COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69310 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JUAN D. ROBERTS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 9, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court No. CR-310666 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES LARRY W. ZUKERMAN Cuyahoga County Prosecutor Fromson & Zukerman RICHARD J. BOMBIK, Assistant 160 Signature Square 1 8th Floor - Justice Center 25201 Chagrin Boulevard 1200 Ontario Street Cleveland, Ohio 44122 Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Juan D. Roberts appeals from his jury conviction of involuntary manslaughter with a firearm specification in the shooting death of Gary Austin. On Saturday, April 2, 1994, around 6:00 p.m., Roberts drove his blue 1983 Oldsmobile Delta '88 slowly through Gordon Park in Cleveland, looking for his friend, Ogden Tatum. Roberts noticed a group of approximately 30-40 people congregated on a grassy hill adjacent to the parking areas. One member of that group, Kenneth Brown, who was standing at the curb, next to the victim, Gary Austin, suddenly threw a full glass bottle of Seagrims Gin and Juice, which shattered on the right rear quarter panel of Roberts' car. Roberts, then turned his vehicle around, and while slowly heading towards the exit, took a 380 caliber semi- automatic handgun from under his seat, laid it across his left arm, pointed it out the drivers' side window of the car and fired three times into the crowd. One of the bullets struck Gary Austin in the head and killed him. The bullet traveled through Austin's head, entering Austin's left temple and exiting his right temple, slightly upwards and towards the front of his head. Roberts immediately sped from the scene, as Austin's friends rushed him to Mt. Sinai Hospital, where at 6:20 p.m., doctors pronounced him dead. - 3 - The next day, upon hearing news reports of Austin's death, Roberts got scared and left for Atlanta, Georgia, that evening. Several members of the group at Gordon Park, after viewing a photo array at the police station, identified Roberts as the gunman. Thereafter, on May 12, 1994, the grand jury indicted Roberts for murder and because his whereabouts were unknown, the court issued a capias for his arrest. Almost a year later, on January 8, 1995, Atlanta authorities arrested Roberts and returned him to Cleveland for trial. At trial, Roberts testifying in his defense, maintained that on June 2, 1994, while at Gordon Park, he fired a gun into the air, trying to scare the crowd of people gathered there. The jury, however, after hearing all the evidence, found Roberts not guilty of murder, but guilty of the lesser but included offense of involuntary manslaughter with a firearm specification. Roberts now appeals from his conviction and assigns four errors for our review. Roberts' first assignment of error states: I. WHETHER THE FAILURE BY DEFENSE COUNSEL TO REQUEST A SELF-DEFENSE JURY INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL? - 4 - Roberts asserts that his trial counsel's failure to request a self-defense jury instruction constituted ineffective assistance of counsel. The State maintains that Roberts was not entitled to a self- defense instruction and, therefore, trial counsel's failure to request this instruction did not fall below an objective standard of reasonable representation. The issue for our review is whether trial counsel's failure to request a self-defense jury instruction constituted ineffective assistance of counsel. In State v. Bradley (1989), 42 Ohio St.3d 136, 137, the Supreme Court set forth in its syllabus the following two step inquiry for the determination of ineffective assistance of counsel: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O. 3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 689, noted: - 5 - Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Michel v. Louisiana (1955) 350 U.S. 91, 101. There are countless ways to provide effective assistance in any given case. Even the best defense criminal defense attorneys would not defend a particular client the same way. The court further noted at 690-691 that: *** strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable ***. We further note that when there is no demonstration that counsel failed to research the facts or the law, or that he was ignorant of a crucial defense and counsel makes a tactical choice, the reviewing court defers to counsel's judgment in the matter. State v. Clayton (1980), 62 Ohio St. 2d 45, 49. The Ohio Supreme court has recognized that if counsel for strategic reasons, decides not to pursue every possible trial strategy, defendant is not denied effective assistance of counsel. State v. Brown (1988), 38 Ohio St.3d 305,319; State v. Johnson (1986), 24 Ohio St.3d 87. To establish self-defense, each of 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 the use of such force; and (3) the slayer must not - 6 - have violated any duty to retreat or avoid the danger. State v. Robbins (1979), 58 Ohio St.2d 74, State v. Melchior, 56 Ohio St.2d 15. Thus, for self-defense to become part of this case, Roberts would have had to admit intentionally shooting Austin because of a bona fide belief that he was in imminent danger of death and prove that his only means of escape was by using deadly force and demonstrate he had no duty to retreat or avoid the danger. Roberts, however, testified that he shot into the air to scare the crowd gathered at Gordon Park and did not intend to shoot anyone, which is not consistent with any theory of self-defense. Consistent with Roberts' testimony, defense counsel obviously decided to assert that the bullet accidentally hit and killed Austin, which appears to be a valid defense to a murder charge. We are not unmindful that if Roberts admitted that he intentionally shot Austin in self-defense and if the jury did not believe him, Roberts may have been convicted of the more serious offense of murder instead of the lesser offense of involuntary manslaughter. Finally we note that Roberts