COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60369 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : SIDNEY SMITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-248428. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Paul F. Markstrom, Esq. 208 Ohio Savings Building 22255 Center Ridge Road Rocky River, OH 44116 -2- MATIA, C.J.: Defendant-appellant, Sidney Smith, in his sole assignment of error, appeals from his conviction for the offense of voluntary manslaughter with a firearm specification. The appellant's appeal involves the refusal of the trial court to instruct the jury with regard to the affirmative defense of self-defense. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT CAUSES THE DEATH OF EDDIE THOMAS On January 11, 1990, the appellant resided in the basement apartment of a residential building located at 3590 East 144th Street, Cleveland, Ohio. At approximately 1:00 a.m., the appellant, while watching television in his basement apartment, overheard Lenora Wilson and Eddie Thomas arguing in the first floor bathroom. The appellant yelled thorough the floor to Lenora Wilson and Eddie Thomas to stop their verbal argument. Eddie Thomas, the victim herein, refused to stop the argument and yelled to the appellant that: "You hush up or I'll come down and beat your butt." The appellant, in response to the statement of Eddie Thomas, armed himself with a firearm, climbed the steps to the first floor and unlocked the secured apartment door. Upon opening the basement apartment door, the appellant shot Eddie Thomas five times. Eddie Thomas expired as a result of the five gunshot wounds inflicted by the appellant. B. THE INDICTMENT -3- On January 25, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of aggravated murder in violation of R.C. 2903.01 with a firearm specification and one count of felonious assault in violation of R.C. 2903.11 with a firearm specification and a violence specification. C. THE ARRAIGNMENT On February 9, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to the two counts of the indictment. D. THE JURY TRIAL On July 23, 1990, a jury trial was commenced with regard to the charged offenses of aggravated murder with a firearm specification and felonious assault with a firearm specification and a violence specification. On July 26, 1990, the jury found the appellant not guilty of the offense of aggravated murder but guilty of the lesser included offense of voluntary manslaughter with a firearm specification. In addition, the jury found the appellant not guilty of the offense of felonious assault with a firearm specification and a violence specification. E. THE SENTENCE OF THE TRIAL COURT At the conclusion of the trial, the trial court immediately sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio, for a term of ten years to twenty-five years. The trial court also sentenced the appellant to three years of actual incarceration with regard to the firearm -4- specification. The terms of incarceration were ordered to be served consecutive to each other. F. THE APPELLANT'S TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of voluntary manslaughter with a firearm specification. II. THE SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: PREJUDICIAL ERROR WAS COMMITTED WHEN THE TRIAL COURT AFTER BEING REQUESTED BY DEFENSE COUNSEL REFUSED TO INSTRUCT ON SELF DEFENSE AND THAT THE APPELLANT HAD NO DUTY TO RETREAT FROM ANOTHER IN HIS OWN HOME. A. ISSUE RAISED: TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY WITH REGARD TO SELF-DEFENSE The appellant, through his sole assignment of error, argues that the trial court improperly instructed the jury. Specifically, the appellant argues that the trial court erred as a result of refusing to instruct the jury with regard to the affirmative defense of self-defense. The appellant's sole assignment of error is not well taken. B. ELEMENTS OF SELF-DEFENSE The Supreme Court of Ohio, with regard to the elements of the affirmative defense of self-defense, established in State v. Robbins (1979), 58 Ohio St. 2d 74, that: 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 -5- 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. Melchior, 56 Ohio St. 15, approved and followed.) State v. Robbins, supra, paragraph two of the syllabus. See also, State v. Williford (1990), 49 Ohio St. 3d 247; State v. Martin (1986), 21 Ohio St. 3d 91; State v. Champion (1924), 109 Ohio St. 281. C. APPELLANT FAILED TO ESTABLISH ELEMENTS OF SELF-DEFENSE In the case sub judice, the testimony and evidence adduced at trial clearly demonstrates that the appellant failed to meet the first and second prongs of the self-defense test as established by the Supreme Court of Ohio in Robbins. The record shows that it was the appellant who created the situation which precipitated the death of the victim. The appellant was safely locked away in his basement apartment away from the victim. It was the appellant who armed himself and unlocked the door to his apartment. The victim did not attempt to physically open or enter the appellant's basement apartment. Further review of the record fails to support the second element of the self-defense test which mandates that the appellant did possess a bona fide belief that he was in imminent danger of death or great bodily harm and that the only means of escape was through the use of deadly force. The failure of the appellant to establish the first and second prongs of the Robbins -6- test prohibited the trial court from delivering a self-defense instruction to the jury. Thus, the trial court did not err as a result of its refusal to instruct the jury with regard to the affirmative defense of self-defense and the appellant's sole assignment of error is not well taken. Judgment affirmed. -7- 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. ANN MC MANAMON, J. and *PARRINO, J., CONCUR. DAVID T. MATIA CHIEF JUDGE *SITTING BY ASSIGNMENT: Judge Thomas J. Parrino, Retired Judge of the Eighth Appellate District. 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. .