aggravated assault instruction in Ohio

2025Hocking App. No. 24CA7 13 {¶27} “Under the objective part of the inquiry, provocation is reasonably sufficient to bring on a sudden passion or fit of rage if it would ‘arouse the passions of an ordinary person beyond the power of his or her control.’” Id. at ¶ 15, quoting Shane at 635 . “‘If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give’ an aggravated assault instruction.” State v. Fife, 2021-Ohio-2000, ¶ 65 (10th Dist.), quoting Shane at 63

2021Id. at 634 . {¶ 66} A trial court has discretion to determine whether the record contains sufficient evidence to support an aggravated assault instruction.

2021Id.

2018Richland No. 2004-CA-87, 2005-Ohio-4402, ¶ 31 , citing State v. Beaver, 119 Ohio App.3d 385, 397 , 695 N.E.2d 332 (11th Dist.1997).

2024No. CA2015-11-187, 2017-Ohio-328, ¶ 26 .

2018“In most cases, an aggravated assault instruction is incompatible with an instruction on self- defense, so that both cannot be given together.” State v. Shepherd, 2017-Ohio-328 , 81 N.E.3d 1011 , ¶ 26 (12th Dist.), citing State v. Owens, 5th Dist.

2016Instead, “the quality of the evidence offered * * * determines whether a[n aggravated assault] charge should be given to a jury.” State v. Wine, 140 Ohio St.3d 409 , 2014-Ohio-3948 , 18 N.E.3d 1207, ¶ 26 . {¶10} A trial court has discretion to determine whether the record contains sufficient evidence to support an aggravated assault instruction.

2016Instead, “the quality of the evidence offered * * * determines whether a[n aggravated assault] charge should be given to a jury.” State v. Wine, 140 Ohio St.3d 409 , 2014-Ohio-3948 , 18 N.E.3d 1207, ¶ 26 . {¶10} A trial court has discretion to determine whether the record contains sufficient evidence to support an aggravated assault instruction.

2018Richland No. 2004-CA-87, 2005-Ohio-4402, ¶ 31 , citing State v. Beaver, 119 Ohio App.3d 385, 397 , 695 N.E.2d 332 (11th Dist.1997).

2016Richland No. 2004-CA-87, 2005-Ohio-4402, ¶ 31 , citing State v. Beaver, 119 Ohio App.3d 385, 397 , 695 N.E.2d 332 (11th Dist.1997).

2017Gallia No. 03CA3, 2004-Ohio-2066, ¶ 24 , citing State v. Koballa, 8th Dist.

2006We are also not persuaded by appellant's argument that Zinicola's apparently larger stature justified his actions." {¶ 97} Further in State v. Bryan, Galia App. No. 03CA3, 2004-Ohio-2066 , the court noted that a victim's simple pushing or punching does not constitute sufficient provocation to warrant an aggravated assault instruction.

2025Id. {¶ 41} Felonious assault is proscribed by R.C. 2903.11(A), which states that no person shall knowingly cause serious physical harm to another or cause, or attempt to cause, physical harm to another by means of a deadly weapon.

2025Deem at paragraph five of the syllabus, approving State v. Mabry, 5 Ohio App.3d 13 (8th Dist. 1982), paragraph five of the syllabus. {¶26} “Determining whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction involves an objective and subjective inquiry.” Jones at ¶ 14 , citing Mack at 201 .

2025“A court must (1) objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in a sudden fit of rage.” Id., citing Mack at 201 .

2022State v. Hanna, 95 Ohio St.3d 285 , 2002-Ohio-2221 , 767 N.E.2d 678 , ¶ 61.

2022State v. Hanna, 95 Ohio St.3d 285 , 2002-Ohio-2221 , 767 N.E.2d 678 , ¶ 61.

2022Because we find Miller’s ineffective-assistance argument unpersuasive on its merits, we express no opinion on the mootness issue. -10- Ohio-4757, ¶ 23-24, vacated in part on other grounds, State v. McClendon, 128 Ohio St.3d 354 , 2011-Ohio-954 , 944 N.E.2d 235 (upholding the trial court’s refusal to give an aggravated-assault instruction where the defendant shot the victim out of fear that the victim might be retrieving a weapon from a coat).

2022Because we find Miller’s ineffective-assistance argument unpersuasive on its merits, we express no opinion on the mootness issue. -10- Ohio-4757, ¶ 23-24, vacated in part on other grounds, State v. McClendon, 128 Ohio St.3d 354 , 2011-Ohio-954 , 944 N.E.2d 235 (upholding the trial court’s refusal to give an aggravated-assault instruction where the defendant shot the victim out of fear that the victim might be retrieving a weapon from a coat).

2021State v. Smith, 168 Ohio App.3d 141 , 2006-Ohio-3720 , 858 N.E.2d 1222 (1st Dist.). {¶ 64} The jury rejected Ford’s testimony that M.M. provoked him—by hitting him with a wrench—into acting in a sudden passion or fit of rage.

2021State v. Smith, 168 Ohio App.3d 141 , 2006-Ohio-3720 , 858 N.E.2d 1222 (1st Dist.). {¶ 64} The jury rejected Ford’s testimony that M.M. provoked him—by hitting him with a wrench—into acting in a sudden passion or fit of rage.

2018Cuyahoga No. 57148, 1990 WL 84283 , *2 (June 21, 1990), quoting State v. Clayton, 62 Ohio St.2d 45, 47 , 402 N.E.2d 1189 (1980), quoting United States v. Meyers, 443 F.2d 913, 914 (9th Cir.1971). {¶ 52} In State v. Wine, 140 Ohio St.3d 409 , 2014-Ohio-3948 , 18 N.E.3d 1207 , the Supreme Court of Ohio explained that: In Clayton, this court held that defendant’s counsel’s decision not to request an instruction on lesser included offenses—seeking acquittal rather than inviting conviction on a lesser offense—was a matter of trial strategy. * * * This court essentially said in Clayton’s second foot

2018Cuyahoga No. 57148, 1990 WL 84283 , *2 (June 21, 1990), quoting State v. Clayton, 62 Ohio St.2d 45, 47 , 402 N.E.2d 1189 (1980), quoting United States v. Meyers, 443 F.2d 913, 914 (9th Cir.1971). {¶ 52} In State v. Wine, 140 Ohio St.3d 409 , 2014-Ohio-3948 , 18 N.E.3d 1207 , the Supreme Court of Ohio explained that: In Clayton, this court held that defendant’s counsel’s decision not to request an instruction on lesser included offenses—seeking acquittal rather than inviting conviction on a lesser offense—was a matter of trial strategy. * * * This court essentially said in Clayton’s second foot

2016E.g., Sivit v. Village Green of Beachwood, L.P., 143 Ohio St.3d 168 , 2015-Ohio-1193 , 35 N.E.3d 508, ¶ 9 , citing State v. Adams, 62 Ohio St.2d 151, 157 , 404 N.E.2d 144 (1980). {¶11} To determine whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction, a trial court must (1) Ross App. No. 15CA3499 7 objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in

2016E.g., Sivit v. Village Green of Beachwood, L.P., 143 Ohio St.3d 168 , 2015-Ohio-1193 , 35 N.E.3d 508, ¶ 9 , citing State v. Adams, 62 Ohio St.2d 151, 157 , 404 N.E.2d 144 (1980). {¶11} To determine whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction, a trial court must (1) Ross App. No. 15CA3499 7 objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in

2016Stark No. 2005CA00050, 2006-Ohio-825 , 2006 WL 438691 , ¶21.

2016E.g., Sivit v. Village Green of Beachwood, L.P., 143 Ohio St.3d 168 , 2015-Ohio-1193 , 35 N.E.3d 508, ¶ 9 , citing State v. Adams, 62 Ohio St.2d 151, 157 , 404 N.E.2d 144 (1980). {¶11} To determine whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction, a trial court must (1) Ross App. No. 15CA3499 7 objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in

2016E.g., Sivit v. Village Green of Beachwood, L.P., 143 Ohio St.3d 168 , 2015-Ohio-1193 , 35 N.E.3d 508, ¶ 9 , citing State v. Adams, 62 Ohio St.2d 151, 157 , 404 N.E.2d 144 (1980). {¶11} To determine whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction, a trial court must (1) Ross App. No. 15CA3499 7 objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in

2016Counsel’s failure to renew his request at trial does not constitute deficient performance and supports the theory that trial counsel made a tactical decision not to request an aggravated assault instruction. {¶ 36} Moreover, “the failure to make a futile objection does not constitute deficient performance.” State v. Corder, 2012-Ohio-1995 , 969 N.E.2d 787 (4th Dist.), ¶29, citing State v. Washington, 5th Dist.

2016Counsel’s failure to renew his request at trial does not constitute deficient performance and supports the theory that trial counsel made a tactical decision not to request an aggravated assault instruction. {¶ 36} Moreover, “the failure to make a futile objection does not constitute deficient performance.” State v. Corder, 2012-Ohio-1995 , 969 N.E.2d 787 (4th Dist.), ¶29, citing State v. Washington, 5th Dist.