In State v. Thomas (1998), 40 Ohio St.3d 213, 533 N.E.2d 286, the Supreme Court of Ohio held that "the jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense." Id. at paragraph three of the syllabus.
However, even though the Supreme Court rejected the "acquittal first" instruction approved by the court of appeals, the Supreme Court nonetheless upheld the jury instructions given in Thomas which were as follows:
"If you find that the State has proven beyond a reasonable doubt all of the essential elements of the crime of aggravated murder, then your verdict must be that the Defendant is guilty of aggravated murder; and you will not consider the lesser offense.
"However, if you find that the State has failed to prove beyond a reasonable doubt the element of prior calculation and design, then your verdict must be that the Defendant is not guilty of aggravated murder.
"You will then proceed with your deliberations and decide whether the State has proven beyond a reasonable doubt all of the essential elements of the lesser crime of murder." Id. at 219.
The Supreme Court concluded that the jury instructions were not "acquittal first" instructions; the court stated:
"This instruction does not expressly require unanimous acquittal on the charged crime, but rather addresses possible disagreement by the jury on the element of prior calculation and design and a corresponding inability to reach a verdict of guilty of aggravated murder.
In our opinion, this instruction has negligible coercive potential because it speaks to the jury's inability to find, whether unanimously or not, a certain element of the greater offense. We are not persuaded that the trial court's instruction unduly prejudiced the appellee, and thus we affirm his conviction of aggravated murder." Id. at 220.