COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66976 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID M. BROWN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MARCH 9, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 295338 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: Stephanie Tubbs Jones Jean Gallagher Cuyahoga County Prosecutor 307 The Marion Building William Telrow 1276 West Third Street Assistant County Prosecutor Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, David Brown, appeals from his conviction for felonious assault following a jury trial in the Court of Common Pleas of Cuyahoga County. He asserts six assignments of error for 1 this court's review. I. On January 22, 1993, Diane Butler completed the cleaning of The Park View Federal Bank located at 2618 North Moreland, Cleveland, Ohio, with the assistance of Robert Florence, at about 10:00 p.m. Butler and Florence then proceeded to Butler's automobile which was parked in the bank's rear parking lot. Butler and Florence observed two men arguing and fighting behind the trunk of a white vehicle parked in the middle of the driveway of the apartment building next door. Butler described the area as well-lit; Florence reported that the area was "pretty well- lit." Both Butler and Florence noticed that the taller man, appellant, was getting the better of the fight. A female was present in the driveway as well according to Butler and Florence. This female, later identified as El Holloway, shouted to the shorter male, Michael Oko, that he should get in his car and leave the area. Holloway also yelled to appellant, "David, don't; stop it." Oko attempted to enter his car, but appellant was "tussling" with him through the driver's door. The door actually "got hung up 1 See appendix. -3- on" the side of the building as the vehicle moved very slowly. Oko eventually succeeded in closing the door, and drove to the back of the building. Butler and Florence continued to watch the unfolding events. They saw Oko's vehicle strike a guardrail in the apartment's rear parking lot as Oko tried to turn the car around. Butler noticed that Oko's only outlet from the parking lot was the driveway through which he initially entered since a parked vehicle blocked an exit in the rear. She also saw Oko exit his vehicle and heard him say something to appellant. He then returned to the car, drove off, hit the guardrail a second time, and then backed up. By this time, appellant and Holloway approached the rear parking lot. Butler and Florence observed appellant near the driver's window of Oko's vehicle; Butler heard appellant say something to Oko. Both Butler and Florence then witnessed appellant lift up one of his legs and kick it straight through the driver's window. Both witnesses offered descriptions of the kick. Butler characterized it as a "very powerful karate" kick; she also testified that appellant's movement was not awkward. Florence viewed the kick as clean and swift, adding further that it was a "martial arts type kick" and a "hard blow." It appeared to Florence that Oko fell over following the kick, and then sat upright. Butler next saw Oko drive his car into the guardrail for the third time, and then back it up. Appellant jumped away as he stood behind the vehicle. -4- Oko then progressed to the middle of the driveway where he stopped his vehicle, opened the door, and said something to appellant. Appellant, who still appeared to be angry according to Butler, ran down the driveway. He leaped into the air and landed on the back area of Oko's vehicle. Appellant rolled off the car as Oko drove it out of the driveway. Appellant then stood up and entered the apartment building with Holloway. Butler testified that "[i]t was like watching a karate movie." Butler testified further that on the following day, January 23, 1993, appellant appeared at her place of employment. Appellant requested that she be a witness for him after she told him about her witnessing the whole incident. Both Florence and Butler swore at trial that they knew neither appellant nor Oko prior to witnessing the events of January 22, 1993. Oko testified that he was employed with the city of Cleveland, in the Parking Violations Bureau, since June 1991. He met Holloway in October 1992 when she began working in his office. Oko thereafter drove Holloway to and from work. They also spoke frequently on the telephone and went out to dinner on occasion. Holloway moved into the apartment building on North Moreland approximately three months after meeting Oko. Oko testified that he assisted Holloway in obtaining the apartment financially as well as helping her move into it. Oko also met Holloway's landlord. Oko testified that he first encountered appellant at Holloway's apartment shortly after she took possession. Holloway -5- identified appellant as her cousin, and informed Oko that appellant was living with her. Oko's and appellant's initial relationship was a friendly one, but it deteriorated over time. Oko specifically recalled two disputes with appellant over the use of Oko's vehicle. Oko arrived at the apartment building on January 22, 1993 because, according to him, he and Holloway planned to go out that evening. After parking his vehicle in the middle of the driveway, Oko exited his car. Seeing a friend of Holloway's, Jackie Hardges, Oko asked her if she would get Holloway while he remained in the driveway. Instead of Holloway, appellant appeared in the driveway by himself. He stated to Oko, "Haven't I warned you" and "El's not coming out." Holloway arrived later, requesting that Oko leave. Oko testified that as he tried to enter his vehicle, appellant called him names, and then blocked Oko from closing the door. Oko was next struck in his left eye with something held by appellant. Appellant thereafter continually struck him in the face with his hands and fists. Oko started his car and drove forward towards the rear parking lot. Though he knew he could not exit through the rear, he thought he could turn his vehicle around in the rear parking lot and drive forward through the driveway. Oko explained that he could not drive in reverse because he was dizzy and his face was covered with blood. His condition also caused him to strike the building and -6- the guardrails while maneuvering in the driveway and rear parking lot. Oko ultimately negotiated the driveway and drove to a pay phone. A passerby picked him up and drove him to St. Luke's Hospital. Oko left his vehicle in the vicinity of Holloway's apartment in Shaker Square. Oko's medical records established that he sustained a through and through laceration to his left upper eyelid; a 2 cm. laceration below his left eyebrow; a 2 cm. laceration below his left nostril; and multiple contusions to his face. Oko's left eye was bloody and swollen shut. He was diagnosed as suffering from left orbital blow out fracture. Oko received medication and stitches, and was released early the next morning. Oko testified that the vision in his left eye was not as clear as his right eye. Moreover, his eye still hurts and becomes "heavy" when he reads for periods longer than thirty minutes. Holloway's mother, Mrs. Cornelia Holloway, picked him up from the hospital and drove him to his vehicle. Oko testified that Mrs. Holloway was a wonderful person who he had met on many occasions. Oko testified that he became suspicious about Holloway's and appellant's relationship in light of the difficulties he began to have with appellant. He, therefore, telephoned Mrs. Holloway sometime after January 23, 1993, and asked her whether she was related to appellant. Mrs. Holloway refused to answer the question, but Oko subsequently learned from others that appellant was Holloway's boyfriend. -7- Mrs. Holloway testified that she met Oko following Holloway's hiring by the city. Holloway brought Oko over to Mrs. Holloway's house. Mrs. Holloway did not believe that Oko and her daughter were anything but friends. Mrs. Holloway realized that appellant was living with Holloway in the apartment on North Moreland. Mrs. Holloway was familiar with appellant as he and Holloway had a relationship in high school. She remembered that appellant was not allowed on her property in those days because she did not approve of him. Once she realized that Holloway was back together with appellant, Mrs. Holloway did not want to tell Oko the truth about the relationship. Therefore, when Oko asked her questions regarding Holloway's and appellant's relationship, she refused to answer on two occasions, responding, "Oh, you have your answer" on a third occasion. Mrs. Holloway confirmed that she picked Oko up from St. Luke's Hospital and drove him to his vehicle. She observed that his clothes were bloody, and remarked that Oko appeared to be "seriously beaten." Mrs. Holloway noticed that Oko's car was dented in the front and on both sides; both headlights were broken as well. She noted further that there was a lot of blood in the car's interior, particularly on the driver's side. Detective Earl Brown of the city of Cleveland Police Department testified that he was assigned to investigate the events of January 22, 1993. After contacting Oko, Oko provided a -8- statement, and was then photographed by Det. Brown. The detective later photographed the area surrounding the apartment building. Appellant subsequently appeared at the police station on January 27, 1993 of his own free will. Det. Brown testified that appellant had no visible injuries upon his arrival. Appellant then agreed to prepare a written statement for the detective after he was advised of his constitutional rights. Appellant, in his written statement, set forth that Holloway wanted nothing to do with Oko when he unexpectedly arrived on January 22, 1993. Both he and Holloway requested that Oko leave. When Holloway and appellant were under the impression that Oko heeded their request, they left the apartment and went outside. Appellant claimed that Oko drove his vehicle directly at him in an attempt to run him over. Oko then jumped out of the car, threw some books at him, and punched him in the face. Oko next gestured and threatened, as if he had a gun hidden on his person, and approached appellant. Appellant thus punched Oko when it appeared that Oko was going to hit him. Appellant, in his statement, also set forth that Oko returned to his car which was now wedged against the side of the building. Oko pulled away, hitting a divider