State v. Bostick, 2012 Ohio 5048

Defendant-Appellant Alvin Bostick, Sr. was convicted in Summit County Court of Common Pleas of felonious assault (with a repeat violent offender specification) and two domestic-violence counts.
The incident occurred October 31, 2010, involving Bostick and his then-girlfriend with whom he was living.
Bostick’s counsel requested an instruction on aggravated assault as an inferior degree of felonious assault; the request was denied.
Bostick was found guilty and the court imposed an 18-year total sentence.
Initial appeal in 2011 failed due to counsel’s failure to file a brief, then later counsel sought to reopen the appeal, which was granted.
The sole issue on appeal is whether the trial court erred by not instructing the jury on aggravated assault as an inferior-degree offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by omitting aggravated assault as an inferior degree instruction.	Bostick contends sufficient evidence of serious provocation warranted the instruction.	State argues no sufficient provocation supported such an instruction under the record.	Yes, the instruction was required; reversed and remanded for new trial.

State v. Deem, 40 Ohio St.3d 205 (1988) (definition of inferior degree offense; provocation must be reasonably sufficient)
State v. Mack, 82 Ohio St.3d 198 (1998) (aggravated assault as inferior degree of felonious assault; need for provocation)
State v. Rhodes, 63 Ohio St.3d 613 (1992) (test for provocation: objective then subjective; evidence viewed favorably to defendant)
State v. Shane, 63 Ohio St.3d 630 (1992) (test for sudden passion or rage; factors to consider in provocation analysis)
State v. Hancher, 2010-Ohio-2507 (2010) (relevance of provocation and related factors in aggravated assault context)
State v. Robinson, 161 Ohio St. 213 (1954) (historical framing of provocation considerations)
State v. Watson, 2006-Ohio-5738 (2006) (provocation and proportional response; circumstances of encounter)