COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69251 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : NADA P. ALVIS, aka NADA JONES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 28, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 315104 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor The Brownhoist Building TIMOTHY G. DOBECK, ESQ. 4403 St. Clair Avenue Assistant County Prosecutor Cleveland, Ohio 44103 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 4413 -2- PATRICIA ANN BLACKMON, P.J.: The issue before us is whether an accused is prejudiced by the trial court's failure to instruct a jury that she is under no duty to retreat under attack in her home when the facts also demonstrate her failure to prove she had a bona fide belief of imminent danger of death or great bodily harm. The trial court gave a general self-defense instruction that placed the duty to retreat on Nada Alvis, aka Nada Jones ("Jones"), defendant-appellant. Jones did not object to this instruction. The jury returned a verdict of guilty. Jones appeals and assigns the following errors for our review: I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INSTRUCTED THE JURY THAT THE APPELLANT HAD A DUTY TO RETREAT WHEN INSTRUCTING THE JURY ON THE ELEMENTS OF SELF-DEFENSE. THE APPELLANT WAS DENIED DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO THE ERRONEOUS JURY INSTRUCTION CONCERNING SELF-DEFENSE. III. THE TRIAL COURT IMPROPERLY EXCLUDED THE APPELLANT'S TESTIMONY CONCERNING HER STATE OF MIND CONCERNING HER FEAR OF THE DECEASED IN VIOLATION OF THE COURT'S JURY INSTRUCTIONS, EVID.R. 803 AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. We conclude the trial court's failure to instruct the jury that Jones had no duty to retreat did not affect the outcome of Jones' trial. We affirm the trial court's decision. The apposite facts follow. Jones strangled Idris Gail Hawkins with an iron cord after burning her with the iron several times about the face. Hawkins -3- died of ligature strangulation and her death was ruled a homicide. The State of Ohio ("State"), plaintiff-appellee, indicted Jones for murdering Hawkins and the case proceeded to trial. The facts at trial showed Jones and Hawkins were acquaintances who had known each other for two years. Hawkins frequently stayed at Jones' house as she did on the night she was murdered. On the night in question, Jones and Hawkins argued over Hawkins' lesbianism. Hawkins had on other occasions told Jones of her attraction to her. On the night of the murder they argued for hours. At 4:00 a.m., Jones told Hawkins she was tired and didn't want to continue the conversation. Jones also told her that she would have to leave. Hawkins continued talking and she brought up an issue that they had over a picture. Jones told Hawkins she tore the picture. Hawkins became angry and told Jones "[she] better pray to [her] maker, 'cause [Hawkins] was going to take [her] all the way out the box this time." Thereafter, Jones plugged in the iron. Hawkins came after Jones. Jones burned Hawkins with the iron. Hawkins fell to the floor and Jones wrapped the iron's cord around Jones' neck. While holding onto the cord, Jones dialed 911. On the 911 tape, Jones told the operator she was sitting on top of Hawkins with a cord around her neck, choking her. Jones also told the 911 operator that Hawkins would be dead if the police did not arrive soon. When the paramedics arrived, Hawkins was dead. During the trial Jones claimed self-defense and testified in her own defense. Jones testified she permitted Hawkins frequent -4- visits because she felt sorry for her. Jones said she only allowed Hawkins in her home when other people were present, except for the two instances where Hawkins stayed as a guest. According to Jones, she made exceptions on those occasions because she felt sorry for Hawkins. Jones believed "you don't turn anybody away whose in need." (TR. 422.) According to Jones, "[Hawkins] went all the way berserk, (sic)" when Jones told her that she had torn Hawkins' picture. (TR. 431.) When Hawkins came toward Jones, she burned Hawkins in the face. Jones said Hawkins kept coming at her so she continued to "burn her everywhere there was skin." (TR.184.) Jones testified that she wrapped the iron cord around Hawkins' neck in an attempt to make [Hawkins] unconscious, so she wouldn't be able to hurt her. (TR. 436.) Jones said she tightened her grip on the cord whenever Hawkins struggled with her. Jones said Hawkins "[bragged] about how many women she had took (sic) down and how she did them." Jones "didn't want to be one of those." Jones became afraid of Hawkins and felt she needed to protect herself, so she plugged in the iron. Jones further stated "[she] was trying to think what can (sic) [she] do to keep [Hawkins] off of [her]. *** [She] knew [she] had to hurt [Hawkins] to keep [Hawkins] from hurting [her]." (TR. 445.) Jones said she felt threatened even though Hawkins possessed no weapon of any sort. When Jones tried to explain that she felt that "[Hawkins'] body was a weapon, the state objected and the trial court sustained the objection. -5- Jones testified "[she] didn't intend to kill Gail." (TR. 440.) When asked if she choked Hawkins to kill her, Jones replied, "No, I wanted her to pass out and stop trying to fight me." Officer Tracy Cushler of the Cleveland Police Department testified Jones was read her rights and then questioned. Cushler said Jones asked, "what was taking so long to get the bitch out of her house." (TR. 88.) When Cushler explained they were waiting for the coroner's office to remove the body, Jones said, "She's dead, I killed her, good." (TR. 88.) On cross-examination, Cushler testified that Jones did not know Hawkins was dead. Cushler further stated that Jones also said it was not her intention to kill Hawkins, but to make her "pass out." (TR. 104.) Dr. Carlos Santoscoy, a pathologist and Deputy Coroner of the Cuyahoga County Coroner's Office, testified for the State. Dr. Santoscoy testified that his examination revealed injuries mostly on Hawkins' face, trunk, and extremities. (TR. 35.) His testimony included identification of second degree burns on Hawkins' face, arms, and torso. He also distinguished the burns from the numerous bee stings all over Hawkins' body. Dr. Santoscoy determined the cause of death to be ligature strangulation. At the close of the trial, the court instructed the jury on murder, the lesser included offense of voluntary manslaughter, and self-defense. The self-defense instruction was as follows: To establish self defense, the followings (sic) elements must be shown: (1) The defendant was not at fault in creating the situation giving rise to the prolonged noisy quarrel that ended in the victim's death. (2) The defendant had an honest belief that she was in imminent danger of death or great bodily harm, and that the only -6- means of escape from such danger was the use of such force. And, (3), the defendant must not have violated any duty to retreat or avoid the danger. *** (TR. 606.) On May 26, 1995, the jury returned a guilty verdict for the lesser included offense of voluntary manslaughter. Jones was sentenced to eight to twenty-five years in prison. She filed a motion for super shock probation, which was subsequently denied. This appeal followed. In her first assignment of error, Jones argues the trial court erred by including the duty to retreat as element of self-defense in its jury instructions. Specifically, Jones argues that, because she was in her own home when Hawkins attacked her, she had no duty to retreat. Our approach is governed by the Ohio Supreme Court's decision in State v. Long (1978), 53 Ohio St.2d 91 paragraph two of the syllabus. In State v. Long, the court held a jury instruction violative of R.C. 2901.05(A) does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. Id. The plain error rule applies to this case because Jones' lawyer failed to object to the self defense instruction by the trial court that placed a duty to retreat on Jones. In Ohio, one is not under a duty to retreat from attack in one's home. State v. Thomas (1977), 77 Ohio St.3d 323. State v. Walliford (1990), 49 Ohio St.3d 247. State v. McLeod (1948), 82 Ohio App. 155. -7- Thus, the question before us is whether, but for the error, Jones would have been found not guilty. On the facts of this case, we cannot reach this conclusion. "The elements of self-defense are cumulative. In order to prevail on the issue of self defense, the accused must show that he was not at fault in starting the affray, and that he had a bona fide belief that he faced imminent danger of death or great bodily harm and that his only means of escape was the use of such force, and that he violated no duty to retreat or avoid the danger. 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." State v. Jackson (1986), 22 Ohio St.3d 281, 284. Here Jones failed to show she was in imminent danger of death or great bodily harm, although she was entitled to the no duty instruction under State v. Thomas. In Jackson, the court held evidence that the jury rejected the defense by its verdict is sufficient to establish that the defendant has failed in her proof on the second self-defense prong. State v. Redding (March 5, 1992), Cuyahoga App. No. 59972, unreported (failure to instruct on no duty is harmless error when it is shown that the trier of fact rejected the defendant's evidence). Jones argued that we cannot reach this conclusion with any degree of certainty since the jury could have just as easily based its total decision on the question of whether Jones breached her duty to retreat as the trial court erroneously instructed. We disagree. Before the jury can reach the duty to retreat issue, -8- they must determine if the defendant is in imminent danger of death or great bodily harm. Jones' testimony establishes that she was not in imminent danger of death or great bodily harm. There is no evidence that Hawkins was armed. Nevertheless, Jones asked us to interpret Hawkins' words "take you all the way out of the box" to mean that Hawkins planned to kill Jones. These words alone are not sufficient to justify murdering an unarmed person. Consequently, we conclude Jones' first assigned error lacks merit. In her second assignment of error, Jones argues trial counsel's failure to object to the self defense instruction constituted ineffective assistance of counsel. Ineffective assistance of counsel exists when counsel's performance is deficient and the deficient performance is prejudicial. Strickland v. Washington (1984), 466 U.S. 668, 693. It is not necessary, however, to address both components of the analysis, if one component fails. Id. at 697. In other words, if Jones lacks sufficient evidence proving either deficient performance or prejudice, her whole claim for ineffective assistance of counsel fails. As discussed earlier, Jones did not prove she was in imminent danger of death or great bodily harm -- an essential element of her self-defense claim. This being the case, there is no reasonable probability the outcome of the trial would have been different had the trial counsel objected to the jury instruction on self-defense. See Strickland at 694. Thus, Jones has not shown that her defense was prejudiced. As a result, Jones' claim for ineffective -9- assistance of counsel fails, and her second assigned error lacks merit. In her third assignment of error, Jones argues the trial court improperly excluded testimony concerning her state of mind regarding her fear of Hawkins. Her assigned error is based on the following exchange: Q: And that's what you meant when you said that in your statement, that she didn't need a weapon, her body was her weapon? A: And she was bragging about how many women she had took down and how she did them. And I didn't want to be one of those. Q: Tell us about that. Mr. Dobeck: Objection, your honor. *** The Court: Sustained. *** (TR. 446-447.) We agree with Jones that she should have been allowed to give testimony regarding her fear. In fact, she did that when she stated the victim bragged about the number of "women she had taken down and how she did them." When the defense then asked "tell us about that," the trial court could limit that testimony, which it did. Consequently, we conclude the trial court did not abuse its discretion in not allowing Jones to give details of the victim's past action when such detailed testimony would have been offered for its truth and therefore, as hearsay. Jones argues that the testimony should have been admitted under Evidence Rule 803(1), (2), and (3) - present sense impression, excited utterance, and state of mind, respectively. -10- Jones misapplies these exceptions. Jones' testimony as to Hawkins' statement did not qualify as a present sense impression. It does not describe or explain an event or condition, during or immediately after such event or condition. The statement also does not qualify as an excited utterance. It does not relate to a startling event or condition while under the stress of excitement caused by the event or condition. Lastly, it is not a state of mind expression. The statement does not reflect Jones' then existing state of mind, emotion, sensation of physical condition. Consequently, the trial court did not abuse its discretion in ruling that this statement was inadmissible. Jones' third assigned error lacks merit. Judgment affirmed. -11- 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. DYKE, J., and KARPINSKI, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .