State v. Straughan

[Cite as State v. Straughan, 2021-Ohio-1054.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29549

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEFFREY ALLEN STRAUGHAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 18 07 2870

DECISION AND JOURNAL ENTRY

Dated: March 31, 2021

CARR, Presiding Judge.

{¶1} Defendant-Appellant Jeffrey Allen Straughan appeals from the judgment of the

Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} Following an altercation with the victim in a fast food parking lot on August 14,

2018, an indictment was filed charging Straughan with felonious assault in violation of R.C.

2903.11(A)(2) and 2903.11(D)(1)(a) and aggravated menacing in violation of R.C. 2903.21(A)

and 2903.21(B). A firearm specification accompanied the felonious assault charge. In March

2019, a supplemental indictment was filed and Straughan was charged with the discharge of a

firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3) and 2923.162(C)(2).

A firearm specification accompanied this count as well.
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{¶3} The matter proceeded to a jury trial. The jury found Straughan guilty of all the

charges, and the trial court sentenced him accordingly. Straughan has appealed, raising five

assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

DEFENDANT’S CONVICTIONS FOR FELONIOUS ASSAULT,
AGGRAVATED MENACING, AND DISCHARGE OF FIREARM ON OR
NEAR PROHIBITED PREMISES ARE BASED UPON INSUFFICIENT
EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

{¶4} Straughan argues in his first assignment of error that his convictions are based upon

insufficient evidence and are against the manifest weight of the evidence. With respect to

sufficiency, he asserts that there was insufficient evidence that the bullet that he fired traveled

across a road. In addition, Straughan claims that the State failed to establish that he did not act in

self-defense. With respect to the weight of the evidence, it appears that Straughan asserts that the

jury was unreasonable in its resolution of the conflicting testimony.

Background

{¶5} There is no dispute that on August 14, 2018, Straughan fired his gun at the victim;

instead, the issues in this case center on the circumstances surrounding the firing of that weapon.

These issues include whether the bullet actually traveled across the road and whether Straughan

fired the weapon in self-defense. Unfortunately, as is often the case, the eye-witness accounts of

the events are not in agreement about the facts relevant to these circumstances.

{¶6} Late in the afternoon or early evening on August 14, 2018, the victim, a man in his

late 30’s, who was homeless at the time, walked into a pizza shop that Straughan owned.

Straughan, who was described as being older and shorter in stature than the victim, was not
 3

working at the shop at the time. The victim asked an employee if he could have some free pizza

or a cigarette and also asked for a job application. The victim grabbed what he testified was one

dollar, and Straughan characterized as $9.00, from the tip jar and left the business. The employee

noticed the missing money and reported it to Straughan. Straughan drove down to the shop and

viewed the surveillance video. He then drove around a little to try to locate the victim. Being

unable to do so, he decided to head home. On his way home, he spotted the victim in the parking

lot between Burger King and Arby’s. The area is a busy commercial area described as being

heavily congested with people.

{¶7} After leaving the pizza shop, the victim went to a Burger King on State Road in

Cuyahoga Falls. He asked for a job application there as well. While the victim denied that he then

asked customers in the parking lot for food, eyewitnesses did report the victim coming up to their

car and asking for food or money. An eyewitness in a car, K.S., described the victim as agitated

and angry and somewhat difficult to understand. While the victim did not make any threats

towards K.S., his behavior made her feel threatened.

{¶8} The victim, according to his trial testimony, then saw Straughan, who was near his

parked vehicle. Straughan had a gun in a holster on his hip. Straughan admitted to openly carrying

the weapon at all times. The victim described Straughan as being “aggravated as hell.” The victim

recognized Straughan as being associated with the pizza shop. The victim indicated that Straughan

was yelling and calling the victim a thief. Straughan told the victim he was not welcome at the

pizza shop. The victim stated that Straughan kept threatening to shoot the victim. Straughan had

a phone in his hand and said he was going to call the police. The victim and Straughan began to

yell back and forth. Because Straughan kept threatening to pull his weapon on the victim, the

victim pushed Straughan with both hands. Then Straughan pointed the gun at the victim. The
 4

victim indicated that he was crossing the street going away from Straughan but turned and was

facing Straughan when Straughan fired the weapon. The victim was not injured but the shirt he

was wearing, near the area that would cover the small of the back, had four holes in it that the

victim testified were not there prior to the shooting. The holes were in a horizontal line on the

shirt. Gunshot residue was found in that area of the shirt. A police officer testified that he believed

that the holes were from a bullet and that the left most hole was the entry hole. The officer believed

the shirt must have been bunched up such that the one bullet caused the four holes.

{¶9} When the victim detailed the incident to police, he told police that, when the victim

was exiting Burger King, Straughan started approaching the victim and was accusing him of

stealing a wallet from the pizza shop. The victim told the officer that there was then a back and

forth verbal altercation. At some point, Straughan drew the firearm and pointed it at the victim.

The victim started to walk away to cross the street. The victim turned and saw Straughan had

holstered the weapon. The victim went back towards the parking lot and Straughan and another

verbal argument occurred. Straughan drew the gun again and the victim started to walk back

towards State Road. It was at that point the gun was fired, according to the victim’s statement to

police. Thus, the victim was facing away from Straughan and towards State Road. The victim

told police that he thought Straughan walked up and put the gun into the victim’s back and pulled

the trigger because he felt a brush of air go by his back. The victim then began to re-approach

Straughan. At that point a manager from Burger King came out to keep the two men separated

and police arrived around the same time. Police located a 45-caliber shell casing near the exit of

the shared parking lot. Police were unable to locate a bullet; however, Straughan’s gun was

recovered. When it was taken into custody, it was jammed, meaning “the slide was locked back

because it had a round sticking straight up.” Thus, without clearing the jam, another round could
 5

not be fired. It was a 45 semi-automatic pistol and was test-fired and deemed operable. The shell

casing was determined to be fired from that weapon.

{¶10} Straughan relayed the events differently. Straughan testified that he had some

health issues from his prior service in the military. He indicated that he had a bad shoulder, knee

problems, and ankle problems. He testified that his right leg was more affected and that the leg

injury caused him to not to be able run or back up quickly. Straughan also averred that he had

what he described as “anger issues” for which he was on Prozac at the time of the altercation.

{¶11} Once he located the victim, Straughan observed the victim arguing and screaming

with the people in K.S.’s car. Straughan asserted that he got out of his car to call 911. While only

one 911 recording from Straughan was presented, he claimed to have called twice. When K.S.’s

car moved, the victim moved towards Straughan. Straughan may have said, “You stole from me.”

The victim then pushed Straughan and told him not to talk to the police. Straughan fell up against

his car. Straughan described the victim as being angry. The victim was screaming at Straughan

not to call the police and told Straughan that the victim was going to stop Straughan from doing

so. The victim then pushed Straughan again. Straughan told the victim not to assault Straughan

again or he would defend himself. The victim pushed Straughan a third time and Straughan

repeated himself. The victim then came at Straughan a fourth time. Straughan dropped his phone

and drew his gun. When Straughan pulled the weapon, the victim backed off and started walking

away. Straughan then picked up his phone and started to call 911 again. The victim then turned

around towards Straughan and began running at him. Straughan dropped his phone again, pulled

his weapon, and fired. Straughan thought the victim said, “I’m going to kill you.” The victim’s

fists were clenched. After Straughan fired the weapon, the victim ran out into the middle of the

street. Straughan testified that he was afraid that the victim would kill him and that he had no
 6

choice but to fire the weapon. Straughan indicated that the sound of the gun firing was quieter

than normal and that when he fired it, it jammed. He also believed that the gun had “squibbed[.]”

An expert with the Ohio Bureau of Criminal Investigation testified that a “squib load is a cartridge

when it fires, it has significantly less – the projectile has significantly less velocity than a normal

cartridge.” Sometimes it can get stuck in the barrel or it exits the barrel at decreased velocity.

{¶12} The next day or so, Straughan went back to the scene and found a bullet where he

had been standing when he fired the weapon. Straughan did not turn the bullet over to the police

as he did not know it was evidence as he had not then been charged with a crime. Straughan

intended to keep the bullet and make a necklace out of it. While Straughan was in jail, his wife

knocked over the plastic bin that contained the bullet and they were then unable to find it again.

{¶13} At the scene, Straughan also made a statement to police. Straughan told police that

he fired his weapon at the victim and that he was afraid that the victim was going “kick [his] a**”

or punch him. Straughan relayed a similar sequence of events to police as to what he testified to

at trial: Straughan told the officer that the victim pushed Straughan a few times, and, that,

ultimately, when the victim turned around and charged at Straughan, Straughan fired at the victim.

Straughan did not complain to police of any injuries or request an ambulance. Based on the

direction Straughan indicated he fired, the officer testified that the bullet could have gone across

Schiller Avenue or State Road.

{¶14} In addition, several other witnesses saw a portion of the events. K.S. was in her car

with her daughter and her grandson. They were parked in front of the Burger King and getting

ready to go through the drive-through when the victim walked up to K.S.’s car window mumbling

about how they would not give him food. He was difficult to understand. The victim asked K.S.

for food and money and she said she did not have any for him. The victim seemed angry and
 7

frustrated. The victim left and K.S. started to pull towards the drive-through when K.S.’s daughter

saw the victim arguing with Straughan. K.S. could observe some of it through her rear-view

mirror. K.S. could not hear much but did hear Straughan say he was calling the police. Then,

K.S.’s daughter said that Straughan had a gun. K.S. saw Straughan lower the gun and heard, “Stay

away from me[.]” Every time the victim would approach Straughan, Straughan would raise the

gun again. During this time, K.S.’ daughter called 911. K.S. heard a gunshot; when she turned

around, she saw the victim standing facing Straughan. K.S. did not observe any physical

confrontation between the two nor did she hear the victim threaten Straughan.

{¶15} K.S.’s daughter testified that as they were pulling towards the drive-through, she

heard shouting. She said Straughan was yelling about the victim stealing from Straughan’s

business. K.S.’s daughter then saw Straughan pull out a gun and say that he would use it in self-

defense. At that point K.S.’s daughter decided to call 911. The victim backed off and Straughan

put the gun away. K.S. observed both the victim and Straughan pushing each other. The victim

continued to run towards Straughan and Straughan warned him that he would use the weapon in

self-defense if the victim did not stop. K.S.’s daughter saw Straughan pull the gun a second time

and then she heard a shot. When the shot was fired, she saw the victim and Straughan facing each

other and they were about 10 feet apart.

{¶16} A home health aide who was in the car with a client also observed part of the

incident. They were driving past Burger King when the home health aide heard a gunshot. The

home health observed Straughan pointing a gun at the victim as the victim was walking across the

street. Straughan was near the apron of the parking lot and the victim was walking away across

the street. The home health aide did not observe any physical confrontation and only heard yelling.

After the victim had gone a bit down the road, he came back towards Straughan to argue some
 8

more. To the home health aide, it appeared that Straughan and the victim were antagonizing each

other.

{¶17} That day, a Burger King employee also witnessed some of the events. As she pulled

into the Burger King parking lot, she heard an argument. She saw the two men arguing. She then

observed the victim push Straughan. The Burger King employee called the police. She also saw

a gun drawn and the victim running across State Road. At the time the Burger employee heard the

gunshot, she saw Straughan pointing the gun across State Road, and the victim running away

across the street. She clarified that the victim was facing away from Straughan at the time the gun

was fired. She had no doubt that the gun was fired over State Road.

{¶18} At the time of the incident, J.C. was in his car with his two children. While he was

stopped at a light, he saw two men having a verbal altercation near the sidewalk by the Arby’s.

He observed the victim cross the double yellow line on the four-lane State Road. The victim

stopped, stood there, and was yelling. J.C. saw Straughan extend his arm out but could not see

what was in his hand. The victim flinched or ducked. J.C. thought maybe it was a taser because

he did not hear a gunshot. J.C. pulled around the parking lot and encountered the Burger King

employee who told J.C. that “[t]hat guy just shot at the other guy.”

{¶19} At the time of the altercation, Mrs. Smith was with her husband and daughter in the

Arby’s parking lot. The windows were rolled down and she heard “a really heated argument”

between two men. The men were in each other’s faces and were yelling at the same time. She

thinks she heard, “Back off; get away from me.” Mrs. Smith did not observe any physical

confrontation. She saw the victim walking across State Road and Straughan then pulled out a

weapon, pointed it at the victim’s back, and then fired a shot. The victim then turned around and

said something but proceeded to go back across the road. Once the gun was pulled, Mrs. Smith’s
 9

husband called 911. In the 911 call, her husband described Straughan as having a limp. Mrs.

Smith averred that the bullet would have had to cross State Road or another road near the

intersection so long as it did not encounter another obstruction along the way.

{¶20} R.K. was also near the Burger King at the time of the shooting. He was in his car

and heard some arguments and then a gunshot. R.K. observed the victim running across the street

and Straughan standing in the Burger King parking lot. R.K. indicated that Straughan had pointed

the gun at the victim who was running away. At the time of the shooting, the victim was facing

away from Straughan and, according to R.K. was already on the far side of the street. R.K. believed

the bullet would have traveled over State Road. He did not observe any physical contact between

the two men.

Sufficiency

{¶21} When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before the

trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.

Id. at paragraph two of the syllabus.

{¶22} With respect to the elements of the offenses, Straughan only challenges whether the

State met its burden with respect to the elements of R.C. 2923.162(A)(3).

{¶23} R.C. 2923.162 provides in relevant part:

(A) No person shall * * *:
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(3) Discharge a firearm upon or over a public road or highway.

***

(C) Whoever violates this section is guilty of discharge of a firearm on or near
prohibited premises. A violation of division (A)(1) or (2) of this section is a
misdemeanor of the fourth degree. A violation of division (A)(3) of this section
shall be punished as follows:

(1) Except as otherwise provided in division (C)(2), (3), or (4) of this section, a
violation of division (A)(3) of this section is a misdemeanor of the first degree.

(2) Except as otherwise provided in division (C)(3) or (4) of this section, if the
violation created a substantial risk of physical harm to any person or caused serious
physical harm to property, a violation of division (A)(3) of this section is a felony
of the third degree.

{¶24} Specifically, Straughan asserts that there was insufficient evidence concerning the

bullet’s ultimate resting place to support a conviction under R.C. 2923.162(A)(3). As discussed

above, the bullet was not recovered by police nor did Straughan turn the bullet in that he claimed

he found. “However, lack of physical evidence does not mean that the evidence the state did

present was insufficient to convict a defendant of the offenses with which he or she was charged.”

State v. Bradley, 8th Dist. Cuyahoga No. 10893, 2020-Ohio-3460, ¶ 34.

{¶25} Here, some of the State’s eyewitnesses testified that the bullet would have crossed

over State Road or another road given the direction the gun was pointed when it was fired. In

addition, there was testimony that the victim was in the road at the time the shot was fired and that

he had gunshot residue on his back. There were also four holes discovered in the back of the

victim’s shirt that an officer believed were caused by a bullet. The victim himself averred that the

holes were not there prior to the shooting. Viewing the evidence in a light most favorable to the

prosecution, we conclude that the State presented sufficient evidence, if believed to support a

finding of guilt on the charge of violating R.C. 2923.162(A)(3) and 2923.162(C)(2).
 11

{¶26} Straughan also argues that the State failed to present sufficient evidence to

demonstrate that he did not act in self-defense. We note that at the time of the shooting, August

14, 2018, the new version of the self-defense statute had not yet taken effect. However, at the time

of trial, the statute had taken effect. “Until recently, self-defense was an affirmative defense that

was required to be proven by a defendant by a preponderance of the evidence.” State v. Williams,

9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 10. “Recent amendments to R.C. 2901.05(B),

however, reallocated the burden of proof with respect to self-defense[.]” Id. “Consequently, once

there is evidence presented at trial that tends to support that the defendant acted in self-defense,

the State must disprove one of the elements of self-defense beyond a reasonable doubt.” Id.

{¶27} Previously, this Court has concluded that, when the offense at issue occurred prior

to March 28, 2019, former R.C. 2901.05(A) applies, and it is the defendant’s burden to prove, by

a preponderance of the evidence, that he acted either in self-defense or in defense of others. State

v. Brown, 9th Dist. Wayne No. 19AP0004, 2020-Ohio-529, ¶ 23. However, in circumstances

similar to this, where the parties agreed at trial to utilize the new version of the statute even though

the crime took place prior to the effective date, this Court has applied the new statute in resolving

the appeal. See Williams at ¶ 4, 29, 32. In this case, the parties seemed to agree that the new

statute applied, and the trial court instructed the jury based upon that amended version. Given this

Court’s precedent in Williams, we will also review this appeal pursuant to the amended statute.

{¶28} Pursuant to R.C. 2901.05(B)(1):

A person is allowed to act in self-defense, defense of another, or defense of that
person’s residence. If, 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.
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{¶29} “Self-defense requires that a defendant was not at fault in creating the situation

giving rise to the affray; * * * [had] a bona fide belief that he was in imminent danger of death or

great bodily harm and that his only means of escape from such danger was in the use of such force;

and * * * [did] not * * * violate[ ] any duty to retreat or avoid the danger.” (Internal quotations

omitted.) Williams, 2020-Ohio-3269, at ¶ 9, quoting State v. Robbins, 58 Ohio St.2d 74 (1979),

paragraph two of the syllabus. “An individual who is the first aggressor in an incident is ‘at fault’

for purposes of self-defense.” Williams at ¶ 9. “In Ohio, there is an objective and a subjective

aspect involved in determining whether a defendant had a bona fide belief that he or she was in

imminent danger of death or great bodily harm: an individual’s belief that he or she was in

imminent danger must be objectively reasonable, and the individual must have an honest

subjective belief to that effect.” Id. at ¶ 11.

{¶30} Reviewing the record in a light most favorable to the prosecution, we conclude the

State presented sufficient evidence, if believed, to disprove at least one of the elements of self-

defense. See State v. Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 14. There was

evidence presented that the victim was moving away from Straughan when Straughan shot at the

victim. This would support that Straughan did not have a bona fide belief that he was in immediate

danger of death or great bodily harm at the time he utilized deadly force. See Williams at ¶ 9.

There was also evidence from which it could be concluded that Straughan could have retreated.

See id. Given the foregoing, we conclude that the State presented sufficient evidence to disprove

Straughan’s self-defense claim.

{¶31} Straughan’s challenge to the sufficiency of the evidence is overruled.
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Manifest Weight

{¶32} Straughan additionally argues that his convictions are against the manifest weight

of the evidence. In so doing, he points to the differences in the testimony among the eyewitnesses.

He does not specifically challenge the jury’s rejection of self-defense in his manifest weight

argument; nonetheless, we will briefly address it as it was the center of his defense. Straughan

also mentions that there was no tangible proof that the bullet traveled across a roadway.

In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

{¶33} “When 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 fact[-]finder’s resolution of the conflicting testimony.” State v. Thompkins, 78

Ohio St.3d 380, 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should

exercise the power to reverse a judgment as against the manifest weight of the evidence only in

exceptional cases. Otten at 340.

{¶34} It is true that the eyewitness testimony differed with respect to how the events

unfolded. However, “[t]his Court has consistently held that the trier of fact is in the best position

to evaluate the credibility of witnesses and resolve factual disputes.” (Internal quotations and

citations omitted.) State v. Moore, 9th Dist. Summit No. 29418, 2020-Ohio-3708, ¶ 30. “[T]he

jury is free to believe all, part, or none of the testimony of each witness.” (Internal quotations and

citations omitted.). State v. Gannon, 9th Dist. Medina No. 19CA0053-M, 2020-Ohio-3075, ¶ 20.
 14

“This Court will not overturn a conviction on a manifest weight challenge only because the jury

found the testimony of certain witnesses to be credible.” Id.

{¶35} Here, after an independent review of the evidence, we conclude that the jury was

not unreasonable in rejecting the affirmative defense of self-defense. Given all the conflicts in the

testimony, the jury could have reasonably believed that the victim was moving away from

Straughan when Straughan shot at the victim. In that case, the jury would not have been

unreasonable in concluding that the State demonstrated that Straughan did not have a bona fide

belief that he was in immediate danger of death or great bodily harm at the time he utilized deadly

force. See Williams, 2020-Ohio-3269, at ¶ 9. The jury also could have reasonably concluded,

given the variations in the testimony, that the State demonstrated that Straughan could have

retreated or that his belief that his use of deadly force was necessary was not objectively reasonable

under the circumstances. See id. at ¶ 10-11. The State only had to prove beyond a reasonable

doubt that one of the elements of self-defense was not satisfied. See id. at ¶ 10. Given the

argument before us, we cannot say that Straughan demonstrated that the jury lost its way in

rejecting his claim of self-defense.

{¶36} With respect to Straughan’s argument that there was no tangible evidence to

support where the bullet went, we already addressed that issue in terms of sufficiency and

concluded that it was without merit.

{¶37} Straughan has not demonstrated that his convictions are against the manifest weight

of the evidence. Straughan’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
WHEN IT UTILIZED A VAGUE AND INCOMPLETE JURY INSTRUCTION,
FAILED TO HOLD A HEARING ON THE ISSUE OF DEFENDANT’S
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HEARING IMPAIRMENT AND FAILED TO HOLD A HEARING ON AN
ATTORNEY HAVING OUTSIDE CONTACT WITH A JUROR.

{¶38} Straughan argues in his second assignment of error that the trial court committed

plain error in the self-defense instruction it gave the jury, in failing to hold a hearing on Straughan’s

hearing impairment, and in failing to hold a hearing concerning an incident involving a juror

talking to a prosecutor.

{¶39} Under Crim.R. 52, “[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” “To establish plain error,

one must show (1) an error occurred, i.e., a deviation from a legal rule, (2) the error is plain, i.e.,

an obvious defect in the proceedings, and (3) the error affected a substantial right, i.e., affected the

outcome of the proceedings.” State v. Berila, 9th Dist. Medina No. 19CA0007-M, 2020-Ohio-

3523, ¶ 43, quoting State v. Grant, 9th Dist. Summit No. 29259, 2019-Ohio-3561, ¶ 5. “Notice of

plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d

91 (1978), paragraph three of the syllabus.

Jury Instruction

{¶40} Straughan argues that the trial court’s self-defense instruction was vague and

insufficient. He asserts that the entirety of the instruction was that “the state must prove beyond a

reasonable doubt that the defendant did not use deadly force in self-defense,” that if “the state

proved beyond a reasonable doubt that self-defense does not apply, you must find the defendant

guilty according to your findings[,]” and that “if you find the state failed to prove beyond a

reasonable doubt that self-defense does not apply, you must find defendant not guilty according to

your findings.” Thus, he claims that the instruction failed to spell out what must be proven beyond

a reasonable doubt. However, Straughan’s recitation of the instruction is incomplete.
 16

{¶41} With respect to self-defense, the trial court instructed the jury as follows:

The Defendant, Jeffrey Allen Straughan, is allowed to use deadly force in self-
defense. If you find that evidence was presented that tends to support the finding
that the Defendant used deadly force in self-defense, the State must prove, beyond
a reasonable doubt, that the Defendant did not use deadly force in self-defense.

“Self-defense” means that:

(1) The Defendant was not at fault in creating the situation giving rise to the actions
that caused physical harm to [the victim]; and

(2) The Defendant had reasonable grounds to believe and an honest belief even if
mistaken, that he was in imminent danger of death or great bodily harm; and

(3) The Defendant did not violate any duty to retreat to avoid the danger; and

(4) The Defendant used reasonable force.

“Deadly force” means any force that carried with it substantial risk that it will
proximat[ely] result in the death of a person.

“Serious physical harm” and “great bodily harm” mean the same thing, and you are
instructed to rely upon your common understanding of the English language for the
definition of “great bodily harm.”

“Substantial risk” means a strong possibility, as contrasted with a remote or
significant possibility, that a certain result may occur or that certain circumstances
exist.

***

Duty to retreat:

The Defendant, Jeffrey Allen Straughan, had a duty to retreat if:

(1) He was at fault in creating the situation giving rise to the actions that caused
physical harm to [the victim]; or

(2) He did not have reasonable grounds to believe and an honest belief that he was
in imminent danger of death or great bodily harm; or

(3) He had a reasonable means of escape from that danger other than by the use of
deadly force.

The Defendant, Jeffrey Allen Straughan, did not have a duty to retreat if:

(1) He retreated from the situation; and
 17

(2) He then had reasonable grounds to believe and an honest belief that he was in
imminent danger of death or great bodily harm; and

(3) The only reasonable means of escape from that danger was by the use of deadly
force, even though he was mistaken as to the existence of that danger.

Test for reasonableness:

Words alone do no justify the use of deadly force or force. Resort to such force is
not justified by abusive language, verbal threats, or other words, no matter how
provocative.

In deciding whether the Defendant, Jeffrey Allen Straughan, had reasonable
grounds to believe and an honest belief that he was in imminent danger of death or
great bodily harm, you must put yourself in the position of the Defendant, with his
characteristics, his knowledge or lack of knowledge, and under the circumstances
and conditions that surrounded him at the time. You must consider the conduct of
[the victim] and decide whether his acts and words caused the Defendant to
reasonably and honestly believe that he was in danger of death or great bodily harm.

If the Defendant used more force than reasonably necessary and if the force used is
greatly disproportionate to the apparent danger, then the defense of self-defense is
not available.

Conclusion:

If you find that the State proved beyond a reasonable doubt all the elements of
Felonious Assault, Aggravated Menacing, [a]nd/[o]r Discharge of a Firearm on or
Near Prohibited Premises, and that the State proved beyond a reasonable doubt that
self-defense does not apply, you must find the Defendant guilty according to your
findings.

If you find that the State failed to prove beyond a reasonable doubt any of the
elements of Felonious Assault, Aggravated Menacing and/or Discharge of a
Firearm on or Near Prohibited Premises, or if you find that the State failed to prove
beyond a reasonable doubt that self-defense does not apply, you must find the
Defendant not guilty according to your findings.

{¶42} While the instruction may not be textbook perfect, in light of Straughan’s argument

on appeal, which asserts the instruction was vague and insufficient, we conclude that Straughan

has not demonstrated that the trial court committed error, plain or otherwise, in instructing the jury

on self-defense. Despite Straughan’s claim to the contrary, the instruction was quite lengthy and

detailed. Thus, Straughan’s argument is overruled.
 18

Straughan’s Hearing Impairment

{¶43} Straughan additionally argues that the trial court committed plain error in failing to

sua sponte conduct an evidentiary hearing on the issue of his hearing impairment.

{¶44} In support of Straughan’s claim, he relies upon State v. Schaim, 65 Ohio St.3d 51

(1992). In Schaim, “[a]fter the conclusion of the trial, the defendant moved for a new trial because

he had been unable to hear significant portions of the testimony at trial. The defendant proffered

the testimony of several experts regarding the extent of his disability.” Id. at 64. On appeal, “[t]he

defendant assert[ed] that the trial court erred in refusing to allow a post-trial evidentiary hearing

as to the extent that the defendant was capable of understanding the testimony at trial.” Id. The

Supreme Court agreed “that the trial court should have granted an evidentiary hearing, given the

proffer of expert testimony that the defendant was unable to understand most of the proceedings

against him.” Id. In so doing, the Supreme Court concluded that, “[t]he Sixth Amendment requires

a trial court to grant an evidentiary hearing when a defendant makes a credible claim that he or she

is seriously hearing-impaired.” Id. However, nothing in Schaim suggests that a trial court has an

absolute obligation to sua sponte order an evidentiary hearing when a defendant presents with any

level of hearing impairment. In fact, in State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, the

Supreme Court concluded that the trial court appropriately addressed the defendant’s hearing

impairment without holding a hearing. See id. at ¶ 60. The Supreme Court noted that the

“Appellant did not request an evidentiary hearing or proffer expert testimony on his hearing

impairment, as was the case in Schaim, and thus waived his right to complain about this issue

now.” Id.

{¶45} In the instant matter, Straughan’s hearing impairment was raised early in the

proceedings. Prior to jury selection, defense counsel informed the trial court that Straughan had
 19

“a little bit of a hearing problem, and he can’t hear what [the prosecutor] is saying.” The trial court

then mentioned turning the microphones up and also stated that the trial court had headphones.

The trial court then asked Straughan if that was better. Straughan responded in the affirmative. It

is unclear from the record what changes the trial court actually made. Shortly thereafter, Straughan

again brought up difficulty hearing, but indicated that it would help if the prosecutor would face

him. Straughan does not point to any additional hearing difficulties until near the end of the trial,

during his cross-examination. During this time, the prosecution played Straughan’s 911 call for

him. The prosecutor’s questions pertained to things that the victim was allegedly saying during

the call. The record is clear that Straughan had difficulty hearing what was being said on the call.

However, in listening to the recording, it is generally difficult to make out what anyone but

Straughan, the caller, is saying. Thus, it is difficult to conclude that Straughan’s inability to hear

at that point was due to his impairment as opposed to the quality of the recording. To the extent

Straughan additionally asserted that he had difficulty hearing himself on the recording, the

recording was again played for him.

{¶46} Overall, we cannot say that Straughan has demonstrated that the trial court

committed plain error in failing to sua sponte conduct an evidentiary hearing concerning his

hearing impairment. In so doing, we reiterate that Straughan’s level of hearing impairment was

not documented in the record nor were the accommodations made by the trial court. In addition,

we are mindful that Straughan has not cited to R.C. 2311.14 (concerning the use of interpreters in

court) or Sup.R. 88 or 89 (addressing the appointment of interpreters and the use of communication

services in ancillary services) in his argument. Straughan has not argued that an American Sign

Language interpreter would have aided his understanding of the proceedings and nothing in the

record suggests that he understood American Sign Language at the time of the proceedings.
 20

{¶47} While we cannot say that the trial court committed plain error in failing to hold an

evidentiary hearing on the issue of Straughan’s hearing impairment given the arguments and record

before us, we do note that in situations where a defendant’s ability to understand or hear the court

proceedings are in question, it is always the better practice for the trial court to err on the side of

caution and hold a hearing or at least inquire as to the extent of the defendant’s inability to hear

and as to what services would be necessary, if any, to alleviate this inability. “The Confrontation

Clause requires that a defendant be given the opportunity to be physically present at trial, that the

defendant be competent to assist in his own defense, and that the defendant understand the

language of the forum. A defendant who cannot hear is analogous to a defendant who cannot

understand English, and a severely hearing-impaired defendant cannot be tried without adopting

reasonable measures to accommodate his or her disability.” (Internal citation omitted.) Schaim,

65 Ohio St.3d at 64. Here, however, there was no evidence in the trial court that meets that criteria.

Juror’s Contact with a Prosecutor

{¶48} Straughan argues that the trial court committed plain error in failing to hold a

hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954), after a juror made a comment

to a prosecutor during a break.

{¶49} Towards the end of the trial, following a break, the following discussion occurred

between the trial court and the attorneys:

[Prosecutor]: At the break, I was on my way down the elevator and one of the
jurors approached me and made a statement to the fact of: Are you – something –
are you going to do direct or you should have done direct.

And then I didn’t respond. I put my head down, and I got on the elevator.

I informed counsel of that statement once I got back, but there was no conversation
between her and myself. And she didn’t indicate anything else other than that kind
of statement.
 21

[Trial Court]: Okay. Is there – so, [defense counsel], you have been made aware
of this?

[Defense Counsel]: I have. And it sounds to me as though it is inadvertent
communication, and I’m not going to object to it. I’m not going object to his
response to it. I’m not going to ask [] that the juror be released or anything like
that.

[Trial Court]: Is the State making a request to have the juror removed?

[Prosecutor]: No, Your Honor. I just wanted the Court to be aware, and I wanted
the record to reflect.

[Trial Court]: Okay. All objections have been waived to Juror Number –

[Prosecutor]: I don’t even know what juror number. I put my head down as soon
as –

[Trial court]: Do you know if it was Juror Number #12, #13, or #14?

[Prosecutor]: It was not an alternate. It was one of the female jurors on the main
panel, but I can’t tell you what number she was.

[Trial Court]: Okay. But no objection – there is no objection from either side as to
her remaining on the jury, correct?

[Prosecutor]: Correct.

[Trial Court]: [Defense counsel]?

[Defense Counsel]: That is correct, Your Honor. Thank you.

{¶50} Here, we conclude that the ability to challenge this issue was waived by defense

counsel. “Waiver is the intentional relinquishment or abandonment of a known right. Unlike

forfeiture - which is the failure to preserve an objection - waiver extinguishes even claims of plain

error under Crim.R. 52(B).” (Internal quotations and citations omitted.) State v. Gibbs, 9th Dist.

Lorain No. 17CA011116, 2019-Ohio-4215, ¶ 11. Straughan’s counsel did not merely fail to object,

he repeatedly affirmatively stated that he had no objection.

{¶51} However, even assuming that Straughan could argue plain error, he would not

succeed. “Ohio law prohibits outside influences, if they are shown to be prejudicial.” State v.
 22

Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 270. “Any communication or contact outside the

courtroom or jury room about the matter at trial between a juror and another person, particularly

if connected with one of the parties to the litigation, and any independent inquiry or experiment

by a juror about the evidence or the law, violate the juror’s duty to limit his considerations to the

evidence, arguments and law presented in open court. Any such activity is juror misconduct, a

constitutional violation whether viewed under the Fourteenth Amendment to the United States

Constitution or Section 10, Article I of the Ohio Constitution.” Id., quoting State v. King, 10 Ohio

App.3d 161, 163 (1st Dist.1983).

{¶52} In Ford, the Ohio Supreme Court rejected the defendant’s assertion that he was

entitled to a Remmer hearing. The Supreme Court stated that, “[i]n Remmer[], the United States

Supreme Court held that a trial court confronted with an allegation of external tampering or contact

with a juror during trial about a matter pending before the jury should determine the circumstances,

the impact [of the circumstances] upon the juror, and whether or not it was prejudicial, in a hearing

with all interested parties permitted to participate.” (Internal quotations omitted.) Ford at ¶ 274.

The Supreme Court of Ohio then held that “not all communications with jurors warrant a hearing

for a determination of potential bias. An allegation of an unauthorized communication with a juror

requires a Remmer hearing only when the alleged contact presents a likelihood of affecting the

verdict.” (Internal quotations and citations omitted.) Ford at ¶ 275.

{¶53} We cannot say that Straughan has demonstrated that the juror’s limited contact with

the prosecutor presented a likelihood of affecting the verdict, particularly given what was said.

See id.

{¶54} Straughan’s second assignment of error is overruled.
 23

ASSIGNMENT OF ERROR III

THE STATE OF OHIO ENGAGED IN MULTIPLE INSTANCES OF
PROSECUTORIAL MISCONDUCT, THAT INFRINGED UPON
DEFENDANT’S CONSTITUTIONAL RIGHTS AND DEPRIVED
DEFENDANT OF A FAIR TRIAL.

{¶55} Straughan argues in his third assignment of error that the State engaged in multiple

instances of prosecutorial misconduct that deprived him of a fair trial. Specifically, Straughan

points to instances of what he characterizes as the prosecutor making comments contrary to Ohio

law concerning an individual’s right to carry a firearm, the prosecutor displaying a screenshot of

a Facebook page that was ultimately deemed inadmissible, and the prosecutor wearing a plastic

toy gun on his hip and pointing it at Straughan.

{¶56} “In deciding whether a prosecutor’s conduct rises to the level of prosecutorial

misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the

defendant’s substantial rights were actually prejudiced.” State v. Berila, 9th Dist. Medina No.

19CA0007-M, 2020-Ohio-3523, ¶ 41, quoting State v. Moreland, 9th Dist. Summit No. 27910,

2016-Ohio-7588, ¶ 22. “[A] judgment may only be reversed for prosecutorial misconduct when

the improper conduct deprives the defendant of a fair trial. The defendant must show that, but for

the prosecutor’s misconduct, the trier of fact would not have convicted him. The touchstone of

the analysis is the fairness of the trial, not the culpability of the prosecutor.” (Internal quotations

and citations omitted.) Berila at ¶ 41.

{¶57} We note that with respect to most of the comments that Straughan points to, as well

as the act of the prosecutor wearing a toy gun and pointing it at Straughan, Straughan’s counsel

did not object to these occurrences. Because Straughan did not object to these instances in the trial

court, he is limited to arguing plain error on appeal. See Berila at ¶ 43. However, as Straughan
 24

has not developed a plain error argument, we decline to further consider these comments and

actions. State v. Tyler, 9th Dist. Summit No. 29225, 2019-Ohio-4661, ¶ 64.

{¶58} Straughan’s counsel did object when the prosecutor characterized Straughan’s act

of carrying a weapon on his hip as brandishing it. In so doing, Straughan’s counsel noted that that

was a legal conclusion. To the extent that the prosecutor misstated the law, the jury was presented

with the definition of brandish in the jury instructions. Thus, we fail to see how any misconduct

by the prosecutor affected Straughan’s substantial rights given the circumstances before us. Berila

at ¶ 41.

{¶59} With respect to the Facebook post, the record reveals that the prosecutor sought to

introduce into evidence a Facebook post Straughan allegedly made about a time when someone

stole from him. Defense counsel objected to it arguing that it was not relevant and was not

provided to him in discovery. While the discussion regarding the post was ongoing, the post was

apparently being displayed on some device. Straughan expressed concern that the jury could see

it but the prosecutor indicated that the jury could not see it because it was too small. After

discussion with the attorneys, the trial court sustained the objection. Straughan argues that the

post was visible to the jury during the side bar before the objection was sustained. However,

Straughan’s argument is speculative. It is not clear from the record that the jury could see the post

and ultimately it was not admitted into evidence. Thus, Straughan cannot demonstrate that he was

prejudiced by any misconduct that may have occurred.

{¶60} Straughan’s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

MR. STRAUGHAN WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED
TO OBJECT TO A VAGUE AND INSUFFICIENT JURY INSTRUCTION,
FAILED TO OBJECT TO THE PROSECUTION’S OUTSIDE CONTACT WITH
 25

A JUROR, AND FAILED TO OBJECT TO THE LACK OF A HEARING
REGARDING MR. STRAUGHAN’S HEARING IMPAIRMENT.

{¶61} Straughan argues in his fourth assignment of error that he was denied the effective

assistance of counsel. Specifically, he argues that his counsel was ineffective in failing to object

to the self-defense jury instruction, in failing to object to the juror’s contact with the prosecutor,

and in failing to object to the lack of a hearing on the issue of Straughan’s hearing impairment.

{¶62} In order to prevail on a claim of ineffective assistance of counsel, Straughan must

show that “counsel’s performance fell below an objective standard of reasonableness and that

prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.” Strickland

at 686. Thus, a two-prong test is necessary to examine such claims. First, Straughan must show

that counsel’s performance was objectively deficient by producing evidence that counsel acted

unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,

Straughan must demonstrate that but for counsel’s errors, there is a reasonable probability that the

results of the trial would have been different. Keith at 534. This Court need not address both

prongs of the Strickland test if the appellant fails to satisfy either prong. State v. Ray, 9th Dist.

Summit No. 22459, 2005-Ohio-4941, ¶ 10.

{¶63} With respect to the self-defense instruction, based upon the reasoning above, we

cannot say that Straughan’s counsel was deficient in failing to object to the jury instruction; we

determined that the instruction did not amount to reversible or plain error.

{¶64} As to trial counsel’s failure to request a hearing with respect to the juror’s contact

with the prosecutor, we cannot say that Straughan has demonstrated that his attorney was deficient.
 26

We note that “[a]n allegation of an unauthorized communication with a juror requires a Remmer

hearing only when the alleged contact presents a likelihood of affecting the verdict.” (Internal

quotations and citations omitted.) Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, at ¶ 275. We

determined above that Straughan did not demonstrate on appeal that the contact presented a

likelihood of affecting the verdict. Thus, we cannot say that, based upon the record before us,

Straughan would have been entitled to a hearing even if counsel had requested one.

{¶65} Straughan additionally argues that his trial counsel was ineffective in failing to

request a hearing on Straughan’s hearing impairment. From the record, the degree of Straughan’s

impairment is not clearly evident. It is clear that the trial court offered accommodations to address

Straughan’s impairment. Throughout the vast majority of the trial, neither Straughan nor his

counsel expressed that Straughan had any problems in comprehending the proceedings. While

Straughan did on occasion have difficulty hearing certain things, we cannot say that the record

demonstrates that he was “seriously hearing-impaired” such that a hearing was required. See

Schaim, 65 Ohio St.3d at 64. Absent demonstrating that a hearing was required, Straughan’s

counsel could not be ineffective in failing to request one. Straughan has not met his burden of

demonstrating that his trial counsel was ineffective.

{¶66} Straughan’s fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE
CUMULATIVE EFFECT OF ALL ERROR ARGUE[D] HEREIN.

{¶67} Straughan argues in his fifth assignment of error that he was denied his right to a

fair trial due to cumulative error.

{¶68} “In State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus, the

Ohio Supreme Court recognized the doctrine of cumulative error. It held that although individual
 27

errors during trial may not rise to the level of reversible error, the combined prejudice resulting

from those errors may rise to the level of reversible error.” In re F.B., 9th Dist. Summit Nos.

28960, 28985, 2019-Ohio-1738, ¶ 47. “Because [Straughan] failed to demonstrate any prejudice

resulting from the errors he has alleged, he cannot demonstrate cumulative error.” Id.

{¶69} Straughan’s fifth assignment of error is overruled.

III.

{¶70} Straughan’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR
FOR THE COURT
 28

HENSAL, J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

MICHAEL B. WASHINGTON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.