COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68990 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL GRAYES : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-318558 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: SCOTT SALISBURY, ESQ. VALERIE R. ARBIE, ESQ. ASSISTANT COUNTY PROSECUTOR ASSISTANT PUBLIC DEFENDER The Justice Center 1200 West Third Street 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Defendant-appellant, Michael Grayes, appeals his conviction for two counts of felonious assault with firearm specifications in violation of R.C. 2903.11. Appellant claims that his conviction for Count One must be reversed because he acted in self-defense. He claims his conviction for Count Two must be reversed because it was predicated upon insufficient evidence. Upon review, we find appellant's assignments of error to be devoid of merit. Hence, we affirm the judgment of the trial court. 1 The following evidence was adduced at appellant's trial. John Benson (Victim, Count Two) testified that his cousin, Darrell Solomon (Victim, Count One) became angry after hearing co- defendant, Robert Young make obscene remarks to a girl who walked past Solomon's barber shop. Benson stated that Solomon slapped Young and that a fight ensued in which Solomon dominated. Benson testified that he was merely a bystander; that he broke up the fight three times and that when the men resumed fighting he gave up trying to stop them and walked away. Benson stated that when he was approximately one block away, he heard Solomon call out his name and that when he turned around, he saw the appellant and Young walking side by side down the street toward Solomon. He stated that Young and Solomon began to fight again and that he attempted to stop them by telling the appellant to grab Solomon while he 1 Robert Young, indicted as a co-conspirator, was tried with the appellant. However, the instant appeal involves only Michael Grayes. - 3 - grabbed Young. Benson testified that as he bent down to separate the men, he noticed that the appellant was not reaching for Solomon. Benson further testified that as he pulled Young away from Solomon, he heard Solomon say that the appellant had a gun. Benson stated that immediately after Solomon's statement, he heard two gun shots and observed that the appellant began to point the gun at him. Benson stated that the appellant verbally threatened to shoot him and that in order to protect himself, he began to use Young as a human shield. He explained that in an attempt to escape, he dragged Young for a short distance, then dropped him and ran. Benson indicated that the appellant chased him and fired three shots in his direction. Benson further indicated that he heard a total of five to six gun shots and that the shootings occurred on June 19, 1994 at approximately 7:00 p.m. On cross- examination, Benson admitted that he did not see the appellant shoot Solomon but only heard the shots. Benson maintained that the appellant walked with Young to the scene and that the appellant was able to arrive quickly because he lived just around the corner. Darrell Solomon corroborated Benson's testimony in detail and added that after losing the above described fights, Young told him that "he would be back, and that when he got back, his nigger would pop him." (Tr.303) Solomon stated that 3 to 5 minutes later, Young returned with appellant and that the appellant shot him in the left arm at close range and shot him in the upper chest as he attempted to escape. Solomon displayed both wounds to the jury and - 4 - he too explained that the appellant was able to arrive quickly 2 because he lived only 30 yards away. On cross-examination, Solomon admitted that he slapped Young first; that he was larger than Young and that he was able to overpower Young during the fights. Solomon denied touching the appellant prior to the shootings. Investigating detective, Earl Miner, testified that the pre- trial statement he took from Solomon during Solomon's hospitali- zation was highly consistent with Solomon's testimony at trial. Three witnesses testified for the defense. Erica Coleman testified that the appellant left his home at 2:30 p.m. to rent a video; that she heard a single gun shot and that shortly thereafter the appellant ran into the house with a gun at his side saying "I told him, Don't come up on me. I told him not to. I told him to stop." (Tr. 390) On cross-examination, Coleman denied seeing a gun on appellant's person despite her admission that he was dressed in only a T-shirt and trousers. She further admitted that the appellant was her boyfriend; that his home was extremely close to the scene; that he never notified the police of the alleged self-defense shooting and that he fled with the gun. The appellant testified that he was on his way to the video store when he saw Young and Solomon fighting. He stated that he 2 The record demonstrates that appellant lived at St. Clair and 95th Streets and that the assault took place near Solomon's barber shop located at St. Clair and 96th Streets. - 5 - tried to break up the fight but that when Solomon punched him, he drew his weapon. He further stated that he thought Solomon was going to take the weapon and use it against him. Appellant indicated that he fired the gun because Solomon charged him. On cross-examination he admitted that he was the only person who was armed; that the weapon he utilized was loaded and that it was a six shooter. He denied fleeing the scene to avoid being caught; denied shooting Solomon a second time and denied shooting at Benson. When asked to explain why Solomon's medical records documented two wounds, he stated that a single bullet could have created the wounds. Freeman Clavis, testified that Young did not leave the scene to get the appellant; that the appellant walked up to the men as they fought and that appellant shot Solomon after Solomon charged him. Clavis admitted to having a long standing friendship with Young and also admitted that he did not see the appellant shoot Solomon a second time because he took cover after witnessing the first shot. The trial court denied appellant's motion for acquittal and the jury found him guilty as charged. The instant appeal followed. I MICHAEL GRAYES WAS DENIED DUE PROCESS OF LAW AS GUARANTEED HIM BY ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE JURY IMPROPERLY FOUND THAT THE OFFENSE OF FELONIOUS ASSAULT AGAINST DARRELL SOLOMON WAS NOT COMMITTED IN SELF-DEFENSE ALTHOUGH THERE WAS SUFFICIENT EVIDENCE OF SELF-DEFENSE PROVIDED. Appellant claims that his conviction for Count One must be - 6 - reversed because evidence adduced at trial was sufficient to establish the affirmative defense of self-defense. Upon review, we find appellant's argument to be devoid of merit. To establish self-defense, the defendant must show "* * *(1)* * * [he] was not at fault in creating the situation giving rise to the affray; (2) * * * [he] has [sic] 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. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E. 2d 755, 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, 157, 37 O.O. 522, 522-523, 80 N.E. 2d 699, 670. If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense. (Emphasis sic) State v. Jackson (1986), 22 Ohio St. 3d 281, 284 22 OBR 452, 255, 490 N.E. 2d 893, 897, certiorari denied (1987), 480 U.S. 917. State v. Williford (1990), 49 Ohio St.3d 247, 249. Our review of the record demonstrates that the appellant has not only failed to prove one of the elements of the defense of self-defense, he has failed to prove all of them. The appellant has failed to prove that he was not at fault for creating the situation which started the affray as he accepted Young's invitation to retaliate against Solomon and accompanied him 3 to the scene armed with a gun. Hence, but for the appellant's 3 Appellant would have had no way of knowing that Young and Solomon were fighting unless Young informed him of such altercation. This inference is supported by Young's threat to - 7 - armed presence, Solomon would not have been shot. Appellant has also failed to prove that he had a bona fide belief that he was in imminent danger of death as he was the only person who possessed a weapon. While the appellant alleged that Solomon charged him, the disputed threat of a bare fisted man fails to support the above 4 described belief and the use of deadly force. Lastly, appellant has failed to prove that he fulfilled his duty to retreat or avoid the danger as he shot Solomon and fired at Benson instead of walking away or complying with Benson's suggestion to stop the fight. Such conduct clearly supports an inference that appellant's purpose in accompanying Young to the scene was to retaliate against Solomon. Appellant's first assignment of error is overruled. II MICHAEL GRAYES'S RIGHTS UNDER ARTICLE I, SECTION OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CON- VICTION FOR THE FELONIOUS ASSAULT OF JOHN BENSON WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Appellant claims that his conviction for Count Two must be reversed because the state failed to prove that he caused actual physical harm to John Benson. Appellant's argument lacks merit as an "attempt to cause physical harm..." is an element of the crime "pop" Solomon. 4 There was no testimony that Solomon overpowered the appellant or that he actually grabbed appellant's weapon. On the contrary, Solomon testified that he never touched the appellant. Under State v. DeHass (1967), 10 Ohio St.2d 231 the jury was free to disbelieve appellant's self-serving testimony. - 8 - 5 of felonious assault. The state provided ample evidence of appellant's attempt to cause physical harm to Benson as Benson testified that appellant verbally threatened to shoot him and that appellant fired three shots at him after he dropped Young and ran. This testimony was corroborated by Solomon, who stated that he heard several shots after running from the appellant and by the appellant who admitted to possessing a loaded, six shooter. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of crime has been proved beyond a reasonable doubt. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. On this record, any rational trier of fact could have found the appellant guilty of an "attempt" to cause John Benson harm. 5 R.C. 2903.11(A)(2) provides in relevant part that: (A) No person shall knowingly: (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordinance, as defined in section 2923.11 of the Revised Code. - 9 - His second assignment of error is overruled. Judgment is affirmed. - 10 - 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. SWEENEY, P.J., AND PORTER, 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, .