COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59966 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MARK DILLARD : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 21, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-239307 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BLAISE THOMAS, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: WESLEY A. DUMAS, SR. 1800 Superior Building 815 Superior Avenue, N.E. Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Defendant-appellant Mark Dillard appeals from his jury conviction and sentence for felonious assault in violation of R.C. 2903.11 with an accompanying gun specification pursuant to R.C. 2941.141 and drug abuse relating to possession of cocaine in violation of R.C. 2925.11. Defendant was indicted in Case No. CR-239307 July 6, 1989 on three counts, viz.: (1) felonious assault in violation of R.C. 2903.11(A)(2) with accompanying gun and two violence specifi- cations, (2) drug abuse in violation of R.C. 2925.11, and (3) possession of criminal tools in violation of R.C. 2923.24. The charges stem from an altercation near West 34th Street and Bridge Avenue where defendant shot Jeff Jones. The Cleveland police recovered various drug paraphernalia from defendant's residence following his arrest. The testimony at trial revealed defendant and Jones knew each other and had been involved in several prior incidents of violence and threats of violence directed toward each other. Jones was engaged to be married at the time to Monique Thomas with whom defendant had previously had a child. Testimony concerning the confrontation which triggered the shooting conflicted. Defendant and Jones blamed each other. However, the record demonstrates the following general sequence of events. Defendant and Jones exchanged words and Jones removed a hubcap from the trunk of his car and threw it at defendant - 3 - during the altercation. Defendant caught the hubcap like a frisbee and threw it back at Jones. Both parties subsequently ran into a nearby alley where defendant fired three shots at Jones. Jones was shot in the right cheek and chest and became partially paralyzed in his left arm and leg as a result of the incident. Despite the fact defendant caught the hubcap obtained by Jones from the car, defendant claims he thought Jones obtained a weapon from the car and that he shot Jones in self-defense. Defendant made motions during trial to reduce the charge in the first count from felonious assault to aggravated assault and to dismiss the charge for possession of criminal tools. The trial court denied defendant's motion to reduce the charge to aggravated assault and dismissed the third count concerning criminal tools pursuant to Crim. R. 29(A). The jury subsequently found defendant guilty on the two remaining counts, viz., felonious assault with the accompanying gun specification and drug abuse. Defendant was sentenced to three years actual incarceration on the gun specification pursuant to R.C. 2929.71 prior to and consecutive with the sentences of seven to fifteen years for felonious assault in violation of R.C. 2903.11 and six months for drug abuse in violation of R.C. 2925.11. Defendant challenges the sufficiency of the evidence to support his conviction for felonious assault in the following sole assignment of error: - 4 - DEFENDANT'S RULE 29 MOTION TO REDUCE CHARGES TO AGGRAVATED ASSAULT WAS IMPROPERLY DENIED. Defendant's sole assignment of error lacks merit. Defendant argues the trial court improperly denied his motion to reduce the charge from felonious assault to aggravated assault at the conclusion of the case since the prosecution failed to present sufficient evidence to sustain a conviction for felonious assault. Defendant contends he presented sufficient evidence of serious provocation as a mitigating circumstance to mandate reducing the charge to aggravated assault. However, this Court has rejected this precise argument in State v. Carter (March 17, 1988), Cuyahoga App. No. 53603, unreported, and defendant has presented no persuasive reason to depart from this holding in the case sub judice. Based upon our review of the record sub judice, the prosecution presented sufficient evidence to submit the charge of felonious assault to the jury and, if believed, to sustain defendant's conviction for felonious assault. Id. at 3. R.C. 2903.11 defines the offense of felonious assault in pertinent part as follows: (A) No person shall knowingly: *** (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. - 5 - There is no dispute based upon the testimony adduced at trial that defendant caused physical harm to Jones by means of a deadly weapon. Defendant acknowledged shooting the victim but contended that it was done in self-defense. The jury rejected defendant's self-defense argument based upon his failure to satisfy his burden of proving self-defense. See, State v. Kirkland (1984), 18 Ohio App. 3d 1. Contrary to Crim. R. 30(A) the record demonstrates defendant failed to request a jury instruction on the lesser offense of aggravated assault and did not raise any objection after the trial court rejected his motion to reduce the charge and did not provide an aggravated assault instruction to the jury. Defendant's trial strategy appears to have been to present the jury with an all or nothing choice concerning felonious assault based upon his claim of self-defense and not to have the jury consider the inferior degree of the indicted offense, viz., aggravated assault based upon the mitigating circumstance of serious provocation. See, State v. Deem (1988), 40 Ohio St. 3d 205. Defendant contends the trial court should have reduced the felonious assault charge to aggravated assault based upon the insufficiency of the evidence. However, this argument is specious since the evidence necessary to support either charge of felonious assault or aggravated assault is identical since the elements of each offense upon which the prosecution bears the - 6 - burden of proof are the same. State v. Carter, supra at 6 (citing State v. Muscatello (1978), 55 Ohio St. 2d 201); State v. Deem, supra. When the prosecution produces sufficient evidence to support the charge of aggravated assault the prosecution ipso facto produces sufficient evidence to support the charge of felonious assault. State v. Carter, supra at 6. The distinguishing feature which reduces the degree of the offense from felonious assault to aggravated assault is the mitigating factor of serious provocation. Serious provocation constituting the mitigating circumstance of aggravated assault under R.C. 2903. 12 is not an element of the offense of aggravated assault to be proved by the prosecution and has been defined as follows: Provocation, to be serious, must be reasonably sufficient to bring on extreme emotional stress and the provocation must be reasonably sufficient to incite or arouse defendant into using deadly force. State v. Carter, supra at 7. The Ohio Supreme Court applied this definition of serious provocation in State v. Deem, supra at 211, and concluded that evidence of a historically stormy relationship and intentional bumping of cars prior to assault is not reasonably sufficient as a matter of law to incite defendant into stabbing the victim. Contrary to defendant's argument reasonable minds would not be forced to conclude serious provocation existed under the circumstances of the case sub judice to justify reducing the charge from felonious assault to aggravated assault. - 7 - As noted by the Ohio Supreme Court, evidence of a "historically stormy relationship" and a minor incident, such as the throwing of a hubcap at defendant prior to the assault in the case sub judice, is not reasonably sufficient as a matter of law to incite or arouse defendant into repeatedly shooting the victim. See, State v. Deem, supra at 211. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court 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. SPELLACY, P.J., and HARPER, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .