COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67363 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : LEONARD ROBINSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 1, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-304142 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender MICHAEL ZIDAR, ESQ. BY: JEAN M. GALLAGHER, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -2- PATRICIA ANN BLACKMON, J: Leonard Robinson, defendant-appellant, appeals his conviction for felonious assault and assigns the following errors for our review: I. THE TRIAL COURT COMMITTED PLAIN ERROR BY ISSUING PREJUDICIAL JURY INSTRUCTIONS AND FAILING TO INSTRUCT ON SELF-DEFENSE IN VIOLATION OF MR. ROBINSON'S RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. II. MR. ROBINSON WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ***. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Leonard and Michelle Robinson were neighbors to Dwayne and Phyllis Whittaker on East 121st Street in the city of Cleveland. Since June 18, 1993, Michelle Robinson had been telling her husband she was having an affair with Dwayne Whittaker. Leonard Robinson confronted Dwayne and Phyllis Whittaker with this accusation several occasions during the past year. On November 8, 1993, Robinson allegedly assaulted Dwayne Whittaker because of the alleged affair. Dwayne Whittaker gave the following account: Leonard Robinson knocked on Dwayne Whittaker's front door at about 6:00 p.m. and said "Let's talk." When Whittaker opened the door, Leonard -3- Robinson punched him, and he fell back. When Whittaker tried to get up, Robinson hit him on the head with the butt of a gun five to seven times. After Whittaker fell to the ground, Robinson kicked him several times in the stomach and in the face. While Whittaker was on the ground, Robinson also pointed the gun at his lower extremities and threatened to kill him. Whittaker pleaded with Robinson and tried to convince him he did not have an affair with his wife. When Robinson's youngest daughter came to the door, Whittaker attempted to get up and run to the door, but Robinson fired a shot into the floor and told Whittaker to sit back down. Robinson then told his daughter to go home and after she left, he eventually went home. Whittaker called 9-1-1 and his wife. Robinson was eventually arrested and Whittaker was taken to the hospital where he was treated and released. As a result of the assault, Whittaker suffered severe injuries to his head and received numerous stitches and staples to his body. Leonard Robinson, in his defense, gave the following account: He was stressed because he believed his wife was having an affair with their neighbor. He saw a psychiatrist who prescribed Prozac. He started carrying a gun a year earlier because his wife and his daughter had been accosted by some young boys who tried to abduct his daughter. On the evening in question, Robinson claimed Whittaker invited him over to discuss the accusations. Upon arriving, he told Whittaker he believed his wife and to stay away from her. They argued, and Whittaker pushed Robinson. Robinson pushed back, and -4- the two men began to tussle. The pistol tucked into Robinson's waistband fell to the ground and discharged. Both men went for the gun. Robinson got the gun first and hit Whittaker three or four times with it. When his daughter came to the door, he left and took her back home. After his arrest, Robinson was charged with one count of felonious assault with firearm and violence specifications, one count of aggravated burglary with firearm and violence specifications, and one count of improperly discharging a firearm. The case proceeded to a jury trial. In its charge to the jury, the trial court gave the following instructions: If you find the State did not prove beyond a reasonable doubt all the essential elements of felonious assault as charged in count one, you will continue 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 fit of rage, either of which was brought on by serious provocation occasioned by Dwayne Whittaker, provocation that was reasonably sufficient to incite the defendant into using deadly force. Now, this is the lesser included offense in count one of aggravated assault. The first one was entitled felonious assault. That's a higher felony. This is a lower offense. Now, being under the influence of sudden passion or in a sudden fit of rage is one circumstance that reduces the charge of felonious assault to aggravated assault. Essentially the elements are the same for both offenses. * * * If you find beyond a reasonable doubt that the State proved all the essential elements of felonious assault, but if you find from the -5- evidence that the defendant acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by Dwayne Whittaker, a provocation reasonably sufficient to incite the defendant into using force, then your verdict must be guilty of aggravated assault. * * * Okay? Does everybody understand it? If you do find him guilty of felonious assault before you sign that verdict form, look at the aggravated assault and consider whether this case shows element numbers one and two, okay. Is that sufficiently clear? * * * Now, the subject of punishment. You may not discuss or consider the subject of punishment. Your duty is confined to the guilt or determin- ation of the guilt or innocence of the defendant. In the event you find the defendant guilty, the duty to determine punishment is placed upon the Court. * * * I think I caused confusion when I began on the aggravated assault by misreading the first statement, and so I will read it correctly. If you find the State proved beyond a reason- able doubt all of the essential elements of felonious assault as charged in count one of the indictment, you will continue your deliberations and decide from all the evidence in your judgment if the defendant acted while under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by Dwayne Whittaker. * * * Robinson was found guilty of felonious assault, but acquitted of the other two charges. He was sentenced to a term of three -6- years for the gun specification and three to fifteen for felonious assault. This appeal followed. In his first assignment of error, Robinson argues the trial court committed plain error in its jury instructions. He reasons the trial court gave an erroneous instruction on felonious assault by informing the jury they must enter a finding of guilty for felonious assault before considering the offense of aggravated assault. He also reasons the trial court erroneously failed to instruct on self-defense. Under Crim.R. 30(A), the failure to object to jury instructions waives any error relating to the instructions except in the event of plain error. See State v. Gideons (1977), 52 Ohio App.2d 70. A defective jury instruction does not rise to the level of plain error unless it can be shown the outcome of the trial clearly would have been otherwise if the instruction was properly given. Cleveland v. Buckley (1990), 67 Ohio App.3d 799. In the event a