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December 14, 2004

An update on a remarkable capital case

Earlier this month, I discussed here the remarkable ruling of the Ohio Supreme Court in State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 (Dec. 1, 2004) (available here).  In Yarbrough, a unanimous court's concluded it was compelled to reverse a death sentence imposed in the gruesome murders of two Ohio college students for lack of jurisdiction because the murders were committed in Pennsylvania. 

Following up that post, I was recently contacted by Chris Muha, a Yale Law School student who is the older brother of Brian Muha, one of the students murdered 5 years ago by Terrell Yarbrough.  Chris asked for my feedback and opinion on the motion for reconsideration being filed in the case.  Because I am not an expert on such jurisdictional issues, I could not help Chris directly, but I did offer to share the motion in this forum. 

In addition to the motion for reconsideration, Chris himself prepared a helpful synopsis of the motion, both of which you can download below.  In the synopsis, Chris says he would be "grateful to everyone who offers their reflections here and helps me think through these issues, regardless of what your thoughts are."  You can use the comments for such reflections, or e-mail Chris at cmuha@rocketmail.com.

Download yarbrough_motion_synopsis.doc

Download yarbrough_revised_reconsideration_motion.doc

December 14, 2004 at 07:45 PM | Permalink


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» Rethinking Yarbrough: from The Volokh Conspiracy
Can an Ohio court punish the gruesome murder of two college students that occurred in Pennsylvania? In a capital decision issued a few weeks ago, the Ohio Supreme Court c... [Read More]

Tracked on Dec 15, 2004 1:23:20 PM

» Rethinking Yarbrough: from The Volokh Conspiracy
Can an Ohio court punish the gruesome murder of two college students that occurred in Pennsylvania? In a capital decision issued a few weeks ago, the Ohio Supreme Court c... [Read More]

Tracked on Dec 15, 2004 1:25:01 PM

» State v. Yarbrough Was Wrongly Decided - How About Making a Federal Case Out Of It? from Carpundit
In 1999, Chris Muha's brother Brian, and Brian's roommate Aaron Land, were beaten and tortured in Ohio, kidnapped there, and driven to Pennsylvania and murdered by Terrell Yarbrough and an accomplice. [Read More]

Tracked on Dec 15, 2004 3:27:40 PM



Prosecution for some of the crimes was had without proper jurisdiction over the defendant. The Ohio Supreme Court was compelled by law to reverse where the trial court lacked jurisdiction over the crimes which resulted in the defendant's sentence of death. "The judgment of a court lacking jurisdiction is void." Burnham v. Superior Court of California, County of Marin, 495 U.S.604, 110 S.Ct. 2105 (1990). However, this individual will remain in prison for the rest of his life; he will suffer every single day: that is worse than a quick state-assisted execution.

Furthermore, the other state involved in this matter is free to charge this defendant, which would most likely result in a conviction. He could very well be sentenced to death anyway, only years down the road.

We are truly sorry about the loss of your relative.


Posted by: Center for Equal Rights | Dec 15, 2004 10:40:13 AM

I'm also very sorry about your loss. I'm no expert on these matters, but I agree with the CFER's comments.

I think this case should be a sobering warning to prosecutors (and their law clerks) everywhere. As for the motion- a couple of comments. First: motions for reconsideration, at least around here, are rarely granted, and only where the court has just missed out on controlling law. Merely writing a firm "I strongly disagree" brief doesn't usually get the job done.
Second: I think the strongest argument is the reference to (A)(1), rather than (A), in the homicide statute. But that may be personal preference. If the court wasn't persuaded the first time, it's not clear what the reconsideration motion would do to change their mind.

Again, I am very sorry about your loss.

To DAB: I'm a 2L at the University of Arkansas.

Posted by: Matthew | Dec 15, 2004 11:43:50 AM

Every time I think about a legal matter that affects me, personally, I get this hot feeling in my chest and my heart begins to pound. I take that as a signal that my judgment cannot be trusted in that matter. I am sorry for your loss, but your analysis is conclusory and flawed.

