[Cite as State v. Moore , 2016-Ohio-8274.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 15CA3717

vs. : JOHN MOORE, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: Timothy Young, Ohio Public Defe nder, and Valerie Kunze, Assist ant Public Defender, Columbus, Ohio, for appellant. Mark E. Kuhn, Scioto County Prosecuting Attorn ey, and Joe Hale, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
CRIMINAL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED: 12-8-16 ABELE, J. {¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. A jury found John Moore, defendant below and appellant here in, guilty of felonious assault, in violation of R.C. 2903.11(A)(1). Appellant assigns th e following errors for review: FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT VIOLATED JOHN MOORE’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE THE JURY AN INSTRUCTION AS TO THE INFERIOR-DEGREE OFFENSE OF AGGRAVATED ASSAULT.” SECOND ASSIGNMENT OF ERROR:SCIOTO, 15CA3717 2

“TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.” {¶ 2} The present case arises out of a confrontation between appellant, an inmate at Southern Ohio Correctional Fac ility (SOCF), and SOCF Officer Je remy Conkel. On April 10, 2014, appellant returned to his cell a nd discovered that it had been sear ched. Appellant believed that Officer Conkel unjustifiably ransacked appellant’s cell and left it in shambles. Appellant walked from his cell, down the stairs, and across the hallway to ask Officer Conkel about the search. The encounter turned violent, a nd Officer Conkel suffered a broke n ankle and other injuries. {¶ 3} On May 1, 2014, a Scioto County grand jury returned an indictment that charged appellant with (1) attemp ted murder, in violation of R.C. 2923.02( A), and (2) felonious assault, in violation of R.C. 2903.11(A)(1). A ppellant entered not guilty pleas. {¶ 4} On June 1 through June 3, 2015, th e trial court held a jury tria l. At the trial, Officer Conkel explained that on April 10, 2014 he rando mly searched appellant ’s prison cell during appellant’s absence. The officer stated that when appellant re turned and found that his cell had been searched, appellant confr onted Officer Conkel and asked the officer why he searched appellant’s cell. Officer Conkel testified that appellant became a ggressive during the encounter. Officer Conkel indicated th at when the confrontati on escalated, he pulled out his mace and directed appellant to “get on the wall.” Appellant, however, turned toward the officer and stated, “I’m not getting on the f-ing wall.” Officer Conkel explained that appellant started hitting him, and Officer Conkel fell to the floor. The o fficer testified that once appella nt had taken him to the floor, appellant started choking him. Officer Conkel stated that he blacked-out and did not recall anySCIOTO, 15CA3717 3 further events until a sergeant helped him to a gurney. {¶ 5} SOCF corrections officer Matt Patrick related that he received an alert that an officer was down and, less than a mi nute later, he reached the scen e of the altercation. Officer Patrick testified that as he approached, he saw appellant holding down Offi cer Conkel and with his hand around the officer’s throat. Officer Patrick st ated that appellant initia lly refused orders to release Officer Conkel. {¶ 6} SOCF corrections officer Luke Vansicle testified that when he arrived on the scene behind Officer Patrick, he saw a ppellant standing over Officer C onkel, “throwing punches down at him while Officer Conkel wa s laying on the floor.” {¶ 7} SOCF sergeant Shannon Bear stated that he arrived on the scene behind the gurney, as appellant was being escorted up the stairs. Sergeant Bear testified that appellant “was aggressive and cussing and threatening towards the staff.” The sergeant further related that appellant “lunged” toward the sergeant, called the staff “bitches,” and stated that “he was going to kill us.” {¶ 8} SOCF corrections lieutenant Gary Lee Daniel stated that he interviewed appellant after the altercation. Appe llant informed the lieutenant that “the CO tore up my cell. I went to my cell and seen it had been shook down. I went to the CO and asked him why he tore up my cell. He sprayed me and I lost it.” {¶ 9} On June 3, 2015, after hearing the evidence adduced at trial, the jury found appellant guilty of feloni ous assault. However, the jury wa s unable to reach a verdict regarding the first count of the indictme nt, attempted murder. The stat e subsequently dismissed the attempted murder count.SCIOTO, 15CA3717 4 {¶ 10} On October 6, 2015, the trial court sentenced appellant to serve seven years in prison for the felonious assault convi ction. This appeal followed.
