COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60714 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BENITA ROBINSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JUNE 4, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-241,895 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES HYMAN FRIEDMAN Cuyahoga County Prosecutor Cuyahoga County Public The Justice Center, 8th Floor Defender 1200 Ontario Street Betty T. Harvey Cleveland, OH 44113 Assistant Public Defender 1276 West Third Street, #307 Cleveland, OH 44113 - 2 - JAMES D. SWEENEY, J. Defendant-appellant Benita Robinson ("appellant") appeals from her conviction of one count of murder (R.C. 2903.02). Appellant was tried and convicted for the stabbing death of her live-in boyfriend, Dennis Harris ("victim"). She challenges her conviction as being against the manifest weight of the evidence. Appellant's contention lacks merit, so we affirm. The relevant facts giving rise to this appeal are as fol- lows: Charles Santaztoi, a pathologist at the Cuyahoga County Coroner's Office, conducted the autopsy on the victim. He testified the victim died as the result of a single stab wound four and one-half inches in depth in the right ventricle of his heart. Santaztoi ruled this death a homicide. Linda Luke of the Cuyahoga County Coroner's Office, Trace Evidence Department, testified the victim tested negative on a trace metal detection test, which indicated that, prior to his death, he did not hold any metal objects. Patrolman Robert Artium ("Ptl. Artium") of the East Cleve- land Police Department was dispatched to the area of Euclid Avenue and Eddy Road regarding a stabbing of a male. Ptl. Artium arrived on the scene and discovered the victim lying in a pool of blood and a female, later identified as appellant, kneeling beside him. As Ptl. Artium was investigating the scene, a radio dispatch informed him where the weapon could be located and gave the identity of the suspect. He then looked behind a three to - 3 - four foot concrete retaining wall near the victim and discovered a bloody knife in the bushes. He also advised appellant that she was the suspect. Police Officer Arthur Hardee ("Officer Hardee") was also on the scene. He transported appellant to the police station. During this time appellant told him that prior to the stabbing, the victim had "chased her from her residence *** [and] punched her in the right jaw area of her face and had torn her blouse ***." (R. 78.) Appellant also stated that "there are records at city hall of domestic violence, where the victim had attacked her in the past ***." (R. 78.) Officer Hardee testified on redirect that he did not observe any injuries to the victim. Officer Hardee, once at the station, took in-coming calls regarding the stabbing. One of the calls he fielded was from an eyewitness, Waverly Willis ("Willis"). Willis, a nineteen year old college student, next testified. Willis, a passenger in his brother's car, noticed appellant standing on the sidewalk facing a male, later identified as the victim. He and his brother were on their way home at approxi- mately 10:30 p.m. when he saw a woman, later identified as appellant arguing or "fussing at a man ***." (R. 84.) He then saw appellant "raise her arm up and stab him [the victim] in the chest." (R. 84.) Willis saw the victim stagger and fall to the ground. Willis testified that he and his brother went to the police station and reported the stabbing. - 4 - Police Officer Willene Mitchell ("Mitchell"), an off-duty officer of the Cleveland Police Department, testified that as she was driving home from completing her shift she noticed a male, later identified as the victim, lying on the ground bleeding from the chest area. She also saw another man assisting the victim. Mitchell turned her vehicle around in order to approach the scene. While at the scene, Mitchell saw appellant run from across the street towards the victim. When appellant reached the scene, Mitchell saw appellant holding a towel with a knife wrapped inside. Appellant then disposed of the towel containing the knife by throwing it over the retaining wall. A short while later, after the police arrived, Mitchell informed them where the knife was located. Derrick Pace ("Pace"), the victim's brother, also testified. He stated he knew appellant for approximately three years and that appellant and the victim had lived together. Apparently, their relationship was fraught with arguments and the victim had moved out for a while but moved back in with appellant about three or four months prior to his death. The arguments were apparently so bad that, according to Pace's testimony, appellant told him she would kill the victim on more than one occasion. One of their most recent arguments concerned the victim's act of destroying furniture in their apartment for which appellant brought domestic violence charges against the victim. Pace also testified that appellant and the victim visited his apartment - 5 - earlier in the day in question. The victim and appellant were arguing. He also stated that he has observed appellant in a bruised condition. Det. Enez Ventura ("Det. Ventura"), assigned to investigate the stabbing, took a statement from appellant shortly after she was brought into custody. Det. Ventura read the statement which revealed that the victim was appellant's boyfriend; that they got into an argument earlier in the evening in question; and the victim hit her in the face. The statement also indicated she left the apartment after their argument and soon returned to retrieve a knife for protection from the gangs in the neighbor- hood. Appellant wrapped a knife in a towel and exited the apartment. Armed with a knife, she proceeded to Best Steak House. Apparently, the victim had, at some time prior to this, also exited the apartment. Appellant was then approached and allegedly hit by the victim. She then stabbed him once. After he fell to the ground she ran to a phone booth and dialed 911 for help. Appellant then returned to the victim and put the knife on the retaining wall. She told Det. Ventura she "didn't mean to do it." Det. Ventura added that he did not notice any bruises or swelling on appellant's face. The defense procured Linda Robinson ("Robinson") as a witness. Robinson, the East Cleveland dispatcher, matron and jailer, received a call from a female reporting a stabbing at Euclid Avenue and Eddy Road. The call was made from a pay phone - 6 - but the tape of the conversation was not available. Robinson testified that, while speaking with appellant at the station, she was unable to spot any bruises on her. Beverly Crim ("Crim"), appellant's landlord, testified she heard arguing on the evening in question in the hallway near appellant's apartment. Crim stated she could not, however, identify the voices. She also stated that she was aware of the incident where the victim cut up furniture in their apartment. Russell Mosley ("Mosley"), a friend of appellant and the victim, testified the victim had a reputation as an "ass kicker." (R. 231.) Mosley also saw the victim slap appellant on occasion. Jesse Harris ("Harris"), the proprietor of a store on the corner of Euclid and Eddy, testified he saw the victim and appel- lant the night in question walking past his store. They were arguing and appellant was telling the victim to leave her alone. He saw them walking across the street. At this point he re- entered his store to take care of a customer. A few moments later a man named Clyde Buridge entered the store and informed Harris that a stabbing had just occurred. Harris then saw appellant dialing 911 at a pay phone. Harris also stated the victim "was high on something." (R. 258.) He also testified he saw the victim slap appellant as they were crossing the street. Clyde Buridge ("Buridge") also testified. His testimony corroborated that of Harris, except he did not see the victim slap appellant at any time. Buridge actually witnessed the - 7 - stabbing from approximately twenty feet away. Buridge testified that after they crossed the street, it "looked like he [the victim] grabbed for her [appellant]." (R. 290.) He then saw appellant raise her arm and stab the victim. The jury was instructed on self-defense and the lesser included offense of voluntary manslaughter. I. Appellant argues the verdict is against the manifest weight of the evidence. In particular, she asserts the state did not prove the element of "purposely" beyond a reasonable doubt and the verdict was based upon uncertain, unreliable and conflicting testimony. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines wheth- er in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the convic- tion must be reversed and a new trial ordered.*** See Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. Martin, supra, at 175. Moreover, the weight of 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. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could - 8 - reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (19178), 58 Ohio St. 2d 169. The trier of fact is entitled to believe or not to believe the testimony of the state's witnesses and/or the defense's wit- nesses. State v. Antill (1964), 176 Ohio St. 61. The trier of fact should consider the demeanor of the witness and the manner in which he testifies, his connection or relationship with the parties, and his interest, if any, in the outcome. Id. at 67. R.C. 2903.02 reads in relevant part: (A) No person shall purposely cause the death of another. * * * In this case, there is substantial evidence upon which the jury could have reasonably concluded that the element of "pur- posely" causing the death of the victim had been proved beyond a reasonable doubt. The evidence revealed that appellant's act of taking a knife outside, concealed in a towel, shortly following an argument with the victim, getting into another confrontation with the victim once outside, and raising her arm and stabbing the victim in his heart was done to purposely cause the victim's death. It is clearly within the province of the jury to have assessed appellant's motive in retrieving her knife and hiding it in a towel. Appellant contended it was for protection from the gangs. However, there was substantial evidence for the jury to - 9 - have concluded it was for the purposeful stabbing of the victim. Further, the trial testimony was indeed consistent, contrary to appellant's assertion and the jury was entitled to believe the state's witnesses and infer appellant purposely intended to kill the victim. We are not inclined to reverse as the judgment is not against the manifest weight of the evidence. Accordingly, appellant's contention is without merit and overruled. Judgment affirmed. - 10 - 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 Court of Common Pleas 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. NAHRA, P.J. KRUPANSKY, J., CONCUR JUDGE JAMES D. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .