MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION

I. Summary

This Court’s decision in State v. Yarbrough (2004), 104 Ohio St.3d 1, overlooked

two distinct grounds upon which Jefferson County and the State of Ohio had jurisdiction

to hear the aggravated murder charges against Appellant, Terrell Yarbrough. This Court

is thus required to reinstate his conviction for aggravated murder.

First, overwhelming evidence demonstrates that parts of the bodies of the victims

were found in this state. Therefore, the deaths of both Brian Muha and Aaron Land are

presumed to have occurred within this state (R.C. 2901.11(B)) and Ohio consequently

had jurisdiction over the aggravated murder charges under R.C. 2901.11(A)(1).

Second, this Court’s decision misapplied R.C. 2901.11(B) by extending its

coverage to all of R.C. 2901.11(A). The very language in R.C. 2901.11(B) specifically

states that it refers only to division (A)(1) of R.C. 2901.11. R.C. 2901.11(B) only requires

that “the act that causes death, or the physical contact that causes death, or the death

itself” occur in Ohio for jurisdiction to be found under division (A)(1).

R.C. 2901.11(A)(2), on the other hand, gives Ohio jurisdiction over a homicide –

and indeed, every other kind of crime – when none of its elements occur in Ohio,

provided that the activity which does occur in Ohio amounts to the statutory definition of

the offense of conspiracy (R.C. 2923.01), attempt (R.C. 2923.02) or complicity (R.C.

2923.03). The fact that Yarbrough inflicted the physical blow causing death outside of

Ohio simply means that, if Ohio is to have jurisdiction over the homicide, it must be

found under division (A)(2), and not (A)(1). Construing division (A)(2) as granting

jurisdiction only over actual charges of conspiracy, complicity and attempt (see State v.

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Yarbrough, 104 Ohio St. 3d at para.50-52) violates numerous rules of statutory

construction and contradicts Ohio case law. Division (A)(2), rather, gives Ohio

jurisdiction over every offense defined in the Revised Code, provided the acts performed

in their furtherance within the borders of Ohio amount to conspiracy, attempt or

complicity. Since Yarbrough clearly conspired with his co-defendant, Nathan “Boo”

Herring, to commit the aggravated murders of Aaron Land and Brian Muha while he was

still in the State of Ohio, the state had jurisdiction under 2901.11(A)(2).

This Court, by misapplying R.C. 2901.11(B) and concomitantly misinterpreting

R.C. 2901.11(A)(2), has impermissibly narrowed the jurisdiction of the State of Ohio.

The effect of this ruling is that a criminal defendant who conspires to commit a homicide

while in this state, does all of his preparation and planning here, even murders a lifelong

resident of this state, yet carries out the actual killing in another state can never be

prosecuted for homicide by this state. Clearly that was not the intent of the Ohio

Legislature in enacting R.C. 2901.11.

II. R.C. 2901.11(A)(1) grants Ohio jurisdiction over the aggravated murder charges because parts of the victims’ bodies were found in Ohio.

R.C. 2901.11(B) unequivocally states, “If any part of the body of a homicide

victim is found in this state, the death is presumed to have occurred within this state.”

The facts of this case plainly indicate that parts of the bodies of both victims were

found in Ohio. The Appellant’s clothes, which were taken from him following his arrest

on May 31, 1999 in Steubenville, Ohio, were covered with blood from both victims. The

clothes, which were subsequently submitted to the FBI crime laboratory in Washington,

D.C., were tested by DNA analyst Julie Kidd. Kidd testified that the Appellant had blood

on his socks and sweat pants and that based upon DNA analysis she could not exclude

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Aaron Land and Brian Muha as contributors of the blood on the Appellant’s clothing.

DNA testing could not eliminate Aaron Land as the contributor of DNA from three

different cuttings of the sweat pants Appellant was wearing when he was arrested in

Steubenville, Ohio. (Tp. 921-922, State’s Exhibit 145). Appellant’s socks, also recovered

in Steubenville, Ohio, had blood and DNA which could not be excluded as being from

Brian Muha. (Tp. 922-924, State’s Exhibit 146).

There is no legal definition of “body part” in the Ohio Revised Code. Merriam-

Webster’s Collegiate Dictionary (10th Ed. 1996) defines “part” as “one of the often

indefinite or unequal subdivisions into which something is or is regarded as divided and

which together constitute the whole; an essential portion or integral element.” Clearly,

blood is a part of the human body.

R.C. 2901.11(B) unambiguously provides that that if a “body part” was found in

Ohio, “the death is presumed to have occurred in this state.” Unlike R.C. 2901.11(D), the

Ohio General Assembly did not specify whether the presumption is conclusive or

rebuttable.1

Assuming the presumption is rebuttable, the Appellant, as evidenced by the fact

that the jurisdictional issue was never raised at trial or on appeal before this Court, never

presented any evidence which rebutted the presumption.

Further and most likely, the Ohio General Assembly intended that in the case of a

homicide where body parts were found in this state that the presumption be conclusive.

This accords with the 1973 Legislative Service Commission comment attached to R.C.

2901.11, which recognized that, “This section is designed to allow the state the broadest

possible jurisdiction over crimes and persons committing crimes in or affecting this state,

1 2 Katz & Giannelli Criminal Law (2nd Ed. 2003), Section 55:4.

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consistent with constitutional limitations.” The limitation that 2901.11(B) places on

subject matter jurisdiction arising under 2901.11(A)(1) thus does not apply to this case.

The State of Ohio was improperly denied subject matter jurisdiction under 2901.11(A)

(1).

III. R.C. 2901.11(A)(2) grants Ohio subject matter jurisdiction over the aggravated murder charges in this case.

This Court erred in failing to find jurisdiction under R.C. § 2901.11(A)(2). The

reasoning it advanced for failing to do so violates various rules of statutory construction

and is inconsistent with Ohio case law.

A. R.C. 2901.11(B) is not a more specific construal of 2901.11(A)(2) and does not limit the subject matter jurisdiction granted therein.

The Court advances two reasons for failing to find jurisdiction under (A)(2) and

both reasons ultimately fail. The Court first invokes a common rule of statutory

construction and asserts that the more specific language of 2901.11(B) trumps the more

general language of 2901.11(A)(2). R.C. 2901.11(B) reads in its entirety:

In homicide, the element referred to in division (A)(1) of this section is either the act that causes death, or the physical contact that causes death, or the death itself. If any part of the body of a homicide victim is found in this state, the death is presumed to have occurred within this state.

The Court refers to this simply as “[t]he jurisdiction that the General

Assembly has created for homicide cases.” State v. Yarbrough, 104 Ohio St.3d at

para.53. By its express terms, however, section (B) is only the jurisdiction that the

General Assembly has created for homicide cases under (A)(1). The plain

language of the statute states that it limits only division (A)(1). The Ohio

Legislature did not limit R.C. 2901.11(A) (2), (3), (4), (5), (6), or (7) by its

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language in R.C. 2901.11(B). Courts give words in a statute their plain and

ordinary meaning unless legislative intent indicates a different meaning. Coventry

Towers, Inc. v. Strongsville (1985), 18 Ohio St.3d 120, 122, 480 N.E.2d 412. This

must be especially true here since it would have been easier for the legislature to

apply section (B) simply to “section (A)” instead, or simply to leave out reference

to section (A) altogether and simply state in section (B), “Jurisdiction over

homicides is only had when the act causing death, the physical blow, or the death

itself occurs in Ohio.” Instead, the legislature singled out one specific division of

section (A). “A court must interpret a statute so as to give effect to every word in

it.” Naylor v. Cardinal Local School Board of Education (1994), 69 Ohio St.3d

162, 170. This Court cannot act as though section (B) were intended to limit

division (A)(2).

This Court limited apples with oranges when it attempted to limit the

jurisdiction granted in division (A)(2) with section (B). The specific can only

control the general when the specific and the general have the same subject

matter. Division (A)(1) articulates the general relation between elements of

offenses and the state’s jurisdiction over offenses, and section (B) articulates the

relation between the elements of one particular offense and the state’s jurisdiction

over that offense. Section (B) and division (A)(1) have the same subject matter.

Division (A)(2), on the other hand, says nothing about elements of an offense and

their relation to the state’s jurisdiction over that offense. By its plain language, it

has nothing to do with the occurrence of elements within the state. If the

legislature intended division (A)(1)’s element requirement to apply to (A)(2), it

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easily could have done so by making (A)(2) a subdivision of (A)(1). The

legislature, however, made it a grant of jurisdiction parallel to (A)(1). It says

nothing about elements, and therefore has nothing to do with section (B), which

speaks only in terms of elements.2

Section (B) and division (A)(2) must, of course, be construed so as to be

consistent with each other. But this does not mean that one is a more specific

construal of the other. If that were the case, then every statute with specific

wording would be a more specific construal of every statute with general

wording, since every statute must be read to be consistent with every other. The

fact that section (B) discusses a specific crime does not ipso facto make it a more

specific construal of division (A)(2): the former relates to division (A)(1), where

jurisdiction is founded upon the occurrence of an element; the latter, on the other

hand, is grounded in the occurrence of statutorily defined inchoate activity.

Nowhere does R.C. 2901.11(A)(2) state that homicides are to be treated

differently. The General Assembly clearly left open the possibility under (A)(2) that a

person could be prosecuted in this state for conspiring in this state to commit a homicide

regardless of whether or not the homicide occurred in this state. That is exactly what the

Appellant in this case did.

2 Finding that jurisdiction is only had under (A)(2) when an element of the crime occurred in Ohio would furthermore violate the rule against surplusage. This is discussed more fully below.

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B. R.C. 2901.11(A)(2) grants Ohio jurisdiction over any crime committed wholly out of state when acts performed in Ohio in its furtherance constitutethe offense of conspiracy, attempt or complicity; it does not restrict Ohio’s jurisdiction to actual charges of conspiracy, attempt or complicity.

This Court’s second reason for failing to find jurisdiction is that it believes

(A)(2) allows for jurisdiction only over actual charged crimes of attempt,

conspiracy and complicity. It begins its discussion of (A)(2) by saying, “In their

supplemental brief and at oral argument, Yarbrough's appellate attorneys

suggested that Yarbrough could be indicted and tried in Ohio for complicity to

murder Land and Muha. R.C. 2901.11(A)(2). However, we find that Yarbrough

cannot be tried for complicity to commit aggravated murder of Land and Muha.”

State v. Yarbrough, 104 Ohio St. 3d at para. 50 (emphasis added). The Court then

expressly interprets 2901.11(A)(2): “In other words, as long as the conspiracy, the

attempt or the complicity occurred in Ohio, the fact that the related crime or

attempted crime occurred or was supposed to occur elsewhere does not generally

deprive Ohio courts of their jurisdiction to hear the conspiracy or attempt or

complicity charges.” State v. Yarbrough, 104 Ohio St.3d at para. 51 (emphasis

added). The Court here expressly juxtaposed the “related crime” and the

conspiracy, attempt and complicity charges, and found 2901.11(A)(2) to grant

jurisdiction only over the latter. It goes on to state, "The express and distinct

jurisdiction governing homicide prosecutions trumps the general language in the

statute about Ohio courts' jurisdiction hear conspiracy, attempt, and complicity

charges involving myriad crimes.” Ibid at para. 52. The state, however, is

forbidden from “recasting a homicide case as a complicity-to-commit homicide

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case” and thus Ohio does not have jurisdiction under (A)(2). Ibid at para. 53.

From the beginning to the end of its discussion of 2901.11(A)(2), then, this Court

construed it to give Ohio jurisdiction only over actual charges of conspiracy,

attempt and complicity, and not over the crimes of full commission to which they

relate.

Interpreting the statute in this way violates more than one rule of statutory

construction, and contradicts the way in which Ohio case law interprets

2901.11(A)(2).

1. The Court’s interpretation violates the rule against surplusage.

The rule against surplusage is a cardinal rule of statutory construction. State v.

Arnold (1991), 61 Ohio St.3d 175, 178. It states that statutes shall not be construed in

ways that render one or more provisions to be without independent meaning. “A court

must interpret a statute so as to give effect to every word in it.” Naylor v. Cardinal Local

School Board of Education (1994), 69 Ohio St.3d 162, 170. This court shuns

interpretations which make parts of statutes redundant. See Perrysburg Township v.

Rossford (2004), 103 Ohio St.3d 79, 81 (“If…we interpret the list of examples in the

second sentence as providing specific examples of what forms such securities, as defined

by the first sentence, may take, then the second sentence is surplusage. Instead, we

conclude that the second sentence is substantive.” (internal quotes omitted)); Jones v.

Chagrin Falls (1997), 77 Ohio St.3d 456, 461 (“If failure to exhaust remedies deprived

the trial court of subject matter jurisdiction, the ‘asserted and maintained’ language

would amount to mere surplusage.”). See also Duncan v. Walker, 121 S.Ct. 2120, 2125

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(“It is our duty to give effect, if possible, to every clause and word of a statute….We are

thus reluctant to treat statutory terms as surplusage.” (internal quotes omitted))

The Court’s interpretation of 2901.11(A)(2) reduces it to mere surplusage. The

Court states that (A)(2) gives Ohio jurisdiction over charges of conspiracy, attempt and

complicity when the related offense happens out of state. It goes without saying, though,

that if the actual offense of conspiracy, attempt or complicity occurs in Ohio, Ohio has

jurisdiction over those crimes. This is so basic as to not need saying. For reasons now

widely accepted in American jurisprudence, conspiracy, attempt and complicity are,

though inchoate, considered to be serious enough sources of harm as to merit express

criminalization. It would be as ridiculous for the legislature to create a separate provision

saying, “When conspiracy happens in Ohio, Ohio has jurisdiction” as to create one

saying, “When robbery happens in Ohio, Ohio has jurisdiction.” Even if only one element

of the conspiracy, attempt or complicity occurs in Ohio, Ohio would already have

jurisdiction under 2901.11(A)(1), which reads:

(A) A person is subject to criminal prosecution and punishment in this state if any of the following occur:(1) The person commits an offense under the laws of this state, any element of which takes place in this state. (emphasis added)

Conspiracy, attempt and complicity are statutorily defined offenses. According to

2901.03(B), “An offense is defined when one or more sections of the Revised Code state

a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such

prohibition or failure to meet such duty.” The crimes of conspiracy, attempt and

complicity are so defined in 2923.01, 2923.02 and 2923.03, respectively. Ohio has

jurisdiction under (A)(1) when any element of these offenses occurs in Ohio. There is no

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need to state in a separate provision that when a crime is completed out of state, the

conspiracy/attempt/complicity charges can be brought in state if the

conspiracy/attempt/complicity crime happened in the state. If even one element of the

conspiracy/attempt/complicity crime happened in the state, then the state already has

jurisdiction under (A)(1). Ohio is still harmed by criminal conspiracy, attempt and

complicity that takes place on its soil, regardless of whether the completed offense occurs

or is intended to occur in Ohio. See Legislative Comment to 2901.11 (“This section is

designed to allow the state the broadest possible jurisdiction over crimes and persons

committing crimes in or affecting this state.” (emphasis added)). There is no reason to

treat these charges differently for jurisdictional purposes. The Court’s interpretation

reduces (A)(2) to utter surplusage, and is thus disfavored.

2. The Court’s interpretation results in patent absurdities.

It is another cardinal rule of statutory interpretation that courts must construe

statutes so as to avoid absurd results. Hubbard v. Canton City School Board of Education

(2002), 97 Ohio St.3d 451, 456; State ex rel. Cinicinnati Post v. Cincinnati (1996), 76

Ohio St.3d 540, 543-44. The Court’s construction of (A)(2), however, produces such

results. The Court holds that even when a crime occurs wholly out of state, (A)(2) gives

Ohio jurisdiction “to hear the conspiracy or attempt or complicity charges” related to the

offense. The Court’s interpretation then allows for a criminal to be convicted of both, for

instance, attempted robbery and actual robbery for one and the same criminal act simply

because that act crosses a state border. R.C. 2923.02(C), however, states that no criminal

convicted of a specific offense can also be convicted of an attempt to commit that same

offense. By its plain language, 2923.02(C) makes no exception for instances where the

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related crime occurs out of state. The Court’s interpretation of a jurisdictional statute thus

allows for a conviction which a definitional statute expressly sought to foreclose. This

construction of a jurisdictional statute furthermore contradicts R.C. 2901.04(B), which

states, “Rules of criminal procedure and sections of the Revised Code providing for

criminal procedure shall be construed so as to effect the fair, impartial, speedy, and sure

administration of justice” (emphasis added). It is anything but fair to a criminal, though,

to allow for the bringing of added charges simply because his criminal act crossed a state

line. This Court’s interpretation of 2901.11(A)(2) opens up significant new possibilities

for criminal conviction, far beyond what the General Assembly intended. What’s more,

when prosecutors begin securing attempt convictions against criminals convicted of

actual commission of the same offense in another state, Ohio courts will have trouble

upholding those convictions, since “sections of the Revised Code defining offenses or

penalties shall be strictly construed against the state, and liberally construed in favor of

the accused.” R.C. 2901.04(A). It would be absurd, then, to allow a purely jurisdictional

statute to contradict the express provision of a definitional statute, particularly when an

alternative plain reading of that jurisdictional statute is possible.

A similar absurdity results in the case of conspiracy. R.C. 2923.01(G) states,

“When a person is convicted of committing or attempting to commit a specific offense or

of complicity in the commission of or attempt to commit the specific offense, the person

shall not be convicted of conspiracy involving the same offense.” Like the parallel

attempt statute, this statute does not limit itself to convictions which happen in this state.

Indeed, the Legislative Services Comment to 2923.01 reads, “Although this section does

not replace any other conspiracy offenses defined in the Revised Code, the rules,

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exceptions, and defenses defined in this section are expressly made applicable to such

other offenses.” The rule laid out in R.C. 2923.01(G), then, would expressly apply to

R.C. 2901.11(A)(2) if the latter concerned actual charges of conspiracy, and would

prevent conspiracy charges from being brought in Ohio when a conviction for that crime

occurred out of state. Once again, this Court’s construal of a purely jurisdictional statute

results in the contradiction of what is expressly laid out in a definitional statute.

IV. The interpretation of 2901.11(A)(2) advocated here is just as plain and just as literal as the one advanced by the Court.

R.C. 2901.11(A)(2) is susceptible of another plain reading. The statute gives Ohio

jurisdiction over offenses occurring out of state when they are conspired to or attempted

in the state, or when complicity in their occurrence takes place in the state. The statute

does not limit Ohio’s jurisdiction to the conspiracy, attempt or complicity, nor does it

require that actual charges of conspiracy, attempt or complicity be brought in order for

Ohio to have jurisdiction over the out of state offense. The Ohio legislature simply

adopted concepts commonly used in the legal community to designate certain specific

kinds of inchoate activity which should give Ohio jurisdiction over crimes occurring out

of state. These terms have a long, well-developed jurisprudential history, and afforded the

legislature a sensible way to give Ohio jurisdiction over crimes which happen outside of

its borders and yet negatively impact the state. See Legislative Comment to 2901.11

(“This section is designed to allow the state the broadest possible jurisdiction over crimes

and persons committing crimes in or affecting this state[.]” (emphasis added)). For

various reasons, American and Ohio jurisprudence consider acts of conspiracy, attempt

and complicity to be substantial enough to constitute their own offenses, despite the fact

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that they aren’t acts of full commission.3 That substantiality is used in 2901.11(A)(2) not

to define an offense, but to delimit situations where out of state offenses affect Ohio

substantially enough to give it jurisdiction over those offenses. 2901.11(A)(2) thus gives

Ohio jurisdiction over offenses committed wholly out of state when the related activity

occurring in Ohio is substantial enough to meet the statutory requirements for conspiracy

