State v. Jones

• Decision Date: 15 July 1981
• Docket Number: 80-1447 and 80-1646,Nos. 80-1182,s. 80-1182
• Citation: 21 O.O.3d 152,67 Ohio St.2d 244,423 N.E.2d 447
• Parties: , 21 O.O.3d 152 The STATE of Ohio, Appellee, v. JONES, Appellant. The STATE of Ohio, Appellant, v. WILKINS, Appellee. The STATE of Ohio, Appellee, v. COLEMAN, Appellant.
• Court: Ohio Supreme Court

Page 244

67 Ohio St.2d 244

423 N.E.2d 447, 21 O.O.3d 152

The STATE of Ohio, Appellee, v. JONES, Appellant.

The STATE of Ohio, Appellant, v. WILKINS, Appellee.

The STATE of Ohio, Appellee, v. COLEMAN, Appellant.

Nos. 80-1182, 80-1447 and 80-1646.

Supreme Court of Ohio.

July 15, 1981.

Syllabus by the Court

The application of R.C. 2901.05(A), as amended effective November 1, 1978, to crimes committed before the effective date of the statute is a violation of the prohibition against ex post facto laws (Section 10, Article I of the United States Constitution).

Case No. 80-1182.

Beginning in April of 1978, Craig Phillips allegedly made a number of threats against Sharon Jones, wife of Charles Jones, appellant. On September 2, 1978, Phillips allegedly made an attack on appellant's wife, at which time appellant pursued Phillips by automobile. When the vehicle in which Phillips was a passenger stopped at a traffic light, appellant stopped his car, emerged with a pistol in hand, and opened Phillips' door. While appellant was attempting to take Phillips from the back seat of the car, he fired four shots, killing Phillips and wounding two others. Appellant allegedly commenced firing because he saw a gun in Phillips' hand or in the hand of one of the other two passengers in the back seat.

Appellant was indicted for one count of murder, in violation of R.C. 2903.02, and two counts of felonious assault, in violation of R.C. 2903.11. His jury trial began on January 9, 1979, in the Court of Common Pleas of Hamilton County. Appellant asserted a defense of self-defense. Appellant was found guilty of the lesser-included offenses of voluntary manslaughter, in violation of R.C. 2903.03, and aggravated assault, in violation of R.C. 2903.12. Appellant was sentenced to four to twenty-five years on the manslaughter charge and one to five years for each of the assault charges. The sentences are to run concurrently. On June 25, 1980, the Court of Appeals affirmed the convictions, rejecting appellant's claim that prejudicial error had been committed by an instruction to the jury that appellant had the burden of proving his affirmative defense of self-defense by a preponderance of the evidence, pursuant to R.C. 2901.05(A), as amended effective November 1, 1978.

Case No. 80-1447.

On September 18, 1978, Ilse Erath, a German national, was slain in Dayton, Ohio. She had been stabbed 19 times and had been manually strangled in her room at the Imperial House North motel. Eugene Wilkins, Jr., appellee, who was also staying at the motel, was found inside the deceased's room by motel employees who had responded to her cries for help. Appellee allegedly remembers nothing of the incident or how he came to be in the deceased's room. He alleges that prior to the incident he had taken a rest from a severe headache which had been plaguing him.

Appellee was indicted by the Montgomery County Grand Jury on September 28, 1978, for aggravated murder, in violation of R.C. 2903.01. He entered pleas of not guilty, not guilty by reason of insanity, and not guilty by reason of temporary insanity. Before trial, appellee, who had a history of mental disorder, underwent extensive examination concerning his sanity and was found competent to stand trial.

On May 29, 1979, appellee's jury trial began in the Court of Common Pleas of Montgomery County. Appellee was convicted of aggravated murder and sentenced to a term of life imprisonment. This conviction was reversed by the Court of Appeals on August 21, 1980. The basis for reversal was that the trial court had committed error prejudicial to appellee in instructing the jury that appellee had the burden to prove his affirmative defense of insanity by a preponderance of the evidence pursuant to R.C. 2901.05(A), as amended effective November 1, 1978.

Case No. 80-1646.

Charles T. Coleman, appellant, was incarcerated in the Belmont County Jail on May 9, 1978. At about 10:30 P.M. that evening, Sheriff's Deputy Kenneth Clark opened appellant's cell block to lock up the prisoners and to administer medication to Coleman when he was struck over the head by appellant with a pipe made from a mop handle. Appellant was indicted for attempted escape, in violation of R.C. 2921.34, and felonious assault, in violation of R.C. 2903.11.

