State v. Shakhmanov , 2019 Ohio 4705 ( 2019 )

[Cite as State v. Shakhmanov, 2019-Ohio-4705.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28066
:
v. : Trial Court Case No. 2016-CR-1987/1
:
MUSTAFA SHAKHMANOV : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 15th day of November, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} Defendant-appellant Mustafa Shakhmanov appeals from his conviction for
felonious assault. He contends the trial court erred by denying his motion to suppress
evidence and by denying his request to make the jury aware of a statement made by the
victim as the victim was leaving the witness stand. Mustafa also claims the trial court
erred with regard to jury instructions. Finally, he contends he is entitled to a new trial
and, at this trial, retroactive application of the burden shifting changes made by the Ohio
General Assembly to Ohio’s self-defense statute, R.C. 2901.05. For the reasons set
forth below, we affirm.
I. Facts and Procedural History
{¶ 2} Aydin Akhmdov worked as a driver for Ameripro Logistics, L.L.C. (hereinafter
Ameripro), a Dayton trucking company owned by Mustafa.1 In 2015, Aydin broke his leg
and was unable to work. Aydin claimed that when he stopped working, he was owed
$1,800. Aydin claimed that, over the course of several months, he attempted to contact
Mustafa regarding the money owed. On June 7, 2016, Aydin was informed, by Mustafa’s
brother, Sevil, he should come to the Ameripro offices.
{¶ 3} In State v. Koch, 2d Dist. Montgomery No. 28041, 2019-Ohio-4182, an
appeal filed by one of Mustafa’s co-defendants 2 , this court set forth the following
description of the events that occurred when Aydin arrived at the Ameripro offices:
1
Mustafa’s brothers Sobir and Sevil were also involved in the altercations underlying this
appeal. Since they all share the same last name, we will refer to them by their first names.
2
Koch involves the appeal of Baris Koch, who along with his brothers Izmir and Murad
were also involved in the subject altercations.
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Surveillance cameras located outside the Ameripro office recorded
the encounter between Aydin and members of the Shakhmanov and Koch
families. In the video, Aydin can be seen arriving at Ameripro and parking
his car at a tire business across Valley Street from Ameripro. Aydin
testified that as he sat in his parked car, he observed Sevil remove a tire
iron from his car and hide it in his pants. The video shows that Aydin got
out of his vehicle and stood in the tire business parking lot, facing
Ameripro’s lot. Sevil and Mustafa walked to the edge of the Ameripro lot,
and the two men can be seen attempting to call Aydin across the street.
When Aydin refused to cross the street, Sevil, Mustafa, and their brother,
Sabir [sic], who had joined them, walked across the street to where Aydin
was standing.
While the three men talked to Aydin, Izmir and Murad Koch drove up
in a white BMW sedan and parked behind where all of the men were talking,
perpendicular to Aydin’s Honda. At that point, the men surrounded Aydin.
Aydin moved next to the driver’s side door of his Honda, and the group
moved with him. After the apparent verbal disagreement continued there
for approximately 40 seconds, Aydin attempted to walk away from the men.
Murad ran toward Aydin and repeatedly hit him with a collapsible metal
baton as Aydin attempted to back away. After Aydin ran between some
vehicles parked nearby, all five men followed him and began beating him.
Aydin testified that during the assault, Sevil struck him in the head with a
tire iron. The physical assault lasted for approximately 20 seconds, and it
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stopped when an unconnected person intervened. The men continued to
engage verbally.
At this juncture, Baris [Koch] and Kamil Abbasov, another cousin,
drove into the tire business’s parking lot in a black SUV. While still verbally
arguing with the Shakhmanovs, Izmir and Murad, Aydin returned to his
vehicle and left the scene in his Honda. As Aydin drove away, the video
depicts Mustafa picking up a rock and throwing it at Aydin’s vehicle.
Thereafter, Izmir and Baris relocated their vehicles to Ameripro’s parking
lot.
