State v. Kidder

• Decision Date: 02 September 1987
• Docket Number: No. 86-1808,86-1808
• Citation: 513 N.E.2d 311,32 Ohio St.3d 279
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. KIDDER, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 279

32 Ohio St.3d 279

513 N.E.2d 311

The STATE of Ohio, Appellant and Cross-Appellee, v. KIDDER, Appellee and Cross-Appellant.

No. 86-1808.

Supreme Court of Ohio.

Sept. 2, 1987.

Syllabus by the Court

Ronald C. Carey, Pros. Atty., for appellant and cross-appellee.

J. Michael Dobyns, Wilmington, for appellee and cross-appellant.

HOLMES, Justice.

I

The main issue presented in this appeal is whether our per curiam decision in State v. Rohdes (1986), 23 Ohio St.3d 225, 23 OBR 382, 492 N.E.2d 430, in any way altered the statutory-elements test for determining lesser included offenses first announced in State v. Kuchmak (1953), 159 Ohio St. 363, 50 O.O. 327, 112 N.E.2d 371. Although Rohdes did tend to cloud the picture of this area of the law, we answer such query in the negative, for reasons which follow.

R.C. 2945.74 provides, in pertinent part:

" * * * When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense. * * * " See, also, Crim.R. 31(C).

A criminal defendant is entitled to a lesser-included-offense instruction, however, only where the evidence warrants it. Beck v. Alabama (1980), 447 U.S. 625, 636, fn. 12, 100 S.Ct. 2382, 2389, fn. 12, 65 L.Ed.2d 392; Keeble v. United States (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844; State v. Kilby (1977), 50 Ohio St.2d 21, 4 O.O.3d 80, 361 N.E.2d 1336; State v. Nolton (1969), 19 Ohio St.2d 133, 48 O.O.2d 119, 249 N.E.2d 797. Thus, the trial court's task is two fold: first, it must determine what constitutes a lesser included offense of the charged crime; second, it must examine the facts and ascertain whether the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater.

The state argues that, prior to Rohdes, in Ohio the question of whether the lesser offense exists had always been a matter of strict statutory definition, focusing on the elements of the offenses. In support, it cites a long line of cases from this court, since at least State v. Kuchmak, supra. Appellee Kidder argues that by our decision in State v. Rohdes, supra, we held that whether a lesser offense exists is a matter of fact, focusing on the evidence presented at trial. We hereby clarify or modify such a broad holding in Rohdes, and restate the court's position of favoring the strict statutory-elements test for its clarity and evenhandedness in application.

The two-step, lesser-included-offense statutory-elements test was stated in State v. Kuchmak, supra, 159 Ohio St. at 366-367, 50 O.O. at 328-329, 112 N.E.2d at 373, as follows:

" * * * [I]f all the elements of a separate offense are present with others in an offense charged in an indictment, such separate offense is a lesser included offense; or, where all the elements of an offense are included among the elements of a charged offense, the former is a lesser included offense. But to warrant a conviction of such lesser included offense, another limitation must be taken into consideration. A court may not charge upon, and a defendant may not be found guilty of, a lesser offense, unless the evidence tends to support each of the necessary elements of such offense."

This test, including the statutory-elements step, has since been enhanced and redefined, but has never been overruled. In State v. Hreno (1954), 162 Ohio St. 193, 55 O.O. 97, 122 N.E.2d 681, paragraph two of the syllabus, we made it clear that all the elements of the lesser offense must be present in the greater offense, with others, such that it would be impossible to commit the greater offense without also having committed the lesser. In other words, the lesser offense must be necessarily included in the greater. See Heller v. State (1873), 23 Ohio St. 582; 3 Wright, Federal Practice & Procedure: Criminal 2d (1982) 21, Section 515 (construing Fed.R.Crim.P. 31[c] ).

The second step of this test, giving a lesser-included-offense charge only when supported by the evidence, was underscored in State v. Loudermill (1965), 2 Ohio St.2d 79, 31 O.O.2d 60, 206 N.E.2d 198. The failure to give an instruction in such circumstance amounts to prejudicial, reversible error. Id. at syllabus; see Bandy v. State (1921), 102 Ohio St. 384, 131 N.E. 499. If an instruction is not given when warranted by the evidence, a jury may convict the defendant of the greater charged offense, even though not convinced of guilt beyond a reasonable doubt, simply because the evidence shows he was obviously guilty of some offense. Keeble v. United States, supra. In State v. Nolton, supra, we modified this step of the test to make it clear that it operated for the benefit of both the state and the accused. Id. 19 Ohio St.2d at 135, 48 O.O.2d at 120, 249 N.E.2d at 799.

This entire two-step process was succinctly restated and clarified in State v. Wilkins (1980), 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303, and again in State v. Davis (1983), 6 Ohio St.3d 91, 6 OBR 131, 451 N.E.2d 772. In Wilkins, supra, 64 Ohio St.2d at 384, 18 O.O.3d at 530, 415 N.E.2d at 306, the statutory-elements step was clarified by dividing the analysis into three parts:

"An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed and (iii) some element of the greater offense is not required to prove the commission of the lesser offense."

Wilkins also modified the second step of the test by removing some of the confusion apparently caused by the holding in Nolton. As we explained in the second paragraph of the syllabus in State v. Davis, supra, when examining the evidence presented, it is only where the trier of fact could reasonably find against the state and for the accused on one or more of the elements of the crime charged, and for the state and against the accused on the "remaining elements, which by themselves" (emphasis added) form the lesser included offense, that an instruction on that lesser included offense is warranted.

See, also, State v. Solomon (1981), 66 Ohio St.2d 214, 20 O.O.3d 213, 421 N.E.2d 139.

In State v. Rohdes, supra, this court was faced with an indictment for murder and a request by the defendant for a lesser-included-offense instruction on involuntary manslaughter. The underlying misdemeanor involved in the manslaughter instruction was aggravated menacing. R.C. 2903.04(B), R.C. 2903.21. In our per curiam opinion, we began with the three-prong statutory-elements step announced in Wilkins, and noted that only the second prong was at issue, "since involuntary manslaughter by aggravated menacing is obviously of lesser degree than murder and the mental element of intent required for murder is not required to prove the commission of involuntary manslaughter." Id. 23 Ohio St.3d at 226, 23 OBR at 383, 492 N.E.2d at 432.

Unfortunately, although the result was correct, the analysis which followed was confusing, if not flawed. The underlying facts, i.e., those related to the aggravated menacing charge, were prematurely considered in determining whether the murder could have been committed without also committing involuntary manslaughter. This was contrary to our longstanding rule that the evidence presented in a particular case is irrelevant to the determination of whether an offense, as statutorily defined, is necessarily included in a greater offense. The facts become relevant only in the determination of whether a jury could reasonably convict the defendant of the lesser included offense as defined.

Despite this misfocused analysis, the Rohdes court noted that involuntary manslaughter is a lesser included offense of murder. Id. at 227, 23 OBR at 384, 492 N.E.2d at 433, citing 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, 497, fn. 6, 104 S.Ct. 2536, 2539-40, fn. 6, 81 L.Ed.2d 425. Involuntary manslaughter is always and necessarily a lesser included offense of murder because murder cannot ever be committed without also committing or attempting to commit a felony or a misdemeanor. See State v. Jenkins (1984), 15 Ohio St.3d 164, 218, 15 OBR 311, 357, 473 N.E.2d 264, 310; R.C. 2903.02, R.C. 2903.04. The statutory-elements step having been met, the evidence in Rohdes concerning the underlying misdemeanor became relevant in determining whether the jury should have been charged on the lesser offense. Id. 23 Ohio St.3d at 227, 23 OBR at 384, 492 N.E.2d at 433.

Again, to clarify, the entire lesser-included-offense analysis, for purposes of R.C. 2945.74, is as follows: an offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot, as statutorily defined, ever be committed without the offense of the lesser degree also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. Even though so defined, a charge on the lesser included offense is not required, unless the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense.

This approach is truest to the scheme of the General Assembly, which has strictly defined criminal violations in terms of descending degrees of culpability, R.C. 2901.22, and descending degrees of proscribed conduct. See R.C. 2901.02. It offers the most clarity to both practitioners and judges, treating defen...