A plea of not guilty was entered by appellant and a trial by jury commenced on June 5, 1979, before the Court of Common Pleas of Belmont County. Appellant asserted at trial that he did not remember anything of the incident on May 9, 1978, and that he was so intoxicated that day from taking three Tuinal capsules that he was incapable of forming the requisite mental intent to commit the crimes alleged. A jury instruction was given that the burden of proving that appellant was under the influence of drugs was upon the defendant and that he must establish the defense by a preponderance of the evidence, pursuant to R.C. 2901.05(A), as amended effective November 1, 1978.

The jury returned guilty verdicts on both charges. Appellant was sentenced to two to five years on the attempted escape charge and five to fifteen years for the felonious assault charge. The sentences are to run consecutively. The Court of Appeals affirmed the convictions, rejecting appellant's claim that prejudicial error had been committed by the jury instruction that intoxication had to be proven by a preponderance of the evidence.

The Court of Appeals for Hamilton County in case No. 80-1182, finding its judgment to be in conflict with the judgment of the Court of Appeals for Montgomery County in State v. Simon (January 16, 1980), case No. CA 6262, unreported, and with the judgments of the Court of Appeals for Cuyahoga County in State v. Mocilnikar (March 6, 1980), case No. 40261, unreported, and State v. Muscatello (March 13, 1980), case No. 40484, unreported, certified the record of this case to this court for review and final determination.

The Court of Appeals for Montgomery County in case No. 80-1447, finding its judgment to be in conflict with the judgment of the Court of Appeals for Hamilton County in State v. Jones, 423 N.E.2d 447 herein, certified the record of this case to this court for review and final determination.

The Court of Appeals for Belmont County in case No 80-1646, finding its judgment to be in conflict with the judgment of the Court of Appeals for Montgomery County in State v. Simon (January 16, 1980), case No. CA 6262, unreported, certified the record of this case to this court for review and final determination.

Simon L. Leis, Jr., Pros. Atty., Merlyn D. Shiverdecker and William E. Breyer, Cincinnati, for appellee, in case No. 80-1182.

Louis Rubenstein and Ronald T. Bella, Cincinnati, for appellant, in case No. 80-1182.

Lee C. Falke, Pros. Atty., and Gary W. Crim, for appellant, in case No. 80-1447.

J. Robert Radabaugh, Dayton, for appellee, in case No. 80-1447.

William L. Thomas, Pros. Atty., and Paul Jefferis, Barnesville, for appellee, in case No. 80-1646.

Richard L. Aynes, Akron, for appellant, in case No. 80-1646.

WILLIAM B. BROWN, Justice.

I.

These three cases all involve the same central issue concerning the retroactive application of R.C. 2901.05(A). Specifically, the issue is whether R.C. 2901.05(A), as amended November 1, 1978, may be applied at the trial of defendants charged with crimes alleged to have been committed before the effective date of the statute.

Prior to November 1, 1978, R.C. 2901.05(A) provided that, "(e)very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused."

Effective November 1, 1978, R.C. 2901.05(A) was amended to read that, "(e) very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused."

Article I, Section 10 of the United States Constitution prohibits any state from passing an ex post facto law. Such laws were defined by the United States Supreme Court in Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, as " * * * (e)very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." (Emphasis sic.)

The rule of Calder v. Bull was restated in Hopt v. Utah (1884), 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262, in which the court stated that, " * * * (a)ny statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws."

The amendment to R.C. 2901.05(A) contains a change in the quantum of evidence necessary for conviction. It clearly concerns an evidentiary standard. Prior to the 1978 amendment, R.C. 2901.05(A) provided that a defendant was required to meet the burden of going forward with evidence of a nature and quality sufficient to raise an affirmative defense. State v. Robinson (1976), 47 Ohio St.2d 103, 351 N.E.2d 88. This burden requires the defendant to adduce evidence of his defense sufficient to cast a reasonable doubt on the question of his guilt. If he carries that burden, the defendant should be acquitted, regardless of whether he has proven the substance of his defense by a preponderance of the evidence. Id., fn., at page 112, 351 N.E.2d 88.

The 1978 amendment to R.C. 2901.05(A) adds the burden of persuasion to the burden of going forward. The burden of persuasion refers "to the risk which is...