(2923.01), attempt (2923.02) or complicity (2923.03). If every element of a robbery

occurs outside of Ohio, but the criminal “plan[s] or aid[s] in planning the commission of”

the robbery with another while in Ohio (2923.01(A)(1)) and performs an overt act in

furtherance of the robbery while still in Ohio (2923.01(B)), Ohio would have jurisdiction

over the robbery. Similarly in the case at bar, if every single element of a homicide

happens outside of the state, but a criminal plans or aids in the planning of the homicide

with another while in Ohio and performs an overt act in its furtherance, Ohio has

jurisdiction to try the homicide. The fact that 2901.11(B) makes only one element

relevant in the case of homicides is completely immaterial; 2901.11(A)(2) gives Ohio

jurisdiction over crimes when none of their elements occur in state. The connection to the

territorial borders of Ohio required by 2901.11(A)(2) is not that of the occurrence of an

element, but the occurrence of conspiracy, attempt or complicity, each of which is

separately defined in the Revised Code and none of which necessarily equates with any

of a given crime’s elements.

A. This interpretation is the one adopted in Ohio case law.

The little Ohio case law that might help us construe 2901.11(A)(2) supports the

interpretation offered here. In State v. Wesley, the defendant appealed his conviction on

3 It is for this reason that “the statutes [] produce a different result when the murderer plans the crime in Ohio with others before leaving the state to commit the homicide itself.” See State v. Yarbrough, 104 Ohio St.3d at para. 53.

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two counts of rape and one count of kidnapping. The kidnapping took place in Ohio

(State v. Wesley (1980), 1980 WL 351410, Ohio App. 6 Dist., *1), but the rapes occurred

in Michigan (Ibid at *2). He challenged Ohio’s jurisdiction to try the rapes since they

happened in Michigan. Ibid. The court found that jurisdiction could be had under either

2901.11(A)(1) or 2901.11(A)(2). The court first found that, since two of the elements of

rape occurred in Ohio (threatening the use of force and forming the requisite purpose),

Ohio had jurisdiction under 2901.11(A)(1). Ibid at *3. The court then went on to find

that, since the defendant’s actions in Ohio constituted an “attempt” – as “attempt” is

defined in 2923.02(A) – to commit rape, Ohio also could have had jurisdiction over the

Michigan rapes under (A)(2). Ibid. The court treats this as sufficient for jurisdictional

purposes. It says nothing in its analysis of (A)(2) about one of the elements having to

occur in Ohio. That, after all, is what its analysis of (A)(1) was about. The court, then,

interprets (A)(2) in exactly the manner being advocated here: When the activity occurring

in Ohio amounts to the statutory definition of (in this case) attempt, Ohio has jurisdiction

over the crime of full commission even when none of its elements occur within the state.

State v. King also supports the interpretation of (A)(2) being advanced here.

There, defendants King and McDaniel were both indicted on charges of theft, and

defendant King was also indicted on two counts of forgery. State v. King (1989), 1989

WL 83577, Ohio App. 10 Dist., *1. McDaniel was ultimately convicted on the theft

count, and King on one of the forgery counts. Ibid at *2. On appeal they alleged that their

trial had not occurred in the appropriate venue. Ibid. The state countered that when acts

of complicity are involved, 2901.12(D) grants venue in any jurisdiction in which the

complicity took place. Ibid at *3. The court dismissed this reasoning, stating that

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2901.12(D), by its express terms, refers to offenses cognizable under 2901.11(A)(2). It

then stated, “R.C. 2901.12(D) is thus directed at the situation in which only inchoate

criminal activity has occurred in Ohio while the greater manifestation of the offense has

occurred in another state.” Ibid. But because the events involved in State v. King all took

place within Ohio, the state could not invoke 2901.12(D) to establish venue. Ibid. The

court, then, understood 2901.12(D) and 2901.11(A)(2) to establish venue and jurisdiction

for crimes of full commission (here, theft and forgery), and finds that venue was

inappropriate not because there were not charges of complicity, but rather because the

crimes to which the acts of complicity, relied upon by the state, were related, all occurred

in Ohio.

B. This interpretation violates none of the above rules of statutory construction.

This reading of the statute is just as plain as the one advanced by the Court, and

violates none of the rules of statutory construction that the Court’s does. This reading,

like the Court’s, is a literal reading of the statute, and like the Court’s, employs the

technical, legal meaning of the terms found in (A)(2) as they are defined in the Revised

Code. It does not, however, violate the rule against surplusage. It interprets (A)(2) as a

grant of jurisdiction not already had under 2901.11(A)(1). Division (A)(2), unlike (A)(1),

gives Ohio jurisdiction over a crime even when none of its elements occur in Ohio,

provided it has a substantial connection to Ohio of one of three specifically defined kinds.

Nor does it result in any of the absurdities the Court’s interpretation gives rise to. It does

not allow a criminal to be convicted, for example, of both attempted and actual robbery

for one and the same act, and thus does not violate R.C. 2923.02(C) in the way this

Court’s interpretation does. By granting Ohio jurisdiction over the actual robbery, this

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interpretation avoids the problem the Court’s construal encounters in 2923.02(C) and

2923.01(G).

C. This interpretation coheres with the purpose of the jurisdiction statute.

This interpretation of 2901.11(A)(2) has the further advantage of cohering with

the legislative purpose of the statute. The Legislative Comment to 2901.11 states, “This

section is designed to allow the state the broadest possible jurisdiction over crimes and

persons committing crimes in or affecting this state, consistent with constitutional

limitations.” The interpretation offered here gives Ohio jurisdiction over offenses that

2901.11(A)(1) does not, including the offense of murder in the case at bar. The Court’s

interpretation, on the other hand, restricts Ohio’s jurisdiction to offenses already covered

under (A)(1), and does not allow for jurisdiction in the present case.

The interpretation offered here not only comports with the legislative purpose

behind 2901.11, but also comports with the manner in which the General Assembly

intended procedural statutes in general to be construed. “Rules of criminal procedure and

sections of the Revised Code providing for criminal procedure shall be construed so as to

effect the fair, impartial, speedy, and sure administration of justice.” R.C. 2901.04(B). As

mentioned in earlier, the Court’s construal of 2901.11(A)(2) is not fair to a criminal

because it multiplies the offenses for which he can be convicted simply because his

criminal act crossed a state border. The Court’s interpretation also makes the speedy

administration of justice harder to effect, because it results in the possibility that one and

the same act be tried twice, under different guises. This is all the more true in the felony-

murder context, where the felonies underlying the murder will potentially be litigated

twice. Ohio, should it so choose, would prosecute the underlying felonies. But the state in

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which the actual homicide occurred would also be forced to establish that these felonies

in fact occurred, in order to ground its felony-murder charge. This is anything but a

speedy administration of justice. The interpretation of 2901.11(A)(2) offered here,

however, encounters none of these difficulties, and allows for the speedy administration

of justice in a way that is fair to the accused.

The legislative purpose becomes particularly important in light of the fact that a

plain reading other than the one offered by the Court is possible. Assuming, arguendo,

that none of the criticisms of the Court’s interpretation offered in Section III of this

memo are viable, this case still involves two possible plain readings of 2901.11(A)(2),

one which comports with the statute’s purpose and one which does not. “Since the

statutory provision at issue is subject to varying interpretations, it is fair to say that it is

ambiguous. Therefore, [it] must be construed to give effect to the legislative intent.”

Wolfe v. Wolfe, 88 Ohio St.3d 246, 248. In determining intent, a court looks to the

language of the statute and also considers “both the objective of the statute and the

consequences of any particular construction.” Ibid at 249.

The language of the statute has been discussed at length. The object of

2901.11(A)(2) – that Ohio have the broadest possible jurisdiction – clearly favors this

interpretation and disfavors the Court’s. And the consequences of this interpretation vis-

à-vis the Court’s also clearly favor it. To construe R.C. 2901.11(A)(2) as this Court did

permits criminals in the State of Ohio to conspire with others while in this state to

commit murder in another state but not subject them to the jurisdiction of this state. For

instance and with all due respect, an individual living in Steubenville, Ohio could

conspire while in Steubenville to kill an Ohio resident in Pittsburgh, Pennsylvania. The

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Defendant could provide a firearm, ammunition, instruct and train his complicitor in the

use of the weapon, provide a detailed itinerary for the intended, rent for himself and his

complicitor a motor vehicle to get to Pennsylvania and pay for the gas used to get to

there. Provided all of the actions except the death took place in Ohio, the defendant could

not be charged with murder in Ohio for his actions after he killed the intended victim in

the State of Pennsylvania, simply because of this Court’s construal of 2901.11(A)(2).

Clearly the General Assembly did not intend such consequences when it enacted

R.C.2901.11(B).

V. The evidence of this case clearly demonstrates that Appellant both conspired, while in Ohio, to murder the victims, and also attempted such murder while in Ohio.

According to the Appellant, he and his accomplice, Nathan “Boo” Herring, went

into the McDowell residence to do a “lick” which the Appellant described as a robbery.

Most importantly for purposes of finding that the Appellant while in this state conspired

with another to commit the murders of Aaron Land and Brian Muha, the Appellant told

Steubenville Police that if he and his accomplice did not get money from the robbery at

the house in Steubenville, Ohio, they were predisposed to murder someone. (State’s

Exhibit 156).

The urgency of carrying out the conspiracy to murder the victims was hastened by

the fact that the surviving roommate, Andrew Doran, confronted the Appellant and his

co-conspirator in the living room of the Steubenville, Ohio, home and overheard “Oh,

fuck, we have another one here.” (Tp. 852). Indeed, it could reasonably be inferred that

the attempt at murder was already underway, and that, had Doran not been present, the

murders would have taken place in Steubenville. The severe beating Doran interrupted

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clearly constitutes “conduct that, if successful, would [have] constituted or result[ed] in”

(R.C. 2923.02(A)) the murders of Aaron Land and Brian Muha.

VI. Conclusion

Because parts of the bodies of both victims were found in Ohio there is a

presumption that the aggravated murders occurred in Ohio and Ohio has subject-matter

jurisdiction. Because the Ohio Legislature in enacting R.C. 2901.11 intended to make

Ohio’s criminal jurisdiction as broad as possible they did not create a rebuttable

presumption in that statue. Rather, the presumption is conclusive and Ohio has

jurisdiction. Therefore, this Court must reinstate the aggravated murder convictions and

the death penalty.

Additionally, the Court’s decision misconstrued the meaning of R.C. 2901.11(B)

and determined that R.C. 2901.11(B) limited subject-matter jurisdiction under all of the

subsections contained in R.C. 2901.11(A). Clearly R.C. 2901.11(B) is not written to limit

jurisdiction to all subsections under R.C. 2901.11(A) but rather only to subdivision (A)

(1). The effect of such an interpretation would create unreasonable and absurd results.

In the case at bar there was ample evidence that the Appellant conspired with

another while in Ohio to commit the aggravated murders of Aaron Land and Brian Muha.

Again, the aggravated murder convictions and death sentence should be reinstated.

WHEREFORE, for the foregoing reasons, Appellee prays for an Order of this

Court granting reconsideration of its decision of December 1, 2004.

Respectfully submitted,

___________________________________CHRISTOPHER D. BECKER (0047252)Counsel of Record-Special ProsecutorJefferson County, Ohio

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284 Portal DriveCortland, Ohio 44410 Telephone: (330) 883-9510

CERTIFICATE OF SERVICE

A copy of the foregoing was mailed by regular U.S. Mail this 9th day of

December, 2004 to David H. Bodiker and Kelly Culshaw, Counsel of Record, Office of

the State Public Defender, 8 East Long Street, 11th Floor, Columbus, Ohio 43266-0587.

CHRISTOPHER D. BECKER (0047252)COUNSEL OF RECORDSPECIAL PROSECUTOR JEFFERSON COUNTY

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