[Cite as State v. Bouie, 2019-Ohio-4579.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108095 

 v. : 

 

DEON BOUIE, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 7, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-18-625670-B 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, Eben McNair, Megan A. Helton, and Owen M. 

Patton, Assistant Prosecuting Attorneys, for appellee. 

Stephen L. Miles, for appellant. 
MARY J. BOYLE, P.J.: 

Defendant-appellant, Deon Bouie, appeals his convictions. He raises 

three assignments of error for our review: 

1. The appellant’s convictions were against the manifest weight of the 

evidence. 

2. The trial court erred by not instructing the jury on aggravated 

assault. 

3. The appellant received ineffective assistance of counsel. 

Finding no merit to his assignments of error, we affirm. 

I. Procedural History and Factual Background 

On February 13, 2018, a Cuyahoga County Grand Jury indicted Bouie 

for one count of attempted murder, a felony of the first degree, in violation of R.C. 

2923.02 and R.C. 2903.02(A); four counts of felonious assault, felonies of the 

second degree, in violation of R.C. 2903.11(A)(2); one count of felonious assault, a 

felony of the second degree, in violation of R.C. 2903.11(A)(1); one count of domestic 

violence, a felony of the fourth degree, in violation of R.C. 2919.25(A); one count of 

having weapons while under a disability, a felony of the third degree, in violation of 

R.C. 2923.13(A)(3); and one count of tampering with evidence, a felony of the third 

degree, in violation of R.C. 2921.12(A)(1). The counts for attempted murder, 

felonious assault, and domestic violence all carried one- and three-year firearm 

specifications. 

Bouie pleaded not guilty to the indictment, and the case proceeded to 

a jury trial in December 2018. Bouie waived his right to a jury trial on the weapons-
disability charge, which was heard by the bench. The following evidence was 

presented at trial. 

On the evening of January 31, 2018, Shawnelle Howard was driving 

around with her cousin, Jamie Manning, and two friends, Nancy Jo Robinson and 

Demetrius Solomon.1 Solomon was sitting in the front passenger seat of the vehicle. 

Around 11:00 p.m., Howard received a call from Bouie, who is the father of Howard’s 

child. Howard said that she and Bouie had an “off and on” relationship, but that 

their relationship was “on” in January 2018. Howard explained that at that time, 

she and Bouie lived together in a house on E. 144th Street in Cleveland, Ohio, but 

Bouie did not have a key to the house. Bouie called Howard so that she would come 

to the house and unlock the door for him. Howard told Bouie that she would “be 

there shortly.” Howard also testified that she did not tell Bouie who was in the car 

with her and that she was not romantically involved with Solomon. 

When Howard and the others arrived at the house on E. 144th Street, 

Howard parked her car in the driveway, which was to the right of the home, left the 

driver’s side door open, and walked up to the front door. When she reached the 

front door, Howard said that Bouie came out of the house. Howard and Bouie “got 

into an altercation verbally” and Bouie “was trying to get past [Howard], like trying 

to move [her] out of the way so he [could] get to the car.” Bouie was angry that 

Solomon was in Howard’s car. Howard said that she and Bouie “were tussling” near 

 1 Robinson did not cooperate with police and would not give a statement. 
her car when she “collapsed” and “saw darkness.” The next thing that Howard 

remembered was Bouie “screaming in [her] face” and asking her where she had been 

shot. She also remembered Bouie trying to put her in her car. Howard did not 

remember hearing gunshots before she collapsed. She testified, however, that she 

did not see a gun in Bouie’s hands because “[she] was in his hands.” When asked if 

she believed Bouie was acting in self-defense, Howard said, “I would say so, I mean, 

but I didn’t see him shoot, so — I didn’t see him shoot so I can’t say I saw him acting 

in self-defense.” 

On cross-examination, Howard stated that although she spoke to 

Bouie a number of times while he was in jail, he never told her to lie. She said they 

spoke about her injuries and about their son during those calls. 

Detective John Freehoffer interviewed Howard at the hospital. He 

said that Howard told him that Solomon was acting in self-defense. He included 

that fact in his report. Howard testified that when Detective Freehoffer came to the 

hospital to take her statement, she had just awoken from a medically induced coma 

and did not remember speaking to him. Howard also denied telling Detective 

Freehoffer at the hospital that Solomon shot in self-defense and said that the 

detective would be lying if he said she told him that. 

Detective Freehoffer stated that he later interviewed Howard when 

she was in a rehabilitation center. He said that Howard’s version of events was not 

consistent with what she originally told him at the hospital. He also said that 
Howard was hostile toward him during the interview. She refused to give Detective 

Freehoffer a recorded statement. 

Manning’s version of the events differed from Howard’s version. 

According to Manning, she did not think that Bouie and Howard were still in a 

relationship as of that night “because of an incident” that occurred two weeks 

previously. Manning did not think that Bouie was living with Howard because 

Howard had recently changed the locks to the home. Manning also thought that 

Howard and Solomon were together because she heard Howard call him “baby” in 

the car. 

Manning testified that when Bouie called Howard that night, she 

heard Howard tell Bouie who was in the car with her. Manning also stated that she 

did not think that Bouie would still be at the house when they arrived because she 

heard Bouie tell Howard that he had already left. Manning believed that they were 

going to stop by the house, Howard was going to unlock the door, and then they 

would leave. 

According to Manning, when Howard reached the front door to 

unlock it, Bouie walked out of the house. Manning said Howard “turned right 

around, came down the stairs” and that “Bouie followed her.” Manning testified that 

Howard and Bouie were talking, but that she could not hear what they were saying. 

Manning stated that Bouie followed Howard to the vehicle’s driver-side door, was 

“right behind [Howard],” and reached over Howard and started firing into the car 

towards the front seat where Solomon was sitting. 
Manning testified that she had not seen Solomon with a gun prior to 

that moment, that she did not hear anyone say anything threatening or provocative 

to Bouie, and that Bouie just came up to Solomon and started shooting first. 

Manning said that immediately after Bouie began shooting, Howard turned toward 

Bouie and tried to stop him. Manning testified that Solomon began shooting back 

toward Bouie. Manning did not see where Howard was when Solomon returned 

fire. Manning said that Bouie moved towards the back of the vehicle, and Bouie and 

Solomon continued shooting at each other through the car. 

Manning testified that Solomon got out of the car and ran down the 

street while Solomon and Bouie were still shooting at one another. She said that 

when the shooting finally stopped, she went to Howard, who was lying on the ground 

next to the vehicle. Manning stated that Howard told her she had been shot and 

could not feel her legs. Manning called 911. 

Manning testified that Bouie hung around the scene and was talking 

to another man until the ambulance showed up, which is when he walked to the 

house across the street. 

Manning initially told police that when she heard gunshots, she put 

her head down and did not see who fired first. Manning testified that she lied to 

police and told them that because Bouie “was still on the scene somewhere close 

enough to that vicinity [and she] didn’t want him [to] see [her] talking to any police 

at that time.” Manning later returned to police headquarters and gave a written 

statement. 
During cross-examination, Manning explained that she knew Bouie 

and previously dated Bouie’s brother. She also agreed that she never liked Bouie 

very much based on what Howard told her. She also said that she had not talked to 

Howard since she visited her in the hospital in January because Howard did not 

want her to testify. 

Bouie testified that he was living with Howard on E. 144th Street on 

January 31, 2018, and that after doing laundry at his mother’s house, he returned 

home to find the door locked. He said he called Howard and that she told him she 

would come back to unlock the door for him. He said Howard did not tell him that 

she was with anybody else and that he did not know Solomon. 

Bouie testified that when Howard arrived and he saw Solomon in the 

car, he started walking toward the car to make Solomon get out of the car and leave. 

Bouie said that Howard tried to stop him from walking past her toward the car, and 

that as he was trying to get past her, “shots rang out.” Bouie testified that he got shot 

in his left shoulder and that he ran to the back of the car. Bouie said that Solomon 

continued shooting at him through the back window. Bouie stated that he had a 9 

mm gun and that as Solomon was “running off” shooting, he fired back at Solomon. 

