Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Model instruction - 4 OJI 411.01.
State v. Howell (2000), 137 Ohio App. 3d 804 -- Dog's owner drove off with leash attached to trailer hitch. Reversible error not to instruct on accident with respect to cruelty to animals charge premised on torture.
State v. King, 151 Ohio App. 3d 346, 2003-Ohio-208 -- Defendant claimed he asked a Department of Job and Family Services worker if he had to report benefit checks for his daughter as his income and was incorrectly told he did not. Ineffective assistance of counsel not no request instruction on mistake.
State v. Jones, Montgomery App. No. 20349, 2005-Ohio-1208 -- In closing argument, the prosecutor suggested that even if the defendant did not intend to shoot the victim he should still be held criminally responsible for bringing a gun into the situation.  Failure to request an instruction on accident constituted ineffective assistance of counsel.
State v. Poole (1973), 33 Ohio St. 2d 18 -- Accident is not an affirmative defense on which the defendant bears the burden of proof by a preponderance of the evidence. Instead, accident negates intent. Also see Jones v. State (1894), 51 Ohio St. 331.
State v. Atterberry (1997), 119 Ohio App. 3d 443, 447 -- "Accident is not an affirmative defense...Rather, the defense of accident is tantamount to a denial that an unlawful act was committed; it is not a justification for the defendant's admitted conduct...accident is defined as an unfortunate event occurring casually or by chance...Accident is an argument that supports a conclusion that the state has failed to prove the intent element of the crime beyond a reasonable doubt." After smoking crack, defendant shot furniture, then girlfriend - but even she said it was an accident. Reversed as ineffective assistance of counsel for failure to renew request for an instruction on accident at the conclusion of the charge.
Mentor v. Hamercheck (1996), 112 Ohio App. 3d 291 -- Defendant charged with petty theft was entitled to an instruction on accident where he claimed he meant to pay for items along with other purchases, but forgot to do so. Accident refers to an unfortunate event which takes place by chance or casually. If established, the defendant did not act with the required mens rea. Mistake of fact was not an issue as defendant did not claim failure to pay was justified.
Columbus v. Bee (1979), 67 Ohio App. 2d 65, 70 -- The defense of accident is inappropriate in a negligence case.
State v. Champion (1924), 109 Ohio St. 281 -- Accident and self-defense are logically inconsistent. (But the modern view is that defendants may seek instructions on inconsistent theories if warranted by the evidence. See State v. Osburn (1976), 52 Ohio App. 2d 146 for the proposition that an the assertion of an affirmative defense does not preclude consideration of an affirmative defense if otherwise warranted by the evidence.)
State v. Barnd (1993), 85 Ohio App. 3d 254, 260 -- "The defenses of accident and self-defense are inconsistent by definition. Accident involves the denial of a culpable mental state and is tantamount to the defendant not committing an unlawful act. In contrast, a defendant claiming self-defense concedes he had the purpose to commit the act, but asserts he was justified in his actions."
State v. Lazich (1997), 117 Ohio App. 3d 477 -- Conviction reversed on hybrid self-defense - accident claim. Elderly defendant drew gun after being knocked to the ground by young thug who was about to kick him in the head. Defendant claimed gun discharged accidently.
State v. LaFreniere (1993), 85 Ohio App. 3d 840, 847 -- "...(E)ven though a weapon was initially drawn in self-defense, it does not mean that it was ultimately used in such a manner. Under such circumstances, only an instruction on the defense of accident would be warranted as to the actual act causing death. Additional instructions as to the nature of the events leading up to that event would seem to be merely permissible rather than mandatory."
State v. McCornell (1993), 91 Ohio App. 3d 141 -- Wife initially reported that her husband shot her on purpose after she had suggested that he look for a job. At trial she claimed the shooting was accidental. Held that evidence that she was stabbed by her husband seven months earlier, and recanted initial claim it was done on purpose, was properly admitted, supposedly to impeach her testimony that the shooting was accidental.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.