I AGGRAVATED ASSAULT JURY INSTRUCTION {¶ 11} In his first assignment of e rror, appellant asserts that th e trial court plainly erred by failing to give the jury an aggravated assault in struction. Appellant cont ends that he presented sufficient evidence of serious provo cation to warrant an aggravated assault instruc tion. Appellant claims that he became seriously provoked due to th e chain of events that began when he found his cell in shambles after Officer Conkel searched it, and ended when Officer Conkel sprayed mace in appellant’s face. Appellant argues that after Officer Conkel spraye d the mace, appellant “lost it.” Appellant alleges that the “stress of the situation propelled [him] into a fit of rage.” {¶ 12} Initially, we observe that before the jury retired to consider its verdict, appellant did not request the trial court to give the jury an aggravated assault instruction. 1 Crim.R. 30(A) explains: “On appeal, a party ma y 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.” Thus , a defendant’s failure to request a particular instructi on forfeits all but plain error. State v. White, 142 Ohio St.3d 277, 2015–Ohio–492, 29 N.E.3d 939, ¶57, citing State v. Davis, 127 Ohio St.3d 268, 2010–Ohio–5706, 939 N.E.2d 147, ¶24; State v. Steele, 138 Ohio St.3d 1, 2013–Ohio–2470, 3 N.E.2d 135, ¶¶29–30; State v. Eafford, 132 Ohio St.3d 159, 2012–Ohio–2224, 970 N.E.2d 891, ¶11; State v. Bundy,

1 We point out that appellant filed a pretrial motion that requ ested the trial court to give the jury an aggravated assault instruction. The trial court, however, overruled it as moot. Appellant did not re new the motion during trial.SCIOTO, 15CA3717 5 2012–Ohio–3934, 974 N.E.2d 139, ¶65 (4th Dist.). Plain e rror exists when the error is plain or obvious and when the error “affect[s] substantial rights.” Crim.R. 52(B). The error affects substantial rights when but for the error, the out come of the proceeding would have been different.

White at ¶57. Courts ordinarily should take notice of plain error “with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Gardner, 118 Ohio St .3d 420, 2008–Ohio–2787, 889 N.E.2d 995, ¶78. In the case sub judice, we do not believe that the court plainly erred by failing to give the jury an aggravated assault instruction. {¶ 13} Generally, a trial court ha s broad discretion to deci de how to fashion jury instructions. A trial court must not, however, fail to “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” E.g., State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. A dditionally, a trial cour t may not omit a requested instruction, if such instruction is “‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.’” State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993), quoting State v. Nelson, 36 Ohio St.2d 79, 303 N.E.2d 865, paragraph one of the syllabus (1973). Moreover, a criminal defendant is entitled to an inferior-degree-offense instruction “when the evidence presented at trial would reasonably support both an acquittal on the charged [offense] and a conviction for [the inferior-degree offense].” State v. Shane , 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992). “‘An offense is an “inferior degree” of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements.’” State v. Franklin , 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶73, quoting State v. Deem ,SCIOTO, 15CA3717 6 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph two of the syllabus. {¶ 14} In the case at bar, appellant contends that aggravated assault is an inferior degree offense of felonious assault, th e indicted offense. Appellant further asserts that the evidence presented at trial reasonably supports both an ac quittal on felonious assau lt and a conviction for aggravated assault. Appellant thus argues that the trial court was required to give the jury an aggravated assault instruction. {¶ 15} In the case sub judice, the indictment ch arged appellant with felonious assault under R.C. 2903.11(A)(1), which states: “No person sh all knowingly do either of the following: (1) Cause serious physical harm to another * * *.” The aggravated assault statute, R.C. 2903.12(A), provides: No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another * * *. {¶ 16} Aggravated assault is an inferior degree of felonious assault. State v. Deem, 40 Ohio St.3d 205, 210–211, 533 N.E.2d 294, 299 (1988). The two offenses are identical, except aggravated assault contains serious provocation as a mitigating factor. Id. Thus, in a trial for felonious assault, a trial court must give the jury an aggravated assault instruction if the defendant presents sufficient evidence of serious provocati on such that a jury could both reasonably acquit the defendant of felonious a ssault and