STATE OF OHIO, PLAINTIFF-APPELLEE, v. DAVID L. DEANDA, DEFENDANT-APPELLANT.
CASE NO. 13-10-23
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
February 6, 2012
2012-Ohio-408
Aрpeal from Seneca County Common Pleas Court Trial Court No. 09-CR-0210 Judgment Reversed and Cause Remanded
John M. Kahler, II for Appellant
Derek W. DeVine and Rhonda L. Best for Appellee
{¶1} Defendant-appellant David L. Deanda (Deanda) brings this appeal from the judgment of the Court of Common Pleas of Seneca County finding him guilty of felonious assault and sentencing him to seven years in prison. For the reasons set forth below, the judgment is reversed.
{¶2} On September 19, 2009, Deanda was involved in a fight with David B. Swartz (Swartz). During the fight, Deanda grabbed a knife and proceeded to stab the victim multiple times in the neck and chest. Deanda was yelling that he was going to kill Swartz. When the police and emergency medical technicians arrived, Deanda continued to yell that he was going to kill Swartz. Swartz was eventually life flighted to a hospital due to his injuries.
{¶3} On September 23, 2009, the Seneca County Grand Jury indicted Deanda on one count of attempted murder, a felony of the first degree, in violation of
The trial court erred to the prejudice of [Deanda] by permitting [the State] to introduce various instances of inadmissible hearsay testimony over the objection of the defense in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
Second Assignment of Error
The trial court erred to the prejudice of [Deanda] by denying the proffered testimony of Joey Deanda and Vicki Deanda into evidence.
Third Assignment of Error
[Deanda‘s] conviction should be overturned because certain statements mаde during the prosecution‘s rebuttal argument at closing amounted to prosecutorial misconduct.
Fourth Assignment of Error
[Deanda‘s] conviction should be overturned because the trial court‘s instruction of felonious assault as a lesser included offense of attempted murder is erroneous and thus the trial court committed plain error.
Fifth Assignment of Error
[Deanda‘s] conviction was against the manifest weight of the evidence.
In the interest of clarity, we will address the assignments of error out of order.
{¶4} The fourth assignment of error alleges that the trial court erred by instructing the jury that felonious assault is a lesser included offense of attempted murder. [A] criminal offense may be a lesser included offense of another if (1)
{¶5} However, the Ohio Supreme Court did modify this test in State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889. In Evans, the Supreme Court removed the word ever from the test and set up a modified test. Id. at ¶25.
In determining whether an offense is a lesser included offense of another, a court shall consider whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.
Id. at paragraph 2 of the syllabus. When reviewing the offenses, the offenses must be examined in the abstract and the specific facts of the case may not be considered. Id. at ¶25.
The state сontends that the strict comparison of elements required by the second part of the Deem test has produced incongruous and illogical results that fail to hold criminal defendants accountable for crimes in the absence of indictments for each related offense. The state urges us to modify the second part of the Deem test to permit courts to consider the particular facts and circumstances of each case in dеtermining whether one offense is a lesser included offense of another, or to consider whether the offenses are so similar that the commission of one offense will necessarily result in commission of the other, as we have done in our analogous test for allied offenses of similar import. * * *
On the other hand, [the defendant] contends that adoption of the state‘s fact-based approach will impinge upon a criminal defendant‘s constitutional right to a grand jury indictment, permitting convictions for offenses that were either considered and rejected or never even contemplated by the grand jury. He asserts that the state‘s proposed test would create uncertainty for prosecutors, defendants, and the courts by making it impossible to predict, before trial, what lesser included offenses would be at issue. In addition, [the defendant] argues that because we have previously held that robbery is not a lesser included offense of aggravated robbery, applying a contrary ruling would violate his due process rights.
We have consistently held that in applying Deem to lesser included offenses, 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. * * * Indeed, in Barnes, we rejected the state‘s request that we consider the sрecific facts of the case in determining whether felonious assault with a deadly weapon was a lesser included offense of attempted murder. * * * But we note that the facts of a case are relevant in determining whether a court should instruct the jury on a lesser included offense. Specifically, we have stated that after the three parts of the Deem test are met, [i]f the evidence is such that a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant
of the lesser included offense, then the judge should instruct the jury on the lesser included offense. * * * Based upon the foregoing, we decline the state‘s invitation to abandon our precedent in this regard.
Id. at ¶11-13. Although the words need not be identical, the elements must match in such a way that one cannot commit the greater offense without committing the lesser offense. Id. at ¶22.
{¶6} In this case, Deanda was charged with a violation of
{¶7} Next we look at the statutory elements in the abstraсt. No person shall purposely cause the death of another * * *.
{¶8} Finally, this court must determine whether the greater offense can be committed without committing the lesser offense as statutorily defined. Despite the State‘s argument to the contrаry, it is possible to commit attempted murder without violating
Following the reasoning of the Ohio Supreme Court in Barnes, this court must find that
{¶10} In the first assignment of error, Deanda claims that the trial court erred by allowing hearsay testimony to be presented over objection by the defense. Hearsay is a statemеnt, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Unless the statement meets one of the exceptions to the rule, hearsay is not admissible in a trial. Evid.R. 802.
{¶11} In support of his argument, Deanda presents four statements that he claims should have been excluded. The first is Officer Laverne Keefe‘s statement that Swartz had stated that Deanda was the pеrson who injured him. Tr. 176-77. The third and fourth instances of hearsay statements were found in the testimony of Lieutenant Michelle Craig. She testified that Swartz called and said the
{¶12} The second instance of hearsay to which Deanda objects is a statement by Detective Shawn Vallery as to what he was told by an unidentified forensic nurse at St. Vincent‘s Medical Center concerning the condition of the victim. The statements of an unidentified third party concerning the injuries to the victim are hearsay. The State argues that these statements were merely offerеd to show how the investigation progressed. Although this may be true as well, the statements themselves were also offered to prove the truth of the matter asserted, i.e. the extent of the injuries. The witness could have explained the progress of the investigation without repeating the statements of third parties. However, since this court has already determined that prejudicial error occurred, the issue raised in the
{¶13} Having found prejudicial error in the fourth assignment of error, the second, third, and fifth assignments of error are also moot and need not be addressed. The judgment of the Court of Common Pleas of Seneca County is reversed and the matter is remanded for further proceedings.
Judgment Reversed and Cause Remanded
ROGERS, J. concurs.
SHAW, P.J., DISSENTS
{¶14} The majority concludes that because it is possible in the аbstract, to conceive of a factual scenario where one might commit attempted murder without committing felonious assault, that felonious assault cannot be a lesser included offense of attempted murder in the case before us. The abstract possibility analysis derives from the second prong of a three part test set forth in State v. Deem, (1988), 40 Ohio St.3d 205. Specifically, the Deem test stated that before a trial court may instruct upon a lesser included offense, the cоurt must find that the greater offense cannot, as statutorily defined, ever be committed without the
{¶15} The majority further cites the subsequent decision of the Ohio Supreme Court in State v. Barnes, (2002), 94 Ohio St.3d 21, which also strictly relied upon the Deem test, in order to determine that felonious assault was not a lesser included offense of attempted murder.
{¶16} However, in State v. Evans, (2009), 122 Ohio St.3d 381, the Supreme Court of Ohio acknowledged the implausible results that courts were reaching in attempting to follоw the purely hypothetical and speculative analysis that seemed to be mandated by the language of the Deem test. As a result, the Court in Evans expressly rejected the use of abstract possibilities as the primary tool of analysis for lesser included offenses in Ohio and modified the language of Deem accordingly, by specifically deleting the word ever from the second prong of the Deem test. See Evans, at 383. As the Court stated, this was done to ensure that implausible scenarios advancеd by the parties to suggest the remote possibility that one offense could conceivably be committed without the other being committed would no longer derail a proper lesser included offense analysis. Id. at 387.
{¶17} Thus the clarified test for lesser included offenses in Ohio, as announced by Evans, now states:
In determining whether an offense is a lesser included offense of another, a court shall consider whether one offense carries a greater pеnalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense, as statutorily defined, cannot be committed without the lesser offense as statutorily defined also being committed. (State v. Deem (1988), 40 Ohio St.3d 205, clarified.)
Evans at second paragraph of the syllabus.
{¶18} The Evans court declined to further modify Deem by adopting a test for lesser included offenses based entirely on the facts and circumstances of each case. Evans at 386. However, it is also clear that under Evans the factual context of a case is no longer entirely irrelevant, and may be considered, both in conducting a more pragmatic comparison of statutory elements than permitted by Deem, and insofar as it may be necessary to determine whether the evidence supports an instruction on the lesser charge.
But we note that the facts of a case are relevant in determining whether a court should instruct the jury on a lesser included offense. Specifically, we have stated that after the three pаrts of the Deem test are met, ‘if the evidence is such that a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense, then the judge should instruct the jury on the lesser included offense.’ (Emphasis in original) (Citations omitted.)
{¶19} In concluding that robbery was a lesser included offense of aggravated robbery in the case before it, the Evans court was called on to
{¶20} The Evans court‘s rationale in reaching an affirmative answer is instructive to the case before us:
While these elements are not identiсally phrased, we have recognized: ‘The test is not a word game to be performed by rote by matching the words chosen by the legislature to define criminal offenses. Some offenses, such as aggravated murder and murder, lend themselves to such a simple matching test; others do not. * * * We would also note that the elements of the offenses are ‘matched’ only * * * to determine if ‘some element’ of the greater offense is not found in the lessеr offense. The proper overall focus is on the nature and circumstances of the offenses as defined, rather than on the precise words used to define them. (Citation omitted). Thus, the test does not require identical language to define the two offenses, but focuses upon whether the words used in the statute defining the greater offense will put the offender on notice that an indictment for that offense could also result in the prosеcution of the lesser included offense.
Evans at 386. (Emphasis added.)
{¶21} Under the quoted language from Evans, set forth above, the reference to the circumstances of the offenses as defined necessarily implies that at the very least, the factual conduct described in the statutory offense is relevant to
{¶22} In Evans, the two statutory offenses at issue describe conduct in sufficient detail such as displaying a deadly weapon and a threat to inflict physical harm to enable the court to make the comparisons necessary to determine whether one type conduct also included the other in that case Thus, upon first concluding on its own rationale that the threat of physical harm in the robbery statute need not be explicit, but could also be an implied threat, the Evans court was then able to compare the conduct described in the aggravated robbery offense with the conduct described in the robbery statute and conclude that [o]ne cannot display, brandish, indicate possession of, or use a deadly weapon in the context of committing a theft offense without conveying an implied threat to inflict physical harm. It is the very act of displaying, brandishing, indicating possession, or using the weapon that constitutes the threat to inflict harm because it intimidates the victim into complying with the command to relinquish property without consent. (Emphasis added.) Evans at 386.
{¶24} One could argue that as the only availablе reference for any comparison or analysis, the undefined word conduct as used in the attempt statute not only invokes, but necessarily requires reference to the factual allegations of conduct in any given case in order to conduct a proper lesser included offense analysis for an attempt charge under Evans. In this case, the multiple stabbings and serious physical harm alleged would be more than sufficient to satisfy аny such lesser included offense analysis. However, because the same result can be reached in the case before us by conducting the same analysis of statutory language as conducted in Evans, without reference to the specific facts and circumstances in evidence, it is unnecessary to further address or rely upon this interpretation at this time.
{¶25} In any event, under the Evans test, the language of the attempted murder charge not only permits, but necessarily requires, closer examination of the
{¶26} Applying the statutory circumstances analysis of Evans to the case before us then, it is clear that the defendant could not engage in conduct (knowingly causing serious physical harm) that if successful (serious enough to produce death) would constitute purposefully causing the death of the victim [attempted murder as defined in
{¶27} Based on the foregoing, I respectfully dissent from the decision of the majority to reverse this conviction. The trial court was correct to instruct the jury on the lesser included offense of felonious assault in this case. The fourth assignment of еrror should be overruled and this court should address the merits of the remaining assignments of error.
/jlr