State v. Scott Rose, Unpublished Decision (11-3-2000)

• Court: Ohio Court of Appeals
• Decided: November 3, 2000
• Docket: Trial No. 00CRB-3921, Appeal No. C-000287.
• Status: Unpublished

Opinion

DECISION. Defendant-appellant Scott Rose was charged with domestic violence against his spouse, in violation of R.C. 2919.25(A). In his bench trial, two of the state's witnesses, his spouse and her father, recanted their statements made to the investigating officer at the residence. The trial court found Rose guilty of menacing, in violation of R.C. 2903.22, a lesser offense not charged in the complaint, and sentenced him to thirty days' confinement, with the execution of twenty-eight days suspended and credit for two days previously served, a $100 fine and costs, and one year of probation.

In his first assignment of error, Rose claims the trial court erred in convicting him of menacing, as it is not a lesser-included offense of domestic violence as defined in R.C. 2919.25(A). In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph three of the syllabus, the Supreme Court of Ohio held that an offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.

The greater offense in this case, domestic violence, which requires proof that the offender "knowingly caus[ed] or attempt[ed] to cause physical harm," can be committed without simultaneously committing menacing, since a menacing offense requires proof that the offender "knowingly cause[d] another to believe that the offender [would] cause physical harm." (Emphasis added.)

We have held that domestic violence, as defined in R.C. 2919.25(C), with a requirement that the offender "knowingly cause a family or household member to believe that the offender will cause imminent physical harm," is not a lesser-included offense of the domestic-violence variant charged in this case under R.C. 2919.25(A). See State v. Alcorn (Feb. 9, 1996), Hamilton App. No. C-950557, unreported, citing State v.Rihm (1995), 101 Ohio App.3d 626, 656 N.E.2d 372. As the "to believe" element of menacing in R.C. 2903.22(A) is the same as that for domestic violence under R.C. 2919.25(C), by analogy menacing is not a lesser-included offense of domestic violence under R.C. 2919.25(A). Rose's first assignment of error is sustained.

Our ruling on Rose's first assignment of error renders his second, third, fourth, and fifth assignments of error moot under App.R. 12(A)(1)(c).

_________________________ Per Curiam.

Hildebrandt, P.J., Gorman and Painter, JJ.