461 N.E.2d 312 | Ohio Ct. App. | 1983
A single issue is presented by this appeal: Under the evidence received in this case, is the crime of felonious assault, R.C.
The events giving rise to this issue are of relatively little importance, and will not be given in detail. It is sufficient to relate that the incident giving rise to the charge occurred during the early morning hours of May 6, 1982, when an altercation occurred between the defendant's companion, a male transvestite prostitute, and a would-be customer. During or prior to this altercation, the customer's wallet was stolen. The defendant-appellant, Steve Travis Crawford, came to the aid of his companion in the ensuing struggle and, in the process, admittedly inflicted numerous and disabling cuts on the person of the customer with a weapon described as brass knuckles with knife blades at each end. The defendant was indicted for aggravated robbery contrary to R.C.
Little point would be served by any extended analysis of the scores of cases which have examined this difficult issue over the past years. It is sufficient to note that in our most recent decisions involving analyses of the law of lesser included offenses, State v. Gordon (1983),
"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."
Here, our attention is directed to the second element of the test. As was required by the Supreme Court in State v.Merriweather (1980),
The elements of aggravated robbery, as relevant to the present case, are defined in R.C.
"(A) No person, in attempting or committing a theft offense as defined in section
"* * *
"(2) Inflict, or attempt to inflict serious physical harm on another."
The crime of felonious assault, as here relevant, is defined by R.C.
"(A) No person shall knowingly:
"(1) Cause serious physical harm to another;"
Two problems become apparent in applying the second part of theWilkins test to these two crimes. First, it is clear that the crime of aggravated robbery may be committed by one who attempts to inflict serious physical harm on another, whereas a felonious assault must be accompanied by an actual infliction of serious physical harm. Applying the literal test of Wilkins, the greater offense could, therefore, be committed — in a hypothetical case — without also committing the lesser offense. In the actual event, however, the hypothetical "attempt" case does not here arise. The defendant admitted to having assaulted and cut the victim, claiming only that he was acting in defense of his companion prostitute. The injuries of the victim were obviously and uncontrovertedly within the category of "serious physical harm." Clearly, then, under the facts of the case, and so far as this particular issue is concerned, the greater offense necessarily included the lesser. See, e.g., State v. Wilson (Mar. 29, 1978), Hamilton App. No. C-77061, unreported.
The second problem, relating to the disparate requirements of culpability between the two crimes, is not so readily answered. The crime of aggravated robbery makes no specific mention of the degree of culpability required. Under such circumstances, we are referred to R.C.
"(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense."
Since the statute defining aggravated robbery does not "plainly" indicate a strict liability intent, one concludes that "recklessness" is the degree of culpability sufficient to impose liability for the crime, or at least that aspect of the crime which relates to the element of "[i]nflict, or attempt to inflict serious physical harm."1 It is entirely possible, then, for one who *209 purposely commits a theft offense, and recklessly inflicts serious physical injuries on another in the process, to be guilty of aggravated robbery contrary to R.C.
But is the instant case saved from the above deficiency by the application of the same principle that removed the initial problem of "[i]nflict, or attempt to inflict," viz., by a reference to the actual evidence received in the case? Arguably, if the evidence demonstrated beyond a reasonable doubt that defendant's admitted act of inflicting the cuts was done"knowingly," as that term is defined in R.C.
"The State has not sustained its burden of proof with regard to the charge of aggravated robbery, but they [sic] have sustained their [sic] burden of proof with regard to the lesser crime of felonious assault."
The actual evidence on the point, while it clearly would have supported a finding by the trier of facts that the harm was knowingly inflicted, nevertheless cannot be said to have been so clear, uncontroverted, or indisputable that such finding of fact can or ought to be made here, in the first instance. The case is not identical with the previously examined "[i]nflict, orattempt to inflict" dichotomy, where the infliction of the cuts was conceded by the defendant himself. We are simply unable to ignore the possibility that reasonable minds might have concluded, under the evidence heard in the case, that defendant's culpable mental state was "reckless," as defined in R.C.
Nevertheless, while we hold that under the evidence of this case felonious assault was not a lesser included offense of aggravated robbery, and the verdict and judgment finding the defendant guilty of the former must be set aside, it is clear that the uncontroverted evidence in the case, particularly including the defendant's own testimony, convicts the defendant of what is indisputably the lesser included offense of assault, contrary to R.C.
"No person shall recklessly cause serious physical harm to another." This crime passes every part of the Wilkins test as a lesser included offense of R.C.
As a result of the foregoing, we set aside the judgment of guilt of felonious assault, and the sentence thereunder, modifying the same to a finding of guilt of assault contrary to R.C.
Judgment accordingly.
SHANNON and DOAN, JJ., concur.
It may also be noted that the discussion in Bumphus with respect to the requisite degree of culpability in aggravated robbery is quite clearly obiter dicta, the ruling of the court having been predicated upon a failure to comply with Crim. R. 30.