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Franklin County Criminal Law Casebook

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

R.C. 2901.01(A)(14) -- "A person is 'not guilty by reason of insanity ' relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code (i.e. by a preponderance of the evidence), that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person 's acts."
R.C. 2943.03(E) -- "A defendant who does not plead not guilty by reason of insanity is conclusively presumed to have been sane at the time of the commission of the offense charged. The court may, for good cause shown, allow a change of plea at any time before the commencement of trial."
R.C. 2945.37 -- Definitions; hearing on competency to stand trial.
R.C. 2945.371 -- Evaluation of defendant 's mental condition at relevant time; separate mental retardation evaluation.
R.C. 2945.391 -- Finding of not guilty by reason of insanity.
R.C. 2945.40 -- Procedure upon acquittal by reason of insanity.
R.C. 2945.401 -- Continuing jurisdiction of court after incompetency finding or insanity acquittal; application of other laws; termination of commitment or change in conditions.
R.C. 2945.402 -- Conditional release.
Revised Code Chapter 5122 -- Hospitalization of Mentally Ill.
Crim. R. 11(A) -- NGRI plea must be made in writing.
Crim. R. 11(H) -- NGRI plea must be entered at arraignment or by leave for good cause shown at any time before trial.

In General

State v. Fulmer, 117 Ohio St. 3d 319, 2008-Ohio-936 – Syllabus: "In cases in which a defendant asserts the functional equivalent of a diminished-capacity defense, the trial court should instruct the jury to disregard the evidence used to support that defense unless the defendant can demonstrate that the evidence is relevant and probative for purposes other than a diminished-capacity defense. ( State v. Wilcox (1982), 70 Ohio St. 2d 182, 24 O.O. 3d 284, 436 N.E. 2d 523, applied.)
State v. Cihonski, 178 Ohio App. 3d 713, 2008-Ohio-5191 – Failure to notify the jury that the defendant had entered a plea of not guilty by reason of insanity and to instruct the jury on that plea constituted structural error. Plea was entered but apparently forgotten. Defendant was found competent to stand trial, but such finding does not preclude a jury finding insanity. ¶19: "…to find structural error, a court must (1) determine that a constitutional error has occurred, (2) conduct analysis under the presumption that the error is not structural, and (3) determine that the constitutional error has permeated the entire trial, rendering it unable to serve as a 'vehicle ' for determination of the defendant‘s guilt or innocence." Failure to bring insanity to the attention of the jury denied appellant his constitutional right to trial by jury. Evidence was such as might provide a basis for finding insanity. Court further finds counsel was ineffective for failing to address the insanity plea, which had been entered by former counsel. Compare State v. Monford, 190 Ohio App. 3d 35, 2010-Ohio-4732.
Clark v. Arizona (2006), 126 S.Ct. 2708 -- Arizona initially followed the M 'Naughton Rule, defining legal insanity both in terms of cognitive incapacity and moral incapacity, but later dropped the cognitive incapacity aspect. The court finds no due process violation in the current definition or in prohibition of consideration of expert testimony as to mental incapacity or illness with respect to mens rea.
State v. Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017, ¶63-69 -- No abuse of discretion found in excluding the testimony of the three evaluators a self-represented capital defendant wished to call in support of his NGRI plea, where each had concluded the defendant did not meet the criteria for legal insanity.
State v. McQueeney, 148 Ohio App. 3d 606, 2002-Ohio-3731 -- A guilty plea is an implied admission of sanity. No error found where insanity plea was not formally withdrawn, Rule 11 was complied with, and competency does not appear to have been an issue.
State v. Curry (1989), 45 Ohio St. 3d 109 -- Syllabus: "Insanity may be a defense to any crime regardless of whether the particular offense requires that the defendant 's conduct be purposeful, knowing, reckless, or negligent." (Defendant was charged with negligent vehicular homicide.)
