{¶ 3} In relation to this appeal, the trial court determined that Cuyahoga County Common Pleas Case No. CR-328368, the October 12, 1995 assault conviction, should be made a part of the record.
{¶ 5} The
"The applicable rule under the
Best at ¶ 3 of the syllabus (citing Blockburger v. United States
(1932),
{¶ 6} The two statutes in question in the case at bar are R.C.
{¶ 7} "(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:
{¶ 8} "(1) Cause serious physical harm to another or to another's unborn;
{¶ 9} "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance * * *."
{¶ 10} R.C.
{¶ 11} "(A) No person shall cause the death of another or the unlawful termination of another's pregnancy as a proximate result of the offender's committing or attempting to commit a felony."
{¶ 12} As the 1995 assault is the felony underlying appellant's conviction for involuntary manslaughter, it is axiomatic that the state could not prove the elements of involuntary manslaughter without also proving the elements of the assault. Appellant argues that he cannot subsequently be convicted under R.C.
{¶ 13} In the instant case, however, the state argues that an exception to double jeopardy exists "where the state is unable to proceed on the more serious charge at the outset because additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." State v. Tolbert
(1991),
{¶ 14} Under his first assigned error, appellant also argues that the state could not reindict him after the death of the victim without first reserving its right to do so on the record. In support of this argument, appellant points to State v. Carpenter (1993),
{¶ 15} In the instant case, although appellant does not address the fact that his assault conviction was the result of a bench trial rather than a plea agreement, he asks us to expand the breadth of Carpenter's requirement that the state reserve the right to file additional charges against him beyond plea agreement situations. We decline to do so. The Supreme Court of Ohio made it clear that this safeguard was put in place to encourage and protect plea agreements, which "are an essential and necessary part of the administration of justice." Id. at 61.
{¶ 16} Accordingly, we find appellant's involuntary manslaughter conviction did not violate his right to not be placed in double jeopardy, and appellant's first assignment of error is overruled.
{¶ 18} We review a trial court's decision whether to grant or deny expert witness funds to an indigent criminal defendant under an abuse of discretion standard. See, e.g., R.C.
{¶ 19} In the instant case, appellant asserted that issues relating to the cause and circumstances surrounding the victim's death required the necessity of an expert pathologist. On the other hand, the state argues that appellant did not meet the two-part Mason test and that appellant's assertion was undeveloped. The state also argues that the cause of death was undisputed, as the coroner's report stated the death in this case was a result of "bronchopneumonia due to remote blunt impact to the head." In support of its proposition that appellant's pointing to questions about the cause of death was not enough to warrant a state funded expert, the state cites to State v. Abelt (2001),
{¶ 20} We feel that appellant's assertion that he needed an expert to touch upon the cause and circumstances surrounding the victim's death is certainly more developed than Abelt's assertion that he needed an expert to protect his rights in general. See, also, State v. Wolf (Dec. 11, 1992), Lake App. No. 91-L-096 (holding that "[w]hen the defendant's guilt or innocence of aggravated murder completely depends upon the determination of how the victim dies, the defendant must be provided the means of establishing that the death did not occur, physiologically, as the prosecution says it did"). In applying Mason to the instant case, we find that 1) it is reasonably probable that an expert pathologist would aid in appellant's defense because causation is the only issue, and 2) the court's denial of an expert witness led appellant to plea no contest in lieu of going to trial.1
{¶ 21} Accordingly, the trial court abused its discretion when it denied appellant's motion for funding for an independent pathology expert. Appellant's second assignment of error has merit and is sustained.
{¶ 23} Appellant pled no contest to involuntary manslaughter, which is a felony of the first degree, punishable by a minimum of three years in prison. R.C.
{¶ 24} Pursuant to R.C.
{¶ 25} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 26} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others." R.C.
{¶ 27} In the instant case, appellant argues, and the state seems to concede, that he was a first-time offender, despite him serving a prison term in 1995. Because his 1995 sentence and his 2004 sentence arose from the same set of facts, we will assume for argument's sake that appellant had not served a prison term prior to the seven-year sentence in question. Therefore, the court would have had to find on the record that the minimum term of three years would demean the seriousness of the incident or will not adequately protect the public from future crime.
{¶ 28} At the sentencing hearing, the court stated that the shortest prison term would demean the seriousness of appellant's conduct because the crime was violent and the injuries were severe. The court also found that the public would not be protected from appellant because of the violent nature of the crime and that appellant showed no remorse over the years because he did not visit the victim. The court also pointed out that appellant had many mitigating factors that would make recidivism unlikely.
{¶ 29} Under R.C.
{¶ 30} Appellant additionally argues that the trial court erred by finding that appellant committed the worst form of the offense because the victim "passed away." We note that is an illogical finding because all victims pass away before a charge of involuntary manslaughter may be brought. However, any resulting error is harmless, as the court was not required in this case to find that appellant committed the worst form of the offense. That finding applies to maximum prison terms, to which appellant was not sentenced. Appellant's third assignment of error is overruled.
Judgment affirmed in part, reversed in part and remanded for a new trial.
This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Patricia Ann Blackmon, A.J., and Frank D. Celebrezze, Jr., J.,concur.