[Cite as State v. Shakhmanov,

.]

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. -2-

{¶ 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,

, 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. -3-

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 -4-

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. -5-

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 -6-

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. -7-

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.

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 -8-

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,

,

,

. “Consequently, an appellate court must accept the

trial court's findings of fact if they are supported by competent, credible evidence.”

(Citation omitted.)

“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.)

With this standard

of review in mind, we turn to the issue of consent. -9-

{¶ 9} Warrantless searches and seizures are per se unreasonable under the

Fourth Amendment, subject to only a few well-established exceptions. State v. Cosby,

,

,

(2d Dist.). Valid consent

to search is one of the recognized exceptions to the warrant requirement. State v. Moon,

2d Dist. Montgomery No. 9288,

, *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.

“Consent may be oral or written.” State v. McLemore,

,

,

(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,

.

{¶ 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,

, quoting State v. Black, 2d Dist.

Montgomery No. 23524,

, ¶ 36-41.

{¶ 11} In this case, Dayton Police Officer Willie Hooper testified at the suppression -10-

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. -11-

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 -12-

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. -13-

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 -14-

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,

. “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,

,

citing State v. Fulmer,

,

,

, ¶ 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,

, citing State v. Underwood, 2d Dist.

Montgomery No. 26711,

.

{¶ 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,

. -15-

{¶ 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- -16-

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,

. Plain error exists if the

trial outcome would clearly have been different, absent the alleged error in the trial court -17-

proceedings.

{¶ 32} Felonious assault and aggravated assault are nearly identical offenses;

however, aggravated assault requires the additional mitigating element of serious

provocation. State v. Mack,

,

(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,

,

(1988), paragraph five of the syllabus. In State v. Shane,

,

(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.”

. 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.”

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,

, quoting State v. Stewart, 10th Dist.

Franklin No. 10AP-526,

, ¶ 13.

{¶ 33} The record is devoid of evidence that Mustafa was acting under the -18-

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 -19-

{¶ 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.,

(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,

. For the reasons set forth in Koch, we conclude that Mustafa’s

argument lacks merit.

{¶ 40} The fourth assignment of error is overruled. -20-

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