COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67750 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : HAVER RHYM : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-287181. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Edward M. Walsh, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David L. Doughten, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 -2- DAVID T. MATIA, J.: Haver Rhym, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for the offense of aggravated murder in violation of R.C. 2903.02 with a firearm specification. Haver Rhym, defendant-appellant, assigns three errors for this court's review. Haver Rhym's, defendant-appellant's, appeal is not well taken. I. THE FACTS At approximately 2:30 a.m. on Saturday, September 5, 1992, Leonard Taylor was shot and killed by Haver Rhym, defendant- appellant, during a prolonged street altercation. Prior to the shooting of Taylor, Haver Rhym, defendant-appellant, and others had been involved in a dispute centering around Taylor's alleged desire to spend the night with Marzella Lafaye White, a twelve-year-old girl from the neighborhood. The initial altercation was temporarily suspended by the arrival of officers from the Cleveland Police Department who instructed the combatants to disburse and return to their homes. Approximately fifteen minutes later Haver Rhym, defendant-appellant, shot and killed Leonard Taylor during a continuation and escalation of the original dispute. Taylor was shot while standing in the street near the home of Haver Rhym, defendant-appellant. Haver Rhym, defendant-appellant, was standing in the driveway in front of his own home at the time he fired the weapon at Leonard Taylor. Witnesses estimate that Haver Rhym, defendant-appellant, fired -3- approximately eight or nine shots from the weapon in rapid succession hitting Taylor once in the chest and once in the arm. Upon being hit by the gunfire, Leonard Taylor crawled onto the steps of his own home where he died on the front porch. After firing the weapon, Haver Rhym, defendant-appellant, fled the scene. Haver Rhym, defendant-appellant, surrendered himself to police custody on Tuesday, September 8, 1992. On September 22, 1992 the Cuyahoga County Grand Jury returned a one count indictment against Haver Rhym, defendant-appellant, for aggravated murder in violation of R.C. 2903.02. The indictment included a firearm specification in violation of R.C. 2929.71. Haver Rhym, defendant-appellant, was arraigned on October 21, 1992 whereupon a plea of not guilty was entered as to all charges contained in the indictment. On May 12, 1993 a jury trial commenced in the Cuyahoga County Court of Common Pleas. At trial, the State of Ohio, plaintiff- appellee, maintained that Haver Rhym, defendant-appellant, had murdered Leonard Taylor as he stood alone, unarmed in the middle of the street. The State of Ohio, plaintiff-appellee, conceded that Leonard Taylor may have had a knife in his back pocket at the time he was shot. Allegedly, Leonard Taylor's last words before being shot were to the effect that he had no gun and "*** if you're going to shoot, then shoot." Haver Rhym, defendant-appellant, did not dispute the fact that he shot and killed Leonard Taylor, however, it was defendant- appellant's contention at trial that he shot at Leonard Taylor only -4- in self-defense. Haver Rhym, defendant-appellant, maintained that Leonard Taylor and two other men were walking up the street yelling threats directed at defendant-appellant and the residents of defendant-appellant's home. Haver Rhym, defendant-appellant, maintained further that one of the men was armed with a handgun which he aimed at defendant-appellant and fired. At this point, Haver Rhym, defendant-appellant, testified that he loaded the ammunition clip into his weapon and fired, striking and mortally wounding Leonard Taylor. Haver Rhym, defendant-appellant, claimed that he never intended to kill Leonard Taylor, only scare him. After the close of all the evidence and prior to jury deliberation, the trial court instructed the jury on the burden of proof for a claim of self defense as follows: To establish self-defense, the following elements must be shown: First, the Defendant was not at fault in creating the situation giving rise to the fight; second, the Defendant had an honest 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 third, the Defendant must not have violated any duty to retreat or avoid the danger. (Emphasis added) (Tr. 1129.) On May 24, 1993 the jury found Haver Rhym, defendant- appellant, guilty of both the principal charge of aggravated murder and the firearm specification. The trial court then sentenced Haver Rhym, defendant-appellant, to serve a term of twenty years to life on the aggravated murder charge consecutively to a three year term of incarceration on the -5- firearm specification. The Cuyahoga County Clerk of Courts journalized the sentence on June 1, 1993. On September 1, 1993 Haver Rhym, defendant-appellant, filed a motion for leave to appeal from the judgment and sentence of the trial court. This court granted defendant-appellant's motion on September 29, 1994 and this appeal follows. II. FIRST ASSIGNMENT OF ERROR Haver Rhym's, defendant-appellant's, first and assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: WEIGHT OF THE EVIDENCE Defendant-appellant argues, through his first assignment of error, that the verdict of the jury was against the manifest weight of the evidence. Specifically, defendant-appellant maintains that no reasonable jury could have found that defendant-appellant did not have a bona fide subjective belief that the victim, Leonard Taylor, was about to cause him great bodily injury from which he needed to protect himself. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT 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: There being sufficient evidence to support the conviction as a matter of law, we next -6- consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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 such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and 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. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; -7- 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. STANDARD OF REVIEW FOR SELF-DEFENSE The Ohio Supreme Court set forth the elements of self-defense in State v. Melchior (1978), 56 Ohio St.2d 15, 20: 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, Stewart v. State (1852), 1 Ohio St. 66, 75; State v. Doty (1916), 94 Ohio St. 258; State v. Morgan (1919), 100 Ohio St. 66, 72; (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, Marts v. State (1875), 26 Ohio St. 163, paragraph two of the syllabus; State v. Champion (1924), 109 Ohio St. 281, paragraph one of the syllabus; State v. Sheets (1926), 115 Ohio St. 308, 310; and (3) the slayer must not have violated any duty to retreat or avoid the danger, State v. Peacock (1983), 40 Ohio St. 333, 334; Graham v. State (1918), 98 Ohio St. 77, 79. D. THE JURY VERDICT IS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, evidence was presented by way of the testimony of numerous eyewitnesses in an attempt to establish the -8- elements of the offense of aggravated murder with a firearm specification. Admittedly, defendant-appellant shot and killed Leonard Taylor. It also is not disputed that Leonard Taylor did not have a gun in his possession at the time that he was shot. The disputed issue is whether defendant-appellant acted in self-defense at the time of the shooting. A review of the entire record from the trial court demonstrates that sufficient evidence was submitted which enabled the jury to determine defendant- appellant's guilt beyond a reasonable doubt. Clearly, the jury, upon hearing two divergent versions of the shooting, chose to believe that Leonard Taylor was alone in the street at the time of the shooting and that defendant-appellant did not act in self- defense. Considering that the weight to be given the evidence and the credibility of the witnesses are primarily matters for the jury to determine and that it is not the function of the appellate court to substitute its judgment for that of the jury, State v. Grant (1993), 67 Ohio St.3d 465; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the jury verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the entire record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by convicting defendant-appellant of aggravated murder with a firearm specification. Defendant-appellant's conviction was supported by substantial credible evidence upon which the -9- jury could reasonably conclude that defendant-appellant was guilty of the charges as alleged in the indictment. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Haver Rhym's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED BY ALLOWING THE STATE TO CROSS-EXAMINE ITS OWN WITNESS IN VIOLATION OF OHIO RULE OF EVIDENCE 607. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DESIGNATING CORNELIUS PAMES AS A COURT WITNESS PURSUANT TO EVID.R. 614(A) Defendant-appellant argues through his second assignment of error that the trial court incorrectly classified Cornelius Pames, a State witness, as a court witness pursuant to Evid.R. 614(A). Specifically, defendant-appellant maintains that the State was permitted to cross-examine its own witness in violation of Evid.R. 607 without a showing of surprise and affirmative prejudice. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW Evid.R. 607, Who May Impeach provides: The credibility of a witness may be attacked by any party except that the credibility of a witness may be attached by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not -10- apply to statements admitted pursuant to Rules 801(D)(1)(a), 801(D)(2) or 803. Evid.R. 614(A). Calling and Interrogation of Witnesses by Court provides: (A) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. In State v. Adams (1980), 62 Ohio St.2d 151, at paragraph four of the syllabus, the Ohio Supreme Court held that: *** a trial court possesses the authority in the exercise of sound discretion to call individuals as witnesses of the court. In State v. Apanovich (1987), 33 Ohio St.3d 19, 22, the Ohio Supreme Court stated further that: Evid.R. 614 also provides that a court may call witnesses on its own motion and allow each party to then cross-examine those witnesses. The State need not demonstrate surprise in order to cross-examine such a witness. State v. Dacons (1982), 5 Ohio App.3d 112. Our inquiry thus narrows as to whether the trial court abused its discretion ***. Accordingly, the trial court designation of State's witness Cornelius Pames as a court witness pursuant to Evid.R. 614(A) will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: -11- "The term 'abuse of discretion' connotes more than an error or law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION. In the case sub judice, a review of the record demonstrates that Cornelius Pames, a witness to the events leading up to the shooting, gave testimony that was materially inconsistent with a previous statement made by Pames to the police at the time of the shooting. The trial court determined that Pames should be designated as a court witness and both the prosecution and defense be given the opportunity to cross-examine Pames in an effort to determine the actual events that led to the shooting. A vigorous cross-examination by both the prosecution and defense ensued in which Pames was questioned at length as to his prior statement to the police and his trial testimony as well as his personal background. Upon review of the trial court record, this court finds that the trial court did not abuse its discretion by designating Cornelius Pames as a court witness and allowing both sides to cross-examine him extensively pursuant to Evid.R. 614(A). Accordingly, the State was not required to demonstrate surprise and affirmative prejudice before cross-examining Pames regarding the prior inconsistent statement. State v. Webb (1994), 70 Ohio St.3d 325, 340-341. -12- Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Haver Rhym's, defendant-appellant's third assignment of error states: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT THE DEFENDANT HAD A DUTY TO RETREAT BEFORE THE JURY COULD FIND A VALID SELF- DEFENSE CLAIM. A. ISSUE RAISED: SELF-DEFENSE JURY INSTRUCTION Defendant-appellant argues through his third and final assignment of error that the trial court failed to properly instruct the jury on the issue of self-defense. Specifically, defendant-appellant maintains that the trial court incorrectly instructed the jury that defendant-appellant had a duty to retreat before a claim of self-defense could be justified. It is defendant-appellant's position that he did not have a duty to retreat in his own home. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW As previously stated, to establish a claim of self-defense the following elements must be shown: (1) the slayer was not at fault in creating the situation, (2) the slayer had an honest belief that he was in imminent danger of death or great bodily harm and his only means of escape from such danger was in the use -13- of such force, and (3) the slayer must not have violated any duty to retreat or avoid the danger. State v. Melchoir, supra. The Ohio Supreme Court has created an exception to the third element of self-defense. In State v. Williford (1990), 49 Ohio St.3d 247, the court determined that there was no duty to retreat or avoid the danger while in one's home. In Williford, the defendant repelled his attacker with deadly force while the attacker was on defendant's porch. However, this court has consistently held that the duty to retreat extends to the driveway of one's own home. State v. Thrower (Nov. 13, 1986), Cuyahoga App. No. 51280, unreported; Cleveland v. Hill (1989), 63 Ohio App.3d 194, 199. This duty to retreat is separate and distinct from that presented when a person is attacked in his home. State v. Peacock (1883), 140 Ohio St. 333; State v. Gardner (Mar. 30, 1989), Cuyahoga App. No. 55171, unreported. D. TRIAL COURT PROPERLY INSTRUCTED THE JURY ON SELF-DEFENSE. In the case sub judice, the testimony and evidence indicated that defendant-appellant fired his weapon at Leonard Taylor from a point near the end of the driveway in front of defendant- appellant's residence. There is no evidence in the record that defendant-appellant was in his home or on the front porch of his home at the time of the shooting. Accordingly the trial court's instruction regarding the burden of proof necessary for self- defense and defendant-appellant's duty to retreat or avoid the -14- danger was proper in light of this court's prior holdings in Cleveland v. Hill, supra, and State v. Thrower, supra. Defendant-appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. -15- 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. SPELLACY, P.J. and JAMES D. SWEENEY, J., CONCUR. DAVID T. MATIA 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 .