State v. Kean

[Cite as State v. Kean, 2019-Ohio-1171.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 17AP-427
(C.P.C. No. 16CR-12)
v. :
(REGULAR CALENDAR)
Nicholas D. Kean, :

Defendant-Appellant. :

DECISION

Rendered on March 29, 2019

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
Swanson, for appellee. Argued: Valerie Swanson.

On brief: Yavitch & Palmer, Co., L.P.A., and Jeffery A. Linn,
II, for appellant. Argued: Jeffery A. Linn, II.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Nicholas D. Kean, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which he was found guilty of murder.
{¶ 2} On January 5, 2016, appellant was indicted on two counts of murder in
violation of R.C. 2903.02(A) (purposely causing the death of another) and R.C.
2903.02(B) (felony murder), respectively. The indictment arose out of the stabbing death
of John Barnett. The matter came for trial before a jury beginning May 1, 2017.
{¶ 3} The first witness for the state was Hunter Peterson, a close friend of Barnett.
On December 23, 2015, at approximately 2:00 p.m., Barnett phoned Peterson to ask if he
No. 17AP-427 2

wanted to "hang out." (Tr. Vol. II at 182.) Barnett drove to Peterson's residence to pick
him up. (Tr. Vol. II at 182.) Peterson lived in the "Hilltop" area of Columbus. (Tr. Vol. II
at 182.) Barnett arrived with another individual named "Jose." (Tr. Vol. II at 183.)
Peterson entered the backseat of the car; the occupants were smoking marijuana.
{¶ 4} Peterson was aware that Barnett and appellant recently "had some conflict
with each other." (Tr. Vol. II at 185-86.) Peterson had observed "a status on Facebook,"
indicating that "they were arguing." (Tr. Vol. II at 187.) Peterson testified that appellant
was "staying with [Barnett] once and * * * that [appellant] stole some money from his
dresser * * * and they just were arguing about that or something." (Tr. Vol. II at 187.)
{¶ 5} While driving, Barnett received a call from one of his parents "saying that
[appellant] was over at his house and that * * * he drove in the yard or something like
that. And he was kind of harassing, * * * just showed up to his house for no reason." (Tr.
Vol. II at 188.) Barnett hung up and started "driving towards his house." (Tr. Vol. II at
189.) Barnett was traveling "on Briggs [Road] towards Demorest" Road when they
observed appellant driving in the opposite direction. Barnett "yells out the window, 'Pull
over.' " (Tr. Vol. II at 189.)
{¶ 6} Barnett turned his vehicle around and drove "toward Binns" Boulevard.
(Tr. Vol. II at 189.) Appellant's vehicle, a silver four-door Jeep, was "pulled over [and]
parked on a side road." (Tr. Vol. II at 189-90.) Barnett pulled up and parked his vehicle.
{¶ 7} Barnett and appellant both exited their vehicles. Appellant and Barnett
then "started throwing punches at each other." (Tr. Vol. II at 197.) Peterson further
testified: "And they are in the middle of the street and [appellant] swings towards him."
(Tr. Vol. II at 198.) Peterson observed appellant "lunge with his right arm." (Tr. Vol. II at
198.) Peterson then heard Barnett "say, 'He just stabbed me.' " (Tr. Vol. II at 198.)
Peterson stated that Barnett was stabbed within 20 seconds of exiting the vehicle.
Appellant then "turns around and just gets in his car." (Tr. Vol. II at 199-200.) Appellant
"left in a hurry, just drove off quickly." (Tr. Vol. II at 200.)
{¶ 8} Peterson exited Barnett's vehicle and called 911. Barnett was on the ground
"gasping for breath like he is having a hard time breathing." (Tr. Vol. II at 200.) Barnett
was "not saying anything at all. He is just laying there." (Tr. Vol. II at 200.) While
No. 17AP-427 3

Peterson was talking to the dispatcher, Jose "says, 'I gotta go.' " (Tr. Vol. II at 202.) Jose
drove off in Barnett's vehicle.
{¶ 9} Peterson testified that appellant was not threatened with serious physical
harm at the time of the incident. According to Peterson, appellant "got out of his car
voluntarily." (Tr. Vol. II at 232.) Peterson did not observe Barnett with any type of
weapon. Police detectives subsequently prepared a photo array, and Peterson identified
appellant from the array as the individual who stabbed Barnett.
{¶ 10} Jose Martinez, age 25, testified that he and Barnett were good friends. On
December 23, 2015, Barnett called Martinez and inquired about getting together. At
approximately 11:00 a.m., Barnett drove to the residence of Martinez and they began
smoking marijuana. Martinez overheard Barnett arguing on the phone with someone;
Martinez heard Barnett "get threatened and him going back and forth with the guy, saying
it's no problem to meet up." (Tr. Vol. II at 239.) Martinez told his fiancée they were going
to pick up Peterson "and just ride around and smoke." (Tr. Vol. II at 240.)
{¶ 11} Martinez and Barnett left in Barnett's two-door Honda. They picked up
Peterson and, as they were driving, Barnett "gets a random phone call and text messages,
just threatening phone calls and messages." (Tr. Vol. II at 242.) Martinez heard
"something about: I am at your house, I almost had to beat up your neighbor, something,
just him going back and forth. [Barnett's] like, 'Leave my dad alone. My dad is older.' "
(Tr. Vol. II at 242.) Barnett hung up the phone and "sped up." (Tr. Vol. II at 243.)
{¶ 12} They subsequently observed appellant's vehicle heading in their direction
on Binns Boulevard. Appellant "stopped for a second" and "looked at us" and then "took
off." (Tr. Vol. II at 244.) Barnett pulled into the parking lot of the "Briggs Stop Mart."
(Tr. Vol. II at 246.) Barnett exited the car and looked around. He returned to the vehicle
and they traveled "down Briggs Road." (Tr. Vol. II at 246.) They then observed
appellant's vehicle heading toward them.
{¶ 13} Martinez testified that "[b]oth vehicles stopped and [Barnett] got out of the
vehicle." (Tr. Vol. II at 248.) An individual named "Coty" was with appellant at the time.
(Tr. Vol. II at 252.) Appellant and Barnett "met up in the middle of the road and got to
fighting. They were both throwing fists at each other." (Tr. Vol. II at 248.) Martinez
testified that he observed appellant "duck down, go in his pocket with his right hand."
No. 17AP-427 4

(Tr. Vol. II at 250.) Martinez stated that appellant "[r]eached into his hoodie pocket" and
"[c]ame out with the knife, stabbed [Barnett]. As he pulled it back, the knife flew onto the
floor and then went back a few feet." (Tr. Vol. II at 251.)
{¶ 14} The stabbing occurred about ten to fifteen seconds "into the fight." (Tr. Vol.
II at 251.) Appellant and Coty then "jumped into [appellant's] vehicle, took off." (Tr. Vol.
II at 252.) Martinez testified that either appellant or Coty picked up the knife before
leaving the scene. Barnett did not have any type of weapon, and, according to Martinez,
appellant was not in danger of serious physical harm during the incident.
{¶ 15} Barnett "pulled up his shirt and he told me * * * 'He stabbed me bro,' and
that is when I started seeing blood shooting out of his chest." (Tr. Vol. II at 252.)
Martinez went to assist Barnett, but Barnett told Martinez to take his vehicle because "he
didn't want no damage to happen to it." (Tr. Vol. II at 255.) Martinez told Peterson to
apply pressure to Barnett's wound. Martinez then left the scene in Barnett's vehicle;
Martinez drove to his residence and parked the vehicle. He subsequently drove Barnett's
vehicle to the hospital and met the police there. Police later showed Martinez a photo
array and he selected appellant's photograph.
{¶ 16} On December 23, 2015, Chelsey Pitts, Martinez's fiancée, was at her
residence; Martinez and Barnett were in the kitchen, and Barnett was talking on the
phone. At approximately 2:00 p.m., Martinez and Barnett left the residence in Barnett's
vehicle, a black Honda. Later that afternoon, Martinez returned to the residence "real
frantic, panicked." (Tr. Vol. II at 279.) Martinez "just kept saying, '[Barnett] asked me to
take the car. [Barnett] asked me to take the car.' " (Tr. Vol. II at 280.) Martinez and Pitts
subsequently received a call telling them to bring Barnett's car to the hospital. When they
arrived, Martinez spoke to the police for approximately two hours.
{¶ 17} On December 23, 2015, at approximately 3:30 p.m., Columbus Police
Officer Patrick McHenry was on patrol when he received a dispatch reporting a stabbing.
When the officer arrived at the scene, he observed "a younger man laying on the ground,
obviously injured, and another gentleman was leaning over him applying pressure to a
chest wound that the gentleman had suffered." (Tr. Vol. II at 285.) The man on the
ground "had a visible puncture wound in his chest which was sort of a flat wound like a
knife would make. He was semi-conscious but not really responsive." (Tr. Vol. II at 287.)
No. 17AP-427 5

{¶ 18} Officer McHenry spoke to witnesses, including Peterson, who gave the
officer a description of the assailant "as a 20-ish year old light-skinned male black and/or
mixed race." (Tr. Vol. II at 288.) Peterson "said he knew him, he was familiar with him,
[and] his name was Nick Kean." (Tr. Vol. II at 288.) Witnesses stated that the assailant
"fled the scene in a black or gray Jeep." (Tr. Vol. II at 288.)
{¶ 19} On December 27, 2015, Officer McHenry was on patrol when he observed a
Jeep Cherokee parked in front of a residence on Warren Avenue. The vehicle had two
different license plates. The officer ran a LEADS check and discovered the registration
"came back to Nicholas Kean." (Tr. Vol. II at 295.) The vehicle "looked * * * like it had
just been cleaned." (Tr. Vol. II at 340.) Two individuals "came out of the residence that it
was parked in front of and told me that someone had sold the car to them for * * * like
$200 or some unbelievable low amount of money." (Tr. Vol. II at 340-41.) The vehicle
had been sold after December 23, 2015. Officer McHenry contacted appellant's
grandmother regarding the vehicle. Appellant's grandmother and mother drove to the
scene and claimed ownership of the vehicle.
{¶ 20} On December 23, 2015, Columbus Police Detective Martin Kestner
investigated a reported stabbing, and the detective received the name of a suspect,
"Nicholas Kean." (Tr. Vol. II at 323.) Appellant subsequently turned himself in to the
police, and Detective Kestner interviewed him at police headquarters. Detectives also
collected items belonging to Barnett, who died on December 27, 2015; the items included
Barnett's clothing and cell phone. A number of months after the incident, defense counsel
turned over a blood stained sweatshirt to the prosecutor, which appellant's grandmother
had first provided to defense counsel.
{¶ 21} Detectives performed extraction of data from Barnett's cell phone. Texts
sent to the phone on December 23, 2015 included texts from appellant's cell phone
number. One of the texts from appellant's phone, sent at 2:45 p.m., stated: "Bring some
witchu to cause this switchblade goin thru your kidney." (Tr. Vol. II at 349.) Another text
sent from appellant's phone at 2:57 p.m. stated: "On my way to yah momma house." (Tr.
Vol. II at 349.) A third text, sent at 3:25 p.m., stated: "Ran thru ur yard an almost hadd
beat ur neighbor up smh." (Tr. Vol. II at 350.)
No. 17AP-427 6

{¶ 22} On December 29, 2015, Dr. Donald Pojman, a deputy coroner and forensic
pathologist with the Franklin County Coroner's Office, conducted an autopsy of John
Barnett. Dr. Pojman noted a stab wound on the left side of Barnett's chest and another
wound on the back of the left forearm. The wound to the chest "struck the left lung and
also the heart" and was the cause of death. (Tr. Vol. III at 422.) The fatal stab wound
traveled a distance of "approximately four to six inches" in striking the heart. (Tr. Vol. III
at 430.)
{¶ 23} At the close of the state's case-in-chief, defense counsel made a Crim.R. 29
motion for judgment of acquittal. The trial court denied the motion.
{¶ 24} Karen Kean, the grandmother of appellant, testified on his behalf. Kean
identified State's Exhibit H as appellant's "hoodie shirt." (Tr. Vol. III at 457.) Kean stated
she found the shirt in a garbage bag appellant had brought to the house following the
incident. The shirt had blood on the back. Kean testified she brought the shirt to the
office of appellant's attorney and gave the shirt to an individual named Cicero. Kean
denied she sold appellant's Jeep Cherokee, and she denied ever seeing the vehicle after
the incident.
{¶ 25} On cross-examination, Kean testified she found the sweatshirt in September
2016, approximately ten months after the incident. She stated appellant dropped off the
clothing in December 2015, shortly before he turned himself in to authorities but that she
waited until September 2016 to go through the items, which were in a trash bag.
{¶ 26} Appellant, age 21, testified on his own behalf. Appellant identified State's
Exhibit H as a hoodie he was wearing on the date of the incident. Prior to the incident,
appellant resided at his grandmother's residence. Appellant has known Barnett for
approximately six years. Appellant considered Barnett a friend, and appellant would
occasionally spend the night at Barnett's house. Appellant was at Barnett's residence two
weeks prior to the incident; on that occasion, appellant "knocked over one of [Barnett's]
bongs" and broke it. (Tr. Vol. III at 481.) Appellant offered to pay him for the bong, and
he gave Barnett "$15 or $20." (Tr. Vol. III at 481.)
{¶ 27} On December 23, 2015, appellant was at the house of a friend, Coty Knox;
they were planning to smoke marijuana. Appellant has a Facebook page and was
"friends" with Barnett. (Tr. Vol. III at 484.) Appellant checked Barnett's Facebook page
No. 17AP-427 7

that day; Barnett had "said something about not feeling sorry for people and not throwing
pity parties and something about not caring about everybody else." (Tr. Vol. III at 484.)
Appellant testified he had a problem with the post because "[a]t the time I was going
through some things and I felt that he was indirectly stating those things about me. Given
that his friends were also my mutual friends, I felt that in a sense he was airing out dirty
laundry on the Internet." (Tr. Vol. III at 485.)
{¶ 28} Appellant responded to the post and Barnett subsequently phoned
appellant. Appellant stated he felt threatened by the phone call. Appellant testified:
"When he called me, he was screaming and hollering like I never heard before and said,
'When I see you, I'm going to break you.' And excuse my language. He said, 'When I see
you, I'm going to blow your fucking head off.' " (Tr. Vol. III at 486.) According to
appellant, he had previously observed Barnett with a gun.
{¶ 29} Appellant denied that he wanted a physical confrontation with Barnett.
Appellant stated: "Personally I don't believe fighting resolves anything." (Tr. Vol. III at
488.) Following the phone call, appellant texted Barnett. Appellant testified: "I had
threatened him with a knife." (Tr. Vol. III at 488.) Appellant further stated: "Given that
he had just threatened me with a weapon, I thought that if I threatened him back, that
maybe he would back off." (Tr. Vol. III at 488.)
{¶ 30} Appellant and Knox left Knox's house. Appellant testified: "We were
headed to [Barnett's] house, actually." (Tr. Vol. III at 489.) According to appellant, he
went to the home of Barnett's parents to "see[] what was the problem and moving on from
there, figuring out the difference." (Tr. Vol. III at 489.) Appellant stated he was feeling "a
little bit anxious, nervous about going over there." (Tr. Vol. III at 491.) When they
arrived at the home of Barnett's parents, appellant did not see Barnett's vehicle.
Appellant texted Barnett "that I had got into a fight with his neighbor and ran through his
yard and then I said at the end, shaking my head, 'smh.' " (Tr. Vol. III at 493.)
{¶ 31} Appellant and Knox drove toward a Speedway gas station located on Briggs
Road. Appellant stated that his "anxiety was very high." (Tr. Vol. III at 495.) While
traveling east, they observed Barnett's vehicle traveling west. Appellant testified Barnett
"ended up veering his car into my lane of traffic." (Tr. Vol. III at 496.) Barnett stopped
the vehicle; appellant "couldn't hear him, but I could see him mouthing through the
No. 17AP-427 8

window aggressively, like, 'Get out, pull over. Get out, pull over.' He kept saying that."
(Tr. Vol. III at 496.)
{¶ 32} Appellant drove around Barnett's vehicle and turned onto Binns Boulevard.
He thought Barnett was "going home." (Tr. Vol. III at 498.) Appellant pulled into the
Binns Elementary School parking lot. Appellant testified he stopped there to turn around
and head back to the store. He again drove onto Binns Boulevard and, as he approached a
stop sign, observed Barnett's vehicle behind him. Appellant stated he was scared, and
when he "looked over to the window, [Barnett] just * * * looked like something like a rabid
animal." (Tr. Vol. III at 501.)
{¶ 33} Appellant testified Barnett ran up to his vehicle and "yanked it open." (Tr.
Vol. III at 502.) Appellant stated he "braced the steering wheel and [Barnett] grabs me by
the back of the hoodie and was pulling me out of the vehicle." (Tr. Vol. III at 502.)
Appellant testified: "Once I was out of the car, then I went for the pocket knife that I had."
(Tr. Vol. III at 505.) He described the knife as "[l]ike a switchblade knife, maybe three or
four inches long." (Tr. Vol. III at 505.)
{¶ 34} Appellant testified that, as Barnett grabbed him, the hoodie was "up over
my head." (Tr. Vol. III at 506.) According to appellant, he "couldn't see anything." (Tr.
Vol. III at 506.) Appellant testified: "As the hoodie is over my head, I just took two
aimless swipes at where I thought [Barnett] was." (Tr. Vol. III at 509.) Appellant stated
that, "[g]iven his actions, I didn't think this was going to be just any regular fist fight."
(Tr. Vol. III at 511.) After the incident, appellant "tossed [the knife] into a trash can." (Tr.
Vol. III at 514.) Appellant parked the Jeep "in an alley" and had "not seen it since then."
(Tr. Vol. III at 514-15.)
{¶ 35} On cross-examination, appellant acknowledged his texts indicated he
wanted to engage in a fight with Barnett. He agreed the text in which he referenced
almost having to beat up Barnett's neighbor sounded aggressive. Appellant did not
observe any weapon on Barnett at the time of the confrontation, and Barnett did not say
anything to him during the incident. Appellant acknowledged it was his "choice to pull
that knife out and use it." (Tr. Vol. III at 533.) Appellant stated that Barnett was maybe
able to make one punch "off before I produced the weapon. I didn't wait for the punch to
No. 17AP-427 9

pull the weapon." (Tr. Vol. III at 539.) Appellant pulled the switchblade out of the pocket
of his hoodie.
{¶ 36} Appellant conceded that he told a "slightly different story" when he was
interviewed by police on December 24, 2015. (Tr. Vol. III at 533.) Appellant informed
officers the switchblade was inside the Jeep and that he reached in and pulled the weapon
out. Appellant acknowledged telling the police: "My impression is that we were going to
meet up to fight." (Tr. Vol. III at 536.) Appellant also told officers the gray hoodie was in
the back of the Jeep.
{¶ 37} After stabbing Barnett, appellant "threw" the knife because he was
"panicking." (Tr. Vol. III at 541.) Appellant then "kind of shook out of it, picked the knife
up and left." (Tr. Vol. III at 542.) Appellant did not offer assistance to Barnett or call for
medical assistance. Following the incident, appellant parked the Jeep in an alley; he
could not recall the particular alley. Appellant did not know how his Jeep ended up on
Warren Avenue.
{¶ 38} Following deliberations, the jury returned verdicts finding appellant guilty
of murder as charged in Count 2 of the indictment (felony murder) but not guilty of
murder as charged in Count 1. By judgment entry filed May 31, 2017, the trial court
imposed a prison sentence of 15 years to life.
{¶ 39} On appeal, appellant sets forth the following six assignments of error for
this court's review:
ASSIGNMENT OF ERROR NO. 1:

THE TRIAL COURT ERRED IN NOT INSTRUCTING THE
JURY ON THE REBUTTABLE PRESUMPTION OF SELF
DEFENSE VIOLATING APPELLANT'S SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I, OF THE
OHIO CONSTITUTION.

ASSIGNMENT OF ERROR NO. 2:

THE TRIAL COURT ERRED IN NOT INSTRUCTING THE
JURY ON LESSER INCLUDED OFFENSES VIOLATING
APPELLANT'S SIXTH AND FOURTEENTH AMENDMENTS
OF THE UNITED STATES CONSTITUTION AND SECTION
10, ARTICLE I, OF THE OHIO CONSTITUTION.
No. 17AP-427 10

ASSIGNMENT OF ERROR NO. 3:

THE APPELLANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL, CONTRARY TO HIS RIGHTS
GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I, OF THE OHIO
CONSTITUTION.

ASSIGNMENT OF ERROR NO 4:

UNDER THE DOCTRINE OF ACCUMULATED ERROR, THE
ERROR COMMITTED BY THE TRIAL COURT AND THE
INEFFECTIVE ASSISTANCE OF APPELLANT'S TRIAL
COUNSEL WARRANT REVERSAL.

ASSIGNMENT OF ERROR NO. 5:

THE TRIAL COURT ERRED AND THEREBY DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION BY
OVERRULING APPELLANT'S CRIM.R. 29 MOTION FOR
JUDGMENT OF ACQUITTAL, AS THE STATE FAILED TO
OFFER SUFFICIENT EVIDENCE TO PROVE EACH AND
EVERY ELEMENT OF THE CHARGES BEYOND A
REASONABLE DOUBT.

ASSIGNMENT OF ERROR NO. 6:

THE TRIAL COURT ERRED BY FINDING APPELLANT
GUILTY AND THEREBY DEPRIVING APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF
THE OHIO CONSTITUTION BECAUSE THE VERDICT OF
GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

{¶ 40} Under the first assignment of error, appellant contends the trial court erred
in failing to give a jury instruction on the rebuttable presumption that he acted in self-
defense in stabbing Barnett. Appellant argues various courts have recognized the
importance of such an instruction if the evidence presented suggested a defendant was
inside his or her residence or vehicle and acting in self-defense.
No. 17AP-427 11

{¶ 41} In support, appellant cites his own testimony that, while pulling up to a stop
sign, Barnett approached his car, opened the door, and pulled him out of the vehicle.
According to appellant's testimony, he attempted to hold onto the steering wheel but was
removed from the vehicle by his hoodie. Appellant acknowledges the state presented a
different set of facts related to the incident (i.e., that appellant and Barnett were both
willing participants in the altercation and that they both exited their vehicles and began to
fight in the middle of the street). Appellant argues, however, that the trial court
supplanted its own opinion of the evidence and improperly limited the jury instructions,
thereby prohibiting the jury from deciding one of the key facts of the case, i.e., whether
Barnett pulled appellant out of his vehicle.
{¶ 42} Appellant cites to the following comments by the trial court during the
parties' discussion of jury instructions:
And let the record reflect I am purposely not giving the
rebuttable presumption instruction * * *. The basis is that I
listened to the two witnesses that testified that the defendant
was outside of his motor vehicle when the altercation or fight
ensued. And the only evidence presented or supporting that
instruction is the defendant's self-serving testimony. No other
witnesses indicate that he was in his vehicle, and so I will not
give that jury instruction.

(Tr. Vol. IV at 607.)

{¶ 43} In general, requested jury instructions should be provided "if they are
correct statements of law, if they are applicable to the facts in the case, and if reasonable
minds might reach the conclusion sought by the requested instruction." State v. Adams,
144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240. Further, "[a]n appellate court reviews a trial
court's refusal to give a requested jury instruction for abuse of discretion." Id.
{¶ 44} Under Ohio law, self-defense is an affirmative defense, requiring 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, ¶ 36. Further,
"the elements of self-defense are cumulative." State v. Jackson, 22 Ohio St.3d 281, 284
No. 17AP-427 12

(1986). If a defendant "fails to prove any one of these elements by a preponderance of the
evidence he has failed to demonstrate that he acted in self-defense." (Emphasis sic.) Id.
{¶ 45} In general, "[b]ecause of the third element, a defendant claiming self-
defense must ordinarily prove that he retreated or avoided the danger if at all possible."
State v. McClendon, 1st Dist. No. C-050274, 2006-Ohio-1846, ¶ 16. However, "Ohio has
long recognized an exception to the duty-to-retreat requirement of self-defense under
what has come to be known as the 'castle doctrine.' " State v. Edwards, 1st Dist. No. C-
110773, 2013-Ohio-239, ¶ 6. Such exception "is founded upon the principle that a
person's home is his castle, and thus a person assaulted in his home has no duty to
retreat." Id. In 2008, "the Ohio General Assembly extended the castle doctrine beyond
the accused's home to his 'vehicle.' " Id. at ¶ 7.
{¶ 46} Although the "traditional view of self-defense itself is not codified, several
self-defense theories, including the 'castle doctrine,' are found within Chapter 2901 of the
Revised Code" (i.e., R.C. 2901.05 and 2901.09). State v. Carosiello, 7th Dist. No. 15 CO
0017, 2017-Ohio-8160, ¶ 17. R.C. 2901.09(B) (the castle doctrine) states in part that "a
person who lawfully is in that person's residence has no duty to retreat before using force
in self-defense, defense of another, of defense of that person's residence." R.C.
2901.09(B) "creates an exception to the third element of self-defense, the duty to retreat."
Id. at ¶ 18. Further, under the provisions of R.C. 2901.05(B)(1), the legislature "extended
this doctrine." Id. at ¶ 19.
{¶ 47} R.C. 2901.05(B) states in part:

(1) Subject to division (B)(2) of this section, a person is
presumed to have acted in self defense or defense of another
when using defensive force that is intended or likely to cause
death or great bodily harm to another if the person against
whom the defensive force is used is in the process of
unlawfully and without privilege to do so entering, or has
unlawfully and without privilege to do so entered, the
residence or vehicle occupied by the person using the
defensive force.

***

(3) The presumption set forth in division (B)(1) of this section
is a rebuttable presumption and may be rebutted by a
preponderance of the evidence.
No. 17AP-427 13

{¶ 48} Thus, R.C. 2901.09(B) "creates an exception to the general duty to retreat,"
and R.C. 2901.05(B)(1) "further explains that a defendant is entitled to a presumption of
self-defense if the evidence shows that the victim was 'unlawfully and without privilege to
do so' in the defendant's residence." State v. Lewis, 8th Dist. No. 97211, 2012-Ohio-3684,
¶ 13. In accordance with R.C. 2901.05(B)(3), "[t]his presumption may be rebutted by the
state." State v. Petrone, 5th Dist. No. 2011CA00067, 2012-Ohio-911, ¶ 84. In this respect,
Ohio appellate courts have held that "the presumption of self-defense may be rebutted by
evidence showing the defendant's conduct in the affray did not meet the elements of self-
defense." State v. Nye, 3d Dist. No. 13-13-05, 2013-Ohio-3783, ¶ 30. The presumption
under R.C. 2901.05(B)(3) "is rebuttable by a preponderance of the evidence." State v.
Montgomery, 12th Dist. No. CA2015-03-028, 2015-Ohio-4652, ¶ 15.
{¶ 49} As noted, appellant argues the trial court erred in failing to provide a
rebuttable presumption instruction based on the court's view that it did not find credible
appellant's testimony that he was dragged out of his vehicle. In addressing appellant's
contention, the state argues any error by the trial court in failing to instruct the jury as to
rebuttable presumption was harmless. Specifically, relying in part on the Third District
Court of Appeal's decision in State v. Hadley, 3d Dist. No. 9-11-30, 2013-Ohio-1942, the
state contends that, even under appellant's version of the events, the jury would not have
reached a different result if a rebuttable presumption instruction had been provided
because no rational juror could have found appellant's decision to use a deadly weapon
(i.e., a switchblade knife) during a fist fight reasonably warranted under the
circumstances and proportionate to the apparent threat.
{¶ 50} We begin with a consideration of Hadley in which the defendant argued,
similar to appellant's contention in the instant case, the trial court erred in denying his
request to instruct the jury on the rebuttable presumption of self-defense. Under the facts
of that case, Donald Ayars, a census taker, came to the defendant's residence and knocked
on the door. Ayars testified the defendant became upset and shoved him; as Ayers
attempted to exit the front porch, the defendant then grabbed an aluminum bat from
inside his front door and struck Ayars. According to the testimony of Ayars, he did not
No. 17AP-427 14

enter the defendant's residence; by contrast, the defendant testified Ayars stepped across
the doorway threshold, at which time defendant struck him.
{¶ 51} The trial court in Hadley instructed the jury on the affirmative defenses of
self-defense and defense of another. The court, however, denied the defendant's request
to instruct the jury on the presumption of self-defense under R.C. 2901.05(B)(1),
"concluding that the Castle Doctrine was inapplicable to the facts" of the case. Id. at ¶ 15.
The jury subsequently returned a verdict finding the defendant guilty of felonious assault
with a deadly weapon.
{¶ 52} On appeal, the defendant argued the trial court erred in failing to provide
the requested rebuttable presumption instruction. More specifically, appellant argued
that, even though the evidence was insufficient to convince the jury of his affirmative
defense of self-defense by a preponderance of the evidence, "and even though the jury
found the prosecution's evidence was sufficient to establish the elements of felonious
assault beyond a reasonable doubt, the jury could have found the prosecution's evidence
was not sufficient to rebut the presumption of self-defense under R.C. 2901.05(B)(1) by a
preponderance of the evidence." Id. at ¶ 38.
{¶ 53} The Third District Court of Appeals rejected appellant's argument. While
the reviewing court found the basis for the trial court's denial of the instruction "was
misplaced" (based on the fact that any privilege Ayers may have had to be at the residence
was revoked when the defendant asked him to leave), the appellate court further
considered whether the trial court's ruling "was prejudicial to [the defendant's] case or
whether it constituted harmless error." Id. at ¶ 43. The court found that, "under the
circumstances of this case, even as described by [the defendant's] version of events, no
rational jury could have found that [the defendant's] use of a baseball bat against [the
victim] was reasonably necessary or proportionate to the apparent danger." Id. at ¶ 48.
{¶ 54} The court in Hadley further explained:
The jury determined that the evidence in this case established
the elements of felonious assault beyond a reasonable doubt
notwithstanding Hadley's version of events. As such, a
rational jury could not have found that the same evidence
which was sufficient to override and completely obviate any
further consideration of Hadley's affirmative defense and
sufficient to establish the elements of felonious assault by
proof beyond a reasonable doubt, was somehow not sufficient
No. 17AP-427 15

to rebut a presumption of self-defense under R.C. 2901.05(B)
by a mere preponderance of the evidence. This also means
that any possible error in the trial court's comments to the
jury regarding the duty to retreat * * * would be harmless and
could not have affected the outcome in this case or constituted
reversible error, because no rational juror could have
reasonably gotten that far in their consideration of the
elements of self-defense in view of the excessive force used by
the defendant.

Id. at ¶ 49.

{¶ 55} In its decision, the court in Hadley construed the language of R.C.
2901.05(B) as permitting the prosecution "to rebut the presumption of self-defense
contained in R.C. 2901.05(B)(1) by demonstrating by a preponderance of the evidence
that the actual elements of self-defense were not established by the facts presented in a
particular case." Id. at ¶ 62. In so holding, the court cited with approval other Ohio
appellate districts that "have reviewed whether the actual elements of self-defense have
been rebutted by the evidence in the record." (Emphasis sic.) Id. at ¶ 61, citing Petrone at
¶ 73; State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, ¶ 26, 29 (8th Dist.).
{¶ 56} It has similarly been observed the decision in Hadley "falls in line with
decisions from other sister districts" holding that the state may rebut the castle doctrine
presumption where "the defendant's actions do not comport with the elements of self-
defense." Carosiello at ¶ 21. In this respect, Ohio courts have held a trial court's failure to
give a castle doctrine instruction is not reversible error if there was evidence by which the
jury could have found the presumption of self-defense was rebutted. See Nye at ¶ 30-32
(trial court did not err in declining to give instruction on the presumption of self-defense;
even assuming the facts implicated such an instruction, the state presented evidence to
adequately rebut the presumption, including evidence appellant did not have reasonable
grounds to believe he was in imminent danger of death or great bodily harm); State v.
Wright, 6th Dist. No. L-16-1053, 2017-Ohio-1225, ¶ 34 (trial court's failure to incorporate
castle doctrine instruction did not affect outcome of trial where evidence indicated
defendant "could no longer claim 'a bona fide belief of imminent danger of death or great
bodily harm,' " and "no reasonable juror could have found that [the defendant] acted in
self-defense").
No. 17AP-427 16

{¶ 57} Courts applying the holding Hadley have also rejected the argument
(similar to that made by appellant in the instant case) that, in cases in which the castle
doctrine is applicable, the defendant's "own conduct during the incident is not at issue."
Carosiello at ¶ 20. In Carosiello, the Seventh District Court of Appeals relied on Hadley
in holding that such "argument is clearly contrary to both a plain reading of the statute as
a whole and the established law in Ohio." Id. In rejecting that argument, the court in
Carosiello relied on the following language in Hadley:
[U]nder Hadley's interpretation of the statute, the prosecution
is precluded from ever rebutting the actual elements of self-
defense with evidence that the defendant was not justified in
using force or that the defendant used force unreasonably
necessary and disproportionate to the apparent danger
presented by the situation.

This would mean that in every scenario in which the
presumption of self-defense stated in R.C. 2901.05(B)(1)
applies, the defendant is entitled to use any amount of force –
even if it is unjustified or disproportionate to the apparent
danger presented – against someone in his or her residence
who is not privileged to be there regardless of the particular
facts and circumstances of the situation. This produces an
absolute license to commit any level of violence, including
deadly force against any trespasser, immediately upon
revoking their privilege to be there, and regardless of the
circumstances.

Carosiello at ¶ 20, quoting Hadley at ¶ 58-59.

{¶ 58} As set forth above, the second element of self-defense requires a defendant
show he had a bona fide belief that he was in imminent danger of death or great bodily
harm and that his only means of escape was the use of force. Goff at ¶ 36. One component
of the second element "entails a showing that the defendant used 'only that force that is
reasonably necessary to repel the attack.' " State v. Bundy, 4th Dist. No. 11CA818, 2012-
Ohio-3934, ¶ 55. See also Montgomery at ¶ 16, quoting State v. Ray, 12th Dist. No.
CA2012-10-213, 2013-Ohio-3671, ¶ 30 ("The second element of self-defense involves
determining whether the defendant's use of force was 'reasonably necessary to repel the
attack' or in other words, whether the defendant used excessive force."). Implicit in the
"second element of self-defense, i.e., that the defendant's use of deadly force was in 'good
No. 17AP-427 17

faith,' is the requirement that the degree of force used was 'warranted' under the
circumstances and 'proportionate' to the perceived threat." State v. Hendrickson, 4th
Dist. No. 08CA12, 2009-Ohio-4416, ¶ 31. Thus, " '[i]f * * * the amount of force used is so
disproportionate that it shows an "unreasonable purpose to injure," the defense of self-
defense is unavailable.' " Bundy at ¶ 55, quoting State v. Macklin, 8th Dist. No. 94482,
2011-Ohio-87, ¶ 27, quoting State v. Speakman, 4th Dist. No. 00CA035 (Mar. 27, 2001).
Under Ohio law, "[t]his rule applies even if a defendant is attacked in his residence or
vehicle," as "[a] defendant who is attacked in his or her residence or vehicle does not
possess a license to kill." Id. at ¶ 56. Rather, "the defendant may only use deadly force if
necessary to prevent death or great bodily injury." Id., citing State v. Thomas, 77 Ohio
St.3d 323, 327 (1997).
{¶ 59} On review of the evidence presented in the instant case, we agree with the
state's argument that any error by the trial court in failing to instruct the jury on the
rebuttable presumption of self-defense was harmless beyond a reasonable doubt, as no
rational jury could have found appellant's use of a knife under the facts and circumstances
of this case was reasonably necessary and proportionate to the danger presented. As noted
by the state, appellant conceded he did not observe Barnett with a weapon during the
incident, and the evidence was undisputed that the stabbing occurred within 15 to 20
seconds of Barnett exiting his vehicle. Appellant admitted that he pulled the knife out
within seconds of the altercation; according to appellant's own testimony, one punch was
"all [Barnett] was able to get off before I produced the weapon," and appellant "didn't wait
for the punch to pull the weapon." (Tr. Vol. III at 539.) Appellant proceeded to stab
Barnett twice, with the fatal wound going into his chest with sufficient force to lacerate the
left lung and heart. The coroner testified that the fatal stab wound traveled "four to six
inches" before hitting Barnett's heart. (Tr. Vol. III at 430.)
{¶ 60} While appellant stated Barnett had earlier threatened him, appellant
admitted he was not threatened with a weapon "at that very moment" and that he
"couldn't see if [Barnett] had [a weapon] at that very moment." (Tr. Vol. III at 511.)
Hunter Peterson and Jose Martinez, both of whom were eyewitnesses to the stabbing,
testified Barnett was unarmed and there was no evidence that Barnett threatened to use a
weapon during the incident. Further, none of the witnesses heard Barnett threaten
No. 17AP-427 18

appellant and appellant testified that "the only thing" Barnett said to him during the
altercation was: "You stabbed me." (Tr. Vol. III at 540.) Appellant, who acknowledged
telling the police that it was his impression they were going to meet up to fight, had earlier
texted Barnett to state: "[B]ring sum witchu to cause this switchblade goin thru your
kidney." (Tr. Vol. III at 404.)
{¶ 61} The evidence presented simply did not support appellant's assertion he had
a reasonable belief he was in imminent danger of death or serious bodily harm at the time
of the altercation, nor did the evidence reasonably support a finding appellant's decision
to stab (unarmed) Barnett in the chest was a necessary and proportionate response to
what was, at most, a single punch thrown during a fist fight. Rather, appellant "used
deadly force when he was not faced with deadly force, only fists." Ray at ¶ 32 (defendant,
while receiving minimal injuries from being punched in the head four or five times, used
unreasonable force in stabbing victim in chest with hunting knife and, therefore, could
not "show prejudice from the trial court's omission of the 'no duty to retreat from one's
own home' instruction"). In sum, the overwhelming evidence in this case indicates that
"[t]he degree of force used by appellant was neither warranted under the circumstances
nor proportionate to the perceived threat." State v. Green, 12th Dist. No. CA2017-11-161,
2018-Ohio-3991, ¶ 36.
{¶ 62} Here, even accepting the facts "implicated the presumption of self-defense"
set forth under R.C. 2901.05(B)(1), and "the burden had been shifted to the prosecution"
to prove appellant did not act in self-defense, the state presented evidence "to adequately
rebut the presumption by a preponderance of the evidence." Nye at ¶ 30-32
(presumption of self-defense rebutted by state's evidence showing defendant "did not
have reasonable grounds to believe he was in imminent danger of death or great bodily
harm and that his only reasonable response was the use of deadly force"). See also State
v. Callahan, 8th Dist. No. 102900, 2016-Ohio-2934, ¶ 31-33 (even assuming the
presumption of self-defense applied and that burden had been shifted to prosecution to
prove defendant did not act in self-defense, record shows prosecution presented evidence
to adequately rebut presumption by preponderance of evidence where state demonstrated
defendant did not have reasonable grounds to believe he was in imminent danger of death
or great bodily harm and that his only reasonable response was use of deadly force where
No. 17AP-427 19

victim was unarmed). Accordingly, any error by the trial court in failing to provide a
rebuttable presumption jury instruction was harmless beyond a reasonable doubt.
Hadley at ¶ 49; State v. Whitman, 5th Dist. No. 2017CA00079, 2018-Ohio-2924, ¶ 64-65
(error by trial court in omitting castle doctrine harmless; had jury been instructed on
castle doctrine "it would have no effect on the inescapable conclusion" that appellant did
not act in self-defense where evidence showed appellant did not reasonably believe
shooting victim was his only choice to avoid bodily harm or death).
{¶ 63} Based on the foregoing, appellant's first assignment of error is not well-
taken and is overruled.
{¶ 64} Under the second assignment of error, appellant contends the trial court
erred in failing to give lesser-included offense jury instructions. According to appellant,
there was sufficient evidence presented to establish he acted out of a fit of rage or heat of
passion so as to require a voluntary manslaughter instruction. Appellant also argues an
involuntary manslaughter instruction was warranted on the basis that the jury could have
concluded his conduct in using a knife was reckless, but that he never intended to kill
Barnett. Appellant acknowledges it does not appear trial counsel objected to the trial
court's refusal to instruct on any lesser-included offenses.
{¶ 65} In general, a reviewing court utilizes "the abuse of discretion standard to
decide whether the trial court erred in determining that there was insufficient evidence
presented to reasonably support both an acquittal on the charged crime of murder and a
conviction for voluntary manslaughter." State v. Moman, 4th Dist. No. 16CA1022, 2017-
Ohio-453, ¶ 12, citing State v. Shane, 63 Ohio St.3d 630, 632 (1992). In accordance with
Crim.R. 30(A), "a party is required to object to a jury instruction after the instruction has
been given but before the jury retires in order to raise the issue on appeal." State v.
Stevenson, 10th Dist. No. 17AP-512, 2018-Ohio-5140, ¶ 20. The failure to object to jury
instructions "waives all but plain error on appeal." Id., citing Crim.R. 52(B); State v.
Long, 53 Ohio St.2d 91 (1978). Further, "[a]n error in a jury instruction does not
constitute a plain error unless, but for the error, the outcome of the trial clear[ly] would
have been otherwise." Id., citing Long at paragraph two of the syllabus.
{¶ 66} We first address appellant's contention the trial court erred in failing to
instruct on voluntary manslaughter. R.C. 2903.03(A) defines voluntary manslaughter
No. 17AP-427 20

and states in part: "No person, while under the influence of sudden passion or in a sudden
fit of rage, either of which is brought on by serious provocation occasioned by the victim
that is reasonably sufficient to incite the person into using deadly force, shall knowingly
cause the death of another."
{¶ 67} Voluntary manslaughter is "an inferior degree of murder." State v. Rhodes,
63 Ohio St.3d 613, 617 (1992). Although "voluntary manslaughter is not a lesser included
offense of murder, the test for whether a judge should give a jury an instruction on
voluntary manslaughter when a defendant is charged with murder is the same test to be
applied as when an instruction on a lesser included offense is sought." Shane at 632.
Accordingly, "a defendant charged with murder is entitled to an instruction on voluntary
manslaughter when the evidence presented at trial would reasonably support both an
acquittal on the charged crime of murder and a conviction for voluntary manslaughter."
Id. However, "[a]n instruction is not warranted simply because the defendant offers
'some evidence' going to the lesser included [or inferior degree] offense." State v. Gray,
12th Dist. No. CA2010-03-064, 2011-Ohio-666, ¶ 23, citing Shane at 632-33. Rather,
"[t]here must be 'sufficient evidence' to 'allow a jury to reasonably reject the greater
offense and find the defendant guilty on a lesser included (or inferior-degree) offense.' "
(Emphasis sic.) Id., quoting Shane at 632.
{¶ 68} The Supreme Court of Ohio has held that "[t]he test for voluntary
manslaughter includes both an objective and a subjective component." State v.
Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 153. With respect to the "objective
factor—a fact-finder must determine whether a serious provocation occurred and whether
that provocation was 'sufficient to arouse the passions of an ordinary person beyond the
power of his or her control.' " Id., quoting Shane at 635. Regarding "the subjective
factor—the fact-finder must evaluate whether 'this actor, in this particular case, actually
was under the influence of sudden passion or in a sudden fit of rage.' " Id., quoting Shane
at 634. A defendant being tried for murder must prove the mitigating circumstances of
R.C. 2903.03(A) "by a preponderance of the evidence." Id., citing Rhodes at 620.
{¶ 69} This court has noted that "[s]elf-defense on the one hand requires a
showing of fear, whereas voluntary manslaughter requires rage." State v. Thompson, 10th
Dist. No. 92AP-1124 (Feb. 23, 1993). Further, "[w]hen analyzing the subjective prong of
No. 17AP-427 21

the test, '[e]vidence supporting the privilege of self-defense, i.e., that the defendant feared
for his own personal safety, does not constitute sudden passion or fit of rage.' " State v.
Harding, 2d Dist. No. 24062, 2011-Ohio-2823, ¶ 43, quoting State v. Stewart, 10th Dist.
No. 10AP-526, 2011-Ohio-466, ¶ 13.
{¶ 70} In the present case, even assuming the objective prong was satisfied, the
evidence presented by appellant fails to satisfy the subjective prong, i.e., the testimony by
appellant does not suggest he was acting under a sudden passion or fit of rage to warrant
an instruction on voluntary manslaughter. When asked what emotion he was feeling
when he observed Barnett get out of his vehicle, appellant responded he was "scared" and
"was really worried about what was about to happen." (Tr. Vol. III at 501.) Appellant
further testified he "was afraid." (Tr. Vol. III at 507.) According to appellant, he was
"concerned for [his] safety and * * * well-being." (Tr. Vol. III at 503.) Appellant described
his emotions as "actually like petrified." (Tr. Vol. III at 503.) Thus, in considering the
subjective standard, appellant's "own testimony" failed to support and undermined any
claim that he acted out of sudden passion or fit of rage. State v. Collins, 97 Ohio App.3d
438, 446 (8th Dist.1994) (no evidence defendant subjectively acted under influence of
sudden passion or fit of rage where defendant "repeatedly testified he tried to avoid any
fight with the victim and acted solely in self-defense 'because all I was trying to do was
protect myself' "). (Emphasis sic.)
{¶ 71} In light of the testimony presented, while the evidence, as found by the trial
court, supported an instruction on self-defense, we find no error by the court in failing to
instruct on voluntary manslaughter. See Stevenson at ¶ 25 (trial court did not err in
denying request to instruct on voluntary manslaughter where appellant testified he shot
victim because he "feared for his life" and thought victim was going to shoot him); State v.
Caldwell, 10th Dist. No. 98AP-165 (Dec. 17, 1998) (trial court did not err in failing to
instruct on voluntary manslaughter where evidence indicated defendant acted out of
fear); State v. Hamilton, 4th Dist. No. 09CA3330, 2011-Ohio-2783, ¶ 90 (trial court did
not err in failing to instruct on voluntary manslaughter where defendant "repeatedly
testified that he was afraid" of victim and started stabbing victim out of fear of being
choked to death).
No. 17AP-427 22

{¶ 72} Appellant also contends the trial court erred in failing to instruct on
involuntary manslaughter. In support of this argument, appellant acknowledges he
"brought a knife to a fist fight" but argues that his conduct in "removing" the knife to
create separation between himself and Barnett was merely "reckless." (Appellant's Brief
at 25.)
{¶ 73} R.C. 2903.04 defines involuntary manslaughter in part as follows: "No
person shall cause the death of another * * * as a proximate result of the offender's
committing or attempting to commit a felony," or as a proximate result of the offender
committing or attempting to commit "a misdemeanor of any degree." R.C. 2903.04(A)
and (B). Under Ohio law, "involuntary manslaughter is a lesser-included offense of
murder." State v. Rice, 12th Dist. No. CA2003-01-015, 2004-Ohio-697, ¶ 41, citing State
v. Thomas, 40 Ohio St.3d 213, 215 (1988). If a lesser-included offense is identified, "the
court must then examine the facts and decide whether the jury could reasonably conclude
that the evidence supports a conviction for the lesser offense and not the greater." Id.,
citing State v. Kidder, 32 Ohio St.3d 279, 280 (1987).
{¶ 74} As noted by the state, appellant does not identify what predicate felony or
misdemeanor would have supported an instruction on involuntary manslaughter. This
court has previously held that where a defendant "has not identified what predicate
offense he believes the involuntary manslaughter instruction should have been based on,
we cannot determine whether involuntary manslaughter would be a lesser-included
offense of felony murder." State v. Hubbard, 10th Dist. No. 11AP-945, 2014-Ohio-122, ¶
21.
{¶ 75} Further, appellant's claim that his conduct was merely reckless is not
supported by the record. In the present case, the evidence indicates that appellant
stabbed Barnett twice, with the fatal wound striking four to six inches into Barnett's chest
and lacerating his lung and heart. Both Peterson and Martinez provided eyewitness
testimony as to appellant pulling out the switchblade knife and stabbing Barnett within
20 seconds of the confrontation. While appellant claimed his hoodie was up over his
head, even by his own admission, his intent was to swing the knife (i.e., a deadly weapon)
at Barnett; specifically, appellant testified he took two swipes with the switchblade "at
where I thought [Barnett] was." (Tr. Vol. III at 509.) Shortly before the stabbing,
No. 17AP-427 23

appellant had texted Barnett to state: "[B]ring sum witchu to cause this switchblade goin
thru your kidney." (Tr. Vol. III at 404.)
{¶ 76} The evidence presented at trial, including the location and depth of the fatal
stab wound and appellant's own testimony that he intended to swing the knife at Barnett,
undermines his claim of mere reckless behavior, and we find the trial court did not err in
failing to instruct on involuntary manslaughter. See, e.g., State v. Waller, 2d Dist. No.
2013-CA-26, 2014-Ohio-237, ¶ 2 (trial court did not err in failing to instruct on reckless
homicide where, on the evidence presented, no reasonable jury could have found that
defendant acted less than knowingly in stabbing his victim in the chest with a knife,
penetrating six inches into the victim's chest); State v. Smith, 1st Dist. No. C-080712,
2009-Ohio-6932, ¶ 31 (trial court's failure to instruct on involuntary manslaughter not
plain error; defendant stabbed victim in heart with knife, and "[n]o jury could have
reasonably found that [defendant] had recklessly inflicted these injuries"); State v.
Mulkey, 98 Ohio App.3d 773 (10th Dist.1994) (trial court's failure to instruct the jury on
involuntary manslaughter did not rise to the level of plain error given defendant's
admission that he stabbed the victim twice, once in the chest and again in the head).
{¶ 77} Based on the foregoing, appellant's second assignment of error is not well-
taken and is overruled.
{¶ 78} Appellant's third and fourth assignments of error are interrelated and will
be considered together. Under the third assignment of error, appellant asserts he was
denied effective assistance of counsel. Specifically, appellant points to the following ten
alleged instances of deficient performance by trial counsel: (1) failing to object to
additional evidence on redirect, (2) stipulating to the admissibility of downloaded
material from Barnett's phone, (3) questioning Detective Kestner about what appellant
told law enforcement, (4) objecting to a witness's response to a question defense counsel
had posed to that witness, (5) permitting appellant's grandmother to testify that she gave
appellant's hoodie to an attorney named Cicero, who appellant describes as "a well-known
disciplined lawyer," (6) attempting to call forensic scientist Colleen Hague, who
performed DNA testing, even though defense counsel had previously stipulated to the
report and did not subpoena Hague to appear, (7) inquiring of appellant if there was
anything counsel had missed, (8) failing to object when the trial court indicated it would
No. 17AP-427 24

not instruct on lesser-included offenses, (9) requesting the court to refresh counsel's
memory as to Evid.R. 404 and 608, and (10) attempting to admit a signed document by
Hague regarding the DNA, which the trial court denied. Under the fourth assignment of
error, appellant argues that cumulative error by trial counsel and the trial court denied
him a fair trial.
{¶ 79} In order to prevail on a claim of ineffective assistance of counsel, a
defendant "must satisfy a two-prong test." State v. Kennard, 10th Dist. No. 15AP-766,
2016-Ohio-2811, ¶ 14, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). Under
the first prong, a defendant must "demonstrate that his trial counsel's performance was
deficient." Id. If a defendant "can show deficient performance, he must next demonstrate
that he was prejudiced by the deficient performance." Id. A defendant's "failure to make
either showing defeats a claim of ineffective assistance of counsel." Id., citing State v.
Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697.
{¶ 80} In order to demonstrate deficient performance by counsel, a defendant
"must show that his counsel committed errors which were ' "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." ' "
Id. at ¶ 15, quoting State v. Phillips, 74 Ohio St.3d 72, 101 (1995), quoting Strickland at
687. Further, a defendant "must overcome the strong presumption that defense counsel's
conduct falls within a wide range of reasonable professional assistance." Id., citing
Strickland at 689. In order to show prejudice, a defendant "must establish there is a
reasonable probability that, but for his counsel's unprofessional errors, the result of the
trial would have been different." Id., citing Strickland at 689.
{¶ 81} Appellant first asserts his counsel was ineffective for not objecting to the
state's request to elicit new information on rebuttal. Specifically, appellant argues the
state failed to show a photo array to Martinez during direct examination, but the
prosecutor subsequently requested the court allow him to question the witness about the
array during redirect examination. The trial court permitted the questioning on redirect.
{¶ 82} Under Ohio law, "[t]he control of redirect examination is committed to the
discretion of the trial judge and a reversal upon that ground can be predicated upon
nothing less than a clear abuse thereof." State v. Wilson, 30 Ohio St.2d 199, 204 (1972).
In a similar vein, "[w]hile it is generally held that the redirect examination of a witness
No. 17AP-427 25

cannot be broader than the cross-examination, nevertheless, the scope of redirect
examination lies within the sound discretion of the trial court." State v. Pitts, 10th Dist.
No. 85AP-309 (Jan. 23, 1986).
{¶ 83} In the instant case, the record reflects no abuse of discretion by the trial
court in permitting the witness to testify regarding the photo array and, therefore,
appellant has not shown counsel was ineffective in failing to object. Further, inasmuch as
identity was not an issue in the case, appellant cannot demonstrate prejudice.
{¶ 84} Appellant next contends his counsel was ineffective in stipulating to the
admissibility of downloaded material from Barnett's cell phone. At trial, the parties
stipulated that State's Exhibit J "is [Barnett's] phone exam from this incident that was
done by Detective Howe." (Tr. Vol. II at 346.) Appellant notes that text messages from
the phone were subsequently admitted into evidence.
{¶ 85} Appellant also notes the state made a motion in limine with respect to
defense counsel's desire to use, during cross-examination of a witness, "a series of
Facebook conversations that are * * * between other parties, not the defendant, weeks
before the offense." (Tr. Vol. III at 357.) The prosecutor represented to the trial court that
the Facebook conversations "are private messages * * * between other parties having
nothing to do with this" and that "the defendant, himself, was not aware of any of these
conversations." (Tr. Vol. III at 357-58.) The trial court ruled at the time that, in "a self-
defense case, it is what is in the mind of the defendant. * * * And if he didn't know about
it, then it is completely irrelevant." (Tr. Vol. III at 359.)
{¶ 86} On appeal, appellant acknowledges the character of the victim is only
relevant to the issue of a defendant's state of mind if the defendant knew about it.
Appellant argues, however, the contents of the phone download were apparently
"misunderstood" by trial counsel. (Appellant's Brief at 28.)
{¶ 87} As this court has previously noted, "[i]t is a well-established principle that
decisions regarding stipulations are matters of trial strategy and tactics." State v. Roy,
10th Dist. No. 14AP-986, 2015-Ohio-4959, ¶ 22, citing State v. Rippy, 10th Dist. No.
08AP-248, 2008-Ohio-6680, ¶ 16. Here, appellant fails to indicate why the evidence that
was the subject of the stipulation, if objected to, would not have been admissible.
No. 17AP-427 26

Appellant has therefore not shown that counsel was ineffective for entering into the
stipulation at issue.
{¶ 88} Appellant next argues ineffective assistance based on trial counsel's cross-
examination of Detective Kestner, in which counsel questioned the detective regarding
information appellant provided law enforcement officials following the incident.
Specifically, trial counsel asked the detective whether the blood on appellant's sweatshirt
was "consistent with what he described to you?" (Tr. Vol. III at 365.) The trial court
sustained the state's objection on the basis that the inquiry sought the witness to "vouch
for the credibility of your client." (Tr. Vol. III at 365.)
{¶ 89} Appellant argues the information his counsel sought from the detective
constituted hearsay. As noted by the state, however, the fact that trial counsel was
unsuccessful in eliciting inadmissible hearsay testimony does not render counsel's
performance deficient, nor has appellant demonstrated prejudice from the alleged
deficiency.
{¶ 90} Appellant also cites as ineffective assistance his trial counsel's objection to
his own question on cross-examination. Specifically, during the recross-examination of
Detective Kestner, defense counsel asked the witness: "How do you know that Nick's
grandmother attempted to sell his Jeep?" (Tr. Vol. III at 405.) Detective Kestner
responded in part: "The couple * * * that came out to talk to us when we were impounding
the Jeep said that a woman had attempted to sell them the Jeep and when - - this was not
in my presence." (Tr. Vol. III at 405-06.) Defense counsel then stated: "Objection." (Tr.
Vol. III at 406.) Although not entirely clear from the record, counsel apparently raised
the objection to his own question based on concern that the detective was about to
provide hearsay testimony.
{¶ 91} On appeal, appellant appears to contend trial counsel should not have posed
the question at all. In general, however, "[a] trial counsel's line of questioning on cross-
examination is a matter of trial strategy." State v. Ferguson, 10th Dist. No. 07AP-999,
2008-Ohio-6677, ¶ 64. Thus, a reviewing court "will not question counsel's strategic
decision to engage, or not engage, in a particular line of questioning as these decisions are
presumed to be the product of sound trial strategy." State v. Davis, 12th Dist. No.
No. 17AP-427 27

CA2012-12-258, 2013-Ohio-3878, ¶ 25. Further, appellant has failed to demonstrate how
the exchange at issue prejudiced him or affected the outcome of the trial.
{¶ 92} Appellant's fifth claim of ineffective assistance of counsel involves the
testimony of appellant's grandmother, Karen Kean, during which she related the
circumstances in which she located appellant's hoodie and took the clothing to the office
of defense counsel. More specifically, appellant notes his grandmother mentioned during
her testimony that she handed the items over to an individual named Cicero. Appellant
argues that "Cicero is a well-known disciplined lawyer." (Appellant's Brief at 29.)
Appellant maintains the danger of the name "even being associated with trial counsel or
[a]ppellant causes alarm." (Appellant's Brief at 31.) According to appellant, jurors should
have been questioned as to whether they knew of Cicero or his reputation.
{¶ 93} In response, the state argues there is no evidence any of the jurors were
aware of Cicero's reputation, nor is there any indication from the record that the
individual mentioned was the same attorney that faced past disciplinary problems. The
state also argues that no party argued about Cicero's reputation during the proceedings.
{¶ 94} The record indicates that, on direct examination, defense counsel asked
Kean what she did with appellant's sweatshirt after it was found. Kean responded: "At
that point I brought it down to your office. I believe it was Mr. Cicero that accepted the
hoodie sweatshirt." (Tr. Vol. III at 458.) Later, during cross-examination, the prosecutor
asked Kean: "Who did you turn [the clothing] into?" (Tr. Vol. III at 463.) Before Kean
could respond, the trial court called counsel to a sidebar outside the presence of the jury.
The trial court inquired of the prosecutor: "Why do we need to bring Cicero into it, his
name?" (Tr. Vol. III at 464.) The prosecutor explained the question was directed toward
the issue of chain of custody. The trial court then requested the prosecutor frame the
question "a different way without asking" about the name of the individual who received
the items at the office. (Tr. Vol. III at 465.) The prosecutor agreed to change the inquiry
to: "Do you know what happened to it after you turned it in?" (Tr. Vol. III at 465.)
{¶ 95} On review, we agree with the state that there is no indication from the
record that any juror was aware of the individual named (or of that individual's purported
reputation). Accordingly, there is nothing in the record to show Kean's mention of the
No. 17AP-427 28

name Cicero, in the context of dropping off clothing at defense counsel's office, resulted in
prejudice to appellant.
{¶ 96} Appellant next claims ineffective assistance based on the fact that defense
counsel stipulated to a report prepared by a forensic scientist (Colleen Hague) but later
attempted to call this individual as a witness. Appellant argues that, while counsel "had
previously stipulated to the report," counsel "did not subpoena Hague to appear."
(Appellant's Brief at 33.) In response, the state argues the decision to stipulate to the
DNA report was reasonable trial strategy, and appellant has failed to demonstrate
prejudice as the jury had the report prepared by Hague.
{¶ 97} At trial, defense counsel represented to the trial court: "I plan on calling
Colleen Hague, who is a forensic scientist who did the DNA. I know we stipulated to it,
but I feel * * * it is safest to make sure she identifies that there is no dirt or anything, any
other contaminants." (Tr. Vol. III at 477.) The trial court observed that "she is just going
to testify as to what she did." (Tr. Vol. III at 478.) Defense counsel agreed: "Obviously,
yes, that would be her testimony, that she did run the tests." (Tr. Vol. III at 478.) The
trial court then inquired of counsel: "But didn't you stipulate to it?" (Tr. Vol. III at 478.)
Counsel responded: "Yeah. Just belt and suspenders, Your Honor." (Tr. Vol. III at 478.)
{¶ 98} On appeal, appellant does not suggest what testimony Hague would have
provided that was not already before the jury in the stipulated-to report (State's Ex. H-1).
Under Ohio law, the "[f]ailure to put on cumulative evidence is not indicative of
ineffective assistance of counsel." State v. Johnson, 2d Dist. No. 16803 (Aug. 7, 1998),
citing State v. Combs, 100 Ohio App.3d 90 (1st Dist.1994). Here, appellant cannot show
counsel was ineffective in failing to present cumulative evidence. Based on this court's
review, appellant has demonstrated neither deficient performance nor prejudice based on
counsel's decision to stipulate to the report at issue.
{¶ 99} Under his seventh claim of ineffective assistance of counsel, appellant cites
to an inquiry by his trial counsel at the end of appellant's direct examination, in which
counsel asked appellant: "[I]s there anything I have left out or anything you want the jury
to know that I might have missed in speaking to you and asking you questions today?"
(Tr. Vol. III at 516.) The record indicates the state objected, and the trial court sustained
No. 17AP-427 29

the objection. Again, appellant has failed to demonstrate (or even explain) how this
unanswered question prejudiced him.
{¶ 100} Appellant next cites ineffective assistance as a result of his counsel's
failure to object when the trial court indicated it would not be instructing on lesser-
included offenses. We have previously found, however, in addressing appellant's second
assignment of error, that the trial court did not err in failing to instruct on the lesser-
included (or inferior degree) offenses of voluntary and involuntary manslaughter.
Accordingly, trial counsel's failure to object to the trial court's ruling on this issue
implicates neither deficient representation nor prejudice.
{¶ 101} Appellant also asserts his counsel was ineffective in asking the court to
"refresh" counsel's memory regarding Evid.R. 404(A)(1) and 608. This request was made
in the context of defense counsel indicating he would be calling a character witness
(Daniel Baker). As noted by the state, however, this inquiry was not made in front of the
jury, and the record indicates appellant was permitted to call the witness at issue. The
state also contends defense counsel's failure to recall which rule applied during the
pressure of trial does not demonstrate deficient performance, and the record does not
demonstrate any prejudice. We agree and find neither deficient performance nor
prejudice with respect to this claim.
{¶ 102} Appellant's final claim of ineffective assistance of counsel involves a
document signed by Hague, the forensic scientist (titled "written stipulation of Colleen
Hague"). Appellant notes trial counsel requested the document be submitted into
evidence, but the trial court denied the request.
{¶ 103} The record indicates the trial court deemed the document sought to be
admitted as "just cumulative." (Tr. Vol. IV at 577.) On appeal, appellant acknowledges
that the document was "just a summary of the report already in evidence." (Appellant's
Brief at 34.) In this respect, as noted by the state, Hague's DNA report was submitted to
the jury (as State's Ex. H-1). Again, appellant has failed to show any prejudice where the
evidence at issue was cumulative of evidence already before the jury.
{¶ 104} Appellant also contends he was denied a fair trial based on the cumulative
effect of the above claims. We disagree.
No. 17AP-427 30

{¶ 105} Under Ohio law, "[a]lthough a particular error might not constitute
prejudicial error in and of itself, a conviction may be reversed if the cumulative effect of
the errors deprives appellant of a fair trial, despite the fact that each error individually
does not constitute cause for reversal." State v. Givens, 7th Dist. No. 07 CO 31, 2008-
Ohio-3434, ¶ 97, citing State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the
syllabus. The doctrine of cumulative error, however, "is not applicable where appellant
fails to establish multiple instances of harmless error during the course of the trial." Id.,
citing State v. Garner, 74 Ohio St.3d 49, 64 (1995). Further, a defendant claiming
cumulative error "must make 'a persuasive showing of cumulative error.' " Id., quoting
State v. Sanders, 92 Ohio St.3d 245, 279 (2001).
{¶ 106} In the present case, appellant has failed to establish multiple instances of
harmless error and, therefore, the doctrine of cumulative error is not applicable. In light
of the foregoing, and having failed to demonstrate deficient performance or actual
prejudice with respect to the above ten claims, appellant's third and fourth assignments of
error are overruled.
{¶ 107} Appellant's fifth and sixth assignments of error are interrelated and will be
considered together. Under the fifth assignment of error, appellant contends the trial
court erred in overruling his Crim.R. 29 motion for judgment of acquittal. Under the
sixth assignment of error, appellant contends his conviction is against the manifest weight
of the evidence.
{¶ 108} Under Ohio law, "[a] motion for judgment of acquittal, pursuant to
Crim.R. 29, tests the sufficiency of the evidence." State v. Darrington, 10th Dist. No.
06AP-160, 2006-Ohio-5042, ¶ 15. Thus, "an appellate court reviews a trial court's denial
of a motion for acquittal using the same standard for reviewing a sufficiency of the
evidence claim." Id. In considering a sufficiency claim, "[t]he evidence is construed in the
light most favorable to the prosecution to determine whether a rational trier of fact could
have found the elements of the offense proven beyond a reasonable doubt." State v.
Jewett, 10th Dist. No. 11AP-1028, 2013-Ohio-1246, ¶ 15.
{¶ 109} By contrast, in considering whether a conviction is against the manifest
weight of the evidence, the task of an appellate court is to "review the entire record, weigh
the evidence and all reasonable inferences, and consider the credibility of witnesses."
No. 17AP-427 31

State v. Bandy, 1st Dist. No. C-160402, 2017-Ohio-5593, ¶ 55, citing State v. Thompson,
78 Ohio St.3d 380, 387 (1997). The issue in "reviewing such a claim is whether in
resolving conflicts in the evidence, and in rejecting [a defendant's] defenses, the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed." Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 110} As noted, the jury returned a verdict finding appellant guilty of felony
murder as charged in Count 2 of the indictment (i.e., as a proximate result of committing
the predicate offense of felonious assault). R.C. 2903.02(B) states in part: "No 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."
R.C. 2903.11(A)(2) defines felonious assault in part as follows: "No person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a
deadly weapon."
{¶ 111} We initially consider the sufficiency of the evidence. Construing the
evidence most strongly in favor of the prosecution, as we are required to do in considering
a sufficiency challenge, the record indicates the following evidence. On the date of the
incident, Hunter Peterson, Jose Martinez, and John Barnett were driving around in
Barnett's vehicle, smoking marijuana. At 2:45 p.m., appellant texted Barnett indicating
he had a switchblade knife. The text by appellant stated: "Bring sum witchu to cause this
switchblade goin thru your kidney." (Tr. Vol. III at 404.) At 2:57 p.m., appellant texted
Barnett to state: "On my way to yah momma house." (Tr. Vol. III at 404.) At
approximately 3:30 p.m., appellant sent another text stating: "Ran thru ur yard an almost
hadd beat ur neighbor up smh." (Tr. Vol. III at 404.) Barnett also received a phone call
from one of his parents indicating that appellant had been to their house, that he had
driven in the yard, and that he was acting in a "harassing" manner. (Tr. Vol. II at 188.)
{¶ 112} A short time later, Barnett's vehicle and appellant's vehicle passed each
other on Briggs Road. Both vehicles eventually stopped near the intersection of Binns
Boulevard and Briggs Road, and appellant and Barnett exited their vehicles. Peterson
testified that Barnett and appellant met in the middle of the street and "started throwing
punches at each other." (Tr. Vol. II at 197.) Martinez similarly testified that appellant and
Barnett "met up in the middle of the road and got to fighting. They were both throwing
No. 17AP-427 32

fists at each other." (Tr. Vol. II at 248.) Less than 20 seconds into the fight, appellant
pulled out a switchblade knife from his jacket and stabbed Barnett twice. Martinez
observed appellant "duck down, go in his pocket with his right hand." (Tr. Vol. II at 250.)
Appellant "[r]eached into his hoodie pocket" and "[c]ame out with the knife" and stabbed
Barnett. (Tr. Vol. II at 251.) The fatal stab wound was four to six inches deep, lacerating
Barnett's lung and heart. None of the witnesses, including appellant, observed a weapon
on Barnett. Appellant testified that Barnett might have thrown one punch "before I
produced the weapon. I didn't wait for the punch to pull the weapon." (Tr. Vol. III at
539.) None of the witnesses heard Barnett make any threats at the time. Appellant
acknowledged the only thing he heard Barnett say to him was: "You stabbed me." (Tr.
Vol. III at 540.) After appellant stabbed Barnett, the knife fell to the ground. Appellant
admitted he picked up the knife before fleeing the scene.
{¶ 113} Appellant acknowledged at trial that he "threatened [Barnett] with a
knife" on the date of the incident. (Tr. Vol. III at 488.) He also acknowledged telling
police that his "impression" that day was that "we were going to meet up to fight." (Tr.
Vol. III at 536.) Both Peterson and Martinez testified appellant was not in danger of
serious physical harm at the time of the incident, and photographs taken of appellant one
day after the incident revealed no injuries to him.
{¶ 114} As discussed under the first assignment of error, the evidence failed to
show appellant was in imminent danger of death or serious bodily harm at the time of the
altercation. Rather, the evidence indicated Barnett was unarmed and he swung his fist no
more than once before appellant pulled out a switchblade knife and stabbed him in the
chest. As also discussed, the evidence indicated appellant responded with deadly force
that was not necessary or proportionate to the threat posed, i.e., in response to a single
punch thrown by Barnett, appellant introduced a deadly weapon into a fist fight. Viewing
the above evidence in a light most favorable to the prosecution, the record established
sufficient evidence to support the elements of felony murder beyond a reasonable doubt.
Accordingly, the trial court did not err in denying appellant's Crim.R. 29 motion for
judgment of acquittal.
{¶ 115} With respect to appellant's manifest weight claim, appellant argues there
were inconsistencies in the testimony of the state's primary witnesses, and the evidence
No. 17AP-427 33