In re Chambers (1996), 116 Ohio App. 3d 312 -- Insanity may not be raised as an affirmative defense in delinquency proceedings, but it is a factor which may be considered in adjudicating delinquency.
State v. Qualls (1988), 50 Ohio App. 3d 56 -- Headnote 2: "Insanity is not a complete defense in a probation revocation hearing but is a mitigating factor which a court should consider when the issue is timely raised,"
Ford v. Wainwright (1986), 477 U.S. 399 -- Execution of a presently insane inmate is cruel and unusual punishment.
State v. Haney (1991), 70 Ohio App. 3d 135 -- Court did not abuse its discretion by denying expungement to a defendant found not guilty by reason of insanity of murder.
State v. Coombs (1985), 18 Ohio St. 3d 123, 124 -- Insanity does not require proof of psychosis or neurosis.
State v. Howze (1979), 66 Ohio App. 2d 41, 46 -- "...(O)ne may commit a purposeful act not knowing it to be wrong, or commit such a purposeful act, even though the actor knows the act to be wrong, but lacks the ability to refrain from doing it." (Point is that placing the burden of proof on the defendant on an insanity defense does not unconstitutionally shift to him the burden of disproving an essential element of the crime charged.)
State v. Wilcox (1982), 70 Ohio St. 2d 182 -- Syllabus: "(1) The partial defense of diminished capacity is not recognized in Ohio. ( State v. Jackson 32 Ohio St. 2d 203...,followed.) (2) A defendant may not offer expert psychiatric testimony, unrelated to the insanity defense to show that the defendant lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." Also see State v. Cooey (1989), 46 Ohio St. 3d 20; State v. Luff (1993), 85 Ohio App. 3d 785, 798-801.
State v. Wilcox (1984), 16 Ohio App. 3d 273 -- The entry of a plea of not guilty by reason of insanity does not by itself place the issue of the defendant 's competency to stand trial before the court.
In re Fisher (1958), 167 Ohio St. 296 -- Paragraph two of the syllabus: "The jurisdiction of the Court of Common Pleas is not affected by a previous judgment of the defendant 's sanity in a proceeding of the Court of Probate."
State v. Johnson (1972), 31 Ohio St. 2d 106 -- The statutory presumption of sanity (now set forth in R.C. 2943.03), absent a NGRI plea, is not at odds with the presumption of innocence.
State v. Tenace (1997), 121 Ohio App. 3d 702 -- Death penalty defendant wanted to pursue NGRI plea premised on cocaine addiction. Over his objection, counsel withdrew the plea. As the decision was ultimately the defendant 's to make, he received ineffective assistance of counsel. Compare State v. Smith (1981), 3 Ohio App. 3d 115, 118-120 -- No denial of due process for court to accept counsel 's withdrawal of NGRI pleas without individually addressing the defendant.
State v. Kulp (1996), 110 Ohio App. 3d 144 -- Out of state trucker charged with felonious assault and fleeing was dissatisfied with lawyer furnished by his union and proceeded to trial pro se. An already entered insanity plea and a request for competency evaluation were ignored by the court and by appellate counsel. Court of Appeals sua sponte raises the issue and reverses.
State v. Brown (1992), 84 Ohio App. 3d 414 -- Defendant received ineffective assistance of counsel where counsel failed to formally raise the issues of competency and sanity, or to examine the psychiatrist who had prepared an evaluation upon a court referral. Defendant later testified that he had no recollection of the incident leading to charges and that he spent time talking to his mother who he believed was buried at a gas station in Lakewood.
State v. Ungerer (1993), 87 Ohio App. 3d 110 -- Traffic Rule (10) does not provide for pleas of not guilty by reason of insanity in traffic cases.
Nationwide Insurance Company v. Estate of Kollstedt (1995), 71 Ohio St. 3d 624 -- Paragraph one of the syllabus: "A provision in a liability insurance policy which excludes coverage to an insured where the insured expected or intended to cause bodily injury or property damage does not apply under circumstances where the insured was mentally incapable of committing an intentional act."
State v. Mikulich (1996), 116 Ohio App. 3d 787 -- Defendant with an extensive psychiatric history pleaded guilty. Though exchange with bench covered to a degree whether voluntary drug use might be the basis for an insanity plea, the general defense of insanity was not addressed. Plea held not to have been knowing intelligent and voluntary.
State v. Grimsley (1982), 3 Ohio St. 3d 265 -- Multiple personality disorder does not per se render a defendant NGRI. It must be shown that the personality in control at the time of the offense charged meets the requisite standard.

Examinations; Proof; Trial Issues

State v. Thomas, 170 Ohio App. 3d 727, 2007-Ohio-1344 -- ¶17-20: Plain error to instruct the jury that the defendant must be found NGRI if that is established by a preponderance unless the state proves the elements beyond a reasonable doubt. ¶26: Based on this the court declines to consider whether jury should have been further instructed insanity may be of long or short duration.
State v. Armstrong, 152 Ohio App. 3d 579, 2003-Ohio-2154, ¶ 17 -- The weight to be given the evidence and credibility of the witnesses on the affirmative defense of insanity is primarily for the trier of fact, which may reject the defense on the basis of credibility. A trial court 's determination will be reversed only when overwhelming and uncontroverted evidence of insanity is ignored.
State v. York, 154 Ohio App. 3d 463, 2003-Ohio-4629 -- The trial court did not abuse its discretion in refusing to admit the defendant 's letters to his dog in support of his insanity plea. The fact the letters had been sent had been testified to. Since the date of letters was uncertain, they were not clearly indicative of his mental condition at the time of the offense.
Ake v. Oklahoma (1985), 470 U.S. 68 -- When the defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the state is required to afford access to a psychiatrist 's assistance if the defendant cannot other afford such assistance in the preparation of his defense.
State v. Hix (1988), 38 Ohio St. 3d 129 -- Syllabus: "A defendant does not have the right to an independent psychiatric examiner, pursuant to R.C. 2945.39(C), unless the trial has ordered more than one psychiatric evaluation and the trial court has refused to appoint an examiner recommended by the defendant."
State v. Wong (1994), 95 Ohio App. 3d 39 -- It was not ineffective assistance of counsel to fail to call examining psychiatrists who split on which element of the insanity standard the defendant fit. Neither would have testified that she met both tests. Furthermore, calling the witnesses would have led to disclosure of a damaging letter both reviewed. See discussion of Ohio 's refusal to recognize diminished capacity as an affirmative defense. Also see State v. Wong (1994), 97 Ohio App. 3d 244 where the court defends its review of a letter not made a part of the record.
State v. Luff (1993), 85 Ohio App. 3d 785, 791-793 -- Application of a changed definition of legal insanity in a case arising before amendment of the statute violated the ex post facto clauses of the state and federal constitutions.
State v. Chapin (1981), 67 Ohio St. 2d 437 -- Paragraph three of the syllabus: "Reports of court-appointed examiners who evaluate the mental condition of a criminal defendant at the time of the commission of an offense must satisfy the requirements of the law of evidence in order to be admissible..."
State v. Jones (1984), 9 Ohio St. 3d 123 -- Syllabus: "Pursuant to Evid. R. 703, facts or data upon which an expert bases his opinion must be those perceived by him or admitted in evidence at the hearing. ( State v. Chapin, 67 Ohio St. 2d 437, followed.)
State v. King (1989), 63 Ohio App. 3d 183 -- It was an abuse of discretion to deny a motion for a new trial where, in a death penalty prosecution, a psychological evaluation performed during the interval between the guilt and penalty phases revealed that the defendant 's mental state at the time of the offense was such as to meet the Ohio standard for being found not guilty by reason of insanity.
State v. Bowman (1987), 41 Ohio App. 3d 318 -- Headnote 1: "When a criminal defendant moves for a psychiatric examination pursuant to R.C. 2945.39 (sanity) and 2945.371 (competency), the running of the time for trial is tolled when the motion is granted, not when it is made. If a report of a psychiatric examination is not filed when due, time begins to run again after the due date."
State v. Rogers (1985), 17 Ohio St. 3d 174 -- Paragraphs two and four of the syllabus: "(2) In a capital trial, upon a plea of not guilty by reason of insanity, the bifurcation of the insanity issue from that of the issue of guilt of the defendant rests solely within the discretion of the trial court. (4) A trial court in a capital case is not required to instruct the jury as to the defendant 's lawful disposition were he to be found not guilty by reason of insanity." Also see State v. Johnson (1978), 57 Ohio App. 2d 263.
Wainwright v. Greenfield (1985), 474 U.S. 284 -- It is a denial of due process to use a defendant 's post arrest, post Miranda warning silence as evidence of sanity. See Doyle v. Ohio (1976), 426 U.S. 610.
State v. Toth (1978), 52 Ohio St. 2d 206, 210 -- "...(T)he defense of insanity cannot be successfully established simply on the basis that the condition resulted from the use of intoxicants or drugs, where such use is not shown to be habitual or chronic." Also see State v. Mosher (1987), 37 Ohio App. 3d 50; Rucker v. State (1928), 119 Ohio St. 189; Annotation, 8 A.L.R. 3d 1236, Sec. 6(b).
United States v. McRary (5th Cir. 1980), 616 F. 2d 181 -- All evidence relevant or pertinent to the issue of insanity should be admitted, including testimony that the defendant and his wife share the mental illness "folie a deux."
State v. Akwal (1996), 76 Ohio St. 3d 324 -- (1) At p. 332, court indicates, without elaborating, that as a non-physician, a psychologist, not qualified as a forensic psychologist, was not qualified to give an opinion on the issue of sanity. (2) At p. 335: Error for prosecutor to argue the defendant would walk out the door if found NGRI, since this was an inaccurate statement of the law and an attempt to inflame the passions of the jury.
State v. Filiaggi (1999) 86 Ohio St. 3d 230, 243-244 -- In a NGRI/death case defense called four experts, the state one. Court gives greater weight to the state 's expert as he specialized in forensic psychiatry and had access to police reports and other materials in the sole possession of the prosecution.
State v. Thomas (1982), 70 Ohio St. 2d 79, 80 -- "...(I)nsanity is an issue for the jury to decide. Consequently, the jury may give more weight to lay witnesses than to experts if it so chooses. If there is sufficient evidence to support the jury 's findings, it is not the reviewing court 's place to interfere. The weight to be given the evidence and the credibility of the witnesses concerning the establishment of the defense of insanity in a criminal proceeding are primarily for the trier of the facts."
State v. Brown (1984), 12 Ohio St. 3d 147 -- Verdicts were not inconsistent where the jury found the defendant not guilty by reason of insanity on some counts and guilty of others.


State v. Werner, 168 Ohio App. 3d 272, 2006-Ohio-3866 -- ¶11: The civil standard for appellate review of fact findings is applied to hospitalization determinations. ¶15: "In determining whether an individual is mentally ill subject to hospitalization, the trial court must view the totality of the circumstances, examining the risk of physical harm, psychiatric and medical testimony, insight, the grounds the state advances for commitment, past history of acting in conformity with the law, and any considerations of remission." Also see In re Burton (1984), 11 Ohio St. 3d 147, 149. ¶20-21: An NGRI acquittee is entitled to appointment of an independent expert at state 's expense at the initial and all subsequent hearings.
State v. Tuomala, 104 Ohio St. 3d 93, 2004-Ohio-6239 -- The amount of time a person found not guilty by reason of insanity may be subject to commitment by order of the trial court is not reduced by the period of time spent in pretrial custody. See dissents.
