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State v. Glagola11/10/2003
ly cause the death of another by means other than by a deadly weapon or dangerous ordnance. Id. at 219. Therefore, based upon the Koss decision, we reject appellant's argument that negligent homicide is a lesser included offense of murder.
We also agree with the state's argument that appellant's defense of accident would have contradicted a charge on negligent homicide because the defense of accident is a complete defense and such a defense would contradict an instruction that the homicide occurred negligently. "* * * o instruction on negligent homicide is required when the theory of the defense is predicated on an accident." State v. Gay (Nov. 2, 1990), Portage 88-P-2043, at 4, citing State v. Hill (1987), 31 Ohio App.3d 65. In Hill, the court noted that an instruction on negligent homicide would not be appropriate because from the outset of the trial defendant argued that the shooting was accidental. Hill at 67.
Further, in State v. Samuels (Sept. 24, 1987), Cuyahoga App. No. 52527, at 2, the court explained, "* * * the appellant presented the defense of accident at trial which by definition negates any element of intent or criminal culpability in the offense as charged. [Citations omitted.] The defense of accident is totally inconsistent with a request for a jury instruction with regard to involuntary manslaughter or negligent homicide in that each of these offenses possess the element of intent and/or criminal culpability. The appellant vis-à-vis the defense of accident argues that the death of the victim did not involve the element of intent or criminal culpability.
"Likewise, in the case before us, we find that the trial court properly refused to charge on negligent homicide. Such an instruction would have represented an unreasonable compromise between the state's position -- that appellant knowingly killed Jenkins -- and appellant's position -- that the killing was purely accidental, and thus the charge would have been inconsistent with either the state's or appellant evidence." [Citations omitted.] Id. at 2.
For similar results, see, also, State v. Kropka (Oct. 11, 1985), Jefferson App. No. 83-J-29; State v. King (1984), 20 Ohio App.3d 62; State v. Bryant (June 22, 1984), Lucas App. No. L-83-334; and City of Columbus v. Bee (1979), 67 Ohio App.2d 65. Based upon the above case law, it would have been in error for the trial court to instruct the jury on negligent homicide since appellant relied upon the defense of accident at trial.
Appellant also contends, under this assignment of error, that the trial court should have instructed the jury on the defense of accident. This court addressed a similar argument in State v. Rohaley (Dec. 28, 1998), Stark App. No. 1998CA00092. In Rohaley, the defendant sought an instruction on the defense of accident in a case involving aggravated vehicular homicide with a driving under the influence specification. Id. at 3. The trial court denied defendant's requested instruction. Id. at 7. In upholding the trial court's refusal to instruct on the defense of accident, we stated:
"In the instant case, the court had already instructed the jury on causation. The instruction on causation indicated that in order to convict, the jury had to find that appellant's act or admissions, in their natural and continuous sequence, directly produced Letitia Ciban's death. The accident instruction would have simply indicated that the jury could acquit if appellant's acts or admissions were not the natural and reasonably foreseen result of Letitia Ciban's death. Accordingly, the instruction on `accident' did not add anything new to the general charge. Appellant, therefore, has not demonstrated that the result of
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