[Cite as State v. Crowe, 2019-Ohio-3986.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-19-12

        v.

DALTON K. CROWE,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2018 0144

                                      Judgment Affirmed

                         Date of Decision: September 30, 2019




APPEARANCES:

        Reed D. Searcy for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-12


PRESTON, J.

       {¶1} Defendant-appellant, Dalton K. Crowe (“Crowe”), appeals the

February 27, 2019 judgment of sentence of the Allen County Court of Common

Pleas. For the reasons that follow, we affirm.

       {¶2} On April 3, 2018, Joshua McPheron (“Joshua”) was living with his

brother, Jonathan McPheron (“Jonathan”), at 207 West Grand Avenue in Lima,

Ohio. (Jan. 8-9, 2019 Tr., Vol. I, at 166-167). Although Joshua had been sober for

approximately seven months, he came home that day with a bottle of alcohol

knowing “he was going to relapse and have a drink * * *.” (Id. at 167-168). When

Joshua arrived home, he saw that Crowe, who was a friend of Jonathan’s, was sitting

next to Jonathan on the couch. (Id. at 168). Joshua informed Jonathan and Crowe

that he “wanted to be left alone that day” and withdrew to his basement bedroom

where he “[s]tarted having some drinks.” (Id. at 168-169).

       {¶3} After spending some time drinking alcohol in the basement by himself,

Joshua invited his friend, Angie Jordan (“Jordan”), to “hang out.” (Id. at 169); (Jan.

8-9, 2019 Tr., Vol. II, at 231). Once Jordan arrived, Joshua and Jordan listened to

music, talked, and started “taking some drinks.” (Jan. 8-9, 2019 Tr., Vol. I, at 170).

Eventually, Jordan came upstairs and asked Crowe whether he wanted to join her

and Joshua. (Jan. 8-9, 2019 Tr., Vol. II, at 232). Crowe accepted Jordan’s offer,

followed her into the basement, and began imbibing Joshua’s alcohol. (Id.); (Jan.


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8-9, 2019 Tr., Vol. I, at 170). According to Jordan, she and Joshua became drunk,

but Crowe was just “buzzed [be]cause he only had a little bit.” (Jan. 8-9, 2019 Tr.,

Vol. II, at 245).

       {¶4} At some point, Jordan began giving Joshua a haircut. (Id. at 234);

(State’s Exs. 27, 28). Joshua and Jordan decided to broadcast video of Joshua’s

haircut via Facebook Live using Joshua’s cell phone, which Joshua held in his hand,

and Jordan’s cell phone, which Crowe held. (Jan. 8-9, 2019 Tr., Vol. II, at 234-

235); (See State’s Exs. 27, 28). In the videos, Joshua and Crowe can be heard

arguing and trading insults. (See State’s Exs. 27, 28). Initially, Joshua and Crowe’s

interaction was mostly “friendly,” and the two were “joking,” “laughing,” and

“playing.” (Jan. 8-9, 2019 Tr., Vol. I, at 181); (Jan. 8-9, 2019 Tr., Vol. II, at 236);

(See State’s Exs. 27, 28). However, “playing went to arguing,” the encounter soon

“escalated,” and a physical altercation ensued in which Crowe “backhanded” Joshua

and Joshua struck Crowe in the face and knocked him to the ground. (Jan. 8-9, 2019

Tr., Vol. I, at 172-173, 182-183); (Jan. 8-9, 2019 Tr., Vol. II, at 236-238, 247);

(State’s Exs. 27, 28). Once the scuffle ended, Crowe mounted the staircase leading

out of the basement. (State’s Ex. 27). There, Crowe continued to scream threats

and obscenities at Joshua. (Id.). Joshua responded by taunting Crowe until Crowe

turned and climbed the stairs with Jordan following closely behind him. (Id.).




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Joshua did not try to prevent Crowe from climbing the stairs, and he remained in

the basement for approximately fifteen seconds after Crowe went upstairs. (Id.).

       {¶5} When Crowe scaled the staircase to the main level of the residence,

Jonathan, who had been napping upstairs, was awoken by Crowe’s shouting. (Jan.

8-9, 2019 Tr., Vol. II, at 256-257). As Crowe walked through the living room past

Jonathan, Jonathan noticed that Crowe was carrying a steak knife in his hand. (Id.

at 258). According to Jonathan, Crowe “went to the front door and * * * pac[ed],

like he was waiting for someone maybe, or maybe he was trying to leave, or wanted

to leave but wasn’t sure he wanted to.” (Id. at 259). By then, Joshua had emerged

from the basement and joined Crowe, Jonathan, and Jordan in the front room. (Id.

at 239, 259); (State’s Ex. 27). After arguing with Crowe for a few seconds, and

before Jonathan could attempt to disarm Crowe, Joshua “head[ed] towards the front

door and bl[ew] right past” Jonathan and Jordan. (Jan. 8-9, 2019 Tr., Vol. II, at 239,

259); (See State’s Ex. 27). As Joshua moved toward the front door, Crowe began

walking toward Joshua with his “guard up.” (Jan. 8-9, 2019 Tr., Vol. II, at 261).

Ultimately, Crowe and Joshua “met like right there in the front room * * * coming

at each other” and began fighting again. (Id. at 261-262).

       {¶6} A few seconds later, Jonathan moved to separate Joshua and Crowe.

(State’s Ex. 27). By this time, Crowe had “backed himself up” against a wall and

Joshua was delivering punches to Crowe’s face. (Jan. 8-9, 2019 Tr., Vol. II, at 252);


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(State’s Ex. 27). While separating Joshua and Crowe, Jonathan wrested the knife

from Crowe “because [he] was actually trying to shove it in farther” into Joshua’s

chest. (Jan. 8-9, 2019 Tr., Vol. II, at 262); (See State’s Ex. 27). Once Joshua and

Crowe were separated, Crowe left the front room and moved toward the back of the

residence. (See State’s Ex. 27). At that time, Jonathan and Jordan realized that

Joshua was bleeding profusely and that Crowe was gone. (Jan. 8-9, 2019 Tr., Vol.

II, at 240, 263); (See State’s Ex. 27). Joshua was transported to a local hospital

where he received treatment for puncture wounds to his chest and left bicep and a

slash wound to his neck. (Jan. 8-9, 2019 Tr., Vol. I, at 148, 176); (See State’s Exs.

1, 2, 3, 4).

        {¶7} Crowe was apprehended by law enforcement officers shortly after

fleeing from 207 West Grand Avenue. (See Jan. 8-9, 2019 Tr., Vol. I, at 208-210,

216-217). When he was placed under arrest, law enforcement officers noticed that

he “had blood smeared on his person,” though they did not note any active bleeding.

(Id. at 210-211, 217); (See State’s Exs. 30, 33, 34). Despite the blood visible on his

face and arms, when Crowe was taken to the hospital for treatment, his only apparent

injuries were a swollen, bruised left eye and a small cut on one of his fingers. (Jan.

8-9, 2019 Tr., Vol. I, at 223); (Jan. 8-9, 2019 Tr., Vol. II, at 292-293); (State’s Exs.

30, 31, 35, 36).




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       {¶8} On April 4, 2018, the day after the incident, Crowe was interviewed by

Detective Steven Stechschulte (“Detective Stechschulte”) of the Lima Police

Department. (See State’s Ex. 37). At various points in the interview, Crowe

admitted that he used a knife against Joshua during the fight, but Crowe insisted that

he was the victim in the altercation. (Id.). When asked why he grabbed the knife

instead of leaving the residence, Crowe remarked that he was “very scared,”

“distraught,” and disoriented. (Id.). Crowe stated that he armed himself with the

knife because he perceived that Joshua was pursuing him closely as he left the

basement. (Id.). However, he eventually conceded that he “should have left as soon

as [the basement fight] happened” and that he should have “kept running” out of the

residence after leaving the basement. (Id.). Throughout the interview, Crowe

resisted characterizing his state of mind as angry or “pissed” at the time he

confronted Joshua with the knife. (Id.).

       {¶9} On May 17, 2018, the Allen County Grand Jury indicted Crowe on one

count of felonious assault in violation of R.C. 2903.11(A)(2), (D)(1)(a), a second-

degree felony. (Doc. No. 4). On May 25, 2018, Crowe appeared for arraignment

and pleaded not guilty to the count of the indictment. (Doc. No. 11).

       {¶10} A jury trial was held on January 8 and 9, 2019. (Doc. Nos. 29, 77);

(Jan. 8-9, 2019 Tr., Vol. I, at 1); (Jan. 8-9, 2019 Tr., Vol. II, at 230). At the close

of the evidence, Crowe requested a self-defense jury instruction, which the trial


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court declined to issue. (Jan. 8-9, 2019 Tr., Vol. II, at 319-320). However, the trial

court granted Crowe’s request for an aggravated-assault jury instruction and

charged the jury to consider whether Crowe committed the inferior offense of

aggravated assault rather than felonious assault. (Id. at 320, 367-368). After

deliberations, the jury found Crowe guilty of felonious assault as charged in the

indictment. (Id. at 379-380); (Doc. No. 77). The trial court filed its judgment entry

of conviction on January 10, 2019. (Doc. No. 78).

       {¶11} On February 27, 2019, the trial court sentenced Crowe to three years

in prison. (Doc. No. 86).

       {¶12} On March 25, 2019, Crowe filed a notice of appeal. (Doc. No. 91).

He raises two assignments of error for our review.

                            Assignment of Error No. I

       The trial court erred and abused its discretion by failing to give a
       jury instruction on self-defense.

       {¶13} In his first assignment of error, Crowe argues that the trial court abused

its discretion by failing to issue a self-defense jury instruction. Crowe argues that

“sufficient evidence was presented to merit an instruction on the affirmative defense

of self-defense” and that the trial court thus abused its discretion by declining to

give the instruction. (Appellant’s Brief at 6-10).

       {¶14} “‘Generally, a trial court must provide the jury with all instructions

that are relevant and necessary to weigh the evidence and discharge their duties as

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the fact finders.’” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222,

¶ 38, quoting State v. Sunderman, 5th Dist. Stark No. 2006-CA-00321, 2008-Ohio-

3465, ¶ 21, citing State v. Joy, 74 Ohio St.3d 178, 181 (1995); State v. Thiel, 3d

Dist. Wyandot No. 16-16-01, 2017-Ohio-242, ¶ 135 (“[T]he trial court should give

requested jury instructions ‘if they are correct statements of the law applicable to

the facts in the case * * *.’”), quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d

585, 591 (1991). “However, ‘a court need not instruct the jury as a party requests

if “the evidence adduced at trial is legally insufficient” to support it.’” Suffel at ¶

38, quoting State v. Juntunen, 10th Dist. Franklin Nos. 09AP-1108 and 09AP-1109,

2010-Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio App.3d 254, 259 (3d

Dist.1993). See State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, ¶ 72 (“[I]n

order for a defendant to properly raise an affirmative defense, ‘“evidence of a nature

and quality sufficient to raise the issue must be introduced, from whatever source

the evidence may come.”’”), quoting State v. Melchior, 56 Ohio St.2d 15, 20 (1978),

quoting State v. Robinson, 47 Ohio St.2d 103, 111-112 (1976). Ultimately, “‘[t]he

trial court possesses the discretion “to determine whether the evidence presented at

trial is sufficient to require that [the] instruction be given.”’” Suffel at ¶ 38, quoting

Juntunen at ¶ 13, quoting State v. Lessin, 67 Ohio St.3d 487, 494 (1993); Fulmer at

¶ 72. Accordingly, “‘[w]hen reviewing a court’s refusal to give a requested jury

instruction, an appellate court considers whether the trial court’s refusal to give said


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instruction was an abuse of discretion under the facts and circumstances of the

case.’” State v. Simonis, 3d Dist. Seneca No. 13-14-05, 2014-Ohio-5091, ¶ 31,

quoting State v. Kunz, 6th Dist. Wood No. WD-10-047, 2011-Ohio-3115, ¶ 30,

citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion is more

than a mere error in judgment; it suggests that a decision is unreasonable, arbitrary,

or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

         {¶15} In this case, the trial court declined Crowe’s request for a self-defense

jury instruction. Under the law in effect at the time of Crowe’s trial, Crowe would

have borne the burden of proving self-defense by a preponderance of the evidence.

State v. Ferdinandsen, 3d Dist. Hancock No. 5-16-08, 2016-Ohio-7172, ¶ 22 (“As

an affirmative defense, the defendant must prove by a preponderance of the

evidence the elements of self-defense.”), citing State v. Reed, 9th Dist. Summit No.

27755, 2016-Ohio-5123, ¶ 15, citing State v. Cornwell, 9th Dist. Wayne No.

14AP0017, 2015-Ohio-4617, ¶ 19, citing R.C. 2901.05(A) (Sept. 9, 2008).1 The

elements of a self-defense claim differ based on whether the defendant employed

deadly or non-deadly force to defend against their perceived assailant. Crowe’s use



1
  Subsequent to Crowe’s trial, amendments to R.C. 2901.05 affecting the burden of proof for self-defense
claims became effective. Under the current version of R.C. 2901.05, the “burden of going forward with the
evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an
affirmative defense other than self-defense * * * is upon the accused.” (Emphasis added.) R.C. 2901.05(A)
(Mar. 28, 2019). Now, “[i]f, at the trial of a person who is accused of an offense that involved the person’s
use of force against another, there is evidence presented that tends to support that the accused person used
the force in self-defense * * *, the prosecution must prove beyond a reasonable doubt that the accused person
did not use the force in self-defense * * *.” R.C. 2901.05(B)(1) (Mar. 28, 2019).

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of a steak knife to slash at and stab Joshua constitutes the use of deadly force. State

v. Harding, 2d Dist. Montgomery No. 24062, 2011-Ohio-2823, ¶ 15, citing State v.

Densmore, 3d Dist. Henry No. 7-08-04, 2009-Ohio-6870, ¶ 28, State v. Sims, 8th

Dist. Cuyahoga No. 85608, 2005-Ohio-5846, ¶ 17, and State v. Hansen, 4th Dist.

Athens No. 01CA15, 2002-Ohio-6135, ¶ 29; R.C. 2901.01(A)(2) (“‘Deadly force’

means any force that carries a substantial risk that it will proximately result in the

death of any person.”).

       {¶16} To establish self-defense through the use of deadly force, Crowe

would have been required to prove: (1) that he “was not at fault in creating the

situation giving rise to the affray”; (2) that he 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) that he “did not violate any

duty to retreat or avoid the danger.” State v. Barnes, 94 Ohio St.3d 21, 24 (2002),

citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.

Furthermore, a person is privileged only to “use as much force as is reasonably

necessary to repel [an] attack.” State v. Shine-Johnson, 10th Dist. Franklin No.

17AP-194, 2018-Ohio-3347, ¶ 61, citing State v. Harrison, 10th Dist. Franklin No.

06AP-827, 2007-Ohio-2872, ¶ 25, citing State v. Jackson, 22 Ohio St.3d 281 (1986).

As a result, Crowe would have been required to show that “‘the degree of force used

was “warranted” under the circumstances and “proportionate” to the perceived


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threat.’” State v. Waller, 4th Dist. Scioto Nos. 15CA3683 and 15CA3684, 2016-

Ohio-3077, ¶ 26, quoting State v. Hendrickson, 4th Dist. Athens No. 08CA12, 2009-

Ohio-4416, ¶ 31, citing State v. Palmer, 80 Ohio St.3d 543, 564 (1997). “‘[T]he

elements of self-defense are cumulative.’” Harding at ¶ 16, quoting Jackson at 284.

Therefore, had the jury been instructed on self-defense, Crowe’s failure to prove

“‘any one of these elements by a preponderance of the evidence’” would have

doomed his claim of self-defense. (Emphasis sic.) Id., quoting Jackson at 284.

       {¶17} In rejecting Crowe’s request for a self-defense instruction, the trial

court concluded, “[I]f you construe [the evidence] in favor of [Crowe] there’s no

evidence that [Crowe] did not have both the ability and the opportunity to leave.

So, * * * as a matter of law, [Crowe] violated a duty to retreat. He had the

opportunity to retreat [and] [t]herefore, the instruction on self-defense would not

apply in this case.” (Jan. 8-9, 2019 Tr., Vol. II, at 319). Furthermore, the trial court

refused to issue the self-defense jury instruction on the basis that “the evidence is

that [Joshua] was stabbed at least four times and * * * that exceeded that which is

conceivably necessary to repel the attack.” (Id. at 319-320). After reviewing the

record, we conclude that the trial court did not abuse its discretion by determining

that the evidence was insufficient to support a self-defense jury instruction.

Specifically, we agree with the trial court’s conclusion that the evidence was

insufficient to demonstrate that Crowe did not violate his duty to retreat. Thus, we


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conclude that the trial court did not abuse its discretion by denying Crowe’s request

for a self-defense instruction.

       {¶18} After the initial physical confrontation in the basement, Crowe had the

opportunity to leave the residence without further incident.          The evidence

demonstrated that Crowe was able to make his way to the staircase leading out of

the basement with little difficulty, and neither Joshua nor Jordan blocked Crowe’s

path to the stairs or attempted to stop him from returning to the main level of the

residence. Moreover, there was no evidence presented indicating that Crowe was

prevented from leaving the residence once he exited the basement. The evidence

established that Crowe chose to remain in the residence, knife in hand, rather than

take advantage of the opportunity to leave.

       {¶19} In addition, the evidence demonstrated that after leaving the basement

and grabbing the knife, Crowe positioned himself in the front room near the front

door. Crowe was still pacing by the front door when Joshua emerged from the

basement and resumed arguing with Crowe roughly 25 seconds later. Yet, as Joshua

crossed the front room to confront Crowe again, Crowe moved toward Joshua and

met him in the middle of the room instead of attempting to escape through the front

door. Approximately 5 seconds elapsed between when Joshua started to approach

Crowe and when the second physical confrontation began. (State’s Ex. 27). Thus,

while Crowe was likely aware that Joshua intended to fight him again and although


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he had time to distance himself from Joshua, Crowe decided to move toward, rather

than away from, the danger posed by Joshua. (See State’s Ex. 27); (Jonathan’s

Testimony, Jan. 8-9, 2019 Tr., Vol. II, at 262) (“They both knew something was

going to happen * * *[.] Like, they were going to fight. They knew it.”).

Accordingly, we conclude that the trial court did not abuse its discretion by

determining that the evidence was legally insufficient to support a determination

that Crowe did not violate his duty to retreat. See Harding, 2011-Ohio-2823, at ¶

17-36 (where the defendant knew that his assailants intended to fight him, was not

surrounded on a public sidewalk, and used the time it took his assailants to approach

him to prepare for, rather than flee from, the fight, the weight of the evidence

supported that the defendant violated his duty to retreat); State v. Wilson, 2d Dist.

Montgomery No. 22581, 2009-Ohio-525, ¶ 43-44; State v. Mathews, 3d Dist. Logan

No. 8-02-19, 2002-Ohio-6619, ¶ 6-8. As a result, we conclude that the trial court

did not abuse its discretion by refusing Crowe’s request for a self-defense jury

instruction.2

         {¶20} Crowe’s first assignment of error is overruled.




2
  Because we have concluded that the trial court did not abuse its discretion by declining to issue a self-
defense jury instruction on grounds that the evidence was legally insufficient to demonstrate that Crowe did
not violate his duty to retreat, we need not consider the trial court’s alternative justification for declining to
issue a self-defense instruction—that the force used by Crowe was manifestly disproportionate to the
perceived threat.

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                            Assignment of Error No. II

       The jury’s decision finding appellant guilty of felonious assault
       was against the manifest weight of the evidence.

       {¶21} In his second assignment of error, Crowe argues that his felonious-

assault conviction is against the manifest weight of the evidence. Specifically,

Crowe argues that the weight of the evidence supports that he was seriously

provoked by Joshua and that he attacked Joshua with the steak knife in a sudden fit

of rage. (See Appellant’s Brief at 12-13). Thus, Crowe argues, the evidence

supports a conviction for aggravated assault, rather than felonious assault. (Id. at

12-13).

       {¶22} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380,

387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A

reviewing court must, however, allow the trier of fact appropriate discretion on

matters relating to the weight of the evidence and the credibility of the witnesses.

State v. DeHass, 10 Ohio St.2d 230, 231 (1967).                  When applying the

manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs

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heavily against the conviction,’ should an appellate court overturn the trial court’s

judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,

quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶23} The offense of felonious assault is codified in R.C. 2903.11, which

provides in relevant part: “No person shall knowingly * * * [c]ause or attempt to

cause physical harm to another * * * by means of a deadly weapon * * *.” R.C.

2903.11(A)(2). “A person acts knowingly, regardless of purpose, when the person

is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B). “Physical harm” means “any

injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3). “Deadly weapon” means “any instrument, device,

or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon.” R.C. 2923.11(A).

       {¶24} The offense of aggravated assault is codified in R.C. 2903.12. R.C.

2903.12 provides in pertinent part:

       No 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




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       attempt to cause physical harm to another * * * by means of a deadly

       weapon * * *.

R.C. 2903.12(A)(2). Thus, “aggravated assault is an inferior degree [offense to]

felonious assault because its elements are identical to or contained within the

offense of felonious assault, coupled with the additional presence of one or both

mitigating circumstances of sudden passion or a sudden fit of rage brought on by

serious provocation occasioned by the victim.” State v. Johns, 10th Dist. Franklin

No. 11AP-203, 2011-Ohio-6823, ¶ 20, citing State v. Logan, 10th Dist. Franklin

No. 08AP-881, 2009-Ohio-2899, ¶ 12, fn. 1, citing State v. Deem, 40 Ohio St.3d

205 (1988).      The defendant bears the burden of proving the mitigating

circumstances by a preponderance of the evidence. Id., citing State v. Rhodes, 63

Ohio St.3d 613 (1992), syllabus.

       {¶25} “The serious-provocation inquiry is a factual inquiry that contains

‘both objective and subjective components.’” State v. Smith, 168 Ohio App.3d 141,

2006-Ohio-3720, ¶ 46 (1st Dist.), quoting State v. Shane, 63 Ohio St.3d 630, 634

(1992). First, under the objective component, the trier of fact must determine

whether the provocation was “reasonably sufficient to bring on extreme stress and

* * * reasonably sufficient to incite or to arouse the defendant into using deadly

force.” Deem at paragraph five of the syllabus, citing State v. Mabry, 5 Ohio App.3d

13 (8th Dist.1982), paragraph five of the syllabus. In other words, the trier of fact


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must decide whether the defendant has proven that the provocation was “‘sufficient

to arouse the passions of an ordinary person beyond the power of his or her

control.’” State v. Saldana, 3d Dist. Wyandot No. 16-08-09, 2008-Ohio-5829, ¶ 12,

quoting Shane at 635.

       {¶26} Next, if the trier of fact has found that the defendant satisfied his

burden under the objective component, “the inquiry shifts to the subjective

component of whether [the defendant], in [a] particular case, actually was under the

influence of sudden passion or in a sudden fit of rage.” Shane at 634. At that point,

the trier of fact must consider the “‘emotional and mental state of the defendant and

the conditions and circumstances that surrounded him at the time * * *.’” Id.,

quoting Deem at paragraph five of the syllabus.

       {¶27} In this case, the evidence overwhelmingly demonstrates that Crowe

knowingly caused Joshua physical harm by means of a deadly weapon.                As

evidenced by one of the Facebook Live videos, uncontradicted testimony, and

Crowe’s own admission during his interview with Detective Stechschulte, Crowe

slashed and stabbed at Joshua with a deadly weapon, a steak knife, during their

second physical confrontation. See State v. Brown, 8th Dist. Cuyahoga No. 87651,

2006-Ohio-6267, ¶ 42 (“Ohio courts * * * have held that a steak knife can constitute

a deadly weapon.”), citing In re J.R., 9th Dist. Medina No. 04CA0066-M, 2005-

Ohio-4090, State v. Burrows, 8th Dist. Cuyahoga No. 54153, 1988 WL 12981 (Feb.


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11, 1988), and State v. Knecht, 11th Dist. Portage No. 1306, 1983 WL 6026 (Dec.

16, 1983). As a result, Joshua sustained a number of slash wounds and puncture

wounds to his arm, chest, and neck—injuries that unquestionably fit within the

definition of physical harm. Finally, from the evidence in the record, especially

Crowe’s interview with Detective Stechschulte, it can be readily inferred that Crowe

knew that by attacking Joshua with the steak knife, he would probably cause

physical harm to Joshua. Therefore, absent a showing by Crowe by a preponderance

of the evidence that Joshua seriously provoked him and that he attacked Joshua with

the steak knife under the influence of a sudden passion or fit of rage occasioned by

Joshua’s serious provocation, Crowe’s felonious-assault conviction is not against

the manifest weight of the evidence.

       {¶28} Here, even assuming that Crowe satisfied his burden of proving by a

preponderance of the evidence that Joshua’s aggression was reasonably sufficient

to incite him into using deadly force against Joshua, the evidence does not support

that Crowe was actually under the influence of a sudden passion or in a sudden fit

of rage when he used the steak knife against Joshua.           “When analyzing the

subjective prong of the [serious-provocation] test, ‘[e]vidence supporting the

privilege of self-defense, i.e., that the defendant feared for his own personal safety,

does not constitute sudden passion or fit of rage.’” Harding, 2011-Ohio-2823, at ¶

43, quoting State v. Stewart, 10th Dist. Franklin No. 10AP-526, 2011-Ohio-466, ¶


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13, citing State v. Tantarelli, 10th Dist. Franklin No. 94APA11-1618, 1995 WL

318730 (May 23, 1995), and citing State v. Mack, 82 Ohio St.3d 198, 201 (1998)

and State v. McClendon, 2d Dist. Montgomery No. 23558, 2010-Ohio-4757, ¶ 23,

vacated, in part, on other grounds, State v. McClendon, 128 Ohio St.3d 354, 2011-

Ohio-954. While there is little direct evidence in the record concerning Crowe’s

state of mind at the time of the attack, what direct evidence there is supports that

Crowe was acting out of fear, rather than passion or rage, when he attacked Joshua.

       {¶29} In his interview with Detective Stechschulte, Crowe repeatedly

claimed that he was “very scared” or “distraught” when he picked up the steak knife

and used it against Joshua. (See State’s Ex. 37). Furthermore, throughout the

interview, Crowe was reluctant to describe his state of mind as “pissed” or angry.

(See id.). Therefore, although we previously concluded that the trial court did not

abuse its discretion by refusing to instruct the jury on self-defense, the record

supports that Crowe’s mental state at the time of the incident was more consistent

with the fear of imminent death or great bodily harm necessary to sustain a claim of

self-defense through the use of deadly force than with a sudden passion or a fit of

rage. See Harding at ¶ 44-47. In sum, the evidence weighs against a finding that

Crowe attacked Joshua with the steak knife while under the influence of a sudden

passion or fit of rage caused by Joshua’s serious provocation, and accordingly,




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Case No. 1-19-12


Crowe’s felonious-assault conviction is not against the manifest weight of the

evidence.

       {¶30} Crowe’s second assignment of error is overruled.

       {¶31} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/jlr




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