidelines for the conduct

of prosecutors in state criminal prosecutions.

Petitioner further seeks pronouncement by this Court

of the constitutional standard of due process applicable

in the circumstances of this case involving Ohio’s feloni-

ous assault statute’s application of a criminal culpability

standard directing a jury to disregard the petitioner’s

purpose, in which such purpose is central to and the es-

sence of his self-defense conduct thereby transferring

the burden of proof imposed upon the state to the peti-

tioner who must then overcome the disability of the irre-

concilable conflict between the mens rea element of the

felonious assault crime and the defense of self-defense.

Thirdly, petitioner seeks review of his denial of fun-

damental due process in a state court criminal proceed-

ing in the inconsistent verdicts of acquittal of murder

and guilt of felonious assauit in which the self-defense

14

which is recognized as to the murder charge is disre-

garded in consideration of the offense of felonious assault

in which that assault is the same conduct of defending

one’s self and for which the innocent mens rea must of

necessity be transferred from one to the other offense.

ARGUMENT

I.

Whether the conduct of a Prosecuting Attorney

constitutes misconduct denying the Petitioner his

right to fair trial repugnant to the Fifth, Sixth

and Fourteenth Amendments of the Constitution

of the United States, where, in closing argument

before a jury, comment is made on the Petition-

er’s exercise of his Fifth and Sixth Amendment

rights and comment on matters which were not

evidence in the case and which was designed to

prejudice Petitioner.

The comments of the prosecutor presented to the

jury during closing arguments were not isolated but were

a stream of innuendo, statements unsupported by evi-

dence, testimony by the prosecutor and improper com-

ment on the petitioner’s exercise of constitutional priv-

ileges. The statements of the prosecutor were calculated

to invite the jury to conclude that the crime scene had

been altered during a 25-minute period, based upon the

prosecutor’s superior knowledge to that of the jury, and,

thus, he sought the jury’s conclusion that the petitioner

was manufacturing his plea of self-defense. Those com-

15

ments reached all phases of the jury’s consideration of

the petitioner’s conduct, thus reaching the issue of the

felonious assault crime.

The prosecutor’s argument to the jury was designed

to deprive petitioner of his right of fair trial contained

within the Due Process Clause of the Fourteenth Amend-

ment of the Constitution of the United States. This

Court set the standard in Berger v. United States, 295

U.S. 78, 88 (1935), holding that where a prosecutor in-

vites the jury to conclude some matter pretended to be

within the knowledge of the prosecutor, which is inher-

ently unfair, the rule of law clearly present is that such

conduct is an improper method calculated to produce a

wrongful conviction based upon the jurors’ confidence

that the prosecutor will discharge his obligations faith-

fully. Such improper suggestions and assertions of per-

sonal knowledge carry much weight against the accused

when they properly should carry none. Unfortunately,

the state appellate court while tacitly finding error preju-

dicial to the petitioner vainly attempted to bifureate the

case into compartments pertaining to the crime of mur-

der and to the crimes of felonious assault without regard

to the fundamental! principle that the prejudice to the

petitioner is so highly probable that its non-existence

cannot be assumed, and where the conduct is pronounced

and persistent, with a probable cumulative effect upon

the jury, it cannot be disregarded as inconsequential and

the accused has been stripped of his constitutional right

to due process of law. Berger v. United States, supra, 89.

The prosecutor’s comments suggesting what the peti-

tioner should have said to the Sheriff’s dispatcher are of

similar import to a prosecutor’s statement: “Why didn’t

16

the accused tell the police that the prescription was good”

found to be constitutionally impermissible by the Supreme

Court of Ohio. State v. Stephens, 24 Ohio St. 2d 76, 263

N.E.2d 773, 774 (1970). Of like effect is United States v.

Brinson, 411 F.2d 1057 (6th Cir., 1969), holding that cross-

examination of a defendant was plain error affecting a sub-

stantial constitutional right where the prosecutor posed

questions as to whether the accused had discussed his as-

serted defense with any prosecuting agent or law enforce-

ment officer; and United States v. Nolan, 416 F.2d 588

(10th Cir., 1969), holding that a prosecutor’s closing argu-

ment to a jury was plain error where he commented on

the accused’s failure to make exculpatory statements to

police when arrested.

The prosecutor’s comments concerning giving the peti-

tioner a medal for being a lousy shot and if they acquitted

him he should be elected sheriff had been previously de-

termined to constitute a constitutional denial of fair trial

by Ohio appellate courts in State v. Agner, 30 Ohio App.

2d 96, 283 N.E.2d 443 (1972); State v. Muskin, 158 Ohio

St. 276, 109 N.E.2d 15 (1952); and State v. Hill, 52 Ohio

App.2d 393, 370 N.E.2¢ 775 (1977).

The Court of Appeals in the instant case erroneously

applied Ohio’s contemporaneous objection rule, in part,

in disregard for the application of the plain error rule.

Prosecutorial comment on petitioner’s exercise of consti-

tutional privilege is indistinguishable from comments re-

quiring the application of the plain error rule in United

States v. Nolan, supra; United States v. Brinson, supra;

and as applied by the Ohio Supreme Court in State v. Hill,

supra; and in which it was the duty of the trial court to

17

interpose and admonish counsel, State v. Thayer, 124 Ohio

1, 176 N.E.2d 656 (1931), for which neither objection nor

curative instruction could effectively erase the impact

from the jury’s mind, State v. Stevens, supra.

Statements by the prosecutor that the petitioner didn't

report the body in his telephone calls to the police

and in petitioner’s statements to the police after

consultation with counsel didn’t answer many ques-

tions, were comments made where this petitioner

did not testify at his trial. Those comments were

governed, as to Fifth Amendment privilege denial,

by Griffin v. California, 380 U.S. 609 (1965), and as to

Sixth Amendment right denial by Escobedo v. Iilinots, 378

U.S. 478 (1964), coupled with the clear admonition of

Miranda v. Arizona, 384 U.S. 436 (1966). While the tele-

phone calls to police and statements made to police offi-

cers became evidence, they nonetheless did not permit com-

ment on what was not said and did not constitute a waiver

of Fifth Amendment privilege where the petitioner elected

not to testify at trial. The prosecutor’s comments vio-

lated petitioner’s constitutional privilege and his right to

a fair trial.

Petitioner was entitled as a matter of due process of

law to a fair trial free from the comments present in this

record. A conviction permitted to stand based upon such

conduct is constitutionally impermissible.

II.