convict the defendant of aggravated assault. State v. Mack, 82 Ohio St.3d 198, 200, 694 N.E.2d 1328 (1998); Deem, 40 Ohio St.3d at 211; Shane, 63 Ohio St.3d at 632. Provocation, to be serious, must be r easonably sufficient to bring on extremeSCIOTO, 15CA3717 7 stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant a nd the conditions and circumstances that surrounded him at the time. Deem, at paragraph five of the syllabus; accord Mack , 82 Ohio St.3d at 200. {¶ 17} Determining whether sufficient evidence of serious provocation exists so as to warrant an aggravated assault instruction involves an objective and subjective inquiry. Mack, 82 Ohio St.3d at 201. A court must (1) objectively determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage, and (2) determine whether the defendant in the particular cas e actually was under the influence of sudden passion or in a sudden fit of rage. Id. {¶ 18} Under the objective part of the inquiry, pr ovocation is reasonably sufficient to bring on a sudden passion or fit of rage if it would “arouse the passions of an ordinary person beyond the power of his or her control.” Shane, 63 Ohio St.3d at 635. “If insufficient evidence of provocation is presented, so that no reasonable ju ry would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give” an aggravated assault instruction.” Id. at 634. {¶ 19} If the evidence shows that the defe ndant was sufficiently provoked under the objective standard, the inquiry then shifts to whether the defendant actually was under the influence of sudden passion or a sudden fit of rage. Id. at 634. When a court determines whether the defendant actually was under the influence of sudden passion or a sudden fit of rage, the court must consider the defendant’s emotional and mental state at the time of the incident. Id. {¶ 20} A defendant is not, however, entitled to an aggravated assault instruction simplySCIOTO, 15CA3717 8
because “some evidence” shows th at the defendant may have act ed under serious provocation. Id. at 633. “To require an instruction * * * every time ‘some evidence,’ however minute, is presented going to [serious provocation] would mean that no tr ial judge could ever refuse to give” the jury an aggravated assault instruction as an in ferior degree to felonious assault. Id. Instead, “the quality of the evidence offered * * * determines whether a[ n aggravated assault] charge should be given to a jury.” State v. Wine, 140 Ohio St.3d 409, 2014–Ohio–3948, 18 N.E.3d 1207, ¶26. {¶ 21} A trial court has discretion to determine whether the record contains sufficient evidence to support an aggravated assault instruction. State v. Bailey , 4th Dist. Ross Nos. 3427 and 3428, 2015-Ohio-2144, 2015 WL 3539615, ¶23 ; State v. McFadden, 4th Dist. Washington No. 14CA5, 2014–Ohio–5294, 2014-Ohio-6680689, ¶6; State v. Mitts, 81 Ohio St.3d 223, 228, 690 N.E.2d 522 (1998); see Wine at ¶21 (explaining that “[t]he law, the evidence presented, and the discretion of the trial judge play a role in whether lesser-included-o ffense instructions are appropriate”). Thus, we will not reverse that determination absent an abuse of discretion. An abuse of discretion implies that the court’s attitude is arbitrary, unreasonable, or unconscionable. E.g., State v. Keenan , 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶7, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). {¶ 22} In the case at bar, after our review of the evidence we do not believe that the record contains sufficient evidence of seri ous provocation such that the tria l court plainly erred by failing to give the jury an aggravated assault instruc tion. The evidence presented at trial does not show that any provocation Officer Conkel caused was r easonably sufficient to incite or to arouse appellant into using deadly force. Deem, supra . In an attempt to contain an escalating situation with a prison inmate, Officer C onkel sprayed appellant with mace. Even if Officer Conkel’sSCIOTO, 15CA3717 9 conduct of spraying appe llant in the face with mace actually provoked appellant, we do not believe that the officer’s conduct would “arouse the passions of an ordinary person beyond the power of his or her control.” Instead, we believe that spraying an individual in the face with mace is arguably similar to a push or a punch. Neith er a push nor a punch constitutes sufficient provocation to warrant an aggrav ated assault instruction. See State v. Howard, 9th Dist. Summit No. 26897, 2014–Ohio–1334, ¶25 (concluding that “being grabbed on the arm and experiencing a cut in the process would not arouse the passions of an ordinary man beyond the power of his control such that he would be aroused to use deadly force”); State v. Evans, 4th Dist. Scioto No. 05CA3002, 2006–Ohio–2564, ¶64 (stating that “[a]s a ma tter of law, hitting another person does not constitute sufficient provocation to brin g about a sudden passion or fit of rage”); State v. Bryan, 4th Dist. Gallia No. 03CA 3, 2004–Ohio–2066 (concluding that victim grabbing defendant and attempting to hit him is not, as a matter of law, serious provocation); State v. Parker, 4th Dist. Washington No. 03CA43, 2004–Ohio–1739, ¶23 (stating th at victim throwing plate of spaghetti on defendant did not constitute serious provocation so as to warrant aggravated assault instruction); State v. Koballa, 8th Dist. Cuyahoga No. 82013, 2003–Ohi o–3535 (concluding that sufficient provocation did not exist when the victim grabbed the defendant by the testicles and the arm); State v. Poe, 4th Dist. Pike No. 00CA9 (Oct. 6, 2000) (concluding that the victim's conduct in approaching the defendant with a hammer and stating “come on” did not constitute sufficient provocation); State v. Pack , 4th Dist. Pike No. 93CA525 (June 20, 1994) (“We find that a mere shove and a swing (which appellant by his own testimony ducked) are insufficient as a matter of law to constitute serious provocation reasonably sufficient to inc ite or arouse appellant into using deadly force.”).SCIOTO, 15CA3717 10 {¶ 23} Additionally, we observe that courts have been unwilling to find that a defendant is entitled to an aggravated assault jury instruction when the defendant instigated the confrontation or was the initial aggressor during the encounter with the victim. In other words, an aggravated assault instruction ordi narily is inappropriate when the victim did not provoke or initiate the confrontation that led to the assault. See State v. Dean , 4th Dist. Ross No. 15CA3499, 2016-Ohio-5720, 2016 WL 4727842, ¶26 (concluding that tr ial court did not plainly err by failing to give aggravated assault instruction when ev idence showed that defendant was the aggressor); State v. Doby , 12th Dist. Butler No. CA2013-05-084, 2014-Ohio-2471, 2014 WL 2568579, ¶¶23-24 (determining that trial court properl y denied defendant’s request for voluntary manslaughter instruction when defendant initiated confrontation with victim); State v. Young , 10th Dist. Franklin No. 07AP-707, 2008-Ohio-2277, 2008 WL 2025262, ¶14 (noting that “victims did not provoke the knife wounds [the de fendant] inflicted. If anyone was the provocateur, it was [the defendant]); State v. Torres , 3rd Dist. Defiance No. 4-01-06, 2002-Ohio-1203, 2002 WL 418392, *4-5 (reviewing Ohio Suprem e Court’s decisions in Deem , Shane , and Mack and concluding that aggravated assault instruction inappropriate when “defendant brought the conflict to the victim” and when “defendant was the aggressor”); State v. Kehoe , 133 Ohio App.3d 591, 611, 729 N.E.2d 431 (12th Dist.1999) (determining that evidence in sufficient as a matter of law to establish provocation when defendant “was the first person to pull out a weapon,” “the first person to point his weapon at another,” and “the fi rst person to fire his weapon”); State v. Herring , 9th Dist. Summit No. 13996, 1989 WL 121082 (Oct. 11, 1989), *4 (conc luding that defendant failed to demonstrate sufficient provocation when “alleged provocation is a response to [defendant]’s own actions”); see generally State v. Stacker , 6th Dist. Lucas No. L-88-008, 1988 WL 110284 (Oct. 21,SCIOTO, 15CA3717 11 1988) (determining that the trial c ourt reasonably rejected defendant’s claim that a search of his prison cell seriously provoked him so as to s how that he committed aggravated, instead of felonious, assault); cf. State v. Conway , 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶131 (citations omitted) (obs erving that the voluntary-manslaughter statute, by including the phrase “‘occasioned by the victim,’ * * * fo recloses application of the statut e to situations * * * where the provocation came from someone other than the person killed”). {¶ 24} In the case at bar, the evidence shows that appellant initiated the confrontation with Officer Conkel. Appellant approached the offi cer and aggressively de manded to know why the officer had searched appellant’s cell. When appella nt refused to comply with the officer’s orders, the officer used mace to attempt to contain th e situation. While the use of mace may have escalated appellant’s aggressiveness, appellant al ready displayed aggressi ve behavior when he confronted Officer Conkel to ques tion why appellant’s cell had been searched. Appellant arrived to the confrontation already provoked. Appellant’s failure to heed Officer Conkel’s order provoked the sequence of events that culminated in appellant hitting and choking the officer. {¶ 25} Additionally, we reject any assertion that the search of appella nt’s prison cell could constitute serious provocation. A reasonable person could not be seriously provoked into using deadly force upon learning that the person’s prison ce ll had been searched, even if the search left the cell in shambles, as appellant claims. {¶ 26} Furthermore, as we point out in our disc ussion of appellant’s second assignment of error, appellant appears to have made a “tactical gambit” in order to obtain an acquittal on the felonious assault charge, rather than a convic tion on an inferior-degr ee-offense. The Ohio Supreme Court has cautioned that defendants who make “‘tacti cal gambits’” cannot “‘thenSCIOTO, 15CA3717 12 successfully claim plain error upon appeal.’” Wine at ¶30, citing and quoting State v. Clayton, 62 Ohio St.2d 45, 47–48, 402 N.E.2d 1189 (1980). {¶ 27} Accordingly, based upon the foregoing r easons, we overrule appellant’s first assignment of error.
II INEFFECTIVE ASSISTANCE OF COUNSEL {¶ 28} In his second assignment of e rror, appellant argues that trial counsel did not provide the effective assistance of counsel as guaranteed in the United States and Ohio constitutions. In particular, appellant cla ims that trial counsel performed ineff ectively by failing (1) to request an aggravated assault jury instruction, and (2) to object to the court costs imposed.
A INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD {¶ 29} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution provide that defendants in a ll criminal proceedings shall have the assistance of counsel for their defense. The United States Supreme Court has generally in terpreted this provision to mean a criminal defendant is entitle d to the “reasonably effective assistance” of counsel. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama , ––– U.S.––––, 134 S.Ct. 1081, 1087–1088, 188 L.Ed.2d 1 (2014) (explaining that the Sixth Amendment right to counsel means “that defendants are entitled to be represented by an attorney who meets at least a minimal standard of competence”). {¶ 30} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel’s pe rformance was deficient and (2) that the defici ent performanceSCIOTO, 15CA3717 13 prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland , 466 U.S. at 687; State v. Obermiller , ––– Ohio St.3d ––––, 2016–Ohio–1594, ––– N.E.3d –––, ¶83; State v. Powell , 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶85. “F ailure to establish either element is fatal to the claim.” State v. Jones , 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a de fendant's failure to satisfy one of the elements “negates a court’s need to consider the other”).
1 Deficient Performance {¶ 31} The deficient performance part of an ineffectiveness claim “is necessarily linked to the practice and expectations of the legal commun ity: ‘The proper measure of attorney performance remains simply reasonableness under prevailing profe ssional norms.’” Pad illa v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at 688; accord Hinton, 134 S.Ct. at 1088. “Prevailin g professional norms dictate that with regard to decisions pertaining to legal proceedings, ‘a lawyer must have “full authority to manage the conduct of the trial.”’” Obermiller at ¶85, quoting State v. Pasqualone, 121 Ohio St.3d 186, 2009–Ohio–315, 903 N.E.2d 270, ¶24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Furthermore, “‘[i]n an y case presenting an ineffectiveness claim, “the performance inquiry must be whether counsel’s a ssistance was reasonable considering all the circumstances.’” Hinton, 134 S.Ct. at 1088, quoting Strickland, 466 U.S. at 688. Accordingly, “[i]n order to show deficient performance, the defendant must prove th at counsel’s performance fell below an objective level of reasonable representation.” State v. Conway, 109 Ohio St.3d 412,SCIOTO, 15CA3717 14 2006–Ohio–2815, 848 N.E.2d 810, ¶95 (citations omitted); accord Hinton, 134 S.Ct. at 1088, citing Padilla, 559 U.S. at 366; State v. Wesson, 137 Ohio St.3d 309, 2013–Ohio–4575, 999 N.E.2d 557, ¶81. {¶ 32} Moreover, when considering whether tr ial counsel’s representation amounts to deficient performance, “a court mu st indulge a strong presumpti on that counsel’s conduct falls within the wide range of reas onable professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Additionally, “[a] properly licensed attorney is presumed to execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008–Ohio–482, ¶10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bear s the burden to show ineffectiveness by demonstrating that counsel’s e rrors were “so serious” that c ounsel failed to function “as the ‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S. at 687; e.g., Obermiller at ¶84; State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).
2 Prejudice {¶ 33} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that “‘but for counsel’s errors, the result of the proceedin g would have been different. A reasonable probability is a probability su fficient to undermine the outcome.’” Hinton, 134 S.Ct. at 1089, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373SCIOTO, 15CA3717 15 (1989), paragraph three of the syllabus. “‘[T]h e question is whether there is a reasonable probability that, absent the errors, the factfi nder would have had a reasonable doubt respecting guilt.’” Hinton, 134 S.Ct. at 1089, quoting Strickland, 466 U.S. at 695. Furthermore, courts may not simply assume the existence of prejudice, but must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707, ¶22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002). As we have repeatedly recognized, speculation is insufficient to dem onstrate the prejudice component of an ineffective assistance of counsel claim. E.g., State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014–Ohio–3123, ¶22; State v. Simmons, 4th Dist. Highland No. 13CA4, 2013–Ohio–2890, ¶25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012–Ohio–1625, ¶25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–6191, ¶68; accord State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶86 (stating that an argument that is purel y speculative cannot serve as the basis for an ineffectiveness claim).
B AGGRAVATED ASSAULT JURY INSTRUCTION {¶ 34} Appellant first claims that trial counsel performed ineff ectively by failing to request the trial court to give the jury an aggravated assault instruction. This court and others have repeatedly held, however, that de fense counsel’s decisions regard ing inferior-degree-offense (or lesser-included-offense) jury instructions ordinarily constitute matters of trial strategy. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996) ; State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980); Dean , supra , at ¶32; State v. Daniel , 2016-Ohio-5231, 57 N.E.3d 1203, ¶44 (8th Dist.) ; State v. Fouts , 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, 2016 WLSCIOTO, 15CA3717 16 1071457, ¶73; Columbus v. Clark , 10th Dist. Franklin No. 14AP-719, 2015-Ohio-2046, 2015 WL 3421518, ¶27; State v. Cottrell, 4th Dist. Ross Nos. 11CA3241 and 11CA3242, 2012–Ohio–4583, 2012 WL 4713899, ¶21; accord ; Bailey at ¶46. For instance, defense counsel’s decision to forego an inferior-degree-offense instruction may be a st rategic maneuver designed to obtain an acquittal, instead of a conviction on an inferior-degree-offense. Wine at ¶30; Fouts at ¶73; Cottrell at ¶21. {¶ 35} In the case sub judice, trial counsel’s deci sion not to request an aggravated assault jury instruction appears to have been a strategic maneuver designed to obtain an acquittal on the charged offense (felonious assault) and to a void a conviction on an in ferior-degree-offense (aggravated assault). We note that trial counsel f iled a pretrial motion reque sting the trial court to give the jury an aggravated assault jury instru ction. Thus, trial counsel obviously was aware that an aggravated assault instructi on may be appropriate. Counsel’s failure to renew his request at trial does not constitute deficient performance and supports the theory that trial counsel made a tactical decision not to request an aggravated assault instruction. {¶ 36} Moreover, “the failure to make a futile objection does not constitute deficient performance.” State v. Corder, 2012-Ohio-1995, 969 N.E.2d 787 (4th Dist.), ¶29, citing State v. Washington, 5th Dist. Stark No. 2005CA00050, 2006-Ohio-825, 2006 WL 438691, ¶21. As we determined in our discussion of a ppellant’s first assignment of error, the evidence presented at trial did not warrant an aggravated assault instructi on. Therefore, not only was it a matter of trial strategy whether to request an a ggravated assault instruction, counsel ’s objection to the lack of the instruction would have been futile. Fouts at ¶75 (noting that trial c ounsel “not required to pursue a vain act”). CSCIOTO, 15CA3717 17
