State v. Michelle L. Jones
| Decision Date | 31 March 1983 |
| Docket Number | 83-LW-3278,44983 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MICHELLE L. JONES, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Case No. CR-165,423.
For Plaintiff-Appellee: John T. Corrigan, Prosecuting Attorney of Cuyahoga County, Ohio, Justice Center - Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-Appellant: James R. Willis, Esq., Bond Court Building, Suite 1609, 1300 East Ninth Street, Cleveland, Ohio 44114., Almeta A. Johnson, Esq., 1276 West Third Street Suite 405, Cleveland, Ohio 44113.
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio rules of Appellate Procedure. This is an announcement of decisions (see Rule 26). Ten (10) days from the date here of this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.
STATE OF OHIO, APPELLEE,
v.
MICHELLE L. JONES, APPELLANT.
Court of Appeals of Ohio, Cuyahoga County.
March 31, 1983.
APPEAL FROM COMMON PLEAS COURT No. CR-165,423.
For plaintiff-appellee: John T. Corrigan.
For defendant-appellant: James R. Willis, Almeta A. Johnson.
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:
Defendant-appellant, Michelle Jones, was indicted for murder and convicted by a jury of voluntary manslaughter (R.C 2903.03). She now appeals.
On November 4, 1980, the victim, Terrence Powell, picked up Gregory Beckwith after Beckwith finished work at Playhouse Square. Later Demetrius Blakely was also picked up. All three proceeded to the victim's apartment, where he lived with appellant. Upon arriving there, it was discovered that all the furniture was missing (R. 10). Powell's clothing was scattered about the floor. The three men then left and drove around the city in an effort to find appellant, whom they suspected of taking the furniture. They were unsuccessful in locating appellant and they fell asleep for the night in Powell's car (R. 13).
The next morning at about 8:00 a.m., Blakely was dropped off at school. At 8:30 a.m., appellant was spotted in her car, which was parked at East 68th Street and Chester Avenue (R. 14). They pulled up and parked next to her car. Beckwith testified that Powell got out of his car and walked up to the driver's side of appellant's car (R. 14). Appellant began to slide out of her car with her purse in hand when Beckwith heard a shot. After the shot, appellant ran into a nearby house carrying her purse (R. 20). Teresa Stewart, a friend of appellant's, lived in the house. Powell staggered around for a few moments, eventually collapsing by a porch. He died as the result of a gunshot wound to the chest. Beckwith testified that he did not see a gun in Powell's hand when he got out of his car, and that he had never seen Powell with a gun (R. 18, 30).
Detective Frank Acierno arrived at the scene shortly thereafter, went into the house where appellant had fled, and there he was told by her that she had shot Powell (R. 68). Acierno stated that appellant told him that she had put the gun on the trunk of one of the cars. The gun was never found (R. 69).
Officer Porter testified that appellant told him at the scene that Powell came up to her driver's side, got in, and produced a gun (R. 131). The car started to roll backward, and when appellant hit the brakes, Powell dropped the gun. She grabbed the gun, slid out the passenger's side, and fired it through the car at Powell (R. 131-132). Appellant told the same thing to Detective Acierno, except she told him that Powell got in her car at the passenger's side (R. 292).
Six live .22 caliber shells were found outside appellant's car and two live .22 caliber shells where found inside (R. 185, 186). The morgue pellet recovered from Powell's body was consistent with being fired from a .22 caliber gun. A trace metal detection test of Powell's hands was negative, tending to show that he had not held a gun (R. 265). The muzzle to target distance was 18-24 inches (R. 279).
Appellant presented the testimony of two witnesses who stated that they had seen Powell strike her on occasion. Sandra Thompson testified that on the night preceding the morning of the shooting, Powell said to her: "When you see her [appellant], tell her I'll kill her" (R. 368).
Appellant testified that on the afternoon of November 4th, Powell saw her in a car with two other males. After she got out of the car, an altercation arose and one male hit Powell. She said Powell then told her: "I was a dead bitch" (R. 390). She testified that Powell entered her car at the passenger's side. After he dropped the gun and she grabbed it, Powell reared back and started toward her. It was then that she shot him (R. 403-04, 435). She stated that she thought she was going to be killed (R. 406). Appellant admitted to buying a .22 caliber gun with Powell a few months before the shooting (R. 420, 447). This gun was kept at their home. She stated that she didn't know how the bullets got into the back seat floor of her car (R. 432). No blood was found in her car.
The jury was instructed on the offenses of murder and voluntary manslaughter, and found appellant guilty of the latter offense. From her conviction, she appeals and assigns three errors.
Appellant's first two assignments of error may be treated together:
Where the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, a motion for acquittal shall not be granted. State v. Bridgeman (1978), 55 Ohio St. 2d 261.
The following evidence is such that reasonable minds could differ as to whether the state proved that appellant committed the offense of murder: Beckwith's testimony that appellant did not have a gun when he approached appellant's car; the live .22 caliber bullets found inside the car which were consistent with the morgue pellet recovered from Powell's body; the trace metal detection test that showed Powell did not hold a gun; and the fact that appellant admitted to purchasing a .22 caliber gun and admitted to carrying it in her purse when she and Powell were together (R. 449).
These assignments of error are overruled.
Appellant's third assignment of error states:
THE COURT ERRED IN CHARGING THE JURY THAT TO PREVAIL ON A PLEA OF SELF-DEFENSE THE DEFENDANT WAS REQUIRED TO, IN EFFECT, PROVE SHE WAS NOT GUILTY.
Appellant contends the trial court's jury charge on selfdefense improperly placed the burden of proof on the defense. We disagree.
Revised Code 2901.05 provides in pertinent part as follows:
Self-defense is an affirmative defense. State v. Poole (1973), 33 Ohio St. 2d 18.
This court has held that R.C. 2901.05(A) does not unconstitutionally shift the burden of proof to the defendant, because the affirmative defense does not negate an essential element of the offense charged. State v. Walker , unreported No. 40586; State v. Johnson , unreported No. 42846: State v. Washington , unreported No. 43219: State v. Henderson , unreported No. 43489.
We hold, therefore, that it is permissible to require the defendant to bear the burden of proof by a preponderance of the evidence on the issue of self-defense, and the court did not err in so instructing the jury.
This assignment of error is overruled.
Judgment 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 Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an...
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