COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69080 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIE RAMEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MARCH 14, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 311550 JUDGMENT Affirmed in part; vacated in part. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building NORMAN A. KOTOCH, Assistant Suite 1016 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Willie Ramey appeals from his convictions following a jury trial for attempted murder (R.C. 2903.02 and 2923.02), felonious assault (R.C. 2903.11) and aggravated assault (R.C. 2903.12). Defendant contends he was deprived of due process of law in various respects (speedy trial, double jeopardy, wrongful sentencing and prosecutorial misconduct). For the reasons hereinafter stated, we affirm in part and vacate in part. The events leading to the charges occurred on March 26, 1993, when the victim David Batemon was viciously assaulted and knifed. After work that day, Batemon picked up his nieces and nephews from his cousin's house and took them to a nursing home to visit another cousin. From there he returned to his cousin Joyce Barron's house. Ms. Barron was nine months pregnant. Shortly after his arrival, Deborah Davidson and Brenda Marbley also arrived at Barron's home. Ms. Davidson and Batemon had dated in the past. After they were all there, the defendant, Willie Ramey, came banging at the side door yelling for his girlfriend, Ms. Davidson, known as "Niecey" to come out. The defendant was hollering, irate and in an outrage, yelling, "I want to see her!" Ms. Davidson was scared of the defendant. Ms. Barron did not allow the defendant in the house and asked the defendant to leave. He continued to yell and call "Niecey" derogatory names. The defendant tried to get in the house, but Ms. Barron barred the way. - 3 - David Batemon was upstairs when he heard the commotion with defendant at the door. He heard the defendant's angry voice and came downstairs when he heard defendant trying to push his way in the side door. Batemon told defendant: "Hey, why don't you just quit, this is my cousin's (Barron's) house. She's pregnant, why don't you just go?" Batemon was standing behind Ms. Barron inside of the house while speaking to the defendant. The defendant said to Batemon: "I don't like you anyway, man." And with that, he pushed the pregnant Joyce Barron out of the way, reached in and pulled Batemon outside. The defendant began to hit Batemon. While the two were wrestling, defendant pulled out a knife and stabbed Batemon twice in the stomach. As the defendant was stabbing Batemon, he kept saying, "Do you want some more?" Batemon did not have a weapon. Ms. Barron came outside and tried to pull the defendant off her cousin. She did not have a weapon and was fearful of the safety of her children. The defendant stabbed Batemon in the neck. Batemon then was fighting for his life when the defendant finally stabbed him in the heart. Batemon no longer could fight and remembered seeing Ms. Barron crying before he lost consciousness. Defendant's own testimony indicated Batemon was the aggressor and defendant responded in self-defense. He denied stabbing Batemon and denied that he had a knife. The defendant testified that he believed that Joyce Barron stabbed her cousin. He further told the jury that he was at the house on behalf of the Vice - 4 - Department of the Cleveland Police in order to make a buy of illegal drugs. The next thing Batemon remembers was waking up in St. Luke's Hospital. Batemon remembers the altercation and testified that the defendant showed no signs of injury that night; that no one else was involved in the fight; and no one else went after the defendant. Defendant was uninjured and ran from the scene of the stabbing. The defendant testified that he suffered injuries from the fight which included a broken denture and blows to the face. Dr. Oscar Nicholson was the surgeon who attended to Batemon at St. Luke's Hospital emergency room. He testified that Batemon's injuries were life threatening and required open-heart surgery to repair the knife wound to his heart. Batemon spent two weeks recovering at St. Luke's. Defendant was charged by complaint with felonious assault in the Cleveland Municipal Court on April 25, 1993, sworn to by victim Batemon. An arrest warrant was issued in connection with the March 26 assault. However, he was arrested and placed in county jail on September 7, 1993, in connection with two unrelated cases (CR- 280336 and CR-294405), probation violation and drug abuse, respectively. The commitment form also disclosed a holder from Cleveland Police for the felonious assault charge. The sheriff's department record of additional arrest showed his attorney as Mancino. Defendant was sentenced on October 7, 1993 for these previous offenses. Defendant was transferred to the Lorain - 5 - Correctional Institution (LCI) on October 13, 1993, as a result of these unrelated convictions. After his arrival at LCI, defendant was advised generically by a form handout of his speedy trial rights to be tried within 180 days on pending charges under R.C. 2941.401. Defendant never gave the prison authorities any notice that he was wanted on the felonious assault complaint then pending in the Cleveland Municipal Court. On or about October 13, 1993, the prison records office ran defendant's name and an incorrect date of birth (3/15/62) through the National Crime Information Center looking for any untried charges. The State claims that due to the erroneous birth date given by defendant, no information on pending charges was found. Prior to defendant being released from LCI, the prison officials again ran a record check on or about April 29, 1994 with defendant's correct birth date (7/15/62). This check found the active warrant from Cleveland Police concerning the present case. Defendant was subsequently released from prison into the custody of Cleveland Police on the pending charge on May 19, 1994. Defendant was arrested on the charge of felonious assault on May 19, 1994, upon his release from prison. He posted bond and was released on May 20, 1994. He was subsequently indicted for felonious assault and attempted murder by the Grand Jury on June 27, 1994. He failed to appear for his arraignment on July 12, 1994. He was picked up on a capias on July 19, 1994, arraigned and released on bail that day. - 6 - On August 18, 1994, defendant moved to dismiss the charges for failure to afford a speedy trial under R.C. 2941.401 and 2945.71 et seq. The trial court conducted a two part hearing on the motion and denied the motion February 9, 1995. Trial was commenced May 2, 1995. The jury found defendant guilty of felonious assault, attempted murder and aggravated assault arising out of the stabbing of Batemon. The trial judge vacated the aggravated assault charge and thereafter sentenced defendant to terms of ten to twenty-five years for attempted murder and eight to fifteen years for felonious assault, sentences to run concurrently. From these convictions the defendant pursued this timely appeal. We will address the assignments of error together where the issues are interrelated. I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO DISMISS BASED UPON A LACK OF A SPEEDY TRIAL. V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO DISMISS THE CASE AS DEFENDANT WAS DENIED HIS RIGHT TO A STATUTORY SPEEDY TRIAL. Defendant claims that he was denied a speedy trial pursuant to R.C. 2941.401 and R.C. 2945.71. He contends that since he was originally arrested on September 7, 1993 and sentenced on the unrelated charges on October 7, 1993, the charges in the instant case should have been addressed at that time. Defendant contends that his speedy trial time commenced on September 7, at the time of his arrest for the prior offenses. - 7 - Based upon R.C. 2941.401, defendant argues that the failure to bring him to trial within 180 days from September 7, 1993 requires his discharge. We find no merit to this argument. R.C. 2941.401 provides in full text as follows: When a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner. The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested. The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right - 8 - to make a request for final disposition thereof. Escape from custody by the prisoner, subsequent to his execution of the request for final disposition, voids the request. If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice. This section does not apply to any person adjudged to be mentally ill or who is under sentence of life imprisonment or death, or to any prisoner under sentence of death. The plain intent of this statute is to allow the prisoner to make a written request upon the prosecutor and appropriate court for final disposition of untried charges while he is still in prison; the warden has a corresponding obligation to inform the prisoner of untried charges of which the warden learns so that the prisoner can make the appropriate demand. The 180 day time limit for bringing defendant to trial only begins to run upon the filing of defendant's demand with the prosecutor and court. State v. Brown (1992), 84 Ohio App.3d 414, 423; State v. Logan (1991), 71 Ohio App.3d 292, 296; State v. Turner (1982), 4 Ohio App.3d 305, 306. No such demand was made in this case. Where the warden of the prison becomes aware of the untried charges, he has a duty to notify the prisoner. State v. Fitch (1987), 37 Ohio App.3d 159, 161. Moreover, the State has a duty to use reasonable diligence to find the prisoner. State v. Martin - 9 - (1984), 16 Ohio App.3d 172, 173. But, the Martin court also held "there was no indication that the warden of the institution had any knowledge of the pending indictment. Therefore, there was no showing of a violation under R.C. 2941.401." Id. at 174. The documentary evidence in the record demonstrates that a holder was placed against the defendant when he was arrested and placed in the County Jail on the unrelated charges on September 7, 1993. His present counsel was also listed as his attorney at that time. The record is silent as to whether defendant was personally aware of the felonious assault complaint or the holder at that time. Defendant was convicted and subsequently transferred to LCI on October 13, 1993. The warden at LCI and his records office were not aware of the untried charges. Two teletype efforts to obtain such information from NCIC proved negative. The State contends that an incorrect birth date (3/15/62) given by the defendant prevented the discovery of the outstanding warrant by prison authorities. His correct date of birth is July 15, 1962. We find persuasive the decision in State v. Terrell (Dec. 16, 1990), Mahoning App. No. 90 CA44, where the court stated at 4: We find a material difference in the facts between the Fitch case and the case at hand. In the Fitch case, the warden or superintendent, having custody of the appellant, knew about the pending indictment against the appellant. In the case at hand, there is no evidence that the warden or superintendent, having custody of the appellant, had any knowledge of the untried indictment against the appellant other than for the entry filed by the trial judge, on December 7, 1989, commanding the removal of the - 10 - appellant from the Warren Correctional Institution. We find that the holding in Fitch is totally inapplicable to the case at hand. We further hold that, pursuant to R.C. 2941.401, this appellant, being fully aware of the indictment pending against him, was required to deliver to the prosecuting attorney and the appropriate court in Mahoning County written notice of the place of his imprisonment and a request for final disposition. The record herein does reveal that, pursuant to a pre-release search, when the correct birth date was submitted to NCIC, the warden first became aware of the outstanding complaint on April 29, 1994. His office contacted the Cleveland Police Department that same day. The officers assigned to the case contacted the prosecutor's office to notify them of the defendant's transfer upon his release from prison. At this point, the warden had a duty to notify the defendant of the untried charges, but failed to do so. Therefore, pursuant to R.C. 2941.401, the 180 day time period began to run on April 29, 1994, three weeks before defendant's release from prison. Defendant argues (Aplnt's Brf. at 8) that the dismissal of this indictment is compelled by the decision of this Court in State v. Floyd (Oct. 25, 1979), Cuyahoga App. No. 39929, unreported. Floyd stands for the proposition that the State must exercise reasonable diligence in informing the prisoner/defendant of an indictment for a new crime. Floyd was indicted on a different crime while in prison serving a seven to twenty-five year sentence; he was not arraigned for 15 months after the indictment. This Court stated at 5-6: - 11 - The state is prohibited from engaging in practices which undercut the intent and purposes of the speedy trial statutes. State v. Lee (1976), 48 Ohio St.2d 208, 209; State v. Pudlock (1975), 44 Ohio St.2d 104, 106; State v. Reeser (unreported, Aug. 2, 1979), Eighth Appellate District Case No. 38802, slip op. at 3-4. Thus, we hold that the state cannot avoid the requirements of 2941.401 by neglecting or refusing to send a copy of the indictment to the warden of the accused's institution of incarceration. Nevertheless, we are cognizant that the state may be unaware that an indictee is already imprisoned on a different charge, and therefore conclude that the state meets its burden under 2941.401 if it exercises "reasonable diligence" to discover if the indictee is imprisoned within the state. In the present case, the stipulated facts force us to hold that the state failed to exercise such reasonable diligence. Appellee was convicted in Cuyahoga County in January, 1977. The following April he was indicted by the court for a different crime, and it is stipulated that the information leading to that indictment was given to the prosecutor by the police and that the police knew at that time that appellee was in prison. (Tr. 8). Under these facts, we cannot hold that the state exercised reasonable diligence to discover if appellee was incarcerated in the state, and therefore conclude that the state, through its negligence, denied appellee his speedy trial rights under 2941.401. The facts of the instant case are distinguishable. Defendant was not indicted while in prison serving a lengthy sentence. There is nothing in the instant record to establish that the county prosecutor was aware of the municipal court complaint or that a holder for the instant offense was in effect. The prosecutor did not "undercut the intent and purposes of the speedy trial statutes *** by neglecting or refusing to send a copy of the indictment to - 12 - the warden ***." There was no indictment. Moreover, the sheriff's records indicate that defendant's present attorney represented defendant at that time. The State made efforts through the prison's records office to obtain a record of any pending charges from NCIC, but was thwarted by the improper birth date obtained from defendant on October 13, 1993, when he arrived at LCI. Under the peculiar circumstances of this case, we cannot say that the State was negligent in failing to discover the pending complaint. Where there has been no satisfaction of the requirements of the statute (R.C. 2941.401), no prisoner's request, no knowledge by the warden, and a relatively short term of incarceration (as in this case, seven months), we will not read into the statute a purpose it was not intended to serve. "'[I]t was not the General Assembly's sole purpose in enacting the speedy trial statutes to reward those accused of criminal conduct for a prosecutor's lack of diligence.'" State v. Broughton (1991), 62 Ohio St.3d 253, 259. Once defendant was released from prison on May 19, 1994, the purpose behind application of R.C. 2941.401 was mooted. At that point, R.C. 2945.71 et seq. came into play. See State v. Thompson (1984), 19 Ohio App.3d 261, where this Court construed the similar language of R.C. 2963.30 (implementing the Interstate Agreement on Detainers) to only apply while the defendant remained in prison. At 264: Accordingly, we hold that under the Interstate Agreement on Detainers (R.C. 2963.30) a - 13 - defendant who is imprisoned in a sister state and has an indictment pending in Ohio, may make a request to appropriate Ohio authorities to be tried within one hundred eighty days. However, when such defendant is discharged from custody in the sister state prior to the expiration of one hundred eighty days, he loses the right to be tried by Ohio within one hundred eighty days. After being discharged his right to a speedy trial on the charges pending in Ohio is governed by R.C. 2945.71. Defendant also argues that he was entitled to a dismissal of the pending indictment pursuant to R.C. 2945.71(C)(2) which requires that any person against whom a felony charge is pending "shall be brought to trial within two hundred seventy days after his arrest." R.C. 2945.72 permits the speedy trial time to be extended by: (A) Any period during which the accused is unavailable for hearing or trial ***; (D) Any period of delay occasioned by the neglect or improper act of the accused; (E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; *** (H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than on the accused's own motion ***. The decision of this Court in State v. Todd (March 31, 1983), Cuyahoga App. No. 45383, unreported, provides guidance for the resolution of the defendant's claims. This Court stated: It has long been recognized that an individual's right to a "speedy trial" under Section 10, Article I of the Ohio Constitution and Sixth Amendment to the United States Constitution does not begin to accrue until an arrest or detention on a charge has been made. State v. Cross (1975), 48 Ohio App.2d 357. Thus, the right to a speedy trial in a criminal - 14 - prosecution means the right to have the charge on which the accused is detained heard speedily, and such right has no relation to the time of the filing of the complaint on which the charge is based. Id. at 358, citing Halcomb v. Eckle (1958), 110 Ohio App. 208, paragraph 1 of the syllabus. The issue presently raised by the State of Ohio to this reviewing court has been previously addressed in the case of State v. Bacsa (Ct. App. Cuy. Cty., June 3, 1982), unreported No. 43997. As in the instant action, the defendant-appellant was initially arrested on September 12, 1979 as a suspect in a homicide, however, was not formally charged with the crime. Appellant was thereafter released from custody the following day, with no formal charges having been initiated against him. On February 17, 1981, appellant was subsequently rearrested in connection with the above-stated homicide offense, and was brought to trial on May 28, 1981. Seeking a dismissal of these charges for failure to comply with the provisions of R.C. 2945.71, appellant raised the claim that the time period within which he was required under the terms of R.C. 2945.71 to be brought to trial had commenced as of the date of his initial September 12, 1979 arrest, thereby making his trial date beyond the speedy trial period as statutorily codified. Ruling appellant's claim incorrect, this court determined that an individual's right to a speedy trial does not arise until one is arrested for the particular offense from which he seeks discharge, State v. Bacsa, supra; and as the appellant's initial September 12, 1979 detention was for investigative purposes, without initiation of formal charges, application of R.C. 2945.71 was improper. In analogizing the holding of Bacsa to the case sub judice, the appellant, Michael Todd, was similarly arrested for investigative purposes on February 17, 1981, and released without formal charges having been initiated against him. As such, the trial court's - 15 - utilization of the initial February 17, 1981 arrest date in calculating whether R.C. 2945.71 speedy trial provisions had been met was an improper application of such statute's provisions. Accordingly, we find that appellant's assigned error is well taken, and we reverse and remand this matter to the trial court for further proceedings consistent with his opinion. Assuming as we must, that the 270 day time period began to run when defendant was arrested on the pending charge on May 19, 1994, the time period was suspended on July 12, 1994 when the defendant failed to appear in court for a scheduled hearing causing a capias to be issued. An accused who eludes the jurisdiction of a court waives his right to a speedy trial. State v. Bauer (1980), 61 Ohio St.2d 83, 84-85; State v. Gibson (1992), 75 Ohio App.3d 388, 391. The Bauer court held that where a defendant forfeits an appearance bond the speedy trial time is recalculated from the time of the rearrest. The issuance of a capias does more than toll the speedy trial time, it starts the time period anew. Bauer, supra; see, also, State v. Haynes (1982), 8 Ohio App.3d 119, 121. Since defendant was free on bail, the State had 270 days from the date of the defendant's rearrest on July 19, 1994 in which to bring him to trial. He was ultimately tried on May 2, 1995, 287 days following his rearrest. That time period was further tolled by defendant's filing of his motion to dismiss on August 18, 1994. State v. Bickerstaff (1984), 10 Ohio St.3d 62, 67 ("It is evident from a reading of the statute [R.C. 2945.72(E)] that a motion to dismiss acts to toll the time in which a defendant must be brought - 16 - to trial"). That motion was not decided until February 9, 1995. The statutory time period was also concurrently tolled by the seven continuances requested by the defendant during the course of proceedings and exemplified in the court's journal entries. State v. Mincy (1982), 2 Ohio St.3d 6, 7; State v. Harr (1992), 81 Ohio App.3d 244, 248; State v. Reuschling (1986), 30 Ohio App.3d 81, 82- 83. The delay in bringing the defendant to trial was caused in large part by defendant's own motions or requests for continuances. Defendant was not denied his right to a speedy trial under the Ohio statutes. The trial court did not err in denying defendant's motion to dismiss. Assignments of Error I and V are overruled. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO SENTENCE THE DEFENDANT FOR THE OFFENSES OF ATTEMPTED MURDER AND FELONIOUS ASSAULT WHEN THE JURY VERDICT FINDING THE DEFENDANT GUILTY OF AGGRAVATED ASSAULT EXPRESSLY REQUIRED A NOT GUILTY FINDING OF ATTEMPTED MURDER AND FELONIOUS ASSAULT. III. DEFENDANT WAS SUBJECT TO DOUBLE JEOPARDY WHEN THE COURT PROCEEDED TO SENTENCE THE DEFENDANT FOR THE GREATER OFFENSE AFTER THE JURY FOUND THE DEFENDANT GUILTY OF THE LESSER OFFENSE. Defendant claims that he was improperly convicted of felonious assault and attempted murder because the jury also found him guilty of aggravated assault. He argues that because the jury found defendant guilty of aggravated assault, there must have been an implicit acquittal on the two more serious charges and an exposure to double jeopardy by the three guilty verdicts. We find no merit - 17 - to these arguments. The jury did affirmatively find defendant guilty on the two more serious charges. An acquittal on those offenses cannot be implied from a finding of guilt on the lesser degree offense of aggravated assault. "[A]s statutorily defined, the offense of aggravated assault is an inferior degree of the indicted offense - felonious assault - since its elements are identical to those of felonious assault, except for the additional mitigating element of serious provocation." State v. Deem (1988), 40 Ohio St.3d 205, 210-211; State v. Whitt (1987), 31 Ohio App.3d 92; State v. Carter (1985), 27 Ohio App.3d 27. "Thus, in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation (such that a jury could both reasonably acquit defendant of felonious assault and convict defendant of aggravated assault), an instruction on aggravated assault (as a different degree of felonious assault) must be given." State v. Deem, supra, at 211. If the evidence of provocation was sufficient, there was no impropriety in submitting these related offenses to the jury or the verdicts returned. As R.C. 2941.04 states: An indictment *** may charge two or more different offenses connected together in their commission *** the defendant may be convicted of any number of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict. *** [a] verdict of acquittal of one or more counts is not an acquittal of any other count. See, also, R.C. 2945.74 and Crim. R. 31(C) which allow the jury to return verdicts on inferior degrees of the offense charged. - 18 - In any event, the trial court herein vacated the jury verdict of guilty on the aggravated assault charge. This effectively bars defendant's due process and double jeopardy arguments. This conclusion is compelled by State v. Bickerstaff (1984), 10 Ohio St.3d 62 where defendant pled guilty to grand theft and was convicted at trial of aggravated murder and robbery. The Court found no double jeopardy where the guilty plea was vacated: As a prelude to the first issue, we feel compelled to address whether appellant's guilty plea to grand theft invokes double jeopardy protection against the charges for aggravated robbery and aggravated murder based upon felony murder. It is well-established that the Double Jeopardy Clause prohibits the state from trying a defendant for a greater offense after a conviction of a lesser included offense. Brown v. Ohio (1977), 432 U.S. 161. However, in the case sub judice, we are not confronted with a previous conviction of a lesser included offense. Appellant no longer stands convicted of grand theft as the court of appeals vacated that portion of the jury's verdict. Notwithstanding that fact, we believe that appellant committed numerous crimes which were distinctly separate and her guilty plea to grand theft was nothing more than her election to sever a portion of a single prosecution. See Jeffers v. United States (1977), 432 U.S. 137. In reality, counsel has attempted to create an issue of double jeopardy where none had previously existed. In specifically addressing the first issue, appellant argues that Ohio's multiple-count statute as set forth in R.C. 2941.25 bars her convictions for grand theft, aggravated robbery, and aggravated murder. However, as previously stated, the appellate court vacated appellant's grand theft conviction. Therefore, - 19 - we need not address the issue of whether grand theft is a lesser included offense of aggravated robbery as in the absence of a cross-appeal by the prosecution the grand theft conviction is not before this court. Id. at 64-65. In the instant case, we find that the trial court's vacation of the aggravated assault conviction likewise removed any double jeopardy issue on this appeal. Finally, we note that the defendant's argument that the guilty verdict of the lesser degree offense of aggravated assault operated as an express acquittal of the other charges, is essentially a claim of inconsistent verdicts. This argument is without merit. Under the defendant's theory, before the jury could find defendant guilty of aggravated assault, it had to find that the State failed to prove some element of felonious assault. However, since both of these offenses contain identical elements, such a conclusion is inherently defective. The mitigating circumstance of provocation is the only factor that distinguishes felonious assault from aggravated assault. Deem, supra at 210; State v. Carter (1985), 23 Ohio App.3d 27, 32. The two charges are the same since the mitigating circumstances are not an element of the offense. State v. Muscatello (1978), 55 Ohio St.2d 201; State v. Whitt (1987), 31 Ohio App.3d 92, 94. Therefore, the jury's verdicts of guilty on both felonious assault and aggravated assault were not inherently inconsistent. - 20 - Even if we accept the defendant's premise that the verdicts were inconsistent, that does not entitle defendant to an implicit acquittal or a new trial. This Court recently addressed this issue in State v. Beehive Ltd. Partnership (1993), 89 Ohio App.3d 718, 728-29: Assume arguendo the verdicts of guilt against Beehive and acquitting the two individual defendants are inconsistent, this does not establish the evidence was insufficient to sustain Beehive's jury convictions. The fact that a jury returns inconsistent verdicts on several charges submitted to it does not demonstrate the evidence was insufficient as a matter of law to support the conviction or entitle the convicted defendant to be discharged or to obtain a new trial. See United States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461, and State v. Woodson, supra. The Supreme Court in Powell recognized this principle in the analogous context of inconsistent verdicts against a single individual on predicate and compound offenses, stating as follows: "*** The rule that the defendant may not upset such a verdict embodies a prudent acknowledgment of a number of factors. First, *** inconsistent verdicts - even verdicts that acquit on a predicate offense while convicting on a compound offense - should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusions on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury's error; the Government is precluded from appealing ***. "Inconsistent verdicts therefore present a situation where 'error,' in the sense that the jury has not followed the court's instructions, - 21 - most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact the government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course." (Emphasis added.) United States v. Powell, supra, 469 U.S. at 65, 105 S.Ct. at 476-477, 83 L.Ed.2d at 468-469. The Supreme Court concluded that appellate courts are bound to review such convictions, notwithstanding any inconsistency in the jury verdict, under traditional sufficiency of the evidence standards, stating as follows: "*** [A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with problems caused by inconsistent verdicts. Sufficiency-of-the- evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt." Id. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470. Under the circumstances, Beehive has failed to demonstrate the trial court erred by refusing to enter a judgment of acquittal or granting a new trial on its three jury convictions in the case sub judice. Defendant has not challenged the sufficiency of the evidence on this appeal and we find it clearly sufficient to support the convictions on the two major offenses. We also note that the instructions given to the jury concerning aggravated assault and self-defense were specifically requested by the defendant. Given defendant's own testimony that he did not stab the victim, that the pregnant cousin did, instructions on the lesser degree offense and self-defense were not - 22 - warranted and were erroneous. The provocation defense required for aggravated assault must be "sufficient to incite the person into using deadly force." R.C 2903.12(A). In the instant case, defendant denied he used any deadly force. "If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact, it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense." State v. Sage (1987), 31 Ohio St.3d 173, 176; State v. Solomon (1981), 66 Ohio St.2d 214, paragraph two of syllabus; State v. Leibold (March 11, 1993), Cuyahoga App. No. 62071, unreported. The plain sense of the matter is that defendant cannot testify that he did not stab the victim, somebody else did, and then ask the jury to find that he was provoked into stabbing him. Nevertheless, defendant clearly invited any error when he requested the lesser-included instructions. "The defense cannot invite error and later complain about its prejudicial effect on appeal." State v. Spirko (1991), 59 Ohio St.3d 1, 8. The defendant, who had invited the error by requesting erroneous instructions, also failed to object to or raise any question about inconsistent verdicts when they were returned and the jury was still available to correct any perceived "inconsistency." The erroneous verdict as to aggravated assault was vacated and does not rise to the level of plain error. The Ohio Supreme Court has made it clear that courts of appeals should take notice of - 23 - plain error with great caution only when the outcome of the trial clearly would have been different. State v. Long (1978), 53 Ohio St.2d 91. The standard for plain error is whether substantial rights of the accused are so adversely affected so as to undermine the fairness of the guilt determining process. State v. Swanson (1984), 16 Ohio App.3d 375. The aggravated assault confusion does not rise to the level of plain error in view of the overwhelming evidence of eye witness testimony against the defendant. Assignments of Error II and III are overruled. IV. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTOR DURING CLOSING ARGUMENTS. Defendant next argues that he was deprived of a fair trial because of prosecutorial misconduct. The test to determine whether there was prosecutorial misconduct is whether the remarks or actions were improper, and if so, whether they prejudicially affected substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160; see, also, State v. Slagle (1992), 65 Ohio St.3d 597, 607. The alleged misconduct of the prosecuting attorney during trial cannot be made a ground of reversible error unless the conduct is so egregious, in the context of the entire trial, that it renders the trial fundamentally unfair. State v. Keenan (1993), 66 Ohio St.3d 402; State v. DePew (1988), 38 Ohio St.3d 275. - 24 - In State v. Smith (1984), 14 Ohio St.3d 13, the Supreme Court stated that the prosecution is entitled to a degree of latitude in closing argument. The reviewing court must look at the nature of the remarks, whether an objection was made, whether corrective instructions were given, and the strength of the case against the defendant. State v. Hill (1977), 52 Ohio App.2d 393. Defendant asserts prejudice from the prosecutor's characterization of his testimony as "garbage" on two occasions in closing argument. Defendant's objections were overruled. While the comments were ill advised and are not condoned by this Court, their fleeting nature was not sufficient to taint the proceedings. The trial court instructed the jury, just prior to closing arguments that "*** arguments of counsel are not evidence. They should not be considered as evidence by you, but it is their attempt to recall the evidence as they see it to be ***." (Tr. 187). We cannot say that such remarks deprived defendant of a fair trial. Defendant also suggests that he was prejudiced by arguments that his own injuries were caused by a relative of the victim on a date after the crime. The prosecutor's comments were in response to the defense theory of self-defense where defendant claimed he suffered injuries fending off the victim. The testimony was in conflict on these issues. The prosecutor's comments were designed to give the jury a reasonable explanation for why and how such - 25 - injuries could have come about and to reconcile the injuries with the State's evidence. Defense counsel initiated the discussion of this issue at trial. He cannot now argue that the prosecutor's comments were improper where the issue was properly in front of the jury due to the defendant's own testimony. State v. Woodruff (1983), 10 Ohio App.3d 326; State v. Perry (July 13, 1995), Cuyahoga App. No. 67497, unreported. A review of the entire record has failed to demonstrate that defendant did not receive a fair trial. The jury was appropriately cautioned that the closing argument was not evidence and where the trial judge felt the prosecutor's comments went beyond the scope of closing argument, he sustained defendant's objections. Assignment of Error IV is overruled. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT SENTENCED THE DEFENDANT FOR THE OFFENSE OF FELONIOUS ASSAULT RATHER THAN MERGING IT AS REQUIRED BY LAW. Defendant claims to have been improperly sentenced on the felonious assault charge as well as on the conviction for attempted murder. The State has conceded that defendant's remaining convictions are for allied offenses of similar import, and as such, cannot stand simultaneously under R.C. 2941.25. It asks that the conviction for felonious assault be vacated and the conviction for attempted murder be affirmed. (Aplee's Brf. at 13). In State v. Huertas (1990), 51 Ohio St.3d 22, 28, the Supreme Court determined that when multiple sentences are imposed for - 26 - allied offenses, one of the sentences must be vacated. The decision upon which offense a defendant is to be sentenced is one to be made by the prosecution. State v. Redman (1992), 81 Ohio App.3d 821; State v. Weind (1977), 50 Ohio St.2d 224. Assignment of Error VI is sustained. Defendant's conviction and sentence for attempted murder is affirmed and the felonious assault conviction and sentence is vacated. - 27 - It is ordered that appellee and appellant share the costs herein equally. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, 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 DYKE, J., CONCUR. JAMES M. PORTER 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 .