State v. Bouie , 2019 Ohio 4579 ( 2019 )

[Cite as State v. Bouie, 2019-Ohio-4579.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108095
v. :
DEON BOUIE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 7, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-625670-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Eben McNair, Megan A. Helton, and Owen M.
Patton, Assistant Prosecuting Attorneys, for appellee.
Stephen L. Miles, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Deon Bouie, appeals his convictions. He raises
three assignments of error for our review:
1. The appellant’s convictions were against the manifest weight of the
evidence.
2. The trial court erred by not instructing the jury on aggravated
assault.
3. The appellant received ineffective assistance of counsel.
Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
On February 13, 2018, a Cuyahoga County Grand Jury indicted Bouie
for one count of attempted murder, a felony of the first degree, in violation of R.C.
2923.02 and R.C. 2903.02(A); four counts of felonious assault, felonies of the
second degree, in violation of R.C. 2903.11(A)(2); one count of felonious assault, a
felony of the second degree, in violation of R.C. 2903.11(A)(1); one count of domestic
violence, a felony of the fourth degree, in violation of R.C. 2919.25(A); one count of
having weapons while under a disability, a felony of the third degree, in violation of
R.C. 2923.13(A)(3); and one count of tampering with evidence, a felony of the third
degree, in violation of R.C. 2921.12(A)(1). The counts for attempted murder,
felonious assault, and domestic violence all carried one- and three-year firearm
specifications.
Bouie pleaded not guilty to the indictment, and the case proceeded to
a jury trial in December 2018. Bouie waived his right to a jury trial on the weapons-
disability charge, which was heard by the bench. The following evidence was
presented at trial.
On the evening of January 31, 2018, Shawnelle Howard was driving
around with her cousin, Jamie Manning, and two friends, Nancy Jo Robinson and
Demetrius Solomon.1 Solomon was sitting in the front passenger seat of the vehicle.
Around 11:00 p.m., Howard received a call from Bouie, who is the father of Howard’s
child. Howard said that she and Bouie had an “off and on” relationship, but that
their relationship was “on” in January 2018. Howard explained that at that time,
she and Bouie lived together in a house on E. 144th Street in Cleveland, Ohio, but
Bouie did not have a key to the house. Bouie called Howard so that she would come
to the house and unlock the door for him. Howard told Bouie that she would “be
there shortly.” Howard also testified that she did not tell Bouie who was in the car
with her and that she was not romantically involved with Solomon.
When Howard and the others arrived at the house on E. 144th Street,
Howard parked her car in the driveway, which was to the right of the home, left the
driver’s side door open, and walked up to the front door. When she reached the
front door, Howard said that Bouie came out of the house. Howard and Bouie “got
into an altercation verbally” and Bouie “was trying to get past [Howard], like trying
to move [her] out of the way so he [could] get to the car.” Bouie was angry that
Solomon was in Howard’s car. Howard said that she and Bouie “were tussling” near
1 Robinson did not cooperate with police and would not give a statement.
her car when she “collapsed” and “saw darkness.” The next thing that Howard
remembered was Bouie “screaming in [her] face” and asking her where she had been
shot. She also remembered Bouie trying to put her in her car. Howard did not
remember hearing gunshots before she collapsed. She testified, however, that she
did not see a gun in Bouie’s hands because “[she] was in his hands.” When asked if
she believed Bouie was acting in self-defense, Howard said, “I would say so, I mean,
but I didn’t see him shoot, so — I didn’t see him shoot so I can’t say I saw him acting
in self-defense.”
On cross-examination, Howard stated that although she spoke to
Bouie a number of times while he was in jail, he never told her to lie. She said they
spoke about her injuries and about their son during those calls.
Detective John Freehoffer interviewed Howard at the hospital. He
said that Howard told him that Solomon was acting in self-defense. He included
that fact in his report. Howard testified that when Detective Freehoffer came to the
hospital to take her statement, she had just awoken from a medically induced coma
and did not remember speaking to him. Howard also denied telling Detective
Freehoffer at the hospital that Solomon shot in self-defense and said that the
detective would be lying if he said she told him that.
Detective Freehoffer stated that he later interviewed Howard when
she was in a rehabilitation center. He said that Howard’s version of events was not
consistent with what she originally told him at the hospital. He also said that
Howard was hostile toward him during the interview. She refused to give Detective
Freehoffer a recorded statement.
Manning’s version of the events differed from Howard’s version.
According to Manning, she did not think that Bouie and Howard were still in a
relationship as of that night “because of an incident” that occurred two weeks
previously. Manning did not think that Bouie was living with Howard because
Howard had recently changed the locks to the home. Manning also thought that
Howard and Solomon were together because she heard Howard call him “baby” in
the car.
Manning testified that when Bouie called Howard that night, she
heard Howard tell Bouie who was in the car with her. Manning also stated that she
did not think that Bouie would still be at the house when they arrived because she
heard Bouie tell Howard that he had already left. Manning believed that they were
going to stop by the house, Howard was going to unlock the door, and then they
would leave.
According to Manning, when Howard reached the front door to
unlock it, Bouie walked out of the house. Manning said Howard “turned right
around, came down the stairs” and that “Bouie followed her.” Manning testified that
Howard and Bouie were talking, but that she could not hear what they were saying.
Manning stated that Bouie followed Howard to the vehicle’s driver-side door, was
“right behind [Howard],” and reached over Howard and started firing into the car
towards the front seat where Solomon was sitting.
Manning testified that she had not seen Solomon with a gun prior to
that moment, that she did not hear anyone say anything threatening or provocative
to Bouie, and that Bouie just came up to Solomon and started shooting first.
Manning said that immediately after Bouie began shooting, Howard turned toward
Bouie and tried to stop him. Manning testified that Solomon began shooting back
toward Bouie. Manning did not see where Howard was when Solomon returned
fire. Manning said that Bouie moved towards the back of the vehicle, and Bouie and
Solomon continued shooting at each other through the car.
Manning testified that Solomon got out of the car and ran down the
street while Solomon and Bouie were still shooting at one another. She said that
when the shooting finally stopped, she went to Howard, who was lying on the ground
next to the vehicle. Manning stated that Howard told her she had been shot and
could not feel her legs. Manning called 911.
Manning testified that Bouie hung around the scene and was talking
to another man until the ambulance showed up, which is when he walked to the
house across the street.
Manning initially told police that when she heard gunshots, she put
her head down and did not see who fired first. Manning testified that she lied to
police and told them that because Bouie “was still on the scene somewhere close
enough to that vicinity [and she] didn’t want him [to] see [her] talking to any police
at that time.” Manning later returned to police headquarters and gave a written
statement.
During cross-examination, Manning explained that she knew Bouie
and previously dated Bouie’s brother. She also agreed that she never liked Bouie
very much based on what Howard told her. She also said that she had not talked to
Howard since she visited her in the hospital in January because Howard did not
want her to testify.
Bouie testified that he was living with Howard on E. 144th Street on
January 31, 2018, and that after doing laundry at his mother’s house, he returned
home to find the door locked. He said he called Howard and that she told him she
would come back to unlock the door for him. He said Howard did not tell him that
she was with anybody else and that he did not know Solomon.
Bouie testified that when Howard arrived and he saw Solomon in the
car, he started walking toward the car to make Solomon get out of the car and leave.
Bouie said that Howard tried to stop him from walking past her toward the car, and
that as he was trying to get past her, “shots rang out.” Bouie testified that he got shot
in his left shoulder and that he ran to the back of the car. Bouie said that Solomon
continued shooting at him through the back window. Bouie stated that he had a 9
mm gun and that as Solomon was “running off” shooting, he fired back at Solomon.
Bouie testified that he shot “probably three or four” times, but that Solomon shot
first. He said he had no intention of shooting Solomon when he walked toward the
car and that he only shot to defend himself and Howard.
After Solomon left, Bouie said he ran over to help Howard and tried
to put her in the car. Bouie testified that Manning and Robinson were present as
well as his friend, Kirk White, who lived directly across the street. Bouie testified
that he was at the scene when the ambulance arrived. Bouie said that he was also
still on scene when police arrived and that he told an officer the direction in which
the shooter had run. Bouie said that he then crossed the street and went to White’s
house to try to bandage his arm. Bouie testified that he left his gun at White’s house
and had his mother pick him up and take him to the hospital.
When police went to the hospital to talk to Bouie, Bouie was not
cooperative. Bouie initially denied being at the scene during the shooting. When
asked how he got shot, Bouie told police that he had been shot during a robbery on
Quincy Avenue.
On cross-examination, Bouie admitted that he lied to the police at the
hospital. He also admitted to telling different versions of what occurred that night.
Bouie said that he was scared and under the influence of pain medicine at the
hospital when police came to speak to him.
Bouie later gave a recorded statement to police, which was played in
court. In the recording, Bouie told police that he and Solomon had a disagreement.
Bouie stated that Solomon shot him and Howard. Bouie said that he was not arguing
with Howard at that time, but that Howard was trying to tell him that she and
Solomon were just friends. Bouie said that Solomon started shooting at him as he
was walking out of the house. When officers asked Bouie if he had a firearm on him
when he came out of the house, Bouie said he did not and that he ran back inside
the house to retrieve a gun after Solomon started shooting at him. Bouie stated that
when he came outside, Solomon was running down the street. Bouie also told police
that he was not sure if he “hit” Solomon and said that he did not start shooting at
Solomon until Solomon started running away. Bouie also told police that he did not
know how many times he fired the gun and that he left the gun at the scene.
Bouie admitted that he had a felony record, including drug
trafficking, burglary, domestic violence, endangering children, assault of a police
officer, and resisting arrest.
White testified that he lived with his girlfriend across the street from
Bouie and Howard. White said that he knew Bouie, but did not know Howard.
White was with his girlfriend around midnight when he heard gunshots. He looked
outside and saw a “couple of people” arguing across the street, including Bouie,
another man, and Howard. White testified that he saw Solomon start shooting first,
Howard get shot, and Bouie start shooting back. White then saw Solomon run down
the street, and he then went outside to help Bouie put Howard in the car. White saw
that Bouie had been shot in his arm and after the ambulance arrived but before the
cops arrived, he had Bouie come back to his girlfriend’s house to help him with his
arm. White testified that Bouie asked him if he would “be able to hold the gun for
[Bouie] because he was going to the hospital.” White said that Bouie left for the
hospital before the cops arrived.
When police first talked to White in his girlfriend’s home, he “was
very evasive” and hid the gun from police. When police returned a short while later,
White left the house and told police that he did not have the gun. When he tried to
walk away, however, police stopped him and White gave them the gun, a semi-
automatic Glock 9 mm. White was arrested for carrying a concealed weapon.
When asked about a voluntary statement that he gave to police in
which he said that Howard was already on the ground when he looked out the
window, White said that he actually saw the shooting occur.
Police took photos of the crime scene, including pictures showing
spent shell casings from a 9 mm gun and a .45-caliber gun. Police recovered the 9
mm Glock from White (the one that Bouie gave to White to hold for him when he
went to the hospital) but they never found the .45-caliber gun. Police found spent
shell casings from the .45-caliber gun near the driver’s door of Howard’s car and
inside the vehicle, on the floor of the front passenger seat, and near the front center
console. They found 9 mm shells on the ground behind the vehicle and one on the
street. The driver’s side window of Howard’s car and the rear passenger side window
were shattered.
A firearms and tool-mark examiner testified that he authored a report
on a 9 mm gun and the spent shell casings found at the scene. He said that based on
his analysis, the 9 mm was operable. He further stated the .45-caliber shell casings
were fired from the same unknown .45-caliber gun and that the 9 mm shell casings
were from the 9 mm Glock seized from White.
The jury found Bouie guilty of felonious assault of Solomon with the
one- and three-year firearm specifications and tampering with evidence. The jury
found Bouie not guilty of the remaining counts. The court found Bouie guilty of
having weapons while under a disability.
The trial court sentenced Bouie to six years on the base charge of
felonious assault to be served consecutive to the one- and three-year firearm
specifications, which merged into a three-year term. It also sentenced him to 36
months for his conviction for having weapons while under a disability and 36
months for tampering with evidence. The trial court ordered that the sentences for
the base charges run concurrent to one another, giving Bouie an aggregate sentence
of nine years. The trial court advised Bouie that he was subject to a three-year
mandatory term of postrelease control and advised him of the consequences of
violating that postrelease control. The trial court also waived Bouie’s costs.
It is from this judgment that Bouie now appeals.
II. Law and Analysis
A. Manifest Weight of the Evidence
In his first assignment of error, Bouie argues that his conviction for
felonious assault was against the manifest weight of the evidence.
A challenge to the manifest weight of the evidence tests whether the
prosecution has met its burden of persuasion. State v. Thompkins, 78 Ohio St. 3d
380, 388, 678 N.E.2d 541 (1997). On review from a manifest-weight challenge, the
appellate court is tasked with reviewing all of the evidence in the record and in
resolving the conflicts therein, determining whether the trier of fact “‘clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Id. at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The discretionary power to grant
a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Id.
Bouie argues his conviction for felonious assault against Solomon was
against the manifest weight of the evidence because (1) the evidence showed he was
acting in self-defense and (2) the only witness to testify that Bouie fired his gun first,
Manning, was unreliable and provided contradictory testimony.
R.C. 2903.11(A)(2), the felonious-assault statute, states, “No person
shall knowingly * * * [c]ause or attempt to cause physical harm to another by means
of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the
Revised Code.”
In Ohio, self-defense is an affirmative defense that a defendant must
prove by a preponderance of the evidence.2 R.C. 2901.05(A); State v. Williford, 49
2 The General Assembly amended R.C. 2901.05 through Am.Sub.H.B. 228, which was
effective on March 28, 2019. The amended statute now places the burden of proof of self-
defense to the state. The statute states:
(A) Every person accused of an offense is presumed innocent until proven
guilty beyond a reasonable doubt, and the burden of proof for all elements
of the offense is upon the prosecution. The burden of going forward with
the evidence of an affirmative defense, and the burden of proof, by a
preponderance of the evidence, for an affirmative defense other than self-
defense, defense of another, or defense of the accused's residence as
described in division (B)(1) of this section, is upon the accused.
(B)(1) A person is allowed to act in self-defense, defense of another, or
defense of that person’s residence. If, at the trial of a person who is accused
Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). To succeed on a claim of self-defense,
a defendant must establish the following three elements: (1) no fault in creating the
situation giving rise to the affray; (2) a bona fide belief that he or she was in
imminent danger of death or great bodily harm and that the only means of escape
from such danger was in the use of force; and (3) no violation of any duty to retreat
or avoid the danger. State v. Barnes, 94 Ohio St. 3d 21, 24, 759 N.E.2d 1240 (2002).
Specifically, as to the third element, “[b]efore using deadly force in self-defense, a
person must first use any reasonable means of retreat when attacked outside the
confines of his or her own home.” State v. Reynolds, 10th Dist. Franklin No. 18AP-
560, 2019-Ohio-2343, ¶ 39, citing State v. Johnson, 10th Dist. Franklin No. 06AP-
878, 2007-Ohio-2792, citing State v. Thomas, 77 Ohio St. 3d 323, 673 N.E.2d 1339
(1997).
Here, the jury was free to believe or not believe that Bouie was at fault
in creating the situation. Manning testified that Bouie was at fault in creating the
situation, specifically, that Bouie fired his gun first. While Manning’s testimony was
contradicted by Howard’s and Bouie’s testimony as well as by the fact that only 9
of an offense that involved the person’s use of force against another, there
is evidence presented that tends to support that the accused person used the
force in self-defense, defense of another, or defense of that person’s
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another, or
defense of that person’s residence, as the case may be.
Nevertheless, the statute’s changes were not effective at the time of Bouie’s trial and he
makes no argument that those changes should be applied retroactively.
mm fired cartridges were found at the back of the vehicle, the jury heard those
discrepancies and still convicted Bouie of felonious assault against Solomon.
Even if the jury believed Bouie and found that Solomon shot first, it
was still free to reject Bouie’s claim of self-defense because Bouie testified that he
fired “three or four” shots at Solomon as Solomon ran down the street away from
the scene and while still shooting at Bouie. In other words, Solomon was retreating
at the time Bouie fired his gun multiple times. Once Solomon was running away,
i.e., retreating, Bouie had a duty to stop firing his gun at Solomon because the
evidence did not show that he had a bona fide belief that he was in imminent danger
of death or great bodily harm and that his only method of escape was to use deadly
force. Therefore, Bouie cannot show that the only means of escape from such danger
was to shoot at Solomon or that he had no reasonable means of retreat at the time
he used deadly force. Accordingly, we cannot say that this is the exceptional case in
which the evidence weighs heavily against Bouie’s conviction for felonious assault,
and we overrule Bouie’s first assignment of error.
B. Jury Instructions
In his second assignment of error, Bouie argues that the trial court
erred by not instructing the jury on aggravated assault, an offense of an inferior
degree to felonious assault.
We initially note that Bouie did not request a jury instruction on
aggravated assault at trial. Accordingly, Bouie has waived all but plain error. State
v. Edgerson, 8th Dist. Cuyahoga No. 101283, 2015-Ohio-593, ¶ 15.
Under Crim.R. 52(B), a plain error affecting a substantial right may
be noticed by an appellate court even though it was not brought to the attention of
the trial court. However, an error rises to the level of plain error only if, but for the
error, the outcome of the proceedings would have been different. State v. Harrison,
122 Ohio St. 3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio
St.2d 91, 97, 372 N.E.2d 804 (1978). “Notice of plain error * * * is to be taken with
the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” Long at 97.
Felonious assault is defined in R.C. 2903.11 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 ordnance, as defined in section 2923.11 of
the Revised Code.
(B) Whoever violates this section is guilty of felonious assault, an
aggravated felony of the second degree.
Aggravated assault is defined in R.C. 2903.12 as follows:
(A) 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 ordnance, as defined in section 2923.11 of
the Revised Code.
(B) Whoever violates this section is guilty of aggravated assault, a
felony of the fourth degree.
As statutorily defined, the offense of aggravated assault is an inferior
degree of felonious assault “since its elements are identical to those of felonious
assault, except for the additional mitigating element of serious provocation.” State
v. Deem, 40 Ohio St. 3d 205, 210-211, 533 N.E.2d 294 (1988). Put simply, the
difference between the elements of aggravated and felonious assault is provocation
involving sudden passion or fit of rage. State v. McDuffie, 8th Dist. Cuyahoga No.
100826, 2014-Ohio-4924, ¶ 22. “When a person inflicts physical harm on another
as a result of severe provocation, the law views their criminal culpability less
severely.” Id.
“A jury instruction should be given for an inferior offense, ‘if under
any reasonable view of the evidence, and when all of the evidence is construed in a
light most favorable to the defendant, a reasonable jury could find that the
defendant had established by a preponderance of the evidence the existence of one
or both of the mitigating circumstances.’” State v. Livingston, 8th Dist. Cuyahoga
No. 88714, 2007-Ohio-3664, ¶ 5, quoting State v. Rhodes, 63 Ohio St. 3d 613, 617-
618, 590 N.E.2d 261 (1992).
Further, “it has been held that in most cases, jury instructions on both
self-defense and serious provocation are inconsistent.” State v. Crim, 8th Dist.
Cuyahoga No. 82347, 2004-Ohio-2553, ¶ 14. This is because “[t]he mental states of
fear as required for self-defense and rage as required for aggravated assault are
incompatible.” State v. Smith, 8th Dist. Cuyahoga No. 100204, 2014-Ohio-2057,
¶ 52.
“[I]n a trial for felonious assault, where the defendant presents
sufficient evidence of serious provocation, an instruction on aggravated assault must
be given to the jury.” Deem, 40 Ohio St. 3d 205, 533 N.E.2d 294 (1988), at paragraph
four of the syllabus. To warrant an instruction on aggravated assault, a defendant
must show that he or she acted under serious provocation. Id. at ¶ 23-24.
“‘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.’” Smith at ¶ 43, quoting State v. Horton, 9th Dist.
Summit No. 26407, 2013-Ohio-3902, ¶ 52. R.C. 2903.12 also states that a defendant
must act “while under the influence of sudden passion or in a sudden fit of rage.”
In State v. Mack, 82 Ohio St. 3d 198, 694 N.E.2d 1328 (1998), the
Ohio Supreme Court reiterated that an objective standard must be applied to
determine whether the alleged provocation is reasonably sufficient to bring on a
sudden passion or fit of rage, meaning that the provocation must be “sufficient to
arouse the passions of an ordinary person beyond the power of his or her control.”
Id. at 201. If this objective standard is met, then the inquiry shifts to a subjective
standard to determine whether the defendant in the particular case ‘“actually was
under the influence of sudden passion or in a sudden fit of rage.”’ Id., quoting State
v. Shane, 63 Ohio St. 3d 630, 590 N.E.2d 272 (1992).
Courts have found that an instruction on aggravated assault is not
warranted when defendants fail to provide evidence that they acted while under the
influence of sudden passion or in a sudden fit of rage. Compare State v. Walker, 2d
Dist. Montgomery No. 25741, 2014-Ohio-1287, ¶ 7 (appellant testified that he “was
never angry” and only scared, so counsel was not deficient for failing to request
instruction on aggravated assault); Horton at ¶ 53 (appellant only testified that he
“feared for the safety of [another,]” which was not enough to warrant aggravated
assault instruction); Crim, 8th Dist. Cuyahoga No. 82347, 2004-Ohio-2553, at ¶ 13-
14 (because the appellant (1) failed to demonstrate that he was provoked by the
victims’ actions, (2) testified that he was not in a fit of rage, and (3) said he “was not
angry and was cool, calm and collected” when he shot at the victims, the trial court
did not err in failing to instruct the jury on aggravated assault) with State v. Bostick,
9th Dist. Summit No. 25853, 2012-Ohio-5048, ¶ 10-13 (appellant testified that he
“flipped and saw red,” which was evidence that the appellant was under the
influence of sudden passion or a fit of rage); State v. Smith, 168 Ohio App. 3d 141,
2006-Ohio-3720, 858 N.E.2d 1222, ¶ 55-57 (1st Dist.) (testimony showed that
defendant “looked angry and upset” and indicated that defendant’s anger “escalated
into rage, terror, or furious hatred” so the trial court should have instructed the jury
on aggravated assault as to one of the shootings that defendant allegedly
committed).
Further, “fear alone is not a basis for establishing the mitigating
circumstances of aggravated assault.” Livingston, 8th Dist. Cuyahoga No. 88714,
2007-Ohio-3664, at ¶ 11, citing Mack.
At trial, the following exchange occurred during Bouie’s testimony:
COUNSEL: He shot first, right?
BOUIE: Yes, sir.
COUNSEL: And the only reason you shot was what? Why did
you shoot?
BOUIE: Well, I shot because I had to defend myself and I
was defending — I was defending myself and of
course my kid’s mother.
In other words, Bouie said he shot at Solomon to defend Howard and
himself, not because he was in a rage or out of sudden passion. At best, his testimony
shows he shot out of fear, which is not sufficient to warrant an aggravated assault
instruction. Livingston at ¶ 11. Therefore, the facts of this case did not warrant an
instruction on the inferior offense of aggravated assault because there was no
evidence that Bouie was under a sudden passion or fit of rage.
Accordingly, we overrule Bouie’s second assignment of error.
C. Ineffective Assistance of Counsel
In his third assignment of error, Bouie argues that his trial counsel
was ineffective for failing to request an instruction for aggravated assault.
The defendant carries the burden of establishing a claim of ineffective
assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064,
1998 Ohio App. LEXIS 491, 19 (Feb. 12, 1998), citing State v. Smith, 3 Ohio App. 3d
115, 444 N.E.2d 85 (8th Dist.1981). To gain reversal on a claim of ineffective
assistance of counsel, a defendant must show that (1) his “counsel’s performance
was deficient,” and (2) “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). The first prong of Strickland’s test requires the defendant to show “that
counsel’s representation fell below an objective standard of reasonableness.” Id. at
688. Strickland’s second prong requires the defendant to show “a reasonable
probability that but for counsel’s errors, the proceeding’s result would have been
different.” State v. Winters, 8th Dist. Cuyahoga No. 102871, 2016-Ohio-928, ¶ 25,
citing Strickland.
While “[t]he right to counsel is the right to the effective assistance of
counsel,” “trial strategy or tactical decisions cannot form the basis for a claim of
ineffective counsel.” Id. at 686, citing McMann v. Richardson, 397 U.S. 759, 90
S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. Sanchez, 8th Dist. Cuyahoga No. 103078,
2016-Ohio-3167, ¶ 26, citing Strickland and quoting State v. Foster, 8th Dist.
Cuyahoga No. 93391, 2010-Ohio-3186. “Judicial scrutiny of defense counsel’s
performance must be highly deferential.” Sanchez at ¶ 8, citing Strickland.
“Failure to request instructions on lesser-included offenses is a
matter of trial strategy and does not establish ineffective assistance of counsel.”
State v. Griffie, 74 Ohio St. 3d 332, 333, 658 N.E.2d 764 (1996). “Specifically, ‘when
a defendant puts on a defense of self-defense, an instruction on the inferior degree
offense could have been perceived by the jury as contradictory to the self-defense
theory’ [and] ‘it could confuse the jury to argue that the defendant acted in fear for
his life but also was provoked and acted in a fit of rage.’” State v. Mendoza, 10th
Dist. Franklin No. 16AP-893, 2017-Ohio-8977, ¶ 84, quoting State v. Levonyak, 7th
Dist. Mahoning No. 05 MA 227, 2007-Ohio-5044. Therefore, “‘it is a trial strategy
for counsel to choose to go solely with the self-defense theory and not request an
inferior degree offense,’ and ‘trial strategies, even debatable ones, do not constitute
ineffective assistance of counsel.’” Id., quoting Levonyak.
After review of the record, we find that Bouie failed to demonstrate
that his counsel performed deficiently in not requesting an instruction on the
inferior offense of aggravated assault. As we stated with respect to Bouie’s second
assignment of error, there was no evidence to show that Bouie acted in sudden
passion or a fit of rage that would warrant such an instruction. In fact, the evidence
showed, at best, that Bouie acted in fear of his life and to defend Howard and himself
from Solomon’s gunfire, which would support the self-defense instruction that his
counsel requested and the trial court gave at trial. Therefore, his counsel’s decision
to not request an inferior-offense instruction that generally is held to be inconsistent
with a self-defense instruction and that was not supported by the evidence does not
constitute ineffective assistance of counsel, and we overrule Bouie’s third
assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant 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 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.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR