COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70185 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : TREMAYNE A. BROWN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 24, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-329695 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 RHONDA M. O'NEAL, ESQ. BY: DONALD GREEN, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center 1200 West Third Street N.W. 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 and, TREMAYNE BROWN, Pro Se Lima Correctional Institution P.O.Box 4571, Lima, Ohio 45802 -3- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, Tremayne Brown, appeals his conviction for felonious assault and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITU- TION BY FAILING TO GIVE THE JURY AN INSTRUC- TION OF AGGRAVATED ASSAULT WHEN THE FACTS INDICATED SUFFICIENT EVIDENCE OF SERIOUS PROVO- CATION TO CONVICT APPELLANT OF THE INFERIOR DEGREE OFFENSE OF AGGRAVATED ASSAULT. II. TREMAYNE BROWN DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN HIS COUNSEL FAILED TO REQUEST JURY INSTRUCTIONS OR OBJECT TO THE JURY INSTRUCTIONS AS GIVEN BY THE COURT. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN IMPOSING THE MAXIMUM SENTENCE AND IN FAILING TO CONSIDER THE MITIGATING FACTORS THAT ARE MANDATED IN R.C. 2929.12. IV. APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE AS HIS CONDUCT WAS A VIOLATION OF DEFENSE COUNSEL'S ESSENTIAL DUTIES AND THEREFORE A VIOLATION OF APPELLANT'S SIXTH AMENDMENT RIGHTS TO COUNSEL WHEN THE TRIAL COURT LIMITED THE SCOPE OF AN ADEQUATE PREPARATION AND RELEASE OF DISCOVERY WAS ONE DAY PRIOR TO TRIAL. V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTED PURSUANT TO RULE 29(C), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT. 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. -4- On the evening of September 30, 1995, the Senior class of South High hosted a bowling party at Dunham Bowling Lanes in Maple Heights, Ohio. Marlon A. Williams and Elijah Brooks attended the bowling party together. Some time prior to the bowling party on school property, Brooks and Tremayne Brown had an argument. When Brooks and Brown made eye contact at the bowling party, they both threw up their hands and exited the bowling alley. The indication from their silence was that they were going to fight. Williams and several other students and former students followed. Once they were out in the parking lot, Brown and Brooks began to argue. Frank Allen, Jr., a teacher at South High School, came outside and pulled Brooks away because he believed the argument was going to escalate into a fight. Meanwhile, Williams interceded on Brooks' behalf and started arguing with Brown. Williams and Brown squared off and began to fight. Allen asked two of his students to break up the fight while he held on to Brooks, but they did not want to get involved. Williams threw Brown to the ground, straddled him, and began punching him. Williams stopped punching Brown and two other students held Brown down so Williams could get up. After Williams got up and walked away from the entrance to the bowling lanes, Brown got up and walked toward the entrance to the bowling lanes. Brown got a gun from Hugh G. Kidd, Jr. and fired six to nine shots in the direction of Williams who was standing approximately 50 to 60 feet away. Williams was struck twice, once in the leg and once in the shoulder. -5- Brown was indicted for four counts of felonious assault with specifications and one count of attempted murder. The case proceeded to a jury trial on one count each of felonious assault and attempted murder. The remaining three counts of felonious assault were dismissed prior to trial. The jury returned verdicts of guilty to felonious assault with specifications and not guilty to attempted murder. Brown was sentenced to 8 to 15 years with three years actual incarceration to be served consecutively. This appeal followed. In his first assignment of error, Brown argues the trial court erred by failing to give an instruction on aggravated assault. Brown claims aggravated assault was sufficiently presented by the evidence. He claims the evidence established serious provocation which is the core element of aggravated assault. We disagree. The failure to object or request a jury instruction consti- tutes waiver of any error, unless, but for the error, the outcome of the trial clearly would have been otherwise. See State v. Underwood (1983), 3 Ohio St.3d 12. See, also, Crim.R. 30(A). Error in the failure to give an instruction should not be predicated upon counsel's use of sound trial strategy. State v. McCullough (Aug. 17, 1995), Cuyahoga App. No. 67786, unreported (held failure to request instruction on aggravated assault sound trial strategy). It is reasonable trial strategy to argue self- defense and not request an instruction on a lesser offense. E.g. State v. Moore (1994), 97 Ohio App.3d 137, 149-150. In this case, defense counsel made the choice to focus his argument on self- -6- defense and elected not to seek an instruction on aggravated assault. Thus, any error associated with the failure to give an instruction on self-defense was waived. In oral argument, Brown argues an instruction should have been given, notwithstanding defense counsel trial strategy and the result would have been different. Aggravated assault, under R.C. 2903.12(A), is defined as follows: "No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordinance ***." Unless the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault should not be given. State v. Deem (1988), 40 Ohio St.3d 205. "Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force." Id. at 211. Even if defense counsel had requested an instruction on aggravated assault in this case, the trial court would have been proper in denying such an instruction because there was insufficient evidence of serious provocation and there is absolutely no evidence Brown acted "while under the influence of sudden passion or in a sudden fit of rage." Accordingly, we find no error in the trial court's -7- decision to not instruct the jury on the lesser offense of aggravated assault. In his second and fourth assignments of error, Brown argues he was denied effective assistance of counsel because defense trial counsel (1) failed to request an instruction on aggravated assault and, (2) failed to test the sufficiency of the indictment. In order to prove ineffective assistance of counsel, (1) a defendant must show that trial counsel failed to perform his duties reasonably and that, (2) but for trial counsel's unprofessional errors, the outcome of the trial would probably have been different. Strickland v. Washington (1984), 466 U.S. 668. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 142. "Judicial scrutiny of counsel's performance must be highly deferential. ***[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 698, quoting Michel v. Louisiana (1955), 350 U.S. 91 at 101. Brown argues defense counsel was ineffective because he did not seek an instruction on aggravated assault. In State v. McClinton (Jan. 14, 1993), Cuyahoga App. No. 61537, unreported, citing State v. Catlin (1990), 56 Ohio App.3d 75, this court provided: "In a case where there is a conflict in the testimony and the defendant has a reasonable hope that the jury will believe his evidence and return a verdict of not guilty, it is a matter of trial strategy whether to seek to have the jury instructed concerning a lesser -8- offense, or not to seek such an instruction and to hope for an acquittal. Such a deliberate strategy presents the jury with a choice between conviction of felonious assault and complete acquittal on the grounds of self-defense and deprives the jury of an opportunity to return a compromise verdict on the lesser included offense of aggravated assault.***" In this case, Brown and the other defense witnesses' testimony was in conflict with the testimony of the State's witnesses insofar as who was the aggressor. Brown testified he fired the gun into the ground to defend himself against an attack by Williams and a group of students coming toward him. Trial counsel for Brown did not seek an instruction for aggravated assault, but instead elected to seek an instruction on self-defense. Given the conflict in evidence, Counsel's decision to not seek an instruction was sound trial strategy. Although in retrospect this trial strategy may have proven to be ineffective, there is no indication defense counsel failed to provide adequate representation under the circumstances. Id. Accordingly, we hold Brown was not denied effective assistance of counsel. Brown also argues defense counsel was ineffective because the the sufficiency of the indictment was not "tested" and he failed to file a motion to dismiss. The recognized procedure for testing the sufficiency of an indictment and moving for dismissal in a criminal case is set forth in Crim.R. 29. Crim.R. 29 permits defense counsel the opportunity to move for a judgment of acquittal where the evidence presented by the State is insufficient as a matter of law. See State v. Bridgeman (1978), 55 Ohio St.2d 261. In this -9- case, defense counsel moved for a motion for judgment of acquittal at the close of the State's case, renewed the motion at the close of all of the evidence, but the motion was denied. Thus, counsel "tested" the sufficiency of the evidence as required by law. In his third assignment of error, Brown argues the trial court erred in imposing the maximum sentence for felonious assault because there is no indication the court considered the mitigating factors set forth under R.C. 2929.12. A trial court has broad discretion in sentencing matters and will not be reversed on appeal absent an abuse of discretion. E.g. Toledo v. Reasonover (1965), 5 Ohio St.2d 22. The factors set forth in R.C. 2929.12(C) must be considered in favor of imposing a shorter minimum term of imprisonment, but do not control the court's discretion. See State v. Rankin (1992), 82 Ohio App.3d 276, 281. Where a trial court, as in this case, imposes the maximum sentence within statutory limits, an appellate court should accord the trial court the presumption that it considered the statutory mitigating criteria in the absence of an affirmative showing that it failed to do so. State v. Crouse (1987), 39 Ohio App.3d 18 at first paragraph of the syllabus. See, also, State v. Adams (1988), 37 Ohio St.3d 295. In this case, defense counsel did not request a pre-sentence report. Nonetheless, he was given an opportunity to address the trial court before sentencing; he stated on the record that this was Brown's first offense and asked the court to be lenient in -10- consideration of the circumstances. Thus, absent an affirmative showing to the contrary, this court must presume the trial court considered the mitigating criteria set forth in R.C. 2929.12(C). In his fifth assignment of error, Brown argues the trial court erred in denying his motion for judgment of acquittal. A motion for judgment of acquittal will not be granted unless, after viewing the evidence in the light most favorable to the prosecution, the court determines that reasonable minds could reach different conclusions about whether each material element of the crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978), 55 Ohio St.2d 261. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319. Brown relies upon and maintains that he was acting "under the influence of sudden passion or in a sudden fit of rage" and, there- fore, should have only been convicted of aggravated assault. Aggravated assault under R.C. 2903.12 contains all of the elements of felonious assault under R.C. 2903.11, except for the additional mitigating element of serious provocation. See State v. Deem (1988), 40 Ohio St.3d 205. Thus, where there is sufficient evidence of aggravated assault, there is also sufficient evidence of felonious assault. R.C. 2903.11 provides the elements of felonious assault as follows: "(A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordinance -11- ***." In this case, there is no dispute Brown fired a gun, a deadly weapon, and caused serious physical harm to Marlon Williams after they had a fist fight. Thus, there was sufficient evidence to support a conviction for felonious assault. While the same evidence probably could have been used for consideration of the lesser offense of aggravated assault, that was not a part of defense counsel's trial strategy, and it is not the purview of the this court to second guess otherwise sound trial strategy. See Strickland, supra. 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. DYKE, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .