[Cite as State v. McOsker, 2017-Ohio-247.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :        CASE NO. CA2016-05-025

                                                :             OPINION
    - vs -                                                     1/23/2017
                                                :

WILLIAM QUAYSHAUN MCOSKER,                      :

        Defendant-Appellant.                    :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2015-CR-0370



D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, William Quayshaun McOsker, appeals his conviction for

felonious assault following a jury trial in the Clermont County Court of Common Pleas. For

the reasons set forth below, we affirm his conviction.

        {¶ 2} On the evening of June 12, 2015, Devin Trammel co-hosted an outdoor

graduation party at 600 Hopewell Road in Felicity, Clermont County, Ohio. Somewhere
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between 30 and 100 people were in attendance at the party, which lasted until the early

morning hours of June 13, 2015. Numerous guests, including underage guests, consumed

alcohol throughout the night. Appellant and one or two other individuals were the only

African-Americans in attendance at the party.

       {¶ 3} Appellant and two of his friends arrived at the party sometime before nightfall.

Appellant parked his vehicle close to where people were congregating and played music on

his stereo for people to enjoy. At some point in the evening, Erik Beckelhymer arrived at the

party with some of his friends. Within a few minutes of Beckelhymer's arrival, he engaged in

a physical altercation with Trammel. The two men, who were friends, fought for less than two

minutes before shaking hands and parting ways.

       {¶ 4} Later that evening, a second altercation occurred near where appellant and his

friends were standing. Although there is a dispute as to whether Beckelhymer was an active

participant in this altercation, all those who witnessed or participated in this fight agree that

Beckelhymer was in the area where the fight occurred.1 During this fight, one of appellant's

friends, Nick Hudson, was struck. When appellant went to aid his friend, appellant was

"sucker punched" by Michael Wise. Wise attempted to blame Beckelhymer for the punch,

asking, "Erik, why did you do that?"

       {¶ 5} While this altercation was happening, Trammel believed appellant was

"probably scared" and was "pissed off." Trammel heard appellant shout, "I've got a knife. I'll

stab you guys. I'll - - I'll kill all of you mother f-----s." Another party-goer, Ridge Ivy, saw

appellant pull a knife out of his pocket and say, "I'm going to kill them." The altercation

concluded when Beckelhymer and his group of friends left the party. Appellant stayed at the




1. At trial, Trammel testified Beckelhymer punched appellant's friend, Nick Hudson. However, Beckelhymer
denied that he punched Hudson or anyone else during the second altercation, and his testimony was
corroborated by his friend, Anthony Meade.
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party, and he and a couple of his friends continued to listen to music near his car.

        {¶ 6} About an hour later, Beckelhymer and his friends returned to the party.

Beckelhymer became engaged in an argument with Danika Carter, an African-American

guest, while she was standing in the vicinity of appellant. Carter accused Beckelhymer of

using racial slurs and calling her a "n----r." Beckelhymer denied using racial slurs, but

numerous witnesses recalled hearing the slurs being used at the party. At some point during

Beckelhymer's and Carter's argument, drinks were thrown. Beckelhymer splashed Carter in

her face with his beer.

        {¶ 7} Around this time, appellant approached Beckelhymer and tackled him to the

ground. Appellant then quickly got up, entered his vehicle with Hudson and another friend,

and "peeled out" of the party "like a bat out of hell." Appellant, Hudson, and the third friend

claimed they heard gunshots as they drove off, although no other party-goer recalled hearing

gunshots. While driving away from the party, Hudson recalled appellant saying, "I stabbed

him." Hudson also believed he may have seen appellant throw a knife out the car window.2

The other passenger in the car did not hear appellant say anything about stabbing anyone or

see appellant throw a knife out the window.

