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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

JURY INSTRUCTIONS (025)

Also see Individual offenses and defenses; Jury Matters; Lesser Included Offenses; Verdicts; Accomplice, Testimony of.

 

Court's obligation to instruct adequately

Requests for specific instructions

Burden of proof; Presumptions

Unanimity

Missing witness instructions; Defendant fails to testify

Further instructions during deliberations

Contemporaneous objection requirement

Appellate review

Other issues

 

Criminal Rule 30 -- Instructions.

R.C. 2938.08 -- Must instruct on presumption of innocence and reasonable doubt.

R.C. 2945.10 and 2938.11 -- Order of proceedings of trial.

R.C. 2945.11 -- Charge to the jury as to law and fact.

Court's obligation to instruct adequately

State v. Powell, 176 Ohio App. 3d 28, 2008-Ohio-1316, ¶13 – "A criminal defendant is entitled to have the trial court give the jury complete and accurate instructions on all of the issues of law raised by the evidence." Citing State v. Williford (1990), 49 Ohio St. 3d 247, 251; Marshall v. Gibson (1985), 19 Ohio St. 3d 10.

State v. Triplett, 192 Ohio App. 3d 600, 2011-Ohio-816 – Muddled instructions lead to reversal in a case where a single blow lead to death and the defendant claimed it was struck in defense of his sister. Instruction on non-deadly force was required because the force, not its result is the focus. Furthermore, instructions were “commingled” on self defense, defense of another, and duty to retreat, and failed to define the duty to retreat.

State v. Ruppart, 187 Ohio App. 3d 192, 2010-Ohio-1574 – Aggravated assault is an offense of lesser degree to felonious assault, not a lesser-included offense. The trial court erred by instructing the jury that if they found the defendant not guilty of felonious assault they were to further consider whether he was guilty of aggravated assault. A verdict was returned finding the defendant not guilty of felonious assault but guilty of aggravated assault. Reversed as plain error. The verdict was internally inconsistent. While inconsistent verdicts on different counts are generally not the basis for reversal, this reflected different responses within the same count.

State v. Mays, 161 Ohio App. 3d 175, 2005-Ohio-2609 -- Plain error found in additional instructions to jurors after they handed down a verdict finding the defendant guilty of felonious assault without considering aggravated assault. Aggravated assault is an offense of lesser degree and not a lesser included offense. It is not an offense to be considered only if the jury concludes the elements of felonious assault were not proven. Error also extends to the related felony-murder count, as that was premised on commission of a first or second degree felony. Vague indictment also faulted for not expressing which counts were premised on beating an elderly man with a digital camera and which on poisoning him with antifreeze.

State v. Perry, 101 Ohio St. 3d 118, 2004-Ohio-297 -- Syllabus: "The failure of the trial court to maintain written jury instructions with the 'papers of the case' in violation of R.C. 2945.10(G) is not structural error."

State v. Morton, 147 Ohio App. 3d 34, 2002-Ohio-813, ¶25-33 -- Information put on a chalkboard during instructions was not preserved as a part of the record. Affirmed, since there was no objection as to contents at the time, or claim of error pertaining to that portion of the charge.

State v. Smith, 148 Ohio App. 3d 274, 2002-Ohio-3114 -- After discussing the manner in which a codefendant's guilty plea may be referred to by the parties and instructions that may be used, held that the defendant's strategic decision to comment on the plea and incomplete effort to call the codefendant as a witness do not warrant reversal.

State v. Comen (1990), 50 Ohio St. 3d 206 -- Syllabus: "1. Before the taking of evidence, a trial court may give preliminary instructions to the jury appropriate for the jury's guidance in hearing the case. A court may also give cautionary instructions throughout the trial. (Crim. R. 30[B], construed.) 2. After arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder. (Crim. R. 30[A], construed.)"

State v. Smith (1993), 87 Ohio App. 3d 480 -- (1) Criminal Rule 30 requires complete, verbal instructions at the conclusion of arguments, irrespective of whether written instructions are furnished. (2) Failure to include a copy of written instructions, which were supposedly given to the jury but were not read aloud at the end of the trial, was a violation of due process in that the defendant was foreclosed from appellate review. Compare State v. Owens (1994), 91 Ohio App. 3d 479.

Avon Lake v. Anderson (1983), 10 Ohio App. 3d 297, 299 -- Jury instructions must be tailored to the facts of each case.

State v. Lindner (1907), 76 Ohio St. 463 -- An instruction is properly refused when the issue is not raised by the evidence.

State v. Bridgeman (1977), 51 Ohio App. 2d 105 -- May be plain error if court fails to instruct on the elements of the crime charged. Also see State v. Brewster (1976), 1 Ohio Ops. 3d 372; State v. Adams (1980), 62 Ohio St. 2d 151 (Not plain error per se).

State v. Schmidt (1995), 100 Ohio App. 3d 167 -- A court may instruct a jury on a lesser included offense over the objection of the defendant. Compare State v. Clayton (1980), 62 Ohio St. 2d 45, fn. 2.

State v. Proctor (1977), 51 Ohio App. 2d 151 -- Instruction on affirmative defense must be given when supported by the evidence.

State v. Jacobs (1995), 108 Ohio App. 3d 328, 334-335 -- Amplification of statutory definitions is inadvisable, hence it was not error to refuse to give requested special instruction on "receiving." However, court's subsequent failure to respond to a jury question concerning definition of receiving was prejudicial error.

State v. Lee (1990), 66 Ohio App. 3d 773 -- Content of preliminary instructions must be repeated in the final charge to the jury.

Sullivan v. Louisiana (1993), 508 U.S. 275 -- The failure to include a proper instruction on reasonable doubt amounts to a denial of the right to jury trial. Failure to include a proper instruction makes the jury's verdict void and consequently harmless error analysis may not be applied. At p. 2080: "...(A)lthough a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence." Compare Neder v. United States (1999), 527 U.S. 1 applying harmless error analysis to failure to instruct on a materiality element in a fraud case.

Weeks v. Angelone (2000), 528 U.S. 225, 120 S.Ct. 727 -- In a capital case, it was constitutionally sufficient for the judge to respond to a jury question by directing their attention to a portion of the constitutionally adequate written instructions.

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Requests for specific instructions

State v. Barron (1960), 170 Ohio St. 267 -- When special instructions submitted by a party are correct, pertinent to the issues before the jury, and are presented in a timely manner, they must be included at least in substance, in the general charge. Also see Cincinnati v. Epperson (1969), 20 Ohio St. 2d 59; State v. Nelson (1973), 36 Ohio St. 2d 79; State v. Rivers (1977), 50 Ohio App. 2d 129.

State v. Scott (1987), 41 Ohio App. 3d 313, 317 -- "The court need not give a proposed instruction in the precise language requested by its proponent, even if it properly states an applicable rule of law. The court retains discretion to use its own language to communicate the same legal principles."

State v. Stanton (1968), 15 Ohio St. 2d 215 -- Court is not to identify which party requested that a specific instruction be given.

State v. Hill (1996), 108 Ohio App. 3d 279 -- While the court properly gave instructions on voluntary manslaughter over defense objection, it was error to do so using language stating the defendant was "asserting this voluntary manslaughter defense as an inferior degree to the crime of murder." Defense claimed self-defense, and language suggested defendant would settle for voluntary manslaughter.

State v. Campbell (1991), 74 Ohio App. 3d 352, 357 -- Where the defendant is entitled to an instruction on a lesser included offense, he need not submit a written request for such instruction.

State v. Mack (1998), 82 Ohio St. 3d 198 -- Court refused to instruct on aggravated assault as a lesser included to felonious assault. (1) Defendant did not have to submit an aggravated assault instruction in writing to preserve issue for appeal. Initial request citing case law and reference back at conclusion of charge was sufficient. (2) For an instruction on the lesser offense there must first be evidence that the provocation was reasonably sufficient to bring on a sudden passion or a sudden fit of rage, then evidence that the accused acted under such influence. See State v. Shane (1992), 63 Ohio St. 3d 630.

State v. Clark (1995), 101 Ohio App. 3d 389, 424-425 -- Though defendant was entitled to an instruction to the effect that the testimony of police officers is to be judged by the same standards applicable to other witnesses, [Cf. State v. Broadus (1984), 14 Ohio App. 3d 443, 445], failure to provide the court with a written instruction as requested waived error.

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Burden of proof; Presumptions

Sandstrom v. Montana (1979), 442 U.S. 510 -- An instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts violates the Fourteenth Amendment's requirement that the state prove every element of an offense beyond a reasonable doubt, if the jury may interpret the presumption either as conclusive, or as shifting the burden of persuasion to the defendant.

County Court of Ulster County v. Allen (1979), 442 U.S. 140 -- Presumption set forth in a statute constitutionally acceptable as does not place a burden of proof on the defendant.

State v. Price (1979), 60 Ohio St. 2d 136 -- Whether an instruction relieves the state of part of its burden of proof must be determined by reference to the charge as a whole.

State v. Doran (1983), 5 Ohio St. 3d 187 -- Paragraph two of the syllabus: "A jury instruction which fails to allocate any burden of proof on the affirmative defense of entrapment is inherently misleading and confusing and is prejudicial error."

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Unanimity

State v. Gardner, 118 Ohio St. 3d 420, 2008-Ohio-2787 – As to the mens rea element that the offender trespass with the intent to commit any criminal offense, the jury need not be instructed that they must be unanimous as to what that offense is, though it would be the better practice to instruct on the elements of the predicate offense. Schad v. Arizona (1991), 501 U.S. 813, followed. Though due process considerations apply, there is no right under the federal constitution to a unanimous jury verdict in a criminal case. That right exists by rule in Ohio. The majority draws a distinction between alternate means, and multiple acts statutes. See dissent.

State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, ¶188 -- "Jurors need not agree on a single means for committing an offense." Instruction failed to state the jury must unanimously agree an aggravated murder was based on the same predicate offense.

State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, ¶ 78-84 -- Neither plain error nor ineffective assistance of counsel found in the failure to include an unanimity instruction in a capital trial involving multiple theories of culpability. There was no patchwork verdict suggesting some jurors relied upon one theory and others an alternative.

State v. Thomas (1988), 40 Ohio St. 3d 213 -- A jury is not required to unanimously agree that the defendant is not guilty of the crime charged before it may consider a lesser included offense.

State v. Carter (1985), 23 Ohio App. 3d 27 -- It is error to instruct the jury that they must find the defendant not guilty of felonious assault before considering the lesser offense of aggravated assault. Also see State v. Shaw (1990), 65 Ohio App. 3d 821 -- Error to instruct the jury not to consider assault until it had arrived at a verdict defendant was not guilty of felonious assault. State v. Osburn (1983), 9 Ohio App. 3d 343 (voluntary manslaughter and more serious homicide charges).

State v. Brooks (1996), 75 Ohio St. 3d 148, 159-162 -- It was error to instruct the jury at the penalty phase of a death penalty trial "You are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence." At p. 162: "In Ohio, a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors. Jurors from this point forward should be so instructed." See State v. Brooks (1997), 118 Ohio App. 3d 444 for what happened next in this case.

State v. Avery (1998), 126 Ohio App. 3d 36, 46-49 -- Normally a general unanimity instruction will insure that the jury is unanimous on the factual bases for criminal liability. The Due Process Clause does, however, place limits on the state's capacity to define different courses of conduct or states of mind as alternative means of committing a single offense.

State v. Benge (1996), 75 Ohio St. 3d 136, 139-140 -- It was error to instruct the jury not to consider voluntary manslaughter if they agreed all the elements of aggravated murder had been proven. However, since counsel failed to object, and there was little evidence in support of the mitigating factor, the court refuses to reverse as plain error.

State v. Roberts (1996), 109 Ohio App. 3d 634 -- It was plain error to instruct the jury that they could consider the offense of lesser degree of aggravated assault only if they concluded the state had failed to prove one or more of the elements of felonious assault.

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Missing witness instructions; Defendant fails to testify

Silveous v. Rensch (1969), 20 Ohio St. 2d 1969 -- Missing witness instruction: "A special instruction prior to argument, stating that when it appears a litigant knows of the existence of a material witness, and such witness is within the control of the litigant whose interest would naturally be to produce him, and without satisfactory explanation he fails to do so, the jury may draw an inference that the testimony would not be favorable to him, is error where the jury is not also instructed regarding the facts to be considered in determining what evidence a litigant would naturally produce at trial." (paragraph one of the syllabus).

