dissenting
I must respectfully dissent from the decision announced today regarding appellant's second and third assignments of error and would reverse Montecalvo's conviction for involuntary manslaughter.
Violations of municipal ordinances and state laws where the punishment is by fine alone have been recognized as quasi-criminal offenses and not strictly criminal cases. Van Wert v. Brown (1890), 47 Ohio St. 477, 480, citing Markle v. Town Council of Akron (1846), 14 Ohio 586, 589. See also, 25 Ohio Jurisprudence 3d (1981) 94, Criminal Law Sec 2. The difference in procedures and penalty for the adjudication of minor misdemeanors in the criminal justice system underscores the idea that such quasi-criminal behavior should not support an involuntary manslaughter charge. For example, by statute; a violation of any statute or municipal ordinance where the penalty does not exceed a fine of $100, the accused does not have the right to a trial by jury. See, R.C. 2945.17. Such minor offenses, triable without a jury, have been deemed to be distinct from misdemeanors and constitute a separate class of offenses below the grade of misdemeanor. 21 Am. Jur. 2d (1981) 149, Criminal Law Sec 30.
R.C. 2903.04(B) has the commission of a misdemeanor crime as a necessary predicate for a violation of this statute Prior to the 1974 revision of the criminal statutes (Am Sub. H.B. No. 511, 134 Ohio Laws, Part II, 866), manslaughter was defined as an unlawful killing of *369another without malice, either upon a sudden quarrel, or, unintentionally while the slayer is in the commission of some unlawful act. Johnson v. State (1902), 66 Ohio St. 59, 63. The court, in reversing Johnson's conviction, found that the reckless operation of bicycle could not support a manslaughter conviction since no statute or ordinance was in existence that declared such activity as unlawful. Common law negligence could not support a conviction.
In State v. Chambers (1977), 53 Ohio App. 2d 266, this court recognized that R.C. 2903.04 came into being with the recodification of our criminal code in 1974. Thus, interpretation of this code section and its meaning is not assisted by past precedent in this state Id. at 268.
The legislative history of the current version of the involuntary manslaughter statute is set forth in Goldsmith, Involuntary Manslaughter: "Review and Commentary on Ohio Law (1979), 40 Ohio St. L.J. 569." The legislative history discusses the creation of the vehicular homicide statutes as well as the formation of the involuntary manslaughter statute
R.C. 2903.07(A) is the current law governing negligent vehicular homicide. This offense is substantively the same as aggravated vehicular homicide, R.C. 2903.06, in all respects but one, the offense is based on negligence rather than recklessness The pre-1974 offense of second degree vehicular homicide was based on a violation of any traffic statute other than those dealing with drunk driving, reckless operation and drag racing. Legislative Comment to R.C. 2903.07. However, until Chippendale, (1990), 52 Ohio St. 3d 118, it was questioned as to whether the vehicular homicide statutes, R.C. 2903.06 and 2903.07, would preclude a charge of involuntary manslaughter where a death was the result of an automobile accident. The Chippendale court, relying on the legislative history as found in Goldsmith, supra, held that the court in State v. Davis (1983), 13 Ohio App. 3d 265, and courts adopting its position were correct in declaring that the legislature clearly intended to permit a charge of manslaughter against persons involved in vehicular fatalities despite the more specific provisions for aggravated vehicular homicide and vehicular homicida Chippendale, supra, at 122. However, it does not necessarily follow from this holding that the legislature intended to allow any type of misdemeanor offense to serve as the necessary predicate for an involuntary manslaughter conviction. The plain language of the statute must be examined to determine the intent of the legislature in writing it.
I find the observations of professors LaFave and Scott particularly persuasive on this subject.
"*** There is no logical reason for inflicting manslaughter punishment on one who unintentionally kills another simply because he is committing a traffic violation, unless it makes sense to punish the one-in-a-thousand traffic violation, which by bad luck produces an unexpected death, for more severely than the nine hundred and ninety-nine violations which happily do not produce any such devastating result. *** It is true that, in the case of crimes defined in terms of bad result, it is often something of an accident whether the specified result occurs or not. Where one seriously wounds another by shooting at him with intent to kill, or severely but unintentionally injures him by reckless driving, chance often takes a hand in deciding whether the victim dies or recovers, and thus whether the defendant receives a greater or lesser punishment. If the bad result which happens is actually intended, or if it is recklessly produced (especially by one conscious of the risk), it does not seem too harsh to make the severity of his punishment depend somewhat on the actual result, however accidental. Where, however, the result is both unintended and produced without any consciousness of the risk of producing it, it seems too harsh and illogical. Involuntary manslaughter, therefore, ought, on principle, to be limited to the situation of unintended homicide by criminal negligence. ***." LaFave and Scott, Criminal Law (2 Ed. 1986) 683, Section 7.13.
With this background, it must be determined as a matter of statutory construction and legislative intent whether a violation of a minor misdemeanor, R.C. 4511.03, can serve as the necessary predicate for a conviction of R.C. 2903.04(B).
R.C. 2901.04 provides, in pertinent part:
"Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.
'i*** »
See also, State v. Dickinson (1971), 28 Ohio St. 2d 65, 70. R.C. 4511.03 provides:
"The driver of any emergency vehicle or public safety vehicle, when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as *370necessary for safety to traffic, but may proceed cautiously past such red or stop sign or signal with doe regard for the safety of all persons using the street or highway."
R.C. 4511.99, the penalty statute states* in part:
"(E) Whoever violates sections 4511.01 to 4511.76 of the Revised Code, for which no penalty is otherwise provided in this section, is guilty of a minor misdemeanor on a first offense, on a second offense within one year of the first offense such person is guilty of a misdemeanor of the fourth degree!.]"
The classification of offenses statute R.C. 2901.02, states:
"As used in the Revised Code:
"(A) Offenses include aggravated murder, murder, aggravated felonies of the first, second, and third degree, felonies of the first, second, third, and fourth degree, misdemeanors of the first, second, third, and fourth degree, minor misdemeanors, and offenses not specifically classified.
"(F) Any offense not specifically classified is a misdemeanor if imprisonment for not more than one year may be imposed as a penalty.
"(G) Any offense not specifically classified is a minor misdemeanor if the only penalty which may be imposed is a fine not exceeding one hundred dollars.
ti*** II
The Legislative Comment to R.C. 2901.02 notes:
"This section classifies offenses into two degrees of murder, four degrees each of felony and misdemeanor, minor misdemeanors, and offenses not specifically classified. The purpose of the classification is to permit a high level of flexibility in characterizing offenses and assessing penalties for their violation according to their comparative seriousness
"***." (Emphasis added.)
The involuntary manslaughter statute, R.C. 2903.04(B) states:
"No person shall cause the death of another proximate result of the offense's committing or attempting to commit a misdemeanor.
(C) Whoever violates this section is guilty of involuntary manslaughter. ***."
Following the rules of statutory construction, the statutes above must be strictly construed against the state and liberally construed in favor of the accused. The violation of R.C. 4511.03, that served as the predicate for Montecalvo's involuntary manslaughter conviction, is a minor misdemeanor on a first offense as found in the penalty statute It is clear from both the language of the classification statute and legislative comment that minor misdemeanors are classified differently from misdemeanors which range- in degree from first to fourth. The differentiation in classification is significant. When the General Assembly created a separate class of offenses as minor misdemeanors, they did not define such offenses as an additional lesser degree within misdemeanor offenses from the first to fourth degree, but created a distinct class of offenses. This is consistent with the idea that minor misdemeanors are only quasi-criminal behaviors. Thus, as a matter of statutory construction, misdemeanors are a distinct class of offenses from minor misdemeanors with proof of the former necessary for an involuntary manslaughter conviction. The involuntary manslaughter statute requires the commission of a misdemeanor offense and not a minor misdemeanor offense as a necessary predicate, therefore, Montecalvo's conviction should not stand.
Further as a matter of legislative intent, .we note from Chippendale, supra, that the legislature, in enacting the final version of the involuntary manslaughter section, at R.C. 2903.04, removed the vehicular exemption. It is true that the legislature may have intended to permit a manslaughter charge against persons involved in vehicular fatalities, but it does not necessarily follow that a violation of any class of misdemeanor, either minor misdemeanors or first through fourth degree misdemeanors may serve as a predicate for an involuntary manslaughter conviction. It is indeed illogical to equate the operation of a vehicle under the influence of alcohol, as in Chippendale, supra, with a failure of due regard in the operation of an emergency vehicle, on route to an emergency.
I agree with the majority of this panel that most traffic offenses are minor misdemeanors. However, numerical majority alone does not indicate that the General Assembly consider all traffic offenses equally culpable. For example, R.C. 4511.99(A)(1), driving under the influence of drugs or alcohol, is a misdemeanor of the first degree for a first time offense and a court can impose a jail sentence of three days for a first offense. R.C. 4511.99(D) addresses speeding violations and provides that certain violations may be classified as a misdemeanor of the fourth degree for a first offense. Such speeding *371violations include driving faster than 35 mph in a business district or in a school zone during recess or arrival and departure times.
What is needed in the misdemeanor involuntary manslaughter statute is a threshold requirement that states that certain Conduct must have a culpable mental state of criminal negligence or a wanton or reckless mens rea. See, Commonwealth v. Welansky (1944), 316 Mass. 383, 55 N.E. 2d 902. This would avoid the possibility that involuntary manslaughter could become a crime of strict liability with individuals imprisoned without proof of any criminal intent.
In Chippendale, supra, the court recognized that a violation of R.C. 2903.06, aggravated vehicular homicide, will of necessity result in a violation of R.C. 2903.04(B), involuntary manslaughter. Id. at 121. However, as Justice Brown noted in his dissent in Chippendale, supra, a violation of R.C. 2903.07, vehicular homicide, produces the same result. Id. at 123. Negligently, as found in R.C. 2901.22(D) is defined as follows:
"(D) person acts negligently when, because of a substantial lapse from due care [.]"
Although the definition of negligence in the criminal code is structured similarly to the definition of ordinary negligence used in tort law, it defines a higher degree of negligence than ordinary negligence. Legislative Comment to R.C. 2901.22. For one to be negligent under this section, he must be guilty of a substantial departure from due care, whereas ordinary negligence merely requires a failure to exercise due care. Id.
In the instant case, a violation of R.C. 4511.03 occurs when Montecalvo failed to use due regard for the safety of all persons using the street or highway. Without due regard, as used in a similar statute; R.C. 4511.20, the pre1983 version of the reckless operation of a vehicle statute; means that a person must operate such a vehicle in the same manner as would a reasonably prudent person under similar circumstances State v. Martin (1955), 164 Ohio St. 54, paragraph one of the syllabus. Thus, what is used to support Montecalvo's involuntary manslaughter conviction is ordinary negligence. It is indeed ironic that his negligent conduct could not support a conviction for vehicular homicide under R.C. 2903.07, a first degree misdemeanor, but is sufficient to support an aggravated felony of the third degree.
The decision today represents an unwarranted extension of the Chippendale, supra, decision. While the Chippendale court would permit criminal negligence as found in R. C. 2903.07 and define'd in 2901.22(D), sufficient to support a misdemeanor involuntary manslaughter conviction, it does not follow that ordinary negligence as found in R.C. 4511.03 should produce the same result.
A better rule of law would require the commission of a act that would involve a culpable mental state of at least criminal negligence or the intent of willful and wanton, as found in the current R.C. 4511.20 (reckless operation) which has been interpreted to rise above a level of ordinary negligence. See, State v. Earlenbaugh (1985), 18 Ohio St. 3d 19.
When a situation arises that would necessitate the assistance of a paramedic with a vehicle full of life saving equipment, we expect emergency personnel to proceed to the accident site with the utmost dispatch. Ohio law, specifically R.C. 4511.24, exempts the operators of the vehicles from the highway speed limits while operating in the emergency mode or on route to an emergency. It does not follow that the General Assembly intended emergency vehicle operators who fail to use due regard at intersections on the way to a life threatening emergency call and are involved in a vehicular accident to be punished as severely as a drunken driver. Both ambulance driver and an inebriated driver may be involved in a homicide resulting from the operation of a vehicle, but the difference in their culpability is significant. Therefore, as both a matter of statutory construction and legislative intent a minor misdemeanor offense, R.C. 4511.03, standing alone should not serve as the necessary predicate for a conviction of misdemeanor involuntary manslaughter. A state of culpability above ordinary negligence should be a threshold requirement for a conviction under R.C. 2903.04(B).
Further, I find the court's instruction, in its entirety was misleading.
The trial court's instruction implied that a finding of simple negligence or lapse of due care that could not support a conviction for aggravated vehicular homicide, a felony, of the fourth degree, however, a finding of a lapse of due regard was sufficient to support a conviction of the minor misdemeanor, which served as the underlying offense for involuntary manslaughter, an aggravated felony of the third degree. This charge led the jury to believe that the *372involuntary manslaughter charge was a crime lesser in degree and less culpable than the aggravated vehicular homicide charge.
Therefore, based on the foregoing discussion, I would affirm Montecalvo's conviction for a violation of R.C. 4511.03. However, his conviction for involuntary manslaughter as charged in the indictment should be reversed. Further, I would modify the court's order of restitution. A trial court may not impose a condition that is not authorized by law. State v. Bilder (Dec. 9, 1987), Summit App. No. 13190, unreported. The penalty for the commission of a minor misdemeanor is a fine only. See, Legislative Comment to R.C. 2929.21. Accordingly, R.C. 4511.99(E) does not authorize a restitution award for medical bills or funeral expenses.
The imprisonment of a paramedic ambulance driver who committed an act of simple negligence that resulted in a fatal accident will not avenge a young woman's tragic death. The decision reached today represents neither the law nor justice Therefore, I must respectfully dissent.