COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68246 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ALOJZ KURINCIC : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-308214 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square, Suite 1016 JEFFREY MARGOLIS, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Alojz Kurincic, appeals from the judgment of the trial court. Defendant was charged with four counts of felonious assault. He waived his right to trial by jury and proceeded with a bench trial. The trial court found the defendant guilty on four counts of aggravated assault. On appeal, defendant raises eight assignments of error arguing that he was denied due process of law. We affirm defendant's convictions. The relevant facts follow. Annetta Kurincic, the twenty-two-year-old daughter of the defendant, was the first witness for the prosecution. She testified that she had a violent and abusive relationship with her father. On the night in question, she arrived home with her boyfriend, David Rettig, around 9:00 p.m. Her two-year-old sister was running around the house. Upon entering the house with her boyfriend, she claimed her father began confronting her with profanity. The argument continued as she went upstairs. When she came back downstairs, she entered into a conversation with her mother concerning a three-pound dumbbell she had found in the living room. Annetta then tried to go back up the stairs with the weight in her hand when the argument started again and her father blocked her path up the staircase. At this point, Annetta claimed the defendant, holding the fireplace poker, threatened her life. She stated that the defendant began swinging the poker at her, catching her sweater, and tearing it. - 3 - As David tried to push her out of the way, the defendant hit David twice with the poker in the back of the head. Annetta then hit the defendant on the head with the dumbbell. The defendant dragged David toward the bathroom, let David go, and then went into the bathroom himself. On cross-examination Annetta stated she and David had a drink at dinner prior to the altercation. She denied using profanity toward her father and denied slamming the door when she entered the house. She denied that she and David threatened and pushed the defendant. She further denied that David kicked her father. She did not remember her father being down on the ground during the struggle. On redirect, Annetta stated that when the police arrived the defendant was not in the bathroom and that the poker was found near the basement fireplace. The next witness for the prosecution was David Rettig, Annetta Kurincic's twenty-two-year-old boyfriend. He described Annetta's relationship with her father as being violent. He said that he had one drink at dinner prior to arriving at Annetta's home. David noted that Annetta had difficulty entering the house. As a result an argument ensued with her father about slamming the door. Because of the fighting, David picked up the two-year-old daughter and took her into the study. The defendant yelled at David to put her down, and David complied. David stated defendant, while holding the poker, confronted Annetta in front of the spiral staircase. He saw the defendant swing at - 4 - Annetta and hit her in the arm. At this point, David stepped between the defendant and Annetta and tried to push her away. It was then, David claimed, the defendant struck him three times over the head with the poker. Sergeant Mannarino, from the Brecksville police department was the final witness for the prosecution. He was the officer who responded to the incident at the Kurincic residence. When he arrived, he observed two men with head wounds. He stated that although he could smell alcohol on David Rettig, he was not drunk. In separate testimony, the doctor's report also noted the smell of beer on David's breath. Sergeant Mannarino described neither Rettig nor the defendant as combative. Ludmila Kurincic, the wife of the defendant, took the stand as a court's witness and was cross-examined by the defense. She stated that when Annetta arrived home, her father began yelling at her with profanity. He accosted Annetta about closing the door and then slammed it three times. Initially he tried to block her from passing through the doorway; then they began shoving each other, and Annetta went into the kitchen. Ludmila stated that she and Annetta were in the kitchen when Annetta relayed a story about the dumbbell. When the argument resumed, her father ran to get the fireplace poker. He threatened Annetta and began swinging the poker at her. After her father caught the poker on Annetta's sleeve, David stepped in between Annetta and her father, whereupon her father then hit David twice on the head - 5 - with the poker. At this point, Annetta reached over David and hit her father on the head with the dumbbell. The father took the stand in his own defense. He stated that he had a very poor relationship with Annetta. He described the events of February 19, 1994, as follows. When Annetta came home, he asked her to close the door. To this she responded by swearing at him and slamming the door three times. David Rettig, whom defendant described as smelling like a whisky barrel, entered the house and began swearing at her father. Rettig picked up the two-year-old daughter, but defendant asked him to put her down. Defendant stated that Annetta, who was acting extremely hyper, came down from upstairs with a dumbbell in her hand. At this point, Annetta and David attacked her father. David kicked and threw punches at him while he retreated, and Annetta swung the dumbbell at his head. Defendant claims that he was retreating from the pair's advances when he grabbed the fireplace poker. David then kicked him in the ribs and Annetta hit her father over the head with the dumbbell. At this point, her father began swinging the poker and blacked out. When he regained consciousness, the police had arrived. The trial judge, as the trier of fact, found defendant guilty on all four counts of aggravated assault. The counts were merged and defendant was sentenced to a term of imprisonment of three to five years. The sentence was suspended, however, and defendant placed on probation for two years and fined $250. - 6 - Defendant timely appealed to this court raising the following assignments of error. Defendant's first, second, and sixth assignments of error, which concern the defense of self-defense, and therefore, will be addressed together, state as follows: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT APPLIED THE ELEMENTS OF SELF-DEFENSE APPLICABLE TO A HOMICIDE PROSECUTION. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REQUIRED THE DEFENDANT TO RETREAT IN HIS OWN HOME WHICH IS CONTRARY TO OHIO LAW. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHERE HE HAD PROVEN THAT HE WAS NOT AT FAULT AND STILL REQUIRED TO PROVE SELF-DEFENSE BY PREPONDERANCE OF EVIDENCE. Self-defense is an affirmative defense which must be raised and proven by the defense. State v. Payton (Apr. 1, 1993), Cuyahoga App. No. 62243, unreported. In State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus, the court stated the elements of self-defense. 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.) Regarding the third element, the Ohio Supreme Court has stated there is no duty to retreat in one's home. State v. Williford (1990), 49 Ohio St.3d 247. In addition, the amount of force used in self-defense must be reasonable. As the court stated in State v. Fox (1987), 36 Ohio App.3d 78, at 79, "one may use such force - 7 - as the circumstances require in order to defend against danger which one has good reason to apprehend." (Citations omitted.) The determination of whether the elements are satisfied is a question of fact to be resolved by the trier of fact. State v. Gardner (Feb. 5, 1987), Cuyahoga App. No. 51678, unreported. Furthermore, whether the defendant used unreasonable force in repelling a perceived danger is also a question of fact for the trier of fact. State v. Bruckner (Sept. 30, 1993), Cuyahoga App. No. 63296, unreported; State v. Howard (May 26, 1992), Montgomery App. No. 12533, unreported. Regarding self-defense, defendant argues three points, (1) the trial court applied a self-defense standard applicable to a homicide case, (2) the defendant had no duty to retreat in his own home, (3) the defendant did not have to prove self-defense by a preponderance of the evidence. All these arguments lack merit. In the first assignment of error the defendant argues that the trial court applied the wrong standard for self-defense. We disagree. The trial judge stated the defendant had the burden to "*** prove by a preponderance of the evidence that the Defendant had an honest belief that he was in eminent danger of death or great bodily harm, ***." This is the proper standard. Moreover, this standard does not differ in homicide or non-homicide cases. The first assignment of error is overruled. In the second assignment of error, defendant argues that under Ohio law he had no duty to retreat. Defendant is correct in that the Ohio Supreme Court has recently stated that there is - 8 - no duty to retreat in one's home. State v. Williford, supra. Williford, however, does not change the disposition of this case. The duty to retreat is only one element of self-defense as outlined in Robbins, supra. Even if there is no duty to retreat, a defendant must still satisfy the other elements of self- defense. See State v. Payton, supra. Nothing in the trial court's decision indicated that it decided the self-defense issue solely because of the duty to retreat. On the contrary, because the trial court, as trier of fact, found the other elements of self-defense not proven, the second assignment of error is overruled. In the sixth assignment of error, the defendant claims the defendant should not have the burden of proving self-defense, but cites no cases to support this proposition. Ohio law requires the defendant to prove the affirmative defense of self-defense. R.C. 2901.05; State v. Seliskar (1973), 35 Ohio St.2d 95. Moreover, in Martin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, the Supreme Court held that placing the burden of proving self- defense on the defendant does not violate the due process clause. See also, State v. Payton, supra. Accordingly, the sixth assignment of error is overruled. Defendant's third, fifth, and seventh assignments of error, which challenge defendant's convictions for aggravated assault and therefore will be addressed together, state as follows: III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND GUILTY OF AGGRAVATED ASSAULT WITHOUT FINDING THAT THE DEFENDANT HAD PROVEN THE MITIGATING CIRCUMSTANCES BY A PREPONDERANCE OF THE EVIDENCE. - 9 - V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF AGGRAVATED ASSAULT WHICH ONLY REQUIRES THE INFLICTION OF PHYSICAL HARM BY MEANS OF DEADLY WEAPON. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONVICTED HIM OF AGGRAVATED ASSAULT. All three of these assignments of error challenge the sufficiency of defendant's conviction for aggravated assault. Defendant was initially charged with four counts of felonious assault. The court, however, found the defendant guilty on four counts of the lesser included offense of aggravated assault. Revised Code 2903.12 defines aggravated assault as follows: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. In the third assignment of error, defendant argues that the court did not make a finding that the defendant was under the influence of sudden passion brought on by serious provocation occasioned by the victim. This argument lacks merit and is not supported by the record. On this point, the trial court, after discussing the actions of the victims, stated as follows: *** this Court does believe that there is sufficient provocation to incite the Defendant into using deadly force. I, therefore, find the Defendant, on count one, guilty of the lesser included offense of aggravated assault. * * * Counts two, three and four, I find the Defendant guilty of the lesser included offense of aggravated - 10 - assault, with both specifications; however, counts two, three and four are merged for the purposes of sentencing. Although the court did not make a specific finding that defendant was under the influence of sudden passion brought on by the serious provocation occasioned by the victim, the court had ample evidence upon which to make such a finding. In fact, it is this element of provocation that reduced the defendant's charge from felonious assault to aggravated assault. The trial court was presented with specific evidence of the verbal and physical fighting that took place in the house on the night of the incident. The court heard evidence that Annetta and David attacked the defendant. This testimony is sufficient as mitigating evidence to show that the defendant was provoked on the night of this incident. The trial court was not in error in reducing the charge from felonious assault to aggravated assault. The third assignment of error is overruled. In the seventh assignment of error, the defendant apparently challenges the sufficiency of the evidence for an aggravated assault conviction. In the case sub judice, the court was presented with evidence that the defendant, provoked into a sudden fit of rage, caused serious harm to another. Testimony showed that defendant was verbally and physically abusive during his argument with Annetta and David Rettig. There is no disputing the defendant caused physical harm as exhibited by the 4-centimeter wound on David's head. Moreover, the defendant attempted to harm Annetta physically when he swung the fireplace - 11 - poker at her and tore her sweater. There being sufficient evidence for an aggravated assault conviction, this seventh assignment of error is overruled. In the fifth assignment of error the defendant argues that he cannot be convicted of aggravated assault because under R.C. 2903.12(A), the provocation must be such as to bring on deadly force. This argument is without merit. The court squarely rejected this identical argument in State v. Newell (May 6, 1993), Cuyahoga App No. 62472, unreported. Defendant cites no cases to support his proposition. Moreover, the prosecution presented sufficient evidence for a conviction under R.C. 2903.12(A). See the seventh assignment of error. Defendant's fifth assignment of error is overruled. Defendant's fourth assignment of error states as follows: IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONSTRUCTIVELY AMENDED THE INDICTMENT FINDING DEFENDANT GUILTY ON A DUPLICITOUS INDICTMENT. In this assignment of error, defendant attacks the indictment. It must be reiterated that while the initial indictment charged the defendant with four counts of felonious assault, the trial court found the defendant guilty of the lesser offense of aggravated assault. Defendant contends the indictment was flawed because it was a duplicitous indictment. A duplicitous indictment is one where two or more distinctive offenses are joined in one count. Parker v. Maxwell (1963), 174 Ohio St. 471; State v. Stratton (1982), 5 Ohio App.3d 228. Nothing about the indictment in the case sub judice was - 12 - duplicitous. The original indictment charged the defendant with four separate counts of felonious assault. The court found the defendant guilty of four separate counts of aggravated assault. Accordingly, defendant's fourth assignment of error is overruled. Defendant's eighth assignment of error contests the weight of the evidence and states as follows: VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW BECAUSE THE VERDICT OF COURT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant contends his conviction is against the manifest weight of the evidence because the eyewitness testimony was uncertain and unreliable. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: There being sufficient evidence to support the conviction as a matter of law, we next 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 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 evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. Based on our review of the record in compliance with this standard, defendant has failed to demonstrate his conviction was against the manifest weight of the evidence. The witnesses in this matter presented conflicting pieces of testimony. Indeed the trial court recognized this when it stated, "At the outset, I must state that - 13 - I did not believe the testimony of any one witness in its entirety, excluding the Sergeant." (Tr. 349.) Because this case was tried to the bench, it was the trial judge's responsibility, as the trier of fact, to resolve the different versions as to what transpired on the night of the incident. In this case the judge was presented with testimony that showed that defendant, while acting under sudden anger and rage, hit the victims with a fireplace poker. This assignment of error is overruled. Judgment affirmed. - 14 - 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, P.J., and PORTER, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .