State v. Elwell, 06ca008923 (6-25-2007)

CONCURS IN PART AND DISSENTS IN PART SAYING:

{¶ 51} I dissent from the majority's opinion to the extent that it affirms the trial court's refusal to give a reckless homicide instruction. Moreover, while I agree with the majority's conclusion that the trial court did not err by denying Mr. Elwell's request for an accident instruction, the request was properly denied, not because of the extensive evidence contradicting Mr. Elwell's accident claim, as the majority has held, but because the jury instructions that the court gave were sufficient to address the issue of accidental death.

{¶ 52}…