# Petition for Writ of Certiorari — Coyne v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2914%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 828 ## Text 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