State v. Moore
2016 Ohio 8274
Ohio Ct. App.2016Background
- John Moore, an inmate at Southern Ohio Correctional Facility, confronted Officer Jeremy Conkel after finding his cell had been searched; the encounter escalated and Conkel suffered a broken ankle and other injuries.
- A Scioto County grand jury indicted Moore for attempted murder and felonious assault; after trial a jury convicted Moore of felonious assault and deadlocked on attempted murder (which was later dismissed).
- At trial witnesses (multiple SOCF officers) testified Moore struck and choked Officer Conkel and initially refused orders to release him.
- Moore did not request an aggravated-assault jury instruction at the close of evidence (though a pretrial motion requesting that instruction had been filed).
- The trial court sentenced Moore to seven years; Moore appealed arguing (1) the court erred by not instructing on aggravated assault as an inferior degree of felonious assault, and (2) trial counsel was ineffective for failing to request that instruction and for not objecting to court costs.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Moore) | Held |
|---|---|---|---|
| Whether the trial court erred by not instructing the jury on aggravated assault as an inferior degree of felonious assault | No error — evidence did not support serious provocation sufficient to warrant the instruction | Moore: evidence (cell search and being sprayed with mace) established serious provocation and warranted the instruction | No plain error; aggravated-assault instruction not required because provocation was not reasonably sufficient to arouse an ordinary person to deadly force and Moore was the initial aggressor |
| Whether Moore was entitled to an aggravated-assault instruction when he did not renew his pretrial request at trial | Objection waived; plain-error standard applies and is not met | Trial counsel’s failure to request the instruction was ineffective assistance | The claim fails: counsel’s inaction was a reasonable tactical decision and, in any event, the instruction would have been futile |
| Whether trial counsel was ineffective for not seeking waiver of court costs at sentencing | R.C. requires costs but court may waive for indigency; counsel had options post‑sentencing | Moore: counsel ineffective for not objecting to costs at sentencing | No ineffective assistance: waiver can be sought later under amended statute, and counsel’s delay may have been strategic; Moore cannot show prejudice |
| Whether the trial court abused discretion in denying inferior-offense instruction | State: trial court has discretion and must give lesser instruction only if evidence reasonably supports it | Moore: evidence supported both acquittal on felonious assault and conviction for aggravated assault | No abuse of discretion; objective/subjective Deem/Shane test not satisfied given facts |
Key Cases Cited
- State v. Deem, 40 Ohio St.3d 205 (defining inferior-degree offense and serious provocation test)
- State v. Shane, 63 Ohio St.3d 630 (objective standard for provocation and when lesser instruction required)
- State v. Mack, 82 Ohio St.3d 198 (application of Deem/Shane tests)
- State v. Wine, 140 Ohio St.3d 409 (quality of evidence, tactical gambits, and when lesser-included instructions are given)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance-of-counsel standard)
- State v. White, 142 Ohio St.3d 277 (preservation of jury-instruction objections and plain-error review)
- State v. Comen, 50 Ohio St.3d 206 (trial court must give instructions relevant and necessary)
- State v. Lessin, 67 Ohio St.3d 487 (requested instruction must be correct and appropriate to the facts)