State v. Wimpey
2019 Ohio 4823
Ohio Ct. App.2019Background
- On January 31, 2018, Wimpey and companions engaged in a bar fight at Brew Ha’s in Toledo during which Wimpey punched Daniel Vasquez multiple times; Vasquez was rendered unconscious and died four days later.
- Wimpey was indicted for murder (with felonious assault as the underlying violent offense) and for felonious assault; he pleaded not guilty and proceeded to jury trial.
- Medical causation was contested: the State’s expert attributed Vasquez’s death to a subdural hematoma from blunt-force trauma; Wimpey’s expert attributed death to an unrelated hypertensive basal ganglia bleed and testified Wimpey’s punches did not cause the fatal bleed (but conceded a punch could cause momentary unconsciousness).
- The trial court instructed the jury on murder, voluntary manslaughter (as a lesser-included of murder), felonious assault, and self-defense, but refused Wimpey’s requested instruction on simple assault and did not instruct on aggravated assault as an inferior degree of felonious assault.
- The jury acquitted Wimpey of murder and voluntary manslaughter, convicted him of felonious assault (second-degree felony), and he was sentenced to seven years; Wimpey appealed.
- The Sixth District held the trial court plainly erred by failing to instruct on aggravated assault (inferior degree of felonious assault) because sufficient evidence of provocation existed, reversed the felonious-assault conviction, upheld the refusal to instruct on simple assault, and remanded for a new trial on Count 2.
Issues
| Issue | State's Argument | Wimpey's Argument | Held |
|---|---|---|---|
| Whether the court committed plain error by not instructing on aggravated assault (inferior degree of felonious assault) | Instruction not required because defendant forfeited and evidence did not warrant provocation instruction for Count 2 | Failure to instruct prevented jurors from convicting of the lesser offense despite evidence of serious provocation; plain error review applies | Reversed: plain error; aggravated-assault instruction should have been given because evidence supported provocation and jury could reasonably acquit of felonious assault and convict of aggravated assault |
| Whether the court erred in refusing to instruct on simple assault (lesser included of felonious assault) | Evidence showed Wimpey's final punch rendered Vasquez unconscious (serious physical harm), so simple assault instruction was not supported | Judge invaded the jury’s province by deciding causation/serious harm and denying the instruction | Affirmed: refusal proper because totality of evidence supported serious physical harm (unconsciousness qualifies), so no reasonable basis for simple assault instruction |
| Other claims (self-defense instruction, counsel effectiveness, sentence) | Court did not defend these on appeal | Wimpey raised issues below | Rendered moot by reversal on aggravated-assault instruction; remanded for new trial on Count 2 |
Key Cases Cited
- State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (Ohio 1988) (standards for inferior-degree instruction and provocation analysis)
- State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d 1279 (Ohio 1990) (defendant entitled to jury instructions on issues raised by evidence)
- State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (Ohio 1990) (forfeiture of objections to jury instructions)
- State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (Ohio 1983) (same as to instructional forfeiture)
- State v. Payne, 114 Ohio St.3d 502, 873 N.E.2d 306 (Ohio 2007) (plain-error standard in criminal cases)
- State v. Lang, 129 Ohio St.3d 512, 954 N.E.2d 596 (Ohio 2011) (cautionary application of plain-error doctrine)
- State v. Carter, 89 Ohio St.3d 593, 734 N.E.2d 345 (Ohio 2000) (lesser-included-offense instruction required only when evidence supports acquittal on greater and conviction on lesser)
- State v. Spaulding, 98 N.E.3d 1057 (Ohio App.) (unconsciousness constitutes temporary substantial incapacity satisfying "serious physical harm")