State v. Yerena, 2016 Ohio 7635

Background

On July 25, 2015, a physical altercation occurred outside Mr. Ed’s Tavern in Put-in-Bay between Jesus Yerena and Matthew Dale; surveillance video captured parts of the interactions.
Dale and others piled on top of Yerena during an initial melee; later Dale swung a cigarette receptacle at Yerena and was subsequently stabbed multiple times.
Grand jury indicted Yerena on seven counts including attempted murder, two felonious assaults (Counts 2–3), two aggravated assaults (Counts 4–5), tampering with evidence, and carrying a concealed weapon; RVO specifications were attached to Counts 1–5.
A jury convicted Yerena of two aggravated assaults, two felonious assaults, and tampering with evidence; acquitted on attempted murder and carrying a concealed weapon; court found RVO true.
After verdict, the State moved to dismiss the two aggravated-assault counts (motion granted); State elected Count 3 (felonious assault) for sentencing. Yerena was sentenced to a total of 11 years and appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Yerena)	Held
1. Whether the trial court erred in dismissing jury verdicts of aggravated assault at State's request	State: Counts were separate based on two distinct assaults; dismissal permissible under Crim.R. 48 with court permission	Yerena: Aggravated assaults were alternative theories of the same event as felonious assaults; dismissal deprived him of sentencing on convictions	Court: No error — discovery (video) showed separate events; State may dismiss counts with court leave and Yerena failed to show prejudice
2. Whether jury instructions should have explained relationship between aggravated and felonious assault counts	State: The counts charged different conduct; instructions were proper	Yerena: Jury needed instruction on relationship because indictments raised alternate theories and jury asked for clarification	Court: No plain error — instructions correctly stated law; aggravated assault was not an alternate theory here
3. Whether court committed plain error by not instructing that aggravated-assault provocation applies to felonious-assault counts	Yerena: Jury should have been instructed aggravated-assault provocation could reduce felonious assault to aggravated assault because no real break occurred between fights	State: No such evidence—defense denied stabbing; jury need not be instructed on provocation lesser-included without evidence	Court: No error — Deem standard unmet; defendant’s theory was denial of participation, so aggravated-as-lesser instruction was inconsistent with defense
4. Whether judge’s communications with jury during deliberations (outside presence of counsel) prejudiced defendant	Yerena: Ex parte contact occurred and jury confusion shows substantive interaction that may have prejudiced verdict	State: Court consulted counsel before answering written question; any error harmless and answer favored defendant	Court: Harmless error — written Q handled with counsel knowledge; oral answer outside counsel occurred but response was legally correct and not shown prejudicial

Key Cases Cited

Sellards v. State, 17 Ohio St.3d 169 (bill of particulars not a substitute for discovery)
Chinn v. State, 85 Ohio St.3d 548 (defendant must show prejudice from insufficient bill of particulars)
Foust v. State, 105 Ohio St.3d 137 (failure to object to jury instructions waives all but plain error)
Wogenstahl v. State, 75 Ohio St.3d 344 (plain-error standard explained)
Marshall v. Gibson, 19 Ohio St.3d 10 (jury instructions must plainly state law)
Comen v. State, 50 Ohio St.3d 206 (trial court must give instructions relevant and necessary)
Deem v. State, 40 Ohio St.3d 205 (aggravated assault is lesser degree of felonious assault; instruction required only if evidence of serious provocation)
Jenkins v. State, 15 Ohio St.3d 164 (complaining party must produce evidence of ex parte contact involving substantive matters)
Schiebel v. State, 55 Ohio St.3d 71 (complaining party must show actual prejudice from ex parte contact)