COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60819 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : BOBBY WILLIAMS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT AUGUST 13, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. 249551. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John Gallagher, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Russell Z. Baron, Esq. Ticktin, Baron, Koepper & Co., L.P.A 1700 Keith Building Cleveland, OH 44115 -2- ANN McMANAMON, J.: This appeal raises the issue of the propriety of a jury charge on aggravated assault (R.C. 2903.12) an inferior degree of the charged offense of felonious assault (R.C. 2903.11). The defendant, Bobby Williams, also challenges the manifest weight of the evidence. A review of the record demonstrates the court's charge was erroneous and for that reason his conviction cannot stand. Bobby Williams was indicted on two counts of felonious assault with violence and firearm specifications arising out of a shooting near Cleveland State University after a high school basketball game on February 9, 1990. Upon completion of the trial, the court, at the behest of the prosecutor, instructed the jury on aggravated assault as well as felonious assault. The jury found Williams guilty on both counts of aggravated assault with accompanying violence and firearm specifications. In his first assignment of error, Williams urges his convictions are against the manifest weight of the evidence. He argues that the prosecution did not prove aggravated assault, or, in the alternative, that he established self-defense. In reviewing a challenge to the manifest weight of the evidence, this court must view the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether "the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." -3- State v. Martin (1983), 20 Ohio App.3d 172, 175. A new trial should be granted only where the evidence weighs heavily against conviction. Id. Further, we are mindful that the evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Williams was convicted of two counts of aggravated assault (R.C. 2903.12), which provides in part: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another; (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. It is undisputed that Williams fired two shots into a crowd on Euclid Avenue striking both Devon Jones and Bruce Edwards. Jones suffered a gunshot wound to his leg, and Edwards, a wound in the chest which punctured his left lung. That bullet remains lodged behind Edwards' heart. Clearly, there was sufficient evidence presented to the jury from which it could reasonably conclude that Williams caused serious physical harm to both victims. Williams told the jury that he took a small revolver from the trunk of his car and brandished it in front of the crowd. After the shootings, two witnesses, Shaun Scott and Cleveland State -4- University Officer Stephen Wilson testified they saw Williams put the gun down on the ground and kick it underneath his car. Finally, Cleveland Police Department Sergeant James Hoban stated that he was one of the first policemen on the scene and that he recovered a small revolver with two spent casings under Williams' car. Based on this evidence, the jury could also reasonably conclude that Williams caused physical harm to Jones and Edwards by means of a deadly weapon. There was not, however, sufficient evidence presented by either the prosecution or the defendant on the issue of provocation, a mitigating circumstance under R.C. 2903.12. It provides: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force ***. A mitigating circumstance is not an element of the offense, since the burden is not on the prosecution to prove the mitigating circumstance beyond a reasonable doubt. State v. Whitt (1987), 31 Ohio App.3d 92, 94 citing State v. Muscatello (1978), 55 Ohio St.2d 201; State v. Carter (1985), 23 Ohio App.3d 27. The trier of fact must make a determination of the existence of the mitigating circumstance in order to mitigate a defendant's criminal culpability and resulting sentence. State v. Harper (March 21, 1991), Cuyahoga App. No. 58269, unreported at 7, citing State v. Carter, supra. -5- In delineating the mitigating circumstance of provocation under R.C. 2903.12, the Supreme Court in State v. Deem (1988), 40 Ohio St.3d 205, held: Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time. (State v. Mabry [1982], 5 Ohio App. 3d 13, 5 OBR 14, 449 N.E. 2d 16, paragraph five of the syllabus, approved.) Id., at paragraph five of syllabus. Every witness present at the incident testified that several fights broke out shortly after the conclusion of the basketball game. Williams and six companions were purportedly first attacked from behind by a "crowd of people" as they left the lobby of the gym. This fighting spilled out into the university courtyard and eventually onto the south side of Euclid Avenue. Williams and two of his companions, Michael Clark and Jerome Sheppard, testified they were chased from the courtyard to Euclid. Williams averred that, as he was running from the gym to his parked car on Euclid, he had his keys in hand preparing to get his gun out of the trunk. Once on Euclid, the three men faced a crowd of ten individuals. Blows were exchanged. -6- According to Williams, the crowd threatened them saying, "Yeah, we're going to get you now. You're dead. We got you now." Defendant admitted getting the gun because "[he] was scared", "because [he] was afraid of getting beaten to death," and because he wanted "to scare them away." The defendant and Clark both testified that while defendant was brandishing the weapon, the crowd "charged" him and he was struck in the head by a "silver object." Officer Stephen Wilson, however, told the jury that the crowd was ten feet away from defendant in a "V" shape and did not appear to be charging him at the time of the shooting. Shaun Scott also testified the crowd was backing up when defendant had the gun. In light of this evidence, and the emotional state of the defendant brought on by fear, we find there was no evidence of serious provocation so as to meet the standard in Deem, supra. The evidence concerning the conditions and circumstances surrounding the defendant include brawling, a movement of game goers from the gym to Euclid Avenue, the fact that defendant and his friends were outnumbered, verbal threats and the alleged striking of defendant by an object from someone in the crowd. We find these circumstances do not rise to the level of "serious provocation" as defined in Deem. At most, the evidence tends to show that Williams acted under fear in fleeing from the gym and arming himself with the weapon. In State v. Martinelli (March 17, 1983), Cuyahoga App. No. 45148, unreported, this court considered a similar issue. In -7- Martinelli, the defendant was charged with murder and, at the close of the evidence, the court instructed on self-defense but refused to charge on the lesser included offense of voluntary manslaughter. This court found that the trial judge properly declined to instruct the jury on the lesser included offense. The court observed: Moreover, even the appellant's own evidence failed to raise the issue of voluntary manslaughter. The defense did not dispute the purposeful killing, it merely asserted justification on the basis of self- defense. There was no evidence from which the jury could reasonably conclude the defendant acted under extreme emotional stress. Some emotion is not enough. The defendant was provided several opportunities to testify about his emotional condition. He testified he had fear. Nothing else in the evidence provided a reasonable basis from which the jury could determine that the defendant was acting under extreme emotional stress and therefore a charge on voluntary manslaughter would invite an unreasonable compromise between that of a purposeful killing and one justified by self-defense. Id., at 3-4. Upon review of the record, we conclude that the evidence does not manifestly support Williams' conviction for two counts of aggravated assault. The only valid question presented to the jury was whether, in firing into the crowd, Williams was acting in self-defense so as to justify his actions. In order to establish self-defense, the defendant must prove: (1) the [defendant] was not at fault in creating the situation giving rise to the -8- affray *** [citations omitted]; (2) the [defendant] has 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 such force *** [citations omitted]; and (3) the [defendant] must not have violated any duty to retreat or avoid the danger, ***. State v. Robbins (1979), 58 Ohio St.2d 74, 79-80, quoting State v. Melchior (1978), 56 Ohio St. 2d 15. Self-defense represents more than a "denial or contradiction of evidence which the prosecution has offered as proof of an essential element of the crime charged ***." State v. Poole (1973), 33 Ohio St.2d 18, 19. Rather, this defense admits the facts claimed by the prosecution and then relies on independent facts or circumstances which the defendant claims exempt him from liability. Id. The defendant must prove self-defense by a preponderance of the evidence. State v. Martin (1986), 21 Ohio St.3d 91. It is apparent from the verdict that the jury accepted the testimony of the state's witnesses that, once armed with the gun, Williams was patently not in imminent danger of death or great bodily harm. Nor did the jury choose to believe that Williams had no viable means to retreat from the crowd. The jury elected instead to adopt the state's evidence that, once Williams got his revolver from the car trunk, the crowd backed off. We note that this version of the events sharply contrasted with that of defendant and his witnesses, who averred the crowd "rushed" Williams once he pulled the gun. -9- Furthermore, none of the state's witnesses testified that anyone, other than Williams, had any kind of weapon on their person. Defense witness Michael Clark averred that one member of the crowd had brass knuckles. Williams also stated that he "saw silver coming at [his] head ***." Given this conflict, the jury was free to believe or disbelieve any of the witnesses on this issue. Finally, Williams argues that the blood found on his forehead conclusively proved that he acted in self-defense after being struck by the silver object. Officer Thomas Bauhaf testified that, upon arriving on the scene, he observed "a small scratch" on defendant's forehead with "[a] little bit of blood." No weapons, other than the revolver, were found at the location of the shootings. The wound to Williams' forehead, whether significant or not, could have resulted from any of the number of separate altercations in which he previously participated. The cut on his forehead, by itself, is not probative of self-defense. We conclude that the jury reasonably rejected Williams' self- defense defense. In light of the evidence, we are unable to say the jury "clearly lost its way" in rejecting this defense. We note that Ohio has observed a policy of preventing unreasonable jury compromises. State v. Martinelli, at 4, citing State v. Wilkens (1980), 64 Ohio St.3d 382. In Wilkens, the court barred instructions on lesser offenses when the defense of self-defense and the lesser charge, cannot be reconciled under -10- any reasonable view of the evidence. Our review of the record indicates defendant's convictions resulted from an unreasonable jury compromise. As in Wilkens, Williams's self-defense defense could not be reconciled with the charge of aggravated assault. Accordingly, the first assignment of error is sustained. In his second assignment of error, Williams posits the court erred in instructing the jury on aggravated assault. At the close of all the evidence the court chose to instruct the jury on aggravated assault as well as felonious assault. We recognize that aggravated assault is not a lesser included offense of felonious assault. State v. Deem (1988), 40 Ohio St.3d 205, 210. As defined, however, it is an inferior degree of felonious assault. Id. An offense is an inferior degree of an indicted offense "where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements." Id., at paragraph two of syllabus. A jury may be instructed on a lesser or inferior degree of an offense. See R.C. 2945.74 and Crim. R. 31(C). In Deem, the Supreme Court held: Aggravated assault, R.C. 2903.12, contains elements which are identical to the elements defining felonious assault, R.C. 2903.11, except for the additional mitigating element of serious provocation. Thus, in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury. (R.C. 2945.74 and Crim. R. 31[C], construed and applied.) -11- Id., paragraph four of syllabus. Based on our disposition of the first assignment of error that no evidence was presented to establish any provocation by the victims, serious or otherwise, we conclude, as a matter of law, that an instruction on aggravated assault was erroneous. Accordingly, the second assignment of error is sustained. The judgment of the trial court is reversed and this cause is remanded to the trial court for further proceedings. Judgment reversed. -12- This cause is reversed for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, P.J. and HARPER, J., CONCUR. ANN McMANAMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .