State v. Van Gundy - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
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The State of Ohio, Appellee, v. Van Gundy, Appellant.
[Cite as State v. Van Gundy (1992), Ohio St.3d .]
Criminal law -- Jury instructions that state must prove
defendant's guilt beyond a reasonable doubt -- Any
amplification upon definitions contained in
R.C.2901.05(D) is inadvisable.
(No. 91-336 -- Submitted April 7, 1992 -- Decided July 22,
1992.)
Appeal from the Court of Appeals for Franklin County, No.
90AP-556.
On November 8, 1989, defendant-appellant, Clancy Van
Gundy, was indicted on one count of felonious assault in
violation of R.C. 2903.11, a felony of the second degree, with
a physical harm specification. On May 7, 1990, the case
proceeded to trial by jury. On May 10, 1990, at the conclusion
of the evidence and the arguments of counsel, the trial court
charged the jury in relevant part as follows:
"The defendant is presumed innocent until his guilt is
established beyond a reasonable doubt. The defendant must be
acquitted of an offense unless the state produces evidence
which convinces you beyond a reasonable doubt of every
essential element of the offense charged.
"Reasonable doubt is present when, after you have
carefully considered and compared all the evidence, you cannot
say you are firmly convinced of the truth of the charge.
Reasonable doubt is a doubt based on reason and common sense.
Reasonable doubt is not mere possible doubt, because everything
relating to human affairs, or depending on moral evidence is
open to some possible or imaginary doubt. Proof beyond a
reasonable doubt is proof of such character that an ordinary
person would be willing to rely and act upon it in the most
important of his own affairs."
The court then amplified upon this statutory language by
instructing:
"If after a full and impartial consideration of all the
evidence you are firmly convinced of the truth of the charge,
the state has proved its case beyond a reasonable doubt. If
you are not firmly convinced of the truth of the charge, you
must find the defendant not guilty."

At the conclusion of the jury instructions, appellant's
counsel objected to the amplification. The trial judge
responded:
"That's a good objection, and in my own instructions, I
don't give that, but the prosecutor gave this to me and I read
it before I realized it was in there, so ... ." (Ellipses sic.)
Thereafter, as the court dismissed the jury for the day,
one of the jurors asked if the next day's session could begin
with a rereading of the instructions. The next day,
appellant's counsel repeated his objection. The court reporter
then reread the entire charge, including the contested
amplification.
The jury deliberated and returned a verdict of guilty, and
judgment was entered upon the verdict.
The court of appeals affirmed the judgment of the trial
court, finding that the contested instruction was not a
misstatement of the law on the degree of proof required in a
criminal case and not prejudicial.
The cause is now before this court pursuant to the
allowance of a motion for leave to appeal.

Michael Miller, Prosecuting Attorney, Alan C. Travis,
Joyce S. Anderson and Bonnie L. Maxton, for appellee.
Wonnell, Janes & Wonnell Co., L.P.A., and Harold E.
Wonnell, for appellant.
Neil W. Rosenberg, urging reversal for amicus curiae, Ohio
Association of Criminal Defense Lawyers.

Abood, J. Amicus curiae initially contends that the
definition of "reasonable doubt" set forth in R.C. 2901.05
unconstitutionally dilutes the requirement that the state prove
guilt beyond a reasonable doubt. In State v. Nabozny (1978),
54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E.2d 784, at paragraph
two of the syllabus, this court held:
"The definition of 'reasonable doubt' set forth in R.C.
2901.05 correctly conveys the concept of reasonable doubt and,
therefore, is not an unconstitutional dilution of the state's
requirement to prove guilt beyond a reasonable doubt."
This contention, therefore, is without merit.
Appellant and amicus curiae next contend, collectively,
that the trial court's amplification of the statutory
definition renders its charge erroneous, misleading and
prejudicial, and that it unconstitutionally dilutes the
requirement that the state prove guilt beyond a reasonable
doubt.
The requirement that the state prove guilt beyond a
reasonable doubt is a constitutionally mandated standard. In
re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25
L.Ed.2d 368, 375. That standard, however, has never been
defined by the United States Supreme Court. See Thomas v. Arn
(C.A.6, 1983), 704 F.2d 865, 867; 1 Sand et al., Modern Federal
Jury Instructions (1991) 4-8, Section 4.01. Our legislature
has defined that standard in R.C. 2901.05(D) as follows:
"'Reasonable doubt' is present when the jurors, after they
have carefully considered and compared all the evidence, cannot
say they are firmly convinced of the truth of the charge. It
is a doubt based on reason and common sense. Reasonable doubt

is not mere possible doubt, because everything relating to
human affairs or depending on moral evidence is open to some
possible or imaginary doubt. 'Proof beyond a reasonable doubt'
is proof of such character that an ordinary person would be
willing to rely and act upon it in the most important of his
own affairs." (Emphasis added.)
By enacting R.C. 2901.05(D) with separate definitions for
"reasonable doubt" and "proof beyond reasonable doubt," our
legislature has expressed its clear intention that the standard
for proving guilt beyond a reasonable doubt be explained in
both qualitative and quantitative terms. The definition of
"reasonable doubt" relates to the jurors' state of mind; the
phrase "firmly convinced" describes the nature of that belief.
To this extent, the standard is explained in qualitative
terms. See, e.g., United States v. Newport (C.A.9, 1984), 747
F.2d 1307, 1308. The definition of "proof beyond a reasonable
doubt" relates to the amount of proof that is required, with
the phrase "willing to rely and act" describing that amount.
To this extent, the standard is explained in quantitative
terms. Standing alone, the trial court's amplification would
erroneously define the reasonable doubt concept as set forth in
R.C. 2901.05(D), since it omits that portion of the statutory
explanation that relates to the quantitative character of that
proof.
This court has recognized, however, that "'* * * the trial
court * * * [is] not necessarily limited to giving the
statutory definition'" of reasonable doubt. State v. Sargent
(1975), 41 Ohio St.2d 85, 90, 70 O.O.2d 169, 171, 322 N.E.2d
634, 638. We held therein that a "* * * complained of
amplification must be erroneous and prejudicial to the
complaining party before the judgment of the trial court will
be disturbed." (Emphasis added.) Id. at paragraph two of the
syllabus.
In making a determination as to whether the amplification
is prejudicial, we must consider how reasonable jurors could
have understood the charge as a whole.1 Francis v. Franklin
(1985), 471 U.S. 307, 315-316, 105 S.Ct. 1965, 1972, 85 L.Ed.2d
344, 354. An instruction is prejudicial when it is "'of the
type that could mislead the jury into finding no reasonable
doubt when in fact there was some. * * *'" State v. Nabozny,
supra, 54 Ohio St.2d at 202, 8 O.O.3d at 185, 375 N.E.2d at
791, quoting Holland v. United States (1954), 348 U.S. 121,
140, 75 S.Ct. 127, 138, 99 L.E. 150, 167. If, however, "* * *
taken as a whole, the instructions correctly conveyed the
concept of reasonable doubt to the jury," then the
amplification will not be found to be prejudicial. Id.; State
v. Nabozny, supra, at paragraph two of the syllabus; Thomas v.
Arn, supra, 704 F.2d at 869.
In State v. Scott (1986), 26 Ohio St.3d 92, 26 OBR 79, 497
N.E.2d 55, this court reviewed the propriety of a jury
instruction in which the statutory definition of reasonable
doubt was read and then amplified upon as follows:
"'* * * if after a full and impartial consideration of all
the evidence, you are firmly convinced beyond a reasonable
doubt of the truth of the charge or charges, then the State has
proved its case and you must find the defendant guilty.
"'If you are not firmly convinced of the truth of the

charge, then the State has not proved its case and you must
find the defendant not guilty.'" (Emphasis added.) Id. at 99,
26 OBR at 85, 497 N.E.2d at 62.
We held in Scott, supra, at 100, 26 OBR at 86, 497 N.E.2d
at 62, that:
"A review of the contested instruction in the instant case
reveals that it does not misstate the appropriate quantum of
proof. In addition, appellant has not sustained his burden of
demonstrating actual prejudice."
Amicus curiae argues that Scott is distinguishable because
the contested instruction in Scott was reviewed under the plain
error standard. While it is true that this court, in Scott,
stated that "* * * this instruction must be reviewed under the
plain error standard," we nevertheless addressed the merits of
the claim "pursuant to State v. Sargent" and found that "***
the contested instruction * * * does not misstate the
appropriate quantum of proof." Id.
Appellant argues, without citing any authority, that Scott
is distinguishable because the contested amplification in Scott
contained the words "beyond a reasonable doubt" following the
words "firmly convinced," and that this difference "is of
significant proportion." Amicus curiae argues that the trial
court's instruction, taken as a whole, defined "reasonable
doubt" in terms of being "firmly convinced" and defined "proof
beyond a reasonable doubt" in terms of both "firmly convinced"
and "willing to rely and act," and asserts that neither the
United States Supreme Court nor any other federal court has
ever upheld such an instruction.
Our review of federal decisions dealing with jury
instructions that define the burden of persuasion in criminal
cases leads us to conclude, however, that the juxtaposition of
these terms does not constitute error so long as the concept is
correctly conveyed. In Hopt v. Utah (1887), 120 U.S. 340, 7
S.Ct. 614, 30 L.Ed. 708, paragraph five of the syllabus, the
United States Supreme Court upheld as not erroneous a jury
instruction which stated that there is no reasonable doubt if
the evidence produces "an abiding conviction of defendant's
guilt, such as they would be willing to act upon in the more
weighty and important matters relating to their own affairs."
(Emphasis added.) Later, in Holland, supra, 348 U.S. at 140,
75 S.Ct. at 138, 99 L.Ed. at 167, the United States Supreme
Court noted its disapproval of a jury instruction that defined
"reasonable doubt" as "'the kind of doubt * * * which you folks
in the more serious and important affairs of your own lives
might be willing to act upon'" on the basis that reasonable
doubt is better expressed "in terms of the kind of doubt that
would make a person hesitate to act," but did not find the
instruction to be misleading, erroneous or prejudicial. In
United States v. Conley (C.A.8, 1975), 523 F.2d 650, 655, the
Eighth Circuit upheld an instruction which defined "reasonable
doubt" as "the kind of doubt that would make a reasonable
person hesitate to act" and defined "proof beyond a reasonable
doubt" as "proof of such a convincing character that you would
be willing to rely and act upon it unhesitatingly." In Thomas
v. Arn, supra, 704 F.2d at 868, the Sixth Circuit noted that
the "willing to rely and act" language in R.C. 2901.05(D) is
used to define "proof beyond a reasonable doubt" rather than

"reasonable doubt," but found this distinction to be without
consequence, even though used with the language "firmly
convinced" to explain "reasonable doubt." The Eighth Circuit
held that using the term "abiding conviction" to explain
"reasonable doubt" did not constitute plain error even though
the charge failed to include language of "willing to act" or
"hesitate to act." United States v. Jensen (C.A.8, 1977), 561
F.2d 1297, 1300-1301. In United States v. Bustillo (C.A.9,
1986), 789 F.2d 1364, 1367-1368, the Ninth Circuit held that it
was not plain error to charge the jurors that they must find
[defendant] guilty if they were 'firmly convinced' of his
guilt," reasoning that the words "firmly convinced" are
sufficiently similar to the words "abiding conviction" used in
Jensen, supra.
Upon consideration of the foregoing, we find that the
trial court's instruction, taken as a whole, was not
prejudicial and did correctly convey the concept that the state
must prove defendant's guilt beyond a reasonable doubt. The
propositions of law set forth by appellant and amicus curiae
are therefore overruled.
This court notes however, that, as we have previously
recognized, there is always danger in giving instructions that
go beyond the statutory definitions. State v. Sargent, supra,
41 Ohio St.2d at 90, 70 O.O.2d at 171, 322 N.E.2d at 638; see,
also, State v. Seneff (1980), 70 Ohio App.2d 171, 178, 24
O.O.3d 215, 219, 435 N.E.2d 680, 685. There is inherent
difficulty in any attempt to define the abstract concept of
reasonable doubt and further attempts do not usually result in
making it any clearer in the minds of the jury. State v.
Nabozny, supra, 54 Ohio St.3d at 202, 8 O.O.3d at 185, 375
N.E.2d at 790. We therefore suggest to the courts of this
state that any amplification upon the definitions contained in
R.C. 2901.05(D) is inadvisable.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., Holmes, Douglas, Wright, H. Brown and
Resnick, JJ., concur.
Charles D. Abood, J., of the Sixth Appellate District,
sitting for Sweeney, J.
FOOTNOTE:
1 In assessing whether an amplification is prejudicial to
the complaining party, we are further guided by the recognition
that the reasonable doubt standard is a unitary concept which
relates to the intensity of the belief of a factfinder that a
criminal defendant is guilty of all the elements of the crime
with which he is charged.
"In this regard, a standard of proof represents an attempt
to instruct the factfinder concerning the degree of confidence
our society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication." In re
Winship, supra, 397 U.S. at 370, 90 S.Ct. at 1076, 25 L.Ed.2d
at 379, Harlan, J., concurring.
In this light, the separate definitions of "reasonable
doubt" and "proof beyond a reasonable doubt" set forth in R.C.
2901.05(D) amount to an explanation of a single standard of
proof that is required in a criminal case. Any analysis,

therefore, regarding the prejudicial effect of an amplification
must be based upon an inquiry into whether the entire
instruction accurately conveyed to the jury the singular
concept of reasonable doubt and not whether the qualitative or
quantitative aspects of this concept were explained in any
particular order.