State v. Mack

Francis E. Sweeney, Sr., J.

We must determine in this case whether the trial court acted properly in refusing to instruct the jury on the offense of aggravated assault. Because we find that the evidence of serious provocation was not reasonably sufficient as a matter of law to justify such an instruction, we reverse the judgment of the court of appeals, and reinstate appellee’s conviction.

Initially, the state argues that the court of appeals should not have reversed Mack’s conviction, since he failed to preserve the issue and therefore waived his right to appeal. Appellant’s argument rests on…