[Cite as State v. Mowls, 2017-Ohio-8712.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                     :   Hon. William B. Hoffman, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 2017CA00019
                                               :
 JUSTIN ALAN MOWLS                             :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2016CR1211



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            November 20, 2017




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 JOHN D. FERRERO, JR.                              RHYS B. CARTWRIGHT-JONES
 STARK CO. PROSECUTOR                              42 N. Phelps St.
 KRISTINE W. BEARD                                 Youngstown, OH 44503-1130
 110 Central Plaza S., Ste. 510
 Canton, OH 44702-1413
Stark County, Case No. 2017CA00019                                                     2

Delaney, P.J.

       {¶1} Appellant Justin Alan Mowls appeals from the January 25, 2017 Judgment

Entry of the Stark County Court of Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on June 3, 2016 when appellant struck his neighbor,

Steven Steinbach, multiple times with a baseball bat.          Appellant had borrowed

Steinbach’s “weed whacker” and allegedly damaged it. Steinbach was admittedly upset

about the weed whacker and mentioned it to appellant the day before. On this date,

however, Steinbach saw appellant outside and went out to speak to him, purportedly to

tell him the weed whacker had been fixed.

       {¶3} An argument ensued. Appellant re-entered his house and came back out.

At some point Steinbach briefly returned to his own porch and sat with his sister.

Appellant and Steinbach confronted each other again. This time, appellant was armed

with a baseball bat. Appellant struck Steinbach once on the side of his head, once on his

upraised arm, and once in his rib cage. Steinbach retreated to his own porch and his

sister asked him if he was O.K. Steinbach said appellant had knocked the wind out of

him.

       {¶4} Steinbach’s sister left, but soon thereafter blood came out of Steinbach’s

mouth and he realized he was hurt more seriously than he thought. He rode his bicycle

to a neighbor’s house and asked for a ride to the hospital.

       {¶5} In the meantime, appellant returned to his own house and called the Stark

County Sheriff’s Office. Deputy William White responded to appellant’s residence and

appellant related the story of the weed-whacker argument. Appellant told White that
Stark County, Case No. 2017CA00019                                                       3


Steinbach brandished a small pair of gardening clippers or shears and approached

appellant’s porch in a threatening manner. Appellant told White he used a baseball bat

to push Steinbach off the porch. White asked where Steinbach was now and appellant

said he rode off on his bike.

       {¶6} As White was leaving, a woman pulled up to the house and said she had

just dropped Steinbach off at Mercy Medical Center. White went to the hospital to speak

to Steinbach, and as he approached the room, a nurse told him hospital staff were about

to contact the Sheriff’s Office because Steinbach had been assaulted.          White was

ultimately unable to speak to Steinbach that day because medical staff were inserting a

chest tube.

       {¶7} White returned to the scene of the assault, however, and asked appellant

for a written statement. Steinbach remained sedated and White couldn’t speak to him

until the next day. Steinbach sustained a broken arm, two broken ribs, and injury to his

forehead. White obtained a written statement from Steinbach and determined his injuries

were not consistent with appellant’s story of “pushing” Steinbach off the porch with a bat.

White sought a warrant for appellant’s arrest.

       {¶8} White was not immediately aware Steinbach’s sister witnessed the incident.

She came to the Sheriff’s Office several weeks later to make a statement and testified at

trial on behalf of appellee. The sister observed Steinbach and appellant arguing back

and forth and at one point appellant challenged Steinbach to come into his yard. She

saw Steinbach approach the yard, crossing between two vehicles, when appellant flung

the door open and “came flying out of his house” with a baseball bat. Appellant struck

Steinbach three times, once each in the head, arm, and side. Appellant ran back into his
Stark County, Case No. 2017CA00019                                                           4


house and Steinbach returned to his own porch. Steinbach told his sister to call the police,

but her response was “You call the police.” The sister left and found out later that

Steinbach was in the hospital.

          {¶9} Upon cross-examination, the sister acknowledged that she didn’t know

whether Steinbach was drunk at the time but agreed he was agitated. She said both men

yelled and cursed. She didn’t call 911 because in her opinion, if that was necessary,

Steinbach could do it. The sister testified on redirect that Steinbach never went onto

appellant’s porch and she did not see any garden shears at any time during the incident.

She stated unequivocally Steinbach did not have gardening shears during the incident.

          {¶10} Appellant testified on his own behalf. He said Steinbach approached him

on June 3 looking “crazed,” screaming obscenities and ranting about the weed whacker.

Appellant said he saw a pair of gardening shears “fall from behind his back;” at that point,

appellant was on his own stoop and Steinbach was in his yard, 8 to 10 feet away.

Appellant said Steinbach picked the shears up and approached appellant again,

screaming. Appellant said he keeps a baseball bat directly inside his front door for self-

defense purposes.        He was thus able to grab the bat very quickly when appellant

approached him, allegedly with the shears.

          {¶11} Appellant testified he feared for his life. He said he hit Steinbach twice with

the bat for the purpose of “getting him away” so he could go back into his house and call

police.

          {¶12} Upon cross-examination, appellant acknowledged he is physically larger

than Steinbach. He testified Steinbach did step onto his porch, despite the contrary

testimony of Steinbach and his sister. Appellant acknowledged Facebook posts he made
Stark County, Case No. 2017CA00019                                                            5


after the incident stating “I hope I don’t go to jail for this” and that he was “not in jail but

that was ‘blanked’ up of me.” Appellant said he was in shock when he first spoke to White

after the incident, and insisted he was in fear of being stabbed although he had no idea

what became of the garden shears.

                                  Indictment, Trial, and Conviction

         {¶13} Appellant was charged by indictment with one count of felonious assault

pursuant to R.C. 2903.11(A)(1), a felony of the second degree. Appellant entered a plea

of not guilty and the matter proceeded to trial by jury. Appellant successfully requested

a jury instruction upon “no duty to retreat” in addition to a self-defense instruction.

Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the close of

appellee’s evidence and at the close of all of the evidence; the motions were overruled.

         {¶14} Appellant was found guilty as charged and sentenced to a prison term of 4

years.

         {¶15} Appellant now appeals from the January 25, 2017 judgment entry of his

conviction and sentence.

         {¶16} Appellant raises two assignments of error:

                                ASSIGNMENTS OF ERROR

         {¶17} “I. EITHER THE TRIAL COURT PLAINLY ERRED IN DECLINING TO

PRESENT A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF

AGGRAVATED ASSAULT, OR TRIAL COUNSEL WAS INEFFECTIVE IN DECLINING

TO REQUEST SAME.”

         {¶18} “II.   THE TRIAL COURT ERRED IN DECLINING THE DEFENSE’S

MOTION RULE 29 FOR ACQUITTAL.”
Stark County, Case No. 2017CA00019                                                            6


                                         ANALYSIS

                                               I.

       {¶19} In his first assignment of error, appellant contends the trial court should

have instructed the jury upon the “lesser included offense” of aggravated assault, or

defense trial counsel was ineffective in failing to request the instruction. We disagree.

       {¶20} “[A]fter arguments are completed, a trial court must fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh the

evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206,

553 N.E.2d 640 (1990), paragraph two of the syllabus.

       {¶21} Crim.R.30 provides that a party must object to an omission in the court's

instructions to the jury in order to preserve the error for appeal. “A criminal defendant has

a right to expect that the trial court will give complete jury instructions on all issues raised

by the evidence.” State v. Williford, 49 Ohio St.3d 247, 251–252, 551 N.E.2d 1279(1990).

(Citations omitted). If an objection is not made in accordance with Crim.R. 30, or the

defendant fails to submit a required written jury instruction, Crim.R. 52(B), the plain error

doctrine, applies. State v. Dorsey, 5th Dist. Stark No. 2014CA00217, 2015-Ohio-4659, ¶

61, citing Williford, supra, and State v. Gideons, 52 Ohio App.2d 70, 368 N.E.2d 67(8th

Dist.1977). In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 25 (1999),

the United State Supreme Court held that because The failure to properly instruct a jury

is not in most instances structural error, thus the harmless-error rule of Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967) applies because it does not

necessarily render a trial fundamentally unfair or an unreliable vehicle for determining

guilt or innocence.
Stark County, Case No. 2017CA00019                                                       7


       {¶22} In the instant case, appellant concedes he did not object, nor did he request

orally or in writing the aggravated-assault instruction he now contends should have been

given by the trial court. Accordingly, our review of the alleged error must proceed under

the plain error rule of Crim. R. 52(B). Dorsey, supra, at ¶ 64.

       {¶23} The facts of each case determine the necessity of instructing the jury on

lesser crimes or lesser included offenses. State v. Kidder, 32 Ohio St.3d 279, 282, 513

N.E.2d 311 (1987); State v. Loudermill, 2 Ohio St.2d 79, 80, 206 N.E.2d 198 (1965).

Some appellate courts in Ohio have held that aggravated assault is a “lesser-included

offense” of felonious assault, while others have held it to be a “lesser offense.” In

determining a defendant's right to have the jury instructed on aggravated assault, it is

immaterial whether that offense is denominated as a lesser included offense or a lesser

offense. State v. Johnson, 9th Dist. Summit No. C.A. 13101, 1987 WL 19467, *1. The

test is the same: the trial court must decide whether any evidence was presented at trial

which would form the basis for a jury instruction on the offense of aggravated assault. If

there was, then the jury instruction must be given. If there was none, then the instruction

should not be given. Id.

       {¶24} R.C. 2903.12(A) defines aggravated assault as follows:

                     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 or another's

              unborn;
Stark County, Case No. 2017CA00019                                                        8


                     (2) Cause or attempt to cause physical harm to another or to

              another's unborn by means of a deadly weapon or dangerous

              ordinance, as defined in section 2923.11 of the Revised Code.

       {¶25} We have previously noted aggravated assault, as defined by R.C.

2903.12(A)(2), is not a “lesser included” offense of felonious assault. State v. Fleming,

5th Dist. Licking No. 97CA133, 1998 WL 346689, *5, appeal not allowed, 83 Ohio St.3d

1447, 700 N.E.2d 331 (1998), citing State v. Deem, 40 Ohio St.3d 205, 210, 533 N.E.2d

294 (1988). Instead, aggravated assault is an inferior degree of felonious assault because

the elements of aggravated assault are identical to those of felonious assault, except for

the additional mitigating element of serious provocation. Id., citing State v. Mack, 82 Ohio

St.3d 198, 200, 694 N.E.2d 1328 (1998).

       {¶26} “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. In determining whether the provocation was

reasonably sufficient to incite the defendant into using deadly force, the court must

consider the emotional and mental state of the defendant and the conditions and

circumstances that surrounded him at the time.” Deem, paragraph five of the syllabus.

       {¶27} This provocation must be occasioned by the victim. State v. Shane, 63 Ohio

St.3d 630, 637, 590 N.E.2d 272 (1992). In determining whether the defendant presented

sufficient evidence to warrant the instruction, “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.” Mack, 82 Ohio St.3d at 201. The provocation must be “sufficient to

arouse the passions of an ordinary person beyond the power of his or her control.” Shane,
Stark County, Case No. 2017CA00019                                                       9


63 Ohio St.3d at 635. If this objective standard is met, the inquiry becomes a subjective

one, to determine whether the defendant “actually was under the influence of sudden

passion or in a sudden fit of rage.” Id.

       {¶28} Appellant argues evidence exists that the provocation posed by Steinbach

was reasonably sufficient to incite sudden passion or rage, citing the escalating argument,

Steinbach’s intoxication, his alleged brandishing of garden shears, and stepping onto

appellant’s porch. We find this evidence was insufficient as a matter of law to establish

provocation reasonably sufficient to incite the use of deadly force.

       {¶29} In examining whether provocation is reasonably sufficient to bring on a

sudden fit of passion or fit of rage, the Ohio Supreme Court has stated that “[f]or

provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an

ordinary person beyond the power of his or her control.” State v. Shane, 63 Ohio St.3d

630, 635, 590 N.E.2d 272 (1992). In determining whether the provocation was reasonably

sufficient, the court must consider the emotional and mental state of the defendant and

the conditions and circumstances that surrounded him at the time. State v. Mabry, 5 Ohio

App.3d 13, 449 N.E.2d 16 (1982), paragraph five of the syllabus.

       {¶30} Generally, neither words alone nor fear itself will constitute evidence of

serious provocation. “[W]ords alone will not constitute reasonably sufficient provocation

to incite the use of deadly force in most situations” and “[f]ear alone is insufficient to

demonstrate the kind of emotional state necessary to constitute sudden passion or fit of

rage.” Shane at 634-635; Mack at 198.

       {¶31} The only evidence that Steinbach brandished garden shears or stepped

onto appellant’s porch is appellant’s self-serving testimony which was contradicted by
Stark County, Case No. 2017CA00019                                                      10


Steinbach and his sister. Even if we were to take appellant’s testimony at face value, he

has not objectively established sufficient provocation based upon Steinbach’s purported

threats or his own purported fear.

       {¶32} We note defense trial counsel requested and received jury instructions for

the affirmative defense of self-defense. The jury, however, did not accept appellant's

claim of self-defense, essentially rejecting his version of the events. Since the jury

believed Steinbach’s account of the assault, i.e., appellant attacked Steinbach, we do not

find a reasonable probability the outcome would have been different had the jury

instruction of aggravated assault been requested and received. State v. Fleming, 5th

Dist. Licking No. 97CA133, 1998 WL 346689, *7, appeal not allowed, 83 Ohio St.3d 1447,

700 N.E.2d 331 (1998). See also, State v. Barton, 5th Dist. Licking No. 2003CA00064,

2004-Ohio-3058. The trial court’s failure to sua sponte offer an aggravated-assault

instruction is thus not plain error.

       {¶33} Appellant further argues trial counsel’s failure to request the instruction

constitutes ineffective assistance of counsel. To succeed on a claim of ineffectiveness,

a defendant must satisfy a two-prong test. Initially, a defendant must show that trial

counsel acted incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052 (1984). In assessing such claims, “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. at 689, citing Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).
Stark County, Case No. 2017CA00019                                                        11


       {¶34} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690. Even if a defendant shows

that counsel was incompetent, the defendant must then satisfy the second prong of the

Strickland test. Under this “actual prejudice” prong, the defendant must show that “there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

       {¶35} The decision whether to request a specific jury instruction on a lesser

offense is a matter of trial strategy left to counsel's discretion. State v. Griffie, 74 Ohio

St.3d 332, 333, 658 N.E.2d 764 (1996). The defendant must overcome the presumption

that under the circumstances, the challenged action of trial counsel might be considered

sound trial strategy. Strickland, 466 U.S. at 689. Hindsight may not be used to distort the

assessment of what was reasonable in light of trial counsel's perspective at the time.

State v. Cook, 65 Ohio St.3d 516, 524–525, 605 N.E.2d 70 (1992).

       {¶36} Based upon our review of the record, we have already found insufficient

evidence to warrant a jury instruction on aggravated assault. The evidence did not

establish any provocation by Steinbach which could be considered reasonably sufficient

to incite the appellant into a sudden fit of passion or rage. While appellant’s fear of

Steinbach alone would not necessarily have constituted sufficient provocation, the only

evidence Steinbach brandished garden shears, thereby putting appellant in fear, was

appellant’s self-serving testimony. Steinbach denied have garden shears and his sister
Stark County, Case No. 2017CA00019                                                      12

did not observe shears during the incident. See, State v. Horne, 5th Dist. Licking No. 08

CA 6, 2009-Ohio-1579.

       {¶37} Therefore, from the trial evidence presented, the defendant was not entitled

to an instruction on aggravated assault. Johnson, supra, 1987 WL 19467, *2. Because

appellant was not entitled to the instruction on aggravated assault, the failure of trial

counsel to object to omission of that instruction would have been a futile act, and the

omission is not ineffective assistance of counsel. Id.; see also, State v. Kehoe, 133 Ohio

App.3d 591, 611, 729 N.E.2d 431 (12th Dist.1999).

       {¶38} Appellant’s first assignment of error is overruled.

                                                II.

       {¶39} In his second assignment of error, appellant argues the trial court should

have granted his motions for acquittal because his conviction upon one count of felonious

assault is not supported by sufficient evidence. We disagree.

       {¶40} “A motion for acquittal under Crim.R. 29(A) is governed by the same

standard as the one for determining whether a verdict is supported by sufficient evidence.”

State v. Spaulding, --Ohio St.3d--, 2016–Ohio–8126, --N.E.3d--, ¶ 164, reconsideration

denied, 147 Ohio St.3d 1480, 2016–Ohio–8492, 66 N.E.3d 766, citing State v. Tenace,

109 Ohio St.3d 255, 2006–Ohio–2417, 847 N.E.2d 386, ¶ 37. “The 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.” Id., citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.
Stark County, Case No. 2017CA00019                                                          13


       {¶41} In the instant case, the jury convicted appellant upon one count of felonious

assault pursuant to R.C. 2903.11(A)(1), which states, “No person shall knowingly * * *

[c]ause serious physical harm to another * * *[.]” Appellant contends his conviction is not

supported by sufficient evidence because Steinbach was intoxicated, came onto his

property, and induced him to fight.

       {¶42} We again note the only evidence Steinbach came onto the porch, or

brandished garden shears, is appellant’s self-serving testimony. Steinbach and his sister

testified he was not on the porch and didn’t have garden shears at any time. The weight

of the evidence and the credibility of the witnesses are determined by the trier of fact.

State v. Yarbrough, 95 Ohio St .3d 227, 231, 2002–Ohio–2126, 767 N.E.2d 216, ¶ 79.

Moreover, the testimony of a single witness, if believed by the trier of fact, is sufficient to

support a conviction. State v. Cunningham, 105 Ohio St.3d 197, 2004–Ohio–7007, 824

N .E.2d 504, at ¶ 51–57.        Here, appellee’s evidence established appellant struck

Steinbach three times with a baseball bat, inflicting serious injuries.

       {¶43} Appellant’s conviction is supported by sufficient evidence and his second

assignment of error is overruled.
Stark County, Case No. 2017CA00019                                                  14


                                    CONCLUSION

       {¶44} Appellant’s two assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Hoffman, J. and

Wise, Earle, J., concur.