United States v. Anders (1979), 602 F. 2d 823 -- Missing witness instruction not required when has not been shown that the government possessed the sole power to produce the witness. Also see United States v. Montoya (10th Cir. 1982), 676 F. 2d 1099.

State v. Calhoun (1981), 2 Ohio App. 3d 472, 474 -- Missing witness instruction not required when informant could have been called as a witness by either party. Also see United States v. Anders (8th Cir. 1979), 602 F. 2d 823; United States v. Montoya (10th Cir. 1982), 676 F. 2d 1099.

Carter v. Kentucky (1981), 450 U.S. 288 -- Upon defendant's request the jury must be instructed that defendant's failure to testify may not be considered for any purpose. Overrules State v. Nelson (1973), 36 Ohio St. 2d 79, and State v. Perod (1968), 15 Ohio App. 2d 115 which had held otherwise. Also see State v. Fannings (1982), 1 Ohio St. 3d 19.

State v. Rollins (1976), 49 Ohio App. 2d 330 -- Defendant may not prevent court from instructing that his failure to testify may not be considered for any purpose.

State v. Kirk (1995), 72 Ohio St. 3d 564 -- Paragraph two of the syllabus: "Where a defendant is not entitled to call a witness to the stand because of the witness' intention to assert the Fifth Amendment privilege against self-incrimination, the defendant is entitled to request an instruction that the jury should draw no inference from the absence of the witness because the witness was not available to either side."

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Further instructions during deliberations

State v. Clifton, 172 Ohio App. 3d 86, 2007-Ohio-3392 -- In response to a question requesting a definition of "adversely affected" in an OVI case the judge commented that he was fearful the jury was focusing on something other than the elements, that this "disappoints" the court, and that the "the last thing anybody wants to see here is after two or three days of deliberations that we have to call another jury." Reversed as plain error.

State v. Carter (1995), 72 Ohio St. 3d 545 -- Paragraph one of the syllabus: "Where, during the course of its deliberations, a jury requests further instructions, or clarification of instructions previously given, a trial court has discretion to determine its response to that request. (Cincinnati v. Epperson [1969], 20 Ohio St. 2d 59...paragraph three of the syllabus, overruled.)

State v. Howard (1989), 42 Ohio St. 3d 18 -- When the jury is deadlocked, it is improper to give the traditional supplemental "Allen charge," based on Allen v. United States (1896), 164 U.S. 492. Instead, the second paragraph of the syllabus sets forth a supplemental charge to be given in such circumstances. For discussion of comparable charge at the penalty phase of a death penalty trial, see Lowenfield v. Phelps (1987), 484 U.S. 231.

State v. Andricks (1996), 111 Ohio App. 3d 93 -- Reversal as plain error where instruction given to deadlocked jury deviated from the language set forth in the syllabus of State v. Howard (1989), 42 Ohio St. 3d 18.

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Contemporaneous objection requirement

State v. Gravin (1975), 44 Ohio App. 2d 303, 313 -- Counsel must enter contemporaneous objection to instructions either as given, or which the court refuses to give, in order to preserve issue for appeal. Also see State v. Durkin (1981), 66 Ohio St. 2d 158; State v. Williams (1977), 51 Ohio St. 2d 112; State v. Lane  (1976), 49 Ohio St. 2d; State v. Lockett (1976), 49 Ohio St. 2d 48; State v. Roberts (1976), 48 Ohio St. 2d 221; State v. Slone (1976), 45 Ohio App. 2d 24; State v. Long (1978), 53 Ohio St. 2d 91.

State v. Williford (1990), 49 Ohio St. 3d 247 -- Paragraph three of the syllabus: Where the trial court fails to give a complete or correct jury instruction on the elements of the offense charged and the defenses thereto which are raised by the evidence, the error is preserved for appeal when the defendant objects in accordance with the second paragraph of Crim. R. 30(A), whether or not there has been a proffer of written jury instructions in accordance with the first paragraph of Crim. R. 30(A)."

State v. Frost (1984), 14 Ohio App. 3d 320 -- To preserve error, record must demonstrate court failed to give counsel a chance to object to the charge out of the hearing of the jury.

Engle v. Isaac (1983), 456 U.S. 107 -- Failure to enter contemporaneous objection to jury instruction waives issue for purposes of federal habeas review as well on direct appeal. Overrules Isaac v. Engle (6th Cir. 1980), 646 F. 2d 1129.

State v. Wolons (1989), 44 Ohio St. 3d 64 -- Paragraph one of the syllabus: "A party does not waive his objections to the court's charge by failing to formally object thereto (1) where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and (2) the requesting party has been unsuccessful in obtaining the inclusion of that law in the court's charge to the jury. (Crim. R. 30[A], construed.)"

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Appellate review

Hedgpeth v. Pulido (2008), 129 S.Ct. 530 – In federal habeas review of jury instructions including an inapplicable theory of culpability structural error does not apply. Jury was instructed they could find the defendant guilty of felony murder as an accessory after the fact, which is not valid under California law. Harmless error analysis applies.

State v. Wamsley, 117 Ohio St. 3d 388, 2008-Ohio-1195 – Failure to instruct on the culpable mental state applicable to an offense is not structural error, and is subject to plain error review.

State v. Annable, 194 Ohio App. 3d 336, 2011-Ohio-2029, ¶30-43 – Recklessness is the culpable mental state for the offense of practicing medicine without a license. In arguing a Rule 29 motion the defense took this position, but the judge was of the view it was a strict liability offense. On appeal, the failure to instruct on recklessness was assigned as error, but there was no objection and the court of appeals refuses to reverse as plain error. In part this is because the court did not instruct on strict liability.

State v. Nucklos, 171 Ohio App. 3d 38, 2007-Ohio-1025 -- Physician was charged with trafficking in drugs based on writing prescriptions for oxycontin. Licensed health professionals are exempted from such charges provided they act in accordance with specified portions of the Code. Following OJI the trial court instructed the jury that such compliance was an affirmative defense on which the defendant bore the burden of proof by a preponderance of the evidence. In fact it is an element the state must prove. Reversed. ¶57: "OJI is a respected and authoritative source of the law, but it is merely a product of the Ohio Judicial Conference and not binding on the courts."

Cupp v. Naughten (1973), 414 U.S. 141, 146-147 -- "(A) single instruction to a jury may not be judged in artificial isolation, but must be viewed from the context of the overall charge."

State v. Gettys (1976), 49 Ohio App. 2d 242 -- Where the jury has been given both correct and incorrect instructions, judgment should be reversed if from the charge as a whole it cannot be determined which instruction was followed.

Chiarella v. United States (1980), 445 U.S. 222, 235-237 -- In determining whether the evidence supports conviction, reviewing court must refer to theories of culpability presented to the jury in the instructions, and not an alternative theory arrived at after the fact.

Pang v. Minch (1990), 53 Ohio St. 3d 186 -- Paragraph four of the syllabus: "A presumption always exists that the jury has followed the instructions given to it by the trial court. (State v. Fox [1938], 133 Ohio St. 154...Browning v. State [1929], 120 Ohio St. 62...approved and followed.)"

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Other issues

Black v. United States (2010), 130 S.Ct. 2963 – In an honest services prosecution the government relied on conduct that Skilling v. United States holds is no longer within reach under 18 U.S.C. ¶1386, as well as conduct that was. In response to a defense objection based on the reach of the charging statute the government sought use of special verdict forms to record the basis for jury verdicts. The defense objected and only a general verdict of guilty was returned. According to Yates v. United States (1957), 354 U.S. 298, a general verdict may be set aside when it is impossible to tell whether it is based on a valid or invalid theory of culpability. This applies here. The Federal Rules of Criminal Procedure are silent as to submission of special questions to the jury. The defense timely objected to the instruction on the now invalidated theory of culpability, and prevailed keeping the jury from making further findings.

Washington v. Sarausad (2009), 129 S.Ct. 823 – In a case involving a drive by shooting at a school the prosecutor used the phrase "in for a dime, in for a dollar" in arguing complicity. Defendant was unsuccessful playing the improper argument against the instructions given in direct appeal and state postconviction, but prevailed in habeas review. Reversed through application of ADEPA‘s unreasonable interpretation of clearly established federal law standard.

State v. Orians, 179 Ohio App. 3d 701, 2008-Ohio-6185 – Court erroneously used an instruction linking refusal to take a test to consciousness of guilt that made repeated reference to intoxication, which is not an element of OMVI, and informed the jury that the failure to provide an explanation for the refusal when asked for one could be considered as well.

Smith v. Spisak (2010), 130 S.Ct. 676 – Applying AEDPA the Supreme Court reverses the Sixth Circuit which found the jury instructions and verdict forms were contrary to Mills v. Maryland in that they required unanimity as to the presence of a mitigating factor. Even if counsel was ineffective in closing argument there was no reasonable probability a better argument would have led to a better outcome. Also see Bobby v. Mitts (2011), 131 S.Ct. 1762.

State v. Chamblin, Adams App. No. 02CA753, 2004-Ohio-2252, ¶13 -- "A jury cannot return a verdict on an offense for which it did not receive an instruction." Instructions failed to cover the weight element elevating marijuana possession to a felony. Defendant was not required to object to omission.

State v. High (2001), 143 Ohio App. 3d 132, 250 -- "When a trial court sustains an objection during testimony, it is incumbent upon the objecting party to request a curative instruction. State v. Davie (1997), 80 Ohio St. 3d 311, 322...Otherwise, any error is waived on appeal."

State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304 -- (1) ¶63-64: While R.C. 2945.371, limiting use of defendant's statements, applies only to court appointed examiners, statements to other examiners remain hearsay, and a limiting instruction that they may not be considered for the truth of the matters asserted is appropriate. (2) ¶71: An acquittal first instruction with regard to lesser-included offenses is improper.

State v. Coe, 153 Ohio App. 3d 44, 2003-Ohio-2732 -- Following extensive discussion of what does and does not constitute an improper acquittal first instruction, court concludes "only in that event" phrasing is improper. Reversed as plain error.

State v. Hobbs, Cuyahoga App. No. 81533, 2003-Ohio-4338, ¶24-31 -- Court is critical of trial judge urging the jury to return verdicts as soon as possible to accommodate his obligations the following day, but stops short of reversing. "A defendant is entitled to have the jury deliberations be undisturbed and uninterfered with." Also see Bennett v. State (1894), 4 Ohio C.D. 129.

State v. Frost, 164 Ohio App. 3d 61, 2005-Ohio-5510 -- (1) Though the defendant did not have a weapon, he was culpable as an aider and abettor, even though the indictment charged him as a principal. There was ample evidence to sustain conviction, but the court instructed the jury that the defendant must be found to have had a weapon, and declined to instruct on aiding and abetting. Reversed, but a new trial is allowed as the basis for reversal was trial error, not insufficiency. (2) At ¶33-38: Defendant filed a notice of alibi and presented alibi witnesses. Court refused to instruct on alibi, reasoning it was not an affirmative defense. While the failure to instruct on alibi would not rise to the level of plain error absent a request the court finds the refusal to instruct cannot be considered prejudicial.

State v. Patton (1995), 106 Ohio App. 3d 736 -- Defendant who claimed self-defense was acquitted of murder, but convicted of having a weapon under disability and related firearm and physical harm specifications. Court holds self-defense is a defense a physical harm specification. Thus, it was error not to so instruct the jury, and conviction on the specification was not supported by the evidence.

State v. Endicott (1994), 99 Ohio App. 3d 688 -- Syllabus by the Court: "A trial court commits plain error when it fails to instruct a jury on the essential elements of a principal crime which is the subject of an alleged conspiracy for which an accused is standing trial."

State v. Guster (1981), 66 Ohio St. 2d 266 -- The decision whether or not the facts of a case require an instruction on eyewitness identification is entrusted to judicial discretion. Also see 4 OJI 405.20.5; United States v. Telfaire (1972), 469 F.2d 552; State v. Dale (1983), 3 Ohio App. 3d 431.

State v. Jenks (1991), 61 Ohio St. 3d 259 -- Paragraph one of the syllabus: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt as special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121...followed; State v. Kulig [1974], 37 Ohio St. 2d 157...overruled.)"

State v. Lessin (1993), 67 Ohio St. 3d 487 -- Inciting to violence prosecution arose from demonstration which included a flag burning, previously held to be a constitutionally protected activity. Syllabus: "When a criminal offense charged arises from conduct which encompasses both a constitutionally protected act and an act that is not constitutionally protected, failure of the trial court to instruct the jury that it may not consider evidence of the constitutionally protected act as proof of the defendant's guilt is reversible error."

State v. Williams (1992), 80 Ohio App. 3d 648, 652-654 -- Opinion sets forth, and impliedly approves, cautionary instructions given the jury concerning note taking.

State v. Draughn (1991), 76 Ohio App. 3d 664, 674-676 -- Addict-informant instruction, based on the standard OJI instruction on accomplices, was not required where there was some corroboration of the informant's testimony and the general instructions on credibility were adequate.

State v. Gray (1993), 85 Ohio App. 3d 165 -- While the court may instruct the jury that a refusal to take a test may be considered as evidence of intoxication at the time of the test, it may not go further and invade the province of the jury by instructing that the refusal was because the defendant believed he was under the influence at the time of the test. (In effect, the court eliminated any issue as to why there was a refusal.)

State v. Banks (1992), 78 Ohio App. 3d 206 -- (1) It was error to instruct the jury on a specification pursuant to R.C. 2941.142 (providing for a period of actual incarceration for serious felonies), where such specification was inapplicable to the charged offense of murder and the jury was not instructed on lesser offenses, and where the instructions in effect allowed consideration of the prior conviction as substantive evidence of guilt. (2) Defense counsel did not waive this issue for purposes of appeal as the issue was called to the attention of the court through an objection by the prosecutor.

State v. Williams (1996), 115 Ohio App. 3d 24, 38-41 -- Though search warrant, underlying affidavit, and transcript of hearing were properly admitted to explain police conduct during a raid resulting in a shoot out, leading to the defendant's claim of self-defense, it was error not to instruct the jury as to the limited purpose for which such materials could be considered. Error was not offset by fact officers later testified to many of the same matters, which testimony was covered by a proper limiting instruction.

State v. Robinette (1997), 118 Ohio App. 3d 450, 455-457 -- In a domestic violence prosecution requiring proof of knowing conduct by the defendant, it was erroneous to instruct the jury that it was to consider the mental state of the victim. Consideration of the victim's state of mind is appropriate only when the charge is premised on menacing.

State v. McCarthy (1992), 65 Ohio St. 3d 589 -- Syllabus: "In the prosecution of a physician for alleged violations of R.C. Chapter 2925, a trial court commits reversible error when it refuses to give a requested jury instruction that permits the jury to consider the physician's subjective state of mind, as well as objective criteria, in determining whether the physician's actions (prescribing Ritalin and other scheduled drugs) were performed in the course of the bona fide treatment of a patient. (R.C. 2925.03[B], construed; State v. Sway [1984], 15 Ohio St. 3d 112...followed.)

State v. Kersey (1997), 124 Ohio App. 3d 513 -- (1) Instructions on weapon under disability charge expanded upon the time frame set forth in the bill of particulars. Though proper procedure would have been to amend the bill of particulars, no prejudice found given the circumstances of the case. (2) When written instructions are given the jury, the judge may respond verbally to questions. Crim. R. 30 supersedes R.C. 2945.10(G).

State v. Snyder (1952), 157 Ohio St. 15 -- Paragraph one of the syllabus: "The record of a judgment in a civil action is not admissible in a criminal prosecution to establish the facts essential to a conviction of the offense charged." (Because of the different burdens of proof.) Also see State v. Harding (1992), 81 Ohio App. 3d 619; State v. Nelms (October 6, 1981), Franklin Co. App. No. 81AP-339, unreported (1981 Opinions 3060).

State v. Brown (1982), 7 Ohio App. 3d 113 -- Error to use civil case instruction to the effect that the facts on which expert witness bases his opinion must be established by a preponderance of the evidence.

United States v. Swiderski (2nd Cir. 1976), 539 F.2d 854 -- Error not to give special instruction on how jury was to view testimony of paid witness. Also see Fletcher v. United States (C.A.D.C. 1946), 158 F.2d 321; United States v. Masino (2nd Cir. 1960), 275 F.2d 129.

State v. Edwards (1997), 119 Ohio App. 3d 106 -- Petitioner in a postconviction action claimed defense counsel did not consult with him before foregoing instructions on a lesser included offense. No hearing required as court finds the decision was not so fundamental as to require consultation.

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