State v. Losey

• Decision Date: 25 June 1985
• Docket Number: No. 84AP-768,84AP-768
• Citation: 491 N.E.2d 379,23 OBR 158,23 Ohio App.3d 93
• Parties: , 23 O.B.R. 158 The STATE of Ohio, Appellee, v. LOSEY, Appellant.
• Court: Ohio Court of Appeals

Page 93

23 Ohio App.3d 93

491 N.E.2d 379, 23 O.B.R. 158

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

No. 84AP-768.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 25, 1985.

Syllabus by the Court

The term "proximate result," as used in the involuntary manslaughter statute, R.C. 2903.04, includes the traditional concept of foreseeability. Under that statute, a person will be criminally responsible for causing the death of another only where the consequences of his conduct are direct, normal, and reasonably inevitable, when viewed in the light of ordinary experience. (R.C. 2903.04, construed and applied.)

Michael Miller, Pros. Atty., and Karen L. Martin, Columbus, for appellee.

Thomas M. Tyack & Assoc. Co., L.P.A., and Peter Collins, Jr., Columbus, for appellant.

PER CURIAM.

Defendant-appellant, Michael Desmar Losey, was indicted on December 23, 1983, for aggravated burglary in violation of R.C. 2911.01 and involuntary manslaughter in violation of R.C. 2903.04(A). The defendant waived a jury and the case proceeded to trial before the court in which the defendant admitted the aggravated burglary but denied liability for the involuntary manslaughter.

Defendant testified that he approached a house located at 616 Whitethorne Avenue shortly after 11:00 p.m. on November 25, 1983; that he knocked at the front door and, upon receiving no response, forced open the door and proceeded to attempt to remove a bicycle. His friend, who had been waiting outside, yelled that a car was slowly approaching. The defendant then placed the bicycle beside the front door and departed, leaving the front door open behind him. James Harper, the owner of 616 Whitethorne Avenue, testified that he heard a noise at approximately 1:00 a.m. Shortly thereafter, his mother, with whom he resided, appeared at his bedroom door inquiring about the noise. They proceeded together to the living room, whereupon they discovered the open front door and the bicycle standing near the door. James Harper stated that he then told his mother to go back to her bedroom while he went to check the rest of the house. After so checking, he returned to the living room and was calling the police when his mother appeared in the hallway looking very upset and then collapsed. He called an emergency squad, which had attempted to revive Mrs. Harper for almost an hour when the squadmen pronounced her dead. Prior to the burglary, Mrs. Harper had returned from bingo at approximately 10:00 p.m. that evening and had gone to bed. Based on these facts, the trial court found defendant guilty of aggravated burglary and involuntary manslaughter. Defendant appeals from the trial court's decision and asserts the following assignments of error:

"1. The judgment of the trial court was against the manifest weight of the evidence, and should be reversed.

"A. The trial court erred in finding that the defendant's actions were the proximate cause of death, and therefore, the judgment should be reversed.

"B. The trial court erred in finding guilt of the defendant based upon an impermissible inference on an inference, and therefore, the judgment should be reversed.

"2. The trial court erred in finding the defendant guilty of involuntary manslaughter pursuant to Section 2903.04, Ohio Revised Code, for the reason that the statute is unconstitutional on its face, and as specifically applied in this case, since it imposes criminal responsibility without proof of a culpable mental state on the part of the defendant. Therefore, the judgment should be reversed."

The thrust of defendant's first assignment of error is that Mrs. Harper's death was not the proximate result of his conduct.

As relevant to our inquiry, involuntary manslaughter at common law was an unexcused, unintentional homicide resulting from the commission of a criminal act not amounting to a felony nor naturally tending to cause death or great bodily harm. Clark & Marshall, Crimes (1952) 353-354, Section 262. Essentially, that common-law unlawful act manslaughter concept was carried forward in Ohio's statutory treatment of involuntary manslaughter until the adoption of the new criminal code in 1974.

When the new criminal code was introduced in the Ohio General Assembly, it included a reckless homicide provision as a substitute for the former statute which had punished conduct without reference to a specific culpable mental state. However, as the result of the legislative process, the reckless homicide provision was dropped in favor of a section retaining traditional unlawful act manslaughter concepts, in the form of the present involuntary manslaughter statute. Goldsmith, Involuntary Manslaughter: Review and Commentary on Ohio Law (1979), 40 Ohio St.L.J. 569. The language of R.C. 2903.04 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 result of the adoption of division (A) of the statute was a statute embodying a concept reminiscent of common-law felony murder. In addition, the General Assembly incorporated another form of felony murder into its definition of aggravated murder, obviating the necessity of proving prior calculation and design, where the actor purposely kills another while committing one of a list of specified felonies, R.C. 2903.01(B). Thus, if the defendant, in the course of committing armed robbery, purposely, but without prior calculation and design, kills the hold-up victim, he is guilty of aggravated murder, but, if the killing is accidental, then, he is guilty of involuntary manslaughter.

Prior to the adoption of the new criminal code, Ohio case law limited the class of unlawful acts which could serve as a predicate for involuntary manslaughter to those crimes whose nature was such that death was to be a reasonably anticipated result of their commission, and further limited criminal responsibility for a death resulting from the commission of those crimes to those instances where the death was the natural, logical and proximate result of the defendant's commission of the crime. Black v. State (1921), 103 Ohio St. 434, 133 N.E. 795, paragraph one of the syllabus. Whether or not the first limitation survived the 1974 recodification and restricts the types of felonies which may serve as a predicate for involuntary manslaughter, is not at issue here since burglary is clearly such a felony. The second limitation, that the death must be the proximate result of the defendant's conduct in committing the crime, clearly survived in the language of R.C. 2903.04.

The term "proximate result" was used by the General Assembly to refine and limit the verb "cause." Thus, it is conceivable that defendant's conduct may have caused Mrs. Harper's death in the sense that he set in motion events which culminated in her death, which therefore would not have occurred in the absence of that conduct, but, nevertheless, that the death was not the proximate result of his conduct if it were not the natural, logical, and foreseeable result of his conduct. Under the statute, defendant cannot be held responsible for consequences no reasonable person could expect to follow from his conduct; he will be held responsible for consequences which are direct, normal, and reasonably inevitable--as opposed to extraordinary or surprising--when viewed in the light of ordinary experience. In this sense, then, "proximate result" bears a resemblance to the concept of "proximate cause" in that defendant will be held responsible for those foreseeable consequences which are known to be, or should be known to be, within the scope of the risk created by his conduct. State v. Chambers (1977), 53 Ohio App.2d 266, 373 N.E.2d 393 . Here, that means that death reasonably could be anticipated by an ordinarily prudent person as likely to result under these or similar circumstances. See State v. Nosis (1969), 22 Ohio App.2d 16, 457 N.E.2d 414 .

Consequences which are reasonably foreseeable from a burglary were aptly summarized by ...