[Cite as State v. Spencer, 2018-Ohio-641.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2017-04-020

                                                    :          OPINION
    - vs -                                                      2/20/2018
                                                    :

JEROME SPENCER,                                     :

        Defendant-Appellant.                        :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2016 CR 000727



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Jerome Spencer, appeals his conviction for felonious

assault in the Clermont County Court of Common Pleas. For the reasons set forth below, we

affirm his conviction.

        {¶ 2} On December 15, 2016, the Clermont County Grand Jury returned a four-count

indictment charging Spencer with one count each of felony aggravated robbery, felonious
                                                                 Clermont CA2017-04-020

and misdemeanor assault, and felony robbery. The matter proceeded to a three-day jury trial

in March 2017. The trial revealed the following facts.

      {¶ 3} On December 3, 2016, Spencer participated as a driver for what he described

as a "bootleg" ride service facilitated through social media. Spencer picked up Jadon

Crawford and proceeded to drive him from a location in Hamilton County to Crawford's

grandmother's apartment in Clermont County. Spencer and Crawford had never met before.

Crawford informed Spencer that he needed to retrieve money from his grandmother's

apartment and that he knew someone who sells marijuana. Upon arriving at the destination,

Crawford entered his grandmother's apartment, while Spencer waited outside in the vehicle.

Crawford and his grandmother exited the apartment and Spencer drove the two to the

grocery store and back. Crawford's grandmother exited the vehicle and returned to her

apartment, while Crawford stayed with Spencer.

      {¶ 4} Instantaneous with Crawford's grandmother's exit of the vehicle, Tiffany

Peacock and Megan Howard entered the back seat of the vehicle. Next, Spencer and the

two female passengers proceeded with a marijuana transaction. Upon exchanging money

for marijuana, Spencer expressed displeasure with the amount of marijuana he purchased

with respect to the money he provided to the two female passengers. Spencer asked the two

female passengers to return his money and they refused. Attempting to regain his money,

Spencer reached into the backseat to grab Peacock's purse. Spencer told police that "once

they wasn't [sic] trying to get [sic] my money back, shit, I just reached in the back and

punched them and all that."

      {¶ 5} Peacock did not surrender possession of the purse and Spencer began

punching Peacock. Spencer stated he was being as aggressive as possible to regain

possession of his money. Howard attempted to defuse the physical altercation by grabbing

Peacock. Howard successfully pulled Peacock out of the vehicle. At this point, Peacock still
                                            -2-
                                                                     Clermont CA2017-04-020

possessed the purse. Spencer told police that he "climbed through the seat, * * * trying to

punch them and * * * get the bag * * *." This resulted in Spencer "going all the way through

the seat * * * [and] out of the car, hitting them, and trying to fight * * *." Spencer grabbed the

purse and returned to his vehicle. Some of the purse's contents spilled onto the ground

outside the vehicle.

       {¶ 6} Before Spencer left the parking lot of the apartment, Peacock reentered the

vehicle and ripped the keys out of the vehicle's ignition. In response, Spencer told police that

he "was just like, fuck it[, and] tried to run back around [the vehicle] and fight [Peacock and

Howard] some more * * *." Spencer described the physical altercation as "back and forth",

acknowledged punching Peacock and Howard, "scratching their eyes", and kicking one of the

female passengers in the head, while the other tried to shield the blows with her body.

Spencer stated he "just blacked out, and [was] just, like, what the fuck?"

       {¶ 7} Howard corroborated the circumstances surrounding the physical altercation

and stated Spencer knocked Peacock to the ground and began kicking Peacock in the face.

Howard attempted to shield the blows and pleaded with Spencer to cease, but Spencer kept

attacking and kicking the girls. Howard suffered a brain bleed and a head laceration, which

required nine staples. Peacock also suffered facial injuries. A neighbor witnessed the

portion of the physical altercation that occurred outside of the vehicle. The neighbor

described the altercation to the police dispatcher as a male beating up two girls, punching

and kicking them in the face.

       {¶ 8} Spencer requested an instruction regarding aggravated assault, an inferior

charge to felonious assault. After hearing argument from the state and Spencer, the trial

court denied Spencer's request and did not provide such instruction in its final jury

instructions. The jury returned a verdict of guilty for the felonious and misdemeanor assault

charges and not guilty on the robbery charges. On March 8, 2017, the trial court imposed a
                                               -3-
                                                                    Clermont CA2017-04-020

six-year prison term for the felonious assault conviction and a six-month prison term for the

misdemeanor assault conviction.        The trial court imposed the prison terms to run

concurrently.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN

INSTRUCTION ON THE INFERIOR OFFENSE OF AGGRAVATED ASSAULT.

       {¶ 11} Spencer contends the trial court abused its discretion by denying his request to

provide the jury with an instruction on the inferior offense of aggravated assault. In so doing,

Spencer argues there was sufficient evidence presented for the jury to reasonably find him

not guilty of felonious assault and guilty of aggravated assault.

       {¶ 12} Spencer requested a jury instruction on aggravated assault pursuant to R.C.

2903.12(A), which provides, in pertinent part, "[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: (1) [c]ause serious physical harm to another * * *.

Whereas, a person is guilty of felonious assault if the person "knowingly * * * [c]ause[s]

serious physical harm to another * * *." R.C. 2903.11(A)(1). "Because the elements of

aggravated assault are identical to the elements of felonious assault, except for the additional

mitigating element of provocation, aggravated assault is an offense of an inferior degree of

felonious assault." State v. McOsker, 12th Dist. Clermont No. CA2016-05-025, 2017-Ohio-

247, ¶ 14.

       {¶ 13} In deciding whether to give an instruction on an inferior degree offense, the

trial court must view the evidence in a light most favorable to the defendant. State v. Trimble,

122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192. An appellate court will reverse a trial court's

refusal to give a proposed jury instruction where the trial court abused its discretion and the
                                              -4-
                                                                     Clermont CA2017-04-020

omission of the instruction was prejudicial to the complaining party. Enderle v. Zettler, 12th

Dist. Butler No. CA2005-11-484, 2006-Ohio-4326, ¶ 37. An abuse of discretion connotes

more than an error of law or judgment; it implies that the trial court's decision was

unreasonable, arbitrary, or unconscionable. State v. Boles, 12th Dist. Brown No. CA2012-

06-012, 2013-Ohio-5202, ¶ 14.

       {¶ 14} A judge must provide a jury instruction on an inferior degree offense if it is

possible for the trier of fact, under any reasonable view of the evidence, to find the defendant

not guilty of the greater offense and guilty of the inferior offense. McOsker at ¶ 15. "Thus, in

a trial for felonious assault, where the defendant presents sufficient evidence of serious

provocation (such that a jury could both reasonably acquit defendant of felonious assault and

convict defendant of aggravated assault), an instruction on aggravated assault * * * must be

given." (Emphasis sic.) State v. Deem, 40 Ohio St.3d 205, 211 (1988), abrogated in part on

other grounds by State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 4-5.

       {¶ 15} "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." Id. at paragraph five of the syllabus. "In determining whether the

provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an

objective standard must [first] be applied." State v. Shane, 63 Ohio St.3d 630, 634 (1992).

Under an objective standard, "the provocation must be sufficient to arouse the passions of an

ordinary person beyond the power of his or her control." McOsker at ¶ 16. If insufficient

evidence of provocation is presented, so that no reasonable jury would decide that a

defendant was reasonably provoked by the victim, the trial judge must, as a matter of law,

refuse to give the aggravated assault instruction. Id. If the defendant fails to meet the

objective portion of the test, the court need not analyze the subjective portion of the test. Id.

       {¶ 16} However, if the objective standard is met, "the inquiry shifts to a subjective
                                               -5-
                                                                    Clermont CA2017-04-020

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.'" State v. Mack, 82 Ohio St.3d 198,

201 (1998), quoting Shane at 635. In so doing, the trial court must consider the "emotional

and mental state of the defendant and the conditions and circumstances that surrounded him

at the time." Deem at 211.

       {¶ 17} In the present case, we find that the trial court did not err in denying Spencer's

request for an aggravated assault jury instruction. Spencer presented insufficient evidence,

as a matter of law, to support an acquittal on felonious assault and a conviction on

aggravated assault. The totality of the evidence presented at trial, even when viewed in a

light most favorable to Spencer, did not raise a possibility of serious provocation occasioned

by the victims.

       {¶ 18} Spencer submits there is sufficient evidence of serious provocation to warrant

an aggravated assault instruction. Spencer contends he and the two female passengers

were engaged in mutual combat and, because of this mutual combat, he was a victim of

assault. See Shane at 635 (listing mutual combat as a "classic example" of serious

provocation in a voluntary manslaughter situation).

       {¶ 19} However, a thorough review of the record clearly does not support Spencer's

contention. Viewing the evidence in a light most favorable to Spencer, the record is devoid of

any indication the actions of the two female passengers were reasonably sufficient to arouse

the passions of an ordinary person beyond his or her control. Rather, Spencer justified

engaging in physical violence with the two female passengers because he felt he was not

getting an adequate quantity of marijuana in the drug exchange.                 Therefore, he

"aggressively" grabbed at Peacock's purse and began punching the two female passengers

to regain possession of his money. Even assuming the two female passengers provided less

marijuana than agreed upon in the drug transaction, thereby "ripping off" Spencer, theft of
                                              -6-
                                                                     Clermont CA2017-04-020

personal property is not sufficient to demonstrate serious provocation. State v. Smith, 12th

Dist. Fayette No. CA2007-10-35, 2008-Ohio-5931, ¶ 25-26. Specifically, this court in Smith

held that theft in a drug transaction does not equate to serious provocation. Id. at ¶ 14, 25-

26.

       {¶ 20} Additionally, Spencer's contention the physical altercation constituted mutual

combat and was therefore a "classic example" of serious provocation is without merit. The

record reflects that upon the two female passengers' refusal to refund the money, Spencer

began punching them. Spencer climbed through the seat to continue punching them and

continued with the physical altercation outside of the vehicle by punching and kicking the two

female passengers as they lay on the ground attempting to shield his blows. Spencer

testified the two female passengers resisted his attempts to grab the purse, returned

punches and scratched him, and in the struggle for the purse pulled him from the vehicle.

However, "a victim's simple pushing or punching does not constitute sufficient provocation to

warrant an aggravated assault instruction." State v. Shepherd, 12th Dist. Butler No. CA2015-

11-187, 2017-Ohio-328, ¶ 31. By Spencer's admission, clearly the physical aspect of the

altercation began when Spencer "reached in the back and punched them and all that", and

continued with Spencer kicking and punching the female passengers as they lay defenseless

on the ground.

       {¶ 21} Assuming arguendo, Spencer met his burden with respect to the objective

portion of the serious provocation test, he failed to meet the subjective portion of the test.

Spencer contends he was "pushed to the point where deadly force might be necessary in

order to safely extricate himself from this situation[,]" as he could "reasonably believe that he

[was] in some serious peril, perhaps deadly peril." However, the record demonstrates no

indication Spencer believed he was in any kind of peril. Rather, the record reflects that

Spencer believed he was being scammed by paying money for a larger quantity of marijuana
                                               -7-
                                                                   Clermont CA2017-04-020

than the two female passengers provided. In response, he punched the two women until he

perceived that they did not want to fight anymore. Then, he retrieved the purse and returned

to his vehicle. Upon Peacock reentering the vehicle and removing the keys from the ignition,

Spencer "was just like fuck it[, and] tried to run back around [the vehicle] and fight [Peacock

and Howard] some more." Thus, the record does not reflect that Spencer used forced to

safely extricate himself from the situation, but rather, "aggressively" used force to regain

possession of the money from the drug transaction, and then, persisted in using force when

the two females lay on the ground defenseless. Even construing Spencer's aggressive

response as a product of fear of being scammed, "[f]ear alone is insufficient to demonstrate

the kind of emotional state necessary to constitute sudden passion or fit of rage." State v.

Mack, 82 Ohio St.3d 198, 201 (1998). Therefore, the trial court did not abuse its discretion in

finding Spencer failed to demonstrate serious provocation warranting an aggravated assault

instruction.

       {¶ 22} Accordingly, Spencer's sole assignment of error is overruled.

       {¶ 23} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




                                              -8-
