COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59447 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION KEVIN FERRIS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-243106 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. NANCY A. FUERST, ESQ. Cuyahoga County Prosecutor 330 Standard Building CARMEN M. MARINO, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: Defendant-appellant, Kevin Ferris, was indicted by the Cuyahoga County Grand Jury for Aggravated Murder (R.C. 2903.01) with a gun specification in connection with the death of Frank Thomas. Appellant entered a plea of not guilty at his arraignment on October 4, 1989. Prior to trial, the state reduced the charge to Murder and trial by jury commenced on January 29, 1990. On February 1, 1990, the jury found the appellant guilty of the lesser included offense of Voluntary Manslaughter and of the gun specification. The trial court thereafter sentenced him to a mandatory term of three (3) years for the gun specification, and to a consecutive term of six (6) to twenty-five (25) years on the manslaughter charge. The present appeal stems from this conviction, and for the reasons that follow, we affirm. I. On August 16, 1989, between 10:00 and 10:30 p.m., the appellant fired a shot at Frank Thomas ("the decedent") which resulted in his death. The appellant claimed at trial that he shot the decedent in self-defense. Dr. Kaliel Jiraki, a deputy coroner with the Cuyahoga County Coroner's Officer, performed the decedent's autopsy on August 17, 1989. Dr. Jiraki testified that the decedent received two gunshot wounds: one bullet entered the front left jaw and - 2 - travelled slightly downward to the back of the neck where it lodged; the other bullet travelled completely through the decedent's left lateral thigh from left to right, front to back and at a slightly downward angle. The gunshot wound to the face was ruled as the cause of death and it was estimated that the gun was two feet or greater from the decedent when fired at him. The doctor also testified that the five foot, seven inch (5'7"), 177 pound decedent had a small amount of alcohol and a low level of cocaine in his system. However, he could not conclusively state how the presence of these substances affected the decedent's behavior. Sharon Rosenberg, an employee in the trace evidence department of the coroner's office, conducted trace metal detection and gunshot residue tests on the decedent's hands and his clothing. The gunshot residue test revealed a visible reaction on the back of both of decedent's hands. A more intense reaction resulted when a gray smudge found on the decedent's left hand, below the ring finger on his palm, was tested for gunshot residue. Further, the gray smudge revealed a ferrous metal (iron or steel) reaction. The shape of the gray smudge, according to Ms. Rosenberg, was consistent with the hand being near the gun muzzle when discharged but inconsistent with the traditional pattern for holding a gun. The smudge was also inconsistent with the classic grasping pattern as if the decedent grasped an object. - 3 - Yolanda Swift and Yvonne West lived at 9220 Hough, Apartment 10 in the Park Village Estates, Cleveland, Ohio, on August 16, 1989. Both witnesses knew the decedent and the appellant. Sometime between 10:00 and 10:30 p.m., the women were informed by their nephew that there was a fight outside between a security guard and another man. The women left their apartment and ran outside through the back door of the building. The appellant and the decedent were wrestling or "tussling" with one another on the ground. Both men had their hands on the gun. The women seeing that the gun was being pointed at them, ran for cover. Ms. Swift, standing eight (8) to ten (10) feet away, saw the appellant's "walkie talkie" fall to the ground. Another woman named Lavenia called for back up. A second security guard exited the building. When the decedent saw this other guard, he pushed the appellant forward causing him along with his gun to fall to the ground. The decedent then ran down toward East 93rd Street and Amesbury, running through a vacant field. The appellant and the second security guard, Charles W. Sales ("Sales") followed the decedent. The appellant fired a warning shot into the air. Ms. Swift and Ms. West saw that the decedent subsequently stopped running while still on Amesbury. They watched the three men who were standing under a street light from approximately twenty-five (25) feet away. They observed the appellant fire another shot into the ground near the decedent, and heard him say, "dance, mother fucker, dance." According to Ms. Swift, the - 4 - decedent had his hands up in the air at this point, clenching an unseen object in his hand./1/\ The appellant then struck the decedent in the face with the gun. Sales cautioned to the appellant that he had done "enough" and the appellant responded, "man, fuck that shit, he don' whipped my ass enough around here." The appellant then went right to the decedent and shot him in the face. The decedent fell to the ground. Ms. West estimated that the gun was not more than two inches from the decedent's face. After the appellant shot the decedent, Sales removed the gun from his possession and said, "you fucked up." When the police arrived, Sales turned the gun over to them. Ms. Swift recalled that she never saw Sales or the decedent with a gun but that Sales hit the decedent at some point on his back with some sort of stick. Neither she nor Ms. West saw that the decedent carried any type of metal pipe. Ms. Swift further testified about a common problem with the security guards and the tenants at Park Village Estates. The security guards would confiscate drugs, and detain the buyers/sellers on the pretense of calling the police. The police however were never called and the security guards retained possession of the drugs. Henry Murray resided at 9284 Amesbury. On August 16, 1989, Mr. Murray was sitting on his second floor porch listening to a ball game on the radio. He saw a big man running in the street /1/\ After the decedent was shot in the face and fell to the ground, the woman named Lavenia removed the object from his hand according to Ms. Swift. - 5 - with a stick, and a little man and the decedent on the sidewalk across the street from his home./2/\ The little guy shot into the ground, then in the air, and then hit the decedent when the decedent was moving his body with his hands up in the air. The big guy hit the decedent two to three times on his back with the stick during the episode. Mr. Murray saw that the responding police officers recovered a metal pipe from the vacant field but instructed them to "leave it because the man [the decedent] didn't have nothing but his hands." Mr. Murray admitted to telling an investigator that the decedent was shot in the back of his head. At trial, however, he could not accurately recall whether he was shot from in front or behind. Reverend Wilbur Bailey also observed the incident from the second floor bedroom of his home at 9286 Amesbury. He observed two uniformed security guards and another man. The bigger guard beat the decedent with a billy club. One hand of the decedent's was enclosing an object. He was told to "drop it" and received a few more hits when he refused to drop it. The Reverend Bailey then saw sparks fly when the smaller guard shot at the ground. The decedent was jumping up and down and was hit a couple more times by the bigger security guard. Two other shots were fired and the decedent fell to the ground. The decedent never carried a metal pipe in his hands. /2/\ Sales is 6' tall and weighs 245 pounds. The appellant is 5'7" tall and weighs 140 pounds. - 6 - Charles Sales was an employee of Fox Detective Agency and he worked a double shift as a security guard at the Park Village Estates on the date in question. He did not carry a weapon as he was awaiting the receipt of his permit. He left the appellant, his partner, that evening,/3/\ at approximately 10:00 p.m. to recharge a battery in the office. As he exited the office, a car drove up and the driver advised Sales that another security guard needed help. Sales picked up a wooden stick he found earlier and approached 9220 Hough, where he was told once again by an unidentified female that the other security guard needed help. Sales saw a male standing over his partner, the appellant, "swinging on him". Sales saw that the appellant had the gun received from another sergeant out but he could not see who had the gun. However, when the decedent started to run toward E. 93rd and Amesbury, he did not have the gun. Sales and the appellant then chased the decedent. The decedent stopped when told to do so by the appellant. The appellant was now three feet from the decedent's side and Sales stood three feet in front of the decedent, still grasping the wooden sick. The decedent was told twice to put his hands in the air and to get down on the ground. He was swung at with the stick when he did not comply. The appellant told Sales to get out of the way and shot twice toward the ground, saying "dance, /3/\ Sales worked with the appellant for two evenings and also backed him up on several other occasions. - 7 - mother fucker", and then shot at the decedent's face. Sales seized the gun from the appellant and said, "you fucked up". Sales thereafter alerted his base, requesting a back up unit, Cleveland police officers and EMS. He did not, contrary to Reverend Brady's testimony, sit underneath the light post after the fatal shot. He furthermore never saw the decedent holding any metal pipe. On cross-examination Sales testified that he did not see the appellant smack the decedent in the face with the gun. He also was not in fear of his life or great bodily harm that evening. Officer Kevin Becker of the Cleveland Police Department responded to a call about a male shooting victim. Officer Becker found the decedent laying on his back on the sidewalk with a large pool of blood around his head. There was also a large crowd gathering around the decedent's body. The officer then received information about the alleged use of a pipe in the incident. A metal pipe was recovered from the vacant field which was overgrown with weeds. The location of the pipe was approximately fifty (50) feet from the spot where the decedent fell on the sidewalk. Also recovered from the street was the stick carried by Sales. Officer Donald Ferris (no relation to the appellant) investigated the scene. He took the appellant's statement on August 17th at approximately 12:30 a.m., just hours after the - 8 - shooting. At trial, he testified primarily about the photographs of the scene which were taken at his direction. The state then rested its case. Prior to the trial court's denial of appellant's motion for acquittal, the parties stipulated that no fingerprints were found on the metal pipe recovered from the vacant field. The defense only presented one witness, the appellant. He was employed by Fox Detective Agency after completing security guard training in 1988 and worked at Park Village Estates. He testified that in a one to two month period prior to August 16, 1989, he detained ten or eleven people for possession of drugs for the sole purpose of keeping them until the arrival of the Cleveland Police Department. On August 16, 1989, he carried in his holster a gun given to him by Sergeant Tim Davis. He was making his rounds at 9220 Hough when he noticed a group of five males gathered by a fence. As he approached the group, three men fled and the decedent, who the appellant never saw before, and another male remained at the fence. The decedent dropped a package which was filled with a white substance. The appellant, suspecting cocaine to be in the package, stepped on it and drew his weapon. The decedent grabbed for the gun; a scuffle ensued with the decedent twice slamming the appellant to the ground. The decedent said at the time, "I've been to the military, I'm fixing to break your neck." They were then wrestling on the ground, both grabbing for and - 9 - holding the gun. At some point, the decedent gained possession of the gun but lost it when he saw Sales, started to run and was tripped by the appellant. The appellant recovered the gun and placed it back into the holster. The appellant and Sales chased the decedent. The appellant fired an unknown amount of warning shots, yelling, "halt, halt, stop." The decedent stopped, reached down, picked up a pipe and swung it. He threw "little packages" into the field/4/\ and swung at the appellant. The appellant then fired a warning shot into the ground, and said "drop it" with reference to the pipe. He could not definitely recall that he said "dance, mother fucker". The appellant explained that he was trying to protect his life and of citizens around him because the decedent "tried to kill me around the corner." The appellant saw Sales hit the decedent twice in the thigh with the stick/5/\ with no effect and the decedent swung the pipe once more at him. The appellant fired another warning shot into the ground. The decedent dropped the remaining packages and when he swung at the appellant again, the appellant shot him in the face. He intended to shoot him in order to keep him from coming at him with the pipe. The decedent threw the pipe fifty (50) feet into the field as he was shot in /4/\ "Little packages" were never found in the investigation. /5/\ The appellant testified that Sales left to find the stick after arriving at the scene of the shooting. - 10 - the face. The appellant testified that he informed an unidentified officer the whereabouts of the pipe./6/\ II. In his sole assignment of error, the appellant contends that: "I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Appellant asserts that no reasonable trier of fact could have found him guilty of voluntary manslaughter beyond a reasonable doubt. Although he admits his presence at the scene and the firing of the fatal shot, he argues that the physical evidence and the "coached and unreliable" testimony was too inconsistent to form the basis for a valid conviction. He furthermore argues that he proved self-defense by a preponderance of the evidence. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court, when addressing whether a verdict is against the manifest weight of the evidence, reviews: "*** 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." State v. Davis (1988), 49 Ohio App. 3d 109, 113. /6/\ Appellant, in his statement to Officer Ferris, did not mention that he gave an officer this information. - 11 - Ohio Revised Code 2903.03 provides: "(A) 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 cause the death of another." The appellant, in order to prevail on the issue of self- defense, has to show that he was not at fault in starting the affray, and that he had a bona fide belief that he faced imminent danger of death or great bodily harm and that his only means of escape was the use of such force, and that he violated no duty to retreat or avoid the danger. These elements are cumulative. Thus, if appellant fails to prove any one of the elements by a preponderance of the evidence, he fails to demonstrate that he acted in self-defense. State v. Jackson (1986), 22 Ohio St. 3d 281, 284; State v. Robbins (1979), 58 Ohio St. 2d 74, 79-80. In Ohio, it is not necessary for a person to retreat, although capable of doing so, before using non-deadly force. Columbus v. Dawson (1986), 33 Ohio App. 3d 141. A review of the record reveals that the jury did not lose its way in finding the appellant did not act in self-defense when he shot the decedent and caused his death. Appellant failed to prove that he was not at fault in causing the affray as he voluntarily chased after the decedent who definitely had no weapon when he started to run down Amesbury. Five witnesses testified that the decedent never had possession of a pipe; only the appellant claimed such possession, albeit a pipe was recovered in the vicinity. Therefore, it was not unreasonable - 12 - for the jury to find that the appellant had no reason to fear great bodily harm or to use deadly force as his only means of escape. It was also not unreasonable for the jury to find that the appellant could have retreated without the use of deadly force as they were in the street and the appellant's means of exit was never blocked by the decedent. The record reveals ample competent evidence, which, if believed by the triers of fact, warrants a finding of guilty beyond a reasonable doubt of the crime charged, voluntary manslaughter. Judgment affirmed. - 13 - 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. DYKE, P.J., and LEO SPELLACY, J., CONCUR. SARA J. HARPER 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. .