COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67786 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION AMOTTA McCULLOUGH, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 17, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-305352 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: William R. Caine Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Arthur A. Elkins Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 -2- NAHRA, J.: Appellant, Amotta McCullough, is appealing his conviction for felonious assault, in violation of R.C. 2903.11. He contends that he was denied effective assistance of counsel because counsel failed to request a jury instruction on the inferior degree offense of aggravated assault, R.C. 2903.12. He also contends it was plain error for the judge to omit such an instruction. For the following reasons, we affirm. Johnny Russell, the victim, testified that around 2:30 a.m., he saw two men fighting across the street and went to observe the fight. At the scene of the fight, Russell saw appellant punch a girl in the face. Russell grabbed appellant from behind and told him to calm down. Appellant went crazy and yelled, "get off me." Russell saw a knife fall to the ground. When he let appellant go, appellant picked up the knife and stabbed Russell in the lungs. Russell fell out of his flip flop sandals. As he approached appellant and asked for his shoes, appellant stabbed him in the heart. Terrance Bruce Aaron, the victim's friend, had accompanied the victim to the scene of the fight. Two males, Skippy and Hawk, were fighting. Appellant and Mary Brown were arguing. Mary ran into her apartment and came back with a knife. J.J. (Johnny Russell) grabbed appellant from behind to get him away from Mary. Appellant was hysterical and broke away from J.J. Appellant punched Mary, who dropped the knife. Appellant grabbed the knife and started -3- swinging it at the crowd. J.J. tried to move away, but was stabbed. J.J. asked appellant for his shoes and was stabbed again. Dorothy Aaron testified that she too observed the fight. Appellant hit Mary and Mary dropped the knife. Appellant picked up the knife. J.J. grabbed appellant from behind and flipped him to the ground. Appellant became wild and out of control, swinging the knife at people. Appellant told everyone to leave him alone. He acted as if everyone was trying to jump on him. Curtis and Bruce Aaron attempted to wrestle the knife away. Then, J.J. was stabbed twice by appellant's wildly swinging the knife. Appellant testified that he was at Duke's bar earlier that day, and Kitty (Mary Brown) hit him with a beer bottle. He chased Kitty out of the bar, where he was confronted by Rod, who came to Kitty's defense. Appellant and Rod did not fight because others intervened. Appellant left the bar and went to the courtyard outside the 2400 apartment building on Bridge Avenue. Skippy came out of the apartment and punched him in the mouth. Appellant and Skippy fought. Skippy was getting the better of appellant, because appellant had consumed six or seven beers and was somewhat intoxicated. Appellant's friend Hawk took up the fight with Skippy. Then, Kitty ran up and "got in his face". Appellant swung at her. She ran away and then came back. The next thing he knew, someone grabbed him from behind and threw him to the ground. A knife fell from Kitty. He believed Kitty attempted to hand the -4- knife to his attacker. Appellant grabbed the knife and got up swinging because he felt his life was in danger. J.J. ran up to him saying, "You think you bad?" J.J. was struck by the knife only once. Ronald Hawkins (Hawk) corroborated appellant's testimony as to the events up until Hawk started fighting Skippy. Kenneth McCullough testified to the events at Duke's Bar. Appellant requested an instruction on self-defense. The trial judge asked if either party was considering an instruction on aggravated assault. The prosecutor and defense attorney stated they did not want the instruction. I. Appellant's first assignment of error states: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND THE OHIO CONSTITUTION, WHEN THE TRIAL COUNSEL FAILED TO REQUEST A JURY INSTRUCTION ON THE INFERIOR DEGREE OFFENSE OF AGGRAVATED ASSAULT. To establish ineffective assistance of counsel, appellant must show counsel's performance was deficient and appellant was prejudiced as a result. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The court must give due deference to the strategic decisions of counsel. Id. at 689-690. An appellant is not deprived of effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319. It is a reasonable trial strategy to argue self-defense and -5- not request an instruction on an inferior degree offense or lesser included offense. State v. Moore (1994), 97 Ohio App.3d 137, 149- 150, State v. Catlin (1990), 56 Ohio App.3d 75, 78-79, State v. Pryor (June 8, 1989), Cuyahoga App. No. 55454, unreported. The inferior degree offense may conflict with the theory of self- defense or may confuse the jury. See Catlin, supra. In this case, it might be confusing or contradictory to argue that appellant acted in fear for his life, but also was provoked and acted in a fit of rage. We find that appellant has not shown counsel's performance was deficient. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY REGARDING THE INFERIOR DEGREE OFFENSE OF AGGRAVATED ASSAULT, DESPITE EVIDENCE TO SUPPORT SUCH AN INSTRUCTION. The trial court did not err in not giving the instruction on the lesser charge. The trial judge offered counsel the opportunity to request a lesser charge, and both counsel refused. It is not error to allow counsel to select a reasonable trial strategy. See State v. Clayton (1980), 62 Ohio St.2d 45, State v. Hampton (Aug. 25, 1994), Cuyahoga App. No. 65786, unreported. As mentioned above, an instruction on aggravated assault may have conflicted -6- with defense counsel's self defense argument, and confused the jury. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -7- 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. DYKE, P.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA 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 .