dissenting. I dissent from both of the majority’s holdings. First, I dissent from the majority’s effective holding that a defendant can never introduce specific instances of a victim’s conduct to prove a self-defense claim. The majority holds that if a victim’s character or character trait is not a legal element of the defense, that is, a definitional element of the defense, then specific conduct proving that character trait cannot be introduced as evidence. The *32majority holds that an element of the defense must require proof of the victim’s character or character traits before specific conduct may be introduced. Since no element of self-defense requires any evidence of the victim’s character, the majority’s holding is broader than it admits.
I believe that the rule has a more practical reading. Evid.R. 405 is a rule of evidence, and the rule should be read to say that as long as the instances of specific conduct provide evidence of an essential element of a defense, they are admissible. This reading of the rule preserves the divide between reputation testimony and evidence of specific conduct. A defendant can introduce reputation testimony if the character trait of the victim is “pertinent.” Evid.R. 404(A)(2) and 405(A). The standard for evidence of specific conduct is higher: it must go to an essential element of the defense. Evid.R. 405(B). The majority elevates to a level of impossibility the standard for admission of specific conduct. Although the majority claims to leave open the issue of whether testimony of specific instances of a victim’s conduct is admissible to show a defendant’s state of mind, it has, in effect, resolved that question, too. While a defendant’s state of mind is an element of a self-defense case, that element does not require proof of the victim’s character or character traits. Thus, under today’s holding, evidence of specific conduct would also be inadmissible in that context despite the majority’s apparent approval of State v. Baker (1993), 88 Ohio App.3d 204, 211, 623 N.E.2d 672, 676 and its holding otherwise.
Evidence of the victim’s character offered in the form of specific instances of his conduct could have been employed by this defendant to establish the first element of self-defense: that he was not at fault in creating the situation giving rise to the affray. State v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the syllabus. The trial court erred in not admitting that evidence.
I also dissent from the majority’s holding that the trial court did not commit plain error when it instructed the jury that' felonious assault with a deadly weapon is a lesser included offense of attempted murder. The majority correctly finds that under R.C. 2903.11(A)(2), felonious assault is not a lesser included offense of attempted murder. But it finds that the trial court’s error in holding otherwise was not obvious enough to constitute plain error. To the contrary, simply reading the syllabus law of this court in State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, and comparing the statutes defining felonious assault with a deadly weapon and attempted murder leads to the inescapable, crystal clear conclusion that the majority itself reaches. It’s cold logics It’s unassailable. It’s obvious. It’s plain error.
Victor V Vigliucci, Portage County Prosecuting Attorney, and Kelli K. Norman, Assistant Prosecuting Attorney, for appellant. Dennis Day Lager, Portage County Public Defender, for appellee. Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne Annas, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association. Betty D. Montgomery, Attorney General, and David M. Gormley, State Solicitor, urging reversal for amicus curiae Attorney General of Ohio.