COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78618 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION REGINALD POOLE : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: July 5, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-380832 JUDGMENT: AFFIRMED IN PART; VACATE SENTENCE AND REMAND FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: EDWARD S. WADE, JR., ESQ. 75 Public Square, Suite 1111 Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, J.: Defendant-appellant Reginald Poole appeals from his involuntary manslaughter (R.C. 2903.04) conviction entered pursuant to a jury trial. He argues that the conviction was against the manifest weight of the evidence; the trial court erred in failing to charge -2- the jury on self-defense; and, that the trial court erred in not sentencing him to community control or the minimum sentence. We find merit to the appeal, in part, and affirm the conviction, but vacate the sentence and remand for resentencing. Poole was indicted on one count of involuntary manslaughter. He originally entered a guilty plea, but prior to sentencing retracted the plea. The matter then proceeded to trial. George Wells testified that he lived at 16612 Myrtle in Cleveland, Ohio. On September 6, 1999, he had a Labor Day party at his home. The victim, Eddie Reid, lived across the street from Wells and attended the party. Wells described Reid as being over six feet tall and about 230 pounds. He testified that Reid had been drinking on and off all day but did not appear to be drunk. At about 10:00 or 11:00 p.m., the party had ended and Wells and his son, Dwayne Ragland, were putting things away. Reid was still there talking to them when Poole arrived. Poole was Wells' next-door neighbor. Wells testified that Poole and Reid began to argue and Poole shoved Reid in the chest. Reid fell down but immediately got back up. Before Poole shoved Reid, Wells did not observe Reid make any attempt to strike or shove Poole. Wells told Poole to leave. Wellsdid not see Reid fall to the ground the second time and does not know what caused him to fall. He simply turned around and saw Reid flat on his back. Wells' son Dwayne noted that Reid's breathing was shallow so Wells immediately called 911. EMS arrived and attempted CPR. -3- Dwayne Ragland, 24 years old, testified that he was George Wells' son. He stated that a verbal altercation occurred between Poole and Reid. Both men had their voices raised and were using profanit y. He saw Poole push Reid with two hands, knocking Reid down. Reid braced himself when he fell and then got back up. Ragland did not see Reid's head strike anything during this first fall. Ragland said that after the first shove, his father stood between the two men to break up the altercation and told Poole to go home. Ragland then continued to clean up because it appeared that things had calmed down. Thirty seconds later, when Ragland turned around, he saw that Reid was on the ground. Poole stayed for a few minutes while Wells called 911. Poole then left and returned with a beer. Ragland stated that he did not see Reid exhibit any physical aggression towards Poole. Cleveland Police Officer George Kwan testified that he and his partner responded to a radio broadcast regarding a male in cardiac arrest. When Officer Kwan approached Poole to question him, Poole appeared agitated and attempted to walk away. The officers placed him in their patrol car and questioned him. Poole told the officers that Reid had called him a mother fucker and that Poole told Reid that he was a young man and that he would fuck him up. Poole admitted that he pushed the victim who then fell down. Detective Chejnowski testified that he took Poole's statement the next day. After being advised of his Miranda rights, Poole indicated he wanted to give an oral statement. Poole told the detective that he and Reid got into a verbal altercation and that -4- he pushed Reid. According to Poole, Reid continued to argue so the defendant pushed him a second time. Poole admitted that the second push was harder and Reid fell to the ground, hitting his head on the concrete. Poole told the detective that he did not know why Reid was swearing at him, but thought that Reid may have been drunk. He also told the detective that at no time did Reid make any attempt to strike him. Deputy Coroner Andrea Malcolm testified that the autopsy of the sixty-five-year-old victim revealed that he had abrasions both on his chest and the back of his head. An internal examination revealed that the victim suffered a subgaleal hemorrhage underneath the scalp. A fracture five inches long was found across the back of the head. The coroner testified that such a fracture does not occur during a normal fall, but was caused by a forceful fall. She stated that normally when a person falls, he attempts to brace his head. Therefore, the fracture in this case indicates that the victim was unconscious at the time he fell. She did not believe the 0.32 grams of alcohol detected in the victim's blood caused him to be unable to protect his head during the fall. The internal examination of the chest revealed that the victim was struck hard enough in the chest to cause bleeding in the soft tissue area. The coroner stated that a forceful blow to the chest can cause arrhythmia of the heart. She noted that the victim also suffered from hardening of the arteries which would have reduced the ability of oxygen to get to the heart. She explained that, due to -5- the hardening of the arteries, any type of physical or emotional trauma to the victim could have caused a heart attack or arrhythmia. The coroner concluded that the cause of death was blunt impact to both the head and chest and hardening of the victim's arteries. Basedupon the above evidence, the jury found Poole guilty as charged and the trial court sentenced Poole to two years in prison. Poole now timely appeals, asserting three assignments of error. I. DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Poole argues that his conviction was against the manifest weight of the evidence because the evidence indicated that the victim's death was caused by his own physical and medical conditions which had been aggravated by the excess consumption of alcohol. When the argument is made that the conviction is against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence, not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio in State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, held: * * * 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 theirverdict, 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. (Emphasis added.) Black's supra, at 1594. -6- 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 172, 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. ). According to Poole's statement to police, he shoved the victim twice. Poole admitted that the second time he pushed the victim it was with more force and the victim fell hitting his head. According to the deputy coroner, the blow to the victim's head caused a five-inch skull fracture. She also explained that a victim with Reid's heart condition could experience an irregular heartbeat or heart attack if he suffered either physical or emotional trauma. The coroner also did not believe that the victim's alcoholic state was the cause of his inability to brace his head during the fall because, to suffer a fracture like the victim's, the person would have to be in a comatose state when he fell. Finally, the coroner concluded the cause of death was the blunt impact to the chest and head in conjunction with the victim's condition of hardening of the arteries. -7- Basedon this evidence, we do not find that the jury lost its way or created a manifest miscarriage of justice in finding Poole guilty. Poole's first assignment of error is overruled. II. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE WHEN IT DENIED A JURY CHARGE ON SELF-DEFENSE. Poole contends that the trial court erred in not instructing the jury on self-defense when the evidence indicated that the victim was the aggressor. The trial court does not err in failing to instruct the jury on self-defense where the evidence was insufficient to support the instruction. State v. Palmer (1997), 80 Ohio St.3d 543, 564. To prove self-defense, the following elements must be shown: (1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant has a bona fide belief that he was in imminent danger of harm and that his only means of escape from such danger was in the use of such force; and (3) the defendant must not have violated any duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247, 249. The evidence at trial did not indicate that Poole had a bona fide belief that he was in imminent danger of harm. Both Wells and Ragland testifiedthat they did not see the victim display any form of physical aggression towards Poole. Even Poole, in his statement to police, admitted that the victim did not attempt to strike him. It appears that the violent shove was the result of Reid swearing at Poole. Such evidence does not support a self-defense -8- instruction. The trial court, therefore, did not err in failing to give the requested instruction. The second assignment of error is overruled. III. THE TRIAL COURT ERRED IN FAILING TO MAKE A FINDING GIVING REASONS FOR DENYING THE MINIMUM SENTENCE IMPOSED AND IN FAILING TO MAKE A RECIDIVISM DETERMINATION UNDER R.C. 2929.12. Poolehad no prior convictions. He was convicted of a felony of the third degree, which pursuant to R.C. 2929.13(C) carries a possible sentenceof one to five years. Poole was sentenced to two years. He argues that the trial court failed to consider the seriousness and recidivism factors as set forth in R.C. 2929.12(B) through (E) in determining that prison time was necessary, and also that since this was his first criminal offense, he should have received the minimum sentence. R.C. 2929.14(B) states, in pertinent part: [I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. The Ohio Supreme Court in State v. Edmonson (1999), 86 Ohio St.3d 324, 326, considered the requirements of this statute and held: We construe this statute [R.C. 2929.14(B)] to mean that unless a court imposes the shortest term authorized on a felony offender who has -9- never served a prison term, the record of the sentencing hearing must reflect that the court found either or both of the two statutorily sanctioned reasons for exceeding the minimum term warranted the longer sentence. R.C. 2929.14(B) does not require that the trial court give its reasons for its finding that the seriousness of the offender's conduct will be demeaned or that the public will not be adequately protected from future crimes before it can lawfully impose more than the minimum authorized sentence. By contrasting this statute with other related sentencing statutes, we deduce that the verb finds as used in this statute means that the court must note that it engaged in the analysis and that it varied from the minimum for at least one of the two sanctioned reasons. A review of the transcript in the present case indicates that the trial court made no finding that either the minimum sentence would demean the seriousness of the crime or would not adequately protect the public from future crime in support of its sentence of more than the minimum. Furthermore, in determining whether to impose a prison term for a third degree felony instead of community control sanctions, the trial court, pursuant to R.C. 2929.13(C), must make the following determination: * * * in determining whether to impose a prison term as a sanction for a felony of the third degree * * *the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code. Although the trial court in its journal entry stated that the sentence compliedwith the principles stated in R.C. 2929.11, there is no indication on the record that the trial court also considered -10- the seriousness of the conduct and likelihood of recidivism factors listed under R.C. 2929.12. Because the trial court failed to adequately state its reasons for imposing a prison term versus community control sanctions and for imposing a prison term that was not the minimum sentence, we remand the case for resentencing. Accordingly, the third assignment of error is sustained. Judgmen t is affirmed; sentence is vacated and remanded for resentencing. -11- 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. PATRICIA A. BLACKMON, J. and JAMES D. SWEENEY, P.J., CONCUR JUDGE COLLEEN CONWAY COONEY 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. 22. 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). .