State v. Deem, 87-1808

• Decision Date: 30 December 1988
• Docket Number: No. 87-1808,87-1808
• Citation: 40 Ohio St.3d 205,533 N.E.2d 294
• Parties: The STATE of Ohio, Appellant, v. DEEM, Appellee.
• Court: Ohio Supreme Court

Page 205

40 Ohio St.3d 205

533 N.E.2d 294

The STATE of Ohio, Appellant, v. DEEM, Appellee.

No. 87-1808.

Supreme Court of Ohio.

Submitted Oct. 4, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. Pursuant to R.C. 2945.74 and Crim.R. 31(C), a jury may consider three groups of lesser offenses on which, when supported by the evidence at trial, it must be charged and on which it may reach a verdict: (1) attempts to commit the crime charged, if such an attempt is an offense at law; (2) inferior degrees of the indicted offense; or (3) lesser included offenses.

2. An offense is an "inferior degree" of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements. (R.C. 2945.74 and Crim.R. 31[C], construed.)

3. An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. (State v. Kidder [1987], 32 Ohio St.3d 279, 513 N.E.2d 311, modified.)

4. Aggravated assault, R.C. 2903.12, contains elements which are identical to the elements defining felonious assault, R.C. 2903.11, except for the additional mitigating element of serious provocation. Thus, 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. (R.C. 2945.74 and Crim.R. 31[C], construed and applied.)

5. Provocation, 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. 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. (State v. Mabry [1982], 5 Ohio App.3d 13, 5 OBR 14, 449 N.E.2d 16, paragraph five of the syllabus, approved.)

Since 1983, defendant-appellee, Robert Deem, and Kandace Shauck had maintained a close relationship. They lived together for approximately one and one-half years, but separated in 1985. In 1986, they began meeting again. In May of that year, each filed criminal charges against the other in either or both Hamilton and Clermont Counties.

According to appellee, on May 27, 1986, he waited in his car at a roadside park on State Route 125, near Bethel, Ohio, for Shauck to pass by in her car on her way to work. After Shauck drove by, appellee followed her in his car. Appellee pulled alongside Shauck's car and motioned for her to pull over to the side of the road. Shauck responded only by shaking her head. At some point, the cars bumped. There is disagreement as to which car first bumped the other but eventually appellee forced Shauck's car off the road and into a ditch. Appellee stopped his car in front of Shauck's. Appellee then went to Shauck's car and attempted to convince Shauck to open her window. When Shauck refused, appellee went back to his car, obtained a hammer, walked back to Shauck's car and broke the driver's side window. According to appellee, he then fled as others approached. However, other testimony established that appellee reached through the broken window and stabbed Shauck numerous times, causing about thirty wounds. Shauck was subsequently hospitalized. Appellee fled into the woods and turned himself in to the authorities two days later.

Appellee was charged with felonious assault (R.C. 2903.11) and tried by a jury for the stabbing of Shauck. Just prior to the close of evidence, defense counsel requested a jury instruction on aggravated assault (R.C. 2903.12) as a lesser included offense of felonious assault. Defense counsel requested the aggravated assault instruction based on appellee's testimony that appellee was provoked and confused as to why Shauck bumped her car into his and that he wanted answers as to who had filed criminal charges against him in Clermont County. The trial court rejected the requested instruction. Despite appellee's claim that he did not stab Shauck, appellee was convicted of felonious assault with a specification of a prior kidnapping conviction. Appellee was sentenced to not less than twelve but not more than fifteen years in the state penitentiary.

Appellee appealed, contending that regardless of whether aggravated assault is a lesser included offense of felonious assault, the trial court should have instructed the jury on mitigating evidence that would require a finding of guilty only as to aggravated assault. The court of appeals found aggravated assault to be a lesser included offense of felonious assault and reversed appellee's conviction and ordered a new trial.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

George E. Pattison, Pros. Atty., and Lawrence R. Fisse, Batavia, for appellant.

John K. Daggett, Cincinnati, for appellee.

HOLMES, Justice.

This case presents us with the recurring issue of whether the jury in a criminal trial should be instructed on a particular offense for which the defendant was not indicted as a lesser offense of the crime for which the defendant was indicted, pursuant to R.C. 2945.74 and Crim.R. 31(C). Specifically, appellee insists that he was entitled to a jury instruction on aggravated assault as a lesser included offense of felonious assault, based on the evidence of provocation which he presented at trial. We disagree and thus reverse the court of appeals since, in the final analysis, the evidence of provocation presented by appellee was insufficient, as a matter of law, to support a conviction on aggravated assault.

R.C. 2945.74 provides, in pertinent part:

"The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense. * * * " (Emphasis added.)

Crim.R. 31 provides, in pertinent part:

"(C) Conviction of lesser offense. The defendant may be found not guilty of the offense charged but guilty of an attempt to commit it if such an attempt is an offense at law. When the indictment, information, or complaint charges an offense including degrees, or if lesser offenses are included within the offense charged, the defendant may be found not guilty of the degree charged but guilty of an inferior degree thereof, or of a lesser included offense." (Emphasis added.)

Heretofore, our discussion of lesser offenses in this context has considered only that group of lesser offenses which were both lesser than and necessarily included within the indicted offense, i.e., lesser "included" offenses. See, e.g., State v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082; State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311; State v. Wilkins (1980), 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303; State v. Kuchmak (1953), 159 Ohio St. 363, 50 O.O. 327, 112 N.E.2d 371. However, an examination of the statute and rule governing which lesser offenses a jury may consider reveals two additional groups of lesser offenses on which, when supported by the evidence, a jury must be charged and on which it may reach a verdict: (1) attempts to commit the crime charged, if such an attempt is an offense at law; and (2) inferior degrees of the indicted offense. Each of these groups of offenses is conceptually separate and distinct from the group of lesser "included" offenses also provided for in the statute and rule.

Attempts, as criminal offenses, arise from R.C. 2923.02 ¹ and need not be included within the indictment for the completed offense. Rather, if during the course of trial the defendant presents sufficient evidence that his conduct was unsuccessful in constituting the indicted offense, an instruction to the jury on attempt would be proper.

Similarly, the group of "inferior degree[s]" of the indicted offense is wholly distinct from the group of "lesser included offenses." The term "degrees" used in both the statute and the rule refers to the penalties for felonies and misdemeanors provided in R.C. 2929.11 and 2929.21, which are grouped into descending categories of imprisonment and fines according to the severity of the offense. An "offense, including different degrees," is an offense which, upon proof of a mitigating or aggravating element, is assigned a different "degree" of punishment. Until now, this court has not had occasion to discuss this group of lesser offenses. As a pedagogic example, the offense of kidnapping, R.C. 2905.01, is illustrative.

R.C. 2905.01(A) and (B) define the offense of kidnapping. R.C. 2905.01(C) provides the penalty for such offense, and states as follows:

"Whoever violates this section is guilty of kidnapping, an aggravated felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is an aggravated felony of the second degree."

Thus, when in a kidnapping trial the defendant presents sufficient evidence that he released the victim unharmed in a safe place, the jury should be instructed (upon a timely request) that it may so find and render a verdict of guilty to the inferior degree of kidnapping--an aggravated felony of the second degree. This is not a lesser included offense, but is still chargeable pursuant to R.C. 2945.74 and Crim.R. 31(C). Therefore, an offense is an "inferior degree" of the indicted offense where its elements are...