COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67126 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION PRESTON MCCONNELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-295641 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER BY: L. CHRISTOPHER FREY, ESQ. JEAN M. GALLAGHER, ESQ. The Justice Center The Marion Building, Rm. 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Defendant-Appellant, Preston McConnell, appeals his conviction for Aggravated Robbery (R.C. 2911.01); Felonious Assault (R.C. 2903.11) and Having a Weapon While Under Disability (R.C. 2923.13). In a single assignment of error, appellant claims that his convictions are against the manifest weight of evidence as he proved self-defense by a preponderance of the evidence. Upon review, we find appellant's assignment of error to lack merit. Accordingly, we affirm the judgment of the trial court. The following evidence was adduced during appellant's bench trial: The victim, Roosevelt Oliver testified that on March 25, 1993 at approximately 11:30 p.m., he saw the appellant walk back and forth, once or twice, in front of the "SUBWAY" restaurant he managed at 105th Street and St. Clair Avenue. He stated that at midnight, after locking and exiting the restaurant, the appellant, approached, pointed a gun at him and stated, "Let's go back in and open the safe." Oliver explained that their entrance triggered an alarm and that in an effort to escape, he ran through the store and out the back door, tripping and falling on a curb. He stated that appellant, pointing a .38 caliber revolver at him, demanded that they go back inside. He further stated that after the appellant shot him in the left abdomen, he drew a registered .38 automatic from right coat pocket with his right hand, pushed appellant's gun away and fired at the appellant until the weapon jammed. Oliver stated that they wrestled with each other; that he grabbed the - 3 - appellant's gun and shot at him with this weapon as the appellant fled. Oliver testified that he gathered items which dropped when he fell; that he re-entered the store, called 911 and was taken to Mt. Sinai Hospital where he identified two articles of appellant's clothing, to wit., an orange jacket which he stated the appellant wore over a brown jacket. Oliver stated twice that the appellant never asked him for a ride. He identified the .38 caliber revolver as the appellant's (Exhibit 14) and the .38 caliber automatic (Exhibit 15) as his. Sergeant Hardwick testified that Oliver identified the appellant as both lay on stretchers in Mt. Sinai's emergency room. Officer McClain testified to confiscating two weapons from the SUBWAY store. Detective Lucey testified that both weapons were operable and that the bullet removed from Oliver's body was fired from Exhibit 14, the weapon claimed to be the appellant's. Sergeant Haber testified that Oliver gave him a written statement in the hospital the morning after the incident. Haber testified that he also interviewed the appellant but the appellant volunteered no information after being advised of his rights. Haber stated that when he interviewed the appellant in jail, he told him that he was returning from his girl friend's house and was on his way home when he was shot by a black male. Haber indicated however, that the appellant could not remember the girl's name and that the SUBWAY store was far from being on appellant's way home. - 4 - The appellant testified that he was on his way home from a friend's house when he saw "a brother" to wit., Mr. Oliver proceed to his car. He stated that he asked Oliver for a ride; that Oliver became startled, argued and fought with him and shot him first. The appellant denied having a weapon and stated that he grabbed Oliver's gun and shot him in self-defense. The trial court found the appellant guilty of the above cited offenses and the instant appeal followed. I THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN MR. MCCONNELL PROVED SELF-DEFENSE BY A PREPONDERANCE OF THE EVIDENCE. The standard of review used by this court to assess the validity of a claim that the verdict is against the manifest weight of the evidence is set forth by State v. Martin (1983), 20 Ohio App.3d 172, at paragraph three of the syllabus: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evi- dence weighs heavily against the conviction. Under Ohio law, self defense is an affirmative defense. State v. Martin (1986), 21 Ohio St.3d 91 (citations omitted) To establish self-defense, the defendant must show "* * * (1) * * * [he] was not at fault in creating the situation which gave rise to the affray; (2) * * * [h]e has [sic] a bona fide belief that he was in imminent danger of death - 5 - or great bodily harm and that his only means of escape from such danger was in the use of * * * force; and (3) * * * [h]e must not have violated any duty to retreat or avoid the danger. * * *" State v. Robbins (1979) 58 Ohio St.2d 74 (citations omitted) paragraph two of the syllabus. The defendant is privileged to use that force which is reasonably necessary to repel the attack. State v. McLeod (1948), 82 Ohio App. 155 (citations omitted) State v. Williford (1990), 49 Ohio St.3d 247, 249. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Appellant argues that Roosevelt Oliver's testimony was inconsistent and incredible. He claims that Oliver's statement that he ran from the appellant at gunpoint instead of using the weapon that was in his pocket was illogical. Appellant also disputes Oliver's claim that after being shot, he was nevertheless able to struggle with the appellant and secure appellant's weapon. It is well settled that an assessment of the credibility of the witnesses is primarily for the trier of facts. State v. Eley (1978), 56 Ohio St.2d 169. While appellant's and Oliver's testimonies were diametrically opposed, Oliver's testimony was far more credible. Oliver's testimony was fully corroborated by the police and the scientific - 6 - 1 evidence presented at trial. Oliver's unequivocal statements that appellant paced in front of the store just before closing, that he demanded access to the safe twice and never asked him for a ride constitutes competent, credible evidence that appellant's purpose in lingering in front of the instant SUBWAY location was not to secure transportation but to rob the restaurant of receipts. Appellant's testimony that Oliver, a law abiding, responsibly employed citizen, shot him twice in response to an unarmed, polite 2 request for a ride is totally lacking in credibility. Also erosive of appellant's credibility is a 1976 conviction for aggravated robbery which he initially denied on the stand (Tr.106); a subsequent conviction for aggravated robbery, aggravated burglary, possession of criminal tools, having a weapon under disability and carrying a concealed weapon (Tr.107) and his re- arrest for the instant offenses within eight months of his release from prison. In weighing the evidence and considering the credibility of the witnesses, the trial judge did not lose her way and create an manifest miscarriage of justice in finding the appellant guilty and 1 Oliver testified that the appellant, standing to his left, shot him in the left upper abdomen and that the bullet was removed from his right side. Officer Lucey testified that the removed bullet was fired from the weapon stated to belong to the appellant. Officer Haber testified that the appellant would volunteer no information about the incident after being advised of his rights and that the instant SUBWAY location was definitely not on appellant's way home. 2 The record demonstrates that Oliver had never been arrested. - 7 - disregarding evidence of self-defense. The record demonstrates substantial, competent and credible evidence upon which a trier of fact could reasonably conclude that all elements of the above- cited offenses have been proven beyond a reasonable doubt. Appellant's sole assignment of error is overruled. The judgment of the trial court and his convictions are affirmed. It is so ordered. - 8 - 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. PORTER, P.J., AND NAHRA, J., CONCUR. ANN DYKE JUDGE 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 journalization, at which time it will become the judgment and order of the court .