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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

ASSAULT (053)

Also see Self Defense; Deadly Weapons; Battered Woman Syndrome.

 

Assault generally

Felonious assault and aggravated assault

Vehicular assault

Number of offenses

Lesser included offenses; Merger

Physical harm and serious physical harm

Corporal punishment; patient abuse; hazing

 

R.C. 2903.08 -- Aggravated vehicular assault; vehicular assault.

R.C. 2903.11 -- Felonious assault.

R.C. 2903.12 -- Aggravated assault.

R.C. 2903.13 -- Assault.

R.C. 2903.14 -- Negligent assault.

R.C. 2903.34 -- Patient abuse; neglect.

R.C. 2901.01(C) -- "Physical harm to persons" defined.

R.C. 2901.01(E) -- "Serious physical harm to persons" defined.

R.C. 3319.41 -- Use of force and infliction of corporal punishment on pupils.

Assault generally

Johnson v. U.S. (2010), 130 S.Ct. 1265 – The government sought an enhanced penalty under the federal Armed Career Criminal Act, relying on the defendant’s past conviction for battery under Florida law. Court construes that offense not to have “as an element…the use of physical force against the person of another.” The Florida statute can be violated in three ways. One does not require the use of force against another. Nothing in the record indicated this least form of the offense was not the basis for the prior conviction.

In re M.H., 186 Ohio App. 3d 513, 2010-Ohio-689 – 11-year old attending an education service center punched his teacher who held a master’s degree in special education. On appeal it was claimed she was not a “teacher” for purposes of determining the penalty. The center qualified as a school and the victim’s contract made her a teacher. The complaint was not defective because it did not set forth a mens rea element.

State v. Guidugli, 157 Ohio App. 3d 383, 2004-Ohio-2871 -- Starting quarterback for the University of Cincinnati was convicted of assault after punching an opposing player in the eye during a scuffle at an intramural basketball game. Sports violence is not exempted under Ohio law. Implied consent may be a defense, though question would be whether such blows fall within the scope of such consent. Sentence of house arrest seems excessive but is beyond review. Anger management classes deemed counterproductive for quarterbacks.

In re Tiber, 154 Ohio App. 3d 360, 2003-Ohio-5155 -- Juvenile took his father's new shotgun down from the wall to show a friend. While walking across the room the gun discharged, wounding the friend. Accidental assault conviction was supported by the evidence. Juvenile was negligent in not checking to see gun was unloaded or at least assuring the safety was on. No abuse of discretion found in imposing 90 days of imprisonment, even though maximum for an adult convicted of an M-3 is 60 days.

Euclid v. El-Zant (2001), 143 Ohio App. 3d 545 -- First offense misdemeanor assault may be expunged. Though it is swept up in the general ban on expungement for first degree misdemeanor offenses of violence, it is one of four offenses exempted later in R.C. 2953.36(C).

In re Shafer (2001), 145 Ohio App. 3d 53 -- While an assault on a school teacher, administrator, or bus driver is a fifth degree felony, "educational assistants," though responsible for classroom discipline, do not fall within the definition controlling at the time charges were filed.

State v. Wilcox, 160 Ohio App. 3d 468, 2005-Ohio-1745 -- Strict liability is the culpable mental state for an assault with a peace officer penalty enhancement allegation.

State v. Fritz, 163 Ohio App. 3d 276, 2005-Ohio-4736 -- Evidence supported the conclusion that the defendant knew he was fighting police officers. Counsel was ineffective for not requesting an instruction on self-defense in an assault on a police officer case. The testimony established the requisites for an instruction on self-defense through non-deadly force and further supported the use of excessive force by the officers.

State v. Karasek, Montgomery App. Nos. 17408 and 17409, 2002-Ohio-2616 -- Woman arrested for civil contempt was frustrated by delay in being processed for release and kneed jail officer in the groin. Because civil contempt is not a crime or delinquent act under R.C. 2903.12(C)(2)(b), she was erroneously convicted of assault on a corrections officer. Assault conviction stands.

State v. Wilson (1997), 77 Ohio St. 3d 334 -- Amendment of the assault statute to make assault on a police officer a fourth degree felony, effective September 29, 1994 was not repealed by further amendment of that statute effective October 6, 1994.

State v. Dunham (1997), 118 Ohio App. 3d 724, 730 -- "We hold that where...two persons agree to fight each other not in conformity with statutes authorizing boxing matches, each may he held guilty of assault, and where, as here, the harm visited upon one of the fighters constitutes serious physical harm, the fact that the fight was begun by mutual consent is not a defense, in law, to a charge brought pursuant to R.C. 2903.11(A)(1)." This may mean that the supposed victim will have to be granted immunity before testifying in cases arising from mutual combat.

State v. Perez (1991), 72 Ohio App. 3d 468 -- It is error to use a deadly force based jury instruction on self-defense in a case where non-deadly force is involved. Also see Columbus v. Dawson (July 31, 1986), Franklin Co. App. No. 86AP-159, unreported (1986 Opinions 1962); State v. Fox (1987), 36 Ohio App. 3d 78.

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Felonious assault and aggravated assault

State v. Ruppart, 187 Ohio App. 3d 192, 2010-Ohio-1574 – Aggravated assault is an offense of lesser degree to felonious assault, not a lesser-included offense. The trial court erred by instructing the jury that if they found the defendant not guilty of felonious assault they were to further consider whether he was guilty of aggravated assault. A verdict was returned finding the defendant not guilty of felonious assault but guilty of aggravated assault. Reversed as plain error. The verdict was internally inconsistent. While inconsistent verdicts on different counts are generally not the basis for reversal, this reflected different responses within the same count.

State v. Anderson, 183 Ohio App. 3d 522, 2009-Ohio-3900 – (1) ¶27-35: Effort to raise Colon claims regarding charges of felonious assault on police officers and related firearm specifications rebuffed by finding strict liability is the requisite culpable mental state. (2) ¶52-57: Close calls during a high speed chase were a sufficient basis for convictions for felonious assault on police officers. (3) ¶66-73: Assault and felonious assault counts merge where they involve the same acts and victims. (4) ¶107-114: Verdict forms were sufficient to establish the enhanced level of the offense based on inclusion of the phrase, "a peace officer as defined in Section 2935.01."

State v. Browning, 190 Ohio App. 3d 400, 2010-Ohio-5417 – Officers responding to a disturbance at a campground forced entrance to the defendant’s trailer, then broke down door to rear bedroom. She threw bleach at them, leading to felonious assault convictions. (1) Since she had not encountered officers outside the trailer and retreated, exigent circumstances did not warrant entrance of the camper. But, in the court’s view, throwing bleach at the officers was not privileged conduct. Instead it was independent criminal conduct, so motion to suppress was properly overruled. (2) Self defense instruction properly denied despite claim defendant had been hit in an intimate area. Under the circumstances she was not entitled to resist. (3) Instruction that the officers were in the trailer lawfully was erroneous. Compare Columbus v. Montgomery, Franklin App. No. 09AP-537, 2011-Ohio-1332.

State v. Mays, 161 Ohio App. 3d 175, 2005-Ohio-2609 -- Plain error found in additional instructions to jurors after they handed down a verdict finding the defendant guilty of felonious assault without considering aggravated assault. Aggravated assault is an offense of lesser degree and not a lesser included offense. It is not an offense to consider only if the jury concludes the elements of felonious assault were not proven. Error also extends to the related felony-murder count, as that was premised on commission of a first or second degree felony. Vague indictment also faulted for not expressing which counts were premised on beating an elderly man with a digital camera and which on poisoning him with antifreeze.

State v. Smith, 168 Ohio App. 3d 141, 2006-Ohio-3720, ¶43-66 -- An instruction on the mitigating factor of sudden rage is warranted when a reasonable juror could conclude that a crime was committed in such a manner. Such an instruction may be given even when self defense is claimed. Defendant's claim that he was not in an uncontrollable rage, at least initially, during an encounter may be discounted depending on how matters evolved.

State v. Kaeff, Montgomery App. No. 20519, 2004-Ohio-5288 -- In a felonious assault case premised on strangulation, the defendant's hands do not fall within the statutory definition of "deadly weapon."

State v. Price, 162 Ohio App. 3d 677, 2005-Ohio-4150 -- Defendant, knowing he was HIV positive and had hepatitis spit in an officer's face. On a felonious assault count the court concludes appellant's knowledge of his illness meant he knew his spit was a deadly weapon, combined with his approach to spit in the officer's face supported conviction. On the attempted felonious assault count the court concludes the fact the officer has so far not tested positive does not mean appellant did not engage in an act which if successful would have resulted in serious physical harm. Compare Justice Pfeifer's dissent in State v. Bird (1998), 81 Ohio St. 3d 582, 586-587. Majority there did not decide whether saliva could be a deadly weapon.

State v. Gonzalez, 154 Ohio App. 3d 9, 2003-Ohio-4421 -- (1) The obligation to disclose HIV positive status before engaging in sexual activity is clear. R.C. 2903.11(B)(1) is not unconstitutionally vague. (2) The offense does not constitute cruel and unusual punishment. (3) Access to medical records concerning HIV status requires a subpoena during investigation, but court authorization for use at trial. The statute authorizing access to such records is an exception to doctor-patient privilege. (4) That the sex partner became HIV positive is generally irrelevant and unduly prejudicial. (5) The offense qualifies as a sexually oriented offense.

State v. Cooper (2000), 139 Ohio App. 3d 149 -- (1) Mother's convictions of felonious assault with respect to four children sexually abused by herself and others affirmed, where the claimed injuries were the children's mental illnesses arising from the entire course of abusive conduct. (2) Felonious assault counts did not merge with related sexual assault counts.

State v. Kehoe (1999), 133 Ohio App. 3d 591 -- Intent to cause physical harm could be inferred from firing shots from inside a vehicle at one officer, then pointing a gun at another officer after exiting and before fleeing the scene.

In re A.C.T., 158 Ohio App. 3d 473, 2004-Ohio-4935 -- Student was prepared to strike another student, but a teacher stepped between the combatants and received the blow. Student is guilty of assault with respect to the teacher, but not guilty of the elevated offense of assault on a teacher. Since all victims are not treated equally, the doctrine of transferred intent does not apply. The student did not knowingly strike a teacher.

In re Reed 147 Ohio App. 3d 182, 2002-Ohio-43 -- Juvenile emulated a TV wrestling move at a school bus stop, dropping a companion on her head. Original charge was felonious assault premised on serious physical harm. Before trial the state reduced the charge to attempt, but the court found the juvenile guilty of felonious assault premised on the use of a deadly weapon - the ground. Reversed. Opinion focuses on surprise and lesser included offense analysis - DYS term on violation of probation would be longer for the greater offense.

State v. Schooler, Montgomery App. No. 19627, 2003-Ohio-6248 -- Though a pocket knife is not a deadly weapon per se, use to impose multiple stab wounds which might have been deadly if an artery were struck was sufficient to establish the deadly weapon element of felonious assault. Knife was not recovered.

State v. Baker, 159 Ohio App. 3d 462, 2005-Ohio-45 -- Self-defense and aggravated assault are not inconsistent, but it was not ineffective assistance of counsel to forgo a warranted agg. assault instruction to strengthen prospects on self-defense.

State v. Serrano, 164 Ohio App. 3d 103, 2005-Ohio-5606, ¶23 -- An historically stormy relationship between the parties is insufficient to render the failure to instruct on aggravated assault plain error. Dissent at ¶35: "I would hold, as a matter of law, that when one's wife's current live-in boyfriend approaches that person during a trailer park dispute with a knife in his hand and states, 'Come over here motherfucker, I'm going to slit your throat,' the threshold for serious provocation has been crossed. To hold otherwise defies logic."

State v. Brooks (1989), 44 Ohio St. 3d 185 -- Syllabus: "The act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, is insufficient evidence to convict a defendant of the offense of 'felonious assault' as defined by R.C. 2903.11(A)(2)."

In re Sekulich (1981), 65 Ohio St. 2d 13 -- Pointing shotgun at unidentified vehicle in the dark, occupied by sheriff's deputies, is not enough to establish felonious assault.

