* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1997) 78 Ohio St.3d 1452,677 N.E.2d 813. This case is before the court on appeal from a judgment of the Huron County Court of Common Pleas that granted defendant-appellee Danny Brown's motion to dismiss an indictment charging him with one count of involuntary manslaughter. Specifically, the lower court ruled that R.C. 2903.04, the statute proscribing involuntary manslaughter, is unconstitutional when the predicate offense is a minor misdemeanor traffic violation. From that judgment, appellant, the state of Ohio, raises the following assignment of error:
"It was error for the trial court to dismiss the indictment on the ground that the involuntary manslaughter statute was unconstitutional."
The relevant facts of this case are as follows. On December 14, 1995, Brown was driving his truck west on Hasbrock Road in Huron County, Ohio. As he approached the intersection of Hasbrock and Ridge Roads, he saw a stop sign which he believed controlled traffic on Ridge Road. He claimed that due to high winds that day, the sign was blowing and appeared to direct traffic on Ridge Road. As he came closer to the intersection, however, he noticed another stop sign on the other side of the intersection and realized that the stop signs controlled traffic on Hasbrock Road. At that time, however, it was too late for him to stop. He entered the intersection and collided with a northbound car driven by Jason Alexander, a high school senior. Alexander died as a result of the accident.
On December 21, 1995, Brown was indicted on one count of involuntary manslaughter in violation of R.C. 2903.04(B) with the predicate offense being Brown's failure to yield at a stop sign, a minor misdemeanor. Subsequently, Brown filed a motion to dismiss the indictment, asserting, inter alia, that R.C.2903.04(B) is unconstitutional as it relates to him in that it violates his right to equal protection under the Ohio and United States Constitutions. In a decision and judgment entry dated May 3, 1996, the trial court granted Brown's motion and dismissed the indictment. Specifically, the trial court held that R.C.2903.04(B) is unconstitutional when the predicate offense is a minor misdemeanor traffic violation. The state now appeals that judgment and dismissal.
In finding that the involuntary manslaughter statute is unconstitutional, the trial court held that because the involuntary manslaughter and vehicular homicide statutes prohibit identical activity and require identical proof, Brown's right to equal protection is violated because the involuntary manslaughter statute imposes a more severe penalty. The court noted that the vehicular homicide statute, R.C. 2903.07, requires that the defendant be found substantially negligent yet provides for a maximum penalty of up to six months in the county jail and a $1,000 fine. In contrast, the involuntary manslaughter statute requires only a finding of *Page 9 negligence yet provides for a maximum penalty of up to ten years in prison and a $5,000 fine. The court concluded that there was no rational basis for punishing mere negligent conduct more severely than substantially negligent conduct. The court further concluded that the statutory scheme allows a prosecutor unfettered discretion in deciding under which statute to proceed. The court therefore held R.C. 2903.04(B) unconstitutional when the predicate offense is a minor misdemeanor traffic violation and dismissed the indictment against Brown. We find this ruling to be in error.
In 1993, the Supreme Court of Ohio decided the case ofState v. Collins (1993), 67 Ohio St.3d 115, 616 N.E.2d 224, which held at the syllabus that "[a] minor misdemeanor may not serve as the underlying predicate offense for purposes of the involuntary manslaughter statute, R.C. 2903.04(B)." At that time, R.C. 2903.04(B) read in part: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor." The court reasoned that the General Assembly did not intend to include minor misdemeanors as a predicate misdemeanor offense for purposes of the crime of involuntary manslaughter. Through the passage of 1994 H.B. No. 236, 145 Ohio Laws, Part III, 5116, 5117, eff. September 29, 1994, the General Assembly amended R.C.2903.04(B) to specifically include minor misdemeanors. That statute now reads: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor of the first, second, third, or fourth degree or a minor misdemeanor." A violation of this section is an aggravated felony of the third degree, R.C. 2903.04(C), and subjects the offender to a maximum sentence of ten years' incarceration and a maximum fine of $5,000. R.C. 2929.11. Brown contends that in light of R.C. 2903.07, R.C. 2903.04(B) violates his right to equal protection when the predicate offense is a minor misdemeanor traffic offense. R.C. 2903.07 criminalizes vehicular homicide and reads under paragraph (A): "No person, while operating or participating in the operation of a motor vehicle * * * shall negligently cause the death of another." The culpable mental state of "negligence" is defined by R.C. 2901.22 as "a substantial lapse from due care." A violation of R.C.2903.07 is a first-degree misdemeanor. Accordingly, Brown's conduct of causing a death by running a stop sign arguably violated both statutes.
We begin our analysis with the fundamental rule of jurisprudence that "legislative enactments are entitled to a strong presumption of constitutionality." State v. McDonald (1987), 31 Ohio St.3d 47, 48, 31 OBR 155, 156, 509 N.E.2d 57,59. Moreover, "[p]ursuant to its police powers, the General Assembly has the authority to enact laws defining criminal conduct and to prescribe its punishment." State v. Thompkins (1996), 75 Ohio St.3d 558, 560, 664 N.E.2d 926, 928. "The limit placed upon governmental action by the Equal Protection Clauses of *Page 10 the Ohio and United States Constitutions are nearly identical."Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 424,633 N.E.2d 504, 512. "[A] statutory classification violates the Equal Protection Clause of the Ohio Constitution if it treats similarly situated people differently based upon an illogical and arbitrary basis." Id. at 425, 633 N.E.2d at 512. The court below concluded that there was no rational basis for imposing manslaughter punishment on a driver who caused an accident, resulting in the death of another, by violating a minor misdemeanor traffic rule, when a lesser punishment is imposed on one who negligently causes the death of another by operating a vehicle. The obvious difference in the two statutes is, of course, that a minor misdemeanor is a proscribed offense and negligence is not. That is, to prove an involuntary manslaughter, the state must establish that the defendant violated a specific statute and by that violation caused a death. In contrast, to prove vehicular homicide, the state need only prove that the defendant negligently caused a death through the operation of a car. Such negligence will not always also violate the criminal or traffic laws of this state. In enacting the two statutes, the General Assembly has determined that causing a death through the violation of a minor misdemeanor traffic offense is worthy of a more serious penalty than causing a death through the negligent operation of an automobile. We do not find this to be an irrational or arbitrary distinction.
The trial court further concluded that the statutory scheme allows the prosecutor unfettered discretion in determining the statute under which it should proceed when a death is caused by a minor misdemeanor traffic offense. It is well established, however, that "[t]he mere fact that [a defendant's] conduct violates more than one statute does not force the state to prosecute him under the lesser statute." State v. Cooper (1990),66 Ohio App.3d 551, 553, 585 N.E.2d 868, 870. That is:
"Where two statutes proscribe the same criminal conduct, in the absence of proof that the prosecution is based upon an impermissible criterion such as race, religion, or other arbitrary classification, a defendant may be charged and convicted under the statute providing the greater penalty."State v. Miles (1983), 8 Ohio App.3d 410, 8 OBR 533,457 N.E.2d 944, syllabus. See, also, United States v. Batchelder (1979),442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755. This principle has been followed by numerous Ohio courts. See State v. Stanford (Aug. 30, 1996), Trumbull App. No. 95-T-5358, unreported, 1996 WL 537856, and cases cited therein. Nothing in the record before us suggests that Brown was prosecuted under the more stringent statute on the basis of an impermissible criterion. *Page 11
We therefore conclude that R.C. 2903.04(B) does not violate the Equal Protection Clauses of the Ohio and United States Constitutions when the predicate offense is a minor misdemeanor traffic offense. This is the same conclusion reached by the Ohio Eleventh District Court of Appeals in Stanford. The sole assignment of error is well taken.
On consideration whereof, the court finds that substantial justice has not been done to the party complaining, and the judgment of the Huron County Court of Common Pleas is reversed. This cause is remanded for further proceedings not inconsistent with this decision. Appellee is ordered to pay the court costs of this appeal.
Judgment reversedand cause remanded.
GEORGE M. GLASSER and CHARLES D. ABOOD, JJ., concur.
MELVIN L. RESNICK, P.J., dissents.