The plain reading of the jurisdictional statute is that Ohio has jurisdiction over (1) crimes that are committed in state and (2) conspiracies or attempts in Ohio to commit acts in Ohio or elsewhere, so long as the act is criminal in both Ohio and the other place.

Here you have a murder that did not occur in Ohio, so you appear to agree that Ohio did not have jurisdiction under the first part of the statute. The essence of the rest of your argument is that Ohio had jurisdiction over the Pennsylvania murder because other acts in Ohio constituted either a conspiracy or attempt to commit murder in Pennsylvania.

However, the other provisions of Ohio law that you provided state that a defendant cannot be convicted of a conspiracy or attempt as well as the completed crime. Contrary to your analysis, these provisions are entirely consistent with allowing jurisdiction only for charges of conspiracy or attempt. Ohio's interest is in prosecuting the crimes that occur in Ohio. Where an attempt or conspiracy occurs in Ohio and the crime is not completed, the perpetrator could not be prosecuted anywhere if not in Ohio. Where (as here) a conspiracy or attempt occurs in Ohio but the completed crime occurs elsewhere, the perpetrator of the crime can be prosecuted in the state where the crime was completed. All things considered, the state where the crime is committed has a stronger interest in prosecuting the crime.

This also makes sense from a policy perspective. Imagine a case where a person is kidnapped in Maine, driven to Florida, and murdered. Should the murder be prosecuted by every state on the eastern seaboard?

Again, I am sorry for your loss.

Posted by: gunner | Dec 15, 2004 11:56:06 AM

I am no expert on criminal law (I practice commercial litigation) but it seems to me that your explanation of errors is solid. The specific provision regarding homicide only limits one subsection of the general jurisdictional statute. The Court read more into it than what was there.

Posted by: DH | Dec 15, 2004 1:32:55 PM

Thanks to all for your responses and your condolences. I'll adress each of you in turn:

CFER - I understand that courts' decisions are void if they don't have jurisdiction. What's being challenged here are the grounds upon which the court asserted that Ohio did not have jurisdiction. If you'd like to address the specific arguments presented in our motion which argue that Ohio did in fact have jurisdiction, I'd be happy to respond to them.
I'm aware that Pennsylvania can (and likely will) prosecute. If at all possible though, we'd like to avoid sitting through two more trials. Hence the importance of this motion to us.
Finally, whether Terrell suffers or not is not what motivates us. Even before Terrell and Nathan were convicted, my family spoke publicly against the death penalty, and against their being convicted of it. My mom has spoken to many anti-death penalty groups in the past 5 years and written numerous magazine articles as well.

MATTHEW - As far as I know, the arguments presented here weren't presented the first time around. I do understand though that these motions are rarely granted, but it seems to me that the court made one of those clear errors that merits reconsideration. Section (B) simply does not limit the jurisdiction granted under (A)(2), by its express terms. It's not controlling law, but it still seems like a pretty egregious error, no?

GUNNER - You're correct that, aside from the blood issue, we agree that section (B) means jurisdiction can only be had under (A)(2). I disagree that the plain reading of (A)(2) gives jurisdiction only over actual charges of conspiracy, attempt and complicity. There'd be absolutely no reason to state that conspiracy which takes place in Ohio can be tried in Ohio. (A)(1) lets an offense be tried in Ohio if even one element occurs in Ohio. The presumption is that Ohio is harmed when an element (even when it's not the last or most important one) happens in Ohio. (A)(2) can't be about actual charges of conspiracy or attempt because that would reduce it to utter surplusage, no? At any rate, the little Ohio caselaw on this subject finds another plain reading of (A)(2): Ohio has jursidiction over crimes of full commission occurring out of state when conspriacy/compliticity/attempt happens in Ohio. (See the two cases cited in the synopsis.) This reading fits the plain wording of (A)(2) just as well as the court's.
Second, it's not accurate that Ohio's interest is limited to prosecuting crimes that occur in Ohio. The Legislative Services Comment to Ohio's jurisdiction statute states that the statuts are designed to give Ohio "the broadest possible jurisdiction over crimes and persons committing crimes in *or affecting* this state, consistent with constitutional limitations."
I agree that, when the crime comes to fruition, the completed crime can be tried in the state of actual commission (here, PA). That doens't mean OH doesn't have jurisdiction. It just means there's concurrent jurisdiction. Double jeopardy then becomes the limiting principle. In our case, both states initially thought they had jurisdiction. And while the state of actual commission might normally have a stronger interest in trying the case, here I think the opposite was true. Both victims were Ohio residents, one of them (my brother) a lifelong resident; they were literlly in PA for 15 minutes, everything else took place in OH; and the criminals fled back to OH when they were done.
Finally, the hypo about driving from Maine to Florida doesn't seem to apply given that more than one state can have jurisdiction. If the drove through Ohio on his way to Florida, Ohio would have jurisdiction under (A)(2) if it could be demonstrated that merely driving through the state constituted conspiracy, attempt or complicity to commit the muder in FL, as those terms are defined by OH statute. The fact that he only *drove* through OH just means that OH would not fight ME or FL for the chance to actually try the case.

Posted by: Chris | Dec 15, 2004 1:55:28 PM


"Reason finds no refuge in the jurisprudence of confusion."

I am always very suspicious whenever a court makes a statement along the lines of "I can't believe nobody else got this." Or in this case, "This is a regrettable case in which the attorneys involved - the prosecutor, defense counsel and even the trial judge - failed to exercise the level of assiduity we expect of participants in the criminal prosecution of a capital case." Justice Moyer forgot to add the Court of Appeals to his list. But with all due respect to Justice Moyer, perhaps the myriad of legal minds to examine this case prior to the Supreme Court failed to see this issue simply because it is one that exists only in the mind of the Supreme Court.

Any argument that Ohio public policy disfavors jurisdiction in this case is just silly. All of the parties involved, including the defendants, were Ohio residents at the time of the murders. A substantial number of criminal acts occurred in Ohio; including the assault, battery, and abduction at gun point of the two victims. To borrow language from civil conflict of law rules, Ohio was most certainly an interested forum. Since Ohio public policy clearly favors a finding of proper jurisdiction in this case, only a clear legislative mandate should determine otherwise.

Moving from public policy to the actual law at issue, the Supreme Court overcooked this supposed question of jurisdiction: it simply could not have been the Ohio legislature's intent to remove this type of case from the reach of Ohio courts. The law expressly provides for jurisdiction over crimes committed outside of the state when a conspiracy to commit the crime is first formed in Ohio. The homicide-specific statute, R.C.2901.11(B), does nothing to limit jurisdiction for crimes related to a conspiracy formed in Ohio (R.C.2901.11(A)(2)). The fact that the homicide-specific portion of the statute alters only the rules for jurisdiction under (A)(1), while remaining silent on (A)(2), can only mean that this portion of the general jurisdiction statute was meant to be left unaltered. To that extent, the Supreme Court's "specific trumps general" language is confused at best and a red-herring at worst.

In closing I would like to remark that Chris honors those lost in this tragedy by continuing to seek justice on their behalf. This must be a terribly difficult task, but take solace in knowing that what you seek is right, and you "beareth not the sword in vain."

Best Regards,
Brandon Rothkopf

Posted by: Brandon Rothkopf | Dec 15, 2004 3:30:49 PM

No, Chief Justice Moyer didn't forget the Court of Appeals. In Ohio, per constitutional amendment, death penalty cases are appealed directly to the Ohio Supreme Court.

Posted by: Matt | Dec 15, 2004 3:35:23 PM

I emailed Chris directly with my thoughts, but the precis is: I think the court over-read (B) while skipping (A)(2). It seems there was a fully-formed conspiracy to commit murder in Ohio over which it has jurisdiction. My full(er) thoughts here: http://carpundit.typepad.com/carpundit/2004/12/state_v_yarbrou.html

-government lawyer

Posted by: carpundit | Dec 15, 2004 3:39:12 PM

Ah, but he did forget: The 7th District Court of Appeals upheld the convictions of Herring and Yarbrough. Yarbrough appealed his conviction to the Ohio Supreme Court and the court itself raised the issue of jurisdiction.

Posted by: Brandon Rothkopf | Dec 15, 2004 3:53:23 PM

Hey Chris,

My first comment is that I think you might want to drop the argument based on the statutory presumption regarding body parts. That blood found on a defendant's clothing itself would be sufficient under the statute seems like a bit of a stretch. In this case, it would be asking the court to expansively define a statutory provision in order to create a legal fiction to allow jurisdiction, in the face of a set of facts that shows the deaths occurred in PA. Your conspiracy argument is strong, and this argument detracts from its strength. If you decide to leave it in, I would definitely make it the second issue in your brief.

I agree with your reading of section A(2). The legislature may have wanted to limit homicide jurisdiction in ordinary cases, which I suppose I can see reasons for (not that I would agree with them). But conspiracy is different...society sees a special harm when multiple individuals agree to commit crimes, in part because the conspirators generally reinforce each other's decision once the agreement has been made, making it more likely that the crime will be carried out. Similarly, with attempt, the substantial step requirement shows that a defendant was doing more than mere idle preparation before commission of the actual crime was interrupted.

Conspiracy and attempt should therefore be seen as "hooks" that permit jurisdiction in Ohio for the substantive offense of homicide even when the homicide would not have an independent basis for jurisdiction. Maybe you could do something like contrast the elements of homicide that are excluded from the jurisdictional inquiry with the elements of conspiracy that give Ohio an interest in maintaining jurisdiction. For instance, murder = death + (malicious intent) or (in the commission of a felony)...the formation of intent to murder is arguably more inchoate in terms of provability than an agreement to commit murder, and can be abandoned without putting a person on the hook for attempt. Commission of a felony is itself a jurisdictional hook that deals with intent (transferred/strict liability), and might be seen similarly. Conspiracy and attempt to commit murder, however, are serious crimes in and of themselves, and if someone has committed them in Ohio, the likelihood that the underlying murders themselves will come to fruition (whether inside or outside of Ohio) seems to me to be highly significant. Significant enough to give Ohio more of an interest in punishing the murders themselves than the state would have if the person formed an intent to murder but committed no substantial steps toward it in Ohio, or committed a robbery in Ohio but formed no independent intent to murder a hostage until leaving the state.

It's not "evading an express jurisdictional limit" to allow conspiracy & attempt to function as hooks for substantive offenses so much as it is recognizing that murders committed outside Ohio where there is a conspiracy and/or attempt in Ohio are fundamentally different from murders committed outside Ohio where either specific intent is formed or a predicate felony is committed in Ohio. It seems clear that there are different classes of homicides that the legislature wanted to treat differently.

I think that at the very least you will need to make that argument (whether couched as legislative intent or as a policy matter) in order for the justices to be willing to rethink their statutory analysis in the other direction. I'm sure that they will want to keep open minds on the matter, but it's hard to get out of the "let's treat all homicides the same" mindset.

Good luck, man.


DAB - former federal law clerk (district and court of appeals), prospective military judge advocate.

Posted by: Anthony | Dec 15, 2004 4:22:11 PM


I too offer my condolences to you and your family on the murder of your brother. I also applaude you on your stand on the death penalty. I hope that I would be as principled in such a horrendous situation.

I am a commercial litigator. My thoughts on the motion are more structural.

First, I thought that the two arguments should be reversed. I think the "body part" presumption is the weaker argument. It seems to me the presumption may be rebutted as the Ohio Supreme Court's (OSC's)opinion seems to assume that the undisputed evidence was the the murders occured in Pa. The statutory presumption seems to be for the case when you cannot tell where the murder occured. Here it seems that both prosecution and defense agreed that both murders occured in Pa. If the OSC's view of the evidence below was incorrect (there was some dispute as to where the murders occured), you need to point it out.

Second, I would restructure the (A)(2) jurisdiction argument. I would lead off with the explanation of why jurisdiction exists under that subsection and then proceed to explain the error of statutory interpretation. Placing the argument that jurisdiction exists under (A)(2) behind the presumption argument and the incorrect statutory interpretation argument suggests that it is pretty weak. The OSC needs to be persuaded that there was jurisdiction.

Alternatively, if you keep the very solid argument that (B) only limits (A)(1) up front, do a better job of telling the court where you are going. E.g., "Since the court incorrectly applied the limitations of (B) to all of the subsection (A) bases for jurisdiction, movant first demonstrates that the court erred in that reading. Subsection (B), by its express terms, only limits jurisdiction under subsection (A)(1). Next movant will demonstrate the the trial court had jurisdiction to hear the capital counts under subsection (A)(2)...."

Finally, you may want to quote the part of the opion where they cite the earlier case about expansive interpretation of the statute, but the statute itself must be read. I thoug that this was good language for you on the (A)(2) argument.

Good luck and God bless you,


Posted by: Drew | Dec 15, 2004 4:25:16 PM

ANTHONY - thanks for your detailed thoughts on our arguments. I agree that the blood argument is weak and probably should have been placed at the end. I hope it doesn't detract from the stronger argument.
You make some really good points. I meant to include a line to the effect that conspiracy/attempt/complicity are clearly more substantial than a bare intent to kill, and thus that it makes sense to disallow jurisdiction for bare intent while allowing it for conspiracy/complicity/attempt. I was sort of hinted at it when I talked about these activities being substantial enough to merit criminalization but should have stated things more explicitly and along the lines you suggest. Essentially though, we're saying exactly what you're saying: conspiracy/attempt/complicity are substantial enough to give Ohio jurisdiction over the crimes at which they're directed, and in view of which Ohio ends up being harmed.

DREW - Ithank you for your condolences. I agree with your critiques as well. We should have discussed the Ohio caselaw first to demonstrate how Ohio courts have actually interpreted the provision, then pointed out the errors of the court's staturoy construction. It's probably more effective to have an alternate (and indeed, precedential) plain reading in the back of the reader's mind as the statutory errors are being laid out.

Posted by: Chris | Dec 15, 2004 5:48:48 PM

Caveat, I am not an Ohio attorney nor a criminal or appellate attorney, but just brainstorming I had the following thoughts:

While chapter 2903 is clearly titled Homicide, only some of the offences in it are called "homicide". Specifically only 2903.04-06. The statute does not define Homicide. Arguing that since the statute is supposed to give the broadest possible interpretation, the alleged limitation of 2901.11B arguably only applies to the crimes specifically named homicide and not aggravated murder.

Bolstering this idea that that 2901.11 B does not apply to aggravated murder is that aggravated murder has another element, specifically in this case a murder in conjunction with kidnapping. 2901.02 creates a special classification for aggravated murder:

§ 2901.02. Classification of offenses.

As used in the Revised Code:

(A) Offenses include aggravated murder, murder, felonies of the first, second, third, fourth, and fifth degree, misdemeanors of the first, second, third, and fourth degree, minor misdemeanors, and offenses not specifically classified.

(B) Aggravated murder when the indictment or the count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of Revised Code, and any other offense for which death may be imposed as a penalty, is a capital offense.

Under the jurisdiction statute 2901.11 A1 says "any element" while 2901.11 B says "the element." This latter phrase makes sense in a simple homicide, but in an aggravated murder, there is more than one part of the crime.

Putting it all together there seems to be an argument that the statute is ambiguous as to whether 2901.11 B applies to aggravated murder and the more reasonable interpretation is that jurisdiction applies if "any element" of the aggravated murder takes place in Ohio.

Posted by: Antinome | Dec 15, 2004 10:10:52 PM

Antinome - that's an interesting argument. I'd be surprised if the judges went for it, though. Like you mentioned, aggravated murder is found under the broader heading of "homicide." And though homicide isn't defined, the defintion of "reckless homicide" in 2903.041 is to "recklessly cause the death of another." So homicide seems to equal "cause the death of another." Aggravated murder is defined in 2903.01(A) as to "purposely, and with prior calculation and design, cause the death of another." So it's pretty clearly a homicide. Definitely a creative argument though.

Posted by: Chris | Dec 15, 2004 10:53:22 PM

I'm a commercial litigator, not from Ohio. But I have a couple of thoughts too.

If the statutory misreading is clear (I haven't read the statute), I would lead with and stress that, for the reasons mentioned above about reconsiderations, namely, they're not granted often. I would drop the "blood = body parts" argument entirely, although I understand the temptation to throw in everything you've got here. I do think it taints the other arguments, and seems very unlikely to win.

More off-the-wall, I noted the motion twice quotes the legislative history saying that the intent of the legislature was to extend Ohio homicide jurisdiction to the constitutional limit. On the civil side of things, that's usually our cue to start quoting from International Shoe, Volkswagen, Asahi, etc. -- i.e., federal cases about the constitutional extent of personal jurisdiction. I'm not suggesting doing that here, but it may be worth stating what the constitutional limit is -- and I'm foggily aware of Supreme Court cases holding that Ohio *could* assert jurisdiction here if it wanted to. Assuming my memory is correct, you could make an argument like we do all the time in civil practice, that the statute extends to constitutional limits, and the limits are X (see S Ct case), and the murders were within X, therefore jurisdiction was proper.

Posted by: Bruce | Dec 15, 2004 11:03:01 PM

BRUCE - thanks for the thoughts. I contemplated making that argument but put it lower on the priority list and ran out of time. The only possible constitutional limitation that came to mind was that the state be sufficiently interested, which I knew we'd discuss elsewhere. It might have been good to footnote the constitutional issue when we discussed that, saying, "That the state be sufficiently interested in the crime is perhaps the only constitutional issue the legislature could have envisioned as limiting Ohio's jurisdiction." But I simply didn't research the issue, so I guess I don't know what other possible constitutional limitations might limit Ohio's jurisdiction. (I'd love to hear thoughts on this if anyone has them.) At any rate, I figured that this issue would at least be partially addressed by the showing that conspriacy, attempt and complicity substantially enough affect a state such that the object crime in virtue of which they exist at all should fall under Ohio's jurisdiction.

Posted by: Chris | Dec 16, 2004 1:06:26 PM

After reading the motion and some of the opinion, and having followed this case, I think a rehearing is possible. I think that what really went on here is that some law clerk got excited about seeing an "issue" in the case that none of the lawyers or previous judges had seen, and succeeded in convincing an influential judge. The chances of a rehearing being granted depend on whether the Judges on the Ohio SC are secure and judicial enough to take a full, honest second look at the issue. If they are Chris, I think you have a shot.

DAB - law clerk on the 3d cir. court of appeals

Posted by: Nate | Dec 16, 2004 7:03:04 PM


I’m a Steubenville resident (and attorney) and have followed this case from the start. My prayers remain with you and your family.

A friend of mine at Franciscan University (Chris Ledyard) is close to the case and has asked me many legal questions regarding the process. To be honest, when I first read the Court’s opinion, I was fairly sure it was correct. In my view, the attorneys involved failed to seriously address important jurisdictional questions. At a minimum, the case plainly raised difficult jurisdictional issues that were not adequately examined at the trial court level.

But yesterday I read the opinion again. I noticed the language of R.C. 2901.11(A)(2) for the first time and wondered whether a plausible counter-argument for jurisdiction existed under that provision. After reading the opinion, I did a google search to see whether anyone was discussing the case. That’s when I discovered this blog and your synopsis.

I am not a criminal lawyer but have significant experience in appellate practice on the civil side. Your position is well-reasoned and should make the Court think long and hard.

The following are positions that you should consider. Please know that in pressing counter-arguments, I only intend for you to consider possible objections that you may face before the Court. I cannot imagine how difficult this process must be for you.

1. Under Ohio jurisdictional law, homicide is treated as a special case. For every other crime, jurisdiction will vest if any element of the crime was committed within the state. Not so with homicide. Under 2901.11(B), jurisdiction only vests if the act or physical conduct that causes death, or the death itself, occurs in the state. Put another way, certain elements of homicide are not sufficient to confer jurisdiction. For example, the crime of aggravated murder (2903.01) includes the elements of forming the “purpose” to commit murder and engaging in “prior calculation and design” to commit murder. None of these elements, if committed in Ohio, are sufficient to confer jurisdiction. This intent not to confer jurisdiction in homicide cases based upon planning and design activity is consistent with the Court’s refusal to base jurisdiction on conspiracy-type activity, which at root is activity relating to planning and/or forming a purpose. As the Court suggests, it makes little sense to confer jurisdiction where several people plan a homicide in Ohio but not where one person plans a homicide in Ohio. In this sense, the Court’s position goes beyond a mechanical application of “the specific trumps the general” rule.

With that said, I still believe that your position that section (B) expressly modifies only (A)(1) is a good one. But you should be aware that the Court could have a more nuanced position.

2. 2901.11(A)(2) confers jurisdiction only with respect to the crimes of conspiracy/complicity and does not confer jurisdiction with respect to the ultimate offense of murder. The Court’s interpretation does not reduce the provision to surplusage. The legislature was making it clear that despite the fact that the ultimate crime occurred in another state, Ohio is retaining jurisdiction for conspiracy/complicity charges. I believe that the jurisdictional provisions are of relatively recent vintage. It is possible that under prior law, Ohio did not have jurisdiction over conspiracy/complicity charges in such a situation. Accordingly, in the new statute the legislature would need to affirmatively assert jurisdiction to distinguish prior law. (I don’t know whether this is true, but you should know the answer to this question prior to argument).

Also, section (A)(3) could be read to support the Court’s interpretation. (A)(3) is phrased similarly to (A)(2) but addresses the opposite situation: where the conspiracy/complicity occurred outside the state with respect to a crime that would occur inside the state. The provision states that Ohio has jurisdiction over an individual who, while out of state, conspires etc. to commit the offense in Ohio. This provision plainly is examining jurisdiction for the actual crimes of conspiracy/complicity. Given its parallel wording to (A)(2), it could be argued that both provisions are defining the situations where Ohio has jurisdiction with respect to the crimes of conspiracy/complicity.

Ultimately, your best argument is the “ambiguity” argument. The more one examines these issues, the more one can find plausible arguments on each side. Given this lack of clarity, the legislature’s stated preference for broad jurisdiction should tip the scales in your favor.

Finally, assuming that the Court accepts your argument regarding section (A)(2), you should be prepared to address evidentiary issues. It is the State’s duty to prove jurisdiction, but I am not sure of the standard of proof (reasonable doubt?). Conspiracy requires an agreement or plan to commit the offense (murder). Complicity requires soliciting or aiding or abetting the offense (murder). Is there sufficient evidence that an element of these crimes occurred in Ohio? I have no knowledge of the record evidence. Under any reading of the jurisdictional statutes, it would not seem enough that a course of conduct began in Ohio. Specific elements of the conspiracy/complicity crimes will have to be proven to have occurred in Ohio. Is it enough, circumstantially, that the defendants participated in armed kidnapping in Ohio which resulted in the murders? Or do the courts require more specific evidence that both defendants, while in Ohio, expressed a mutual purpose/plan to commit murder? I don’t know the answers to these questions.

I hope these thoughts were helpful. Again, I apologize for my bluntness, but am sure that the Court will be much tougher in examining these issues, particularly given its prior unanimous opinion. I wish you success in your efforts and pray for grace during this time.

Mark Fischer

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