I respectfully dissent because the defendant was entitled, in my judgment, to have the jury instructed that negligent homicide was a lesser included offense of murder in this case. I agree with the majority that he was not entitled to an instruction on involuntary manslaughter as a lesser included offense because the evidence failed to establish any underlying (or "causative") misdemeanor, such as aggravated menacing.
I am not persuaded by any of the three reasons cited by the majority as justification for the trial court's refusal to instruct on negligent homicide as a lesser included offense in this case. First, the decision in State v. Jenkins (1983),13 Ohio App.3d 122, 13 OBR 141, 468 N.E.2d 387, has been overruled, in effect, by State v. Rohdes (1986), 23 Ohio St.3d 225,228, 23 OBR 382, 385, 492 N.E.2d 430, 433. The Supreme Court concluded that Rohdes was not entitled to the requested instruction on negligent homicide, not because it could never be a lesser included offense of murder as a matter of law, but because the evidence was not sufficient to establish Rohdes' criminal negligence. Thus, by implication if not by express statement, the Supreme Court held that given the appropriate evidence, the instruction would be required.
Second, I find in the record a sufficient basis for entitlement by the defendant to an instruction on negligent homicide. Defense counsel made no claim to it in the opening statement, but defendant's own testimony was amply sufficient to raise the issue of criminal negligence. He testified that as he rose from a sitting position, the loaded and cocked rifle in his hands, without a safety on, discharged without his conscious intent. He conceded that while hunting he never carried a loaded and cocked gun without a safety on, and that a gun should never be pointed at a person at any time. A trier of fact could reasonably conclude that defendant's conduct was negligent. In brief, the evidence of negligence is patent on the record. This fact distinguishes the instant case from State v. King (1984), 20 Ohio App.3d 62, 20 OBR 66, 484 N.E.2d 234, because in that case, the evidence was that the *Page 68 homicide was justified as an intentional killing in self-defense.
Third, I am convinced that the evidence of defendant's conduct in handling a high-powered hunting rifle in the narrow confines of his mother's bedroom, and in her presence, raised the issue of criminal negligence, and that a reasonable trier of fact could find beyond a reasonable doubt that defendant had acted with a substantial lack of due care in failing to perceive or avoid the risk that his handling of the rifle might cause serious injury or death to his mother. R.C. 2901.22(A). Otherwise stated, the evidence was such that reasonable minds had to determine beyond a reasonable doubt whether defendant acted purposely, or negligently, or without culpability (that is, by accident).
I would reverse the judgment below and remand the case for further proceedings.