wall in the process. Appellant and Holloway walked toward the car at which time Oko drove into the divider wall a second time. Appellant believed that Oko was trying to run him over. -9- As Oko drove out the driveway past appellant, appellant kicked the car. Appellant admitted in his statement that he may have kicked Oko instead. Det. Brown testified as to what appellant told him during the interview, i.e., that he was "like a professional boxer and kick boxer and that he had really whipped Michael [Oko] up." The detective estimated that appellant stood six feet tall and weighed 190 to 200 pounds whereas Oko stood approximately 5'4" and weighed 160 pounds. Bronco Medamcic was the landlord for the apartment building located at 2622 North Moreland. He testified that he met Holloway and Oko on or about November 15, 1992. Holloway filled out a rental application and indicated to Medamcic that Oko would be a co-signor. Oko referred to Holloway as his girlfriend at the time. Medamcic testified further that he encountered Oko a few days later, and left the incomplete rental application and lease with him. Medamcic contacted Holloway shortly afterwards when he did not receive the lease. Holloway communicated that she and Oko "broke off" and Oko refused to provide her with the lease. Medamcic permitted Holloway to complete another application, and then rented her the apartment. Holloway testified on behalf of appellant that Oko befriended her when she first started to work in the Parking Violations Bureau. Oko drove her to and from work, allowed her to use his car, and took her out to eat on three occasions. Holloway -10- testified that Oko was a co-worker who started to lavish "unwanted affection" on her. Regarding her relationship with appellant, Holloway testified that she first dated him approximately five years ago, and re- established the relationship in August 1992. She wanted to rent the apartment on North Moreland so that appellant could live with her; appellant moved into the apartment on December 8 or 9, 1992. Holloway denied that she ever received money from Oko for the rental of the apartment. She also testified that Oko refused to co-sign because he knew of Holloway's relationship with appellant. Contrary to Oko's testimony, Holloway testified that she never identified appellant as her cousin. Though she admitted that she initially failed to tell Oko that appellant was her boyfriend, Holloway testified that she inevitably told him the truth. Holloway also expressly informed Oko that she did not want to have a relationship with him. Holloway testified that Oko eventually became "a pest." She altered her lunch hour and normal work pattern so that she could avoid any contact with Oko. About one week before January 22, 1993, Oko appeared at her apartment, brandishing a gun. The incident was reported to the police. Holloway testified as to the evening in question that Oko appeared at her apartment at about 9:00 p.m. Unwanted and uninvited, Holloway told Oko to leave, but he would not go without speaking with her first. Holloway and appellant eventually exited -11- the apartment after appellant exchanged words with Oko which included a separate request to leave. Oko was still in his vehicle when Holloway and appellant arrived outside. Holloway testified that after Oko opened the car door into appellant, Oko exited the car and punched appellant. Oko and appellant then began to fight with one another. Oko's vehicle which was left in gear according to Holloway, ran into the side of the building. Holloway testified that once Oko saw the damage to his car, he stopped fighting with appellant and returned to his vehicle. Holloway testified that she and appellant then walked in front of Oko's vehicle and headed for the rear parking lot. Oko drove to the rear parking lot in an attempt to run appellant over; he struck a guardrail instead. Holloway testified that Oko repeated his attempt to run appellant over two more times. The attempts were unsuccessful with Oko hitting the guardrail each time. Oko backed up and drove down the driveway after his last failed attempt. According to Holloway, Oko could have exited through the rear parking lot as there was nothing blocking the exit. Holloway denied that appellant ever kicked or jumped on Oko's car, explaining that she would have seen these acts if appellant committed them. Moreover, she testified that the driver's window of Oko's car was not rolled down during the incident. Holloway testified that she observed blood on Oko's face. However, she stated that Oko sustained the injuries after he drove into the guardrail in the rear parking lot. -12- Appellant's trial testimony mirrored for the most part the description of the events that he provided in his written statement. He denied at trial, however, that he ever told Det. Brown that he was skilled in boxing or martial arts. Appellant also testified with regard to his attempt to get away from Oko while in the rear parking lot. He related that he jumped a railing into an area adjoining the lot, but remained in danger because Oko could have driven into the area. Appellant returned to the parking lot with the hope that Oko would drive away. Appellant testified that he was afraid of Oko since Oko previously threatened him with a gun when Oko appeared at Holloway's apartment shortly before January 22, 1993. Appellant and Holloway then tried to walk down the driveway, but Oko drove the vehicle in yet another attempt to run over appellant. Appellant testified that he neither kicked Oko's car nor his face through the window, as the window was rolled up, when Oko drove down the driveway. He also denied that he either ran after the car or jumped on the back of it. Appellant acknowledged his conversation with Butler within two days of January 22, 1993. He also admitted that he asked her to be a witness for him. Jackie Hardges, a rebuttal witness for the state, testified that she was a friend of Holloway's for the period of December 1992 through January 1993. It was during this period that Hardges sporadically lived with Holloway at the North Moreland apartment. -13- Hardges testified that appellant and Holloway were boyfriend and girlfriend prior to appellant's move into the apartment. Hardges also met Oko through Holloway. She described Holloway's and Oko's relationship as "just friends." Hardges testified that she knew Holloway told Oko that appellant was her cousin. It was her belief that Holloway did so because Oko most likely would not want anything to do with Holloway if he knew the truth about their relationship. Hardges furthermore testified that appellant did not approve of Oko's visits to the apartment. Oko appeared to be getting on appellant's nerves, and his appearances were making appellant upset. The events of January 22, 1993 led to appellant's indictment for felonious assault, R.C. 2903.11, said charge carrying a violence specification. Trial by jury commenced on October 14, 1993, and the jury returned a verdict of guilty. The trial court thereafter sentenced appellant to a term of six to fifteen years. II. In his first assignment of error, appellant submits that the state introduced inadmissible hearsay into evidence through the rebuttal testimony of Hardges. According to appellant, Hardges' testimony included the following hearsay: Holloway's statement to Oko that appellant was her cousin; Holloway's statement to Hardges that Oko provided money to Holloway when appellant was jailed; and Holloway's statement to Hardges that appellant stole Hardges' property. Appellant submits that this hearsay prejudiced his -14- defense because the jury was led to believe that Holloway and appellant "hustled" Oko for his money. He, therefore, requests that we reverse his conviction and order a new trial which will be "untainted by hearsay directly pertaining to the issues in the case." Evid.R. 801(C) defines hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Two elements are needed to constitute hearsay. First, there must be an out-of-court statement. Second, the statement must be offered to prove the truth of the matter asserted. The statement, therefore, is not hearsay if either one of these elements is missing. State v. Maurer (1984), 15 Ohio St.3d 239, 262, citing Potter v. Baker (1955), 162 Ohio St. 488. A statement is not hearsay if it is not offered to prove its truth but is offered for some other reason, e.g., to merely prove the declarant made the statement. Maurer, citing Cassidy v. Ohio Public Service Co. (1947), 83 Ohio App. 404, 410; see, Staff Note to Evid.R. 801(C). In the present case, appellant first takes issue with that portion of Hardges' testimony in which she related that Holloway told Oko that appellant was her cousin. Holloway testified earlier that she never identified appellant as her cousin to Oko. Hardges testified as follows on rebuttal: "Q. Was Michael Oko ever told that David Brown was El's cousin. "MR. MACK: Objection. -15- "THE COURT: Overruled. "A. To my knowledge, he was told that. "Q. By whom? "A. By El [Holloway]." We fail to recognize that this testimony amounted to hearsay. First, Hardges never testified as to an out-of-court "statement" made by Holloway. Second, even if the testimony related a "statement," the testimony was not introduced at trial to prove that appellant was or was not Holloway's cousin. Rather, it was properly elicited on rebuttal for the permissible purposes of demonstrating the statement was made, Maurer, and for impeaching Holloway. See, State v. Hohman (1991), 81 Ohio App.3 80, 83 (rebuttal testimony is proper in order to refute testimony of adversary); State v. Kline (1983), 11 Ohio App.3d 208, 211 (statement offered for impeachment purposes is not hearsay since it is not presented to prove the truthfulness of the statement). Therefore, this portion of Hardges' testimony did not amount to hearsay as defined in Evid.R. 801(C). Hardges also testified concerning Holloway's statement to her that Oko furnished her with money for the benefit of appellant while appellant was in jail. Holloway testified during direct examination that she was quite sure Oko did not present her with anything besides letters, cards and flowers. Hardges' rebuttal testimony properly touched upon Holloway's credibility versus an attempt to prove that Oko gave money to Holloway for whatever -16- reason. Under these circumstances, the statement was not hearsay. Hohman; Kline; Evid.R. 801(C). The state asserts that appellant waived his right to challenge the admissibility of the third statement pertaining to appellant's alleged theft of Hardges' property since appellant failed to object to its offering. However, hearsay violates the Confrontation Clause of the United States Constitution unless it falls within an exception to the general rule or contains other indicia of reliability. See, State v. Johnson (1994), 71 Ohio St.3d 332, 339, citing White v. Illinois (1992), 502 U.S. 346, , 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859. If the statement challenged by appellant herein is hearsay, its admission would amount to constitutional error. Johnson, 339. This court must then consider whether the constitutional error is harmless which requires us to determine beyond a reasonable doubt that the error did not contribute to the verdict. Id., citing Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710- 711; see, also, State v. Sorrels (1991), 71 Ohio App.3d 162. As set forth supra, we must first determine whether Hardges' testimony was hearsay. The portion of her testimony at issue reads: "Q. You don't have the same relationship with El that you did? "A. No. "Q. Why is that? "A. Because they stole my furniture and all my things that were in the apartment. -17- "Q. Is that the only reason that you don't speak? "A. That really doesn't have anything to do with it. She [Holloway] explained it to me. It wasn't he [sic], it was David that did it. He did it for the money. She couldn't stop him, ***." Hardges never testified as to any statement made by Holloway. This segment of her rebuttal testimony, therefore, failed to include hearsay. Maurer; Potter; Evid.R. 801(C). Appellant's first assignment of error is overruled. III. Appellant, in his second assignment of error, once again attacks Hardges' testimony regarding the alleged theft of her property by appellant. He argues that Hardges expressed the allegation during improper rebuttal thereby unfairly allowing the jury to convict him for acts unconnected to the crime for which he was on trial. Appellant failed to object to this portion of Hardges' rebuttal testimony. He thus waives all but plain error. State v. Wickline (1990), 50 Ohio St.3d 114. "'The failure to object has been held to constitute a waiver of the error and to preclude its consideration upon appeal, for, absent an objection, the trial judge is denied the opportunity to give corrective instructions as to the error.'" State v. Loza (1994), 71 Ohio St.3d 61, 75, quoting State v. Wade (1978), 53 Ohio St.2d 182, 188. Plain error is only recognized where, but for the error, the result of the trial would clearly have been otherwise. State v. D'Ambrosio -18- (1993), 67 Ohio St.3d 185, 191, citing State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus; State v. Moreland (1990), 50 Ohio St.3d 58, 62. The record in the instant case refutes appellant's assertion that the state intentionally questioned Hardges to elicit the statement at issue in order to portray appellant as a thief. Rather, Hardges volunteered the information when questioned about her current relationship with Holloway. Moreover, the jury was already aware of appellant's past convictions even before Hardges' rebuttal testimony. Under these circumstances, this court fails to find the presence of plain error. See, State v. Cook (1992), 65 Ohio St.3d 516 (testimony that stolen property unconnected to underlying case was found in appellant's apartment failed to amount to plain error). Appellant's second assignment of error is overruled. IV. Appellant's third assignment of error focuses on Hardges' rebuttal testimony concerning the alleged theft of her property by appellant for the third time. He submits that this testimony violated the rule against the admission of "other acts" evidence. Notwithstanding our determination that Hardges' rebuttal testimony concerning the theft of her property was not plain error, appellant argues that this testimony when combined with Hardges' comments that appellant had been in jail and evidence that he was on -19- 2 probation , permitted the jury to find him guilty based on prior conduct. Appellant concedes that this assignment is reviewable under a plain error analysis. The jury was well aware of appellant's prior convictions for drug trafficking, gross sexual imposition, burglary and vandalism. These convictions were brought out during appellant's direct and cross examinations. In light of these convictions, we fail to find the exclusion of evidence that appellant may have been in jail or on probation would have altered the outcome of the trial. Cook; State v. Workman (1984), 14 Ohio App.3d 385 (references to fact that defendant spent time in prison were so scattered so as not to affect defendant's substantial rights). Appellant's third assignment of error is overruled. V. Appellant, in his fourth assignment of error, presents several arguments pertaining to the trial court's charge to the jury. He first submits that the trial court erred in instructing the jury that it would only consider the inferior offense of aggravated assault if it acquitted him as to the charge of felonious assault. Second, appellant asserts that the trial court failed to instruct the jury regarding his requisite burden of proof as to provocation. Finally, appellant avers that the trial court improperly charged the jury as to felonious assault with a deadly weapon, R.C. 2 One of the state's questions to appellant during his cross- examination sought information regarding an alleged probation violation. Defense counsel objected and the trial court sustained the objection. -20- 2903.11(A)(2), since he was only charged with felonious assault under R.C. 2903.11(A)(1). Appellant once again acknowledges that a plain error analysis is appropriate with regard to the trial court's alleged errors in instructing the jury. Appellant, therefore, waives all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13. Plain error requires the demonstration that but for the error, the outcome of the trial would clearly have been otherwise. Crim.R. 30(A); Long, supra. The Supreme Court of Ohio conducted a lengthy analysis of the issue presented in appellant's first argument in State v. Thomas (1988), 40 Ohio St.3d 213. In rejecting the "acquittal first" instruction, the court adopted this court's holding in State v. Muscatello (1977), 57 Ohio App.2d 231, affirmed on other grounds (1978), 55 Ohio St.2d 201: "'A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, they may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before they may consider a lesser included offense.'" Thomas, 220, quoting Muscatello, paragraph three of the syllabus. The Thomas court considered the jury instruction challenged on appeal in light of the holding in Muscatello. The trial court in Thomas instructed the jury as follows: "'If you find that The State has proven beyond a reasonable doubt the element of prior calculation and -21- design, then your verdict must be that the Defendant is not guilty of aggravated murder. "'You will then proceed with your deliberations and decide whether The State has proven beyond a reasonable doubt all the essential elements of the lesser crime of murder.'" Id. The Thomas court concluded that this instruction did not require unanimous acquittal on the charged crime of aggravated murder prior to the consideration of the lesser crime of murder. Rather, it allowed for possible disagreement as to the element of prior calculation and design and a corresponding inability to reach a verdict of guilty of aggravated murder. Under these circumstances, the instruction did not prejudice the defense because it related to the jury's inability to find, unanimously or not, an element of the greater offense. Id. Herein, the trial court instructed the jury as follows: "If you find that the State failed to prove any of the essential elements of the offense of felonious assault, you must find the defendant not guilty of felonious assault. And you will then proceed with your deliberations and you will decide whether the State has proved beyond a reasonable doubt all of the elements of the offense of aggravated assault." Appellant's proposition that the trial court essentially instructed the jury to not consider the offense of aggravated assault unless it acquitted appellant of felonious assault is unfounded. Just as in Thomas, the trial court's instruction allowed for possible disagreement as to the elements of felonious assault. Likewise, as in Thomas, the trial court instructed the jury to "then proceed" with its deliberations on aggravated -22- assault. At no time did the trial court expressly state to the jury that it had to acquit appellant of felonious assault prior to considering aggravated assault. The trial court's statement to the jury that it would sign a verdict form after reaching a "unanimous" verdict is an accurate statement which was detached from the quoted section of its charge supra. Hence, there is no violation of the test set forth in Thomas. Compare, State v. Shaw (1990), 65 Ohio App.3d 821 (trial court's instruction to jury that it would deliberate a verdict to lesser included offense of assault only if it found defendant not guilty of felonious assault violated Thomas test). Appellant's second argument involves the trial court's statement, as quoted by him, "'The defendant, however, must demonstrate that the sudden passion or fit or rage under which he acts, *** if you find that the State did prove beyond a reasonable doubt all of the essential elements of the offense of aggravated assault, then your verdict must be guilty.'" Appellant argues that this statement amounted to plain error because the jury was never apprised as to his burden of proof regarding provocation; the jury, therefore, may have used a standard other than a preponderance of the evidence, including beyond a reasonable doubt. Appellant carried the burden to prove provocation by a preponderance of the evidence. R.C. 2901.05(C)(2); Muscatello, 248 ("[e]motional stress as a mitigating circumstance is similar to an affirmative defense since it operates as a defense to the higher offenses of aggravated murder and murder"). The trial court, as is -23- obvious from the statement, never instructed the jury that appellant had the burden of proof as to provocation let alone that he had to do so beyond a reasonable doubt. The court merely informed the jury that appellant had to demonstrate provocation prior to instructing that the state had to prove all the elements of the offense beyond a reasonable doubt. Compare, Muscatello, supra (prior to enactment of R.C. 2901.05(A), now 2901.05(C)(2), charge that jury had to find beyond a reasonable doubt that defendant acted under extreme emotional distress brought on by serious provocation was prejudicial error even though instruction did not specifically impose burden on defendant). Though the trial court failed to identify the burden as one of preponderance of the evidence, appellant fails to demonstrate how the outcome of the trial court have been otherwise absent the trial court's omission. Appellant's last argument focuses upon the trial court's instruction, "To resort to the use of a deadly weapon is not permitted because of words, vial [sic] or abusive language or verbal threats *** [N]o matter how provocative they do not justify assault or the use [of a] deadly weapon." He proposes that this language pertaining to R.C. 2903.11(A)(2) was prejudicial because he was charged with violating R.C. 2903.11(A)(1), felonious assault without the use of a deadly weapon. Appellant quotes that portion of the trial court's charge on self-defense in arguing that it instructed on felonious assault with a deadly weapon. Such quote is misleading for two reasons. First, a review of the trial court's charge to the jury reveals -24- that it instructed the jury as to felonious assault, R.C. 2903.11(A)(1), the only offense appellant was charged with in the indictment. The court also instructed on aggravated assault, R.C. 2903.12. Second, the instruction on self-defense was appropriate. See, 4 Ohio Jury Instructions (1994) p. 76, Section 411.33(1). Finally, appellant was charged with and convicted of R.C. 2903.11(A)(1). He was sentenced accordingly. Appellant thus fails to demonstrate how the trial court's mention of the use of a deadly weapon altered the outcome of the trial, and consequently how the trial court committed plain error. Appellant's fourth assignment of error is overruled. VI. Appellant contends in his fifth assignment of error that his conviction is against the manifest weight of the evidence for primarily three reasons. First, he attacks the credibility of Oko's testimony, arguing that its inconsistency demonstrates the fallibility of the state's case and the jury's "manifest miscarriage of justice." Second, he argues that he proved the elements of self-defense. Alternatively, appellant asserts that he proved provocation by a preponderance of the evidence and, therefore, should only have been found guilty of aggravated assault. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: -25- "*** The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. ***" (Citations omitted.) Id., 175. Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. Therefore, it must be stressed that the weight of the evidence and the credibility of the witnesses are issues properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The trier of fact is entitled to believe or not to believe the testimony of either the state's witnesses and/or the defense witnesses. State v. Antill (1964), 176 Ohio St. 61; State v. Harriston (1989), 63 Ohio App.3d 58, 63. In the present case, two disinterested state's witnesses, Butler and Florence, testified that they observed the altercation between appellant and Oko on January 22, 1993. The area was well- lit and they had an unobstructed view of the entire incident. According to these two witnesses, appellant followed Oko's vehicle into the back parking lot following their initial meeting in the driveway and the exchange of words. More words were exchanged between appellant and Oko while Oko remained in the vehicle. Appellant kicked his leg through the driver's window -26- while Oko maneuvered the vehicle. Oko proceeded down the driveway and appellant pursued the vehicle, jumping and landing on the rear of the vehicle before Oko exited the driveway. Both Butler and Florence testified that Oko never tried to run appellant down at any time during their conflict. Oko sustained injuries to his face as a result of the confrontation with appellant. Det. Brown testified that appellant related his boxing abilities and how he "really whipped" Oko during his interview. This evidence amply demonstrates that appellant knowingly caused serious physical injury to Oko. His conviction for felonious assault, R.C. 2903.11(A)(1), is accordingly not against the manifest weight of the evidence. The trial court instructed the jury on aggravated assault since it obviously found that appellant provided sufficient evidence of provocation. See, State v. Deem (1988), 40 Ohio St.3d 205, 211. The existence of provocation depends on the defendant's state of mind under the circumstances. State v. Mabry (1982), 5 Ohio App.3d 13, 19. Provocation, to be serious, must be reasonably sufficient to bring on extreme emotional stress; and it must be reasonably sufficient to incite or to arouse the defendant into using deadly force. Deem; State v. Blankenship (1991), 77 Ohio App.3d 324. As applied to the instant case, any verbal argument between appellant and Oko immediately preceding appellant's kicking of Oko is insufficient as a matter of law to constitute provocation. See, -27- Blankenship. Appellant submitted to the jury that Oko attempted to run him over with his vehicle more than once, but the jury was free to reject this submission considering Butler's and Florence's testimony that Oko never attempted to do so. Grant; DeHass; Antill. Appellant next proposes that he should not have been found guilty because he acted in self-defense on January 22, 1993. In order to establish a claim of self-defense, appellant was required to show (1) that he was not at fault in creating the situation giving rise to the affray, (2) that he had 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 deadly force, and (3) that he did not violate any duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247, 249; State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. Self-defense is an affirmative defense in Ohio and, therefore, must be proven by a preponderance of the evidence. R.C. 2901.05(C): State v. Seliskar (1973), 35 Ohio St.2d 85, 96. If appellant failed to prove any one of the pertinent elements of the defense, he failed to demonstrate that he acted in self-defense. Williford, 249; State v. Jackson (1986), 22 Ohio St.3d 281, 283. Contrary to appellant's claim that he acted in self-defense, the testimony of the state's witnesses portrayed him as the aggressor in the confrontation with Oko once Oko drove his vehicle to the rear parking lot because it was appellant who followed Oko -28- to the rear parking lot. When Oko tried to exit the rear parking lot by driving forward in the driveway, appellant followed him once again, kicking at his head with his leg through the driver's window. Appellant thus fails to establish even the first element of self-defense. Moreover, as already stated supra, the jury was free to reject appellant's assertion that Oko was trying to run him over; appellant thus arguably failed to demonstrate the second element of self-defense. Clearly, even assuming arguendo that appellant proved the first two elements of self-defense, by the time Oko drove to the rear parking lot, appellant violated his duty to avoid the danger when he followed the vehicle and eventually struck the blow. Appellant, therefore, failed to prove the necessary elements of self-defense. Williford. Appellant's fifth assignment of error is overruled. VII. Appellant, in his sixth and final assignment of error, asserts that he was denied the effective assistance of trial counsel. Specifically, he argues that counsel's failure to object to the introduction of the evidence challenged in his first three assignments of error and to the trial court's jury instruction, denied him his right to effective representation. In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court of Ohio discussed Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 and the holding in State v. Lytle (1976), 48 Ohio St.2d 391. The court thereafter developed a two-step process to assess the effectiveness of counsel. First, -29- there must be a determination as to whether defense counsel substantially violated an essential duty to the client. Second, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. In light of this court's conclusions in appellant's first four assignments of error, we overrule appellant's sixth assignment of error. Since there either was no error in the introduction of any of the challenged evidence or appellant was not prejudiced by the introduction of any of the evidence complained of, counsel was not ineffective for failing to object to the introduction. Defense counsel was likewise not ineffective by not objecting to the trial court's instructions to the jury since we determined that the instructions were proper. Judgment affirmed. -30- 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 Cuyahoga County 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. LEO SPELLACY, P.J., AND DAVID T. MATIA, J., CONCUR. JUDGE SARA J. HARPER 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 journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -31- APPENDIX "Assignment of Error No. I: "THE ADMISSION OF HEARSAY VIOLATED EVID. R. 802 AND MR. BROWN'S RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. "Assignment of Error No. II: "PLAIN ERROR WAS COMMITTED BY THE ADMISSION OF PREJUDICIAL REBUTTAL TESTIMONY WHICH DID NOT REBUT TESTIMONY ON CROSS-EXAMINATION. "Assignment of Error No. III: "PLAIN ERROR WAS COMMITTED BY THE ADMISSION OF OTHER ACTS TESTIMONY IN VIOLATION OF R.C. 2945.59, EVID. R. 404(B) AND MR. BROWN'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. "Assignment of Error No. IV: "THE TRIAL COURT'S ERRONEOUS JURY INSTRUCTIONS WERE PLAIN ERROR WHICH VIOLATED MR. BROWN'S RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OR THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. "Assignment of Error No. V: "THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN MR. BROWN PROVED SELF-DEFENSE OR PROVOCATION BY A PREPONDERANCE OF THE EVIDENCE. "Assignment of Error No. VI: "MR. BROWN WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT [sic] TO THE UNITED STATES CONSTITUTION WHEN HIS ATTORNEY FAILED TO OBJECT TO HEARSAY, IMPROPER REBUTTAL, INADMISSIBLE OTHER ACTS, AND PREJUDICIAL JURY .