546US1
78
Unit: $$U9
[08-22-08 14:08:29] PAGES PGT: OPIN
BRADSHAW v. RICHEY Per Curiam
cause the death of any person who is killed during the commission of . . . the offense, the jury also shall be instructed that . . . it is to consider all evidence intro duced by the prosecution to indicate the person’s intent and by the person to indicate his lack of intent in deter mining whether the person specifically intended to cause the death of the person killed . . . .” Ohio Rev. Code Ann. § 2903.01(D) (Anderson 1982) (emphasis added). Contrary to the Sixth Circuit’s reading, see 395 F. 3d, at 673, this clause by its terms did not apply to every case in which the defendant was charged with aggravated felony murder, but rather only to those in which intent to kill was sought to be proved from the inherent dangerousness of the relevant felony. See State v. Phillips, 74 Ohio St. 3d 72, 100, 656 N. E. 2d 643, 668 (1995) (“R. C. § 2903.01(D) does not apply in this case because the trial court never instructed that the jury could infer purpose to kill from the commission of an underlying felony in a manner ‘likely to produce death’ ”). Here, however, intent to kill was proved directly. It was not inferred from the dangerousness of the arson; it was shown to be the purpose of the arson. The Sixth Circuit also argued that dicta in a case decided by an intermediate Ohio appellate court, prior to the Ohio Supreme Court’s opinion here, rejected transferred intent for respondent’s crime, and thus rendered its application in respondent’s case unforeseeable and retroactive. 395 F. 3d, at 675–676 (citing State v. Mullins, 76 Ohio App. 3d 633, 602 N. E. 2d 769 (1992)). But that case was decided long after the 1986 offense for which respondent was convicted, and thus has no bearing on whether the law at the time of the charged conduct was clear enough to provide fair notice. Lanier, supra; see also Marks v. United States, 430 U. S. 188, 196 (1977). Because the Sixth Circuit disregarded the Ohio Supreme Court’s authoritative interpretation of Ohio law, its ruling on sufficiency of the evidence was erroneous.
