COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59588 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ROBERT ROBINSON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 21, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-215,935 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GARY DeROCCO, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: A. DEANE BUCHANAN Attorney at Law 1414 Diamond Building 1100 Superior Avenue Cleveland, Ohio 44114-2590 - 1 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Robert Robinson, was indicted on one count of felonious assault in violation of R.C. 2903.11 with an aggravated felony specification and a violence specification. After a jury trial, appellant was found guilty of felonious assault. Appellant timely appeals his conviction raising five assignments of error for our review. For the reasons that follow, we affirm. On October 19, 1986, Kent Williams, Jobie Smith and appel- lant left their place of employment, Executive Caterers, at approximately 5:00 p.m. The three men left in Kent Williams' car and, after eating dinner, they bought some beer and wine. They then proceeded to drive around the Cleveland area while consuming the beverages and smoking marijuana. At some point, Williams allowed appellant to drive his car. At approximately 10:00 p.m., appellant drove Williams' car over a curb, flattening both tires on the passenger's side. Mr. Williams' and appellant's testimony substantially departed at this point. Williams testified that he asked appel- lant to pay for the tires. Appellant then swung at Williams, but - 2 - missed. Williams swung back and hit appellant over the left eye. Williams testified that appellant ran away. Williams proceeded to change one of the tires when appellant returned with his hands folded. Appellant slashed Williams in the forehead and grabbed him by the coat and stabbed him three to four times in the back. Williams ran from the scene and eventu- ally entered a church, where an ambulance was summoned. Subse- quently, Williams was taken to Huron Road Hospital and treated for his injuries. Appellant testified that when he drove the car over the curb, Williams became very upset and demanded appellant pay for the tires. The men, while attempting to change the tires, realized the rims were bent as well. When appellant explained he had no money to pay for the damages, Williams hit him in the eye, without any provocation, causing blood to run down appellant's face. Appellant then stated he would pay for the damages, but, appellant testified, Williams kept coming after him with a shiny object in his hands. During the ensuing struggle, Williams received the slash over his eye while still holding the object. At some point, the object fell into appellant's hands and appel- lant proceeded to hit Williams in the back with it while Williams choked the appellant. Appellant testified Williams just took off running. Appellant testified he never left the scene during the entire incident. Further, the testimony of Cassandra Harris, an - 3 - acquaintance of appellant, corroborates much of appellant's testimony. Specifically, she stated she observed the incident from across the road while on her front porch. Apparently, the three men were on their way to visit Ms. Harris when the incident erupted. Ms. Harris stated she observed Williams hit appellant, then reach into his back pocket and pull something out. A struggle ensued, and Williams eventually ran away. It appears, however, that Ms. Harris did not know Mr. Williams, but is acquainted with appellant. After the incident, appellant testified he and Jobie Smith rode a bus to appellant's home. Appellant did not go to work the next day and was subsequently fired because, he stated, a lot of Kent Williams' friends were upset with him. Appellant also ex- pressed fear about going back to work. Apparently, appellant moved to Ashtabula sometime after the incident and was not arrested for the present case until approximately three years later, when he was arrested for an unrelated incident. Based upon the above evidence, the jury found appellant guilty of felonious assault as indicted. Appellant timely appeals, rais-ing five assignments of error for our review. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON SELF DEFENSE THAT THE DEFENDANT HAS A RIGHT TO USE REASONABLE FORCE TO DEFEND HIMSELF. Appellant argues the trial court prejudicially erred by fail-ing to instruct the jury on self-defense. However, appel- - 4 - lant has waived any alleged error by failing to request an in- struction on self-defense and failing to object to such omission to the trial court's charge to the jury. Crim. R. 30(A). Ac- cordingly, our review of this issue is limited to whether such alleged error constitutes plain error pursuant to Crim. R. 52(B). We find such omission from the trial court's charge to the jury does not con-stitute plain error. A criminal defendant has a right to expect that the trial court will give complete jury instructions on all issues raised by the evidence. State v. Williford (1990), 49 Ohio St. 3d 247. In a prosecution for felonious assault (R.C. 2903.11), this court has noted where there is sufficient evidence on the issue of self-defense and aggravated assault (R.C. 2903.12), the trial court must charge the jury on both issues. State v. Ervin (July 18, 1991), Cuyahoga App. No. 58835, unreported, at 6. To establish self-defense, the defendant must show: "*** (1) *** [he] was not at fault in creat- ing the situation giving rise to the affray; (2) *** [he] has (sic.) a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of *** force; and (3) *** [he] must not have vio- lated any duty to retreat or avoid the dan- ger. ***" State v. Williford, supra, at 249, quoting State v. Robbins (1979), 58 Ohio St. 2d 74, paragraph two of the syllabus. In the present case, appellant attempts to justify the use of force by arguing that he was not the aggressor. Rather, he testi-fied, Kent Williams attacked him and, during the affray, - 5 - Williams sustained the injury to his forehead while the shiny object was still in his own hands. Further, appellant testified, the object somehow fell into appellant's hands. He then hit Williams in the back with it while Williams choked him. Appel- lant denies running from the scene prior to the incident in question. To the contrary, Williams testified that appellant left the curbside only to return later to attack him. However, it appears the jury believed Williams' testimony over that of appellant and his acquaintance Harris by returning a verdict of guilty of felonious assault. Therefore, this court cannot say that, but for the error, the outcome of the trial clearly would have been otherwise. State v. Cooperrider (1983), 4 Ohio St. 3d 226. Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error is as follows: THE DEFENDANT-APPELLANT WAS DENIED THE CON- STITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND WAS THEREFORE DENIED A FAIR TRIAL. Appellant argues he was denied effective assistance of counsel because his trial counsel failed to request a jury in- struction on self-defense and failed to object to the trial court's charge to the jury as a result of the omission of the instruction on self-defense. The test in Ohio for determining whether an accused was pro- vided effective assistance of counsel is "whether the accused, - 6 - under all the circumstances, including the fact that he had re- tained counsel, had a fair trial and substantial justice was done." Cooperrider, supra, at 228, quoting State v. Hester (1976), 45 Ohio St. 2d 71, paragraph four of the syllabus. Application of this test involves a two-step process. First, it must be determined whether there has been a substantial violation of an essential duty owed by the defense counsel to the defen- dant. Id., at 228. If such violation is found, there must be a determination as to whether the defense was prejudiced by such violation. Id. In the present case, appellant's appellate counsel argues his trial performance was ineffective. However, it cannot be concluded that appellant's defense was prejudiced by such viola- tion. As previously noted, it cannot be concluded that the outcome of the trial would have clearly been otherwise had appel- lant's counsel proposed a jury instruction on self-defense or objected to the omission of such charge. To the contrary, the jury was charged on felonious assault and aggravated assault. The jury rejected appellant's contention that he acted while under the influence of sudden passion or in a sudden fit of rage. It seems unlikely, therefore, that the jury would have found that appellant acted in self-defense and did not violate any duty to retreat or avoid the danger, having previously rejected his contention that he acted while under sudden passion or in a sudden fit of rage. - 7 - Accordingly, appellant's second assignment of error is over- ruled. Appellant's third assignment of error follows: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT AGGRAVATED ASSAULT IS A LESSER INCLUDED OFFENSE OF FELONIOUS ASSAULT AND THAT IT SHOULD CONSIDER WHETHER THE DEFENDANT COM- MITTED THE OFFENSE OF AGGRAVATED ASSAULT ONLY AFTER THE JURY DETERMINES THAT THE DEFENDANT WAS NOT GUILTY OF FELONIOUS ASSAULT. THE COURT'S INSTRUCTION GIVEN AFTER THE ERROR WAS POINTED OUT TO THE COURT WAS UNCLEAR AND CON- FUSING TO THE JURY AS WAS THE JURY VERDICT FORM WHICH HAVING BEEN IMPROPERLY EXPLAINED TO THE JURY WAS NEVER RE-EXPLAINED. Appellant contests that portion of the trial court's charge to the jury which referred to aggravated assault as a lesser inclu-ded offense of felonious assault and which instructed the jury that if it found that the state failed to prove all the essential ele-ments of felonious assault, then it should continue its delibera-tions to consider whether the state proved all the 1 essential ele-ments of aggravated assault. Further, appellant points out, the trial court again instructed the jury not to consider aggravated assault if it were to find appellant guilty of felonious assault when the trial court explained the verdict forms. However, appel-lant objected to this portion of the trial court's charge, and the trial court promptly informed the jury 1 However, prior to charging the jury on which offense to consider first, the trial court gave a correct charge on both felonious assault and aggravated assault, as found, in pertinent part, in 4 O.J.I. 503.12 11. - 8 - that it may have given an incorrect instruction. The court proceeded to correctly inform the jury that if it found the state failed to prove all the essen-tial elements of felonious assault, then the verdict must be not guilty and "this will conclude your deliberations." However, if the state proved every essential element of felonious assault, the court correctly informed the jury, it should continue its deliberations and decide whether the defendant acted "while under the influence of sudden passion ***." The court's corrective instructions clearly informed the jury to continue its deliberation to determine the issue of aggravated assault if the state proved beyond a reasonable doubt all the essential elements of felonious assault. The court concluded by noting, "If I didn't instruct you like that previ- ously, *** I so instruct you now." Appellant's counsel, appar- ently satisfied with the court's curative instruction, announced he had "nothing further" to add, and the jury retired to deliber- ate. Finally, the trial court provided the jury with two verdict forms. The first enabled the jury to return a guilty or not guilty verdict on felonious assault. The second enabled the jury to return a not guilty verdict on felonious assault and a guilty or not guilty verdict on aggravated assault, which the court incorrectly termed "a lesser included offense" of felonious assault. Any error made in a trial court's charge to the jury may be neutralized by a correct statement of the law as long as the - 9 - charge as a whole is fair and proper. State v. Slagle (June 14, 1990), Cuyahoga App. No. 55759, unreported. The curing instruc- tions may either precede or follow the inadequate or incomplete instructions. State v. Porter (1968), 14 Ohio St. 2d 10. In the present case, the trial court correctly charged the jury on felonious assault and aggravated assault. However, the trial court incorrectly charged the jury on its method of delib- eration when considering felonious assault and aggravated as- sault. Appellant's counsel timely objected, and the trial court reconvened the jurors and correctly instructed them to consider aggravated assault after finding that the state proved all ele- ments of felo-nious assault. Appellant's counsel had nothing further to add, and the jury returned to deliberate. Further, the jurors had two verdict forms before them: one allowing a finding of guilty or not guilty of felonious assault; the other allowing a finding of not guilty of felonious assault, and guilty or not guilty of aggravated assault. Thus, the jury was pres- ented with all available options with respect to appellant's guilt or innocence of felonious assault and/or aggravated as- sault. All possible outcomes were presented to the jury by way of verdict forms and jury instructions. Accordingly, appellant's third assignment of error is over- ruled. - 10 - Appellant's fourth assignment of error states: SECTION 2903.12 OHIO REVISED CODE IS UNCON- STITUTIONAL AS APPLIED IN THIS CASE IN THAT IT REQUIRES THE DEFENDANT TO PROVE BY A PRE- PONDERANCE OF THE EVIDENCE THAT HE WAS PRO- VOKED BY THE VICTIM INTO USING "DEADLY FORCE" WHEN THE DEFENDANT IN FACT, USED FORCE LESS THAN "DEADLY", BUT WHICH WAS SUFFICIENT TO WARD OFF AN AGGRESSOR. THE STANDARD OF PROV- OCATION REQUIRED SHOULD BE "THAT WHICH IS SUFFICIENT TO INCITE THE DEFENDANT TO USE SUCH REASONABLE FORCE AS IS NECESSARY UNDER THE CIRCUMSTANCES." Appellant contends that R.C. 2903.12 requires the defendant to prove by a preponderance of the evidence that he was provoked into using deadly force when, in the present case, he used force which was less than deadly. This argument lacks merit. Nowhere in R.C. 2903.12 is the defendant unconstitutionally required to prove beyond a reasonable doubt or by a preponderance of the evidence that he was provoked by the victim into using deadly force. Further, the trial court's charge to the jury did not place the burden on the defendant to prove beyond a reason- able doubt or by a preponderance of the evidence that he was provoked into using deadly force. Rather, the trial court gave the standard jury instructions on felonious assault and aggravated assault found in 4 O.J.I. 503.12 11. The trial court instructed the jury: If you find that the State of Ohio proved beyond a reasonable doubt all the essential elements of felonious assault, you will con- tinue your deliberations and decide from all the evidence in your judgment whether the defendant acted while under the influence of sudden passion or in a sudden fit of rage, - 11 - either of which was brought on by serious provocation occasioned by the victim, Kent Williams; a provocation that was reasonably sufficient to incite the defendant into using deadly force. Nowhere in the trial court's charge to the jury does the court instruct the jury that the defendant has the burden to prove the mitigating circumstance of serious provocation. The problems found in State v. Muscatello (1978), 55 Ohio St. 2d 201, simply do not exist in the present case. In Muscate- llo, the Ohio Supreme Court found prejudicial error in the trial court's charge to the jury, which stated: Before you can find the defendant guilty of voluntary manslaughter, you must find beyond a reasonable doubt: "*** the act causing the death of the victim was performed while the defen- dant, *** was under extreme emotional distress brought on by serious provoca- tion reasonably sufficient to incite him to using deadly force. ***" Id., at 206. The import of the above instruction was as if the trial court had instructed the jurors that the defendant bore the bur- den of establishing the presence of the described emotional dis- tress by proof beyond a reasonable doubt. Id., at 204. In the 2 This instruction was followed by the standard instructions found in 4 O.J.I. 503.12, et seq., as they relate to aggravated assault. The court then proceeded to incorrectly instruct the jury as to its method of deliberation and on the verdict forms. See Opinion, supra, third assignment of error. However, as previously discussed, this incorrect instruction was cured by a subsequent correct instruction. - 12 - present case, the trial court's instruction did not place the burden of proof, to show serious provocation, on either the state or appellant. Appellant's argument that the standard of provocation re- quired should be "that which is sufficient to incite the defen- dant to use such reasonable force as is necessary under the cir- cumstances" is meritless and without precedent. Further, it would seem nonsensical to argue that any amount of force could be considered reasonable and necessary when one is seriously pro- voked. Serious provocation does not excuse the use of deadly force as does the defense of self-defense. Rather, it diminishes the actor's culpability. See, Deem, supra. Moreover, the trial court's charge to the jury defined "deadly force" exactly as it is defined by R.C. 2901.01(B). It is not the province of this court to change the definition of "serious provocation" or "dead- ly force" as they relate to aggravated assault. However, it is the jury's province to determine whether appellant used deadly force or force which was less than deadly. State v. DeHass (196- 7), 10 Ohio St. 2d 230. Therefore, appellant's fourth assignment of error is over- ruled. Finally, appellant's fifth assignment of error is as fol- - 13 - lows: THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. Appellant argues his conviction is against the manifest weight of the evidence since, he argues, the evidence is over- whelming that the victim was the aggressor. In reviewing the sufficiency of the evidence, an appellate court's function is to determine if there was evidence which, if believed, would convince the average person of the accused's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, 273. The inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reason- able trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., at 273. The credi- bility of the testimony and the weight of the evidence are pri- marily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The felonious assault statute (R.C. 2903.11) provides, in pertinent part, that no person shall knowingly cause serious phy- sical harm to another. In the present case, Kent Williams testi- fied that appellant returned to the scene with his hands folded and proceeded to stab him in the forehead and back. Further, the jury was shown Williams' scars. Accordingly, appellant's fifth assignment of error is over- ruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. NAHRA, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .