STATE OF OHIO, Plaintiff-Appellee, - vs - JACOB LLOYD TOLLE, Defendant-Appellant.
CASE NO. CA2014-06-042
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
4/13/2015
[Cite as State v. Tolle, 2015-Ohio-1414.]
M. POWELL, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 13CR0618
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, Jacob Lloyd Tolle, appeals his conviction in the Clermont County Court of Common Pleas for felonious assault.
{¶ 2} Appellant was indicted in October 2013 on one count of felonious assault in violation of
{¶ 3} On September 20, 2013, appellant was incarcerated in pod D of the Clermont County Jail. Officer Thompson testified he was delivering breakfast to inmates in pod B that morning when he heard a “very loud banging” and appellant scream. Minutes earliеr, the officer had talked to appellant in pod D without incident. As Officer Thompson approached appellant‘s cell, the officer noticed that аppellant was “extremely irate,” “appeared to be in a rage,” and was screaming. Appellant was also pounding on the window of his door. Officer Thompson called for additional assistance and told appellant to calm down. Appellant screamed at the officer through the window and warned him not to comе into the cell. At that moment, the door to appellant‘s cell began to slide open.
{¶ 4} Officer Thompson testified that as soon as the door was open wide еnough, appellant “took his breakfast tray and struck” the officer first in the head, then on his right arm. According to the officer, appellant struck him in the right arm in a “chop[ping] down” manner. The officer entered the cell and used three different techniques in his efforts to subdue appellant.1 Shortly after, three officers came to Officer Thomрson‘s assistance. It was not until appellant was pepper-sprayed that he stopped resisting.
{¶ 5} When Officer Thompson tried to pick up appellant off the floor, the officer had a “very awkward feeling” in his right arm. An x-ray taken later that day revealed an ulnar shaft fracture in the officer‘s right arm.2 Officer Thompson testified he did not rеceive any other blows to his arm that day, nor was he hit accidentally by the officers coming to his assistance.
{¶ 6} On April 23, 2014, the jury found appellant guilty as charged. Appellant was sentenced to eight years in рrison.
{¶ 7} Appellant appeals, raising one assignment of error:
{¶ 8} THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF ASSAULT.
{¶ 9} Appellant argues the trial court erred in refusing to instruct the jury on assault and reckless assault as lesser included offenses of felonious assault. Appellant asserts that the jury could have found that Officer Thompson‘s bone fracture did not result from being struck by the tray but in the ensuing struggle. Appellant also asserts that because there was sufficiеnt evidence to conclude something other than the tray could have fractured the officer‘s arm, the jury could have found appellant recklessly caused thе serious physical harm to the officer, rather than knowingly.
{¶ 10} Appellant was convicted of felonious assault, in violation of
{¶ 11} A jury instruction on a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal of the crime charged and a conviction on the lesser included offense. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192. An instruction is not warranted every time the defendant offers “sоme
{¶ 12} Appellant first requested a jury instruction on assault. Under
{¶ 13} As a result of the altercation with appellant, Officer Thompson suffered a bone fracture in his right forearm. The officer testified that his arm was in a cast for approximately five months, and during that period of time, he took pain medication and was put on light duty status. The officer further testified that seven months after the incident, he has dull aches and pain in his right arm almost on a daily basis. In addition, his arm has lost strength and has some mobility issues.
{¶ 14} In light of the foregoing, we find that no reasonable jury could have concluded that Officer Thompson suffered anything less than serious physical harm. The trial cоurt, therefore, did not abuse its discretion when it refused to instruct the jury on assault. See
{¶ 15} Appellant also requested a jury instruction on reckless assault. Under
{¶ 16} Upon reviewing the evidence presented at trial, we find that the jury could not have reasonably concluded that appellant was guilty only of the lesser included offense of reckless assault, but not of the greater offense of felonious assault.
{¶ 17} The evidence at trial showed that right before he struck Officer Thompson with the tray, appellant was very angry and explicitly warned the officer not to enter his cell. Once his cell door was open enough, appellant immediately struck the officer with the tray, first in the head and then on the officer‘s right arm. Given this evidence, the jury could not have reasonably concluded that appellant merely acted recklessly when he struck the officer with the tray or during their subsequent struggle. Rather, the evidence showed appellant acted knowingly, that is, he was aware his “conduct will probably cause a certain result or will probably be of a certain nature.”
{¶ 18} The trial court therefore did not abuse its discretion when it refused to instruct the jury on reckless assault. Appellant‘s assignment of error is overruled.
{¶ 19} Judgment affirmed.
PIPER, P.J., and RINGLAND, J., concur.