State v. Thomas

• Decision Date: 30 December 1988
• Docket Number: No. 87-1514,87-1514
• Citation: 533 N.E.2d 286,40 Ohio St.3d 213
• Parties: The STATE of Ohio, Appellant, v. THOMAS, Appellee.
• Court: Ohio Supreme Court

Page 213

40 Ohio St.3d 213

533 N.E.2d 286

The STATE of Ohio, Appellant, v. THOMAS, Appellee.

No. 87-1514.

Supreme Court of Ohio.

Submitted Sept. 20, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. Involuntary manslaughter, R.C. 2903.04, is, as statutorily defined, a lesser included offense of aggravated murder, R.C. 2903.01(A). (R.C. 2945.74; State v. Deem [1988], 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph three of the syllabus, applied.)

2. Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. (State v. Kidder [1987], 32 Ohio St.3d 279, 513 N.E.2d 311; State v. Davis [1983], 6 Ohio St.3d 91, 6 OBR 131, 451 N.E.2d 772; State v. Wilkins [1980], 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303, clarified.)

3. A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. 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. (State v. Muscatello [1977], 57 Ohio App.2d 231, 11 O.O.3d 320, 387 N.E.2d 627, paragraph three of the syllabus, adopted.)

At approximately 10:00 p.m. on the evening of August 15, 1986, Mr. and Mrs. Lawrence Baumann arrived at their home in rural Lorain County and noticed a cream-colored automobile backed into the ditch in front of the house, the car being perpendicular to the road. Upon approaching their home, they discovered the living room picture window broken in, and a trail of blood leading into the kitchen. Mr. Baumann called his son and they followed the trail of blood into the basement. The Ohio Highway Patrol and the county sheriff were thereupon summoned. Sheriff's deputies found the body of Barry Newhouse face down in a pool of blood in the Baumann's basement utility room, with a gunshot wound in his neck. Newhouse was discovered dead at the scene.

The appellee, Henry Thomas, was indicted on August 27, 1986, for the aggravated murder of Barry Newhouse with prior calculation and design, R.C. 2903.01(A), with an additional specification that Thomas used a firearm while committing the felony. R.C. 2923.11. At trial before a jury, the state produced three witnesses who placed Thomas or a man who looked like Thomas near the Baumann home between 9:30 p.m. and 11:20 p.m. on the night of the crime. In addition, the state presented three of Thomas' in-laws who stated that Thomas, on the evening of August 15 or the morning of August 16, separately confessed to them to having shot "a guy." According to their testimony, Thomas held Newhouse at gunpoint in a car (Newhouse's) with the intent of taking him to a lake, killing him and disposing of the body. Newhouse apparently was aware of this plan and asked Thomas, "Are you going to shoot me?" to which Thomas replied, "You got it." At that point, Newhouse either grabbed for the gun or grabbed and turned the steering wheel, or both. The gun went off in the ensuing struggle, the bullet striking Newhouse. The evidence indicates that Newhouse was wounded in the neck, and that the car came to rest in front of the Baumann home.

The defense placed the testimony of a fingerprint expert on the record, and then rested. Although the jury was charged on the lesser included offense of murder, the court overruled Thomas' requested instructions on voluntary and involuntary manslaughter and negligent homicide as lesser included offenses. The jury found Thomas guilty of aggravated murder and guilty of the firearm specification. The court sentenced him to life imprisonment, with parole eligibility after twenty years. He was also sentenced to three years' actual incarceration on the firearm specification.

The court of appeals reversed and remanded, holding that involuntary manslaughter, R.C. 2903.04, is a lesser included offense of aggravated murder and murder, and that the evidence adduced at trial supported an instruction on such offense. The court also held that Crim.R. 31(C) and R.C. 2945.74 require the jury to unanimously agree that the defendant is not guilty of the greater offense before addressing any lesser included offenses.

The cause is now before this court upon the allowance of a motion for leave to appeal.

Gregory A. White, Pros. Atty., and Jonathan E. Rosenbaum, Vermilion, for appellant.

Thomas J. Dougan, Amherst, and Joseph Grunda, Lorain, for appellee.

HOLMES, Justice.

This case presents, for the first time in this court, the issue of whether "involuntary manslaughter," as defined in R.C. 2903.04, is a lesser included offense of aggravated murder with prior calculation and design, R.C. 2903.01(A). Applying the analysis set forth in State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311, as modified in State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, we answer such query in the affirmative. However, an instruction on such lesser included offense was not supported by the evidence adduced at trial below and was thus properly refused by the trial court. In addition, we hold that the jury is not required by Crim.R. 31(C) and R.C. 2945.74 to unanimously agree that the defendant is not guilty of the greater offense before addressing a lesser included offense.

I

R.C. 2903.01 defines "aggravated murder" as follows:

"(A) No person shall purposely and with prior calculation and design, cause the death of another.

"(B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape."

R.C. 2903.04 defines "involuntary manslaughter" as follows:

"(A) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony.

"(B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor."

The test for whether an offense is a lesser included offense of another, R.C. 2945.74 and Crim.R. 31(C), is stated in State v. Deem, supra, at paragraph three of the syllabus:

"An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense."

The first prong of this test is a threshold comparison of the statutory provisions to determine if one offense carries a greater penalty than the other. See R.C. 2929.11 and 2929.21. The second prong of this test involves a determination of whether one offense, as statutorily defined, is always and necessarily included within the second offense. The third prong of this test requires a review of the elements of each offense and a determination that some element of the greater offense is not required to prove the lesser offense. At this point in the determination of the appropriateness of giving a charge on a lesser included offense, a review of the evidence involved in the particular case would be premature.

Accordingly, this court has held that involuntary manslaughter is a lesser included offense of aggravated murder under subsection (B) of R.C. 2903.01--the purposeful killing of another while committing or attempting to commit the felonies listed therein, such as kidnapping, rape, arson, etc. State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State v. Scott (1980), 61 Ohio St.2d 155, 15 O.O.3d 182, 400 N.E.2d 375; State v. Cooper (1977), 52 Ohio St.2d 163, 6 O.O.3d 377, 370 N.E.2d 725. ¹ In addition, this court has held that involuntary manslaughter is a lesser included offense of murder, R.C. 2903.02, which, of course, is itself a lesser included offense of both R.C. 2903.01(A) and (B). State v. Rohdes (1986), 23 Ohio St.3d 225, 23 OBR 382, 492 N.E.2d 430. Further, in State v. Johnson (1983), 6 Ohio St.3d 420, 6 OBR 466, 453 N.E.2d 595, reversed and remanded on other grounds (1984),467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425, this court observed, in determining that involuntary manslaughter was a lesser included offense of murder within the consideration of the Double Jeopardy Clause, see Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 and Brown v. Ohio (1977), 432 U.S. 161 164-166, 97 S.Ct. 2221, 2224-2225, 53 L.Ed.2d 187, that "the common element shared by these two offenses is the causing of the death of another with the only distinguishing factor being the mental state involved in the act. * * * It is manifestly obvious that these two [mental] states are mutually exclusive and that in any given killing the offender may be possessed of only one." (Emphasis added.) Johnson, supra, 6 Ohio St.3d at 424, 6 OBR at 469, 453 N.E.2d at 599; see Johnson, supra, 467 U.S. at 497, fn. 6, 104 S.Ct. at 2539, fn. 6. Murder and involuntary manslaughter are statutorily defined in such a way that the elements of involuntary manslaughter, aside from the mental state, are always met whenever a murder has been committed.

However, even though the aforestated prongs of the lesser included test are met, we have stated that a charge on the lesser offense is warranted only if the evidence adduced at trial would support it. Kidder, supra, 32 Ohio St.3d at 281, 513 N.E.2d at 314; State v. Davis (...