COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70764 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION LORENZO HARRISON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-325794 JUDGMENT: Affirmed in Part, and Reversed and Vacated in Part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT M. INGERSOLL, ESQ. Cuyahoga County Prosecutor 100 Lakeside Place 1200 West Third Street JOHN F. CORRIGAN, ESQ. Cleveland, Ohio 44113 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Lorenzo Harrison, appeals from the judgment of the trial court wherein a jury found defendant guilty of the lesser included offense of negligent assault. On appeal, defendant raises three assignments of error which argue that the trial court erred by (1) requiring defendant to pay the victim's medical bills as part of defendant's restitution, (2) making remarks throughout trial that were prejudicial to defendant, and (3) failing to instruct the jury on self-defense. We find merit to defendant's first assignment only. Therefore we affirm in part and reverse and vacate in part. The relevant facts follow. This case arose from an incident in which the victim, Albert Tillman, was struck by a van driven by defendant. On the date of the offense, defendant went to the beach with various friends and family. The group travelled in three vehicles. On the way home, one of the cars, with four women inside, stopped outside a deli, where Eric Buchanon and Albert Tillman were standing. Buchanon started arguing with the women. After this argument, Buchanon raised a beer bottle, which was snatched from him. He then retrieved a second bottle and threw it at the car as it drove away. After this incident, defendant, who was parked behind the car, drove up on the sidewalk and hit Albert Tillman with the van. Defendant drove away and did not report anything to the police. He claimed he did not know that he hit Tillman. - 3 - James Harris, a witness to the event, testified that the van backed up and then drove over Tillman. He stated the van rocked as it drove over Tillman's body. Another witness, Rashid Johnson, described the van's action as "chasing" people. (Tr. 305.) Reginald Woodson testified that no people or cars impeded the parked van from driving away. Tillman was unconscious for a week and had to stay in the hospital for 43 days with a broken back, dislocated hip, and fractured femur. Defendant testified he was familiar with the group on the corner because it had sold drugs near defendant's residence. Fearful of what the boys would do, he wanted to drive away as fast as possible. Defendant added that when the car in front of them drove away, one of the men on the corner raised a gun. Because of traffic on his left and a car parked behind him, defendant decided to drive on the curb in order to exit. During this episode, a passenger's side window of the van was shattered, his fiancee and children were screaming in the van, and she was cut in the face. Defendant was charged with felonious assault. The jury, however, found defendant guilty of the lesser included offense of negligent assault, a third degree misdemeanor. At sentencing, the trial court sentenced defendant to a maximum jail term of sixty days and the maximum fine of $500. Additionally, the court also ordered defendant to pay all the victim's medical expenses - 4 - as restitution. Defendant timely appealed and raised the following assignments of error. I. THE TRIAL COURT ERRED WHEN IT ORDERED LORENZO HARRISON TO PAY ALBERT TILLMAN'S MEDICAL BILLS AS RESTITUTION IN THE CASE AT BAR. This assignment has merit. Defendant was found guilty of negligent assault, a third degree misdemeanor. Under R.C. 2929.31(E), a court can order a defendant who is convicted of a misdemeanor to pay all or part of the property damage as part of restitution. However, under this statute restitution cannot include medical expenses. State v. Wohlgemuth (1990), 66 Ohio App.3d 195. The state has conceded this point. Accordingly, defendant's first assignment is well taken. II. THE TRIAL COURT DENIED LORENZO HARRISON OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY ITS REPEATED AND IMPROPER COMMENTS ALL OF WHICH DENIGRATED MR. HARRISON'S DEFENSE COUNSEL. In this assignment, defendant argues that the trial court denied defendant a fair trial when it made various prejudicial remarks to defense counsel in front of the jury. This argument lacks merit. In State v. Wade (1978), 53 Ohio St.2d 182, 188, the trial court set forth the following standard for determining whether a trial judge's remarks are prejudicial: (1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel. - 5 - Defendant provides a litany of statements by the judge which he claims denied him a fair trial. These statements all relate to the judge's concern with going to trial quickly and presenting only relevant testimony: for example, "Is it relevant who took the bottle from him? *** Let's move it along." (Tr. 285.) "Excuse me. Haven't we been through this all before? *** I'm beginning to hear questions the second time. I'm sort of getting bored. Let's move on. Ask some fresh questions." (Tr. 220- 221.) "Let's move this along or we're going to have these jurors here until I go on my vacation in April." (Tr. 432.) "Because it's 20 after 2, and I've determined that the information is useless to this jury. That's why." (Tr. 534-535.) While the court may have been unrefined in the way it expressed impatience with defense counsel, the remarks did not prejudice defendant or deny him a fair trial. The remarks all dealt with the court's desire to have an efficient trial. None of these statements gave the jury any indication as to the court's opinion of defendant's case. Moreover, the trial judge was evenhanded in his comments, as is illustrated in his referring to the victim and the state's witnesses as "dope boys" and "thugs." Accordingly, this assignment is overruled. III. THE TRIAL COURT DENIED LORENZO HARRISON A FAIR TRIAL BEFORE A PROPERLY CHARGED JURY, WHEN IT REFUSED TO GIVE HARRISON'S REQUESTED SELF-DEFENSE INSTRUCTION TO THE JURY. In this assignment, defendant argues that the trial court erred by not instructing the jury on the affirmative defense of self-defense. This argument lacks merit. - 6 - The trial court instructed the jury on the defense of accident. In State v. Champion (1924), 109 Ohio St. 281, the Ohio Supreme Court held that a defendant is not entitled to an instruction on both self-defense and accident. The Court, Justice Wanamaker writing, stated at 286-287 as follows: The very fact that requests were asked both on accidental homicide and self-defense, under the same evidence, presents a most peculiar paradox--a direct contradiction in terms and truth. Self-defense presumes intentional, willful use of force to repel force or escape force. Accidental force or shooting is exactly contrary, wholly unintentional and unwillful. It is similar to a person saying in one breath, "I was insane at the time of the homicide," and in the next breath, "I shot in the exercise of my right of self- defense, with reasonable grounds therefor, as they appeared to me." If the evidence warrants, the defendant has a right to one request or the other. By no manner of logic, law, or legerdemain is he entitled to both. Appellate courts continue to apply this precedent. State v. LaFreniere (1993), 85 Ohio App.3d 840; State v. Barnd (1993), 85 Ohio App.3d 254. In the case at bar, we see no reason to deviate from this rule. Accordingly, the trial court did not err in refusing to instruct the jury on self-defense. Judgment affirmed in part and reversed in part. The trial court's order that defendant pay the victim's medical bills is vacated. - 7 - It is ordered that appellee and appellant share the costs equally. The court finds there were reasonable grounds for this appeal. The trial court's order that defendant pay the victim's medical bills is vacated. 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. LEO M. SPELLACY, J., and ROCCO, J., CONCUR. DIANE KARPINSKI 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 .