State v. Serrano

¶1 dissenting.

¶2 {¶ 33} I must respectfully dissent. On a plain-error analysis, it is clear that appellant was entitled to have the jury consider the lesser offense of aggravated assault. The essential difference between the crimes of felonious assault and aggravated assault is the existence of serious provocation leading up to the use of deadly force. As stated by the Supreme Court of Ohio, “in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury.” 2

¶3 {¶ 34} The majority is correct that the evidence does indeed present a picture of overlapping personal histories and relationships. The victim was wearing appellant’s clothes at the time of the attack. Apparently, they had been given to him by appellant’s wife. She now lived with the victim’s friend, who threatened to cut appellant’s throat. Depending on whose testimony one believes, the victim either was or was not in violation of a civil protection order to stay away from the trailer of his former girlfriend. In turn, the former girlfriend ended up being the current girlfriend of appellant. Leaving these niceties in the analysis of the crime of felonious assault aside for the moment, however, I choose to address the question of serious provocation at the time of the attack.

¶4 {¶ 35} I would hold, as a matter of law, that when one’s wife’s current, live-in boyfriend approaches that person during a trailer-park dispute with a knife in his hand and states, “Come over here, mother fucker, I’m going to slit your throat,” the threshold for “serious provocation” has been crossed. To hold otherwise defies logic.

¶5 {¶ 36} The jury was entitled to an instruction on aggravated assault so that it would be able to do its job and sort out this whole sordid mess. It is improper to limit the jury’s access to all appropriate jury instructions when the facts clearly support several different versions of the crime in question.

¶6 {¶ 37} I do not know whether appellant would be successful in convincing anyone that he was provoked into drawing his knife. However, that is not the legal standard. It is for the jury to decide whether there was serious provocation, and, in this case, it was prevented from doing its job.