[Cite as State v. Patterson, 2014-Ohio-3525.]


                              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 August 14, 2014


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

                 Brian J. Rigg, for appellant.

                          ON APPLICATION FOR RECONSIDERATION

TYACK, J.

        {¶ 1} The State of Ohio has filed an application for reconsideration from our
decision issued on June 24, 2014, in which we found that the trial court had erred in
failing to give a jury instruction on a charge of aggravated assault.
        {¶ 2} The State attempts to limit the facts in testimony in this case and then uses
its version of the facts as a basis for disagreeing with our analysis of the testimony which
indicated that a jury question was presented as to whether Patterson was acting under a
fit of rage when he struck Jhuty Imhotep Minter with a handgun and seriously injured
him.
Nos. 14AP-50 and 14AP-290                                                                2


       {¶ 3} The State relies heavily on the testimony of Terror Mitchell, the mother of
the child who was propositioned by Minter to perform oral sex.            The State has to
acknowledge that Patterson, immediately after being told of the sexual proposition from
Minter, went out to confront Minter. The State also has to acknowledge that very shortly
after finding Minter, Patterson struck Minter in the head with the gun.
       {¶ 4} Terror Mitchell assumed that Patterson was not in a rage because Patterson
took two young boys with him when he went looking for Minter.              Her assumption
overlooks the obvious explanation that Patterson wanted to be sure he was confronting
the right person and the boy who had been propositioned could clearly identify the man
who propositioned him.
       {¶ 5} The State's assertion that this was no evidence that Patterson acted with
sudden passion ignores the undisputed facts set forth above.
       {¶ 6} In addition, Minter testified that Patterson approached him with a gun
drawn and called Minter a punk.            Minter said Patterson walked across the street
"screaming that same rhetoric." When Patterson got 12-to-15 feet away, he asked Minter
"[y]ou the m[_]f[_] told my son suck his dick"? ( Tr. 44.)
       {¶ 7} A jury could easily find that Patterson was in a rage and the rage got visible
even to Minter when Minter laughed at the accusation instead of apologizing or
expressing guilt for propositioning the child.
       {¶ 8} The trial court should have let the jury decide if the appropriate charge was
felonious assault or aggravated assault.
       {¶ 9} The application for reconsideration is denied.
                                                    Application for reconsideration denied.
                         SADLER, P.J., and O'GRADY, J., concur.