has not established that his trial counsel failed to make a thorough investigation of the law and facts in this case prior to establishing a defense strategy. Based on the evidence presented, we cannot conclude that counsel's performance fell below an objective standard of reasonableness in this instance. - 7 - Additionally, since the record does not reflect all of the elements of self-defense are present in this case, our review does not reveal that Roberts met his burden to establish prejudice arising from deficient performance by counsel because he cannot establish a reasonable probability of a different result at trial had this strategy been employed. We therefore conclude that defense counsel's failure to request a self-defense jury instruction did not constitute ineffective assistance of counsel because counsel's performance did not fall below the standard of reasonable representation and appellant failed to prove any prejudice nor a reasonable probability of a different result at trial. Accordingly, this assignment of error is overruled. Roberts' second assignment of error states: II. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INCLUDE IN THE JURY INSTRUCTIONS AN INSTRUCTION ON SELF-DEFENSE? [sic] Roberts argues that the trial court committed plain error by failing to instruct the jury on self-defense thereby denying him a fair trial. The State urges that Roberts did not meet the essential elements of a self-defense jury instruction and therefore the - 8 - trial court's failure to give this instruction did not constitute plain error. The issue then for our resolution is whether the trial court committed plain error by failing to give a self-defense jury instruction in this case. In the first assignment of error, we set forth elements of self-defense which a defendant must prove by a preponderance of the evidence. See Martin v. Ohio (1987), 480 U.S. 228. A trial court must fully and completely give the jury all the instructions which are necessary and relevant for it to weigh the evidence and discharge its duty as fact finder. State v. Comen (1990), 50 Ohio St.3d 206. However, the trial court's instructions to the jury should address the actual issues in the case as shown by the evidence and the pleadings. State v. Guster (1981), 66 Ohio St.2d 266. Under Crim. R. 30(A), the failure to request or object to jury instructions waives any error relating to the instructions except in the event of plain error. See State v. Underwood (1983), 3 Ohio St.3d 12, State v. Sims (1982), 3 Ohio App.3d 331, and State v. Williams (1977), 51 Ohio St.2d 112. A defective jury instruction does not rise to the level of plain error unless it can be shown that the outcome of the trial clearly would have been otherwise if the instruction was properly given. Cleveland v. Buckley (1990), 67 Ohio App.3d 799. - 9 - In this instance, Roberts neither requested a self-defense jury instruction or objected to the court's failure to give this instruction. In addition, the facts and the record in the case reflect that Roberts failed in his burden of proof to establish that he was in imminent danger of death or about to receive great bodily harm and that his only means of escape was the use of deadly force. Testimony elicited from witnesses did not prove the existence of any other weapons at the scene or that either Austin or his friends were pursuing or attempting to harm Roberts. As he fired the gun, Roberts sat in the driver's seat of his automobile and at all times possessed the ability to drive out of the park to avoid further incident. Here, the record is devoid of any evidence that would establish that Roberts' only means of escape was by shooting Austin and, therefore, Roberts also violated his duty to retreat or avoid the danger. Accordingly, because Roberts failed to establish each of the elements of self-defense by a preponderance of evidence, and because the court is only required to give instructions which address the actual issues in the case as shown by the evidence and the pleadings, the trial court did not commit plain error in this instance by failing to instruct the jury on self-defense. Hence, we find no merit to this assignment of error and it is therefore overruled. The third assignment of error states: - 10 - III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED HIS MOTION TO DISMISS PURSUANT TO CRIM. R. 29 WHERE THE STATE HAD FAILED TO PROVE THE EXISTENCE OF THE REQUISITE INDEPENDENT UNDERLYING FELONY. Roberts asserts that the trial court erred in denying his Crim. R. 29 motion for acquittal because the prosecution failed to provide sufficient evidence on each element of involuntary manslaughter and, further, that the involuntary manslaughter conviction is not supported by sufficient evidence because the state failed to prove the elements of felonious assault beyond a reasonable doubt. The State contends that the attack on sufficiency of evidence is an attack on credibility of witnesses and urges the evidence supports the convictions. Here, then, the issues presented for our review are whether trial court properly denied motion for acquittal and whether the conviction for involuntary manslaughter is supported by sufficient evidence. Despite Roberts' request for us to review the denial of his Crim. R. 29 motion in terms of involuntary manslaughter and felonious assault, we note that at the point in trial when the court considered this motion, the only pending charge against Roberts was murder. The lesser but included offense of - 11 - involuntary manslaughter was not introduced until the court charged the jury at the conclusion of closing arguments. Hence, our review of the Crim. R. 29 motion necessarily relates to the elements of murder. Crim. R. 29 provides in relevant part: *** The court *** shall order the entry of a judgment of acquittal*** if the evidence is insufficient to sustain a conviction of such offense ***. R.C. 2903.02 defines the offense of murder as purposely causing the death of another. In its consideration of the Crim. R. 29 motion, the court's obligation is to construe all evidence most strongly in favor of the State. See State v. Martin (1983), 20 Ohio App.3d 172, 174. Here, the evidence demonstrated that appellant fired three successive shots from the driver's seat of his car toward a crowd of people. The law is that purpose is a decision of the mind to do an act with the conscious objective of producing a specific result. Since we cannot look into the mind of another, purpose is determined from the manner in which an act is done and the means or weapon used together will all other facts and circumstances in evidence. Finally, if a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, the purpose to cause death may be inferred from the use of the weapon. See 4 Ohio Jury Instructions (1995) Section 409.01. - 12 - Hence, from our review of the transcript of proceedings, we conclude the trial court did not err in overruling the appellant's motion for acquittal at that point in the trial. A more compelling reason exists however, for us to reject this claim: Roberts waived his right to a directed verdict at the close of the state's case because he introduced evidence in his case in chief and thereafter failed to renew his motion for acquittal at the close of all the evidence. See State v. Higgins (1990), 61 Ohio App.3d 414, 417-418 citing State v. Houser (1942), 73 Ohio App. 115, State v. Durham (1976), 49 Ohio App.2d 231, 236, State v. Whitmeyer (1984), 20 Ohio App.3d 279, 282, and State v. Parks (1982), 7 Ohio App.3d 276, 279. Roberts also argues that his conviction of involuntary manslaughter is not supported by sufficient evidence of the underlying felony of felonious assault. A sufficiency question is a question of law for the court to decide upon a consideration of due process where we are constrained to examine all the evidence and inferences drawn therefrom, in a light most favorable to the state and determine whether "any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt." State v. Martin (1983), 20 Ohio App.3d 172, 175, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, State v. Sorgee (1978), 54 Ohio St.2d 464 and State v. Robinson (1955), 162 Ohio St. 486. - 13 - The test for sufficiency of the evidence raises a question of law to be decided by the court before the jury may receive and consider the charged offense. State v. Martin, supra. Here, in order to establish the crime of involuntary manslaughter, the State must prove that Roberts caused the death of another while knowingly causing physical harm by means of a deadly weapon. Roberts claims the evidence is insufficient to establish the elements of felonious assault. In this case, Roberts admitted his presence at the park and that he discharged a weapon three times; witnesses established that the shots were fired in the direction of the crowd. The evidence further showed that Austin was not physically harmed prior to the discharge of the weapon, but began bleeding from his head and fell to the ground immediately thereafter, and died twenty minutes later at Mt. Sinai Hospital. A reasonable trier of fact could find from these facts that Roberts caused Austin's death while knowingly causing physical harm by means of a deadly weapon. In conformity with this analysis, we conclude that the trial court properly rejected the Crim. R. 29 motion made regarding the original murder charge, and that Roberts has waived his right to a directed verdict by introducing evidence in his case in chief, and failing to renew his motion for acquittal at the close of all the evidence and that Roberts' conviction is supported by evidence upon which a rational trier of fact could have found all - 14 - the essential elements of involuntary manslaughter. Accordingly, this assignment of error is overruled. Roberts' fourth assignment of error states: IV. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Roberts asserts that the verdict of the jury is against the manifest weight of the evidence because the prosecution failed to prove beyond a reasonable doubt that Roberts caused Austin's death. The State maintains that the verdict of the jury is not against the manifest weight of the evidence. The issue then presented by this assignment of error is whether the jury verdict is against the manifest weight of the evidence. In State v. Martin, supra, the court set forth the following test for the determination of whether a jury verdict is against the manifest weight of the evidence: *** 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against - 15 - the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42; ***. An inquiry into whether jury verdict is against the manifest weight of the evidence then involves a determination of whether the jury properly considered the evidence prior to rendering its conviction. In this case, the court charged the jury on both murder and the lesser included offense of involuntary manslaughter. Involuntary manslaughter is defined as causing the death of another as a proximate result of the offender's committing a felony. R.C. 2903.04. In this case, the felony is felonious assault, defined as causing physical harm to another by means of a deadly weapon. R.C. 2903.11. Given the known facts in this case, the only issue presented is whether Roberts shot upward or directly into the crowd. However, no dispute exists that Austin was killed by one of the three shots and that Roberts left for Georgia and remained there until returned on the outstanding capias for trial, almost one year later. After reviewing the entire record, weighing the evidence and all reasonable inferences, considering the credibility of witnesses and resolving conflicts in the evidence, we cannot conclude in this case that the jury lost its way and created a manifest miscarriage of justice. Accordingly, we overrule this assignment of error. - 16 - In accordance with the foregoing analysis, the judgment of the trial court is affirmed. Judgment affirmed. - 17 - 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. BLACKMON, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .