COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72827 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MICHAEL ENOVITCH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 20, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-347533 JUDGMENT: Reversed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor JEFFREY SAFFOLD, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DEBRA J. DIXON, ESQ. JAMES L. DEESE, ESQ. JOHN W. OURS, ESQ. 700 West St. Clair Ave., Suite 216 Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Defendant-appellant Michael Enovitch appeals the decision of the trial court convicting him of aggravated assault and felonious -2- assault and sentencing him accordingly. Enovitch assigns eight errors for our review.1 Having reviewed the record and the legal arguments of the parties, we reverse the decision of the trial court. The apposite facts follow. On October 26, 1996, Enovitch and nine of his friends attended a party in Parma, Ohio at the home of Jamie Barts, Marris Hamro, Jeff Pudelski, and Jason Gartman. One of Enovitch's friends, Vito Mazzeo, got into an argument with Michael Guyron, another guest at the party. The argument stemmed from Mazzeo's allegation that Guyron's girlfriend, Mandy Szaikiewicz, had kicked Mazzeo in the groin. A physical altercation began involving Mazzeo and Guyron but was quickly broken up. After a brief period of calm, someone threw a punch which ignited a brawl which pitted the Enovitch group against Pudelski, Gartman, and their friends Joseph LiPuma and Josh Whelan. Gartman suffered multiple facial contusions, and a cut over the eyebrow requiring eleven stitches from being punched in the head and having his head rammed into a steel support beam. LiPuma was knocked unconscious and suffered multiple contusions to the head, loss of his peripheral vision, an eye injury, and a chipped tooth after being kicked repeatedly and thrown against a wall. Pudelski suffered head injuries when his head was repeatedly banged into the concrete floor. 1 See Appendix. -3- Enovitch was charged with felonious assault of Joseph LiPuma, felonious assault of Jason Gartman, and simple assault of Jeffrey Pudelski. LiPuma was unable to identify Enovitch as his attacker. Gartman identified Enovitch as the person who assaulted him. He also testified that he saw Enovitch punch LiPuma in the head. Pudelski did not testify. Several of Enovitch's friends testified that Enovitch was attacked by Whelan and Gartman. Enovitch admitted fighting with Pudelski but claimed that he was only defending himself and that Pudelski bested him in the fight. He denied causing the injuries sustained by the victims. The jury found Enovitch not guilty of assaulting Pudelski and convicted him of aggravated assault of Joseph LiPuma and felonious assault of Jason Gartman. This appeal followed. In his first and second assignments of error, Enovitch argues his convictions were not supported by the evidence. He first argues that the state failed to show that there was serious provocation occasioned by Joseph LiPuma. In State v. Carter (1985), 23 Ohio App.3d 27, the court held that aggravated assault was not a lesser included offense of felonious assault but was, instead, an inferior degree of felonious assault. See also State v. Wong (1994), 95 Ohio App.3d 39, 51; State v. Baker (1996), 111 Ohio App.3d 313, 324, appeal dismissed (1996), 77 Ohio St.3d 1468, 1470. [A] finding of guilty of felonious assault should not end deliberations if there is evidence in the case tending to show the existence of provocation of the defendant. That issue must be determined before the -4- culpability of the defendant can be finally identified. Carterat 32. In State v. Deem (1988), 40 Ohio St.3d 205, 211, the court held that an instruction on aggravated assault must be given in a felonious assault trial where the defendant presents sufficient evidence of serious provocation. In this case, the jurors were told that if they found Enovitch not guilty of felonious assault, they should consider a lesser included offense of aggravated assault. This instruction was incorrect. Obviously, a finding of not guilty of felonious assault would preclude a finding of guilty of aggravated assault, given the identical essential elements of each offense. Carter at 32. In this case, the jury found Enovitch not guilty of felonious assault on Joseph LiPuma. Under Carter, Enovitch could not then be properly convicted of aggravated assault. Also, the record was devoid of any evidence that LiPuma did anything to provoke the attack upon him. Because the trial court improperly instructed the jury with respect to aggravated assault, Enovitch's conviction for aggravated assault of LiPuma is reversed. Enovitch's first assignment of error is well taken. We also conclude that the state failed to present sufficient evidence of serious physical harm to support Enovitch's conviction for the felonious assault of Jason Gartman. At trial, Gartman described his injuries as a painful swollen ear and a cut over his right eye which required eleven stitches. He stated that there was still a scar over his right eye and that the scar will not go away as far as I've been told. (Tr. 309.) Enovitch argues that -5- Gartman's injuries did not constitute serious physical harm because there was no competent evidence that the scar was permanent. The state argues that the scar constituted permanent disfigurement sufficient to constitute serious physical harm under R.C. 2901.01(A)(5)(d). They also argued that the mere fact that Gartman sought treatment at the hospital was enough to establish serious physical harm. We disagree. Other than Gartman's statement, there was no evidence at trial that the scar above his eye was permanent. There is no evidence as to who told him the scar would not go away or that the person was qualified to make such a determination. The hospital records described his injury as just over 1.5 centimeters in length and as a burst-type injury, clean, shallow, not particularly jagged. The hospital discharge instructions characterized the injury as minor. Based upon the evidence presented, we conclude that Gartman's injury did not constitute the serious physical harm required for a felonious assault conviction. Accordingly, Enovitch's second assignment of error is well taken. Because we find that the state did not produce sufficient evidence to support Enovitch's conviction, we hereby reverse the decision of the trial court. In light of our decision to reverse his conviction, Enovitch's remaining assignments of error are moot. Judgment reversed. Defendant discharged. -6- It is, therefore, considered that said Appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, J., and ROCCO, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX ASSIGNMENTS OF ERROR COUNT 1 (AGGRAVATED ASSAULT UPON JOSEPH LIPUMA) BECAUSE THE CONVICTION WAS NOT SUPPORTED BY THE EVIDENCE. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ENTER JUDGMENT ON THE CONVICTION FOR COUNT 2 (FELONIOUS ASSAULT UPON JASON GARTMAN) BECAUSE THE CONVICTION IS NOT SUPPORTED BY THE EVIDENCE. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT INSTRUCTED THE JURY ON COMPLICITY. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT REFUSED TO GRANT DEFENDANT'S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING EVIDENCE OF INJURIES ARISING OUT OF AN ASSAULT AGAINST JOSHUA WHALEN, A CRIME WITH WHICH DEFENDANT WAS NOT CHARGED AND WHICH HE DID NOT COMMIT. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING THE PROSECUTION TO ENGAGE IN PREJUDICIAL MISCONDUCT. VII. TRIAL COURT COMMITTED PREJUDICIAL ERROR BY IMPOSING A SENTENCE WHICH IS CONTRARY TO LAW. VIII THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ACTED CONTRARY TO THE FIFTH AMENDMENT PROTECTION AGAINST SELF INCRIMINATION, BY PERMITTING TESTIMONY REGARDING DEFENDANT'S .