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State v. Spencer

Court of Appeals of Ohio, Twelfth District, Clermont

February 20, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JEROME SPENCER, Defendant-Appellant.

         CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016 CR 000727.

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, for plaintiff-appellee.

          W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, for defendant-appellant

          OPINION

          RINGLAND, J.

         {¶ 1} Defendant-appellant, Jerome Spencer, appeals his conviction for felonious assault in the Clermont County Court of Common Pleas. For the reasons set forth below, we affirm his conviction.

         {¶ 2} On December 15, 2016, the Clermont County Grand Jury returned a four-count indictment charging Spencer with one count each of felony aggravated robbery, felonious and misdemeanor assault, and felony robbery. The matter proceeded to a three-day jury trial in March 2017. The trial revealed the following facts.

         {¶ 3} On December 3, 2016, Spencer participated as a driver for what he described as a "bootleg" ride service facilitated through social media. Spencer picked up Jadon Crawford and proceeded to drive him from a location in Hamilton County to Crawford's grandmother's apartment in Clermont County. Spencer and Crawford had never met before. Crawford informed Spencer that he needed to retrieve money from his grandmother's apartment and that he knew someone who sells marijuana. Upon arriving at the destination, Crawford entered his grandmother's apartment, while Spencer waited outside in the vehicle. Crawford and his grandmother exited the apartment and Spencer drove the two to the grocery store and back. Crawford's grandmother exited the vehicle and returned to her apartment, while Crawford stayed with Spencer.

         {¶ 4} Instantaneous with Crawford's grandmother's exit of the vehicle, Tiffany Peacock and Megan Howard entered the back seat of the vehicle. Next, Spencer and the two female passengers proceeded with a marijuana transaction. Upon exchanging money for marijuana, Spencer expressed displeasure with the amount of marijuana he purchased with respect to the money he provided to the two female passengers. Spencer asked the two female passengers to return his money and they refused. Attempting to regain his money, Spencer reached into the backseat to grab Peacock's purse. Spencer told police that "once they wasn't [sic] trying to get [sic] my money back, shit, I just reached in the back and punched them and all that."

         {¶ 5} Peacock did not surrender possession of the purse and Spencer began punching Peacock. Spencer stated he was being as aggressive as possible to regain possession of his money. Howard attempted to defuse the physical altercation by grabbing Peacock. Howard successfully pulled Peacock out of the vehicle. At this point, Peacock still possessed the purse. Spencer told police that he "climbed through the seat, * * * trying to punch them and * * * get the bag * * *." This resulted in Spencer "going all the way through the seat * * * [and] out of the car, hitting them, and trying to fight * * *." Spencer grabbed the purse and returned to his vehicle. Some of the purse's contents spilled onto the ground outside the vehicle.

         {¶ 6} Before Spencer left the parking lot of the apartment, Peacock reentered the vehicle and ripped the keys out of the vehicle's ignition. In response, Spencer told police that he "was just like, fuck it[, and] tried to run back around [the vehicle] and fight [Peacock and Howard] some more * * *." Spencer described the physical altercation as "back and forth", acknowledged punching Peacock and Howard, "scratching their eyes", and kicking one of the female passengers in the head, while the other tried to shield the blows with her body. Spencer stated he "just blacked out, and [was] just, like, what the fuck?"

         {¶ 7} Howard corroborated the circumstances surrounding the physical altercation and stated Spencer knocked Peacock to the ground and began kicking Peacock in the face. Howard attempted to shield the blows and pleaded with Spencer to cease, but Spencer kept attacking and kicking the girls. Howard suffered a brain bleed and a head laceration, which required nine staples. Peacock also suffered facial injuries. A neighbor witnessed the portion of the physical altercation that occurred outside of the vehicle. The neighbor described the altercation to the police dispatcher as a male beating up two girls, punching and kicking them in the face.

         {¶ 8} Spencer requested an instruction regarding aggravated assault, an inferior charge to felonious assault. After hearing argument from the state and Spencer, the trial court denied Spencer's request and did not provide such instruction in its final jury instructions. The jury returned a verdict of guilty for the felonious and misdemeanor assault charges and not guilty on the robbery charges. On March 8, 2017, the trial court imposed a six-year prison term for the felonious assault conviction and a six-month prison term for the misdemeanor assault conviction. The trial court imposed the prison terms to run concurrently.

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN INSTRUCTION ON THE ...


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