Citations
- 45 Ohio App. 2d 127
Full opinion text
Craweord, J.
Defendant, Charles R. Beaty was charged in two indictments, alleging that he did on or about the 7th day of April, 1974, knowingly cause or attempt to cause physical harm to Vernon M. Alexander and Paul G. Miller, respectively, by means of an automatic pistol, a deadly weapon, as defined in Section 2923.11 Ohio Revised Code in violation of that section.
The two cases arose out of the same episode and were tried together.
It appears that on April 7, 1974, defendant was at the home of his mother, Ruth Beaty, on Williams Drive in Clermont County. The complaining witnesses, Vernon M. Alexander and Paul G. Miller, were in the rear yard of Miller’s house, which abuts the rear yard of Ruth Beaty’s house, and were in the process of emptying an above-ground swimming pool. An old dispute was revived as to the method of emptying the pool, Ruth Beaty claiming that the water ran over her property.
She entered her house and returned with her son, the defendant, who had in his possession an automatic pistol. He threatened to kill both the complaining witnesses. He fired two shots in the direction of Miller and one in the direction of Alexander. No one was struck. Defendant claims he was only trying to scare Miller and Alexander, not trying to hit them, and that he was an expert marksman.
R. C. 2903.11, under which defendant was charged, reads: “Felonious Assault
“(A) No person shall knowingly:
“(1) Cause serious physical harm to another;
“ (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in Section 2923.11 of the Revised Code.
“(B) Whoever violates this section is guilty of felonious assault, a felony of the second degree.”
The court charged on this section and also on the two succeeding sections, R. C. 2903.12 and 2903.13, which read as follows:
(R. C. 2903.12) Aggravated Assault.
“ (A) No person, while under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force, shall knowingly:
“(1) Cause serious physical harm to another;
“(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in Section 2923.11 of the Revised Code.
“(B) Whoever violates this section is guilty of aggravated assault, a felony of the fourth degree.”
(R. C. 2903.13) Assault.
“(A) No person shall knowingly cause or attempt to cause physical harm to another.
“(B) No person shall recklessly cause serious physical harm to another.
“(C) Whoever violates this section is guilty of assault, a misdemeanor of the first degree.”
In each case defendant was found not guilty of felonious assault, but guilty of aggravated assault.
He contends that the court should also have charged on aggravated menacing, as provided in R. C. 2903.21, which he claims is a lesser included offense in a charge of felonious asáault. Such section reads:
‘ ‘ Aggravated Menacing.
“(A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of such other person or member of his immediate family.
“(B) Whoever violates this section is guilty of aggravated menacing, a misdemeanor of the first degree.”
There is a question whether defendant made a timely request for such a charge. At the close of the general charge the court asked counsel for defendant:
“On behalf of the Defendant, is there anything that the court has omitted or that you wish the court to charge further on?”
Defense counsel answered: “Nothing further, your honor. ’ ’
After the jury had retired from the courtroom, defense counsel said:
“The additional charge requested by the defendant was that a charge on the crime of aggravated menacing, Section 2903.21 was requested by the defendant, and subject charge was not given by the court.”
We have searched the briefs and the record in vain for such a request. We do not find that defendant complied with Criminal Bule 30, which provides in part:
“No party may assign as error any portion of th