COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59363 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DEVIRE MCRAE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-205528 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: A. STEVEN DEVER ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO CLEVELAND, OHIO 44113 For Plaintiff-Appellee: MICHAEL E. MURMAN 14701 DETROIT AVENUE LAKEWOOD, OHIO 44107 -2- SPELLACY, J.: On January 16, 1986, defendant-appellant Devire W. McCrae ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Murder, in violation of R.C. 2903.02. At his arraignment on January 28, 1986, appellant pleaded not guilty. On April 7, 1986, appellant's jury trial commenced. The first witness to testify for the State was Elaine Stiles, the manager and custodian of the apartment building located at 10025 Detroit Avenue in the City of Cleveland, Ohio. Elaine Stiles testified that the victim, Robert Newman, rented Apartment Number 3 in her building, and she often saw Robert Newman and appellant together. She described Robert Newman and appellant's relation- ship as that of husband and wife. Elaine Stiles stated that she had heard Robert Newman and appellant fight on some occasions. She claimed that she had observed Robert Newman with bruises on his face, but she never saw bruises on appellant. Elaine Stiles further testified that on January 3, 1986, at approximately 2:00 P.M., she heard a scream, so she went to her apartment door. Suddenly, she observed appellant running down the stairs towards her. When he approached her, he told her that he had just killed Robert Newman and asked her to call the police. Appellant then layed down on the floor crying and hit his fists on the floor. While Elaine Stiles was inside her apartment calling the police, appellant was banging on her door. When she opened her -3- door, appellant put his hands on her and she said, "Please, just stay off me." Appellant responded, "Bitch, I'll stab you, too." Elaine Stiles became very frightened and returned inside her apartment until the police arrived. The next witness to testify for the State was Officer David Menear of the Cleveland Police Department. Officer Menear testified that at approximately 2:00 P.M., on January 3, 1986, he and his partner, Mark Ketterer, responded to a radio dispatch call regarding a male stabbed at 10025 Detroit Avenue. Officer Menear was immediately met by Elaine Stiles who said that the man in Number 3 was dead. Officer Menear and Officer Ketterer proceeded to Apartment Number 3. Outside the apartment in the hallway, they observed appellant crying and hysterical. Suddenly, he told them, "I did it." Appellant was then immediately handcuffed and advised of his constitutional rights by Officer Ketterer. Officer Menear stated that he then entered the apartment and found Robert Newman laying on the floor, just inside the door in the living room. Officer Menear observed a lot of blood in the entire apartment. Eventually, Emergency Medical Service arrived and transported Robert Newman to a hospital, where he died as a result of a stab wound to the neck. The State next presented the testimony of Officer Ketterer, who basically corroborated the testimony of Officer Menear. Officer Ketterer offered further testimony regarding his discussions with appellant after he advised him of his -4- constitutional rights. Officer Ketterer claimed that appellant was very willing to talk to him about the incident. Appellant informed Officer Ketterer that he and Robert Newman were roommates and that on this particular day, they were playing a game called "one two." Appellant said it was a boxing game and that the victim was getting the best of him this day. Appellant claimed that he wanted Robert Newman off of him but he refused. Thus, appellant grabbed a knife and stabbed Robert Newman. According to Officer Ketterer, appellant did not have any marks or bruises on him. The next witness to testify for the State was Detective Mel Goldstein from the Cleveland Police Department's Homicide Unit. Detective Goldstein testified that he and his partner, Detective Ernest Hayes, arrived at the crime scene at approximately 2:30 P.M. Detective Goldstein stated that they found a bloody butcher knife just outside the bedroom door. Later that day, at about 5:30 P.M. or 6:00 P.M., Detective Goldstein spoke to appellant and said that he was "funning" with Robert Newman and Robert Newman was shadow boxing with him. Appellant then claimed that Robert Newman chased him down the hallway into the kitchen. In the kitchen, appellant retrieved a knife and began poking Robert Newman with it. As a result of the poking, Robert Newman received a wound in the neck and fell to the floor. Appellant then ran out of the apartment and called for help. -5- The last witness to testify for the State was Cuyahoga County Coroner Dr. Elizabeth K. Balraj. Dr. Balraj stated that Robert Newman had a stab wound in the front of his neck to the right of his midline. The wound was two inches above his collarbone and was one-quarter of an inch in length. Dr. Balraj testified that the stab wound to Robert Newman's neck was the cause of his death. Robert Newman's body revealed a blood alcohol level of .21 percent. The first witness to testify on behalf of appellant was Virginia McCoy, appellant's sister. Virginia McCoy testified that appellant often stayed with her, because Robert Newman often jumped on appellant and things like that. Often times, when appellant arrived at Virginia McCoy's house, she observed bruises and scars on his shoulders and legs, allegedly caused by Robert Newman. While appellant stayed with his sister, Robert Newman would make harassing phone calls all night long. According to Virginia McCoy, appellant was always a peaceful person and sensitive. She never knew appellant to exercise any type of aggression or violence. Appellant then presented the testimony of two other sisters, Ruth Shelburn and Arlene Laury. Ruth Shelburn said that appellant was a very loving, caring, honest and peaceful person. Arlene Laury stated that appellant was very peaceful and that he got along with everybody. She never knew appellant to provoke arguments or overreact emotionally. -6- Finally, appellant testified on his own behalf. Appellant testified that he and Robert Newman were lovers and that they lived together for about three years. According to appellant, Robert Newman was very strong, often lifted weights, and boxed. When Robert Newman consumed alcohol, he would change drastically. Robert Newman constantly got into fights with little provocation at all. Appellant further testified that Robert Newman was violent toward him all the time. At least once or twice a week, Robert Newman would punch appellant out, until he was either semi- conscious or unconscious. Appellant claimed that he tried to leave Robert Newman on several occasions but he always followed him. Robert Newman made numerous threats against appellant and his family. Appellant also testified that Robert Newman stabbed him twice and strangled him into unconsciousness. Robert Newman also picked him up and threw him, and also picked up bricks, pipes and other objects and tried to hit him with them. Appellant testified that during the afternoon of January 3, 1986, Robert Newman had been drinking and hassling him. He followed appellant throughout the apartment asking him whether he had an attitude and whether he was mad. Appellant went to the kitchen and began to straighten up the kitchen sink. Robert Newman left the bedroom, entered the kitchen, and approached appellant at the kitchen sink. At that point, appellant had a knife in his hand. -7- Appellant claimed that Robert Newman began to punch him in the side of his face causing him to not realize where he was. The next thing appellant knew, they were standing in the living room and he was waiving the knife in a defensive manner. Appellant thought that Robert Newman was going to take the knife and kill him with it. Appellant then recalled Robert Newman coming at him and then getting all over him. Appellant was unsure what occurred next, because he was in a daze. He said that he observed Robert Newman standing in front of him and then walk around the sofa toward a door. Robert Newman was holding his neck and blood was coming through his fingers. All of a sudden, Robert Newman fell to the floor. Appellant told Robert Newman to hold on and he went downstairs to call the police. After deliberations, the jury found appellant guilty of murder. Appellant was subsequently sentenced to a term of 15 years to life. Appellant filed a delayed notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT REFUSED TO INSTRUCT THE JURY ON SELF- DEFENSE. II. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF VIOLENT ACTS OF THE VICTIM WHERE SUCH EVIDENCE WAS OFFERED TO PROVE THE APPELLANT'S SUBJECTIVE STATE OF MIND THAT THE VICTIM WAS A VIOLENT PERSON AND THAT APPELLANT THEREFORE JUSTIFIABLY BELIEVED HE WAS IN DANGER. III. THE JURY'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -8- In his first assignment of error, appellant contends that the trial court erred in refusing to instruct the jury on the affirmative defense of self-defense. Appellant claims he was entitled to such an instruction, because he believed he was in imminent danger of death or great bodily harm. In order to warrant a jury instruction on the affirmative defense of self-defense, a defendant must introduce sufficient evidence, which, if believed, would raise a question as to the existence of such issue. State v. Melchoir (1978), 56 Ohio St. 2d 15, paragraph one of the syllabus. The elements of self- defense are: 1) the slayer was not at fault in creating the situation giving rise to the affray; 2) the slayer had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and 3) the slayer must not have violated any duty to retreat or avoid the danger. State v. Melchoir, supra, at 20. In the instant case, appellant testified that after Robert Newman punched him twice, he blacked out and did not realize what was happening. He further stated that he was unaware how Robert Newman received the stab wound to his neck. We find that when appellant took the stand, he completely negated the possibility of obtaining a self-defense jury instruction. Appellant's testimony negated any applicability of an instruction on self-defense, because self-defense is an intentional act motivated by reasonable grounds for believing -9- that one is in danger of death or great bodily harm and that the use of such force is one's only means of escape. Melchoir, supra; State v. Champion (1924), 109 Ohio St. 281. Appellant, in essence, denied committing an intentional act. Rather, he testified that he was not aware of how Robert Newman was stabbed, because he had blacked out. The bulk of appellant's testimony tended to show that he did not purposely stab Robert Newman. Thus, we determine that an instruction on self-defense was inconsistent with appellant's evidence. Accordingly, we conclude that the trial court did not err in refusing to instruct the jury on self-defense. Appellant's first assignment of error is without merit and is overruled. Appellant argues in his second assignment of error that the trial court erred in excluding evidence regarding Robert Newman's character for violence and aggression. Appellant claims that such evidence had a direct bearing upon the appropriateness of a self-defense jury instruction. As mentioned in our analysis of appellant's first assignment of error, we find that appellant's testimony negated the applica- bility of a jury instruction on the affirmative defense of self- defense. Thus, we find that the trial court did not err in excluding evidence that pertained to Robert Newman's character. Since appellant's testimony did not sufficiently raise the -10- affirmative defense of self-defense, the trial court properly prohibited him from presenting other evidence on the issue. Appellant's second assignment of error is not well taken and is overruled. In his third assignment of error, appellant argues that the jury's verdict of guilty of murder was against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 175. The weight of the evidence and the credibility of the witnesses are primarily matters for consideration by the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St. 2d 169. The trier of fact is entitled to believe or not to believe the testimonies of the State's witnesses and/or the defense's -11- witnesses. State v. Antill (1964), 176 Ohio St. 61. The trier of fact should consider the demeanor of the witness and the man- ner in which he testifies, his connection or relationship with the parties, and his interest, if any, in the outcome. Id. at 67. Upon a careful review of the entire record, we cannot conclude that the trial court lost its way and created such a manifest miscarriage of justice that appellant's conviction must be reversed and a new trial ordered. It is relatively clear that the jury chose to believe the State's witnesses' testimonies. We find that there was substantial competent credible evidence to support the jury's verdict of guilty of murder. Accordingly, we conclude that appellant's conviction for murder was not against the manifest weight of the evidence. Appellant's third assignment of error is not well taken and is overruled. Trial court judgment is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and HARPER, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .