Anatomy of a Crime.

The term “dissection” is usually applied to the examination of plants and animals. Some of us had the pleasure of dissecting a frog or baby pig pickled in formaldehyde during high school anatomy. (I remember that the arteries and organs were not as colorful as those in the text book.) But it is also used in relation to written material and to understanding the structure of a sentence. We all had to diagram sentences at some point in elementary or junior high school where we “dissected” the sentence into noun, verb, adverbs and adjectives usually by use of a chart or diagram.

When it comes to understanding criminal law and prosecution of a crime, we need to “dissect” the law. Common understanding is not enough.

For example, we think we understand what it means when someone is charged with committing crime of theft. It means that person stole something, right? But what is “stealing”. Is it stealing if someone puts on item in his pocket with the intent of not paying for it but never leaves the store, and then changes his mind and puts it back? What if he or she leaves the store but then feels remorse and goes back in and puts the item back on the shelf? What if a person picks up a cell phone that she believes to be hers but after leaving the store she realizes that she left her phone at home? Or two year old Brayden picks up a candy bar when his mother wasn’t looking and carries it out of the store? What if a person had an unexpected seizure right before he ran his car off the road and into a ditch. Is this driver guilty of reckless operation or failure to exercise reasonable control of his vehicle?

We know that the prosecution has the burden of proving that the defendant (the person charged with the crime) committed the crime beyond a reasonable doubt. But what is it that the prosecution has to prove? We can only understand this burden if we “dissect” a crime into its elements.

Practically speaking we can identify crimes in two broad categories: Felonies and misdemeanors. Both felonies and misdemeanors come in different degrees. Some felonies are classified as capital offenses for which the death penalty can be imposed. Regardless of the sentence, individual crimes are classified broadly as felonies or misdemeanors by statute.  But if the offense is not specifically classified, it is a felony if imprisonment for more than one year may be imposed as a penalty; and a misdemeanor if imprisonment for not more than one year may be imposed as a penalty. See ORC 2901.02.

The specific crimes are identified by the state in its statute or Code which make up that states laws. In Ohio, crimes are identified in Chapter 29 of the Ohio Revised Code. See ORC 29. The traffic offenses are identified in Chapter 45. See ORC 45. When dissecting the specific crime, whether felonies or misdemeanors, we identify what “elements” must be present for a person to be charged and convicted of a crime. The prosecution has prove that each of the required elements must be present beyond a reasonable doubt for the Defendant to be found guilty.

The number of elements required for a specific offense may vary but there are usually four elements that need to be established:

  1. The act or mission to act.
  2. The mental state required as it relates to EACH element of the crime (it may differ for each of the elements).
  3. The result necessary for the crime (e.g. in a murder or manslaughter offense there must be a death).
  4. The necessary circumstances or condition that may be required (e.g. whether a drug offense occurs within a certain distance from a school).

The first two elements are the basis of all criminal liability in Ohio. If either of those are missing, a person cannot be found guilty of a crime. See ORC 2901.21. Sometimes the required mental state may be referred to as the required degree of culpability for each of the elements of the offense, in other words, degree of “fault”. But there are some offenses that have the purpose of imposing strict criminal liability for the conduct described without referring to culpability. Speeding is such an offense. The prosecutor does not have to prove the driver intended to speed, nor that he or she knew they were speeding nor even that the driver was negligent in speeding. All the prosecutor has to prove is that the driver was speeding. Period. Speeding is the prohibited conduct for which strict liability is imposed.

But even if strict liability is to be imposed, the act or omission to act must be voluntary. Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition, are not voluntary acts. ORC 2901.21(D)(2). You should not confuse an involuntary act with an unintentional act. If you turn suddenly and your arm strikes a passerby who was rushing past you, you may not have intended to strike the person, but your act of turning was a voluntary act. If you were at McDonald’s having your morning coffee and had a seizure, the act of spilling hot coffee on your neighbor would not be a voluntary act.

There are four degrees of mental states or culpability. See O.R.C. 2901.22. It is proper to talk about degree of fault. A person can act purposely by intending the act and result. A person can act knowingly if he or she knew the conduct could bring about a result even if he or she didn’t intend it. A person can act recklessly by being grossly indifferent to the consequences of his or her actions even though he or she may not have been aware of what might happen. A person can act negligently by failing to exercise that degree of car that an ordinary an reason person would have exercised under the same of similar conditions. ORC 2901.22 gives the following detailed description of these four mental states:

“(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.

(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.”  ORC 2901.22.

If you are charged with a crime, don’t enter of plea of guilty or no contest just because you feel guilty or because you “want to get it over with”. You should discuss this matter with your attorney.

For more information contact me.www.candito.com

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