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No due process violation for defendant required to prove ‘blackout’ defense
DAN TREVAS
Supreme Court
Public Information Office
Published: November 14, 2018
A divided Ohio Supreme Court ruled recently that the Franklin County Common Pleas Court did not violate Darin K. Ireland’s constitutional rights when the court required Ireland to prove his defense of “blackout” — acting in an unconscious state because of disease or injury — by a preponderance of the evidence.
The Court reversed a Tenth District Court of Appeals’ decision, which found that the trial court had committed an error by instructing the jury that Ireland had the burden of proving his blackout defense, in which Ireland argued that he was not conscious and was not responsible for severely beating an individual during an altercation in 2013.
Writing the Court’s lead opinion, Justice Patrick F. Fischer stated that under Ohio law, the defense of a blackout meets the definition of an “affirmative defense” in R.C. 2901.05(D)(1)(b). Justice Fischer also concluded that requiring Ireland to prove the blackout defense by a preponderance of the evidence did not violate Ireland’s constitutional rights.
Justice Terrence O’Donnell joined Justice Fischer’s opinion to remand the case to the Tenth District to consider other objections Ireland raised to his conviction.
In a separate opinion, Justice Mary DeGenaro wrote the Tenth District’s error was in assuming that Ireland raised an actual claim of involuntariness under R.C. 2901.21(A), when he was essentially using the term “blackout” as a partial-insanity defense. She also voted to remand the case to the Tenth District for further consideration. Justice Judith L. French joined Justice DeGenaro’s opinion.
Chief Justice Maureen O’Connor concurred in judgment only.
In a dissenting opinion, Justice Sharon L. Kennedy wrote that Ohio law requires the state to prove every element of a crime, including that Ireland’s actions were conscious and voluntary. She stated that raising a blackout defense is a “failure of proof” defense, which means the state was unable to demonstrate beyond a reasonable doubt that Ireland was conscious and his actions voluntary when he committed felonious assault. Justice R. Patrick DeWine joined Justice Kennedy’s dissent.
Oral arguments for the case were heard at a special off-site Court session earlier this year in Putnam County.
Accused Claims PTSD-Related Blackouts
Ireland pleaded not guilty to one count of felonious assault. At his trial, forensic psychologist James P. Reardon appeared as an expert witness. Reardon had diagnosed Ireland with post-traumatic stress disorder (PTSD) after the assault, and testified that Ireland had experienced a PTSD “dissociative episode” and his “consciousness, his memory, his decision-making capability for those instants” were compromised.
Based on Reardon’s assessment, Ireland argued that the jury should receive an instruction on the defense of blackout stating (1) that if a person commits an act while unconscious because of a blackout due to disease or injury, the act is not a criminal offense; (2) that if the jury has a reasonable doubt that Ireland was conscious at the time of the assault, the jury must find him not guilty; and (3) that if the jury determines Ireland was conscious, it still must determine whether the state proved that Ireland “knowingly” committed the crime beyond a reasonable doubt.
The Franklin County Prosecutor’s Office objected to Ireland’s proposed instruction. The prosecutor argued that Ireland may have been voluntarily intoxicated at the time of the incident and could not argue blackout. The state also argued that if the trial court were to provide a blackout defense instruction to the jury, the instruction should state that blackout is an affirmative defense that Ireland has the burden to prove.
The trial court sided with the prosecutor and gave an instruction that placed the burden to prove the blackout defense on Ireland. The court’s instruction explained to the jury that when a person commits an act while unconscious, “as in a coma, blackout, or convulsion to heart failure, disease, sleep, or injury, such an act is not a criminal offense,” even though the act would be a crime if committed by a person acting at will. The trial court reminded the jury that even if Ireland failed to establish the defense of blackout, the state still must prove all elements of felonious assault beyond a reasonable doubt.
The jury found Ireland guilty, and the trial court sentenced him to six years in prison.
Ireland appealed his conviction, and the Tenth District Court of Appeals reversed the trial court’s judgment. The prosecutor appealed the appellate court’s decision to the Ohio Supreme Court, which agreed to hear the case.
Court Examines State Criminal Statutes
The Tenth District ruled that, under R.C. 2901.21(A), the state must prove the accused acted voluntarily in order to convict the accused of felonious assault. The Tenth District also determined that the defense of blackout did not meet the definition of an affirmative defense under R.C. 2901.05(D)(1)(b). The appellate court concluded that the trial court committed an error in requiring Ireland to prove his blackout defense by a preponderance of the evidence.
Justice Fischer wrote that the Supreme Court had to consider whether R.C. 2901.21(A) required the state to prove that Ireland acted voluntarily and whether blackout is an affirmative defense under R.C. 2901.05(D)(1)(b). He also indicated that the Court had to decide whether requiring Ireland to prove blackout by a preponderance of the evidence violates Ireland’s constitutional due process rights.
The lead opinion noted, under R.C. 2901.21(A), every criminal offense is made up of two parts: a “voluntary act or failure to act where this is a duty,” and a “culpable mental state.” The lead opinion explained that the state has to present evidence that the criminal act was committed voluntarily. But if the accused argues the act was involuntary based on a blackout defense, the defendant bears the burden to prove that defense by a preponderance of the evidence, the opinion stated.
The lead opinion noted that the law did not expressly designate “blackout” as an affirmative defense. The Court then turned to the affirmative defense statute, R.C. 2901.05(D)(1)(b), which describes undefined affirmative defenses as “involving an excuse or justification peculiarly within the knowledge of the accused,” on which the accused can fairly be required to present evidence. The lead opinion concluded that the blackout defense meets the requirements of R.C. 2901.05(D)(1)(b) and constitutes an affirmative defense.
Constitutional Rights Considered
Ireland argued that requiring him to prove his blackout defense by a preponderance of the evidence created an unconstitutional shift of the state’s burden to prove all elements of the offense beyond a reasonable doubt and violated his constitutional rights under the due process clause of the U.S. Constitution.
The lead opinion examined the felonious assault statute, R.C. 2903.11(A), and found it does not specifically require the state to prove voluntariness, and concluded that Ireland’s argument asserting a due process violation was meritless. The lead opinion also determined that there was no due process violation because Ireland was not required to prove that he did not commit the crime, but rather only to prove that he had an excuse for committing the crime.
The lead opinion also emphasized that the trial court correctly instructed the jury.
The Court noted that the jury was not told that Ireland’s evidence could be considered only to support his blackout defense, but rather the jury was instructed to consider “all the evidence, weigh the evidence, and determine whether the state met its burden beyond a reasonable doubt.” Ireland’s rights, the lead opinion concluded, were not violated.
Concurrence Assesses Claim
In her concurring opinion, Justice DeGenaro wrote the “factual and procedural context” of Ireland’s case reveal that he was actually presenting an insanity-related defense.
She explained that Ireland’s defense was based on his alleged altered state of consciousness due to a dissociative episode. Normally under Ohio law, this kind of defense cannot be raised and expert psychiatric testimony is not allowed unless the accused is arguing not guilty by reason of insanity. But Ireland was allowed to do so because the state waived the issue. Regardless, claiming insanity or partial insanity is an affirmative defense, and the trial court “appropriately described Ireland’s defense as an affirmative defense,” the concurring opinion stated.
Justice DeGenaro noted that the trial judge decided that the expert’s description about Ireland was not true unconsciousness “like sleepwalking.” Whether a claim of unconsciousness is an affirmative defense is a question that will have to be answered in a case where the claim is properly made, she stated. In Ireland’s case, he did not provide the evidence of unconsciousness that would have justified removing the affirmative-defense instruction from Ireland’s blackout instruction to the jury, she concluded.
Statute Places Burden on Prosecution, Dissent Explains
In her dissent, Justice Kennedy wrote that the state bears the burden of proving every element of a criminal offense beyond a reasonable doubt, and R.C. 2901.21(A) makes a conscious, voluntary act an element of every offense.
Because the legislature has allocated the burden of proof, “[d]ue process forecloses the state from shifting [it] to the accused to disprove that he or she committed the offense consciously and voluntarily.” Rather, the state carries that responsibility throughout the trial, she wrote.
The dissent noted that blackout is a failure-of-proof defense, asserting that the state presented insufficient evidence to show that the accused committed the offense with a conscious, voluntary act. The dissent would join the majority of other states and reject the claim that blackout is an affirmative defense.
The dissent also challenged the lead opinion’s contention that Ireland claimed blackout as an excuse or justification, which apply only when the state has proven every element of the crime.
“In contrast, a blackout defense attempts to negate the conscious, voluntary-act element of the offense, and the issue at trial in this case was whether the state proved that Ireland consciously and voluntarily caused that harm — an element that Ireland did not concede by asserting his defense,” the dissent stated.
The case is cited 2017-0344. State v. Ireland, Slip Opinion No. 2018-Ohio-4494.