established the affirmative defense of self-defense. Appellant maintains that Peterson
and Martinez gave inconsistent testimony regarding whether Barnett initially pursued
appellant as they were driving around. Appellant also points to his own testimony that he
was pulled from the vehicle.
{¶ 116} In response, the state argues that, despite appellant's claim of
inconsistencies in the testimony of Peterson and Martinez, their testimony was
remarkably consistent as to the major aspects of the case. The state notes Peterson and
Martinez both testified that appellant and Barnett got out of their respective vehicles and
that appellant was not dragged from his Jeep; further, both of these witnesses testified
Barnett was unarmed.
{¶ 117} In general, a reviewing court must "accord due deference to the credibility
determinations made by the fact finder." State v. Thompson, 127 Ohio App.3d 511, 529
(8th Dist.1998). Further, under Ohio law, "the mere existence of inconsistencies in the
testimony of different witnesses does not mandate that an appellate court reverse a
conviction on manifest weight grounds." State v. Wareham, 3d Dist. No. 3-12-11, 2013-
Ohio-3191, ¶ 24.
{¶ 118} In the present case, the jury had the opportunity to consider the credibility
of the state's witnesses, as well as the credibility of appellant's testimony. The trier of fact
was not required to credit appellant's version of the events, including his testimony that
he only drove to the home of Barnett's parents to "see[] what was the problem" and to
"figure[] out the difference." (Tr. Vol. III at 489.) Rather, the jury heard evidence that
appellant had earlier texted Barnett to state that he had a switchblade knife and that he
was "[o]n my way to yah momma house." (Tr. Vol. III at 404.) The jury was also not
required to accept appellant's testimony that he was pulled from his vehicle by Barnett.
Both of the state's witnesses contradicted appellant's version, testifying Barnett and
appellant willingly met up in the middle of the street and began to throw punches. The
state's evidence also showed blood in the middle of the street, consistent with the
testimonies of Peterson and Martinez. Finally, the trier of fact heard evidence that
appellant informed police he grabbed the knife out of his vehicle, which conflicted with
appellant's trial testimony that he pulled the switchblade out of his shirt.
No. 17AP-427 34

{¶ 119} Here, it was within the province of the jury to credit the testimony of the
state's witnesses that Barnett and appellant met with the intention of engaging in a fist
fight. As previously discussed, the evidence indicates that, within seconds of the
altercation, and before Barnett threw more than a single punch, appellant pulled out a
switchblade knife and stabbed Barnett twice, including the fatal wound to the chest. As
also discussed, there was no evidence Barnett had a weapon during the altercation, and
the credible evidence failed to support a finding that appellant had reasonable grounds for
believing there was an imminent threat of death or serious bodily harm. More
significantly, the weight of the evidence simply did not show that the use of deadly force
by appellant, who suffered no apparent injury during the altercation, was warranted
under the circumstances and proportionate to the perceived threat. See State v. Hogg,
10th Dist. No. 11AP-50, 2011-Ohio-6454, ¶ 39 (conviction for aggravated murder not
against the manifest weight of the evidence where evidence established the victim swung
his fist at defendant, never actually hitting defendant, and defendant responded by fatally
stabbing the unarmed victim). Based on this court's review of the record, weighing the
evidence and all reasonable inferences, and considering the credibility of witnesses, we
conclude the jury did not clearly lose its way and create such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.
{¶ 120} Accordingly, appellant's conviction was not against the manifest weight of
the evidence. Further, having found the trial court did not err in denying appellant's
motion for judgment of acquittal, the fifth and sixth assignment of error are overruled.
{¶ 121} Based on the foregoing, appellant's six assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.

LUPER SCHUSTER, J., concurs.
BRUNNER, J., dissents.

BRUNNER, J., dissenting.
{¶ 122} I concur with the majority that there was insufficient basis for instructing
the jury on voluntary manslaughter, and thus I would overrule Nicholas Kean's second
assignment of error. But on Kean's first assignment of error, I respectfully dissent from
the opinion of the majority. I would sustain Kean's first assignment of error, finding that
No. 17AP-427 35

the trial court erred in not instructing the jury on the rebuttable presumption of self-
defense. I would find moot all other assignments of error and remand to the trial court for
a new trial.
{¶ 123} Kean argues in relation to the fact that the jury was not permitted to
consider whether he acted in self-defense, that the trial court improperly limited jury
instructions when it prohibited the jury from deciding whether John Barnett, the
individual Kean stabbed and killed, pulled Kean out of his vehicle. This issue was
predicate to a jury finding that Kean acted in self-defense in attempting to protect
himself from Barnett's advances. Kean argues that the trial court erred in not providing
a rebuttable presumption instruction of self-defense to the jury, because the trial judge
found Kean's testimony not credible that he was dragged out of his vehicle. Thus, the
jury was not even permitted to decide whether, factually, certain events such as this
occurred that would support instructing the jury on self-defense. The State argues the
trial court's refusal to so instruct the jury was harmless error, and the majority finds
harmless error beyond a reasonable doubt in supporting the trial court's decision to
limit instruction. See Majority Decision at ¶ 59.
{¶ 124} Kean testified in his own defense. He testified that Barnett had earlier
told Kean when they heatedly discussed meeting that Barnett would blow his head off.
Kean testified he had previously observed Barnett with a gun. Kean had a knife and in
that heated discussion he made threats to Barnett about what he would do with it to
Barnett. The majority finds that "no rational jury could have found appellant's use of a
knife under the facts and circumstances of this case was reasonably necessary and
proportionate to the danger presented." Id.
{¶ 125} On cross-examination, Kean stated he did not observe Barnett with a
weapon during the incident and he also stated he "couldn't see if [Barnett] had [a
weapon] at that very moment." (Tr. Vol. III at 511.) While determining the existence of
a valid argument that the accused acted in self-defense involves three factors, if there is
conflicting evidence as to one such factor, the jury, not the trial court, should decide
whether or not a criminal defendant acted in self-defense. The trial court made an
impermissible credibility determination and effectively denied Kean the right to have
the jury consider whether Kean acted in self-defense. It disregarded Kean's testimony
No. 17AP-427 36

that raised questions about whether Barnett had a weapon, characterizing it as self-
serving. The majority opinion is constructed on a variety of cases from other districts
that, taken together, reach this "inescapable conclusion" to support affirming the trial
court.
{¶ 126} This Court has long stated, "[i]t is basic that the weight to be given
evidence and the weighing of credibility of the witnesses is for the trier of fact." State v.
Kirksey, 10th Dist. No. 91AP-798, 1992 WL 55447, 1992 Ohio App. LEXIS 1282, *5-6
(Mar. 19, 1992), citing State v. DeHass, 10 Ohio St.2d 230 (1967). In Kirksey, the facts
were very similar to what they are in Kean's case. The record revealed that the
defendant's version of the facts "was directly at odds with that of his two companions
and his mother." Id. at *5. Critically, we stated, "there was no evidence other than the
self-serving testimony of defendant, that the victim may have had a knife in his
possession at the time of the shooting" and "while none of the witnesses in this case
(except defendant) saw the victim with a knife, a knife was later observed on the floor
near the couch by defendant's two companions. And a pair of safety scissors was found
under the body of the victim upon examination by detectives." Id. We concluded: "It is
obvious the jury rejected defendant's unsupported plea of self-defense and properly
decided between competing alternatives as to the appropriate degree of offense found to
have been committed by the defendant." Id.
{¶ 127} In Kirksey, while we characterized the defendant's testimony in his own
defense and in conflict with that of other witnesses as "self-serving," we never said that
the jury should not have been permitted to decide whether he acted in self-defense based
on that testimony. Rather, we followed Supreme Court of Ohio precedent that the
credibility determination and judging of the weight of the evidence belonged solely to the
jury.
{¶ 128} Here, in Kean's case, he was denied the opportunity to have a jury
determine whether he acted in self-defense. In Kean and Barnett's situation, the
weapons—gun versus knife—were reversed from the facts in Kirksey, where defendant
had the gun while the victim was argued to have the knife.
{¶ 129} The majority need not have gone outside our appellate district to apply the
law or even to find facts not nearly as strikingly similar to Kean's case. I am gravely
No. 17AP-427 37

concerned that we are headed on a dangerous course when we permit the trial court to
weigh credibility to determine whether the jury should be instructed on a matter as basic
to a fair trial as whether a criminal defendant acted in self-defense. Worse, I hold grave
concerns when we find that a matter as serious as making credibility determinations when
such is the province of the jury is harmless error. Kean alleged in his first assignment of
error both federal and state constitutional violations. I agree that such violations were
committed and that he was denied a fair trial. I would find the trial court abused its
discretion in failing to instruct the jury so as to permit the question of whether Kean
acted in self-defense to be determined by the jury rather than the trial judge. I would
sustain Kean's first assignment of error, reverse, and remand the case for a new trial. I
would overrule Kean's second assignment of error and find moot the other assignments
of error he has raised on appeal.
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