State v. McKinnon, 2017 Ohio 5784

On Jan. 3, 2014, Scott McKinnon went to his girlfriend L.T.’s apartment after drinking; an altercation occurred and McKinnon admitted striking her multiple times.
L.T. sustained serious injuries including a fractured skull and traumatic brain injury; police found both covered in blood.
A Columbiana County grand jury indicted McKinnon for felonious assault (R.C. 2903.11(A)(1)) and aggravated burglary (R.C. 2911.11(A)(1)).
At trial the court denied McKinnon’s request for a jury instruction on the lesser-included offense of aggravated assault; the jury convicted on both counts.
At sentencing the court refused to merge the offenses, imposed maximum consecutive terms for an aggregate 19-year sentence; McKinnon appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (McKinnon)	Held
Whether the trial court erred by refusing to instruct the jury on aggravated assault as a lesser-included offense of felonious assault	No instruction required because evidence of provocation was insufficient as a matter of law	Provocation (victim grabbed his testicles, admitted theft/infidelity, and he was intoxicated) could allow a reasonable jury to find aggravated assault	Court affirmed: no abuse of discretion; provocation insufficient for a reasonable jury to find sudden passion beyond control
Whether felonious assault and aggravated burglary are allied offenses that must merge for sentencing	Offenses are of dissimilar import because the harm escalated and became separately identifiable (assault and aggravated burglary occurred across rooms)	Crimes arose from same conduct/animus and should merge	Court affirmed: offenses do not merge under Ruff; conduct caused separate, identifiable harms, so convictions may stand separately

State v. Lessin, 67 Ohio St.3d 487 (trial court discretion on lesser-included instructions)
State v. Wolons, 44 Ohio St.3d 64 (standard for requesting jury instructions)
State v. Adams, 62 Ohio St.2d 151 (abuse-of-discretion defined)
State v. Whitt, 31 Ohio App.3d 92 (aggravated assault is lesser offense to felonious assault)
State v. Rhodes, 63 Ohio St.3d 613 (standard for when mitigating evidence entitles defendant to lesser-offense instruction)
State v. Mack, 82 Ohio St.3d 198 (objective-subjective test for provocation in voluntary manslaughter context)
State v. Shane, 63 Ohio St.3d 630 (words alone usually insufficient provocation)
State v. Ruff, 143 Ohio St.3d 114 (allied-offenses merger test and dissimilar-import analysis)
State v. Williams, 134 Ohio St.3d 482 (de novo review for allied-offense merger issues)