COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72300 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : DARRELL WHITE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-344237 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Elizabeth A. Hickey Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Daniel Scully Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: Darrell White, appellant, brings this appeal following his conviction after a jury trial for felonious assault, a violation of R.C. 2903.11. Following trial, appellant was sentenced to eight years incarceration. At trial, the prosecution called four witnesses: Walter Wilburn, the victim paralyzed by the assault; Cleveland Police Detective Joseph Williams; Eugene Pete Baugh, the owner of the Cozy Corner Bar outside which Wilburn was assaulted; and Rhonda Daniels, a friend of Wilburn's who witnessed the assault. Daniels testified that on the evening of July 26, 1996, she met appellant at the Cozy Corner Bar and called Wilburn to ask him for a ride home. Daniels stated that after Wilburn arrived, he went to talk with someone in the bar's poolroom. She said that when Wilburn came back, she saw him and appellant shake hands and apologize to each other. After that, Wilburn left the bar and went to his car parked near the entrance. When Wilburn got to his car, appellant attacked him and was joined by two other men who all beat and stomped Wilburn after he was knocked to the ground. Baugh testified that on the evening of July 26, 1996, he was summoned to the poolroom and that he and an employee broke up a fight between appellant and Wilburn. He stated that he told appellant, Samuel Oink Calhoun, and Albert Sonny Rankin to leave the bar and that they left. He said he advised Wilburn to wait a few minutes before leaving so that the situation would cool down. However, Wilburn left the bar and appellant attacked him at -3- his car, hitting Wilburn in the face and head. Baugh testified that he rushed to help Wilburn and that as he grabbed appellant, appellant threw Wilburn on the ground and into the street, and that Calhoun then kicked Wilburn in the head. Detective Williams testified that he investigated the assault, that he learned appellant's name by interviewing witnesses, and that appellant's only statement to him was that Rankin had nothing to do with the incident. Wilburn testified that he only remembered being attacked outside the bar. He could not recall the events leading up to the assault, did not know appellant, and could not remember being in a fight inside the bar. Wilburn stated that he was paralyzed from his neck down, had been hospitalized for four months, had had spinal surgery, had gained some use of his left arm and was able to take a few steps with the assistance of another person and a walker. I. Appellant's first assignment of error states: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INCLUDE THE WRITTEN INSTRUCTIONS IT SUPPLIED TO THE JURY IN THE RECORD OF THE CASE. After appellant filed his brief and assignments of error, the state moved this court to allow it to supplement the record with a copy of the written instructions to the jury. This court granted the state's motion. Because the record contains a copy of the written instructions given to the jury, appellant's first assignment of error is overruled as being moot. -4- II. Appellant's second and third assignment of error read: II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO REQUEST JURY INSTRUCTIONS WHICH WERE ESSENTIAL FOR THE JURY TO FIND IN FAVOR OF THE APPELLANT IN LINE WITH THE EVIDENCE PRESENTED AT TRIAL AND THE ARGUMENTS TRIAL COUNSEL SUBMITTED TO THE JURY. III. THE TRIAL COURT COMMITTED PLAIN ERROR IN VIOLATION OF R.C. 2945.10(G) BY SUBMITTING A WRITTEN CHARGE TO THE JURY WHICH OMITTED THE DEFINITION OF COMPLICITY IT HAD PREVIOUSLY GIVEN TO THE JURY IN ITS ORAL CHARGE, AND CONSEQUENTLY,ALSO COMMITTED PLAIN ERROR BY OMITTING ANY INSTRUCTION REGARDING THE CULPABLE MENTAL STATE REQUIRED FOR A CONVICTION AS AN AIDER AND ABETTOR IN THE WRITTEN INSTRUCTIONS. As appellant's arguments in both his second and third assignments of error concern the jury instructions, we will address them concurrently. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, syllabus paragraphs two and three read: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O. 3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Because there are numerous ways to represent a criminal defendant, there is a strong presumption that defense counsel's actions are `within the wide range of reasonable professional assistance.' -5- Bradley, 42 Ohio St.3d at 142, 538 N.E.2d at 379-80 (quoting Strickland, 466 U.S. at 689). R.C. 2945.10 reads in pertinent part: (G) The court, after the argument is concluded and before proceeding with other business, shall forthwith charge the jury. Such charge shall be reduced to writing by the court if either party requests it before the argument to the jury is commenced. Such charge, or other charge or instruction provided for in this section, when so written and given, shall not be orally qualified, modified, or explained to the jury by the court. Written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court and remain on file with the papers of the case. The court may deviate from the order of proceedings listed in this section. In this case, appellant's trial counsel objected to the inclusion of an instruction to the jury on complicity. However, counsel did not object to the court's actual instruction given to the jury. Accordingly, the standard of review to determine whether the court erred in its instructions to the jury is that of plain error. State v. Franklin (1991), 62 Ohio St.3d 118, 128, 580 N.E.2d 1, 9. In State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, the Ohio Supreme Court stated: Ordinarily, therefore, the failure to object to a jury instruction violative of R.C. 2901.05(A) constitutes a waiver of any claim of error relative thereto. Further, a jury instruction violative of R.C. 2901.05(A) does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. (Emphasis added.) -6- Appellant argues that his trial counsel was ineffective where he failed to request an instruction on the lesser included offense of assault, an instruction on the affirmative defense of termination, and an instruction specifically articulating the culpable mental state to be read in conjunction with the court's instruction regarding appellant's complicity in the felonious assault. Appellant also argues that the trial court committed plain error in its charge to the jury where its oral and written charge to the jury differed and where both the oral and written charge to the jury failed to include a clear instruction as to the requisite mens rea for the jury to find appellant was an accomplice in committing the crime of felonious assault. We first examine appellant's claim that his counsel was ineffective for failing to request an instruction for the jury on the lesser included offense of assault. The testimony in this case by both Daniels and Baugh indicates that appellant attacked Wilburn from behind, beat him repeatedly with his fists, and threw him to the ground and into the street. In closing argument, appellant's trial counsel stated: The simple fact of the matter is, Darrell did something he shouldn't have done. He went over and he punched this guy two or three times in the face and then flipped him out in the street. He shouldn't have done that. He assaulted him. But that's not what this case is about. This case is about felonious assault which is a different case than assault. You have to have serious physical harm inflicted by the defendant, not by somebody else. Appellant's counsel's obvious trial strategy was to convince the jury that appellant did not paralyze Wilburn, even though he -7- assaulted him; rather, Wilburn was paralyzed by Calhoun's kicks to the head. This line of argument is well within the range of reasonable professional assistance. Bradley, supra. Appellant cannot now claim that the failure to ask for an instruction which would insure a conviction for assault amounted to ineffective assistance. Appellant's argument that trial counsel erred by not requesting an instruction as to the defense of termination equally does not amount to ineffective assistance of counsel. The defense of termination is provided in R.C. 2923.03(E), which reads: (E) It is an affirmative defense to a charge under this section that, prior to the commission of or attempt to commit the offense, the actor terminated his complicity, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. (Emphasis added.) In this case, only Baugh's testimony indicates that appellant terminated the assault on Wilburn. Daniels' testimony indicates that appellant continued to kick Wilburn while he was on the ground. Appellant relies solely on Baugh's testimony that he terminated his involvement in the assault. However, there was no evidence presented at trial that appellant voluntarily ended the attack on Wilburn. R.C. 2923.03(E). Baugh testified that he pulled appellant away from Wilburn. Daniels testified that the attack on Wilburn subsided only after the attackers were told that the police had been called. Accordingly, appellant was not entitled to an instruction as to the defense of termination and as -8- such, his trial counsel was not ineffective by not asking the court for an instruction not supported by the evidence. Appellant argues that his trial counsel was deficient by failing to object and request proper instructions as to the content of the court's oral and written instructions on complicity. In its oral charge to the jury, the court stated: Knowingly. A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. Knowingly means that a person is aware of the existence of the fact and that his acts will probably cause a certain result or be of a certain nature. Since you cannot look into the mind of another, knowledge is determined from all the facts and circumstances in evidence. You'll determine from these facts and circumstances whether there existed at the time in question in the mind of the defendant an awareness of the probability that he was knowingly causing serious physical harm to Walter Wilburn. *** The State alleges that Darrell White aided and abetted others in the commission of the offense of felonious assault as charged in the indictment. One who aids and/or abets others in the commission of an offense is guilty of that offense. To aid means to help, assist, or strengthen. To abet means to encourage, counsel, incite, or assist. It is no defense to the charge of aiding and abetting that no person with whom the defendant was in complicity has been convicted as a principal offender. Complicity of the law means conduct of one who purposely and knowingly participates with another as a partner or as an accomplice with the purpose of committing a crime. Ladies and gentlemen, the defendant cannot be found guilty of having aided and abetted the commission of the crime of felonious assault unless the State proved beyond a reasonable doubt that the offense was actually committed. -9- *** Ladies and gentlemen, I cannot embody all of the law in any single part of these instructions. In considering one portion, you must consider it in light of and in harmony with all the instructions given to you. The written instructions given to the jury did not contain the following charge given orally: Complicity of the law means conduct of one who purposely and knowingly participates with another as a partner or as an accomplice with the purpose of committing a crime. The court's oral instructions, when taken as a whole, although not as clear and precise as possible, properly instruct the jury as to the law of complicity and as such are not in error. See, e.g., State v. Robinson (Oct. 24, 1995), Scioto App. No. 94CA2277, unreported ( [T]he trial court should have instructed the jury that it could find appellant guilty of either complicity or kidnapping, defined the terms, and restated the culpable mental state required for finding appellant guilty of aiding and abetting under Ohio's complicity statute. ) However, the written instructions given to the jury differ from the court's oral charge. The court impermissibly modified the written charge given to the jury. As appellant's trial counsel did not object to the change, for this error to be noticed by this court, it must be as plain error and this error must make it obvious that the outcome of the trial would have been different. See, Long, supra. In this case, the jury rendered a general verdict of guilty; it is not known whether it found that appellant committed the crime of felonious assault by himself or whether he aided and abetted -10- Calhoun in committing the crime of felonious assault. Although the written charge lacked a definitive statement of complicity and a clear statement of the requisite mens rea of the crime, Daniels' testimony indicates that the jury could have found that appellant fully participated in the entirety of the savage beating inflicted upon Wilburn and thus was guilty of felonious assault. Additionally,if Baugh's testimony is believed in its entirety and Daniels' is disregarded, the jury could have found that appellant's attack resulting in Wilburn lying in the street bleeding and unconscious constituted, in and of itself, the crime of felonious assault. For these reasons, we cannot say that the difference in the oral and written instructions constitutes plain error as it is not obvious that the outcome of the trial would have been different had the jury been perfectly and properly instructed. Appellant's second and third assignments of error are overruled. Judgment affirmed. -11- 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. JOSEPH J. NAHRA PRESIDING JUDGE KARPKINSKI, J., and ROCCO, J., CONCUR. 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 .