dissenting. In State v. Rohdes (1986), 23 Ohio St. 3d 225, 23 OBR 382, 492 N.E. 2d 430, the defendant had been indicted for murder with a firearm specification. At the conclusion of the evidence, the state requested that the court instruct the jury “on involuntary manslaughter based on the underlying offense of aggravated menacing. ” (Emphasis added.) Said instruction was given and the defendant was later convicted of that offense. On appeal, the defendant argued that the instruction was improper since involuntary manslaughter, based on the underlying offense of aggravated menacing was not a lesser included offense of murder. This argument was predicated on the self-evident observation that in some instances murder can be committed without committing aggravated menacing (i.e., one may be murdered without creating apprehension in the mind of the victim that serious physical harm is likely to befall him). The decision of the court, concurred in by some of the members of today’s majority, rejected the argument by observing that it “ignores Ohio law requiring the focus to be on what elements a trier of fact could reasonably find from the evidence.” Rohdes, supra, at 227, 23 OBR at 384, 492 N.E. 2d at 432. Thus, if the evidence would support the lesser offense, even though it contains an element not present in the greater charge, a jury instruction is warranted and a conviction is sustainable with respect to the lesser offense.
In the case subjudice, the converse of the Rohdes situation is presented. Here, the defense requested, on the basis of Rohdes, a jury instruction on aggravated menacing. The trial court denied the request and the court of appeals reversed on authority of Rohdes. This court today eschews the Rohdes evidence test and adopts explicitly an *288elements test for lesser included offenses. My disagreement with the majority decision does not concern the relative merits of the two doctrines. Rather, I am disturbed that the holding today leaves the, impression on bench, bar and the general public that the rule varies with the outcome of the case. While the evidence test was sufficient to sustain a conviction on a lesser charge in Rohdes, this test apparently is insufficient to require an instruction on the lesser charge in the present case. Under the facts of this case, I believe the jury, if given the opportunity, could have reasonably concluded that defendant was guilty of the lesser offense of aggravated menacing. Given the “modification” of the Rohdes test by the majority and the prejudicial impact thereof in the instant case, it is my urgent hope that today’s holding, at the minimum, will result in a comprehensible standard by which to ascertain lesser included offenses. It is my further hope that, once announced, the standard will be applied consistently in the future.
An equally troubling aspect of the majority opinion is its summary consideration of the trial court decision to admit, over objection, clearly inadmissible hearsay evidence contained in the tape recording of an interview between investigating officers and the accused. On no less than seven separate occasions, the deputy sheriffs conducting the interview engaged in conclusory statements as to the probative value of the case against the defendant. Certain crucial references bore directly on the intent of defendant to commit murder. In most instances, the references were phrased in such a manner as to create in the minds of the jurors a conclusive presumption relative to the defendant’s guilt. On three occasions the officers commented adversely upon the truth and veracity of the defendant. One excerpt from the tape is particularly illuminating. In the course of the interview the deputy sheriff remarked:
“We know these things happened, okay. The charges are there. We know that you and Rick had an argument. We know that you threatened him. We know that you either tried to take his head off with that shot gun or you tried to scare the hell out of him by firing that thing. We know that later on you guys got in an argument and then he had his hand on the shot gun and another shot was fired. We know that later on you went into the kitchen (inaudible) talking to him for awhile and you got a knife. We know that he ran out of the house and left to call the police because he was terrified that you were going to kill him. We know that you took his car. We know that you went down and took a few other people hostage and took their money and took them down to Hillsboro and then dumped them off and then went to Portsmouth. Those things are facts. They can be proved.”
It was highly inappropriate for the trial court to admit this statement into evidence. It is not only rife with hearsay but is composed almost exclusively of conclusory remarks concerning the weight and probative value of the evidence. The court, prior to submitting the case to the jury, quite appropriately instructed its members that the opening and closing statements by counsel and the characterizations of the testimony therein were not evidence. It is, therefore, absolutely incongruous that the court would permit the characterization of the evidence by an investigating officer to be considered by the jury and to allow such references to go unchallenged and unexplained. The error is particularly acute where such unsubstantiated in*289ferences are compounded by the probable playing of the inadmissible and prejudicial taped testimony repeatedly in the jury room.
The Rules of Evidence have been adopted to assure that only probative and non-prejudicial evidence be considered by a jury. If the rules are to be an effective tool in protecting the integrity of the judicial process, they cannot be disregarded during trial where to do so would result in the presentation to the jury of clearly inadmissible evidence. Particularly where violation of the rules occurs in a criminal context, procedural due process demands that close scrutiny be given to the prejudicial impact occasioned thereby. In the case at bar, the clear disregard for a rudimentary principle of evidence law cannot be characterized as harmless beyond a reasonable doubt.
I must therefore dissent from the holding of the majority today. It is my belief that the Rules of Evidence and the law pertaining to lesser included offenses must be comprehensible, enforceable and consistent. When viewed in this context, the conclusion is inescapable that the judgment of the court of appeals should be affirmed as to its finding warranting a lesser-included-offense instruction and reversed as to defendant’s cross-appeal herein.