State v. Parker

Citations

• 2022 Ohio 377

Syllabus

Lesser included jury instruction abuse of discretion rape sexual battery defendant's claim of victim consent complete defense. A trial court's determination of whether to give a requested lesser-included instruction is reviewed for an abuse of discretion. The question of whether a particular offense should be submitted to the jury as a lesser-included offense involves a two-tiered analysis. The first tier is a purely legal question under which it is determined whether one offense is generally a lesser-included offense of the charged offense. Under the second tier, the trial court considers the evidence and determines whether a jury could reasonably find the defendant not guilty of the charged offense, but guilty of the lesser-included offense. Sexual battery under R.C. 2907.03(A)(2) is not a lesser-included offense of rape under R.C. 2907.02(A)(2). Sexual battery under R.C. 2907.03(A)(1) is a lesser-included offense of rape under R.C. 2907.02(A)(2). Where a defendant claims that the victim consented to the sexual conduct no instruction on the lesser-included offense is warranted. The jury would have to choose between a complete defense, and therefore acquittal, or the commission of the crime of rape.