COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70437 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ANTHONY MITCHELL : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-328480 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD M. WALSH ELEANORE HILOW Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES J. McDONNELL 936 Terminal Tower Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: Anthony Mitchell appeals from a judgment entry of the Cuyahoga County Common Pleas Court entered pursuant to a jury verdict finding him guilty of the murder of Armando Fagaro and the attempted murder of Fagaro's brother-in-law, Marcello Cetera. Fagaro, a citizen of Italy, met nineteen-year-old Laura Cetera, an Italian-American, in Italy in 1993. The two developed a relationship over the next several years while Laura visited Italy. They arrived in Cleveland, Ohio, and were married on September 15, 1995, at the Cuyahoga County Justice Center. In celebration of their wedding, the couple and her brother, Marcello, spent the evening of September 18, 1995 in the Cleveland's Flats Entertainment District. After patronizing several bars and restaurants, they concluded their evening at Panini's Waterfront Bar and Grill around 2:30 a.m. where Marcello had previously worked. As Fagaro and Laura sat eating pizza and Marcello stood at the bar talking to friends, Anthony Mitchell entered the bar, approaching Marcello and asking him to light his cigarette and begging him for some change. Marcello lit the cigarette, but declined to give Mitchell any money. Mitchell then approached several other patrons, including Fagaro and Laura. Upon seeing this, Marcello confronted Mitchell and told him to leave the couple alone. Marcello then requested Christopher Gregg, the assistant manager of the bar, to do - 4 - something about Mitchell. Since Gregg declined Marcello's request, Marcello again confronted Mitchell and asked him to leave. An argument ensued between the two and Mitchell punched Marcello in the face and in response, Marcello placed him in a headlock and started punching him. Upon seeing this, Gregg jumped over the bar, grabbed the two men and pushed them up against the wall, trying to pull them apart. At some point Mitchell pulled out a small knife and began erratically waving it about. Fagaro rushed into the skirmish, and Gregg yelled that Fagaro had been stabbed. Then Fagaro, holding his chest, fell face down on the floor as Mitchell ran out of the bar towards Old River Road. Four men, including Joe Finding, a security guard working for the bar next door called The Basement, chased Mitchell down Old River Road to West 10th Street. Once at West 10th Street, Mitchell stopped, held the men off with a knife, and then began running again. The four men finally found Mitchell hiding in a large drain tile and Finding sprayed him with mace. Finally, the men surrounded Mitchell at West 10th Street and Front Street where the police arrived and arrested him. Mitchell, however, presented a different account of the evening. According to Mitchell, he arrived at Panini's around 2:30 a.m., after patronizing several other bars in the Flats area, because he had heard that Panini's was giving away free - 5 - pizza. Mitchell entered the bar, saw an acquaintance and while speaking with him, heard Marcello say "Get these bums out of here." Mitchell and his acquittance started to walk towards the door, but then Mitchell stopped and said to Marcello "Who are you calling bums?" In response, Mitchell claimed Marcello called him a "nigger" and so Mitchell punched him. Marcello then placed Mitchell in a headlock and a group of Marcello's friends rushed Mitchell and pinned him up against the wall where he was unable to escape and feared that they were going to hurt him. Consequently, Mitchell pulled a small screwdriver out of his pocket and waived it about to try and keep them off him, but never made any physical contact with anyone. Finally, he ran out the door and four men began to chase him down Old River Road. At some point during the chase, Mitchell stopped and once again began waving his screwdriver to try and hold the men off of him. Then the police arrived and arrested him. Although Mitchell only had a screwdriver on his person when the police arrested him, the four men found a knife in a grassy area at West 10th Street and Front Street. Thereafter, EMS rushed Fagaro to Metro Health Medical Center where doctors pronounced him dead at 3:44 a.m. on September 19, 1994, from a stab wound to the chest which perforated the heart. An ambulance also rushed Marcello and Gregg to Metro Health where they were each treated for three stab wounds. - 6 - On September 27, 1995, a grand jury indicted Mitchell on three counts: one for the murder of Fagaro; another for the attempted murder of Marcello Cetera; and the third for the attempted murder of Gregg. Trial began on February 12, 1996, and before the judge submitted the case to the jury, defense counsel requested a self- defense instruction. After hearing arguments on the issue, the trial court denied the request. Thereafter, on February 16, 1996, the jury returned guilty verdicts as to the murder of Fagaro and attempted murder of Gregg, but not guilty as to the attempted murder of Cetera. The following day, the trial court sentenced Mitchell to fifteen years to life on the murder charge consecutive with ten years actual incarceration on the attempted murder. Mitchell now appeals his convictions and assigns the following error of our review: THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT'S REQUEST FOR AN INSTRUCTION ON SELF- DEFENSE. Mitchell submits that since he established the three requisite elements of the affirmative defense of self-defense, the trial court erred in denying his request for a jury instruction on self-defense. The state contends however that in order to establish self- defense, Mitchell must have first acknowledged committing the act and since Mitchell maintained throughout his testimony that he - 7 - did not stab anyone, the trial court properly denied his request for a jury instruction on self-defense. The issue then for our determination is then whether the trial court erred in denying Mitchell's request for a jury instruction on the issue of self-defense under the facts particular in this case. In State v. Williford (1990), 49 Ohio St.3d 247, the Ohio Supreme Court explained the law of self-defense: Under Ohio law, self-defense is an affirmative defense. State v. Martin (1986), 21 Ohio St.3d 91, 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 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, 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. "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, cert. denied (1987) 480 U.S. 917. R.C. 2901.05 states in pertinent part: ***The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused. Further "where there is sufficient evidence on the issue[] of self-defense***, the trial court must charge the jury on [the] - 8 - issue[]. (Citations omitted.). State v. Ervin (1991), 75 Ohio App.3d 275, 279. In this case, a review of the record reveals that Mitchell testified that he merely waved a small screwdriver around and that he punched Marcello. Throughout his testimony, he repeatedly denied having a knife in his possession on that night or stabbing anyone. The affirmative defense of self-defense places a burden on the defendant to prove by a preponderance of the evidence all of the elements of that defense. Not only has Mitchell denied possessing a knife on the night of the incident, he has never actually admitted to stabbing anyone or using deadly force against anyone. Because this evidence is not contained in the transcript, Mitchell was not entitled to a jury instruction on self-defense and the trial court did not err in refusing this jury instruction. Accordingly, this assignment of error is overruled and the convictions are affirmed. Judgment affirmed. - 9 - 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 MATIA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .