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State v. Davis9/12/2003
ctions at the time he executed the waivers." Id. at 69.
. Although both charges in Adams involved the same set of facts, the Ohio Supreme Court focused on the fact that the charges could involve different defenses at trial. The court concluded that because of these differences, a defendant might waive speedy trial rights for one charge, but might not be willing to waive a speedy trial for the other. Id. at 69-70. Accordingly, the court held that "a knowing and intelligent waiver cannot be made until all the facts are known by the accused, which includes knowing the exact nature of the crime he is charged with." Id. at 70.
. Consistent with the above authority, Davis claims his waiver of speedy trial rights cannot apply to a subsequent charge that is based on the same set of circumstances as the original indictment. We disagree, however, because the concerns expressed in Adams are absent when the subsequent charge is a lesser-included offense of an initial charge. Specifically, in such cases, waiving defendants are aware of the exact nature of the crimes with which they are charged, since "the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed." State v. Deem (1988), 40 Ohio St.3d 205, 206, paragraph three of the syllabus. Because the greater offense requires proof of one or more additional elements, it may involve considerations of defense that would not be contemplated in defending against the lesser-included offense, but not vice versa.
. The Ohio Supreme Court has held that involuntary manslaughter under R.C. 2903.04 is a lesser included offense of "aggravated murder with prior calculation and design, R.C. 2903.01(A), aggravated felony murder, R.C. 2903.01(B), and murder, R.C. 2903.02." State v. Lynch, 98 Ohio St.3d 514, 526, 2003-Ohio-2284, . We have likewise said that " nvoluntary manslaughter is always and necessarily a lesser included offense of murder because murder cannot ever be committed without also committing or attempting to commit a felony or misdemeanor." State v. Lawrence (Dec. 19, 1997), Montgomery App. No. 16317, 1997 WL 822719, *4. Thus, because Davis was charged with murder under R.C. 2903.02, his speedy trial waiver for that charge applied to the lesser-included offense of involuntary manslaughter under R.C. 2903.04. Accordingly, the trial court did not violate Davis' speedy trial rights by refusing to dismiss the indictment for Count VIII.
. Based on the preceding discussion, the first assignment of error is without merit and is overruled.
III.
. In the second assignment of error, Davis contends that the trial court erred and abused its discretion by reconvening the jury to return a second verdict on Count VIII of the indictment after the jury returned a verdict and was discharged. The third assignment of error raises questions about the jury deliberations, because the jury somehow received two different verdict forms for Count VIII. Since these issues are related, we will discuss them together.
. As we mentioned, Davis was charged in Count VIII with causing the death of Powers "as a proximate result of committing or attempting to commit a felony, in violation of Section 2903.04 of the Ohio Revised Code." In a bill of particulars, the State indicated that this charge was based on the fact that Davis "possessed and used a Norinco model assault rifle after having been convicted of a felony of violence, Assault of a Police Officer on June 12, 1996. This caused the death of Randall D. Powers who was shot in the chest."
. At the end of the trial, the judge charged the jury on two counts of involuntary
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