[Cite as State v. McKinnon, 2017-Ohio-5784.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

SCOTT A. McKINNON, 

 DEFENDANT-APPELLANT. 

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CASE NO. 16 CO 0011 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 2014 CR 26 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Attorney Ryan P. Weikart 

105 S. Market St. 

Lisbon, Ohio 44432 

For Defendant-Appellant Allen Vender 

Assistant State Public Defender 

250 East Broad Street 

Suite 1400 

Columbus, Ohio 43215 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: June 29, 2017 
[Cite as State v. McKinnon, 2017-Ohio-5784.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Scott McKinnon, appeals from a Columbiana 

County Common Pleas Court judgment convicting him of felonious assault and 

aggravated burglary following a jury trial. 

{¶2} On January 3, 2014, appellant and his friends were drinking whiskey 

near the Fawcett Apartments in East Liverpool where appellant’s girlfriend, L.T., 

resided. 

{¶3} According to appellant, he received two calls that day about some 

money he had left with L.T. to hold on to. Appellant said, on the first call, that L.T. 

told him the money had been misplaced. Appellant explained the second call came a 

couple of hours later. Appellant said, on the second call, L.T. told him that her 

neighbor, Jacob, had taken the money. 

{¶4} Appellant testified that he asked two friends to question Jacob in L.T.’s 

presence. According to appellant, his friends reported that L.T. was drunk and her 

story did not add up. 

{¶5} Appellant stated that about six hours later, L.T. called him requesting 

tobacco. Appellant brought some whiskey and tobacco to Fawcett Apartments. 

Entering the building took appellant more than one attempt. Apparently another 

person named McKinnon was on the trespasser list. Nevertheless, the appellant 

eventually got in by following an acquaintance into the building and up the elevator. 

{¶6} According to appellant, upon reaching L.T.’s door, he knocked, was 

invited inside, and entered. He and L.T. then had shots of whiskey and got ready for 

bed. According to appellant, L.T. became angry when he experienced impotence 

issues. Appellant claimed she grabbed his testicles and said she had spent his 

money on Jacob, who did not have the same impotence issues. Appellant admitted 

to blacking out and hitting L.T. multiple times. 

{¶7} Police arrived and found appellant and L.T. covered in blood. L.T. 

suffered a traumatic brain injury, a skull fracture, and a broken nose. 

{¶8} A Columbiana Grand Jury indicted appellant on one count of felonious 

assault, a violation of R.C. 2903.11(A)(1), and one count of aggravated burglary, a 
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violation of R.C. 2911.11(A)(1). 

{¶9} The matter proceeded to a jury trial. Appellant requested a jury 

instruction on the lesser included offense of aggravated assault. The trial court 

denied that request. The jury found appellant guilty of both charges. At sentencing, 

the trial court found that the two counts were not subject to merger and imposed 

maximum consecutive sentences for an aggregate sentence of 19 years. 

{¶10} Appellant timely filed a notice of appeal on May 18, 2016. Appellant 

now raises two assignments of error. 

{¶11} Appellant’s first assignment of error states: 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED 

TO PROVIDE JURY INSTRUCTIONS ON AGGRAVATED ASSAULT, 

IN VIOLATION OF MCKINNON’S RIGHT TO DUE PROCESS UNDER 

THE FOURTEENTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 16, OF THE OHIO 

CONSTITUTION[.] 

{¶12} Appellant argues the jury could have acquitted him on the charge of 

felonious assault and still convicted him on the lesser included offense of aggravated 

assault. Therefore, he asserts, the court should have given an instruction on the 

lesser included offense. 

{¶13} Contrasting felonious assault and aggravated assault, appellant notes 

that aggravated assault contains the added mitigating element of provocation. 

Contending that provocation existed, appellant points to his testimony that L.T. 

grabbed his testicles, confronted his impotence, revealed her infidelity, and admitted 

her theft. Appellant argues this qualified as provocation. 

{¶14} The trial court has discretion when determining whether sufficient 

evidence was presented at trial to require a particular instruction. State v. Lessin, 67 

Ohio St.3d 487, 494, 1993-Ohio-52, 620 N.E.2d 72, citing State v. Wolons, 44 Ohio 

St.3d 64, 541 N.E.2d 443 (1989), paragraph two of the syllabus. Therefore, the trial 
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court’s decision will not be disturbed absent an abuse of discretion. Abuse of 

discretion connotes more than an error of law or of judgment; it implies that the 

court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

{¶15} Under Ohio law, aggravated assault is either a felony of the third or 

fourth degree (depending on whether the victim was a peace officer) while felonious 

assault is a felony of either the first or second degree. State v. Whitt, 31 Ohio App.3d 

92, 94, 508 N.E.2d 1041 (1st Dist.1987). Thus, aggravated assault is a lesser 

offense. Id. 

{¶16} The essential elements of the two offenses are (1) knowingly (2A) 

causing serious physical harm to another or, (2B) causing or attempting to cause 

physical harm to another by a deadly weapon or dangerous ordnance. Id. at 94-95. 

Aside from the penalty, the mitigating circumstance of provocation is the only factor 

that distinguishes felonious assault from aggravated assault. Id. at 95, citing State v. 

Carter, 23 Ohio App.3d 27, 30, 491 N.E.2d 709 (1st Dist.1985). 

{¶17} The statutory scheme for felonious assault and aggravated assault is 

congruent to the one for murder and voluntary manslaughter. When an accused is 

charged with murder, if he acted under the mitigating circumstance of provocation, 

then he is entitled to a jury instruction on voluntary manslaughter. Id., citing State v. 

Muscatello, 57 Ohio App.2d 231, 387 N.E.2d 627 (8th Dist.1977), aff'd and 

remanded, 55 Ohio St.2d 201, 378 N.E.2d 738 (1978). The First District in Whitt held 

that the legislature intended the same reduction with respect to the two types of 

assault. Id. 

{¶18} Drawing from voluntary manslaughter jurisprudence, the following is the 

circumstance under which an “aggravated assault” instruction should be given: 

if a defendant on trial for [felonious assault] (or the prosecution in such 

trial) produces evidence of * * * mitigating circumstances * * *, that 

evidence will be sufficient to entitle a defendant to an instruction on 

[aggravated assault] as [lesser included offense] if under any 
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reasonable view of the evidence, and when all of the evidence is 

construed in a light most favorable to the defendant, a reasonable jury 

could find that the defendant had established by a preponderance of 

the evidence the existence of * * * mitigating circumstances. 

State v. Rhodes, 63 Ohio St.3d 613, 617-618, 590 N.E.2d 261 (1992), citing State v. 

Wilkins, 64 Ohio St.2d 382, 388, 415 N.E.2d 303 (1980). 

{¶19} Elaborating on what constitutes reasonably sufficient provocation in the 

context of voluntary manslaughter, the Ohio Supreme Court laid out a two-part test. 

State v. Mack, 82 Ohio St.3d 198, 1998-Ohio-375, 694 N.E.2d 1328 (1998), citing 

State v. Shane, 63 Ohio St.3d 630, 634, 590 N.E.2d 272 (1992). 

{¶20} First, an objective standard must be applied to determine whether the 

alleged provocation is reasonably sufficient to bring on a sudden passion or fit of 

rage. That is, the provocation must be “sufficient to arouse the passions of an 

ordinary person beyond the power of his or her control.” If this objective standard is 

met, the inquiry shifts to a subjective standard, to determine whether the defendant in 

the particular case “actually was under the influence of sudden passion or in a 

sudden fit of rage.” Id. 

{¶21} Applying the objective-subjective test to the circumstances in this case, 

the analysis starts by asking whether or not the circumstances appellant described 

were sufficient to arouse the passions of an ordinary person beyond the power of his 

or her control. 

{¶22} In State v. Koballa, 8th Dist. No. 82013, 2003-Ohio-3535, the defendant 

requested an aggravated assault instruction on the basis of his argument that the 

victim provoked his sudden fit of rage by grabbing his testicles and arm. Id. at ¶ 8. 

The Eighth District found that the trial court did not err in declining to give the 

instruction, reasoning: 

Considering the circumstances, we do not find that appellant was 

seriously provoked to justify slashing [the victim’s] neck. In particular, 
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[the victim] was in the compromising position of being on his knees; 

appellant was not alone but in the same room and company of his 

friend; there was no evidence to suggest [the victim] had a weapon on 

or about his person; and no evidence suggested appellant could not 

have exited the condominium without force. * * * Although appellant 

testified that his testicles and arm were grabbed, these two facts alone 

do not justify the use of such force. We are also not persuaded by 

appellant's argument that [the victim’s] apparently larger stature justified 

his actions. 

Id. at ¶¶ 9-10. 

{¶23} The Ohio Supreme Court has further held that “words alone will not 

constitute reasonably sufficient provocation to incite the use of deadly force in most 

situations.” Mack, 82 Ohio St.3d 198, citing Shane, at paragraph two of the syllabus. 

{¶24} The law entitles the trier of fact to reduce the degree of assault when 

there has been provocation. Accordingly, a trial court should give an aggravatedassault instruction if a reasonable jury could find that the defendant had established 

by a preponderance of the evidence that (1) the victim gave provocation that was 

sufficient to arouse the passions of an ordinary person beyond the power of his or 

her control and (2) the defendant actually was under that influence, sudden passion, 

or sudden fit of rage, when committing the assault. 

{¶25} Here, appellant claims that L.T. provoked him into violence. Appellant 

testified that immediately prior to the attack, L.T. informed him she had lied, she had 

taken his money, she had cheated on him with Jacob, she had given his money to 

Jacob, and she grabbed appellant by the testicles. Appellant further stated that he 

was “drunk” at the time and that he “just lost it” (Tr. 302, 304) 

{¶26} Viewing the evidence in a light most favorable to appellant, we cannot 

conclude that the trial court abused its discretion in finding that a reasonable jury 

could not find the element of reasonable provocation. L.T. may have insulted 

appellant and grabbed him but these actions do not rise to the level of being 
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provoked enough to cause an ordinary person to beat someone to the point of a 

fractured skull and traumatic brain injury. Moreover, appellant’s admitted intoxication 

lessened his ability to act as an ordinary person would under these circumstances. 

{¶27} Accordingly, appellant’s first assignment of error is without merit and is 

overruled. 

{¶28} Appellant’s second assignment of error states: 

THE TRIAL COURT ERRED IN SENTENCING MCKINNON, WHEN IT 

DETERMINED THAT FELONIOUS ASSAULT AND BURGLARY 

WERE NOT ALLIED OFFENSES. 

{¶29} Appellant argues the trial court should have merged his convictions for 

sentencing purposes because they are allied offenses of similar import. Appellant 

argues that the burglary conviction is predicated on the assault having occurred at 

L.T.’s residence. Branching off from there, appellant argues that the burglary and 

assault consisted of the same conduct and a single animus. The crimes did not result 

in different harms; therefore, the convictions should have merged, appellant argues. 

{¶30} In reviewing whether offenses should merge under R.C. 2941.25, 

courts of appeals are to apply a de novo standard of review. State v. Williams, 134 

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1. 

{¶31} The Ohio Supreme Court addressed the issue of allied offenses of 

similar import requiring merger in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 

34 N.E.3d 892. The Court held that if a defendant's conduct supports multiple 

offenses, the defendant can be convicted of all of the offenses if any one of the 

following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the 

conduct shows the offenses were committed separately, or (3) the conduct shows the 

offenses were committed with separate animus. Id. at paragraph three of the 

syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within 

the meaning of R.C. 2941.25(B) “when the defendant's conduct constitutes offenses 

involving separate victims or if the harm that results from each offense is separate 
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and identifiable.” Id. at paragraph two of the syllabus. 

{¶32} The Ruff Court found, “[w]hen a defendant's conduct victimizes more 

than one person, the harm for each person is separate and distinct, and therefore, 

the defendant can be convicted of multiple counts.” Id. at ¶ 26. Likewise it found, 

when a defendant's conduct constitutes two or more offenses against a single victim 

and the harm that results from each offense is separate and identifiable from the 

harm of the other offense, the defendant can be convicted of multiple counts. Id. 

Therefore, the Ruff Court held that two or more offenses of dissimilar import exist 

within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes 

offenses involving separate victims or if the harm that results from each offense is 

separate and identifiable. Id. 

{¶33} In this case, the offenses of aggravated burglary and felonious assault 

are separate offenses and do not merge. 

{¶34} The aggravated burglary statute appellant was convicted of provides 

that no person by force, stealth, or deception, shall trespass in an occupied structure, 

when another person is present in the structure, with the purpose to commit any 

criminal offense in the structure, if the offender inflicts, or attempts, or threatens to 

inflict physical harm on another. R.C. 2911.11(A)(1). “Physical harm” means “any 

injury, illness, or other physiological impairment, regardless of its gravity or duration.” 

R.C. 2901.01(A)(3). 

{¶35} In contrast, the felonious assault statute provides that no person shall 

knowingly cause serious physical harm to another. R.C. 2903.11(A)(1). “Serious 

physical harm” includes physical harm that carries a substantial risk of death; that 

involves some permanent incapacity or some temporary, substantial incapacity; that 

involves some permanent disfigurement or some temporary, serious disfigurement; 

or that involves acute pain of such duration as to result in substantial suffering or that 

involves any degree of prolonged or intractable pain. R.C. 2901.01(A)(5). 

{¶36} The evidence in this case demonstrated that appellant completed the 

aggravated burglary when he entered L.T.’s apartment and caused her physical harm 
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by striking her. But appellant continued to beat L.T. throughout various rooms in the 

apartment and the harm escalated to serious physical harm. The harm was so 

serious, L.T.’s skull was fractured and she suffered a traumatic brain injury. Thus, 

the offenses here were not committed by the same conduct. Therefore, they are not 

allied offenses of similar import. 

{¶37} Accordingly, appellant’s second assignment of error is without merit and 

is overruled. 

{¶38} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

Robb, P.J., concurs.