Bouie testified that he shot “probably three or four” times, but that Solomon shot 

first. He said he had no intention of shooting Solomon when he walked toward the 

car and that he only shot to defend himself and Howard. 

After Solomon left, Bouie said he ran over to help Howard and tried 

to put her in the car. Bouie testified that Manning and Robinson were present as 
well as his friend, Kirk White, who lived directly across the street. Bouie testified 

that he was at the scene when the ambulance arrived. Bouie said that he was also 

still on scene when police arrived and that he told an officer the direction in which 

the shooter had run. Bouie said that he then crossed the street and went to White’s 

house to try to bandage his arm. Bouie testified that he left his gun at White’s house 

and had his mother pick him up and take him to the hospital. 

When police went to the hospital to talk to Bouie, Bouie was not 

cooperative. Bouie initially denied being at the scene during the shooting. When 

asked how he got shot, Bouie told police that he had been shot during a robbery on 

Quincy Avenue. 

On cross-examination, Bouie admitted that he lied to the police at the 

hospital. He also admitted to telling different versions of what occurred that night. 

Bouie said that he was scared and under the influence of pain medicine at the 

hospital when police came to speak to him. 

Bouie later gave a recorded statement to police, which was played in 

court. In the recording, Bouie told police that he and Solomon had a disagreement. 

Bouie stated that Solomon shot him and Howard. Bouie said that he was not arguing 

with Howard at that time, but that Howard was trying to tell him that she and 

Solomon were just friends. Bouie said that Solomon started shooting at him as he 

was walking out of the house. When officers asked Bouie if he had a firearm on him 

when he came out of the house, Bouie said he did not and that he ran back inside 

the house to retrieve a gun after Solomon started shooting at him. Bouie stated that 
when he came outside, Solomon was running down the street. Bouie also told police 

that he was not sure if he “hit” Solomon and said that he did not start shooting at 

Solomon until Solomon started running away. Bouie also told police that he did not 

know how many times he fired the gun and that he left the gun at the scene. 

Bouie admitted that he had a felony record, including drug 

trafficking, burglary, domestic violence, endangering children, assault of a police 

officer, and resisting arrest. 

White testified that he lived with his girlfriend across the street from 

Bouie and Howard. White said that he knew Bouie, but did not know Howard. 

White was with his girlfriend around midnight when he heard gunshots. He looked 

outside and saw a “couple of people” arguing across the street, including Bouie, 

another man, and Howard. White testified that he saw Solomon start shooting first, 

Howard get shot, and Bouie start shooting back. White then saw Solomon run down 

the street, and he then went outside to help Bouie put Howard in the car. White saw 

that Bouie had been shot in his arm and after the ambulance arrived but before the 

cops arrived, he had Bouie come back to his girlfriend’s house to help him with his 

arm. White testified that Bouie asked him if he would “be able to hold the gun for 

[Bouie] because he was going to the hospital.” White said that Bouie left for the 

hospital before the cops arrived. 

When police first talked to White in his girlfriend’s home, he “was 

very evasive” and hid the gun from police. When police returned a short while later, 

White left the house and told police that he did not have the gun. When he tried to 
walk away, however, police stopped him and White gave them the gun, a semiautomatic Glock 9 mm. White was arrested for carrying a concealed weapon. 

When asked about a voluntary statement that he gave to police in 

which he said that Howard was already on the ground when he looked out the 

window, White said that he actually saw the shooting occur. 

Police took photos of the crime scene, including pictures showing 

spent shell casings from a 9 mm gun and a .45-caliber gun. Police recovered the 9 

mm Glock from White (the one that Bouie gave to White to hold for him when he 

went to the hospital) but they never found the .45-caliber gun. Police found spent 

shell casings from the .45-caliber gun near the driver’s door of Howard’s car and 

inside the vehicle, on the floor of the front passenger seat, and near the front center 

console. They found 9 mm shells on the ground behind the vehicle and one on the 

street. The driver’s side window of Howard’s car and the rear passenger side window 

were shattered. 

A firearms and tool-mark examiner testified that he authored a report 

on a 9 mm gun and the spent shell casings found at the scene. He said that based on 

his analysis, the 9 mm was operable. He further stated the .45-caliber shell casings 

were fired from the same unknown .45-caliber gun and that the 9 mm shell casings 

were from the 9 mm Glock seized from White. 

The jury found Bouie guilty of felonious assault of Solomon with the 

one- and three-year firearm specifications and tampering with evidence. The jury 
found Bouie not guilty of the remaining counts. The court found Bouie guilty of 

having weapons while under a disability. 

The trial court sentenced Bouie to six years on the base charge of 

felonious assault to be served consecutive to the one- and three-year firearm 

specifications, which merged into a three-year term. It also sentenced him to 36 

months for his conviction for having weapons while under a disability and 36 

months for tampering with evidence. The trial court ordered that the sentences for 

the base charges run concurrent to one another, giving Bouie an aggregate sentence 

of nine years. The trial court advised Bouie that he was subject to a three-year 

mandatory term of postrelease control and advised him of the consequences of 

violating that postrelease control. The trial court also waived Bouie’s costs. 

It is from this judgment that Bouie now appeals. 

II. Law and Analysis 

A. Manifest Weight of the Evidence

In his first assignment of error, Bouie argues that his conviction for 

felonious assault was against the manifest weight of the evidence. 

A challenge to the manifest weight of the evidence tests whether the 

prosecution has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 

380, 388, 678 N.E.2d 541 (1997). On review from a manifest-weight challenge, the 

appellate court is tasked with reviewing all of the evidence in the record and in 

resolving the conflicts therein, determining whether 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.’” Id. at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 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.” Id. 

Bouie argues his conviction for felonious assault against Solomon was 

against the manifest weight of the evidence because (1) the evidence showed he was 

acting in self-defense and (2) the only witness to testify that Bouie fired his gun first, 

Manning, was unreliable and provided contradictory testimony. 

R.C. 2903.11(A)(2), the felonious-assault statute, states, “No person 

shall knowingly * * * [c]ause or attempt to cause physical harm to another by means 

of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the 

Revised Code.” 

In Ohio, self-defense is an affirmative defense that a defendant must 

prove by a preponderance of the evidence.2 R.C. 2901.05(A); State v. Williford, 49 

 

2 The General Assembly amended R.C. 2901.05 through Am.Sub.H.B. 228, which was 

effective on March 28, 2019. The amended statute now places the burden of proof of selfdefense to the state. The statute states: 

(A) Every person accused of an offense is presumed innocent until proven 

guilty beyond a reasonable doubt, and the burden of proof for all elements 

of the offense is upon the prosecution. The burden of going forward with 

the evidence of an affirmative defense, and the burden of proof, by a 

preponderance of the evidence, for an affirmative defense other than selfdefense, defense of another, or defense of the accused's residence as 

described in division (B)(1) of this section, is upon the accused.

(B)(1) A person is allowed to act in self-defense, defense of another, or 

defense of that person’s residence. If, at the trial of a person who is accused 
Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). To succeed on a claim of self-defense, 

a defendant must establish the following three elements: (1) no fault in creating the 

situation giving rise to the affray; (2) a bona fide belief that he or she was in 

imminent danger of death or great bodily harm and that the only means of escape 

from such danger was in the use of force; and (3) no violation of any duty to retreat 

or avoid the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). 

Specifically, as to the third element, “[b]efore using deadly force in self-defense, a 

person must first use any reasonable means of retreat when attacked outside the 

confines of his or her own home.” State v. Reynolds, 10th Dist. Franklin No. 18AP560, 2019-Ohio-2343, ¶ 39, citing State v. Johnson, 10th Dist. Franklin No. 06AP878, 2007-Ohio-2792, citing State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 

(1997). 

Here, the jury was free to believe or not believe that Bouie was at fault 

in creating the situation. Manning testified that Bouie was at fault in creating the 

situation, specifically, that Bouie fired his gun first. While Manning’s testimony was 

contradicted by Howard’s and Bouie’s testimony as well as by the fact that only 9 

 

of an offense that involved the person’s use of force against another, there 

is evidence presented that tends to support that the accused person used the 

force in self-defense, defense of another, or defense of that person’s 

residence, the prosecution must prove beyond a reasonable doubt that the 

accused person did not use the force in self-defense, defense of another, or 

defense of that person’s residence, as the case may be. 

Nevertheless, the statute’s changes were not effective at the time of Bouie’s trial and he 

makes no argument that those changes should be applied retroactively. 
mm fired cartridges were found at the back of the vehicle, the jury heard those 

discrepancies and still convicted Bouie of felonious assault against Solomon. 

Even if the jury believed Bouie and found that Solomon shot first, it 

was still free to reject Bouie’s claim of self-defense because Bouie testified that he 

fired “three or four” shots at Solomon as Solomon ran down the street away from 

the scene and while still shooting at Bouie. In other words, Solomon was retreating 

at the time Bouie fired his gun multiple times. Once Solomon was running away, 

i.e., retreating, Bouie had a duty to stop firing his gun at Solomon because the 

evidence did not show that he had a bona fide belief that he was in imminent danger 

of death or great bodily harm and that his only method of escape was to use deadly 

force. Therefore, Bouie cannot show that the only means of escape from such danger 

was to shoot at Solomon or that he had no reasonable means of retreat at the time 

he used deadly force. Accordingly, we cannot say that this is the exceptional case in 

which the evidence weighs heavily against Bouie’s conviction for felonious assault, 

and we overrule Bouie’s first assignment of error. 

B. Jury Instructions 

In his second assignment of error, Bouie argues that the trial court 

erred by not instructing the jury on aggravated assault, an offense of an inferior 

degree to felonious assault. 

We initially note that Bouie did not request a jury instruction on 

aggravated assault at trial. Accordingly, Bouie has waived all but plain error. State 

v. Edgerson, 8th Dist. Cuyahoga No. 101283, 2015-Ohio-593, ¶ 15. 
 Under Crim.R. 52(B), a plain error affecting a substantial right may 

be noticed by an appellate court even though it was not brought to the attention of 

the trial court. However, an error rises to the level of plain error only if, but for the 

error, the outcome of the proceedings would have been different. State v. Harrison, 

122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio 

St.2d 91, 97, 372 N.E.2d 804 (1978). “Notice of plain error * * * is to be taken with 

the utmost caution, under exceptional circumstances, and only to prevent a manifest 

miscarriage of justice.” Long at 97. 

Felonious assault is defined in R.C. 2903.11 as follows: 

(A) No person shall knowingly: 

(1) Cause serious physical harm to another; 

(2) Cause or attempt to cause physical harm to another by means of a 

deadly weapon or dangerous ordnance, as defined in section 2923.11 of 

the Revised Code. 

(B) Whoever violates this section is guilty of felonious assault, an 

aggravated felony of the second degree. 

 Aggravated assault is defined in R.C. 2903.12 as follows: 

(A) No person, while under the influence of sudden passion or in a 

sudden fit of rage, either of which is brought on by serious provocation 

occasioned by the victim that is reasonably sufficient to incite the 

person into using deadly force, shall knowingly: 

(1) Cause serious physical harm to another; 

(2) Cause or attempt to cause physical harm to another by means of a 

deadly weapon or dangerous ordnance, as defined in section 2923.11 of 

the Revised Code. 

(B) Whoever violates this section is guilty of aggravated assault, a 

felony of the fourth degree. 
 As statutorily defined, the offense of aggravated assault is an inferior

degree of felonious assault “since its elements are identical to those of felonious 

assault, except for the additional mitigating element of serious provocation.” State 

v. Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294 (1988). Put simply, the 

difference between the elements of aggravated and felonious assault is provocation 

involving sudden passion or fit of rage. State v. McDuffie, 8th Dist. Cuyahoga No. 

100826, 2014-Ohio-4924, ¶ 22. “When a person inflicts physical harm on another 

as a result of severe provocation, the law views their criminal culpability less 

severely.” Id. 

“A jury instruction should be given for an inferior offense, ‘if under 

any reasonable view of the evidence, and when all of the evidence is construed in a 

light most favorable to the defendant, a reasonable jury could find that the 

defendant had established by a preponderance of the evidence the existence of one 

or both of the mitigating circumstances.’” State v. Livingston, 8th Dist. Cuyahoga 

No. 88714, 2007-Ohio-3664, ¶ 5, quoting State v. Rhodes, 63 Ohio St.3d 613, 617-

618, 590 N.E.2d 261 (1992). 

Further, “it has been held that in most cases, jury instructions on both 

self-defense and serious provocation are inconsistent.” State v. Crim, 8th Dist. 

Cuyahoga No. 82347, 2004-Ohio-2553, ¶ 14. This is because “[t]he mental states of 

fear as required for self-defense and rage as required for aggravated assault are 

incompatible.” State v. Smith, 8th Dist. Cuyahoga No. 100204, 2014-Ohio-2057, 

¶ 52. 
“[I]n a trial for felonious assault, where the defendant presents 

sufficient evidence of serious provocation, an instruction on aggravated assault must 

be given to the jury.” Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), at paragraph 

four of the syllabus. To warrant an instruction on aggravated assault, a defendant 

must show that he or she acted under serious provocation. Id. at ¶ 23-24. 

“‘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.’” Smith at ¶ 43, quoting State v. Horton, 9th Dist. 

Summit No. 26407, 2013-Ohio-3902, ¶ 52. R.C. 2903.12 also states that a defendant 

must act “while under the influence of sudden passion or in a sudden fit of rage.” 

In State v. Mack, 82 Ohio St.3d 198, 694 N.E.2d 1328 (1998), the 

Ohio Supreme Court reiterated that an objective standard must be applied to 

determine whether the alleged provocation is reasonably sufficient to bring on a 

sudden passion or fit of rage, meaning that the provocation must be “sufficient to 

arouse the passions of an ordinary person beyond the power of his or her control.” 

Id. at 201. If this objective standard is met, then the inquiry shifts to a subjective 

standard to determine whether the defendant in the particular case ‘“actually was 

under the influence of sudden passion or in a sudden fit of rage.”’ Id., quoting State 

v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992). 

Courts have found that an instruction on aggravated assault is not 

warranted when defendants fail to provide evidence that they acted while under the 

influence of sudden passion or in a sudden fit of rage. Compare State v. Walker, 2d 
Dist. Montgomery No. 25741, 2014-Ohio-1287, ¶ 7 (appellant testified that he “was 

never angry” and only scared, so counsel was not deficient for failing to request 

instruction on aggravated assault); Horton at ¶ 53 (appellant only testified that he 

“feared for the safety of [another,]” which was not enough to warrant aggravated 

assault instruction); Crim, 8th Dist. Cuyahoga No. 82347, 2004-Ohio-2553, at ¶ 13-

14 (because the appellant (1) failed to demonstrate that he was provoked by the 

victims’ actions, (2) testified that he was not in a fit of rage, and (3) said he “was not 

angry and was cool, calm and collected” when he shot at the victims, the trial court 

did not err in failing to instruct the jury on aggravated assault) with State v. Bostick, 

9th Dist. Summit No. 25853, 2012-Ohio-5048, ¶ 10-13 (appellant testified that he 

“flipped and saw red,” which was evidence that the appellant was under the 

influence of sudden passion or a fit of rage); State v. Smith, 168 Ohio App.3d 141, 

2006-Ohio-3720, 858 N.E.2d 1222, ¶ 55-57 (1st Dist.) (testimony showed that 

defendant “looked angry and upset” and indicated that defendant’s anger “escalated 

into rage, terror, or furious hatred” so the trial court should have instructed the jury 

on aggravated assault as to one of the shootings that defendant allegedly 

committed). 

Further, “fear alone is not a basis for establishing the mitigating 

circumstances of aggravated assault.” Livingston, 8th Dist. Cuyahoga No. 88714, 

2007-Ohio-3664, at ¶ 11, citing Mack. 

At trial, the following exchange occurred during Bouie’s testimony: 

COUNSEL: He shot first, right? 
BOUIE: Yes, sir. 

COUNSEL: And the only reason you shot was what? Why did 

you shoot? 

BOUIE: Well, I shot because I had to defend myself and I 

was defending — I was defending myself and of 

course my kid’s mother. 

In other words, Bouie said he shot at Solomon to defend Howard and 

himself, not because he was in a rage or out of sudden passion. At best, his testimony 

shows he shot out of fear, which is not sufficient to warrant an aggravated assault 

instruction. Livingston at ¶ 11. Therefore, the facts of this case did not warrant an 

instruction on the inferior offense of aggravated assault because there was no 

evidence that Bouie was under a sudden passion or fit of rage. 

Accordingly, we overrule Bouie’s second assignment of error. 

C. Ineffective Assistance of Counsel 

In his third assignment of error, Bouie argues that his trial counsel 

was ineffective for failing to request an instruction for aggravated assault. 

The defendant carries the burden of establishing a claim of ineffective 

assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064, 

1998 Ohio App. LEXIS 491, 19 (Feb. 12, 1998), citing State v. Smith, 3 Ohio App.3d 

115, 444 N.E.2d 85 (8th Dist.1981). To gain reversal on a claim of ineffective 

assistance of counsel, a defendant must show that (1) his “counsel’s performance 

was deficient,” and (2) “the deficient performance prejudiced the defense.” 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). The first prong of Strickland’s test requires the defendant to show “that 
counsel’s representation fell below an objective standard of reasonableness.” Id. at 

688. Strickland’s second prong requires the defendant to show “a reasonable 

probability that but for counsel’s errors, the proceeding’s result would have been 

different.” State v. Winters, 8th Dist. Cuyahoga No. 102871, 2016-Ohio-928, ¶ 25, 

citing Strickland. 

 While “[t]he right to counsel is the right to the effective assistance of 

counsel,” “trial strategy or tactical decisions cannot form the basis for a claim of 

ineffective counsel.” Id. at 686, citing McMann v. Richardson, 397 U.S. 759, 90 

S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Sanchez, 8th Dist. Cuyahoga No. 103078, 

2016-Ohio-3167, ¶ 26, citing Strickland and quoting State v. Foster, 8th Dist. 

Cuyahoga No. 93391, 2010-Ohio-3186. “Judicial scrutiny of defense counsel’s 

performance must be highly deferential.” Sanchez at ¶ 8, citing Strickland. 

“Failure to request instructions on lesser-included offenses is a 

matter of trial strategy and does not establish ineffective assistance of counsel.” 

State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996). “Specifically, ‘when 

a defendant puts on a defense of self-defense, an instruction on the inferior degree 

offense could have been perceived by the jury as contradictory to the self-defense 

theory’ [and] ‘it could confuse the jury to argue that the defendant acted in fear for 

his life but also was provoked and acted in a fit of rage.’” State v. Mendoza, 10th 

Dist. Franklin No. 16AP-893, 2017-Ohio-8977, ¶ 84, quoting State v. Levonyak, 7th 

Dist. Mahoning No. 05 MA 227, 2007-Ohio-5044. Therefore, “‘it is a trial strategy 

for counsel to choose to go solely with the self-defense theory and not request an 
inferior degree offense,’ and ‘trial strategies, even debatable ones, do not constitute 

ineffective assistance of counsel.’” Id., quoting Levonyak. 

After review of the record, we find that Bouie failed to demonstrate 

that his counsel performed deficiently in not requesting an instruction on the 

inferior offense of aggravated assault. As we stated with respect to Bouie’s second 

assignment of error, there was no evidence to show that Bouie acted in sudden 

passion or a fit of rage that would warrant such an instruction. In fact, the evidence 

showed, at best, that Bouie acted in fear of his life and to defend Howard and himself 

from Solomon’s gunfire, which would support the self-defense instruction that his 

counsel requested and the trial court gave at trial. Therefore, his counsel’s decision 

to not request an inferior-offense instruction that generally is held to be inconsistent 

with a self-defense instruction and that was not supported by the evidence does not 

constitute ineffective assistance of counsel, and we overrule Bouie’s third 

assignment of error. 

Judgment affirmed. 

It is ordered that appellee recover from appellant 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 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, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

LARRY A. JONES, SR., J., CONCUR