COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60290 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MAURICE BLAND, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 26, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-248,606 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Warren L. McClelland Assistant Public Defender The Marion Building 1276 West Third Street Room 307 Cleveland, Ohio 44113-1569 -2- NAHRA, P.J.: On December 15, 1989 at approximately 4:00 P.M., Maurice Bland, defendant-appellant, was dropped off from a car at the house where Richelle Spears resided in the area of E. 156th and Miles Avenue. Bland was visiting Spears and told her that the friend who had dropped him off had acted as though he was going to hit four guys who were walking in the street. About five minutes later, Edwardo Nichols and three other teenagers came to the front door and expressed their interest in seeing Bland. After several minutes of shouting back and forth with Bland, the four teenagers left Spears' home. Spears testified that the four youths were about two to three houses away when Bland left her house through the side door. Bland walked up the driveway and exchanged some heated words with the four youths. Bland pulled out his handgun and placed it on the sidewalk. The distance between Bland and the youths shortened to about fifteen to twenty feet during their conversation. Spears urged Bland to come back to her house; however, she received no response. As the four youths approached Bland, Spears testified that Bland picked up the gun off of the ground. She then observed the four youths walking backwards away from Bland. Spears turned around into her home and then heard a shot; she then observed Edwardo Nichols being held by his friends. Bland entered her house and then left shortly thereafter. Spears revealed that an ambulance and police were called but that -3- Nichols' mother drove her son to the hospital before they arrived. Nichols also testified on behalf of the State about the shooting incident. Nichols revealed that he was walking to the store with three friends at approximately 4:00 P.M. on December 10, 1989. At that time, a car tried to hit them, such that they had to jump out of the way. Nichols and his friends observed the car's passenger being dropped off at a house down the street. Nichols observed Bland, who Nichols did not know, enter the house; the four youths went to the door to inquire about why the driver had attempted to hit them. A brief argument unfolded in which one of Nichols' friends threatened Bland. After a few minutes, Nichols and his friends left the house. Nichols testified that Bland stopped them by saying "What's up?" Bland came to the street and the argument was rekindled. Bland asked them "Who wants to fight?". Nichols conveyed that Bland revealed his handgun at some point. Neither Nichols nor his friends were armed. A decision was made that Nichols would fight Bland. With Bland's gun on the sidewalk, Bland and Nichols began walking towards each other. Nichols testified that Bland suddenly backed up and picked up his gun. Nichols began to leave and asked Bland why he was picking up the gun. Nichols testified that the two of them were not moving toward each other when Bland held the gun. He also stated that his three companions were not right behind him at such time. As Nichols began to turn away, Bland fired one shot which struck Nichols in the right side and -4- exited him on the left. Nichols was taken to Suburban Hospital and treated there for several weeks. Medical records of Nichols' hospital stay were admitted into evidence. Bland testified on his own behalf that he was dropped off at Richelle Spears' house by a friend at about 4:00 P.M. on the date in question. He indicated that just prior to being dropped off, this friend had veered the car towards four youths who were walking on the street. The youths did not move out of the way after the driver had honked his horn. Upon arrival at Spears' house, Bland took off his coat and placed his gun on the stereo. A few minutes later the four youths appeared at the door and some heated words were exchanged. Bland indicated that the youths threatened that they were going to "fuck him up". Bland took his gun, placed it under his sweater, and exited the side door. He called the four youths to stop inasmuch as he observed that they were leaving. After more heated words were exchanged, Bland agreed to fight Nichols. Bland placed his gun on the ground. Bland testified that all four youths approached him. As a result, he grabbed the gun and fired it. Bland admitted that he fled the scene in a panic. He also admitted that the youth closest to him was about fifteen feet away when he fired the gun. Bland stated that he carried a gun to protect himself in unfamiliar neighborhoods and that he had been assaulted before in the same neighborhood. -5- On April 25, 1990, Bland was indicted for one count of felonious assault with firearm and violence specifications. On June 13, 1990, trial commenced and a jury found Bland guilty of that for which he was indicted. The trial court sentenced Bland to three to fifteen years for felonious assault to run consecutively to a term of three years actual incarceration for the firearm specification. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY REGARDING THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT. At the close of Bland's case, Bland's counsel requested an instruction to the jury for aggravated assault as a lesser included offense of felonious assault. The trial court denied Bland's request. Bland contends that the trial court should have instructed the jury on the lesser included offense of aggravated assault since there was evidence of serious provocation that warranted the use of deadly force. Bland maintains that he believed all four youths were approaching him and that he feared for his own well-being as well as that of his girlfriend, Richelle Spears. R.C. 2903.11, which defines the crime of felonious assault, states in pertinent part: (A) No person shall knowingly: -6- (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. R.C. 2903.12, which defines the crime of aggravated assault, states in pertinent part: (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: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. * * * The elements of felonious assault and aggravated assault are identical except for the mitigating element of serious provocation found in R.C. 2903.12. In a trial for felonious assault, an instruction on aggravated assault must be given where the defendant presents sufficient evidence of serious provocation. State v. Deem (1988), 40 Ohio St. 3d 205, 533 N.E.2d 294, paragraph four of the syllabus. In order for the provocation to be serious, it must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In making such a determination, the trial court must consider the emotional and mental state of the defendant as well as his -7- surrounding circumstances at the time of the incident. Id. at paragraph five of the syllabus. Here, the evidence does not indicate that Bland was subject to serious provocation that would warrant the use of deadly force. Rather, the evidence shows that Bland was the aggressor. Nichols and his three friends had walked away from Spears' house and stopped only when Bland came outside. Bland called them and reignited an argument. He put his gun down, agreed to fight Nichols, and then picked up his gun and fired a shot at Nichols from fifteen feet away. Nichols was turning away when Bland picked up his gun. Bland did not testify that he was in a rage or a sudden fit of passion. Instead, Bland stated that he was fearful of his own safety insofar as he believed that the four youths might attack him. However, he did not attempt to prevent any possible attack by using the gun as a deterrent. Under the circumstances, we do not believe that the jury could have found that there was serious provocation to warrant Bland's use of a gun. Therefore, the trial court properly denied Bland's request for a jury instruction on aggravated assault. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The Supreme Court of Ohio has stated: -8- In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt. State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922; see also State v. Eley (1978), 56 Ohio St. 2d 160, 383 N.E.2d 132, syllabus. Bland asserts that the jury's verdict was against the manifest weight of the evidence. He argues that he acted out of fear that all four youths were going to hurt him and that Nichols' testimony lacked credibility. The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. We find no reason to disturb the jury's evaluation of the witnesses' credibility. We also believe that there was sufficient evidence in the record to convict Bland of felonious assault. The record indicates that Bland knowingly caused Nichols physical harm by firing his handgun at him from fifteen feet away. Under the facts of this case, the jury properly rejected Bland's claim of self-defense. The jury's verdict was not against the manifest weight of the evidence. Appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -9- 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. BLACKMON, J., and HARPER, 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. .