COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68851 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID R. OWENS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JANUARY 25, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-313283 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MICHAEL D. HORN, ESQ. ROBERT M. INGERSOLL, ESQ. Assistant County Prosecutor Assistant Public Defender Justice Center, 8th Floor 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant, David R. Owens ("appellant") appeals his conviction for murder in violation of R.C. 2903.02, with a firearm specification. The following facts were adduced at appellant's jury trial. Dr. Robert C. Challener, Chief Deputy Coroner for Cuyahoga County testified that Paris Ponius (the victim) sustained two injuries. One was the result of blunt force and consisted of scrapes which were present around the right elbow and also around the top of the right hip. The other injury was two gunshot wounds, one of which entered and exited the victim's left buttock. The second gunshot wound was fatal: a bullet entered the victim's mid back, travelled through the rib cage, hit two portions of the right lung, then struck the heart and ultimately the breast bone. Sharon Rosenberg, a forensic scientist for the Cuyahoga County Coroner's Office testified that she did not find any supporting evidence that the victim was holding a metal object or that the victim fired a weapon. Rosenberg also stated that based on the amount of burnt gun powder particles present the distance of the muzzle of the gun to the victim was greater than two to three feet. Cleveland Police Officer Karen Espay testified that on April 10, 1994 at approximately 12:30 a.m. she received a radio broadcast to report to East 131 Street and Miles in the back parking lot. The broadcast also informed her that shots were fired and one male was down. Officer Espay stated that another squad car had arrived - 3 - on the scene before her and the officers were with the victim. Once Officer Espay arrived on the scene she immediately went to the location were the victim was and started dispersing the crowd to secure the scene. Officer Espay then stated that the victim was not carrying a weapon on his person. Furthermore, no weapon was found after a thorough search of the area. Officer Espay did find five empty shell casings. Michael Doss testified that he has known the appellant for a year and a half. Doss stated that on the evening of April 9, 1994, he was at his friend "Quarterman's" house with the appellant and two other men nicknamed "Oatmeal" and "Money" or "Monte." A friend named Roy came over and talked with the appellant in another room. Subsequently, they all left to go to a party at "Vert's" located at East 131 Street and Miles. They all stopped at Peanut's (another friend) house before they went to Vert's. Doss stated that once they arrived at Vert's they parked the car in the parking lot behind Vert's. Several people were in the parking lot drinking, talking and shooting dice. They tried to get into Vert's but it was not open yet. Doss testified that he then witnessed Roy go up to the victim and slam the victim into the ground. Then the appellant shot at the victim four times rapidly. Doss stated that the victim was not reaching for anything. After the first shot the victim turned around and started to run. Doss did not see a gun in the victim's hands that evening nor did anybody else have a gun. - 4 - Doss testified that he knew the victim had robbed the appellant twice. In fact, the victim had robbed the appellant a couple of days before the incident at gunpoint and took a leather coat from the appellant. Roy Hill testified that he was dating the appellant's sister for nine months and also became friends with the appellant. Hill stated that the victim tried to rob him and the appellant at gunpoint during the winter of 1994. In early April 1994, Hill lent the appellant his leather coat. The appellant informed Hill that the victim robbed him at gunpoint and took the leather coat. On the night of April 9, 1994, Hill stated that he and his friends went to Vert's to see a concert and as they pulled into the parking lot he observed the victim wearing his leather coat. Hill and his friends tried to get into Vert's but it was not open. Hill stated that he then went looking for the appellant to tell him that the victim was in Vert's parking lot. Hill then corroborated the testimony of Doss with respect to finding the appellant at Quarterman's house, driving over to Peanut's house and then going to Vert's. Doss then stated that once he found the victim in the parking lot he picked him up from behind and threw him to the ground. The victim then got up and said "wait a minute," his hands were open and he did not reach for anything. Hill stated the appellant then started shooting at the victim. He heard three or four shots fired. The victim and Hill - 5 - both tried to dodge the shots. Hill stated that he did not see anyone else with a gun. Kevin Curry and Jameel Gray both testified that they were in Vert's parking lot on the night of the incident. They both corroborated the testimony of Hill by stating that Hill slammed the victim and the appellant then shot the victim several times in the back. Neither Curry nor Gray saw anyone else with a gun that evening. The appellant testified that the victim robbed him twice at gunpoint. During the second robbery the victim took a leather coat the appellant was wearing. The appellant had borrowed the leather coat from Hill. The appellant stated that on the night of the incident, he was at Oatmeal's house and Hill came over and told him that the victim was at Vert's. The appellant stated that he, Hill, Monte, and Oatmeal proceeded to go up to Vert's. Once they arrived at Vert's they saw the victim shooting dice in the parking lot. While in the parking lot, a friend named Chuck lent appellant his gun. The appellant testified that Hill went up to the victim and picked him up from behind and threw him down onto the ground. The victim stood up and the appellant thought he was reaching for a gun so the appellant ran behind a car and shot at the victim. The appellant claimed that he shot in self-defense. The appellant's sole assignment of error states: I. DAVID OWENS'S CONVICTION FOR MURDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 6 - The appellant claims that his conviction for murder was against the manifest weight of the evidence. Specifically, the appellant asserts that he proved beyond a preponderance of the evidence the affirmative defense of self-defense. Under Ohio law, self-defense is an affirmative defense. To establish self-defense, the appellant needed to show: "(1) that he was not at fault for creating the situation; (2) he had 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 force; and (3) he must not have violated any duty to retreat or avoid the danger." State v. Williford (1990), 49 Ohio St.3d 247, 249. In the present case, the appellant did not establish the elements of self-defense. Initially, the appellant was not involved in the altercation between the victim and Hill. It was only after Hill threw the victim to the ground and the victim got up did the appellant get involved by shooting the victim in the back. Therefore, he created the situation between himself and the victim. Moreover, the appellant had every opportunity to escape from any danger he may have thought he was in when he saw the victim allegedly reach for a gun. The appellant testified that once he saw the victim move his hand toward his belt he ran behind a car and started shooting. Therefore, we find that the appellant also had a duty to retreat and avoid the danger. - 7 - 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 as follows: 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. Martin, supra at 175. The weight to be given the evidence and the 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. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Upon a careful review of the record, we are unable to conclude that the jury lost its way and created such a manifest miscarriage of justice that appellant's conviction must be reversed. The evidence adduced at trial showed that the appellant did not establish the elements of self-defense. In light of the surrounding facts and circumstances, the jury could reasonably conclude that the appellant committed murder. Judgment affirmed. - 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 Court of Common Pleas 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. TERRENCE O'DONNELL, J., CONCUR. JUDGE JOHN T. PATTON 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, .