Appellant’s first proposition of' law states:
“The element of prior calculation and designan the. offense of aggravated murder, Ohio Revised Code Section 2903.01(A),: rеquires that the defendant exercise studied*78 care in planning or analyzing the means or instrument with which to kill another, as well as thе scheme by which it is to occur. Prior calculation and design is not established where, as here, the evidence cleаrly shows that the killing occurred on the spur of the moment or after momentary deliberation during a heated brawl which resulted from an instantaneous eruption of events.”
Appellant was convicted of aggravated murder pursuant to R. C. 2903.01(A), which reads:
“No person shall purposely, and with prior calculation and design, cause the death of another.”
Although wo agree with appellant’s contention that prior “calculation and design” is a more stringent element then the “deliberate аnd premeditated malice” which was required under prior law, we do not agree with appellant’s contention with regard to the evidence. The state’s evidence, which the jury evidently believed, indicates that the appellant was the аggressor and, contrary to appellant’s interpretation, the evidence Avas not such as indicating a heated brаwl which resulted from an instantaneous eruption of events, but, on the contrary, as noted by the Court of Appeals, the aрpellant accosted the decedent in the hallway of their apartment building and struck the decedent, knocking him to thе floor. Further, the -state’s evidence was that the appellant went into his adjacent apartment arid got a long .knifе, or “sword,” from under his mattress, returned to the hallway and stabbed the victim to death. The victim tested .42 percent blood alcohol content, which, according to the medical examiner, would probably result in a condition where the victim could nоt have been a real threat to anyone and that his stupor would have been obvious. The appellant and Hastinе Clark, who testified for the prosecution, moved the victim’s body to another apartment and attempted to clean the hallway.
The actions of appellant as adduced by the state’s evidence- established that appellant used extremé aggression against a helpless victim-, then leaving th& victim in the hallway arid returning to his apartment to secure the ivea-
These facts as could be interpreted by the jury do not' so much speak of a heated! brawl, but'of apрellant’s hold-, ing the victim’s life in such cheap regard. This court sim:-ilarly construed.“prior calculation.and: design” in State v. Cotton (1978),
“Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of., an. act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme de-. signed to implement the calculated decision to kill, a find-' ing by the trier’ of fact of prior calculation and design is justified.”
The appellant’s first proposition of law must "be rejected.
Appellant’s second proposition of law is that the appellant presented sufficient evidence to raise thе defense- of. self-defense, and that it was prejudicial error for the trial court to refuse .to instruct the jury on -that defensе. The' trial court charged the jury on aggravated murder and the lesser included crimes of murder and voluntary manslaughter. The trial court found that the plea of self-defense was not.available to the appellant since the appellаnt was the aggressor and had not withdrawn from the affray.. The Court of Appeals in its opinion held that appellant’s; testimony сonstituted sufficient evidence to' raise tho 'affirmative defense-of self-defense, but. that the failure of tho trial court to charge thereon was not prejudicial. We. find from a thorough reading of the record that- there was insufficient evidence to raise a question in the- minds- of reasonable men concerning the- existence of such issue of whether the appellant acted justifiably in self-defense. In the recent case of State v. Melchior (1978),
“To establish self-defense, the following . elements*80 must be shown: (1) the slayer was not at fault in creating' the situation giving rise to the affray, Stewart v. State (1852),1 Ohio St. 66 , 75; State v. Doty (1916), 94 Ohio St. 258; State v. Morgan (1919).100 Ohio St. 66 , 72; (2) the slayer has 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, Marts v. State (1875),26 Ohio St. 163 , paragraph two of the syllabus; State v. Champion (1924),109 Ohio St. 281 , paragraph one of the syllabus: State v. Sheets (1926),115 Ohio St. 308 , 310; and (3) the slayer must not have violated any duty to rеtreat or avoid the danger, State v. Peacock (1883),40 Ohio St. 333 , 334; Graham v. State (1918),98 Ohio St. 77 , 79.”
In the instant cause, appellant admitted striking the first blow and being the aggressor. Prom his own testimony thе affray took a turn for the worse, as’ far as he was concerned in that the victim was choking him. He claims that this was the reason he struck back with a knife. However, from the evidence adduced it appears that appellant had many opportunities to retreat and avoid danger, which ■he failed to do. Appellant testified as follows:
“Q. At the time you killed Jаn Canterbury, were you thinking about the right of self-defense?
“A. Sir-?
“Q. At the time you killed Jan Canterbury, did you think about self-defense? Did it occur to you’thаt you may have had a right to self-defense?
A. No, sir.”
State v. Melchior, supra, in paragraph one of the syllabus, states:
“The proper standard for determining in a criminal case whether a defendаnt has successfully raised an affirmative defeuse under R. C. 2901.05 is to inquire whether the defendant has introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue.”
The evidence in the record, is clear that, .the appellant
We find thаt the trial court did not err in its refusal to instruct the jury on the charge of self-defense, and appellant’s second proрosition of laiv is not well taken.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.