         [Cite as State v. Baker, 2013-Ohio-2507.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NOS. C-120470
                                                                      C-120471
        Plaintiff-Appellee,                          :   TRIAL NOS. C-11CRB-33848A, B

  vs.                                                :          O P I N I O N.

LUCIUS BAKER,                                        :

    Defendant-Appellant.                             :




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Appellant
                          Discharged in Part

Date of Judgment Entry on Appeal: June 19, 2013




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Robert R. Hastings, Jr., for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}    Defendant-appellant Lucius Baker appeals convictions for negligent

assault and criminal damaging or endangering. We find merit in one of his two

assignments of error. Consequently, we reverse his conviction for negligent assault

and order him discharged on that count, but affirm his conviction for criminal

damaging or endangering.

                                 I.   Factual Background

       {¶2}    The record shows that Baker had entered into an agreement to lease

wheel rims for his car from Rent-N-Roll. Because Baker’s account was severely

delinquent, Adam Armacost, Rent-N-Roll’s sales manager, and Edward Holbrook, a

wheel technician, went to Baker’s place of employment to repossess the rims. There

was an empty parking space behind Baker’s car, and they parked their company van

diagonally behind Baker’s car to block him from leaving.

       {¶3}    Baker happened to be leaving work to go to the hospital to be with his

wife who was having a difficult pregnancy at the same time Armacost and Holbrook

were repossessing the rims. According to Armacost, he asked Baker how he was

doing, and Baker replied, “good.”        Baker testified that he told Armacost and

Holbrook that he had already talked to the head manager about his account and that

he had to go to the hospital to be with his wife.

       {¶4}    Armacost stood in front of Baker’s car.     Armacost and Holbrook

testified that Baker backed his car into the open passenger side door of the company

van, damaging the door. Then Baker drove forward out of the parking space and hit

Armacost, knocking him back several feet and injuring his knee.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}      Armacost called the police. When the investigating officer offered

him medical assistance, Armacost refused treatment at that time, although he did go

to the hospital later that afternoon.

       {¶6}      Baker testified that he did not back up his car because he had backed

into the space upon arriving and all he had to do was “pull straight out.” He stated

that Armacost had approached his driver’s side door and told him “you’re not

leaving.” Baker had said that he did not have time to talk about it right then. He got

into his car and started it. Armacost had slapped the fender on his car, and again

had said “you’re not leaving.” Baker then had driven off. He stated that he had not

hit Armacost or the company van, and he was unaware of any problem until he was

contacted by a police officer.

       {¶7}      Baker was charged with assault under R.C. 2903.13(A) and criminal

damaging or endangering under R.C. 2909.06(A). After hearing the evidence, the

trial court convicted Baker of criminal damaging or endangering. But on the assault

charge, the court stated that Baker’s conduct was “incredibly stupid,” but that “I do

not feel it rises to the level of misdemeanor one assault.      I do feel that it was

negligent. And on the assault, you will be found guilty of the lesser offense of

negligent assault.” This appeal followed.

           II.   Is Negligent Assault is a Lesser-Included Offense of Assault?

       {¶8}      Baker presents two assignments of error for review, which we address

out of order. In his second assignment of error, Baker contends that the trial court

erred in finding that negligent assault is a lesser-included offense of assault, and in

convicting him of negligent assault. He argues that the offense of negligent assault

contains an additional element that is not contained in the offense of assault. This

assignment of error is well taken.


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       {¶9}    An offense may be a lesser-included offense of another if (1) the

offense carries a lesser penalty than the other; (2) the greater offense, cannot, as

statutorily defined, be committed without the lesser offense also being committed;

and (3) some element of the greater offense is not required to prove the commission

of the lesser offense. State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988),

paragraph three of the syllabus, clarified in State v. Evans, 122 Ohio St.3d 381,

2009-Ohio-2974, 911 N.E.2d 889; State v. Dieterle, 1st Dist. No. C-070796, 2009-

Ohio-1888, ¶ 34.

       {¶10}   Baker was originally charged with assault under R.C. 2903.13(A),

which provides that “[n]o person shall knowingly cause or attempt to cause physical

harm to another or to another’s unborn.” A violation of this section is a first-degree

misdemeanor. R.C. 2903.13(C).

       {¶11}   Baker was convicted of negligent assault under R.C. 2903.14(A),

which provides that “[n]o person shall negligently, by means of a deadly weapon or

another dangerous ordnance as defined in section 2923.11 of the Revised Code, cause

physical harm to another or to another’s unborn.” A violation of this section is a

third-degree misdemeanor. R.C. 2903.14(B).

       {¶12}   In State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d

757 (7th Dist.), the Seventh Appellate District held that negligent assault is not a

lesser-included offense of assault under R.C. 2903.13(A) or (B). It stated:

       As can be seen, negligent assault contains an element which assault

       does not, namely that the offense must be committed by means of a

       deadly weapon or dangerous ordnance. Thus, negligent assault does

       not meet the second prong of the Deem test because one can recklessly

       cause serious harm without, for example, the use of a gun. As Deem



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       stated, if the greater offense can be committed without the lesser

       offense also being committed, then the lesser offense is not a lesser

       included offense.

Id. at ¶ 40. Contra Toledo v. Golis, 6th Dist. No. L-94-161, 1994 Ohio App. LEXIS

4876, *4-5 (Oct. 28, 1994) (negligent assault is a lesser included offense of

assault).

       {¶13}   We agree with Seventh Appellate District’s reasoning, and we hold

that negligent assault is not a lesser-included offense of assault under R.C.

2903.13(A). This holding is consistent with our previous cases in which we held that

negligent assault was a lesser-included offense of felonious assault.         Felonious

assault under R.C. 2903.11(A) also contains the element that the harm must be

caused by means of a deadly weapon or dangerous ordnance. Consequently, the only

difference between those two offenses is the mens rea. See State v. Aria, 1st Dist. No.

C-990848, 2000 Ohio App. LEXIS 5722, *9-10 (Dec. 8, 2000); State v. Swan, 1st

Dist. No. C-900655, 1991 Ohio App. LEXIS 4815, *6-7 (Oct. 9, 1991).

       {¶14}   Consequently, we hold that the trial court erred in convicting Baker of

negligent assault.   We sustain Baker’s second assignment of error, reverse his

conviction for negligent assault, and order him discharged on that count.

    III. Weight and Sufficiency of Evidence of Criminal Damaging or Endangering
                                         Conviction

       {¶15}   In his first assignment of error, Baker contends that the state’s

evidence was insufficient to support his conviction for criminal damaging or

endangering. He argues that R.C. 2909.06(A) required the state to prove that he

acted knowingly, and that the trial court, in its findings related to the assault charge,

concluded that he had only acted negligently. He argues that his conviction for



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                      OHIO FIRST DISTRICT COURT OF APPEALS



criminal damaging or endangering was inconsistent with the finding that he acted

negligently, and, therefore, was contrary to law. This assignment of error is not well

taken.

         {¶16}   R.C. 2909.06(A)(1) provides that “[n]o person shall cause, or create a

substantial risk of physical harm to any property of another without the other

person’s consent * * * [k]nowingly by any means.” Our review of the record shows

that a rational trier of fact, after viewing the evidence in a light most favorable to the

prosecution, could have found that the state had proved beyond a reasonable doubt

all of the elements of criminal damaging or endangering. Therefore, the evidence

was sufficient to support Baker’s conviction. See State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus: State v. Erkins, 1st Dist. No.

C-110675, 2012-Ohio-5372, ¶ 40.

         {¶17}   We do not believe that the trial court’s acquittal of Baker on the

assault charge and his conviction for criminal damaging or endangering were

necessarily inconsistent. But even if they were, inconsistent verdicts on different

counts are not grounds for reversal. State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d

1112 (1997), paragraph one of the syllabus; State v. Glenn, 1st Dist. No. C-090205,

2011-Ohio-829, ¶ 69.

         {¶18}   Baker also contends that his conviction for criminal damaging or

endangering was against the manifest weight of the evidence. After reviewing the

record, we cannot say that the trier of fact lost its way and created such a manifest

miscarriage of justice that we must reverse Baker’s conviction and order a new trial.

Therefore, the conviction was not against the manifest weight of the evidence. See

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Erkins at ¶ 72.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19}   Baker is primarily arguing that the state’s evidence was not credible.

But matters as to the credibility of evidence were for the trier of fact to decide. State

v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116; Erkins at ¶ 52.

We, therefore, overrule Baker’s first assignment of error.

                                       IV. Summary

       {¶20}   In sum, we sustain Baker’s second assignment of error. We reverse

his conviction for negligent assault, and he is hereby discharged on that count. We

overrule Baker’s first assignment of error, and affirm his conviction for criminal

damaging or endangering.

                  Affirmed in part, reversed in part, and appellant discharged in part.


H ILDEBRANDT , P.J., and F ISCHER , J., concur.


Please note:
       The court has recorded its own entry this date.




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