[Cite as State v. Patterson, 2014-Ohio-2740.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :

v.                                                 :                    No. 14AP-50
                                                                   (C.P.C. No. 12CR-11-5930)
John M. Patterson,                                 :                        and
                                                                       No. 14AP-290
                 Defendant-Appellant.              :               (C.P.C. No. 13CR-04-2122)

                                                   :               (REGULAR CALENDAR)



                                            D E C I S I O N

                                       Rendered on June 24, 2014


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Brian J. Rigg, for appellant.

                  APPEALS from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Defendant-appellant, John M. Patterson, is appealing from his convictions
for felonious assault with a firearm specification and for having a weapon under disability.
He assigns three errors for our consideration:
                 [I.] THE TRIAL COURT ERRED WHEN IT FAILED TO
                 PRESENT A JURY INSTRUCTION FOR AGGRAVATED
                 ASSAULT.

                 [II.] THE TRIAL COURT ERRED WHEN IT FAILED TO
                 PRESENT     A   JURY  INSTRUCTION  ON    SELF-
                 DEFENSE/DEFENSE OF OTHERS WHERE THE
                 EVIDENCE SUPPORTED AN INSTRUCTION.
Nos. 14AP-50 and 14AP-290                                                                  2


              [III.] THE VERDICT IS AGAINST THE SUFFICIENCY AND
              MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 2} The evidence clearly indicated that Patterson struck Jhuty Imhotep Minter
in the eye while holding a handgun in the hand which struck Minter. Minter lost most or
all of the vision in his one eye as a result. Thus, Patterson was clearly guilty of felonious
assault unless attendant facts established that self-defense applied or that the aggravated
assault statute applied.
       {¶ 3} Felonious assault is defined by R.C. 2903.11(A) as follows:
              No person shall knowingly do either of the following:

              (1) Cause serious physical harm to another or to another's
              unborn;

              (2) Cause or attempt to cause physical harm to another or to
              another's unborn by means of a deadly weapon or dangerous
              ordnance.

       {¶ 4} Aggravated assault is defined in R.C. 2903.12(A) as follows:

              (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 or to another's
              unborn;

              (2) Cause or attempt to cause physical harm to another or to
              another's unborn by means of a deadly weapon or dangerous
              ordnance, as defined in section 2923.11 of the Revised Code.

       {¶ 5} Self-defense applies only when the person who inflicts harm on a victim is
not at fault for giving rise to the affray.       Patterson went looking for Minter and
approached him with a handgun. Clearly, Patterson was responsible for the encounter
and the assault on Minter. The evidence did not support a self-defense theory and the
trial court was correct not to give a jury charge as to self-defense.
       {¶ 6} The second assignment of error is overruled.
Nos. 14AP-50 and 14AP-290                                                                 3


       {¶ 7} Patterson clearly had a firearm while he was under a legal disability. The
evidence clearly supported his being convicted of having a weapon under disability.
       {¶ 8} The evidence also clearly showed that Patterson knowingly did serious
physical harm to Minter with a deadly weapon. The evidence clearly supported the
conviction for felonious assault.
       {¶ 9} The third assignment of error is overruled.
       {¶ 10} The most challenging issue centers around aggravated assault as an offense
of inferior degree as opposed to felonious assault. Minter had encountered the son of
Patterson's girlfriend on the street near where Minter lived.        The boy, age seven,
apparently went home and claimed to his mother that Minter had propositioned him.
The mother told her boyfriend Patterson. As a result, Patterson believed that Minter had
asked the boy to "suck his dick."
       {¶ 11} Minter described Patterson as being in a rage when Patterson approached
him. Apparently 20 minutes or more had elapsed between when Minter spoke to the
seven year old and when Patterson encountered Minter, but Patterson had learned of the
proposition more recently then that. Again, Minter described Patterson as being in a rage
when Patterson approached him and that rage was brought on by the boy's claim of
Minter propositioning him.
       {¶ 12} Minter had allegedly solicited the seven-year-old boy to perform oral sex on
Minter.
       {¶ 13} This qualified as a serious provocation. The Supreme Court of Ohio has
indicated that "[t]he provocation must be reasonably sufficient to incite the defendant to
use deadly force. For provocation to be reasonably sufficient, it must be sufficient to
arouse the passions of an ordinary person beyond the power of his or her control." State
v. Shane, 63 Ohio St.3d 630, 635.
       {¶ 14} We see the provocation as being sufficient to enrage a person who is acting
in the role of step-father to a seven year old. The trial court should have allowed the jury
to consider the inferior offence of aggravated assault. The first assignment of error is
sustained.
       {¶ 15} In sum, the first assignment of error is sustained. The second and third
assignments of error are overruled.
Nos. 14AP-50 and 14AP-290                                                                  4


       {¶ 16} As a result of our findings, the verdicts of guilty as to felonious assault and
related conviction is vacated.    The conviction, having a weapon under disability, is
affirmed. The case is remanded for a new trial as to the felonious assault charge and
related firearm specification.
                                                  Judgment affirmed in part and reversed
                                                 in part; case remanded with instructions.

                         SADLER, P.J., and O'GRADY, J., concur.
