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State v. Smith11/6/1997
he Ohio Supreme Court found that a finding on a specification cannot change the finding of guilt upon the principal charge. Also, the court stressed that one may be convicted of aggravated murder without a specification. Id. Thus, the conviction of aggravated murder is not dependent upon findings for the specifications thereto. Specifications are considered after, and in addition to, the finding of guilt on the principal charge. Id. at 26.
As in Perryman, a finding upon a specification cannot change the finding of guilt as to the principal charge since specifications are considered only after, and in addition to, the finding of guilt upon the principal charge. Appellant's conviction of aggravated murder may stand because it was not dependent upon the firearm specification. Furthermore, the jury's finding that appellant was not guilty of having a weapon while under a disability does not provide a sufficient basis for a new trial. See Adams, supra. Accordingly, appellant's eighth assignment of error is overruled.
IX.
Appellant, in his ninth assignment of error, asserts that the trial court erred when it failed to instruct the jury on abduction, a lesser included offense of kidnapping. A trial court must present a lesser included offense charge if the trial court determines that (1) the offense is indeed a lesser included offense of the crime charged and (2) the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater. State v. Kidder (1987), 32 Ohio St.3d 279, 280.
In addressing appellant's ninth assignment of error, we must first determine whether the abduction charge requested by appellant is a lesser included offense of the kidnapping charge that the jury received. The test for whether one offense is a lesser-included offense of another is set forth in State v. Deem (1988), 40 Ohio St.3d 205, 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, 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.
In the case sub judice, the trial court stated that it would not instruct the jury on the lesser included offense of abduction. The jury was charged on the following parts of kidnapping, R.C. 2905.01(A):
Now, before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 28th day of March, 1995, and in Cuyahoga County, Ohio, the defendant, by force, threat or deception removed Reginald Lewis from the place where he was found or restrained him of his liberty for the purpose of facilitating the commission of a felony or the flight thereafter and/or terrorizing or inflicting serious physical harm on Reginald Lewis.
Kidnapping encompasses the offense of abduction because both require that the defendant be proven to have (1) by force or threat (2) removed another from the place where he was found. Abduction has no further elements, while kidnapping has an additional required purpose element: either R.C. 2905.01(A)(1), (2), (3), (4), or (5). One could not be found guilty of kidnapping without also satisfying the elements of abduction. See State v. Simmons (December 20, 1995), Scioto County App. No. 94CA2281, unreported. Kidnapping, a first or second degree felony, has a more severe penalty than abduction, a third degree felony. We therefore agree with appellant that the requested abduction charge is a lesser included offense of the kidnapping
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