State v. Ireland

• Decision Date: 08 November 2018
• Docket Number: No. 2017-0344,2017-0344
• Citation: 121 N.E.3d 285,155 Ohio St.3d 287,2018 Ohio 4494
• Parties: The STATE of Ohio, Appellant, v. IRELAND, Appellee.
• Court: Ohio Supreme Court

155 Ohio St.3d 287

121 N.E.3d 285

2018 Ohio 4494

The STATE of Ohio, Appellant,

v.IRELAND, Appellee.

No. 2017-0344

Supreme Court of Ohio.

Submitted April 11, 2018

Decided November 8, 2018

Ron O'Brien, Franklin County Prosecuting Attorney, and Michael P. Walton, Assistant Prosecuting Attorney, for appellant.

Paul Giorgianni, Giorgianni Law, L.L.C., and Shawn Dominy, Columbus, for appellee.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Michael J. Hendershot, Chief Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney GeneralMichael DeWine.

Timothy Young, Ohio Public Defender, and Patrick T. Clark, Assistant Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.

Fischer, J.{¶ 1} In this case, we are presented with the issue whether the defense of blackout is an affirmative defense that must be proved by the defendant by a preponderance of the evidence.We conclude that blackout is an affirmative defense pursuant to R.C. 2901.05(D)(1)(b) and that requiring a defendant to prove this affirmative defense by a preponderance of the evidence does not violate the defendant's right to due process.Accordingly, we reverse the judgment of the Tenth District Court of Appeals and remand the cause to that court for consideration of the remaining assignments of error.

I.PROCEDURAL HISTORY

{¶ 2} The Franklin County Grand Jury indicted appellee, Darin K. Ireland, on one count of felonious assault in violation of R.C. 2903.11.Ireland pleaded not guilty, and the case proceeded to a jury trial.

{¶ 3} During trial, Ireland called James P. Reardon, Ph.D., a forensic psychologist, as an expert witness.Prior to trial, but after the incident, Dr. Reardon had diagnosed Ireland with posttraumatic stress disorder ("PTSD").Dr. Reardon opined that Ireland had experienced "a dissociative episode" due to his PTSD and that Ireland's "consciousness, his memory, his decision-making capability for those instants, those moments, [were] compromised."Dr. Reardon asserted that Ireland was "acting automatically in a dissociative episode."

{¶ 4} Ireland argued that Dr. Reardon's testimony supported his request for the following blackout instruction:

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

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

(Capitalization and boldface sic.)

{¶ 5}The state objected to Ireland's request for the blackout jury instruction, arguing that the instruction was not warranted.The state asserted that Ireland may have been voluntarily intoxicated at the time of the incident and that a blackout defense was therefore precluded.The state argued that if the trial court did provide the jury with a blackout instruction, the instruction should state that blackout is an affirmative defense.Ireland objected and argued that it would be improper to instruct the jury that the defendant had the burden of proving the blackout defense, because the standard jury instruction on the blackout defense does not include affirmative-defense language and the blackout defense specifically addresses the concept of criminal liability under R.C. 2901.21.SeeOhio Jury Instructions , CR Section 417.07(2008).Ireland maintained that the two instructions could not be reconciled.

{¶ 6}The trial court gave the jury the standard blackout instruction but first instructed the jury that blackout is an affirmative defense:

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

* * *

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

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

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

* * *

Reflexes, convulsions, body movements during unconsciousness or sleep and body movements that are not otherwise a product of the act's [sic, actor's] will or volition are involuntary acts.

{¶ 7} After deliberations, the jury found Ireland guilty of felonious assault.The trial court sentenced Ireland to six years of imprisonment.

{¶ 8} Ireland appealed, raising five assignments of error.He first asserted that the trial court committed structural error by instructing the jury that blackout is an affirmative defense.Addressing Ireland's structural-error argument, the state argued that blackout is an affirmative defense and that the trial court properly instructed the jury that Ireland had the burden of proving his blackout defense by a preponderance of the evidence.

{¶ 9} The Tenth District Court of Appeals held that the trial court committed structural error by instructing the jury that Ireland had the burden of proving his blackout defense.The appellate court determined that pursuant to the plain language of R.C. 2901.21(A), voluntariness is an essential element of a criminal offense."[H]aving found that the state constitutionally bears the burden of proving beyond a reasonable doubt that the defendant engaged in a voluntary act,"the court could not "agree that the defendant must prove by a preponderance of the evidence that his or her actions were involuntary."2017-Ohio-263, 111 N.E.3d 468, ¶ 39.The appellate court further determined that Ireland's blackout defense was not an affirmative defense because the "issue of voluntariness is not an excuse or justification,"id.at ¶ 40, and "a defense challenging voluntariness does not involve evidence peculiarly within the knowledge of the accused,"id.at ¶ 41.The appellate court reversed Ireland's conviction and deemed his remaining assignments of error moot.

{¶ 10}The state appealed, and we accepted review of the state's sole proposition of law: "The defense of blackout or automatism is an affirmative defense that must be proven by a defendant by a preponderance of the evidence, because it involves an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence."See150 Ohio St.3d 1451, 2017-Ohio-8136, 83 N.E.3d 938.

II.ANALYSIS

{¶ 11} In this case, we are presented with three issues: (1) Under R.C. 2901.05(D)(1)(b), is "blackout" an affirmative defense that the defendant must prove by a preponderance of the evidence?(2) Pursuant to R.C. 2901.21(A), is voluntariness an essential element of a criminal offense?And (3) does requiring the defendant to prove an affirmative defense that also challenges the state's evidence that the act was voluntary shift the burden of proof from the state to the defendant in violation of the defendant's right to due process?Because these issues are questions of law, we conduct a de novo review.SeeState v. Codeluppi , 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 9.

A.Defense at Issue

{¶ 12} As an initial matter, it is helpful to determine which defense is at issue in this case.The state's proposition of law uses the term "automatism."Ireland first introduced the term "automatism" in his brief to the Tenth District Court of Appeals.Ireland used the term "automatism" interchangeably with the term "unconsciousness" and argues that the two terms are synonymous.The appellate court appears to have implicitly adopted Ireland's interchangeable usage.See2017-Ohio-263, 111 N.E.3d 468, at ¶ 27 and fn. 4.

{¶ 13} Ireland, however, did not assert "automatism" as a defense at the trial level, and the term does not appear in R.C. 2901.05 or in the jury instruction provided by the trial court.Regardless of whether "automatism" is synonymous with "unconsciousness," the defense of blackout and the instructions relating to blackout are the only issues before this court.To the extent that an automatism defense is distinct from the blackout defense, arguments regarding an automatism defense are not properly before us at this time.

1. R.C. 2901.05(D)(1)(b) and blackout

{¶ 14} Under Ohio law, an affirmative defense is either a "defense expressly designated as affirmative,"R.C. 2901.05(D)(1)(a), or a "defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence,"R.C. 2901.05(D)(1)(b).The General Assembly did not expressly designate blackout as an affirmative defense; thus, R.C. 2901.05(D)(1)(a) is not at issue in this case.

{¶ 15}The court of appeals reversed Ireland's conviction partly because it determined that blackout does not meet the definition of "affirmative defense" provided in R.C. 2901.05(D)(1)(b).

{¶ 16}The state contends that Ireland's defense is not actually blackout but the functional equivalent of a "diminished capacity" defense, which Ohio does not recognize as a valid defense.SeeState v. Fulmer , 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 66("Our jurisprudence definitively states that the partial defense of diminished capacity is not recognized in Ohio").However, the state did not object on this...