State v. Fox
| Decision Date | 18 November 1981 |
| Citation | 428 N.E.2d 410,68 Ohio St.2d 53 |
| Parties | , 22 O.O.3d 259 The STATE of Ohio, Appellant, v. FOX, Appellee. The STATE of Ohio, Appellant, v. CUSTER, Appellee. The STATE of Ohio, Appellant, v. FREEMAN, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Attempted murder, under R.C. 2923.02 and 2903.02, is a specific intent crime, for which evidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the necessary "purpose" to commit murder. (Nichols v. State, 8 Ohio St. 435, followed.)
Defendants-appellees, Kevin W. Fox, Michael L. Custer and Dennis A. Freeman, were each found guilty by a jury in Darke County upon indictments for the attempted murder of Wallace Rich, Arcanum Chief of Police, a violation of R.C. 2903.02 and 2923.02.
On the evening of August 17, 1979, shots were fired into the home of Chief Rich. Earlier that evening, defendant Freeman had inquired at the Rich home whether the chief was there, Freeman disappearing upon being advised that the chief was upstairs and would be down in a few minutes. A few hours later, and immediately prior to the shooting, the chief's son, Jim, noticed headlights from an approaching automobile and went to a window, where he observed a light green Oldsmobile parked against the curb with what appeared to be a "stick" protruding out of the rear passenger side window. As he stood at the window, the stick pointed in his direction, and Jim observed a "big flash" and heard a blast. The window shattered. A second shot was fired, entering the house through the front door window.
William F. Miller, a patrolman who happened to be next door to the Rich residence, immediately responded upon hearing blasts, observed a green Oldsmobile parked across the street, and followed that auto in his police cruiser to the home of defendant Custer. All three defendants exited the automobile. The patrolman, upon making a visual inspection of the car, viewed a shotgun in the front seat on the passenger side. This gun was removed from the car, at which time the patrolman also observed three expended shotgun shells in the car. Three days later, the three defendants were indicted for the attempted murder of chief Rich.
At trial, defendants denied shooting at the Rich home. Fox and Custer explained that they had been on a hunting trip earlier in the day, and that, later, an unidentified stranger assaulted Custer while the three defendants were drinking beer at the Custer home. A subsequent encounter with the stranger, defendants claimed, culminated in an exchange of gunfire in front of the Rich home. The jury returned guilty verdicts for all defendants, and each was sentenced to a term of imprisonment.
The Court of Appeals reversed the convictions in a split decision, for the sole expressed reason that the trial judge erred in refusing to give a requested instruction on the effect of intoxication on the specific intent required for commission of attempted murder. 1
This cause is now before this court upon allowance of a motion for leave to appeal.
Lee E. Fry, Pros. Atty. and Richard M. Howell, Greenville, for appellant.
Carl A. Cramer, Kittering, for appellees.
The common law and statutory rule in American jurisprudence is that voluntary intoxication is not a defense to any crime. Long v. State (1923), 109 Ohio St. 77, 86, 141 N.E. 691. An exception to the general rule has developed, where specific intent is a necessary element, that if the intoxication was such as to preclude the formation of such intent, the fact of intoxication may be shown to negative this element. See 8 A.L.R.3d 1236, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge. In such a case, intoxication, although voluntary, may be considered in determining whether an act was done intentionally or with deliberation or premeditation. State v. French (1961), 171 Ohio St. 501, 502, 172 N.E.2d 613, certiorari denied 366 U.S. 973, 81 S.Ct. 1941, 6 L.Ed.2d 1263.
R.C. 2923.02, which in conjunction with R.C. 2903.02 defines the offense of attempt to commit murder, 2 prohibits any person from purposely engaging in conduct which, if successful, would constitute the offense of murder. Thus, the instant offense is a specific intent crime, for which evidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the necessary "purpose" to commit murder. The trial court correctly permitted introduction of evidence of defendants' intoxication on the evening of August 17, 1979.
Given the admissibility of evidence of intoxication, the issue is whether the trial court erred by refusing to go further and charge the jury on the possibility intoxication negated formation of the specific intent to attempt murder.
This court first addressed this precise issue in Nichols v. State (1858), 8 Ohio St. 435. In that case Caleb Nichols was tried by jury for attempted murder. 3 On appeal, Nichols claimed, among other errors, the failure of the trial court to instruct that drunkenness should be considered by the jury in determining the existence of the malicious intent charged. After "somewhat anxious deliberation," we concluded that "a proper regard to the public safety in the practical administration of criminal justice" mandated introduction of the evidence of intoxication, "to show that the accused did not at the time intend to do the act which he did do." Nichols, supra, at 439. But we refused to require a jury instruction to be given on the question, stating as follows:
" * * * (W)hen we admit evidence of intoxication to rebut * * * a charge of deliberation and premeditation, * * * we think we have gone far enough; and that, looking to the practical administration of the criminal law, a due regard to the public safety requires that the mere question of malice should be determined by the circumstances of the case, aside from the fact of intoxication, as in other cases." Id.
This court's denial of a right to a jury charge in Nichols was based on a deep seated distrust of the reliability of such evidence:
Id. Rather than impose a...
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Moore v. Mitchell
...is a necessary element of the crime and "the intoxication was such as to preclude the formation of such intent...." Ohio v. Fox, 68 Ohio St.2d 53, 55, 428 N.E.2d 410 (1981). "[E]vidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the ......
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