[Cite as State v. Bethune, 2014-Ohio-385.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99794




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 BRANDON BETHUNE
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-568657

        BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Edward D. Brydle
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

      {¶1} Defendant Brandon Bethune appeals from his conviction of felonious assault

entered upon a jury verdict. For the following reasons, we affirm.

      {¶2} In April 2012, Bethune punched his sister in the face with enough force to

inflict a fractured orbital bone, a laceration, and substantial swelling.     The victim

experienced double vision for two months following the injury, and required surgery,

which she was unable to undergo because of her maternal obligations. The victim’s

testimony was the only evidence establishing the sequence of events leading to the

assault. According to the victim, Bethune lived with her, although he never paid rent or

utilities. They had a normal brother–sister relationship prior to the event in April 2012.

On that day, the victim was using her computer in her bedroom when Bethune entered

and asked to fix it. Apparently, there was a small dislodged piece on the corner of the

laptop. The victim declined the offer, but Bethune persisted, and the encounter degraded

into a shoving match initiated by Bethune, with the victim trying to get him to leave her

room. Ultimately, Bethune punched his sister in the eye and the police were called.

      {¶3} Bethune opted for a trial, and the jury, after hearing the evidence, rendered a

guilty verdict on the felonious assault and domestic violence counts. The trial court

merged the offenses for the purposes of sentencing, and Bethune was sentenced to serve

four years of incarceration with a mandatory three-year term of postrelease control. It is

from this conviction that Bethune appeals, advancing one assignment of error in which he
claims the trial court erred in failing to instruct the jury on the inferior offense of

aggravated assault. We find no merit to Bethune’s argument.

       {¶4} A trial court is provided the discretion to determine whether the evidence

adduced at trial was sufficient to require an instruction. State v. Fulmer, 117 Ohio St.3d

319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. Jury instructions must be viewed as a

whole to determine whether they contain prejudicial error. State v. Fields, 13 Ohio

App.3d 433, 436, 469 N.E.2d 939 (8th Dist.1984). In State v. Deem, 40 Ohio St.3d 205,

533 N.E.2d 294 (1988), the Ohio Supreme Court held that aggravated assault was an

inferior degree of felonious assault because the elements were identical except for the

additional mitigating element of provocation. Therefore, “in a trial for felonious assault,

where the defendant presents sufficient evidence of serious provocation, an instruction on

aggravated assault must be given to the jury.” Id. at paragraph four of the syllabus. To

be considered serious, the provocation must be reasonably sufficient to bring on extreme

stress and incite or arouse the defendant into using deadly force. Id. at paragraph five of

the syllabus.

       {¶5} “In determining whether the provocation was reasonably sufficient to incite

the defendant into using deadly force, the court must consider the emotional and mental

state of the defendant and the conditions and circumstances that surrounded him at the

time.” Id. In State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992), the Ohio

Supreme Court further determined the bounds of serious provocation, through the use of a

two-part inquiry: (1) the provocation must be sufficient to arouse the passions of an
ordinary person beyond the power of his or her control, and (2) the defendant in the

particular case must actually be under the influence of sudden passion or in a sudden fit of

rage. Id. at 634-635. Words alone will not constitute reasonably sufficient provocation

to incite the use of deadly force in most situations. Id. at paragraph two of the syllabus.

       {¶6} In this case, the record is devoid of any evidence that the victim provoked

Bethune, much less to such a level as to be deemed serious provocation. The victim

merely declined Bethune’s offer to fix the laptop and asked him to leave her room. The

altercation that ensued was of Bethune’s making when he refused to leave and started

pushing the victim in her own bedroom. We cannot say that the trial court erred in

omitting the aggravated assault jury instruction because there is no evidence of Bethune’s

emotional or mental state nor any evidence of a serious provocation.            At best, the

evidence established that Bethune had anger issues, and his leap from helpful intentions

to violently punching the victim in the face was not beyond the ordinary person’s power

or control. Bethune’s sole assignment of error is overruled.

       {¶7} The judgment of the trial court is affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
