State v. Johnson

[Cite as State v. Johnson, 2022-Ohio-2577.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110673
v. :

CURTIS L. JOHNSON, JR. :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 28, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-647441-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Kristin Karkutt, Assistant Prosecuting Attorney,
for appellee.

Michael P. Maloney, for appellant.
SEAN C. GALLAGHER, A.J.:

Curtis Johnson appeals multiple convictions arising from a shooting

incident outside a local establishment in which Johnson was found guilty of

murdering Catera Fowler. For the following reasons, we affirm.1

Johnson and his codefendant Eric White attended a live musical

performance at Legacy Nightclub, located on the corner of E. 103rd Street and Union

Avenue in Cleveland, Ohio. Before the performance could begin, Johnson and

White engaged in a physical fight. Fowler was with White’s group and participated

in the fisticuffs. The club cleared the building. Johnson exited the club, walked back

to his car, and removed his sweatshirt in anticipation of the continued belligerence.

Once outside, Johnson waited for White to exit the building.

As White exited with Fowler nearby, Johnson approached White in a

manner suggesting he intended to continue fighting. White reached for and

brandished a firearm with Fowler attempting to keep him from doing so. At that

time, another unidentified individual fired shots into the air from the corner of the

street. White and Fowler began running south down E. 103rd Street, past Johnson’s

car.

At the same time, Johnson took refuge behind his car, which was

parked on E. 103rd Street, and retrieved his own firearm. Video depicts Johnson

ducking behind the car, but it is unclear whether shots were actually fired in his

1 After lengthy consideration of the underlying issues, this matter was assigned to
this writer on June 13, 2022.
direction. No one claims that any bullet defects existed in his vehicle. Johnson

claims that White was chasing and shooting at him during this time.

Regardless, as White and Fowler ran past Johnson, heading south

away from Johnson, Johnson began firing several shots at the fleeing couple. It was

only after White and Fowler continued south that Johnson first began to fire in their

direction. Although White and Fowler were no longer within the vantage point of

the video camera, the state relied on the circumstantial evidence provided by the

mechanism of Fowler’s death. The fatal shot struck Fowler in the lower back, with

evidence demonstrating that the shot came from Johnson’s firearm. The bullet

travelled through Fowler’s body, exiting Fowler’s upper chest — meaning the bullet

travelled at an upward trajectory, having been fired from a lower vantage point.

There were other unidentified shooters on the street, but according to

the state’s evidence, those other shooters fired their weapons indiscriminately into

the air.

White and Johnson were separately charged and proceeded to trial

for the murder of Fowler. Before Johnson’s trial, White was acquitted. Johnson’s

jury trial resulted in convictions for murder in violation of R.C. 2903.02(A), along

with a three-year firearm specification; felonious assault in violation of R.C.

2903.11(A)(2), a qualifying felony offense, along with a three-year firearm

specification; discharge of a firearm on or near prohibited premises in violation of

R.C. 2923.162(A)(3), along with a three-year firearm specification; and having

weapons while under disability in violation of R.C. 2923.13(A)(2). The trial court
imposed the underlying terms to be served concurrently but imposed two of the

firearm specifications to be served consecutive to each other and the underlying

sentences, for a stated prison term of 21 years to life imprisonment.2

In this case, Johnson claims that (1) the trial court erred by refusing

to give a self-defense jury instruction, and (2) his convictions, based on the murder

of Catera Fowler, who by all accounts attempted to prevent the fight between

Johnson and White from escalating outside the establishment and was shot while

she and White were running away from Johnson, are based on insufficient evidence.

In the first assignment of error, Johnson claims that the trial court

“mistakenly” shifted the burden of proving self-defense to him because in denying

his motion to instruct the jury on the elements of self-defense, the trial court stated

2 Although the offenses were committed after the effective date of R.C. 2929.144 and
2929.14(A)(1)(a) and (A)(2)(a), Johnson was sentenced under what appears to be the
definite sentencing structure predating the Reagan Tokes Law. Further, although the trial
court imposed the three-year sentences on the firearm specifications for the felonious
assault and murder to be served consecutive to each other and the underlying sentences, it
also confusingly noted that the sentences on the firearm specifications attendant to the
felonious assault and murder charges are also concurrent. It appears the journal entry is
incorrect, since at the sentencing hearing the trial court indicated that it would not impose
the sentence on the firearm specification attendant to the wrongful discharge of a weapon
count. The failure to impose a sentence upon a firearm specification does not deprive this
court of a final, appealable order. State ex rel. Rodriguez v. Barker, 158 Ohio St.3d 39,
2019-Ohio-4155, 139 N.E.3d 885, ¶ 10, citing State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-
765, 945 N.E.2d 498, and State ex rel. Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109,
961 N.E.2d 192. Since neither party has raised any issues with the sentencing, we simply
note the incongruity. App.R. 16(A)(7); State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-
2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part)
(“‘[A]ppellate courts do not sit as self-directed boards of legal inquiry and research, but
[preside] essentially as arbiters of legal questions presented and argued by the parties
before them.’”).
that the defendant must introduce “sufficient evidence” of self-defense in order to

warrant the giving of the instruction. Johnson claims the trial court’s use of that

language demonstrated that the court placed the burden of proof, rather than the

burden of production, on Johnson. The trial court, however, relied on the language

this court instructed it to use.

In order

[t]o determine whether the defendant satisfied his burden of
production, the court must consider whether the defendant presented
sufficient evidence that tends to support that he used force in self-
defense. “Placed in context, the phrase ‘tends to support’ does not
connote that a new standard should apply to the determination of
whether a defendant is entitled to a self-defense instruction. In order
for evidence that ‘tends’ to support an affirmative defense, it must be
sufficient to raise a question in the mind of a reasonable juror, as is
already required under the existing standard set forth in [State v.]
Melchior[, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978)].” State v. Tolle,
4th Dist. Adams No. 19CA1095, 2020-Ohio-935, ¶ 24.

(Emphasis added.) State v. Davidson-Dixon, 2021-Ohio-1485, 170 N.E.3d 557, ¶ 19

(8th Dist.). The jury instruction is warranted only if there is conflicting evidence on

the elements of self-defense. Id. at ¶ 20, citing State v. Stephens, 2016-Ohio-384,

59 N.E.3d 612, ¶ 19, and State v. Hill, 8th Dist. Cuyahoga No. 60736, 1992 Ohio App.

LEXIS 3764, 3 (July 16, 1992). “However, ‘if the evidence generates only a mere

speculation or possible doubt, the evidence is insufficient to raise the affirmative

defense, and submission of the issue to the jury will be unwarranted.’” (Emphasis

added.) Id., quoting Melchior at 20. The trial court used the correct analysis in

determining whether Johnson presented sufficient evidence of every element of

self-defense, and Johnson concedes that Davidson-Dixon controls. App.R. 16(A)(7);
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19, quoting

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78

(O’Donnell, J., concurring in part and dissenting in part).

Johnson’s claim is, therefore, misplaced. The trial court applied the

appropriate analysis to determine whether Johnson had demonstrated the necessity

of charging the jury with the law on self-defense. The trial court recited the correct

analysis to determine whether Johnson presented sufficient evidence to warrant the

giving of the self-defense jury instruction, and that analysis did not shift the burden

of proving self-defense at trial to Johnson.

Although Johnson claims that the trial court erred because the

undisputed evidence sufficiently demonstrates that he acted in self-defense, and

thus according to Johnson he has presented sufficient evidence to at least warrant

the giving of the jury instruction, he does so solely based on the fact that White

punched him inside the club and brandished and possibly discharged the firearm at

the beginning of the altercation outside. That alone is insufficient to demonstrate

sufficient evidence to warrant the jury to consider the affirmative defense at trial.

The undisputed evidence demonstrates that Johnson waited for

White to exit the building and approached White with the intent to rekindle the

earlier fight until White brandished a firearm — the evidence the trial court and

Johnson discussed as being relevant to the jury charge question. Johnson’s conduct

cannot support a self-defense claim. State v. Smith, 2021-Ohio-1185, 169 N.E.3d

1014, ¶ 23 (8th Dist.) (“voluntarily participating in or initiating a confrontation,
especially for purposes other than protection, cannot justify or excuse the killing of

another on the basis of self-defense”); State v. Gaston, 8th Dist. Cuyahoga No.

98904, 2013-Ohio-2331 (even if the defendant is not the immediate aggressor, that

person cannot provoke an assault or voluntarily enter an encounter and then claim

a right of self-defense after the victim predictably attacks); State v. Sekic, 8th Dist.

Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 14 (defendant cannot confront victim to

continue an earlier altercation and then claim self-defense when the victim renews

the aggression).

Further, even if White was the initial aggressor in the altercation

outside the club and even if we accept as undisputed that White chased Johnson

south on 103rd Street until Johnson reached his car, Johnson first began firing at

White and Fowler as they continued running south along 103rd Street away from

Johnson, after any threat from White had subsided. Self-defense is not absolute.

There are “‘limitations to the application of self-defense,’ and the

defense ‘is not available unless’ there is evidence demonstrating ‘that the force used

to repel the danger was not more than the situation reasonably demanded.’” State

v. Zafar, 10th Dist. Franklin No. 19AP-255, 2020-Ohio-3341, ¶ 52-53, quoting State

v. Johnson, 6th Dist. Lucas No. L-08-1325, 2009-Ohio-3500, ¶ 12. It has therefore

been concluded that “‘the force used to defend must be objectively necessary and

reasonable under the facts and circumstances of the case and in view of the danger

apprehended.’” Id., quoting Johnson and Martin v. Cent. Ohio Transit Auth., 70

Ohio App.3d 83, 93, 590 N.E.2d 411 (10th Dist.1990). Self-defense is not justified
when an offender uses “a greater degree of force than is necessary under all the

circumstances.” Id., citing Johnson and State v. McLeod, 82 Ohio App. 155, 157, 80

N.E.2d 699 (9th Dist.1948).

In Zafar, for example, the defendant was a clerk at a convenience

store who entered what started as a verbal altercation with the victim over a 50-cent

surcharge for using a debit card. Id. at ¶ 19. The defendant testified that the victim

threatened to kill him, and when another store clerk approached the victim, the

victim began punching the other clerk. Id. at ¶ 21. At that point, the defendant began

hitting the victim with an aluminum baseball bat, prevented him from leaving the

store, and continued attacking despite the fact that the victim was subdued on the

floor. Id. at ¶ 6-9. Even if the initial altercation placed the defendant in fear of his

life based on the victim’s threats, it was concluded that attacking the victim with the

deadly weapon while he offered little to no resistance exceeded the force necessary

to removing the danger. Id. at ¶ 53.

Based on the limited arguments presented for review, we cannot

conclude that the trial court erred in denying Johnson’s request for a self-defense

jury instruction. In this case, the undisputed evidence demonstrated that if Johnson

was the person who fired the fatal shot killing Fowler, which we accept as true in

light of the jury verdict, he did so at a time when both White and Fowler were

running away from Johnson. State v. Roland, 10th Dist. Franklin No. 16AP-484,

2017-Ohio-557, ¶ 23 (“appellant’s own version of the incident refuted any legitimate

claim that he acted in self-defense” because the victim was running away when the
defendant fired his weapon and the victim was shot in the back, necessarily refuting

any claim to self-defense); State v. Henderson, 1st Dist. Hamilton No. C-130541,

2014-Ohio-3829, ¶ 31 (self-defense claims cannot arise if the defendant shot the

victim after the victim started running away).

As a matter of law, Johnson cannot claim he was acting in self-defense

when firing at people running away from him, even if one of those persons was

considered the initial aggressor. Zafar. At that point, there has been no argument

that Johnson’s life was in danger to warrant any lethal response.3

Finally, we must address Johnson’s second and final assignment of

error regarding the sufficiency of the evidence, which could result in an acquittal.

State v. Gideon, 165 Ohio St.3d 142, 2020-Ohio-5635, 176 N.E.3d 706, ¶ 29

(insufficient evidence reversals require an acquittal on that particular count, and

therefore, sustaining another assigned error that results in a new trial does not

render the sufficiency issue moot). In this assignment of error, Johnson claims that

3 Although Johnson briefly mentions the evidence of White’s DNA and the DNA of
two other unidentified persons being linked to shell casings from an unidentified firearm
south of Johnson’s position, that discussion is limited to a single sentence in the context
of Johnson’s argument that there is insufficient evidence that he fired the fatal shot for
the purposes of the sufficiency-of-the-evidence argument. It is not this court’s
responsibility to supplement Johnson’s argument on his behalf. App.R. 16(A)(7);
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19, quoting State
v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J.,
concurring in part and dissenting in part).
his conviction for murder is not based on sufficient evidence because the state

established that he fired the fatal shot through circumstantial evidence.4

A claim of insufficient evidence 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). In reviewing a

sufficiency challenge, “[t]he 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.” State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

Credibility of the witnesses or evidence is immaterial under the sufficiency analysis;

the appellate court must defer to the credibility determinations of the trier of fact

and only reviews issues of law.

Under Ohio law, a defendant may be convicted solely on the basis of

circumstantial evidence. State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236

(1988), citing State v. Kulig, 37 Ohio St.2d 157, 309 N.E.2d 897 (1974). “‘[P]roof of

guilt may be made by circumstantial evidence as well as by real evidence and direct

or testimonial evidence, or any combination of these three classes of evidence. All

three classes have equal probative value, and circumstantial evidence has no less

4 Although not relevant to this case in which self-defense was not an affirmative
defense considered at the trial, in State v. Messenger, 2021-Ohio-2044, 174 N.E.3d 425
(10th Dist.), the Tenth District concluded that “sufficiency of the evidence is not the
proper framework to review whether the state proved the absence of self-defense.” Id. at
¶ 44-45. The Ohio Supreme Court accepted Messenger for review and has completed oral
arguments on the matter. See Supreme Court of Ohio Case No. 2021-0944. The outcome
of Messenger would not impact this case.
value than the others.” Nicely at 151, quoting State v. Griffin, 13 Ohio App.3d 376,

377, 469 N.E.2d 1329 (1st Dist.1979), and 1A Wigmore, Evidence 944, Section 24 et

seq. (Tillers Rev.1983). “‘Circumstantial evidence is not less probative than direct

evidence, and, in some instances, is even more reliable.’” Id., quoting United States

v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974). That other evidence could have been

collected or analyzed is immaterial to the analysis.

As Johnson expressly concedes, the circumstantial evidence

presented by the state “create[s] the inference that Ms. Fowler was between the two

shooters * * *.” Appellant Brief at p. 13. According to Johnson, no other direct

evidence demonstrated that the fatal shot was fired by him because it is equally

plausible that the shot could have been fired by another person. On this point,

Johnson solely relies on State v. Jacobozzi, 6 Ohio St.3d 59, 62, 451 N.E.2d 744

(1983), in which the Ohio Supreme Court concluded that when there are multiple

inferences, which could be drawn from circumstantial evidence, any doubt must be

resolved in favor of the accused. Id. In reaching that conclusion, Jacobozzi

expressly relied on State v. Sorgee, 54 Ohio St.2d 464, 464, 377 N.E.2d 782 (1978),

which was overruled through State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492

(1991). In Jenks, the Ohio Supreme Court concluded, contrary to the sufficiency

standard as espoused in Sorgee:

the relevant inquiry does not involve how the appellate court might
interpret the evidence. Rather, the inquiry is, after viewing the
evidence in the light most favorable to the prosecution, whether any
 reasonable trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.

Id. at 273.

Because Johnson’s entire argument rests upon outdated case law, we

decline to address his arguments any further. App.R. 16(A)(7); Quarterman, 140

Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19, quoting State v. Bodyke,

126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J.,

concurring in part and dissenting in part). Johnson’s entire sufficiency argument is

based on the claim that circumstantial evidence alone cannot sustain a conviction.

The Ohio Supreme Court disagreed, and so must we. Jenks. The second assignment

of error is overruled.

Johnson’s convictions are 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.

____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

FRANK DANIEL CELEBREZZE, III, J., CONCURS;
ANITA LASTER MAYS, J., DISSENTS (WITH SEPARATE OPINION)

ANITA LASTER MAY, J., DISSENTING:

I respectfully dissent.

The sole “eyewitness” from the scene did not see Fowler get shot from

her hiding place in a driveway south of the club and Johnson’s parked vehicle. There

was no evidence of who shot Fowler. As the trial court commented prior to jury

selection, “[i]n fact, after the first trial [of White], you know — these are serious

charges facing Mr. Johnson.” (Tr. 13.) “[H]owever, the film demonstrates that a

strong self-defense case can be made, and I am still not clear after sitting through

the first trial whose gun fired the bullet who killed [the victim].” (Tr. 13-14.) White’s

trial was held before the same trial court and concluded the morning that Johnson’s

trial began.

The video served as the key piece of evidence since none of the

photographic evidence of the physical evidence marker locations could be produced

due to a recording chip error. Except for a list of marker locations that was read into

the record while the witnesses “indicated” on the white sheet Google map printout,
there was no attempt to recreate the marker locations on the Google map. The list

was not entered into evidence as the jury learned upon request.

The video excerpts repeatedly played for the jury depict Johnson

labeled “shooter” over defense objections and at some points with a freeze frame,

White labeled “POI” or person of interest, and Johnson’s two passengers labeled as

passengers one and two. It is undisputed that White initiated the fight with Johnson

and continued to pursue Johnson though others immediately stepped in between

them after White’s first punch.

Security gathered to speak with White and others. Johnson talked

with a few people in the area and subsequently walked to his car and tossed his

hoodie into the front seat. Johnson briefly walked out of view behind his car in the

direction of two males who had just crossed the street toward the area behind

Johnson’s car and were also out of view.

Moments later, Johnson walked back toward the club and arrived at

the corner as passenger two and other customers exited the club door located

approximately ten feet from the corner. Passenger two and Johnson were at the

corner when White exited the door followed by Fowler. Johnson and White looked

toward each other, Johnson took a short step forward as he hitched up his pants and

mouthed a few words toward White who quickly descended the steps as he pulled a

gun from his right pocket. Johnson ran directly to his vehicle where passenger two

jumped into the driver’s seat. Johnson and passenger one stood on the driver’s side
of the vehicle bending over slightly and peering over the roof toward the area just

south of Johnson’s car.

Suddenly, they ducked as people scattered which indicated shots were

being fired. At that point, Johnson was handed a gun from the vehicle and returned

fire in the southerly direction. Bullet casings with White’s DNA were discovered in

the southerly direction that Johnson was shooting toward which supports an

exchange of gunfire.

Testimonial and physical evidence also supports shots were fired by

four weapons. One shot was fired into the air by an unknown individual at the

corner, and at least four more were fired by an individual identified by the state’s

eyewitness as wearing a remembrance shirt and dreadlocks. The eyewitness saw

that a male fired a shot into the air and heard several more shots that she could not

see from her hiding place at the rear of the driveway behind the club and south of

Johnson’s vehicle. The male was standing outside of the video frame at least several

feet behind the area of Johnson’s car according to the eyewitness. The eyewitness

also testified that White had run past her heading south on E. 103rd Street as she

ran to the driveway. At that point, the eyewitness did not know where Fowler was

until Fowler later stumbled into the driveway asking for help.

Under the 2019 amendment to R.C. 2901.05, Johnson did not bear

“the burden of establishing the elements of self-defense by a preponderance of the

evidence.” Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685,

¶ 44, citing R.C. 2901.05(B)(1). Johnson had the “initial burden of producing
evidence ‘that tends to support’” that he used the force in self-defense. State v.

Davidson-Dixon, 2021-Ohio-1485, 170 N.E.3d 557, ¶ 18 (8th Dist.).

The inquiry under the phrase “tends to support” for purposes of

R.C. 2901.05, is whether the evidence is “‘sufficient to raise a question in the mind

of a reasonable juror.’” Id. at ¶ 19, quoting State v. Tolle, 4th Dist. Adams

No. 19CA1095, 2020-Ohio-935, ¶ 24, citing State v. Melchior, 56 Ohio St.2d 15, 381

N.E.2d 195 (1978). Also, “[i]n deciding whether to give a self-defense instruction,

the trial court must view the evidence in favor of the defendant, and the question of

credibility is not to be considered.” Id. ¶ 20.

“The burden then shifts to the state under its burden of persuasion to

prove beyond a reasonable doubt that the defendant did not use the force in self-

defense.” Id. at ¶ 18, citing State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 55

(11th Dist.), citing State v. Carney, 10th Dist. Franklin No. 19AP-402, 2020-Ohio-

2691, ¶ 31. “To satisfy this burden, the state must disprove at least one of the

elements of self-defense.” Id., citing id.

Based on the record, I disagree that Johnson was at fault for creating

the situation that gave rise to the use of force as determined by the trial court.

Coupled with White’s aggression in the club, assuming that Johnson taunted White

from the corner, as the trial court stated, “[M]ere verbal harassment does not

constitute provocation entitling a defendant to defend himself.” State v. Davis, 7th

Dist. Jefferson No. 01 JE 18, 2002-Ohio-1566, ¶ 12, citing Bucyrus v. Fawley, 50

Ohio App.3d 25, 552 N.E.2d 676 (1988); State v. Badurik, 7th Dist. Mahoning
No. 98 C.A. 106, 1999 Ohio App. LEXIS 6198 (Dec. 17, 1999) (hitting someone in

response to a threat is not an act of self-defense that excuses the person from the

assault charge).

I would find that the majority’s cited cases are distinguishable. In

Gaston, 8th Dist. Cuyahoga No. 98904, 2013-Ohio-2331, the victim initiated the

situation by verbal taunting. Gaston was walking away when he stopped and

challenged the victim to “‘come say that to my face,’ and then waited for the victim

to approach.” Davidson-Dixon, quoting Gaston at ¶ 9. Witnesses indicated that

Gaston assaulted the victim upon the victim’s approach. In this case, White chased

Johnson with a gun. Johnson retreated, ran directly to his car and subsequently

responded to gun fire. In Sekic, 8th Dist. Cuyahoga No. 95633, 2011-Ohio-3978, the

defendant called family for assistance and followed the victim to the victim’s home

where the altercation occurred. Id. at ¶ 5. Again, Johnson ran to his car.

We further observe that “[w]hether the state disproves any of the

elements of self-defense is left to the trier of fact to decide.” Davidson-Dixon, 2021-

Ohio-1485, 170 N.E.3d 557, ¶ 36 (8th Dist.), citing State v. Morton, 147 Ohio App.3d

43, 2002-Ohio-813, 768 N.E.2d 730, ¶ 52 (8th Dist.). In the instant case, as in

Davidson-Dixon, “the trier of fact [for the challenged convictions] was the jury, not

the trial judge.” Id. “The trial court improperly assumed the jury’s role by making

its own evaluation of the weight of the evidence and the credibility of the witnesses

in deciding not to give the self-defense instruction.” Id.
 I would find that the trial court’s refusal to provide a self-defense

instruction constituted an abuse of discretion.5

5 The record indicates that a Crim.R. 16(B) notice was filed that said the motions
in limine regarding retroactivity of S.B. 175 was served on defense counsel via portal on
May 3, 2021. The motion is not attached, is not listed on the docket, and there is no
judgment entry on the issue other than the general comments made on the record prior
to voir dire.

State: [S]imilarly as in the trial against the codefendant [White] prior to
trial, the State of Ohio filed a motion in limine with respect to SB
175 regarding the retroactivity in the change in self-defense law. So
it is clear, you can put your ruling with respect to that on the record
for this defendant in this matter.

Court: We have had an opportunity to investigate the retroactivity, and it
is clear with the legislation was not meant to be retroactive, so there
were two amendments. One was effective April 6th that will not
apply to Mr. Johnson.

(Tr. 10.)