After Aydin left, Mustafa and Sevil could be seen in the Ameripro
lobby, talking with Kamil. Sobir repeatedly looked out the lobby door. At
one point, the video shows Baris standing in the lobby doorway, looking into
the building. Baris later can be seen walking through the Ameripro lobby,
talking on his phone. Baris does not appear on the video for approximately
five to seven minutes. Approximately nine minutes after the end of the first
altercation, Murad and Izmir left Ameripro in the white BMW.
Approximately 12 minutes after the first encounter, Aydin returned to
Ameripro, again parking his vehicle across the street in the tire business’s
parking lot. Aydin got out of his vehicle and leaned against the hood, facing
Ameripro. He was armed with brass knuckles and a pocket knife in his
pocket. Aydin testified that he shouted at Sevil from across the street
regarding the back pay he was owed. The video depicts Sevil responding
by making a profane gesture directed at Aydin.
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A few minutes after Aydin returned, the Shakhmanov brothers can
be seen in the Ameripro lobby placing metal poles and rebar just inside the
door of the business. * * *
Approximately six minutes after Aydin returned, Murad and Izmir also
returned in their white BMW and parked in the Ameripro side parking lot.
Murad, armed with a metal baton, began yelling at Aydin from across the
street and started walking toward Aydin in the Ameripro parking lot. Izmir
followed a short distance behind, followed by Sevil. Murad walked across
the street to where Aydin was standing. Aydin testified that they were
yelling at him as they approached him, stating that they were going to “tear
him to pieces.” When Murad approached him with the metal baton (still
lowered), Aydin pulled out a pocketknife and stabbed Murad in the arm.
Thereafter, Aydin attempted to run away but was chased by Murad, Izmir,
and Sevil. Mustafa, armed with rebar, ran up to the group and joined the
fray.
While the group chased Aydin, Baris came out of the Ameripro lobby,
and he, Kamil, and Sobir watched from the front Ameripro parking lot.
Aydin tripped and fell down in the tire business’s parking lot, at which point
Mustafa began striking him with a metal pole and Izmir can be seen kicking
him in the head and upper body. Murad also ran up and struck Aydin with
a metal pole. Aydin testified that Sevil was about to hit him with a metal
pole. Aydin, however, was able to retrieve the set of brass knuckles from
his pocket and strike Sevil, knocking him to the ground. Aydin then ran
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across the street toward the Ameripro office in an effort to escape from his
attackers.
Upon reaching the parking lot in front of Ameripro, however, Aydin
was struck in the head from behind with a metal pole by Murad. When
Aydin fell to the ground, Murad, Mustafa, and Kamil began hitting him with
metal poles. Izmir, who did not have a weapon, could be seen kicking
Aydin in the head. Thereafter, Sobir pulled his brothers and cousins away
from Aydin. Eventually, Aydin was able to stand up and walk back across
the street toward where his car was parked. * * *
At this point, another individual at Ameripro, named Aziz, called 911
after seeing the injury to Murad’s arm; he reported that someone had been
stabbed.
Izmir followed Aydin across the street and continued arguing with
him. As Aydin neared his car, he turned around and began walking back
toward the tire business and Izmir. The video shows Izmir and Aydin
fighting. At this juncture, Baris ran across the street and jump-kicked Aydin
in the head, knocking him either into a wooden fence or to the ground by a
wooden fence. Mustafa, Murad, and Kamil also ran across the street to
continue attacking Aydin.
The video shows that Aydin walked away and continued arguing with
Izmir and Mustafa. As Sobir, Murad, and Baris joined Mustafa, Baris took
off his shirt and attempted to wrap Murad’s arm. Several men chased
Aydin behind the wooden fence where the assault apparently continued.
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The video appears to show Baris trying, unsuccessfully, to keep Murad from
going behind the fence. Baris then also went behind the fence.
The video did not capture what occurred behind the fence, but Aydin
testified that he saw a baseball bat on the ground, picked it up, hit Mustafa
a couple of times with it, and then the bat was taken away was him. Aydin
testified “all seven people,” meaning the Shakhmanovs, the Kochs, and
Abbasaov, assaulted him behind the fence. Aydin testified that Baris “was
beating me, too.” (Tr. at 373.) The group was behind the fence for
approximately 52 seconds. Murad came out from behind the fence
carrying the baseball bat.
