[This opinion has been published in Ohio Official Reports at
82 Ohio St.3d 198.]
THE STATE OF OHIO, APPELLANT, v. MACK, APPELLEE.
[Cite as State v. Mack, 1998-Ohio-375.]
Criminal procedure—Trial court properly denied defendant’s request for an
instruction on the offense of aggravated assault as an inferior degree of the
offense of felonious assault, when.
(No. 96-2250—Submitted March 24, 1998—Decided June 24, 1998.)
APPEAL from the Court of Appeals for Montgomery County, No. CA 15375.
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{¶ 1} On March 8, 1995, appellee, Zavis D. Mack, went with his girlfriend,
Katrina Conner, to pick up her children for visitation at the apartment of her
estranged husband, Chris Conner. At the time, Chris and Katrina were separated
and seeking a divorce. Chris answered the door and asked Katrina to come inside
because he wanted to talk to her about the scheduled visitation. However, Katrina
refused to enter the residence. Instead, she and Chris became involved in an
argument, which eventually escalated to include Mack. Chris went back inside his
residence in order to get a business card that the case worker had left for him to
give to Katrina. There is conflicting testimony as to what happened when he
returned. Chris testified that he had been carrying Mace in his back pocket, and
Katrina questioned him as to why he was carrying it. He stated that he always
carried mace because of the dogs running loose in the building, not on account of
her or Mack. Apparently to demonstrate his intentions, he then threw the Mace on
the ground, and Katrina picked up the Mace.
{¶ 2} According to Chris, Mack then started running towards him with a
knife. Chris attempted to get back inside his apartment building, but the door would
not open. He testified that he ran into the street with Mack chasing him, and
attempted to jump over the hood of a parked car. Although he made it over the
SUPREME COURT OF OHIO
hood, he slipped on some ice and fell down. As he was trying to get up, Mack
stabbed Chris with his knife repeatedly. A neighbor corroborated Chris’s story that
Mack had charged Chris with his knife. Another neighbor said that Mack charged
Chris and later pulled out a knife when they were at the car.
{¶ 3} However, Mack told a different version of events. He testified that he
had been told by his cousin on a prior occasion that Chris had threatened him and
that on the day of the stabbing, it was Chris who instigated the situation. Mack
asserted that Chris threatened him and that when Chris emerged from his apartment
the second time, he was holding an object behind his back. Mack stated that Chris
began to chase him until Chris eventually turned around and began threatening
Katrina, ordering her to go inside and raising a clenched fist at her. At that point,
Mack stated that in order to protect Katrina, he pulled out his knife and began to
chase Chris. Mack admitted that he chased Chris and that Chris fell down after
trying to jump over the car. However, he testified that when he turned to walk
away, Chris grabbed him by his jacket, and that was when he stabbed Chris.
{¶ 4} Mack admitted that he was aware that at some point when Chris had
been chasing him, Chris had dropped the object that had been behind his back,
which happened to be the Mace, and that Katrina had retrieved it. Mack stated that
he was afraid during the incident, and that he was trying to defend himself and
Katrina from Chris, even though he knew that Chris was unarmed.
{¶ 5} Mack was indicted on one count of felonious assault with a prior
aggravated felony conviction specification added. He was found guilty by a jury
as charged. On appeal, Mack argued that the trial court erred in refusing to charge
the jury on the lesser included offense of aggravated assault. The court of appeals
agreed, reversing the jury verdict and remanding the cause for a new trial.
{¶ 6} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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January Term, 1998
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and John
J. Amarante, Assistant Prosecuting Attorney, for appellant.
J. Allen Wilmes, for appellee.
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FRANCIS E. SWEENEY, SR., J.
{¶ 7} We must determine in this case whether the trial court acted properly
in refusing to instruct the jury on the offense of aggravated assault. Because we
find that the evidence of serious provocation was not reasonably sufficient as a
matter of law to justify such an instruction, we reverse the judgment of the court of
appeals, and reinstate appellee’s conviction.
{¶ 8} Initially, the state argues that the court of appeals should not have
reversed Mack’s conviction, since he failed to preserve the issue and therefore
waived his right to appeal. Appellant’s argument rests on the fact that, at trial,
defense counsel failed to object in writing to the court’s proposed jury instructions
that did not include aggravated assault. The state relies on Crim.R. 30(A), which
provides, “At the close of the evidence or at such earlier time during the trial as the
court reasonably directs, any party may file written requests that the court instruct
the jury on the law as set forth in the requests. … On appeal, a party may not
assign as error the giving or the failure to give any instructions unless the party
objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection. …”
{¶ 9} In State v. Wolons (1989), 44 Ohio St.3d 64,
541 N.E.2d 443,
paragraph one of the syllabus, we held that a party does not waive his or her
objections to the court by failing to formally object, where the record affirmatively
shows that the trial court has been fully apprised of the correct law governing a
material issue in dispute. In that case, defense counsel did not expressly object to
the court’s jury instructions. However, he advised the court that there were several
cases on point supporting his requested instruction.
Id. at 66-67,
541 N.E.2d at 445.
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Furthermore, in State v. Williford (1990), 49 Ohio St.3d 247,
551 N.E.2d 1279,
paragraph three of the syllabus, we stated that an error was preserved for appeal
“when the defendant objects in accordance with the second paragraph of Crim.R.
30(A), whether or not there has been a proffer of written jury instructions in
accordance with the first paragraph of Crim.R. 30(A).”
{¶ 10} As in Wolons, the record affirmatively shows that Mack complied
with the requirements of Crim.R. 30(A). At trial and at the close of evidence,
defense counsel twice requested that the court give a charge on the lesser offense
of aggravated assault, arguing that under the decision of State v. Deem, infra, such
a charge was warranted. After the jury was charged, but before it began
deliberations, the judge asked whether there were any “[o]missions or corrections
that counsel wish to call to the attention of the Court.” Although defense counsel
did not expressly object to the charge given, counsel implied so by stating, “Other
than what’s been previously placed in the record, no.” Since the judge was fully
apprised of the law and defense counsel’s requests, appellee complied with Crim.R.
30(A), and properly preserved the issue regarding the failure to give a jury charge
on aggravated assault for appellate review. See, also, State v. Brooks (1996), 75
Ohio St.3d 148, 160,
661 N.E.2d 1030, 1041.
{¶ 11} We next decide whether a jury charge on aggravated assault was
warranted in this case. In State v. Deem (1988), 40 Ohio St.3d 205,
533 N.E.2d
294, we held that “aggravated assault” was an offense of an inferior degree of
felonious assault because its elements were identical to felonious assault except for
the additional mitigating element of provocation. Thus, we stated, “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.”
Id.,
paragraph four of the syllabus. Furthermore, “[p]rovocation, to be serious, must be
reasonably sufficient to bring on extreme stress and the provocation must be
reasonably sufficient to incite or to arouse the defendant into using deadly force.
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January Term, 1998
In determining whether the provocation was reasonably sufficient to incite the
defendant into using deadly force, the court must consider the emotional and mental
state of the defendant and the conditions and circumstances that surrounded him at
the time.” Deem, at paragraph five of the syllabus. In that case, we found that a
historically stormy relationship and the bumping of the offender’s car by the
victim’s car were insufficient, as a matter of law, to incite the offender into using
deadly force. Deem, 40 Ohio St.3d at 211,
533 N.E.2d at 300. Since there was
insufficient evidence of provocation, we held that “even though aggravated assault
is an offense of an inferior degree to the indicted crime [of felonious assault], an
instruction thereon was not supported by the evidence presented in this case, and
was properly refused.”
Id.
{¶ 12} In State v. Shane (1992), 63 Ohio St.3d 630,
590 N.E.2d 272, we
elaborated on what constitutes “reasonably sufficient” provocation in the context
of voluntary manslaughter. First, an objective standard must be applied to
determine whether the alleged provocation is reasonably sufficient to bring on a
sudden passion or fit of rage. That is, the provocation must be “sufficient to arouse
the passions of an ordinary person beyond the power of his or her control.” If this
objective standard is met, the inquiry shifts to a subjective standard, to determine
whether the defendant in the particular case “actually was under the influence of
sudden passion or in a sudden fit of rage.”
Id. at 634-635,
590 N.E.2d at 276. We
also held in Shane that words alone will not constitute reasonably sufficient
provocation to incite the use of deadly force in most situations.
Id., paragraph two
of the syllabus.
{¶ 13} As applied in this case, we find the evidence insufficient, as a matter
of law, to establish provocation that is reasonably sufficient to incite the use of
deadly force. Chris Conner’s testimony, corroborated for the most part by two
neighbors, asserts that Mack charged after him with a knife after they were arguing.
Even if we accept Mack’s version of events, there is no evidence of serious
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provocation reasonably sufficient to incite Mack into stabbing Chris. Mack
testified that he had been told that Chris had made threats to him in the past.
However, past incidents or verbal threats do not satisfy the test for reasonably
sufficient provocation when there is sufficient time for cooling off. State v. Huertas
(1990), 51 Ohio St.3d 22, 31-32,
553 N.E.2d 1058, 1068-1069. See, also, State v.
Pierce (1980),
64 Ohio St.2d 281,
18 O.O.3d 466,
414 N.E.2d 1038. In this case,
there is no evidence that any past incidents provoked appellee into a sudden passion
or fit of rage.
{¶ 14} The evidence clearly shows that Mack stabbed Chris after chasing
him across the street and over a car. Mack knew that Chris was unarmed and was
retreating, and that Katrina had control of the Mace which Chris had dropped.
Nevertheless, he continued to pursue Chris. Mack testified that he was afraid at the
time, but the record contains no evidence that the defendant’s actions were
influenced by a sudden passion or fit of rage at the time of the incident. Fear alone
is insufficient to demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage. See State v. Collins (1994), 97 Ohio App.3d 438,
445-446,
646 N.E.2d 1142, 1146-1148; State v. Cunningham (Oct. 17, 1991), Clark
App. No. 2759, unreported,
1991 WL 216410; State v. Williams (Aug. 13, 1992),
Cuyahoga App. No. 60819, unreported,
1992 WL 198114. In this case, there is no
evidence of any serious provocation that would arouse the passions of an ordinary
person beyond his or her control. Thus, Mack has failed to meet even the objective
standard of Shane in order to demonstrate reasonably sufficient provocation.
{¶ 15} Accordingly, we hold that the trial court properly denied the
defendant’s request for an instruction on the offense of aggravated assault as an
inferior degree of the offense of felonious assault. The judgment of the court of
appeals is reversed, and appellee’s conviction is reinstated.
Judgment reversed
and conviction reinstated.
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January Term, 1998
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
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