## Facts

- Robert Deem and Kandace Shauck had a volatile, intermittent relationship and had previously filed criminal charges against each other.
- Deem followed Shauck in his car and motioned for her to pull over; their cars collided under disputed circumstances.
- Deem forced Shauck’s car into a ditch; when she refused to open her window, he broke it with a hammer.
- Witnesses testified Deem repeatedly stabbed Shauck; Deem claimed he fled after breaking the window.
- Deem was indicted for felonious assault under Ohio Rev. Code (R.C.) 2903.11.
- At trial, Deem sought expert testimony on provocation and a jury instruction on aggravated assault (R.C. 2903.12) as a lesser/related offense; the court excluded the testimony and refused the instruction.
- The jury convicted Deem of felonious assault; the court of appeals reversed, reasoning aggravated assault was a lesser included offense requiring an instruction.

## Issues

1. Under R.C. 2945.74 and Crim.R. 31(C), what categories of lesser offenses may be considered by a jury, and when must instructions be given?
2. How are “inferior degree” offenses distinguished from “lesser included” offenses for jury-instruction purposes?
3. Is aggravated assault (R.C. 2903.12) a lesser included offense of felonious assault (R.C. 2903.11), or instead an inferior degree of it?
4. In a felonious-assault prosecution, must the court instruct on aggravated assault when there is sufficient evidence of serious provocation?

## Decision

- The Ohio Supreme Court held that, when supported by the evidence, the jury must be instructed on: (1) attempts, (2) inferior degrees of the indicted offense, and (3) lesser included offenses.
- The court held aggravated assault is not a lesser included offense of felonious assault under the court’s test; it is an inferior degree because it adds the mitigating element of serious provocation.
- The court held that if the defendant presents sufficient evidence of serious provocation (viewed in the light most favorable to the defendant), the trial court must instruct the jury on aggravated assault in a felonious-assault trial.
- The court agreed the trial court erred by failing to give the aggravated-assault instruction and remanded for further proceedings consistent with its clarification of the doctrine.

## Legal Principles

- Under R.C. 2945.74 and Crim.R. 31(C), a jury may consider, and the court must charge on when supported by the evidence: (1) attempts, (2) inferior degrees, and (3) lesser included offenses.
- An “inferior degree” offense has elements identical to or contained within the indicted offense, except for one or more additional mitigating elements.
- An offense may qualify as a lesser included offense if: (1) it carries a lesser penalty, (2) the greater offense, as statutorily defined, cannot ever be committed without the lesser also being committed, and (3) the greater contains at least one element not required for the lesser.
- Aggravated assault (R.C. 2903.12) is an inferior degree of felonious assault (R.C. 2903.11) because it mirrors felonious assault’s elements and adds serious provocation as a mitigating element.
- “Serious provocation” must be reasonably sufficient to bring on extreme stress and to incite the use of deadly force, assessed by considering the defendant’s emotional and mental state and the surrounding circumstances.

## Conclusion

The court clarified Ohio jury-instruction doctrine by distinguishing lesser included offenses from inferior-degree offenses and held that aggravated assault is an inferior degree of felonious assault; when evidence could support serious provocation, the jury must be instructed on aggravated assault even if the defendant was indicted only for felonious assault.


State v. Deem, 40 Ohio St. 3d 205 (Ohio 1988)