State v. James

[Cite as State v. James, 2022-Ohio-2040.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110812
v. :
DJUAN D. JAMES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: June 16, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-653750-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Brandon A. Piteo and Frank R. Zeleznikar,
Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Djuan James (“James”), appeals his
convictions for aggravated menacing and aggravated assault, which is the inferior
offense of felonious assault. For the following reasons, we affirm the aggravated
menacing convictions, vacate the aggravated assault conviction, and remand for a
new trial on the felonious assault charge.
I. Facts and Procedural History
In October 2020, James was charged in a three-count indictment.
Count 1 charged him with felonious assault in violation of R.C. 2903.11(A)(2) and
Counts 2 and 3 charged him with aggravated menacing in violation of
R.C. 2903.21(A). The charges stem from an incident at the defendant’s and victims’
(J.S. and J.K.) apartment complex. The matter proceeded to a jury trial in July 2021,
at which the following relevant evidence was adduced.
On October 8, 2020, James and J.K. were drinking in the morning at
J.S. and J.K.’s apartment in the Garden Valley housing complex in Cleveland, Ohio.
James lived in the same complex but in a different building. J.K. testified that before
James arrived at her apartment, James vomited in the stairwell landing located on
the floor below her apartment. James told J.K. that he just threw up on the landing
because “[h]e wasn’t feeling well.” (Tr. 514, July 8, 2021.) They proceeded to drink
together for a period of time before James left the apartment.
Sometime later in the evening, a neighbor knocked on J.K.’s door and
advised that someone had vomited. J.K. told her neighbor that it was James. She
then went into the hallway and observed her neighbor and another neighbor. A few
minutes later, James came walking up the stairs. They told James to clean up his
mess. J.K. testified that J.S., the father of her child, came home while they were all
standing in hallway. J.K. then went to her apartment and brought out a mop and
bucket, which contained previously used mop water, for James to clean up the
vomit. While J.K. was inside, she told J.S. that James said, “I’ll kill your man.” (Tr.
501, July 8, 2021.) When J.K. returned with the mop and bucket, James, who was
still in the stairwell, told J.K., “I don’t want to use that dirty water.” (Tr. 500, July
8, 2021.) J.K. replied, “fine,” and proceeded to kick the mop bucket, causing water
to splash. (Tr. 501, July 8, 2021.)
J.S. came outside as J.K. was cleaning up the vomit. J.K. testified that
after she finished cleaning up the mess, J.S. and the other neighbors were still in the
hallway talking. She happened to turn around and observe James come “flying from
the second floor with a knife.” (Tr. 502, July 8, 2021.) Everyone began to run. J.S.
flung J.K. inside their apartment, grabbed the mop, and used it to fight off James.
James was swinging the knife, saying “I’ll kill you all mother f******.” (Tr. 503,
July 8, 2021.) A struggle ensued between James and J.S. outside the apartment
door. J.K. testified that she was able to get J.S. into the apartment and they shut
and locked the door. James continued to kick and beat on the door. J.K. called 911,
the call was played for the jury. In the call, J.K. tells the dispatcher that there is a
man, whom J.K. identified as James, with a knife trying to cut people and kill her
“baby daddy,” whom J.K. identified as J.S.1
One of the responding police officers testified that she obtained
James’s statement and noted that he was “clearly intoxicated.” James also admitted
1 Based on the testimony presented at trial, the knife James used was either a
pocket knife or a kitchen knife that he retrieved from his ex-girlfriend’s apartment, which
was located adjacent to the area being mopped.
to the responding police officers that he had charged at the victims after wielding a
knife. James’s admission was captured on the officer’s body camera video, which
was played for the jury. The officers found a pocketknife in James’s right, front
pocket. The officers arrested James for felonious assault and aggravated menacing
based on the victims’ and James’s statements.
James testified on his own behalf. He testified that on the day in
question, he was drinking with J.K. at her apartment. He left J.K.’s apartment,
without telling anyone, went into the hallway and vomited. James stated, “I think I
had some bad chicken[.]” (Tr. 643, July 9, 2021.) He then returned to J.K.’s
apartment for a period of time. Afterwards, he went back home and slept. Around
5:00 p.m., James returned to J.K.’s building. He observed J.K. in the hallway with
another male. James testified that when J.K. brought out the mop and bucket, she
was angry and “started slinging the mop.” (Tr. 646, July 9, 2021.)
He further testified that J.K. then “kicked the bucket [and] [t]hat’s
when the water got on me.” (Tr. 646, July 9, 2021.) James then went to his ex-
girlfriend’s apartment which was on the second floor. When he came back out, J.K.
was on the landing. James testified, J.K. “got the mop * * * just splashing like this[.]
Just splashing it right in my face.” (Tr. 647, July 9, 2021.) James then said, “That’s
it.” (Tr. 647, July 9, 2021.) James admitted to brandishing his knife during the
altercation and once J.K. and J.S. were inside the apartment, he pounded on their
door, saying “I’m going to hurt both of you mother —.” (Tr. 650, July 9, 2021.)
James testified that he only pulled out the knife after J.S. confronted him with the
mop.
During the trial court’s jury instructions, the court included an
instruction on aggravated assault, the inferior-degree offense of felonious assault. It
is unclear from the record who requested that jury charge. Thereafter, the jury
returned guilty verdicts on aggravated assault and the two counts of aggravated
menacing. The trial court sentenced James to an 18-month term of imprisonment
on the aggravated assault, with up to three years of discretionary postrelease control,
and six months on each of the aggravated menacing counts. The court ordered that
all the counts run concurrent to each other, and that James receive 306 days of jail
time credit.
James now appeals, raising the following four assignments of error
for review:
Assignment of Error I: The trial court committed plain error by
instructing the jury to consider the inferior offense of aggravated
assault upon a finding of not guilty as to felonious assault.
Assignment of Error II: There was insufficient evidence produced
at trial to support a finding of guilt on all counts.
Assignment of Error III: The trial court erred by finding the
defendant guilty against the manifest weight of the evidence.
Assignment of Error IV: [James] was denied the effective
assistance of counsel in his trial.
II. Law and Analysis
A. Inferior Offense — Aggravated Assault
In the first assignment of error, James argues that the trial court erred
by instructing the jury to consider the inferior-degree offense of aggravated assault
after finding him not guilty of felonious assault. We note that throughout the trial,
the aggravated assault offense was treated as a lesser-included offense of the
felonious assault, as charged in Count 1, with the trial court referring to the
aggravated assault as a “lesser inferior offense.”
Both James and the state of Ohio concede that the trial court’s
instructions were erroneous and acknowledge that neither party objected to this
erroneous instruction. Therefore, we review for plain error.
Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
Notice of plain error under this rule is to be taken with the utmost caution, under
exceptional circumstances, and only to prevent a manifest miscarriage of justice.
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus. In order to establish plain error, James must demonstrate that, but for the
error, the outcome of the trial would have been different. State v. Payne, 114 Ohio
St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17, citing State v. Hill, 92 Ohio St.3d
191, 749 N.E.2d 274 (2001). As a result, the sole issue in the instant case, is whether
the error in the jury instructions affected the outcome of trial.
In State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), the Ohio
Supreme Court distinguished between a lesser-included offense and an offense that
is an “inferior degree” of the indicted offense. “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.” Id. at
paragraph two of the syllabus, citing R.C. 2945.74 and Crim.R. 31(C).
An offense may be a lesser included offense if (i) the offense carries a
lesser penalty than the other; (ii) the greater offense cannot, as
statutorily defined, ever be committed without the lesser offense, as
statutorily defined, also being committed; and (iii) some element of the
greater offense is not required to prove the commission of the lesser
offense.
Id. at paragraph three of the syllabus, citing State v. Kidder, 32 Ohio St.3d 279, 513
N.E.2d 311 (1987).