Whether the felonious assault crime in the State

of Ohio, which requires the mental culpability

state of “knowingly,” defined, in pertinent part,

as “regardless of purpose,” and as instructed by

18

the trial court to the jury, mandates that the jury

disregard Petitioner’s “purpose” in his defense of

self-defense, which shifts from the prosecution its

burden of proof beyond a reasonable doubt of

criminal intent and imposed upon the Petitioner

the burden to prove his self-defense beyond a rea-

sonable doubt, or at a minimum by a preponder-

ance of evidence, as to his “purpose” of defending

himself, as being repugnant to due process of law

vested by the Fifth and Fourieenth Amendments

of the Constiiution of the United States.

Murder in the state of Ohio imposes the burden of

proof upon the state to prove the criminal intent element

of “purpose.” Section 2903.02, Revised Code of Ohio.

Felonious assault in Ohio, to the contrary, imposes the

criminal intent element of “knowingly” cause physical harm

to another by means of a deadly weapon. Section 2903.11,

Revised Code of Ohio.

Section 2901.22, Revised Code of Ohio, sets forth the

culpable mental states for each of the aforestated crimes

at paragraphs A and B, respectively, in which the intent

element of “purpose” does not contain the disability pres-

ent in the “knowingly” element. Mens rea is established

upon the finding that a person acts knowingly when he is

aware that his conduct will probably cause a certain re-

sult or will probably be of a certain nature, without re-

gard for the purpose of his conduct. Section 2901.22(B),

Revised Code of Ohio.

Self-defense is conduct of a significant purpose in a

homicide or assault criminal prosecution. An individual’s

right of self-defense is found early in the common law

19

and is a justification for the criminal act. See Erwin v.

State, 29 Ohio St. 186 (1876), at 194-99, for a discussion

of the subject in Ohio by early commentators.

The Ohio Supreme Court in State v. Robbins, 58 Ohio

St.2d 74, 388 N.E.2d 755 (1979) established the state of

Ohio’s law on the subject of self-defense. The elements

of the defense are that the petitioner was not at fault in

creating the situation necessitating defense (which the

trial court found as a matter of law); the petitioner be-

lieved he was in imminent danger of death or serious bod-

ily harm from which his only means of escape lay in the

use of force, although he may have been mistaken as to

the existence or imminence of danger; and the petitioner

did not violate any duty to retreat from or avoid the dan-

ger given the confrontation (in which no duty of retreat

was present where petitioner was on his property). State

v. Robbins, supra; State v. Me!chtor, 56 Ohio St.2d 15, 381

N.E.2d 195 (1978); Erw% v. Siute, supra; Marts v. State,

26 Ohio St. 162 (1875).

As stated by the state apneijate court, the plea of

self-defense is a justification for the admitted conduct in

which the accused claims exemption from liability where

the facts claimed by the prosecution are true. State v.

Poole, 33 Ohio St.2d 18, 294 N.E.2d 888, at 889 (1973).

The clash thus is presented between Ohio’s felonious

assault’s mens rea and the purpose for the conduct, de-

fense of one’s self, where the statute requires disregard

for that purpose. It is such a set of circumstances that

prompted the court in Jsaac v. Engle, 646 F.2d 1129, 1136

(6th Cir., 1980) to remark concerning Ohio’s law on ag-

gravated assault (possessing the same culpable mental

20

state as felonious assault) that the criminal intent of as-

sault and self-defense are completely irreconcilable, in

which the requirement posed upon the accused to establish

self-defense is to require him to disprove criminal intent.

This Court reversed the Sixth Circuit on the basis that

while the respondent there revealed a colorable constitu-

tional claim on the burden of proof issue, the matter was

barred because of failure to comply with Ohio’s procedure

for raising the contention. Engle v. Isaac, 456 U.S. 107,

102 S.Ct. 1558 (1982). As noted by this Court, Ohio only

punishes actions that are voluntary and unlawful. 102

S.Ct., at 1568. Citing State v. Clifton, 32 Ohio App.2d

284, 286-87, 290 N.E.2d 921, 923 (1972) this Court recog-

nized the state of Ohio’s law that one who kills in self-

defense does so without the mens rea that otherwise would

render the accused culpable of the homicide. 102 8.Ct.,

at 1568.

It is clear from this Court’s pronuncement in In Re

Winship, 397 U.S. 358, 364 (1970) that the prosecution

must prove beyond a reasonable doubt every fact necessary

to constitute the crime charge, i.e., each element of the

offense and essentially that the accused, in Ohio, not only

engaged in a voluntary act but did so with the requisite

degree of culpability for the specified mental state. Sec-

tion 2901.21, Revised Code of Ohio.

If the criminal culpability was set from the backdrop

of classic mens rea to do the act with a criminal mind the

issue would not be complex. Here, however, the culpable

mental state for Ohio’s crime of telonious assault clearly

sets out the voluntariness of the act on the basis of aware-

ness by the accused, but becomes constitutionally imper-

21

missible by requiring that the purpose for which the act

is performed must be disregarded where the central, es-

sential issue of self-defense is the purpose for doing the

act.

Ohio’s felonious assault statute is constitutionally in-

firm as applied to a self-defense case for the same reason

that this Court found the Maine rule requiring the accused

charged with murder to prove that he acted in the heat of

passion on sudden provocation in order to reduce the

charge to manslaughter where malice aforethought was an

essential element of murder under Maine law. Mullaney

v. Wilbur, 421 U.S. 684 (1975). Petitioner in order to

prove self-defense was required not only to establish his

plea by a preponderance of evidence but to go further and

to negate the criminal culpability mental state for feloni-

ous assault, a circumstance he can never establish where

Ohio disregards his purpose of self-defense by its position

that when he directs fire against assailants, albeit to pro-

tect himself, he is aware that his conduct will probably

result in injury to his assailants.

Once it was established that petitioner fired the rifle

and that two of the assailants sustained wounds from

debris the burden of proof shifted from the state to the

petitioner requiring him to overcome the deficit, which he

could not do where barred by the mandate to disregard his

purpose by the mental culpability state of §2903.11, Re-

vised Code of Ohio, and as defined by §2901.22(B), Re-

vised Code of Ohio. As such petitioner was denied due

process of law granted to him by the Fourteenth Amend-

ment of the Constitution of the United States.

bo

bo

Whether the verdicts of the jury were inconsistent

in the acquittal of Petitioner for the state crime of

murder but in finding Petitioner guilty of two

counts of the state crime of felonious assault, as a

lesser included offense of attempted murder, and

repugnant to the due process clause of the Four-

teenth Amendment of the Constitution of the Unit-

ed States, where the evidence established that Pe-

titioner, a property owner, guarding his business

property at night, was confronted by three thieves

on his property in the dark and, to stop the ad-

vance of the three intruders toward Peiitioner, he

discharged a firearm toward the intruders in

which one is killed and the other two receive in-

jury from debris and not gunshot, and the self-

defense justification for killing one thief is trans-

ferred to the two thieves sustaining injury, as a

transferred innocent intent, requiring acquittal

following the verdict as to the murder charge.

The rifle fire was directed toward the advancing

group to halt the advance. Initially petitioner lost sight

of Dodson and Oberschlake and continued to direct fire

toward the advancing Osborne. Dodson and Oberschlake

were in the path of that fire. They were injured by debris

resulting from rifle bullets striking and passing through

barrels filled with debris and from bullets striking the

ground and spraying debris.

The acquittal of petitioner for the murder of Osborne

is based upon petitioner’s self-defense which produces an

innocent intent in firing the rifle. The innocent intent

23

transfers and is legal justification for the wounding of

Dodson and Oberschlake.

In Ohio the governing legal rule of transferred intent

is “if A shoots at B, intending to kill B, but instead the

bullet strikes C, then A has committed a criminal act as to

C. In such instance, the ‘malice follows the blow’ and the

criminal intent of A to harm B is transferred to C.” State

v. Clifton, 32 Ohio App.2d 284, 290 N.E.2d 921, 923 (1972).

Where petitioner had no criminal intent with respect to

Osborne on the basis of self-defense as found by the jury,

the converse of the rule applies with equal force and no

criminal intent could exist to be transferred to Dodson and

Oberschlake, “the essential mens rea being impossible of

proof.” State v. Clifton, 290 N.E.2d, at 923. The absence

of mens rea as to Osborne is transferred to and becomes

an absent mens rea as to the felonious assault crimes.

The verdict of acquittal for murder is inconsistent

with the verdict of guilt for felonious assault where all

injury sustained for the felonious assault crimes was the

product of fire directed to Osborne.

The verdict of guilt present here on the inconsistency

of verdicts denies to this petitioner due process of law

granted to him by the Fourteenth Amendment of the Con-

stitution of the United States. It is as constitutionally re-

pugnant to convict an accused on a charge for which he

was never tried as upon a charge that was never made.

Cole v. Arkansas, 333 U.S. 196, 201 (1948); ef. Gregory

v. City of Chicago, 394 U.S. 111 (1969).

24

CONCLUSION

For the reasons set forth, certiorari should be granted.

Respectfully submitted,

AnprEwW B. DeNNISON

200 Main Street

Batavia, Ohio 45103

(5138) 732-6800

Attorney for Petitioner

App. 1

APPENDIX A

THE SUPREME COURT OF THE STATE OF OHIO

1984 TERM

No. 83-1702

THE STATE OF OHIO,

City of Columbus,

State of Ohio,

Appellee,

vs.

John E. Coyne,

Appellant.

MOTION FOR LEAVE TO APPEAL

FROM THE COURT OF APPEALS

for Clermont County

(Filed April 4, 1984)

It is ordered by the Court that this motion is over.

ruled.

COSTS:

Motion Fee, $20.00, paid by Andrew B. Dennison.

I, James Wm. Kelly, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the Court this ..

day of 19

Clerk

Deputy

App. 2

APPENDIX B

THE SUPREME COURT OF OHIO

1984 TERM

No. 83-1702

THE STATE OF OHIO,

City of Columbus,

State of Ohio,

Appellee,

vs.

John E. Coyne,

Appellant.

APPEAL FROM THE COURT OF APPEALS

for Clermont County

(Filed April 4, 1984)

This cause, here on appeal as of right from the Court

of Appeals for Clermont County, was considered in the

manner prescribed by law, and, no motion to dismiss such

appeal having been filed, the Court sua sponte dismisses

the appeal for the reason that no substantial constitutional

question exists herein.

It is further ordered that a copy of this entry be certi-

fied to the Clerk of the Court of Appeals for Clermont

County for entry.

I, James Wm. Kelly, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the Court this ..

TEE senietisnesincoanesendeecee Meant

Clerk

Deputy

App. 3

| APPENDIX ©

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY, OHIO

Case No. CA 1154

| STATE OF OHIO,

Plaintiff-Appellee,

Vs.

| JOHN E. COYNE,

| Defendant-A ppellant.

MEMORANDUM DECISION AND

JUDGMENT ENTRY

(Filed September 30, 1983)

George E. Pattison, Prosecuting Attorney, 462 Main

Street, Batavia, Ohio 45103, for Plaintiff-Appellee.

Andrew B. Dennison, 200 Main Street, Batavia, Ohio

45103, for Defendant-Appellant.

PER CURIAM

This cause came on to be heard upon the appeal, tran-

script of the docket, journal entries and original papers

from the Court of Common Pleas of Clermont County,

Ohio, transcript of proceedings, briefs and oral arguments

of counsel.

Now, therefore, the assignments of error having been

fully considered are passed upon in conformity with App.

R. 12(A) as follows:

Between 6:30 and 7:00 P.M. on the evening of August

27, 1981, Philip Osborne, age 18, drove to the home of an

older man identified only as ‘‘Walier.’’? Beside him on

App. 4

the front seat of his green 1971 Chrysler Newport were

Leslie Oberschlake and Anthony Dodson, both age 16.

The three had been working on Osborne’s car most of the

preceding afternoon and, after buying gasoline for the car

and making a few other stops, arrived at Walter’s mobile

home located in Nicholsville, Ohio. Osborne, Ober-

schlake, and Dodson remained at the mobile home until ap-

proximately midnight, watching television, smoking mari-

juana, and drinking Little Kings Ale with Walter and his

adult son.

When they left Walter and his son, the three boys

were, in the words of Dodson, ‘‘looking for something to

do.’’ It was too early to go home, especially as the night

was in part a celebration of Dodson’s and Osborne’s birth-

days. A collective decision was made to venture to appel-

lant John Coyne’s junkyard to steal some radiators, some

batteries and a spare tire for Osborne’s car. They each

had another bottle of ale and smoked more marijuana on

the way.

The Boot Hill Auto Graveyard, owned and operated

by appellant John Coyne, is located on sixty (60) acres of

land fronting on Twelve Mile Road in Clermont County,

Ohio. Osborne parked the Chrysler on a gravel lane

across the road from the east gate of the junkyard, facing

it toward the main road to facilitate escape. The doors

and trunk of the car were left open. It was a warm,

sticky, night without moon or stars. The gravel under-

foot was moist and pliable; it had been drizzling rain

most of the night and most of the previous day. Wisps

of fog were present in the area where the car was parked,

which was at the bottom of a slope rising toward the east

gate of Boot Hill. There were no lights on in the junk-

yard.

;

App. 5

Osborne led the way as the trio crossed Twelve Mile

Road and crawled under the east gate. Having worked

part-time for Coyne for about a week in the past, Osborne

was able to thread his way through the blackness and piles

of salvage to where the batteries and radiators were piled

near the office. Dodson and Oberschlake, who had never

been to Boot Hill before, followed. Working quickly, the

boys made three or four trips from the east gate to the

office area and back carrying batteries and radiators,

stacking them just outside the gate. The salvage parts

were then carried across the road and loaded into the

Chrysler: batteries in the trunk, radiators piled in the

back seat.

One final item remained to be stolen: the spare tire

for Osborne’s car. At approximately 12:30 A.M. on

August 28, 1981, the boys crossed Twelve Mile Road to

make a second trip into the junkyard. As before, Osborne

was in the lead, followed closely by Oberschlake and

Dodson. They were not carrying lights or weapons of

any kind.

Appellant John Coyne was no stranger to theft. His

business had been victimized by repeated thefts for years,

the last occurring two (2) months prior to August 28,

1981. Some of these incidents he had reported to the

police; others he had not. In almost all of the cases in

which the police had been called, the culprits had not been

apprehended. Coyne had tried illuminating the junkyard

at night, and tried hiring night watchmen, but the thievery

continued. It was almost as if he was being watched.

The incidents always seemed to occur when the appellant

had left for the day, despite his irregular hours. In fact,

Coyne suspected that certain persons living near Boot

App. 6

Hill were responsible due to their proximity to the junk-

yard and resultant ability to monitor his comings and

goings.

Driven by his admitted ‘‘paranoia” about thefts of

his business property, John Coyne had taken to returning

to Boot Hill after supper and sleeping there, hoping to

apprehend persons attempting to steal from him. His

bed consisted of a mattress placed in the back of a junked

‘‘Dolly Madison’’ truck located a short distance from his

office, where he kept valuable tools and radios. These

were the items Coyne was most concerned about losing.

The Dolly Madison truck also contained a number of guns

and ammunition, including a Heckler and Koch .308 caliber

semi-automatic rifle and a Mauser .380 caliber automatic

pistol. Appellant stated that he had been sleeping in the

back of the truck guarding his property every night since

the last theft had occurred.

In the early morning of August 28, John Coyne was

wakened by the sound of a foot on gravel. He thought

he heard muffled voices. A car door slammed in the

direction of the east gate of the junkyard. As quietly as

possible, appellant pulled himself from the Dolly Madison

truck and dressed. After placing the .380 caliber pistol

in his pocket, Coyne picked up a flashlight and the

Heckler and Koch semi-automatic rifle and cautiously

went to investigate. He was unsure of the position of the

person or persons who had awakened him, or the stage of

their activities. He couid have heard them as they were

either entering or leaving the salvage yard.

Appellant made his way to the office, where his valu-

able tools and equipment were kept, and shined his light

through the window. He checked the recently replaced

App. 7

lock on the door. Nothing appeared to be out of order.

Satisfied that his office was secure, sppellant shut off the

light lest he be rendered an easy target for whoever

might yet be in the junkyard. Coyne began to walk slowly

toward the east gate, where he heard the voices and the

ear door.

After walking an undetermined distance in the murky

blackness, appellant saw three figures coming toward him.

It was too dark to determine if they were armed, or even

if they were only three in number. Appellant states that

he fired a warning shot with the rifle over the heads of

the figures, and uttered words to the effect of ‘‘stop’’ or

‘hold it there.’ When the lead figure continued to ad-

vance, appellant lowered the rifle and began to fire with

the purpose of defending himself from impending attack.

Coyne fired nine more rounds from this position, wound-

ing the leader, Osborne, in the shoulder. Appellant then,

according to the evidence below, advanced some thirty-two

(32) feet, passing the wounded Osborne, and fired the

rifle ten more times in the direction of the east gate. Af-

ter firing the second burst which had exhausted the rifle,

appellant drew the Mouser (sic) pistol from his pocket and

circled backward through a maze of saivage. At this point

Coyne again came upon Osborne, who was continuing to

advance toward him. Appellant fired the Mouser (sic)

once, fatally wounding Osborne in the chest.

Dodson and Oberschlake testified that they had seen

no one and heard no warnings before the first series of

shots was fired. After initially diving for cover, both got

up and ran toward the east gate of the junkyard. Al-

though each received shrapnel wounds from the rifle fire,

neither had been directly hit by Coyne’s bullets. They

App. 8

met outside the gate and returned to Osborne’s car. After

waiting in the car for a period of time, they elected to

visit nearby houses in search of aid. The first house they

tried was vacant, but at the second their knock was an-

swered by a voice from an upstairs window. Sandy

Weiner saw the two injured persons lying on her front

porch and called the New Richmond Police Department.

Meanwhile, John Coyne was concerned about the other

two shadows he had seen in the junkyard. He slid under-

neath the fence at the east gate and discovered Osborne’s

ear, which featured the fresh blood of Oberschlake and

Dodson, as well as the stolen batteries and radiators.

Coyne cautiously slid back under the gate, unlocked his

office, and telephoned the Clermont County Sheriff’s

Department to report a breaking and entering. Appellant

also telephoned his attorney. It was approximately 12:50

A.M.

Coyne then returned to the area in which the shooting

took place and continued to search. He felt sure the other

two were still in the vicinity of the east gate. Appellant

then heard Dodson and Oberschlake pounding on Weiner’s

front door. Still carrying the rifle and the flashlight,

Coyne found the two wounded boys on the porch. He

flashed the light in their eyes and advised them not to

move on threat of death. After ascertaining that Dodson

and Oberschlake were no longer dangerous to him, appel-

lant returned to his office and telephoned the sheriff’s

office again to advise that there had been shootings and

to request a life squad. It was approximately 1:04 A.M.

As a result of his encounter with appellant, Anthony

Dodson received a compound fracture of his right ankle

and numerous small wounds to the back and front of his

Bie BPR RE Ba AE SE REED ELINA IEPA DONA IIE SE,

App. 9

torso and to his arms and legs. Metal fragments were

found in his left arm, his legs, his chest, and his back. He

spent sixteen (16) days in the hospital recovering from

the injuries above. Leslie Oberschlake received multiple

lacerations to his face and scalp, two wounds to his left

big toe, and a large laceration to his right knee. Metal

was found imbedded in his sealp. Oberschlake was hos-

pitalized for eight (8) days. Dodson and Oberschlake

were both found guilty of theft offenses in juvenile court.

Philip Osborne was pronounced dead on the scene, having

sustained two gunshot wounds, one in the upper right arm

and one in the chest.

On September 10, 1981, appellant John Coyne was

indicted by the Grand Judy of Clermont County, Ohio, on

one count of murder (count one) and two counts of at-

tempted murder (counts two and three). A trial by jury

was commenced on February 11, 1982, and completed on

February 23, 1982. On February 25, 1982, the jury an-

nounced its verdict, finding appellant not guilty of mur-

der and not guilty of attempted murder, but guilty of

felonious assault (R. C. 2903.11) as to counts two and

three. On April 12, 1982, appellant was sentenced to be

contined in the Ohio State Penitentiary for not less than

three (3) nor more than fifteen (15) years for each con-

viction, the sentences to be served consecutively. Execu-

tion of the sentencing order was stayed pending appellate

review.

Appellant presents the following four assignments of

error:

FIRST ASSIGNMENT OF ERROR:

The Trial Court erred to the prejudice of the de-

fendant-appellant by denying his motion for mis-

App. 10

trial based upon prescutorial misconduct in clos-

ing argument, and thereafter denying his motion

for new trial based upon that misconduct, which

denied to defendant his rights vested by the

Fifth, Sixth and Fourteenth Amendments of the

Constitution of the United States resulting in the

denial of a fair trial.

SECOND ASSIGNMENT OF ERROR:

The Trial Court erred to the prejudice of the

defendant-appellant by instructing the jury that

the defendant must prove his claim of self-

defense by a preponderance of the evidence and

by instructing the jury that one of the essential

elements of the crime of felonious assault: to do

the act knowingly; was defined as being aware

that the conduct will probably cause a certain

result, ‘‘regardless of his purpose,’’ in which the

central issue of the case was whether defendant’s

purpose was self-defense, and as subsequently

raised and denied in his motion for judgment of

acquittal, and alternatively, new trial, in which

such instructions altered the burden of proof

imposed upon the state of beyond reasonable

doubt, thereby denying to defendant his right of

due process of law vested by “he Fifth and

Fourteenth Amendments of the Constitution of

tLe United States.

THIRD ASSIGNMENT OF" ERROR:

The trial court erred to the prejudice of the de-

fendant-appellant by denying kis motion for

judgment of acquittal made at the close of the

state’s case in chief and as made and renewed

following the verdict, where the state’s evidence

established that the defendant’s conduct was jus-

tified by law as to each and every offense, and

the respective lesser included offenses, and the

verdict and sentence must be set aside.

App. 11

FOURTH ASSIGNMENT OF ERROR:

The verdict of the jury finding the defendant

guilty of two counts of felonious assault is not

sustained by sufficient evidence, the verdicts of

the jury are contrary and inconsistent verdicts

and as such are contrary to law.

Appellant’s first assignment of error asserts prejudi-

cial prosecutorial misconduct on the part of the State of

Ohio. The statements objected to occurred during closing

arguinent and concern appellant’s failure to contact the

Clermont County Sheriff’s Department until approxi-

mately twenty-five (25) minutes after he had shot Philip

Osborne. The prosecutor stated that someone who had

killed another in self-defense would immediately “run to

the phone and say ‘Oh my God I shot somebody. They

were coming at me. They were attacking me.’ ’’ The

prosecutor further stated that he suspected that Coyne

was thinking about getting rid of Osborne’s body during

the twenty-five (25) minute period, and that Coyne might

have used the twenty-five (25) minutes to rearrange the

scene of the shootings. Appellant in his brief refers to

other allegedly inflammatory and prejudicial statements

made during closing argument, but these statements were

not specifically objected to below, and appellant has there-

fore waived his right to appeal the propriety of these

statements. App. R. 12(A).

A prosecuting attorney, as an agent of the people of

the State of Ohio, has a duty to pursue convictien of per-

sons guilty of crimes against the State with all appro-

priate zeal. State v. Morris (1954), 100 Ohio App. 307,

136 N.E.2d 653. However, arguments to the jury must be

confined to reasonable inferences which may be drawn

from evidence presented. Morris, supra. Control of the

App. 12

arguments of counsel rests within the sound discretion of

the trial judge, State v. Pustare (1973), 33 Ohio Ap. (sic)

2d 305, 295 N.E.2d 210, and advocates have traditionally

been allowed great latitude in this respect. See Morris,

supra, and Pustare, supra.

We feel that the statements made by the prosecutor

and objected to below are dangerously close to reversible

error. Such remarks constitute potentially inflammatory

inferences which could not reasonably have been drawn

from the evidence below. See Morris, supra. There was

virtually no evidence presented indicating that the scene

of the shooting had been tampered with by anyone, in-

cluding appellant, or that appellant delayed contacting the

sheriff due to any improper motive or intention.

However, all of the remarks by the prosecutor ob-

jected to below relate to appellant’s conduct after shoot-

ing the deceased, Philip Osborne. As appellant was not

found guilty of any wrongdoing with regard to Osborne’s

death, we conclude that the remarks were not prejudicial

to appellant. We therefore decline to reverse the verdict

below on the basis of such remarks. See Ramey v. Mets

(1964), 3 Ohio App. 2d 329, 210 N.E.2d 449. Appellant’s

first assignment of error is therefore not well taken.

Appellant, in his second assignment of error, asserts

that the effect of certain jury instructions given below was

to require him to disprove an element of the crime with

which he was charged in order to prove self-defense. We

do not agree.

In a criminal prosecution, the State has the burden

of proving each and every element of the offense with

which the accused is charged beyond a reasonable doubt.

sn

App. 13

In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068; Glenn

v. Dallman (6th Cir. 1982), 686 F.2d 418. If the defendant

asserts an affirmative defense, the State may require the

defendant to prove such defense by a preponderance of

the evidence. R. C. 2901.05(A). See also, Krzeminski v.

Perini (6th Cir. 1980), 614 F.2d 121, cert. denied 449 US.

866, 101 S.Ct. 199. However, the State may not presume

that an element of a certain crime exists and then place

the burden of showing otherwise on the defendant.

Krzeminskt, supra.

The crime of felonious assault is defined in R. C.

2903.11 as follows:

(A) No person shall knowingly:

(1) Cause serious physical harm to another;

(2) Cause or attempt to cause physical harm to

another by means of a deadly weapon or danger-

ous ordnance....

(B) Whoever violates this section is guilty of feloni-

ous assault, a felony of the second degree. ...

The required mental state for the crime of felonious

assault, ‘‘knowingly,” is defined in R. C. 2901.22(B) as

follows:

A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause

a certain result or will probably be of a certain

nature. A person has knowledge of circumstances

when he is aware that such circumstances probably

exist.

In the case sub judice, the instruction which defined

‘‘knowingly” contained that statutory language set forth.

App. 14

By asserting the affirmative defense of self-defense,

appellant states in effect that there is justification for

his admitted conduct. See State v. Poole (1973), 33 Ohio

St. 2d 18, 294 N.E.2d 888. The defense is construed as

an independent matter ‘‘which the defendant claims ex-

empts him from liability even if it is conceded that the

facts claimed by the prosecution are true.’’? Poole, supra,

at 19, 294 N.E.2d 15 889, citing, 1 Wharton’s Criminal

Evidence 54-55, Section 19 (12th Ed. 1955). To establish

the defense of self-defense in Ohio, the defendant must

show (1) ihat he was not at fault in creating the situation

requiring him to defend himself, (2) that he believed he

was in imminent danger of death or serious bodily harm,

and that the only means of escape from such danger lay

in the use of force, and (3) that he did not violate any

duty to retreat from or avoid the danger. State v. Robbins

(1979), 58 Ohio St. 2d 74, 388 N.E.2d 755.

Pleading and proving seli-defense does not, as argued

by appellant in his brief, require the negation of any of

the elements of felonious assauit. Appellant asserts that

in order to prove self-defense he was required to disprove

the ‘‘knowingly’’ element of the crime of felonious assault

(R. C. 2903.11). He urges that because the definition of

knowingly contains the language ‘‘regardless of his pur-

pose,” the burden of proof as to mental state shifts to a

defendant attempting to plead self-defense, because such

defendant is then required to prove that there was a pur-

pose for his conduct, t.e. to protect his person. We do

not find appellant’s argument persuasive for two reasons.

First, in order to prove self-defense, the accused is not

required to state the purpose behind his actions. See

Robbins, supra. Second, even ass"ming arguendo that

App. 15

proof of purpose is required in order to assert the defense

of self-defense, the mental state required for felonious

assault, ‘‘knowingly,” is defined by statute in terms of

conduct regardless of purpose. R. C. 2901.22(B), supra.

If no purpose need be proven to obtain a conviction for

felonious assault under R. C. 2903.11, requiring purpose

to be proved to establish self-defense would not require

the negation of an element of felonious assault, and could

not be construed to violate appellant’s right to due process

of law.

Therefore, the jury was properly instructed below,

and appellant’s second assignment of error is overruled.

Appellant’s third assignment of error takes issue with

the refusal of the court below to grant appellant’s mo-

tions for acquittal made at the close of the State’s case

in chief and following the verdict.

A motion for acquittal must be denied it it appears

that ‘‘reasonable minds may reach different conclusions

as to whether each material element of a crime has been

proved beyond a reasonable doubt.” State v. Bridgeman

(1978), 55 Ohio St. 2d 261, 263, 381 N.E.2d 184, 185. See

also, State v. Brown (1981), 3 Ohio App. 3d 131, 443

N.E.2d 1382. Applying the standard above to the case

sub judice, we find considerable controversy in the record

with regard to a number of material elements of the

crimes with which appellant was charged. For example,

there is conflicting evidence as to whether or not appel-

lant fired a warning siiot before firing directly upon

Osborne, Oberschlake, and Dodson. This factual dispute

bears heavily on Coyne’s mental state at the time of the

shooting. The record also contains evidence indicating

that appellant pursued Oberschlake and Dodson as they

App. 16

fled from the junkyard following the first ten (10) rounds

of rifle fire. Such conduct is inconsistent with appellant’s

claims of self-defense and defense of his property.

Therefore, being unable to find that a reasonable

jury could only render a verdict in favor of appellant at

the time his motions for acquittal were made, we must

overrule appellant’s third assignment of error.

In his fourth assignment of error, appellant contends

that the verdict rendered below finding him guilty of two

counts of felonious assault is not sustained by sufficient

evidence, and that the verdicts finding him not guilty as

to the death of Osborne, yet guilty of felonious assault

upon Oberschlake and Dodson, are inconsistent and there-

fore contrary to law.

The crime of felonious assault (R. C. 2903.11) re-

quires that the accused (1) knowingly, (2) cause physical

harm to another by use of a deadly weapon. We find that

there was sufficient competent credible evidence pre-

sented below going to each of the elements of the offense

from which a jury could reasonably conclude that appel-

lant was guilty beyond a reasonable doubt of each count

of felonious assault. Therefore, we decline to reverse the

convictions below on the basis that they are contrary to

the manifest weight of the evidence. See State v. Eley

(1978), 56 Ohio St. 2d 169, 383 N.E.2d 182.

We also find appellant’s assertion that the verdicts

rendered in the instant case are inconsistent with each

other unconvincing. Inconsistent verdicts with respect to

separate charges against a single defendant do not consti-

tute grounds for setting the decision of the jury aside.

Harris v. Rivera (1981), 454 U.S. 339, 102 S.Ct. 460.

App. 17

Further, we think that the evidence presented supports

the verdicts that were rendered. The jury could reason-

ably have found that appellant was acting in self-defense

when he killed Osborne, who was leading the excursion

into the junkyard, but was not acting in self-defense and

using unjustified force as he continued to fire upon Dod-

son and Oberschlake as they ran from the scene of the

confrontation.

Therefore, appellant’s fourth assignment of error is

not well taken.

The assignments of error properly before this Court

having been ruled upon as heretofore set forth, it is the

Order of this Court that the judgment or final order here-

in appealed from be, and the same hereby is, affirmed.

It is further Ordered that a mandate be sent to the

Court of Common Pleas of Clermont County, Ohio, for

execution upon this judgment.

Costs to be taxed in compliance with App. R. 24.

And the Court being of the opinion that there were

reasonable grounds for this appeal, allows no penalty.

It is further Ordered that a certified copy of this

Memorandum Decision and Judgment Entry shall consti-

tute the mandate pursuant to App. R. 27.

To all of which the appellant, by his counsel, excepts.

HENRICKSON, P.J., JONES and COOK, J.J.

Judge Robert E. Cook, of the Eleventh Appellate District,

sitting by assignment of the Supreme Court of Ohio.

App. 18

APPENDIX D

COURT OF COMMON PLEAS

CLERMONT COUNTY, OHIO

Case No. 81-CR-5282

STATE OF OHIO,

Plaintiff,

VS.

JOHN COYNE,

Defendant.

JUDGMENT ENTRY ON JURY VERDICT

(Filed March 2, 1982)

This cause came on for trial before the Court of Com-

mon Pleas of Clermont Couty, Ohio on the 11th. day of

February, 1982, and the Defendant appeared in open court

represented by counsel, Andrew Dennison, and the State

of Ohio represented by Assistant Prosecutors, Jeffrey S.

Schwartz and Richard P. Ferene. A jury was duly em-

paneled and sworn, whereupon evidence was presented to

the jury and upon conclusion of all the evidence on Febru-

ary 23, 1982, the Court instructed the jury as to the law

applicable to the charges against the Defendant, to-wit:

Count 1: Murder in violation of Section 2903.02; Count 2:

Attempted Murder in Violation of Sections 2923.02 and

2903.02(A) and Count 3: Attempted Murder in violation

of Sections 2923.03 and 2093.02(A), and the jury retired

to the jury room to deliberate, and after due deliberations

on the 25th. day of February, 1982, the jury returned to

the Courtroom with their verdict signed by all twelve

members of the jury, which verdict was a jury verdict

App. 19

finding the Defendant, John Coyne, not guilty of the of-

fense of murder in Count No. 1 of the indictment; not

guilty of the offense of attempted murder in Count No. 2

of the indictment but guilty of the lesser included offense

of felonious assault, contrary to and in violation of Sec-

tion 2903.11 of the Ohio Revised Code a second degree

felony; and not guilty of the offense of attempted murder

in Count No. 3 of the indictment, but guilty of the lesser

included offense of felonious assault, contrary to and in

violation of Section 2903.11 of the Ohio Revised Code, a

second degree felony.

On the verdict of the jury the Court does hereby find

the Defendant not guilty of the offense of murder in

Count No. 1 of the indictment; guilty of the lesser in-

cluded offense of felonious assault, contrary to and in

violation of Section 2903.11 of the Ohio Revised Code, a

second degree felony in Count No. 2 of the indictment and

guilty of the offense of felonious assault, contrary to and

in violation of Section 2903.11 of the Ohio Revised Code, a

second degree felony in Count No. 3 of the indictment.

IT IS THEREFORE ORDERED that pre-sentence

investigation report be conducted by the Probation De-

partment, Clermont County, Ohio, and that said report be

returned to the Court before sentence, which sentencing

shall be set at a later date. Defendant’s bond, if any,

shall continue on the further condition that the Defendant

shall not leave the State of Ohio during the pre-sentence

investigation report.

/s/ Joun L. Watson

Common Pleas Judge

HAVE SEEN: /s/ Jzerrrey Scuwartz

Assistant Prosecuting Attorney

App. 20

APPENDIX E

COURT OF COMMON PLEAS

CLERMONT COUNTY, OHIO

Case No. 81-CR-5282

STATE OF OHIO,

Plaintiff,

vs.

JOHN E. COYNE,

Defendant.

ENTRY DENYING MOTIONS

(Filed April 12, 1982)

This cause came on for hearing on the 29th. day of

March, 1982, on the Motions for judgment of acquittal, in

in the alternative, motion for new trial, and the Defendant

appeared in open court represented by counsel and the

State of Ohio represented by the Prosecuting Attorney’s

Office of Clermont County, Ohio. Evidence was submit-

ted on behalf the Defendant and on behalf the State of

Ohio and upon consideration thereof the Court finds said

motions not to be well taken;

IT IS THEREFORE ORDERED, DECREED AND

ADJUDGED that the Motions for judgment or acquittal,

and in the alternative, motion for new triai be and hereby

is overruled.

Exceptions to the Defendant.

/s/ Joun L. Watson

HAVE SEEN: /s/ JEFFREY SCHWARTZ

Assistant Prosecuting Attorney

App. 21

APPENDIX F

COURT OF COMMON PLEAS

CLERMONT COUNTY, OHIO

Case No. 81-CR-5282

STATE OF OHIO,

Plaintiff,

VS.

JOHN E. COYNE,

Defendant.

ENTRY SENTENCING DEFENDANT

(Filed April 12, 1982)

The Defendant appeared in open court represented by

counsel on the 6th. day of April, 1982, the Defendant hav-

ing heretofore been found guilty by a jury of the offense

of felonious assault in Count No. 2 of the indictment, econ-

trary to and in violation of Section 2903.11 of the Ohio

Revised Code and guilty of the offense of felonious as-

sault in Count No. 3 of the indictment, contrary to and in

violation of Section 2903.11 of the Ohio Revised Code,

both felonies of the second degree, and the Defendant

being now before the Court for sentencing was inquired

of if he has anything to say or any good and sufficient

reason why sentence should not be pronounced against

him, and the Defendant having no good and sufficient

reason why sentence should not be pronounced against

him;

IT IS THEREFORE ORDERED, DECREED AND

ADJUDGED that the Defendant be and hereby is sen-

tenced to confinement in the Ohio State Penitentiary for

not less than three years nor more than fifteen years in

Count No. 2 of the indictment and for a period of not less

App. 22

than three years nor more than fifteen years in Count No.

3 of the indictment.

IT IS FURTHER ORDERED that stay of execution

of said sentences be and hereby is granted pending ap-

peal, and the Defendant’s bond pending appeal is hereby

set at $125,000.00, property.

IT IS FURTHER ORDERED that the sentence im-

posed in Count No. 3 of the indictment shall be served

consecutive to the sentence imposed in Count No. 2 of the

indictment.

Credit time allowed to Defendant,—days.

The Clerk of Courts of Clermont County, Ohio is

hereby appointed Trustee for the purpose of receiving

allotments of the Defendant’s earnings while confined in

said penal institution under the sentence aforesaid, said

allotments to be used for the purpose of paying costs in

this action.

/s/ Joun L. Watson

HAVE SEEN: /s/ Jerrrey Scowartz

Assistant Prosecuting Attorney

App. 23

APPENDIX G

Fifth Amendment of the Constitution of the

United States

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual serv-

ice in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

(Effective 1791)

Sixth Amendment of the Constitution of the

United States

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have

been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compusory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counel for his defence.

(Effective 1791)

App. 24

Fourteenth Amendment of the Constitution of

the United States, pertinent provisions

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any per-

son of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

App. 25

APPENDIX H

* * *

Section 2901.05, Revised Code of Ohio (Burden of

Proof).

§ 2901.05 Burden and degree of proof.

(A) Every person accused of an offense is pre-

sumed 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.

(B) As part of its charge to the jury in a criminal

ease, the court shall read the definitions of ‘‘reasonable

doubt” and ‘‘proof beyond a reasonable doubt,’’ con-

tained in division (D) of this section.

(C) As used in this section, an ‘affirmative de-

fense” is either of the following:

(1) A defense expressly designated as affirmative;

(2) A defense involving an excuse or justification

peculiarly within the knowledge of the accused,

on which he ean fairly be required to adduce

supporting evidence.

(D) ‘*Reasonable doubt” is present when the jurors,

after they have carefully considered and compared all the

evidence, cannot say they are firmly convinced of the

truth of the charge. It is a doubt based on reason and

common sense. Reasonable doubt is not mere possible

doubt, because everything relating to human affairs or

depending on moral evidence is open to some possible or

App. 26

imaginary doubt. “Proof beyond a reasonable doubt”

is proof of such character that an ordinary person would

be willing to rely and act upon it in the most important

of his own affairs.

HISTORY: 134 v H 511 (Eff 1-1-74); 137 v H 1168

Eff 11-1-78.

Section 2901.21, Revised Code of Ohio (Criminal Lia-

bility) :

CRIMINAL LIABILITY

§ 2901.21 Requirements for criminal liability.

(A) Except as provided in division (B) of this sec-

tion, a person is not guilty of an offense unless both of

the following apply:

(1) His liability is based on conduct which includes

either a voluntary act, or an omission to perform an act

or duty which he is capable of performing;

(2)

each el

fied

He has ‘he requisite degree of culpability for

ent as to which a culpable mental state is speci-

y the section defining the offense.

(B) When the section defining an offense does not

specify any degree of culpability, and plainly indicates

a purpose to impose strict criminal liability for the con-

duct described in such section, then culpability is not

required for a person to be guilty of the offense. When

the section neither specifies culpability nor plainly indi-

cates a purpose to impose strict liability, recklessness is

sufficient culpability to commit the offense.

(C) As used in this section:

(1) Possession is a voluntary act if the possessor

knowingly procured or received the thing possessed, or

Ba ae aa a (cddihig cum ee ee <r

App. 27

was aware of his control thereof for a sufficient time to

have ended his possession.

(2) Reflexes, convulsions, body movements during

unconsciousness or sleep, and body movements that are

not otherwise a product of the actor’s volition, are in-

voluntary acts.

(3) ‘‘Culpability” means purpose, knowledge, reck-

lessness, or negligence, as defined in section 2901.22 of

the Revised Code.

HISTORY: 134 v H dll. Eff 1-1-74.

* * =

Section 2901.22, Revised Code of Ohio (Culpable

mental states.)

§ 2901.22. Culpable mental states.

(A) <A person acts purposely when it is his specific

intention to cause a certain result, or, when the gist of the

offense is a prohibition against conduct of a certain na-

ture, regardless of what the offender intends to accom-

plish thereby, it is his specific intention to engage in

conduct of that nature.

(B) A person acts knowingly, regardless of his pur-

pose, when he is aware that his conduct will probably

cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when

he is aware that such circumstances probably exist.

(C) A person acts recklessly when, with heedless

indifference to the consequences, he perversely disregards

a known risk that his conduct is likely to cause a certain

result or is likely to be of a certain nature. A person is

App. 28

reckless with respect to circumstances when, with heedless

indifference to the consequences, he perversely disregards

a known risk that such circumstances are likely to exist.

(D) A person acts negligently when, because of a

substantial lapse from due care, he fails to perceive or

avoid a risk that his conduct may cause a certain result

or may be of a certain nature. A person is negligent with

respect to circumstances when, because of a substantial

lapse from due care, he fails to perceive or avoid a risk

that such circumstances may exist.

(EK) When the section defining an offense provides

that negligence suffices to establish an element thereof,

then recklessness, knowledge, or purpose is also sufficient

culpability for such element. When recklessness suffices

to establish an element of an offense, then knowledge or

purpose is also sufficient culpability for such element.

When knowledge suffices to establish an element of an

offense, then purpose is also sufficient culpability for such

element.

HISTORY: 134 v H 511. Eff 1-1-74.

Section 2903.02, Revised Code of Ohio (Murder)

§ 2903.02. Murder.

(A) No person shall purposely cause the death of

another.

(B) Whoever violates this section is guilty of mur-

der, and shall be punished as provided in section 2929.02

of the Revised Code.

HISTORY: 134 v H 511. Eff 1-1-74.

* * *

App. 29

Section 2903.11, Revised Code of Ohio (Felonious

assault.)

§ 2903.11 Felonious assault.

(A) No person shall knowingly:

(1) Cause serious physical harm to another;

(2) Cause or attempt to cause physical harm to an-

other by means of a deadly weapon or dangerous

ordnance as defined in section 2923.11 of the

Revised Code.

(B) Whoever violates this section is guilty of feloni-

ous assault, a felony of the second degree.

HISTORY: 134 v H 511. Eff 1-1-74.

Section 2923.02, Revised Code of Ohio (Attempt)

§ 2923.02 Attempt.

(A) No person, purposely or knowingly, and when

purpose or knowledge is sufficient cuipability for the

commission of an offense, shall engage in conduct which,

if successful, would constitute or result in the offense.

(B) It is no defense to a charge under this section

that, in retrospect, commission of the offense which was

the object of the attempt was impossible under the cireum-

stances.

(C) No person who is convicted of committing a

specific offense, of complicity in the commission of such

offense, or of conspiracy to commit such offense, shall be

convicted of an attempt to commit the same offense in

violation of this section.

App. 30

(D) It is an affirmative defense to a charge under

this section that the actor abandoned his effort to commit

the offense or otherwise prevented its commission, under

circumstances manifesting a complete and voluntary re-

nunciation of his criminal purpose.

(E) Whoever violates this section is guilty of an

attempt to commit an offense. An attempt to commit ag-

gravated murder or murder is a felony of the first degree.

An attempt to commit any other offense is an offense of

the next lesser degree than the offense attempted. In the

case of an attempt to commit an offense not specifically

classified, an attempt is a misdemeanor of the first degree

if the offense attempted is a felony, and a misdemeanor

of the fourth degree if the offense attempted is a mis-

demeanor. An attempt to commit a minor misdemeanor,

or to engage in conspiracy, is not an offense under this

section.

HISTORY: 134 v H 511. Eff 1-1-74.

* * *