[Cite as State v. Pennington, 2017-Ohio-1423.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 16CA14
BRENDAN RIDGE PENNINGTON

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from Guernsey County Common
                                                 Pleas Court, Case No. 15CR108


JUDGMENT:                                        Affirmed, in part, Vacated, in part, and
                                                 Remanded




DATE OF JUDGMENT ENTRY:                          April 17, 2017




APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

JASON R. FARLEY                                  VALERIE KUNZE
Assistant Guernsey County                        Assistant State Public Defender
Prosecuting Attorney                             250 E. Broad St., Ste 1400
145 N. 7th Street                                Columbus, Ohio 43215
Cambridge, Ohio 43725
Guernsey County, Case No. 16CA14                                                               2

Hoffman, P.J.

       {¶1}   Defendant-appellant Brendan Ridge Pennington appeals his conviction and

sentence entered by the Guernsey County Court of Common Pleas on one count of

felonious assault, in violation of R.C. 2903.11(A)(1). Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 9, 2015, Appellant and his girlfriend S.S. were out driving when an

argument ensued. The argument turned physical.

       {¶3}   Following the argument, S.S. went to the emergency room for treatment. As

a result of the incident, S.S. suffered bruising, red marks and had hair removed from her

head in patches. S.S. later required treatment for hearing loss, nerve damage to her ear

and breathing issues caused by the altercation.

       {¶4}   On May 11, 2015, S.S. spoke with Lieutenant Sam Williams of the Guernsey

County Sheriff’s Department. Lieutenant Williams noticed S.S. had hair missing, swelling,

bruising, redness and abrasions. While at the Sheriff’s Department, S.S. called Appellant

to discuss their injuries on speakerphone.

       {¶5}   On May 12, 2015, Lieutenant Williams spoke with Appellant, who described

his injuries as a cut to his lower left lip, bruising, scratching, and redness to the chest.

       {¶6}   At trial, S.S. testified the two were driving in the car when Appellant asked

her who she was texting, becoming “accusatory.” Appellant hit S.S.’s hand, and hit S.S.

in the face with her purse. Appellant told S.S., if she didn’t unlock her phone, she was

“going to get it.” Tr. at 244. Appellant then grabbed S.S. by the hair, jerking her toward

him. S.S. tried to leave the car, but Appellant grabbed her and pulled her back inside.

Appellant then punched her in the side of the head, grabbing her hair again. Tr. at 248.
Guernsey County, Case No. 16CA14                                                            3


The two drove in the car for two hours arguing. Appellant held S.S.’s head and hair, jerking

her head back and forth. S.S. testified Appellant had his arms around her neck,

threatening her.

       {¶7}   S.S. maintains Appellant eventually drove to his mother’s house.1 S.S.

claims Appellant pulled her out of the car and took her to the back of the property to an

older truck. Inside the truck, Appellant continued to hit S.S. in the back and side of her

head. Tr. at 253. Appellant threatened S.S. and punched her in the nose and eye. Tr.

at 253. Appellant then choked S.S. until she blacked out. Tr. at 258.

       {¶8}   Appellant and S.S. returned to her car, driving to a Duke and Dutchess gas

station, where Appellant purchased gas. Appellant then drove S.S. to his father’s house,

and took S.S. to a barn, where he forced her to have sex with him.2 At 8:30 a.m.,

Appellant took her to a pond, threatening to drown her. They both then walked away, and

got into the car together.

       {¶9}   On May 12, 2015, Appellant spoke to Lieutenant Williams and Deputy

Coulter. The interview was introduced at trial as separate exhibits.3 Appellant claimed

S.S. hit him in the face, injuring his lip. Appellant maintains the two were arguing over text

messages from other girls to his phone and S.S. was “screaming and hollering,” grabbing

his phone in a “pissing match.” Appellant maintains S.S. then hit him in the side.        He

maintains they both “latched” on to one another, and flung each other around during the




1
  Appellant’s statement to law enforcement claims S.S. drove her own car during the
incident.
2
  Testimony at trial established Appellant’s father owned the barn, and Appellant’s mother
and father did not live at the same residence. Tr. at 236.
3
  State’s Exhibit M2 provides a transcript of the statement, while State’s Exhibit M1 is a
video recording of the interview.
Guernsey County, Case No. 16CA14                                                           4


altercation. Appellant testified S.S. hit him in the ribs “a couple of times.” S.S. open hand

smacked him a couple of times, but Appellant claimed “it was nothing major.” Appellant

stated,



              …she kind of got pissed and I got pissed and we both was grabbing

       a hold of each other and flinging each other around and she hit me in the

       ribs a couple of times and it was kind of just like a big, slapping pulling… *

       * * it was all hand smacks, pulling, jerking each other, pulling each other

       away like we was on the ground so she would pull on me and I would kick

       her away and then she would do the same thing to me, grab a hold of me

       and stuff.

       Statement p. 11.



       {¶10} Appellant explained they went to his father’s barn, engaging in consensual

sex, and calming down. The next day, the parties drove to Seneca Lake and eventually

back to his mom’s house. Appellant admits he was distraught at the lake, and S.S. tried

to calm him down.

       {¶11} As a result of the incident, the Guernsey County Grand Jury indicted

Appellant on one count of kidnapping, a first degree felony, in violation of R.C. 2905.01;

one count of rape, a first degree felony, in violation of R.C. 2907.02(A)(1)(c) and (A)(2);

and felonious assault, a second degree felony, in violation of R.C. 2903.11(A)(1).
Guernsey County, Case No. 16CA14                                                            5


       {¶12} Following a jury trial, Appellant was convicted of the charge of felonious

assault, and acquitted on the charges of rape and kidnapping. The trial court sentenced

Appellant to the maximum term of eight years in prison.

       {¶13} Appellant appeals, assigning as error:



              I. THE TRIAL COURT VIOLATED MR. PENNINGTON’S RIGHTS

       TO DUE PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE A

       JURY INSTRUCTION AS TO THE INFERIOR-DEGREE OFFENSE OF

       AGGRAVATED ASSAULT. FIFTH AND FOURTEENTH AMENDMENTS

       TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

       16, OF THE OHIO CONSTITUTION; CRIM. R. 52(B); T. pp. 533-554.

              II. THE TRIAL COURT DID NOT IMPOSE COURT COSTS IN OPEN

       COURT.



                                                 I.

       {¶14} At trial, Appellant’s counsel requested a jury instruction on the inferior

degree offense of aggravated assault. The trial court denied the request. In the first

assignment of error, Appellant argues the trial court erred in failing to instruct the jury as

to the inferior degree offense of aggravated assault.

       {¶15} A trial court is required to instruct a jury on a lesser-included offense, where

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

charged and a conviction upon the lesser-included offense. State v. Thomas, 40 Ohio

St.3d 213, 533 N.E.2d 286 (1988).
Guernsey County, Case No. 16CA14                                                         6

      {¶16} In State v. Deanda, 136 Ohio St.3d 18, 989 N.E.2 986, 2013-Ohio-1722, the

Ohio Supreme Court stated,



             The question of whether a particular offense should be submitted to

      the finder of fact as a lesser included offense involves a two-tiered analysis.

      State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶

      13. The first tier, also called the “statutory-elements step,” is a purely legal

      question, wherein we determine whether one offense is generally a lesser

      included offense of the charged offense. State v. Kidder, 32 Ohio St.3d 279,

      281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a

      particular case and determines whether “‘a jury could reasonably find the

      defendant not guilty of the charged offense, but could convict the defendant

      of the lesser included offense.’ ” Evans at ¶ 13, quoting Shaker Hts. v.

      Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11. Only

      in the second tier of the analysis do the facts of a particular case become

      relevant.

             When a defendant presents sufficient evidence of serious

      provocation, “an instruction on aggravated assault must be given.” Serious

      provocation “must be reasonably sufficient to bring on extreme stress and

      the provocation must be reasonably sufficient to incite or to arouse the

      defendant into using deadly force.” Deem [citation omitted]. The trial court

      must consider “the emotional and mental state of the defendant and the

      conditions and circumstances that surrounded him at the time.”
Guernsey County, Case No. 16CA14                                                          7




       {¶17} 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 which will generally be presented in the defendant's case. State v.

Deem, 40 Ohio St. 3d 205, 209, 533 N.E.2d 294, 298 (1988).

       {¶18} Aggravated assault is an inferior-degree offense of felonious assault as the

two offenses share identical elements with the exception of aggravated assault including

an additional mitigating element of serious provocation. State v. Combs, 2001CA00222,

2002-Ohio-1136, citing Deem, supra. If a defendant is charged with felonious assault,

and presents sufficient evidence of serious provocation, the defendant is entitled to an

instruction on aggravated assault. Id. at paragraph four of the syllabus. To be serious, the

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

defendant into using deadly force. Id. at paragraph 5 of the syllabus. In the instant case,

we find Appellant failed to provide sufficient evidence of serious provocation to support

an instruction on aggravated assault.

       {¶19} Appellant maintains S.S. hitting him in the lip caused serious provocation

and a fit of rage. Appellant concedes the fight was mutual, with both parties causing harm

to each other. In his statement to law enforcement introduced at trial, Appellant denied

excessive physical force, describing the altercation as latching on to each other and a

brawl on the ground, dismissing the incident as a “stupid ass brawl.” Appellant stated to

law enforcement,
Guernsey County, Case No. 16CA14                                                         8


              Well I mean yeah when we was on the ground and that she was all

       over me doing that shit, because she is a scrapper she rides a fucking

       Harley and shit you know what I mean, she is a scrapper. *** She hits me

       like a dude. But when we was on the ground I did grab her hair, and turn

       her face and everything away from me. That was the only hair pulling there

       was, during the altercation. There was no crazy ass like I snatched a hold

       of you and fucking ripped your hair out or stuff like that.

       Appellant Statement Exhibit M2 at p. 14.



       {¶20} We find Appellant did not present sufficient evidence of serious provocation

resulting in extreme stress or reasonably sufficient to incite him to use deadly force. The

trial court did not err in failing to instruct the jury on aggravated assault.

       {¶21} The first assignment of error is overruled.



                                                   II.

       {¶22} In the second assignment of error, Appellant asserts the trial court erred in

imposing costs.

       {¶23} The trial court conducted a sentencing hearing and entered sentence via

Judgment Entry on June 28, 2016. The trial court did not mention costs or fines during

the sentencing hearing.



       {¶24} The trial court’s June 28, 2016 Judgment Entry of Sentence reads, in

pertinent part,
Guernsey County, Case No. 16CA14                                                     9




            4. Court costs of this case are assessed to the Defendant pursuant

     to Revised Code Section 2947.23, for which judgment plus interest at the

     legal rate is GRANTED to the Clerk of Courts. Collection of said Court costs

     is ORDERED DEFERRED pending Defendant’s release from incarceration,

     at which time he is ORDERED to contact the Clerk of Courts to make

     arrangements for payment of the Court costs of this case. Defendant was

     notified in open Court of both of the following:

            i. If Defendant fails to pay the judgment for Court costs or fails to

     make timely payments under payment schedule approved by the Court, the

     Court may Order the Defendant to perform community service work in an

     amount of not more than 40 hours per month until the judgment is paid or

     until the Court is satisfied the Defendant is in compliance with the approved

     payment schedule; and

            ii. If the Court Orders the Defendant to perform community service

     work, the Defendant will receive credit upon the judgment at the federal

     minimum wage per hour of community service work performed and each

     hour of community service performed will reduce the judgment by that

     amount.

     (Emphasis added).



     {¶25} The trial court assessed $8,825.23 in costs on June 29, 2016.
Guernsey County, Case No. 16CA14                                                          10


       {¶26} Here, the State concedes the trial court did not mention or inform Appellant

of the imposition of court costs at the sentencing hearing. In State v. Joseph, 125 Ohio

St.3d 76, 2010–Ohio–954, 926 N.E.2d 278, the Supreme Court held it is reversible error

under Crim.R. 43(A) for a trial court to impose costs in its sentencing entry when it did not

impose those costs in open court at the sentencing hearing. Id.

       {¶27} The Court reasoned the defendant was denied the opportunity to claim

indigence and to seek a waiver of the payment of court costs before the trial court because

the trial court did not mention costs at the sentencing hearing. Id. The same is true in the

instant case. Here, appellant was not given an opportunity at the sentencing hearing to

seek a waiver of the payment of costs, because the trial court did not mention costs at

the sentencing hearing. Joseph, 2010–Ohio–954 at ¶ 13. We thus vacate the order to pay

costs, and remand the matter to the trial court for the limited purpose of resentencing

regarding court costs.

       {¶28} The second assignment of error is sustained.
Guernsey County, Case No. 16CA14                                                    11


      {¶29} The judgment entered by the Guernsey County Court of Common Pleas is

affirmed, in part, vacated, in part, and remanded for further proceedings in accordance

with the law and this Opinion.

By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur
