COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67532 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ROBERT L. LENIX : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-308032. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Thomas E. Conway John W. Monroe Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: John P. Parker, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 SWEENEY, JAMES D., J.: Defendant-appellant Robert Lenix was convicted of murder in violation of R.C. 2903.02, with a firearm specification. The appellant was sentenced to a term of incarceration of fifteen years to life, plus an additional three years incarceration for the firearm specification. On March 1, 1994, William "Red" Golphin was shot and killed by the appellant. The state elicited the testimony of David Burton, who stated that he was with Golphin prior to the shooting. Burton testified that when he first saw the victim, he appeared to have just left a crowd of men at the corner of East 76th Street. Golphin was walking alone, and he and Golphin crossed paths in a field near East 79th Street and Central in Cleveland, Ohio. The field is directly opposite the street from the First Stop Bonanza store. Golphin was wearing headphones and listening to a walkman. Burton testified that Golphin stated he was "going to get his ends," meaning that he was going to obtain some money. Burton did not ask where the money was to come from, and as they proceeded different ways, Burton entered the store. Approximately ten minutes later, the appellant ran into the store with a silver pistol in his hand. As the appellant ran towards the back of the store, he brushed into Burton. Through the window Burton observed the victim lying on the ground face down and ran across the street. The victim stated that he was "popped" in the chest, but said nothing further. Burton rolled him over and - 3 - ripped his shirt. Golphin had no weapon of any sort in his hands. Burton stayed with Golphin until the police and the Emergency Medical Squad (EMS) arrived. When the police arrived, he accompanied them to the store and pointed out the appellant. Brian Lawson testified that he was at work at Sfuzzi's in Tower City when the victim appeared for a job interview. Lawson and Golphin made plans to meet later in the day on East 79th Street. As Lawson approached their meeting place, he observed the victim and the appellant talking. The victim had no weapon of any type. No one but the appellant was near the victim. Lawson heard the gunshot and saw the appellant run across a field and into a store. After he went to Golphin, he noted that there were bricks and rocks in the area, but none near the victim. Fourteen-year-old Scott Williams witnessed the death of Golphin. He was standing on the side of the store when he heard two men arguing. He turned around and looked. The two men were alone and he could not hear what was said, but could tell from the gestures that the men were arguing. He did hear the appellant say "leave me alone." He heard one shot and observed the appellant shoot the victim. After the appellant shot the other man, he ran right past Williams and into the store. The victim had no weapon of any sort. When the police arrived, he informed them that the appellant ran into the store. Assistant Cuyahoga County Coroner Stanley Seligman testified that he performed an autopsy on William Golphin. Golphin was - 4 - killed by a gunshot wound to the lower front of the neck. The bullet eventually came to rest within the skeletal muscles above the shoulder blade. There was no evidence of fouling or stippling. The victim had alcohol in the blood with a concentration of .04 grams per deciliter; a concentration in the urine of .02, in the bile of .09, in the vitreous of .03, and the stomach contents tested positive. These results indicate the victim was drinking over a period of several hours prior to his death. There was a positive test for metabolized marijuana in the urine. Sharon Rosenberg from the Cuyahoga County Coroner's Office trace evidence laboratory testified that she inspected the victim's clothing. Based upon the tests she conducted, she testified that the muzzle-to-target distance was two to three feet or beyond. Cleveland Police Detective Daniel Rowley testified that the bullet taken from the victim's body and a bullet fired from the gun taken from the appellant were a match. Cleveland Police Officer Peter Turner testified that he and his partner William Mone received an assignment to proceed to East 79th Street and Golden, which is located just north of Central. They arrived within two minutes of the assignment. Upon arrival, the victim was found with a gunshot wound to the neck. He was lying in front of the stairs in the parking lot of 2258 East 79th Street. The victim was not breathing, was unconscious, and had no detectible pulse. EMS arrived shortly thereafter. - 5 - The officers were informed by a man identifying himself as John Jones that the perpetrator had entered the store across the street. The officers proceeded to enter the store where they arrested the appellant. The appellant was relieved of the .25 caliber semi-automatic weapon he was carrying. After the appellant was informed of his Constitutional rights he chose to make a statement. The appellant stated that he did not mean to shoot, that he shot in self-defense, and he inquired after the victim. The appellant also informed the officers that the victim had a brick. The appellant also stated that he had been "sucker punched" earlier; that he entered his house and got his gun; that he was going to have his wife take him to purchase more bullets, but never got that far; and that he was attacked in the parking lot by a group of men. Officer Turner stated that although he checked the dumpster, the can, over and behind the fence, and the parked cars in the lot, he found no weapon whatsoever within the area around the victim. Specifically, Officer Turner did not see a gun, knife, rock or brick immediately near the victim. The officer stated that the victim was lying in front of the stairwell, and characterized the area as a dirt parking lot between two apartment buildings. Cleveland Police Detective George Stitt testified that he and his partner Leo Allen investigated this homicide. When he interviewed the appellant he did not observe any cuts or abrasions to his face, nor any evidence that he had been physically - 6 - assaulted. When he arrived at the scene, the victim had already been removed. He searched the area for bricks and rocks, but found none in the immediate vicinity of where the victim had been. The owner of the Last Stop Bonanza, James Hogan, testified on behalf of the appellant. He stated that the appellant is a tenant in an apartment building he owns; that he was in the store at the time of the shooting; that the appellant ran in with a gun and the cashier began to scream; that the appellant stated "Mr. Jimmy, call the police. I don't want to shoot anybody else. They after me." (T. 228); and that the appellant asked him to call the police. Hogan tried to get the appellant to give up the weapon, but the appellant kept repeating that "they were going to get him." He looked like he had been in a scuffle, and indicated that "they jumped" him. Kenneth Bearden testified that on the day of the shooting he and another man, Tom, were to have helped the appellant push his car to a garage for repairs. The appellant took a bus to Bearden's home and then they went to Tom's home. The three of them proceeded to the garage which was to perform the repairs, but the proprietor was not there. They were told to return in a half an hour and they went to the appellant's house to wait. The appellant's wife was home when they arrived. Bearden and the appellant left the apartment to purchase crack. They walked down Central and encountered five men. The men stated that they could obtain crack at another location. As they - 7 - were walking to the other location, one of the men struck the appellant in the face. The appellant fell down and when he stood back up they ran back to the apartment. The appellant and Bearden remained in the apartment from ten to fifteen minutes. After some discussion they decided to overlook the assault, and decided to proceed with taking the car to the mechanic for repairs. There was also some discussion about buying more ammunition for the appellant's gun. When they exited the apartment, two or three men became visible from around the corner of the building. There were five men, four had bricks, one did not. The men began to approach and the appellant asked them to leave, stating that they wanted no trouble. The men refused to go. The individual who confronted the appellant had a brick, and had made a motion as though to strike. Because Bearden turned back to the apartment door, and knocked in an attempt to get the appellant's wife to open the door, he did not actually see the shooting. The appellant's wife, Nasra Lenix, testified that she was home that day when her husband, Tom and Ken were to push her husband's car to the garage to receive a new transmission. The appellant and Ken left the apartment and returned fifteen minutes later. The appellant stated that someone hit him in the head, and although he was not bleeding he complained of blurred vision. The appellant was home for ten to fifteen minutes before he left once again. During the time he was home, Lenix discussed obtaining more - 8 - ammunition for his gun because there were five men waiting for him. Mrs. Lenix locked the door after her husband left the second time. After she heard the shot she opened the door, saw a man lying on the ground, and observed her husband run into the store. She reclosed the door because a man was attacking, trying to break in. She saw the man throw an object. The appellant took the stand on his own behalf. He stated that on March 1, 1994, he had planned to take his car to a mechanic to have the transmission replaced. His friends Kenneth and Thomas were going to assist him. The appellant and Ken left the apartment and went to purchase cocaine. They met a group of men on Central and attempted a purchase. The men responded that they had no crack, but could take the appellant to another location. As they walked to the other location he was punched in the face. He and Ken ran back to his apartment. The appellant testified that he stayed in the