        {¶ 8} Meanwhile, at the party, Beckelhymer stood up after being tackled by appellant

and stated, "I've been stabbed." A couple of guests attempted to tend to Beckelhymer by

applying pressure to the upper left side of his abdomen, where internal tissue was protruding

from his wound. Beckelhymer was pale and was going in and out of consciousness. A guest

called 9-1-1, and emergency personnel were dispatched to the scene. Beckelhymer was air-

lifted to a nearby hospital, where he underwent surgery. Beckelhymer's small intestine was

punctured in several places and his iliac vein sliced. Beckelhymer's iliac vein was sutured


2. Hudson testified at trial that he saw appellant throw a knife out of his car, but then later appeared to contradict
himself when he testified that he never saw a knife.
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and his appendix and 55 centimeters of his small intestine were removed.

       {¶ 9} The Clermont County Sheriff's Office opened an investigation into the stabbing.

Investigator Chris Allen spoke with appellant about the events that transpired at the party.

Appellant admitted to being involved in a fight, but repeatedly denied stabbing Beckelhymer.

       {¶ 10} Appellant was arrested and subsequently indicted on two counts of felonious

assault in violation of R.C. 2903.11(A)(1) (count one) and 2903.11(A)(2) (count two), felonies

of the second degree. Appellant entered a not guilty plea to the charges and a jury trial was

held in February 2016. At trial, defense counsel requested that the jury be instructed on the

inferior offense of aggravated assault. The trial court denied this request. The jury found

appellant guilty on both counts of felonious assault. At sentencing, the trial court determined

appellant's convictions were allied offenses and the offenses were merged. Appellant was

sentenced to an eight-year prison term on count one.

       {¶ 11} Appellant timely appealed his conviction, raising the following as his sole

assignment of error:

       {¶ 12} THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN

INSTRUCTION ON THE INFERIOR OFFENSE OF AGGRAVATED ASSAULT.

       {¶ 13} In his sole assignment of error, appellant argues the trial court erred when it

denied his request for an aggravated assault jury instruction. Appellant contends he

presented sufficient evidence of provocation to warrant such an instruction.

       {¶ 14} A person is guilty of felonious assault if the person "knowingly * * * [c]ause[s]

serious physical harm to another or to another's unborn." R.C. 2903.11(A)(1). A person is

guilty of aggravated assault if the person, "while under the influence of sudden passion or in

a sudden fit or 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, * * * knowingly

* * * [c]ause[s] serious physical harm to another or to another's unborn." R.C. 2903.12(A)(1).
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Because the elements of aggravated assault are identical to the elements of felonious

assault, except for the additional mitigating element of provocation, aggravated assault is an

offense of an inferior degree of felonious assault. State v. Mack, 82 Ohio St.3d 198, 200

(1998), citing State v. Deem, 40 Ohio St.3d 205 (1988), paragraph four of the syllabus.

       {¶ 15} "A judge must give an instruction on an inferior degree offense if, 'under any

reasonable view of the evidence, it is possible for the trier of fact to find the defendant not

guilty of the greater offense and guilty of the * * * inferior offense.'" State v. Patterson, 12th

Dist. Butler No. CA2001-01-011, 2002 WL 745282, * 10 (Apr. 29, 2002), quoting State v.

Cornett, 82 Ohio App.3d 624, 631 (12th Dist.1992). "Thus, in a trial for felonious assault,

where the defendant presents sufficient evidence of serious provocation (such that a jury

could both reasonably acquit defendant of felonious assault and convict defendant of

aggravated assault), an instruction on aggravated assault * * * must be given." (Emphasis

sic.) Deem, 40 Ohio St.3d at 211.

       {¶ 16} "Provocation, to be serious, 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." Id. at paragraph five of the syllabus. "In determining whether the

provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an

objective standard must [first] be applied." State v. Shane, 63 Ohio St.3d 630, 634 (1992).

See also Mack, 82 Ohio St.3d at 201. Under an objective standard, "[t]he provocation must

be 'sufficient to arouse the passions of an ordinary person beyond the power of his or her

control.'" State v. Chambers, 12th Dist. Butler No. CA2004-03-069, 2005-Ohio-1682, ¶ 9,

quoting Shane at 635. See also Mack at 201. If insufficient evidence of provocation is

presented, so that no reasonable jury would decide that a defendant was reasonably

provoked by the victim, the trial judge must, as a matter of law, refuse to give the aggravated

assault instruction. Shane at 634. Where the objective portion of the test is not met, the
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court need not conduct a subsequent inquiry into the subjective portion of the test. Id.

