[Cite as State v. Blevins, 2019-Ohio-2744.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 18CA2
:
vs. :
: DECISION AND
: JUDGMENT ENTRY
JUSTIN RAY BLEVINS, :
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Dennis C. Belli, Columbus, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Appellant, Justin Ray Blevins, appeals his convictions and
sentences for aggravated murder, murder, and felonious assault. On appeal,
Appellant contends that 1) his conviction for aggravated murder is not
supported by sufficient evidence of prior calculation and design; 2) a
defective voluntary manslaughter instruction rose to the level of plain error
and deprived him of his constitutional right to a jury determination of his
guilt of a less serious offense than the aggravated murder and murder counts
of the indictment; 3) his exclusion from the proceedings involving responses
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to the jury’s questions violated his Crim.R. 43 and constitutional rights to be
present for all critical stages of the proceedings; 4) the trial court’s incorrect,
incomplete, and confusing responses to the jury’s questions amounted to an
abuse of discretion and deprived him of his right to a fundamentally fair trial
and reliable jury verdict; 5) he was denied his right to the effective
assistance of counsel due to the combined prejudicial impact of multiple
instances of deficient performance; 6) the jury’s verdicts of guilty for
aggravated murder, murder and felonious assault are against the manifest
weight of the evidence; and 7) the record clearly and convincingly does not
support the imposition of a life prison term with parole eligibility after
serving thirty years.
{¶2} Because we conclude Appellant’s conviction for aggravated
murder was supported by sufficient evidence of prior calculation and design,
we find no merit to Appellant’s first assignment of error and it is overruled.
In light of our conclusion that Appellant was not entitled to a jury instruction
on voluntary manslaughter, he cannot demonstrate that he was prejudiced by
the trial court’s alleged error. Thus, we find no merit to Appellant’s second
assignment of error and it is also overruled. Likewise, because we find that
that the trial court’s provision of written answers to the jury in response to
the jury’s written questions did not constitute a critical stage of the
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proceedings, Appellant’s statutory and constitutional rights to be present
were not violated. As such, Appellant’s third assignment of error is also
overruled.
{¶3} With regard to Appellant’s fourth assignment of error, because
the jury’s first question dealt with the voluntary manslaughter instruction
and because we have found Appellant was not entitled to that instruction,
any error by the court in answering the question was harmless. Further, as
we find no error in the answer provided by the trial court in response to the
jury’s second question, we find no merit to Appellant’s fourth assignment of
error and it is likewise overruled. Additionally, in light of our conclusion
that trial counsel did not provide ineffective assistance and that Appellant
failed to show cumulative error affected the outcome of the proceedings,
Appellant’s fifth assignment of error is overruled. Likewise, Appellant’s
sixth assignment of error is overruled because we have found his convictions
were not against the manifest weight of the evidence. Finally, because
Appellant’s sentence is supported by the record and is not clearly and
convincingly contrary to law, Appellant’s seventh assignment of error has no
merit and is also overruled.
{¶4} Having found no merit in any of the assignments of error raised
by Appellant, the judgment of the trial court is affirmed.
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FACTS
{¶5} Appellant, Justin Ray Blevins, was indicted on July 7, 2017, on
four felony counts which included: 1) aggravated murder in violation of R.C.
2903.01(A); 2) murder in violation of R.C. 2903.02(A); 3) murder in
violation of R.C. 2903.02(B); and felonious assault in violation of R.C.
2903.11(A)(2). Counts one through three were unspecified felonies and
count four was a second-degree felony. Additionally, counts one through
four all contained firearm specifications which specified the use of a .40
caliber handgun. The indictment stemmed from an investigation relating to
the death of the Samuel Nicholson, the victim herein, a sixteen-year-old
male residing in an apartment rented by Darrell Arnett.
{¶6} The investigation into Nicholson’s death began with a 911 call at
approximately 5:30 a.m. on the morning of June 11, 2017, from Arnett’s
sister, who lived in the same apartment complex as Arnett and Nicholson.
The call initially reported a burglary and a fight. When law enforcement
arrived at the scene they found Arnett waiting outside and subsequently
found the victim inside the apartment, deceased, from what appeared to be
multiple gunshot wounds. Once the scene was secured and evidence
gathered, Arnett was taken to the police station for questioning where he was
cooperative and voluntarily gave a statement.
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{¶7} Arnett reported that he had known the victim since they were
children and that he had allowed the victim to live with him because he had
nowhere else to stay. He reported he went to bed the night before and the
apartment was empty with the exception of the victim. He stated he awoke
in the early morning to the sound of gunshots and then heard the victim yell
“What the fuck?” He then heard additional gunshots. He reported he got
up, grabbed his hatchet and ran downstairs where he saw the victim lying in
the floor. He stated he caught a glimpse of someone exiting the apartment
wearing red shorts and a red shirt. He reported that he kicked the victim and
told him to get up but he didn’t respond. He reported that the assailant
returned to the apartment and an altercation ensued. He reported that he
scratched the assailant and that the assailant placed him in a headlock. He
explained that when he was finally able to free himself, he ran out of the
apartment to his sister’s apartment and asked her to call for help. Arnett
advised law enforcement he believed the assailant was Appellant, Justin
Blevins. DNA samples were taken from underneath Arnett’s fingernails
which ultimately matched Appellant’s DNA. Arnett’s statements along with
law enforcement’s subsequent investigation led to Appellant’s arrest and
subsequent indictment.
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{¶8} The matter proceeded to a jury a trial on December 11, 2017.
The State introduced several witnesses, including: 1) Darrell Arnett, the
victim’s roommate; 2) Sergeant James Zimmerman, who first arrived at the
scene and confirmed the victim was deceased; 3) Dr. John Ellis, the county
coroner; 4) Special Agent Todd Fortner, who took photographs and helped
process the evidence; 5) Logan Schepeler, a forensic scientist in the DNA
section of the Bureau of Criminal Investigation (hereinafter “BCI”) who
confirmed the Appellant’s DNA matched the sample taken from under
Arnett’s fingernails; 6) Andrew McClelland, a forensic scientist and firearms
examiner with BCI, who examined the gun recovered from the scene, along
with the spent and unspent bullets and cartridge cases recovered as a result
of the investigation; 7) Lieutenant Detective Jeffrey George, the lead
detective on the case from the Ashville Police Department; 8) Chloe Brady,
a mutual friend of the victim and Appellant; 9) Dwight Haddox, the
boyfriend of Appellant’s mother, who had contact with Appellant in the days
following the murder; and 10) Detective Phil Roar, who conducted a search
of the cell phones pertinent to the investigation. Appellant introduced five
witnesses, and also testified on his own behalf.
{¶9} Pertinent to this appeal, Darrell Arnett testified at trial that he
was able to identify Appellant by his voice because he had viewed several
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videos Appellant had placed on the internet. He also testified he had seen
Appellant on prior occasions. Sergeant James Zimmerman testified that
when he responded to the scene he found the apartment in a disheveled state
with furniture knocked over. He also testified he found a hatchet and a
semi-automatic pistol near the couch. Dr. John Ellis, the county coroner,
testified that the apartment was a mess when he observed it. He testified that
when he encountered the victim, it appeared he had been rolled over by
someone. Dr. Ellis testified that the victim sustained three bullet wounds to
his head, three bullet wounds to his torso, four bullet wounds to his upper
left extremities, and four bullet wounds to his upper right extremities. Dr.
Ellis went over each entrance and exit wound and testified that he suspected
some of the bullets created more than one entrance and exit wound. He
testified that in his opinion ten or eleven shots were fired. Importantly, Dr.
Ellis testified that several of the shots entered posteriorly and exited
anteriorly, which indicates the victim was shot from behind. Dr. Ellis also
testified that the trajectory of a shot that entered the victim’s jaw and exited
his chin was in a downward motion, rather than an upward motion, as
testified to later by Appellant. Further, Dr. Ellis testified that the shots to the
victim’s upper extremities suggested “defensive wounds” from where the
victim was likely holding his arms up to defend himself. Dr. Ellis testified
Pickaway 18CA2 8
that one of the shots to the victim’s head had a gunpowder burn, suggesting
it was a contact wound. Lastly, Dr. Ellis testified that the victim died from
multiple gunshot wounds.
{¶10} Special Agent Todd Fortner testified that the condition of the
apartment showed obvious signs of a struggle. He testified that he recovered
the murder weapon, which was a Daewoo .40 caliber Smith and Wesson
(hereinafter “S&W”) semi-automatic pistol, which is rare.1 He testified that
he found the gun with an empty magazine seated in it, with the slide locked
and pulled back, as you would find when a gun is completely expended. He
testified it was easy to conclude that whoever had the gun emptied it. He
further testified that he recovered several spent bullets and cartridge cases.
He explained that all of the cartridge cases were on one side of the room and
all of the fired bullets were found on the opposite side of the room where the
victim was located. He testified he found bullets in the wall, baseboard,
carpet and in a game controller, indicating all the shots that were fired were
fired in the direction of the victim. He also testified that he subsequently
executed a search warrant of Bret Taylor’s vehicle, which was determined to
the be the vehicle Appellant drove that night, and that he recovered an
1
“Smith & Wesson (S&W) is an American manufacturer of firearms, ammunition and restraints.”
https://en.wikipedia.org/wiki/Smith_%26_Wesson
Pickaway 18CA2 9
unspent bullet, or cartridge case, with a .40 S&W with a headstamp N.F.C.R.
on it, which matched the other cartridge cases found at the scene.
{¶11} Andrew McClelland testified regarding his forensic
examination of the murder weapon. He confirmed the gun recovered was a
Daewoo model DH40 .40 caliber S&W semi-automatic pistol bearing serial
number DA100522 with one magazine. He testified that the gun had a
capacity of ten cartridges and was able to hold one bullet before firing,
explaining that “it can hold what’s referred to as ten plus one, meaning one
in the chamber of the firearm plus ten additional cartridges in the magazine.”
He further testified that as part of examination he was able to conclude that
the firearm was discharged and that the eight recovered, fired .40 caliber
S&W cartridges were identified as having been fired from that firearm. He
also testified that the unspent bullet, or unfired cartridge, that was recovered
had been cycled through the submitted magazine and bore the same
markings as the fired cartridges.
{¶12} Lieutenant Detective Jeffery George also testified as part of the
State’s case. He served as the lead detective and interviewed multiple
individuals identified as friends or acquaintances of Appellant and the
victim, who had been with or spoken with Appellant or the victim just
before the murder. Some of these individuals included Chloe Brady, Bryce
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Sparks, Autumn Leach, Halee Hilton and Dwight Haddox. He testified that
he learned during his investigation that Chloe Brady, Halee Hilton and
Autumn Leach had all seen a Facebook message sent from Appellant the day
prior to the murder, which included a photo of the gun used in the murder
along with the comment “I gotta go take care of some b.s.” The message
was sent by Appellant through Facebook messenger to Halee Hilton, and
also possibly Autumn Leach. Chloe Brady testified as well, regarding the
photo sent to Hilton from Appellant.
{¶13} Dwight Haddox testified that he was called to go pick up
Appellant in Londonderry the day after the murder. He testified that while
in the car with Appellant, as well as Appellant’s sister and mother, Appellant
made a loud outburst, almost a cry, and stated he had killed Sammy. He
stated Appellant and his sister were in the car with him the next day as well
and that he heard a comment made about the gun being emptied. He
testified that at that point he figured Appellant was on the run and that he
dropped Appellant off on the side of the road and subsequently went to the
Sheriff’s station to make a report.
{¶14} Finally, Detective Phil Roar testified for the State. He testified
that he examined cell phones and phone records as part of the investigation.
He testified to a series of text messages between Appellant and the victim
Pickaway 18CA2 11
leading up to the day of the murder which suggested a disagreement was
beginning to develop over drug transactions and money owed to the victim.
He recited several threatening messages between the two, indicating the
victim told Appellant he was “strapped” and that both of them may lose their
lives over $700.00. The last text communication between the two took place
around 11:00 p.m. the night before the murder.
{¶15} Appellant testified on his own behalf at trial. He did not deny
going to the victim’s house with a loaded gun, nor did he deny shooting the
victim to death. Although he suggested Darrell Arnett may have been the
one to empty the gun and ultimately kill the victim, there was absolutely no
evidence introduced to support this theory. Further, Appellant’s main theory
at trial seemed to be that he was justified in killing the victim, either based
upon a theory of provocation or self-defense. Appellant testified that he
owed the victim $700.00 for marijuana that the victim had fronted him and
that the victim had been threatening to kill him if he didn’t pay. He admitted
to sending the message with the photo of the gun but stated it was in
reference to a dispute with another person. He testified that he borrowed
Bret Taylor’s car and drove it to the victim’s apartment at 5:10 in the
morning on June 11, 2017, knocked on the door and entered with permission
of the victim. He stated he advised he had the $700.00 but that the victim
Pickaway 18CA2 12
began arguing with him. He stated they began cussing at one another and
that the victim pushed him down to the ground. Appellant testified that his
gun fell out of his pants when he was shoved to the ground. He testified that
the victim began to reach for a gun so he grabbed his own gun and began
shooting the victim from his position on the floor in an upward direction.
He testified he didn’t know if the victim’s gun was loaded, but that he fired
three or four shots. He testified that he ran out of the apartment, vomited
and then returned to the apartment because he realized he left his gun. When
he returned, he encountered Darrell Arnett with a hatchet and fought with
him. He testified he got away from Arnett and ran out of the apartment,
leaving Arnett there.
{¶16} The matter was eventually submitted to the jury for
deliberations after the trial court instructed the jury on the indicted offenses,
as well as voluntary manslaughter, without objection by the State. The jury
submitted two questions in writing to the trial court during their
deliberations, which were answered in writing by the trial court. These
questions will be discussed further below. The jury ultimately returned
verdicts finding Appellant guilty of all the counts contained in the
indictment. The trial court merged counts two through four for purposes of
sentencing and sentenced Appellant to life in prison with eligibility for
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parole after thirty years for the aggravated murder of Samuel Nicholson.
Appellant now brings his timely appeal, setting forth the following
assignments of error for our review.
ASSIGNMENTS OF ERROR
I. “DEFENDANT-APPELLANT’S CONVICTION FOR
AGGRAVATED MURDER IS NOT SUPPORTED BY
SUFFICIENT EVIDENCE OF ‘PRIOR CALCULATION AND
DESIGN’ TO SATISFY THE REQUIREMENTS OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION.”
II. “A DEFECTIVE VOLUNTARY MANSLAUGHTER
INSTRUCTION ROSE TO THE LEVEL OF PLAIN ERROR AND
DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT, UNDER
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, TO A JURY
DETERMINATION OF HIS GUILT OF A LESS SERIOUS
OFFENSE THAN THE AGGRAVATED MURDER AND MURDER
COUNTS OF THE INDICTMENT.”
III. “THE EXCLUSION OF DEFENDANT-APPELLANT FROM THE
PROCEEDINGS INVOLVING RESPONSES TO THE JURY’S
QUESTIONS VIOLATED CRIM. R. 43 AND DEPRIVED HIM OF
HIS RIGHT TO BE PRESENT FOR ALL CRITICAL
PROCEEDINGS PURSUANT TO THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION,
AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
IV. “THE TRIAL COURT’S INCORRECT, INCOMPLETE, AND
CONFUSING RESPONSES TO THE JURY’S QUESTIONS
AMOUNTED TO AN ABUSE OF DISCRETION AND DEPRIVED
DEFENDANT-APPELLANT OF HIS RIGHT TO A
FUNDAMENTALLY FAIR TRIAL AND RELIABLE JURY
VERDICT UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
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V. “DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED
BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, DUE TO THE COMBINED
PREJUDICIAL IMPACT OF MULTIPLE INSTANCES OF
DEFICIENT PERFORMANCE.”
VI. “THE JURY’S VERDICTS OF GUILTY FOR AGGRAVATED
MURDER, MURDER AND FELONIOUS ASSAULT ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
VII. “THE RECORD CLEARLY AND CONVINCINGLY DOES NOT
SUPPORT THE IMPOSITION OF A LIFE PRISON TERM WITH
PAROLE ELIGIBILITY AFTER SERVING 30 YEARS.”
ASSIGNMENT OF ERROR I
{¶17} In his first assignment of error, Appellant contends his
conviction for aggravated murder is not supported by sufficient evidence of
“prior calculation and design” to satisfy the requirements of the due process
clause of the Fourteenth Amendment to the United States Constitution.
Appellant argues that the fact he armed himself with a gun for his own
protection because he anticipated a possibility of violence does not equate to
“a scheme designed to implement a calculated decision to kill[,]” and that
the State failed to prove beyond a reasonable doubt this element of
aggravated murder. The State contends the jury verdict, including the
finding of prior calculation and design, was supported by the testimony
introduced at trial.
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{¶18} A claim of insufficient evidence invokes a due process concern
and raises the question whether the evidence is legally sufficient to support
the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, an
appellate court's inquiry focuses primarily upon the adequacy of the
evidence; that is, whether the evidence, if believed, reasonably could support
a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The
standard of review is whether, after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. E.g., Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio
St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is
not to assess “whether the state's evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.”
Thompkins at 390.
{¶19} Thus, when reviewing a sufficiency of the evidence claim, an
appellate court must construe the evidence in a light most favorable to the
prosecution. E.g., State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068
(1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A
Pickaway 18CA2 16
reviewing court will not overturn a conviction on a sufficiency of the
evidence claim unless reasonable minds could not reach the conclusion that
the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d
226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
Here, after our review of the record, we believe the State presented sufficient
evidence to support the finding of prior calculation and design.
{¶20} The jury convicted Appellant of aggravated murder in violation
of R.C. 2923.01(A), which provides that “[n]o person shall purposely, and
with prior calculation and design, cause the death of another * * *.”
Appellant does not contest, under this assignment of error, that the State
established that he purposely caused the death of the victim, Sammy
Nicholson. Instead, he limits his argument to a claim that the State did not
introduce sufficient evidence that he acted with prior calculation and design.
{¶21} “The phrase ‘prior calculation and design’ by its own terms
suggests advance reasoning to formulate the purpose to kill. Evidence of an
act committed on the spur of the moment or after momentary consideration
is not evidence of a premeditated decision or a studied consideration of the
method and the means to cause a death.” State v. Walker, 150 Ohio St.3rd
409, 2016-Ohio-8295, 82 N.E.2d 1124, ¶18; see also State v. Wilks, 154
Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶151. As this Court
Pickaway 18CA2 17
recently observed in State v. Phillips, 4th Dist. Scioto No. 18CA3832, 2018-
Ohio-5432, at ¶28, “[t]here are three factors courts generally consider to
determine whether a defendant acted with prior calculation and design: (1)
Did the accused and victim know each other, and if so, was that relationship
strained? (2) Did the accused give thought or preparation to choosing the
murder weapon or murder site? and (3) Was the act drawn out or an almost
instantaneous eruption of events? Walker at ¶20. Although these factors
provide guidelines, there is no bright-line test for prior calculation and
design, and each case instead turns upon the particular evidence introduced
at trial. Walker at ¶19; State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-
Ohio-3618, ¶16.
{¶22} Here, regarding the first factor, the State presented evidence
that established Appellant and the victim knew one another and had a
“business relationship” to the extent they cooperated with one another in the
illegal sale of drugs. Further, the State introduced evidence indicating their
relationship had recently become strained because Appellant owed the
victim $700.00 for drugs that were “fronted” to him to sell.
{¶23} Regarding the second factor, the State introduced evidence in
the form of a text message that included a photo of Appellant’s gun (the gun
used in the murder), along with a comment stating Appellant needed to go
Pickaway 18CA2 18
“take care of some b.s.” The evidence introduced at trial indicated
Appellant sent this message from his phone to more than one individual the
evening prior to the murder. The record further reveals that Appellant
borrowed a vehicle to drive to the victim’s residence at 5:00 in the morning,
allegedly to pay him the money that was owed. However, instead of leaving
the money in a grill outside the victim’s apartment, as had been customary in
the past, Appellant went into the victim’s apartment with a loaded gun on his
person. Additional evidence indicated an unspent bullet, of the same type
used in the murder, was found in the vehicle Appellant drove, which
supports an inference that he loaded the gun just prior to either driving to, or
entering, the victim’s residence.
{¶24} Finally, with respect to the final factor which considers the
duration of the events at issue, the State argued Appellant went to the
victim’s residence with a mission and that he walked in and shot the victim
without a struggle. As such, the State argued the incident was an
“instantaneous eruption of events” which, in the State’s view, mitigated in
favor of a finding of prior calculation and design. Appellant argued that
there was a struggle and that he shot the victim in self-defense after the
victim shoved him to the ground. Appellant further argues that the State’s
theory that the murder occurred as part of an “instantaneous eruption of
Pickaway 18CA2 19
events” mitigates against, rather than in favor of, a finding of prior
calculation and design.
{¶25} In truth, it cannot be discerned from the record whether this
incident was a drawn-out struggle, or whether it was an instantaneous
eruption of events. The crime scene certainly indicated a struggle had taken
place, but that could have been a result of the struggle between Appellant
and Darrell Arnett (the victim’s roommate) after the victim was murdered.
In any event the first two factors indicate Appellant planned to murder the
victim, rather than simply go to his apartment in the middle of the night to
pay him the money that was owed. As set forth above, the factors are only
guidelines and there is no bright-line test. Based upon the evidence before
it, we believe the jury could justifiably conclude that Appellant was
determined to complete a specific course of action. Thus, the jury's
aggravated murder conviction, including their finding of prior calculation
and design, was supported by sufficient evidence. Accordingly, Appellant’s
first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶26} In his second assignment of error, Appellant contends the trial
court provided the jury with a defective voluntary manslaughter instruction
Pickaway 18CA2 20
that rose to the level of plain error and deprived him of his rights under the
Sixth and Fourteenth Amendments to the United States Constitution to a
jury determination of his guilt of a less serious offense than the aggravated
murder and murder counts of the indictment. The State concedes the
voluntary manslaughter instructions were erroneous to the extent the
instructions treated voluntary manslaughter as a lesser included offense,
rather than an inferior degree offense. However, the State argues the error
was harmless, reasoning that Appellant was arguably not entitled to the
provision of a voluntary manslaughter instruction based upon the absence of
evidence Appellant acted as a result of a sudden fit of rage or passion.
{¶27} Generally, our review of “whether jury instructions correctly
state the law is de novo.” State v. Kulchar, 4th Dist. Athens No. 10CA6,
2015–Ohio–3703, ¶15; citing State v. Brown, 4th Dist. Athens No. 09CA3,
2009-Ohio-5390, ¶34. “[R]eversible error should not be predicated upon
one phrase or one sentence in a jury charge; instead, a reviewing court must
consider the jury charge in its entirety.” Id.; citing State v. Porter, 14 Ohio
St.2d 10, 13, 235 N.E.2d 520 (1968). “[I]f an instruction correctly states the
law, its precise wording and format are within the trial court's discretion.”
Kulchar at ¶15.
Pickaway 18CA2 21
{¶28} However, implicit in Appellant’s argument is the fact that he
failed to object to the voluntary manslaughter instruction given by the trial
court. Thus, he has waived all but plain error. “‘To constitute plain error, a
reviewing court must find (1) an error in the proceedings, (2) the error must
be a plain, obvious or clear defect in the trial proceedings, and (3) the error
must have affected “substantial rights” (i.e., the trial court's error must have
affected the trial's outcome).’” State v. Blanton, 4th Dist. Adams No.
16CA1031, 2018-Ohio-1275, ¶85; quoting State v. Dickess, 174 Ohio
App.3d 658, 2008–Ohio–39, 884 N.E.2d 92, ¶31 (4th Dist.); citing State v.
Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v. Barnes, 94
Ohio St.3d 21, 27, 2002–Ohio–68, 759 N.E.2d 1240.
{¶29} “‘Furthermore, notice of plain error must be taken with the
utmost caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice.’” Blanton at ¶85; citing State v. Landrum,
53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “A
reviewing court should notice plain error only if the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. “‘A
defective jury instruction does not rise to the level of plain error unless the
defendant shows that the outcome of the trial clearly would have been
Pickaway 18CA2 22
different but for the alleged erroneous instruction.’” Blanton at ¶87; quoting
Dickess at ¶32; citing State v. Campbell, 69 Ohio St.3d 38, 41, 630 N.E.2d
339 (1994), and Cleveland v. Buckley, 67 Ohio App.3d 799, 805, 588 N.E.2d
912 (8th Dist.1990).
{¶29} Appellant argues the jury instructions provided by the trial
court improperly foreclosed the jurors from considering voluntary
manslaughter in the event they found that the prosecution had proven the
elements of aggravated murder and murder. Appellant further argues that
the defective instructions deprived him of his constitutional right to a jury
finding as to the presence of sudden passion or sudden fit of rage, as a
circumstance mitigating aggravated murder and murder to voluntary
manslaughter. Appellant argues the trial court further confused the jury by
providing a lesser included offense instruction, when voluntary
manslaughter is, instead, an inferior degree offense of aggravated murder
and murder.
{¶30} The trial court instructed the jury as follows:
“If the defendant failed to establish the defense of voluntary
manslaughter, the State still must prove to you beyond a
reasonable doubt that the defendant knowingly caused the death
of Samuel Nicholson, II.
Pickaway 18CA2 23
***
If you find that the State proved beyond a reasonable doubt all
the essential elements of any one or more of the offenses
charged in the separate counts in the indictment, your verdict
must be guilty as to such offense or offenses according to your
finding. If you find that the State failed to prove beyond a
reasonable doubt any one of the essential elements of any one
or more of the offenses charged in the separate counts of the
indictment, your verdict must be not guilty as to such offense or
offenses according to your findings. You will then continue
your deliberations to decide whether the State has proved
beyond a reasonable doubt all the essential elements of the
inferior degree offense of voluntary manslaughter. If all of you
are unable to agree on a verdict of either guilty or not guilty of
any or all of the charged offenses, then you will continue your
deliberations to decide whether the State has proved beyond a
reasonable doubt all the essential elements of the inferior
degree offense of voluntary manslaughter. If the evidence
warrants it, you may find the defendant guilty of an offense
lesser than that charged in the indictment; however,
Pickaway 18CA2 24
notwithstanding this right, it is your duty to accept the law as
given to you by the court, and if the facts and law warrant a
conviction of the offense charged in the indictment, then it is
your duty to make such a finding uninfluenced by your power
to find a lesser offense.
***
Next page is the inferior degree of voluntary manslaughter.
This charge shall only be considered if either of the following
apply:
One: The defendant has been found not guilty of aggravated
murder, murder, and felony murder;
Or Two: You are unable to reach a verdict with respect to
aggravated murder, murder, and felony murder.
Thus, the trial court instructed the jury that voluntary manslaughter was (1)
an inferior degree offense; (2) a lesser included offense; and (3) also a
defense. It further instructed the jury that the burden of proving the
elements of voluntary manslaughter was upon the State, rather than the
defendant, and that it must be proven by proof beyond a reasonable doubt,
rather than by a preponderance of the evidence.
Pickaway 18CA2 25
{¶31} As this Court noted in State v. Goff, 4th Dist. Lawrence No.
11CA20, 2013-Ohio-42, ¶46, “‘[v]oluntary manslaughter is an inferior
degree of murder.” Quoting State v. Alexander, 4th Dist. Scioto No.
08CA3221, 2009-Ohio-1401, ¶62; accord State v. Shane, 63 Ohio St.3d 630,
632, 590 N.E.2d 272 (1992); see also State v. Deem, 40 Ohio St.3d 205, 533
N.E.2d 294, paragraphs two and three of the syllabus.2 As further set forth
in Goff at ¶46:
“A defendant on trial for murder or aggravated murder bears the
burden of persuading the fact finder, by a preponderance of the
evidence, that he or she acted under the influence of sudden
passion or in a sudden fit of rage, either of which was brought
on by serious provocation occasioned by the victim that was
reasonably sufficient to incite the defendant into using deadly
force, R.C. 2903.03(A), in order for the defendant to be
convicted of voluntary manslaughter rather than murder or
2
According to State v. Deem, “[a]n offense is an ‘inferior degree’ of the indicted offense where its elements
are identical to or contained within the indicted offense, except for one or more additional mitigating
elements.” Deem at paragraph two of the syllabus. Deem further explains that “[a]n offense may be a
lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater
offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined,
also being committed; and (iii) some element of the greater offense is not required to prove the commission
of the lesser offense.” Deem at paragraph three of the syllabus; citing State v. Kidder, 32 Ohio St.3d 279,
513 N.E.2d 311 (1987), modified.
Pickaway 18CA2 26
aggravated murder. State v. Rhodes, 63 Ohio St.3d 613, 590
N.E.2d 261 (1992), syllabus.”
Additionally, as explained in Goff at ¶47, “when a voluntary manslaughter
instruction is appropriate, a trial court should instruct the jury ‘to consider
the mitigating evidence to determine whether [the defendant] proved
voluntary manslaughter.’” Citing State v. Benge, 75 Ohio St.3d 136, 140–
141, 661 N.E.2d 1019 (1996).
{¶32} As set forth above, the State conceded the jury instructions
were erroneous to a certain extent. Thus, we will assume the trial court’s
instructions, as they pertained to the consideration of voluntary
manslaughter as an inferior degree offense, were defective and prevented the
jury from considering the voluntary manslaughter charge. However, as
observed in Goff, “in order for there to be reversible error, there must be
prejudice to the appellant.” Goff at ¶48 (internal citations omitted). In the
case sub judice, as was the situation in Goff, Appellant cannot demonstrate
prejudice because the evidence introduced at trial did not warrant a
voluntary manslaughter instruction.
{¶33} In order for a voluntary manslaughter instruction to be given,
there is a requirement of both objective and subjective evidence. Goff at
¶50. Appellant first had to show “evidence of reasonably sufficient
Pickaway 18CA2 27
provocation occasioned by the victim * * * to warrant such an instruction.
Id.; quoting Shane at 630. This determination is to be made using an
objective standard. Goff at ¶50. For example, we have explained that “‘[f]or
provocation to be reasonably sufficient, it must be sufficient to arouse the
passions of an ordinary person beyond the power of his or her control.’” Id.;
quoting State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d
547, ¶81; in turn quoting Shane at 635. If the objective component is
satisfied, the inquiry then “shifts to the subjective component, which
considers whether this particular actor, in this particular case, was actually
under the influence of sudden passion, or was in a sudden fit of rage. Goff at
¶51; citing Shane at 634.
{¶34} We explained analysis of the subjective component in Goff as
follows:
“When analyzing the subjective component, ‘evidence
supporting the privilege of self-defense, i.e., that the defendant
feared for [her] own and [others'] personal safety, does not
constitute sudden passion or a fit of rage as contemplated by the
voluntary manslaughter statute.’ State v. Harris, 129 Ohio
App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998). ‘While
self-defense requires a showing of fear, voluntary manslaughter
Pickaway 18CA2 28
requires a showing of rage, with emotions of “anger, hatred,
jealously, and/or furious resentment.”’ State v. Levett, 1st Dist.
No. C–040537, 2006–Ohio–2222, ¶29, quoting State v. Perdue,
153 Ohio App.3d 213, 2003–Ohio–3481, 792 N.E.2d 747, ¶12
(7th Dist.), in turn quoting Harris at 535; accord State v.
Sudderth, 4th Dist. No. 07CA38, 2008–Ohio–5115, ¶14; see
also [State v.Hendrickson, 4th Dist. Athens No. 08CA12, 2009–
Ohio–4416, ¶45–46]; State v. Caldwell, 10th Dist. No. 98AP–
165, 1998 WL 890232, *7 (Dec. 17, 1998).” Goff at ¶52.
{¶35} Assuming arguendo the objective component was met, the
record before us reveals that Appellant introduced no subjective evidence
that he killed the victim while he was under the influence of sudden passion
or in a sudden fit of rage. Therefore, Appellant cannot demonstrate that he
was prejudiced if the trial court’s jury instructions did, in fact, prevent the
jury from considering the voluntary manslaughter instruction. As set forth
above, Appellant argued theories of voluntary manslaughter, as a result of
provocation. He also raised the affirmative defense of self-defense. In his
trial testimony, Appellant alleged he was frightened by threats made by the
victim towards him in the days leading up to the incident. He also testified
that in shooting the victim, he acted out of fear because he was afraid if he
Pickaway 18CA2 29
didn’t shoot, the victim would shoot him first. There is no evidence, after a
thorough review of Appellant’s trial testimony, that he was actually under
the influence of sudden passion or in a sudden fit of rage when he shot the
victim. Thus, there was insufficient evidence introduced at trial to warrant a
voluntary manslaughter instruction. As such, assuming the manner in which
the trial court instructed the jury prevented the jury from considering the
voluntary manslaughter charge, Appellant cannot demonstrate he was
prejudiced by the alleged error. Accordingly, we find no merit to
Appellant’s second assignment of error and it is overruled.
ASSIGNMENT OF ERROR III
{¶36} In his third assignment of error, Appellant contends that his
exclusion from the proceedings involving responses to the jury’s questions
violated Crim.R. 43, which governs the presence of defendants at every
stage of the criminal proceedings and at trial, with certain exceptions. He
also contends he was deprived of his constitutional right to be present for all
critical stages of the proceedings. “An accused has a fundamental right to be
present at all critical stages of his criminal trial.” State v. Hale, 119 Ohio
St.3d 118, 2008–Ohio–3426, 892 N.E.2d 864, ¶100. “An accused's absence,
however, does not necessarily result in prejudicial or constitutional error.”
State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–2, 880 N.E.2d 31, ¶90.
Pickaway 18CA2 30
“‘[T]he presence of a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and to that
extent only.’” Hale at ¶100; quoting Snyder v. Massachusetts, 291 U.S. 97,
107–108, 54 S.Ct. 330 (1934), overruled on other grounds by Malloy v.
Hogan, 378 U.S. 1, 17, 84 S.Ct. 1489, (1964). The question is whether his
presence has a “reasonably substantial” relationship to “the fullness of his
opportunity to defend against the charge.” Id.; quoting Snyder at 105–106.
{¶37} In his brief, Appellant appears to contend that neither he, nor
his counsel were present when the trial court considered and responded in
writing to written questions submitted by the jury during their deliberations.
For instance, Appellant argues that Volume 4 of the trial transcript indicates
there were no proceedings held in open court in which he was present during
the time in between the jury being released for deliberations and the
announcement of the verdict nearly five hours later. A review of the
transcript indicates no proceedings were held in open court during that time.
However, the State represents that the written questions submitted by the
jury were reviewed by the court and counsel, and then “returned to the jury
following an agreed upon answer by all parties.” Further, our review of the
record indicates Appellant’s trial counsel filed a post-trial motion for a new
Pickaway 18CA2 31
trial in which he referenced the fact that he was surprised by a statement
contained in one of the jury’s questions.
{¶38} Thus, contrary to Appellant’s suggestion on appeal, it appears
counsel was present and participated in a review of the jury’s questions and
may have even approved the answers provided to the jury by the trial court.
We are unable to confirm this, however, as there is no reference to the jury’s
questions other than the fact that the jury’s handwritten notes, along with the
trial court’s written answers, are taped onto a paper in the trial transcript.
What is clear, however, is that there were no proceedings held in open court
in response to the jury’s submission of questions. Instead, it appears the trial
court simply communicated with the jury via written answers to their written
questions.
{¶39} In State v. Lee, 8th Dist. Cuyahoga No. 104682, 2017-Ohio-
1449, ¶66, the Eighth District Court of Appeals recently held that a court’s
“written response sent to the jury room was not a critical phase of the trial
that required [the defendant’s] presence.” In Lee, much like in the case sub
judice, the jury submitted written questions during their deliberations. Id. at
¶63. In response, the court met with the attorneys and drafted a written
response that was provided to the jurors. Id. In reaching its decision, the
Lee court relied upon the reasoning of State v. Campbell, 90 Ohio St.3d 320,
Pickaway 18CA2 32
346738 N.E.2d 1178 (2000), which found no error “‘where a capital murder
defendant was absent from an in-chambers discussion between the court and
counsel regarding the trial court’s response to a jury question.’” The Lee
court noted that Campbell held as follows on this particular issue:
“‘Campbell had no right to be present at the legal discussion of
how the question should be answered. Nor did he have a right
to be present when the judge sent the note to the jury room.
Although the oral delivery of jury instructions in open court is a
critical stage of trial, the trial court here did not instruct the jury
in open court; instead, he sent a note. A defendant benefits
from his presence, and may be harmed by his absence, when
instructions are given in open court. But these potential
benefits and harms do not exist when the judge merely sends a
note to the jury room. We therefore hold that the sending of the
note was not a critical stage of the trial. (Citations omitted.) Id.
at 346. See also State v. Ferguson, 8th Dist. Cuyahoga No.
86439, 2006-Ohio-799, ¶56 (concluding that “the discussion
regarding the jury question was not a critical stage of the
trial.”).’” Lee at ¶61.
Pickaway 18CA2 33
{¶41} In light of the foregoing case law and consistent with the
reasoning of the Supreme Court of Ohio in State v. Campbell, supra, we find
the trial court’s provision of written answers to written questions from the
jury cannot be considered a critical stage of the proceedings to which
Appellant had statutory and constitutional rights to be present. Accordingly,
we find no merit to Appellant’s third assignment of error and it is overruled.
ASSIGNMENT OF ERROR IV
{¶42} In his fourth assignment of error, Appellant contends the trial
court’s incorrect, incomplete, and confusing responses to the jury’s
questions amounted to an abuse of discretion and deprived him of his right
to a fundamentally fair trial and reliable jury verdict. More specifically,
Appellant argues the trial court abused its discretion in providing answers to
questions posed by the jury during deliberations regarding (1) the voluntary
manslaughter instruction; and (2) a request for a copy of the transcript
containing a portion of Dwight Haddox’s testimony. Appellant further
argues the second question posed by the jury stemmed from a misleading
argument made by the prosecutor during closing arguments, which
Appellant contends rose to the level of prosecutorial misconduct. The State
responds by arguing that the trial court did not abuse its discretion in
answering the jury’s questions in the manner that it did, and that any error in
Pickaway 18CA2 34
the statements made by the prosecutor did not rise to the level of
prosecutorial misconduct.
{¶43} As recently observed by the Third District Court of Appeals in
State v. Robinson, 3rd Dist. Hancock No. 5-16-13, 2017-Ohio-2703, ¶17:
“‘When a jury during its deliberation requests “clarification of
instructions previously given, a trial court has discretion to
determine its response to that request.”’ State v. Juntunen, 10th
Dist. Franklin Nos. 09AP–1108 and 09AP–1109, 2010–Ohio–
5625, ¶19, quoting State v. Carter, 72 Ohio St.3d 545 (1995),
paragraph one of the syllabus. ‘A reversal of a conviction based
upon a trial court's response to such a request requires a
showing that the trial court abused its discretion.’ State v.
Castile, 10th Dist. Franklin No. 13AP–10, 2014–Ohio–1918,
¶23, citing Carter at 553 and State v. Young, 10th Dist. Franklin
No. 04AP–797, 2005–Ohio–5489, ¶35. An abuse of discretion
implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. State v. Adams, 62 Ohio St.2d 151, 157
(1980).”
The Robinson court further explained that:
Pickaway 18CA2 35
“‘A trial court's response to a jury's question “when viewed in
its entirety, must constitute a correct statement of the law and
be consistent with or properly supplement the jury instructions
that have already been given.”’ Juntunen at ¶19, quoting State
v. Preston–Glenn, 10th Dist. Franklin No. 09AP–92, 2009–
Ohio–6771, ¶28. ‘“An appellate court will only find reversible
error where a jury instruction has, in effect, misled the jury.”’
Id., quoting State v. Hull, 7th Dist. Mahoning No. 04 MA 2,
2005–Ohio–1659, ¶45, citing Sharp v. Norfolk & W. Ry. Co., 72
Ohio St.3d 307, 312 (1995), and citing Carter at 553.”
{¶44} Appellant first contends the trial court abused its discretion
responding to the jury’s request for a clarification on the aggravated murder,
murder and voluntary manslaughter instructions. The trial transcript
includes the handwritten notes from the jury containing questions for the
trial court. The first question asked by the jury contained two parts and
stated as follows:
“1. If found not guilty on Aggravated Murder Count 1, do we
continue to counts 2-4 and Involuntary Manslaughter or
just stop at counts 1-4?
Pickaway 18CA2 36
2. If found not guilty on count one, do counts 2-4 still
apply?”
The trial court provided the following response to those questions:
“First proceed through counts 1-4. Then, read the Involuntary
Manslaughter instructions on the Involuntary Manslaughter
verdict form and use those as a guide to decide if Involuntary
Manslaughter should be considered.”3
{¶45} Appellant argues the question posed by the jury indicated “the
juror’s confusion over its authority to consider mitigating circumstances as
laid out in voluntary manslaughter.” Appellant further argues the answer
provided by the trial court “contributed to the confusion and was, therefore,
prejudicial error.” However, as we explained in our analysis of Appellant’s
second assignment of error, even assuming the trial court erred in instructing
the jury on voluntary manslaughter, because Appellant was not entitled to an
instruction on voluntary manslaughter we found no prejudice and therefore
determined the error was harmless. The same reasoning applies to this
argument. Because Appellant was not entitled to an instruction on voluntary
3
We note that the jury’s question mistakenly referred to “Involuntary Manslaughter” rather than voluntary
manslaughter, and the trial court’s response also used the term “Involuntary” as opposed to voluntary.
Whether the use of the term “involuntary” stemmed from a substantive misunderstanding by the jury or
was simply a transcription error is unknown. However, in light of our disposition of this assignment of
error, we find this mistaken reference to be harmless.
Pickaway 18CA2 37
manslaughter, it cannot be argued that any error in the original instruction or
in the trial court’s answer to the jury’s question was prejudicial. Thus, the
error does not constitute reversible error.
{¶46} Next, Appellant contends the trial court abused its discretion
when it denied the jury’s request for a copy of a portion of the transcript
containing the testimony of Dwight Haddox. The record indicates the jury
sent a written question to the trial court as follows:
“Can we see the transcript of where Dwight Haddox (sp?) said
that Justin admitted he emptied the clip?”
The trial court provided the following response to the request:
“No. You will have to use your collective memories on this
issue.”
Appellant argues the trial court abused its discretion in not providing a
transcript of Haddox’s testimony to the jury.
{¶47} In State v. Carter, the Supreme Court of Ohio considered an
argument that the trial court abused its discretion in refusing to provide the
jury with a transcript of the testimony of a trial witness. State v. Carter, 72
Ohio St.3d 545, 560, 651 N.E.2d 965 (1995). In reaching its decision, the
Court noted that because trial counsel did not object to the trial court’s
refusal to provide the transcript, reversal would require a finding of plain
Pickaway 18CA2 38
error. Id. The Carter Court ultimately found neither plain error nor an
abuse of discretion in the trial court’s denial of the transcript to the jury. Id.
{¶48} Further, in State v. Dingus, 26 Ohio App.2d 131, 269 N.E.2d
923 (4th Dist. 1970), this Court was presented with an argument that the trial
court erred in refusing to allow the testimony of a witness to be read to the
jury, as requested by the jury during deliberations. Id. at 132. It appears
that the court did not have the requested testimony and did not state its
recollection of the witness’s testimony for jury. Id. at 134. Instead, the
court instructed the jury “to apply testimony from its recollection.” Finding
no mandatory or statutory requirement that testimony be read to a jury, this
Court found no abuse of discretion. Id. at 135.
{¶49} Again, as set forth above, the State has represented to this
Court that both counsel and the court reviewed the jury’s questions and
agreed upon answers to be provided to the jury. Further, post-trial filings by
Appellant’s trial counsel indicate counsel was aware of the questions posed
by the jury. Additionally, Appellant’s motion for a new trial does not
reference any objection to the answers provided by the trial court to the jury.
Thus, in line with Carter, only a finding of plain error will result in reversal
on this assigned error.
Pickaway 18CA2 39
{¶50} Here, a review of the record reveals that Haddox testified at
trial regarding contact he had with Appellant in the days after the offenses at
issue herein were committed. Haddox testified that while Appellant was
riding in the car with him on the afternoon after the victim was murdered,
Appellant stated he had killed the victim. He further testified that Appellant
was in the car with him again the next day and was talking with his sister.
The following exchange appears in the transcript:
“Q: Did he tell you anything about pulling the trigger?
A: Something I heard, I don’t know the exact words, but
something about emptied the gun.”
There were no follow-up questions on direct examination and no cross-
examination regarding this testimony. Subsequently, during closing
arguments, the prosecutor made the following statement in reference to
Haddox’s testimony:
“Now the next day the defendant finally returned to Pickaway
County when he asked Dwight Haddox for a ride to Hagerty
Road. And he again had his head down in the car saying, “I
emptied the clip. I killed him.”
{¶51} Appellant contends this statement by the prosecutor was a
misstatement and exaggeration of the Haddox’s testimony and the trial court
Pickaway 18CA2 40
had a duty to give the jury instructions to neutralize the prejudice caused by
the prosecutor’s conduct. We initially note that, in our view, the statement
by the prosecutor was similar to the testimony of Haddox and did not
constitute a misrepresentation or an exaggeration of his testimony. Further,
the jury heard the testimony in full and was also instructed that statements
by counsel during opening and closing arguments are not evidence.
Moreover, reviewing Haddox’s testimony as a whole, we find no substantive
distinction between Haddox’s testimony that Appellant said something to the
effect that he “emptied the gun” versus the State’s comment in closing that
he “emptied the clip.” Thus, based upon the facts presently before us as well
as our prior reasoning in Dingus, supra, we cannot conclude the trial court
plainly erred or abused its discretion in denying the jury’s request for the
transcript and instead instructing them that they must rely on their collective
memories.
{¶52} Finally, with respect to Appellant’s additional argument that
the jury’s second question stemmed from a misleading argument made by
the prosecutor regarding Haddox’s testimony during closing arguments, we
conclude that an argument raising a claim of prosecutorial misconduct
should have been separately assigned and argued, as required by App.R.
16(A). Instead, Appellant has raised a detailed claim of prosecutorial
Pickaway 18CA2 41
misconduct as part of an assignment of error alleging an abuse of discretion
on the part of the trial court in providing written answers to questions
submitted by the jury during deliberations. As such, disregard this portion
of Appellant’s argument in accordance with the discretion provided us in
App.R. 12(A)(2).
{¶53} Accordingly, having found no merit under Appellant’s fourth
assignment of error, it is overruled.
ASSIGNMENT OF ERROR V
{¶54} In his fifth assignment of error, Appellant contends he was
denied his constitutional right to the effective assistance of counsel due to
the combined prejudicial impact of instances of deficient performance.
Thus, Appellant essentially contends that cumulative errors by defense
counsel affected the outcome of his trial. The State contends there is no
evidence that but for the alleged deficiencies of defense counsel the trial
would have had a different outcome, in light of the significant amount of
other evidence which led to the conclusion Appellant was guilty of the
indicted offenses.
{¶55} To prevail on a claim of ineffective assistance of counsel, a
criminal appellant must establish (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable
Pickaway 18CA2 42
representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been different.
State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,
¶113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-
Ohio-308, ¶23. In Ohio a properly licensed attorney is presumed competent.
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶62.
Thus, in reviewing a claim of ineffective assistance of counsel, we must
indulge in “a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Strickland at 697.
Failure to satisfy either part of the test is fatal to the claim. Id.; State v.
Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶56} Appellant alleges five instances of ineffective assistance by his
trial counsel as follows:
“1. Defense counsel’s inept cross-examination of the lead
detective resulted in the jury learning about Blevin’s post-arrest
exercise of his privilege against self-incrimination.”
Pickaway 18CA2 43
“2. Defense counsel’s inept cross-examination of the lead
detective regarding his theory of the case resulted in the jury
hearing his opinion that Blevins is guilty of murder.”
“3. Defense counsel failed to object to blatantly inadmissible
‘other acts’ testimony that portrayed Blevins as an individual
having a propensity for violence involving the use of firearms.”
“4. Defense counsel failed to effectively impeach Dwight
Haddox’s testimony regarding his recollection of statements
relating to the shooting, failed to object to the prosecutor’s
misrepresentation of his testimony, and failed to object to the
trial judge’s inadequate response to the jury’s questions
regarding the testimony.”
“5. Defense counsel failed to object to a defective voluntary
manslaughter instructions [sic] and to the judge’s erroneous
response to the jury’s questions expressing confusion regarding
the instructions.”
{¶57} Appellant’s first and second allegations of ineffective
assistance both claim that his trial counsel ineptly cross-examined Detective
Jeffery George. First, Appellant argues his trial counsel’s inept cross
examination of Detective George led to the jury learning about his post-
Pickaway 18CA2 44
arrest exercise of his privilege against self-incrimination. A review of the
record reveals the following exchange during trial between defense counsel
and the detective:
“Q: Were you aware of the fact that my client went to Bret
Taylor’s immediately after this murder?
A: I was not aware of that. No.
Q: You weren’t aware of that until today?
A: Today is the first I heard that your client – your client nor
Bret Taylor would not speak with me.
Q: Okay. So Bret wouldn’t cooperate?
A: No. He asked for a lawyer.”
Another exchange took place during later cross-examination as follows:
“Q: Were you present when Mr. Blevins was arrested?
A: Yes, I was.
Q: And what was he wearing?
A: I don’t remember.
Q: He wasn’t wearing red basketball shorts, was he?
A: No.
Q: So do you have an explanation of how a guy that wears
red basketball shorts – when did you arrest him?
Pickaway 18CA2 45
A: It was like a week later after the murder.
Q: After the murder, a week?
A: Yea. Approximately a couple days to a week.
Q: All right. Do you know where my client went?
A: No. Again, your client wouldn’t speak with me.
Q: Well, I understand that. But in the end here you’ve never
investigated where Mr. Blevins ended up within an hour or so
after the shooting?
A: Right after the shooting, no. All I know is he had went to
McArthur after that.
Q: Well that’s the point I’m making. Do you have any
indication that my client left the Arnett apartment driving Bret
– do you know if Bret Taylor’s car was there?
A: That I do not know.”
Thus, two different times, in response to two different questions, the
detective referenced the fact that Appellant would not speak with him, and
thus had exercised his constitutional right against self-incrimination.
{¶58} Appellant concedes that the detective’s answers were not
responsive to the questions asked by counsel, but he argues the open-ended
manner in which counsel framed his questions allowed the detective to slip
Pickaway 18CA2 46
his post-arrest silence into his answers. Appellant cites this Court’s prior
reasoning in State v. Harper, 4th Dist. Vinton No. 11CA684, 2012-Ohio-
4527, for the proposition that an attorney’s failure to take measures to
prevent the jury form hearing testimony regarding his client’s post-arrest
silence may constitute deficient performance. We noted in Harper as
follows at ¶16:
“‘An accused who asserts his Fifth Amendment right to silence
should not have the assertion of that constitutional right used
against him.’ State v. Treesh, 90 Ohio St.3d 460, 479, 739
N.E.2d 749 (2001), citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.
2240, 49 L.Ed.2d 91 (1976). ‘[E]vidence introduced by the state
during its case in chief regarding the defendant's exercise of his
right to remain silent during interrogation violates the Due
Process Clause of both the state and federal constitutions.’
State v. Perez, 3d Dist. No. 4–03–49, 2004–Ohio–4007, ¶10,
citing Leach, 102 Ohio St.3d 135, 2004–Ohio–2147, 807
N.E.2d 335, at ¶16–18. ‘This rule enforces one of the
underlying policies of the Fifth Amendment, which is to avoid
having the jury assume that a defendant's silence equates with
guilt.’ Id., citing Leach, 2004–Ohio–2147, at ¶30; Murphy v.
Pickaway 18CA2 47
Waterfront Comm. of New York Harbor, 378 U.S. 52, 55, 84
S.Ct. 1594, 12 L.Ed.2d 678 (1964).”
{¶59} Harper involved an allegation that defense counsel failed to
object to repeated instances of the State eliciting testimony that the
defendant had invoked his right against self-incrimination. Id. at ¶28. Here,
however, it was not the State that elicited the problematic testimony, it was
defense counsel while cross-examining the State’s witness. Further, the case
at bar does not involve a situation where the State was attempting to use
Appellant’s silence against him. As noted by Appellant in his brief, the
detective’s answers were not responsive to the question asked by defense
counsel. Moreover, Harper involved repeated instances of the State drawing
the juror’s attention to the defendant’s post-arrest silence, constitutional
violations which this Court stated “pervaded the entire trial.” Id. at ¶33.
Here, there were two quick references to Appellant’s post-arrest silence that
were unintentionally elicited during cross-examination, which can hardly be
described as pervading the entire trial. Thus, we cannot conclude, based
upon the facts before us, that defense counsel should have anticipated the
detective’s answer to the question would have included a reference to
Appellant’s post-arrest silence. As such, Appellant has not demonstrated
Pickaway 18CA2 48
deficient performance by his counsel in this regard and, as a result, we find
no merit to this portion of Appellant’s argument.
{¶60} Second, Appellant argues his trial counsel’s inept cross
examination of Detective George regarding his theory of the case resulted in
the jury hearing his opinion that Appellant was guilty of murder. A review
of the trial transcript reveals the following exchange during defense
counsel’s cross examination of Detective George:
“Q: All right. Now, let’s go through the stage of the
proceeding here. So you determined that prolifically [sic] what
the relationship was between Sammy Nicholson, Darrell Arnett,
Chloe, my client, so you understand those people were
involved?
A: Yes.
Q: All right. Now, what’s your theory of what happened
here?
A: Honestly, my theory, I believe your client committed the
murder of Sammy Nicholson.
Q: Well, tell me what your theory is, why he was there?
A: I have no reason. Possibly the drugs that everybody
talked about.
Pickaway 18CA2 49
Q: Well, were you aware of the fact that there was [sic]
mutual threats:
A: Briefly I might have heard that.”
{¶61} The State contends that defense counsel was attempting to elicit
testimony from the detective indicating the condition of the apartment
showed signs of a struggle, which would lend support to Appellant’s self-
defense argument. As such, the State argues defense counsel’s question falls
within the gambit of trial strategy. However, we tend to agree with
Appellant’s argument that “[t]here can be no conceivable strategic reason for
a defense attorney to ask the lead detective in a homicide investigation an
open-ended question that invites, or even encourages, the witness to offer a
damaging opinion regarding the defendant’s guilt.” Thus, we agree with
Appellant’s argument that this action constituted deficient performance by
trial counsel.
{¶62} Despite this finding, based upon the record before us we find
no prejudice within the meaning of the Strickland test because the result of
the trial would have been no different. Here, Appellant’s only arguments on
appeal regarding his culpability for the charged crimes are 1) he did not act
with prior calculation and design; and 2) although he killed the victim, he
did so as a result of provocation or in self-defense. As we have referenced
Pickaway 18CA2 50
multiple times herein, Appellant was not entitled a voluntary manslaughter
instruction. Thus, his only viable theory at trial was one of self-defense,
which is an affirmative defense. An affirmative defense does not negate the
legal adequacy of the state's proof for purposes of submitting it to the jury.
An affirmative defense involves an excuse or justification for doing an
otherwise illegal act. See R.C. 2901.05(C)(2). It does not deny the
existence of the act; it simply provides a legal justification for it. Thus,
eliciting the detective’s theory of the case did not place any testimony before
the jury Appellant had not already conceded. Accordingly, Appellant cannot
demonstrate prejudice as a result of counsel’s actions and we therefore find
no merit to this portion of his argument.
{¶63} Appellant’s third allegation of ineffective assistance of counsel
argues defense counsel failed to object to blatantly inadmissible “other acts”
testimony that portrayed him as an individual having a propensity for
violence involving the use of firearms. More specifically, Appellant argues
that defense counsel failed to object to testimony from Chloe Brady
indicating she stopped living with Appellant because she “overheard him
behind a closed door and he said he was going to put a bullet in [her] head.”
The State does not respond to this allegation of ineffective assistance of
counsel in its appellate brief.
Pickaway 18CA2 51
{¶64} Again, Appellant admitted at trial that he went to the victim’s
house armed with a loaded gun and shot the victim multiple times. Further,
he does not dispute that he caused the victim’s death, but only that he acted
in self-defense. The State introduced evidence that the victim died from
multiple gun shot wounds. Additionally, expert testimony indicated several
of the gunshot wounds were sustained while the victim was in a defensive
position with his arms up trying to shield himself, and in a downward
trajectory, contrary to Appellant’s argument that he shot the victim after the
victim knocked him to the floor. Other evidence demonstrated all of the
bullet holes and recovered bullets were on the side of the room where the
victim was found deceased, and none were found anywhere else, indicating
the victim did not shoot first or shoot back. Finally, Appellant admitted he
sent a message stating he needed to “take care of some b.s” along with a
photo of his gun to a friend, thus demonstrating a propensity for violence by
his own actions and testimony. In light of the foregoing, even assuming
there was no sound trial strategy that permitted defense counsel’s failure to
object, and to instead to ask further questions about Appellant’s alleged
statements on cross examination, Appellant cannot demonstrate the result of
the trial would have been different. Therefore, he cannot establish
Pickaway 18CA2 52
ineffective assistance of counsel in this regard and we find no merit to this
portion of his argument.
{¶65} Appellant’s fourth allegation of ineffective assistance of
counsel claims trial counsel 1) failed to effectively impeach Dwight
Haddox’s testimony regarding his recollection of statements relating to the
shooting; 2) failed to object to the prosecutor’s misrepresentation of his
testimony; and 3) failed to object to the trial judge’s inadequate response to
the jury’s question.
Appellant first argues that trial counsel was ineffective for failing to
effectively impeach Dwight Haddox in response to the following testimony:
“Q: Did he [Appellant] tell you anything about pulling the
trigger?
A: Something I heard, I don’t know the exact words, but
something about emptied the gun.”
Q: Did he tell you anything about being on the run?
A: I kind of figured after that that he was on the run. I
didn’t know. I mean like I said, after all that, and I was by
myself, like I say, after it all happened, then it sinks in and
started thinking about everything and I thought well, I think that
I better go to the Sheriff’s station.”
Pickaway 18CA2 53
Appellant argues his trial counsel admitted in a motion for new trial that had
he heard the statement by Haddox about the gun being emptied that he
would have objected and then impeached the witness with a recording of his
police interview and also called Appellant’s mother to testify to contradict
Haddox. Appellant points to the affidavit of Appellant’s mother that was
attached in support of the motion for new trial, in which Mrs. Blevins avers
that she and Haddox had a falling out and that he made threats that her son
would “[go] down.”
{¶66} Considering Appellant’s trial counsel represented to the trial
court that his failure to object was not trial strategy, and that he would have
objected to Haddox’s testimony had he heard it, we conclude Appellant has
demonstrated deficient performance by his trial counsel. However, in light
of the fact that Appellant admitted to shooting the victim multiple times, as
well as testimony from Special Agent Todd Fortner that when Appellant’s
gun was found it was kicked back and open, indicating the gun was
“completely expended,” we cannot conclude trial counsel’s failure to object
to Haddox’s testimony affected the outcome of the trial. Thus, because
Appellant cannot demonstrate prejudice, he has failed to demonstrate
ineffective assistance of counsel.
Pickaway 18CA2 54
{¶67} Turning our attention now to Appellant’s second and third
claims, which allege trial counsel failed to make proper objections, we
observe that “[a] trial counsel's failure to object is generally viewed as trial
strategy and does not establish ineffective assistance.” State v. Teets, 4th
Dist. Pickaway No. 16CA3, 2017-Ohio-7372, ¶71; citing State v. Roby, 3rd
Dist. Putnam No. 12–09–09, 2010–Ohio–1498, ¶44 (additional internal
citations omitted). Appellant notes that in a post-trial motion for new trial
filed by Appellant’s trial counsel, counsel stated the failure to object here
was not trial strategy. Trial counsel instead attributed his failure to object to
“physical inattention.” However, we have already determined under
Appellant’s fourth assignment of error that the prosecutor’s reference to
Haddox’s statement during closing arguments was generally consistent with
Haddox’s testimony and was not a gross exaggeration or misrepresentation.
We also determined under Appellant’s fourth assignment of error that the
trial court did not plainly err or abuse its discretion in responding to the
jury’s request for a transcript of Haddox’s trial testimony with a denial and
an instruction that the jury must rely on its collective memories regarding
the testimony. Thus, assuming arguendo Appellant has demonstrated
deficient performance, we cannot conclude he has demonstrated he has
Pickaway 18CA2 55
suffered any prejudice as a result. Thus, we find no merit to this portion of
Appellant’s argument.
{¶68} Finally, in light of our determination that Appellant was not
entitled to a jury instruction on voluntary manslaughter, we summarily reject
Appellant’s fifth claim of ineffective of counsel, which alleges trial counsel
was ineffective based upon his failure to object to defective voluntary
manslaughter instructions.
{¶69} Under the cumulative-error doctrine, “a conviction will be
reversed where the cumulative effect of errors in a trial deprives a defendant
of the constitutional right to a fair trial even though each of numerous
instances of trial court error does not individually constitute cause for
reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995);
citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus; State v. Ruble, 2017-Ohio-7259, 96 N.E.3d
792, ¶75 (4th Dist.). “Before we consider whether ‘cumulative errors’ are
present, we must first find that the trial court committed multiple errors.”
State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, ¶106 (4th Dist.); citing State
v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶57. The
cumulative error doctrine does not apply where the defendant “cannot point
to ‘multiple instances of harmless error.’” See State v. Mammone, 139 Ohio
Pickaway 18CA2 56
St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶148 (2014) (“And to the
extent that Mammone more broadly invokes the doctrine of cumulative
error, that doctrine does not apply because he cannot point to ‘multiple
instances of harmless error.’” State v. Garner, 74 Ohio St.3d 49, 64, 656
N.E.2d 623 (1995).). Based upon our analysis of the arguments raised under
this assignment of error, we conclude the doctrine of cumulative error does
not apply here. Accordingly, Appellant’s fifth assignment of error is
overruled.
ASSIGNMENT OF ERROR VI
{¶70} In his sixth assignment of error, Appellant contends that the
jury’s verdicts of guilty for aggravated murder, murder, and felonious
assault are against the manifest weight of the evidence. The State contends
the evidence taken as a whole clearly pointed to the jury’s finding of guilt on
all counts, and that there is nothing in the record to suggest the jury lost its
way and created a manifest miscarriage of justice. We begin with a look at
the proper standard of review for manifest weight challenges.
STANDARD OF REVIEW
{¶71} When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence and all reasonable inferences,
Pickaway 18CA2 57
and consider the witness credibility. State v. Dean, 146 Ohio St.3d 106,
2015–Ohio–4347, 54 N.E.3d 80, ¶151; citing State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). A reviewing court must bear in
mind, however, that credibility generally is an issue for the trier of fact to
resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.
Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶31. “‘Because
the trier of fact sees and hears the witnesses and is particularly competent to
decide “whether, and to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its determinations of
credibility.’” Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929
N.E.2d 1047, ¶20; quoting State v. Konya, 2nd Dist. Montgomery No.
21434, 2006–Ohio–6312, ¶6; quoting State v. Lawson, 2nd Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). As the court
explained in Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972
N.E.2d 517, at ¶21:
“‘[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment
must be made in favor of the judgment and the finding of facts.
***
Pickaway 18CA2 58
If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.’ Id. at ¶21, 972 N.E.2d
517, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 60, at 191–192
(1978).”
Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact-finder, as long as a rational basis exists in the record for
its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–
Ohio–1282, ¶24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,
2007–Ohio–6331, ¶6 (“We will not intercede as long as the trier of fact has
some factual and rational basis for its determination of credibility and
weight.”).
{¶72} Once the reviewing court finishes its examination, the court
may reverse the judgment of conviction only if it appears that the fact-finder,
when resolving the conflicts in evidence, “‘clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered .’” Thompkins at 387; quoting State v. Martin, 20
Pickaway 18CA2 59
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). If the prosecution
presented substantial credible evidence upon which the trier of fact
reasonably could conclude, beyond a reasonable doubt, that the essential
elements of the offense had been established, the judgment of conviction is
not against the manifest weight of the evidence. E.g., State v. Eley, 56 Ohio
St.2d 169, 383 N.E.2d 132, syllabus (1978), superseded by state
constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d
89, 684 N.E.2d 668 (1997). Accord Eastley at ¶12; quoting Thompkins, 78
Ohio St.3d at 387; quoting Black's Law Dictionary 1594 (6th ed.1990)
(explaining that a judgment is not against the manifest weight of the
evidence when “‘the greater amount of credible evidence”’ supports it).
Thus, “‘[w]hen conflicting evidence is presented at trial, a conviction is not
against the manifest weight of the evidence simply because the jury believed
the prosecution testimony.’” State v. Cooper, 170 Ohio App.3d 418, 2007–
Ohio–1186, 867 N.E.2d 493, ¶17; quoting State v. Mason, 9th Dist. Summit
No. 21397, 2003–Ohio–5785, ¶17; quoting State v. Gilliam, 9th Dist. Lorain
No. 97CA006757 (Aug. 12, 1998). Instead, a reviewing court should find a
conviction against the manifest weight of the evidence only in the
“‘exceptional case in which the evidence weighs heavily against the
Pickaway 18CA2 60
conviction.’” Thompkins at 387; quoting Martin at 175. Accord State v.
Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶73} In the case presently before us, Appellant has disputed the
jury’s determination he murdered the victim with prior calculation and
design. However, we have already rejected Appellant’s argument that the
finding of prior calculation and design was not supported by sufficient
evidence. Further, Appellant does not dispute that he purposely killed the
victim, which serves as the basis for his aggravated murder, murder and
felonious assault convictions. Instead, he argues that the jury committed a
manifest miscarriage of justice by rejecting his claim of self-defense. He
also argues the jury created a manifest miscarriage of justice by rejecting his
argument that he acted in a fit of sudden passion or rage as a result of
provocation. However, as set forth above, we have already determined that
Appellant was not entitled to a voluntary manslaughter instruction, even
based upon his own version of events. Thus, we limit our review to whether
the jury committed a manifest miscarriage of justice by rejecting his claim of
self-defense.
SELF-DEFENSE
{¶74} “Self-defense is an affirmative defense that, if proved, relieves
a defendant of criminal liability for the force that the defendant used.” State
Pickaway 18CA2 61
v. Kozlosky, 195 Ohio App.3d 343, 2011–Ohio–4814, 959 N.E.2d 1097, ¶22.
“‘The burden of going forward with the evidence of an affirmative defense,
and the burden of proof, by a preponderance of the evidence, for an
affirmative defense, is upon the accused.’” State v. Nucklos, 121 Ohio St.3d
332, 2009–Ohio–792, 904 N.E.2d 512, ¶7; quoting R.C. 2901.05(A). We
observe that affirmative defenses such as self-defense “‘do not seek to
negate any of the elements of the offense which the State is required to
prove’ but rather they ‘admit[ ] the facts claimed by the prosecution and then
rel[y] on independent facts or circumstances which the defendant claims
exempt him from liability.’” State v. Smith, 3rd Dist. Logan No. 8–12–05,
2013–Ohio–746, ¶32; quoting State v. Martin, 21 Ohio St.3d 91, 94, 488
N.E.2d 166 (1986).
{¶75} To establish self-defense, a defendant must establish, by a
preponderance of the evidence, the following three circumstances:
“‘(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,
Pickaway 18CA2 62
942 N.E.2d 1075, ¶36; quoting State v. Thomas, 77 Ohio St.3d
323, 326, 673 N.E.2d 1339 (1997).
The “elements of self-defense are cumulative. * * * [Thus, i]f the 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.” State v. Jackson,
22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986). Accord State v. Cassano,
96 Ohio St.3d 94, 2002–Ohio–3751, 772 N.E.2d 81, ¶73; State v. Hargrave,
4th Dist. Adams No. 11CA907, 2012–Ohio–798, ¶16.
LEGAL ANALYSIS
{¶76} With regard to the first element, which considers whether
Appellant was at fault in creating the violent situation, the State’s theory at
trial was that Appellant entered the victim’s residence by force and shot him
to death with prior calculation and design. In support of its theory the State
relied upon evidence of prior text messages sent by Appellant that included a
photo of a gun in his possession, which was later identified as the murder
weapon. We have already determined the jury’s finding of prior calculation
and design was supported by sufficient evidence. Appellant contends, on the
other hand, that he simply went to the victim’s residence at 5:00 in the
morning to pay him $700.00 worth of money he owed, armed with a gun he
usually carried for his own protection, and that the victim initiated a physical
Pickaway 18CA2 63
confrontation and pushed Appellant to the ground. Believing the victim to
be armed, based upon prior threats made by the victim, Appellant claims he
shot first lest he be shot. Appellant argues the text messages and witness
testimony introduced at trial “affirmatively established threatening,
provocative behavior on the part of the decedent” towards Appellant. He
also alleged the text messages that included the photo of his gun were sent in
reference to a disagreement with someone else, not the victim, and thus had
no bearing on the actions he took on the night in question. Appellant settles
upon an argument that the “real issue” is whether the shooting was fully
justified as an act of self-defense or partially justified as an act committed in
a sudden fit of rage due to provocation.”
{¶77} We initially note that Appellant’s arguments that he acted both
1) in self-defense out of fear; and 2) in a sudden fit of rage due to
provocation, seem to be somewhat contradictory, as the underlying
motivations for actions resulting from fear versus provocation differ. Other
courts have reasoned that, at a minimum, fear is insufficient to demonstrate
the emotional states of passion or sudden fit of rage. See State v. Ramey, 2nd
Dist. Montgomery No. 27636, 2018-Ohio-3072, ¶36 (concluding the
appellant was not overcome by sudden passion or a sudden fit of rage, based
upon the testimony, because “fear is insufficient to demonstrate the
Pickaway 18CA2 64
emotional states of sudden passion or a fit of rage.”); quoting State v.
Williams, 7th Dist. Jefferson No. 11 JE 7, 2012-Ohio-5256, ¶24; Accord
State v. Beatty-Jones, 2d Dist. Montgomery No. 24245, 2011-Ohio-3719,
¶30. Further, this Court has held that “evidence supporting the privilege of
self-defense, i.e., that the defendant feared for [her] own and [others']
personal safety, does not constitute sudden passion or a fit of rage as
contemplated by the voluntary manslaughter statute.” State v. Goff, 4th Dist.
Lawrence No. 11CA20, 2013-Ohio-42, ¶52; citing State v. Harris, 129 Ohio
App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998). As further explained in
Goff, “‘While self-defense requires a showing of fear, voluntary
manslaughter requires a showing of rage, with emotions of “anger, hatred,
jealously, and/or furious resentment.’” Goff at ¶52; quoting State v. Levett,
1st Dist. Hamilton No. C–040537, 2006–Ohio–2222, ¶29; in turn quoting
State v. Perdue, 153 Ohio App.3d 213, 2003–Ohio–3481, 792 N.E.2d 747,
¶12 (7th Dist.); in turn quoting Harris at 535 (additional internal citations
omitted).
{¶78} Again, as we have already concluded Appellant was not
entitled to a jury instruction on voluntary manslaughter, we limit our
analysis to his self-defense argument. We do not believe, based upon the
evidence in the record, that Appellant demonstrated by a preponderance of
Pickaway 18CA2 65
the evidence that he was not at fault in creating the violent situation.
Accepting Appellant’s testimony as true, Appellant went to the victim’s
residence in what was essentially the middle of the night, armed with a gun
and anticipating a shootout. Considering the evidence presented at trial, and
interpreting that evidence in favor of the guilty, as we are required to do
when considering a manifest weight of the evidence argument, the evidence
reveals that Appellant went to the victim’s residence after texting a
photograph of his gun, along with a comment that he needed to go “take care
of some b.s.,” to various other individuals, where he proceeded to shoot the
victim multiple times, resulting in his death. Based upon the foregoing, we
cannot conclude Appellant has met his burden with respect to the first
element of self-defense.
{¶79} However, assuming arguendo that Appellant demonstrated the
first element of the affirmative defense of self-defense by a preponderance
of the evidence, we move on to a review of the second, cumulative element
required to be proven. In a deadly force case, the second element of self-
defense requires a defendant to show that the defendant 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 deadly force. See State v. Cassano,
96 Ohio St.3d 94, 2002–Ohio–3751, 772 N.E.2d 81, ¶76; quoting State v.
Pickaway 18CA2 66
Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755, paragraph two of the syllabus
(1979) (determining that defendant had “no basis for a ‘bona fide belief that
he was in imminent danger of death or great bodily harm’ and could ‘escape
from such danger’ only by using deadly force”). This second element “is a
combined subjective and objective test.” Thomas at 330. The defendant's
belief must be objectively reasonable under the circumstances, and he must
subjectively believe he needed to resort to deadly force to defend himself.
Id. at 330–331. “Thus, the jury first must consider the defendant's situation
objectively, that is, whether, considering all of the defendant's particular
characteristics, knowledge, or lack of knowledge, circumstances, history,
and conditions at the time of the attack, she reasonably believed she was in
imminent danger.” Id. at 330; accord State v. Hendrickson, 4th Dist. Athens
No. 08CA12, 2009–Ohio–4416, 2009 WL 2682158, ¶30. “Then, if the
objective standard is met, the jury must determine if, subjectively, this
particular defendant had an honest belief that she was in imminent danger.”
Thomas at 331.
{¶80} Another component contained within the second element is the
defendant's bona fide belief that the use of force was “reasonably necessary
to repel the attack.” Hendrickson at ¶29; citing State v. Williford, 49 Ohio
St.3d 247, 249, 551 N.E.2d 1279 (1990); citing State v. McLeod, 82 Ohio
Pickaway 18CA2 67
App. 155, 157, 80 N.E.2d 699 (9th Dist.1948). In other words, a defendant
must show that “that the degree of force used was ‘warranted’ under the
circumstances and ‘proportionate’ to the perceived threat.” Hendrickson at
¶31; citing State v. Palmer, 80 Ohio St.3d 543, 564, 687 N.E.2d 685 (1997).
“If * * * the amount of force used is so disproportionate that it shows an
‘unreasonable purpose to injure,’ the defense of self-defense is unavailable.”
State v. Macklin, 8th Dist. Cuyahoga No. 94482, 2011–Ohio–87, ¶27;
quoting State v. Speakman, 4th Dist. Pickaway No. 00CA035, 2001 WL
315198 (Mar. 27, 2001). Accord State v. Kimmell, 3rd Dist. Wyandot No.
16–10–06, 2011–Ohio–660, ¶20; quoting Hendrickson at ¶33 (“Self-defense
* * * is inappropriate if the force used is ‘so grossly disproportionate as to
show revenge or as [a] criminal purpose.’”). “[I]t is only when one uses a
greater degree of force than is necessary under all the circumstances that it is
not justifiable on the ground of self-defense.” McLeod at 157. As we
explained in State v. Bundy, 2012–Ohio–3934, 974 N.E.2d 139, 156–58,
¶56:
“‘Any civilized system of law recognizes the supreme value of
human life, and excuses or justifies its taking only in cases of
apparent absolute necessity. ‘“[State v.] Pellegrino, 577 N.W
.2d [590,] 596, quoting People v. Jones, 191 Cal.App.2d 478,
Pickaway 18CA2 68
12 Cal.Rptr. 777, 780 (1961). Thus, when “‘the character and
manner of the [attack] do not reasonably create a fear of great
bodily harm, there is no cause for the exaction of human life.’”
Id., quoting People v. Ceballos, 12 Cal.3d 470, 116 Cal.Rptr.
233, 238, 526 P.2d 241, 246 (1974).
{¶81} As set forth above, we believe Appellant’s claims that he both
acted in self-defense out of fear, but also acted in a fit of rage or sudden
passion as a result of provocation are somewhat incompatible from a logical
standpoint. Although we are limiting our analysis to the question of whether
Appellant demonstrated he acted in self-defense by a preponderance of the
evidence, we take this opportunity to note that case law tells us, at least with
regard to the mitigating claim of provocation, that a “‘victim [is] within his
rights in using reasonable force to repel [a] defendant from his home. Thus,
his act of [shoving] the defendant could not provide the “serious
provocation” to reduce the defendant's conduct from [murder] to
manslaughter.’” State v. Ramey, supra, at ¶35; quoting State v. Johnston,
2rd Dist. Montgomery No. 19019, 2002 WL 1393988, *3 (June 28, 2002).
{¶82} Here, the State introduced evidence at trial indicating the victim
received multiple gunshot wounds to his arms which were received in a
defensive position, with his arms up trying to shield himself. Additionally,
Pickaway 18CA2 69
the State introduced evidence that the victim sustained multiple gunshot
wounds that entered his body from the back and at close range, indicating he
was not the aggressor. Further, evidence introduced at trial demonstrated
that all of the bullet holes and recovered bullets were found on the side of
the apartment where the victim was found, and none were found in any other
area of the apartment, permitting an inference that the victim was shot at, but
did not shoot first or shoot back.
{¶83} After a review of the record we conclude that here, the jury
could have justifiably determined that the character and manner of the
victim's attack upon Appellant did not warrant the use of deadly force.
Although Appellant may have anticipated the victim intended to eventually
use deadly force upon him, Appellant’s own version of events fails to
demonstrate that the victim actually used such force upon him that it
threatened Appellant's life or placed him in danger of great bodily harm.
Instead, even accepting Appellant’s own version of events as true, the
evidence shows that the victim pushed, or shoved Appellant to the ground,
which led Appellant to fire multiple shots, not just one shot to injure.
{¶84} Further, rejecting Appellant’s version of the events and instead
accepting the State’s version of events, which the jury was free to do, the
evidence demonstrated Appellant murdered the victim with prior calculation
Pickaway 18CA2 70
and design, with the victim sustaining multiple lethal gunshot wounds, some
even from behind. Thus, we do not believe Appellant has proven the
second, cumulative element of the affirmative defense of self-defense by a
preponderance of the evidence, and as such he has failed to demonstrate that
he acted in self-defense. See State v. Jackson, supra, at 284. Accordingly,
the jury had a sound basis to reject Appellant’s claim of self-defense.
{¶85} In light of our conclusion that the evidence supports a finding
that Appellant used more force than necessary to “repel the attack,” any
argument concerning the remaining element of self-defense has been
rendered moot. See Jackson, supra (explaining that failure on any element
means defendant did not act in self-defense). Therefore, we do not address
it. See App.R. 12(A)(1)(c). Further, after our review, based upon the totality
of the evidence contained in the record, we are unable to conclude that
Appellant's convictions for aggravated murder, murder and felonious assault
are against the manifest weight of the evidence. Accordingly, based upon
the foregoing reasons, we hereby overrule Appellant's sixth assignment of
error.
ASSIGNMENT OF ERROR VII
{¶86} In his seventh assignment of error, Appellant contends the
record clearly and convincingly does not support the imposition of a life
Pickaway 18CA2 71
prison term with parole eligibility after serving thirty years. More
specifically, Appellant argues the trial court “failed to give any consideration
to [his] youth at the time of the homicide, when making the parole eligibility
determination.” Appellant also argues the trial court did not properly
consider the “less serious” factors when balancing the seriousness and
recidivism factors before imposing sentence. The State contends, however,
the record clearly and convincingly supports Appellant’s sentence.
{¶87} When reviewing felony sentences, appellate courts must apply
the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶1, 22-23. Under
R.C. 2953.08(G)(2), “[t]he appellate court's standard for review is not
whether the sentencing court abused its discretion.” Instead, R.C.
2953.08(G)(2) provides that an appellate court may increase, reduce,
modify, or vacate and remand a challenged felony sentence if the court
clearly and convincingly finds either:
“(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.”
Pickaway 18CA2 72
{¶88} Although R.C. 2953.08(G)(2)(a) does not mention R.C.
2929.11 and 2929.12, the Supreme Court of Ohio has determined that the
same standard of review applies to those statutes. Marcum at ¶23 (although
“some sentences do not require the findings that R.C. 2953.08(G)(2)(a)
specifically addresses[,] * * * it is fully consistent for appellate courts to
review those sentences that are imposed solely after consideration of the
factors in R.C. 2929.11 and 2929.12 under a standard that is equally
deferential to the sentencing court”); State v. Butcher, 4th Dist. Athens No.
15CA33, 2017-Ohio-1544, ¶84. Consequently, “an appellate court may
vacate or modify any sentence that is not clearly and convincingly contrary
to law only if the appellate court finds by clear and convincing evidence that
the record does not support the sentence.” Marcum at ¶23; Butcher at ¶84.
{¶89} “Once the trial court considers R.C. 2929.11 and 2929.12, the
burden is on the defendant to demonstrate by clear and convincing evidence
that the record does not support his sentence.” State v. Akins-Daniels, 8th
Dist. Cuyahoga No. 103817, 2016-Ohio-7048, ¶9; State v. O'Neill, 3rd Dist.
Allen No. 1-09-27, 2009-Ohio-6156, fn. 1. “Clear and convincing evidence
is ‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will
Pickaway 18CA2 73
produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.’” State ex rel. Husted v. Brunner, 123 Ohio
St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶18; quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus
(1954).
{¶90} We initially conclude that Appellant's sentence is not clearly
and convincingly contrary to law. The trial court imposed a life prison term
with parole eligibility after serving thirty years. R.C. 2929.03 permits the
imposition of a life prison term with parole eligibility after serving either,
twenty, twenty-five, or thirty years, for the offense of aggravated murder.
That statute also permits the imposition of a life sentence without parole.
Thus, the sentence imposed by the trial court here did not constitute the
maximum sentence for the offense and was provided for by the statute.
Further, Appellant does not argue that his sentence is contrary to law.
Instead, as set forth above, Appellant essentially argues his sentence is not
supported by the record because the trial court did not properly consider the
“less serious” factors contained in R.C. 2929.12(C)(1)(3) and (4) and did not
properly take into consideration his age as a mitigating factor when
imposing sentence.
Pickaway 18CA2 74
{¶91} We first address Appellant’s argument that the trial court failed
to take into consideration the fact that he was only nineteen years old at the
time the homicide occurred. Appellant cites State v. Wade, 2018-Ohio-976,
108 N.E.3d 744 in support of his argument. The Wade court noted that “[a]
court, in exercising its [sentencing] discretion under R.C. 2929.03(A), must
separately consider the youth of a juvenile offender as a mitigating factor
before imposing a sentence of life without parole.” Wade at ¶60; quoting
State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, paragraph
one of the syllabus. In State v. Long, the Supreme Court of Ohio held in its
syllabus as follows with respect to the consideration of youth as a factor in
sentencing:
“1. A court, in exercising its discretion under R.C. 2929.03(A),
must separately consider the youth of a juvenile offender as a
mitigating factor before imposing a sentence of life without
parole. (Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012), followed.)
2. The record must reflect that the court specifically considered
the juvenile offender's youth as a mitigating factor at sentencing
when a prison term of life without parole is imposed.”
Pickaway 18CA2 75
{¶92} However, we find the holdings of both Wade and Long to be
inapplicable to the case presently before us for two reasons. First, Appellant
was nineteen years old at the time of the offenses. Thus, he was an adult
rather than a juvenile offender. Second, Appellant was not sentenced to a
term of life in prison without parole. He was sentenced to life in prison with
the possibility of parole after thirty years. As such, Appellant, who was
twenty at the time the sentence was imposed, may be entitled to parole at age
fifty. Moreover, in Wade, the State conceded that a prison sentence of “172
and one-half years to life in prison” was the “functional equivalent’ of a life-
without-parole sentence because it consists of consecutive prison terms
exceeding a juvenile's life expectancy.” Wade at ¶60. This concern is not
present in the case sub judice.
{¶93} Further, although the trial court was not required to consider
Appellant’s age before imposing sentence, a review of the sentencing
hearing transcript reveals that the trial court specifically referenced
Appellant’s age during the sentencing hearing when describing the
unfortunate situation of a twenty-year-old being convicted of the aggravated
murder of a sixteen-year-old. Thus, the trial court was well-aware of the
Appellant’s age when it was considering and weighing the sentencing
Pickaway 18CA2 76
factors. Based upon the foregoing, we find no merit to this portion of
Appellant’s final assignment of error.
{¶94} Next, we consider Appellant’s argument that the trial court
failed to properly consider the “less serious” factors when balancing the
seriousness and recidivism factors under R.C. 2929.12. Appellant
specifically argues the trial court did not properly consider the factors
contained in R.C. 2929.12(C)(1)(2)4 and (4), which are as follows:
“(C) The sentencing court shall consider all of the following
that apply regarding the offender, the offense, or the victim, and
any other relevant factors, as indicating that the offender's
conduct is less serious than conduct normally constituting the
offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong
provocation.
(3) In committing the offense, the offender did not cause or
expect to cause physical harm to any person or property.
4
Appellant’s brief actually argues the trial court failed to consider the factors contained in R.C.
2929.12(C)(1)(3) and (4), and references that those provisions relate to whether the “victim induced or
facilitated the offense,” whether “the offender acted under strong provocation,” and whether substantial
grounds exist “to mitigate the offender’s conduct * * *.” However, R.C. 2929.12(C)(2) relates to whether
the offender acted under strong provocation, not R.C. 2929.12(C)(3), which has no application here.
Pickaway 18CA2 77
(4) There are substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a
defense.”
{¶95} Appellant argues the trial court did not consider the “less
serious” factors based upon its stated reasoning that “the jury didn’t buy it,
self-defense defense.” In Appellant’s view, this statement by the trial court
“reflects a misunderstanding of the distinction between the role of the jury in
the guilt phase of the criminal prosecution, and the judge’s role in the
sentencing phase[,] primarily that the “less serious” factors contained in the
statute “presume the offender has been convicted, but contemplate the
presence of circumstances sufficient to mitigate the penalty for the offense
of conviction.” However, Appellant concedes in his brief that “[a] sentence
is not illegal solely because the trial judge did not balance the statutory
factors in the manner desired by the defendant.” Citing State v. Butcher, 4th
Dist. Athens Nos. 15CA33, 15CA34, 2017-Ohio-1544, ¶87.
{¶96} In State v. Yost, 4th Dist. Meigs No. 17CA10, 2018-Ohio-2719,
¶3, an argument was made that the trial court improperly balanced and
weighed the seriousness and recidivism factors in imposing sentence. This
Court reasoned, in response to that argument, as follows:
Pickaway 18CA2 78
“Although other factors cited by Yost's counsel at the
sentencing hearing supported a finding that the offense was less
serious or that she would be less likely to commit a future
crime, see R.C. 2929.12(C) and (E), the trial court did not need
to—as Yost appears to implicitly claim—assign equal weight to
each applicable factor. Instead, precedent refutes any
contention that each statutory or other relevant factor is entitled
to equal or a certain weight in the balancing process. See State
v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277,
¶25, rejecting the argument that because each of the statutory
sentencing factors are mandatory, each is entitled to equal
weight on balance, citing State v. Bailey, 4th Dist. Highland No.
11CA7, 2011-Ohio-6526, ¶34, quoting State v. Arnett, 88 Ohio
St.3d 208, 215, 724 N.E.2d 793 (2000) (“in considering the
factors set forth in R.C. 2929.12, the trial court has ‘the
discretion to determine the weight to assign a particular
statutory factor”). Yost at ¶19.
{¶97} Here, the trial court considered all of the evidence before it,
including the information contained in the pre-sentence investigation, and
ultimately weighed the seriousness and recidivism, and other sentencing
Pickaway 18CA2 79
factors, in favor of a longer prison term before the possibility of parole. We
find the fact that the trial court did not consider provocation to be a
mitigating factor to be supported by the record in light of our finding
Appellant was not entitled to jury instruction on voluntary manslaughter.
Further, the trial court’s refusal to consider Appellant’s claim of self-defense
as a mitigating factor, based in part or even wholly upon the jury’s rejection
of that theory, also finds support in the record in light of testimony
introduced by the State contradicting Appellant’s claim. Although
Appellant’s version of events supported a claim of self-defense, the jury
rejected it and the trial court was free to reject it as well during the
sentencing phase.
{¶98} Ultimately, it has been determined that Appellant’s convictions
for aggravated murder, murder and felonious assault were not against the
manifest weight of the evidence and that the jury’s finding of prior
calculation and design was supported by sufficient evidence, with no
mitigating factors. Thus, based upon the record before us, we cannot
conclude that the trial court failed to properly consider or analyze the
seriousness and recidivism factors, or that Appellant’s sentence was not
supported by the record. As a result, we find no merit to the argument raised
Pickaway 18CA2 80
under this portion of Appellant’s final assignment of error and it is,
therefore, overruled.
{¶99} Accordingly, having found no merit in any of the assignments
of error raised by Appellant, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Pickaway 18CA2 81
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Jason P. Smith, Presiding Judge
Pickaway 18CA2 82
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.