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State v. Sellers11/10/2005
{ } Defendant-appellant Joseph Sellers (appellant) appeals from the trial court's convicting and sentencing him for manslaughter, as well as denying his motion to appoint a pathology expert. After reviewing the facts of the case and pertinent law, we affirm in part, reverse in part and remand for a new trial.
I.
{ } On October 12, 1995, appellant was found guilty of aggravated assault in violation of R.C. 2903.12 and sentenced to three to five years in prison. Appellant served his time and completed the terms of his probation. On July 16, 2003, the victim of appellant's 1995 assault died, allegedly as a result of the injuries he suffered from the aforementioned offense. The victim had been in a vegetative state since appellant assaulted him approximately eight years earlier. On January 23, 2004, appellant was charged with involuntary manslaughter in violation of R.C. 2903.04. Appellant filed a motion for a state funded expert witness to determine the cause of death. The court denied this motion. Appellant pled no contest, and on July 13, 2004, the court sentenced him to seven years in prison, with credit for 1437 days served from his prior assault conviction.
{ } 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.
II.
{ } In his first assignment of error, appellant argues that "defendant's rights under the double jeopardy clauses of the United States and Ohio Constitutions were violated when the the trial court convicted and sentenced defendant for manslaughter nine years after the conviction and sentence for aggravated assault." Specifically, appellant argues that the state prosecuted and punished him twice for a single act.
{ } The Fifth Amendment to the United States Constitution, as well as Section 10 of Article I of the Ohio Constitution, stands for the proposition that it is wrong for one to be put in jeopardy twice for the same offense. In State v. Best (1975), 42 Ohio St.2d 530, the Supreme Court of Ohio articulated the test for double jeopardy:
"The applicable rule under the Fifth Amendment is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt a defendant from prosecution and punishment under the other."
Best at of the syllabus (citing Blockburger v. United States (1932), 284 U.S. 299, 304). See, also, R.C. 2941.25.
{ } The two statutes in question in the case at bar are R.C. 2903.12 (aggravated assault) and 2903.04 (involuntary manslaughter). R.C. 2903.12 reads as follows:
{ } "(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:
{ } "(1) Cause serious physical harm to another or to another's unborn;
{ } "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance *."
{ } R.C. 2903.04 reads as follows:
{ } "(A) No person shall cause the death of another or the unlawful termination of another's pregna
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