COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59654 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MORRIS PENNYMON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-242,053 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Michael E. Murman 14701 Detroit Avenue No. 555 Lakewood, Ohio 44107 -2- NAHRA, P.J.: Morris Pennymon appeals his conviction of four counts of felonious assault with gun and violence specifications. For the reasons set forth below, we affirm. On July 21, 1989, appellant was up on a ladder painting the home he rented at 9205 Harvard. His next door neighbor, Donald DeVaughn, arrived some time after noon with his mother, Bettina Brown, in a car driven by Jardene Shell. The three of them had attended a funeral and came to DeVaughn's home to change clothes and pick up DeVaughn's children. Shell parked the car in a driveway shared by appellant's and DeVaughn's houses. Shell followed the others inside in order to use the bathroom. According to Shell, appellant told him that he could not park there, and that the car better not be there when appellant was ready to go. Brown testified that she heard appellant and Shell arguing about leaving the car in the driveway. Brown, DeVaughn and Shell all testified that appellant got off his ladder, went into his house, and came out with a big silver gun just as Shell, Brown, DeVaughn and DeVaughn's three- year-old son, Donovan Glass, were coming out to leave. They stated that appellant shot at DeVaughn at close range three times. DeVaughn, Brown and Glass ran back inside; Shell stayed by his car. Appellant then began shooting at Shell. He reloaded his gun and also fired at DeVaughn's house. DeVaughn's son, -3- Donovan Glass, received a gunshot wound in his leg. No one else was injured. Shell ran next door and asked the neighbors to call police. After the police arrived, appellant came out of his house without the gun. The police went inside appellant's house and found the loaded gun in the kitchen. Appellant was arrested and charged with four counts of felonious assault with gun and violence specifications. The four counts referred to the four different individuals who were present, including Bettina Brown, Donald DeVaughn, Jardene Shell and Donovan Glass. Appellant filed a motion to suppress evidence, which was never heard or ruled upon. A jury trial was conducted, and appellant testified in his own defense. Appellant stated that DeVaughn threatened him. At one point he stated that he had come down from his ladder; later he stated the DeVaughn kicked it out from under him and that he fell down. He also stated that someone moved the ladder before the police took photographs, which show the ladder still standing. Appellant stated that he shot at DeVaughn so that DeVaughn would leave him alone, and that DeVaughn and Brown threw a tricycle, frying pan, toaster and garbage cans at him and would not let him walk away. He stated that he shot at Shell because Shell was not moving and would not get away from his car when appellant told him to. Appellant admitted that he reloaded his gun, and that no one else had a gun. He stated that he did not aim "direct", and that he did not mean to cause physical harm. -4- The jury found appellant guilty on all four counts. Appellant brought this timely appeal. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S REQUEST TO INSTRUCT THE JURY. Appellant claims that the trial court should have instructed the jury regarding self-defense. An accused is entitled to self-defense instructions if sufficient evidence has been produced which, if believed, would raise a question in reasonable minds concerning the existence of such issue. State v. Melchior (1978), 56 Ohio St. 2d 15, 20-22. The defendant bears the burden to prove, by a preponderance of the evidence, the affirmative defense of self-defense. State v. Martin (1986), 21 Ohio St. 3d 91. To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has 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. Robbins (1979), 58 Ohio St. 2d 74, paragraph two of the syllabus, (citation omitted). The defendant must present evidence on all elements of the defense to warrant a jury instruction on self-defense. See, e.g., State v. Prewitt, Jr. (May 7, 1987), Cuyahoga App. No. 52094, unreported. -5- In this case, appellant offered no evidence to prove that he was in imminent danger and unable to escape without the use of force, or that he could not have avoided the danger. He testified that he shot his gun so that DeVaughn, Brown and Shell would leave him alone. Accordingly, appellant's first assignment of error is without merit. II. Appellant's second assignment of error reads as follows: THE JURY'S VERDICT OF GUILTY AS TO ALL COUNTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A reviewing court may not reverse a conviction as against the manifest weight of the evidence where the trier of fact could reasonably conclude based on substantial evidence that the state proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In State v. Martin (1983), 20 Ohio App. 3d 172, the court stated the test for determining manifest weight as follows: * * * 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra, at 175. See also State v. Mattison (1985), 23 Ohio App. 3d 10. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. -6- State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In this case, there was substantial evidence that appellant knowingly caused physical harm to Donovan Glass and attempted to cause physical harm to Bettina Brown, Donald DeVaughn and Jardene Shell by means of a deadly weapon. Appellant repeatedly fired his weapon at Shell and DeVaughn. He also shot his gun at DeVaughn's home, knowing that Brown and her grandchildren were inside. See, e.g., State v. Crump (Aug. 2, 1990), Cuyahoga App. No. 57348, unreported. Appellant's second assignment of error is overruled. III. Appellant's third assignment of error reads as follows: THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO PURSUE HIS PREVIOUSLY FILED MOTION TO SUPPRESS EVIDENCE AND THEN DID NOT OBJECT TO THE INTRODUCTION OF THIS EVIDENCE AT TRIAL. In order to establish denial of effective assistance of counsel, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St. 2d 391, 396-397, vacated as to the death penalty (1978), 438 U.S. 910. In State v. Hester (1976), 45 Ohio St. 2d 71, 79, the court held that the test for -7- determining whether counsel was effective is "whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done". The accused must overcome the presumption that a licensed attorney is presumed competent, and the presumption that the attorney's actions may constitute reasonable trial strategy. State v. Martin (1987), 37 Ohio App. 3d 213, 214. Recent cases in which counsel was found to be ineffective include State v. Burgin (1988), 44 Ohio App. 3d 158 (counsel held ineffective where counsel tells jury that he does not believe his own client); and State v. Martin, supra (counsel held ineffective where counsel assumed the burden of proving his client innocent, failed to request the standard jury instruction regarding the alibi defense, and failed to object to inadmissible evidence). In this case, appellant claims that his attorney should have pursued appellant's motion to suppress evidence. The motion asserted that the search of appellant's house was unconstitutional. Appellant's gun was obtained during the search. Substantial evidence was produced at trial to support the felonious assault charges and specifications without considering the gun. Appellant testified on his own defense that he shot the gun. Other eyewitnesses testified that appellant shot the gun. Live and spent cartridges were also at the scene. Assuming arguendo that appellant's trial counsel should have pursued the motion, appellant was not prejudiced by the admission -8- of the allegedly tainted evidence. Appellant's third assignment of error is without merit. Affirmed. Affirmed. 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. FRANCIS E. SWEENEY, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .