A woman convicted of felony murder for killing a 5-year-old girl while trying to discipline her was not entitled to have a jury consider a lesser charge of reckless homicide, the Ohio Supreme Court ruled recently.

A Supreme Court majority affirmed the conviction of Ursula Owens for the death of her fiancée’s daughter in March 2017. The Court concluded that Owens was not entitled to a jury instruction that would have allowed the jury to convict her of the less-serious crime of reckless homicide instead of felony murder.

Writing for the Court, Justice R. Patrick DeWine explained that a defendant may be entitled to an instruction that would allow a jury to convict on a less-serious charge when the less-serious charge is a “lesser-included offense” of the more serious offense. But reckless homicide is not a lesser-included offense of felony murder. This is because a charge of felony murder does not require any proof of mens rea, or state of mind, in regard to the death of the victim, he stated.

Reckless homicide, on the other hand, requires proof that the defendant recklessly inflicted harm on the victim. As a result, reckless homicide is not a lesser-included offense of felony murder, the Court concluded.

Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer and Melody J. Stewart joined Justice DeWine’s opinion. Chief Justice Maureen O’Connor concurred in judgment only.

Justice Michael P. Donnelly also concurred in judgment only, stating that he was reluctant to say reckless homicide is never a lesser-included offense of felony murder, especially since a 2009 Supreme Court decision stated reckless homicide can be a lesser-included offense of aggravated felony murder.

Owens was engaged to T.C., and was living with T.C. and T.C.’s daughter in Cleveland. Owens’ son was spending the night at their apartment and testified that he awoke in the morning to the sounds of T.C. and Owens screaming at T.C.’s daughter. The boy said he witnessed T.C. attempting to discipline the child, then Owens telling T.C. that the discipline was not harsh enough.

Owens then punched child’s stomach, arms and head and stepped on the girl’s back, Owens’ son said. She also picked up the girl twice and threw her against the wall, and then against a dresser. The girl lost consciousness. Owens and T.C. placed the child on her bed and attempted to wake her but were unsuccessful.

Later in the evening, T.C. noticed the girl’s heartbeat had slowed and called 911. The girl was taken to a hospital and died the next day from a traumatic brain injury.

Owens was charged with aggravated murder, felony murder and child endangering. At Owens’ trial, her attorney asked the judge to instruct the jury on reckless homicide as a lesser-included offense of both murder charges. The trial court gave the instruction that reckless homicide could be considered a lesser offense to aggravated murder, but not to felony murder.

The jury found Owens not guilty of aggravated murder, but guilty of the lesser offense of reckless homicide. The jury also found Owens guilty of felony murder based on the felonious assault of the child, which caused the child’s death. Owens was sentenced to 25 years to life.

Owens appealed her sentence to the Eighth District Court of Appeals, arguing she was entitled to a reckless homicide instruction for both murder charges. The appellate court rejected her argument.

Owens appealed the decision to the Supreme Court, which agreed to hear the case.

Justice DeWine explained that a criminal defendant is sometimes entitled to have a trial judge instruct the jury to consider convicting the accused of a lesser offense as an alternative to convicting for the more severe offense for which the accused is charged.

An offense qualifies as a lesser-included offense when the greater offense cannot be committed without the lesser offense also being committed. The Court compared the elements in state law for felony murder and reckless homicide to determine if reckless homicide qualifies as a lesser charge.

Under R.C. 2903.02(B), a person commits felony murder if the death of another is caused by the result of committing or attempting to commit an “offense of violence that is a felony.” Offenses of violence are defined in a separate law, which contains a list of offenses that qualify, including felonious assault. 

Owens’ charge of felony murder was based on the felonious assault of the child, which led to the child’s death. A person commits felonious assault when one “knowingly” causes the serious physical harm to another, the opinion stated.

To prove felony murder, the prosecution does not need to prove a state of mind as to whether the accused knowingly or recklessly caused the victim’s death. Instead, when the felony murder offense is based on felonious assault the prosecution must prove the accused knowingly caused serious physical harm to another. If that physical harm leads to a death, then the accused can be convicted of felony murder, the Court explained.

In contrast, the Court noted, reckless homicide is defined in R.C. 2903.41 as “recklessly causing the death of another.”

“It is evident that reckless homicide has an element that felony murder lacks – recklessness with regard to the death of the victim. As a result, reckless homicide is not a lesser included[offense to felony murder,” the opinion stated.

Owens maintained that the state of mind needed to prove felonious assault, which is “knowingly,” is imported to the felony-murder charge, and that the felony-murder law should be interpreted to require the prosecution to prove the person knowingly meant to cause death when the person assaulted the victim. If the element of “knowingly” causing a death must be proved, then a jury could consider the lesser state of mind of “recklessly,” which makes reckless homicide a lesser-included charge, Owens asserted.

The Court rejected this argument, stating that someone can knowingly cause physical harm without “knowingly — or even recklessly — causing another’s death.” Because it is possible to commit felony murder without necessarily committing reckless homicide, the trial court correctly chose not to instruct the jury to consider reckless homicide as a lesser-included charge for felony murder, the Court concluded.

In his concurring opinion, Justice Donnelly wrote that based on the facts of Owens’ case, an instruction to the jury of reckless homicide was not warranted. However, it was unnecessary for the Court “to make such a sweeping declaration in this case,” he noted, especially since the majority opinion did not discuss the Court’s 2009 State v. Trimble decision.

He stated that in Trimble, the Court stated that reckless homicide could be a lesser-included offense to aggravated felony murder.

“I am not convinced that reckless homicide can never be a lesser-included offense to felony murder. The better course is to simply decide the case before us, without handicapping all future defendants seeking a reckless-homicide instruction in a felony-murder case,” he wrote.