State v. Golsby , 2020 Ohio 4651 ( 2020 )

[Cite as State v. Golsby, 2020-Ohio-4651.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 18AP-322
(C.P.C. No. 17CR-912)
v. :
(REGULAR CALENDAR)
Brian L. Golsby, :
Defendant-Appellee. :
D E C I S I O N
Rendered on September 29, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellant. Argued: Ron O'Brien.
On brief: Yeura Venters, Public Defender, and Timothy E.
Pierce, for appellee. Argued: Timothy E. Pierce.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals, pursuant to leave of court granted
under R.C. 2945.67, from a judgment entry of the Franklin County Court of Common Pleas
finding defendant-appellee, Brian L. Golsby, guilty of aggravated murder, aggravated
robbery, kidnapping, rape, tampering with evidence, and having weapons while under
disability and sentencing him to 105 years consecutive to life in prison without the
possibility of parole. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed March 31, 2017, the state charged Golsby with four counts
of aggravated murder, in violation of R.C. 2903.01, all unclassified felonies, and all
containing four accompanying capital specifications; three counts of kidnapping in
No. 18AP-322 2
violation of R.C. 2905.01, first-degree felonies; seven counts of aggravated robbery in
violation of R.C. 2911.01, first-degree felonies; one count of rape in violation of R.C.
2907.02, a first-degree felony; two counts of tampering with evidence in violation of R.C.
2921.12, third-degree felonies; and one count of having weapons while under disability in
violation of R.C. 2923.13, a third-degree felony. The indictment contained numerous
firearm specifications, repeat violent offender ("RVO") specifications, sexually violent
predator specifications, and a sexual motivation specification. Of the 18 counts contained
in the indictment, ten related to the aggravated murder, kidnapping, aggravated robbery,
and rape of Reagan Tokes on February 8 to 9, 2017. The remaining eight charges related
to a series of aggravated robberies involving six different victims occurring from January 24
to February 7, 2017. Golsby entered a plea of not guilty.
{¶ 3} The trial court ordered a separate trial for the ten counts related to Tokes. In
March 2018, the matter proceeded to a jury trial on all counts except for the having weapons
under disability count and several of the accompanying specifications. At the conclusion of
the trial, a jury found Golsby guilty on all counts, namely four counts of aggravated murder,
one count of kidnapping, one count of aggravated robbery, one count of rape, and two
counts of tampering with evidence, along with all capital and firearm specifications
submitted to it. The trial court, pursuant to a bench trial, found Golsby guilty of the having
weapons under disability count, the sexual motivation specification, the sexually violent
predator specifications, and the RVO specifications.
{¶ 4} The case proceeded to the penalty phase on the aggravated murder counts.
The trial court merged the escaping detention aggravating circumstance, leaving three
remaining aggravating circumstances: that Golsby committed the aggravated murder while
he was committing, attempting to commit or fleeing after committing or attempting to
commit aggravated robbery, kidnapping, and rape, and either Golsby was the principal
offender in the commission of the aggravated murder or, if not the principal offender,
committed the aggravated murder with prior calculation and design.
{¶ 5} Prior to the trial court's final charge to the jury before it deliberated on the
possible imposition of the death penalty, the parties discussed the jury instructions with
the trial court. The state objected to language in the existing draft of the final instructions
stating that the defendant does not have any burden. The state orally requested an
No. 18AP-322 3
instruction that the defense bears the burden of persuasion by a preponderance of the
evidence to establish the existence of mitigating factors. After hearing the state's argument,
the trial court refused the state's request for an additional instruction related to defendant's
burden, noting, among other reasons, that the state's requested preponderance instruction
was not included in the Ohio Jury Instructions ("OJI") and that giving the preponderance
instruction could be "confusing" to the jury. (Tr. Vol. VII at 1494-95.)
{¶ 6} In its final instructions to the jury, consistent with the written instructions
previously submitted, the trial court instructed the jury as follows:
In order for you to decide that the sentence of death shall be
imposed upon Brian Lee Golsby, the State of Ohio must prove
beyond a reasonable doubt that the aggravating circumstances
of which you found the defendant guilty are sufficient to
outweigh the factors in mitigation of imposing the death
sentence. The defendant has the obligation of going forward
with the mitigating factors but no burden of proof.
***
* * * The State has the burden of proving the aggravating
circumstances outweigh the mitigating factors beyond a
reasonable doubt.
(Tr. Vol. VII at 1773-74.)
{¶ 7} Further, the trial court instructed the jury that if it could not unanimously
agree on the imposition of the death penalty, it must then consider the life sentence
alternatives. Specifically, the trial court stated:
You are not required to unanimously find that the State failed
to prove that the aggravating circumstances outweigh the
mitigating factors before considering one of the life alternative
- - one of the life sentence alternatives. You should proceed to
consider and choose one of the life sentence alternatives if any
one or more of you conclude that the State has failed to prove
beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors.
One juror may prevent a death penalty determination if the
juror concludes that the State has failed to prove that the
aggravating circumstances outweigh the mitigating factors
beyond a reasonable doubt. However, you must be unanimous
on one of the life sentence alternatives before you can render
No. 18AP-322 4
that verdict to the Court. If you cannot unanimously agree on
a specific life sentence, you'll then inform the Court by written
note that you're unable to render a sentencing verdict.
(Tr. Vol. VII at 1781.) Additionally, in explaining the verdict forms, the trial court instructed
the jury that it was being given a specific form to return in the event that one or more jurors
disagree and the jury is deadlocked on whether the aggravating circumstances outweigh the
mitigating factors, instructing them that in that situation the jury must go on to consider
one of the life sentence alternatives.
