STATE OF OHIO, Plaintiff-Appellee, vs. LUCIUS BAKER, Defendant-Appellant.
APPEAL NOS. C-120470, C-120471
TRIAL NOS. C-11CRB-33848A, B
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 19, 2013
[Cite as State v. Baker, 2013-Ohio-2507.]
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Appellant Discharged in Part
Date of Judgment Entry on Appeal: June 19, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Robert R. Hastings, Jr., for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Defendant-appellant Lucius Baker appeals convictions for negligent assault and criminal damaging or endangering. We find merit in one of his two assignments of error. Consequently, we reverse his conviction for negligent assault and order him discharged on that count, but affirm his conviction for criminal damaging or endangering.
I. Factual Background
{¶2} The record shows that Baker had entered into an agreement to lease wheel rims for his car from Rent-N-Roll. Because Baker‘s account was severely delinquent, Adam Armacost, Rent-N-Roll‘s sales manager, and Edward Holbrook, a wheel technician, went to Baker‘s place of employment to repossess the rims. There was an empty parking space behind Baker‘s car, and they parked their company van diagonally behind Baker‘s car to block him from leaving.
{¶3} Baker happened to be leaving work to go to the hospital to be with his wife who was having a difficult pregnancy at the same time Armacost and Holbrook were repossessing the rims. According to Armacost, he asked Baker how he was doing, and Baker replied, “good.” Baker testified that he told Armacost and Holbrook that he had already talked to the head manager about his account and that he had to go to the hospital to be with his wife.
{¶4} Armacost stood in front of Baker‘s car. Armacost and Holbrook testified that Baker backed his car into the open passenger side door of the company van, damaging the door. Then Baker drove forward out of the parking space and hit Armacost, knocking him back several feet and injuring his knee.
{¶6} Baker testified that he did not back up his car because he had backed into the space upon arriving and all he had to do was “pull straight out.” He stated that Armacost had approached his driver‘s side door and told him “you‘re not leaving.” Baker had said that he did not have time to talk about it right then. He got into his car and started it. Armacost had slapped the fender on his car, and again had said “you‘re not leaving.” Baker then had driven off. He stated that he had not hit Armacost or the company van, and he was unaware of any problem until he was contacted by a police officer.
{¶7} Baker was charged with assault under
II. Is Negligent Assault is a Lesser-Included Offense of Assault?
{¶8} Baker presents two assignments of error for review, which we address out of order. In his second assignment of error, Baker contends that the trial court erred in finding that negligent assault is a lesser-included offense of assault, and in convicting him of negligent assault. He argues that the offense of negligent assault contains an additional element that is not contained in the offense of assault. This assignment of error is well taken.
{¶10} Baker was originally charged with assault under
{¶11} Baker was convicted of negligent assault under
{¶12} In State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757 (7th Dist.), the Seventh Appellate District held that negligent assault is not a lesser-included offense of assault under
As can be seen, negligent assault contains an element which assault does not, namely that the offense must be committed by means of a deadly weapon or dangerous ordnance. Thus, negligent assault does not meet the second prong of the Deem test because one can recklessly cause serious harm without, for example, the use of a gun. As Deem
stated, if the greater offense can be committed without the lesser offense also being committed, then the lesser offense is not a lesser included offense.
Id. at ¶ 40. Contra Toledo v. Golis, 6th Dist. No. L-94-161, 1994 Ohio App. LEXIS 4876, *4-5 (Oct. 28, 1994) (negligent assault is a lesser included offense of assault).
{¶13} We agree with Seventh Appellate District‘s reasoning, and we hold that negligent assault is not a lesser-included offense of assault under
{¶14} Consequently, we hold that the trial court erred in convicting Baker of negligent assault. We sustain Baker‘s second assignment of error, reverse his conviction for negligent assault, and order him discharged on that count.
III. Weight and Sufficiency of Evidence of Criminal Damaging or Endangering Conviction
{¶15} In his first assignment of error, Baker contends that the state‘s evidence was insufficient to support his conviction for criminal damaging or endangering. He argues that
{¶16}
{¶17} We do not believe that the trial court‘s acquittal of Baker on the assault charge and his conviction for criminal damaging or endangering were necessarily inconsistent. But even if they were, inconsistent verdicts on different counts are not grounds for reversal. State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph one of the syllabus; State v. Glenn, 1st Dist. No. C-090205, 2011-Ohio-829, ¶ 69.
{¶18} Baker also contends that his conviction for criminal damaging or endangering was against the manifest weight of the evidence. After reviewing the record, we cannot say that the trier of fact lost its way and created such a manifest miscarriage of justice that we must reverse Baker‘s conviction and order a new trial. Therefore, the conviction was not against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Erkins at ¶ 72.
IV. Summary
{¶20} In sum, we sustain Baker‘s second assignment of error. We reverse his conviction for negligent assault, and he is hereby discharged on that count. We overrule Baker‘s first assignment of error, and affirm his conviction for criminal damaging or endangering.
Affirmed in part, reversed in part, and appellant discharged in part.
HILDEBRANDT, P.J., and FISCHER, J., concur.
Please note: The court has recorded its own entry this date.