State v. James

2022 Ohio 2040

Opinion

[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.