Twenty-six seconds after the group left the fenced area, Aydin
walked out from behind the fence without his shirt and wearing only one
shoe. Aydin walked to his vehicle and got inside, but when he tried to
leave, Izmir walked over to the vehicle, reached into the front passenger
side window and took the key out of the ignition. Thereafter, Aydin simply
remained seated in his vehicle and waited for the police, who arrived
moments later.
Id. at ¶ 6 - 19.
{¶ 4} On July 5, 2016, Mustafa, Sevil, Sobir, Izmir, Murad and Baris were each
indicted on one count of felonious assault (deadly weapon), and one count of felonious
assault (serious physical harm). Kamil was indicted on July 20, 2016. Mustafa filed a
motion to suppress seeking to suppress the seizure of the surveillance video taken from
his office at Ameripro. He later filed an amended motion to suppress arguing that he did
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not give valid consent for the seizure. The trial court overruled the motion and the matter
proceeded to trial. The jury found Mustafa guilty as charged, and the trial court
sentenced him to community control sanctions.
{¶ 5} Mustafa appeals.
II. Consent Analysis
{¶ 6} Mustafa’s first assignment of error states as follows:
THE TRIAL COURT ERRED BY HOLDING THAT MUSTAFA GAVE
CONSTITUTIONALLY VALID CONSENT FOR THE COLLECTION OF
THE SURVEILLANCE VIDEO.
{¶ 7} Mustafa contends that the trial court erred in denying his motion to suppress
the surveillance video. Specifically, he argues that the court was incorrect when it found
that he voluntarily provided the police with oral and written consent to seize the
surveillance video. His argument hinges upon the issue of the credibility of the law
enforcement personnel who secured his consent.
{¶ 8} “When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses.” (Citation omitted). State v. Burnside, 100 Ohio St. 3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the
trial court's findings of fact if they are supported by competent, credible evidence.”
(Citation omitted.) Id. “Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard.” (Citation omitted.) Id. With this standard
of review in mind, we turn to the issue of consent.
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{¶ 9} Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment, subject to only a few well-established exceptions. State v. Cosby,
177 Ohio App. 3d 670, 2008-Ohio-3862, 895 N.E.2d 868, ¶ 16 (2d Dist.). Valid consent
to search is one of the recognized exceptions to the warrant requirement. State v. Moon,
2d Dist. Montgomery No. 9288, 1986 WL 2368, *1 (Feb. 14, 1986). In order for a
warrantless search to be valid based on consent, “[t]he State is required to establish, by
clear and convincing evidence, that consent to the search was freely and voluntarily
given.” (Citations omitted.) State v. Powell, 2d Dist. Champaign No. 2012 CA 14, 2012-
Ohio-5104, ¶ 17. The voluntariness of the consent is determined from the totality of the
circumstances. Id. “Consent may be oral or written.” State v. McLemore, 197 Ohio
App.3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 24 (2d Dist.), quoting Katz, Ohio Arrest,
Search and Seizure, Section 19:1 (2008). “While not necessary after oral consent is
given, a written consent is strong evidence of a defendant's willingness to allow a search.”
(Citation omitted.) State v. Hill, 2d Dist. Montgomery No. 25717, 2014-Ohio-1447, ¶ 12.
{¶ 10} “The following factors are generally used in Ohio to decide if a defendant's
consent to search has been given voluntarily: ‘(1) whether the defendant's custodial status
was voluntary; (2) whether coercive police procedures were used; (3) the extent and level
of the defendant's cooperation with the police; (4) the defendant's awareness of his or her
right to refuse consent; (5) the defendant's education and intelligence; [and] (6) the
defendant's belief that no incriminating evidence will be found.’ ” State v. Mabry, 2d Dist.
Montgomery No. 26242, 2015-Ohio-4513, ¶ 15, quoting State v. Black, 2d Dist.
Montgomery No. 23524, 2010-Ohio-2916, ¶ 36-41.
{¶ 11} In this case, Dayton Police Officer Willie Hooper testified at the suppression
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hearing. He testified that he was sent to Miami Valley Hospital to meet with Mustafa.
Mustafa was not in custody. Hooper testified he informed Mustafa that the police wanted
to see the surveillance recording of the incident and that Mustafa’s consent to retrieve the
recording was needed because Mustafa was the owner of Ameripro. Hooper testified
that he did not have a problem communicating with Mustafa and that Mustafa stated he
was able to understand Hooper. 3 Hooper also testified that Mustafa was very
cooperative and gave oral consent for the police to take the surveillance recording.
Hooper testified that he then placed a call to Detective Chad Jones, placed the telephone
on loudspeaker mode, and repeated the request for oral consent which was, again, given.
Hooper testified that he did not make any promises or threats to Mustafa, that Mustafa
was not hesitant about giving oral consent, and that Mustafa did not request a lawyer at
that time.
{¶ 12} Jones also testified at the motion to suppress. His testimony corroborated
Hooper’s testimony that Mustafa gave verbal consent to the seizure of the surveillance
tape. Jones testified that he then seized the surveillance video based upon the oral
consent.
{¶ 13} Mustafa testified at the suppression as well. He denied having been asked
for oral consent and testified that when he initially met with the police, they simply asked
him to sign a written consent form. He further testified that he did not understand
everything on the consent form and therefore attempted to contact his attorney. When
he was unable to reach his attorney, Mustafa called an employee at Ameripro who,
3
This testimony is supported by the fact that at both the suppression hearing and trial,
Mustafa declined constant translation from the certified interpreter and stated that he
would use them when/if he needed assistance.
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according to Mustafa, informed him that the police had already taken the evidence.
Mustafa testified that he then signed the consent form solely because the evidence was
already in police possession.
{¶ 14} We find nothing inherently incredible in the testimony of Hooper and Jones.
Their testimony was sufficient to conclude, based upon the totality of the circumstances,
that Mustafa’s oral consent was voluntary. Therefore, we need not reach the issue of
the written consent.
{¶ 15} We conclude that the trial court did not err in denying the motion to
suppress. Accordingly, the first assignment of error is overruled.
III. Analysis of Aydin’s Statement made to Mustafa in the Jury’s Presence
{¶ 16} The second assignment of error asserted by Mustafa states:
THE TRIAL COURT ERRED BY NOT INFORMING THE JURY OF THE
TRANSLATION OF A COMMENT MADE BY THE COMPLAINING
WITNESS TO THE APPELLANT WITHIN THE HEARING OF THE JURY
THAT COULD HAVE AFFECTED THE JURY’S EVALUATION OF THE
CREDIBILITY AND DEMEANOR OF THE COMPLAINING WITNESS, IN
VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS.
{¶ 17} Mustafa contends that the trial court violated his right to due process when
it denied his request to inform the jury of a courtroom statement made by Aydin as he
was leaving the witness stand.
{¶ 18} The record shows that, at the conclusion of his trial testimony, Aydin walked
past the table where Mustafa and his counsel were seated. As he did so, he made a
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comment in Russian.4 One of Mustafa’s attorneys speaks Russian and was able to
understand the comment. After hearing the remark, the attorney stated, “I’m sorry,
Judge. You know on the way out he just made a terrible comment to the defendant.”
Tr. p. 680. The trial court immediately excused the jury. Counsel for Mustafa then
argued that the jury should be made aware of the statement because the State “presented
this witness to this jury, as somebody that is who he is not. And as he walked out of this
courtroom he showed to everybody that he can understand the Russian language, who
he is. And if this jury is not allowed to understand what he said in Russian, they’re not
getting a full picture of this individual.” Tr. p. 688. The trial court denied the defense
request. Thereafter, the jury returned to the courtroom and the trial court issued the
following instruction:
Ladies and gentlemen, welcome back. My apologies for that quick
recess that we took. As [Aydin] was exiting the courtroom there was some
commotion, and a statement was made with regard to him.
I want to tell you that you cannot consider that for any purpose
whatsoever. You must disregard it completely, and use it for absolutely no
purpose in assessing the facts of this case and applying the law to the facts
as you find them to be.
You’ve been instructed, and you’ll be instructed again, that the only
evidence that you can consider in this case is the testimony that is adduced
through the witnesses that are under oath on the witness stand and exhibits
4
The statement was translated for the trial court by one of the certified translators present
at trial as “We’ll talk shit later.” Tr. p. 684.
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that will be admitted for the trial for your consideration.
So I just want to make that clear that you cannot consider what just
happened for any purpose whatsoever. We’re just going to scrape it off
and move forward.
Tr. p. 689 - 690.
{¶ 19} We begin by noting that, in our view, counsel mishandled Aydin’s remark by
editorializing about it in front of the jury. The better course of action would have been to
ask for a sidebar conference with the trial court and the prosecutor. At that point, counsel
could have asked to recall Aydin to the witness stand in order to bring the statement to
the attention of the jurors. However, counsel merely asked the court to provide the
statement’s translation to the jury. The court correctly noted that statements made off
the stand do not constitute evidence for the jury’s consideration.
{¶ 20} Further, we reject defense counsel’s claim that, had the statement been
made in English, the jury would have been able to hear and evaluate the comment.
There is nothing in the record before us to demonstrate that the jurors actually heard
Aydin make the statement.
{¶ 21} Based upon this record, we cannot say that the trial court abused its
discretion in denying the request to translate the statement for the jury. Accordingly, the
second assignment of error is overruled.
IV. Jury Instruction Analysis
{¶ 22} Mustafa’s third assignment of error provides as follows:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON
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NON-DEADLY USE OF FORCE SELF DEFENSE, AND ASSAULT
AND/OR AGGRAVATED ASSAULT.
{¶ 23} Mustafa claims that the trial court erred by failing to instruct the jury on self-
defense through the use of non-deadly force and by failing to give instructions on
aggravated assaulted and assault.
{¶ 24} “The purpose of jury instructions is to properly guide the jury” in deciding
questions of fact based on the applicable law. (Citation omitted.) Griffis v. Klein, 2d
Dist. Montgomery No. 19740, 2005-Ohio-3699, ¶ 48. “A trial court has discretion to
determine whether the evidence adduced at trial was sufficient to warrant an instruction.”
State v. Austin, 8th Dist. Cuyahoga Nos. 106215 and 106530, 2018-Ohio-3048, ¶ 54,
citing State v. Fulmer, 117 Ohio St. 3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72.
Thus, when reviewing jury instructions given by a trial court, the appropriate standard of
review is whether the trial court abused its discretion. State v. Pendleton, 2d Dist. Clark
Nos. 2017-CA-17, 2017-CA-9, 2018-Ohio-3199, ¶ 44, citing State v. Underwood, 2d Dist.
Montgomery No. 26711, 2016-Ohio-1101, ¶ 9.
{¶ 25} We begin with the self-defense instruction. “[A] defense of self-defense
involving the use of non-deadly force requires proof that: (1) the defendant was not at
fault in creating the situation giving rise to the altercation; and (2) that the defendant had
reasonable grounds to believe and an honest belief, even though mistaken, that the
defendant was in imminent danger of bodily harm and the only means of protecting
himself or herself from that danger was by the use of force not likely to cause death or
great bodily harm.” (Citations omitted.) State v. Pigg, 2d Dist. Montgomery No. 25549,
2013-Ohio-4722, ¶ 36.
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{¶ 26} The State argues that this issue was not preserved for appeal and therefore
must be reviewed under the plain error standard. Conversely, Mustafa contends that the
matter was not waived because the trial court made a “unilateral decision to eliminate any
question as to a duty to retreat,” thereby preventing his counsel from seeking an
instruction on non-deadly force self-defense.
{¶ 27} A review of the transcript shows that the court, when discussing the self-
defense instruction with counsel, stated, “I believe that we have that as self-defense and
defense of others as against deadly force because I see a duty to retreat there. And in
the [trial of co-defendant Baris Koch], we had done sort of the deadly force duty to retreat
or if it wasn’t deadly force --” Tr. p. 1009. At that point, counsel for Mustafa interjected
and stated, “We’re fine with not having the physical harm, the non-deadly force
instruction.” The State then made an argument regarding the instruction, following which
Mustafa’s counsel stated that, based upon the facts of the case, the defense was
“perfectly fine with simply [a] deadly force self-defense instruction.” Tr. p. 1011.
{¶ 28} We do not read this passage as a unilateral decision by the trial court.
Instead, it appears that the trial court was attempting to discuss the applicability of both
deadly and non-deadly force when defense counsel interrupted and essentially stated
that Mustafa was not asking for an instruction on non-deadly force. Counsel then
reiterated that Mustafa was not asking for a non-deadly force instruction. Thus, we find
that this matter does not involve plain error as urged by the State, but is rather a matter
of invited error. “ ‘Under this principle, a party cannot complain of any action taken or
ruling made by the court in accordance with that party's own suggestion or request.’ ”
Daimler/Chrysler Truck Fin. v. Kimball, 2d Dist. Champaign No. 2007-CA-07, 2007-Ohio-
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6678, ¶ 40, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 448, at 170-171
(1999, Supp.2007).
{¶ 29} In any event, we cannot say that Mustafa has shown any error. Aydin
testified that Mustafa hit him in the head. The video clearly showed that Mustafa hit
Aydin with a metal rod at least five times before Aydin was able to run across the street.
Then three of the co-defendants are seen hitting Aydin, who was lying on the ground, with
metal rods. At that point, Mustafa crossed the street and hit Aydin with the rod again.
Mustafa walked away and then returned and hit Aydin with the pole once more. Each
time Mustafa can be observed swinging the pole like a baseball bat.
{¶ 30} We find that the trial court could have reasonably concluded that Mustafa
was not entitled to a non-deadly force self-defense instruction since he had repeatedly
used a large metal rod to strike Aydin as he was lying on the ground, and who was being
beaten with weapons by multiple other persons who were also using weapons. Based
upon this evidence, even had Mustafa asked for the instruction, we cannot say that the
trial court would have abused its discretion by denying the request.
{¶ 31} We next address Mustafa’s claim that he was entitled to instructions on
assault and aggravated assault. Mustafa did not seek these instructions during trial;
thus, we are limited to a plain error review. “On appeal, a party may not assign as error
the giving or the failure to give any instructions unless the party objects before the jury
retires to consider its verdict, stating specifically the matter objected to and the grounds
of the objection.” Crim.R. 30(A). Failure to object waives all but plain error. State v.
Rollins, 2d Dist. Clark No. 2005-CA-10, 2006-Ohio-5399, ¶ 14. Plain error exists if the
trial outcome would clearly have been different, absent the alleged error in the trial court
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proceedings. Id.
{¶ 32} Felonious assault and aggravated assault are nearly identical offenses;
however, aggravated assault requires the additional mitigating element of serious
provocation. State v. Mack, 82 Ohio St. 3d 198, 200, 694 N.E.2d 1328 (1998).
“Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and
the provocation must be reasonably sufficient to incite or to arouse the defendant into
using deadly force. In determining whether the provocation was reasonably sufficient to
incite the defendant into using deadly force, the court must consider the emotional and
mental state of the defendant and the conditions and circumstances that surrounded him
at the time.” (Citation omitted.) State v. Deem, 40 Ohio St. 3d 205, 533 N.E.2d 294
(1988), paragraph five of the syllabus. In State v. Shane, 63 Ohio St. 3d 630, 590 N.E.2d
272 (1992), the Ohio Supreme Court elaborated on what constitutes reasonably sufficient
provocation. First, an objective standard must be applied to determine whether the
provocation is “sufficient to arouse the passions of an ordinary person beyond the power
of his or her control.” Id. at 634-635. If this objective standard is met, 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. This
court has held that “when analyzing the subjective prong of the test, ‘[e]vidence
supporting the privilege of self-defense, i.e., that the defendant feared for his own
personal safety, does not constitute sudden passion or fit of rage.’ ” State v. Harding, 2d
Dist. Montgomery No. 24062, 2011-Ohio-2823, ¶ 43, quoting State v. Stewart, 10th Dist.
Franklin No. 10AP-526, 2010-Ohio-466, ¶ 13.
{¶ 33} The record is devoid of evidence that Mustafa was acting under the
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influence of sudden passion or in a sudden fit of rage. During his testimony, Mustafa
denied being angry. Instead, Mustafa repeatedly stated that he was afraid that Aydin
would harm someone and that he was merely attempting to scare and disarm Aydin.
Further, with regard to the second attack, the fact that Mustafa prepared by placing a
metal rod near the business door belies any claim of sudden passion or rage. Thus, we
cannot say that the trial court’s failure to give an instruction on aggravated assault
constituted error, let alone plain error.
{¶ 34} We next assess the claim that the trial court should have instructed the jury
on assault as proscribed by R.C. 2903.13. That statute states in pertinent part that “[n]o
person shall knowingly cause or attempt to cause physical harm to another * * * [and] [n]o
person shall recklessly cause serious physical harm to another * * *.” R.C. 2903.13(A)
and (B).
{¶ 35} On this record, there can be no doubt that Aydin suffered serious physical
harm, not merely physical harm. Thus, Mustafa was not entitled to an assault instruction
under R.C. 2903.13(A). Further, we cannot say that the record supports a finding that
Mustafa acted recklessly. Therefore, Mustafa was not entitled to an assault instruction
under R.C. 2903.13(B). Thus, even had he asked for such instructions, the trial court
would not have abused its discretion by denying the request. Also, we cannot say that
the outcome of the trial would clearly have been otherwise had the jury been given
instructions on aggravated assault or simple assault.
{¶ 36} The third assignment of error is overruled.
V. New Trial Analysis
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{¶ 37} The fourth assignment of error is as follows:
THE FAILURE TO APPLY IN THE INSTANT CASE THE RULE SET
FORTH BY THE UNITED STATES SUPREME COURT IN GRIFFITH V.
KY., 479 U.S. 314 (1987) AND ITS PROGENY THAT NEW RULES OF
CRIMINAL PROCEDURE MUST BE APPLIED RETROACTIVELY FOR
ALL CASES UNDER DIRECT REVIEW AS IT APPLIES TO OHIO’S
SHIFTING OF THE BURDEN OF PROOF FROM THE DEFENDANT TO
THE STATE FOR THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE
WOULD VIOLATE THE DUE PROCESS CLAUSES OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE CONSTITUTION
FOR THE STATE OF OHIO.
{¶ 38} Mustafa notes the General Assembly has amended the statute governing
the burden of proof regarding the affirmative defense of self-defense, and, from this, he
contends that the amendment should be applied retroactively to his case. He claims, on
this basis, that his conviction should be reversed and the matter remanded for new trial.
{¶ 39} This issue was presented in co-defendant Izmir Koch’s direct appeal to this
court. In that case, we stated that the defendant was “not entitled to retroactive
application of the burden shifting changes by the legislature to Ohio’s self-defense statute,
R.C. 2901.05, as a result of H.B. 228.” State v. Koch, 2d Dist. Montgomery No. 28000,
2019-Ohio-4099, ¶ 103. For the reasons set forth in Koch, we conclude that Mustafa’s
argument lacks merit.
{¶ 40} The fourth assignment of error is overruled.
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VI. Conclusion
{¶ 41} All of Mustafa’s assignments of error being overruled, the judgment of the
trial court is affirmed.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Anthony R. Cicero
Hon. Mary Lynn Wiseman