COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60975 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RHONDA JOHNSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 254635 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES R. WILLIS, ESQ. CUYAHOGA COUNTY PROSECUTOR Suite 610, Bond Court Building BY: MICHAEL P. MALONEY, ESQ. 1300 East Ninth Street ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Rhonda Johnson, was convicted of felonious assault, R.C. 2903.11, with a firearm specification and was sentenced to consecutive terms of three years and eight to fifteen years, both actual incarceration. On appeal appellant assigns three errors for review. I THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CHARGE THE JURY ON SELF DEFENSE. Appellant concedes that there was no request for an instruction on self-defense and no objection to the charge to the jury. The objection is waived unless there was plain error. State v. Underwood (1983), 3 Ohio St. 3d 12. 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. Melchior, 56 Ohio St. 2d 15, approved and followed.) State v. Robbins (1979), 58 Ohio St. 2d 74 (paragraph two of the syllabus.) The proper standard for determining in a criminal case whether a defendant has successfully raised an affirmative defense under R.C. 2901.05 is to - 2 - inquire whether the defendant has introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue. State v. Melchior (1978), 56 Ohio St. 2d 15 (paragraph one of the syllabus). Appellant presented the testimony of five witness, including herself, to prove that the shooting victim, Floyd Oakley, struck her without justification but no one testified that appellant shot Oakley. Therefore, there is no evidence that her "only means of escape from such danger was in the use of such force." (Emphasis added.) We find no plain error. Assignment of error No. I is overruled. II THE COURT ERRED IN ALLOWING THE PROSECUTOR, OVER OBJECTIONS, TO ENGAGE IN AN INDEFENSIBLE LINE OF CROSS-EXAMINATION DURING THE COURSE OF WHICH HE ASKED QUESTIONS THAT FORCED THE DEFENDANT (AND OTHER WITNESSES AS WELL) TO COMMENT DIRECTLY ON THE CREDIBILITY OF OTHER WITNESSES. Appellant contends that during cross-examination the prosecutor (1) summarized the testimony of the three witnesses who testified they saw appellant shoot Floyd Oakley (Tr. 339- 340), (2) commented on their credibility (Tr. 339-40); (3) made appellant assess the credibility of one of her witnesses, Lori Miller, (Tr. 339); and (4) maintained a running summation which emphasized the state's case. However, appellant cited only p. 339-340 and our review will be limited to those pages. The pertinent pages read as follows: - 3 - Q. I'm sorry. In what kind of car? A. 98, brown 98 Oldsmobile. Q. You were here when June testified; right? A. Yes. Q. He's mistaken about this? A. June is mistaken about a lot of things. I don't know if he been in jail so long he don't know what's going on, but he's thinking it's 10:30 in the daytime, and everybody knows it happens after the Sir Rah House. I don't know where June at. Q. Likewise, you were here when Lori testified, too? A. Right. Q. She was mistaken about quite a few things, too; right? A. Yes. Q. The only people that are correct about what happened that night are you and Kim and Leslie; right? A. They saying a lot of different things that don't add up. Everybody got they -- they own perspective of everything. Everyone's story is not adding up, even the State's witnesses and ours. Everybody not saying exactly the same. Everybody going by what they seen or what they want to put on. Q. Well, you were here when three people testified that you shot Floyd Oakley, weren't you? A. Three people? Q. Yes. A. Which three people? Q. Well, Floyd came in and said you shot him? A. Right. Q. And Cheryl Pritchard came in and said you shot him? - 4 - A. Right. Q. And Darrell or Charles Shields? A. Yes. Q. Is that three? A. Yes, that's three. Q. You were here; right? A. Yes. Q. Well, that's three people that agreed on who shot Floyd; right? A. Right, exactly. There was no objection. The question, then, is whether appellant was denied a fair trial. State v.Clark (1988), 38 Ohio St. 3d 252 cert denied 489 U.S. 1071. The prosecutor did not state that the three witnesses for the prosecution were credible and he did not comment on the credibility of appellant's witnesses. He merely asked appellant about discrepancies between her testimony and the testimony of two of her witnesses and asked her about the evidence against her. We see no plain error. Assignment of error No. II is overruled. III THE VERDICT FINDING THIS APPELLANT GUILTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all of the elements of an offense have - 5 - been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169 (at syllabus). In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and deter-mines 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. The discre- tionary power to grant a new trial should be exercised only in the exceptional case in which the evi-dence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus.) In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines that may be taken into account by a reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. Whether the evidence is uncontradicted; 3. Whether a witness was impeached; 4. What was not proved; 5. The certainty of the evidence; - 6 - 6. The reliability of the evidence; 7. Whether a witness' testimony is self-serving; 8. Whether the evidence is vague, ... conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10 (at syllabus). The alleged victim, Floyd Oakley, testified as follows: he attended a party at a local lounge and some girls were feuding. (Tr. 17-18.) Later that evening he saw the girls feuding at E. 143rd and Bartlett, across from the appellant's home. (Tr. 18.) He approached Kim Johnson, appellant's sister, and told her they didn't need to fight but she pushed him, they had words, and she pulled a knife and stabbed him in the elbow. (Tr. 19.) A young woman named Donella jumped between them and was cut. (Tr. 20) Appellant picked up a piece of hula hoop, struck Johnson a couple of times and left. (Tr. 20.) Appellant went to the home of Cheryl Pritchard at E. 149th and Bartlett and saw two cars pull up. (Tr. 20-21.) Appellant said, "Where is ... Floyd at? He don't put his hands on my sister." When a woman occupant of one of the cars (appellant's sister, Leslie) came at him with a stick he pushed her out of the way and picked up the stick but appellant pulled a gun out of her pants and he got shot. (Tr. 21.) Appellant hit him on the head with the gun (Tr. 22) and said "Fuck you. I hope you die." (Tr. 26.) - 7 - Charles ("Darrell") Shields testified as follows: during the earlier incident with Kim Johnson, Oakley told her she should stop but Kim pushed and stabbed Oakley. (Tr. 71.) Oakley picked up the hula hoop and hit Kim. (Tr. 73.) Later, the girls charged Oakley with sticks (Tr. 74) and Oakley took appellant's stick. (Tr. 93.) Appellant shot Oakley and then hit him in the head with the gun, (Tr. 74 and 76) saying "Fuck you. I hope you die." (Tr. 76). Cheryl Pritchard testified as follows: during the incident with Kim Johnson, Oakley did not have a weapon. (Tr. 161.) Later, as the women ran at Oakley appellant said, "Where is something. (Tr. 163.) After somebody said "she has a gun" appellant pointed a gun at Oakley and fired. (Tr. 163-164.) Appellant said, "I hope you die. That's what you get for messing with my sister." (Tr. 165.) Donella Jackson testified as follows: Oakley told Kim she "should avoid this" but she called him names, pulled a knife and grabbed a second knife from Jackson. (Tr. 104, 106 and 114.) If Kim had not pulled the knife Oakley would not have been "ready" to hit her. (Tr. 107.) On appellant's behalf she presented five witnesses, including herself. Lori L. Miller testified as follows: during the incident with Kim, Oakley was intoxicated (Tr. 219) and hit Kim with a - 8 - hula hoop (Tr. 221) but Kim did not stab Oakley (Tr. 238). Later, appellant and Oakley argued and Oakley "started getting all loud and like he was going to hit her." (Tr. 226.) She did not see a gun in appellant's hand and saw no one strike Oakley but it was dark and she couldn't make out everybody. (Tr. 227.) Before the shot Oakley hit appellant, Kim and Leslie Johnson jumped in, and she saw people fighting and throwing sticks. (Tr. 227-228.) Noreen Walker testified that appellant asked Oakley why he beat up her sister and Oakley replied, "Bitch, get out of my face" and started fighting. (Tr. 255.) She stated that Oakley swung at appellant and the three Johnsons fought him (Tr. 256) but that appellant did not have a gun (Tr. 257). Burk "June" Jordan testified that he heard someone say "What did you hit my sister for?" and saw Oakley push appellant. (Tr. 328.) Leslie Johnson testified that the sisters approached Oakley and when appellant asked, "What happened between you and Kim?" Oakley answered, "Bitch, get out of my face" and pushed her. (Tr. 287.) Johnson stated that they all started fighting him and Leslie hit him with a stick she found on the ground. (Tr. 287 and 297.) Appellant testified as follows: she approached Oakley and asked, "What's going on with you and my sister? What's the - 9 - hit her so she hit him back but had no weapon. (Tr. 334-335.) Leslie hit him with a stick she picked up from the sidewalk. (Tr. 335 and 343.) Appellant did not see a gun and didn't have one. (Tr. 356.) The evidence was overwhelming. In addition to the victim, two other disinterested observers identified appellant as the shooter. The verdict was not against the manifest weight of the evidence. Assignment of error No. III is 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 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. DAVID T. MATIA, C.J., AND KRUPANSKY, J., CONCUR. JUDGE ANN DYKE 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. .