holding that felonious assault is not a lesser-included offense of attempted murder
How later courts described this case
- holding that felonious assault is not a lesser-included offense of attempted murder
Written by the judges who cited it.
The opinion
*316
Farmer, Judge,
dissenting.
I respectfully dissent from the majority’s opinion. In Assignment of Error III, the majority holds that felonious assault, R.C. 2903.11(A)(2), fails by definition to be a lesser included offense of attempted murder because attempted murder can, as statutory defined, be committed without the lesser offense. I disagree with this analysis as it pertains to felonious assault as defined by subsection (A)(2). The legislature built into subsection (A)(2) the attempt language without the necessity of a charge under the section prohibiting an attempt to commit an offense. By its very nature, the felonious assault statute is a compilation of various crimes included under the broad definition of felonious assault.
The majority makes the statement that one can attempt to cause someone’s death by pushing him/her out of a window and it would not be felonious assault. I disagree because this analysis forces a court to look at the particular facts, which the majority claims the
dicta
in
State v. Koss
(1990), 49 Ohio St.3d 213 , 551 N.E.2d 970 , prohibits.
1
If the “facts” were attempted murder by pushing someone out of a window, felonious assault as statutorily defined under the subsection (A)(1) phrase “[clause serious physical harm to another” would apply.
Also, although it was decided prior to
Deem,
I find
State v. Mabry
(1982), 5 Ohio App.3d 13 , 5 OBR 14, 449 N.E.2d 16 , to be persuasive. Our sister court from the Eighth District found felonious assault to be a lesser included offense of attempted murder by using the same analysis as the
Deem
court at paragraph two of the syllabus. The court reaffirmed its position after
Deem
in
State v. Whalen
(Nov. 27, 1991), Cuyahoga App. No. 59366, unreported, 1991 WL 251668 .
I find R.C. 2903.11(A)(2), felonious assault, to be a lesser included offense of attempted murder. Therefore, the trial court did not err in giving the instruction on felonious assault. I would deny the assignment of error.
1
. The step-by-step analysis of
Deem
at paragraph three of the syllabus was not included in the
Koss
syllabus. The majority relies on the dicta of
Koss
and not its holding.