[Cite as State v. Underwood, 2016-Ohio-1101.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :   Appellate Case No. 26711
         Plaintiff-Appellee                          :
                                                     :   Trial Court Case No. 2014-CR-4297
 v.                                                  :
                                                     :   (Criminal Appeal from
 PRESTON R. UNDERWOOD                                :    Common Pleas Court)
                                                     :
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                                OPINION

                            Rendered on the 18th day of March, 2016.

                                                ...........

MATHIAS H. HECK, JR., by ANN M. GRABER, Atty. Reg. No. 0091731, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

R. JASON HOWARD, Atty. Reg. No. 0074662, 4130 Linden Avenue, Claypool Building,
Suite 304, Dayton, Ohio 45432-3015
       Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1} Defendant-appellant Preston R. Underwood appeals from his conviction and
                                                                                           -2-


sentence for Felonious Assault. Underwood argues that the trial court erred by failing to

include a jury instruction on the lesser-included offense of Assault. The State argues that

a charge on the lesser-included offense of Assault was not required because the evidence

did not support both an acquittal on the charge of Felonious Assault and a conviction for

the crime of Assault. We conclude that the trial court did not abuse its discretion by not

allowing the jury to consider the lesser included-offense of Assault. Therefore, the

judgment of the trial court is Affirmed.



                          I. Assault on Patron at Local Tavern

       {¶ 2} The bartender at Angie’s Firehouse Tavern testified that a woman

approached her at the bar and asked permission to use a phone to call for a ride. Shortly

thereafter, Underwood came into the bar and engaged in an angry exchange with the

woman. The bartender asked them to leave, and escorted them out the door, but they

returned, still arguing with each other. Numerous patrons were sitting and standing

around the bar area, as the woman moved away from Underwood and stood behind a

man, Ben Hirsch, standing next to the end of the bar counter where bartenders and

waiters would enter and exit the area behind the bar counter. Underwood followed the

woman, who was trying to get Underwood to leave her alone. Hirsch could hear what the

woman said, and in response he said a few words to Underwood, which triggered

Underwood’s attack. Underwood punched Hirsch in the face, one time, which caused

Hirsch to fall backward, and then Underwood shoved Hirsch, causing his whole body to

hit the floor, and his head to hit a safe located behind the bar. The bartender testified that

Hirsch was temporarily knocked unconscious. Hirsch testified that he doesn’t remember
                                                                                        -3-


what happened until he was awakened by the EMTs. He told the EMTs to leave, but they

were called back when the wound on Hirsch’s head did not stop bleeding. Hirsch was

taken to the hospital, where seven staples were inserted in his head to stop the bleeding.

       {¶ 3} After the assault occurred, Underwood left the bar and slammed the door

with enough force to cause the top of the wooden doorframe to splinter.



                             II. The Course of Proceedings

       {¶ 4} Underwood was indicted on one count of Felonious Assault, a second

degree felony, in violation of R.C. 2903.11(A)(1), and one count of Criminal Damaging, a

misdemeanor of the second degree, in violation of R.C. 2909.06(A)(1).

       {¶ 5} Before trial, and during trial, the defense requested the court to include a

jury instruction on the lesser-included offense of misdemeanor Assault, under R.C.

2903.13. Before opening statements, the trial court discussed with counsel the State’s

motion, in limine, to prohibit the defense from making any argument that Underwood did

not know that his action would cause serious physical harm. The State argued that

throwing a punch is conduct of a certain nature that meets the elements necessary to

prove Felonious Assault, without establishing that the defendant knew that his conduct

would cause serious physical harm. The trial court sustained the State’s motion in limine,

stating, “you do not have to know that a certain result will exist. That relates to the

causation element. So I’m going to sustain the State’s motion in limine and unless and

until there is any evidence presented that could lead a reasonable trier of fact to believe

that the Defendant’s conduct was not knowingly, but instead was reckless, then there can

be no argument.* * * There’s no evidence of recklessness. There is no evidence because
                                                                                         -4-


I have seen the video. You all have discussed with me what you expect the evidence to

be. There’s no evidence of recklessness.” Trial Transcript at 145-146.

       {¶ 6} During trial, a video recording of the assault was admitted, which has no

sound, but depicts Underwood punching and shoving the victim. The victim testified that

he could not remember the assault; Underwood did not testify. The bartender testified

that she saw Underwood and a woman arguing just before the assault, but the woman

did not testify, and no other patrons at the bar at the time of the assault testified.

       {¶ 7} Before the jury charge, the defense requested an instruction on the lesser-

included offense of Assault, arguing that the evidence could be viewed as showing that

Underwood knowingly caused physical harm, but not serious physical harm. The trial

court overruled this motion, reiterating its position that the evidence could not reasonably

be construed to prove recklessness, as opposed to knowing conduct:

             THE COURT: Further, Mr. Hirsch testified that he doesn’t remember

       anything. He doesn’t remember what happened. And the State didn’t show

       him the video because he said, “I don’t remember that.” But the more

       important issue is that the only evidence before me is that he was

       unconscious. There is no contradictory evidence.

              In addition, as Mr. Chadrick said, the Court would have to find first

       that there is evidence of recklessness and there is none. The only

       reasonable inference for the jury to draw is that the Defendant’s conduct

       was knowing. I have no testimony about his intention, that he made a

       mistake, that he didn’t mean to. In fact, the video is such overwhelming

       evidence, unlike those presented in the cases that we’ve been discussing
                                                                                -5-


since this morning where there was no evidence of a video, the defendant’s

conduct can only be a reasonable trier of fact could only find that it is

knowing and not reckless.

       In addition, there has been no evidence presented to the court that

could lead the Court to a conclusion that the Defendant’s conduct was

reckless nor that the injuries to Mr. Hirsch were anything other than serious

physical harm, and the Court will find that no reasonable trier of fact could

find that the harm was merely physical harm under these circumstances.

And so the Defendant’s request for that additional instruction of the lesser

included offense of simple assault is overruled.

Anything further Mr. Schoenlein?

       MR. SCHOENLEIN:         You said, at least as I heard it a moment ago,

you said that you don’t have any evidence before you that Mr. Underwood

did not know that his punch would produce a certain result.

       THE COURT: No, I didn’t say that. You have to present evidence. I

can’t speculate on what he may have thought and the video is the only

evidence that I have. And from that video, I have indicated that a reasonable

trier of fact could only find that the conduct is knowing and not reckless.

       MR. SCHOENLEIN:         And so I guess finally, Judge if - - we’ve

already made the decision, I suppose.

       THE COURT: Sure, okay.

       MR. SCHOENLEIN:         But the reason why we made the decision for

Preston [Underwood] not to testify is because based on the Court’s ruling
                                                                                          -6-


       we gleaned from that that any testimony from Preston [Underwood] about

       what he thought would occur would be irrelevant.

              THE COURT: Well, it’s what he intended to do. I think I haven’t

       made that impression on you. It’s what he intended to do. And he is

       responsible for the natural consequence, as any Defendant is, is

       responsible for the natural consequences of what occurs. And I’ll read to

       you from the jury instructions.

              “Cause is an essential element of the offense of felonious assault.

       Cause is an act or acts which in the natural or continuous sequence directly

       produces the serious physical harm to a person without which it would not

       have occurred.” And so for all of the reasons I’ve indicated, the request for

       the lesser included offense of simple assault is overruled.

Trial Transcript at 269-271.

       {¶ 8} The jury returned a guilty verdict on both counts of the indictment.

Underwood was sentenced to serve five years in prison on the Felonious Assault charge,

and 90 days on the Criminal Damaging charge, to be served concurrently. Underwood

was also ordered to pay restitution in the sum of $200. From the judgment, Underwood

appeals.



                               III. The Standard of Review

       {¶ 9} “When reviewing the trial court's jury instructions, the proper standard of

review is whether the trial court's decision to give or exclude a particular jury instruction

was an abuse of discretion under the facts and circumstances of the case.” State v. Elliott,
                                                                                         -7-


2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 22. “Generally, abuse of discretion

occurs when a decision is grossly unsound, unreasonable, illegal, or unsupported by the

evidence.” State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-671, 959 N.E.2d 1082, ¶

16 (2d Dist.); State v. Beechler, 2d Dist. Clark No. 09CA54, 2010-Ohio-1900, ¶ 60–70. A

decision is unreasonable if there is no sound reasoning process that would support that

decision. State v. Jones, 2d Dist. Montgomery Nos. 25315 & 25316, 2013-Ohio-1925, ¶

32.

       {¶ 10} A trial court need only give those instructions that are relevant and

necessary for the jury to weigh all of the evidence. State v. Comen, 50 Ohio St.3d 206,

553 N.E.2d 640 (1990). A defendant is only entitled to have his proposed jury instructions

given when they are correct statements of the law, pertinent to the evidence in the record

or to material issues, and are timely presented and not already included in the substance

of the jury charge. State v. Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981).

       {¶ 11} An instruction on a lesser-included offense should only be given where the

evidence warrants it, and where “the evidence does not support a conviction on a lesser

included offense, it would be erroneous to instruct the jury thereon, as to do so would

confront the jury with the choice of reaching an unreasonable conclusion.” State v. Dover,

2d Dist. Clark No. 2013-CA-58, 2014-Ohio-2303, ¶ 3, citing State v. Johnson, 36 Ohio

St.3d 224, 228, 522 N.E.2d 1082 (1988). In deciding whether to instruct the jury on a

lesser-included offense, the trial court must view the evidence in a light most favorable to

the defendant. State v. Callahan, 2d Dist. Montgomery No. 24595, 2012-Ohio-1092, ¶ 33,

citing State v. Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2072, 865 N.E. 2d 859, ¶ 192.

“The lesser-included-offense instruction is not warranted every time ‘some evidence’ is
                                                                                           -8-


presented to support the lesser offense. * * * Rather, a court must find ‘sufficient evidence’

to ‘allow a jury to reasonably reject the greater offense and find the defendant guilty on a

lesser included (or inferior degree) offense.’ ” Id., quoting State v. Shane, 63 Ohio St. 3d

630, 632–633, 590 N.E. 2d 272 (1992).



  IV. The Trial Court Did Not Abuse its Discretion by Overruling the Request for

              an Instruction on the Lesser Included Offense of Assault

       {¶ 12} For his sole assignment of error, Underwood asserts:

              THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

       UNDERWOOD HIS REQUEST FOR A JURY INSTRUCTION FOR THE

       LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT.

       {¶ 13} Underwood argues that the trial court erred by denying his request for a jury

instruction that would have allowed the jury to consider whether Underwood was guilty of

misdemeanor Assault instead of Felonious Assault. We recently addressed this issue as

follows:

              “The question of whether a particular offense should be submitted to

       the finder of fact as a lesser included offense involves a two-tiered analysis.”

       (Citation omitted) State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989

       N.E.2d 986, ¶ 6. “The first tier, also called the ‘statutory-elements step,’ is a

       purely legal question, wherein we determine whether one offense is

       generally a lesser included offense of the charged offense.” Id., citing State

       v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). “The second tier

       looks to the evidence in a particular case and determines whether ‘ “a jury
                                                                                       -9-


      could reasonably find the defendant not guilty of the charged offense, but

      could convict the defendant of the lesser included offense.” ’ ” Id., quoting

      State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶

      13. “[A] charge on the lesser offense is required ‘only where the evidence

      presented at trial would reasonably support both an acquittal of the crime

      charged and a conviction upon the lesser included offense.’ ” State v.

      Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192,

      quoting State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988),

      paragraph two of the syllabus.

State v. Pullen, 2d Dist. Montgomery No. 25829, 2015-Ohio-552, ¶ 21.

      {¶ 14} We have recognized that misdemeanor Assault under R.C. 2903.13(B)

can be a lesser-included offense of Felonious Assault. State v. Fuller, 2d Dist.

Montgomery No. 20658, 2005-Ohio-3696, ¶ 14. We have also held that when the victim

suffers severe physical harm, a misdemeanor Assault under R.C. 2903.13(A) should not

be considered as a lesser-included offense of Felonious Assault. State v. Thornton, 2d

Dist. Montgomery No. 20652, 2005-Ohio-3744, ¶ 48. See also State v. Brundage,

1st Dist. Hamilton No. C-030632, 2004-Ohio-6436; State v. Pasqualucci, 9th Dist. Summit

No. 21905, 2004-Ohio-4876. State v. Clark, 4th Dist. Lawrence No. 03-CA-18, 2004-Ohio-

3843, holds that the trial court should have given the instruction on the lesser-included

offense of Assault, under R.C. 2903.13 (A), when a defendant is charged with Felonious

Assault involving an incident where the defendant punched the victim in the face once. In

Clark, Judge Mark Painter, of the First District Court of Appeals, sitting by assignment,

opined:
                                                                                     -10-




       A trial court must give a jury instruction on a lesser-included offense

if, under any reasonable view of the evidence, it is possible for the jury to

find the defendant not guilty of the greater offense and guilty of the lesser

offense. And the evidence must be considered in the light most favorable to

the defendant.

        But a party may not assign as error the failure to give any

instructions unless the party objected before the jury retired to consider its

verdict. Therefore, Clark has waived all but plain error. And the failure to

give a jury instruction does not constitute plain error unless, but for the error,

the outcome of the trial clearly would have been different.

       A person is guilty of felonious assault when he knowingly causes

serious physical harm to another. And an assault occurs where one

knowingly causes physical harm, or recklessly causes serious physical

harm, to another. Assault is a lesser-included offense of felonious assault.

The key difference between assault and felonious assault, therefore, is

whether the defendant knowingly caused serious physical harm.

        The key difference for Clark is that felonious assault is a second-

degree felony with a maximum term of imprisonment of up to eight years,

while assault is a first-degree misdemeanor with a maximum term of six

months.

        In State v. McCleod, the Seventh Appellate District held that the trial

court's failure to instruct the jury on assault warranted a reversal of the
                                                                                       -11-


      conviction for felonious assault. The defendant had objected to the jury

      instructions. There, the defendant had “sucker-punched” and possibly

      kicked his victim. The court held that a reasonable jury could have acquitted

      McCleod of felonious assault because it was not clear that he was aware

      that one punch and possibly a kick would have likely resulted in the type of

      serious injury that occurred.

(Internal citations omitted) State v. Clark, 4th Dist. Lawrence No. 03CA18, 2004-

Ohio-3843, ¶¶ 6-10, citing State v. McCleod, 7th Dist. Jefferson No. 00 JE 8, 2001

WL 1647305 (Dec. 12, 2001).

      {¶ 15} The McCleod case was distinguished in State v. Bennett, 7th Dist.

Mahoning No. 04-MA-184, 2006-Ohio-3566, ¶ 62, noting that a “sucker punch” is “to

punch (a person) suddenly without warning and often without apparent provocation.

Webster's Tenth Collegiate Dictionary (1998), 1176.” The court found that Bennett’s

action could not be characterized as a “ sucker punch” where he grabbed the victim by

the shirt, struck him twice in the face, and caused serious physical harm by rendering him

unconscious and fracturing his skull. Id. We agree with the reasoning set forth by the

court in Bennett:

             Additionally, appellant focuses entirely on his state of mind, ignoring

      how evidence of the extent of harm caused to the victim can illustrate the

      state of the mind of the attacker. As the Eleventh District Court of Appeals

      observed in State v. Bucci, 11th Dist. No.2001-L-091, 2002-Ohio-7134, at ¶

      23, since appellant admitted to intentionally punching Yeany in the face, “it

      is necessary to focus on the crucial distinction between felonious assault
                                                                                       -12-


      and assault with regard to the harm element in determining whether the

      evidential table in this case required the trial court to honor appellant's

      request to also instruct the jury on the crime of assault.”

State v. Bennett, 7th Dist. Mahoning No. 04-MA-184, 2006-Ohio-3566, ¶ 63.

      {¶ 16} Underwood was indicted for Felonious Assault, under R.C. 2903.11(A)(1),

which provides that no person shall “knowingly cause serious physical harm to another

or to another’s unborn.“ Pursuant to R.C. 2903.13, to prove a simple Assault, the State

must prove beyond a reasonable doubt that the defendant:

             (A) knowingly caused or attempted to cause physical harm to another

      or to another's unborn, or

             (B) recklessly caused serious physical harm to another or to

      another's unborn.

      {¶ 17} The only difference between Felonious Assault under R.C. 2903.11(A)(1),

and misdemeanor Assault under R.C. 2903.13(A), is whether the harm caused was

serious physical harm, as opposed to non-serious physical harm. The difference between

Felonious Assault under R.C. 2903.11(A)(1), and misdemeanor Assault under R.C.

2903.13(B) is the culpable mental state – for Felonious Assault the evidence must

establish that the defendant acted knowingly, but for a simple Assault the evidence need

only prove that the defendant acted recklessly. Both offenses require proof that the act

caused serious physical harm. In the case before us, Underwood specifically requested

an instruction on the lesser-included offense of Assault based on R.C. 2903.13(A), stating

that he was not asking for an instruction on recklessness, based on R.C. 2903.13(B). Trial

Transcript at pg. 266. Although the trial court erroneously denied the request for an
                                                                                        -13-


instruction for the lesser-included offense under R.C. 2903.13(A) on the basis that the

evidence did not show recklessness,1 which is not an element of R.C. 2903.13(A), we

find this error harmless, because the instruction requested under R.C. 2903.13(A) was

unwarranted.

      {¶ 18} We conclude that the evidence presented at trial did not reasonably

support a conviction of Assault under R.C. 2903.13(A) and an acquittal on the indicted

charge of Felonious Assault. A conviction for Assault under R.C. 2903.13(A) and an

acquittal on the indicted charge of Felonious Assault, would have required the jury to find

that Underwood knowingly caused physical harm to Hirsch but that his conduct did not

knowingly cause serious physical harm to Hirsch. “Serious physical harm” to a person is

found when hospitalization is required, or involves temporary incapacity as supported by

the facts in the present case. R.C. 2901.01(A)(5). The video recording admitted in

evidence shows Underwood swinging his arm toward the victim’s head, punching the

victim in the face, then shoving the victim down to cause an impact with the hard floor.

Involving more than a simple “sucker punch,” we conclude that under these facts no

reasonable trier of fact could find that the perpetrator did not knowingly cause serious

physical harm. Even if Underwood had requested an instruction based on misdemeanor

assault under R.C. 2903.13(B), we conclude, upon consideration of the evidence,

including the video, that no reasonable jury could find that Underwood’s infliction of

serious physical harm was reckless, but not knowing. Therefore, on the facts in evidence



1
 Although not raised as an error on appeal, we also note that the trial court stated
“You have to present evidence” erroneously informing the defense it was his burden of
presenting evidence to prove recklessness instead of the State’s burden to prove all
elements of any offense.
                                                                                          -14-


in this case, we conclude that the trial court did not err by refusing to give an instruction

on misdemeanor Assault.

       {¶ 19} Underwood’s sole assignment of error is Overruled.



                                       V. Conclusion

       {¶ 20} Underwood’s sole assignment of error having been overruled, the

judgment of the trial court is Affirmed.

                                      .............



DONOVAN, P.J., and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck
Ann M. Graber
R. Jason Howard
Hon. Mary K. Huffman
