[Cite as State v. Deanda, 2012-Ohio-408.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-10-23 

 v. 

DAVID L. DEANDA, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 09-CR-0210 

Judgment Reversed and Cause Remanded 

Date of Decision: February 6, 2012 

 

APPEARANCES: 

John M. Kahler, II for Appellant 

Derek W. DeVine and Rhonda L. Best for Appellee 
Case No. 13-10-23 

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WILLAMOWSKI, J.

{¶1} Defendant-appellant David L. Deanda (“Deanda”) brings this appeal 

from the judgment of the Court of Common Pleas of Seneca County finding him 

guilty of felonious assault and sentencing him to seven years in prison. For the 

reasons set forth below, the judgment is reversed. 

{¶2} On September 19, 2009, Deanda was involved in a fight with David 

B. Swartz (“Swartz”). During the fight, Deanda grabbed a knife and proceeded to 

stab the victim multiple times in the neck and chest. Deanda was yelling that he 

was going to kill Swartz. When the police and emergency medical technicians 

arrived, Deanda continued to yell that he was going to kill Swartz. Swartz was 

eventually life flighted to a hospital due to his injuries. 

{¶3} On September 23, 2009, the Seneca County Grand Jury indicted 

Deanda on one count of attempted murder, a felony of the first degree, in violation 

of R.C. 2923.02 and 2903.02(A). A jury trial was held from May 17 to May 21, 

2010. At the conclusion, the jury convicted Deanda of the lesser included offense 

of felonious assault, a felony of the second degree. On May 21, 2010, a 

sentencing hearing was held. The trial court sentenced Deanda to serve seven 

years in prison. Deanda appeals from these judgments and raises the following 

assignments of error. 
Case No. 13-10-23 

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First Assignment of Error 

The trial court erred to the prejudice of [Deanda] by permitting 

[the State] to introduce various instances of inadmissible hearsay 

testimony over the objection of the defense in violation of the 

Fifth, Sixth, and Fourteenth Amendments to the United States 

Constitution, and Article I, Section 10 of the Ohio Constitution. 

Second Assignment of Error 

The trial court erred to the prejudice of [Deanda] by denying the 

proffered testimony of Joey Deanda and Vicki Deanda into 

evidence. 

Third Assignment of Error 

[Deanda’s] conviction should be overturned because certain 

statements made during the prosecution’s rebuttal argument at 

closing amounted to prosecutorial misconduct. 

Fourth Assignment of Error 

[Deanda’s] conviction should be overturned because the trial 

court’s instruction of felonious assault as a lesser included 

offense of attempted murder is erroneous and thus the trial 

court committed plain error. 

Fifth Assignment of Error 

[Deanda’s] conviction was against the manifest weight of the 

evidence. 

In the interest of clarity, we will address the assignments of error out of order. 

{¶4} The fourth assignment of error alleges that the trial court erred by 

instructing the jury that felonious assault is a lesser included offense of attempted 

murder. “[A] criminal offense may be a lesser included offense of another if (1) 
Case No. 13-10-23 

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the offense carries a lesser penalty than the other; (2) the greater offense cannot, as 

statutorily defined, ever be committed without the lesser offense, as statutorily 

defined, also being committed; and (3) some elements of the greater offense is not 

required to prove the commission of the lesser offense.” State v. Barnes, 94 Ohio 

St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240 (citing State v. Deem (1988), 40 Ohio 

St.3d 205, 533 N.E.2d 294. The Ohio Supreme Court in Barnes determined that 

R.C. 2903.11(A)(2) is not a lesser included offense of R.C. 2903.02(A) and R.C. 

2923.02(A). Id. 

{¶5} However, the Ohio Supreme Court did modify this test in State v. 

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889. In Evans, the 

Supreme Court removed the word “ever” from the test and set up a modified test. 

Id. at ¶25. 

In determining whether an offense is a lesser included offense of 

another, a court shall consider whether one offense carries a 

greater penalty than the other, whether some element of the 

greater offense is not required to prove commission of the lesser 

offense, and whether the greater offense as statutorily defined 

cannot be committed without the lesser offense as statutorily 

defined also being committed. 

Id. at paragraph 2 of the syllabus. When reviewing the offenses, the offenses must 

be examined in the abstract and the specific facts of the case may not be 

considered. Id. at ¶25. 
Case No. 13-10-23 

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The state contends that the strict comparison of elements 

required by the second part of the Deem test has produced 

incongruous and illogical results that fail to hold criminal 

defendants accountable for crimes in the absence of indictments 

for each related offense. The state urges us to modify the second 

part of the Deem test to permit courts to consider the particular 

facts and circumstances of each case in determining whether one 

offense is a lesser included offense of another, or to consider 

whether “the offenses are so similar that the commission of one 

offense will necessarily result in commission of the other,” as we 

have done in our analogous test for allied offenses of similar 

import. * * * 

On the other hand, [the defendant] contends that adoption of the 

state’s fact-based approach will impinge upon a criminal 

defendant’s constitutional right to a grand jury indictment, 

permitting convictions for offenses that were either considered 

and rejected or never even contemplated by the grand jury. He 

asserts that the state’s proposed test would create uncertainty 

for prosecutors, defendants, and the courts by making it 

impossible to predict, before trial, what lesser included offenses 

would be at issue. In addition, [the defendant] argues that 

because we have previously held that robbery is not a lesser 

included offense of aggravated robbery, applying a contrary 

ruling would violate his due process rights. 

We have consistently held that in applying Deem to lesser 

included offenses, “ ‘ “ ‘the evidence presented in a particular 

case is irrelevant to the determination of whether an offense, as 

statutorily defined, is necessarily included in a greater offense.’ 

”’” * * * Indeed, in Barnes, we rejected the state’s request that 

we consider the specific facts of the case in determining whether 

felonious assault with a deadly weapon was a lesser included 

offense of attempted murder. * * * But we note that the facts of a 

case are relevant in determining whether a court should instruct 

the jury on a lesser included offense. Specifically, we have stated 

that after the three parts of the Deem test are met, “[i]f the 

evidence is such that a jury could reasonably find the defendant 

not guilty of the charged offense, but could convict the defendant 
Case No. 13-10-23 

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of the lesser included offense, then the judge should instruct the 

jury on the lesser included offense.” * * * Based upon the 

foregoing, we decline the state’s invitation to abandon our 

precedent in this regard. 

Id. at ¶11-13. Although the words need not be identical, the elements must match 

in such a way that one cannot commit the greater offense without committing the 

lesser offense. Id. at ¶22. 

{¶6} In this case, Deanda was charged with a violation of R.C. 2903.02(A) 

and R.C. 2923.02(A), attempted murder. He was convicted of felonious assault in 

violation or R.C. 2903.11(A)(1). A review of the offenses in this case show that 

attempted murder, as charged, was a felony of the first degree, and felonious 

assault, as convicted, was a felony of the second degree. Thus, there is a greater 

potential punishment for the attempted murder charge than the felonious assault 

charge. Thus, the first part of the Deem test is met. 

{¶7} Next we look at the statutory elements in the abstract. “No person 

shall purposely cause the death of another * * *.” R.C. 2903.02(A). “No person, 

purposely or knowingly, and when purpose or knowledge is sufficient culpability 

for the commission of an offense, shall engage in conduct that, if successful, 

would constitute or result in the offense.” R.C. 2923.02(A). “[A] person is guilty 

of attempted murder when he or she ‘purposely * * * engage[s] in conduct that, if 

successful, would constitute or result in’ the purposeful killing of another.” 
Case No. 13-10-23 

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Barnes, 94 Ohio St.3d at 26. Deanda was found guilty of violating R.C. 

2903.11(A)(1), which states that no person shall knowingly cause serious physical 

harm to another. R.C. 2903.11(A)(1). In this case, the offense of attempted 

murder did require the State to prove an additional element, that the serious 

physical harm could result in death. Thus, the second part of the Deem test is met. 

{¶8} Finally, this court must determine whether the greater offense can be 

committed without committing the lesser offense as statutorily defined. Despite 

the State’s argument to the contrary, it is possible to commit attempted murder 

without violating R.C. 2903.11(A)(1). For example, if one were to put cyanide in 

another’s food, but the intended victim does not eat it, the first party is still guilty 

of attempted murder because they purposely committed the act that, if successful, 

would result in the death of the victim. However, the first party would not have 

violated R.C. 2903.11(A)(1) because no serious physical harm occurred.1

 

Following the reasoning of the Ohio Supreme Court in Barnes, this court must 

find that R.C. 2903.11(A)(1) is not a lesser included offense of attempted murder. 

Since Deanda was neither indicted on felonious assault, nor is it a lesser included 

offense of attempted murder, it is an error affecting a substantial right and is thus 

reversible error. The fourth assignment of error is sustained. 

 

1

 This court would find however that attempted felonious assault is a lesser included offense of attempted 

murder because you cannot attempt to cause the death of another without attempting to cause serious 

physical harm. 
Case No. 13-10-23 

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{¶9} The dissent argues that given the facts of this case, the very acts which 

formed the basis of the attempted murder charge were felonious assault. We 

agree. The dissent then concludes that under the facts of this case, we should find 

that felonious assault is a lesser included offense of attempted murder. This 

conclusion is not supported by the holding in Evans, which clearly stated that the 

individual facts of the case may not be considered.2

 Instead, the Evans court 

specifically stated that we must consider whether the greater offense cannot be 

committed without committing the lesser offense. Id. at ¶26. 

{¶10} In the first assignment of error, Deanda claims that the trial court 

erred by allowing hearsay testimony to be presented over objection by the defense. 

“’Hearsay’ is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

Evid.R. 801(C). Unless the statement meets one of the exceptions to the rule, 

hearsay is not admissible in a trial. Evid.R. 802. 

{¶11} In support of his argument, Deanda presents four statements that he 

claims should have been excluded. The first is Officer Laverne Keefe’s statement 

that Swartz had stated that Deanda was the person who injured him. Tr. 176-77. 

The third and fourth instances of hearsay statements were found in the testimony 

of Lieutenant Michelle Craig. She testified that Swartz called and said the 

 

2

 We note, as does the dissent herein, that the Supreme Court in its analysis does appear to consider the 

facts. However, the Supreme Court specifically said we may not do so. We must do as they say. 
Case No. 13-10-23 

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hospital was going to keep him and that Deanda was the one who caused the 

injuries. Tr. 476-77. Deanda’s counsel objected on the basis of hearsay, but the 

objections were overruled. No exception exists for identity. The first statement 

was made after the scene was secure and Deanda was being escorted away. The 

other two statements were made in a phone call to the police station made by 

Swartz from the hospital. There is no indication in the record that the statements 

meet any of the exceptions set forth in Evid.R. 803. Repeating the out of court 

statement of the victim that the defendant was the one responsible for his injuries 

and that the hospital was keeping him was meant to persuade the jury that the 

defendant was guilty and is thus a hearsay statement. 

{¶12} The second instance of hearsay to which Deanda objects is a 

statement by Detective Shawn Vallery as to what he was told by an unidentified 

forensic nurse at St. Vincent’s Medical Center concerning the condition of the 

victim. The statements of an unidentified third party concerning the injuries to the 

victim are hearsay. The State argues that these statements were merely offered to 

show how the investigation progressed. Although this may be true as well, the 

statements themselves were also offered to prove the truth of the matter asserted, 

i.e. the extent of the injuries. The witness could have explained the progress of the 

investigation without repeating the statements of third parties. However, since this 

court has already determined that prejudicial error occurred, the issue raised in the 
Case No. 13-10-23 

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first assignment of error of whether the admission of hearsay statements is 

prejudicial or harmless error is moot and will not be addressed by this court. 

{¶13} Having found prejudicial error in the fourth assignment of error, the 

second, third, and fifth assignments of error are also moot and need not be 

addressed. The judgment of the Court of Common Pleas of Seneca County is 

reversed and the matter is remanded for further proceedings. 

Judgment Reversed and 

Cause Remanded 

ROGERS, J. concurs. 

SHAW, P.J., DISSENTS 

{¶14} The majority concludes that because it is possible in the abstract, to 

conceive of a factual scenario where one might commit attempted murder without 

committing felonious assault, that felonious assault cannot be a lesser included 

offense of attempted murder in the case before us. The “abstract possibility 

analysis” derives from the second prong of a three part test set forth in State v. 

Deem, (1988), 40 Ohio St.3d 205. Specifically, the Deem test stated that before a 

trial court may instruct upon a lesser included offense, the court must find that 

“the greater offense cannot, as statutorily defined, ever be committed without the 
Case No. 13-10-23 

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lesser offense, as statutorily defined, also being committed.” Deem at paragraph 

three of the syllabus (Emphasis added). 

