[Cite as State v. Roy, 2015-Ohio-4959.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                 Plaintiff-Appellee,            :
                                                                   No. 14AP-986
v.                                              :             (C.P.C. No. 14CR-3520)

Jamar N. Roy,                                   :           (REGULAR CALENDAR)

                 Defendant-Appellant.           :


                                          D E C I S I O N

                                    Rendered on December 1, 2015


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Cooper & Pennington Co., LPA, and Christopher M. Cooper,
                 for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
        {¶ 1} Defendant-appellant, Jamar N. Roy, appeals from a judgment of conviction
and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury
verdict finding him guilty of one count of felonious assault, a felony of the second degree,
and one count of assault, a misdemeanor of the first degree. For the following reasons, we
affirm the judgment.
I. Facts and Procedural History
        {¶ 2} On July 3, 2014, appellant was indicted on one count of felonious assault, in
violation of R.C. 2903.11, and one count of assault, in violation of R.C. 2903.13. The
charges against appellant arise out of his encounter with two women, the victims, Kortney
West ("Kortney") and Heidi West ("Heidi"), who are sisters.
        {¶ 3} At the trial, Kortney testified that on the afternoon of June 16, 2014, she
went home from work during her break to eat lunch and check on her sister, Heidi, who
No. 14AP-986                                                                                 2

was eight months pregnant at the time. (Tr. Vol. II, 43.) After finishing her lunch, Kortney
went to her car to retrieve her cigarettes. While at her car, appellant approached in his car
and parked. (Tr. Vol. II, 45.) Appellant has a son with Autumn Haley ("Haley"). Appellant
was angry that Haley had not let him see his son the previous day, which was Father's
Day. (Tr. Vol. II, 56-57.) As appellant stepped out of his car, Kortney talked to him and
attempted to calm him. (Tr. Vol. II, 71.)
       {¶ 4} Kortney further testified that appellant mistakenly believed that she and
Haley were sisters and appellant demanded to know the whereabouts of Kortney's sister.
Kortney warned appellant that if he did not calm down she would ask him to leave. (Tr.
Vol. II, 71.) Appellant repeatedly stated that he wanted to kill Haley. (Tr. Vol. II, 71.)
Kortney then testified that her sister, Heidi, who was standing on the Wests' front porch,
misheard appellant and believed appellant wanted to kill Kortney, not Haley, left the
porch, approached appellant, and demanded he immediately leave. (Tr. Vol. II, 71, 113.)
       {¶ 5} Kortney then stated that appellant inquired about Heidi's identity before
stating that he was " 'not afraid to hit a pregnant bitch.' " (Tr. Vol. II, 72.) Appellant then
struck Heidi on the left cheek. Kortney stepped between appellant and Heidi and
appellant then hit Kortney in the face four times. (Tr. Vol. II, 73.) Appellant also kicked
Heidi in the stomach before fleeing the scene. (Tr. Vol. II, 74.) Heidi sustained a bruise on
her face and Kortney suffered extensive injuries to her face, including a broken nose in 2
places and 17 fractures to her orbital bone, which required surgery. (Tr. Vol. II, 90.)
       {¶ 6} Wilma Sims and her daughter, Jazmin, live across the street from the
Wests. They both testified that they were in a second floor bedroom and heard a car
"screech" to a stop outside. (Tr. Vol. II, 131.) They walked to the window to investigate and
saw Kortney and Heidi arguing with a man that the Sims did not know. They testified they
saw the man hit Heidi and repeatedly hit Kortney. The man then drove away and the Sims
ran outside to help. They both testified that neither saw Kortney throw a cigarette at the
man, and Jazmin further testified that Kortney and Heidi were not smoking.
       {¶ 7} Appellant testified that he was at the apartment complex looking for Haley,
who often stayed with her mother, who also lived in the apartment complex. (Tr. 250,
252.) However, according to appellant, he hit Kortney in the face three times, but only
after she pushed him and "flicked" a lit cigarette in his face. (Tr. Vol. II, 258.) Appellant
No. 14AP-986                                                                                               3

testified that "[t]he cigarette in my face was provoking me." (Tr. Vol. II, 287.) Appellant
denied that he hit or kicked Heidi. (Tr. 280.)
        {¶ 8} Appellant requested a jury instruction on aggravated assault, which the trial
court denied. The jury returned a verdict of guilty on both the felonious assault and
misdemeanor assault. The trial court imposed a sentence of five years as to the felonious
assault, and six months as to the misdemeanor assault, to be served concurrently at the
Ohio Department of Rehabilitation and Corrections.
II. Assignments of Error
        {¶ 9} Appellant filed a timely notice of appeal and assigned the following errors:
                I. THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE
                THE JURY AN INSTRUCTION OF THE LESSER-INCLUDED
                OFFENSE OF AGGRAVATED ASSAULT.

                II. THE APPELLANT WAS                         DENIED         EFFECTIVE
                ASSISTANCE OF COUNSEL.

                III. THE TRIAL COURT ERRED IN ADMITTING UNDULY
                PREJUDICIAL PICTURES OF THE VICTIM AFTER A
                STIPULATION OF SERIOUS PHYSICAL HARM.

III. First Assignment of Error
        {¶ 10} In his first assignment of error, appellant asserts that the trial court erred
when it failed to instruct the jury on the lesser included offense of aggravated assault.
        {¶ 11} We first note that, although appellant argues that the offense of aggravated
assault is a lesser included offense of felonious assault, the offense of aggravated assault is
an inferior degree offense of felonious assault. "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." State v. Deem, 40 Ohio
St.3d 205 (1988), paragraph two of the syllabus.1 The elements of aggravated assault "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


1"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." Deem at paragraph three of the syllabus, modified by State
v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974.
No. 14AP-986                                                                                 4

sudden fit of rage brought on by serious provocation occasioned by the victim." State v.
Stewart, 10th Dist. No. 10AP-526, 2011-Ohio-466, ¶ 7, citing State v. Logan, 10th Dist.
No. 08AP-881, 2009-Ohio-2899, fn. 1, citing Deem. To warrant an aggravated assault
instruction, a defendant must present sufficient evidence of serious provocation. Deem at
paragraph four of the syllabus. "Serious provocation under R.C. 2903.12 means
provocation 'reasonably sufficient to bring on extreme stress and * * * reasonably
sufficient to incite or to arouse the defendant into using deadly force.' " State v. Saur, 10th
Dist. No. 10AP-1195, 2013-Ohio-1674, ¶ 31, quoting Deem at paragraph five of the
syllabus, approving State v. Mabry, 5 Ohio App.3d 13 (8th Dist.1982).
       {¶ 12} In Deem, the Supreme Court of Ohio held that in a trial for felonious
assault, where the defendant presents sufficient evidence of serious provocation, the trial
court must give an instruction on aggravated assault. Id. at 211. When a trial court charges
a defendant with felonious assault and he requests an instruction on aggravated assault,
an instruction is required when the evidence presented at trial reasonably supports both
an acquittal in the charged crime of felonious assault and a conviction for aggravated
assault. State v. Shane, 63 Ohio St.3d 630 (1992). Therefore, a jury instruction should be
given for an inferior offense "if under any reasonable view of the evidence, and when all of
the evidence is construed in a light most favorable to the defendant, a reasonable jury
could find that the defendant had established by a preponderance of the evidence the
existence of one or both of the mitigating circumstances." State v. Rhodes, 63 Ohio St.3d
613, 617-18 (1992), citing State v. Wilkins, 64 Ohio St.2d 382, 388 (1980).
       {¶ 13} When reviewing a trial court's jury instructions, appellate courts determine
whether the trial court's refusal to give a requested instruction constituted an abuse of
discretion. Stewart at ¶ 9. The term abuse of discretion connotes more than an error of
law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When a
defendant requests an instruction on an inferior degree offense, the burden is on the
defendant to persuade the fact finder of the mitigating circumstances of the offense.
Rhodes at syllabus.
       {¶ 14} Here, the trial court denied the request for an aggravated assault instruction
because the trial court found appellant had failed to demonstrate sufficient evidence of
No. 14AP-986                                                                               5

serious provocation necessary to warrant an instruction on aggravated assault. R.C.
2903.11(A)(1) defines felonious assault, in pertinent part, as follows: "No person shall
knowingly * * * [c]ause serious physical harm to another." Aggravated assault is defined
in R.C. 2903.12, which provides:
               (A) 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:

               (1) Cause serious physical harm to another.

       {¶ 15} To determine if the provocation was serious and reasonably sufficient to
bring on sudden passion or a sudden fit of rage, the trial court uses a two-prong test that
includes both an objective standard and a subjective standard. Shane at 634. The
objective standard determines whether the alleged provocation was sufficient to bring on
sudden passion or a sudden fit of rage. Id. If the objective standard is satisfied, the court
uses the subjective standard to determine whether this particular defendant actually was
under the influence of a sudden passion or in a sudden fit of rage. Id. Under the subjective
standard, the court considers " '[the] emotional and mental state of the defendant and the
conditions and circumstances that surrounded him at the time.' " Shane at 634, quoting
Deem at paragraph five of the syllabus. When a court examines whether provocation is
reasonably sufficient to bring on a sudden passion or fit of rage, the provocation "must be
sufficient to arouse the passions of an ordinary person beyond the power of his or her
control." Id. at 635.
       {¶ 16} In this case, the trial court made the determination that appellant was not
provoked to a degree that was reasonably sufficient to bring on a sudden fit of rage. While
appellant alleges that Kortney "flicked" a lit cigarette in his face, no other witness
corroborates his story. Even construing the evidence in appellant's favor, and if Kortney
did "flick" a cigarette in appellant's face, the trial court determined that no reasonable
person would be so provoked as to use deadly force.
               THE COURT: * * * I have to decide whether as a matter of law
               a rational, reasonable human being would take that, [flicking
               of the cigarette] with no prior history of threats of violence, no
               prior animosity, no prior, quote, historically stormy
No. 14AP-986                                                                                 6

               relationship, * * * whether that's sufficient as a matter of law
               to constitute proof of provocation to a reasonable person. And
               I cannot find that at all. I can't even find it remotely close.

(Tr. Vol. II, 306.)
       {¶ 17} In reaching its conclusion, the trial court relied on Deem. In Deem, the
defendant was convicted of felonious assault after stabbing the victim. At trial, the
defendant sought an instruction on aggravated assault, claiming that the victim "bumped"
his car with her own car. Id. at 206-07. The Supreme Court held that, even with a
previous "historically stormy relationship," the victim "bumping" the defendant's car was
not sufficient serious provocation to warrant the use of deadly force. Id. at 211. Here, the
trial court concluded that if a "historically stormy relationship" and "bumping" a car
constitutes insufficient serious provocation in Deem, then "flicking" a lit cigarette is also
insufficient provocation to the use of deadly force.
       {¶ 18} Similarly, even if "flicking" a lit cigarette in someone's face constituted
sufficient serious provocation to arouse a reasonable person into using deadly force,
appellant failed to produce sufficient evidence that Kortney's actions constituted the
trigger that provoked him into a sudden passion or sudden fit of rage. Appellant testified
that it was Kortney flicking a cigarette in his face which "set [him] off." (Tr. Vol. II, 258.)
He further stated, as follows:
               [W]hen I pulled up, I wasn't never mad at Kortney, you know?
               * * * I wasn't mad at Heidi. I was just mad about the events
               that took place before me going over there, and then the
               cigarette throwing in my face, the pushing, she's a woman, it
               didn't hurt me. But the cigarette, when the cigarette got
               thrown in my face, I was like -- it just set me off.

(Tr. Vol. II, 260-61.)
       {¶ 19} However, the trial court determined that Kortney was not the target of
appellant's rage but, rather, Haley was the actual target of appellant's rage. (Tr. 323.)
Appellant testified he was angry with Haley for not letting him see his son on Father's
Day. Appellant has not demonstrated that his rage was "brought on by serious
provocation occasioned by the victim." R.C. 2903.12(A). Additionally, appellant admitted
that he believed he used more force than what was appropriate in the situation. (Tr. 259-
No. 14AP-986                                                                                7

60.) Accordingly, we find no error in the trial court's decision not to instruct the jury with
regard to aggravated assault. Appellant's first assignment of error is overruled.
IV. Second Assignment of Error
       {¶ 20} In his second assignment of error, appellant alleges that he was denied
effective assistance of trial counsel because trial counsel made errors that were prejudicial
and affected the outcome of the trial. Appellant argues that his trial counsel provided
ineffective assistance by stipulating that Kortney suffered serious physical harm.
       {¶ 21} In order to demonstrate that his counsel's representation was ineffective,
appellant must demonstrate that: (1) counsel's performance was deficient, and (2) this
deficient performance prejudiced the defense because "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome." Strickland v. Washington, 466 U.S. 668, 687; 694 (1984), superseded by
statute on other grounds. "A defendant does not state a claim for ineffective assistance of
counsel unless his attorney acted unreasonably given the facts of the case, and the
unreasonable conduct was prejudicial to the defense." State v. Mills, 62 Ohio St.3d 357,
370 (1992).
       {¶ 22} Strickland also recognized that "a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action 'might be considered sound trial strategy.' " Strickland at 689, quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955). It is a well-established principle that
decisions regarding stipulations are matters of trial strategy and tactics. State v. Rippy,
10th Dist. No. 08AP-248, 2008-Ohio-6680, ¶ 16, citing State v. Edwards, 119 Ohio
App.3d 106 (10th Dist.1997), citing United States v. Teague, 953 F.2d 1525 (11th
Cir.1992). To be successful in his claim for ineffective assistance of counsel, appellant
must overcome the presumption set forth in Strickland.
       {¶ 23} We cannot say that trial counsel's decision to stipulate that Kortney suffered
serious physical harm was not sound trial strategy. The parties discussed the stipulation
on the record throughout the trial. (Tr. Vol. II, 13-20, 223-230.) By stipulating that
Kortney suffered serious physical harm, the prosecution did not present the testimony of
No. 14AP-986                                                                                  8

Kortney's doctor regarding her injuries. The doctor's testimony would have provided in
depth details regarding Kortney's injuries and surgery. Moreover, trial counsel informed
the trial court that the defense was planning to pursue an aggravated assault conviction
instead of felonious assault. Trial counsel stated, as follows: "We're looking for an
Agg[ravated] Assault virtually, that's the case we're trying, we're not looking for a not
guilty, we're not looking for self defense. We're looking for Agg[ravated] Assault." (Tr. Vol.
II, 13.) Thus, trial counsel presented his trial strategy to the trial court at the beginning of
trial.
         {¶ 24} Finally, appellant argues that the stipulation occurred after the prosecution
showed prejudicial pictures of Kortney's injuries to the jury. Appellant stipulating to
serious physical harm does not automatically render the photographs inadmissible. State
v. Campbell, 90 Ohio St.3d 320, 345 (2000); State v. Maurer, 15 Ohio St.3d 239, 265
(1984). Moreover, it is clear from the transcript of proceedings that the stipulation was
announced after the photographs had been shown to the jury, however, the parties had
previously agreed to the stipulation. Trial counsel informed the court that the defense was
not contesting the degree of harm before opening statements occurred, as follows: "We're
not going to contest the serious physical harm aspect, and we will stipulate the same,
which will save the doc from having to come in." (Tr. Vol. II, 13.)
         {¶ 25} Moreover, appellant has failed to demonstrate that the outcome of the trial
would have been different. Kortney testified regarding her injuries, including a broken
nose in 2 places and 17 fractures to her orbital bone, which required surgery. (Tr. Vol. II,
95.) Without the stipulation, Kortney's doctor would have testified and presented further
details of her injuries. Appellant has failed to demonstrate that the prosecution could not
have proven serious physical harm without the stipulation.
         {¶ 26} Appellant has failed to demonstrate that actions of trial counsel were not
part of a sound trial strategy and that the outcome of the trial would have been different.
Accordingly, appellant's second assignment of error is overruled.
V. Third Assignment of Error
         {¶ 27} In his third assignment of error, appellant alleges that the trial court erred
by admitting prejudicial photographs of Kortney after trial counsel had already stipulated
that Kortney suffered serious physical harm. This court reviews the admission of
No. 14AP-986                                                                               9

photographic evidence under an abuse of discretion standard. State v. Albert, 10th Dist.
No. 14AP-30, 2015-Ohio-249, ¶ 10. The admissibility of photographic evidence is subject
to the balancing test established under Evid.R. 403(A), which provides: "Although
relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Even
if photos are gruesome, that does not "render them inadmissible if they otherwise satisfy
the balancing test of Evid.R. 403(A)." Albert at ¶ 10, citing State v. Ware, 10th Dist. No.
04AP-43, 2004-Ohio-6984, ¶ 32.
       {¶ 28} After reviewing the photographs, the trial court made a determination that
their probative value outweighed any prejudicial effect they may have. The trial court
found the photographs were not gruesome, as follows: "I do not find them gruesome to
the point where prejudicial impact is greater than probative value." (Tr. Vol. II, 19.)
Appellant argues that it was error to admit the photographs after a stipulation that
Kortney suffered serious physical harm.
       {¶ 29} However, as previously stated, a stipulation as to serious physical harm does
not automatically render the photographs inadmissible. Campbell at 345; Maurer at 265.
The trial court must still use the balancing test to determine the admissibility of the
photographic evidence, even if there is a stipulation. See United States v. Brady, 595 F.2d
359 (6th Cir.1979). The prosecution did not use so many photographs as to render them
repetitive or cumulative. They demonstrated the progression of Kortney's injuries over the
few weeks following the incident.
       {¶ 30} The trial court used the balancing test to determine the photographs were
admissible. The trial court found that the pictures were not gruesome and added
probative value to the prosecution's case. The trial court did not abuse its discretion in so
finding. Accordingly, appellant's third assignment of error is overruled.
VI. Disposition
       {¶ 31} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.


                        BROWN, P.J., and BRUNNER, J., concur.
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