State v. Mahaffey (2000), 140 Ohio App. 3d 398 -- Trial court refused to follow recommendation from institution that NGRI acquittee be allowed increased on-grounds movement privileges. (1) There was a final appealable order, notwithstanding the trial court 's unfulfilled promise to issue a further decision. (2) The no burden of proof rule of State v. Johnson (1987), 32 Ohio St. 3d 109, has been superseded by revised R.C. 2945.401(G) which places on the state the burden of proving by clear and convincing evidence that a change to a less restrictive status would represent a threat to public safety or to the safety of any person. Where the only testimony was that the recommended change in status was appropriate, the state did not meet this burden.
State v. Bowen (2000), 139 Ohio App. 3d 44 -- In furtherance of the court 's continuing jurisdiction over those found NGRI, R.C. 2945.401(D)(1)(c) permits the state "to introduce the evaluation report or present other evidence at the hearing in accordance with the Rules of Evidence." This is interpreted to mean reports may come in without compliance with the evidentiary rules.
Jones v. United States (1983), 463 U.S. 354 -- Commitment for purposes of treatment of a person who has been found by a preponderance of the evidence to be NGRI does not violate due process.
Addington v. Texas (1979), 441 U.S. 418 -- While the clear and convincing evidence standard of proof is required in civil commitment proceedings, the proof beyond a reasonable doubt standard is not constitutionally required.
State v. Hawkins (1999), 87 Ohio St. 3d 311 -- Present R.C. 2945.401, terminating the trial court 's continuing jurisdiction over those found NGRI at the conclusion of the maximum prison term, is applicable to those convicted before the effective date of the revised version of the statute.
State v. Jackson (1981), 2 Ohio App. 3d 11, 14 -- The differences in procedure between civil commitment and those committed after being found NGRI do not amount to a denial of equal protection
State v. Welch (1997), 125 Ohio App. 3d 49, 53 -- To left continued involuntary hospitalization of an NGRI acquittee the state must show by clear and convincing evidence "(1) the defendant has a 'substantial ' mental disorder, (2) the mental disorder 'grossly ' impairs his functioning, and (3) the defendant should be hospitalized for one of the four reasons given in R.C. 5122.01(B)." Anti-social personality disorder, a fondness for drugs and other minor difficulties held not to warrant continued confinement. Also see State v. McNeal (1989), 64 Ohio App. 3d 447.
State v. Crossan (1997), 122 Ohio App. 3d 511 -- NGRI acquittee was granted conditional release, but subject to house arrest between 10:00 p.m. and 6:00 the following morning. Though this was only hesitantly endorsed by the psychologist who testified, it was not an abuse of discretion.
State v. Kinman (1996), 109 Ohio App. 3d 95 -- NGRI acquittee appeals court ordered transfer to a more secure facility. (1) Court could schedule hearing on its own motion after receiving letter from psychiatric nurse who felt threatened, notwithstanding language in R.C. 5122.20 calling for application to be filed by chief clinical officer of treatment facility. (2) Court is unsure who has the burden of proof and by what measure, but concludes state proved by clear and convincing evidence that transfer was necessary.
State v. Green (1996), 114 Ohio App. 3d 204 -- NGRI acquittee appealed trial court 's refusal to order transfer to less secure facility. Psychiatrist testified this was appropriate, but records reflected past decompensations. Concern for public safety justified court 's ruling. Also see State v. Green (1996), 116 Ohio App. 3d 56.
State v. Jung (1999), 132 Ohio App. 3d 369 -- No notification violation or abuse of discretion demonstrated in proceedings authorizing forced medication.
State v. Ware (1988), 44 Ohio App. 3d 201, 204-206 -- When a defendant has been found NGRI on some charges, but guilty of others, the court must still proceed to conduct the hearing mandated by R.C. 2945.40(A) and may not stay the hearing until the other sentence has been served. Suggested that confinement to a mental hospital should come before imprisonment.