{¶ 8} During its deliberations, the jury became deadlocked and was unable to agree
on whether the aggravating circumstances outweighed the mitigating factors beyond a
reasonable doubt. As a result, the jury unanimously recommended a sentence of life
imprisonment without parole.
{¶ 9} Subsequently, on April 3, 2018, Golsby entered guilty pleas to six counts of
aggravated robbery without specification, relating to the untried counts from the
indictment. Ultimately, the trial court sentenced Golsby to life without parole on Count 1,
aggravated murder, merging the remaining counts of aggravated murder. After imposing
sentences on the remaining counts and specifications, including two sentences of life
without the possibility of parole for the kidnapping and rape convictions, the trial court
imposed an aggregate sentence of life without parole plus 105 years. The trial court
journalized Golsby's convictions and sentence in an April 6, 2018 judgment entry.
Subsequently, the trial court issued an amended judgment entry on April 20, 2018.
{¶ 10} Golsby initially filed a timely appeal. The state then filed a notice of cross-
appeal, seeking leave of court to appeal the trial court's ruling on the jury instructions
during the penalty phase. Golsby then moved to voluntarily dismiss his appeal, and this
court granted his motion to dismiss in a June 4, 2018 journal entry. In an April 30, 2019
decision, this court granted the state's motion for leave to cross-appeal pursuant to
App.R. 5(C) and R.C. 2945.67(A) on the grounds that the issue presented is capable of
repetition yet evading review. State v. Golsby, 10th Dist. No. 18AP-322, 2019-Ohio-1618.
No. 18AP-322 5
II. Assignment of Error
{¶ 11} The state assigns the following error for our review:
The trial court erred and abused its discretion in the penalty
phase when it refused to instruct the jury on defendant's
preponderance burden and instead instructed the jury that
defendant bore no burden of proof.
III. Analysis
{¶ 12} In its sole assignment of error, the state argues the trial court erred when it
instructed the jury on the burden of proof during the penalty phase. More specifically, the
state asserts the trial court erred in stating the defendant has "no burden of proof" and in
declining to instruct the jury that the defendant bore the burden of proving the existence of
mitigating factors by a preponderance of the evidence.
A. Potential Resentencing Implications
{¶ 13} At the outset, we note that Golsby argues that any decision we may render in
this case would be an advisory opinion due to the limitations of either the Double Jeopardy
Clause or the statutory scheme governing resentencing in capital cases. Golsby argues that
even if we were to determine the jury instruction here was erroneous and warranted
reversal, the state would not be able to seek imposition of the death penalty on resentencing
and would instead be limited to one of the life sentence options. In support, Golsby asserts
that jeopardy attached to his sentence and that, even if it did not, both R.C. 2929.06(B) and
2929.03(C)(2)(b) would operate to preclude the imposition of the death sentence upon
resentencing. Specifically, Golsby relies on the Supreme Court of Ohio's decision in State
v. Penix, 32 Ohio St.3d 369 (1987), which held:
Since there is no statutory authority allowing the imposition of
the death penalty upon resentencing, we may not create such a
procedure out of whole cloth. Therefore, we hold that when an
accused is tried by jury, and convicted of aggravated murder
with death specification, a death sentence may be imposed by
the trial judge only upon recommendation of the same jury that
tried the guilt phase of the proceedings, pursuant to the criteria
set forth in R.C. 2929.03.
Penix at 373. See also State v. Calwise, 7th Dist. No. 00 CA 77, 2003-Ohio-3463, ¶ 52-54
(finding that even if the appellate court were to conclude the trial court erred during the
No. 18AP-322 6
sentencing phase, "reversing and remanding for a new sentencing hearing will not allow
the state to impose the death penalty" because "[i]n Ohio, the jury which finds a capital
defendant guilty of aggravated murder and the specification must be the same jury that
determines the penalty"), citing State v. Carter, 72 Ohio St.3d 545, 559 (1995). The
implication of Golsby's argument is that we need not determine whether the instruction
was erroneous.
{¶ 14} "Ordinarily when there is no case in controversy or any ruling by an appellate
court that would result in an advisory opinion, there will be no appellate review unless the
underlying legal question is capable of repetition yet evading review." State v. Bistricky, 51
Ohio St.3d 157, 158 (1990) (noting a court of appeals retains discretion to accept or decline
review of matters of substantive law the state seeks to appeal in a criminal proceeding). In
granting the state's motion for leave to appeal, this court relied on Bistricky and decided to
exercise its discretion to review the substantive law ruling of the trial court. Golsby at ¶ 3.
We noted, in deciding to exercise our discretion to hear the state's appeal, that "even in
cases where 'principles of double jeopardy bar re-trial, an appellate court's disposition of
such appeals does not result in an advisory opinion where the underlying question is
capable of repetition yet evading review.' " Id. at ¶ 4, quoting State v. Ingram, 12th Dist.
No. CA2006-01-012, 2006-Ohio-4559, ¶ 7, citing Bistricky at 158-59. Thus, even
assuming, without deciding, that Golsby is correct that a trial court could not impose the
death penalty during any potential resentencing in this case, we nonetheless must,
pursuant to our previous decision granting the state leave to appeal, determine the question
presented by the state related to the jury instructions in the penalty phase. Golsby at ¶ 4.
B. Jury Instructions During Penalty Phase
{¶ 15} Ordinarily, the trial court has discretion to decide to give or refuse a particular
instruction, and an appellate court will not disturb that decision absent an abuse of
discretion. State v. Kimkhe, 10th Dist. No. 11AP-433, 2012-Ohio-1964, ¶ 12; State v. Smith,
10th Dist. No. 01AP-848, 2002 Ohio App. LEXIS 1507 (Apr. 2, 2002), citing State v.
Wolons, 44 Ohio St.3d 64, 68 (1989). However, when a jury instruction contains an
incorrect statement of the law, a reviewing court applies a mixed de novo and abuse of
discretion standard of review. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 21,
citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995). Thus, "[i]n examining errors
No. 18AP-322 7
in a jury instruction, a reviewing court must consider the jury charge as a whole and 'must
determine whether the jury charge probably misled the jury in a matter materially affecting
the complaining party's substantial rights.' " Kokitka at 93, quoting Becker v. Lake Cty.
Mem. Hosp. W., 53 Ohio St.3d 202, 208 (1990).
{¶ 16} The state argues the trial court committed reversible error when it instructed
the jury during the penalty phase that Golsby bore no burden of proof. The state argues
that instruction contains an inaccurate statement of applicable law.
{¶ 17} Pursuant to R.C. 2929.03(D)(1), in the penalty phase of a death penalty case,
"[t]he defendant shall have the burden of going forward with the evidence of any factors in
mitigation of the imposition of the sentence of death. The prosecution shall have the
burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances
the defendant was found guilty of committing are sufficient to outweigh the factors in
mitigation of the imposition of the sentence of death." The parties do not dispute that the
defense bears the burden of production of evidence of any mitigating factors, but they
dispute whether the defense bears any burden of proof. Golsby contends the instruction
the trial court provided appropriately tracks the statutory language, but the state responds
that an analysis of the greater statutory scheme suggests a defendant does bear some
burden of persuasion in proving mitigating factors.
{¶ 18} In State v. Jenkins, 15 Ohio St.3d 164 (1984), the Supreme Court considered
an argument that Ohio's statutory scheme failed to explicitly identify whether a defendant
bears the burden of proving mitigating factors in the penalty phase. In construing R.C.
2929.03 in the context of the greater statutory scheme, the Supreme Court stated:
Although the standard is not readily apparent from a reading
of R.C. 2929.03 or 2929.04, the Committee Comment to the
former R.C. 2929.03 resolves any uncertainty. Therein, it is
stated that "* * * [m]itigation must be established by a
preponderance of the evidence and the rules of evidence also
apply in this phase of the trial [except that] (the requirement
for a pre-sentence investigation and report, the requirement
for a psychiatric examination and report, and the provision for
an unsworn statement by the defendant, represent partial
exceptions to the rules of evidence)."
In the present case, the trial court placed the burden of proving
mitigating factors by a preponderance of the evidence upon
No. 18AP-322 8
appellant. Thereafter, the state carried the burden of proving
by proof beyond a reasonable doubt that the aggravating
circumstances appellant was found guilty of committing
outweighed the mitigating factors. Since the trial court
correctly interpreted the standards governing the burden of
proving mitigating factors and by what degree, we are unable
to find merit in this assignment of error.
Jenkins at 171-72. Thus, based on Jenkins, the state argues it was error for the trial court
to instruct the jury that Golsby bore no burden of proof when it should have instructed the
jury Golsby needed to prove mitigating factors by a preponderance of the evidence.
{¶ 19} Subsequent to Jenkins, however, the Supreme Court of Ohio decided State v.
Lawrence, 44 Ohio St.3d 24 (1989). In Lawrence, the Supreme Court held that the
aggravating circumstances of that case did not outweigh the mitigating factors beyond a
reasonable doubt, rendering moot the appellant's argument that he was denied due process
of law when the trial court instructed the jury that the appellant had the burden to prove
the existence of mitigating factors by a preponderance of the evidence before the jury could
weigh them against the aggravating circumstances. Lawrence at 27. Even though the
Supreme Court determined the argument regarding the jury instruction was moot, the
Supreme Court nonetheless stated:
[W]e do believe that a jury instruction that closely tracks R.C.
2929.03(D)(1) and which does not place the burden of proving
the existence of a mitigating factor by a preponderance of the
evidence on the defendant would adequately guide a jury in its
deliberations during the penalty phase of a capital trial.
Further, such an instruction would ensure that Ohio jurors
clearly understand that they are to consider all mitigating
evidence in reaching their sentencing recommendation.
Thus, we believe that it would be the better practice for Ohio
trial judges to follow the precise language of R.C.
2929.03(D)(1) for their penalty-phase jury instructions on this
subject.
Lawrence at 27. Golsby asserts the Supreme Court has never overruled this language in
Lawrence, and thus argues the trial court appropriately instructed the jury that Golsby bore
no burden of proof.
No. 18AP-322 9
{¶ 20} Though the state acknowledges this language from Lawrence, it notes that
Lawrence did not operate to overrule Jenkins and that the Supreme Court has returned to
the holding in Jenkins several times post-Lawrence. See, e.g., State v. Davis, 116 Ohio
St.3d 404, 2008-Ohio-2, ¶ 210-12 (noting Jenkins establishes the defendant has the burden
of establishing mitigating factors by a preponderance of the evidence, but finding no plain
error in the trial court instructing the jury that the defendant "does not have any burden of
proof" because that instruction is a more favorable instruction for a defendant than Jenkins
requires and thus no plain error); State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,
¶ 168 (citing Jenkins for the proposition that "[i]n the penalty phase, the defendant has the
burden of proving, by a preponderance of the evidence, the existence of mitigating factors").
It is worth noting, however, that Jenkins specifically relies on the Committee Comment to
the former version of R.C. 2929.03, the version of the statute with an effective date of
January 1, 1974. That former version of R.C. 2929.03 contained language in the statute
indicating the defendant had to prove mitigating factors by a preponderance of the
evidence. However, in 1981, prior to the Supreme Court of Ohio's decision in Jenkins, the
General Assembly removed the preponderance of the evidence language from R.C. 2929.03
and has not acted to reinsert that language. (1981 Session Laws – Full Text; Former R.C.
2929.03 effective Oct. 19, 1981.) This significant change to the text of the statute renders
Jenkins' reliance on the former Committee Comment questionable.
{¶ 21} Having reviewed the relevant case law, we agree with the state that Lawrence
did not operate to overrule Jenkins, and the two cases co-exist. In Jenkins, there was an
affirmative instruction that the defendant bore the burden of proving mitigating factors by
a preponderance of the evidence, which the Supreme Court concluded was an accurate
statement of the law. Lawrence suggests an instruction that is silent on the defendant's
burden is the best practice. Here, unlike either Jenkins or Lawrence, the trial court
affirmatively instructed the jury that the defendant bore no burden of proof.
{¶ 22} Beyond Jenkins and Lawrence, looking to the Supreme Court of Ohio for
guidance serves to highlight the discretion given to trial courts to instruct the jury. See
Kimkhe at ¶ 12. A review of the case law indicates the Supreme Court has alternately found
a trial court did not err in denying a defendant's motion for a jury instruction that he bore
no burden at the mitigation phase and that a trial court providing the "no burden"
No. 18AP-322 10
instruction at the mitigation phase set forth the correct standard. See State v. Belton, 149
Ohio St.3d 165, 2016-Ohio-1581, ¶ 87 (noting "the defendant bears the burden to prove the
existence of any mitigating factors by a preponderance of the evidence" and "the trial court
did not err by denying Belton's motion for a jury instruction that he bore no burden at the
mitigation phase"), and State v. Hill, 73 Ohio St.3d 433, 438 (1995) ("[t]he trial court clearly
and correctly instructed the jury more than four separate times in final penalty instructions
that the aggravating circumstances had to outweigh mitigating factors before the jury could
recommend the death penalty. The court defined the term 'reasonable doubt,' and
specifically told the jury 'the defendant has no burden of proof,' " deeming this instruction
to be the "correct standard in the sentence proceedings"). See also State v. Sowell, 148
Ohio St.3d 554, 2016-Ohio-8025, ¶ 133-36 (finding "the trial court's instructions properly
conveyed the state's burden of proof" where the trial court instructed the jury that in order
to impose the death penalty, "the State of Ohio must prove beyond a reasonable doubt that
the aggravating circumstances of which the defendant was found guilty are sufficient to
outweigh the factors in mitigation of imposing the death sentence," and "[t]he defendant
does not have any burden of proof"). Additionally, the Supreme Court of Ohio has deemed
an instruction that "defendant does not have the burden of proof" in the penalty phase to
be "more favorable" to a defendant, yet it has stopped short of finding the instruction
erroneous. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 196; Davis at ¶ 210-12
(categorizing the instruction that "[d]efendant does not have any burden of proof" as being
"more favorable instructions on mitigating evidence than required"). What the Supreme
Court of Ohio has not done is declare the "no burden" instruction to be an incorrect
statement of the law.
{¶ 23} We previously addressed an argument by the state challenging a similar "no
burden" instruction as the one at issue here. In State v. Teitelbaum, 10th Dist. No. 14AP-
310, 2016-Ohio-3524, the trial court instructed the jury during the penalty phase as follows:
In order for you to decide the sentence of death shall be
imposed upon Daniel Teitelbaum, the State of Ohio must prove
beyond a reasonable doubt that the aggravating circumstances
of which the defendant was found guilty is sufficient to
outweigh the factors in mitigation of imposing the death
sentence.
No. 18AP-322 11
The defendant does not have any burden of proof. Reasonable
doubt is present when after you have carefully considered and
compared all the evidence, you cannot say you are firmly
convinced that the aggravating circumstance of which the
defendant was found guilty outweighs the mitigating factors.
Teitelbaum at ¶ 61. Teitelbaum appealed his underlying conviction, and the state filed a
cross-appeal challenging the jury instructions during the penalty phase. In considering the
state's assignment of error, we similarly examined the competing lines of cases from the
Supreme Court before reasoning:
We note the jury instruction the trial court provided emanated
from the Ohio Jury Instructions. See State v. Ellis, 10th Dist.
No. 11AP-939, 2012-Ohio-3586, ¶ 12 (noting that, in
determining whether a jury instruction is confusing or
misleading, although "the Ohio Jury Instructions are not
binding legal authority, it is significant that the trial court's
instructions here are also consistent with the language from the
Ohio Jury Instructions"). The state asks us to conclude that the
trial court's instruction contained a misstatement of the law.
However, we need not determine whether the "no burden"
instruction was erroneous because, even assuming for
purposes of argument that it was, there is no demonstration of
the requisite prejudice in order for us to find reversible error.
As we noted above, when a jury instruction contains an error of
law, we will not find reversible error unless the complaining
party can demonstrate the instruction probably misled the jury
in a manner affecting the complaining party's substantial
rights. Kokitka at 93. The state argues the "no burden"
instruction could have led the jury to mistakenly believe that
the state bore the burden of disproving Teitelbaum's proposed
mitigating factors. See State v. Seiber, 56 Ohio St.3d 4, 16
(1990) ("[t]he state need not prove the absence of mitigating
factors, but the state is required to prove beyond a reasonable
doubt that aggravating circumstances outweigh mitigating
factors"), citing Jenkins at 172. However, this argument is
mere speculation. Moreover, in reviewing the entire charge to
the jury during the penalty phase, we conclude the instruction
that Teitelbaum bore no burden of proof probably did not
mislead the jury. In addition to instructing the jury that the
state bore the burden of proving the aggravating circumstances
outweighed the mitigating factors beyond a reasonable doubt,
the trial court also instructed the jurors that they are "the sole
judges of the facts, credibility of the witnesses, and the weight
No. 18AP-322 12
of the evidence. To weigh the evidence you must consider the
credibility of the witnesses including the defendant." (Tr. Vol.
XVIII at 3712.) Thus, the trial court appropriately instructed
the jury that it still needed to weigh the evidence before it,
obviating the state's concern that the jury would assume it
needed to blindly accept any proffered mitigation evidence
from Teitelbaum in the presence of the "no burden"
instruction.
Further, the crux of the trial court's instructions during the
penalty phase emphasized that in order to impose the death
penalty, it was the state, not the defendant, who must convince
the jury beyond a reasonable doubt that the aggravating
circumstances outweighed the mitigating factors. Reviewing
the jury instructions as a whole, we conclude the instructions
adequately conveyed the jury's responsibility in this regard.
The "no burden" instruction, when read in context, serves to
emphasize that [it is] the state's burden to prove the
appropriateness of the imposition of the death penalty. It does
not, as the state asserts, probably mislead the jury in a manner
affecting the state's substantial rights.
Teitelbaum at ¶ 134-36.
{¶ 24} Though it addresses a very similar issue to the present case, we note two
important distinctions between this case and Teitelbaum. First, we recognize that this
court in Teitelbaum analyzed the state's assignment of error under the rubric of whether
the state could demonstrate prejudice in that particular case. Because our previous
decision granting the state's motion for leave to appeal directs that we must answer the
substantive legal question even if it will not ultimately apply to Golsby, a demonstration of
prejudice is not the appropriate analysis here. Golsby at ¶ 4. However, we still find the
interpretation of the jury instruction in Teitelbaum to be informative. Second, the
instruction here, while nearly identical, contains an important addition that was not
present in the Teitelbaum instruction. In the present case, the trial court instructed the
jury "[t]he defendant has the obligation of going forward with the mitigating factors but no
burden of proof." (Tr. Vol. VII at 1773.) By contrast, in Teitelbaum, the instruction was
silent on a defendant's burden of production of mitigating factors but nonetheless included
the same instruction that defendant does not have any burden of proof. Teitelbaum at ¶ 61.
No. 18AP-322 13
{¶ 25} The state's insistence that the jury instruction here contained an incorrect
statement of law regarding the burden of proof during the penalty phase is contingent upon
a very narrow interpretation of the instruction. The state asks us to fixate on the "no burden
of proof" language in isolation and declare the instruction erroneous in light of Jenkins and
its progeny. However, to accept the state's conclusion, we would be forced to ignore the
context of the overall instructions to the jury regarding the burden of proof to impose the
death penalty and the context of the general charge. Importantly, the Supreme Court of
Ohio has held that while " 'it is prejudicial error in a criminal case to refuse to administer a
requested charge which is pertinent to the case, states the law correctly, and is not covered
by the general charge,' " a trial court need not give a requested instruction verbatim " 'but
may use its own language to communicate the same legal principles to the jury.' " (Emphasis
added.) Sowell at ¶ 134, quoting State v. Scott, 26 Ohio St.3d 92, 101 (1986), and State v.
Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 108. Thus, the overall context of the
instruction is vital to discerning whether the instruction is, indeed, erroneous.
{¶ 26} The state asks us to interpret the jury instruction here as indicating the
defendant has no burden of persuasion relative to the mitigating factors. Under such an
interpretation, the state asserts the instruction contains an incorrect statement of law as
Jenkins and the cases that follow it indicate that a defendant bears the burden, by a
preponderance of the evidence, of proving mitigating factors. However, when read in the
context of the overall instruction regarding the state's burden and the general charge to the
jury, we do not agree with the state that the instruction is incorrect.
{¶ 27} When read in context, we read the instruction to indicate, correctly, that it is
the state who bears the burden of proving, beyond a reasonable doubt, that the aggravating
circumstances outweigh the mitigating factors in order to impose the death penalty.
Teitelbaum at ¶ 136 (finding that the "no burden" instruction, "when read in context, serves
to emphasize that the state's burden to prove the appropriateness of the imposition of the
death penalty"). See also State v. Hancock, 12th Dist. No. CA2007-03-042, 2008-Ohio-
5419, ¶ 13, 19-23 (while agreeing it is the defendant "who carried the burden to prove the
mitigating factors by a preponderance of the evidence," the Eighth District nonetheless
concluded that the instruction that defendant "does not have any burden of proof" was a
"correct statement of the applicable law" and, when read in context, served to instruct the
No. 18AP-322 14
jury that the burden was on the state to prove the aggravating circumstances outweighed
the mitigating factors). The trial court additionally instructed the jury more generally that
it is "the sole judges of the facts, the credibility of the witnesses and the weight of the
evidence. To weigh the evidence, you must consider the credibility or believability of the
witnesses. * * * It is your province to determine what testimony is worthy of belief and what
testimony is not worthy of belief." (Tr. Vol. VII at 1783-84.) This more general instruction
serves to inform the jury it needed to assign weight to the mitigating factors before
considering if the state had met its burden of proof, obviating the state's concern that the
"no burden" instruction would mislead the jury into believing it needed to "blindly accept
any proffered mitigation evidence." Teitelbaum at ¶ 135; State v. Jackson, 141 Ohio St.3d
171, 2014-Ohio-3707, ¶ 250 (stating "[t]he weight, if any, given to a mitigating factor is a
matter for the discretion of the individual decisionmaker"). We read the "no burden"
instruction here as emphasizing that it is the state's burden, pursuant to R.C. 2929.03, to
prove beyond a reasonable doubt that the imposition of the death penalty is warranted. See
Sowell at ¶ 133-36.
{¶ 28} For these reasons, we do not agree with the state that the jury instructions
during the penalty phase contained an incorrect statement of law. Accordingly, we need
not address Golsby's arguments related to whether he could face the possible imposition of
the death penalty in a resentencing hearing as we find no error sufficient to warrant
resentencing here. Thus, we overrule the state's sole assignment of error.
IV. Disposition
{¶ 29} Based on the foregoing reasons, the trial court did not err in instructing the
jury during the penalty phase of Golsby's capital case. Having overruled the state's sole
assignment of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
SADLER, P.J., concurs.
NELSON, J., concurs in judgment only.
No. 18AP-322 15
NELSON, J., concurring in judgment only.
{¶ 30} I write separately not to question any particular aspect of the majority's jury
instruction analysis, but to express my view that we should not undertake the analysis at
all. The law does not permit Mr. Golsby to be resentenced to death now for his horrific
murder of Reagan Tokes, and I do not read the decision of the motions panel that granted
the state leave to cross-appeal here as binding us to issue a purely advisory opinion even
should we find the case moot (including as not presenting an issue capable of repetition yet
evading review).
{¶ 31} The jurors, pursuant to uncontested instruction as to how they were to
proceed should they be unable to agree on whether to recommend the death penalty,
unanimously recommended an aggravated murder sentence of life in prison without the
possibility of parole. The judge imposed that sentence. Ohio statute precludes the state
from seeking a different result now from another jury. Any issue of how another jury
hypothetically might be instructed or might have been instructed in this case therefore is
entirely theoretical. Further, the majority decision demonstrates effectively that questions
of burden allocation in the penalty phase have from time to time been presented in
circumstances under which they have not evaded review. To my mind, then, our respect
for appropriate constraints on our authority counsels that we limit our role here to
explaining that Ohio's statutory scheme does not permit a new jury to consider capital
punishment when the verdict of the trial jury was for life without parole.
{¶ 32} When granting leave for the state's cross-appeal, our motions panel found
"consideration of double jeopardy issues to be premature" in that context. Golsby, 2019-
Ohio-1618, at ¶ 4. But because Ohio's statutory regime providing for and restricting the
imposition of capital punishment reinforces double jeopardy protections, we still need not
assess the federal or Ohio constitutional provisions barring double jeopardy in order to
determine that the death sentence is not a legal option at this juncture. Compare the Fifth
Amendment to the United States Constitution and Ohio Constitution, Article I, Section 10
with R.C. 2929.03 and 2929.06; compare also Girard v. Giordano, 155 Ohio St.3d 470,
2018-Ohio-5024, ¶ 6 (suggesting that Supreme Court of Ohio may be open to revisiting
whether Ohio's Constitution provides broader double jeopardy protection than does the
federal charter).
No. 18AP-322 16
{¶ 33} R.C. 2929.03 specifies when and how capital punishment can be imposed for
aggravated murder. After a trial jury has convicted a defendant of aggravated murder with
one or more aggravating circumstances, the trial moves to the penalty phase; "the penalty
to be imposed on the offender shall be * * * death, life imprisonment without parole, life
imprisonment with parole eligibility after serving twenty-five full years of imprisonment,
or life imprisonment with parole eligibility after serving thirty full years of imprisonment."
R.C. 2929.03(C)(2)(a) and (a)(i). The statute is clear that that determination is to be made
"[b]y the trial jury and the trial judge, if the offender was tried by jury." R.C.
2929.03(C)(2)(b)(ii). Copies of relevant reports are to be furnished "to the trial jury," and
"the trial jury" is to consider both "any evidence raised at trial that is relevant to the
aggravating circumstances * * * or to any factors in mitigation of the imposition of the
sentence of death" and other evidence presented on those matters. R.C. 2929.03(D)(1).
Then "the trial jury * * * shall determine whether the aggravating circumstances * * * are
sufficient to outweigh the mitigating factors * * *. If the trial jury unanimously finds, by
proof beyond a reasonable doubt, that the aggravating circumstances * * * outweigh the
mitigating factors, the trial jury shall recommend to the court that the sentence of death be
imposed * * *. Absent such a finding, the jury shall recommend that the offender be
sentenced" to one of the specified life terms. R.C. 2929.03(D)(2). "If the trial jury
recommends that the offender be sentenced to life imprisonment without parole, * * * the
court shall impose the sentence recommended * * *." R.C. 2929.03(D)(2)(c). If the trial
jury has recommended death, the court shall impose that sentence if it finds beyond a
reasonable doubt that the aggravating circumstances do outweigh the mitigating factors;
otherwise, it shall impose one of the life sentences. R.C. 2929.03(D)(3).
{¶ 34} The assignment of capital punishment recommendations to "the trial jury" in
the first instance therefore is unequivocal. In 1987, the Supreme Court of Ohio in State v.
Penix, 32 Ohio St.3d 369, addressed what happens under this statutory system when a
death sentence is imposed on the recommendation of the trial jury but that sentence then
is vacated because of penalty phase error. Acknowledging the statutory language, the
Supreme Court noted that a "sentence of death may be imposed only if the trial jury finds
that the aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt." Id. at 370. With the trial jury gone, the Court found, capital punishment was not
No. 18AP-322 17
an option. A death sentence may be imposed only "when it is specifically authorized by a
state's death penalty statute * * *." Id. at 372. Ohio law leaves the death recommendation
only to "the trial jury," and "[t]here is no statutory provision for a second jury to be
impaneled and make a recommendation on the death penalty at resentencing." Id.
(emphasis in original). "Thus," the Court continued, "the decisions leading to a death
sentence must be made by the same jury that convicted the offender in the guilt phase.
There are simply no statutory provisions for another jury to make these crucial
determinations." Id. at 373. "Since there is no statutory authority allowing the imposition
of the death penalty upon resentencing, we may not create such a procedure out of whole
cloth." Id. (remanding to trial court for resentencing from among life imprisonment
options). See also, e.g., State v. Keenan, 81 Ohio St.3d 133, 140-41 (1998) (noting that "in
Penix, we held that 'the trial jury' is 'the same jury that convicted the offender in the guilt
phase,' " and explaining [with emphasis in the original] that should an initial finding of guilt
be vacated "when the defendant's conviction is reversed and the cause is remanded for a
new trial," there would be a new trial jury).
{¶ 35} Ohio's legislature later acted (for capital crimes committed after October 16,
1996) to make the death penalty a potentially available option in specific circumstances
where a death sentence has been imposed pursuant to the recommendation of the trial jury
but then overturned for certain reasons and the case remanded for resentencing.
"Whenever any court * * * sets aside, nullifies, or vacates a sentence of death imposed upon
an offender because of error that occurred in the sentencing phase * * *, the trial court that
sentenced the offender shall conduct a new hearing to resentence the offender. If the
offender was tried by a jury, the trial court shall impanel a new jury for the hearing." R.C.
2929.06(B). That resentencing phase jury then takes on the same responsibilities as the
trial jury for purposes of sentencing. Id.{¶ 36} The Supreme Court of Ohio strongly reaffirmed Penix in a decision holding
that these changes in R.C. 2929.06(B) were not retroactive. State v. Williams, 103 Ohio
St.3d 112, 2004-Ohio-4747, again presented a case in which a defendant had been
sentenced to death pursuant to the recommendation of the trial jury, but where reversible
error was found to have intruded at the sentencing phase. Because R.C. 2929.06(B),
addressing that scenario, was not retroactive, the death penalty still was not available on
No. 18AP-322 18
Mr. Williams's resentencing. Id. at ¶ 15. "Penix * * * was not improperly decided," the Court
said, and "has created no confusion in the courts of Ohio." Id. at ¶ 11, 14. Under Penix and
apart from post-amendment capital crimes for which a trial jury had recommended death,
"in a capital case tried by jury, correction of the sentence on remand may not be
accomplished by impaneling a new jury with the power to impose a new death sentence
because R.C. 2929.03 reserves that power to the trial jury." Id. at ¶ 13, citing Penix.
{¶ 37} The legislature responded to Williams by amending R.C. 2929.06 to make it
retroactive to "all offenders who have been sentenced to death for an aggravated murder
that was committed on or after October 19, 1981, or for terrorism that was committed on or
after May 15, 2002." R.C. 2929.06(E); see also State v. White, 132 Ohio St.3d 344, 2012-
Ohio-2583, ¶ 8 ("The 125th General Assembly responded to Williams by further amending
R.C. 2929.06" by adding subsection (E)). White described and upheld that change,
reconfirming that "where an aggravated-murder conviction with a death specification has
been affirmed, but the death sentence has been set aside for legal error, * * * * R.C.
2929.06(B) permits empanelment of a new jury to resentence the offender." Id. at ¶ 25.
{¶ 38} Together, these cases and the plain text of R.C. 2929.03 and 2929.06 instruct
that a capital sentence may be imposed only if explicitly authorized by statute, and (after a
jury trial) only where the trial jury unanimously has recommended death. Should a
reviewing court reverse a sentence for sentencing phase error, a capital sentence may be
imposed on the recommendation of a new jury only where the original sentence that was
set aside was a sentence of death as predicated on jury recommendation. Nothing in Ohio
statute authorizes a court to swap out a life sentence as recommended by the trial jury for
a death sentence on a second go-round. To reason otherwise would be to manufacture a
heightened penalty substitution procedure "out of whole cloth," to use the Penix expression.
Compare also, e.g., State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, ¶ 35
(R.C. 2929.03(C)(2)(b) and (D)(2) "specifically entrust the trial jury with making the
necessary findings in capital cases" and "until the enactment of R.C. 2929.06(B) [regarding
death sentences reversed for penalty phase error], no provision of law authorized any other
jury to perform that task").
{¶ 39} So under Ohio law, and even without resort to double jeopardy jurisprudence
pursuant to the federal or state Constitutions, the death penalty is not an available
No. 18AP-322 19
resentencing option at this juncture regarding Mr. Golsby. This is not a case like White or
like State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, in which the trial juries had
recommended death at the sentencing phase. Mr. Golsby's jury, in contrast, did not agree
upon death, and instead unanimously recommended the sentence that the trial court
imposed of life in prison without the possibility of parole. Were we to remand the case (and
we unanimously determine that we should not), the state would be able to obtain no higher
sentence than the life without parole sentence already in place.
{¶ 40} It generally is a guiding constraint on judicial authority that "[c]ourts will not
decide moot cases." See, e.g., Dublin v. Friedman, 10th Dist. No. 16AP-516, 2017-Ohio-
9127, ¶ 18. In most cases, " '[a]ctions are moot when they are or have become fictitious,
* * * hypothetical, [or] academic * * *. The distinguishing characteristic of such issues is
that they involve no actual genuine * * * controversy, the decision of which can definitely
affect existing legal relations.' A moot case [includes attempts to obtain judgment] * * *
'upon some matter which, when rendered, for any reason cannot have any practical legal
effect upon a then-existing controversy.' " Id. (citations omitted). In most circumstances,
at least, we have observed that when a case becomes moot, "we lack jurisdiction to decide
the issues." See, e.g., James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 793 (10th
Dist.1991); State v. Tackett, 11th Dist. No. 2015-A-0067, 2016-Ohio-3005, ¶ 9 ("Tackett's
sole argument is moot * * * , and as such we lack jurisdiction to grant relief"); compare
State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, ¶ 12 ("we do not decide moot cases").
{¶ 41} Now, controlling precedents establish that "a claim is not moot" under
certain "exceptional circumstances" when the challenged action is too short to allow
remedy before its expiration and the same complaining party is likely to be subject to the
same action again. See State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio St.3d 511, 2007-
Ohio-4643, ¶ 10 (explaining the concept of "capable of repetition, yet evading review").
{¶ 42} This category of cases, then, is "narrow." See, e.g., Huntington Natl. Bank v.
CPW Properties, 7th Dist. No. 17 CA 0917, 2018-Ohio-1219, ¶ 7-8. And the case at hand
does not fit, as I believe the majority opinion demonstrates. The burden of proof issue
raised by the state has not evaded review; quite the contrary, it has been assessed even by
the Supreme Court of Ohio on more than one occasion. See supra at ¶ 18-20 (citing four
Supreme Court decisions); id. at ¶ 22 (citing more). And the cross-appeal mechanism
No. 18AP-322 20
employed by the state here and in Teitelbaum points to one way in which the issue could
be joined yet again in the context of an ongoing dispute: where a defendant prevails on
appeal from a death sentence and the state has cross-appealed a penalty-phase jury
instruction, the appellate court in returning the matter to the trial court for further
proceedings would, it seems to me, be fully justified in addressing the instruction
parameters. Not so here, where resentencing is off the table. Compare Huntington Natl.
Bank at ¶ 9 ("We are not convinced by Appellant's argument that the issues in this appeal
will evade review when it cites" another recent case in which the matter did not evade
review). Here, as we found in State ex rel. Lancaster School Dist. Support Assn. v. Bd. of
Edn., 10th Dist. No. 06AP-305, 2006-Ohio-5520, ¶ 15, I "fail to see why [the] dispute * * *
will necessarily (or even likely) evade review in the future."
{¶ 43} To any extent that R.C. 2945.67 may provide us with jurisdiction to entertain
an advisory opinion in this case, it gives us broad discretion to decline to exercise review of
the moot issue. State v. Bistricky, 51 Ohio St.3d 157, 160 (1990). And it explicitly does not
permit us to reconsider a final verdict in this posture. Informed by all the powerful reasons
that underlie our normal reluctance to opine on purely academic questions, and because I
discern no overriding reason for us to engage such a question in this context after having
found it moot, I would not proceed beyond declaring the case moot.
{¶ 44} With all sincere respect for the majority view, I do not believe that the
motions panel in granting the state leave to cross-appeal decreed "that we must answer the
substantive legal question even if it will not ultimately apply to Golsby." Compare supra at
¶ 24. That panel plainly did not evaluate whether the law would permit imposition of a
death sentence now, after the trial jury recommended life without parole, and it went so far
as to specify its finding that at the motion stage, "consideration of double jeopardy issues
[was] premature." Golsby at ¶ 4. Indeed, the majority even now only assumes for purposes
of argument but does not decide that "a trial court could not impose the death penalty
during any potential resentencing in this case." Supra at ¶ 14.
{¶ 45} The motions panel, then, did not evaluate mootness, and did not undertake
to analyze whether the jury instruction issue has evaded or will henceforth evade review; it
did not, for example, catalogue the Supreme Court jury instruction cases that the majority
evaluates here. Instead, the motions panel on this score offered a correct statement of Ohio
No. 18AP-322 21
law: "Nor, under Ohio law, would the potential bar of double jeopardy preclude this court
from exercising its discretionary authority to review a substantive law issue capable of
repetition yet evading review." Id. As the use of the subjunctive form indicates, that is not
an assessment that the motions panel collectively undertook and on which it reached a firm
conclusion. See, e.g., Merriam-Webster.com ("subjunctive" verb form "represents a
denoted act or state not as fact but as contingent or possible"). " '[W]here the underlying
question is capable of repetition yet evading review' " an advisory opinion may be rendered,
see Golsby at ¶ 4 (emphasis added), but whether that is the circumstance here is not a
question that I think the leave to cross-appeal estops us from analyzing. Compare, e.g.,
Cincinnati v. Harrison, 1st Dist. No. C-130195, 2014-Ohio-2844, ¶ 46 (different context;
an appellate court "may re-evaluate our jurisdiction to proceed at any time, even on the
consideration of a direct appeal").
{¶ 46} Because the trial jury recommended the sentence of life without parole that
the trial court then imposed, the state cannot have another jury consider the capital
sentence it seeks. Therefore, in this context with the defense having dropped its appeal, I
believe that the most appropriate course would be to dismiss the state's cross-appeal now
that we have undertaken the full analysis. The majority has concluded that we must address
the burden of proof jury instruction question. On that premise, the majority affirms the
judgment below, which I also would leave in place. I therefore respectfully concur in the
majority's judgment only.