COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71275 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES McCRARY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 14, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-333,664 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LYNN LORITTS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROGER M. SYNENBERG Attorney at Law 526 Superior Avenue, #222 Cleveland, Ohio 44114 HOLMES, J.: This is an appeal from the judgment of the Cuyahoga County Court of Common Pleas in which the defendant-appellant, James McCrary, was convicted of aggravated assault in violation of R.C. 2903.12 after a trial to the bench. The facts giving rise to this appeal are as follows. It is undisputed that on August 18, 1995, Francis Carey was struck with a cement rake by appellant, James McCrary. On February 8, 1996, a one-count indictment was returned that charged appellant with aggravated assault, alleging that appellant "did knowingly cause or attempt to cause serious physical harm by means of a deadly weapon or dangerous ordnance, to wit: a rake *** while under the influence of sudden passion or in a fit of sudden rage, either of which was brought on by serious provocation occasioned by Francis Carey that was reasonably sufficient to incite appellant into using deadly force." Appellant pled not guilty, voluntarily waived his right to a jury trial, and the matter proceeded to trial before the bench. At trial, the state called three witnesses, Francis Carey, John Calloway and Mark Mihalik. Francis Carey testified that on August 18, 1995, both he and appellant were employees of F. Buddie Contracting Inc. and were working on a project at the Cleveland Metropolitan Housing as laborers, pulling and raking concrete. In performing their concrete work, they used a tool called a "come along," which is similar to an ordinary rake in length, width and size but which has a solid piece of curved steel at the end, approximately four inches high and twelve inches wide. Carey stated that he and appellant had worked two seasons together. On the morning of August 18, they started work at 7:30 a.m. The preceding weeks had been very hot, the CMHA job had been rough, and tempers had been flaring. At mid-morning, because he did not like appellant's way of raking, Carey admonished appellant for not "carrying his weight." Carey said appellant at first walked away and then returned, getting into Carey's face and screaming vulgarities. Although Carey is 6'2" and weighs 190 pounds, Carey said he felt threatened because he was standing in an awkward position in the concrete. As Carey attempted to push appellant to get him to cool off, his hand glanced appellant's shoulder and went into his face. Carey said he made no verbal threats to appellant. As he started to walk away, Carey, out of the corner of his eye, saw appellant swing the "come along." Carey said he put his elbow up defensively and the metal part glanced off his elbow, striking him in the ribs and he dropped into the concrete. He said that appellant attempted to hit him again, but a co-worker stopped him. A number of co-workers grabbed appellant and kept him away from Carey. Carey was transported to the hospital by paramedics. As a result of the incident, Carey was terminated by Buddie Construction. The state called Johnny Calloway, another Buddie employee who was at the scene of the incident. Calloway testified that he was working on the job about three feet from the altercation. He said that Carey had been threatening appellant all morning. Carey lost his temper and hit appellant with his fist. Appellant retaliated with a "come along," hitting Carey in the side. Carey fell into the concrete, and appellant started to hit him again when a co- worker stopped him. Finally, the state called Mark Mihalik, who was working at the job site and observed the incident. Mihalik said that he was approximatelytwenty to fifty feet from the incident when he heard the two laborers hollering about the concrete not being done right. It appeared that appellant got into Carey's face and Carey brushed off appellant's shoulder with a shove and hit him in the face. Appellant then took a swing at Carey with the "come along" and hit him in the back, causing him to fall into the concrete. Mihalik said appellant appeared to be in a fit of rage, swinging a second time at Carey when another laborer grabbed appellant, stopping him. The state rested its case, and the defense made a motion for acquittal pursuant to Crim. R. 29, which was denied. The defense then called Frank Buddie and appellant as wit- nesses. Appellant testified that he is fifty-one years old with no criminal record. He said that the events leading up to the incident of August 18 included Carey making accusations and threats against him without any provocation. On that day, they were working in the same area. Appellant testified that the weather had been hot and there had been "words" exchanged, but appellant had not said anything to provoke Carey. Carey told appellant that he would "beat his a** if he didn't stay off his side." Appellant said that as he was bending to rake the con- crete, Carey swung and hit him, knocking him off balance. As he was going down, he saw that Carey, with his fist clenched and with his "come along" in his other hand, was still coming at him. Because appellant felt that he was in danger, he swung his "come along" to stop Carey. The "come along" hit Carey, knocking him down. Appellant testified that he got up and walked away with no intention of hitting Carey a second time. The co-worker grabbed appellant, put his arms around him and walked away with him. On cross-examination, appellant testified that he knew he could "take care of himself." He said that he did not run from Carey because he could hardly walk in the concrete. He did not call out for help because everything happened so fast. Appellant stated that Carey did not raise his "come along" as if to hit him. The defense called Frank Buddie, owner of the general con- tracting company where both Francis Carey and appellant were employed on August 18, 1995. Buddie was not present the day of the incident but talked to Carey a couple of days later when Carey called him to apologize regard- ing the incident. Buddie testified that Carey told him that after an on-going argument about the procedure of the work with appel- lant, Carey pushed appellant aside and slapped him in the face. Carey said the next thing he knew, he was lying on the ground. After the incident, Buddie did not hire Carey back as an employee but did choose to have appellant come back after a week of disci- pline. Buddie said that Carey told a different story at the Workman's Compensation hearing. There, Carey testified that appellant had struck the first blow. On cross-examination, Buddie admitted that he was not present the morning of the incident, but he had statements from everyone who saw the incident. Everyone except Mark Mihalik agreed that Carey pushed or hit appellant first. The defense rested and renewed its Crim.R. 29 motion for acquittal, which was denied by the court. Appellant was found guilty of the charge of aggravated assault in violation of R.C. 2903.12 as charged in the indictment and sentenced on August 22, 1996 to six months at Lorain Correctional Institution; the imposi- tion of the sentence suspended on the condition that he serve one year of probation, perform twenty hours of community service, maintain employment, pay court costs and make restitution if and when it were sought. Appellant timely appeals and advances one error for our review: THE TRIAL COURT'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE INSOFAR AS DEFENDANT-APPELLANT PROVED THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE BY A PRE- PONDERANCE OF THE EVIDENCE. Appellant, in his assigned error, argues that the verdict of the trial court was against the manifest weight of the evidence. Specifically, appellant contends that the evidence adduced at trial supports a finding for the affirmative defense of self- defense as opposed to a conviction for aggravated assault. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issues of mani- fest weight of the evidence. The Martin court, at p. 175, stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable infer- ences, considers the credibility of witnesses and 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 re- versed and a new trial ordered. *** See, Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncer- tain, conflicting or fragmentary. Moreover, the weight of the evidence and the 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. To establish self-defense, the following ele- ments must by shown: (1) [he] was not at fault in creating the situation giving rise to the affray; (2) [he] has a bona fide be- lief 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 such force; and (3) [he] must not have vio- lated any duty to retreat or avoid the dan- ger. (State v. Melchior (1978), 56 Ohio St 2d 15, approved and followed). State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. It is uncontroverted that appellant was not at fault in crea- ting the situation giving rise to the incident; however, the second element of self-defense requires appellant to show that he had 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 such force. The trial court, in declin- ing to find that the affirmative defense of self-defense was proven by a preponderance of the evidence, found that appellant's acts rose "without justification" to the offense of aggravated assault. Consequently, the trial court rejected the affirmative defense of self-defense for appellant's failure to prove the second element of the defense by a preponderance of the evidence. This court has reviewed the entire record of proceedings before the trial court. Upon thorough consideration of the law and the evidence presented at trial and as summarized above, this court finds there was evidence before the court upon which the judge could find appellant was guilty of aggravated assault and further, when we weigh the evidence and all reasonable inferences, we conclude that the court did not so clearly lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered when it determined that the affirmative defense of self-defense was not established by a preponderance of the evidence. Accordingly, appellant's sole assigned error is not well taken and the judgment of the trial court is affirmed. 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 Cuyahoga County 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. ANN DYKE, P.J. CONCURS TERRENCE O'DONNELL, J. DISSENTS (See attached Opinion) JUDGE *ROBERT E. HOLMES *SITTING BY ASSIGNMENT: Robert E. Holmes, retired Justice of the Ohio Supreme Court, sitting by assignment. 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 2(A)(1). 11 COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71275 STATE OF OHIO : : Plaintiff-Appellee : : DISSENTING vs. : : OPINION JAMES McCRARY : : Defendant-Appellant : : DATE: _________________________ O'DONNELL, J., DISSENTING: I respectfully dissent. As recited in State v. Martin (1983), 20 Ohio App.3d 172, when we are asked to consider a matter involving manifest weight of the evidence, we are to weigh the evidence and consider the credibility of the witnesses and deter- mine whether the court lost its way and created a manifest miscar- riage of justice. In my view, it did. Self-defense is a complete defense to a crime. Although the state still must prove all the elements of the crime charged beyond a reasonable doubt, by asserting the defense of self- defense, the accused claims justification for the act based upon the legal right to defend oneself or a third party. See State v. Morris (1982), 8 Ohio App.3d 12; State v. Butler (1974), 44 Ohio App.2d 177; 29 O.Jur.3d, Criminal Law S 3007. 12 In Ohio, however, an accused who asserts the defense of self- defense assumes the burden to prove the elements of that affirma- tive defense by a preponderance of the evidence. See Martin v. Ohio (1987), 480 U.S. 228. These are: * * * (1) the defendant was not at fault in creating the situation giving rise to the argument; (2) the defendant had an honest 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 such force; and (3) the defendant did not violate any duty to retreat or avoid danger. Id. At 230. In this case, the evidence demonstrates that Carey, not McCrary, instigated the fight; that after Carey punched McCrary in the face knocking him backwards, Carey pursued McCrary with a closed fist while carrying a concrete come-along rake; and that at that time, McCrary felt Carey would really hurt him and that he was in danger. The evidence further established that McCrary could not retreat from the situation since he stood in six inches of freshly poured concrete. In my judgment, after considering this evidence and weighing the credibility of the witnesses, I believe appellant established the elements of self-defense by a preponderance of evidence, which completely exonerates him from the charge. I therefore conclude the trial court misapplied the law, lost it way, and created a manifest miscarriage of justice when it determined that appellant .