State v. Pennington, 2017 Ohio 1423

On May 9–12, 2015, a domestic altercation between Brendan Pennington and his girlfriend S.S. produced visible injuries to S.S. (bruising, hair loss, ear and breathing problems) and conflicting accounts about who struck whom.
Pennington was indicted for kidnapping (1st degree), rape (1st degree), and felonious assault (2nd degree); after a jury trial he was convicted only of felonious assault and acquitted of rape and kidnapping.
At trial Pennington contended the incident was a mutual brawl and claimed limited hair-pulling and striking; the victim described prolonged force, choking until blackout, and other violence.
Pennington requested a jury instruction on the lesser-included offense of aggravated assault (based on serious provocation); the trial court denied the instruction.
The court sentenced Pennington to the maximum 8-year term and later entered a judgment assessing court costs that were not mentioned at the sentencing hearing.
Pennington appealed, arguing (1) the trial court erred by refusing the aggravated-assault instruction, and (2) the court improperly imposed costs without stating them in open court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by refusing to instruct the jury on aggravated assault as a lesser-included offense of felonious assault	State: aggravated-assault instruction not warranted because evidence did not show serious provocation that would reduce culpability	Pennington: evidence of being struck in the lip and a mutual fight showed serious provocation warranting the instruction	Court: Overruled. Evidence did not establish "serious provocation" causing extreme stress or incitement to deadly force, so no instruction required
Whether court costs may be imposed where costs were not pronounced at sentencing hearing	State: (conceded) costs were not mentioned at sentencing	Pennington: he was denied opportunity to claim indigence or seek waiver because costs were not announced in open court	Court: Sustained. Under State v. Joseph, costs entered only in journal but not pronounced at sentencing must be vacated; remanded for resentencing limited to costs

State v. Thomas, 40 Ohio St.3d 213 (discussing when lesser-included instruction is required)
State v. Deanda, 136 Ohio St.3d 18 (two-tier test for lesser-included offenses and role of evidence)
State v. Deem, 40 Ohio St.3d 205 (definition of inferior-degree offense and serious provocation concept)
State v. Evans, 122 Ohio St.3d 381 (framework for lesser-included analysis)
Shaker Hts. v. Mosely, 113 Ohio St.3d 329 (evidence-based second-tier inquiry on lesser offenses)
State v. Kidder, 32 Ohio St.3d 279 (statutory-elements step in lesser-included analysis)
State v. Joseph, 125 Ohio St.3d 76 (trial court must announce costs in open court; costs entered only in journal require reversal)