{¶15} The majority further cites the subsequent decision of the Ohio 

Supreme Court in State v. Barnes, (2002), 94 Ohio St.3d 21, which also strictly 

relied upon the Deem test, in order to determine that felonious assault was not a 

lesser included offense of attempted murder.

{¶16} However, in State v. Evans, (2009), 122 Ohio St.3d 381, the 

Supreme Court of Ohio acknowledged the implausible results that courts were 

reaching in attempting to follow the purely hypothetical and speculative analysis 

that seemed to be mandated by the language of the Deem test. As a result, the 

Court in Evans expressly rejected the use of abstract possibilities as the primary 

tool of analysis for lesser included offenses in Ohio and modified the language of 

Deem accordingly, by specifically deleting the word “ever” from the second prong 

of the Deem test. See Evans, at 383. As the Court stated, this was done to ensure 

that implausible scenarios advanced by the parties to suggest the remote 

possibility that one offense could conceivably be committed without the other 

being committed would no longer “derail a proper lesser included offense 

analysis.” Id. at 387. 

{¶17} Thus the “clarified” test for lesser included offenses in Ohio, as 

announced by Evans, now states: 
Case No. 13-10-23 

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In determining whether an offense is a lesser included offense of 

another, a court shall consider whether one offense carries a 

greater penalty than the other, whether some element of the 

greater offense is not required to prove commission of the lesser 

offense, and whether the greater offense, as statutorily defined, 

cannot be committed without the lesser offense as statutorily 

defined also being committed. (State v. Deem (1988), 40 Ohio 

St.3d 205, clarified.) 

Evans at second paragraph of the syllabus. 

 

{¶18} The Evans court declined to further modify Deem by adopting a test 

for lesser included offenses based entirely on the facts and circumstances of each 

case. Evans at 386. However, it is also clear that under Evans the factual context 

of a case is no longer entirely irrelevant, and may be considered, both in 

conducting a more pragmatic comparison of statutory elements than permitted by 

Deem, and insofar as it may be necessary to determine whether the evidence 

supports an instruction on the lesser charge. 

But we note that the facts of a case are relevant in determining 

whether a court should instruct the jury on a lesser included 

offense. Specifically, we have stated that after the three parts of 

the Deem test are met, 'if the evidence is such that a jury could 

reasonably find the defendant not guilty of the charged offense, 

but could convict the defendant of the lesser included offense, 

then the judge should instruct the jury on the lesser included 

offense.' (Emphasis in original) (Citations omitted.) 

Evans at 385. 

{¶19} In concluding that robbery was a lesser included offense of 

aggravated robbery in the case before it, the Evans court was called on to 
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determine whether the conduct of “displaying, brandishing, indicating possession, 

or using a deadly weapon” in the attempt or commission of a theft offense as 

stated in the greater offense of aggravated robbery, [R.C. 2911.01(A)(1)], also 

constituted “a threat to inflict physical harm” in the attempt or commission of a 

theft offense, as defined in the lesser offense of robbery, [R.C. 2911.02(A)(2)]. 

{¶20} The Evans court’s rationale in reaching an affirmative answer is 

instructive to the case before us: 

While these elements are not identically phrased, we have 

recognized: 'The test is not a word game to be performed by rote 

by matching the words chosen by the legislature to define 

criminal offenses. Some offenses, such as aggravated murder 

and murder, lend themselves to such a simple matching test; 

others do not. * * * We would also note that the elements of the 

offenses are 'matched' only * * * to determine if 'some element' 

of the greater offense is not found in the lesser offense. The 

proper overall focus is on the nature and circumstances of the 

offenses as defined, rather than on the precise words used to define 

them. (Citation omitted). Thus, the test does not require 

identical language to define the two offenses, but focuses upon

whether the words used in the statute defining the greater 

offense will put the offender on notice that an indictment for that 

offense could also result in the prosecution of the lesser included 

offense. 

Evans at 386. (Emphasis added.) 

{¶21} Under the quoted language from Evans, set forth above, the reference 

to the “circumstances of the offenses as defined” necessarily implies that at the 

very least, the factual conduct described in the statutory offense is relevant to 
Case No. 13-10-23 

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provide a realistic context for conducting the necessary comparisons of statutorily 

defined offenses. Additionally, as the Evans court does in the aggravated 

robbery/robbery comparisons conducted below, the statutory offenses are now to 

be examined for possible compatibility instead of for any possible incompatibility 

as in Deem. 

{¶22} In Evans, the two statutory offenses at issue describe conduct in 

sufficient detail such as “displaying a deadly weapon” and a “threat to inflict 

physical harm” to enable the court to make the comparisons necessary to 

determine whether one type conduct also included the other in that case Thus, 

upon first concluding on its own rationale that “the threat of physical harm” in the 

robbery statute need not be explicit, but could also be an implied threat, the Evans

court was then able to compare the conduct described in the aggravated robbery 

offense with the conduct described in the robbery statute and conclude that “[o]ne 

cannot display, brandish, indicate possession of, or use a deadly weapon in the 

context of committing a theft offense without conveying an implied threat to inflict 

physical harm. It is the very act of displaying, brandishing, indicating possession, 

or using the weapon that constitutes the threat to inflict harm because it 

intimidates the victim into complying with the command to relinquish property 

without consent.” (Emphasis added.) Evans at 386. 
Case No. 13-10-23 

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{¶23} However, unlike Evans, in the case before us, the operative language 

of the attempted murder statute is only the allegation that the defendant did 

“engage in conduct that, if successful, would constitute or result in the offense” [of 

murder]. (Emphasis added.) The element of “conduct” as used in the attempt 

statute [R.C. 2923.02(A)] is unique in that it carries no further statutory definition 

or description of its own but instead, clearly requires the incorporation of whatever 

elements are present in the offense attempted, in this case the offense of murder. 

{¶24} One could argue that as the only available reference for any 

comparison or analysis, the undefined word “conduct” as used in the attempt 

statute not only invokes, but necessarily requires reference to the factual 

allegations of conduct in any given case in order to conduct a proper lesser 

included offense analysis for an attempt charge under Evans. In this case, the 

multiple stabbings and serious physical harm alleged would be more than 

sufficient to satisfy any such lesser included offense analysis. However, because 

the same result can be reached in the case before us by conducting the same 

analysis of statutory language as conducted in Evans, without reference to the 

specific facts and circumstances in evidence, it is unnecessary to further address or 

rely upon this interpretation at this time. 

{¶25} In any event, under the Evans test, the language of the attempted 

murder charge not only permits, but necessarily requires, closer examination of the 
Case No. 13-10-23 

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“statutory circumstances” of the attempted murder offense and the felonious 

assault offense charged in this case, and then if necessary, reference to the specific 

factual allegations and/or conduct in evidence in order to make a proper lesser 

included offense analysis. See Evans at 385. Thus, just as the Evans court had to 

determine whether the conduct of “displaying, brandishing, indicating possession, 

or using a deadly weapon” in an aggravated robbery offense also constituted a 

“threat to inflict physical harm” for purposes of a robbery offense, the only 

relevant question for this court to determine is whether the conduct of “knowingly 

causing serious physical harm” to the extent that if successful it would constitute 

purposely causing the death of another also constitutes “knowingly causing serious 

physical harm”. 

{¶26} Applying the statutory circumstances analysis of Evans to the case 

before us then, it is clear that the defendant could not “engage in conduct” 

(knowingly causing serious physical harm) that if successful (serious enough to 

produce death) would constitute purposefully causing the death of the victim 

[attempted murder as defined in R.C.2923.02(A)/R.C. 2903.02(A)], without also 

engaging in conduct that would constitute knowingly causing serious physical 

harm to that victim [felonious assault as defined in R.C. 2903.11(A)(1)]. Since 

this is also the scenario that is actually reflected in the evidence of this case, the 

instruction on the lesser included offense of felonious assault was warranted on 
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both statutory and evidentiary grounds, and in any event, did not constitute plain 

error. 

{¶27} Based on the foregoing, I respectfully dissent from the decision of 

the majority to reverse this conviction. The trial court was correct to instruct the 

jury on the lesser included offense of felonious assault in this case. The fourth 

assignment of error should be overruled and this court should address the merits of 

the remaining assignments of error. 

/jlr