[Cite as State v. Moore , 2021-Ohio-54.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. JOVONTA DELMAR MOORE Appellant C.A. No. 29581

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2019-04-1369

DECISION AND JOURNAL ENTRY Dated: January 13, 2021

HENSAL, Judge. {¶1} Jovonta Moore appeals his convic tions for felony murder and fel onious assault from the Summit County Court of Common Pleas. For the reasons that follow, this Court affirms.

I. {¶2} There was no dispute at trial that Mr. Moore shot and killed th e victim in this case on March 31, 2019. According to Mr. Moore, he shot the victim in self-defense. According to the State, Mr. Moore did not shoot the unarmed victim in self-defen se. While many facts were in dispute at trial, the fo llowing facts were not. {¶3} Mr. Moore has two children with K.L., his former girlfriend. D uring their relationship, K.L.’s mother, S.H., treated Mr. Moore like a son . When K.L. and Mr. Moore broke up, Mr. Moore continued to visit his children at S.H.’s house, and S.H. continued to treat him like

a son.2

{¶4} K.L. then started dating the victim, who was also dating A.T. The victim had a daughter from a previous relationship. At the time of the shoo ting, Mr. Moore and the victim had known each other for about a month. There was no dispute that they did not get along. According to Mr. Moore, the victim seemed to have a problem with the fact that he (Mr. Moore) would visit his kids at S.H.’s house while K.L. was there. According to th e witnesses’ interviews with the police and/or their testimony a t trial, each man had threatened to harm the other at one point prior to the fatal shooting. {¶5} At trial, witnesses primarily testified as to events that occur red on three separate dates: March 23, 2019, Marc h 25, 2019, and March 31, 2019. Eac h event involved an altercation

between the victim and M r. Moore. We will ad dress each event i n turn. {¶6} On March 23, 2019, one of S.H.’s neighbors heard several gunsho ts while she was making breakfast in her kitche n. When the neighbor looked outs ide, she saw a man standing in the middle of the street arguing with someone who was standing on the front porch of S.H.’s house. The neighbor did not recognize either person, nor did she see w ho fired the shots. The man in the street then got into his car and sped off. The police arrived shortly thereafter. S.H. denied that her

house was involved in the incid ent, and the police made no arre sts. {¶7} Mr. Moore initially told the police that the victim had been th e person in the street on March 23, 2019, and that he (the victim) had fired several s hots into the air. At trial, however, Mr. Moore admitted that he had been the person in the street, a nd that he had fired the shots. More specifically, he testified that the victim was standing on the front porch of S.H.’s house, that he (Mr. Moore) was standing outside of his car that was stopped in the street, and that they were arguing back and forth. He testified that the victim was threa tening him and that, although he was not sure whether the victim had a gun on him, he looked like he was clutching something. Mr.3

Moore testified that he fired the shots into the air to startle the victim and allow him (Mr. Moore) time to get back into his car and leave. We now turn to the ev ents that occurred on March 25,

2019. {¶8} According to K.L., S.H., and Mr. Moore, they went to Save-A-Lot on March 25, 2019 to buy groceries. S.H. was driving, and Mr. Moore was in the passenger’s seat. As Mr. Moore was stepping out of the car, S.H. noticed that the victim had pulled up in a car behind them. S.H. immediately pulled Mr. Moor e back into the car and started to drive off. According to S.H., the victim had a gun on him. The victim then chased S.H.’s car , and S.H. ran several red lights

and made a U-turn in order to a void him. The victim later show ed up at S.H.’s house and started yelling for Mr. Moore to come outside and fight. The victim ha d friends with him, one of whom appeared to have a gun. Mr. Moore stayed inside, and the victi m and his friends eve ntually left. {¶9} According to A.T., she had been with the victim on March 25, 20 19, and he did not have a gun on him. A.T. testifie d that – through a video call between Mr. Moore and the victim that day – she saw Mr. Moore waving a gun saying he was going t o kill the victim and his daughter.

K.L. also recalled that Mr. Moore had threatened to kill the vi ctim and his daughter. According to S.H. and another witness (whom S.H. had asked to testify and wh o previously lied to the police about knowing Mr. Moore), they h eard the victim say that he was going to kill Mr. Moore. We now turn to the night of the fatal shooting. {¶10} On March 31, 2019, Mr. Moore shot and killed the victim. While that fact was not in dispute, the witnesses at trial provided varying versions of the events leading up to the shooting. Many of the versions of the events also varied from the previou s versions those witnesses had told the police. Certain facts, how ever, were not in dispute.4

{¶11} There was no dispute that Mr. M oore was at S.H.’s house on Marc h 31, 2019 for a family dinner. K.L. and her ch ildren (whom she shares with Mr. Moore) were also there. According to A.T., she and the victim drove to S.H.’s house bec ause K.L. had not been answering the victim’s calls, and he wanted to see if K.L. was there. Wh en they arrived, the victim exited

the car and knocked on the back door of S.H.’s house. A.T. sta yed in the car. When no one answered the back door, the victim ran around to the front of S .H.’s house and entered through the front door. While inside, Mr. Moore and the victim began argui ng, and S.H. eventually told both of them to leave. The victim exited the house first, and Mr. M oore followed closely behind. What happened next varied be tween the witnesses. {¶12} According to A.T., she heard K.L. calling for her so she got ou t of the car. When she did, she saw Mr. Moore standing on the porch talking on his cell phone and pointing a gun at the victim, who was standing on the front porch steps. A.T. te stified that the victim was unarmed,

but that she could tell he wanted to fight Mr. Moore. The vict im then made a movement toward

Mr. Moore. Mr. Moore fired several shots at the victim as the victim was ascending the front porch steps. A.T. testified that the vic tim appeared to raise his arm over his chest to shield himself immediately prior to Mr. Moore shooting him. {¶13} According to K.L.’s initial interview with the police on the ni ght of the shooting, the victim and Mr. Moore had been arguing inside of her mother’ s (S.H.) house. She and S.H. tried to diffuse the situation, but Mr. Moore eventually got ou t his gun. K.L. then went outside to get A.T., who was still in the car, so that A.T. could also hel p diffuse the situation. The victim then exited S.H.’s house, and Mr. Moore was right behind him ta lking on his cell phone. Mr. Moore then pointed the gun at the victim. K.L. stated that the victim moved his arm over his chest5

to protect himself and tried to push the gun away from Mr. Moor e. Mr. Moore then “opened fire” and began shooting at the victim while he (Mr. Moore) was still on the phone. {¶14} At trial, however, K.L. provided a different version of the eve nts. She testified that she previously lied to the police because she and Mr. Moore did not get along, and she wanted him to look bad. She testified that, after the victim went down th e front porch steps, he turned and shoved her into the yard, leapt over the steps, and charged at Mr. Moore. She testified that Mr. Moore was holding his cell phone when he shot the victim, but w as not on it. The video of K.L.’s interview with the police was played at trial, and the State hi ghlighted the numerous

inconsistencies betw een her initial statement to the police and her testimony at trial. We now turn

to the statements and testimony of K.L.’s mother, S.H. {¶15} When the police arrived after t he fatal shooting, S.H. denied s eeing the shooting or knowing Mr. Moore’s real name; she only identified him by his s treet name, Woo. The next day, however, she went to the police and acknowledged that she initi ally did not tell the whole truth. S.H. told the police that she had told the victim and Mr. Moore to get out of her house because they were arguing. The victim left through the front door and ran down the front porch steps, all while threatening to beat up Mr. Moore. The next thing she kne w, the victim hopped and/or ran back up the porch steps and went to attack Mr. Moore. At that point, Mr. Moore drew his gun from his pocket and shot the v ictim. S.H. acknowledged that she did not see the victim with a gun that night. At no point during that interview did S.H. indicat e that the victim had threatened to kill Mr. Moore. At trial, however, S .H. testified that she had hear d the victim threaten to kill Mr. Moore on a previous occasion, a nd that the victim tried to atta ck Mr. Moore while they were still inside her home on March 31, 2019.6

{¶16} After his arrest for murder, a detective with the Akron Police Department

interviewed Mr. Moore. Mr. M oore initially denied knowing anyt hing about the fatal shooting.

After the detective told him that other witnesses had identifie d him as the shooter, he acknowledged that he shot the vi ctim, but claimed he acted in s elf-defense. According to Mr. Moore, the victim charged at him and, because he did not know w hat the victim was about to do to him, he shot him. He then panicked, got into his car, and f led the scene. At no point during that

interview did Mr. Moore indicate that the victim had threatened to kill him. At trial, however, Mr.

Moore stated for the first time that he thought his life was in danger, and that the victim told him he was a dead man, and that he (the victim) was going to kill h im. Mr. Moore also stated for the first time that, while he was in side S.H.’s house, the victim h ad used his hand to make a shooting gesture toward him. Mr. Moore acknowledged, however, that the victim was unarmed. When the State presented Mr. Moore with the transcript of his initial in terview with the police during his cross-examination, Mr. Moore ac knowledged that he had lied seve ral times during that interview. Mr. Moore insisted, however, that he shot the victim out of fea r that the victim would hurt or kill

him. {¶17} The jury ultimately found Mr. M oore guilty of one count of felo ny murder under Revised Code Section 2903.02(B), one count of felonious assault under Section 2903.11(A)(1),

and one count of felonious a ssault under Section 2903.11(A)(2), all with accompanying firearm specifications. The jury found Mr. Moore not guilty of murder under Section 2903.02(A). He now appeals, raising four assignme nts of error for this Court’s review.

II.

ASSIGNMENT OF ERROR I

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT FOR MURDER, PURSUANT TO R.C. 2903.02(B) AND7

FELONIOUS ASSAULT, PURSUANT TO R.C. 2903.11(A)(1) OR R.C. 2903.11(A)(2).

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL’S CRIMINAL RULE 29 MOTION. {¶18} In his first and third assignmen ts of error, Mr. Moore challeng es the sufficiency of the evidence presented at trial, as well as the trial court’s d enial of his motion under Criminal Rule 29, respectively. “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 su fficient evidence.” State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37. This Court, therefor e, will address Mr. Moore’s first and third assignments of error together. {¶19} In his first assignment of error, Mr. Moore argues that the Sta te failed to present sufficient evidence to support his convictions for felony murde r and felonious assault. In his third assignment of error, Mr. Moore argues that the trial court erre d by denying his motion to acquit under Criminal Rule 29. In support of both assignments of erro r, Mr. Moore argues that the evidence presented at trial clearly showed that he acted in sel f-defense 1 and that, even if the jury rejected his self-defense claim, the evidence – at most – estab lished that he committed aggravated assault and manslaughter. For t he reasons that follow, we reje ct Mr. Moore’s arguments. {¶20} Whether a conviction is supported by sufficient evidence is a q uestion of law, which

we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view the evidence in the light most favo rable to the prosecution: An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such eviden ce, if believed, would convince th e average mind of

1 Mr. Moore also mentions the defense of defense-of-others, but he has not developed a meaningful argument in that regard. See App.R. 16(A)(7).8

the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph t wo of the syllabus. {¶21} As previously noted, Mr. Moore was convicted of felonious assau lt under Sections 2903.11(A)(1) and 2903.11(A)(2). Thos e sections provide that “ [n]o person shall knowingly * * * [c]ause serious physical harm to another or * * * [c]ause * * * physical harm to another * * * by means of a deadly weapon[.]” “ A person acts knowingly , regardless of purpose, when the person is aware that the person’s conduc t will probably cause a certai n result or will probably be of a certain nature.” R.C. 2901.22(B). “Evidence that a defendant fired a gun in a person’s direction is sufficient evidence that the defendant acted knowingly for t he purpose of a felonious assault conviction.” (Alte ration omitted.) State v. Ivery , 9th Dist. Summit No. 28551, 2020-Ohio-3349, ¶ 13, quoting State v. Fox , 10th Dist. Franklin No. 17AP-295, 2018-Ohio-501, ¶ 14. {¶22} Section 2903.02(B), also under whic h Mr. Moore was convicted, g overns felony murder. It provides that “[n]o person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of vio lence that is a felony of the first or second degree and that is not [voluntary manslaughter] or [i nvoluntary manslaughter].” R.C. 2903.02(B). Voluntary manslaughter occurs when a person knowin gly causes the death of another

“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 reas onably sufficient to incite the person into using deadly force[.]” R.C. 2903.03. Involuntary manslau ghter occurs, in part, when a person causes the death of another “as a proximate result of the offen der’s committing or attempting to commit a felony.” R.C. 2903.04(A). The distinguishing factor between felony murder and involuntary manslaughter is the mental state involved in the ac t. State v. Lynch , 98 Ohio St.3d9

514, 2003-Ohio-2284, ¶ 79. “[A] person commits felony murder * * * by proximately causing another’s death while possessing t he mens rea element set forth in the underlying felony offense.” State v. Fry , 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 43. For involuntary ma nslaughter under Section 2903.04(A), “[i]f the offende r commits a felony offense with the requisite culpability and a death results proximately therefrom, the state has met its bu rden.” State v. Hill , 8th Dist. Cuyahoga No. 106017, 2018-Ohio-1401, ¶ 10. {¶23} Regarding Mr. Moore’s argument that the evidence established th at he acted in selfdefense, this Court notes tha t, on March 28, 2019, amendments t o Section 2901.05 went into effect that changed the burden of going f orward and burden of proof as to self-defense. These amendments “changed self-defense from an affirmative defense th at a defendant must prove to a burden that the prosecution must carry to show that the defenda nt did not use force in self-defense.”

State v. Robinson , 9th Dist. Lorain No. 19CA011495, 2020-Ohio-4502, ¶ 17, citing R.C. 2901.05(A), (B)(1). “Consequently, once there is evidence pres ented at trial that tends to support that the defendant acted in self-defense, the State must dispro ve one of the elements of self-defense beyond a reasonable doubt.” State v. Williams , 9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶

10. {¶24} Mr. Moore’s trial occurred aft er the amendments to Section 2901 .05 went into effect, and the trial court instructed the jury under the new s elf-defense law. Mr. Moore’s merit brief, however, relies upon pre-am endment self-defense law, and this Court will not develop an argument based upon the new law on his behalf. See State v. Bramos , 9th Dist. Medina No. 19CA0061-M, 2020-Ohio-1169, ¶ 11 (“This Court will not create or develop an argument on [the appellant’s] behalf.”). We now turn to his a rgument that the evidence estab lished, at most, that he committed aggravated assau lt and manslaughter.10

{¶25} As previously noted, an offender commits voluntary manslaughter when that person knowingly causes the death of another “while under the i nfluence of sudden passion or in a sudden fit of rage[.]” R.C. 2903.03. An offender commits in voluntary manslaughter with the predicate offense of aggravated assault when the offender cause s the death of another as a proximate result of committing aggravated assault. R.C. 2903.0 4(A) (providing that “[n]o person

shall cause the death of another * * * as a proximate result of the offender’s committing * * * a felony.”); R.C. 2903.12(B) (providing that aggravated assault i s a felony). Aggravated assault under Section 2903.12 requires that the offender be “under the influence of sudden passion or in a sudden fit of rage[.]” R.C. 2903.12(A). {¶26} There was no dispute at trial that Mr. Moore knowingly shot the victim, which resulted in the victim’s death. As the State points out, Mr. M oore, along with the other witnesses who testified at trial, provided no testimony indicating that M r. Moore shot the victim while under the influence of sudden passion or in a sudden fit of rage. Th e defense’s theory at trial, which was supported by Mr. Moore’s own testimony, was that Mr. Moore shot the victim out of fear because the victim was about to attack him. Having reviewed the record , we conclude that sufficient evidence existed to support Mr. Moore’s convictions for felony murder and felonious assault. Accordingly, Mr. Moore’s first and third assignments of error a re overruled.

ASSIGNMENT OF ERROR II

THE VERDICT OF GUILTY FOR MURDER AND FELONIOUS ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶27} In his second assignment of error, Mr. Moore argues that his co nvictions for felony

murder and felonious assault were against the manifest weight o f the evidence. This Court disagrees.11

{¶28} When considering a cha llenge to the manifest weight of the evid ence, this Court is required to consider the entire record, “weigh the evidence and all reasonable inferences, consider the credibility of witnesses and de termine whether, in resolvin g conflicts in the evi dence, the trier of fact clearly lost its way and created such a manifest miscar riage of justice that the conviction

must be reversed and a new trial ordered.” State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the eviden ce pertains to the greater amo unt of credible evidence produced in a trial to support one side over the other side. Thompkins , 78 Ohio St.3d 380, at 387. An appellate court should only exerci se its power to reverse a jud gment as against the manifest weight of the evidence in exceptional cases. State v. Carson , 9th Dist. Summit No. 26900, 2013-Ohio5785, ¶ 32, citing Otten at 340. {¶29} Mr. Moore argues that the evidence presented at trial indicatedthat he acted in selfdefense, or that – at most – he should have been convicted of m anslaughter because the victim’s actions against him amounted to serious provocation. We will a ddress each argument in turn. {¶30} Regarding his self-defense argument, Mr. Moore has not argued t hat the evidence weighed heavily against a conclu sion that the State disproved o ne of the elements of self-defense beyond a reasonable doubt, which is the standard under the pos t-amendment self-defense law. R.C. 2901.05(B)(1); Williams , 2020-Ohio-3269, at ¶ 10, 32 (applyi ng the post-amendment self

defense law to a manifest-weight challenge, and concluding that the evidence did not weigh heavily against the conclusion that the State disproved the ele ments of self-defense). In fact, other than law relating to the manifes t-weight standard, his second a ssignment of error contains no law in support of his position. See App.R. 16(A)(7) (requiring an appellant’s brief to include “ci tations to the authorities * * * on which appellant relies.”). This Co urt will not create a manifest-weight argument under the post-amendment self-defense law on Mr. Moore ’s behalf. See Bramos , 2020-12

Ohio-1169, at ¶ 11 (“This Court will not create or develop an argument on [the appellant’s] behalf.”). {¶31} Regarding Mr. Moore’s argument that he should have been convict ed of manslaughter because the victim’ s actions against him amounted to serious provocation, we reject that argument. As we noted in our analysis of Mr. Moore’s firs t and third assignments of error, Mr. Moore, along with the other witnesses who t estified at tria l, provided no testimony indicating

that Mr. Moore shot the victim while under the influence of sud den passion or in a sudden fit of rage. The defense’s theory at trial, which was supported by Mr . Moore’s own testimony, was that

Mr. Moore shot the victim out of fear because the victim was ab out to attack him. We, therefore, reject Mr. Moore’s argument. {¶32} Having reviewed the entire record, we conclude that this is not the exceptional case in which the evidence at trial weighed heavily against Mr. Moor e’s convictions. Mr. Moore’s second assignment of e rror is overruled.

ASSIGNMENT OF ERROR IV

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE FROM HIS TRIAL COUNSEL, WHO FAILED TO REQUEST JURY INSTRUCTIONS FOR MANSLAUGHTER AND AGGRAVATED ASSAULT. {¶33} In his fourth assignment of error, Mr. Moore argues that his tr ial counsel provided ineffective assistance because he did not request jury instruct ions for aggravated assault or manslaughter. He argues that the evidence at trial clearly est ablished that he shot the victim as a result of serious provocation. He also argues that the importa nce of requesting aggravated assault and manslaughter jury instructions is evidenced by the fact tha t the jury was deadlocked on the murder count under Section 2903.02(A).13

{¶34} To prevail on a claim of ineffec tive assistance of counsel, Mr. Moore must establish (1) that his counsel’s performan ce was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective stan dard of reasonable representation. State v. Bradley , 42 Ohio St.3d 136 (1989), paragr aph two of the syllabus. A c ourt, however, “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistan ce; that is, the defendant must overcome the presumption that, under the circumstances, the cha llenged action ‘might be consid ered sound trial strategy.’”

Strickland at 689, quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955). To establish prejudice, Mr. Moore must show that there existed a reasonable probability that, but for his counsel’s errors, the outcome of the proceeding would have been different. State v. Sowell , 148 Ohio St.3d 554, 2016-Ohio- 8025, ¶ 138. {¶35} “Generally, the failure to request jury instructions is purely a matter of trial tactics and will not be disturbed upon review.” State v. Herrington , 9th Dist. Summit No. 25150, 2010- Ohio-6455, ¶ 11. This is especially so in cases where the jury instruction at issue would have

undermined or been inconsistent w ith the defense’s theory of th e case. See, e.g. , id. (holding that the decision to not request a jury instruction that would have been inconsistent with defense counsel’s theory of the case “fe ll within the purview of trial tactics and did not equate

to ineffective assist ance of counsel.”); State v. Mohamed , 151 Ohio St.3d 320, 2017-Ohio-7468, ¶ 24 (concluding that trial counsel d id not provide ineffective a ssistance by not requesting a jury

instruction that would have under mined counsel’s trial strategy ).14

{¶36} Here, Mr. Moore repeatedly testified that he shot the victim in self-defense because he was afraid of what the victim was about to do to him. Now, for the first time on appeal, he argues that the victim’s acti ons amounted to serious provocatio n. Yet “a theory of self-defense is incompatible with a theory of aggravated assault, because the f ormer requires proof of defendant’s fear or apprehension while the latter requires a showing of ser ious provocation or rage.” State v.

Fedrick , 9th Dist. Summit No. 28120, 2017-Ohio-2635, ¶ 12, quoting State v. Cremeans , 9th Dist. Summit No. 22009, 2005-Ohio-261, ¶ 16. Given the testimony pre sented at trial – including Mr.

Moore’s own recitation of the eve nts – we cannot say that Mr. M oore’s trial counsel provided ineffective assistance by not req uesting jury instructions for aggravated assault, voluntary manslaughter, or involuntary mansl aughter with the predicate of fense of aggravated assault, all of which required proof that Mr. M oore acted “under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocati on occasioned by the victim * * *.” R.C. 2903.12, R.C. 2903.03, and R.C. 2903.04; see also Fedrick at ¶ 8-9 (addressing circumstances when a trial court is required to instruct the jury on aggravat ed assault in a felonious assault case). Mr. Moore’s fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT DENIED DEFENDANT DUE PROCESS AND COMMITTED PLAIN ERROR BY NOT GIVING THE JURY INSTRUCTIONS FOR MANSLAUGHTER AND AGGRAVATED ASSAULT AFTER SIGNIFICANT TESTIMONY ABOUT THE DECED[E]NT’S THREATENING AND ABUSIVE ACTIONS AND BEHAVIOR TOWARD APPELLANT. {¶37} In his fifth assignment of error, Mr. Moore argues that the tri al court committed plain error by not sua sponte in structing the jury on aggravate d assault and manslaughter. We disagree.15

{¶38} “To establish plain error, a defendant must show that (1) there was an error or deviation from a legal rule, (2) the error was plain and obviou s, and (3) the error affected the

outcome of the trial.” Mohamed , 2017-Ohio-7468, at ¶ 26, citing, State v. Barnes , 94 Ohio St.3d 21, 27 (2002). In light of this Court’s resolution of Mr. Moor e’s fourth assignment of error, we

hold that Mr. Moore has failed to establish that the trial cour t committed plain error by not instructing the jury on aggravated assault or manslaughter. Mohamed at ¶ 27 (“When the decision not to request a particular jury instruction may be deemed to b e part of a reasonable trial strategy, we will not find plain error.”). M r. Moore’s fifth assignment of error is overruled.

III. {¶39} Mr. Moore’s assignments of error are overruled. The judgment o f the Summit County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.16

JENNIFER HENSAL FOR THE COURT

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: JAMES W. ARMSTRONG, Attorn ey at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.