STATE OF OHIO v. JOHN MOORE
Case No. 15CA3717
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
DATE JOURNALIZED: 12-8-16
2016-Ohio-8274
ABELE, J.
CRIMINAL CASE FROM COMMON PLEAS COURT
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant Public Defender, Columbus, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Joe Hale, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
ABELE, J.
{1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. A jury found John Moore, defendant below and appellant herein, guilty of felonious assault, in violation of
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED JOHN MOORE‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE THE JURY AN INSTRUCTION AS TO THE INFERIOR-DEGREE OFFENSE OF AGGRAVATED ASSAULT.”
SECOND ASSIGNMENT OF ERROR:
{2} The present case arises out of a confrontation between appellant, an inmate at Southern Ohio Correctional Facility (SOCF), and SOCF Officer Jeremy Conkel. On April 10, 2014, appellant returned to his cell and discovered that it had been searched. Appellant believed that Officer Conkel unjustifiably ransacked appellant‘s cell and left it in shambles. Appellant walked from his cell, down the stairs, and across the hallway to ask Officer Conkel about the search. The encounter turned violent, and Officer Conkel suffered a broken ankle and other injuries.
{3} On May 1, 2014, a Scioto County grand jury returned an indictment that charged appellant with (1) attempted murder, in violation of
{4} On June 1 through June 3, 2015, the trial court held a jury trial. At the trial, Officer Conkel explained that on April 10, 2014 he randomly searched appellant‘s prison cell during appellant‘s absence. The officer stated that when appellant returned and found that his cell had been searched, appellant confronted Officer Conkel and asked the officer why he searched appellant‘s cell. Officer Conkel testified that appellant became aggressive during the encounter. Officer Conkel indicated that when the confrontation escalated, he pulled out his mace and directed appellant to “get on the wall.” Appellant, however, turned toward the officer and stated, “I‘m not getting on the f-ing wall.” Officer Conkel explained that appellant started hitting him, and Officer Conkel fell to the floor. The officer testified that once appellant had taken him to the floor, appellant started choking him. Officer Conkel stated that he blacked-out and did not recall any
{5} SOCF corrections officer Matt Patrick related that he received an alert that an officer was down and, less than a minute later, he reached the scene of the altercation. Officer Patrick testified that as he approached, he saw appellant holding down Officer Conkel and with his hand around the officer‘s throat. Officer Patrick stated that appellant initially refused orders to release Officer Conkel.
{6} SOCF corrections officer Luke Vansicle testified that when he arrived on the scene behind Officer Patrick, he saw appellant standing over Officer Conkel, “throwing punches down at him while Officer Conkel was laying on the floor.”
{7} SOCF sergeant Shannon Bear stated that he arrived on the scene behind the gurney, as appellant was being escorted up the stairs. Sergeant Bear testified that appellant “was aggressive and cussing and threatening towards the staff.” The sergeant further related that appellant “lunged” toward the sergeant, called the staff “bitches,” and stated that “he was going to kill us.”
{8} SOCF corrections lieutenant Gary Lee Daniel stated that he interviewed appellant after the altercation. Appellant informed the lieutenant that “the CO tore up my cell. I went to my cell and seen it had been shook down. I went to the CO and asked him why he tore up my cell. He sprayed me and I lost it.”
{9} On June 3, 2015, after hearing the evidence adduced at trial, the jury found appellant guilty of felonious assault. However, the jury was unable to reach a verdict regarding the first count of the indictment, attempted murder. The state subsequently dismissed the attempted murder count.
I
AGGRAVATED ASSAULT JURY INSTRUCTION
{11} In his first assignment of error, appellant asserts that the trial court plainly erred by failing to give the jury an aggravated assault instruction. Appellant contends that he presented sufficient evidence of serious provocation to warrant an aggravated assault instruction. Appellant claims that he became seriously provoked due to the chain of events that began when he found his cell in shambles after Officer Conkel searched it, and ended when Officer Conkel sprayed mace in appellant‘s face. Appellant argues that after Officer Conkel sprayed the mace, appellant “lost it.” Appellant alleges that the “stress of the situation propelled [him] into a fit of rage.”
{12} Initially, we observe that before the jury retired to consider its verdict, appellant did not request the trial court to give the jury an aggravated assault instruction.1
{13} Generally, a trial court has broad discretion to decide how to fashion jury instructions. A trial court must not, however, fail to “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.” E.g., State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such instruction is “a correct, pertinent statement of the law and [is] appropriate to the facts * * *.” State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993), quoting State v. Nelson, 36 Ohio St.2d 79, 303 N.E.2d 865, paragraph one of the syllabus (1973). Moreover, a criminal defendant is entitled to an inferior-degree-offense instruction “when the evidence presented at trial would reasonably support both an acquittal on the charged [offense] and a conviction for [the inferior-degree offense].” State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992). “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.” State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 73, quoting State v. Deem,
{14} In the case at bar, appellant contends that aggravated assault is an inferior degree offense of felonious assault, the indicted offense. Appellant further asserts that the evidence presented at trial reasonably supports both an acquittal on felonious assault and a conviction for aggravated assault. Appellant thus argues that the trial court was required to give the jury an aggravated assault instruction.
{15} In the case sub judice, the indictment charged appellant with felonious assault under
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 * * *
{16} Aggravated assault is an inferior degree of felonious assault. State v. Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294, 299 (1988). The two offenses are identical, except aggravated assault contains serious provocation as a mitigating factor. Id. Thus, in a trial for felonious assault, a trial court must give the jury an aggravated assault instruction if the defendant presents sufficient evidence of serious provocation such that a jury could both reasonably acquit the defendant of felonious assault and convict the defendant of aggravated assault. State v. Mack, 82 Ohio St.3d 198, 200, 694 N.E.2d 1328 (1998); Deem, 40 Ohio St.3d at 211; Shane, 63 Ohio St.3d at 632.
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, at paragraph five of the syllabus; accord Mack, 82 Ohio St.3d at 200.
{17} Determining whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction involves an objective and subjective inquiry. Mack, 82 Ohio St.3d at 201. A court must (1) objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular case actually was under the influence of sudden passion or in a sudden fit of rage. Id.
{18} Under the objective part of the inquiry, provocation is reasonably sufficient to bring on a sudden passion or fit of rage if it would “arouse the passions of an ordinary person beyond the power of his or her control.” Shane, 63 Ohio St.3d at 635. “If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give an aggravated assault instruction.” Id. at 634.
{19} If the evidence shows that the defendant was sufficiently provoked under the objective standard, the inquiry then shifts to whether the defendant actually was under the influence of sudden passion or a sudden fit of rage. Id. at 634. When a court determines whether the defendant actually was under the influence of sudden passion or a sudden fit of rage, the court must consider the defendant‘s emotional and mental state at the time of the incident. Id.
{20} A defendant is not, however, entitled to an aggravated assault instruction simply
{21} A trial court has discretion to determine whether the record contains sufficient evidence to support an aggravated assault instruction. State v. Bailey, 4th Dist. Ross Nos. 3427 and 3428, 2015-Ohio-2144, 2015 WL 3539615, ¶ 23; State v. McFadden, 4th Dist. Washington No. 14CA5, 2014-Ohio-5294, 2014-Ohio-6680689, ¶ 6; State v. Mitts, 81 Ohio St.3d 223, 228, 690 N.E.2d 522 (1998); see Wine at ¶ 21 (explaining that “[t]he law, the evidence presented, and the discretion of the trial judge play a role in whether lesser-included-offense instructions are appropriate“). Thus, we will not reverse that determination absent an abuse of discretion. An abuse of discretion implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable. E.g., State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{22} In the case at bar, after our review of the evidence we do not believe that the record contains sufficient evidence of serious provocation such that the trial court plainly erred by failing to give the jury an aggravated assault instruction. The evidence presented at trial does not show that any provocation Officer Conkel caused was reasonably sufficient to incite or to arouse appellant into using deadly force. Deem, supra. In an attempt to contain an escalating situation with a prison inmate, Officer Conkel sprayed appellant with mace. Even if Officer Conkel‘s
{24} In the case at bar, the evidence shows that appellant initiated the confrontation with Officer Conkel. Appellant approached the officer and aggressively demanded to know why the officer had searched appellant‘s cell. When appellant refused to comply with the officer‘s orders, the officer used mace to attempt to contain the situation. While the use of mace may have escalated appellant‘s aggressiveness, appellant already displayed aggressive behavior when he confronted Officer Conkel to question why appellant‘s cell had been searched. Appellant arrived to the confrontation already provoked. Appellant‘s failure to heed Officer Conkel‘s order provoked the sequence of events that culminated in appellant hitting and choking the officer.
{25} Additionally, we reject any assertion that the search of appellant‘s prison cell could constitute serious provocation. A reasonable person could not be seriously provoked into using deadly force upon learning that the person‘s prison cell had been searched, even if the search left the cell in shambles, as appellant claims.
{26} Furthermore, as we point out in our discussion of appellant‘s second assignment of error, appellant appears to have made a “tactical gambit” in order to obtain an acquittal on the felonious assault charge, rather than a conviction on an inferior-degree-offense. The Ohio Supreme Court has cautioned that defendants who make “tactical gambits” cannot “then
{27} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
{28} In his second assignment of error, appellant argues that trial counsel did not provide the effective assistance of counsel as guaranteed in the United States and Ohio constitutions. In particular, appellant claims that trial counsel performed ineffectively by failing (1) to request an aggravated assault jury instruction, and (2) to object to the court costs imposed.
A
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
{29} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution provide that defendants in all criminal proceedings shall have the assistance of counsel for their defense. The United States Supreme Court has generally interpreted this provision to mean a criminal defendant is entitled to the “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S. 263, 134 S.Ct. 1081, 1087-1088, 188 L.Ed.2d 1 (2014) (explaining that the Sixth Amendment right to counsel means “that defendants are entitled to be represented by an attorney who meets at least a minimal standard of competence“).
{30} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance
1
Deficient Performance
{31} The deficient performance part of an ineffectiveness claim “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.‘” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at 688; accord Hinton, 134 S.Ct. at 1088. “Prevailing professional norms dictate that with regard to decisions pertaining to legal proceedings, ‘a lawyer must have “full authority to manage the conduct of the trial.“‘” Obermiller at ¶ 85, quoting State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Furthermore, “[i]n any case presenting an ineffectiveness claim, ‘the performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.‘” Hinton, 134 S.Ct. at 1088, quoting Strickland, 466 U.S. at 688. Accordingly, “[i]n order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (citations omitted); accord Hinton, 134 S.Ct. at 1088, citing Padilla, 559 U.S. at 366; State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81.
2
Prejudice
{33} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that “but for counsel‘s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome.” Hinton, 134 S.Ct. at 1089, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. “‘[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.‘” Hinton, 134 S.Ct. at 1089, quoting Strickland, 466 U.S. at 695. Furthermore, courts may
B
AGGRAVATED ASSAULT JURY INSTRUCTION
{34} Appellant first claims that trial counsel performed ineffectively by failing to request the trial court to give the jury an aggravated assault instruction. This court and others have repeatedly held, however, that defense counsel‘s decisions regarding inferior-degree-offense (or lesser-included-offense) jury instructions ordinarily constitute matters of trial strategy. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996); State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980); Dean, supra, at ¶ 32; State v. Daniel, 2016-Ohio-5231, 57 N.E.3d 1203, ¶ 44 (8th Dist.); State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, 2016 WL 1071457, ¶ 73; Columbus v. Clark, 10th Dist. Franklin No. 14AP-719, 2015-Ohio-2046, 2015 WL 3421518, ¶ 27; State v. Cottrell, 4th Dist. Ross Nos. 11CA3241 and 11CA3242, 2012-Ohio-4583, 2012 WL 4713899, ¶ 21; accord; Bailey at ¶ 46. For instance, defense counsel‘s decision to forego
{35} In the case sub judice, trial counsel‘s decision not to request an aggravated assault jury instruction appears to have been a strategic maneuver designed to obtain an acquittal on the charged offense (felonious assault) and to avoid a conviction on an inferior-degree-offense (aggravated assault). We note that trial counsel filed a pretrial motion requesting the trial court to give the jury an aggravated assault jury instruction. Thus, trial counsel obviously was aware that an aggravated assault instruction may be appropriate. Counsel‘s failure to renew his request at trial does not constitute deficient performance and supports the theory that trial counsel made a tactical decision not to request an aggravated assault instruction.
{36} Moreover, “the failure to make a futile objection does not constitute deficient performance.” State v. Corder, 2012-Ohio-1995, 969 N.E.2d 787 (4th Dist.), ¶ 29, citing State v. Washington, 5th Dist. Stark No. 2005CA00050, 2006-Ohio-825, 2006 WL 438691, ¶ 21. As we determined in our discussion of appellant‘s first assignment of error, the evidence presented at trial did not warrant an aggravated assault instruction. Therefore, not only was it a matter of trial strategy whether to request an aggravated assault instruction, counsel‘s objection to the lack of the instruction would have been futile. Fouts at ¶ 75 (noting that trial counsel “not required to pursue a vain act“).
C
COSTS
{37} Appellant next complains that trial counsel performed ineffectively by failing to object when the court ordered appellant to be responsible for court costs.
{39} Although trial courts must “assess costs against all convicted criminal defendants, [the Ohio Supreme Court] has held that ‘waiver of costs is permitted—but not required—if the defendant is indigent.‘” State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11, quoting White at ¶ 14. The trial court thus has discretion to waive court costs if the defendant is indigent. Id. at ¶ 12; see State v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶ 12.
{40}
{41} In Farnese, we explained that the decision when to seek a waiver, suspension, or modification of the costs of prosecution may be a matter of strategy. Id. at ¶ 16. Trial counsel may decide, as a matter of strategy, to delay seeking a waiver, suspension, or modification “until some later time when the trial court had time to either reflect upon its sanctions or the vividness of the impact of [the defendant]‘s conduct had faded.” Id.; accord State v. Farless, 6th Dist. Lucas No. L-15-1060, 2016-Ohio-1571, ¶ 8.
{42} In the case sub judice, we similarly believe that trial counsel‘s decision not to request a waiver of costs at the sentencing hearing may have been a matter of trial strategy. Furthermore, even if we could state that trial counsel performed deficiently by failing to request a waiver at sentencing, appellant cannot demonstrate prejudice. Appellant has not lost the ability to seek a waiver of costs. See
{43} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Scioto County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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.