COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70361 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : WILLIAM BLANCHARD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 5, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-258783 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DIANE SMILANICK, ESQ. DONALD GREEN, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, William Blanchard, appeals a decision by the trial court convicting him of two counts of felonious assault and sentencing him accordingly. Blanchard assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION BY FAILING TO GIVE THE JURY AN INSTRUCTION ON AGGRAVATED ASSAULT WHEN THE FACTS INDICATED SUFFICIENT EVIDENCE OF SERIOUS PROVOCATION TO CONVICT APPELLANT OF THE INFERIOR DEGREE OFFENSE OF AGGRAVATED ASSAULT. II. WILLIAM BLANCHARD WAS 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. 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. After attending a wedding reception on October 12, 1990, Kenneth Epps, his mother, Evelyn Epps, and her fiance, Roy Lusby, went to the West 25th Street area for drinks. Evelyn Epps and Lusby went into the Gypsy bar while Kenneth Epps went to the Comet bar. Defendant-appellant, William Blanchard, was also at the Comet bar. At about 2:00 a.m., Evelyn Epps was ready to leave. She sent Lusby into the Comet to get Kenneth Epps so they could return home together. Once there, Lusby saw his sister, Taffey, a dancer at the Comet. As Lusby, Taffey and Kenneth Epps were leaving the Comet, Blanchard grabbed Taffey's arm. An argument ensued between -3- Lusby and Blanchard. Kenneth Epps stepped between the two men. Thereafter, Blanchard hit Kenneth Epps on the head with a beer bottle. When the bottle shattered, Lusby was cut on the face by flying glass. The cut required 40 stitches. Kenneth Epps suffered a scratch and a bump on the head. Blanchard was later arrested and charged with two counts of felonious assault. At trial, Kenneth Epps testified he believed Blanchard was trying to hit Lusby when he swung the bottle. Blanchard said he swung the bottle in a defensive gesture after Lusby raised his fist and threatened to beat him up. He also said he was blind in one eye and did not see Kenneth Epps. Lusby denied threatening Blanchard. The jury convicted Blanchard of both felonious assault counts and sentenced him to concurrent terms of four to fifteen years in prison. This appeal followed. In Blanchard's first assignment of error, he asserts it was plain error for the trial court not to instruct on aggravated assault. We disagree. It is undisputed that Blanchard did not request an aggravated assault instruction. His requested instruction, which was granted, was self-defense. Nevertheless, Blanchard argues he was prejudiced because "but for" the failure to request an aggravated assault instruction the outcome of the case would have been different. State v. Underwood (1983), 3 Ohio St.3d 12. See also, Crim.R. 30(A). The record in this case does not support Blanchard's position. -4- In fact, Blanchard's sole testimony was that he was defending himself when he struck Lusby. He did not testify directly or indirectly as to any perceived provocation, sudden rage, or extreme stress or sudden passion suffered by him and brought on by Lusby. Consequently, we conclude there is no plain error. We turn next to Blanchard's second assignment of error. There he asserts it was ineffective assistance of counsel for his attorney to fail to request an aggravated assault instruction. For there to be ineffective assistance of counsel, the defense must show the action of defense counsel was unreasonable and the defendant was prejudiced by that unreasonable behavior. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136. Blanchard argues the defense's failure to ask for aggravated assault was not a trial strategy since both felonious assault and aggravated assault have the same elements with the exception of the mitigating factors component of aggravated assault. Consequently, Blanchard claims in every case of felonious assault and aggravated assault, regardless of the self-defense argument, the defense counsel should ask for an instruction on aggravated assault; failure to do so, he claims, is ineffective. We disagree. Here, Blanchard had to show he met the mitigating factors and was entitled to the aggravated assault instruction, which he did not do. Blanchard's defense was that he "swung [Lusby's] way in a defensive gesture" because he thought he was going to be beaten up. Blanchard's version of the events showed, at best, that Lusby was -5- about to start a fistfight with him. His testimony revealed that he swung his arm in a defensive gesture because he feared being beaten up, not because he was enraged or extremely stressed due to Lusby's words or actions. The facts of the record showed no words or action by Lusby. Blanchard's assignment of error is overruled. Judgment affirmed. -6- 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 journalization of this court's announcement of decision by the .