[Cite as State v. Kwiatkowski, 2015-Ohio-3196.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-14-1102

        Appellee                                      Trial Court No. CR0201302785

v.

Michael Kwiatkowski                                   DECISION AND JUDGMENT

        Appellant                                     Decided: August 7, 2015

                                                  *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Neil S. McElroy, for appellant.

                                                  *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Michael Kwiatkowski, appeals the judgment of the Lucas County

Court of Common Pleas, following a jury trial, which convicted him of one count of

aggravated assault in violation of R.C. 2903.12, a felony of the fourth degree. Appellant
contends that the trial court erred in its instructions to the jury. For the reasons that

follow, we affirm.

       {¶ 2} On October 17, 2013, the Lucas County Grand Jury indicted appellant on

one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second

degree, and one count of aggravated robbery in violation of R.C. 2911.01(A)(3), a felony

of the first degree. The charges stemmed from an incident wherein appellant chased

down and punched and kicked a person who appellant believed was stealing from him.

Appellant entered a plea of not guilty and the matter proceeded to a three-day jury trial.

The jury returned a verdict of not guilty on the charge of felonious assault, but did find

appellant guilty of the inferior degree offense of aggravated assault. The jury also found

appellant not guilty of aggravated robbery. At sentencing, the trial court imposed a

sentence of three years of community control.

       {¶ 3} Appellant has timely appealed the trial court’s judgment of conviction,

raising one assignment of error for our review:

              1. The trial court committed plain error when it instructed the jury:

       “If you are unable to agree on a verdict of either guilty or not guilty of

       felonious assault, the [sic] you will continue your deliberations to decide

       whether the State has proved beyond a reasonable doubt all the essential

       elements of the lesser-included offense of aggravated assault.”




2.
                                      Jury Instruction

       {¶ 4} As noted by appellant, because defense counsel did not object at the time the

jury instructions were given, this appeal calls for a plain-error analysis under Crim.R.

52(B). State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45.

       {¶ 5} It is well-settled that “[a] trial court is obligated to provide jury instructions

that correctly and completely state the law.” Cromer v. Children’s Hosp. Med. Ctr. of

Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 22. However, an incorrect

jury instruction does not constitute plain error unless, but for the error, the outcome of the

trial clearly would have been otherwise. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d

804 (1978). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Id.

       {¶ 6} In support of his assignment of error, appellant argues that the instruction

given to the jury regarding felonious assault and aggravated assault was logically flawed

and led to an inconsistent jury verdict. Appellant specifically cites the court’s instruction:

                If you find that the State proved beyond a reasonable doubt all of the

       essential elements of the offense of felonious assault in count one, your

       verdict must be guilty as to such offense of felonious assault in count one,

       according to your findings. If you find that the State failed to prove beyond

       a reasonable doubt all of the essential elements of the offense of felonious

       assault in count one, your verdict must be not guilty as to such offense of




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       felonious assault in count one, according to your findings. If you are

       unable to agree on a verdict of either guilty or not guilty of felonious

       assault then you will continue your deliberations to decide whether the

       State has proved beyond a reasonable doubt all of the essential elements of

       the lesser included offense of aggravated assault.

       {¶ 7} Notably, “[a] jury instruction must be considered in its entirety and,

ordinarily, reversible error does not consist of misstatements or ambiguity in a part of the

instruction.” Hayward v. Summa Health Sys. / Akron City Hosp., 139 Ohio St.3d 238,

2014-Ohio-1913, 11 N.E.3d 243, ¶ 26. Here, as the state points out, appellant cites only

the first portion of the jury instruction, and omits the trial court’s further explanation

following its description of the elements of aggravated assault:

              If you find that the State proved beyond a reasonable doubt that the

       Defendant knowingly caused serious physical harm to another, and you

       also find that the Defendant did not act while under the influence of sudden

       passion or a sudden fit of rage, either of which was brought on by serious

       provocation occasioned by the victim that was reasonably sufficient to

       incite the Defendant into using deadly force, then you must find the

       Defendant guilty of felonious assault. If you find that the State proved

       beyond a reasonable doubt that the Defendant knowingly caused serious

       physical harm to another and you also find that the Defendant acted while

       under the influence of sudden passion or a sudden fit of rage, either of




4.
       which was brought on by serious provocation occasioned by the victim that

       was reasonably sufficient to incite the Defendant into using deadly force,

       then you must find the Defendant guilty of aggravated assault. If you are

       unable to agree on a verdict of guilty or not guilty to the offense of

       aggravated assault, then you will continue your deliberations to decide

       whether or not the State has proved beyond a reasonable doubt all of the

       essential elements of the lesser included offense of assault.

Thus, we will base our determination of whether plain error exists on the full instruction

from the trial court.

       {¶ 8} In his brief, appellant correctly asserts that aggravated assault is not a lesser-

included offense of felonious assault, but rather is an inferior degree of felonious assault

that requires proof of an additional element. See State v. Miller, 10th Dist. Franklin No.

10AP-632, 2011-Ohio-952, ¶ 30; State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294

(1988), paragraph two of the syllabus (“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.”). Indeed, felonious assault

prohibits a person from knowingly causing serious physical harm to another. R.C.

2903.11(A)(1). Aggravated assault also prohibits a person from knowingly causing

serious physical harm to another, but adds that the person is “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




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using deadly force.” R.C. 2903.12(A). Because the same elements of felonious assault

are included in aggravated assault, appellant contends that if the jury could not find

beyond a reasonable doubt that he was guilty of felonious assault, then it is impossible for

the jury to have found that he was guilty of aggravated assault. Therefore, appellant

concludes that the jury instructions were a misstatement of law, which confused the jury,

leading to an inconsistent verdict.

       {¶ 9} In reaching his conclusion, appellant cites State v. Ruppart, 187 Ohio

App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627 (8th Dist.), in which the Eighth District

held that the trial court’s instruction on felonious assault and aggravated assault

constituted plain error. In that case, the defendant was charged with two counts of

felonious assault. The trial court instructed the jury:

              Here’s where I’m hoping it makes sense. So Counts 1 and 2, if you

       find guilty on Count 1 or 2, or both, you have to go to self-defense. If you

       find there is self-defense, then you’ve finished your deliberations. If you

       found not guilty or cannot reach a verdict on Counts 1 and 2, then you’re

       going to move on past self-defense because it’s not an issue then to what

       we call an inferior degree lesser included offense, aggravated assault. * * *

              Guilty as charged. If you find that the state proved beyond a

       reasonable doubt all the essential elements of the offenses in this case,

       offenses of felonious assault as charged in Count 1 and/or Count 2 of the

       indictment, your verdict must be guilty as charged.




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              Does everybody understand that? You would not get to this page or

       this form [aggravated assault] if you have reached a guilty verdict on Count

       1 and/or Count 2. Does everybody understand that?

              Guilty of an inferior degree or lesser included offense. If you find

       that the state failed to prove beyond a reasonable doubt all the essential

       elements of felonious assault in Counts 1 and 2 of the indictment, then your

       verdict must be not guilty of those offenses. In that event, or if you’re

       unable to unanimously agree, you will continue your deliberations to decide

       whether the state has proved beyond a reasonable doubt all the essential

       elements of the inferior degree offense of aggravated assault in violation of

       R.C. 2903.12(A)(1) and/or (A)(2). Id. at ¶ 10-13.

       {¶ 10} The Eighth District held that the trial court’s instruction constituted plain

error. The court reasoned that the instructions incorrectly directed the jury to consider

aggravated assault only if it found that the state had not proven all of the elements of

felonious assault, as opposed to the correct instruction which would be to consider

aggravated assault only if it found that the state had proven all of the elements of

felonious assault. The Eighth District quoted the Ohio Jury Instructions for a more

appropriate instruction:

              (A) If you find that the state failed to prove beyond a reasonable

       doubt that the defendant knowingly (caused serious physical harm to [insert

       name of victim]) (caused or attempted to cause physical harm to [insert




7.
     name of victim] by means of a deadly weapon or dangerous ordnance), then

     you must find the defendant not guilty.

            (B) If you find that the state proved beyond a reasonable doubt that

     the defendant knowingly (caused serious physical harm to [insert name of

     victim]) (caused or attempted to cause physical harm to [insert name of

     victim] by means of a deadly weapon or dangerous ordnance), and you find

     that the defendant failed to prove by the greater weight of the evidence that

     he/she acted while he/she was under the influence of sudden passion or in a

     sudden fit of rage, either of which was brought on by serious provocation

     occasioned by the victim that was reasonably sufficient to incite the

     defendant into using deadly force, then you must find the defendant guilty

     of felonious assault.

            (C) If you find that the state proved beyond a reasonable doubt that

     the defendant knowingly (caused serious physical harm to [insert name of

     victim]) (caused or attempted to cause physical harm to [insert name of

     victim] by means of a deadly weapon or dangerous ordnance), but you also

     find that the defendant proved by the greater weight of the evidence that

     he/she acted while under the influence of sudden passion or in a sudden fit

     of rage, either of which was brought on by serious provocation occasioned

     by the victim that was reasonably sufficient to incite the defendant into

     using deadly force, then you must find the defendant guilty of aggravated




8.
       assault. Id. at ¶ 34-36, quoting Ohio Jury Instructions, CR Section

       503.11(A)(14) (Rev. Dec. 11, 2010).

       {¶ 11} Here, we note that the state concedes that the jury instructions given by the

trial court could have been more artfully drawn. Nevertheless, we hold that the trial

court’s instructions do not rise to the level of plain error. Unlike the instructions in

Ruppart, the trial court did not instruct the jury to consider aggravated assault only if it

found appellant not guilty of felonious assault. Furthermore, the court’s instructions in

this case clarified the relationship between felonious assault and aggravated assault.

Similar to the Ohio Jury Instructions, the jury was instructed that it must find appellant

guilty of felonious assault if it concluded that the state proved the elements beyond a

reasonable doubt and appellant was not acting under the influence of sudden passion, and

it must find appellant guilty of aggravated assault if it concluded that the same elements

were proven but appellant was acting under the influence of sudden passion. Therefore,

to the extent the court erred in its instruction, we hold that such error did not confuse the

jury and did not result in a manifest miscarriage of justice.

       {¶ 12} Accordingly, appellant’s assignment of error is not well-taken.

       {¶ 13} For the foregoing reasons, we find that substantial justice was done the

party complaining and the judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant’s bond is revoked. Pursuant to App.R. 24, appellant is ordered to

pay the costs of this appeal.

                                                                          Judgment affirmed.




9.
                                                               State v. Kwiatkowski
                                                               C.A. No. L-14-1102




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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