State v. Dean, 2016 Ohio 5720

Jason W. Dean was indicted for one count of felonious assault after driving his SUV into his uncle, Randall Bell, on Feb. 18, 2015; Bell sustained injuries requiring surgery.
Dean pleaded not guilty, sought a competency exam and an insanity plea; court found him competent to stand trial.
At trial Bell testified about a prolonged argument inside the grandmother’s house (including Dean wielding a piece of wood), a later verbal confrontation in the driveway, and Dean then driving his vehicle over Bell.
Dean presented no evidence at trial; defense argued Bell provoked Dean and brought himself into danger.
Defense counsel did not request a jury instruction on the inferior degree offense of aggravated assault; the jury convicted Dean of felonious assault and he was sentenced to four years’ imprisonment.
On appeal Dean argued (1) plain error in the trial court’s failure to instruct on aggravated assault and (2) ineffective assistance for counsel’s failure to request that instruction. The court affirmed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Dean)	Held
Whether trial court committed plain error by not instructing jury on aggravated assault (inferior degree)	No instruction required because victim’s conduct did not constitute legally sufficient provocation; Dean was aggressor.	Dean argued evidence of serious provocation (verbal accusations, long argument, alleged threats) warranted the aggravated-assault instruction.	No plain error; evidence did not show objectively sufficient provocation nor that Dean acted under sudden passion or fit of rage.
Whether counsel was ineffective for failing to request aggravated-assault instruction	Even if counsel erred, no prejudice because the instruction would not have been warranted; thus outcome unchanged.	Counsel’s failure to request the instruction deprived Dean of a potential lesser-included offense and a fair trial.	No ineffective assistance: presumed trial strategy and, regardless, no prejudice because an aggravated-assault instruction was not supported by the evidence.

State v. Deem, 40 Ohio St.3d 205 (Ohio 1988) (explains aggravated assault as inferior degree and that mere relationship/bumps do not constitute sufficient provocation)
State v. Mack, 82 Ohio St.3d 198 (Ohio 1998) (articulates two-part inquiry for aggravated-assault instruction: objective sufficiency of provocation and whether defendant actually acted under sudden passion)
State v. Shane, 63 Ohio St.3d 630 (Ohio 1992) (rejects entitlement to inferior-offense instruction based on only ‘‘some evidence’’ of provocation)
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585 (Ohio 1991) (explains when requested jury instructions must be given; guidance on appellate review)
Wolons v. Smith, 44 Ohio St.3d 64 (Ohio 1989) (abuse-of-discretion standard for reviewing refusal to give jury instructions)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (governs ineffective-assistance-of-counsel two-prong test)