[Cite as State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722.]




            THE STATE OF OHIO, APPELLANT, v. DEANDA, APPELLEE.
          [Cite as State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722.]
Criminal law—Lesser included offenses—Attempts as charged offense—
        Attempted murder and felonious assault by causing serious physical harm.
     (No. 2012-0471—Submitted January 22, 2013—Decided May 1, 2013.)
               APPEAL from the Court of Appeals for Seneca County,
                             No. 13-10-23, 2012-Ohio-408.
                                 __________________
        O’NEILL, J.
        {¶ 1} In this case, we are called upon to determine whether felonious
assault through causing serious physical harm is a lesser included offense of
attempted murder. Based on our interpretation of the applicable statutes and
extension of our holdings in State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260,
884 N.E.2d 595, and State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911
N.E.2d 889, we hold that it is.
                        Factual and Procedural Background
        {¶ 2} On September 23, 2009, the Seneca County Grand Jury returned an
indictment charging David L. Deanda with one count of attempted murder, in
violation of R.C. 2923.02 and 2903.02(A). Deanda entered pleas of not guilty and
not guilty by reason of insanity. Evidence was presented at trial that Deanda
confronted David Swartz outside Deanda’s residence and that an altercation
erupted between the two. Deanda attacked Swartz with a stick until Swartz
wrested the stick from Deanda and began to hit him with it. Deanda grabbed a
nearby knife and began to stab Swartz. Deanda repeatedly stated, “I’m gonna kill
you,” during and after the altercation. Swartz sustained seven stab wounds to his
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back, neck, and face, though none of the wounds was deep enough to be life-
threatening.
       {¶ 3} At the end of his jury trial for attempted murder, Deanda requested
an instruction on the lesser included offenses of assault and aggravated assault but
opposed the state’s request for an instruction on felonious assault.            After
consulting Ohio Jury Instructions, the trial court concluded that it would provide
instructions on all lesser included offenses requested by both parties. The jury
returned verdicts of not guilty on the charge of attempted murder but guilty on the
charge of felonious assault.
       {¶ 4} On Deanda’s appeal, the Third District Court of Appeals reversed
his conviction, holding that felonious assault is not a lesser included offense of
attempted murder, pursuant to State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240
(2002), and State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988). The state
appealed the Third District’s determination to this court, and we granted
discretionary review. 132 Ohio St.3d 1409, 2012-Ohio-2454, 968 N.E.2d 491.
                                      Analysis
       {¶ 5} Although the concept of lesser included offenses is easily
understood in theory, it can be downright baffling in practice. See Bandy v. State,
102 Ohio St. 384, 386, 131 N.E. 499 (1921). The origin of the lesser-included-
offense doctrine rests in the common law. Beck v. Alabama, 447 U.S. 625, 633,
100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The rule was intended to protect the state
from a complete acquittal when the evidence was inadequate to support a
conviction on the offense charged but supported a conviction on some lesser,
uncharged offense. Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36
L.Ed.2d 844 (1973).      Inherent in the lesser-included-offense doctrine is the
defendant’s constitutional right to receive notice before trial of all charges against
him. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). “It is ancient
doctrine of both the common law and of our Constitution that a defendant cannot




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be held to answer a charge not contained in the indictment brought against him.”
Schmuck v. United States, 489 U.S. 705, 717, 109 S.Ct. 1443, 103 L.Ed.2d 734
(1989). The lesser-included-offense doctrine is codified in Ohio law in R.C.
2945.74 and Crim.R. 31(C), which are substantially similar.           R.C. 2945.74
provides:


               The jury may find the defendant not guilty of the offense
       charged, but guilty of an attempt to commit it if such attempt is an
       offense at law. When the indictment or information charges an
       offense, including different degrees, or if other offenses are
       included within the offense charged, the jury may find the
       defendant not guilty of the degree charged but guilty of an inferior
       degree thereof or lesser included offense.


