COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70281 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DENNIS BARBO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JANUARY 16, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-326130 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES R. WILLIS, ESQ. Cuyahoga County Prosecutor Courthouse Square Building MARK J. MAHONEY, Assistant Suite 350 Prosecuting Attorney 310 Lakeside Avenue, N.W. 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Dennis Barbo appeals from his conviction following a jury trial for felonious assault (R.C. 2903.11). Defendant contends that he was denied due process when the prosecution was permitted to attack the credibility of its own witness in final argument and that the trial court improperly instructed the jury on self defense and failed to grant defendant's motion for acquittal. We find no error and affirm. The charges arose from a business dispute between the victim, Carmen Messina, and defendant at the West Side Market where both men owned competing grocery stands. Messina testified that he owned and operated a deli stand beginning in 1991. In January 1995, he opened a bakery to complement his existing deli stand. This bakery expansion placed Messina in direct competition with defendant who operated several bakery stands throughout the Market. Both Messina and defendant were supplied bakery products by Orlando Baking Company. On the morning of June 12, 1995, Mr. Messina initiated a heated conversation with defendant at the Market regarding their dispute. He challenged defendant to step outside to fight. Upon realizing that defendant was not going to leave the market and fight outside, Messina testified that he turned around and was forcibly struck from behind by a baker's hook, a long thin metal rod defendant had been using to pull bread racks. Messina testified he was struck approximately five times and suffered a - 3 - series of bruises on his arm, head, shoulder and hand, which was supported by medical records in evidence. After the assault, Messina ran to his deli stand and attempted to arm himself with a knife and return to the scene, but was stopped and persuaded to wait for the police by Jerry Chucray, another vendor in the Market. Defendant left the Market and was arrested later that morning at another bakery he operated on West 25th Street. When arrested, defendant told police that the weapon used was in his car, that he had been involved in an altercation with Messina, but that he was provoked into doing it and things got carried away. The State produced three independent eyewitnesses who essentially testified that though Messina initiated a verbal altercation with defendant by calling him crude names, at no time did Messina strike or even attempt to punch defendant. Regina Traynor testified that she knew both defendant and Messina and was employed at the time of the assault by defendant. Ms. Traynor testified that defendant struck Messina four or five times as the victim was trying to avoid the blows and defend himself. At no time did she see Messina strike defendant. Jerry Chucray testified that he was acquainted with both defendant and Messina because Chucray operated his own stand in the Market. His meat shop was adjacent to one of Messina's and across from one of defendant's stands. Chucray stated that Messina was raising his voice, calling upon defendant to go outside and fight. After Messina kicked over some bread racks defendant began striking - 4 - Messina with a metal rod. Chucray testified that he did not see the victim punch or strike defendant or even place his hands on defendant. The testimony of Andrew Dione, an employee of Chucray, corroborated the aforementioned testimony of Chucray and Ms. Traynor. Defendant testified that Messina provoked him by accusing him of trying to get his bakery supplier to cut him off, inviting defendant outside to fight and kicking over his bread racks. Defendant testified he did not want to fight and that he reacted to protect himself when defendant kicked his bread racks on him. The court denied the defendant's motion to acquit and the jury found defendant guilty as charged. This timely appeal ensued. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE COURT ERRED AND THE ACCUSED WAS DENIED DUE PROCESS WHEN THE PROSECUTOR WAS EXPRESSLY ALLOWED TO ASSAIL THE CREDIBILITY OF A PROSECUTION WITNESS, WHO HAD PROVIDED TESTIMONY FAVORABLE TO THE ACCUSED. THIS COUNSEL ACCOMPLISHED BY ACTUALLY ACCUSING THE WITNESS OF NOT HAVING TOLD THE TRUTH. Defendant claims a denial of due process because the prosecutor attacked the credibility of a State's witness, Jerry Chucray, who was closest to the fray. This criticism related to the State's rebuttal on closing argument. Chucray had testified that defendant took five swings with the hook at the victim, but the first three missed while the last two struck the victim. (Tr. - 5 - 129). Defense counsel, in his closing argument, contended that because Chucray stated that defendant missed three times when he first swung the bread hook, Messina could have retreated from the confrontation. (Tr. 333-34). We have reviewed the prosecutor's rebuttal. From reading the transcript as a whole, it is apparent that the prosecution was demonstrating from the photographs of the victim's injuries that Messina was in fact hit more than twice. In passing, he attributed Chucray's testimony of three missed swings to his ten year association with defendant and "[h]e doesn't have to come in and tell the truth." (Tr. 335-38). In the present case, the jury was properly instructed that the opening and closing comments of the attorneys are not evidence, and cannot be considered as evidence. (Tr. 355-56). The jury was correctly instructed that they were the sole judges of the facts and of the credibility of the witnesses and that they could believe all or part of a witness' testimony. (Tr. 362-64). We are obliged to assume that the jury followed the court's instructions. State v. Wogenstahl (1996), 75 Ohio St.3d 344, 360; State v. Woodard (1993), 68 Ohio St.3d 70, 74; State v. DePew (1988), 38 Ohio St.3d 275, 284. We find defendant has suffered no prejudice from the prosecutor's comments. In any event, prosecutors are entitled to a certain latitude as to what the evidence has shown and what inferences can be drawn therefrom. State v. Richey (1992), 64 Ohio St.3d 353, 362 (citing - 6 - State v. Stephens [1970], 24 Ohio St.2d 76 and State v. Byrd [1987], 32 Ohio St.3d 79). Viewing the record as a whole, we find the prosecutor's comments were a fair interpretation of the disputed facts in evidence and his fleeting reference to Chucray not telling the truth did not rise to the level of a denial of due process or prevent defendant from having a fair trial. Assignment of Error I is overruled. II. THE COURT ERRED WHEN IT SUMMARILY REJECTED THE SELF-DEFENSE INSTRUCTION SUBMITTED BY THE DEFENSE. III. THE COURT ERRED WHEN IT FAILED TO FULLY, ADEQUATELY AND SUFFICIENTLY INSTRUCT THE JURY ON THE VARIOUS ELEMENTS OF THE DEFENSE OF SELF- DEFENSE. These assignments of error will be treated together as they both relate to the adequacy of the court's self defense charge to the jury. In the present case, the trial court fully instructed the jury on self defense. (Tr. 371-75). Defendant contends that the trial court failed to properly instruct on the "duty to retreat" aspect of self defense. Ohio law on self defense was well-stated in State v. Williford (1990), 49 Ohio St.3d 247, 249, as follows: Under Ohio law, self-defense is an affirmative defense. State v. Martin (1986), 21 Ohio St.3d 91, 21 OBR 386, 488 N.E.2d 166, affirmed Martin v. Ohio (1987), 480 U.S. 228. 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 - 7 - 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, 37 O.O. 522, 522-523, 80 N.E.2d 699, 700. "If the defendant fails to prove any one of these elements by 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, 455, 490 N.E.2d 893, 897, certiorari denied (1987), 480 U.S. 917. It is highly questionable under the law whether this defendant was entitled to any instruction on self defense in as much as all the necessary elements were not supported by the evidence. Although the victim clearly provoked the defendant by his bullying conduct, the undisputed evidence indicated that defendant was the first to escalate the episode to a physical attack after the victim had turned away. Defendant admitted that Messina never punched or touched him; he admitted he was not injured by any of Messina's actions. (Tr. 260-62). There was no credible evidence from the eyewitness testimony that would support a reasonable belief by defendant that he was in imminent danger of death or great bodily harm, justifying use of force as necessary to escape. Nor did defendant demonstrate that he did not violate a duty to retreat. The victim was not pressing the matter when the defendant became the aggressor attacking the unarmed Messina with the metal bread hook. Defendant admittedly swung several times until he made - 8 - contact with the cringing victim. In viewing the facts as presented, we find insufficient evidence to warrant a self defense instruction. State v. Napier (1995), 105 Ohio App.3d 713, 721; State v. Walker (1991), 74 Ohio App.3d 120, 122. Defendant can not complain of a favorable charge to which he was not entitled. Further elaboration on the duty to retreat would only have prejudiced defendant because, in the circumstances of this case, he did have a duty to retreat rather than swing at Messina. Nevertheless, assuming arguendo that defendant was entitled to the charge, should the jury have been instructed on when and where there exists a duty to retreat as defendant contends. We think not. The assault in this case occurred in a commercial place of business - at the West Side Market. This is unlike a case where a defendant is attacked in his home where he customarily has no duty to retreat. See State v. Williford, supra at 250 (no duty to retreat from the home). Defendant points to no case law in support of his position that a person at his place of business is under no duty to retreat. The defendant is attempting to set forth the argument that if a person is in a place where he has a legitimate and legal right to be, then he has no duty to retreat. This argument has not found favor as it is "clearly an over-broad and incorrect statement of the law on the duty to retreat." State v. Jackson (1986), 22 Ohio St.3d 281, 283-84. The special considerations that attach to a person's long-recognized right to be safe, secure and at peace in - 9 - his own home, do not have the same force when applied to the streets, or a public place. Cleveland v. Hill (1989), 63 Ohio App.3d 194, 199 (the duty to retreat extends to the driveway of one's home); State v. Gardner (March 30, 1989), Cuyahoga App. No. 55171, unreported (court properly rejected instruction that business owner had no duty to retreat from the parking lot of his business). See, also, State v. Hill (July 16, 1992), Cuyahoga App. No. 60736, unreported (the duty to retreat extends to one's place of employment). Assignment of Error II and III are overruled. IV. THE COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE UNDER FAVOR OF RULES 29(B) AND 29(C), OHIO RULES OF CRIMINAL PROCEDURE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 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 a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: - 10 - An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60; State v. Ballow (1996), 76 Ohio St.3d 244, 249. There is no doubt that defendant struck Messina a number of times with a bread hook inflicting injuries requiring medical treatment. The issues of self defense were vigorously argued by both parties and an abundance of testimonial evidence was elicited on the subject from both sides. It was plainly sufficient to put the issue squarely before a jury. Viewing the evidence most favorably to the prosecution, we can find no error in the denial of the motion to acquit. There was sufficient evidence presented to support the conviction on felonious assault. Assignment of Error IV is overruled. 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 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. DYKE, J., and NAHRA, J., CONCUR. JAMES M. PORTER 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 journalization of this court's announcement of decision by the .