[Cite as State v. Bowen, 2017-Ohio-2879.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 2016-CA-4
                                                  :
 v.                                               :   T.C. NO. 14-CR-492
                                                  :
 FRANK L. BOWEN                                   :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                 Rendered on the ___19th ___ day of _____May_____, 2017.

                                             ...........

ANTHONY E. KENDELL, Atty. Reg. No. 0067242, Prosecuting Attorney, 201 W. Main
Street, Safety Bldg., Troy, Ohio 45373
       Attorney for Plaintiff-Appellee

PETER GALYARDT, Atty. Reg. No. 0085439, Assistant State Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

                                            .............

FROELICH, J.

        {¶ 1} Frank L. Bowen was convicted after jury trials in the Miami County Court of

Common Pleas of murder, gross abuse of a corpse, tampering with evidence, and

safecracking. The trial court sentenced him to a mandatory term of 15 years to life in

prison for the murder, 12 months for gross abuse of a corpse, 36 months for tampering
                                                                                        -2-


with evidence, and 12 months for safecracking.         The murder and tampering with

evidence sentences were run consecutively, with the other sentences to run concurrently;

Bowen’s aggregate sentence was 18 years to life in prison.

       {¶ 2} We note that the jury trials lasted approximately ten days. 1 On appeal,

Bowen’s sole assignment of error claims that the trial court violated his constitutional

rights when it “found him guilty of felony murder with felonious assault as the predicate

offense.” He argues that, because all purposeful killings include a felonious assault,

Ohio’s felony murder statute “eliminates the crime of purposeful murder when, as here,

felonious assault serves at the predicate felony.” Bowen relies on Illinois v. Morgan, 197

Ill.2d 404, 758 N.E.2d 813 (2001), to support his argument.

      {¶ 3} Bowen acknowledges that we have previously rejected his argument in State

v. Mays, 2d Dist. Montgomery No. 24168, 2012-Ohio-838, and that we declined “to

change our position on the matter” in State v. Slaughter, 2d Dist. Montgomery No. 25215,

2014-Ohio-862. He nevertheless asks us to reconsider our prior rulings.

      {¶ 4} Ohio’s felony murder statute, R.C. 2903.02(B), states: “No person shall

cause the death of another as a proximate result of the offender’s committing or

attempting to commit an offense of violence that is a felony of the first or second degree

* * *.” “Therefore, in order to convict a defendant of felony murder, the State is not

required to prove that the defendant had an intent to kill, but instead must prove that the

defendant intended to commit the underlying felony that proximately caused the victim’s

death.” Slaughter at ¶ 35, citing Mays at ¶ 6.


1
  A jury found Bowen guilty of safecracking on August 4, 2015. After a second jury trial
in January 2016 on the three additional counts, Bowen was found guilty of murder, gross
abuse of a corpse, and tampering with evidence.
                                                                                        -3-

      {¶ 5} We noted in Mays and Slaughter that, in response to widespread criticism

concerning felony murder’s intent requirement, many jurisdictions have developed ways

to confine the application of the offense. Mays at ¶ 7-8; Slaughter at ¶ 36. One way is

the independent-felony/merger doctrine, which precludes certain particularly dangerous

felonies from qualifying as the underlying offense for felony murder.        Mays at ¶ 8;

Slaughter at ¶ 36. However, we concluded in Mays that Ohio does not recognize the

independent-felony/merger doctrine, and that the absence of the independent-felony or

merger limitation is not unconstitutional. Mays at ¶ 10-12.

      {¶ 6} Finally, we noted in Mays that the Ohio Supreme Court has upheld

convictions for felony murder where the underlying offense of violence was felonious

assault. Mays at ¶ 11, discussing State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931,

775 N.E.2d 495. In Miller, the defendant shot his wife in the cheek at close range, and

the Supreme Court concluded that the evidence was sufficient to support a conviction for

felony murder based on felonious assault. The Supreme Court stated:

             If defendant knowingly caused physical harm to his wife by firing the

      gun at her through a holster at close range, he is guilty of felonious assault.

      The fact that she died from her injuries makes him guilty of felony murder,

      regardless of his purpose.

             The defendant contends that since felony murder has a lesser mens

      rea standard (knowingly) than murder (purposely), and since the two crimes

      carry the same punishment, prosecutors will now seek murder convictions

      under the felony murder statute based on felonious assault. However,

      prosecutors can still charge in the alternative and generally seek an
                                                                                           -4-


       indictment most aligned with the facts of the case. In addition, the General

       Assembly has chosen to define felony murder in this manner, and the

       General Assembly is presumed to know the consequences of its legislation.

Miller at ¶ 33-34; see also State v. Walker, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-

8295, ¶ 13 (concluding that the evidence “fully supported” defendant’s conviction for

felony murder where the underlying offense was felonious assault).

       {¶ 7} Bowen relies on the Illinois Supreme Court’s decision in Morgan, 197 Ill.2d

404, 758 N.E.2d 813, in which a 14-year-old defendant was convicted of the shooting

deaths of his maternal grandparents. Morgan was charged with felony murder, among

other offenses. In Illinois, felony murder is defined as: “A person who kills an individual

without lawful justification commits first degree murder if, in performing the acts which

cause the death: * * * (3) he is attempting or committing a forcible felony other than

second degree murder.” 720 Ill.Ann.Stat. 5/9-1(a)(3).

       {¶ 8} Addressing the charges of felony murder, the Illinois Supreme Court held

that, “where the acts constituting forcible felonies arise from and are inherent in the act of

murder itself, those acts cannot serve as predicate felonies for a charge of felony murder.”

Morgan, 758 N.E.2d at 838; see also Illinois v. Davison, 236 Ill.2d 232, 923 N.E.2d 781

(2010). With respect to the specific charges against Morgan, the Illinois Supreme Court

concluded that the underlying charges of aggravated battery and aggravated discharge

of a firearm were acts that were inherent in, and arose out of, the fatal shootings, and

thus the jury should not have been instructed that Morgan could be convicted of first-

degree murder on a felony-murder theory. Morgan at 838. The court explained it was

arguable that the murders gave rise to the predicate felonies, rather than the predicate
                                                                                         -5-

felonies resulting in the murders. Id.; see Davison, 923 N.E.2d at 786. (For reasons

that are not relevant to this case, the Illinois Supreme Court found that the erroneous jury

instruction was harmless.)

       {¶ 9} The Illinois Supreme Court concluded in Morgan that the predicate offense

underlying felony murder must have an independent felonious purpose. Morgan at 844;

Davison at 786. Even if we were to agree with the Illinois Supreme Court, the Ohio

Supreme Court and the Ohio legislature have not adopted such a view. For the reasons

set forth here and in Mays and Slaughter, we decline to reconsider our prior rulings on

this issue.

       {¶ 10} Bowen’s assignment of error is overruled.

       {¶ 11} The trial court’s judgment will be affirmed.

                                         .............

DONOVAN, J. and TUCKER, J., concur.

Copies mailed to:

Anthony E. Kendell
Peter Galyardt
Hon. Christopher Gee