apartment from five to seven minutes (T. 287). He wanted his wife and his two friends to go with him to purchase ammunition so that he would have a crowd with him. His wife refused to accompany him. When he and Ken left the apartment, he left Tom with his wife and took his gun with him for safety. When he was four or five feet outside of the building, the man who attacked him "popped up" (T. 291). He turned around and tried to get back in the door and he reached in his pocket to find the key. He saw the men pick up objects and charge towards him. He was on the porch and had his hand in his pocket on - 9 - the gun. He was dodging back and forth so that he would not be hit and yelling to the men "Please don't do this" (T. 294). The appellant stated that he was in fear for his life. The victim began to attack him with a brick and he fired the gun. The victim fell straight forward and he ran across the street into the store in order to call 911. After the police arrived, he surrendered peacefully and gave a statement. He never meant to hurt or kill anyone. The appellant sets forth four assignments of error. The first assignment of error: I THE TRIAL COURT LACKED JURISDICTION TO TRY AND CONVICT THE APPELLANT WHEN IT FAILED TO STRICTLY COMPLY WITH O.R.C. 2945.05. Prior to the beginning of the trial, the appellant on the record acknowledged that he had chosen to waive a jury. The trial judge asked the appellant if he understood that he was waiving his right to a jury, informed him that he had a constitutional right to a jury, and then read the jury waiver aloud. The judge asked the appellant whether or not it was his signature on the bottom of the jury waiver, and he responded "Yes" (T. 3-5). The transcript is file stamped and certified. In its entry journalized on June 6, 1994, vol. 1307, page 232, the court documented the jury waiver of the appellant. The docket itself reflects that a jury waiver was filed and journalized on - 10 - June 6, 1994. There is, however, no actual jury waiver in the file. The State argues that although the actual jury waiver is absent from the file, the record is replete with evidence that the appellant did, in fact, waive a jury. The appellant states that strict compliance with R.C. 2945.05 has been required by the Supreme Court, and that this standard has not been met. R.C. 2945.05 states: 2945.05 Defendant may waive jury trial. In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. In State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261, the court held: Even in petty offense cases where a defendant properly demands a jury trial, "it must appear of record that such defendant waived this right in writing in the manner provided by R.C. 2945.05, in order for the trial court to have jurisdiction to try the defendant without a jury." State v. Tate (1979), 59 Ohio St.2d 50, 13 O.O.3d 36, 391 N.E.2d 738, syllabus. See, also, Lima v. Rambo (1960), 113 Ohio App. 158, 17 O.O.2d 133, 177 N.E.2d 554. The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel. State v. Jells (1990), 53 Ohio St.3d 22, 26, 559 N.E.2d 464, 468. There must be strict compliance with R.C. 2945.05 for there to be a waiver of a right to a jury trial; where the record does not reflect strict compliance, the trial court is without jurisdiction to try the defendant - 11 - without a jury. State v. Tate, supra. See, also, State v. Harris (1991), 73 Ohio App.3d 57, 596 N.E.2d 563; State v. Anderson (Jan. 27, 1992), Fayette App. No. CA91-02-003, unreported, 1992 WL 12614. As the Supreme Court reiterated in Dallman, supra, strict compliance with R.C. 2945.05 is required for the trial court to exercise jurisdiction to try a criminal case. This court, in State v. Goodwin (June 15, 1995), Cuyahoga App. No. 66951, unreported and in State v. Billings (April 6, 1995), Cuyahoga App. No. 66829, unreported, distinguished Dallman, supra. In both of these cases the jury waiver was present in the file, but had not been properly filed with the clerk. At least one other appellate court considering similar facts reached the opposite conclusion. See State ex rel, Larkins v. Baker (January 18, 1995), Richland App. No. 94 CA 83, unreported; see also State v. Peters (March 13, 1995). The case sub judice is similar to those previously decided by this bench, Goodwin and Billings, supra. Here, as required by statute, the appellant's waiver of a trial by jury is a part of the record. The filed and certified transcript shows that the court questioned the appellant, read the jury waiver, and was given an acknowledgement by the appellant that he waived his right to a jury. The docket reflects that the waiver was not only journalized, but that it was filed as well. The court separately entered an order, which was subsequently journalized, which entered - 12 - the jury waiver on the record. The trial court complied with R.C. 2945.05 as required by the Supreme Court in Dallman, supra. The appellant's first assignment of error is not well taken. The appellant's second assignment of error: II DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE ARGUED THAT THE APPELLANT HAD A DUTY TO RETREAT AND THE COURT ERRED WHEN IT FOUND THE APPELLANT DID NOT RETREAT WHEN NO SUCH DUTY