[Cite as State v. McKinnon, 2017-Ohio-5784.]



                         STATE OF OHIO, COLUMBIANA COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )            CASE NO. 16 CO 0011
V.                                              )
                                                )                  OPINION
SCOTT A. McKINNON,                              )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Columbiana County, Ohio
                                                Case No. 2014 CR 26

JUDGMENT:                                       Affirmed

APPEARANCES:
For Plaintiff-Appellee                          Attorney Ryan P. Weikart
                                                105 S. Market St.
                                                Lisbon, Ohio 44432

For Defendant-Appellant                         Allen Vender
                                                Assistant State Public Defender
                                                250 East Broad Street
                                                Suite 1400
                                                Columbus, Ohio 43215



JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                Dated: June 29, 2017
[Cite as State v. McKinnon, 2017-Ohio-5784.]
DONOFRIO, J.

        {¶1}    Defendant-appellant, Scott McKinnon, appeals from a Columbiana
County Common Pleas Court judgment convicting him of felonious assault and
aggravated burglary following a jury trial.
        {¶2}    On January 3, 2014, appellant and his friends were drinking whiskey
near the Fawcett Apartments in East Liverpool where appellant’s girlfriend, L.T.,
resided.
        {¶3}    According to appellant, he received two calls that day about some
money he had left with L.T. to hold on to. Appellant said, on the first call, that L.T.
told him the money had been misplaced. Appellant explained the second call came a
couple of hours later.        Appellant said, on the second call, L.T. told him that her
neighbor, Jacob, had taken the money.
        {¶4}    Appellant testified that he asked two friends to question Jacob in L.T.’s
presence. According to appellant, his friends reported that L.T. was drunk and her
story did not add up.
        {¶5}    Appellant stated that about six hours later, L.T. called him requesting
tobacco. Appellant brought some whiskey and tobacco to Fawcett Apartments.
Entering the building took appellant more than one attempt.          Apparently another
person named McKinnon was on the trespasser list. Nevertheless, the appellant
eventually got in by following an acquaintance into the building and up the elevator.
        {¶6}    According to appellant, upon reaching L.T.’s door, he knocked, was
invited inside, and entered. He and L.T. then had shots of whiskey and got ready for
bed. According to appellant, L.T. became angry when he experienced impotence
issues. Appellant claimed she grabbed his testicles and said she had spent his
money on Jacob, who did not have the same impotence issues. Appellant admitted
to blacking out and hitting L.T. multiple times.
        {¶7}    Police arrived and found appellant and L.T. covered in blood.       L.T.
suffered a traumatic brain injury, a skull fracture, and a broken nose.
        {¶8}    A Columbiana Grand Jury indicted appellant on one count of felonious
assault, a violation of R.C. 2903.11(A)(1), and one count of aggravated burglary, a
                                                                               -2-


violation of R.C. 2911.11(A)(1).
      {¶9}   The matter proceeded to a jury trial.           Appellant requested a jury
instruction on the lesser included offense of aggravated assault.        The trial court
denied that request. The jury found appellant guilty of both charges. At sentencing,
the trial court found that the two counts were not subject to merger and imposed
maximum consecutive sentences for an aggregate sentence of 19 years.
      {¶10} Appellant timely filed a notice of appeal on May 18, 2016. Appellant
now raises two assignments of error.
      {¶11} Appellant’s first assignment of error states:

      THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED
      TO PROVIDE JURY INSTRUCTIONS ON AGGRAVATED ASSAULT,
      IN VIOLATION OF MCKINNON’S RIGHT TO DUE PROCESS UNDER
      THE FOURTEENTH AMENDMENT TO THE UNITED STATES
      CONSTITUTION AND ARTICLE I, SECTION 16, OF THE OHIO
      CONSTITUTION[.]

      {¶12} Appellant argues the jury could have acquitted him on the charge of
felonious assault and still convicted him on the lesser included offense of aggravated
assault. Therefore, he asserts, the court should have given an instruction on the
lesser included offense.
      {¶13} Contrasting felonious assault and aggravated assault, appellant notes
that aggravated assault contains the added mitigating element of provocation.
Contending that provocation existed, appellant points to his testimony that L.T.
grabbed his testicles, confronted his impotence, revealed her infidelity, and admitted
her theft. Appellant argues this qualified as provocation.
      {¶14} The trial court has discretion when determining whether sufficient
evidence was presented at trial to require a particular instruction. State v. Lessin, 67
Ohio St.3d 487, 494, 1993-Ohio-52, 620 N.E.2d 72, citing State v. Wolons, 44 Ohio
St.3d 64, 541 N.E.2d 443 (1989), paragraph two of the syllabus. Therefore, the trial
                                                                                -3-


court’s decision will not be disturbed absent an abuse of discretion.          Abuse of
discretion connotes more than an error of law or of judgment; it implies that the
court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62
Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶15} Under Ohio law, aggravated assault is either a felony of the third or
fourth degree (depending on whether the victim was a peace officer) while felonious
assault is a felony of either the first or second degree. State v. Whitt, 31 Ohio App.3d
92, 94, 508 N.E.2d 1041 (1st Dist.1987).        Thus, aggravated assault is a lesser
offense. Id.
       {¶16} The essential elements of the two offenses are (1) knowingly (2A)
causing serious physical harm to another or, (2B) causing or attempting to cause
physical harm to another by a deadly weapon or dangerous ordnance. Id. at 94-95.
Aside from the penalty, the mitigating circumstance of provocation is the only factor
that distinguishes felonious assault from aggravated assault. Id. at 95, citing State v.
Carter, 23 Ohio App.3d 27, 30, 491 N.E.2d 709 (1st Dist.1985).
       {¶17} The statutory scheme for felonious assault and aggravated assault is
congruent to the one for murder and voluntary manslaughter. When an accused is
charged with murder, if he acted under the mitigating circumstance of provocation,
then he is entitled to a jury instruction on voluntary manslaughter. Id., citing State v.
Muscatello, 57 Ohio App.2d 231, 387 N.E.2d 627 (8th Dist.1977), aff'd and
remanded, 55 Ohio St.2d 201, 378 N.E.2d 738 (1978). The First District in Whitt held
that the legislature intended the same reduction with respect to the two types of
assault. Id.
       {¶18} Drawing from voluntary manslaughter jurisprudence, the following is the
circumstance under which an “aggravated assault” instruction should be given:

       if a defendant on trial for [felonious assault] (or the prosecution in such
       trial) produces evidence of * * * mitigating circumstances * * *, that
       evidence will be sufficient to entitle a defendant to an instruction on
       [aggravated assault] as [lesser included offense] if under any
                                                                                -4-


        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 * * * mitigating circumstances.

State v. Rhodes, 63 Ohio St.3d 613, 617-618, 590 N.E.2d 261 (1992), citing State v.
Wilkins, 64 Ohio St.2d 382, 388, 415 N.E.2d 303 (1980).
        {¶19} Elaborating on what constitutes reasonably sufficient provocation in the
context of voluntary manslaughter, the Ohio Supreme Court laid out a two-part test.
State v. Mack, 82 Ohio St.3d 198, 1998-Ohio-375, 694 N.E.2d 1328 (1998), citing
State v. Shane, 63 Ohio St.3d 630, 634, 590 N.E.2d 272 (1992).
        {¶20} First, an objective standard must be applied to determine whether the
alleged provocation is reasonably sufficient to bring on a sudden passion or fit of
rage.   That is, the provocation must be “sufficient to arouse the passions of an
ordinary person beyond the power of his or her control.” If this objective standard is
met, the inquiry shifts to a subjective 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.” Id.
        {¶21} Applying the objective-subjective test to the circumstances in this case,
the analysis starts by asking whether or not the circumstances appellant described
were sufficient to arouse the passions of an ordinary person beyond the power of his
or her control.
        {¶22} In State v. Koballa, 8th Dist. No. 82013, 2003-Ohio-3535, the defendant
requested an aggravated assault instruction on the basis of his argument that the
victim provoked his sudden fit of rage by grabbing his testicles and arm. Id. at ¶ 8.
The Eighth District found that the trial court did not err in declining to give the
instruction, reasoning:

        Considering the circumstances, we do not find that appellant was
        seriously provoked to justify slashing [the victim’s] neck. In particular,
                                                                                 -5-


       [the victim] was in the compromising position of being on his knees;
       appellant was not alone but in the same room and company of his
       friend; there was no evidence to suggest [the victim] had a weapon on
       or about his person; and no evidence suggested appellant could not
       have exited the condominium without force. * * * Although appellant
       testified that his testicles and arm were grabbed, these two facts alone
       do not justify the use of such force. We are also not persuaded by
       appellant's argument that [the victim’s] apparently larger stature justified
       his actions.

Id. at ¶¶ 9-10.
       {¶23} The Ohio Supreme Court has further held that “words alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” Mack, 82 Ohio St.3d 198, citing Shane, at paragraph two of the syllabus.
       {¶24} The law entitles the trier of fact to reduce the degree of assault when
there has been provocation. Accordingly, a trial court should give an aggravated-
assault instruction if a reasonable jury could find that the defendant had established
by a preponderance of the evidence that (1) the victim gave provocation that was
sufficient to arouse the passions of an ordinary person beyond the power of his or
her control and (2) the defendant actually was under that influence, sudden passion,
or sudden fit of rage, when committing the assault.
       {¶25} Here, appellant claims that L.T. provoked him into violence. Appellant
testified that immediately prior to the attack, L.T. informed him she had lied, she had
taken his money, she had cheated on him with Jacob, she had given his money to
Jacob, and she grabbed appellant by the testicles. Appellant further stated that he
was “drunk” at the time and that he “just lost it” (Tr. 302, 304)
       {¶26} Viewing the evidence in a light most favorable to appellant, we cannot
conclude that the trial court abused its discretion in finding that a reasonable jury
could not find the element of reasonable provocation.           L.T. may have insulted
appellant and grabbed him but these actions do not rise to the level of being
                                                                              -6-


provoked enough to cause an ordinary person to beat someone to the point of a
fractured skull and traumatic brain injury. Moreover, appellant’s admitted intoxication
lessened his ability to act as an ordinary person would under these circumstances.
      {¶27} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
      {¶28} Appellant’s second assignment of error states:

      THE TRIAL COURT ERRED IN SENTENCING MCKINNON, WHEN IT
      DETERMINED THAT FELONIOUS ASSAULT AND BURGLARY
      WERE NOT ALLIED OFFENSES.

      {¶29} Appellant argues the trial court should have merged his convictions for
sentencing purposes because they are allied offenses of similar import. Appellant
argues that the burglary conviction is predicated on the assault having occurred at
L.T.’s residence. Branching off from there, appellant argues that the burglary and
assault consisted of the same conduct and a single animus. The crimes did not result
in different harms; therefore, the convictions should have merged, appellant argues.
      {¶30} In reviewing whether offenses should merge under R.C. 2941.25,
courts of appeals are to apply a de novo standard of review. State v. Williams, 134
Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.
      {¶31} The Ohio Supreme Court addressed the issue of allied offenses of
similar import requiring merger in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892.     The Court held that if a defendant's conduct supports multiple
offenses, the defendant can be convicted of all of the offenses if any one of the
following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows the offenses were committed separately, or (3) the conduct shows the
offenses were committed with separate animus.         Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within
the meaning of R.C. 2941.25(B) “when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate
                                                                                  -7-


and identifiable.” Id. at paragraph two of the syllabus.
       {¶32} The Ruff Court found, “[w]hen a defendant's conduct victimizes more
than one person, the harm for each person is separate and distinct, and therefore,
the defendant can be convicted of multiple counts.” Id. at ¶ 26. Likewise it found,
when a defendant's conduct constitutes two or more offenses against a single victim
and the harm that results from each offense is separate and identifiable from the
harm of the other offense, the defendant can be convicted of multiple counts. Id.
Therefore, the Ruff Court held that two or more offenses of dissimilar import exist
within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes
offenses involving separate victims or if the harm that results from each offense is
separate and identifiable. Id.
       {¶33} In this case, the offenses of aggravated burglary and felonious assault
are separate offenses and do not merge.
       {¶34} The aggravated burglary statute appellant was convicted of provides
that no person by force, stealth, or deception, shall trespass in an occupied structure,
when another person is present in the structure, with the purpose to commit any
criminal offense in the structure, if the offender inflicts, or attempts, or threatens to
inflict physical harm on another. R.C. 2911.11(A)(1).       “Physical harm” means “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.”
R.C. 2901.01(A)(3).
       {¶35} In contrast, the felonious assault statute provides that no person shall
knowingly cause serious physical harm to another. R.C. 2903.11(A)(1). “Serious
physical harm” includes physical harm that carries a substantial risk of death; that
involves some permanent incapacity or some temporary, substantial incapacity; that
involves some permanent disfigurement or some temporary, serious disfigurement;
or that involves acute pain of such duration as to result in substantial suffering or that
involves any degree of prolonged or intractable pain. R.C. 2901.01(A)(5).
       {¶36} The evidence in this case demonstrated that appellant completed the
aggravated burglary when he entered L.T.’s apartment and caused her physical harm
                                                                            -8-


by striking her. But appellant continued to beat L.T. throughout various rooms in the
apartment and the harm escalated to serious physical harm.        The harm was so
serious, L.T.’s skull was fractured and she suffered a traumatic brain injury. Thus,
the offenses here were not committed by the same conduct. Therefore, they are not
allied offenses of similar import.
       {¶37} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
       {¶38} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

Robb, P.J., concurs.
