COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60603 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MARIETTA R. BUSH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-247872 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN Cuyahoga County Prosecutor 4403 St. Clair Avenue 8th Floor Justice Center Cleveland, Ohio 44103 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Marietta Bush defendant-appellant, hereinafter Defendant was indicted by the Cuyahoga County Grand Jury for Felonious Assault in violation of R.C. 2903.11 with both a firearm and a violence specification. The case was tried to a jury and its verdict was guilty of the lesser included offense of Aggravated Assault with both a firearm and a violence specification. Defen- dant was sentenced and afterwards this appeal followed. Because we hold that there is sufficient evidence to sustain the jury's verdict, we affirm. The facts are set forth as follows: The State of Ohio plaintiff-appellee, hereinafter the State contended that Defendant with the help of co-defendant Betty Williams, hereinafter Williams shot Michael Boyd in his left arm. In support of this contention, the State presented the testimony of Albert Reese, Juanita Boyd, Michael Boyd, Allestine Bush and Police Officer Lawayne Smith. The substance of their testimony was that on December 26, 1989, at 2173 E. 84, Cleveland, Ohio at 10:00 p.m. Defendant entered the living room, unplugged the telephone, and took the phone to her room. Boyd responded in anger and informed Defendant that "she would never use the phone again". Williams apparently exited the downstairs and went upstairs to Defendant's room. Afterwards, Defendant returned to the living room and she and Boyd started to argue. Later, Williams entered the living room, and sat on the couch. -3- It is important to note that Defendant and Boyd lives at 2173 E. 84th and are cousins. Their mothers, Allestine Bush and Juanita Boyd, are sisters and the house is occupied by all of them. Simultaneous to the Defendant and Boyd's argument, the sisters started to argue. When the sisters' altercation turned physical, Boyd interceded on behalf of Juanita Boyd, his mother. Thereafter, Boyd lifted Defendant into the air and threw her to the floor. Allestine Bush exited and went upstairs. Defendant got up from the floor and asked Williams for "her shit". Williams produced a gun, which was concealed under her clothing and handed it to Defendant. Boyd started to turn away when Defendant shot him in the arm from approximately five feet away. Defendant and Boyd had argued on previous occasions, but it had never before turned physical. Reese ran out of the house to call the police on a pay phone. When the police arrived, Officer Lawayne Smith interviewed Defendant. Defendant admitted to the shooting, but claimed that she was threatened, knocked down and beaten. Officer Smith noted that her clothes and hair were in disarray. Defendant and Williams testified and contended that the shooting was in self-defense. Defendant testified that she and Boyd argued on other occasions about the phone; Boyd used drugs and was violent toward other women and owned a sawed-off shotgun. Defendant denied starting the argument when she returned to the living room and maintained that Boyd started the argument. -4- Defendant testified that after the victim threw her to the floor, he sat on top of her and punched her in the stomach and chest, and then threatened to beat her. Defendant was able to push him off, get the gun and shoot in the air to scare the victim. She maintains that she did not intend to shoot him in the arm. Williams presented the same account of the events as Defen- dant. She stated that she was a holiday guest in their home. She went upstairs to get Defendant's gun during the altercation, because she feared for Defendant's safety. She gave Defendant the gun after Defendant was struck in the chest and stomach because she thought Defendant would be seriously injured. After the Defendant and the State rested their respective cases, the jury returned a verdict of guilty. Defendant was subsequently sentenced to three years actual incarceration on the firearm specification to run consecutively to one and a half to five years on the Aggravated Assault charge. Defendant's sole assignment of error states: THE JURY'S VERDICT ON THE ISSUE OF SELF-DEFENSE IS AGAINST THE WEIGHT OF THE EVIDENCE. Defendant's assignment of error lacks merit and is overruled. Defendant argues that the jury's rejection of her self- defense claim is reversible error because it is against the weight of the evidence. We disagree. -5- The State has a duty to prove the element of the crime charged beyond a reasonable doubt, but there is no additional constitutional requirement to prove the absence of self-defense. Cf., Patterson v. New York (1977), 432 U.S. 197. The defendant has the burden of going forward on the affirmative defense of self-defense. R.C. 2901.05. If the defendant presents evidence sufficient to establish self-defense by a preponderance of the evidence, then it is properly placed before the jury as trier of fact. See, State v. Jackson (1986), 22 Ohio St. 3d 281. The weight to be given that evidence and the credibility of the witnesses are primarily decisions for the jury. State v. De Hass (1967), 10 Ohio St. 2d 230. In State v. Mattison (1985), 23 Ohio App. 3d 10, this court merely established guidelines which are not mandatory in the review of the weight of the evidence. (Emphasis added.) A criminal conviction should not be reversed, where there is sufficient evidence "which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." E.g. State v. Eley (1978), 56 Ohio St. 2d 169, 172. In the instant case, there was overwhelming evidence of Defendant's guilt. The decision to disbelieve her affirmative defense was for the jury. Judgment affirmed. -6- 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, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .