State v. Elliott, 2014 Ohio 4958

Defendant Joseph Elliott was indicted on two counts of felonious assault for allegedly assaulting and running over Kevin McKee with his van; the parties stipulated McKee suffered "serious physical harm."
Disputed factual record: both men testified they fought inside Elliott’s van, the van crashed, they continued fighting outside, and Elliott ultimately ran over McKee; their accounts differ on who was the initial aggressor and whether McKee pointed a gun.
Physical evidence: damage to Elliott’s van, blood matching McKee on the van, and no weapon recovered at the scene; Elliott found later with minor injuries, McKee hospitalized with serious injuries.
At the close of evidence Elliott requested jury instructions on aggravated assault (an inferior-degree offense to felonious assault) and on self-defense; the trial court gave self-defense but refused aggravated-assault instruction.
Jury convicted Elliott of both felonious-assault counts; trial court merged counts and sentenced Elliott to six years; Elliott appealed the denial of the aggravated-assault instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing an aggravated-assault instruction	State: aggravated assault is not warranted because the record lacks evidence of sudden passion/fit of rage (subjective prong)	Elliott: evidence of mutual combat and McKee pointing a gun (and mutual fighting) established serious provocation, so instruction required	Court affirmed: aggravated-assault instruction not required because defendant failed subjective prong—evidence showed fear/self-defense, not sudden passion or fit of rage

State v. Deem, 40 Ohio St.3d 205 (Ohio 1988) (aggravated assault is an inferior-degree offense to felonious assault because it adds provocation element)
State v. Shane, 63 Ohio St.3d 630 (Ohio 1992) (tests for objective and subjective provocation; serious provocation defined)
State v. Darmond, 135 Ohio St.3d 343 (Ohio 2013) (abuse-of-discretion standard for jury-instruction review)
State v. Comen, 50 Ohio St.3d 206 (Ohio 1990) (trial court need only give instructions relevant and necessary to weigh evidence)
State v. Guster, 66 Ohio St.2d 266 (Ohio 1981) (defendant entitled to requested instructions only if correct law and supported by record)
State v. Mack, 82 Ohio St.3d 198 (Ohio 1998) (fear alone does not constitute sudden passion or fit of rage)
State v. Wong, 95 Ohio App.3d 39 (Ohio Ct. App. 1994) (aggravated-assault instruction required only if sufficient evidence of serious provocation)