Man has been fascinated with fire for a long, long time. But man has also recognized that it’s pretty bad for everyone if we just let people light things on fire, especially when someone lights someone else’s property on fire. That’s where arson comes in. Arson, under ORC § 2909.03 prevents “knowingly” (meaning you were aware of the consequences of your action), through using fire or explosion, “causing or creating a substantial risk of physical harm to any property of another” in six discrete instances. First, a “substantial risk” is defined as “a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.” So, that means that your action must carry a strong risk of physical harm to another person’s property.
Let’s start with intent. As you could tell, some of the types of arson require you to have a “purpose” to defraud. Thus, you need to intend to light that property on fire or intend for it to burn or explode. With all the other types of arson, you just need to know that you’ll cause the strong possibility of physical harm to the property. But more importantly, you don’t even have to light the property on fire or blow it up for arson because you just have to create the risk. Like the case for Anthony Wills, who threw a firebomb that didn’t explode into the windows of a woman’s house. Despite this, he was charged with aggravated arson because it didn’t matter that Mr. Wills was too “inept” to create an effective firebomb. All that mattered was that he threw one because there was a substantial risk that it would have lit the house on fire. In cases that aren’t fraud, the property can’t be your own. It has to be someone else’s property. What if you’re married and you decide to torch your wife’s car? Well, that may still count as another’s property, at least according to the Ohio Court of Appeals, and you can be charged with arson because your actions caused that substantial risk to the property of another. Although, this issue has not been fully litigated, such as by considering a vehicle that is titled jointly, the leaning of the courts seems to favor counting it as the property of another.
As we all know, 9/11 changed everything, especially in the law. That’s how the “terrorism” statute came to be. Under ORC § 2909.24, you can’t commit a violent offense for the purpose of intimidating or coercing civilians, influencing government policy, or affecting government conduct. Generally, the specified offenses are violent felonies or attempts, conspiracies, or complicity to such offenses. I’ll give a brief list, but this isn’t exhaustive. These are homicides, assaults, kidnappings, sex offenses, arsons, burglaries, robberies, riots, domestic violence, intimidation, or retaliation. In looking this up, I couldn’t find a single instance where an Ohio state court charged someone with this. That’s probably because there are federal statutes that hit this crime a lot harder. At least, that was the case for Damon M. Joseph, a man who stockpiled weapons in an attempt to carry out a terrorist attack on a Jewish synagogue because of his devotion to ISIS, the Islamic extremist terrorist group. The point is that Ohio state statutes might cover terrorism but they don’t necessarily get used all that often.
Arrested or charged for arson or terrorism in the Cincinnati or Northern Kentucky area?
If you or someone you know was recently arrested or charged for murder or manslaughter, you need an experienced criminal defense attorney. Call Alex and Tad today at 513-929-9333, or request a free consultation or guide below.
Attempt, Conspiracy, and Complicity
Traditional affirmative defenses:
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Attempt: Impossiblity or Abandonment
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Conspiracy: Impossiblity or Abandonment
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Complicity: Renunciation/Abandonment
So, up until now, we’ve been talking about when someone actually successfully commits a crime. But that’s not always the case. What about when the perpetrator tries to commit the crime but fails? Or how about the people who help him set it up or assist him in some way but don’t actually commit the crime themselves?
Attempt is found in ORC § 2923.02. It prevents a person from “purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense,” engaging “in conduct that, if successful, would constitute or result in the offense.” Summed up, this means that you tried to commit a crime but didn’t succeed. As far as intent, the statute sounds kind of tricky, but it isn’t if you really think about it. All that it means is that whatever intent was needed for the crime is also needed for the attempt. Take murder, for example. We talked about murder requiring “purpose,” as in you intend to kill someone with your actions, i.e. shot your gun at them. Well, for attempted murder, you still had the same intent to kill someone when you shot at them, so you have the intent necessary for attempt.
On the subject mens rea, with respect to Attempt, you could not be convicted of attempt for an offense that requires a mens rea of negligence or recklessness. Attempt requires a mental state of purposely or knowingly. You cannot purposely or knowingly be reckless or negligent. This is obvious for negligence, which you might think of as carelessly, unknowingly, or unintentionally causing harm or damage. Recklessness is a closer call, but if you are engaged in reckless behavior that you should have known was reckless, your mental state will likely be bumped up to knowingly. For example, when you recklessly speed through the construction zone and narrowly miss the construction worker picking up cones, you cannot be charged with attempted reckless homicide or attempted negligent homicide for the near miss.
But what kind of act do you need to perform to be guilty of attempt? In other words, what is “too far?” The Ohio courts have settled on declaring that any act which is a “substantial step” towards completion of the underlying offense counts as an act sufficient to make someone guilty of attempt. This act has to be the kind of thing that definitively shows the actor’s true purpose. For example, in State v. Figueroa, a man at a gas station charged the female supervisor of the gas station, punched her in the face and then held a knife towards her. There, the court found that these actions indicated his intent to commit felonious assault because his actions demonstrated that he was willing to cross the line into inflicting serious physical harm to the woman.
It’s worth talking about the specific defenses for attempt, even though we’ll address that later in the defense section, because it’s helpful to know what will and won’t serve as a good defense. Historically, offenders raised the defense of factual or legal impossibility. The classic illustration of factual impossibility is the attempted murder with a gun which cannot fire because of broken firing pin. While it was factually impossible to carry out the murder with the broken weapon, under Ohio law, this will not be a successful defense. The defense of legal impossibility also fails under the current revision of the statute. Legal impossibility occurs in a sting operation where the police set you up to receive stolen property. Of course, the property isn’t actually stolen because the police own it. Nevertheless, Ohio law specifically states that it is no defense to a charge of attempt where the target offense was either factually or legally impossible, so long as the offender believed the offense could be committed.
What about starting the attempt but abandoning it? If you voluntarily and completely give up your criminal purpose and just walk away from the whole thing without any intention to resume it, then you might have the defense of abandonment. ORC § 2923.02 states that this must be “a complete and voluntary renunciation of the actor’s criminal purpose.” In City of Youngstown v. Osso, a man who began kicking the door at his ex-wife’s house but then left when his wife and her sister observed him through the window, successfully abandoned the offense of domestic violence and could not be convicted of attempt where he completely and voluntarily renunciated any criminal purpose.
Under a slightly different set of facts, where the ex-wife says she will call the police, the defense would likely fail because it would no longer be voluntary. Leaving because things got too difficult or you were worried about getting caught by the cops isn’t enough. For example, Mr. Marcum pointed a rifle at his brother and tried to shoot to him. Unfortunately for him (and fortunately for the brother), he forgot to put a bullet in the chamber. He then stopped trying to shoot him because his brother and deputies physically subdued him. Mr. Marcum tried to raise abandonment as a defense, but the court had none of it. Because Mr. Marcum only abandoned his plan after he realized it was too difficult to kill his brother without a bullet, it was neither a “complete” nor “voluntary renunciation.”
Here’s another rule about attempt—you can’t be convicted of both the attempt and the actual crime. If you actually follow through and kill someone, you can’t be charged with both murder and attempted murder. The same goes for conspiring to commit a crime and the attempt. You’re only on the hook for one.
But what exactly is “conspiracy?” Basically, ORC § 2923.01 prevents you from purposefully planning or helping someone commit a certain offense or agreeing to act in a way that “facilitates the commission” of certain offenses. The offenses include prostitution, robbery, murder, kidnapping, abduction, arson, burglary, drug trafficking, corrupt activity, and many others. Unlike attempt, where you perform an act that leads to the crime, this is really about planning out the crime in advance. Because conspiracy is a separate offense from the offense intended to be carried out, one can be charged for conspiracy whether or not the offense is successfully carried out. It follows then that you could be convicted for both the conspiracy and the offense (or attempted offense). So, to conspire, you’ve got to (1) plan or aid in the plan of those specific offenses or (2) agree with others to commit the offense. If you agree, then you’re conspiring, even if the others don’t intend to go along with it, which allows an offender to be set up for conspiracy by law enforcement. And you don’t even have to know who you’re conspiring with, so long as you have reason to believe that who you’re conspiring with is conspiring with other people for the offense. Take, for example, Mr. Milo who hired a hitman out on his own brother. Even though he didn’t directly contact every party involved, he still had reason to believe that his initial phone call to get someone else to set up the hit on his brother was going to facilitate a murder. Thus, he conspired.
As far as intent, you need purpose, or intent to enter the agreement and to achieve whatever crime underlies that agreement. And for the act, the statute states that there must be a “substantial overt act in furtherance of the conspiracy” for a conspiracy conviction. “Substantial” means that it shows that the actor has the purpose to complete the conspiracy. The “overt act” need not be an illegal act itself. For example, in a conspiracy to commit a murder, legally obtaining a weapon could be an overt act. The overt act must also be an open or outward act, without attempt at concealment. In State v. Papp, Tim Papp sent a letter to some inmates trying to get them to carry out a hit on a prosecutor in Lorain County for $100,000. The letter was “overt” because he sent it without concealment. And it was substantial because he intended to coerce and convince the inmates to carry out the hit by offering the $100,000.
And you can get into issues with multiple crimes and multiple parties. First, even if you conspire to commit multiple crimes with the same people in one agreement, you can only be charged with conspiracy once. Provided that you had one goal in mind to carry out under one agreement, a conspiracy charge is possible. If there are multiple parties involved, the question arises as to whether there are multiple conspiracies or just a single one. We won’t get into the weeds for most violent crimes because those are a bit more straightforward. Provided that you’re entering into an agreement with at least one other person to plan or help someone commit a violent offense, you need to watch out for conspiracy charges.
How is conspiracy proved? Frequently, the statement of a co-conspirator is introduced as evidence of the agreement element. Generally, such statements might be inadmissible as hearsay, which is defined as an out of court statement offered as evidence of the truth asserted by the statement. For example, the statement that, “Susan told me that the getaway car was Tom’s Ford Mustang” would generally be inadmissible to prove that the getaway car was Tom’s Mustang. However, some statements that seem like “hearsay” are expressly declared as not hearsay by the Rules of Evidence. One type of statement that is not hearsay by rule is “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy” Consider the statement by John, “Susan told me if I gave her a gun, she and Sam would agree to kill Betty.” This would be hearsay if offered to prove that either Susan or Sam agreed to kill Betty. However, so long as there was proof of the conspiracy, independent of this statement, the statement could be used to prove that Susan, Sam, and John were involved in the conspiracy.
For co-conspirators, these statements are admissible and can be used against any member in the conspiracy. But if the statement was not made during and in furtherance of that conspiracy, then it is inadmissible. However, you cannot be convicted under Ohio law based only on the statements of co-conspirators without other evidence, but these statements could help sway a jury who have access to other pieces of evidence.
Impossibility also is not a defense to conspiracy, just like it wasn’t for attempt. Abandonment can be a defense, but it requires a bit more action to abandon a conspiracy, and it must occur before any illegal acts are committed. It’s not enough to get cold feet and wait in the car while your co-conspirators proceed to burglarize the house. One way to abandon requires that you inform all other conspirators of your abandonment, or inform law enforcement of the existence of the conspiracy and your participation in the conspiracy. A conspiracy may also be abandoned by all parties to the conspiracy prior to committing any offense that was an object of the conspiracy. Similar to abandonment is the defense of “renunciation” under ORC § 2923.01(I)(1) if you act to “thwart[] the success of the conspiracy” through your “complete and voluntary renunciation.” This defense basically requires that you prevent the offense from taking place, and your decision to do so must be voluntary. In this context “voluntary” really means you had a genuine change of heart not simply an increased fear that you might get caught. For example, your renunciation of a conspiracy to commit a burglary would not be voluntary if it came only after you arrived at the house and heard the snarling growl of a pit bull, or got spooked by the sound of a siren.
Now, let’s move onto “complicity” or “accomplice liability” under ORC § 2923.03. Historically, this statute punished people who helped someone else commit a crime, in one way or another. Let’s start with the language of the statute in order to figure out what “complicity” is. The statute prohibits the four following behaviors, if you do so with a particular intent: (1) procuring or soliciting someone to commit a criminal offense, (2) “aid or abet” someone “in committing the offense,” (3) conspiracy, (4) or causing “an innocent or irresponsible person to commit the offense.” For intent, you need to have the same kind of intent that you would need if you committed the underling offense. So, if you’re complicit to murder, that means you would need to have the same intent you’d need for the murder—purpose. And just like we always say with intent, you can figure out someone’s intent to be complicit in a crime through the facts and circumstances. I’ll go over this in some examples after we go through the four categories.
“Solicitation” sounds like what you think it prohibits—asking someone to commit a crime for you. If I ask someone to kill my wife and I intended for that person to kill my wife, I just solicited them to commit murder on my behalf. Next is “aiding and abetting.” Basically, you have to actually do something that helps the criminal actor commit the offense. This could be a physical act, like handing someone the murder weapon, or verbal conduct, like teaching someone how to break into a building to rob it. To show you, read this example of aiding and abetting from 1996. In State v. Johnson, the defendant drove around a gang member who ended up accidentally killing a three-year-old child in an act of vengeance against a rival gang. Just like us, the Court was puzzled that “aid and abet” had no real definition. But it found that simply being present at the crime wasn’t enough to qualify. Indeed, you had to actually do something that helped the criminal commit the crime. In Johnson, the defendant drove the shooter around from place to place until finding the site of the tragic shooting. This act helped the killer so much that it constituted aiding and abetting, and the court inferred his intent from the fact that he acted along with the killer’s purpose to try and kill a rival gang member in vengeance.
