COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67609 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JUAN GREEN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 17, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-309235 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. DAVID B. LEITCH, ESQ. Cuyahoga County Prosecutor 6650 Pearl Road RICHARD J. BOMBIK, ESQ. Suite 202 Assistant County Prosecutor Parma Heights, Ohio 44130 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, J: Juan Green, defendant-appellant, appeals his conviction for felonious assault and assigns the following error for our review: THE TRIAL COURT COMMITTED PLAIN, PREJUDICIAL AND REVERSIBLE ERROR BY NOT PROVIDING THE JURY WITH AN INSTRUCTION DEFINING AGGRAVATED ASSAULT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Juan Green and Norma Andrews began dating in May of 1993. They lived together in her parents' home from August 1993 to January 1994. Green slept at the apartment occasionally and kept his personal belongings there, but he did not have permission to live there. He considered himself to be engaged to be married to Andrews, and she did not tell him otherwise. Later it was discovered she did not intend to follow through with the marriage. In March 1994, their relationship deteriorated because of Green's physical and mental abuse of Andrews. On one occasion, Green grabbed Andrews by the throat and threw her against the wall, and on other occasions, he threatened her with bodily harm. On March 21, 1994, Green and Andrews argued, and she told him she wanted to end the relationship because she was tired of being afraid of him. On the evening of March 22, 1994, they had another argument. Green began packing his clothes, but called Andrews into the bedroom and asked her if she really wanted him to leave and -4- repeatedly pleaded with her to let him stay and "work this out." Andrews reiterated to him several times that the relationship was over. While Green completed his packing in the bedroom, Andrews went into the living room. When he was done packing, Green came into the living room and lunged toward Andrews and stabbed her in the chest with a knife. Andrews fell to the floor. Her niece, Shannon Creameans, and her brother, Kenneth Andrews, came to her assistance, while Green ran away. Green claimed he felt "hurt" on the evening in question because Andrews was ending the relationship, and he was "very upset." He claimed he was surprised because they had spent the previous night together. He claimed Andrews turned into the knife. Nonetheless, he admitted he wanted to hurt Andrews, but he did not want to kill her. Green was charged with attempted murder. The case proceeded to a trial by jury. The trial court instructed the jury on the offense of attempted murder and the lesser included offense of felonious assault. After deliberations, the jury returned a guilty verdict to the offense of felonious assault. Green was sentenced to eight to fifteen years of incarceration and this appeal followed. In his sole assignment of error, Green argues the trial court committed plain error by failing to instruct the jury on the offense of aggravated assault. -5- Under Crim.R. 30(A), the failure to object to jury instructions waives any error relating to the instructions except in the event of plain error. See State v. Gideons (1977), 52 Ohio App.2d 70. A trial court is not required to give an instruction if the evidence does not support such an instruction. State v. Sneed (1992), 63 Ohio St.3d 3. An instruction on aggravated assault is not warranted unless the defendant presents sufficient evidence of serious provocation. State v. Deem (1988), 40 Ohio St.3d 205. Aggravated assault, under R.C. 2903.12(A), is as follows: "(A) No person, while under the influence of sudden passion or in a sudden fit of 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, shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code." "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. 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." State v. Mabry (1982), 5 Ohio App.3d 13 at paragraph five of the syllabus, quoted in State v. Deem at 211. -6- There was no evidence of serious provocation in this case. Green denied trying to kill Andrews but admitted he wanted to hurt her. Although Green may have been "upset" by Andrews' decision to end their relationship, his feelings of hostility are not consistent with the state of mind necessary to demonstrate serious provocation. See State v. Jackson (1992), 82 Ohio App.3d 667, 673 (held shooting based on feelings of hostility not consistent with aggravated assault). Accordingly, an instruction on the offense of aggravated assault was not supported by the evidence. Judgment affirmed. -7- It is ordered that Appellee recover of Appellant its 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. DAVID T. MATIA, J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .