dissenting. The majority opinion correctly notes 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.’ ” However, it fails to note that violation of R.C. 2903.07, vehicular homicide, produces the same result. R.C. 2903.07(A) provides:
“No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall negligently cause the death of another.” (Emphasis added.)
The negligent operation of a motor vehicle will almost always be a misdemeanor. See, e.g., Stout v. Ellinger (1951), 154 Ohio St. 418, 43 O.O. 346, 96 N.E. 2d 249 (failure to obey a stop sign in violation of predecessor to R.C. 4511.43 is negligence per se). Therefore, where a person causes the death of another by negligently operating a motor vehicle, he will be guilty of both involuntary manslaughter, R.C. 2903.04, and vehicular homicide, R.C. 2903.07.
In enacting the vehicular homicide statutes, the General Assembly made a clear distinction between reckless and negligent conduct. R.C. 2903.06, which requires a mens rea of recklessness, was a fourth degree felony; while R.C. 2903.07, which requires only negligence, was (and is) a first degree misdemeanor. Yet, under the majority’s interpretation, both kinds of conduct may, at the prosecutor’s option, be converted to a third degree felony by charging the offender under R.C. 2903.04(B). Thus, the majority has written the legislature’s distinction out of the law. Our duty is to harmonize the law, not to rewrite it.
The distinction between aggravated vehicular homicide and vehicular homicide is critical in the instant case, since appellee was found not guilty of aggravated vehicular homicide, but guilty of vehicular homicide as a lesser-included offense. Thus, the majority has wiped out the finding in defendant’s favor by a jury.
Accordingly, I would affirm the judgment of the court below.