COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71236 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GREGORY SIMS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: June 12, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-331002. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael S. Nolan, Esq. Richard A. Bell, Esq. Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Peter F. Shenyey, Esq. 620 Terminal Tower 50 Public Square Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Gregory Sims, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-331002, of the offense of voluntary manslaughter in violation of R.C. 2903.03. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On October 16, 1995, Gregory Sims, defendant-appellant, killed Charles Buckner by stabbing Mr. Buckner in the right abdominal groin area with a knife that had a five-inch long blade severing the victim's artery causing death by exsanguination. On November 30, 1995, defendant-appellant was indicted by the Cuyahoga County Grand Jury on a single count of murder in violation of R.C. 2903.02. On December 5, 1995, defendant-appellant was arraigned whereupon a plea of not guilty was entered to the indictment. A jury trial began on June 3, 1996. At trial, it was determined that, on the date in question, Charles Buckner and his wife Kimberly lived in apartment 29 at 13777 Euclid Avenue in East Cleveland, Ohio. Dorothea Thomas, defendant-appellant's girlfriend at the time, also lived in the same building in apartment 11. Defendant-appellant, who lived with his mother in Cleveland Heights, was known to occasionally stay at Ms. Thomas' apartment during this time period. Mrs. Kimberly Buckner, the wife of the victim, was the central witness for the state. Mrs. Buckner testified that defendant- -3- appellant owed her five dollars from a ten dollar loan. Mrs. Buckner repeatedly requested repayment of the loan without success. On the day of the killing, Mrs. Buckner encountered defendant- appellant on the second floor landing at approximately 10:30 p.m. Defendant-appellant allegedly asked Mrs. Buckner where Ms. Thomas was. Mrs. Buckner responded that she did not know, to which defendant-appellant replied, "Bitch, you know where she is." Mrs. Buckner's response to this statement was, "I know you owe me five dollars." Defendant-appellant then allegedly punched Mrs. Buckner in the face. Mrs. Buckner shoved defendant-appellant against the wall, he fell to the ground and Mrs. Buckner observed what appeared to be a knife fall from defendant-appellant's pocket. As Mrs. Buckner turned to leave, she observed her husband, Charles Buckner, run past her in the hallway. When she turned around, he and defendant-appellant were fighting and throwing punches. Mrs. Buckner then saw her husband throw up his hands and say, "Kim, call the police because I've been stabbed." Mrs. Buckner ran to the nearest pay phone and dialed 911. Despite a prompt response by the East Cleveland Police Department and emergency medical service personal, defendant-appellant was found dead on the apartment stairwell. The East Cleveland Police investigation focused upon defendant- appellant as the prime suspect in the killing. One day after the victim's death, the police discovered the alleged weapon used by defendant-appellant on a nearby rooftop. Apparently, defendant- -4- appellant had thrown the knife out of Ms. Thomas' apartment window while fleeing from the scene. Dr. Stanley Seligman, a deputy coroner with the Cuyahoga County Coroner's Office, testified that he performed the autopsy on Charles Buckner. Dr. Seligman concluded that Mr. Buckner died of exsanguination, a loss of blood, as a result of a five-inch deep stab wound to the groin which severed a major artery in the victim's leg. This wound was consistent with the knife discovered by the East Cleveland Police Department. Defendant-appellant testified on his own behalf. Defendant- appellant maintained that he did encounter Mrs. Buckner in the hallway. When Mrs. Buckner asked for five dollars from defendant- appellant, he denied owing it to her and uncomplimentary remarks were exchanged. Defendant-appellant stated that, the next thing he knew, he was hit on the neck from behind by an unknown assailant. The assailant then spun defendant-appellant around into a crouching position. At this point, defendant-appellant reached into his pocket, pulled out the knife and "stuck" Charles Buckner in the groin area. Defendant-appellant maintained that he did not know that the assailant was Charles Buckner until after the stabbing at which point defendant-appellant fled from the scene with encouragement from Ms. Thomas. Prior to leaving the apartment building, defendant-appellant admitted to tossing the knife in question out of Ms. Thomas' apartment window. Defendant-appellant stated throughout his testimony that he did not intend to kill Charles -5- Buckner but was merely defending himself from the acts of an aggressor. At the conclusion of trial and closing arguments, the trial court instructed the jury on the charges of murder, R.C. 2903.02, voluntary manslaughter, R.C. 2903.03 and the affirmative defense of self-defense. No objection was made by either party to the trial court's jury instructions. On June 7, 1996, the jury returned a verdict of not guilty of the offense of murder and a verdict of guilty of the offense of voluntary manslaughter. Defendant-appellant was sentenced by the trial court to a term of five to twenty-five years imprisonment. On September 5, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Gregory Sims', defendant-appellant's, first assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE OF SELF[-]DEFENSE TO THE CHANGE OF VOLUNTARY MANSLAUGHTER. A. THE ISSUE RAISED: SELF-DEFENSE JURY INSTRUCTION. Defendant-appellant argues, through his initial assignment of error, that the trial court committed plain error by failing to specifically instruct the jury that self-defense is an affirmative defense to the charge of voluntary manslaughter. Defendant- appellant focuses upon the following jury charge by the trial court: -6- If the defendant fails to establish the defense of self-defense, the State still must prove all of the elements of the crime charged by proof beyond a reasonable doubt. If you find that the State proved beyond a reasonable doubt all of the essential elements of the crime of murder and that the defendant failed to prove by a preponderance of the evidence the defense of self-defense, then your verdict must be guilty as to that offense. If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of the crime of murder, or if you find the defendant proved by a preponderance of the evidence the defense of self-defense,then you must find the defendant not guilty as to that offense. Punishment. You may not discuss or consider the subject of punishment. (Tr. 428.) It is defendant-appellant's position that, in light of the trial court's instruction, it is possible that the jury mistakenly believed that self-defense was an affirmative defense to the charge of murder but not to the charge of voluntary manslaughter. Defendant-appellant also theorizes that the charge in question could have confused the jury in believing that the offense of voluntary manslaughter was equivalent to self-defense. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR JURY INSTRUCTIONS. A charge to the jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury -7- by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.2d 10, 12. It is well established that a trial court should confine its instructions to the issues raised by the pleadings and the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. In Ohio, it is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287. However, requested instructions should ordinarily be given if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. However, the trial court is not required to give a proposed jury instruction in the exact language requested by its proponent, even if it properly states an applicable rule of law. The court retains discretion to use its own language to communicate the same legal principles. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690. When reviewing such an assignment of error, a single challenged jury instruction may not be reviewed piecemeal or in isolation but must be reviewed within the context of the entire charge. State v. Hardy (1971), 28 Ohio St.2d 89; State v. Price (1979), 60 Ohio St.2d 136; State v. Wise (Jan. 29, 1993), Wood Cty. App. No. 91 WC 113, unreported. Accordingly, the proper standard of review for an appellate court is whether the trial court's refusal to give a defendant's requested instruction constituted an abuse of -8- discretion under the facts and circumstances of the case. State v. Wolons (1989), 44 Ohio St.3d 64. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. It is well settled that a failure to object to jury instructions before the jury retires, absent plain error, constitutes a waiver. State v. Williford (1990), 49 Ohio St.3d 247, 251. The plain error doctrine allows a court to take note of plain errors or defects affecting substantial rights, even though such error was not brought to the attention of the trial court. See Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91; State v. Smith (June 27, 1995), Franklin App. No. 940APA12-1702, unreported. The doctrine is to be used cautiously and only under exceptional circumstances to prevent a manifest miscarriage of justice. Long, supra, at 94. Plain error will not be found with regard to improper jury instructions unless the outcome of the trial would clearly have been different. Williford, supra, at 253; State v. Cooperrider (1983), 4 Ohio St.3d 226, 227; State v. Joseph (1995), 73 Ohio St.3d 450, 455. C. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR THROUGH ITS JURY INSTRUCTIONS ON VOLUNTARY MANSLAUGHTER AND SELF-DEFENSE. In the instant case, a review of the record demonstrates that the trial court instructed the jury as to the elements of the offenses of murder and voluntary manslaughter, then the affirmative -9- defense of self-defense (Tr. 413, 416 and 423 respectively) in that order. Contrary to defendant-appellant's position, the mere fact that the trial court failed to specifically mention the offense of voluntary manslaughter during its self-defense jury instruction does not invalidate the entire charge or rise to the level of plain error. Given the fact that the instruction of self-defense followed directly the charge on voluntary manslaughter, it is reasonable to assume that the jury understood the nature of the charge in the absence of contrary evidence. In addition, the jury questions do not, as defendant-appellant maintains, demonstrate confusion or a fundamental lack of understanding by the jury. Rather, the jury questions reveal a jury attempting to determine if voluntary manslaughter could be applied to defendant-appellant's case. Viewing the disputed charge on self-defense in the context of the overall charge, State v. Burchfield (1993), 66 Ohio St.3d 261, it is apparent that the trial court did not commit plain error through its jury instructions nor did a manifest miscarriage of justice occur. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Gregory Sims', defendant-appellant's, second assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION TO THE JURY ON SELF-DEFENSE BY SUBSTITUTING THE WORD MURDER FOR INJURY OR -10- KILLING, WITH REFERENCE TO THE DECEASED VICTIM. A. THE ISSUE RAISED: IMPROPER SELF-DEFENSE JURY INSTRUCTION. In his second assignment of error, defendant-appellant maintains that the trial court improperly substituted the word murder into the jury instruction on self-defense rather than using the words injury or killing with reference to the victim, Charles Buckner. Defendant-appellant argues that, by injecting the loaded term murder into the charge, the trial court deprived defendant- appellant of his constitutional and statutory right to a presumption of innocence. It is defendant-appellant's position that, in essence, the trial court instructed the jury that self- defense is only available when a purposeful killing (i.e., murder) occurs and such instruction constitutes plain error. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR JURY INSTRUCTIONS. As previously stated, when reviewing such an assignment of error, a single challenged jury instruction may not be reviewed piecemeal or in isolation but must be viewed within the context of the entire charge. Hardy, supra; Price, supra; Wise, supra. Failure to object to a jury instruction before the jury retires, absent plain error, constitutes waiver. Williford, supra. The Ohio Supreme court has consistently held that appellate courts should apply the doctrine of plain error sparingly. Long, supra. Plain error will not be found with regards to jury instructions -11- unless it can be said that, but for the error, the outcome of the trial clearly would have been different. State v. Watson (1991), 61 Ohio St.3d 1, 6; Joseph, supra. C. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR THROUGH ITS SELF- DEFENSE JURY INSTRUCTION. In the case sub judice, a review of the disputed jury instruction demonstrates that the trial court did not commit plain error by substituting the word murder for the phrase injury or killing which appears in 4 Ohio Jury Instructions (1996) Section 411.31(3). While it is true that the use of the word murder by the trial court during its self-defense instruction was inappropriate, it did not rise to the level of plain error given the fact that the jury did not even convict defendant-appellant of murder but rather, voluntary manslaughter. In addition, defendant-appellant was not the victim of a manifest miscarriage of justice since substantial evidence was presented to show that defendant-appellant did not act in self-defense when he stabbed Charles Buckner. State Rader (Feb. 9, 1994), Lorain App. No. 93CA005593, unreported; State v. Jackson (1986), 22 Ohio St.3d 281, 285. This conclusion will be discussed further in this court's discussion regarding defendant-appellant's final assignment of error. Defendant-appellant's second assignment of error is not well taken. -12- IV. THIRD ASSIGNMENT OF ERROR Gregory Sims', defendant-appellant's, third and final assignment of error states: THE JURY VERDICT CONVICTING APPELLANT OF VOLUNTARY MANSLAUGHTER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: WHETHER THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In defendant-appellant's third and final assignment of error, he maintains that the jury verdict is erroneous since the weight of the evidence established that defendant-appellant acted in self- defense. Specifically, defendant-appellant maintains that he was not at fault in creating the situation giving rise to the confrontation; he only acted out of an honest belief that he was in imminent danger of serious bodily injury on death for which deadly force was the only reasonable means of escape; and he did not violate a duty to retreat. Defendant-appellant's third and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and -13- 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and -14- 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. STANDARD OF REVIEW FOR SELF-DEFENSE. In order to prevail on a claim of self-defense, a defendant must demonstrate that: (1) he was not at fault in starting the affray; (2) 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 through the use of force; and (3) that he did not violate a duty to retreat. State v. Jackson, supra; In re: Duane Marquis Seymore (Oct. 28, 1996), Butler App. No. CA95-11-204, unreported. Failure to prove any of these elements by a preponderance of the evidence defeats the claim of self-defense. State v. Jackson, supra; State v. Robbins (1979), 58 Ohio St.2d 74, 79. Self-defense essentially operates as an admission of the substantive offense but "claiming justification, acting under excusably extenuating circumstances." Nieb v. Jago (6th Cir. 1982), 695 F.2d 228, certiorari denied sub nom, Nieb v. Marshall (1983), 463 U.S. 1210, 77 L.Ed.2d 1393, 103 S.Ct. 3544. D. DEFENDANT-APPELLANT'S CONVICTION WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The evidence in this case fails to demonstrate that defendant- appellant has proven any of the elements of self-defense. -15- Initially, the evidence indicates that, at a minimum, defendant- appellant shared responsibility for provoking the stabbing which led to the death of Charles Buckner. Kimberly Buckner, the wife of the victim, testified that defendant-appellant punched her in the face when she requested repayment of a prior loan. It is reasonable to assume from the evidence that Charles Buckner was merely reacting to the physical assault on his wife by defendant- appellant. Second, defendant-appellant failed to show by a preponderanceof the evidence that he had a fear of imminent death or great bodily harm. Defendant-appellant never saw Charles Buckner with a weapon of any description nor was Buckner particularly overwhelming physically. It spite of these facts, defendant-appellant chose to stab Mr. Buckner with a knife with such force as to sever a major artery in Mr. Buckner's leg causing Mr. Buckner to bleed to death. Finally, defendant-appellant failed to show that he ever attempted to retreat. There is no evidence in the record to demonstrate that defendant-appellant was prevented from retreating down the hallway or back into his girlfriend's apartment which was only approximately eight steps away. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the fact finder to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact finder, State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the jury's verdict is against the manifest weight of the evidence. Accordingly, a review -16- of the record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant- appellant guilty of voluntary manslaughter. Defendant-appellant's conviction was supported by substantial credible evidence upon which the jury could conclude that defendant-appellant was guilty of the underlying offense. Defendant-appellant's third and final assignment of error is not well taken. Judgment of the trial court is 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. JAMES D. SWEENEY, C.J. and ANN DYKE, J., CONCUR. DAVID T. MATIA 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 clerk per App.R. 22(E). See, also S.Ct. Prac.R. II, Section .