COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70990 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION CHRISTOPHER A. BALDITT : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-336476. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John Gallagher Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Donald Green Assistant County Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., C.J.: Defendant-appellant Christopher Balditt appeals from his conviction of one count of felonious assault in violation of R.C. 2903.11. The appellant was sentenced to a term of incarceration of five to fifteen years, fined $7,500, and ordered to pay costs. On the evening of November 10, 1995, or early in the morning of November 11, 1995, Ronald Morlan was stabbed by the appellant during an altercation which occurred at a BP gasoline station located at West Boulevard and Lorain Avenue in Cleveland, Ohio. The events preceding this fight were testified to for the prosecution by Rachael Weisenseel, Crystal Deal, Holly Braun, Joshua Pucher and Ronald Morlan. The appellant presented the testimony of Kelly Webb, Michael Capp, and Nathaniel Vallo. Weisenseel, Deal, Braun, Pucher, Morlan, Webb and Capp were present at the altercation. The individuals who were present at the time of the incident essentially agreed that a series of confrontations occurred throughout the evening between Weisenseel, Deal, and Braun, on the one side, and Kelly Webb and two other juvenile females on the other side. Each side was at some point joined by young men. The two groups met, either by accident or design, at the BP station. The original physical fight occurred between Joshua Pucher and Michael Capp. According to the State's witnesses, Ronald Morlan was blindsided by the appellant and stabbed in the back. The rendition of the appellant's witnesses of the events that evening - 3 - differed, but all involved agreed that some form of altercation occurred between the appellant and the victim. Shortly after the fight, Mr. Morlan was taken to MetroHealth Medical Center by an EMS unit. The treating physician, Dr. Mark Malangoni, testified that the victim suffered a perforated lung and was hospitalized for five days. The appellant sets forth one assignment of error: CHRISTOPHER BALDITT 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 ACCEPT A JURY INSTRUCTIONS (SIC) FOR AGGRAVATED ASSAULT OFFERED BY THE TRIAL JUDGE. The appellant asserts that he was rendered ineffective assistance of counsel by counsel's failure to ensure that a jury instruction was given for the inferior offense of aggravated assault. The appellant points out that in State v. Deem (1988), 40 Ohio St.3d 205, the Supreme Court found aggravated assault to be an inferior degree offense of felonious assault when the defendant presents sufficient mitigating evidence of serious provocation to incite or arouse a defendant into using deadly force. The appellant argues that such evidence was presented, and due to the absence of a jury instruction on the lesser offense, a manifest miscarriage of justice has occurred. The appellee argues that not only did the appellant's trial counsel vigorously defend his client, but that counsel's failure to request a jury instruction was a matter of trial strategy. - 4 - To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.3d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. Pursuant to R.C. 2945.74 and Crim.R. 31(C), a jury may consider three groups of lesser offenses on which, when supported by the evidence at trial, it must be charged and on which it may reach a verdict: 1) attempts to commit the crime charged, if such an attempt is an offense at law; 2) inferior degrees of the indicted offense; or 3) lesser included offenses. Deem, supra, at syllabus 1. An offense is an inferior degree of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements. Deem, supra, at syllabus 2. - 5 - On the other hand, an offense may be a lesser included offense of another if 1) the offense carries a lesser penalty than the other; 2) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and 3) some element of the greater offense is not required to prove the commission of the lesser offense. Deem, supra, at syllabus 3. Thus, while the court enunciated differences in the definitions of "lesser included offense" and of "an offense of an inferior degree," the court made equally clear that it considers both within the category of lesser offenses. Deem, syllabus 1. In the recent case of State v. Griffe (1996), 74 Ohio St.3d 332, the Supreme Court has once more held that "failure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45." In the case sub judice, trial counsel failed to ensure that a jury instruction on a lesser offense was given to the jury. As in Griffe, supra, this failure to request instructions on inferior offenses is also a matter of trial strategy. The appellant'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. KENNETH A. ROCCO, J., and AUGUST PRYATEL, J., (*) CONCUR. (*) August Pryatel, Retired Judge of the Eighth District Court of Appeals, Sitting by Assignment. JAMES D. SWEENEY CHIEF JUSTICE 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 .