author: CUNNINGHAM, Presiding Judge.

text:
    Albert W. VONTZ III, Plaintiff-Appellee, v. Vail K. MILLER, Sr., Carol V. Miller, Vail K. Miller, Jr., Brooke Miller Hice, Esq., and Michael W. Miller, Defendants-Appellants, and Dayton Heidelberg Distributing Co., Nominal Defendant.
    No. C-150693.
    Court of Appeals of Ohio, First District, Hamilton County.
    Dec. 30, 2016.
    Keating, Muething & Klekamp PLL, James E. Burke, Bryce J. Yoder, and Meaghan K. FitzGerald, Cincinnati, for Plaintiff-Appellee.
    Vorys, Sater, Seymour and Pease LLP, Daniel J. Buckley, J.B. Lind, and Elizabeth E.W. Weinewuth, Cincinnati, for Defendant-Appellant Carol V. Miller.
    Coolidge Wall Co., LPA, Terence L. Fague, Dayton, and Jennifer R. Roberts, for Defendants-Appellants Vail K. Miller, Sr., Carol V. Miller, Vail K. Miller, Jr., and Michael W. Miller, in their capacities as directors and officers of Dayton Heidelberg Distributing Co.
    Katz Teller Brant & Hild, Robert A. Pitcairn, Jr., Cincinnati, and Peter J. O'Shea, for Defendant-Appellant Brooke Miller Hice.
   CUNNINGHAM, Presiding Judge.

{¶ 1} This appeal is taken from the order of the Hamilton County Court of Common Pleas awarding injunctive relief to plaintiff-appellee Albert W. Vontz III in an action involving a dispute among the shareholders of nominal defendant Dayton Heidelberg Distributing Co., an Ohio family-owned-and-operated close corporation ("Heidelberg"), Heidelberg's six-member board of directors, and its officers.

{¶ 2} Vontz is the owner of 50 percent of the voting shares of Heidelberg, and its president and co-chairman of its board. He alleged, among other things, that his sister, defendant-appellant Carol V. Miller ("Miller"), the owner of the other 50 percent of the voting shares and also a board member, along with the other four defendants-appellants, all members of Miller's family, officers of the corporation, and board members under her control (with Miller, "the Miller family"), had purposely disenfranchised him to maintain their control of the corporation.

{¶ 3} Vontz requested equitable relief in the form of an injunction to allow him to exercise his voting rights and to redress what he alleged was a breach of fiduciary duties, a breach of contract, and a violation of corporate requirements by the Miller family. His request was granted as part of the injunctive relief afforded by the trial court after a trial of the matter. Of relevance to this appeal, the court ordered that (1) the board, with court monitoring, schedule the annual shareholder meeting for the election of directors that the Miller family board members had refused to schedule, (2) both Miller and Vontz attend the meeting, (3) Vontz be afforded "equal representation" on the board, with "[t]he parties to work out the current Board members to be displaced," (4) Miller's daughter, as general counsel for Heidelberg, "treat" Vontz and Miller "equally," and (5) the parties "pay their respective attorneys' fees." The appellants challenge the trial court's judgment on various grounds in multiple assignments of error.

{¶ 4} We hold that the record amply supports the trial court's conclusion that Miller had caused irreparable harm to Vontz by suppressing his voting rights, and that injunctive relief was warranted to prevent further oppression. But we sustain in part several assignments of errors and order that the trial court on remand modify the language of the injunction.

{¶ 5} Specifically, we order the trial court to (1) strike the language of the injunctive order requiring the board to schedule a shareholder meeting, (2) strike the language requiring Miller to attend the shareholder meeting, (3) modify the order to add that when a meeting for the election of directors is called-either by the board or by Vontz-the shareholders attending the meeting, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, (4) to strike the language providing that Vontz "shall be allowed to have equal representation on the Board," directing "the parties to work out the current Board members to be replaced," and directing general counsel "to treat both shareholders equally." Our reasoning for these modifications, along with our treatment of the remainder of the trial court's order, is provided below.

I. Background Facts and Procedure

{¶ 6} In addition to Miller, the appellants here include the following: (1) Miller's husband, Vail K. Miller, Sr., ("Senior") who serves as Heidelberg's co-chairman of the board and its secretary; (2) Vail K. Miller, Jr., ("Junior") son of Miller and Senior, who serves as the chief executive officer of Heidelberg's Dayton operation, and who claims to be, over Vontz's objection, Heidelberg's chief executive officer; (3) Brooke M. Hice ("Hice"), daughter of Miller and Senior, who serves as the executive vice president and general counsel of Heidelberg; and (4) Michael W. Miller ("Michael Miller"), son of Miller and Senior, who serves as vice president of sales and marketing of Heidelberg.

{¶ 7} Heidelberg is an Ohio for-profit S-corporation, with a very large beer, wine, and spirits distribution business. The company was founded in 1938 by the grandfather of Vontz and Miller. Their father later took over the company and became its sole shareholder. He transferred some shares to his two children during his lifetime, and after he died in 2002, Vontz and Miller inherited the remainder of his shares, leaving them each with 50 percent of the voting shares of the company. As the trial court found, the record does not show that their father had intended other than an equitable division of the company with the two siblings working together.

{¶ 8} To ensure an equitable division, Vontz and Miller in 2009 entered into a shareholders' agreement providing that "[i]t is the intent of the parties that the 50%/50% division of Share ownership shall be preserved at all times as between the Miller Family and the Vontz Family." The agreement also preserves the cumulative voting rights of the shareholders.

{¶ 9} During the almost 50 years that Vontz and Miller's father controlled Heidelberg, the company operated informally. Director seats were "ceremonial" positions, awarded by Vontz and Miller's father. Junior and Hice were appointed to the board when they were only 18 years old. Vontz's only child was never named to the board, but he was only 12 years old at the time of his grandfather's death.

{¶ 10} Over the ten years preceding the filing of this action, the corporation had not held an annual shareholder meeting.

The last informal election of board members that reflected the consensus of the voting shareholders and that was signed by Vontz as president occurred in 2007. That board was comprised of seven directors and included the mother of Vontz and Miller. After their mother died, that seat remained vacant, but Vontz, Miller, Senior, Junior, Hice, and Michael Miller remained on the board.

{¶ 11} The governance of the company was marked by consensus for many years, but began to change in 2010 after Vontz, who had loaned $17 million to the company, became concerned about the lack of proper corporate governance, the increased debt level of the company, and the Miller family's use of corporate assets and positions. As a result of these concerns, in 2011, Vontz began to informally suggest to the other board members that Ohio's general corporation law and the Heidelberg Code of Regulations mandated annual shareholder meetings for the election of directors as a matter of law.

{¶ 12} R.C. 1701.39 provides, in relevant part as follows:

An annual meeting of shareholders for the election of directors * * * shall be held on a date designated by, or in the manner provided for, in the articles or in the regulations. In the absence of such designation, the annual meeting shall be held on the first Monday of the fourth month following the close of each fiscal year of the corporation. When the annual meeting is not held or directors are not elected thereat, they may be elected at a special meeting called for that purpose.

(Emphasis added.)

{¶ 13} With respect to the annual shareholder meeting, the regulations provided that "[t]he annual meeting of shareholders for the election of Directors * * * shall be held on such date as the Board of Directors may establish from time to time." (Emphasis added.) The regulations allowed for special shareholder meetings as called for by the chairman or president. And the regulations further provided that "[a]ny action required by the Ohio Revised Code to be taken at a meeting of the shareholders * * * may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote at a meeting for such a purpose and filed with the Secretary of the Corporation." Finally, the regulations provided that the directors elected at the annual meeting would hold office for a one-year term or "until * * * his [or her] successor is elected and qualified."

{¶ 14} In 2013, Vontz sent a proposal to the other board members requesting that the board adhere to proper corporate governance and schedule annual shareholder meetings to elect new directors, three of whom he would be able to elect in accordance with his voting rights as a 50 percent voting shareholder. The seventh director seat would be deemed nonvoting and filled by the company's chief financial officer.

{¶ 15} While Miller by letter indicated that in theory she was open to observing more of the corporate formalities, she rejected Vontz's proposal with respect to the board, noting that the company was very successful and that "if it is not broke, don't fix it." None of the other directors acted on Vontz's suggestion. Hice, general counsel for the corporation, told Vontz at that time that she disagreed with his contention concerning the need for an annual shareholder meeting for the election of directors. But she acknowledged at trial that the relevant statutory and corporate provisions "unambiguously" required an annual shareholder meeting.

{¶ 16} After Vontz's unsuccessful attempts to have the board schedule an annual shareholder meeting, he informed the other board members that as co-chairman of the board he would notice a special shareholder meeting for the election of new directors. About this time, the relationship between Vontz and the Miller family had become so contentious that both sides submitted proposals for a separation and/or buy-out. However, the Miller family threatened to terminate all preliminary negotiations if Vontz followed through with noticing a special shareholder meeting for the election of directors. On December 5, 2014, after buy-out negotiations fell apart, Vontz filed the action underlying this appeal.

{¶ 17} After filing his action, Vontz noticed special shareholder meetings for December 17, 2014, January 16, 2015, and July 3, 2015, for the express purpose of electing a new board, and he contemporaneously noticed his desire to vote cumulatively. Despite having received all notices, Miller, after discussing the matter with the other Miller family members, refused to attend. Miller took the position, as did the other parties, that under the company's regulations for the election of new directors, Miller's attendance as the other 50 percent voting shareholder was necessary to establish a quorum, without which no new directors could be elected.

{¶ 18} Because Miller refused to attend, the quorum requirement in the regulations was not met. Thus, no directors could be elected. The composition of the board carried over, as intended by the Miller family. While Miller refused to attend the special shareholder meetings, the Miller family scheduled and attended a board meeting to approve increased compensation and bonuses to the Miller family officers and associates. The measures were approved over the objection of Vontz, who complained that he had not been provided the information sufficiently in advance to evaluate the increased compensation.

{¶ 19} Ultimately, the board did not schedule the annual shareholder meetings as requested by Vontz, and Miller refused to attend the special shareholder meetings noticed by Vontz. As established at trial, the Miller family's intention was to prevent Vontz from exercising his voting rights in order to perpetuate Miller's control of the company and to keep the Miller family in five of the six voting seats on the board. And Miller made clear at trial that she would not attend any shareholder meetings unless ordered by the court.

{¶ 20} The trial court entered judgment for Vontz and granted injunctive relief. The basis of the trial court's judgment was articulated in a letter opinion that was sent to the parties and journalized. Subsequently, the trial court conditionally stayed the injunctive order pending this appeal.

II. Analysis

{¶ 21} Miller, as shareholder, and Hice, as director and general counsel, each filed separate appellate briefs in support of their challenge to the trial court's judgment. Senior, Junior, and Michael Miller, as directors and officers, filed a joint appellate brief, in which Miller, as director, joined.

{¶ 22} Miller raises three assignments of error that provide in essence that the trial court erred (1) by finding for Vontz on the breach-of-fiduciary-duty and breach-of-contract claims, and by ordering her to attend a shareholder meeting, (2) by ordering the board to be "equalized," and (3) by failing to dismiss Vontz's claim based on the violation of corporate requirements.

{¶ 23} Hice's seven assignments of error provide in essence that the trial court erred (1) by finding for Vontz on the claim that she had breached her fiduciary duty as director, (2) by finding for Vontz on the claim that she had beached her fiduciary duty as general counsel, (3) by ordering her, as general counsel, to treat both shareholders equally, (4) by ordering, in violation of Civ.R. 65(D)'s specificity requirement, that she treat both shareholders equally and "[t]hat the parties [ ] work out the current Board members to be displaced," (5) by finding for Vontz on the breach-of-contract claim, (6) by failing to dismiss Vontz's claim based on the violation of corporate requirements, and (7) by ordering the parties to pay their own attorney fees, if by this language the trial court intended to deny her the right to advancement and indemnification from the company.

{¶ 24} Miller, Senior, Junior, and Michael Miller as directors and/or officers ("the Miller Directors") raise four assignments of error. These assignments of error provide in essence that the trial court erred (1) by finding for Vontz on the breach-of-fiduciary-duty claim and by determining that the breach had resulted in irreparable harm, (2) by finding for Vontz on the breach-of-contract claim, (3) by finding for Vontz on the claim based on the violation of corporate requirements, and (4) by ordering the parties to pay their own attorney fees, if by this language the trial court intended to deny them the right to advancement and indemnification from the company.

{¶ 25} In sum, all appellants challenge both the trial court's determination that Vontz had established a right to injunctive relief and the terms of the injunctive relief ordered by the court. A permanent injunction is issued after the movant has demonstrated a right to relief under the applicable substantive law. Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist.2000). A party seeking an injunction must show both that the injunction is necessary to prevent irreparable harm, and that the party does not have an adequate remedy at law. Id. We note also, as the trial court did, that Vontz was required to prove his case by clear and convincing evidence to be entitled to injunctive relief on any of his claims. Id. at 267-268, 747 N.E.2d 268.

{¶ 26} We review the trial court's decision to grant or deny an injunction under an abuse-of-discretion standard. Id. at 268, 747 N.E.2d 268. But we review de novo issues of law upon which the trial court based its decision, such as the sufficiency of the evidence to support a judgment and the interpretation of contract and statutory provisions. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8 ; Lehigh Gas-Ohio, LLC v. Cincy Oil Queen City, LLC, 1st Dist. Hamilton No. C-130127, 2014-Ohio-2799, 2014 WL 2957121, ¶ 43. And we review factual determinations under the deferential manifest-weight-of-the-evidence standard. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20-21.

{¶ 27} We begin by determining whether the trial court erred by finding against the appellants on the breach-of-fiduciary-duty claim.

A. Breach-of-Fiduciary-Duty Claim

{¶ 28} In support of its award of injunctive relief, the trial court determined that the appellants had breached fiduciary duties to Vontz in their refusal to allow him to exercise his voting rights, resulting in irreparable harm. The elements for a breach-of-fiduciary-duty claim are (1) the existence of a duty arising from a fiduciary relationship, (2) the failure to observe the duty, and (3) an injury proximately resulting. Hickerson v. Hickerson, 3d Dist. Hancock No. 5-10-08, 2010-Ohio-4070, 2010 WL 3385792, ¶ 24.

{¶ 29} The appellants argue that the trial court's judgment on the breach-of-fiduciary-duty claim was erroneous for several reasons. We begin with Miller, who argues that she did not, as Vontz alleged, owe a heightened fiduciary duty to him as the other 50 percent shareholder. Miller also argues that if she owed a heightened fiduciary duty to him, she did not breach it when she failed to attend the special shareholder meetings. Finally, she argues that even if she did breach a fiduciary duty owed to him, that breach was not actionable because she had a legitimate business purpose for her tactics.

1. Fiduciary Duties of Shareholders in a Close Corporation

{¶ 30} It is undisputed that Heidelberg is a close corporation under Ohio law, even though the corporate documents do not reference R.C. 1701.591, which authorizes close-corporation agreements. A "close corporation" is generally characterized as a corporation with few shareholders who own shares that are not traded on a securities market. Crosby v. Beam, 47 Ohio St.3d 105, 107, 548 N.E.2d 217 (1989) ; Estate of Schroer v. Stamco Supply, Inc., 19 Ohio App.3d 34, 36, 482 N.E.2d 975 (1st Dist.1984) (superseded by statute on other grounds.) Additionally, a close corporation is typically marked by "an identity of management and ownership, * * * by restrictions on the free alienability of shares, * * * and * * * by its unmistakable resemblance to the partnership form." Stamco at 36-37, 482 N.E.2d 975. The Heidelberg shareholder agreement makes it particularly onerous for a shareholder to sell shares.

{¶ 31} Because a close corporation resembles a partnership, albeit with "advantages" of limited liability, see id. at 37, 482 N.E.2d 975, "the relationship between the shareholders must be one of trust, confidence and loyalty to thrive." Crosby at 108, 548 N.E.2d 217. Generally, Ohio courts impose a heightened fiduciary duty on majority or controlling shareholders in those close corporations to protect against abuse and oppression of minority shareholders. Id. at 109-110, 548 N.E.2d 217. This abuse or oppression includes a "squeeze-out" or "freeze-out"-the "manipulative use of corporate control to eliminate minority shareholders, or to reduce their share of voting power or percentage of ownership assets, or otherwise unfairly deprive them of advantages or opportunities to which they are entitled." Stamco at 38, 482 N.E.2d 975 ; see Crosby at 109, 548 N.E.2d 217 ; 2 O'Neal and Thompson, Oppression of Minority Shareholders and LLC Members (2 Ed.1985, May 2016 update).

{¶ 32} The standard of duty owed by majority or controlling shareholders in a close corporation is the " 'utmost good faith and loyalty.' " Crosby at 108, 548 N.E.2d 217, quoting Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 593, 328 N.E.2d 505 (1975). A breach of this heightened fiduciary duty is actionable, absent "any legitimate business purpose." Crosby at paragraph two of the syllabus, following Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 353 N.E.2d 657 (1976). Ultimately, a controlling shareholder in a close corporation may not "take[ ] action [she] is authorized to take which nevertheless operates to the disadvantage of the minority and was not taken in good faith and for a legitimate business purpose." Busch v. Premier Integrated Med. Assocs., Ltd., 2d Dist. Montgomery No. 19364, 2003-Ohio-4709, 2003 WL 22060392, ¶ 79, quoted in Rhodes v. Paragon Molding, Ltd., 2d Dist. Montgomery No. 22491, 2011-Ohio-4295, 2011 WL 3808102, ¶ 17.

{¶ 33} This duty of good faith in the context of a close corporation or partnership involves more than just honesty, as explained in DiPasquale v. Costas, 186 Ohio App.3d 121, 2010-Ohio-832, 926 N.E.2d 682 (2d Dist.) :

"A lack of good faith is the equivalent of bad faith, and bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another."

Id. at ¶ 127, quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983).

{¶ 34} Miller argues that because she owns only 50 percent of the voting shares, the trial court erred in determining that she owed a heightened fiduciary duty to Vontz. She argues that a 50 percent shareholder never owes a heightened fiduciary duty to the other 50 percent shareholder in a close corporation, citing Herbert v. Porter, 165 Ohio App.3d 217, 2006-Ohio-355, 845 N.E.2d 574, ¶ 13 (3d Dist.), and Morgan v. Ramby, 12th Dist. Warren No. CA2007-12-147, 2008-Ohio-6194, 2008 WL 5052777, ¶ 21.

{¶ 35} But the Ohio Supreme Court in Crosby held that this heightened fiduciary duty applies to "majority or controlling" shareholders. Crosby, 47 Ohio St.3d 105, 548 N.E.2d 217, at paragraph two of the syllabus. And some appellate districts have interpreted this to mean that a heightened fiduciary duty applies when one shareholder exercises "control over the corporation to an extent that [the shareholder's] actions dominate[ ]," even though the shareholder is "not technically a majority owner." McLaughlin v. Beeghly, 84 Ohio App.3d 502, 506-507, 617 N.E.2d 703 (10th Dist.1992), cited in Morrison v. Gugle, 142 Ohio App.3d 244, 255, 755 N.E.2d 404 (10th Dist.2001). Accord Heaton v. Rohl, 193 Ohio App.3d 770, 2011-Ohio-2090, 954 N.E.2d 165, ¶ 4, 54 (11th Dist.) ; Citizens Fed. Bank v. Chateau Constr. Co., Inc., 2d Dist. Montgomery No. 13902, 1994 WL 12488 (Jan. 19, 1994).

{¶ 36} In this case, the trial court found that Miller owed a heightened fiduciary duty to Vontz. Although Miller argues that the record contains no evidence to support this finding, we disagree. The evidence shows that Miller exercised her influence and authority to such a degree that she in fact dominated Heidelberg's governing board. And Miller exerted her control by refusing to attend a shareholder meeting, thereby defeating the quorum requirement necessary for Vontz to exercise his right to vote for new directors. By doing so, Miller ensured that none of her family members would be replaced on the board, thus securing her continued control of the corporation.

{¶ 37} Because Miller so dominated the corporation that she was in control to the exclusion of Vontz, the unusual facts of this case demonstrated that Miller was the controlling shareholder, even though she owned only 50 percent of the voting shares. Miller's obligation to Vontz under this heightened fiduciary duty precluded her from "freez[ing]-out" Vontz from the "advantages [and] opportunities" to which he was entitled, including the power to vote. Stamco, 19 Ohio App.3d at 38, 482 N.E.2d 975.

{¶ 38} Next, Miller, citing to Peter Schoenfeld Asset Mgmt. LLC v. Shaw, Del. Ch. No. 20087-NC, 2003 WL 21649926 (July 10, 2003), argues that she could not have breached a heightened fiduciary duty because she had no statutory or contractual obligation to attend the shareholder meeting. But a fiduciary relationship may impose duties apart from statute or contract. See Stone v. Davis, 66 Ohio St.2d 74, 78, 419 N.E.2d 1094 (1981). Under her heightened duty of good faith and loyalty, she had an obligation of fairness to Vontz. Her duty required her to act for his benefit by protecting his right to vote for the election of new directors. She breached that duty because, as Vontz clearly demonstrated, he was unable to exercise his voting power due to a freeze-out by Miller.

{¶ 39} Finally, Miller argues that the trial court's decision cannot be sustained because the alleged breach was not actionable under the law when she acted with a "legitimate business purpose" in refusing to attend the special shareholder meetings noticed by Vontz. See Crosby, 47 Ohio St.3d 105, 548 N.E.2d 217, at paragraph two of the syllabus. But we do not believe the conduct here-disenfranchising a 50 percent shareholder to perpetuate one's own control and in the process causing the corporation to violate its own regulations and Ohio law relating to the holding of an annual meeting-is the kind of "legitimate business purpose" envisioned by the Crosby court.

{¶ 40} Thus, we hold that the trial court's determination that Miller breached her heightened fiduciary duty to Vontz is supported by the law and the facts. To the extent that Miller's first assignment of error challenges the propriety of the trial court's judgment on this basis, we overrule it.

2. Fiduciary Duties of Directors

{¶ 41} Next, we address the claim of the Miller Directors, as set forth in their first assignment of error, and in Hice's first assignment of error, that the court erred in determining that they had breached their fiduciary duty to Vontz as directors/officers, resulting in shareholder oppression.

{¶ 42} Directors of a corporation are fiduciaries and are bound to exercise their power as directors in compliance with the duty of loyalty and the duty of care. These duties are codified in R.C. 1701.59(B). Thus, the duty of loyalty requires a director to "perform * * * in good faith, in a manner the director reasonably believes to be in or not opposed to the best interests of the corporation," while the duty of care requires a director to exercise "the care that an ordinarily prudent person in a like position would use under similar circumstances." R.C. 1701.59(B).

{¶ 43} Under Ohio law, the directors of a close corporation owe these duties to both the corporation and its shareholders. See Thompson v. Cent. Ohio Cellular, Inc., 93 Ohio App.3d 530, 540, 639 N.E.2d 462 (8th Dist.1994) ; Universal Real Estate Solutions, Inc. v. Snowden, 2014-Ohio-5813, 26 N.E.3d 1272 (9th Dist.), ¶ 45. The plaintiff must prove a breach of duty by clear and convincing evidence. R.C. 1701.59(D)(1).

{¶ 44} Ohio courts heed the "business judgment rule" when analyzing a director's conduct. Koos v. Cent. Ohio Cellular, 94 Ohio App.3d 579, 589, 641 N.E.2d 265 (8th Dist.1994). Under the business-judgment rule, "directors carry the burden of showing a transaction is fair only after the plaintiff has made a prima facie case showing that the directors have acted in bad faith or without the requisite objectivity." Radol v. Thomas, 772 F.2d 244, 256 (6th Cir.1985). In other words, the directors are presumed to have acted in good faith and in the best interests of the corporation. This "presumption" applies under Ohio law even for business decisions "affecting or involving a change in control or a termination of [a director's] services." 1986 Committee Comment interpreting former R.C. 1701.59(C), now codified as R.C. 1701.59(D).

{¶ 45} Although the trial court's letter opinion is not reflective of the exact analysis applied to this claim, the court did find that the appellants-directors had "refused" Vontz's request that, as directors, they schedule an annual shareholder meeting in accordance with the law, and that they had done so to prevent Vontz from exercising his right as a shareholder to elect directors. The court characterized the actions of the appellants-directors as "oppress[ive]."

{¶ 46} Initially, we note that under Ohio law and the relevant governing documents of the corporation, the corporation was to be governed by a board elected by the majority of the voting shareholders. It is undisputed in this case that the majority of the voting shareholders no longer supported the current board as evidenced by Vontz's filing of this action.

{¶ 47} The appellants-directors argue that the record contains no evidence to rebut the presumption that they had acted in good faith. In support of this assertion, they point to the trial court's comment that "no party has questioned the basic honesty of the other party." We interpret this to mean that the trial court found the appellants-directors had been very open about their oppression of Vontz, but that it also concluded they had not acted in good faith, when they refused to hold a shareholder meeting in accordance with the regulations for the purpose of thwarting a shareholder vote for new directors.

{¶ 48} In the corporate-director context, a lack of good faith includes conduct involving the "intentional dereliction of a duty, a conscious disregard for one's responsibilities." In re Walt Disney Co. Derivative Litigation, 906 A.2d 27, 66-67 (Del.2006) (quoting the chancellor's opinion to explain that " '[a] failure to act in good faith may be shown * * * where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties' "). Moreover, the duty of loyalty requires those in control of corporate processes to refrain from unfairly manipulating those processes to keep control. See Schnell v. Chris-Craft Indus., Inc., 285 A.2d 437 (Del.1971).

{¶ 49} Not only did Vontz present sufficient evidence to rebut the presumption that the appellants-directors had acted in good faith, the appellants-directors failed to show that their decision to deny Vontz's request had been fair. The appellants-directors take the position that the trial court should have judged the fairness of their decision by whether Vontz was denied profits or whether other board members who were also officers had diverted company assets or the like, findings that the trial court did not make. But we conclude that their tactics to thwart corporate democracy were not fair to Vontz as a shareholder with 50 percent of the voting rights. Accordingly, we overrule the Miller Directors' first assignment of error and Hice's first assignment of error to the extent that they challenge the trial court's finding that the directors had breached their fiduciary duty to Vontz.

3. Claim against Hice as General Counsel

{¶ 50} In Hice's second, third, and fourth assignments of error, she challenges the trial court's judgment with respect to any judgment against her in the role as general counsel. Vontz alleged in his complaint that Hice had breached her fiduciary duty "to him" as general counsel. The trial court found for Vontz on this claim and ordered Hice to "treat both shareholders equally."

{¶ 51} Hice contends that as general counsel, her client was the corporation, and her duty and allegiance ran to the corporation and not the shareholders. See Maloof v. Benesch, Friedlander, Coplan & Aronoff, 8th Dist. Cuyahoga No. 84006, 2004-Ohio-6285, 2004 WL 2676739, ¶ 27. We agree.

{¶ 52} As general counsel, Hice owed a fiduciary duty to the corporation, but not to Vontz as an individual shareholder. Therefore, the trial court erred by finding for Vontz on his claim against Hice as general counsel. Accordingly, we reverse that part of the trial court's judgment and direct the trial court to strike from the injunctive order the mandate that "Hice * * * shall treat both shareholders equally henceforth." Accordingly, we sustain Hice's second, third, and fourth assignments of error.

B. Appropriateness of Injunctive Relief

{¶ 53} The question remains as to whether the injunctive relief awarded was warranted in light of the appellants' breach of fiduciary duties.

{¶ 54} "Injunction is an extraordinary remedy equitable in nature, and its issuance may not be demanded as a matter of strict right; the allowance of an injunction rests in the sound discretion of the court and depends on the facts and circumstances surrounding the particular case." Perkins v. Quaker City, 165 Ohio St. 120, 133 N.E.2d 595 (1956), syllabus. "Whether it will be granted depends largely on the character of the case, the peculiar facts involved and other pertinent factors, among which are those relating to public policy and convenience." Id. at 125, 133 N.E.2d 595.

{¶ 55} An abuse of discretion contemplates "an attitude" by the court "that is unreasonable, arbitrary or unconscionable." AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An unreasonable decision is one that is not supported by a "sound reasoning process." Id.

{¶ 56} In this case, the trial court found that Vontz's concerns were compelling, and that "[t]he implications for not [awarding injunctive relief] would be disastrous for the plaintiff in specific and Ohio law regarding closely held corporations in general." Essentially, the court found, based on the evidence, that the appellants would retain "perpetual control over the company." We hold that the trial court was within its discretion in determining that the equities weighed in favor of Vontz, and that some injunctive relief was warranted in this case. See Crosby, 47 Ohio St.3d at 108, 548 N.E.2d 217, quoting United States v. Byrum, 408 U.S. 125, 137-38, 92 S.Ct. 2382, 33 L.Ed.2d 238, fn. 11 (1972) (" 'A court of equity will grant appropriate relief where the majority or dominant group of shareholders act in their own interest or in the interest of others so as to oppress the minority or commit fraud upon their rights.' ") The terms of the court's order must be modified, however, as discussed below.

{¶ 57} It is well-settled that a party seeking equitable relief in the form of an injunction must show by clear and convincing evidence that the injunction is necessary to prevent a great or irreparable injury for which the party does not have an adequate remedy at law. Dayton Metro. Hous. Auth. v. Dayton Human Relations Council, 81 Ohio App.3d 436, 442, 611 N.E.2d 384 (2d Dist.1992), cited in Stoneham, 140 Ohio App.3d 260, 267-268, 747 N.E.2d 268 ; see Hritz v. United Steel Workers of Am., AFL CIO, 12th District Warren No. CA2002-10-108, 2003-Ohio-5284, 2003 WL 22283508, ¶ 44.

{¶ 58} We first address the Miller Directors' argument that their conduct as directors could not have been the cause of any "irreparable harm" to Vontz. They contend that Vontz as co-chairman of the board and president was authorized to call-and did call-a special meeting for the election of directors at which he could exercise his right to vote. Furthermore, they emphasize that as directors they had no authority to require Miller's attendance at such a meeting.

{¶ 59} We are persuaded in part. Because Vontz can call the special shareholder meeting for the election of directors, Vontz failed to establish the irreparable harm necessary to support an injunctive order requiring the board to schedule the shareholder meeting. Therefore, the trial court must strike from its injunctive order the language and the related provisions requiring the board to schedule a shareholder meeting. Accordingly, we sustain the Miller Directors' first assignment of error to the extent that it presents this argument.

{¶ 60} Next, we address Miller's challenge to the trial court's order to the extent that it compels her to attend a shareholder meeting for the election of directors. Miller argues that the trial court cannot fashion a remedy where the Ohio General Assembly has not provided one. In other words, because she is not required by statute to attend a shareholder meeting, the court cannot order her to do so. Miller, quoting Chomczynski v. Cinna Scientific, Inc., 1st Dist. Hamilton No. C010170, 2002-Ohio-4605, 2002 WL 2030827, ¶ 9, insists that a corporation as legal entity is a creature of statute and "can act in no other way than set forth by statute." While that is a correct statement of the law, Vontz, unlike the plaintiff in Chomczynski, invoked the equity jurisdiction of the trial court to enforce his rights as a shareholder. See id. at ¶ 19.

{¶ 61} Generally, corporate statutes do not displace all common-law equitable powers of the court. See Danziger v. Luse, 103 Ohio St.3d 337, 2004-Ohio-5227, 815 N.E.2d 658, syllabus (holding that "shareholders have a right at common law to inspect the records of a wholly owned subsidiary of the corporation in which they own stock when the parent corporation so controls and dominates the subsidiary that the separate corporate existence of the subsidiary should be disregarded"); Bahls, Resolving Shareholder Dissension: Selection of the Appropriate Equitable Remedy, 15 J.Corp.L., 285, 294 (1990) ("Modern corporate legislation is designed to provide courts with powers that supplement their inherent equitable powers, rather than diminish their historic powers.")

{¶ 62} Miller also argues that there is no precedent for requiring her to attend a shareholder meeting. The Ohio Supreme Court has held, however, that " '[p]recedents in equity are a guide to the principles of equity, but the absence of a precedent for the particular relief sought is no bar to action.' " Civil Serv. Personnel Assoc. v. Akron, 48 Ohio St.2d 25, 28, 356 N.E.2d 300 (1976), quoting McClintock on Equity, (2d Ed.1948), 77. But we are persuaded that the trial court erred by incorporating terms in its injunctive order that were not narrowly tailored to remedy the irreparable harm at issue here. See Eastwood Mall v. Slanco, 68 Ohio St.3d 221, 224, 626 N.E.2d 59 (1994) ("Equity requires that an injunction should be narrowly tailored to prohibit only the complained of activities.") The trial court should have cured the irreparable harm resulting from Miller's manipulation of the regulations to suppress Vontz's voting rights without requiring Miller to attend an annual shareholder meeting.

{¶ 63} The parties, at trial and on appeal, argued that Regulation 2.07 of the Heidelberg Code of Regulations required the attendance of a majority of the voting shareholders to establish a quorum, without which no new directors could be elected at the shareholder meeting for the election of directors. Because of Miller's oppressive conduct, which resulted in irreparable harm to Vontz in that he could not exercise his voting rights, equity would require that the quorum requirement of Regulation 2.07 not apply when Vontz calls another special shareholder meeting for the election of directors. Instead, a quorum requirement should be applied that sets quorum at the number of voting shareholders who attend that meeting, and when quorum is met, the election of directors may then proceed as authorized under Regulation 2.07.

{¶ 64} Other states have enacted legislation to remedy the oppression of voting rights under similar circumstances. For example, a New York statute gives shareholders the right under specific circumstances to call a special meeting for the election of directors and provides that "[a]t * * * such a special meeting * * * the shareholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business." N.Y.Business Corporation Law 603. We direct the trial court on remand to incorporate similar language into its modified injunctive order. Thus, Miller may choose not to attend the shareholder meeting for the election of directors, but her failure to attend will not perpetuate the suppression of Vontz's shareholder rights.

{¶ 65} To the extent that Miller's first assignment of error challenges the injunctive order because it requires her to attend the shareholder meeting for the election of directors it is sustained. Thus, the trial court must modify the order accordingly.

{¶ 66} Miller also challenges the injunctive order because it requires the board to be "equalized." First, she argues that the board cannot be equalized because it consists of seven seats, and the parties will only be able to elect three directors each and will disagree on the seventh. The result, she claims, will be a failed election and the current board will carry over, in accordance with Ohio law and the corporate regulations. But Vontz takes the position, which is supported by our record, that the election of six directors will be valid.

{¶ 67} Second, Miller argues, citing to Humphrys v. Winous Co., 165 Ohio St. 45, 133 N.E.2d 780 (1956), that the requirement of equalization will give Vontz more power than Ohio law allows. In Winous, the court held that the right of cumulative voting "confers upon a minority shareholder only a right to vote cumulatively and does not ensure minority representation on the board of directors by the exercise of that right." Id. at paragraph three of the syllabus. We interpret Winous to support Miller's argument, and as a result we sustain Miller's second assignment of error. The irreparable harm to be remedied here is the suppression of Vontz's right to vote. As a result, we instruct the trial court to strike the language of the injunctive order related to the equalization of the board.

{¶ 68} For the same reason, and to provide additional clarity, we also order the trial court to strike the language of the injunctive order instructing the parties "to work out the directors to be removed." Hice challenges this part of the injunctive order, along with the mandate that she "treat both shareholders equally," in her fourth assignment of error, which we sustain. As modified, the injunctive order should comply with Civ.R. 65(D), which requires every order granting an injunction to be specific and clear.

{¶ 69} Finally, we address the appellants' challenge to the provision of the injunctive order that relates to the payment of attorney fees. The trial court included in its order a statement that each party is to pay its own attorney fees. The appellants argue that if the trial court intended by this language to deny them the right of indemnification of their attorney fees by the corporation, then the trial court erred. But we do not read this statement to be a ruling on the corporation's obligation to indemnify the Miller family directors and officers for attorney fees, as the issue of indemnification was never an issue in the case. Accordingly, we overrule the relevant assignments of error (the Miller Directors' fourth and Hice's seventh) on the grounds that the error assigned is not demonstrated in the record.

{¶ 70} Finally, the appellants seek reversal of the injunctive order for reasons related to the breach-of-contract and violation-of-corporate-requirement claims. Our disposition of the challenges addressed above render moot the challenges on appeal related to the trial court's grant of relief to Vontz based on those claims. Therefore, we do not reach the merits of those claims. See App.R. 12(A)(3).

III. Conclusion

{¶ 71} To summarize, the trial court erred by determining that Hice as general counsel breached her fiduciary duty to Vontz, by determining that Vontz was "irreparably harmed" by the board's refusal to schedule a shareholder meeting for the election of directors, and by incorporating terms in its injunctive order that were not narrowly tailored to remedy the irreparable harm caused by Miller's breach of her heightened fiduciary duty as a controlling shareholder. For these reasons, we reverse the trial court's judgment in part and remand for further proceedings consistent with this opinion and the law. In all other respects, we affirm the trial court's judgment.

Judgment affirmed in part, reversed in part, and cause remanded.

DeWINE and MOCK, JJ., concur.

      This understanding of the "quorum requirement" was central to the parties' respective arguments during the trial and on appeal.

      We note that Delaware courts would not apply the business-judgment rule under these circumstances, and would instead apply a less deferential "compelling justification standard of review," where a board of directors has refused to act for the reason of preventing a 50 percent shareholder from exercising his voting rights. See MM Cos., Inc. v. Liquid Audio, Inc., 813 A.2d 1118, 1128 (Del.2003). As one court put it, "the ordinary considerations to which the business judgment rule originally responded are simply not present in the shareholder voting context." Blasius Indus., Inc. v. Atlas Corp., 564 A.2d 651, 659 (Del.Ch.1988). Instead, "a decision by the Board to act for the primary purpose of preventing the effectiveness of a shareholder vote inevitably involves the question who, as between the principal and agent, has authority with respect to a matter of internal corporate governance. * * * Judicial review of such action involves a determination of legal and equitable obligations of an agent towards his principal. This is not * * * a question that a court may leave to the agent finally to decide so long as he does so honestly and competently; that is, it may not be left to the agent's business judgment." Id. at 660.

      We do not read the complaint as stating a claim for breach of fiduciary duty against the other Miller family "officers."

      Our record does not include corporate by-laws, if any exist.


source: Caselaw Access Project

author: DORRIAN, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Darin K. IRELAND, Defendant-Appellant.
    No. 15AP-1134.
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Jan. 24, 2017.
    On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
    On brief: Giorgianni Law LLC, and Paul Giorgianni, for appellant. Argued: Paul Giorgianni.
   DORRIAN, J.

{¶ 1} Defendant-appellant, Darin K. Ireland, appeals the December 8, 2015 judgment of the Franklin County Court of Common Pleas convicting him, pursuant to a jury verdict, and imposing sentence. For the following reasons, we reverse the judgment of the trial court.

I. History

A. Factual History

{¶ 2} On October 19, 2013, appellant, his wife, Pam Ireland, his friend, Tyler Thrash, and Tyler Thrash's girlfriend, were at Cappy's Bar in Blacklick, Ohio for a fundraiser for a military combat veteran's organization. Between 7 and 8 p.m. on the same night, Drew Coen and his brother, Cris Coen, also arrived at Cappy's Bar.

{¶ 3} According to Thrash, around midnight, a very intoxicated man grabbed Pam's buttocks as he exited the bar. Thrash followed the man, later identified as Drew, out of the bar, placed him in a headlock, and forced him to the ground. Thrash told Drew: "Don't touch my brother's girl's ass ever again." (Thrash Depo. at 2:12:30.) After he forced Drew to the ground, Thrash was pulled away by appellant and others. Thrash returned to the bar and resumed drinking. Shortly afterward, he heard a commotion outside. When he exited the bar, he saw appellant hitting someone in the parking lot. Seconds after observing appellant hitting the person "one to two times," Thrash and his girlfriend left the bar. (Thrash Depo. at 2:17:30.) Thrash testified that he and appellant had been drinking prior to this incident.

{¶ 4} Louis Capodanno, the owner of Cappy's Bar at the time of the incident, testified that he observed appellant's actions before Thrash attacked Drew. According to Capodanno, immediately before the incident, appellant was "his normal self" and was not intoxicated. (Tr. Vol. III at 261.) When Capodanno witnessed Thrash assaulting Drew, he and appellant tried to pull Thrash away from Drew. Capodanno then heard Thrash say to Drew, "You wanna touch one of our women?" Appellant then asked Drew, "Whose woman did you touch? You touched my woman?" (Tr. Vol. III at 262.) Capodanno then moved to assist Drew. While Capodanno was moving Drew away from the building into the parting lot, appellant said, "You wanna touch one of our women?" and began hitting Drew. (Tr. Vol. III at 266.) Capodanno tried to shield Drew with his own body and received kicks and punches from appellant.

{¶ 5} Theresa Luginbuhl, a manager at Cappy's Bar, testified that she observed appellant assault Drew in the parking lot outside the bar. Luginbuhl ran back inside the bar to call 911. When she came back outside after calling 911, she witnessed appellant striking Drew:

[Luginbuhl]: I came out and I had called the cops and I came out and I saw [Capodanno] was on top of Drew Coen, and [appellant] was punching [Capodanno].
* * *
I saw [Capodanno] on top of [Drew], and I saw someone try to pull [appellant] off, but [appellant] wouldn't-[appellant] wouldn't stop.
* * *
[Appellant] was still punching and probably still would have been stomping.
* * *
[Assistant Prosecutor]: So Drew-Drew is on the ground; [Capodanno] is on top of him protecting him. What was [appellant] doing?
[Luginbuhl]: Punching, punching, trying to get to Drew but punching [Capodanno].
I mean, he didn't care. He was just punching. He didn't care what was in his way, who it was. He didn't care. He would have punched anyone.

(Tr. Vol. III at 237-38, 241.)

{¶ 6} Adam Joseph McMillen testified that he witnessed Thrash assault Drew. According to McMillen, he, Capodanno, and appellant pulled Thrash away from Drew. After they pulled Thrash away from Drew, Thrash ran across the parking lot, and punched Drew in the face. McMillen then heard Pam screaming and saw appellant standing over Drew punching and kicking him. McMillen testified that appellant appeared very angry and "had this tunnel vision, like when you get in a fight." (Tr. Vol. II at 188.) McMillen witnessed appellant fall and then he stopped assaulting Drew. According to McMillen, "it was just like he was just kind of stumbling around, out of it." (Tr. Vol. II at 167.) McMillen then helped place appellant in Pam's car.

{¶ 7} According to Cris Coen, around 1 a.m., he and his brother exited the bar together when he was summoned back inside to sign a receipt by Luginbuhl. He signed the receipt and then went to the restroom. Shortly afterward, he was informed that his brother had been injured. Cris testified that, at first, he did not recognize Drew because of the severity of his injuries and the amount of blood covering his face and clothing. After recognizing his brother, Cris ran into the bar to grab towels which he then used to apply pressure to the injuries to Drew's face.

{¶ 8} Drew testified that he drank "quite a bit" of alcohol at the bar and was "pretty intoxicated that night." (Tr. Vol. II at 101; 80.) He recalled leaving the bar with Cris who was then summoned back inside the bar to sign a receipt. Drew testified that his next memory was waking up in Ohio Health Grant Medical Center in Columbus, Ohio. For some days following his arrival at the hospital, Drew suffered from memory loss and was unable to recall anything between his exiting the bar and waking up at the hospital. However, after some time, Drew testified that some of his memory of the night returned and he now recalls someone approaching him from behind and choking him.

{¶ 9} Drew received treatment for severe injuries to his face and head in addition to pain in his knee. Dr. Mark Douglas Wells, a physician at Ohio Health Grant Medical Center, testified that when Drew arrived at the hospital, he was alert and suffering from a variety of injuries including swelling around his eyes, a broken nose, and a broken upper jaw. At the hospital, it was determined that Drew had a blood alcohol content of .3. Drew underwent three surgeries to repair the damage to his face and head. As a result of the incident, Drew suffered from chronic pain, scarring, permanent physical injuries, and psychological injuries.

{¶ 10} At trial, the defense called James P. Reardon, Ph.D., a psychologist, as its sole witness. Following the incident, Dr. Reardon performed a psychological examination of appellant. Dr. Reardon testified that it was his opinion within a reasonable degree of psychological certainty that appellant was experiencing a dissociative episode when he attacked Drew. According to Dr. Reardon, appellant's dissociative episode was a manifestation of post-traumatic stress disorder ("PTSD"), from which appellant suffered as a result of his experience in the Persian Gulf War in 1991. Dr. Reardon testified that as a result of appellant's combat experience, he had "a significant capacity for dissociation." (Tr. Vol. III at 346.) Dr. Reardon offered the following explanation for dissociative episodes:

[Appellant's Counsel]: And when a person experiences what you call a "dissociative episode," if that happens, do they have a conscious awareness of what's going on around them?
[Dr. Reardon]: No. I mean, a dissociative episode, by definition, is an alteration in consciousness, memory, and the ability to make kind of rational decisions. I mean, the whole point of dissociating is if you can't escape-it's been described as dissociation is an escape when there's no escape * * * when you can't physically remove yourself.
* * *
[Appellant's Counsel]: Are you saying then that's a conscious decision to escape to this dissociative place?
[Dr. Reardon]: No. I mean, by definition, it is not a volitional experience. It's not something you do; it's something you experience.
[W]hen they disassociate [sic], when they are in a flashback, it's a disorientation for right here, right now because they feel like they're right there, right then. * * * And their reactions are automatic reactions that kind of kept them alive.

(Tr. Vol. III at 357-58; 360.) Under cross-examination, Dr. Reardon explained whether someone who is experiencing a dissociative episode is acting voluntarily or involuntarily:

[Assistant Prosecutor]: [I]n this incident, [appellant] reported having no memory of the contact?
[Dr. Reardon]: It's an alteration of consciousness. And then when a dissociative episode occurs, people don't consciously-they're not consciously present at that moment.
* * *
[Assistant Prosecutor]: [I]f someone's disassociated [sic], you're saying this action is involuntary; right? They have no control over it?
[Dr. Reardon]: It's not a manifestation of conscious thought or awareness.
[Assistant Prosecutor]: Okay. Meaning they can't control it?
[Dr. Reardon]: They don't control it.
* * *
[A]nd they can't because it's not a product of their consciousness and decision making.

(Tr. Vol. III at 381, 387.)

{¶ 11} For purposes of rebuttal, plaintiff-appellee, State of Ohio, offered the testimony of Dennis Eshbaugh, Ph.D., a clinical and forensic psychologist. Dr. Eshbaugh stated that, based on his review of appellant's records, including Dr. Reardon's report, it was his opinion within a reasonable degree of psychological and scientific certainty that "the evidence argued against PTSD and argued in favor of substance abuse having anything related to the instant charge." (Tr. Vol. IV at 515.) Dr. Eshbaugh stated that he did not interview appellant and therefore could not diagnose him.

B. Procedural History

{¶ 12} On January 22, 2014, a Franklin County Grand Jury filed an indictment charging appellant with a single count of felonious assault, in violation of R.C. 2903.11, a felony of the second degree. On October 26, 2015, the matter proceeded to trial. At trial, appellant requested an instruction on the defense of "blackout" as contained in The Ohio Jury Instruction Manual ("The OJI"). The OJI provides the following instruction on blackout:

1. DEFINED. Where a person commits an act while unconscious as in a (coma) (blackout) (convulsion) due to (heart failure) (disease) (sleep) (injury), such act is not a criminal offense even though it would be a crime if such act were the product of a person's (will) (volition).
2. CONCLUSION. If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony (all elements of the crime charged) (any lesser included offense) [that the act was (purposely) (knowingly) committed].

Ohio Jury Instructions, CR Section 417.07 (2016).

{¶ 13} The state objected to the inclusion of the instruction. Additionally, the state argued that the defense of "blackout" was an affirmative defense for which appellant bore the burden of proof. Appellant repeatedly objected to the characterization of "blackout" as an affirmative defense. After hearing arguments, the trial court concluded that it would instruct the jury on blackout, and found that blackout was an affirmative defense. The court then issued the following instruction:

The defendant is asserting an affirmative defense known as blackout.
The burden of going forward with the evidence of blackout and the burden of proving an affirmative defense is upon the defendant. He must establish such a defense by a preponderance of the evidence.
Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it outweighs or overbalances, in your minds, the evidence opposed to it.
A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may or may not be identical with the greater number of witnesses.
In determining whether or not an affirmative defense has been proved by a preponderance of the evidence, you should consider all the evidence bearing upon that affirmative defense regardless of who produced it.
If the weight of the evidence is equally balanced or if you are unable to determine which side of an affirmative defense has the preponderance of evidence, then the defendant has not established such affirmative defense.
If the defendant fails to establish the defense of blackout, the State still must prove to you beyond a reasonable doubt all the elements of the crime charged.
Where a person commits an act while, as in a coma, blackout, or convulsion due to heart failure, disease, sleep, or injury, such act is not a criminal offense even though it would be a crime if such act were the product of a person's will or volition.
If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the State of its burden of establishing by the required weight of the testimony that the act was knowingly committed.
This instruction would not apply to one who recklessly or negligently became intoxicated.
Reflexes, convulsions, body movements during unconsciousness or sleep and body movements that are not otherwise a product of the act's will or volition are involuntary acts.
Intoxication is not an excuse for an offense.

(Tr. Vol. V at 646-48.)

{¶ 14} On October 30, 2015, the jury returned a verdict of guilty on the count charged in the indictment. On December 7, 2015, the trial court held a sentencing hearing. At the hearing, the court sentenced appellant to a six-year term of incarceration and a three-year mandatory period of post-release control. On December 8, 2015, the trial court filed a judgment entry reflecting appellant's conviction and sentence.

II. Assignments of Error

{¶ 15} Appellant appeals and assigns the following five assignments of error for our review:

[I.] The court instructed the jury that Mr. Ireland had the burden of proving his defense, thereby depriving Mr. Ireland of his constitutional right to a jury trial under the "beyond a reasonable doubt" standard of proof.
[II.] Prosecutorial misconduct during closing argument violated Mr. Ireland's due-process right to a fair trial.
[III.] The cumulative effect of errors violated Mr. Ireland's due-process right to a fair trial.
[IV.] The judge misstated OJI 417.07 by omitting the word "unconscious."
[V.] The judge failed to give a curative instruction when the State's psychology expert purported to tell the jury "what the law requires."

III. Discussion

A. First Assignment of Error-Burden of Proof

{¶ 16} In his first assignment of error, appellant asserts the trial court erred by instructing the jury that blackout was an affirmative defense and, therefore, appellant bore the burden of proving the defense of blackout by a preponderance of the evidence. Appellant contends that by failing to properly instruct on the state's burden to prove all essential elements of the crime beyond a reasonable doubt, the trial court committed structural error. Importantly, we note that the state does not contest on appeal whether it was proper for the trial court to offer the instruction on blackout. Instead, the state argues only that the trial court properly instructed that appellant bore the burden of proving the defense of blackout as an affirmative defense.

1. Standard of Review

{¶ 17} Crim.R. 52 affords appellate courts limited power to correct errors that occurred during criminal proceedings in the trial court. Crim.R. 52 provides:

(A) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
(B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Thus, Crim.R. 52(B) distinguishes between errors to which a defendant objected at trial and errors that a defendant failed to raise at trial. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14. If the defendant failed to raise an error affecting substantial rights at trial, an appellate court reviews the error under the plain error standard in Crim.R. 52(B). Under that rule, the defendant bears the burden of demonstrating that a plain error affected his substantial rights. See id., citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "Even if the defendant satisfies this burden, an appellate court has discretion to disregard the error and should correct it only to ' "prevent a manifest miscarriage of justice." ' " Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 18} However, if the defendant has objected to an error in the trial court, an appellate court employs a more lenient standard of review, namely the "harmless error" standard in Crim.R. 52(A). Perry at ¶ 15, citing United States v. Curbelo, 343 F.3d 273, 286 (4th Cir.2003). Under Crim.R. 52(A), the state bears the burden of demonstrating that the error, if any, did not affect the substantial rights of the defendant. Olano at 734, 113 S.Ct. 1770 ; State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 136 ("Once [the defendant] objected to the [error], the burden shifted to the state to demonstrate an absence of prejudice."). "This burden-shifting device 'is dictated by a subtle but important difference in language between the two parts of Rule 52 : While Rule 52(a) precludes error correction only if the error "does not affect substantial rights," (emphasis added), Rule 52(b) authorizes no remedy unless the error does "affect substantial rights." ' " Perry at ¶ 15, quoting Olano at 734, 113 S.Ct. 1770 Unlike under Crim.R. 52(A), an appellate court must reverse the defendant's conviction if the state fails to satisfy its burden under Crim.R. 52(B). Id., citing Olano at 734, 113 S.Ct. 1770

{¶ 19} Here, appellant objected to the trial court's characterization of the blackout defense as an affirmative defense. Therefore, we would ordinarily review the purported error under the harmless error standard provided in Crim.R. 52(A). Appellant, however, contends that due to the nature of this purported error, we should review for "structural error." (Appellant's Brief at 91-92.)

{¶ 20} The United States Supreme Court has recognized that " 'most constitutional errors can be harmless.' " Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Indeed, "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). However, certain constitutional errors, termed "structural errors," have been recognized to "defy analysis by 'harmless error' standards." Fulminante at 309, 111 S.Ct. 1246. Structural errors are defined as constitutional defects that " 'affect [ ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.' " State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, quoting Fulminante at 310, 111 S.Ct. 1246. Structural errors permeate "the entire conduct of the trial from beginning to end," rendering the trial court unable to " 'reliably serve its function as a vehicle for determination of guilt or innocence.' " Fulminante at 309-10, 111 S.Ct. 1246, quoting Rose at 577-78, 106 S.Ct. 3101. As a result of the severity of their impact on the proceedings, structural errors "require automatic reversal (i.e., 'affect substantial rights') without regard to their effect on the outcome." Neder at 7, 119 S.Ct. 1827 ; see also Perry at ¶ 17.

{¶ 21} "Consistent with the presumption that errors are not 'structural,' the United States Supreme Court 'has found an error to be "structural," and thus subject to automatic reversal, only in a "very limited class of cases." Johnson v. United States, 520 U.S. 461, 468 [117 S.Ct. 1544, 137 L.Ed.2d 718] (1997) (citing Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] (1963) (complete denial of counsel)); Tumey v. Ohio, 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749] (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254 [106 S.Ct. 617, 88 L.Ed.2d 598] (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168 [104 S.Ct. 944, 79 L.Ed.2d 122] (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39 [104 S.Ct. 2210, 81 L.Ed.2d 31] (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182] (1993) (defective reasonable-doubt instruction).' " Perry at ¶ 18, quoting Neder at 8, 119 S.Ct. 1827.

{¶ 22} The United States Supreme Court has recognized "[w]hat the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause." Sullivan at 277, 113 S.Ct. 2078. Specifically, "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"). Furthermore, the "beyond a reasonable doubt" standard applies in both state as well as federal proceedings. Sullivan at 278, 113 S.Ct. 2078, citing Winship.

{¶ 23} In Sullivan, the United States Supreme Court found that "the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated." Id. at 278, 113 S.Ct. 2078. The United States Supreme Court stated that "[i]t would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires) whether he is guilty beyond a reasonable doubt." (Emphasis sic.) Id. Therefore, "the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt." Id. Finally, in considering whether to apply the harmless error or structural error standard of review, the United States Supreme Court found that "[d]enial of the right to a jury verdict of guilt beyond a reasonable doubt * * * with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error.' " Id. at 281-82, 113 S.Ct. 2078.

{¶ 24} Here, appellant asserts the trial court failed to properly instruct the jury regarding the reasonable doubt standard. We agree and, consistent with Sullivan, review for structural error.

2. Applicable Law

{¶ 25} Generally, criminal offenses contain two elements: the "actus reus," or "guilty act," and "mens rea," or "guilty mind." State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶ 8 ("Generally, an offense will be defined in terms of a prohibited act accompanied by a culpable mental state, the 'mens rea' or guilty mind."); State v. Hackedorn, 5th Dist. No. 2004-COA-053, 2005-Ohio-1475, 2005 WL 724485, ¶ 35 ("An essential element of every crime is the defendant's actus reus, or criminal act."). See Joshua Dressler, Understanding Criminal Law, Sections 9.01 and 10.01 (7th Ed.2015). R.C. 2901.21 codifies these basic requirements for criminal liability, providing in pertinent part:

(A) [A] person is not guilty of an offense unless both of the following apply:
(1) The person's liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;
(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense.

"Thus, every criminal offense is made up of (1) a voluntary act or failure to act when there is a duty and (2) a culpable mental state for each element that specifies a mental state."Johnson at ¶ 16.

{¶ 26} Furthermore, Ohio has codified the burden of proof in all criminal proceedings. R.C. 2901.05. See State v. Jenkins, 15 Ohio St.3d 164, 210, 473 N.E.2d 264 (1984). R.C. 2901.05(A) provides:

Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Thus, R.C. 2901.05 contains two different burdens of proof. First, with regard to all of the essential elements of the offense, the burden of proof remains on the state. This remains true where the defendant presents evidence tending to disprove an essential element of the case. Second, the defendant bears the burden of proof by a preponderance of the evidence for affirmative defenses. An affirmative defense is defined as either "[a] defense expressly designated as affirmative," or "[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence." R.C. 2901.05(D)(1)(a) and (b). Thus, where the defendant does not seek to negate an element of the charged offense, the defendant bears the burden of demonstrating an excuse or justification in order to defeat criminal liability.

{¶ 27} The statutory authority cited for the defense at issue in the present matter, i.e., unconsciousness or blackout can be found in R.C. 2901.21(E)(2), which provides: "Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's volition, are involuntary acts." See Hackedorn at ¶ 39, citing former R.C. 2901.21(C)(2).

{¶ 28} Here, blackout is not expressly designated by statute as an affirmative defense. Therefore, we must determine whether blackout relates to an essential element of the crime or is "[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence." R.C. 2901.05(D)(1)(b).

{¶ 29} Legal scholars have recognized that the issue of whether a voluntary act is an element of a crime is an issue of considerable debate. See Joshua Dressler, Understanding Criminal Law, Sections 9.02 and 10.01 (7th Ed.2015) ( "There is serious dispute regarding whether 'involuntariness'-claims of seizure, acts during unconsciousness, and the like-should be characterized as a 'defense.' "); Farrell and Marceau, Taking Voluntariness Seriously, 54 B.C. L.Rev. 1545, 1545-46 ("[T]he 'voluntary act requirement' is a foundational component of criminal law. Courts, commentators, and theorists overwhelmingly assert that criminal law contains an act requirement. This surface consensus, however, belies the underlying reality of deep disagreement about the meaning, scope, and application of the act requirement in criminal law."); 1 Wayne R. LaFave, Substantive Criminal Law, Section 6.1(c) (2d Ed.2003).

{¶ 30} Indeed, courts have reached varying conclusions regarding this issue. See State v. Hinkle, 200 W.Va. 280, 286, 489 S.E.2d 257 (1996) ("[W]e hold that unconsciousness (or automatism) is not part of the insanity defense, but is a separate claim which may eliminate the voluntariness of the criminal act. Moreover, the burden of proof on this issue, once raised by the defense, remains on the State to prove that the act was voluntary beyond a reasonable doubt."); State v. Deer, 175 Wash.2d 725, 741, 287 P.3d 539 (2012) ("While a defendant must be allowed to argue that her actions were involuntary, thus excusing her from criminal liability, we hold that it is the defendant's burden to prove this defense by a preponderance of the evidence."); Polston v. State, 685 P.2d 1, 6 (Wyo.1984) (holding that "the burden is upon the defendant who raises the defense of automatism to prove the elements necessary to establish the defense; and the burden remains with the defendant throughout the trial"); McClain v. State, 678 N.E.2d 104, 107-09 (Ind.1997), quoting Baird v. State, 604 N.E.2d 1170, 1176 (Ind.1992) (" 'Once evidence in the record raises the issue of voluntariness, the state must prove the defendant acted voluntarily beyond a reasonable doubt.' * * * Automatism is simply a denial of one element-voluntary action-that the Legislature has required for most crimes."); State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348 (1975) (holding that "unconsciousness, or automatism, is a complete defense to a criminal charge, separate and apart from the defense of insanity; that it is an affirmative defense; and that the burden rests upon the defendant to establish this defense, unless it arises out of the State's own evidence, to the satisfaction of the jury"); State v. Weatherford, 416 N.W.2d 47, 55 (S.D.1987) (finding that "the burden of proof rests on the State to prove the defendant was conscious at the time he committed the act, or acts, constituting the offense charged" and that the defendant had only the burden of producing evidence that would raise a reasonable doubt in the mind of the jury); State v. Mishne, 427 A.2d 450, 458 (Me.1981) ("The burden is on the state to prove that the defendant was not acting in an unconscious, involuntary way."); People v. Babbitt, 45 Cal.3d 660, 693-94, 248 Cal.Rptr. 69, 755 P.2d 253 (1988) (finding that "because consciousness is not an element of the offense of murder (nor of any offense), * * * there is no constitutional impediment to the state's use of a rebuttable presumption in meeting its assumed burden-once the issue has been raised-to prove consciousness beyond a reasonable doubt").

{¶ 31} In Ohio, courts have historically characterized the defense of blackout or unconsciousness as an affirmative defense. State v. LaFreniere, 85 Ohio App.3d 840, 849, 621 N.E.2d 812 (11th Dist.1993), citing State v. Myers, 82 Ohio Law Abs. 216, 164 N.E.2d 585 (1959) ; State v. Mobley, 5th Dist. No. 2010-CA-0018, 2011-Ohio-309, 2011 WL 304360, ¶ 43 ; State v. Hinton, 8th Dist. No. 99581, 2014-Ohio-490, 2014 WL 584965, ¶ 27 ; Hackedorn at ¶ 42; State v. Singleton, 11th Dist. No. 2002L-077, 2004-Ohio-1517, 2004 WL 605138, ¶ 36 ; and State v. Robinson, 2d Dist. No. 9547, 1986 WL 6109 (May 27, 1986).

{¶ 32} In Myers, the defendant was charged with "driving while under the influence of intoxicating liquor" after he drove his car through an intersection without stopping, resulting in a one-vehicle crash in which the passenger of his car was killed. Id. The defendant claimed he had no memory of going through the intersection and that "he must have gone to sleep." Id. On appeal, the state objected to the jury instruction on blackout because it failed to account for circumstances in which the loss of consciousness was induced by intoxication, and because it failed to place the burden on the defendant of proving the defense of blackout by a preponderance of the evidence. The court relied on Lehman v. Haynam, 164 Ohio St. 595, 133 N.E.2d 97 (1956), for the following proposition: "Where in an action for injuries arising from a collision of automobiles the defense of the defendant driver is that he was suddenly stricken by a period of unconsciousness, which rendered it impossible for him to control the car he was driving and which he had no reason to anticipate or foresee, the burden of proof as to such defense rests upon such driver." Id. at paragraph three of the syllabus. Although it noted that "the Lehman case was a civil action for damages," the court found that "in a criminal proceeding, the burden is upon the defendant to prove [that he was unconscious as] an affirmative defense." Myers .

{¶ 33} In Robinson, the court recognized the holding of Myers for the proposition that blackout was an affirmative defense. Further, the court stated that "the defense of blackout is very similar to the defense of insanity which also has been recognized as an affirmative defense since it is based on an excuse which is 'peculiarly within the knowledge of the accused' for which he can be fairly required to produce evidence." Id. Therefore, the court found that the defendant had the burden of proving blackout as an affirmative defense by a preponderance of the evidence pursuant to R.C. 2901.05(A).

{¶ 34} In LaFreniere, the court relied on Myers and Robinson to conclude that blackout was an affirmative defense. The court found that where the record contained "some credible, competent evidence supporting a finding of blackout * * * an instruction on the affirmative defense of blackout had to be given." Id. at 850, 621 N.E.2d 812, citing State v. Payne, 104 Ohio App. 410, 149 N.E.2d 583 (10th Dist.1957).

3. Analysis

{¶ 35} We begin our analysis by examining whether voluntariness is a requirement for establishing criminal liability. As previously stated, R.C. 2901.21(A) contains the basic requirements for criminal liability, providing in pertinent part that a "person is not guilty of an offense" unless that person commits "conduct that includes * * * a voluntary act."

{¶ 36} In construing R.C. 2901.21(A), we must consider the General Assembly's intent when including the term "voluntary" in the statutory requirements for criminal liability. "The primary goal of statutory construction is to give effect to the intent of the legislature." State v. Wilson, 77 Ohio St.3d 334, 336, 673 N.E.2d 1347 (1997), citing Carter v. Youngstown, 146 Ohio St. 203, 65 N.E.2d 63 (1946), paragraph one of the syllabus. "It is a basic tenet of statutory construction that 'the General Assembly is not presumed to do a vain or useless thing, and that when language is inserted in a statute it is inserted to accomplish some definite purpose.' " Id., quoting State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio St. 476, 479, 159 N.E.2d 756 (1959). Furthermore, "[a] court should give effect to the words actually employed in a statute, and should not delete words used, or insert words not used, in the guise of interpreting the statute." State v. Taniguchi, 74 Ohio St.3d 154, 156, 656 N.E.2d 1286 (1995), citing State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995). See State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996), citing State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995) ("If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary."). Following from these principles of statutory construction and consistent with the plain language of R.C. 2901.21(A), we find the General Assembly intended to require that an act be "voluntary" in order to establish criminal liability.

{¶ 37} Because, pursuant to R.C. 2901.21(A), criminal liability cannot be established without proof of conduct including a voluntary act, and we have found that the General Assembly intended to include the requirement that the act be voluntary, we conclude that voluntariness is an essential element of a criminal offense. See Wilson at 336, 673 N.E.2d 1347, citing MacDonald v. Bernard, 1 Ohio St.3d 85, 89, 438 N.E.2d 410 (1982) ("In reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body."). Indeed, it has been recognized by some Ohio courts that actus reus is "[a]n essential element of every crime." Mobley at ¶ 36. See also Hackedorn at ¶ 35; State v. Cloud, 7th Dist. No. 98 CO 51, 2001 WL 1155855; State v. Brown, 12th Dist. No. CA2008-12-049, 2009-Ohio-3933, 2009 WL 2425972, ¶ 15, fn. 1.

{¶ 38} Thus, because a voluntary act is an essential element of the offense, the state constitutionally bears the burden of proving such element beyond a reasonable doubt. R.C. 2901.05(A) ; Patterson at 210, 97 S.Ct. 2319 (finding "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged"); Winship at 364, 90 S.Ct. 1068 (holding that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"). Some Ohio courts, including the Supreme Court of Ohio and this court, have stated that the burden rests with the state to prove that the accused engaged in a voluntary act. State v. Nucklos, 121 Ohio St.3d 332, 2009-Ohio-792, 904 N.E.2d 512, ¶ 6 ("In a criminal case, the state must prove that the accused engaged in a voluntary act * * * with the requisite degree of culpability for each element of the alleged offense in order to obtain a conviction. The state has the burden of establishing all material elements of a crime by proof beyond a reasonable doubt.") (Internal citations and quotations omitted.); State v. Ferguson, 10th Dist. No. 07AP-999, 2008-Ohio-6677, 2008 WL 5265893, ¶ 73, citing State v. Squires, 108 Ohio App.3d 716, 718, 671 N.E.2d 627 (2d Dist.1996) (finding that where an accused is charged with a strict liability crime, thus negating the mens rea requirement, "the prosecution need only prove that the offender engaged in a voluntary act or omission"). See State v. Swiger, 9th Dist. No. 26556, 2013-Ohio-3519, 2013 WL 4129768, ¶ 17, quoting State v. Colon, 9th Dist. No. 91CA005003, 1992 WL 64173 (Mar. 25, 1992) ("The 'fundamental requirement' of the defendant having committed a voluntary act or omission 'is entirely separate and distinct from the element of "culpability" which must also be established for all non-strict liability crimes.' ").

{¶ 39} Therefore, having found that the state constitutionally bears the burden of proving beyond a reasonable doubt that the defendant engaged in a voluntary act, we cannot agree that the defendant must prove by a preponderance of the evidence that his or her actions were involuntary. Our review of Myers, Robinson , and LaFreniere does not compel a different conclusion. First, it is relevant that Myers was decided prior to the enactment in 1974 of R.C. 2901.21(A), which codified the requirements for actus reus and mens rea in order to establish criminal liability. Second, we find the reliance of Myers on Lehman to be unpersuasive, because Lehman was a civil action. Third, unlike in Myers , this case involves a claim of involuntariness arising from a PTSD-induced blackout, whereas Myers involved a claim of involuntariness arising from a voluntary action to drink alcohol ("defendant * * * engaged in drinking beer from early evening until after midnight"). Id. at 218, 164 N.E.2d 585. As a result, we cannot find that Myers is controlling over our analysis of the instant matter. Similarly, we find Robinson and LaFreniere to be unpersuasive because both cases rely on Myers in support of their holding, and do not support with analysis of R.C. 2901.21(A) the conclusion that blackout is an affirmative defense.

{¶ 40} Furthermore, we find that blackout resulting from PTSD is not "an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence." R.C. 2901.05(D)(1)(b). First, we find that the issue of voluntariness is not an excuse or justification. By disputing the voluntariness of his or her actions, the defendant is not admitting the elements of the crime but, nonetheless, seeking to escape the imposition of criminal liability. Instead, the defendant is disputing that the state met its burden of proof on an essential element of the offense, i.e., the voluntary act. Therefore, the defense of blackout is not in the nature of an excuse or justification.

{¶ 41} Second, a defense challenging voluntariness does not involve evidence peculiarly within the knowledge of the accused. In most cases, the voluntariness of the defendant's actions is not an issue, as the presentation of evidence sufficient to prove the other elements of the crime is also sufficient to demonstrate that the defendant acted voluntarily. Thus, much like the defenses of alibi and mistake of fact, the defendant would necessarily have the burden of producing evidence sufficient to create a reasonable doubt as to the voluntariness of the defendant's actions. In response, the state is free to present its own evidence, including testimony from an expert witness, to carry its burden of proof that the defendant was acting voluntarily. Indeed, in the instant matter, the state subjected appellant's expert witness to cross-examination and presented testimony from its own expert witness relevant to the issue of the voluntariness of appellant's actions. Thus, we find that the defense of blackout does not involve evidence peculiarly within the knowledge of the accused.

{¶ 42} Here, the trial court instructed the jury that appellant bore the burden of establishing the defense of blackout, i.e. that appellant acted involuntarily, by a preponderance of the evidence as an affirmative defense. Because we have found that the state bears the burden of proving beyond a reasonable doubt that the defendant committed a voluntary act, we find that the trial court committed structural error. Sullivan at 281-82, 113 S.Ct. 2078. Appellant's first assignment of error is sustained. As a result, we reverse appellant's conviction and remand this matter for further proceedings. Finally, we note that our holding in this case is limited to claims of involuntariness resulting from PTSD-induced blackout. See R.C. 2901.21(E)(2) ; OJI CR Section 417.07 (2016). Our holding does not implicate cases involving the voluntary intoxication of the defendant. See R.C. 2901.21(D).

B. Second, Third, Fourth, and Fifth Assignments of Error

{¶ 43} In his second assignment of error, appellant asserts the prosecutor committed misconduct during closing argument, violating appellant's due process right to a fair trial. In his third assignment of error, appellant asserts the cumulative effect of errors violated his due process right to a fair trial. In his fourth assignment of error, appellant asserts the trial court erred by omitting the word "unconscious" in the jury instructions. In his fifth assignment of error, appellant asserts the trial court erred by failing to give a curative instruction. Having sustained appellant's first assignment of error, appellant's remaining four assignments of error are rendered moot.

IV. Conclusion

{¶ 44} Having sustained appellant's first assignment of error and rendered moot appellant's remaining four assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter for further proceedings consistent with law and this decision.

Judgment reversed and cause remanded.

BRUNNER, J., concurs.

LUPER SCHUSTER, J., dissents.

      We note that Thrash's testimony was taken before a magistrate prior to trial. A video recording of his testimony was played to the jury at trial. Although this recording was not transcribed in the record, we note the location of the testimony in question by reference to a time-stamp present in the recording.

      We note some examples of defenses where the burden of proof remains on the state include alibi and accident or mistake of fact. State v. Childs, 14 Ohio St.2d 56, 64, 236 N.E.2d 545 (1968) (stating that "the general rule, followed in this jurisdiction, that the burden of proof remains with the state even with respect to alibi evidence"); State v. Wilson, 2d Dist. No. 24577, 2012-Ohio-3098, 2012 WL 2628718, ¶ 115, citing State v. Goetz, 1st Dist. No. C970503, 1998 WL 735358 (Oct. 23, 1998) ; State v. Shaw, 10th Dist. No. 98AP-1338, 1999 WL 739552 (Sept. 23, 1999) ; State v. Poole, 33 Ohio St.2d 18, 20-21, 294 N.E.2d 888 (1973) ("[I]t has long been established that accident is not an affirmative defense in this state. * * * Accident is generally embraced in a charge dealing with the elements of the offense and the burden imposed upon the state to establish the existence of those elements); State v. Snowden, 7 Ohio App.3d 358, 363, 455 N.E.2d 1058 (10th Dist.1982) ("When defendant, due to a mistake of fact, does not have the specific mens rea required by the statute, the maxim ignorantia facti excusat applies. * * * Mistake of fact can, in an appropriate circumstance, negate either 'knowingly' or 'purposely.' "); State v. Cooper, 10th Dist. No. 09AP-511, 2009-Ohio-6275, 2009 WL 4308622, ¶ 9.

      By way of example, we note that the affirmative defense of self-defense, where established, provides a justification for an act that would otherwise be considered criminal conduct. See State v. Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986) ("[T]he burden of proving self-defense by a preponderance of the evidence does not require the defendant to prove his innocence by disproving an element of the offense with which he is charged. * * * Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged."); State v. Edgerson, 8th Dist. No. 101283, 2015-Ohio-593, 2015 WL 758992, ¶ 17 (noting that "self-defense is unlike other defenses in that it is more than a denial or contradiction of the prosecution's evidence of the essential elements of the charged crime"). Similarly, insanity has been recognized as an affirmative defense. State v. Filiaggi, 86 Ohio St.3d 230, 242, 714 N.E.2d 867 (1999), citing State v. Brown, 5 Ohio St.3d 133, 449 N.E.2d 449 (1983) ("A plea of not guilty by reason of insanity is an affirmative defense that must be proven by a preponderance of the evidence.").

      This defense is also referred to as "automatism." See Melissa Hamilton, Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder, 16 Berkeley J.Crim. L. 340, 352 ("Automatistic actions are generally accepted as a category of involuntary act for purposes of abrogating criminal culpability."); Black's Law Dictionary 160 (10th Ed.2014) ("Automatism may be asserted as a criminal defense to negate the requisite mental state of voluntariness."); 2 Wayne R. LaFave, Substantive Criminal Law, Section 9.4(b) (2d Ed.2003).

      Although not a state Supreme Court case, People v. Nelson, 377 Ill.Dec. 697, 2 N.E.3d 613, 619 (Ill.App.2013), appears to place the burden on the state to prove voluntary action with similar statutory language: "In addition to proving that the defendant performed the actus reus with the requisite mens rea, the State must also prove beyond a reasonable doubt that the defendant engaged in a voluntary act, for it is a 'fundamental principle that a person is not criminally responsible for an involuntary act.' People v. Grant, 71 Ill.2d 551, 558, 17 Ill.Dec. 814, 377 N.E.2d 4 (1978). Thus, the Criminal Code of 1961 provides that '[a] material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.' 720 ILCS 5/4-1 (West 2010)." See also Palmer v. State, 379 P.3d 981 (Alaska App.2016), quoting State v. Simpson, 53 P.3d 165, 169 (Alaska App.2002) (finding that "although rarely disputed, the performance of a voluntary act 'remains an implicit element of all crimes' for which the State bears the burden of proof beyond a reasonable doubt").

      While we note that R.C. 2901.21(A)(1) also provides that "an omission" can satisfy the requirement of conduct sufficient to establish criminal liability, we limit our discussion to acts, as omissions are not relevant to our resolution of the instant matter.

      We note that the defense of voluntary intoxication is governed by R.C. 2901.21(D), which provides: "Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. Voluntary intoxication does not relieve a person of a duty to act if failure to act constitutes a criminal offense. Evidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged."