[Cite as State v. Henderson, 2019-Ohio-4581.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108127
v. :
EDDIE J. HENDERSON, III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 7, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627845-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar and Nathaniel
Tosi, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
RAYMOND C. HEADEN, J.:
Defendant-appellant Eddie Henderson, III (“Henderson”), appeals
from his conviction for felonious assault, arguing that his conviction was against the
manifest weight of the evidence. For the reasons that follow, we affirm.
Procedural and Substantive History
The events underlying this case took place on April 12, 2018. That
morning, victim Lorenzo Kane (“Kane”) had an appointment to get a haircut with
his barber, Henderson, at the Clips of Excellence barber shop in Cleveland Heights,
Ohio. Kane had been a regular customer of Henderson’s for several months. Kane
arrived early to his appointment. Initially, Kane waited in his car, which was parked
in the parking lot behind the shop. At one point, Kane decided to wait inside the
shop.
While he waited, Kane was singing to himself. Eventually, Henderson
arrived through the shop’s back door. Kane asked Henderson why he was late.
According to Kane, he was upset but relatively calm. According to Henderson and
another barber, Kane was almost immediately aggressive with Henderson and
threatened him physically. Henderson decided to remove himself from the
situation, telling Kane that one of the other barbers could cut his hair. Henderson
went outside and opened the front passenger door of his car. Kane followed
Henderson outside. According to Kane, Henderson yelled at him, continuing their
disagreement, so he walked over to Henderson’s car. According to Henderson, Kane
followed him, got too close to him, and did not back off enough when Henderson
asked him to do so. As a result of that, according to Henderson, he shot Kane. The
first shot struck Kane’s leg, causing him to collapse to the ground between two other
parked vehicles. The next shot hit Kane in his torso. Kane brought his right hand
up to protect his face, and the third shot went through his hand and grazed his jaw.
Henderson immediately went back inside the shop, told another
barber to call 911, and set his gun down on a table between two barber stations.
Officers arrived, transported Kane to the hospital to be treated, and arrested
Henderson, who immediately identified himself as the shooter and stated that he
fired his gun in self-defense.
Henderson was charged with one count of attempted murder in
violation of R.C. 2923.02 and 2903.02(A), one count of felonious assault in violation
of R.C. 2903.11(A)(1), and one count of felonious assault in violation of
R.C. 2903.11(A)(2). Each of the three counts carried one- and three-year firearm
specifications.
A jury trial began on November 7, 2018. The state called Kane,
another barber, another customer, and several law enforcement officers as
witnesses. The state also introduced surveillance footage showing the first part of
the shooting. Following the state’s case, Henderson made a Crim.R. 29 motion, that
the court denied. Henderson then called a different barber, and Henderson testified
on his own behalf. At the close of his case, Henderson renewed his Crim.R. 29
motion, which the court again denied.
On November 15, 2018, the jury returned a verdict of not guilty as to
attempted murder, not guilty as to felonious assault alleging serious physical harm,
and guilty as to felonious assault by way of a deadly weapon.
On December 17, 2018, the court sentenced Henderson to three years
on the felonious assault charge, to be served consecutively to three years for the
firearm specification, for an aggregate term of six years.
Henderson appeals, presenting a single assignment of error for our
review.
Law and Analysis
In Henderson’s sole assignment of error, he argues that his conviction
for felonious assault is against the manifest weight of the evidence. Specifically, he
asserts that his conviction should be overturned because the jury implicitly accepted
his affirmative defense of self-defense for two counts while rejecting it for the third
count, despite the evidence supporting all three counts being identical. Further, he
argues that the jury lost its way by finding him guilty despite his clearly established
case of self-defense.
A manifest weight challenge attacks the quality of the evidence and
questions whether the state met its burden of persuasion at trial. State v. Hill, 8th
Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When reviewing a manifest weight
challenge, a court reviews the entire record, weighing all evidence and reasonable
inferences and considering the credibility of the witnesses, to determine whether the
trier of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed. State v. Thompkins, 678 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997).
For Henderson to successfully assert that he acted in self-defense, he
had the burden to show that (1) he was not at fault in creating the violent situation;
(2) he had a bona fide belief that he was in imminent danger of great bodily harm;
and (3) the only way of escape was to react by means of force.1 State v. Thomas, 77
Ohio St.3d 323, 673 N.E.2d 1339 (1997). After a thorough review of the record, we
do not find that the jury lost its way.
The parties disagree as to who created the situation leading to the
shooting. Henderson maintains that Kane was acting erratically and followed him
outside, threatening physical violence. Although trial testimony showed that Kane
did threaten Henderson inside the barber shop, and the surveillance footage clearly
shows Kane exit the barber shop after Henderson, there was no evidence that the
altercation between the men was violent until the moment Henderson pointed his
gun at Kane. In fact, the surveillance footage shows Kane taking steps backward
away from Henderson when Henderson pointed his gun at Kane. Henderson
himself admitted that Kane stepped back, but asserted that Kane was still too close
to him and he still felt scared and threatened.
1 On March 28, 2019 (several months after Henderson’s trial), the Ohio legislature
amended R.C. 2901.05. The statute now provides that “[i]f, at the trial of a person who is
accused of an offense that involved the person’s use of force against another, there is
evidence presented that tends to support that the accused person used the force in self-
defense, defense of another, or defense of that person’s residence, the prosecution must
prove beyond a reasonable doubt that the accused person did not use the force in self-
defense, defense of another, or defense of that person’s residence, as the case may be.”
R.C. 2901.05(B)(1). Henderson acknowledges this change, but does not assert that the
current version of the statute applies retroactively to him.
Henderson was also required to show that he had a bona fide belief
that he was in imminent danger of great physical harm. There was no evidence
presented to show that Kane had a weapon on him, or that he actually tried to initiate
a physical fight with Henderson. Even if Henderson had a good faith subjective
belief that he was in imminent danger of great physical harm, he cannot establish
the other two requisite factors.
Henderson has not established that he was unable to retreat, and that
his only way of escape was to react with force. While Henderson did attempt to leave
the situation by leaving the barber shop, he was unable to articulate why he did not
get in his car and drive away. He testified that he went to his passenger seat to get
his wallet out of the glove box, and that Kane followed him too closely for him to
drive away. A review of the record and the surveillance footage undermines
Henderson’s testimony as to this point.
Finally, even if Henderson had established the foregoing factors to
show that self-defense was necessary, he is unable to justify his use of deadly force
in self-defense. For a defendant to use deadly force in self-defense, he must have a
bona fide belief of imminent danger or death and that the only means of escape is
the use of such deadly force. State v. Warmus, 197 Ohio App.3d 383, 967 N.E.2d
1223 (8th Dist.2011.). Again, there is no evidence that Kane was armed. Kane tried
to run away from Henderson, but the first gunshot wound prevented him from doing
so. Even if Henderson could justify his first shot, there is no evidence in the record
that would support his decision to fire two subsequent shots, including one shot at
the victim’s head.
Henderson also argues that his conviction was against the manifest
weight of the evidence because the not guilty verdicts on two counts were
inconsistent with the guilty verdict on one count of felonious assault. Henderson
asserts that these verdicts show that the jury accepted a singular affirmative defense
for attempted murder and felonious assault causing serious physical harm, while
rejecting that affirmative defense for felonious assault by way of a deadly weapon.
Henderson argues that this is problematic because the evidence supporting all three
counts was identical.
Ohio law is well-settled that inconsistency in a verdict does not arise
out of inconsistent responses to different counts; it only arises out of inconsistent
responses to the same count. State v. Brown, 12 Ohio St.3d 147, 147, 465 N.E.2d
889 (1984). Further, while the same underlying conduct resulted in each of the
three counts, each count had distinct elements unrelated to the other offenses. For
example, felonious assault in violation of R.C. 2903.11(A)(1) provides that no person
shall knowingly cause serious physical harm to another or to another’s unborn.
Felonious assault in violation of R.C. 2903.11(A)(2) provides that no person shall
knowingly cause or attempt to cause physical harm to another or to another’s
unborn by means of a deadly weapon or dangerous ordnance. For a conviction
under subsection (A)(1), the state must prove beyond a reasonable doubt that the
defendant knowingly caused serious physical harm. A showing of serious physical
harm is not necessary under subsection (A)(2), although that subsection requires
the state to prove beyond a reasonable doubt that the defendant used a deadly
weapon or dangerous ordnance. Therefore, although Henderson asserted a singular
affirmative defense with respect to all three counts, his assumption that the jury
must have accepted his affirmative defense for two counts is incorrect.
In light of the foregoing, we cannot conclude that the jury lost its way
and created a manifest miscarriage of justice. Therefore, we overrule Henderson’s
assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
RAYMOND C. HEADEN, JUDGE
EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR