[Cite as State v. Mitchell,
2023-Ohio-3543.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1166
Appellee Trial Court No. CR0202001814
v.
Michael Mitchell Jr. DECISION AND JUDGMENT
Appellant Decided: September 29, 2023
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, II, for appellant.
…
DUHART, J.
{¶ 1} Appellant, Michael Mitchell, Jr., appeals from the judgment of the Lucas
County Court of Common Pleas, convicting him of felonious assault, with a firearm
specification. For the reasons that follow, the trial court’s judgment is affirmed.
Statement of the Case
{¶ 2} On July 7, 2020, appellant fired four shots in the parking lot of Gino’s pizza
restaurant, in Toledo. The first shot struck J.D., who died shortly afterward. Appellant
claimed that he fired the subsequent three shots as “warning” shots, based on his fear that
J.D. would get into a car with someone else who might give him a weapon.
{¶ 3} Appellant was indicted on one count of murder in violation of R.C.
2903.02(B) and R.C. 2929.02; one count of felonious assault in violation of R.C.
2903.11(A)(2) and (D); and one count of felonious assault in violation of R.C.
2903.11(A)(1) and (D). All of the counts carried firearm specifications pursuant to R.C.
2941.145(A), (B), (C), and (F). The count of felonious assault in violation of R.C.
2903.11(A)(1) related to the first shot, which struck J.D. The count of felonious assault in
violation of R.C. 2903.11(A)(2) related to the three shots fired after J.D. was struck by
the first shot. Of the three later shots, one struck an occupied Lincoln Continental, and
one or more struck an unoccupied Lexus.
{¶ 4} At trial, appellant requested a self-defense instruction for all of the charges,
as well as an instruction on aggravated assault, as an inferior degree of felonious assault.
The trial court granted the request for the self-defense instruction as to the felonious
assault charge in violation of R.C. 2903.11(A)(1), but denied the request as to the
felonious assault charge in violation of R.C. 2903.11(A)(2). The court also denied the
request for the instruction on the inferior degree offense of aggravated assault.
2.
{¶ 5} The jury acquitted appellant of the murder charge and the felonious assault
charge that was associated with the murder charge, but convicted him of the felonious
assault charge in violation of R.C. 2903.11(A)(2) and (D). It is from this conviction that
appellant now appeals.
Statement of Facts
The altercation and death of J.D.
{¶ 6} At trial, there was testimony that on the evening of July 7, 2020, J.D. told a
relative that he was “going to get into it” at Gino’s with someone he believed had
mistreated his girlfriend. J.D. confronted appellant, first verbally and then physically,
when appellant walked out of the store. J.D. swung at appellant several times before
finally landing a punch that knocked appellant over. Four seconds after the initial swing,
appellant responded by firing a single shot, hitting J.D in the chest. J.D. fell to the ground
behind a parked Lincoln Continental. Appellant walked up to J.D. as J.D. was lying on
the pavement, writhing on his back. Moments later, appellant began heading toward his
truck. But before reaching his truck, he turned and went back to the area of the Lincoln,
and then appeared to pick something up off of the ground. The Lincoln then slowly
started to pull away. At about the same time, J.D. got to his feet and began running
alongside the driver’s side of the Lincoln, which was making its exit from the restaurant
parking lot.
{¶ 7} Appellant, positioned himself behind the fleeing J.D. and fired three
additional shots in J.D.’s direction. The Lincoln, which was clearly occupied at the time
3.
of the shooting, was later discovered to have blood and a bullet defect with “a big dent
around it” on its exterior. An unoccupied Lexus was also struck by appellant’s volley.
{¶ 8} The events were captured by various surveillance cameras, as well as a
bystander’s cell phone. J.D. was identified as wearing a white shirt, which revealed a
blood stain as he stood up from the ground.
{¶ 9} J.D. died as a result of the gunshot wound. The autopsy of his body revealed
that the bullet entered the left side of his chest through the sixth rib, traveled downward,
grazed the bottom of his heart, and passed through his colon and left kidney before
stopping in his lower back.
{¶ 10} Witnesses, including appellant, did not see J.D. with a weapon. No firearm
was discovered in the parking lot, or in the vehicle that J.D. rode in to Gino’s, or at the
hospital where J.D. was treated.
The testimony of K.A.J.1
{¶ 11} K.A.J. was close friends with J.D., whom he described as a defensive
lineman who was “NFL ready.” On the night of the shooting, K.A.J. and J.D. went to
play pickup basketball at the Skyway Gym, in the city of Oregon, Ohio. K.A.J. did not
see appellant at the gym and had never met him before.
1
K.A.J. testified by video deposition, which was played at trial and appears in the
appellate record, but does not appear to have been transcribed.
4.
{¶ 12} After leaving the gym, K.A.J. and J.D. drove to Gino’s. J.D. talked with
someone on the phone as they drove over, and K.A.J. himself was also talking on the
phone. J.D. got out of the car and a few minutes later was shot.
{¶ 13} K.A.J. reviewed the surveillance video and identified his vehicle arriving in
the Gino’s parking lot at about 11:03 p.m. He also identified J.D. running toward
K.A.J.’s car as appellant fired shots in J.D.’s direction. He testified that he was able to
see the gunshots that appellant was firing, and that the shooter was not pointing the gun at
the sky or toward the ground, but rather was pointing at J.D.
{¶ 14} K.A.J. got J.D. back in his car and drove to Toledo Hospital. J.D. was
unable to communicate during the ride, and they arrived at an entrance which was locked
due to COVID protocols. K.A.J. was attempting to break the door down when hospital
security and police arrived.
The testimony and cell phone recording of S.D.
{¶ 15} Gino’s patron S.D. was waiting in a car at the restaurant while her husband
went inside to pick up their order. The parking lot was lit and the store was busy. S.D.
was scrolling through Facebook when she heard a “pop.” Assuming it was fireworks, she
did not think much of it. She heard a second noise and turned to see two men “kind of
wrestling.” She started to record events on her phone, and more shots were audible on
the recording.
{¶ 16} She testified that she saw a man wearing a white T-shirt running away
while a man wearing a black T-shirt fired three shots at him. S.D. specified that the
5.
shooter did not fire the gun up in the air, but instead pointed the gun directly at the
running man. She further testified that although the running man was alongside of a car,
she did not see him try to get into the car; he was merely “running away from Gino’s.”
Surveillance video
{¶ 17} A surveillance video recording from the front of the store depicts
individuals who were waiting in line begin to run into the parking lot at around 23:13:16
p.m. Seconds later, at about 23:13:18, J.D. can be seen falling to the ground. At
23:13:20, appellant can be seen standing right behind J.D., as J.D. lay struggling and
grabbing his chest. Appellant then leaves the camera view. J.D. is seen getting to his feet
at about 23:13:26, and at 23:13:28, appellant reappears on the screen, behind the vehicle
and in close proximity to J.D.
{¶ 18} Additional surveillance video depicts appellant chasing J.D. as he runs
behind a Lincoln that is moving forward in the Gino’s parking lot. Appellant can be seen
pointing a gun at the individual who is running away, and two muzzle flashes appear on
the screen. Appellant is then seen running to a red truck that he gets into and drives away
at about 23:13:44.
{¶ 19} Another surveillance video depicts the interior of the restaurant, with a
view of the front door. J.D. is seen standing outside the entrance of the store as the
Lincoln pulls up to the entrance and a woman gets out to wait in line outside the door.
Appellant walks out of the restaurant at about 23:12:55, at which point appellant and J.D.
begin engaging with one another. At 23:13:12, J.D. throws the first punch, and at
6.
23:13:16, the muzzle flash from the first shot can be seen. The Lincoln begins to pull
forward at about 23:13:28, and at 23:13:30, an individual in white can be seen running in
the same direction as the Lincoln. Individuals inside the restaurant peered out of the
windows but ducked down or began to take cover at about 23:13:31.
{¶ 20} Still more surveillance video was taken from inside the store, focused on
the front entrance. Here, appellant can be seen talking on the phone and walking out of
the restaurant at 23:12:45. Individuals outside the glass doors are seen moving rapidly,
and at 23:13:16, an individual waiting in line inside the door moves suddenly off screen.
Other individuals came to look out the door, but quickly retreated at around 23:13:31.
{¶ 21} Toledo Police Detective Jeffrey Sharp testified that based on the reaction of
bystanders and the muzzle flash, the first gunshot appears to have been fired at about
23:13:16, and the second set of gunshots appear to have been fired at around 23:13:32.
Shell casings
{¶ 22} Four shell casings were discovered at the scene. The shell casings and the
bullet removed from J.D.’s body were compared to a test-fire of appellant’s gun. The
comparison confirmed that appellant’s gun fired the shots.
911 call
{¶ 23} A passerby called 911 and reported seeing a heavy-set male with a white
shirt, who had been shot in the chest, lying on the ground, with a second male, in a black
T-shirt, standing over him.
7.
Mitchell interview
{¶ 24} In a pretrial interview, appellant said that he knew J.D. from high school
but had not seen him in a year and a half before the day of the shooting. He stated that he
had seen J.D. earlier that day at an open gym in Oregon, Ohio, without any apparent
problems. When they encountered each other at Gino’s, however, J.D. said, “I don’t fuck
with you,” “my baby mamma said you tried to rape her,” and “I should kill you right
here.” Appellant said that J.D. struck him and that when appellant jumped back, J.D.
“reached for something.” As a result, appellant fired his gun. Appellant stated that when
J.D. got up and started running toward the car, he fired “two more warning shots,”
because he did not know who was in the car. He stated that he fired three shots in total.
Mitchell’s trial testimony
{¶ 25} At trial, appellant testified that he had seen J.D. earlier in the day at an
open gym, but that he did not talk to him. He stated that as he exited Gino’s restaurant,
J.D. said, “I don’t fuck with you,” which appellant interpreted to mean that J.D. did not
like him. According to appellant, J.D. said that his “baby mama” had accused appellant
of trying to rape her, and that he “should kill” appellant. Appellant testified that J.D. had
his fist balled up and was rocking back and forth, before he finally began to swing.
Despite the exchange, appellant denied ever being angry with J.D. on the night of the
shooting.
{¶ 26} Appellant admitted that J.D.’s first successful blow sent him falling into a
nearby garbage can. But appellant said he fired his gun because J.D. was “fidgeting”
8.
with his pockets. Appellant did not warn J.D that he was armed or show him that he had
a gun before firing. He further stated that he was an arm’s length, “if that,” from J.D.
when he fired the first shot. He said that he did not “point” the gun, but rather “just
pulled it out and fired.”
{¶ 27} Appellant said that he took his gun into Gino’s because there were “a lot of
people out there, a lot of cars and commotion.” He acknowledged that his concealed
carry license required him to report to police if he shot someone, but he stated that he
never did “see” that he had hit J.D., despite J.D.’s fall to the ground onto his back after
the first shot. Appellant claimed that he learned that J.D. was shot a couple of hours after
the incident, through social media.
{¶ 28} Appellant stated that after firing the first shot, he went toward his truck but
turned back to retrieve his cell phone. He admitted as he watched the video that while he
stood over J.D., J.D. was moving around, and that “it could have been a possibility that
he got hit,” but he “didn’t see anything that indicated that the bullet hit him at that time.”
He specifically denied being mad at J.D. at that time or at any time that night.
{¶ 29} Afterward, appellant said that he started running toward his truck and that
he fired three more shots as he ran. He denied that he was chasing down J.D. or “trying
to run and shoot him as he was running away,” but he conceded that he did not fire
straight up into the air. He explained:
I only fired those shots when he was running cause I was still
scared because he had got back up after the first altercation.
9.
So, and I didn’t know if I hit him, and he was running along
side of that car, so that’s why I fired, like I said, the three
warning shots because I didn’t know if he was getting in that
car. I didn’t know if anybody in that car was with him, could
have handed him anything. I just didn’t know at that time.
So it was just out of fear that’s what I did. I wasn’t aiming at
him. I wasn’t chasing him down trying to hit him. I was
running to my car and I was shooting those warning shots.
Appellant stated that he wanted to communicate that he was still armed and that he did
not want any more trouble.
{¶ 30} Appellant claimed that he sustained a knot on his temple as a result of
falling against the trash can, but did not require any medical treatment. He admitted that
he did not suffer any significant injury in the altercation.
Assignments of Error
{¶ 31} Appellant asserts the following assignments of error on appeal:
I. The trial court abused its discretion by denying Appellant’s
request for a self-defense jury instruction on Count 2,
Felonious Assault.
II. The trial court abused its discretion by denying
Appellant’s request for a jury instruction on the inferior
degree offense of aggravated assault.
10.
Analysis
Jury Instructions
{¶ 32} Appellant alleges in both his first and second assignment of errors that the
trial court abused its discretion in denying certain of appellant’s requests for jury
instructions.
{¶ 33} Generally speaking, a trial court must give the jury correct and
comprehensive instructions that adequately reflect the issues argued in the case. State v.
Lane, 6th Dist. Erie No. E-22-035, 2023-Ohio-1305, ¶ 13, citing State v. Sneed,
63 Ohio
St.3d 3, 9,
584 N.E.2d 1160 (1992). “Requested jury instructions should ordinarily be
given if they are correct statements of law that are applicable to the facts in the case, and
reasonable minds might reach the conclusion sought by the instruction.” Miller v.
Defiance Regional Med. Ctr., 6th Dist. Lucas No. L-06-1111,
2007-Ohio-7101, ¶ 40.
(Additional citation omitted.) An appellate court reviews the trial court’s refusal to
provide a requested jury instruction for an abuse of discretion. Lane at ¶ 13, citing State
v. Heiney,
2018-Ohio-3408,
117 N.E.3d 1034, ¶ 133 (6th Dist.).
Self-Defense
{¶ 34} In his first assignment of error, appellant argues that the trial court abused
its discretion in denying his request for a self-defense jury instruction in connection with
the charge of felonious assault that was related to his final three gunshots.2
2
It is undisputed that the trial court properly instructed the jury on self-defense in
connection with the charge of felonious assault related to the first shot appellant fired. In
11.
{¶ 35} R.C. 2901.05(B)(1) provides that “[a] person is allowed to act in self-
defense ….” “The elements of self-defense differ depending upon whether the
defendant used deadly or non-deadly force.” Lane at ¶ 14, citing State v. Baker, 2023-
Ohio-241, 207 N.E.3d 78, ¶ 27 (6th Dist.). (Additional citation omitted.). “Deadly
force” is “any force that carries a substantial risk that it will proximately result in the
death of any person.” R.C. 2901.01(A)(2). “The use of a gun constitutes deadly force.”
State v. Barker,
2022-Ohio-3756,
199 N.E.3d 626, ¶ 21 (2d Dist.), citing State v. Dale, 2d
Dist. Champaign No. 2012-CA-20,
2013-Ohio-2229, ¶ 15.
{¶ 36} In order to succeed, a claim of self-defense by means of deadly force
requires that: (1) the defendant was not at fault in creating the situation giving rise to the
affray; (2) the defendant had a bona fide belief that he was in imminent danger of death
or great bodily harm and that his only means of escape from such danger was in the use
of such force; and (3) the defendant did not violate any duty to retreat or avoid the
danger. Lane at ¶ 15, citing State v. Messenger, -- Ohio St.3d --, 2022-Ohio-4562, --
N.E.3d. --, ¶ 14. (Additional citation omitted.).
{¶ 37} As to the first element, “[i]t is well established that a person cannot
provoke a fight or voluntarily enter combat and then claim self-defense.” State v.
Canankamp, 3d Dist. Auglaize No. 2-22-02, 2023-Ohio-43, ¶ 38, quoting State v. James,
2d Dist. Montgomery No. 28892,
2021-Ohio-1112, ¶ 21.
fact, that instruction served as the basis for appellant’s acquittal on both the murder
charge and the second charge of felonious assault.
12.
{¶ 38} “The second element of a self-defense claim is a combined subjective and
objective test.” State v. Hunt, 8th Dist. Cuyahoga No. 111892, 2023-Ohio-1977, ¶ 26,
citing State v. Thomas,
77 Ohio St.3d 323, 330,
673 N.E.2d 1339 (1997). Thus, “self-
defense ‘is placed on the grounds of the bona fides of defendant’s belief, and
reasonableness therefore, and whether, under the circumstances, he exercised a careful
and proper use of his own faculties.’” Thomas at 330, quoting State v. Sheets,
115 Ohio
St. 308, 310,
152 N.E. 664 (1926); see also State v. Reyes-Figueroa, 8th Dist. Cuyahoga
No. 108609,
2020-Ohio-4460, ¶ 27 (“Often missing from quotations of the self-defense
elements is the requirement that the force used be reasonable.”). “A person is only
privileged to use that force which is reasonably necessary to repel the attack.” State v.
Gray, 2d Dist. Montgomery No. 26473,
2016-Ohio-5869, ¶ 8. (Emphasis added.)
In other words, a defendant must show that ‘that the degree of
force used was “warranted” under the circumstances and
“proportionate” to the perceived threat.’ [State v.
Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-
4416,] ¶ 31, citing State v. Palmer, 80 Ohio St.3d 543, 564,
687 N.E.2d 685 (1997). ‘If … the amount of force used is
so disproportionate that it shows an “unreasonable purpose to
injure,” the defense of self-defense is unavailable.’ State v.
Macklin, 8th Dist. Cuyahoga No. 94482, 2011-Ohio-87,
2011
WL 208315, ¶ 27, quoting State v. Speakman, 4th Dist.
13.
Pickaway No. 00CA035 (Mar. 27, 2001). Accord State v.
Kimmell, 3[]d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, ¶
20, quoting Hendrickson at ¶ 33 (‘Self-defense … is
inappropriate if the force used is “so grossly disproportionate
as to show revenge or as criminal purpose.”’). ‘[I]t is only
when one uses a greater degree of force than is necessary
under all the circumstances that it is not justifiable on the
ground of self-defense.’ [State v. McLeod, 82 Ohio App.
155,] 157[,
80 N.E.2d 699 (1948)].
State v. Waller, 4th Dist. Scioto Nos. 15CA3683 and 15CA3684,
2016-Ohio-3077, ¶ 26.
{¶ 39} Finally, as to the third element, pursuant to the most recent amendments to
R.C. 2901.09(B), “a person has no duty to retreat before using force in self-defense …
if that person is in a place in which the person lawfully has a right to be.” R.C.
2901.09(B); see also Lane at ¶ 15.
Burden of Proof
{¶ 40} Where a person accused of an offense involving force presents evidence
“that tends to support that [he or she] used the force in self-defense …,” the state “must
prove beyond a reasonable doubt that the accused person did not use the force in self-
defense ….” R.C. 2901.05(B)(1). The Supreme Court of Ohio, clarified the
defendant’s burden of production as follows:
14.
[A] defendant charged with an offense involving the use of
force has the burden of producing legally sufficient evidence
that the defendant’s use of force was in self-defense. … [I]f
the defendant’s evidence and any reasonable inferences about
that evidence would allow a rational trier of fact to find all the
elements of a self-defense claim when viewed in the light
most favorable to the defendant, then the defendant has
satisfied the burden.
Messenger at ¶ 25.
{¶ 41} “In deciding whether to give a self-defense instruction, the trial court must
view the evidence in favor of the defendant, and the question of credibility is not to be
considered.” State v. Davidson-Dixon, 2021-Ohio-1485,
170 N.E.3d 557, ¶ 20 (8th
Dist.), citing State v. Jacinto,
2020-Ohio-3722,
155 N.E.3d 1056, ¶ 42 (8th Dist.).
(Additional citations omitted.) Where there is conflicting evidence on the issue of self-
defense, the instruction must be given to the jury.
Davidson-Dixon at ¶ 20. But “[i]f the
evidence generates only a mere speculation or possible doubt, the evidence is insufficient
to raise the affirmative defense, and submission of the issue to the jury will be
unwarranted.” State v. Melchior,
56 Ohio St.2d 15, 20,
381 N.E.2d 195 (1978).
{¶ 42} “[A] defendant’s bare assertion that he acted in self-defense will be
insufficient.” Davidson-Dixon at ¶ 20, citing
Jacinto at ¶ 47. (Additional citation
omitted.) Those assertions “must be coupled with supporting evidence from whatever
15.
source and of a nature and quality sufficient to raise reasonable doubt as to guilt.”
Davidson-Dixon at ¶ 20, citing
Melchior at 20. (Additional citation omitted.)
{¶ 43} In the instant case, the trial court told the attorneys that a self-defense
instruction was not supported by the evidence, and that any imminent danger abated once
J.D. began to run away.
{¶ 44} Looking to the elements of self-defense, we find that there was legally
sufficient evidence to show that appellant was not at fault in creating the situation that
gave rise to the affray. Ample, uncontroverted evidence showed that it was J.D., and not
appellant, who initiated both the non-physical and the physical aspects of the
confrontation. Thus, appellant has satisfied his burden of production as to the first
element of self-defense.
{¶ 45} As to the third element, requiring that the defendant did not violate any
duty to retreat or avoid the danger, we are mindful that the current version of R.C.
2901.09(B) does not impose a duty to retreat so long as the defendant is in a place where
he lawfully has a right to be. In this case, the parties do not dispute that appellant, in his
capacity as a Gino’s customer, was lawfully where he had a right to be. Thus, appellant
has satisfied his burden of production as to the third element of self-defense.
{¶ 46} Finally, we focus our attention on the second element of self-defense,
regarding the question of whether appellant had a bona fide belief that he was in
imminent danger of death or great bodily harm and that his only means of escape from
such danger was in the use of such force. Appellant in the instant case testified that he
16.
was acting in self-defense; he claimed that he fired the shots because he was scared when
J.D. got up and started running alongside the Lincoln, because he did not know whether
anyone in the Lincoln “was with” J.D. and whether such person “could have handed him
anything.” This testimony alone does not warrant a self-defense instruction.
{¶ 47} The video evidence makes clear that when appellant returned to the area of
the Lincoln, the victim stood up and moved toward the car to take shelter from the man
who shot him. Appellant was in a good position to see what was happening and that the
victim was in distress. Nevertheless, appellant, with his arm stretched straight, pointed
his gun toward J.D. and began firing at J.D. while J.D. was running away. As mentioned
by the trial court, any threat of imminent danger abated once J.D. began to flee. See State
v. Collins, 10th Dist. Franklin No. 19AP-373, 2020-Ohio-3126, ¶ 42 (finding that any
threat of imminent danger abated once the alleged attacker began running away).
Further, there was no evidence or testimony to suggest that the driver of the car was in
any way connected to J.D. Nor was there any evidence or testimony to suggest that the
driver, during his exit, made any maneuver that could have been perceived by appellant
as an effort to hand something, such as a weapon, to J.D.
{¶ 48} Based on the record before this court, we find that the evidence produced
and relied upon by appellant only generated mere speculation. There was no evidence
that tended to support that appellant’s use of deadly force was reasonable with respect to
his final three shots; rather, it was grossly disproportionate to the continually abating
danger. Accordingly, the trial court did not abuse its discretion in denying appellant’s
17.
request for a self-defense jury instruction. Appellant’s first assignment of error is found
not well-taken.
Inferior Degree Offense of Aggravated Assault
{¶ 49} Appellant argues in his second assignment of error that the trial court
abused its discretion in denying his request for a jury instruction on the inferior degree
offense of aggravated assault.
{¶ 50} Under R.C. 2903.11(A)(2), felonious assault, “[n]o person shall knowingly
… cause or attempt to cause physical harm to another ….” Under R.C.
2903.12(A)(2), aggravated assault, “[n]o person, while under the influence of sudden
passion or in a sudden fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the person into using
deadly force, shall knowingly … [c]ause or attempt to cause physical harm to another
….”
{¶ 51} “Aggravated assault is an offense of an inferior degree of felonious
assault.” Lane at ¶ 33, citing State v. Mack, 82 Ohio St.3d 198, 200,
694 N.E.2d 1328
(1998). “‘[I]n 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.’”
Mack at 200, quoting State v. Deem,
40 Ohio St.3d 205,
533 N.E.2d 294 (1988),
paragraph four of the syllabus.
{¶ 52} “To be ‘serious’ the provocation must be reasonably sufficient to bring on
extreme stress and [to] incite or to arouse the defendant into using deadly force.” Lane at
18.
¶ 34, citing Mack at 200. (Additional citation omitted.) There is both an objective and
subjective component to this requirement. Lane at ¶ 34. To satisfy the objective
component, the provocation “must be sufficient to arouse the passions of an ordinary
person beyond the power of his or her control.”
Id., quoting State v. Shane,
63 Ohio
St.3d 630, 635,
590 N.E.2d 272 (1992). Where the evidence of provocation is
insufficient, such that no reasonable jury would conclude that the defendant was
reasonably provoked by the victim, the court must decline to instruct the jury on
aggravated assault. Lane at ¶ 34. “However, if the objective standard is met, ‘the inquiry
shifts to the subjective component of whether this actor, in this particular case, actually
was under the influence of sudden passion or in a sudden fit of rage.’” Id. at ¶ 34,
quoting
Shane at 635.
{¶ 53} Ohio courts considering what constitutes sufficient “serious provocation”
have found that past incidents or verbal threats are not sufficient; words are not sufficient;
and a victim’s simple pushing or punching the defendant is not sufficient. Lane at 35,
citing Mack at 201, and State v. Bryan, 4th Dist. Gallia No. 03CA3,
2004-Ohio-2066, ¶
24.
{¶ 54} Regarding the emotional state necessary to constitute sudden passion or a
sudden fit of rage, Ohio courts have found that confusion or fear alone is not sufficient.
Lane at ¶ 36, citing Mack at 201, and State v. Tantarelli, 10th Dist. Franklin No.
94APA11-1618,
1995 WL 318730, *4 (May 23, 1995). “And where a defendant testifies
that he was merely afraid and no evidence exists that he actually acted under a sudden fit
19.
or passion or rage, a court does not abuse its discretion by refusing to provide an
instruction on aggravated assault.” Lane at ¶ 36, citing Bryan at ¶ 26, and State v. Jones,
2018-Ohio-239,
104 N.E.3d 34, ¶ 19 (4th Dist.).
{¶ 55} Defense counsel requested an instruction on aggravated assault because he
believed that there was a question of fact as to whether appellant acted under the
influence of sudden passion, brought on by serious provocation by J.D. According to
appellant, “[t]he evidence at trial was that Appellant was not angry with J.D. but was
nonetheless aroused by sudden passion brought on by J.D.’s threat to kill Appellant and a
physical assault.” Appellant maintains that sufficient evidence was presented to the jury
of “‘serious provocation’ from J.D. to the extent that the jury could have found him not
guilty of a felonious assault but guilty of an aggravated assault.”
{¶ 56} The trial court declined to instruct the jury on aggravated assault, in part on
the grounds that appellant’s fear for his own personal safety did not constitute “sudden
passion or a fit of rage” as contemplated by the aggravated assault statute. Specifically,
the court found that a fistfight was not reasonably sufficient to bring on sudden passion or
a fit of rage reasonably sufficient to incite a person into using deadly force, and, further,
that none of the evidence at trial indicated that appellant had in any way lost control over
himself or that he was otherwise significantly affected by emotion.
{¶ 57} We agree with the trial court that there was no evidence that J.D. seriously
provoked appellant to fire the last three shots. J.D.’s running away from the scene
alongside the Lincoln did not constitute provocation under Ohio law, nor did his previous
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words to appellant or even his punch. Even if J.D. did provoke appellant, there was no
evidence that appellant acted under a sudden fit of passion or rage; his testimony was that
he acted only out of fear, which is insufficient. Accordingly, the trial court did not abuse
its discretion in failing to instruct the jury on aggravated assault, and, therefore,
appellant’s second assignment of error is found not well-taken.
Conclusion
{¶ 58} Because the trial court did not abuse its discretion, either in refusing to
instruct the jury on self-defense with respect to appellant’s final three shots or in refusing
to instruct the jury on the inferior degree offense of aggravated assault in connection with
his charges for felonious assault, the judgment of the Lucas County Court of Common
Pleas is affirmed. Appellant is to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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