[Cite as State v. Wimpey, 2019-Ohio-4823.]

                              COURT OF APPEALS OF OHIO

                              SIXTH APPELLATE DISTRICT
                                  COUNTY OF LUCAS

STATE OF OHIO,                                     :

                Plaintiff-Appellee,                :
                                                            No. L-18-1262
                v.                                 :

CARL W. WIMPEY, JR.                                :

                Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED AND REMANDED
                RELEASED AND JOURNALIZED: November 22, 2019


            Criminal Appeal from the Lucas County Court of Common Pleas
                               Case No. CR-201801306


                                             Appearances:

                 Brenda J. Majadalani and Evy M. Jarrett, for appellee.

                 Mayle, L.L.C., and Andrew R. Mayle, for appellant.


KATHLEEN ANN KEOUGH, J.:

                  Defendant-appellant, Carl W. Wimpey, Jr. (“Wimpey”), appeals from

the trial court’s judgment, rendered after a jury trial, finding him guilty of felonious

assault and sentencing him to seven years incarceration. For the reasons that follow,

we reverse and remand.
I.   Background

              Wimpey was indicted on one count of murder in violation of R.C.

2903.02(B), with felonious assault as the underlying offense of violence, and one

count of felonious assault in violation of R.C. 2903.11(A)(1). He pleaded not guilty

and the case proceeded to trial.

              The evidence at trial established that on January 31, 2018, Wimpey,

Khalil Moussaed (“Moussaed”), and Krystal Witfoth (“Witfoth”) went to Brew Ha’s,

a small bar in Toledo, Ohio. Witfoth entered first and encountered Arthur Richter

(“Richter”), who was sitting at the bar with his uncle, Daniel Vasquez (“Vasquez”).

Weeks earlier, Witfoth had rejected Richter’s sexual advances. Witfoth was aware

of Richter’s violent history and, upon seeing him at the bar, was concerned that he

would start a fight with Wimpey and Moussaed.

              Shortly after Witfoth entered the bar, Richter, who was visibly

agitated upon seeing her, initiated a heated verbal exchange with her. When

Wimpey and Moussaed entered the bar a few minutes later, Richter called out

numerous profanities, loud enough for all of them to hear, including that there were

“punk a** bit*** in here,” Witfoth was a “bit**,” and Wimpey’s group were

“motherf***ers.”    When Wimpey asked Richter why he was acting out, Richter

walked over to the pool tables, grabbed a pool stick, and waved it at Wimpey’s group.

At that point, Vasquez got off his bar stool and stood by Richter.

              As another patron restrained Richter from behind, Witfoth removed

the pool stick from his grasp. Richter continued the verbal confrontation, however,
and then chest-bumped Wimpey, who grabbed Richter and threw him to the

ground.   Vasquez then grabbed Wimpey from behind in a bearhug; Wimpey

punched him in the head several times and knocked him to the ground.

               In the meantime, Richter grabbed another pool stick and walked over

to Wimpey. Witfoth again took the pool stick from Richter (she then left the bar),

but Richter grabbed a beer bottle and advanced toward Wimpey, swinging the bottle

at him in a threatening manner. Wimpey kicked at Richter and knocked him to the

ground, but Vasquez again grabbed Wimpey from behind. To assist his friend,

Moussaed grabbed Vasquez and threw him to the ground, causing his head to hit the

floor.

              As the fight continued, Richter got up, and Moussaed threw him to

the floor. Vasquez again approached Wimpey, who punched him and knocked him

to the ground. The barmaid told Wimpey and Moussaed to leave, and they exited

the bar. Richter followed them outside, however, and threw two beer bottles at

Moussaed’s truck.

              Wimpey and Moussaed then exited the truck and chased Richter back

into the bar. Upon reentering the bar, Moussaed knocked Richter to the ground,

and Wimpey punched Vasquez with a single punch that knocked him to the floor,

unconscious. Wimpey and Moussaed again left the bar, but as they got in the truck,

Richter again came out of the bar waving beer bottles at them. They backed out of

the parking lot to avoid Richter and then drove away. Vasquez was transported to

the hospital and died four days later.
               The cause of Vasquez’s death was disputed at trial. The state’s theory

was that Vasquez died as a result of Wimpey’s multiple punches to his head, and Dr.

Maneesha Pandey, deputy coroner and forensic pathologist in the Lucas County

Coroner’s Office, testified for the state that Vasquez died as a result of a subdural

hematoma caused by blunt force trauma to his head. However, Dr. Steven Rapp,

the defense expert, testified that he “could say with certainty” that Wimpey’s

punches to Vasquez’s head did not cause the subdural hematoma, and that Vasquez

died as a result of a hypertensive basal ganglia bleed; i.e., a stroke that was unrelated

to any head trauma. Dr. Rapp testified further that even if complications from the

subdural hematoma caused Vasquez’s death, it was likely that the hematoma started

to form after Moussaed threw Vasquez to the ground, causing his head to “bounce”

on the floor, and that it was not caused by Wimpey’s punches. (Tr. 596, 611, 638.)

               The judge instructed the jury on murder in violation of R.C.

2903.02(B), the lesser included offense of voluntary manslaughter in violation of

R.C. 2903.03(A), and felonious assault in violation of R.C. 2903.11(A)(1). The

judge refused to instruct the jury on simple assault as a lesser included offense of

felonious assault, as requested by Wimpey, and did not instruct the jury on

aggravated assault as an inferior degree offense of felonious assault. The jury

subsequently found Wimpey not guilty of murder and voluntary manslaughter, but

guilty of felonious assault, a second-degree felony. The trial court sentenced him

to seven years incarceration and three years mandatory postrelease control. This

appeal followed.
II. Law and Analysis

      A. Aggravated Assault

               Wimpey was convicted of felonious assault in violation of R.C.

2903.11(A)(1), which provides that “[n]o person shall knowingly * * * cause serious

physical harm to another * * *.”

               In his third assignment of error, Wimpey contends that the trial court

committed plain error by not instructing the jury on the inferior degree offense of

aggravated assault, a fourth-degree felony.        Felonious assault is reduced to

aggravated assault if the offender is “under the influence of sudden passion or in a

sudden fit of rage * * * brought on by serious provocation occasioned by the victim.”

R.C. 2903.12(A); State v. Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294 (1988).

               Wimpey did not request an instruction on aggravated assault nor

object to its omission from the jury instructions, and thus has forfeited all but plain

error. State v. Booker, 6th Dist. Lucas No. L-10-1140, 2013-Ohio-45, ¶ 18, citing

State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983), and State v. Lott,

51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990). To find plain error, the defect in the

trial court proceedings must be obvious and have affected the outcome of the trial.

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16; Crim.R.

52(B). Notice of plain error is to be taken with the utmost caution, under extreme

circumstances, and only to prevent a manifest miscarriage of justice. State v. Lang,

129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108.
               That said, “[a] criminal defendant has [a] right to expect that the trial

court will give complete jury instructions on all issues raised by the evidence.” State

v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d 1279 (1990). “An instruction on

aggravated assault is appropriate when the evidence supports a conviction for

felonious assault, but the assault resulted from serious provocation by the victim.”

State v. Morrow, 2d Dist. Clark No. 2002-CA-37, 2002-Ohio-6527, ¶ 8, citing Deem

at id. Thus,

      [i]n a trial for felonious assault, where the defendant presents sufficient
      evidence of serious provocation, such that a jury could both reasonably
      acquit [the] defendant of felonious assault and convict [the] defendant
      of aggravated assault, an instruction on aggravated assault, as an
      inferior degree of felonious assault, must be given.

(Emphasis sic.) Booker at ¶ 25, citing Deem at 211; see also State v. Koonce, 6th

Dist. Erie No. E-96-002, 1997 Ohio App. LEXIS 759, 10 (Mar. 7, 1997).

               “Provocation, to be serious, must be reasonably sufficient to bring

on extreme stress and the provocation must be reasonably sufficient to incite or

arouse the defendant into using deadly force.”          State v. Coleman, 6th Dist.

Sandusky No. S-02-041, 2005-Ohio-318, ¶ 24.

               With respect to Count 1, the trial court instructed the jury on the

offense of murder.     Then, after finding sufficient evidence of provocation to

warrant an instruction, the trial court further instructed the jury on the lesser

included offense of voluntary manslaughter. Specifically, the court instructed the

jury that to find Wimpey guilty of voluntary manslaughter,
      you must find beyond a reasonable doubt that * * * the Defendant
      knowingly, while under a sudden passion or sudden fit of rage, either
      of which was brought on by serious provocation occasioned by the
      victim, Daniel Vasquez, that was reasonably sufficient to incite the
      Defendant into using deadly force, did cause the death of another.

(Tr. 835.)

              Having found there was sufficient evidence of provocation for the jury

to consider voluntary manslaughter under Count 1, the trial court should have

likewise instructed the jury on the inferior degree offense of aggravated assault

under Count 2. Both Counts 1 and 2 related to the same conduct by Wimpey at

Brew-Ha’s, so it cannot be said that provocation was an issue solely relating to Count

1.

              We note that the trial court instructed the jury on self-defense.

Generally, an instruction on aggravated assault is incompatible with an instruction

on self-defense, such that both cannot be given together, because the legal theories

underpinning each offense are incompatible (aggravated assault — rage; self-

defense — fear). State v. Cronin, 6th Dist. Sandusky No. S-09-032, 2010-Ohio-4717,

¶ 53. Nevertheless, the Sixth District has recognized that ‘“where the record contains

evidence from which a reasonable juror could find provocation and reject self-

defense, the court must give the provocation instruction.’” State v. Brown, 6th Dist.

Fulton No. F-14-005, 2015-Ohio-3395, ¶ 20, fn. 2, quoting State v. Smith, 168 Ohio

App.3d 141, 2006-Ohio-3720, 858 N.E.2d 1222, ¶ 59 (1st Dist.).

              Here, Wimpey presented sufficient evidence of provocation such that

a reasonable juror could have rejected his self-defense claim and found him not
guilty of felonious assault but guilty of aggravated assault. Because he did so, the

trial court was required to give an instruction on aggravated assault. We therefore

find plain error in the trial court’s failure to give such an instruction.

                 Wimpey also contends, as asserted in his first assignment of error,

that the trial court erred in refusing to give an instruction under Count 2 for the

lesser included offense of simple assault.        Wimpey requested the instruction

pursuant to R.C. 2903.13(A), which provides that “[n]o person shall knowingly

cause or attempt to cause physical harm to another * * *.”

                 The trial court refused to give this instruction, finding that Wimpey’s

last punch to Vasquez rendered him unconscious, causing serious physical harm and

thereby precluding an instruction on simple assault. The court stated:

      That then goes to the question of whether or not there was serious
      physical harm, and what is readily apparent from what happens on the
      videotape is from the last strike there was no movement forward.
      Okay? Mr. Vasquez never moved. All right?

      So the serious incapacity of the victim is right there, right then, which
      is part of the definition of serious physical harm, which is part of the
      definition of felonious assault.

      It is not that he struck him and caused injury or attempted to cause
      injury; it is he knowingly said he did, punched him, and that punch
      causes no more movement. And the testimony clearly indicates, and
      your expert witness does not counter this in any way, shape, or form.
      He never regains consciousness.

      That’s the serious incapacity. It also includes death four days later, but
      it does have it right there upon connection, boom, immediate result. *
      * * There was no evidence presented that this was a simple assault. All
      the evidence shows that this was a knowing strike that caused serious
      physical harm.

(Tr. 754-755.)
               Wimpey contends that the trial court invaded the province of the jury

by determining that his last punch to Vasquez, which knocked Vasquez to the floor

and rendered him unconscious, caused serious physical harm. He argues that

“whether he was the proximate cause of any serious physical harm, i.e., Vasquez’s

unconsciousness and subsequent death, or whether there were other non-obvious

causes is a quintessential jury issue,” and that “the court below seized the jury’s role

by interleaving its own assessment of the evidence.” (Appellant’s brief, p. 11.)

               We disagree with Wimpey’s assertion that the judge erred in not

instructing the jury on simple assault. State’s exhibit No. 12, surveillance video of

the fight, clearly demonstrates that Wimpey’s last punch rendered Vasquez

unconscious. Serious physical harm includes “[a]ny physical harm that involves

some permanent incapacity, whether partial or total, or that involves some

temporary, substantial incapacity.”       R.C. 2901.01(A)(5)(c).     “Being rendered

unconscious, no matter how brief, qualifie[s] as a ‘temporary substantial incapacity,’

which satisfie[s] the serious physical harm requirement.” State v. Spaulding, 2017-

Ohio-7993, 98 N.E.3d 1057, ¶ 13 (6th Dist.). See also State v. McSwain, 8th Dist.

Cuyahoga No. 83394, 2004-Ohio-3292, ¶ 29 (“Unconsciousness is a state of

temporary, substantial incapacity sufficient to constitute serious physical harm.”)

               Despite Wimpey’s argument, there was no evidence that Vasquez’s

unconsciousness was due to anything other than Wimpey’s punch. Dr. Rapp

testified that Vasquez’s death was not caused by Wimpey’s punches, but he offered

no testimony to rebut the evidence that Wimpey punched Vasquez and knocked him
to the floor unconscious. In fact, Dr. Rapp conceded on cross-examination that “he

[Vasquez] was struck with his [Wimpey’s] left hand, not with enough force or

direction that I think could tear veins that can lead to a subdural hematoma, but

probably enough to cause him to lose consciousness momentarily.” (Emphasis

added.) (Tr. 641.)

               ‘“An instruction on a lesser included offense is required only where

the evidence presented at trial would reasonably support both an acquittal on the

crime charged and a conviction on the lesser included offense.’” State v. Burks, 6th

Dist. Lucas Nos. L-05-1346 and L-05-1347, 2007-Ohio-3562, ¶ 13, quoting State v.

Carter, 89 Ohio St.3d 593, 600, 734 N.E.2d 345 (2000). ‘“Even where the defendant

offers some evidence through his own testimony supporting a lesser included

offense, he is still not entitled to an instruction on that offense if the totality of the

evidence does not reasonably support an acquittal on the greater offense and a

conviction on the lesser offense.”’ Id. at ¶ 23, quoting State v. Neely, 161 Ohio

App.3d 99, 2005-Ohio-2342, 829 N.E.2d 718, ¶ 46 (1st Dist.). Here, the totality of

the evidence did not support an instruction on simple assault, and, accordingly, the

trial court did not err in not giving such an instruction.

               Wimpey’s first assignment of error is overruled.               The third

assignment of error is sustained; his conviction for felonious assault is reversed, and

the matter is remanded for a new trial on Count 2, felonious assault. In light of our

resolution of the third assignment of error, Wimpey’s second, fourth, fifth, and sixth

assignments of error, in which he challenges the jury instructions on flight and self-
defense, the effectiveness of his counsel, and his sentence, are rendered moot.

App.R. 12(A)(1)(c).

              Judgment reversed and remanded.

      It is ordered that appellant recover from appellee costs herein taxed.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE*

MARY J. BOYLE, P.J.*, and
LARRY A. JONES, SR., J.*, CONCUR

*(Sitting by assignment: Judges of the Eighth District Court of Appeals)
