The Eighth District Court of Appeals reversed a conviction for aggravated assault because the trial judge incorrectly instructed the jury on how to handle the felonious assault charge and the aggravated assault charge. Felonious assault requires a person to either cause serious physical harm to another or to cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. R.C. 2903.11.
Aggravated assault is an "inferior degree" of felonious assault because the elements are the same except the jury must find that the act was committed because the person "while under the influence of sudden passion or in a sudden fit of rage" committed the act and the sudden passion or sudden fit of rage was "brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force." R.C. 2903.12.
The jury instructions were wrong because the trial judge told the jury to only consider aggravated assault if they found the defendant "not guilty" of committing felonious assault. The problem is that a finding of "not guilty" on felonious assault is inconsistent with a finding of "guilty" of aggravated assault and, as the Ninth District Court of Appeals has stated, "an inconsistent response to the same count requires reversal." State v. Bosley (Oct. 7, 1992), 9th Dist. No. 15547. Read the decision in State v. Ruppart, 2010-Ohio-1574, by clicking here.
