      [Cite as State v. Hargrave, 2012-Ohio-798.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 ADAMS COUNTY

STATE OF OHIO,                                :
                                              :
      Plaintiff-Appellee,                     : Case No. 11CA907
                                              :
      vs.                                     : Released: February 22, 2012
                                              :
THOMAS HARGRAVE,                              : DECISION AND JUDGMENT
                                              : ENTRY
      Defendant-Appellant.                    :
                                        APPEARANCES:

Timothy Young, Ohio Public Defender, Jeremy J. Masters, Assistant State Public
Defender, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County
Assistant Prosecutor, West Union, Ohio, for Appellee.



McFarland, J.:

      {¶1} Appellant Thomas Hargrave appeals his conviction in the Adams

County Court of Common Pleas after a jury found him guilty of two counts of

murder. Appellant raises two assignments of error, arguing 1) his conviction was

against the manifest weight of the evidence, and 2) the trial court abused its

discretion when it found he had the ability to pay restitution. Having reviewed the

record, we overrule Hargrave’s two assignments of error and affirm the trial

court’s judgment.
Adams App. No. 11CA907                                                                 2


                                         FACTS

      {¶2} On March 21, 2010, Hargrave killed his grandfather, Franklin Holland.

Hargrave was unemployed and lived with his grandparents. He had been using

methamphetamine for approximately two to three months prior, and on that day

had ingested a large quantity thereof.

      {¶3} Hargrave’s recollection of events was extremely limited. He had gone

out to the garage and his grandfather was there. Hargrave had no recollection why

he went to the garage or what his grandfather was doing there. According to

Hargrave, he began having an anxiety attack. His grandfather, however, threatened

to call the police and took a shotgun from of its case, and then loaded a shell into

it.

      {¶4} Hargrave, fearing he was going to be shot, began stabbing his

grandfather. He could not recall whether he had come to the garage armed with

the knife, or whether it was already in the garage. Once Hargrave began stabbing

his grandfather, “I just a blurred.” (Tr. at 452.) Hargrave then recalled his

grandfather falling to his knees and he stopped stabbing him.

      {¶5} At that point, Hargrave recalled his grandmother entering the garage.

Hargrave, believing she had concealed a steak knife within the sleeve of her

nightgown, punched her. Hargrave did not notice his grandmother leave the

residence and go to a neighbor’s house to call 911. When the police arrived,
Adams App. No. 11CA907                                                               3


Hargrave confronted them and asked that they shoot him. Luckily, law

enforcement recognized he was under the influence of a narcotic and used their

tasers to subdue him.

      {¶6} After his arrest, Hargrave spoke with law enforcement officers about

his recollection of the events. Again, he could not recall many details of his

grandfather’s death clearly, nor could he make sense of the situation. By

Hargrave’s own admission, his recollection of events did not coincide with reality.

      {¶7} Hargrave’s grandfather had suffered numerous injuries. Hargrave had

stabbed him at least 28 times, and other lacerations indicated his grandfather was

in a defensive posture. Contrary to Hargrave’s statement that he stopped stabbing

his grandfather when he fell down, there were stab wounds to the victim’s back.

Specifically, there were seven stab wounds in a circular pattern. These wounds

pierced the victim’s spleen and heart, nearly severed the aorta, and were so forceful

they fractured ribs. There were also 21 other punctures, one of which completely

severed the victim’s jugular vein.

      {¶8} Hargrave proceeded to trial and the jury convicted him of two counts of

murder. Prior to sentencing, Hargrave fired his attorney and requested a new one.

The trial court obliged and scheduled a second sentencing hearing. At the second

sentencing hearing, Hargrave fired his new attorney and elected to proceed pro se,

with counsel remaining in an advisory capacity. Hargrave offered no mitigating
Adams App. No. 11CA907                                                                   4


evidence or arguments, choosing instead to lament the unfairness of the trial, his

treatment while in jail, and his trial counsel’s deficient performance.

      {¶9} The trial court explicitly considered the presentence investigation that

indicated Hargrave had been previously employed as a millwright for 18 to 20

years, but was unemployed at the time of the offenses. The trial court merged the

two offenses and sentenced Hargrave to 15 years to life in prison and ordered him

to pay $4,000 restitution to his grandmother for funeral expenses. Hargrave did

not object to the restitution and now appeals.

                           ASSIGNMENTS OF ERROR

       I.     “The trial court violated [Appellant’s] rights to due process and a fair
trial when it entered a judgment of conviction for murder, when the jury’s
determination that [Appellant] had not acted in self-defense was against the
manifest weight of the evidence.”

      II.    “The trial court abused its discretion when it found that [Appellant]
has the present and future ability to pay four-thousand dollars in restitution.”

                                    I. Self-defense

      {¶10} In his first assignment of error, Appellant argues the jury’s finding he

did not prove self-defense was against the manifest weight of the evidence. We

disagree.

                               A. Standard of Review

      {¶11} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review the entire record, weigh the
Adams App. No. 11CA907                                                                   5


evidence and all reasonable inferences, consider the credibility of witnesses and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, at ¶ 24,

citing State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. A

reviewing court “may not reverse a conviction when there is substantial evidence

upon which the [trier of fact] could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58

Ohio St.3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d

56, 526 N.E.2d 304, at paragraph two of the syllabus.

      {¶12} We must still remember that the weight to be given evidence and the

credibility to be afforded testimony are issues to be determined by the trier of fact.

State v. Frazier (1995), 73 Ohio St.3d 323, 339, 652 N.E.2d 1000, citing State v.

Grant (1993), 67 Ohio St.3d 465, 477, 620 N.E.2d 50. The trier of fact “is best

able to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461

N.E.2d 1273. “Moreover, ‘[t]o reverse a judgment of a trial court on the weight of

the evidence, when the judgment results from a trial by jury, a unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is
Adams App. No. 11CA907                                                                  6


required.’” State v. Blevins, 4th Dist. No. 10CA3353, 2011-Ohio-3367, at ¶ 17,

quoting Thompkins, supra, at paragraph four of the syllabus (construing and

applying Section 3(B)(3), Article IV Ohio Constitution).

                                 B. Legal Analysis

      {¶13} R.C. 2903.02(A) provides, “[n]o person shall purposely cause the

death of another * * *.” R.C. 2903.02(B) provides, “[n]o person shall cause the

death of another as a proximate result of the offender’s committing or attempting

to commit an offense of violence that is a felony of the first or second degree and

that is not a violation of section 2903.03 or 2903.04 of the Revised Code.”

Whoever violates either section is guilty of murder.

      {¶14} However, even if the state had proven the elements of murder,

Hargrave could not be convicted if he had demonstrated he acted in self-defense.

“Self-defense is an affirmative defense that requires a defendant to prove three

elements by a preponderance of the evidence: ‘(1) the defendant was not at fault in

creating the violent situation, (2) the defendant had a bona fide belief that she was

in imminent danger of death or great bodily harm and that her only means of

escape was the use of force, and (3) that the defendant did not violate any duty to

retreat or avoid the danger.’” State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317,

942 N.E.2d 1075, at ¶ 36, quoting State v. Thomas (1997), 77 Ohio St.3d 323, 326,

673 N.E.2d 1339 and citing R.C. 2901.05. “[T]he second element of self-defense
Adams App. No. 11CA907                                                               7


is a combined subjective and objective test.” State v. Thomas (1997), 77 Ohio

St.3d 323, 330, 673 N.E.2d 1339. The person’s belief must be objectively

reasonable under the circumstances and he must subjectively believe he needed to

resort to force to defend himself. Thomas at 330-331.

      {¶15} Additionally, “[a] defendant is privileged to use only that force that is

reasonably necessary to repel the attack.” State v. Hendrickson, 4th Dist. No.

08CA12, 2009-Ohio-4416, at ¶ 23, citing State v. Williford (1990), 49 Ohio St.3d

247, 249, 551 N.E.2d 1279, citing State v. McLeod (1948), 82 Ohio App. 155, 157,

80 N.E.2d 699. That is, a person cannot continue to use force against the original

aggressor once the imminent danger of death or serious bodily injury dissipates;

the defender cannot become the aggressor.

      {¶16} Finally, “[t]he elements of self-defense are cumulative, and if

defendant fails to prove any one of the elements by a preponderance of the

evidence, he fails to demonstrate that he acted in self-defense.” (Emphasis in

original.) Hendrickson at ¶ 23, citing State v. Cassano, 96 Ohio St.3d 94, 2002-

Ohio-3751, 772 N.E.2d 81, ¶ 72, citing State v. Jackson (1986), 22 Ohio St.3d 281,

284, 490 N.E.2d 893.

      {¶17} Here, Hargrave admitted he killed his grandfather and does not argue

the state failed to prove the elements of murder. Rather, he argues he had proven
Adams App. No. 11CA907                                                                     8


self-defense by a preponderance of the evidence and the jury lost its way when it

did not acquit him. The evidence, however, speaks to the contrary.

      {¶18} First, Hargrave presented scant evidence surrounding the stabbing.

He relied almost entirely on the statements he gave to law enforcement. Hargrave

could not explain how or why he was in the garage with his grandfather. He could

not recall whether the knife he used was already in the garage or if he had brought

it into the garage with him. He stated, “it’s a little fuzzy, the details and all that.”

(Tr. at 469.) Though Hargrave recalled his grandfather threatening to call the

police and loading a shell into a shotgun, he offered no explanation as to why his

grandfather did this. Without more, it is unclear whether Hargrave was at fault in

creating the violent situation, assuming the jury believed Hargrave’s disjointed

account of the incident.

      {¶19} Second, the evidence demonstrated Hargrave was the aggressor and

was not entitled to the privilege of self-defense. Hargrave’s grandfather was 75

years old, had suffered a previous heart attack, and had undergone a triple-bypass.

Hargrave stabbed him at least 28 times. Over 25% of the wounds were to his

grandfather’s backside, and there were defensive wounds. When confronted with

this evidence and told he was the aggressor, Hargrave responded, “I think I did,

I’m just thing, I must have just totally flipped out. Had a complete meltdown,

someway, somehow. Something went terribly wrong in my mind for me to do
Adams App. No. 11CA907                                                                   9


something like this.” (Tr. at 535.) The physical evidence and this statement negate

Hargrave’s previous statements that he was merely defending himself and prevent

him from using the aegis of self-defense.

      {¶20} Overall, Hargrave’s conviction was not against the manifest weight of

the evidence. There was substantial evidence upon which the jury could have

reasonably concluded the state proved the elements of murder beyond a reasonable

doubt. Hargrave failed to present sufficient evidence on all of the elements of self-

defense; thus, his conviction was proper. Accordingly, we overrule Hargrave’s

first assignment of error.

                                    II. Restitution

      {¶21} In his second assignment of error, Appellant argues the trial court

erred when it found he had the ability to satisfy restitution of $4,000. Specifically,

Appellant argues the trial court improperly considered his future prison income.

We disagree.

                               A. Standard of Review

      {¶22} Preliminarily, Appellant did not object to the restitution order. A

defendant who fails to object to the amount of restitution forfeits all but plain error.

State v. Johnson, 4th Dist. No. 03CA11, 2004-Ohio-2236, at ¶ 8-9. See, also, State

v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838, at ¶ 9. “[T]here

are ‘three limitations on a reviewing court’s decision to correct [a forfeited error].
Adams App. No. 11CA907                                                                  10


First, there must be an error, i.e., a deviation from a legal rule. * * * Second, the

error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error

must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must

have affected ‘substantial rights.’ [The Supreme Court of Ohio has] interpreted

this aspect of the rule to mean that the trial court’s error must have affected the

outcome of the trial.” State v. Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722, 950

N.E.2d 931, at ¶ 13, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68,

759 N.E.2d 1240. Regarding the third limitation, “reversal is warranted only when

the outcome of the trial clearly would have been different without the error.” State

v. Beebe, 4th Dist. No. 10CA2, 2011-Ohio-681, at ¶10, citing State v. Long (1978),

53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph two of the syllabus.

      {¶23} Yet “[e]ven when all three prongs are satisfied, a court still has

discretion whether or not to correct the error.” Lynn at ¶ 14, citing State v. Noling,

98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 62. Courts are “to notice

plain error ‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” Id. at ¶ 14, quoting Barnes at 27,

quoting Long at paragraph three of the syllabus.

                                  B. Legal Analysis

      {¶24} “‘Before ordering an offender to pay restitution, R.C. 2929.19(B)(6)

requires a court to consider the offender’s present and future ability to pay the
Adams App. No. 11CA907                                                                 11


amount of the sanction or fine. When, however, a trial court imposes a financial

sanction without any inquiry into the offender’s present and future means to pay,

the failure to make the requisite inquiry constitutes an abuse of discretion. * * *

[A] court complies with Ohio law if the record shows that the court considered a

[pre-sentence investigation report] that provides all pertinent financial information

regarding an offender’s ability to pay restitution.’” Moss at ¶ 13, quoting State v.

Bryant, 4th Dist. No. 08CA3258, 2009-Ohio-5295, at ¶ 7.

      {¶25} Here, the trial court did consider Hargrave’s present and future ability

to pay restitution. On the record, the court stated, “[t]he court specifically finds in

the imposition of the financial sanctions that the defendant does have the past,

present, and future income ability and/or potential to satisfy the financial sanctions

as imposed.” (Sentencing Tr. at 34.) The trial court noted Hargrave’s previous

employment as a millwright and the court calculated Hargrave would earn

approximately $204 annually while incarcerated, perhaps more. (Id.)

      {¶26} With a minimum term of incarceration of 15 years and one year of

jail-time credit, Hargrave would earn approximately $2,856 if only incarcerated for

the minimum. Hargrave would be able to satisfy over 71% of the restitution this

way. This does not include amounts Hargrave could earn once released from

prison.
Adams App. No. 11CA907                                                             12


       {¶27} Nothing restricts a trial court to imposing only an amount of

restitution an offender can definitely pay in a specific period of time. Nor has

Appellant cited to any law precluding a trial court from considering an offender’s

future prison income when determining his present and future ability to pay a

financial sanction.

       {¶28} The trial court’s decision to impose restitution of $4,000 was not

unreasonable, arbitrary, or unconscionable. The trial court specifically considered

Appellant’s past work history and technical skills, as well as his imminent

incarceration and anticipated income. The trial court considered the appropriate

factors and made an extremely clear record when it did so. As such, the trial court

did not abuse its discretion; there was no error, and certainly no plain error

concerning restitution. Accordingly, we overrule Appellant’s second assignment

of error.

                                                        JUDGMENT AFFIRMED.
Adams App. No. 11CA907                                                              13


                                  JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant 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
Adams County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

Harsha, J. and Kline, J.: Concur in Judgment and Opinion.

                                 For the Court,

                                 BY: _________________________
                                     Matthew W. McFarland, Judge

                                NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
