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State v. Flemming9/5/1996
the following testimony of Officer Oliver:
Q: Seemed kind of proud of what he had just done.
A: Pretty much, yes.
The prosecutor made this statement after Oliver recalled how appellant "showed no remorse at all," and remarked to his friends upon his arrival at the Justice Center that he was going to jail "to work out, get bigger." The prosecutor's reaction to this testimony by inquiring as to whether appellant appeared "proud," may have been a little harsh, but not unreasonable given Oliver's characterization of appellant at the time of his arrest and thereafter. This court does not find that this isolated comment, assuming arguendo that it was improper, denied appellant a fair trial. Lott; Smith.
Appellant's fourth assignment of error is overruled.
C.
Appellant's fifth and sixth assignments of error address the propriety of the trial court's instructions to the jury. Appellant submits that the trial court committed plain error in two respects. First, the trial court should have instructed the jury on the lesser included offense of involuntary manslaughter, with aggravated assault, assault, aggravated menacing, or menacing as the underlying felony. Second, appellant asserts that the court should have provided the defense of accident to the jury.
The standard of review for plain error in the presentation of jury instructions was addressed by the Supreme Court of Ohio in State v. Cooperrider (1983), 4 Ohio St.3d 226. The court stated:
An erroneous jury instruction "does not constitute plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." * Additionally, the plain error rule is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice. [Citations omitted.] Id., 227. See State v. Underwood (1983), 3 Ohio St.3d 12; State v. Long (1978), 53 Ohio St.2d 91.
Appellant was charged with, and convicted of, violating R.C. 2903.01(B), the felony-murder provision. In the state of Ohio, murder and involuntary manslaughter are lesser included offenses of aggravated murder under R.C. 2903.01(B). See Campbell; State v. Scott (1980), 61 Ohio St.2d 155; State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported. Notwithstanding this general rule, even if an offense is a lesser included offense of another, an instruction on a lesser included offense is to be given only when warranted by the evidence. See State v. Shane (1992), 63 Ohio St.3d 630 (instruction on voluntary manslaughter should only be given when evidence would allow a jury to reasonably reject the greater offense and find the defendant guilty of the lesser offense).
R.C. 2903.01(B) forbids an individual from purposely causing the death of another while committing, or attempting to commit certain felonies. R.C. 2903.04(A) provides that a person is guilty of involuntary manslaughter if he causes the death of another while committing, or attempting to commit, a felony. In addition to the distinction that R.C. 2903.01(B) refers to certain types of felonies, the primary difference between these two offenses is that the latter offense does not require a finding that the accused acted purposely. See Campbell; State v. Jenkins (1984), 15 Ohio St.3d 164. An instruction on involuntary manslaughter should be given only when, on the evidence presented, the jury could reasonably find against the state on the element of purpose, and for the state on the defendant's act of killing another. State v. Thomas (1988), 40 Ohio St.3d 213, 216; State v. Coulter (1992), 75 Ohio App.3d 219, 225.
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