COSTS {¶ 37} Appellant next complains th at trial counsel performed ineffectively by failing to object when the court orde red appellant to be res ponsible for court costs. {¶ 38} R.C. 2947.23(A)(1) governs the imposition of costs in criminal cases and provides in relevant part: “In all criminal cases * * * the judge * * * shall include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs.” A trial court must include in the sentence the costs of prosecu tion and render a judgment against the defendant for costs, even if the defendant is indigent. State v. White , 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, ¶8. {¶ 39} Although trial courts must “assess costs against all convi cted criminal defendants, [the Ohio Supreme Court] has held that ‘waiver of costs is permitted—but not required—if the defendant is indigent.’” State v. Joseph , 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶11, quoting White at ¶14. The trial court thus has discretion to waive cour t costs if the defendant is indigent. Id. at ¶12; see State v. Farnese , 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶12. {¶ 40} R.C. 2947.23 formerly required a defendant to request a waiver of costs at the time of sentencing. See State v. Threatt , 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus; State v. Brown , 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶14; State v. Farnese , 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶15. The statute, however, has been amended so that a defendant no longer must request a waiver of costs at the time of sentencing. Under the version of the statute in effect at the time of appellant’s sentencing, the trial “court retains ju risdiction to waive, suspend, or m odify the payment of the costs ofSCIOTO, 15CA3717 18 prosecution at the time of sentencing or at any time thereafter.” R.C. 2947.23(C); 2 accord
Farnese at ¶12, citing State v. Hawkins , 4th Dist. Gallia No. 13CA3, 2014–Ohio–1224, ¶18; State v. Walker , 8th Dist. Cuyahoga No. 101213, 2014–Ohio–4841, ¶9. Thus, “a defendant is no longer required to move for a waiver of court costs at the sentencing hearing or waive it.” Farnese at ¶15. As a result, ineffective assistance of tria l counsel claims based upon a failure to request a waiver of costs at the time of sentencing have become difficult—if not impossible—to establish. Id. ; accord State v. Weddington , 4 th Dist. Scioto No. 15CA3695, 2015-Ohio-5249, ¶23. {¶ 41} In Farnese , we explained that the decision when to seek a waiver, suspension, or modification of the costs of prosecu tion may be a matter of strategy. Id. at ¶16. Trial counsel may decide, as a matter of strate gy, to delay seeking a waiver, su spension, or modification “until some later time when the trial c ourt had time to either reflect upon its sanctions or the vividness of the impact of [the defenda nt]’s conduct had faded.” Id. ; accord State v. Farless , 6th Dist. Lucas No. L-15-1060, 2016-Ohio-1571, ¶8. {¶ 42} In the case sub judice, we similarly believe that trial counsel’s decision not to request a waiver of costs at the sentencing hearing may have been a matter of trial strategy. Furthermore, even if we could st ate that trial counsel performed de ficiently by failing to request a waiver at sentencing, appellant cannot demonstrate prejudice. Appe llant has not lost the ability to seek a waiver of costs. See R.C. 2947.23(C); State v. Savage , 4th Dist. Meigs No. 15CA2, 2015-Ohio-4205, ¶32 (stating that under R.C. 2947.23(C), defendant “not precluded from now seeking waiver of the payment of costs based on claimed indigency”); State v. Williams , 3rd Dist.

2 R.C. 2947.23(C) became effective on March 22, 2013. Appellant’s sentencing hearing was held in October 2015, after the effective date of this section.SCIOTO, 15CA3717 19 Auglaize No. 2-13-31, 2014-Ohio-4425, ¶17 (determinin g that any error trial counsel made by failing to object to costs at sentencing not prejudicial when appellant retained the ability to seek waiver under court’s continuing jurisdiction granted in R.C. 2947.23(C)). Consequently, we do not believe that trial c ounsel performed ineffectively by failing to request the tria l court to waive

court costs. {¶ 43} Accordingly, based upon the foregoing r easons, we overrule appellant’s second assignment of error and affirm the trial court’s judgment. JUDGMENT AFFIRMED.SCIOTO, 15CA3717 20
JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted, it is continued for a period of sixty days upon the bail prev iously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme C ourt an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five da y period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Oh io Supreme Court dismisse s the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha, J. & Hoover, J.: Conc ur in Judgment & Opinion

For the Court

BY: Peter B. Abele, JudgeSCIOTO, 15CA3717 21

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.