COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72812 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND CARL FRETT, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-332185 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LORI W. LAISURE Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: THOMAS M. SHAUGHNESSY 11510 Buckeye Road Cleveland, Ohio 44107 -2- KARPINSKI, J.: Defendant-appellant, Carl Frett, appeals from the judgment of the trial court in which a jury found defendant guilty of voluntary manslaughter plus a firearm specification. On appeal, defendant raises one assignment of error, which argues that the jury verdict was against the manifest weight of the evidence. For the reasons that follow, we find no merit to this appeal and affirm the judgment of the trial court. Defendant was charged with aggravated murder as a result of the shooting of Ron Brown on December 18, 1995. At the time of the murder, defendant was separated from his wife, Darlene Frett. Darlene, along with the two children from her marriage to defendant, lived with Brown and his two children. Defendant's son, Carl Jr., testified that on the date of the murder he was in the downstairs apartment with Ann Owens, who watched him after school. After defendant had picked up Carl Jr., they went upstairs to Brown's residence to get a television set that belonged to Carl Jr. Specifically, defendant's son testified, defendant took a gun from his back pocket and placed it in his front pocket as he climbed the stairs to Brown's apartment. (Tr. 53.) Arriving at the apartment, Carl Jr. and defendant asked Brown for the set. When Brown refused to relinquish it, Carl Jr. went into the hall, where he heard three shots. Then defendant came into the hallway and told Carl Jr. that they had to leave. -3- Darlene Frett found the body of Ron Brown when she returned home from a trip to Athens, Ohio. On cross-examination she stated that she did not see any knife in the vicinity of the body. Dr. Heather Raaf, the forensic pathologist who performed the autopsy, testified that Brown was shot five times including once in the back. Raaf also stated that her autopsy showed indications of cocaine in his urine. From this fact she concluded that Brown had taken cocaine sometime in the 48 hours before the murder but not immediately before. Detective Garisek read the statement defendant gave after he turned himself in to the police. In the statement, defendant admitted shooting Brown but claimed he did so because Brown came at him with a knife. Defendant presented the testimony of two of defendant's co- workers, James Melton and Riley Richard, who both testified that defendant was truthful and a good father. Finally, defendant took the stand. He stated that he picked up his son and went upstairs to where Darlene lived with Ron Brown in order to retrieve his son's television set. He testified further that Brown would not allow his son to take the set. Brown then started flexing his muscles and proceeded to pick up a knife and move toward defendant. Defendant claimed that Brown stated he would kill him. Scared for his life and the life of his son, defendant starting shooting at Brown. He then left, went to Cincinnati, and threw the gun away. Eventually, defendant made arrangements to turn himself in and make a statement to the police. -4- The jury found defendant guilty of voluntary manslaughter. Defendant timely appealed, raising the following assignment of error. I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant contends that the jury's verdict of voluntary manslaughter was against the manifest weight of the evidence. Specifically, defendant argues that he shot Brown in self-defense because Brown was coming at him with a knife. This assignment lacks merit. The Ohio Supreme Court recently discussed a challenge based on the weight of the evidence: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. Black's, supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, 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 reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ) -5- State v. Thompkins (1997), 78 Ohio St.3d 380, 387 (emphasis in original). In the case at bar, the jury did not lose its way and create a manifest miscarriage of justice. Defendant was charged with aggravated murder, and the jury returned a verdict of guilty on the lesser included offense of manslaughter. Contending that he acted in self-defense, defendant argues that this verdict is against the weight of the evidence because the only evidence of what actually happened in the room was defendant's testimony that the victim came at him with a knife. This argument does not warrant a reversal. A jury is entitled to disbelieve the testimony of any witness. State v. Antill (1964), 176 Ohio St. 61; State v Soke (1995), 105 Ohio App.3d 226. In the case at bar, for a number of reasons, the jury was entitled to disbelieve defendant's testimony that he shot the victim in self-defense. First, defendant's son testified he saw defendant withdraw the gun from his back pocket and place it in his front pocket before entering the apartment. Second, no knife was recovered from the room where Brown's body was found. Third, the son, who was in the room initially and in the hallway for the shooting, did not testify to any attack by the victim. Fourth and finally, the forensic pathologist testified that one of the five gunshot wounds was from a shot in the back. Each of these facts puts defendant's claim of self-defense in doubt. Together, the evidence against defendant is compelling. Accordingly, the jury's verdict was not against the manifest weight of the evidence. Defendant's lone assignment of error is overruled. -6- Judgment affirmed. -7- 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. ANN DYKE, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI 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 .