With regard to felonious assault and aggravated assault, our court has
stated:
It is well settled that aggravated assault is not a lesser-included offense
of felonious assault. Instead, aggravated assault is an inferior degree of
felonious assault because its elements are identical to or contained
within the offense of felonious assault, coupled with the additional
presence of one or both mitigating circumstances of sudden passion or
a sudden fit of rage brought on by serious provocation occasioned by
the victim. State v. Searles, 8th Dist. Cuyahoga No. 96549, 2011-Ohio-
6275, citing State v. Logan, 10th Dist. Franklin No. 08AP-881, 2009-
Ohio-2899, citing State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294(1988); see also R.C. 2903.12.
State v. Martin, 2018-Ohio-1098, 109 N.E.3d 652, ¶ 8 (8th Dist.); see State v.
Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, ¶ 15-24 (8th Dist.).
Here, the trial court instructed the jury on the inferior-degree offense
of aggravated assault as follows:
Ladies and gentlemen, you must consider the offense charged in the
indictment, felonious assault. You must consider that charge.
If you find that the State proved beyond a reasonable doubt all the
essential elements of the offense of felonious assault, your verdict must
be guilty as charged.
If you find that the State failed to prove beyond a reasonable doubt all
the essential elements of felonious assault, then your verdict must be
not guilty of that offense.
You will continue your deliberations to decide whether the State has
proved beyond a reasonable doubt all the essential elements of the
inferior offense of aggravated assault.
If all of you are unable to agree on a verdict of either guilty or not guilty
of felonious assault, then you will continue your deliberations to decide
whether the State has proved beyond a reasonable doubt all the
essential elements of the inferior offense of aggravated assault.
The offense of aggravated assault is distinguished from felonious
assault as applied to this case. The elements of the crime of felonious
assault are essentially identical to the elements of aggravated assault
except for the additional ingredient which I’m about to discuss.
The felonious assault statute provides that no person shall knowingly
cause or attempt to cause physical harm to another by means of a
deadly weapon.
The aggravated assault statute also provides that no person shall
knowingly cause or attempt to cause physical harm to another by
means of a deadly weapon.
However, aggravated assault is an inferior degree of the offense of
felonious assault due to an additional element in mitigation.
Aggravated assault is distinguished from felonious assault by the
presence of sudden passion or sudden fit of rage on the part of the
defendant brought on by serious provocation occasioned by the victim.
(Tr. 712-713, July 9, 2021.)
James, relying on Ruppart, Martin, and State v. Bosley, 9th Dist.
Summit No. 15547, 1992 Ohio App. LEXIS 5206 (Oct. 7, 1992), argues that the
foregoing jury instruction is erroneous because a not guilty verdict to felonious
assault should have precluded any consideration of aggravated assault. The state
argues that these cases are distinguishable. We agree with James and find these
cases persuasive and instructive. In fact, these cases address the essence of the issue
in the instant case.
In Ruppart, we relied on Bosley, and held that a finding of not guilty
of felonious assault necessarily precluded a finding of guilty of aggravated assault.
We stated that to be found guilty of aggravated assault as an inferior offense of
felonious assault, the trier of fact must first find that the state proved the elements
of felonious assault beyond a reasonable doubt. Only then does the trier of fact
consider whether the defendant proved the mitigating factor of serious provocation
by a preponderance of the evidence. If the trier of fact finds that the defendant
proved the mitigating circumstance, then the trier of fact can find a defendant guilty
of aggravated assault. Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d
627, at ¶ 33-38, citing 2 Ohio Jury Instructions, CR Section 503.11(A)(14) (2009).
We reasoned that the instructions incorrectly directed the jury to
consider aggravated assault only if it found that the state had not proven all the
elements of felonious assault, as opposed to the correct instruction which would be
to consider aggravated assault only if it found that the state had proven all of the
elements of felonious assault. We quoted the Ohio Jury Instructions for a more
appropriate instruction:
“(A) If you find that the state failed to prove beyond a reasonable doubt
that the defendant knowingly (caused serious physical harm to [insert
name of victim]) (caused or attempted to cause physical harm to [insert
name of victim] by means of a deadly weapon or dangerous ordnance),
then you must find the defendant not guilty.
(B) If you find that the state proved beyond a reasonable doubt that the
defendant knowingly (caused serious physical harm to [insert name of
victim]) (caused or attempted to cause physical harm to [insert name
of victim] by means of a deadly weapon or dangerous ordnance), and
you find that the defendant failed to prove by the greater weight of the
evidence that he/she acted while he/she was under the influence of
sudden passion or in a sudden fit of rage, either of which was brought
on by serious provocation occasioned by the victim that was reasonably
sufficient to incite the defendant into using deadly force, then you must
find the defendant guilty of felonious assault.
“(C) If you find that the state proved beyond a reasonable doubt that
the defendant knowingly (caused serious physical harm to [insert name
of victim]) (caused or attempted to cause physical harm to [insert name
of victim] by means of a deadly weapon or dangerous ordnance), but
you also find that the defendant proved by the greater weight of the
evidence that he/she acted while under the influence of sudden passion
or in a sudden fit of rage, either of which was brought on by serious
provocation occasioned by the victim that was reasonably sufficient to
incite the defendant into using deadly force, then you must find the
defendant guilty of aggravated assault.” 2 Ohio Jury Instructions
(2009), Section 503.11(A)(14).
The comment to this section states, “The Committee recommends that
the judge read the appropriate verdict form with each alternative and
instruct the jury that it may not sign more than one verdict form on this
Count.
Id. at ¶ 34-37.
In Martin, we relied on Ruppart and held:
[s]imply put, a finding of not guilty of felonious assault necessarily
precludes a finding of guilty of aggravated assault as an inferior offense
of felonious assault. Accordingly, when the trial court found [the
defendant] not guilty of felonious assault, it could not, as a matter of
law, find him guilty of aggravated assault.
Martin, 2018-Ohio-1098, 109 N.E.3d 652, at ¶ 14.
Similarly, we find that the trial court erred in the instant case when it
instructed the jury that they should consider the charge of felonious assault and then
consider the charge of aggravated assault regardless of whether they found
defendant not guilty of felonious assault. Instead, the court should have instructed
the jury to consider the inferior offense of aggravated assault only if it found that the
state had proven all the elements of felonious assault. Because a not guilty finding
of felonious assault precludes a guilty finding of aggravated assault as an inferior
offense of felonious assault, James could not have been convicted of aggravated
assault. Id..
We recognize that noticing plain error is a discretionary function of
appellate review. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.2d
860, ¶ 22. Based on the facts of this case, we conclude that a miscarriage of justice
occurred when the jury found James guilty of aggravated assault since it could not
do so, as a matter of law, when it found him not guilty of felonious assault. Indeed,
the outcome of the trial would have been different if the trial court gave the jury the
proper instruction.
Accordingly, the first assignment of error is sustained. James’s
conviction for aggravated assault is vacated and the matter is remand for a new trial
on Count 1 (felonious assault).
B. Sufficiency and Manifest Weight of the Evidence
In the second and third assignments of error, James claims his
convictions are based on insufficient evidence or, in the alternative, are against the
weight of the evidence because there was no evidence that James intended to cause
harm to the victims. In light of our disposition of the first assignment of error, our
discussion regarding the second and third assigned errors will be limited to the
aggravated menacing convictions.
1. Sufficiency of the Evidence
In reviewing a sufficiency challenge, “‘[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.’” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
James argues that the state “failed to establish that his actions were
animated by the intent to cause harm to anyone, a fundamental element of the
crimes charged.” To sustain a conviction for aggravated menacing, the state had to
prove, beyond a reasonable doubt, that James “knowingly cause[d] another to
believe that [he] will cause serious physical harm to the person[.]” R.C. 2903.21(A).
A review of the record in the instant case reveals that James admitted
that he charged at the victims while brandishing a knife, telling the victims that he
intended to “kill” them. The victims testified to being in fear of James’s threats and
retreated to their apartment and locked the door to thwart the attack. Based on this
testimony, there is sufficient evidence in the record to sustain the aggravated
menacing convictions. When viewing this evidence in a light most favorable to the
state, any rational trier of fact could have found the essential elements of aggravated
menacing proven beyond a reasonable doubt.
2. Manifest Weight of the Evidence
A claim that a verdict is against the weight of the evidence involves a
separate and distinct test that is much broader than the test for sufficiency. State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In
contrast to sufficiency of the evidence, “[w]eight of the evidence concerns ‘the
inclination of the greater amount of credible evidence’[.]” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594
(6th Ed.1990). While “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight
of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at
386-387. “In other words, a reviewing court asks whose evidence is more persuasive
— the state’s or the defendant’s?” Id. The reviewing court must consider all the
evidence in the record, the reasonable inferences, and the credibility of the witnesses
to determine “‘whether in resolving conflicts in the evidence, 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.’” Thompkins at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 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.’” Thompkins at 387, quoting
Martin at 175.
James challenges the credibility of the witnesses, arguing that the
victims’ testimony was not credible because the pocketknife that was recovered by
the police differed from the kitchen knife description given by the victims. We note
that a verdict is not against the weight of the evidence solely because the jury heard
inconsistent testimony. State v. Rodriguez, 8th Dist. Cuyahoga No. 109320, 2021-
Ohio-2580, ¶ 29, citing State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387.
‘“The trier of fact may take note of any inconsistencies and resolve them,
accordingly, choosing to believe all, none, or some of a witness’s testimony.’” Id.,quoting State v. Shutes, 8th Dist. Cuyahoga No. 105694, 2018-Ohio-2188, ¶ 49.
Here, the jury heard testimony from the victims that James attacked them with a
knife. They also heard James testify that he pulled out his knife after he was
splashed with the dirty mop water and confronted by J.S. with the mop. The jury
chose to believe the victims’ testimony. Based on the record, we cannot say that the
jury clearly lost its way. Therefore, we find that the aggravated menacing
convictions are not against the weight of the evidence.
Accordingly, the second and third assignments of error are overruled.
C. Ineffective Assistance of Counsel
In the fourth assignment of error, James claims that his trial counsel
rendered ineffective assistance by focusing on a claim of self-defense throughout
“the entire trial” instead of trying to disprove James’s intent to cause harm.
According to James, because the trial court denied his motion to instruct the jury on
self-defense, he has conclusively proven that trial counsel pursued the wrong
defense at trial.
To establish ineffective assistance of counsel, James must
demonstrate that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The failure to prove either prong of this two-part test makes it unnecessary
for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52 (2000), citing Strickland at 697.
James’s arguments are predicated on an assumption that trial
counsel’s “entire trial strategy” was focused on setting up a claim of self-defense.
According to James, when the trial court denied the motion to instruct the jury,
James’s trial strategy had to shift, causing the jury to render a prejudicial verdict
based on its consideration of contradictory defense theories. James, however,
provides no citations from the trial transcript demonstrating that the sole trial
strategy was to prove self-defense as required by App.R. 16(A)(7). Furthermore,
James’s own testimony was the basis of the self-defense request. James failed to
demonstrate how the request for this instruction negatively impacted the trial. As a
result, we cannot conclude that James was deprived of a fair trial.
Therefore, the fourth assignment of error is overruled.
III. Conclusion
James’s convictions for aggravated menacing are affirmed. James’s
conviction for aggravated assault, the inferior offense of felonious assault, is vacated,
and the matter is remanded for a new trial on this count.
Accordingly, judgment is affirmed in part, vacated in part, and the
matter remanded for a new trial on Count 1 (felonious assault).
It is ordered that appellant and appellee share 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.
______
MARY J. BOYLE, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
SEAN C. GALLAGHER, A.J., DISSENTS IN PART WITH SEPARATE OPINION
ATTACHED
SEAN C. GALLAGHER, A.J., DISSENTING IN PART:
The majority decision to reverse the conviction and remand for a new
trial is transforming a simple error into a structural error, relieving the defendant of
the burden of demonstrating substantial prejudice and a manifest miscarriage of
justice as a result of the error. Because this contravenes Ohio Supreme Court
precedent and is based on arguments not presented by James in this appeal, I
dissent in part. I would affirm the convictions.
James’s argument elevates a simple jury-instruction error into
structural error devoid of any discussion of the substantial rights prejudice that
affects the outcome of the proceeding or creates a miscarriage of justice. Structural
errors are errors that “‘affect[] the framework within which the trial proceeds, rather
than simply [being] an error in the trial process itself.’” State v. West, Slip Opinion
No. 2022-Ohio-1556, ¶ 25, quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-
297, 802 N.E.2d 643 ¶ 17, State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789
N.E.2d 222, ¶ 9, and Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246,
113 L.Ed.2d 302 (1991). Structural errors require reversal irrespective of any other
consideration. Id.Without a doubt there is an error in the trial process. The sole
question is whether that error has been demonstrated to affect James’s substantial
rights and resulted in a manifest miscarriage of justice under Crim.R. 52(B).
Tellingly, James was unable to present an argument to demonstrate either such
point. He seems content to focus on the error itself and presume the rest.
App.R. 16(A)(7).
Under plain error review, it is James’s obligation to demonstrate that
the error not only affected his substantial rights, but created a miscarriage of justice.
West, Slip Opinion No. 2022-Ohio-1556, at ¶ 2, citing Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, at ¶ 24. And even then, this court has discretion
as to whether to notice any such error. Instead of undertaking that analysis, the
majority simply finds error and declares that the error affected a substantial right
creating a miscarriage of justice despite James’s failure to present any analysis or
discussion on the entirety of the standard of review. See, e.g., State v. Rogers, 2013-
Ohio-3235, 994 N.E.2d 499, ¶ 46 (8th Dist.), overruled by Rogers (finding plain
error based in part on the fact that the error could only be corrected through an
ineffective assistance of counsel claim for failing to timely raise the merger issue).
The majority decision is essentially creating structural error not subject to plain
error review at the expense of West and Rogers, at ¶ 3-5 (the Eighth District erred
by shifting the burden away from the defendant to demonstrate plain error).
This is not a criticism of this particular result, as will be further
discussed. Other panels from this district sent us down this path; today’s decision
arguably demonstrates the ubiquity with which panels find plain error despite the
failure to object or demonstrate substantial prejudice or a manifest miscarriage of
justice. Be that as it may, it is time we as a district recognize the plain error standard
in this particular situation instead of responding by reversing every conviction in
which the same error arises, in effect declaring the existence of structural error when
a trial court improperly handles an inferior offense during trial.
In the first assignment of error, James claims that the trial court erred
by instructing the jury to consider the inferior-degree offense of aggravated assault
after finding him not guilty of felonious assault. Throughout the trial, the aggravated
assault offense was treated as a lesser included offense of the felonious assault, as
charged in Count 1 of the indictment, with the trial court referring to the aggravated
assault as a “lesser inferior offense.” At no point did James ever object to the trial
court’s characterization of the issue or the instruction at issue, forfeiting the error
for appellate review.
There was an error in the proceeding in this case, on that there is no
doubt.
Lesser included offenses are distinct from inferior-degree offenses.
In determining whether an offense is a lesser included offense of a greater offense,
“a court shall consider whether one offense carries a greater penalty than the other,
whether some element of the greater offense is not required to prove commission of
the lesser offense, and whether the greater offense as statutorily defined cannot be
committed without the lesser offense as statutorily defined also being committed.”
State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 26. “An
offense qualifies as a lesser included offense when ‘the greater offense as statutorily
defined cannot be committed without the lesser offense as statutorily defined also
being committed.’” State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166
N.E.3d 1142, ¶ 8, quoting Evans at ¶ 26. “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, 40 Ohio
St.3d 205, 533 N.E.2d 294 (1988), at paragraph two of the syllabus. An inferior-
degree offense, on the other hand, shares elements that are identical to or contained
within the greater offense, except for one or more additional mitigating elements.
Id. at paragraph two of the syllabus, citing Crim.R. 31(C) and R.C. 2945.74; see also
Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, at ¶ 14.
In other words, a lesser included offense shares the same elements of
the greater offense except for the deletion of an aggravating element, the absence of
which lessens the severity of the offense, whereas the inferior-degree offense shares
the same elements as the greater offense with the inclusion of an additional
mitigating factor that lessens the severity of the offense. This distinction leads to
two different procedural processes with respect to jury instructions and verdicts in
general.
The trial court in this case instructed the jury on the inferior-degree
offense of aggravated assault mimicking the standard-form jury instruction for
lesser included offenses. 2 Ohio Jury Instructions, CR Section 425.09 (2020).2 This
lesser included offense instruction recognizes the possibility that an offender can be
2 “The Ohio Jury Instructions, while not binding legal authority, are helpful as an
example of the generally accepted interpretation of the aggravated burglary statute in
Ohio.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 97
(Lanzinger, J., dissenting).
simultaneously acquitted of the greater offense while being found guilty of the lesser
included offenses. State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988),
paragraph two of syllabus (A jury instruction on a lesser included offense “is
required only where the evidence presented at trial would reasonably support both
an acquittal on the crime charged and a conviction upon the lesser included
offense.”). In that situation, the jury could find the absence of proof on the
aggravating element in finding the offender not guilty of the greater offense, and
therefore, a finding of guilt on the lesser included offense remains a possibility.
Unlike a lesser included offense, an inferior-degree offense includes a
mitigating element not shared with the greater offense — thus the defendant must
necessarily have been found guilty of the greater offense before considering the
applicability of the inferior-degree offense. 2 Ohio Jury Instructions, CR
503.11(A)(14) (2020). This instruction recognizes that an acquittal of the greater
offense necessarily impacts the inferior-degree offense since they share the same
core elements.
It is only after finding the offender guilty of the greater offense that
the trier of fact must consider the inferior-degree offense before rendering its verdict
on that count. Through an act of judicial fiction, if serious provocation is
demonstrated beyond a reasonable doubt, the defendant is not found guilty of the
greater offense but guilty of the inferior-degree offense even though the state proved
the elements of both offenses beyond a reasonable doubt. State v. Black, 1st Dist.
Hamilton No. C-160321, 2017-Ohio-5611, ¶ 26 (If “it is possible for the trier of fact
to find the defendant guilty of the inferior-degree offense and to acquit on the
greater offense because of the provocation, the instruction on the inferior-degree
offense should be given.”).
Thus, in all cases in which the inferior offense is proven, it must be
recognized that the offender is not found guilty of the greater offense in order to
enter the finding of guilt on the inferior offense — otherwise, the finding of guilt as
to both offenses violates Eighth Amendment principles. The fact the jury expressly
did so in this case instead of silently through an act of judicial fiction is not
dispositive, but actually demonstrates that the result of the trial would not have been
different had they been properly instructed — James was found guilty of each and
every element of aggravated assault by the empaneled jury.
This brings us to the heart of the matter.
The jury, although incorrectly instructed, correctly followed the given
instructions in executing the jury verdict forms, finding James not guilty of felonious
assault before considering the aggravated assault elements. James failed to object
or seek a correction to the instructions or the verdict forms, although the court and
the parties discussed the potential jury instructions before the jury was charged.
Tr. 638:1-6. James concedes that our review is limited to the plain error standard
of review under Crim.R. 52(B); however, his entire argument focuses on the error
and nothing more.
It is well settled that “[o]n appeal, a party may not assign as error the
giving or the failure to give any instructions unless the party objects before the jury
retires to consider its verdict, stating specifically the matter objected to and the
grounds of the objection.” Crim.R. 30(A). “When a defendant fails to object to the
jury instructions, she waives all but plain error.” Owens, 162 Ohio St.3d 596, 2020-
Ohio-4616, 166 N.E.3d 1142, at ¶ 7, citing State v. Diar, 120 Ohio St.3d 460, 2008-
Ohio-6266, 900 N.E.2d 565, ¶ 127; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-
18, 840 N.E.2d 151, ¶ 109, citing State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244(1978), paragraph one of the syllabus; State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d
545 (1968), paragraph three of the syllabus. “[P]lain error is ‘an “obvious” defect in
the trial proceedings.’” State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157
N.E.3d 716, ¶ 72, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002).
It is not enough, however, to find the existence of any error under
Crim.R. 52(B). In order for a court of review to reverse on plain error, the defendant
must demonstrate that the error “‘affected [his] ‘substantial rights,’ which ‘mean[s]
that the trial court’s error must have affected the outcome of the trial.’” Id., quoting
Barnes at 27; Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22.
And “even if an accused shows that the trial court committed plain error affecting
the outcome of the proceeding, an appellate court is not required to correct it.”
Rogers at ¶ 23. As the Ohio Supreme Court has repeatedly admonished, plain error
must be noticed “‘with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.’” Id., quoting Barnes at 27, and
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the syllabus.
As a result, the sole issue in this appeal is whether the error in
instructing the jury prejudiced James to such an extent that the plain error must be
noticed and a new trial ordered. See, e.g., State v. Franklin, 97 Ohio St.3d 1, 2002-
Ohio-5304, 776 N.E.2d 26, ¶ 75 (concluding that the error in providing an erroneous
jury instruction confusing an inferior-degree offense with a lesser included offense
did not constitute plain error); State v. Blevins, 2019-Ohio-2744, 140 N.E.3d 27,
¶ 26-35 (4th Dist.).
Since James has not presented any discussion beyond demonstrating
the existence of an error, our inquiry should be at an end. “[A]ppellate courts do not
sit as self-directed boards of legal inquiry and research, but preside essentially as
arbiters of legal questions presented and argued by the parties before them.” State
v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting
State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78
(O’Donnell, J., concurring in part and dissenting in part). It is not our obligation or
our role to craft the missing analysis on James’s behalf.
This court has essentially created structural error in this situation,
permitting the reversal upon the mere demonstration that the trial court improperly
instructed the jury. See, e.g., Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931
N.E.2d 627, at ¶ 38 (8th Dist.) (finding plain error based on treating the inferior-
degree offense of aggravated assault as a lesser included offense in the jury
instructions); Martin, 2018-Ohio-1098, 109 N.E.3d 652, at ¶ 15 (trial court in a
bench trial erred in finding that the state failed to prove felonious assault beyond a
reasonable doubt but entering a guilty verdict on the inferior-degree offense of
aggravated assault nonetheless); see also Bosley, 9th Dist. Summit No. 15547, 1992
Ohio App. LEXIS 5206 (Oct. 7, 1992). Noticing plain error is a discretionary
function of appellate review. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 86, 0at ¶ 22. Demonstrating the existence of error is not sufficient to meet
the defendant’s appellate burden demonstrating the need to reverse under the plain
error standard of review in every case. The fact that other panels exercised their
discretion in noticing the plain error is not dispositive and simply demonstrates the
slow death of plain error review on this topic as the structural error rises from the
ashes in its place.
For the foregoing reasons, I dissent from the majority’s decision to
reverse the conviction. James has not presented any analysis or discussion
regarding anything other than his conclusion that an error occurred. Under binding
precedent, this is insufficient to warrant the noticing of plain error. That other
panels chose to elevate plain error into structural error should not impede our
analysis. We have a choice as to whether the error should be noticed as plain error
under Rogers. I would affirm the convictions in the hopes that any semblance of
plain error review is restored in these types of cases.