       {¶ 17} However, if the objective standard is met, "the inquiry shifts to a subjective

standard, to determine whether the defendant in the particular case 'actually was under the

influence of sudden passion or a sudden fit of rage.'" Mack at 201, quoting Shane at 634.

Under this subjective component, the "'emotional and mental state of the defendant and the

conditions and circumstances that surrounded him at the time * * *' must be considered."

Shane at 634, quoting Deem at paragraph five of the syllabus.

       {¶ 18} In the present case, we find that the trial court did not err in denying appellant's

request for an aggravated assault jury instruction. The evidence of provocation presented by

appellant was insufficient, as a matter of law, to support a conviction on aggravated assault.

The totality of the evidence presented at trial, even when viewed in a light most favorable to

appellant, did not raise a possibility of serious provocation occasioned by Beckelhymer.

       {¶ 19} To be reasonably sufficient provocation, the provocation "must be occasioned

by the victim." (Emphasis sic.) Shane at 637. Here, the only evidence presented of

provocation by Beckelhymer were his actions in engaging in fights with various party goers

throughout the evening and his use of racial slurs while in proximity to appellant. Although

Beckelhymer's use of racial slurs is deplorable, "[i]t is well-established that 'words alone will

not constitute reasonabl[y] sufficient provocation to incite the use of deadly force in most

situations.'" State v. Gray, 12th Dist. Butler No. CA2010-03-064, 2011-Ohio-666, ¶ 37,

quoting Shane at 637.

       {¶ 20} Further, Beckelhymer's participation in various fights while at the party does

not constitute reasonably sufficient provocation to incite appellant's use of deadly force.

There is nothing in the record indicating appellant was involved in Beckelhymer's first fight

with Trammel. As for the second fight, when appellant was sucker punched by Wise and the

punch blamed on Beckelhymer, this fight took place approximately an hour before the third
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fight occurred. The supreme court has recognized that "past incidents * * * do not satisfy the

test for reasonably sufficient provocation where there is sufficient time for cooling off." Mack,

82 Ohio St.3d at 201, citing State v. Huertas, 51 Ohio St.3d 22, 31-32 (1990). Thus, even if

appellant believed Beckelhymer had been the individual who punched him, the punch does

not rise to the level of sufficient provocation as appellant had an hour to "cool off" from the

second fight while Beckelhymer was gone from the party. Additionally, Beckelhymer's

actions upon returning to the party, wherein he directed racial slurs at someone other than

appellant and splashed another party guest in the face with a beer, was not sufficient

provocation to arouse the passions of an ordinary person beyond the power of his control.

Appellant, therefore, failed to meet the objective component of the test.

       {¶ 21} Appellant also failed to introduce evidence satisfying the subjective component

of the test. As appellant did not testify at trial, the only evidence before the court about his

mental and emotional state at the time of the stabbing was derived from his statement to

Investigator Allen and the observations of those who witnessed the incident. Although there

was some testimony that appellant was "probably scared" and was "pissed off" and "agitated"

throughout the night, this testimony does not demonstrate that appellant "actually was under

the influence of sudden passion or a sudden fit of rage" at the time he assaulted

Beckelhymer. Shane, 63 Ohio St.3d 634. When talking to Investigator Allen, appellant did

not claim that he was provoked into stabbing Beckelhymer or that he acted out of a fit of rage

or under extreme stress. Rather, appellant maintained his innocence, repeatedly denying

that he stabbed anyone at the party.

       {¶ 22} Therefore, based on the record before us, we conclude that the trial court did

not err in denying appellant's request for an aggravated assault jury instruction. The

evidence of provocation presented by appellant was insufficient, as a matter of law, to

support a conviction on aggravated assault.          Appellant's sole assignment of error is
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overruled.

      {¶ 23} Judgment affirmed.


      S. POWELL, P.J., and RINGLAND, J., concur.




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