State v. Nelson

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLANT, v. NELSON, APPELLEE.
                      [Cite as State v. Nelson, 

.]
Appeal dismissed as improvidently allowed.
        (No. 96-2160—Submitted April 2, 1998—Decided May 20, 1998.)
  APPEAL from the Court of Appeals for Tuscarawas County, No. 95AP070051.
                                  __________________
        David C. Hipp, Tuscarawas County Assistant Prosecuting Attorney, for
appellant.
        Tarin Stuart Hale, for appellee Seth Nelson.
                                  __________________
        {¶ 1} The cause is dismissed, sua sponte, as having been improvidently
allowed.
        MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
        PFEIFER, COOK and LUNDBERG STRATTON, JJ., dissent.
                                  __________________
        COOK, J., dissenting.
        {¶ 2} I respectfully dissent. The issue underlying this case is whether R.C.
2903.11(A)(2) felonious assault may be considered a lesser included offense of
attempted murder. A review of appellate court opinions demonstrates that the
appellate jurisdictions have reached conflicting conclusions on this issue. See, e.g.,
State v. Hall (May 17, 1996), Sandusky App. No. 5-95-032, unreported, 

; State v. Hammers (Feb. 28, 1996), Medina App. No. 2469-M, unreported,

; State v. Konoff (Nov. 1, 1991), Ottawa App. No. 90-OT-036,
unreported, 

; State v. Mabry (Nov. 1, 1984), Cuyahoga App. No.
47821, unreported, 

. Moreover, if one is to accept the majority’s
interpretation of the appellate judges’ separate opinions in State v. Williams (1998),
                             SUPREME COURT OF OHIO

, 

, there is also a schism within the Fifth
Appellate District on the issue.     Compare State v. Nelson (Aug. 6, 1996),
Tuscarawas App. No. 95AP070051, unreported, 

, with State v.
Williams (Sept. 23, 1996), Stark App. No. 95-CA-0258, unreported, 

.
        {¶ 3} I believe that we should settle this issue by adopting Judge Hoffman’s
well-reasoned majority opinion in Nelson, which concludes that R.C.
2903.11(A)(2) felonious assault is not a lesser included offense of attempted
murder. By dismissing this case as having been improvidently allowed, the
majority allows the judgment in Nelson to stand. For the benefit of the bar, I would
go further by adopting the opinion as setting forth the proper standard of law in
Ohio.
        PFEIFER and LUNDBERG STRATTON, JJ., concur in the foregoing dissenting
opinion.
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