The state can try coconspirators as accessories, meaning that they were complicit in the crime. You already read about conspiracy, so let’s talk about the final section—causing an innocent agent to commit a crime. If you use a patsy to do something illegal for you when they don’t know it, then you’re guilty under the Ohio complicity statute. Again, you need the same intent as the underlying crime. Here’s an example; a man hatched a plan to have his minor son start a fire in his estranged wife’s dryer vent to burn her alive in State v. Sheldon. It seemed that Mr. Sheldon hatched a comprehensive plan to kill his wife by fire and wanted one of his sons to sneak over and set her house on fire. His sixteen-year-old son pretended to play along, just long enough to get himself and his brothers away from the firebug. The court found that this was enough to show that Sheldon had acted with the purpose to convince an innocent party into setting his estranged wife on fire. Thus, he was complicit in attempted murder.
As far as punishment, just remember that accomplices are subject to the same penalties and punishment as the principal offender who committed the crime. And just like the other offenses we listed, you can make a complete and voluntary renunciation as a defense.
Arrested or charged for attempt, conspiracy or complicity in the Cincinnati or Northern Kentucky area?
If you or someone you know was recently arrested or charged for murder or manslaughter, you need an experienced criminal defense attorney. Call Alex and Tad today at 513-929-9333, or request a free consultation or guide below.
The Rest of the Offenses, Including Aggravated Riot, Domestic Violence, Corrupt Practices, Gang Participation, and Interference with Custody
Main affirmative defenses:
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Interference with custody: Actor reasonably believed that her conduct was necessary for the taken child, who is either under eighteen years old or a mentally-handicapped adult under twenty-one, to avoid harm to her health or safety.
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Gang Participation: Mistake of Fact
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Corrupt Practices: Duress, if applicable
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Domestic Violence: Proper and Reasonable Parental Discipline
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Aggravated Riot: Mistake of Fact
The rest of these offenses don’t fit into a neat category like the others, although most of them tend to disrupt the public peace. This makes them good enough to throw together.
First, let’s talk about “aggravated riot” under ORC § 2917.02. Like all aggravated offenses, this is just a worse form of a riot. There are two forms of this type of riot: (1) disorderly conduct under certain circumstances or (2) prison-specific riots. The two forms are identical except that the second is applicable only to an inmate in a detention facility.
But what is “disorderly conduct?” Under ORC § 2917.11, disorderly conduct is a broad offense covering certain reckless behaviors or drunken behaviors, including fighting, threats, unnecessary noise, taunts, insults, hindering someone’s right of way, and other general disturbances of the peace. Basically, “disorderly conduct” is a codeword for acting like jackass. If you do any of those behaviors recklessly, it means you just didn’t care and decided to act like an asshole without regard to the consequences. And if you voluntarily become intoxicated and engage in those behaviors, then you could also be charged with disorderly conduct.
Violation of the offense occurs if you engage in disorderly conduct with at least four other people with a purpose to either “commit or facilitate the commission of” a felony or violent crime, or where the offender engages in disorderly conduct with four others and is carrying a deadly weapon or dangerous ordnance and knows he’s carrying one. Since we mentioned that “disorderly conduct” requires “reckless” intent, the difference between that and this aggravated rioting is that you need to have a purpose—intent to do something—to cause a violent crime or felony. For the deadly weapon or dangerous ordnance prong, he must “know” that he has this when he’s engaging in the disorderly conduct.
Now, for an example. Mr. Henderson showed up to an argument between some women in the street that he knew and proceeded to encourage everyone to fight, while hitting at least two bystanders with a firearm. He told the crowd of women arguing, “Why is you all standing here? Go beat those bitches up.” This prompted an unrestrained brawl, resulting in multiple injuries. The Court of Appeals upheld Mr. Henderson’s conviction because he sparked several violent felonies with his encouragement and did so “knowingly” with his firearm.
Let’s talk about domestic violence next. Under ORC § 2919.25, domestic violence is causing or attempting to cause any physical harm to a family or household member when you know your action will cause any kind of physical harm, or recklessly causing serious physical harm to a family or household member. Finally, it also prohibits using threat of force to cause someone in your family or household to believe that physical harm is imminent. Remember, “physical harm” can be any injury, illness or psychological impairment inflicted to someone.
Regarding Domestic Violence, police officers are encouraged by Ohio law to use arrest as a means of stopping it after it has allegedly occurred. Under § 2935.03(B)(3)(b), a cop just needs “reasonable grounds” to believe domestic violence has occurred in order to arrest the aggressor for it. This is a minimal standard.
You should also know that family or household members are viewed broadly by the law. In fact, it can even include people who aren’t directly related or currently married, like an ex-wife or your current girlfriend. In fact, Ohio extends domestic violence protections to certain “cohabiting” couples who act like a family and have the level of mutual love and respect for one another that is comparable to most married couples. It goes to show that simply not being married or directly related can’t stop a domestic violence charge.
Let’s go over common problems that prosecutors face when charging someone with domestic violence. They worry that the abused spouse or family member doesn’t cooperate because of the complex relationship they have with the alleged abuser. Without getting too deep in the weeds, I’ll let you know that the Sixth Amendment to the US Constitution generally guarantees the right to confront your accuser when they’re testifying against you. But an exception exists when the statements are considered “nontestimonial,” such as statements made for the primary purpose of addressing an ongoing emergency. Otherwise, you have the right to have your attorney cross-examine someone who gives testimony against you in court. The prosecution can’t just give the judge or jury statements that your wife said without giving you a right to cross-examine her in court.
Ohio statutes target “a pattern of corrupt activity,” which is essentially organized crime. The series of statutes, which run from ORC § 2923.31 to 2923.36, were modeled after federal RICO statutes used to target the mafia, gangs, and other criminal enterprises. First, the statute targets an “enterprise,” which is any group of persons, entity, or organization that carries out illegal activity. It can be as few as two people to as many as five hundred people. Specifically, “corrupt activity” is “engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in” a huge list of offenses. Without addressing every possible offense, know that it includes most of the violent crimes we’ve talked about in this book, including manslaughter, murder, arson, assault, robbery and terrorism. Drug dealing, various forms of fraud, and types of bribery are also covered under “corrupt activity.”
To constitute a “pattern,” the corrupt activity must be two or more incidents that are related to the same enterprise but not so closely related as to constitute a single event. It’s important that the activities occur separately, but they must be related and amount to continued criminal activity. It’s easier to understand what is enough to meet the requirements of the statute with an example. In State v. Grimm, a husband and wife stole bronze cemetery ornaments to sell for a profit . The evidence confirmed at least ten specific thefts of property with a value exceeding $500 each. Because the couple committed separate thefts over the span of ten days, this time was stretched out long enough that it made sense to classify these thefts as separate events.
The statute also covers three distinct patterns of corrupt activity. First, you cannot be employed by any enterprise and directly or indirectly participate in collecting unlawful debts or engaging in the corrupt activity I mentioned. So, if you’re an employee of the mafia and carry out a hit, you could be hit with the corrupt activity statute. Importantly, this requires no intent. That means that if you’re a member of a corrupt enterprise and you end up directly or indirectly participating in the organization’s dirty work, you could be charged. Next, you can’t own an interest in the enterprise, any control of it, or any real property or land supported by the corrupt activity that the enterprise engages in. Finally, the statute targets money launderers of the enterprise. If you use or invest, directly or indirectly, profits from the enterprise, then you can be charged.
Next, let’s go over ORC § 2923.41—
participation in a criminal gang. It’s very similar to the “corrupt practices statute.” It prohibits someone from actively participating in a criminal gang knowing that the gang engages in a pattern of criminal gang activity. The person must also purposely further, assist, promote or commit criminal conduct. A “criminal gang” is any formal or informal group or organization of three or more people that has a common name, sign, symbol or color that engages in a “pattern of criminal gang activity”—members commit, attempt, conspire or are complicit in at least two or more felonies, violent crimes or specified juvenile or drug offenses. The participation must be active participation. Just having a gang symbol on some clothing at home isn’t enough but attending a gang meeting is.
Finally, there is ORC § 2919.23 or interference with custody. This prohibits someone from taking, keeping, harboring aiding, abetting, enticing or causing someone to leave custody of a parent, guardian, or custodian without consent when the criminal actor knows that what they’ll do will cause a non-consented leave from custody. “Custody” in this statute is with respect to a child under eighteen or a handicapped child under twenty-one, or a person committed by law to an institution.. You can raise an affirmative defense that you reasonably believed that you needed to take the child or person from custody because it was necessary to keep them safe. And if you told the child or person’s caretakers in a reasonable time that you took them, where you took them and why, that’s also a defense.
Arrested or charged for one of the violent crimes offenses above in the Cincinnati or Northern Kentucky area?
If you or someone you know was recently arrested or charged for murder or manslaughter, you need an experienced criminal defense attorney. Call Alex and Tad today at 513-929-9333, or request a free consultation or guide below.
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