See also Crim.R. 31(C).
       {¶ 6} The question of whether a particular offense should be submitted to
the finder of fact as a lesser included offense involves a two-tiered analysis. State
v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. The first
tier, also called the “statutory-elements step,” is a purely legal question, wherein
we determine whether one offense is generally a lesser included offense of the
charged offense. State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987).
The second tier looks to the evidence in a particular case and determines whether
“ ‘a jury could reasonably find the defendant not guilty of the charged offense, but
could convict the defendant of the lesser included offense.’ ” Evans at ¶ 13,
quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d
859, ¶ 11. Only in the second tier of the analysis do the facts of a particular case
become relevant. In this case, the state challenges only the court of appeals’
holding that felonious assault can never be a lesser included offense of attempted



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murder. Therefore, we do not address whether the specific facts of Deanda’s
offense merited a particular instruction. We are thus concerned only with the first
tier of the foregoing analysis.
       {¶ 7} Although Ohio’s courts have implemented some version of the
statutory-elements step of the lesser-included-offenses analysis since the
beginning of the state’s history, the distinct three-part subset of the statutory-
elements step that we now use was first articulated in State v. Wilkins, 64 Ohio
St.2d 382, 384, 415 N.E.2d 303 (1980):


             An offense may be a lesser included offense of another only
       if (i) the offense is a crime of lesser degree than the other, (ii) the
       offense of the greater degree cannot be committed without the
       offense of the lesser degree also being committed and (iii) some
       element of the greater offense is not required to prove the
       commission of the lesser offense.


       {¶ 8} This court started to veer away from its multiple-tiered analysis in
the per curiam decision of State v. Rohdes, 23 Ohio St.3d 225, 492 N.E.2d 430
(1986). In Rohdes, the defendant had been indicted for murder but convicted of
involuntary manslaughter through aggravated menacing after the trial court
granted the state’s request for an instruction on that lesser charge. Id. at 225-226.
Our decision agreed with the instruction, rejecting the defendant’s argument that
murder can be committed without committing aggravated menacing, stating that
the focus is “on what elements a trier of fact could reasonably find from the
evidence” and that “a cold comparison of the statutory elements to determine
whether they always coincide is irrelevant.” Id. at 227.
       {¶ 9} We subsequently modified Rohdes and returned to the analysis
articulated in Wilkins in State v. Kidder, 32 Ohio St.3d 279, 513 N.E.2d 311




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(1987).      Although Rohdes correctly held that an involuntary-manslaughter
instruction may be proper for a murder charge, Kidder clarified that it had been
the “longstanding rule that the evidence presented in a particular case is irrelevant
to the determination of whether an offense, as statutorily defined, is necessarily
included in a greater offense.” Kidder at 282. We provided clarification in
Kidder by adding language to the second part of the Wilkins statutory-elements
analysis: “(ii) the offense of the greater degree cannot, as statutorily defined, ever
be committed without the offense of the lesser degree, as statutorily defined, also
being committed.” (Emphasis added.) Kidder at paragraph one of the syllabus.
          {¶ 10} Soon thereafter, in order to resolve confusion between analyses for
lesser-degree offenses and lesser included offenses, this court further modified the
Wilkins statutory-elements test in State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d
294 (1988), paragraph three of the syllabus:


                  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.


          {¶ 11} We applied the newly stated rule to conclude that although
aggravated assault is not a lesser included offense of felonious assault, it is an
inferior-degree offense. Id. at 210-211.
          {¶ 12} We stop here in our historical review of lesser included offenses to
note that we have held that felonious assault in violation of R.C. 2903.11(A)(2) is
not a lesser included offense of attempted murder in violation of R.C. 2903.02(A)
and 2923.02(A). State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240. We did not



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tread any new ground with our lesser-included-offense analysis, but merely
applied the strict statutory-elements test set forth in Deem.          Further, our
discussion in Barnes focused solely on felonious assault through using a deadly
weapon, and the decision did not extend to the statutory provision at issue in this
case, which is felonious assault through causing serious physical harm, in
violation of R.C. 2903.11(A)(1).       Because the specific statutory provision
discussed in Barnes is not at issue in this case, we refrain from comment as to its
application here.
       {¶ 13} The Deem statement of the rule remained the norm in Ohio for 20
years, until it was further reworded in State v. Evans, 122 Ohio St.3d 381, 2009-
Ohio-2974, 911 N.E.2d 889. In Evans, we were faced with the question of
whether robbery as defined in R.C. 2911.02(A)(2) was a lesser included offense
of aggravated robbery as defined in R.C. 2911.01(A)(1). Under these statutes,
robbery required proof of a threat or an attempt to inflict harm or actual infliction
of harm during a theft offense, and aggravated robbery required proof of
displaying, brandishing, indicating possession of, or actually using a deadly
weapon during a theft offense. The defendant-appellee argued that one could
commit theft while indicating possession of a deadly weapon without threatening
to inflict harm, such as a scenario where one shoplifts while purchasing the deadly
weapon. Id. at ¶ 24. Borrowing from recent holdings regarding allied offenses,
we rejected this argument as far-fetched and implausible. Id. at ¶ 24, citing State
v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, ¶ 24. We
explained:


       While [the elements of robbery and aggravated robbery] are not
       identically phrased, we have recognized: “This test is not a word
       game to be performed by rote by matching the words chosen by the
       legislature to define criminal offenses. Some offenses, such as




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       aggravated murder and murder, lend themselves to such a simple
       matching test; others do not. * * * We would also note that the
       elements of the offenses are ‘matched’ only in part (iii) of the test
       to determine if ‘some element’ of the greater offense is not found
       in the lesser offense. The proper overall focus is on the nature and
       circumstances of the offenses as defined, rather than on the precise
       words used to define them.” State v. Thomas, 40 Ohio St.3d 213 at
       216–217, 533 N.E.2d 286 [1988]. Thus, the test does not require
       identical language to define the two offenses, but focuses upon
       whether the words used in the statute defining the greater offense
       will put the offender on notice that an indictment for that offense
       could also result in the prosecution of the lesser included offense.


Evans at ¶ 22. Thus, in order “to ensure that such implausible scenarios will not
derail a proper lesser included offense analysis” in the future, we made one minor
change in the phrasing of the second step of the statutory-elements test stated in
Deem, by deleting the word “ever.” Id. at ¶ 25. The second step now requires
that “the greater offense as statutorily defined cannot be committed without the
lesser offense as statutorily defined also being committed.” Id. at paragraph two
of the syllabus.
       {¶ 14} Finally, although we have not made any further alterations to the
general statutory-elements test, before Evans we did create an additional, separate
rule to apply in cases when the statute for the greater offense sets forth multiple
alternative methods of committing the offense, in State v. Smith, 117 Ohio St.3d
447, 2008-Ohio-1260, 884 N.E.2d 595. In that case, the argument proposed to
this court was that theft could not be a lesser included offense of robbery because
it was possible to commit robbery through committing a theft or merely
attempting to commit a theft. Id. at ¶ 22; R.C. 2911.02(A). In rejecting this



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argument, we held that “when a statute sets forth mutually exclusive ways of
committing the greater offense, a court is required to apply the second part of the
[statutory-elements test for determining whether an offense is a lesser included
offense] to each alternative method of committing the greater offense.” Id. at
¶ 28. This modified approach allows for lesser-included-offense instructions for
either one of the alternative methods of committing robbery, because the robbery
statute puts the defendant on notice of both of those separate alternatives.
       {¶ 15} What we glean from the foregoing is that the statutory-elements
test for lesser included offenses has been repeatedly refined, clarified, modified,
and amended, but it has never been overruled. While the test may produce severe
results in some cases, we have learned in the aftermath of Rohdes that it is
essential to divorce the facts of a particular case from the statutory-elements
analysis in order to preserve the defendant’s right to notice of the charges against
him.
       {¶ 16} The proposed lesser included offense in the matter before us is
felonious assault in violation of R.C. 2903.11(A)(1), which states, “No person
shall knowingly * * * [c]ause serious physical harm to another * * *.” The crime
forming the foundation of the greater offense is murder in violation of R.C.
2903.02(A), which states, “No person shall purposely cause the death of another
* * *.” Finally, Ohio’s general attempt statute states, “No person, purposely or
knowingly, * * * shall engage in conduct that, if successful, would constitute or
result in the offense.” R.C. 2923.02(A).
       {¶ 17} The General Assembly created the general attempt statute in order
to consolidate and replace a number of specific attempt crimes.           Legislative
Service Commission 1973 comments to R.C. 2923.02. The General Assembly
also consolidated and replaced a number of special assault offenses by creating
the offense of felonious assault. Legislative Service Commission 1973 comments
to R.C. 2903.11.     In particular, in explaining the newly created offense of




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felonious assault, the Legislative Service Commission staff stated that “the
offense of felonious assault complements the section on murder” and that
felonious assault “is a lesser included offense to attempted murder.” Legislative
Service Commission 1973 comments to R.C. 2903.12 and 2903.11.
          {¶ 18} In looking at the crime of attempted murder through an updated,
more pragmatic lens in light of Evans and Smith, we reiterate that the specific
facts of a particular case are still irrelevant to the first step of the lesser-included-
offenses analysis. However, we no longer want to look at the elements in a
vacuum.      Nor do we want to bring out a menu of unrelated, fact-specific
hypotheticals.     Rather, it is more instructive to consider the charged crime’s
relationship with potential lesser included offenses, and then follow the language
of the applicable statutes in order to ensure the defendant’s constitutional right to
notice.
          {¶ 19} Returning to the statutory elements that are applicable in this case,
the core offense of murder requires purposely causing the death of another. R.C.
2903.02(A). One type of felonious assault involves knowingly causing serious
physical harm to another. R.C. 2903.11(A)(1). Clearly, the offense of murder
necessarily includes the commission of felonious assault through causing serious
physical harm, because purposely causing death necessarily involves knowingly
causing serious physical harm.        Also included in the offense of murder is
attempted murder.       R.C. 2923.02(A) and 2945.74.        The elements of attempt
include “engag[ing] in conduct that, if successful, would constitute or result in the
offense.” R.C. 2923.02(A).
          {¶ 20} The problem with a strict statutory comparison of the above two
offenses lies in the fact that the greater charged offense (attempted murder) is not
accomplished, whereas the lesser offense (felonious assault) is a completed crime.
Certainly it seems illogical to impose the requirement that the greater offense
cannot be committed without the lesser offense also being committed, because an



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attempt offense almost always involves not committing the crime charged.
Instead, when attempt is charged, the requirement is simply that the charge give
notice of the proposed lesser included offenses. Ensuring the notice that the
constitution requires is, after all, the purpose of any analysis of lesser included
offenses. And a charge of attempt gives notice that the prosecution may try to
prove any element of the completed crime and elements necessarily included
within those elements.
        {¶ 21} The only practical difference between attempted murder and
felonious assault through causing serious physical harm is whether the defendant
intended to kill the victim when he engaged in the particular conduct or whether
he intended merely to injure the victim with that conduct. Since the desire to
physically harm is a subset of, and necessarily included in, the desire to kill, and
since one cannot intend to kill without also intending to cause physical harm, we
conclude that felonious assault through causing serious physical harm is a lesser
included offense of attempted murder.
        {¶ 22} Although the wording of the statutes for felonious assault through
causing serious physical harm and attempted murder do not cleanly match up, we
hold that a charge of attempted murder reasonably puts the defendant on notice
that he may be convicted of felonious assault by causing serious physical harm.
To hold otherwise would lead to untenable results and would defeat the obvious
intent of the General Assembly to allow felonious assault to constitute a lesser
included offense of attempted murder. By following the General Assembly’s
intent, we allow the jury to do its job with proper instructions and ensure that
justice is done.
        {¶ 23} Accordingly, we hold that the Seneca County Court of Common
Pleas correctly provided the jury with an instruction for felonious assault as a
lesser included offense at the close of Deanda’s trial. We reverse the judgment of
the Third District Court of Appeals and remand the cause to that court for




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consideration of additional assignments of error that were mooted by its original
holding.
                                                              Judgment reversed
                                                            and cause remanded.
        LANZINGER, KENNEDY, and FRENCH, JJ., concur.
        O’CONNOR, C.J., and PFEIFER and O’DONNELL, JJ., concur in judgment
only.
                              __________________
        Derek W. DeVine, Seneca County Prosecuting Attorney, and Brian O.
Boos, Assistant Prosecuting Attorney, for appellant.
        John M. Kahler II, for appellee.
        Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant
Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public
Defender.
                            ______________________




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