Bill Text: OH SB202 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To increase the penalties for certain offenses when a public utility worker is the victim and to make the killing of a public utility worker an aggravating circumstance for the imposition of the death penalty for aggravated murder.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-11-10 - To Judiciary Criminal Justice [SB202 Detail]

Download: Ohio-2009-SB202-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 202

Senator Turner 

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A BILL

To amend sections 2903.01, 2903.11, 2903.12, 2903.13,

1

and 2929.04 of the Revised Code to increase the

2

penalties for certain offenses when a public

3

utility worker is the victim and to make the

4

killing of a public utility worker an aggravating

5

circumstance for the imposition of the death

6

penalty for aggravated murder.

7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2903.01, 2903.11, 2903.12, 2903.13,	8
and 2929.04 of the Revised Code be amended to read as follows:	9

Sec. 2903.01.  (A) No person shall purposely, and with prior	10
calculation and design, cause the death of another or the unlawful	11
termination of another's pregnancy.	12

(B) No person shall purposely cause the death of another or	13
the unlawful termination of another's pregnancy while committing	14
or attempting to commit, or while fleeing immediately after	15
committing or attempting to commit, kidnapping, rape, aggravated	16
arson, arson, aggravated robbery, robbery, aggravated burglary,	17
burglary, terrorism, or escape.	18

(C) No person shall purposely cause the death of another who	19
is under thirteen years of age at the time of the commission of	20
the offense.	21

(D) No person who is under detention as a result of having	22
been found guilty of or having pleaded guilty to a felony or who	23
breaks that detention shall purposely cause the death of another.	24

(E) No person shall purposely cause the death of a law	25
enforcement officer or public utility worker whom the offender	26
knows or has reasonable cause to know is a law enforcement	27
officer or public utility worker when either of the following	28
applies:	29

(1) The victim, at the time of the commission of the offense,	30
is engaged in the victim's duties.	31

(2) It is the offender's specific purpose to kill a law	32
enforcement officer or public utility worker.	33

(F) Whoever violates this section is guilty of aggravated	34
murder, and shall be punished as provided in section 2929.02 of	35
the Revised Code.	36

(G) As used in this section:

37

(1) "Detention" has the same meaning as in section 2921.01 of	38
the Revised Code.	39

(2) "Law enforcement officer" has the same meaning as in	40
section 2911.01 of the Revised Code.	41

(3) "Public utility" has the same meaning as in section	42
3125.41 of the Revised Code and also includes the United States	43
postal service.	44

(4) "Public utility worker" means an employee of a public	45
utility who does not work primarily at one location and whose	46
chief duties involve activities, such as the delivery of items to	47
or the installation or repair of items or fixtures at homes or	48
businesses, that occur at various customers' premises.	49

Sec. 2903.11.  (A) No person shall knowingly do either of the	50
following:	51

(1) Cause serious physical harm to another or to another's	52
unborn;	53

(2) Cause or attempt to cause physical harm to another or to	54
another's unborn by means of a deadly weapon or dangerous	55
ordnance.	56

(B) No person, with knowledge that the person has tested	57
positive as a carrier of a virus that causes acquired	58
immunodeficiency syndrome, shall knowingly do any of the	59
following:	60

(1) Engage in sexual conduct with another person without	61
disclosing that knowledge to the other person prior to engaging in	62
the sexual conduct;	63

(2) Engage in sexual conduct with a person whom the offender	64
knows or has reasonable cause to believe lacks the mental capacity	65
to appreciate the significance of the knowledge that the offender	66
has tested positive as a carrier of a virus that causes acquired	67
immunodeficiency syndrome;	68

(3) Engage in sexual conduct with a person under eighteen	69
years of age who is not the spouse of the offender.	70

(C) The prosecution of a person under this section does not	71
preclude prosecution of that person under section 2907.02 of the	72
Revised Code.	73

(D)(1)(a) Whoever violates this section is guilty of	74
felonious assault. Except as otherwise provided in this division	75
or division (D)(1)(b) of this section, felonious assault is a	76
felony of the second degree. If the victim of a violation of	77
division (A) of this section is a peace officer or an,	78
investigator of the bureau of criminal identification and	79
investigation, or public utility worker, felonious assault is a	80
felony of the first degree.	81

(b) Regardless of whether the felonious assault is a felony	82
of the first or second degree under division (D)(1)(a) of this	83
section, if the offender also is convicted of or pleads guilty to	84
a specification as described in section 2941.1423 of the Revised	85
Code that was included in the indictment, count in the	86
indictment, or information charging the offense, except as	87
otherwise provided in this division or unless a longer prison term	88
is required under any other provision of law, the court shall	89
sentence the offender to a mandatory prison term as provided in	90
division (D)(8) of section 2929.14 of the Revised Code. If the	91
victim of the offense is a peace officer or an, investigator of	92
the bureau of criminal identification and investigation, or	93
public utility worker, and if the victim suffered serious	94
physical harm as a result of the commission of the offense,	95
felonious assault is a felony of the first degree, and the	96
court, pursuant to division (F) of section 2929.13 of the	97
Revised Code, shall impose as a mandatory prison term one of the	98
prison terms prescribed for a felony of the first degree.	99

(2) In addition to any other sanctions imposed pursuant to	100
division (D)(1) of this section for felonious assault committed in	101
violation of division (A)(2) of this section, if the deadly weapon	102
used in the commission of the violation is a motor vehicle, the	103
court shall impose upon the offender a class two suspension of the	104
offender's driver's license, commercial driver's license,	105
temporary instruction permit, probationary license, or nonresident	106
operating privilege as specified in division (A)(2) of section	107
4510.02 of the Revised Code.	108

(E) As used in this section:

109

(1) "Deadly weapon" and "dangerous ordnance" have the same	110
meanings as in section 2923.11 of the Revised Code.	111

(2) "Motor vehicle" has the same meaning as in section	112
4501.01 of the Revised Code.	113

(3) "Peace officer" has the same meaning as in section	114
2935.01 of the Revised Code.	115

(4) "Sexual conduct" has the same meaning as in section	116
2907.01 of the Revised Code, except that, as used in this section,	117
it does not include the insertion of an instrument, apparatus, or	118
other object that is not a part of the body into the vaginal or	119
anal opening of another, unless the offender knew at the time of	120
the insertion that the instrument, apparatus, or other object	121
carried the offender's bodily fluid.	122

(5) "Investigator of the bureau of criminal identification	123
and investigation" means an investigator of the bureau of criminal	124
identification and investigation who is commissioned by the	125
superintendent of the bureau as a special agent for the purpose of	126
assisting law enforcement officers or providing emergency	127
assistance to peace officers pursuant to authority granted under	128
section 109.541 of the Revised Code.	129

(6) "Investigator" has the same meaning as in section 109.541	130
of the Revised Code.	131

(7) "Public utility worker" has the same meaning as in	132
section 2903.01 of the Revised Code.	133

Sec. 2903.12.  (A) No person, while under the influence of	134
sudden passion or in a sudden fit of rage, either of which is	135
brought on by serious provocation occasioned by the victim that is	136
reasonably sufficient to incite the person into using deadly	137
force, shall knowingly:	138

(1) Cause serious physical harm to another or to another's	139
unborn;	140

(2) Cause or attempt to cause physical harm to another or to	141
another's unborn by means of a deadly weapon or dangerous	142
ordnance, as defined in section 2923.11 of the Revised Code.	143

(B) Whoever violates this section is guilty of aggravated	144
assault. Except as otherwise provided in this division,	145
aggravated assault is a felony of the fourth degree. If the victim	146
of the offense is a peace officer or an, investigator of the	147
bureau of criminal identification and investigation, or public	148
utility worker, aggravated assault is a felony of the third	149
degree. Regardless of whether the offense is a felony of the	150
third or fourth degree under this division, if the offender also	151
is convicted of or pleads guilty to a specification as described	152
in section 2941.1423 of the Revised Code that was included in the	153
indictment, count in the indictment, or information charging the	154
offense, except as otherwise provided in this division, the court	155
shall sentence the offender to a mandatory prison term as	156
provided in division (D)(8) of section 2929.14 of the Revised	157
Code. If the victim of the offense is a peace officer or an,	158
investigator of the bureau of criminal identification and	159
investigation, or public utility worker, and if the victim	160
suffered serious physical harm as a result of the commission of	161
the offense, aggravated assault is a felony of the third degree,	162
and the court, pursuant to division (F) of section 2929.13 of the	163
Revised Code, shall impose as a mandatory prison term one of the	164
prison terms prescribed for a felony of the third degree.	165

(C) As used in this section:

166

(1) "Investigator of the bureau of criminal identification	167
and investigation" has the same meaning as in section 2903.11 of	168
the Revised Code.	169

(2) "Peace officer" has the same meaning as in section	170
2935.01 of the Revised Code.	171

(3) "Public utility worker" has the same meaning as in	172
section 2903.01 of the Revised Code.	173

Sec. 2903.13.  (A) No person shall knowingly cause or attempt	174
to cause physical harm to another or to another's unborn.	175

(B) No person shall recklessly cause serious physical harm to	176
another or to another's unborn.	177

(C) Whoever violates this section is guilty of assault, and	178
the court shall sentence the offender as provided in this division	179
and divisions (C)(1), (2), (3), (4), (5), and (6) of this section.	180
Except as otherwise provided in division (C)(1), (2), (3), (4), or	181
(5) of this section, assault is a misdemeanor of the first degree.	182

(1) Except as otherwise provided in this division, if the	183
offense is committed by a caretaker against a functionally	184
impaired person under the caretaker's care, assault is a felony of	185
the fourth degree. If the offense is committed by a caretaker	186
against a functionally impaired person under the caretaker's care,	187
if the offender previously has been convicted of or pleaded guilty	188
to a violation of this section or section 2903.11 or 2903.16 of	189
the Revised Code, and if in relation to the previous conviction	190
the offender was a caretaker and the victim was a functionally	191
impaired person under the offender's care, assault is a felony of	192
the third degree.	193

(2) If the offense is committed in any of the following	194
circumstances, assault is a felony of the fifth degree:	195

(a) The offense occurs in or on the grounds of a state	196
correctional institution or an institution of the department of	197
youth services, the victim of the offense is an employee of the	198
department of rehabilitation and correction, the department of	199
youth services, or a probation department or is on the premises of	200
the particular institution for business purposes or as a visitor,	201
and the offense is committed by a person incarcerated in the state	202
correctional institution, by a person institutionalized in the	203
department of youth services institution pursuant to a commitment	204
to the department of youth services, by a parolee, by an offender	205
under transitional control, under a community control sanction, or	206
on an escorted visit, by a person under post-release control, or	207
by an offender under any other type of supervision by a government	208
agency.	209

(b) The offense occurs in or on the grounds of a local	210
correctional facility, the victim of the offense is an employee of	211
the local correctional facility or a probation department or is on	212
the premises of the facility for business purposes or as a	213
visitor, and the offense is committed by a person who is under	214
custody in the facility subsequent to the person's arrest for any	215
crime or delinquent act, subsequent to the person's being charged	216
with or convicted of any crime, or subsequent to the person's	217
being alleged to be or adjudicated a delinquent child.	218

(c) The offense occurs off the grounds of a state	219
correctional institution and off the grounds of an institution of	220
the department of youth services, the victim of the offense is an	221
employee of the department of rehabilitation and correction, the	222
department of youth services, or a probation department, the	223
offense occurs during the employee's official work hours and while	224
the employee is engaged in official work responsibilities, and the	225
offense is committed by a person incarcerated in a state	226
correctional institution or institutionalized in the department of	227
youth services who temporarily is outside of the institution for	228
any purpose, by a parolee, by an offender under transitional	229
control, under a community control sanction, or on an escorted	230
visit, by a person under post-release control, or by an offender	231
under any other type of supervision by a government agency.	232

(d) The offense occurs off the grounds of a local	233
correctional facility, the victim of the offense is an employee of	234
the local correctional facility or a probation department, the	235
offense occurs during the employee's official work hours and while	236
the employee is engaged in official work responsibilities, and the	237
offense is committed by a person who is under custody in the	238
facility subsequent to the person's arrest for any crime or	239
delinquent act, subsequent to the person being charged with or	240
convicted of any crime, or subsequent to the person being alleged	241
to be or adjudicated a delinquent child and who temporarily is	242
outside of the facility for any purpose or by a parolee, by an	243
offender under transitional control, under a community control	244
sanction, or on an escorted visit, by a person under post-release	245
control, or by an offender under any other type of supervision by	246
a government agency.	247

(e) The victim of the offense is a school teacher or	248
administrator or a school bus operator, and the offense occurs in	249
a school, on school premises, in a school building, on a school	250
bus, or while the victim is outside of school premises or a school	251
bus and is engaged in duties or official responsibilities	252
associated with the victim's employment or position as a school	253
teacher or administrator or a school bus operator, including, but	254
not limited to, driving, accompanying, or chaperoning students at	255
or on class or field trips, athletic events, or other school	256
extracurricular activities or functions outside of school	257
premises.	258

(3) If the victim of the offense is a peace officer or an,	259
investigator of the bureau of criminal identification and	260
investigation, a firefighter, or a person performing emergency	261
medical service, or public utility worker, while in the	262
performance of their official duties or in the course of	263
employment, assault is a felony of the fourth degree.	264

(4) If the victim of the offense is a peace officer or an,	265
investigator of the bureau of criminal identification and	266
investigation, or public utility worker and if the victim suffered	267
serious physical harm as a result of the commission of the	268
offense, assault is a felony of the fourth degree, and the court,	269
pursuant to division (F) of section 2929.13 of the Revised Code,	270
shall impose as a mandatory prison term one of the prison terms	271
prescribed for a felony of the fourth degree that is at least	272
twelve months in duration.	273

(5) If the victim of the offense is an officer or employee of	274
a public children services agency or a private child placing	275
agency and the offense relates to the officer's or employee's	276
performance or anticipated performance of official	277
responsibilities or duties, assault is either a felony of the	278
fifth degree or, if the offender previously has been convicted of	279
or pleaded guilty to an offense of violence, the victim of that	280
prior offense was an officer or employee of a public children	281
services agency or private child placing agency, and that prior	282
offense related to the officer's or employee's performance or	283
anticipated performance of official responsibilities or duties, a	284
felony of the fourth degree.	285

(6) If an offender who is convicted of or pleads guilty to	286
assault when it is a misdemeanor also is convicted of or pleads	287
guilty to a specification as described in section 2941.1423 of the	288
Revised Code that was included in the indictment, count in the	289
indictment, or information charging the offense, the court shall	290
sentence the offender to a mandatory jail term as provided in	291
division (G) of section 2929.24 of the Revised Code.	292

If an offender who is convicted of or pleads guilty to	293
assault when it is a felony also is convicted of or pleads guilty	294
to a specification as described in section 2941.1423 of the	295
Revised Code that was included in the indictment, count in the	296
indictment, or information charging the offense, except as	297
otherwise provided in division (C)(4) of this section, the court	298
shall sentence the offender to a mandatory prison term as	299
provided in division (D)(8) of section 2929.14 of the Revised	300
Code.	301

(D) As used in this section:

302

(1) "Peace officer" has the same meaning as in section	303
2935.01 of the Revised Code.	304

(2) "Firefighter" has the same meaning as in section 3937.41	305
of the Revised Code.	306

(3) "Emergency medical service" has the same meaning as in	307
section 4765.01 of the Revised Code.	308

(4) "Local correctional facility" means a county,	309
multicounty, municipal, municipal-county, or multicounty-municipal	310
jail or workhouse, a minimum security jail established under	311
section 341.23 or 753.21 of the Revised Code, or another county,	312
multicounty, municipal, municipal-county, or multicounty-municipal	313
facility used for the custody of persons arrested for any crime or	314
delinquent act, persons charged with or convicted of any crime, or	315
persons alleged to be or adjudicated a delinquent child.	316

(5) "Employee of a local correctional facility" means a	317
person who is an employee of the political subdivision or of one	318
or more of the affiliated political subdivisions that operates the	319
local correctional facility and who operates or assists in the	320
operation of the facility.	321

(6) "School teacher or administrator" means either of the	322
following:	323

(a) A person who is employed in the public schools of the	324
state under a contract described in section 3319.08 of the Revised	325
Code in a position in which the person is required to have a	326
certificate issued pursuant to sections 3319.22 to 3319.311 of the	327
Revised Code.	328

(b) A person who is employed by a nonpublic school for which	329
the state board of education prescribes minimum standards under	330
section 3301.07 of the Revised Code and who is certificated in	331
accordance with section 3301.071 of the Revised Code.	332

(7) "Community control sanction" has the same meaning as in	333
section 2929.01 of the Revised Code.	334

(8) "Escorted visit" means an escorted visit granted under	335
section 2967.27 of the Revised Code.	336

(9) "Post-release control" and "transitional control" have	337
the same meanings as in section 2967.01 of the Revised Code.	338

(10) "Investigator of the bureau of criminal identification	339
and investigation" has the same meaning as in section 2903.11 of	340
the Revised Code.	341

(11) "Public utility worker" has the same meaning as in	342
section 2903.01 of the Revised Code.	343

Sec. 2929.04.  (A) Imposition of the death penalty for	344
aggravated murder is precluded unless one or more of the following	345
is specified in the indictment or count in the indictment pursuant	346
to section 2941.14 of the Revised Code and proved beyond a	347
reasonable doubt:	348

(1) The offense was the assassination of the president of the	349
United States or a person in line of succession to the presidency,	350
the governor or lieutenant governor of this state, the	351
president-elect or vice president-elect of the United States, the	352
governor-elect or lieutenant governor-elect of this state, or a	353
candidate for any of the offices described in this division. For	354
purposes of this division, a person is a candidate if the person	355
has been nominated for election according to law, if the person	356
has filed a petition or petitions according to law to have the	357
person's name placed on the ballot in a primary or general	358
election, or if the person campaigns as a write-in candidate in a	359
primary or general election.	360

(2) The offense was committed for hire.

361

(3) The offense was committed for the purpose of escaping	362
detection, apprehension, trial, or punishment for another offense	363
committed by the offender.	364

(4) The offense was committed while the offender was under	365
detention or while the offender was at large after having broken	366
detention. As used in division (A)(4) of this section, "detention"	367
has the same meaning as in section 2921.01 of the Revised Code,	368
except that detention does not include hospitalization,	369
institutionalization, or confinement in a mental health facility	370
or mental retardation and developmentally disabled facility unless	371
at the time of the commission of the offense either of the	372
following circumstances apply:	373

(a) The offender was in the facility as a result of being	374
charged with a violation of a section of the Revised Code.	375

(b) The offender was under detention as a result of being	376
convicted of or pleading guilty to a violation of a section of the	377
Revised Code.	378

(5) Prior to the offense at bar, the offender was convicted	379
of an offense an essential element of which was the purposeful	380
killing of or attempt to kill another, or the offense at bar was	381
part of a course of conduct involving the purposeful killing of or	382
attempt to kill two or more persons by the offender.	383

(6) The victim of the offense was a law enforcement officer,	384
as defined in section 2911.01 of the Revised Code, or a public	385
utility worker, as defined in section 2903.01 of the Revised Code,	386
whom the offender had reasonable cause to know or knew to be a law	387
enforcement officer or a public utility worker as so defined, and	388
either the victim, at the time of the commission of the offense,	389
was engaged in the victim's duties, or it was the offender's	390
specific purpose to kill a law enforcement officer or a public	391
utility worker as so defined.	392

(7) The offense was committed while the offender was	393
committing, attempting to commit, or fleeing immediately after	394
committing or attempting to commit kidnapping, rape, aggravated	395
arson, aggravated robbery, or aggravated burglary, and either the	396
offender was the principal offender in the commission of the	397
aggravated murder or, if not the principal offender, committed the	398
aggravated murder with prior calculation and design.	399

(8) The victim of the aggravated murder was a witness to an	400
offense who was purposely killed to prevent the victim's testimony	401
in any criminal proceeding and the aggravated murder was not	402
committed during the commission, attempted commission, or flight	403
immediately after the commission or attempted commission of the	404
offense to which the victim was a witness, or the victim of the	405
aggravated murder was a witness to an offense and was purposely	406
killed in retaliation for the victim's testimony in any criminal	407
proceeding.	408

(9) The offender, in the commission of the offense,	409
purposefully caused the death of another who was under thirteen	410
years of age at the time of the commission of the offense, and	411
either the offender was the principal offender in the commission	412
of the offense or, if not the principal offender, committed the	413
offense with prior calculation and design.	414

(10) The offense was committed while the offender was	415
committing, attempting to commit, or fleeing immediately after	416
committing or attempting to commit terrorism.	417

(B) If one or more of the aggravating circumstances listed in	418
division (A) of this section is specified in the indictment or	419
count in the indictment and proved beyond a reasonable doubt, and	420
if the offender did not raise the matter of age pursuant to	421
section 2929.023 of the Revised Code or if the offender, after	422
raising the matter of age, was found at trial to have been	423
eighteen years of age or older at the time of the commission of	424
the offense, the court, trial jury, or panel of three judges shall	425
consider, and weigh against the aggravating circumstances proved	426
beyond a reasonable doubt, the nature and circumstances of the	427
offense, the history, character, and background of the offender,	428
and all of the following factors:	429

(1) Whether the victim of the offense induced or facilitated	430
it;	431

(2) Whether it is unlikely that the offense would have been	432
committed, but for the fact that the offender was under duress,	433
coercion, or strong provocation;	434

(3) Whether, at the time of committing the offense, the	435
offender, because of a mental disease or defect, lacked	436
substantial capacity to appreciate the criminality of the	437
offender's conduct or to conform the offender's conduct to the	438
requirements of the law;	439

(4) The youth of the offender;

440

(5) The offender's lack of a significant history of prior	441
criminal convictions and delinquency adjudications;	442

(6) If the offender was a participant in the offense but not	443
the principal offender, the degree of the offender's participation	444
in the offense and the degree of the offender's participation in	445
the acts that led to the death of the victim;	446

(7) Any other factors that are relevant to the issue of	447
whether the offender should be sentenced to death.	448

(C) The defendant shall be given great latitude in the	449
presentation of evidence of the factors listed in division (B) of	450
this section and of any other factors in mitigation of the	451
imposition of the sentence of death.	452

The existence of any of the mitigating factors listed in	453
division (B) of this section does not preclude the imposition of a	454
sentence of death on the offender but shall be weighed pursuant to	455
divisions (D)(2) and (3) of section 2929.03 of the Revised Code by	456
the trial court, trial jury, or the panel of three judges against	457
the aggravating circumstances the offender was found guilty of	458
committing.	459

Section 2.  That existing sections 2903.01, 2903.11, 2903.12,	460
2903.13, and 2929.04 of the Revised Code are hereby repealed.	461