State v. Green (1991), 58 Ohio St. 3d 239 -- Syllabus: "The act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of felonious assault***."

State v. Zackery (1987), 31 Ohio App. 3d 264 -- The act of brandishing a knife may be sufficient to prove the offense of felonious assault. Also see State v. Tate (1978), 54 Ohio St. 2d 444.

State v. Pack (1996), 110 Ohio App. 3d 632 -- Evidence was insufficient to support felonious assault conviction where a gun was discharged during sales demonstration. Prosecutor's reference to recklessness in argument warranted an instruction that recklessness was not sufficient for conviction.

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Vehicular assault

State v. Zima, 102 Ohio St. 3d 61, 2004-Ohio-1807 -- When the Blockberger test is applied to a statute containing alternate elements constituting the offense, each statutory alternative should be construed as constituting a separate offense. Defendant pleaded guilty to driving under the influence. This barred prosecution for aggravated vehicular assault under R.C. 2903.08(A)(1) where driving under the influence is an element. But it does not bar prosecution under (A)(2) premised on recklessness.

State v. Gordon, 155 Ohio App. 3d 357, 2003-Ohio-6160, ¶ 30 -- "It is irrelevant that Dr. Jenkins could not determine from a urine sample the blood-alcohol level of the appellant at the moment of the crime. Intoxication of a defendant at the moment of the crime is determined not by the opinion of an expert, but by the alcohol limits set forth by the Ohio Revised Code for urine, blood, and breath. The medical expert need not determine the blood-alcohol concentration from the appellant's urine sample." See concurring opinion.

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Number of offenses

State v. Murray, 156 Ohio App. 3d 219, 2004-Ohio-654 -- Defendant shot at a van containing four people, wounding two of them. Though logic suggests four offenses, the court affirms six - four for attempting to cause physical harm by a deadly weapon, two more for actually causing serious physical harm.

State v. Cartellone (1981), 3 Ohio App. 3d 145 -- Defendant fired three shots at a single victim, but two other people were arguably within range leading to the filing of three counts of felonious assault. Defendant could only be convicted of a single count.

State v. Campbell (1983), 13 Ohio App. 3d 338 -- Defendant may be convicted of two counts of felonious assault where he twice harmed same victim, not at the same time or in the same manner. But see Brown v. Ohio (1977), 432 U.S. 161 -- The state may not avoid the consequences of the Double Jeopardy Clause by dividing a single crime into a series of temporal or spatial units.

State v. Gregory (1993), 90 Ohio App. 3d 124 -- Defendant fired shots at a police cruiser he knew contained two officers. Held that he could be convicted and consecutively sentenced for two counts of felonious assault, but sentenced to only one three year term of actual incarceration for firearm specifications, as the offenses arose from the same transaction.

State v. Brown (1995), 101 Ohio App. 3d 784 -- Though a BB gun may be a deadly weapon if used as a bludgeon, or shown to be unusually powerful, it is not a deadly weapon per se. Felonious assault conviction reduced to simple assault absent proof concerning particular gun being capable of inflicting death either as a bludgeon or otherwise.

State v. Lester (July 1, 1993) Franklin Co. App. No. 92AP-1376, unreported (1993 Opinions 2832) -- Applying State v. Brooks (1989), 44 Ohio St. 3d 185, felonious assault conviction was reversed where narcotics officer forced the car the defendant was a passenger in to the side of the road, and attempted to have driver accompany him, leading the defendant to move the driver's head out of the way and aim a gun at the officer. Officer and his partner fired on car.

State v. Phillips (1991), 77 Ohio App. 3d 663 -- (1) "Knowingly" refers to the mental state of the defendant and not to whether he knew the identity of the victim. (2) Since felonious assault encompasses an attempt to cause physical harm to another by means of a deadly weapon, no instruction on attempted felonious assault is required.

State v. Salinas (1997), 124 Ohio App. 3d 379, 389-391 -- The knowingly element of felonious assault was satisfied where the defendant sprayed lit houses with gunfire, the presence of cars in driveways and the time of day suggested people would be present, and the defendant later expresses relief that no one was hurt.

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Lesser included offenses; Merger

State v. Craycraft, 193 Ohio App. 3d 594, 2011-Ohio-413 – On remand, post-Johnson, court concludes felonious assault, domestic violence, and F-3 child endangerment can all be committed with the same conduct. As to whether the offenses were committed by a single act with a single state of mind, the case was tried in such a manner that this cannot be determined. The prosecutor did not tie specific conduct by the defendant to the specific counts within the indictment, as this was not required in the Rance era.

State v. Harris, 122 Ohio St. 3d 373, 2009-Ohio-3323 – Paragraph 2 of the syllabus: "Felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim. (State v. Cotton, 120 Ohio St. 3d 321, 2008-Ohio-6249, 898 N.E. 2d 959, followed.)" Also see State v. Wilson, 182 Ohio App. 3d 171, 2009-Ohio-1681.

State v. Lanier, 192 Ohio App. 3d 762, 2011-Ohio-898 – Counts of attempted murder, felonious assault based on infliction of serious physical harm, and felonious assault premised on the use of a firearm may all be based on the same conduct, and merge when committed as a single act with a single state of mind. Offenses here merge even though multiple shots were fired. Supersedes State v. Lanier, 180 Ohio App. 3d 376, 2008-Ohio-6906 where prior to the decision in State v. Johnson, the court concluded attempted murder and felonious assault premised on causing or attempting to cause physical harm by means of a deadly weapon are allied offenses of similar import. But felonious assault premised on serious physical harm and attempted murder are not. Compare State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677, ¶88-93.

State v. Roberts, 180 Ohio App. 3d 666, 2009-Ohio-298 – Felonious assault and attempted murder were committed with a separate animus where the defendant began stabbing his girlfriend with a steak knife, but then changed to a kitchen knife.

State v. Hunter, Champaign App. No. 2004 CA 5, 2005-Ohio-443 -- Where the indictment charged felonious assault premised on bodily harm, assault is a lesser included offense. Inmate jabbed at jailer with a plastic "spork." Court should have instructed on attempted assault as a lesser-included offense to attempted felonious assault.

State v. Cochran, Montgomery App. No. 19448, 2003-Ohio-3980 -- Assault is a lesser included offense of felonious assault premised on the use of a deadly weapon. Defendant who testified he did not strike the victim with a breaker bar was entitled to an instruction on misdemeanor assault. Victim's move towards the defendant's wife with a glass was not enough to require an instruction on aggravated assault.

State v. Parker, 149 Ohio App. 3d 681, 2002-Ohio-5536 -- Disorderly conduct as a fourth degree misdemeanor is not a lesser-included offense to assault. Minor misdemeanor disorderly is a lesser-included, but the M-4 offense requires proof of persistence, which is an element and not merely a factual basis supporting an enhanced penalty.

State v. Ross (1999), 135 Ohio App. 3d 262, 278-280 -- Felonious assault and child endangering are not allied offenses of similar import.

State v. Culver, 160 Ohio App. 3d 172, 2005-Ohio-1359 -- vehicular assault and aggravated vehicular assault are not allied offenses of similar import.

State v. Church, 161 Ohio App. 3d 589, 2005-Ohio-2984 -- While holding to district precedent that attempted murder and felonious assault do not merge even when there has been a single shot, two of three judges suggest the case should go to the Supreme Court as a certified conflict.

State v. Smith, 168 Ohio App. 3d 141, 2006-Ohio-3720, ¶75-82 -- Prior conviction was reversed because defendant was denied his right to self-representation. This nullifies the results of the prior trial, including the merger of felonious assault counts. Only if the defendant had been acquitted of those crimes would retrial be barred. With respect to a single victim the cumulative punishment prong of the Double Jeopardy Clause does not preclude consecutive sentences for counts of felonious assault premised on serious physical harm and the use of a deadly weapon.

State v. Deem (1988), 40 Ohio St. 3d 205 -- Aggravated assault is an offense of lesser degree to felonious assault, differentiated by the mitigating element of serious provocation. Also see State v. Whitt (1987), 31 Ohio App. 3d 92; State v. Carter (1985), 23 Ohio App. 3d 27.

State v. Box (1993), 89 Ohio App. 3d 614, 618-619 -- Felonious assault is a lesser included offense of aggravated murder. Compare State v. Nelson (1996), 122 Ohio App. 3d 309 holding that 2903.11(A)(2) felonious assault is not a lesser included offense to attempted murder because it requires proof of the additional element of the use of a deadly weapon. But R.C. 2903.11(A)(1) felonious assault premised on serious physical harm should still be considered a lesser included.

State v. Hartman (1998), 130 Ohio App. 3d 645 -- Though reckless assault is a lesser included offense to felonious assault premised on serious physical harm, it was error to instruct the jury on the lesser offense where both the victim's and defendant's versions of the facts indicated knowing conduct on the part of whoever started the fight. Though in theory a person who acts knowingly also acts recklessly, a court may not instruct on a lesser included offense when the only versions of the fact before the jury imply knowing conduct, and instruction on recklessness invites the jury to compromise the truth by inventing an additional version.

State v. Daniels (1984), 14 Ohio App. 3d 41 -- Assault accepted as lesser-included offense of aggravated assault.

State v. Wong (1994), 95 Ohio App. 3d 39, 52-53 -- Reckless assault is not a lesser included offense to felonious assault premised on the use of a deadly weapon, as it requires additional proof that the defendant caused serious physical harm, as opposed to physical harm. Also see State v. Wong (1994), 97 Ohio App. 3d 244.

State v. McCornell (1993), 91 Ohio App. 3d 141, 147 -- Negligent assault is a lesser included offense to felonious assault. Also see State v. Wong (1994), 95 Ohio App. 3d 39, 53.

State v. Gary (1996), 117 Ohio App. 3d 286 -- Child endangerment is not a lesser included offense to felonious assault.

State v. Morris (1982), 8 Ohio App. 3d 12, 15-16 -- Aggravated menacing is not a lesser included offense to felonious assault (or aggravated assault) because of the additional element that the victim believed he would suffer serious physical harm. Also see State v. Beatty (1978), 45 Ohio App. 2d 127.

State v. Mack (1998), 82 Ohio St. 3d 198 -- Court refused to instruct on aggravated assault as a lesser included to felonious assault. (1) Defendant did not have to submit an aggravated assault instruction in writing to preserve issue for appeal. Request citing case law and reference back at conclusion of charge was sufficient. (2) For an instruction on the lesser offense there must first be evidence that the provocation was reasonably sufficient to bring on a sudden passion or a sudden fit of rage, then evidence that the accused acted under such influence. See State v. Shane (1992), 63 Ohio St. 3d 630.

State v. Carter (1985), 23 Ohio App. 3d 27 -- It is error to instruct the jury that they must find the defendant not guilty of felonious assault before considering the lesser offense of aggravated assault. Also see State v. Shaw (1990), 65 Ohio App. 3d 821 -- Error to instruct the jury not to consider assault until it had arrived at a verdict defendant was not guilty of felonious assault.

State v. Roberts (1996), 109 Ohio App. 3d 634 -- It was plain error to instruct the jury that they could consider the offense of lesser degree of aggravated assault only if they concluded the state had failed to prove one or more of the elements of felonious assault.

State v. Reynolds (1985), 25 Ohio App. 3d 59 -- Minor misdemeanor disorderly conduct is a lesser included offense of assault, but the M-4 version is not because of the additional element of persistence. Also see State v. Roberts (1982), 7 Ohio App. 3d 253. Compare State v. Neal (September 1, 1998), Franklin Co. App. No. 97APA12-1676, unreported (1998 Opinions 398 -- Disorderly conduct is not a lesser included offense to assault. Also see State v. Yontz (1999), 135 Ohio App. 3d 530, 538-539.

State v. Jackson (1985), 21 Ohio App. 3d 157 -- Felonious assault and aggravated burglary are not allied offenses of similar import.

State v. Blankenship [1988], 38 Ohio St. 3d 116 -- Kidnapping and felonious assault are not committed with a separate animus when separated in time. Also see State v. Preston (1986), 23 Ohio St. 3d 64.

State v. Anderson (1984), 16 Ohio App. 3d 251 -- Child endangering and felonious assault found not to be allied offenses of similar import. Also see State v. Barton (1991), 71 Ohio App. 3d 455, 461-464.

State v. Allen (1996), 115 Ohio App. 3d 642, 645 -- Felonious assault and aggravated robbery are not allied offenses of similar import.

State v. Ferguson (1991), 71 Ohio App. 3d 342, 346-357 -- Felonious assault on a police officer and aggravated robbery are not allied offenses of similar import.

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Physical harm and serious physical harm

State v. Collier, Montgomery App. No. 20131, 2005-Ohio-119 -- During argument, the court overruled an objection to the prosecutor equating fear to physical harm. Since emotional stress is not a physical harm, the ruling endorsed this view, permitting conviction based on an invalid theory of culpability.

State v. Moore, 162 Ohio App. 3d 23, 2005-Ohio-4531, ¶67-75 -- "Physical harm to persons" encompasses physiological impairment, but not psychological harm.

State v. Mushrush (1999) 135 Ohio App. 3d 99, 108 -- Being choked to the point of unconsciousness constitutes serious physical harm. See dissent.

State v. King, 160 Ohio App. 3d 386, 2005-Ohio-1747 -- Defending himself against an irate passenger, bus driver missed a month of work and continued to be treated for back pain and headaches a year later. Majority concludes this amounted to acute pain of such duration as to result in substantial suffering and temporary substantial incapacity. See dissent.

State v. O'Neill (1992), 81 Ohio App. 3d 307 -- Small cuts and facial cuts requiring stitches held not to constitute serious physical harm. Also see State v. Ivey (1994), 98 Ohio App. 3d 247. Compare State v. Edwards (1992), 83 Ohio App. 3d 357 -- Small cut leaving a permanent scar constituted permanent disfigurement. Disfigurement does not have to be serious.

State v. Elliott (1996), 104 Ohio App. 3d 812 -- Felonious assault and child endangerment convictions upheld where claim was that the defendant caused serious physical harm, in the form of mental injury, to his six year old son, who was left in a position to discover the body of his dead mother. Father had been acquitted of murder, but confessed several years after the fact.

State v. Czajka (1995), 101 Ohio App. 3d 564, 574 -- Being choked to the point of unconsciousness constitutes serious physical harm.

State v. Goble (1982), 5 Ohio App. 3d 197, 199 -- Red indentation left after knife had been held to throat sufficient to prove "physical harm."

State v. Winston (1991), 71 Ohio App. 3d 154 -- Hospitalization and delivery of a stillborn child established serious physical harm.

In re Riffle (September 2, 1982) Franklin Co. App. Nos. 82AP-285 et seq., unreported (1982 Opinions 2788, 2793) - Serious physical harm not established by need for medical treatment. Superficial laceration not sufficient.

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Corporal punishment; patient abuse; hazing

State v. Ivey (1994), 98 Ohio App. 3d 247 -- "Abuse" in the context of R.C. 2919.22(B)(1) means abuse threatening serious physical harm. Minor injuries resulting from parental discipline which did not require continued treatment did not constitute serious physical harm. Compare State v. Burdine-Justice (1998), 125 Ohio App. 3d 707.

State v. Hustead (1992), 83 Ohio App. 3d 809 -- In a patient abuse prosecution, evidence was sufficient to support conviction where victim did not testify and there was no indication slap caused movement or marking.

State v. Brown (1993), 90 Ohio App. 3d 674, 685-686 -- Hazing is a strict liability offense. Consent is not a defense.

State v. Hoover (1982), 5 Ohio App. 3d 207 -- Reference to R.C. 2919.22(A), which proscribes certain acts against minors, determines what constitutes reasonable corporal punishment by a teacher. Also see State v. Albert (1983), 8 Ohio Misc. 2d 13.

Ingraham v. Wright (1977), 430 U.S. 651 -- The Cruel and Unusual Punishment Clause of the Eighth Amendment does not apply to the use of corporal punishment in public schools.

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