# State v. Deem

> Ohio Supreme Court · December 30, 1988 · 40 Ohio St. 3d 205

URL: https://www.frixlaw.com/law-library/cases/6761343

## Case

- **Full name:** The State of Ohio v. Deem
- **Court:** Ohio Supreme Court
- **Decided:** December 30, 1988
- **Citations:** 40 Ohio St. 3d 205; 533 N.E.2d 294; 1988 Ohio LEXIS 459
- **Precedential status:** Published
- **Opinion:** Concurring in part by Sweeney
- **Judges:** Brown, Douglas, From, Holmes, Locher, Moyer, Sweeney, Syllabus, Wright
- **Cited by:** 753 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated in part, on other grounds by State v. Evans, 122 Ohio St. 3d 381 (2009).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6761343

## How later opinions describe it (automated extraction)

- holding that "as statutorily defined, the offense of aggravated assault is an inferior degree of the indicted offense — felonious assault — since its elements are identical to those of felonious assault, except for the additional mitigating element of serious provocation"
- holding that "as statutorily defined, the offense of aggravated assault is an inferior degree of the indicted offense—felonious assault—since its elements are identical to those of felonious assault, except for the additional mitigating element of serious provocation”
- explaining that aggravated assault is an inferior-degree offense to felonious assault because its elements are identical to those of felonious assault except for the additional mitigating element of serious provocation
- holding that a lesser-included offense exists, in pertinent part, when "the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed"

## Opinion text

Sweeney, J.,
concurring in syllabus but dissenting from judgment. I concur in the majority’s syllabus law and much of the discussion related thereto in this cause since it clarifies the instances when a charge on a lesser included or inferior degree offense must be given. However, I dissent from the majority’s judgment that such instruction was not warranted here on the grounds that appellee did not present sufficient evidence of provocation.
*212 In my view, since the evidence appeared to be conflicting, an instruction on the lesser included or inferior degree offense of aggravated assault should have been given. As this court stated in State v. Wilkins (1980), 64 Ohio St. 2d 382, 388 , 18 O.O. 3d 528, 532, 415 N.E. 2d 303, 308 , with respect to lesser included offense instructions:
“The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant.”
Accord State v. Davis (1983), 6 Ohio St. 3d 91 , 6 OBR 131, 451 N.E. 2d 772 .
I believe that such a guideline is appropriate and is applicable to the cause sub judice. Therefore, I would affirm the decision of the court of appeals below.
It should be pointed out that the defendant’s expert witness was not permitted to testify before the jury because the trial court found that defendant’s assertion of a “complete defense” precluded the expert testimony since it was designed to provide the basis upon which the jury could find the mitigating element of provocation. Hence, the majority’s conclusion that the instruction on aggravated assault was properly refused since Deem did not present sufficient evidence of provocation is patently erroneous. Deem was ready, willing and able to present evidence of provocation by way of expert testimony. However, the trial court erroneously prevented the expert evidence of provocation from being submitted to the jury. To deny Deem the benefit of a new trial because he did not present sufficient evidence of provocation to the jury merely compounds the error committed by the trial court, and paints a misleading picture of the proceedings that took place below. One cannot proffer evidence to a jury that one is erroneously prevented from proffering in the first place.
Based on the foregoing, I would affirm the judgment of the court of appeals, and remand the cause for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6761343. Public record. Not legal advice.