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State v. Glagola11/10/2003
t guilty of reckless homicide and the attendant firearm specification. The trial court sentenced appellant to a prison term of three years on the reckless homicide conviction along with the three-year mandatory consecutive sentence for the firearm specification.
Appellant timely filed her notice of appeal and sets forth the following assignments of error for our consideration:
"I. IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO INSTRUCT THE JURY ON THE LESSER OFFENSE OF NEGLIGENT HOMICIDE AND/OR THE DEFENSE OF ACCIDENT.
"II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO REQUEST IN WRITING AND/OR FAILING TO OBJECT WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LESSER OFFENSE OF NEGLIGENT HOMICIDE AND THE DEFENSE OF ACCIDENT.
"III. APPELLANT'S CONVICTION FOR RECKLESS HOMICIDE WITH A GUN SPECIFICATION WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I.
In her First Assignment of Error, appellant maintains plain error occurred when the trial court failed to instruct the jury on the lesser offense of negligent homicide and/or the defense of accident. We disagree.
The record indicates that defense counsel did not request an instruction on negligent homicide nor did counsel request an instruction on the defense of accident. Defense counsel also did not object to the trial court's failure to instruct on negligent homicide or the defense of accident. Crim.R. 30(A) addresses the giving or failure to give a jury instruction. This rule provides, in pertinent part:
"On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury."
Accordingly, because defense counsel did not object pursuant to Crim.R. 30(A), we must review this matter under a plain error analysis. Crim.R. 52(B) provides that, " lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. In order to find plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.
Thus, we must determine, under appellant's First Assignment of Error, whether the outcome of the trial clearly would have been otherwise had the trial court instructed the jury on negligent homicide and the defense of accident. Appellant claims negligent homicide is a lesser included offense of murder and that based upon the evidence presented to the jury, the jury could have found appellant failed to form the intent of recklessness and instead determined appellant acted negligently when the gun discharged. Appellant relies upon the decision of State v. Banks (1986), 31 Ohio App.3d 57, in support of her argument that negligent homicide is a lesser included offense of murder.
In State v. Koss (1990), 49 Ohio St.3d 213, the Ohio Supreme Court held that negligent homicide is not a lesser included of offense of murder. Id. at paragraph four of the syllabus. The Court reached this conclusion on the basis that negligent homicide is not always and necessarily included in murder because one can purpose
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