EXISTED. The appellant contends that the he was rendered ineffective assistance of counsel when his counsel misstated the law regarding self-defense during closing argument. Trial counsel's argument to the court included a statement that the appellant did attempt to retreat. The appellant argues that since the confrontation occurred at his home, he did not have a duty to retreat, and that the statement to the contrary by his trial counsel led the trial court to err in finding that the appellant had failed to retreat. The state argues that based upon the facts of the case, counsel did not misstate the law. In its verdict, the court stated: The Court further finds that the Defendant did not prove by a preponderance of the evidence that he acted in self defense. In particular, the Defendant did not prove that he (1) was not at fault in creating the situation which gave rise to the shooting; and (2) did not violate any duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247 is cited by the appellant for the proposition that there is no duty to retreat from - 13 - one's own home. However, Williford also reiterated that to establish self-defense, a defendant must show that he was not at fault in creating the situation giving rise to the affray; that there is a bona fide belief of imminent danger and that the only means of escape is in the use of force; and that there has been no violation of any duty to retreat to avoid the danger. The court further stated that the failure to prove any one of these elements by a preponderance of the evidence results in a failure to demonstrate self-defense. Here, the court specifically stated the appellant failed to meet the burden of showing that he was not at fault in creating the situation which gave rise to the shooting. Under the law as given in Williford, supra, because the appellant failed to meet the burden of showing this one element, he has failed to demonstrate that he acted in self-defense. The standard for reviewing ineffective assistance of counsel was set forth in Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, where the court cited to Strickland v. Washington (1984), 466 U.S. 668. In Bradley, the court held that counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonableness and, in addition, prejudice arises from counsel's performance. Here, the evidence reflects that counsel did not misstate the law because the appellant was not in his home, and thus had a duty - 14 - to retreat. Assuming the court could have found otherwise, the appellant was not rendered ineffective assistance for any misstatement of the law as to one element of self-defense where the court specifically held that he failed to meet another separate element of the defense. The appellant's second assignment of error is not well taken. The appellant's third and fourth assignments of error will be considered together: III THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. IV THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF MURDER RATHER THAN VOLUNTARY MANSLAUGHTER. The appellant asserts in the third assignment of error that the court's finding that he failed to prove that he was not at fault in creating the situation which gave rise to the shooting is against the manifest weight of the evidence. In the fourth assignment of error, the appellant asserts that the evidence is insufficient to support a conviction of murder, but rather the conviction should have been one of voluntary manslaughter. The Supreme Court sets forth the test for appellate review of both manifest weight of the evidence and sufficiency of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. The court applied the same test, and stated that the verdict will not - 15 - be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. Here, the facts as elicited at trial could easily lead reasonable minds to conclude that the appellant was guilty of murder, and that he had failed to show that he was not at fault in creating the situation which gave rise to the shooting. The court heard evidence that on March 1, 1994, the appellant exited his apartment with a gun a short time after a confrontation with some men regarding a drug transaction; that he stood outside of his apartment and argued with the victim; that he pulled out a gun; that he shot the victim; and that no weapons were found in the vicinity of the victim. The court heard the testimony of an eyewitness who stated that the appellant and the victim were alone in their argument, and that the appellant shot the victim. In addition, the court heard testimony that subsequent to his confrontation with the drug dealers, the appellant remained in his apartment for some time. The appellant himself testified that he was not angry after being "sucker punched." There was no evidence before the court that the argument which occurred in front of the appellant's apartment was incited by the victim. The appellant's third and fourth assignments of error are not well taken. Judgment affirmed. - 16 - 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. LEO M. SPELLACY, P.J., and DAVID T. MATIA, J., CONCUR. JAMES D. SWEENEY 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 journalization, at which time .