trial court gives an erroneous jury instruction, and subsequently gives a curative instruction, the jury is presumed to have followed the curative instruction. State v. Loza (1994), 71 Ohio St.3d 61, 75. Robinson primarily argues the trial court erred when it instructed the jury to believe it must first acquit Robinson of felonious assault before considering aggravated assault. The trial court, however, corrected its error giving the jury a curative instruction. Because the jury is presumed to have followed the -7- curative instruction, the trial court's initial erroneous instruction does not amount to plain error. Robinson next argues the trial court instructed the jury that the prosecution had the burden of proving beyond a reasonable doubt a "***sudden passion or in a sudden fit of rage***." R.C. 2903.12. We disagree. A careful review of the transcript reveals the trial court did not instruct the jury as to whose burden it was to prove the mitigating circumstances for aggravated assault. It was, however, error for the trial court not to instruct the jury that sudden passion or a sudden fit of rage are mitigating circumstances for which the defendant bears the burden of proof by a preponderance of the evidence. See State v. Rhodes (1992), 63 Ohio St.3d 617. The jury in the case sub judice was not left with placing the burden for mitigating circumstances upon the State; they were simply instructed to decide the mitigating circumstances without placing a burden of proof upon either party. A trial court's failure to set forth the defense's burden to prove mitigating circumstances by a preponderance of the evidence is error, but it is not necessarily plain error. State v. Totty (1983), Cuyahoga App. No. 47152, unreported (held no plain error in conviction for aggravated assault). Although the trial court's instructions were inadequate, it was clear, from the instructions given and in view of the entire record, the outcome of the trial would have been the same had the proper instructions been given. Thus, the trial court's instructions on aggravated assault did not rise to the level of plain error. -8- Robinson also argues the trial court erred in its instruction by referring to punishment. Robinson suggests referring to felonious assault as a "higher offense" and aggravated assault as a "lower offense" tainted the fairness of the proceedings. We disagree. Although the trial court's reference to higher and lower offenses was improper, the use of those terms does not imply a jury should consider punishment. A jury's decision between a greater offense and a lesser offense taints the fairness of the deliber- ation process no more than their decision between guilty and not guilty. A jury will know punishment exists in varying degrees, but this does not mean they considered it. When considering the issue of punishment, reviewing courts must rely on the presumption that the jury followed the instructions given by the trial judge. See, e.g., Loza at 75. Even though the terms higher and lower offense were improperly used by the trial judge, the jury were specifically instructed on the issue of punishment. The trial judge told the jury "You may not discuss or consider the subject of punishment." Consequently, we must presume the jury followed the trial court's admonition not to consider punishment. Accordingly, we do not find plain error in the trial court's reference to felonious assault and aggravated assault as higher and lower offenses. We now turn to the question of self-defense. A self-defense instruction should be given when the defendant presents sufficient evidence he was not at fault in creating the situation giving rise -9- to the incident, had a bona fide belief he was in imminent peril, and violated no duty to retreat. State v. Robbins (1979), 58 Ohio St.2d 74. The evidence in the case sub judice reveals Robinson was in part, at fault for going to Whittaker's house in an agitated state of mind, and while he had believed he was in great danger, he violated a duty to retreat when he was first pushed by Whittaker and did not attempt to retreat. In viewing the facts presented by the defense, we find insufficient evidence to warrant an instruction on self-defense. Thus, it was not plain error for the trial court not to give an instruction on self-defense. Accordingly, the first assignment of error is not well taken. In his second assignment of error, Robinson argues he was denied effective assistance of counsel. He reasons defense counsel told the jury his opening statement was "somewhat the almost probable truth of what happened," told the jury Robinson had nothing to prove, failed to request an instruction on self- defense, and failed to object to prejudicial instructions. The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1994), 466 U.S. 668. See, also, State v. Bradley (1989), 42 Ohio St.3d 136. ***[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. The defendant must also prove "***there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been -10- different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Although counsel did say to the jury his version of what happened was "somewhat the almost probable truth of what happened," this was clearly a strategic attempt to demonstrate mitigating circumstances consistent with the lesser offense of aggravated assault. Defense attempted to prove his client was acting under the influence of sudden passion or a sudden fit of rage brought on by serious provocation. Because defense counsel's comments in opening statement were clearly a matter of trial strategy, it should not be second guessed by a reviewing court. State v. Moseley (Jan. 24, 1991), Cuyahoga App. No. 57968, unreported. Robinson next argues counsel was ineffective when he said Robinson had nothing to prove. While the burden to present the mitigating circumstances rested with the defendant, it was clearly a matter of trial strategy to tell the jury Robinson had nothing to prove. Although this statement may be inconsistent with the defense of self-defense or aggravated assault, there is nothing in the record to suggest the result of the trial would have been different had the statement not been made. Robinson also argues counsel failed to request an instruction on self defense. Because we find the facts did not support an instruction on self-defense, the failure to request such an instruction does not amount to ineffective assistance of counsel. Finally, Robinson argues, counsel failed to object to prejudicial jury instructions. While we agree counsel did fail to -11- properly object to prejudicial jury instructions, we do not find the result of the trial would have been different had more comprehensive instructions on aggravated assault been given. Accordingly, we hold Leonard Robinson was not denied effective assistance of counsel, and his second assignment of error is not well taken. Judgment affirmed. -12- 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. JAMES D. SWEENEY, P.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .