[Cite as State v. Hendricks, 2012-Ohio-1924.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY

STATE OF OHIO,                        :    Case No. 11CA3253
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JUSTIN K. HENDRICKS,                  :
                                      :    RELEASED 04/30/12
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Jonathan D. Schmidt, Benson & Schmidt, LLP, Chillicothe, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecutor, and Richard W. Clagg, Ross County
Assistant Prosecutor, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Justin Hendricks appeals his conviction for felonious assault, which

resulted from an incident where Hendricks punched a girl in the face, breaking her jaw.

Hendricks contends that the trial court erred when it refused on hearsay grounds to let

him impeach the victim with her prior inconsistent statements. Although we agree that

the trial court erred in sustaining the prosecution’s objection on hearsay grounds, the

record gives no indication that the victim’s trial testimony was inconsistent with the prior

statement Hendricks wanted to use for impeachment. Therefore, the prior statement

was not admissible for impeachment purposes and we reject this argument.

        {¶2}     Hendricks also argues that the trial court erred by not instructing the jury

on aggravated assault, an inferior degree of felonious assault. Because Hendricks did

not request an aggravated assault instruction or object after the court sua sponte raised

the issue and decided against giving the instruction, he has forfeited all but plain error.
Ross App. No. 11CA3253                                                                     2


Here, Hendricks failed to rebut the presumption that trial counsel made a strategic

decision not to seek the instruction in hopes of obtaining an acquittal on felonious

assault and at worst having Hendricks convicted of the lesser included offense of simple

assault. A defendant may not rely on the plain error rule to evade the consequences of

his own trial strategy. Accordingly, we reject Hendricks’ argument and affirm the trial

court’s judgment.

                                         I. Facts

       {¶3}   After the Ross County grand jury indicted Hendricks on one count of

felonious assault of a 15 year old girl, Hendricks pleaded not guilty to the charge. The

matter proceeded to a jury trial, which produced the following evidence.

       {¶4}   The victim, C.R., testified that one afternoon her friend S.L.’s grandma

dropped the two girls off at a McDonald’s. There they met S.L.’s friend Whitney.

Initially, C.R. testified that she and S.L. walked to a person named Danny’s house. But

subsequently she testified that Whitney dropped the girls off at the house. Once there,

C.R. and S.L. hung out and drank alcohol with Hendricks and Danny. Eventually the

men left, and the girls fell asleep. Later the men came back and woke them up. Then

the foursome started “just messing around, and then [the men] took it a little bit too

serious, [Hendricks] pushed [S.L.].” C.R. told Hendricks not to put his hands on S.L.,

and Hendricks punched C.R. in the face with a closed fist, breaking her jaw. C.R.

testified that after the punch, S.L. put her hands on Hendricks in some manner. Then

the girls walked to a gas station to call an ambulance. On cross-examination, C.R.

testified that she did not remember telling police that S.L.’s grandma dropped the girls

off at Danny’s house. C.R. did admit that the girls were not supposed to be at the
Ross App. No. 11CA3253                                                                         3


house. C.R. also acknowledged that her memory of the evening was a little blurry

because of the alcohol she drank.

          {¶5}   S.L., also age 15, testified that her grandma took her and C.R. to a

McDonald’s where they met Whitney. After Whitney left the restaurant, the girls walked

to the house where Hendricks and Danny lived. Once there, the girls sat around with

the men. The group eventually went out to get alcohol and came back to the house to

drink it. S.L. acknowledged that she became intoxicated. Hendricks and Danny left

while the girls went to sleep. When the men came back, Hendricks pulled the mattress

out from underneath the girls. C.R. stood up and started to yell. S.L. stood up and

Hendricks pushed her. After C.R. started to yell and curse at Hendricks, he punched

her in the jaw with a closed fist. Then S.L. choked Hendricks. S.L. claimed that C.R.

never hit or pushed Hendricks. The girls went to a Speedway to call an ambulance and

police.

          {¶6}   Officer Tad Franklin of the Chillicothe Police Department testified that he

responded to a call from a Speedway regarding a possible injury. When he arrived, he

saw C.R. and S.L. and observed that C.R. had an obvious injury to her right jaw.

Franklin testified that neither girl appeared intoxicated. On cross-examination, Franklin

testified that the girls gave him the following order of events: Hendricks shoved the

victim, S.L. choked Hendricks, the victim shoved Hendricks, and Hendricks punched the

victim. On redirect examination, Hendricks testified that both girls “stated that they were

joking around with Mr. Hendricks and that’s when he took it the wrong way and became

angry and called them names and either [the victim] or [S.L.] shoved him * * *.”

Subsequently Franklin testified that only S.L. gave him that information.
Ross App. No. 11CA3253                                                                       4


       {¶7}    The trial court instructed the jury on felonious assault and the lesser

included offense of assault. The jury returned a verdict for felonious assault and this

appeal followed.

                                   II. Assignments of Error

       {¶8}    Hendricks assigns two errors for our review:

       I.      The trial court erred in prohibiting cross examination of a witness
               regarding prior inconsistent statements she herself made.

       II.     The trial court erred by failing to instruct the jury on aggravated
               assault.

                     III. Admissibility of Prior “Inconsistent” Statements

       {¶9}    In his first assignment of error, Hendricks contends that the trial court

incorrectly relied on hearsay as a basis for preventing him from impeaching the victim

with her prior inconsistent statements. Generally an appellate court will not disturb a

trial court’s ruling on the admissibility of evidence absent an abuse of discretion. State

v. Blevins, 4th Dist. No. 10CA3353, 2011-Ohio-3367, ¶ 31.

       {¶10} Evid.R. 801(C) defines hearsay as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” Hendricks contends that the court erred when it excluded

C.R.’s prior “inconsistent” statements because they were not offered to prove the truth

of the matter asserted; rather they were offered to impeach her credibility under Evid.R.

613 “by simply demonstrating for the jury that she made different statements at different

times.” (Appellant’s Br. 9). Hendricks claims the court’s error appears in the following

portion of the trial transcript:

       [DEFENSE]: AND IF I’M NOT MISTAKEN, [S.L.’S] GRANDMA
       THOUGHT THAT YOU AND [S.L.] WERE GOING TO BE SPENDING
Ross App. No. 11CA3253                                              5


     THE EVENING WITH WHITNEY, DIDN’T SHE?

     [PROSECUTION]: OBJECTION YOUR HONOR.

                                  ***

     THE COURT: LET’S APPROACH.

     BENCH CONFERENCE WITH COUSEL [sic]

     THE COURT: BASIS?

     [PROSECUTION]: NOT SURE I SEE THE RELEVANCE OF WHAT [S.L.’S]
     GRANDMOTHER THOUGHT. WE ALREADY KNEW WHAT THESE KIDS
     WERE DOING. IT DOESN’T GO TO ANY AFFIRMATIVE DEFENSE OR
     TOWARD THE ACT.

     [DEFENSE]: AS I UNDERSTAND IT BOTH [THE VICTIM] AND [S.L.],
     THEY GAVE TWO (2) COMPLETELY STORY TO THE POLICE WHEN
     THEY FIRST HAD CONTACT WITH THE POLICE AS TO HOW THEY
     GOT TO THESE BOYS’ HOUSE TO BEGIN WITH. THEY TOLD THE
     POLICE THAT [S.L.’S] GRANDMA DROPPED THEM OFF AT THE
     HOUSE. [S.L.’S] GRANDMA DIDN’T DROP THEM OFF AT THE
     HOUSE, SHE DROPPED THEM OFF AT MCDONALD’S.

     (INAUDIBLE CONVERSATION)

     THE COURT: (INAUDIBLE) THE ANSWER YOU COULDN’T HEAR, I
     THOUGHT SHE SAID THAT. I DON’T KNOW.

     [DEFENSE]: I HEARD HER SAY THEY WALKED, THAT WAS PART OF
     WHAT THE JURY WASN’T ABLE TO HEAR. MY POINT IS SHE SAID
     ONE THING TO THE POLICE, (INAUDIBLE) GOES TOWARD
     CREDIBILITY.

     THE COURT: YOU CAN ASK HER, BUT I’M NOT SURE YOU’RE
     GOING GET EXTRINSIC EVIDENCE INTO THAT FACT, SO I’LL LET
     YOU ASK THE QUESTION.

     [PROSECUTION]: THE QUESTION HERE IS STILL GETS INTO THE
     GRANDMOTHER’S STATE OF MIND. THAT DOESN’T HAVE
     ANYTHING TO DO WITH THEIR STATEMENTS.

     THE COURT: IT DOESN’T. WHAT THE GRANDMOTHER THOUGHT
     CORRECT. THAT QUESTION IS IMPERMISSIBLE WAS TO WHAT----
Ross App. No. 11CA3253                                                                     6


      [DEFENSE]: I CAN RE-ASK THAT.

      BENCH CONFERENCE CONCLUDED.

      THE COURT: I’LL SUSTAIN THE OBJECTION

      [DEFENSE]: WHEN YOU AND YOUR FRIEND [S.L.] GOT DROPPED
      OFF AT MCDONALD’S, DID YOU TELL [S.L.’S] GRANDMA THAT YOU
      WERE GOING TO BE SPENDING THE NIGHT WITH WHITNEY?

      [PROSECUTION]: OBJECTION

      THE COURT: SUSTAINED.

      [DEFENSE]: APPROACH

      THE COURT: SURE[.]

      BENCH CONFERENCE WITH COUNSEL:

      [DEFENSE]: I’M NOT SURE I UNDERSTAND.

      THE COURT: IT’S A STATEMENT MADE OUT OF COURT NOT OF
      CROSS EXAMINATION, IT’S HEARSAY.

      [DEFENSE]: I’M ASKING HER----

      THE COURT: THERE’S NO EXCEPTION TO HEARSAY RULE FOR
      THE WITNESS SAID.

      [DEFENSE]: OKAY.

      BENCH CONFERENCE CONCLUDED.

      {¶11} It does not appear that Hendricks appeals the trial court’s ruling on the first

objection to the question about who S.L.’s grandma thought the girls were spending the

evening with because the court did not sustain that objection “on hearsay grounds.”

(Appellant’s Br. 9). In response to the prosecutor’s objection, defense counsel argued

that the victim made prior inconsistent statements about how the girls got to the house.

But defense counsel did not ask the victim about her own statements on how she got to
Ross App. No. 11CA3253                                                                     7


the house. Rather, defense counsel initially asked the victim about S.L.’s grandma’s

state of mind. This is a matter that required speculation. C.R. did not have personal

knowledge of this matter as Evid.R. 602 requires, so the question was clearly

objectionable. And in response to the prosecution’s argument, defense counsel

indicated that he would rephrase the question. And in fact the second question, which

is the real focus of this assignment of error, did ask C.R. about a prior statement she

purportedly made. Defense counsel asked the victim if she told S.L.’s grandma that the

girls were spending the night with Whitney. The prosecutor objected, and the court

sustained the objection on hearsay grounds.

       {¶12} We agree that the court erred when it sustained the objection on hearsay

grounds. Hendricks contends that he did not seek admission of the statement to prove

the truth matter of the asserted, but rather to prove that the victim made the statement

and it was inconsistent with other statements she made. “If the relevance of an out-of-

court statement is that the statement was made, rather than the truth of the assertion

contained in the statement, the statement is not hearsay.” 2 Giannelli, Giannelli

Evidence, Section 801.7 (3d. Ed.2010). See State v. Williams, 38 Ohio St.3d 346, 348,

528 N.E.2d 910 (1988) (“A statement is not hearsay if it is admitted to prove that the

declarant made it, rather than to prove the truth of its contents.”). See also State v.

Bittner, 12th Dist. No. CA2001-01-009, 2002 WL 4493 (Dec. 31, 2001) (holding out of

court statements admissible where not offered to prove the truth of the matters asserted

but offered for another purpose, i.e., their consistency implied that the declarants

planned, prior to police arrival, to conceal what really happened).

       {¶13} At trial, defense counsel did not take the position that C.R. never saw
Ross App. No. 11CA3253                                                                     8


Hendricks the evening in question but instead argued that the altercation did not occur

as the girls testified it did. Therefore, defense counsel clearly was not asking C.R.

whether she told S.L.’s grandma that the girls were going to be spending the night with

Whitney to prove the girls in fact spent the night with Whitney. Defense counsel asked

about the statement to prove C.R. made it. Because defense counsel did not try to offer

the statement to prove the truth of the matter asserted, the trial court erred in sustaining

the objection on hearsay grounds.

       {¶14} But because there is no evidence of an inconsistency between C.R.’s trial

testimony and her alleged prior statement to S.L.’s grandma, impeachment by self-

contradiction under Evid.R. 613 was not available to Hendricks. The underlying

rationale of Evid R. 613 is self-contradiction. It generally involves the use of the

witness’s own statement to contradict her present testimony. Without evidence of an

inconsistency, or contradiction, the prior statement is properly excluded. See Giannelli

Evidence at Section 613.4, citing State v. Mack, 73 Ohio St.3d 502, 514, 653 N.E.2d

329 (1995). Here, when defense counsel asked the question C.R. had not given any

testimony about statements either of the girls had given to S.L.’s grandma. Obviously,

without some testimony on that area, there could be no inconsistency with a prior

statement. The inconsistent statements defense counsel previously mentioned were

the victim’s statements about how she got to the house. Defense counsel never pointed

to any trial testimony concerning what C.R. told S.L.’s grandma about the girls’ plans

that evening. That’s because nothing in the record suggests the victim gave any

testimony on this issue at this point in the proceedings. Therefore, even though the trial

court erred when it sustained the objection on hearsay grounds, the court did not
Ross App. No. 11CA3253                                                                         9


erroneously prohibit Hendricks from cross-examining the victim regarding prior

inconsistent statements under Evid.R. 613.

       {¶15} Hendricks could have argued that defense counsel’s question was

permissible under Evid.R. 608. The rule provides that “[s]pecific instances of the

conduct of a witness, for the purpose of attacking or supporting the witness’s character

for truthfulness, * * * may not be proved by extrinsic evidence. They may, however, in

the discretion of the court, if clearly probative of truthfulness or untruthfulness, be

inquired into on cross-examination of the witness (1) concerning the witness’s character

for truthfulness or untruthfulness * * *.” Evid.R. 608(B). Defense counsel might have

asked C.R. about her statement to the grandma in an effort to show that C.R. was a liar

because she lied to S.L.’s grandma about the girls’ plans. However, Hendricks did not

raise this argument at the trial level or on appeal. Moreover, the trial transcript indicates

that C.R. later testified that the girls were not supposed to be at the house that evening.

The jury could infer from this testimony that C.R. lied to someone about her plans.

       {¶16} Moreover, we note that defense counsel did eventually ask the victim,

without objection, about what she told police as to how the girls got to the house. C.R.

testified that she did not remember telling police that S.L.’s grandma dropped the girls

off there. She acknowledged that her memory of the evening was a little blurry due to

the alcohol she drank. The jury could certainly use this information to evaluate the

victim’s credibility, along with the fact that during trial she gave two different accounts of

how the girls got the house – first testifying that the girls walked and later claiming that

Whitney dropped them off. Therefore, we overrule the first assignment of error.

                        IV. Jury Instruction on Aggravated Assault
Ross App. No. 11CA3253                                                                      10


       {¶17} In his second assignment of error, Hendricks contends that the trial court

erred when it decided not to instruct the jury on aggravated assault as a “lesser included

offense” of felonious assault. Generally, we use a de novo review to determine whether

the court’s jury instructions charge on all relevant questions of the law that the evidence

supports. State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, ¶ 34. The actual

wording and format of the instructions are within the trial court’s discretion. Id.

       {¶18} However, the State contends that Hendricks failed to raise his argument at

the trial level and has forfeited all but plain error. We agree. Hendricks did not file

proposed jury instructions with the court. Although Hendricks claims that “[i]t is easily

derived from the transcript that the defense [requested] a jury instruction on aggravated

assault” the record gives no indication that Hendricks made such a request. Instead, it

appears from the trial transcript that the court raised the possibility of an aggravated

assault instruction sua sponte.

       {¶19} Hendricks points to this Court’s statement in Buskirk v. Harrell, 4th Dist.

No. 99CA31, 2000 WL 943782, *8 (June 28, 2000) that “[g]enerally, errors which arise

during the course of a trial, which are not brought to the attention of the court by

objection or otherwise, are waived and may not be raised upon appeal.” Hendricks

claims that the fact that the trial court explained why it did not believe an aggravated

assault instruction was warranted indicates that “the trial court’s attention was given to

the issue of an aggravated assault instruction,” so he did not have to object to preserve

his argument for appeal. (Appellant’s Br. 11). This argument ignores the plain

language in Buskirk that the error complained of on appeal must be brought to the trial

court’s attention. Because Hendricks failed to alert the trial court to any error in its
Ross App. No. 11CA3253                                                                         11


decision to not give an aggravated assault instruction, he has forfeited all but plain error.

       {¶20} “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” Crim.R. 52(B). “A silent

defendant has the burden to satisfy the plain-error rule[,] and a reviewing court may

consult the whole record when considering the effect of any error on substantial rights.”

State v. Davis, 4th Dist. No. 06CA21, 2007-Ohio-3944, ¶ 22, citing United States v.

Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). For a reviewing court to

find plain error: 1.) there must be an error, i.e., “a deviation from a legal rule”; 2.) the

error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings”; and 3.) the error

must have affected “substantial rights,” i.e., it must have affected the outcome of the

proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

Furthermore, the Supreme Court of Ohio has admonished courts that 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.’” Id., quoting State

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶21} R.C. 2903.12, the aggravated assault statute, provides:

       (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 * * *.

“Aggravated assault is not a lesser-included offense of the offense of felonious assault.”

State v. Searles, 8th Dist. No. 96549, 2011-Ohio-6275, ¶ 18. “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
Ross App. No. 11CA3253                                                                        12


of one or both mitigating circumstances of sudden passion or a sudden fit of rage

brought on by serious provocation occasioned by the victim.” Id. “In other words,

aggravated assault is the same conduct as felonious assault but its nature and penalty

are mitigated by provocation.” State v. Parnell, 10th Dist. 11AP-257, 2011-Ohio-6564, ¶

20.

       {¶22} Even if we assume, without deciding, that Hendricks qualified for an

aggravated assault instruction, we cannot find plain error in the court’s failure to instruct

the jury on this offense. In a trial for felonious assault, where the defendant presents

sufficient evidence of serious provocation, the trial court has a duty to instruct the jury

on aggravated assault. See State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988),

paragraph four of the syllabus. However, the defendant retains the right to waive such

an instruction and seek acquittal on the charged offense rather than invite conviction on

an inferior degree of the charged offense. See by way of analogy State v. Clayton, 62

Ohio St.2d 45, 47, 402 N.E.2d 1189 (1980), fn. 2 (explaining that while the trial court

has a duty to instruct the jury on a lesser included offense when appropriate, the

defendant retains the right to waive the instruction). Thus, Hendricks could make the

tactical decision not to request an instruction on aggravated assault.

       {¶23} A failure to request a jury instruction on an inferior degree of an offense is

presumed to be a matter of trial strategy. State v. Walker, 4th Dist. No. 99CA2494,

2000 WL 875954, *4 (June 26, 2000). A defendant may not rely on the plain error rule

to evade the consequences of his own trial strategy. State v. Noggle, 140 Ohio App.3d

733, 745, 749 N.E.2d 309 (3rd Dist. 2000) (“[P]lain error cannot be used to negate a

deliberate, tactical decision by trial counsel.”). See by way of analogy State v. Claytor,
Ross App. No. 11CA3253                                                                         13


61 Ohio St.3d 234, 240, 574 N.E.2d 472 (1991) (“What appears to have been a tactical

decision in this case during the trial [to not to try the case on the theory of or request an

instruction on a lesser included offense] cannot now be converted into judicial error.”).

       {¶24} Hendricks has not rebutted the presumption of trial strategy. As we

explained above, the record gives no indication trial counsel sought an aggravated

assault instruction. And the fact that counsel remained silent when the court sua sponte

raised the issue and decided not to give the instruction only bolsters the presumption

that counsel made a strategic decision to not pursue the instruction. Hendricks cannot

complain that the trial court committed plain error where counsel apparently was

seeking an acquittal on felonious assault (a second-degree felony) and at worst a

conviction for simple assault (a first-degree misdemeanor), rather than inviting a

conviction on aggravated assault (a fourth-degree felony). R.C. 2903.11(D)(1)(a); R.C.

2903.13(C); R.C. 2903.12(B).

       {¶25} Accordingly, we find no error in the trial court’s failure to instruct the jury

on aggravated assault. In the absence of error, a plain error argument becomes

meritless. We overrule the second assignment of error.

                                       V. Conclusion

       {¶26} We overrule both of Hendricks’ assignments of error and affirm the trial

court’s judgment.

                                                                   JUDGMENT AFFIRMED.
Ross App. No. 11CA3253                                                                      14


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
               Concurs in Judgment Only as to Assignment of Error I.


                                            For the Court



                                            BY: ____________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
