[Cite as State v. Jackson, 2020-Ohio-1606.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108493
v. :
TYMAINE JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632209-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Maxwell M. Martin, Assistant Prosecuting
Attorney, for appellee.
Allison S. Breneman, for appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant Tymaine Jackson (“Jackson”) appeals from his
multiple convictions in the shooting death of Sir Rell Sizemore (“Sizemore”).
Finding no merit to the appeal, we affirm.
Jackson was indicted with aggravated murder, murder, five counts
of felonious assault, three counts of attempted murder, and discharge of a firearm
on or near prohibited premises. All counts contained one- and three-year firearm
specifications. The matter proceeded to a jury trial at which the following evidence
was presented.
On the evening of August 11, 2018, Jackson, who was 19 years old,
and his girlfriend went to a convenience store where it was common for people to
congregate. Jackson’s girlfriend stayed in the car off to one side of the parking lot
while Jackson walked around the large and crowded parking lot talking to friends.
On the same evening, 28-year old Sizemore was driven by his sister,
Sherron, to the same convenience store. His brother, Sir Robert, his nephew,
William, and a friend were also in the car. Sizemore and William got out of the car
to buy cigarettes, but Sizemore stayed outside of the store; Sizemore was not
allowed in the store because he was not wearing a shirt. William went inside the
store while Sizemore walked around the parking lot listening to music and
dancing.
Sizemore was in the middle of the parking lot when Jackson walked
up to him; Jackson testified he was just trying to pass Sizemore on the way back to
his girlfriend’s car. Sizemore tried to shake or “dap” Jackson’s hand; Jackson
declined. Sir Robert saw Jackson approach his brother and Sir Robert testified he
got a “tight, nervous feeling.”
According to Jackson, Sizemore saw that Jackson had a gun in his
shorts and told Jackson that “they had guns too,” meaning the people Sizemore
was with also carried firearms. Jackson claimed that Sizemore was being
aggressive towards him and Jackson feared for his safety.
William testified that he went into the convenience store and when
he exited the store he saw a man approach his uncle; the man walked from the
crowd and up to Sizemore. Sizemore tried to greet the man and give him a
handshake. William observed the man and Sizemore talking but could not hear
what they were saying. William was standing near his aunt’s car when he saw
Jackson shoot Sizemore. He tried to get to Sizemore but was unable to because
Jackson started firing his weapon at him.
Jackson testified to the following version of events. He walked over
to talk to a group of friends who were at the store while his girlfriend waited in the
car. On his way back to his girlfriend’s car, he crossed paths with Sizemore, stating
that he walked past Sizemore because this was the most direct way back to his
vehicle. Jackson had a gun in the pocket of his basketball shorts and approached
Sizemore with his hand in the pocket of his shorts. Sizemore noticed the gun in
Jackson’s waistband and told Jackson that his group had guns too. Sizemore was
being aggressive, called him a derogatory slur, and he saw Sizemore reach into his
own pocket for a gun. Jackson saw someone Sizemore was with get out of a car
and thought that man was going to kill him. Then Sizemore punched Jackson. It
was at this point Jackson pulled his gun out of his pocket and shot Sizemore. He
fled on foot with his girlfriend following in her car. Jackson turned himself in to
police a few days later.
According to the state, the surveillance video of the incident, which
was played for the jury and entered into evidence, showed Jackson pulling his gun
out of his pocket prior to Sizemore punching him. Immediately after Sizemore
punched Jackson, Jackson raised his gun and shot Sizemore multiple times in
rapid succession. Jackson then shot at William, who began to approach Sizemore
only after Sizemore was shot.
Forensic pathologist Todd Barr, M.D. (“Barr”), testified that
Sizemore’s cause of death was multiple gunshot wounds, including a close range
gunshot wound to the chest that was in and of itself fatal. Sizemore had alcohol
and cocaine in his system at the time of his death. Barr opined that Sizemore
ingested cocaine more than a day prior to his death and was not under the
influence of cocaine at the time of his death.
Eight spent 9 mm cartridge cases were recovered at the crime scene.
The firearm was never recovered.
The state theorized that because Jackson approached Sizemore with
a loaded gun already in hand and a round in the chamber, Jackson murdered
Sizemore. Jackson claimed he acted in self-defense.
The jury acquitted Jackson of aggravated murder but found him
guilty of the lesser included offense of voluntary manslaughter, guilty of murder,
guilty of three counts of felonious assault, and guilty of discharge of a firearm on or
near prohibited premises. The guilty verdicts included all firearm specifications.
The trial court sentenced Jackson to 35 years to life in prison.
It is from this conviction that Jackson now appeals, raising four
assignments of error for review. The assignments of error will be discussed out of
order for clarity.
I: The jury found, against the manifest weight of the evidence, that
the appellant committed the acts charged in the indictment and was
not acting in self-defense.
II: The evidence was not legally sufficient to sustain a guilty verdict.
III: The state failed to meet their burden of proving that defendant
did not act in self-defense.
IV: The trial court abused its discretion by imposing a prison
sentence contrary to R.C. 2929.14 and the purposes and principles of
the felony sentencing guidelines and erred by imposing consecutive
sentences.
Self-Defense
In the third assignment of error, Jackson contends that the state
failed to meet its burden of proving that he acted in self-defense.
On March 19, 2019, R.C. 2901.05 was amended to provide that the
state must prove beyond a reasonable doubt that a defendant did not act in self-
defense. See Am.Sub.H.B. No. 228. Prior to the amendment, R.C. 2901.05 placed
the burden on the defendant to show that he or she acted in self-defense. See
former R.C. 2901.05(A) (“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.”). At the time of Jackson’s trial in
April 2019, the state bore the burden of proving beyond a reasonable doubt that he
did not act in self-defense.
R.C. 2901.05(B)(1) provides that a person is allowed to act in self-
defense. If, at trial, there is evidence presented that tends to support that the
accused person used the force in self-defense, the prosecution must prove beyond
a reasonable doubt that the accused person did not use the force in self-defense.
Id. When a defendant raises the claim of self-defense, the state bears the burden of
proving beyond a reasonable doubt that the defendant was at (1) fault in creating
the situation giving rise to the affray; (2) that the defendant did not have a bona
fide belief that he or she was in imminent danger of death or great bodily harm and
that his or her only means of escape from such danger was in the use of force and;
(3) that the defendant must not have violated any duty to retreat or avoid danger.
These elements remain cumulative.
Jackson contends he was merely crossing the gas station parking lot
to return to his vehicle when he was approached by Sizemore, who punched him
after a brief conversation. Jackson argues that Sizemore warned him that “he and
his people” had guns, acted aggressively towards him, and called him a derogatory
name. At this point, Jackson testified, Sizemore put his hand in his pocket
reaching for a weapon and Sizemore’s group started walking towards him.
Jackson believed Sizemore and his friends had weapons on them and when
Sizemore punched him, he reacted to defend himself by shooting Sizemore.
Jackson argued he shot at Sherron’s car because Sizemore’s group were rushing
towards him. During the entire encounter, Jackson “believ[ed] he was going to be
shot and killed.”
We first consider who was at fault in creating the situation giving
rise to the affray. Although Jackson argues that Sizemore was the aggressor,
Jackson walked towards Sizemore, who tried to shake his hand. Jackson rebuffed
Sizemore’s advance and was immediately hostile towards the other man. On cross-
examination, Jackson admitted:
State: The fact of the matter is you escalated this situation? You
made it into the violent confrontation it was, didn’t you?
Defendant: Yes.
(T. 733). Thus, we find Jackson was at fault in creating the situation giving rise to
the shooting.
The evidence further showed that Jackson did not have a bona fide
belief that he was in imminent danger of death or great bodily harm or that his
only means of escape from such danger was in the use of deadly force. The record
shows that Sizemore was standing in the parking lot, waiting for his nephew to
purchase cigarettes, when Jackson approached him with his gun ready. Jackson
could have easily avoided Sizemore, but instead walked up to him, with his hand
on his gun that was in his pocket. Jackson said he thought Sizemore had a gun,
but Sizemore was shirtless, wearing low hanging jeans and underwear with a
visible waistband. Witnesses testified that Sizemore, and the rest of the group,
were unarmed.
Sizemore, who by all accounts was dancing and having a good time,
tried to shake Jackson’s hand. Jackson refused Sizemore’s greeting, squared off to
him, and spoke to him in an aggressive manner. A short argument ensued before
Sizemore punched Jackson. Jackson admitted that Sizemore saw his gun before
Sizemore punched Jackson; Sizemore knew Jackson was armed. Jackson
responded to the punch by shooting Sizemore five times in rapid succession,
hitting him four times. Even after Sizemore fell to the ground, Jackson continued
to shoot him. Thus, Jackson also failed to meet his duty to retreat. There is no
indication that Jackson was unable to avoid the situation. He could have avoided
Sizemore altogether by choosing a different route back to his girlfriend’s car. He
also could have turned or backed away from Sizemore at any point during their
encounter. Instead, he admittedly escalated the encounter into a violent encounter
that ended up with him shooting Sizemore and causing his death.
In light of the above, we find that the state met its burden. The third
assignment of error is overruled.
Sufficiency of the Evidence
In the second assignment of error, Jackson contends that the
evidence was insufficient to sustain his convictions for the sole reason that the
state did not prove that he acted in self-defense.
Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541
(1997). Sufficiency is a test of adequacy. Id.
Jackson was convicted of committing murder pursuant to R.C.
2903.02(B), voluntary manslaughter pursuant to R.C. 2903.03, felonious assault
pursuant to R.C. 2903.11(A)(1) and (A)(2); and discharge of a firearm on or near
prohibited premises pursuant to R.C. 2923.162(A)(3). Jackson argues that the
evidence did not support his convictions because he acted in self-defense.
Jackson’s sufficiency argument based on his asserted self-defense
claim has no merit. When reviewing a claim by a defendant that evidence supports
his or her claim of self-defense, the manifest-weight standard is the proper
standard of review because a defendant claiming self-defense does not seek to
negate an element of the offense charged but rather seeks to relieve himself or
herself from culpability. State v. Colon, 8th Dist. Cuyahoga No. 106031, 2018-
Ohio-1507, ¶ 16. A sufficiency review, on the other hand, is applied to the
substantive elements of the crime as state law defines them. Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, Jackson’s reliance on his
self-defense testimony is not relevant to the analysis of whether there was
sufficient evidence to support the substantive elements of murder, voluntary
manslaughter, felonious assault, and discharge of a firearm on or near prohibited
premises.
We find evidence in the record that supports the jury’s verdict. It is
undisputed that Jackson approached Sizemore after talking to a group of friends.
The two exchanged words. Sizemore punched Jackson and Jackson shot Sizemore
instead of retreating. Jackson shot at Sizemore five times, hitting him four times,
and killing him. Jackson then shot at Sizemore’s family, hitting the car in which
they were sitting.
The second assignment of error is overruled.
Manifest Weight of the Evidence
In the first assignment of error, Jackson argues that his convictions
are against the manifest weight of the evidence. Determinations of credibility and
weight of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The jury, or the
court in a bench trial, may take note of inconsistencies at trial and resolve them
accordingly, “believ[ing] all, part, or none of a witness’s testimony.” State v. Metz,
8th Dist. Cuyahoga Nos. 107212, 107246, 107259, 107261, 2019-Ohio-4054, ¶ 70
citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Therefore,
“[w]hen a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a
‘“thirteenth juror”’ and disagrees with the factfinder’s resolution of the conflicting
testimony.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Tibbs v.
Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing
court must consider all the evidence in the record, the reasonable inferences, and
the credibility of the witnesses, to determine whether, ‘“in resolving conflicts in the
evidence, the jury 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 id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most ‘“exceptional case in which the
evidence weighs heavily against the conviction.”’ Thompkins at id., quoting Martin
at id.
Jackson asserts his convictions are against the manifest weight of
the evidence because he acted in self-defense. According to his testimony, he
feared for his life and only shot Sizemore after Sizemore punched him and
Sizemore’s family members charged him.
Ultimately, the jury had to decide whether to believe the account of
the incident given at trial by the state’s witnesses or by Jackson. That is, it was
within the province of the jury to resolve the conflicts in the testimony about the
confrontation between Jackson and Sizemore, and to find that Jackson did not act
in self-defense. In resolving this conflict, the jury had the opportunity to view the
video of the incident. The jury also could assess Jackson’s motivation to lie about
his conduct. In view of its verdict, the jury did not believe fully Jackson’s account,
but they also acquitted him of the most serious charge, aggravated murder, and of
other charges. Upon reviewing the entire record, we find that the jury’s resolution
of the competing testimony and evidence was not against the manifest weight of
the evidence. This not an exceptional case in which the evidence weighs heavily
against the conviction.
In light of the above, the first assignment of error is overruled.
Sentencing
In the fourth assignment of error, Jackson contends that the trial
court erred in sentencing him to a sentence of 35 years to life in prison. He argues
that the trial court abused its discretion by failing to properly weigh the
seriousness and recidivism factors set forth in R.C. 2929.12, as well as failing to
properly consider the purposes and principles of the felony sentencing guideline
before imposing a 35-year-to-life sentence. He also argues that the record does not
support the imposition of consecutive sentences.
We review felony sentences using the standard of review set forth in
R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 22. In State v. Gwynne, 2019-Ohio-4761, 158 Ohio St.3d 279, the Ohio
Supreme Court held that R.C. 2929.11 and 2929.12 apply only to individual
sentences; R.C. 2953.08(G)(2)(a) and 2929.14(C) set forth the exclusive means of
appellate review of consecutive sentences. Id. at ¶ 16-17.
R.C. 2953.08(G)(2) provides we may either increase, reduce,
modify, or vacate a sentence and remand for resentencing where we clearly and
convincingly find that either the record does not support the sentencing court’s
findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I),
or the sentence is otherwise contrary to law. See also State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶ 16.
In general, it is presumed that prison terms will be served
concurrently. R.C. 2929.41(A); Bonnell at ¶ 16, 23. However, after determining
the sentence for a particular crime, a sentencing judge has discretion to order an
offender to serve individual counts of a sentence consecutively to each other or to
sentences imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to
impose consecutive sentences if it finds that (1) consecutive sentencing is necessary
to protect the public from future crime or to punish the offender, (2) consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and (3) any of the following applies:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that
no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness of
the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
A review of the record shows that the trial court complied with R.C.
2929.14(C)(4) by making the required statutory findings. The court found, both
orally and in its judgment entry, that consecutive sentences were necessary to
protect the public or to punish Jackson and that consecutive sentences were not
disproportionate to the seriousness of his conduct and to the danger that he posed
to the public. Lastly, the court found that Jackson’s history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public from
future crime by him. The trial court emphasized that there was no connection
between Jackson and Sizemore. The trial court called the case the “worst case of
murder that I’ve seen” and said that Jackson “slaughtered” Sizemore for no reason
other than Jackson was “looking for someone to kill.”
Upon review of the record, we do not clearly and convincingly find
that the record does not support the trial court’s findings relative to its imposition
of consecutive sentences.
The fourth assignment of error is overruled.
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 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.
LARRY A. JONES, SR., JUDGE
SEAN C. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR