COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59366 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DERF WHALEN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-248313. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David L. Doughten, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 -2- MATIA, P.J.: Defendant-appellant, Derf Whalen, appeals his conviction for the offenses of felonious assault and assault. The appellant's appeal is not well taken. I. THE FACTS A. THE ARREST OF THE APPELLANT On July 3, 1989, members of the Cleveland Police Department responded to a reported physical beating of a minor child at 863 West 50 Street, Cleveland, Ohio. Upon investigation, the appellant was arrested and charged with the attempted murder of a three-year-old child. In addition, the appellant was arrested for the felonious assault of his wife. B. THE INDICTMENT OF THE APPELLANT On January 11, 1990, the appellant was indicted by the Cuyahoga County Court of Common Pleas for one count of attempted murder in violation of R.C. 2903.02 and R.C. 2923.02 with a violence specification and one count of felonious assault in violation of R.C. 2903.11 with a violence specification. It should be noted that the indictment of January 11, 1990 was a reindictment of the offense of attempted murder and felonious assault as originally brought against the appellant on September 10, 1989. C. THE ARRAIGNMENT OF THE APPELLANT AND NON-JURY TRIAL On January 11, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to the offense of attempted murder and felonious assault. Immediately following the arraignment, -3- the appellant waived his right to a trial before a jury at which time a non-jury trial was commenced before the Cuyahoga County Court of Common Pleas. At the conclusion of the trial, the trial court found the appellant not guilty of the offense of attempted murder but guilty of the lesser included offense of felonious assault. In addition, the trial court found the appellant not guilty of the charged offense of felonious assault but guilty of the offense of assault. D. THE SENTENCE OF THE TRIAL COURT Following the verdict of the trial court, the appellant was sentenced to incarceration within the Correctional Reception Center, Orient, Ohio, for a term of eight years to fifteen years with regard to the offense of felonious assault and a term of incarceration of six months with regard to the offense of assault. The trial court further ordered that the sentences of incarceration run concurrent with each other. E. THE APPELLANT'S TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offenses of felonious assault and assault. II. THE SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: "THE CONVICTION OF FELONIOUS ASSAULT IS INVALID AS THE STATE IS PRECLUDED FROM CHARGING UNDER THIS STATUTE WHERE A MORE SPECIFIC STATUTE OF CHILD ENDANGERING PURSUANT TO R.C. 2919.22 CONTROLS THIS OFFENSE." -4- A. ISSUE RAISED: THE APPELLANT WAS IMPROPERLY CONVICTED OF THE LESSER INCLUDED OFFENSE OF FELONIOUS ASSAULT The appellant, in his sole assignment of error, argues that he was improperly convicted of the offense of felonious assault which is a lesser included offense of attempted murder. Specifically, the appellant argues that he should have been convicted of the offense of endangering children, a lesser included offense, which precisely restricted the conduct of the appellant vis-a-vis injury to the minor child. The appellant's sole assignment of error is not well taken. B. APPELLANT HAS WAIVED HIS CLAIMED ERROR An initial review of the record before this court clearly demonstrates that the appellant has waived any error associated with the trial court's finding of felonious assault as a lesser included offense of attempted murder. The appellant, although provided with an opportunity, failed to apprise the trial court of any potential error with regard to the possible lesser included offenses of attempted murder. Thus, the appellant has waived his claimed error. State v. Williams (1977), 51 Ohio St. 2d 112. See also: State v. Edwards (1985), 26 Ohio App. 3d 199; State v. Craft (1977), 52 Ohio App. 2d 1. Notwithstanding the failure of the appellant to preserve for purposes of appeal the claimed error, a substantive review of the record indicates that the appellant was properly convicted of the offense of felonious assault. -5- C. PROSECUTION POSSESSES AUTHORITY TO SELECT CRIME FOR WHICH A DEFENDANT WILL BE PROSECUTED Initially, it must be observed that the United States Supreme Court has affirmatively held that the prosecution is free to select under which criminal statute a defendant will be prosecuted where multiple offenses stem from the same criminal course of conduct. "This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. See United States v. Beacon Brass Co., 344 U.S. 43, 45- 56, 73 S.Ct. 77, 79, 97 L.Ed. 61 (1952); Rosenberg v. United States, 346 U.S. 273, 294, 73 S.Ct. 1152, 1163, 97 L.Ed. 1607 (1953)(Clark, J., concurring, joined by Five Members of the Court); Oyler v. Boles 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); SEC v. National Securities, Inc., 393 U.S. 453, 468, 89 S.Ct. 564, 572, 21 L.Ed.2d 668 (1969); United States v. Naftalin, 441 U.S., at 778, 99 S.Ct., at 2084. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. See Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196 (1869); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)." U.S. v. Batchelder (1979), 442 U.S. 114, at 123. D. APPELLANT PROPERLY INDICTED FOR OFFENSE OF ATTEMPTED MURDER In the case sub judice, the seriousness of the injuries sustained by the three year child which resulted from the appellant's violent behavior provided the prosecution with an adequate factual basis to support the indictment of the appellant for the offense of attempted murder. Pursuant to the -6- application of U.S. v. Batchelder, supra, the appellant was properly indicted for the offense of attempted murder. The indictment of the appellant for the offense of attempted murder coupled with the evidence and testimony adduced at trial further limited the lesser included offenses of attempted murder which could be considered by the trial court. E. STANDARD OF REVIEW FOR A LESSER INCLUDED OFFENSE The Supreme Court of Ohio, with regard to the issue of a lesser included offense, established in State v. Kidder (1987), 32 Ohio St. 3d 279, that: "An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot, as statutorily defined, ever be committed without the offense of the lesser degree, as statutorily defined, also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. Id. at syllabus, paragraph one. (Citations omitted). F. FELONIOUS ASSAULT IS A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER The offense of felonious assault, a violation of R.C. 2903.11, is indeed a lesser included offense of the offense of attempted murder since the three-part test of Kidder is met: 1) felonious assault is a crime of a lesser degree as compared to attempted murder; 2) the offense of attempted murder cannot be committed without the offense of felonious assault also being committed; and 3) some element of the offense of attempted murder, to cause the death of another, is not required to prove -7- the commission of the lesser offense. See also: State v. Chatmon (May 2, 1985), Cuyahoga App. No. 48569, unreported; State v. Mabry (Sept. 15, 1982), Cuyahoga App. No. 43649, unreported; State v. Parra (Feb. 22, 1979), Cuyahoga App. No. 38706, unreported. G. ENDANGERING CHILDREN IS NOT A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER To the contrary, the offense of endangering children is not a lesser included offense of attempted murder since the three- part test of Kidder is not met. R.C. 2919.22, which defines the offense of endangering children provides that: "(A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body. "(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: "(1) Abuse the child; "(2) Torture or cruelly abuse the child; "(3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel -8- manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child; "(4) Repeatedly administer unwarranted disciplinary measures to the child, when there is a substantial risk that such conduct, if continued, will seriously impair or retard the child's mental health or development; "(5) Entice, coerce, permit, encourage, compel, hire, employ, use, or allow the child to act, model, or in any other way participate in, or be photographed for, the production, presentation, dissemination, or advertisement of any material or performance that he knows or reasonably should know is obscene, sexually oriented matter, or is nudity-oriented matter; "(6) Allow, entice, encourage, or force the child to solicit for or engage in prostitution as a prostitute, or otherwise facilitate a child in soliciting for or engaging in prostitution as a prostitute. As used in this division, 'prostitute' has the same meaning as in section 2907.01 of the Revised Code." The offense of endangering children fails to meet the second requirement of the Kidder test. The commission of the offense of attempted murder does not automatically result in the commission of the offense of endangering children. Specifically, the offense of attempted murder does not involve a violation of a duty of care, protection, or support of a child, the abuse of a child, the administration of corporal punishment so as to create a substantial risk of serious physical harm, the photographing of the child or the involvement of the child in prostitution. -9- H. APPELLANT WAS PROPERLY CONVICTED OF OFFENSE OF FELONIOUS ASSAULT The offense of endangering children cannot be a lesser included offense of attempted murder. In addition, the evidence adduced at trial, which involved the serious physical harm sustained by the three year old child, fails to fall within any of the parameters of conduct prohibited by R.C. 2919.22 which defines the offense of endangering children. Thus, the appellant was properly convicted of the offense of felonious assault and the appellant's sole assignment of error is not well taken. Judgment affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., CONCURS; HARPER, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .