State v. Jackson

[Cite as State v. Jackson, 2022-Ohio-3483.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-018

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

WILLIAM J. JACKSON,
Trial Court No. 2020 CR 000558
Defendant-Appellant.

OPINION

Decided: September 30, 2022
Judgment: Reversed and remanded

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, William J. Jackson, appeals the January 26, 2021 judgment of

the Lake County Court of Common Pleas sentencing him to an indefinite prison term.

Appellee, the State of Ohio, has also filed an appeal, currently pending before this court:

Case No. 2021-L-016. For the reasons discussed herein, the judgment is reversed and

remanded.

{¶2} This case stems from a shooting that occurred in the parking lot of Eastview

Meadows Apartments on the morning of April 26, 2020, over a drug-deal dispute.
Purportedly, Mr. Jackson had paid $2,000 to Vincent Anderson (A.K.A. “Ace”) for some

Percocet pills, which were never delivered, and the two exchanged threats over social

media. Mr. Anderson, who lived in Detroit, Michigan, asked his friend, Phillip Herbruck,

to drive him to Lake County the night before the shooting. The following morning, Mr.

Herbruck drove Mr. Anderson to the Eastview Meadows Apartments, where Mr.

Jackson’s daughter and her mother, Trina Jenkins, lived.

{¶3} On the same morning, Mr. Jackson asked his cousin, Kraig Davis, to give

him a ride to the Eastview Meadows Apartments. When Mr. Jackson spotted Mr.

Anderson in the parking lot of the Eastview Meadows Apartments, he pulled out a gun

and began shooting in the direction of Mr. Anderson from the vehicle. Mr. Anderson fled

the parking lot in the rental car driven by Mr. Herbruck, which was later recovered on the

side of the road with Mr. Herbruck; Mr. Anderson had left the area and was not seen

again. Mr. Jackson left in a vehicle driven by Mr. Davis.

{¶4} Police later recovered nine shell casings. Several bullet holes were found

in Mr. Herbruck’s rental vehicle, the left rear tire was flat, and two spent bullets were

recovered from the trunk. Two additional bullets struck an apartment building, damaging

the window of another resident. Mr. Jackson admits to the shooting but maintains that it

was done in self-defense, as he believed Mr. Anderson was a threat to him and his family.

Fortunately, no one was injured or killed during the shooting.

{¶5} Mr. Jackson was indicted on seven counts: Counts 1 and 2, Attempted

Murder, felonies of the first degree, in violation of R.C. 2923.02; Counts 3 and 4, Felonious

Assault, felonies of the second degree, in violation of R.C. 2903.11(A)(2); Counts 5 and

6, Improperly Discharging a Firearm at or Into a Habitation or School Safety Zone, felonies

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of the second degree, in violation of R.C. 2923.161(A)(1); and Count 7, Improperly

Handling Firearms in a Motor Vehicle, a felony of the fourth degree, in violation of R.C.

2923.16(A). Counts 1 through 6 included firearm specifications pursuant to R.C.

2941.145 and discharge specifications pursuant to R.C. 2941.146.

{¶6} The case proceeded to trial; ultimately, the jury acquitted Mr. Jackson of

Counts 2 and 3, the attempted murder and felonious assault of Mr. Herbruck, but found

him guilty on the remaining five counts and the corresponding specifications. At the

subsequent sentencing hearing, the court found that the felonious assault charge in Count

4 merged with the attempted murder charge in Count 1, and the state elected to proceed

with sentencing on Count 1.

{¶7} The court sentenced Mr. Jackson to an indefinite prison term with a

minimum term of three years and a maximum term of four and one-half years on Count

1; three years on each of Counts 5 and 6; and 18 months on Count 7, all to be served

concurrently. Mr. Jackson was also sentenced to an additional term of three years and

five years as mandatory prison terms for the specifications in Count 1, to be served

consecutively to each other, for a total of eight years in prison, and to be served prior and

consecutive to the underlying offenses. In all, Mr. Jackson faced a minimum of 11 years

and a maximum of 12.5 years in prison.

{¶8} Mr. Jackson now appeals, assigning four errors for our review. The first

states:

{¶9} The trial court erred when it did not allow Jackson to introduce statements

that Anderson threatened to kill him.

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 {¶10} Under this assignment of error, Mr. Jackson argues that the trial court erred

by preventing him from testifying directly as to the threats Mr. Anderson made about and

to him. Specifically, Mr. Jackson challenges two statements: first, a text message from

Mr. Anderson to Mr. Herbruck that he needed to go “whack a n * * *.” Mr. Jackson also

sought to testify as to the specific statements Mr. Anderson made on live social media

streams to Mr. Jackson on the morning of the shooting. The trial court found all these

statements to be inadmissible hearsay.

{¶11} An appellate court reviews a trial court’s hearsay rulings de novo when the

question is purely legal, such as whether testimony constitutes inadmissible hearsay.

State v. Kratochvill, 11th Dist. Lake No. 2019-L-088, 2020-Ohio-7000, ¶27. “‘Hearsay’ is

a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Hearsay

is generally inadmissible. Evid.R. 802. However, there are various exceptions allowing

its admittance enumerated in Evid.R. 803 and 804.

{¶12} Mr. Jackson argues these statements were submitted to prove his mindset

the morning of the shooting, while the state argues Mr. Jackson attempted to enter those

statements into evidence to prove “the truth of the matter asserted,” (i.e., that Mr.

Anderson intended to kill him), and were therefore inadmissible evidence.

{¶13} It is undisputed that the statements Mr. Jackson attempted to enter into

evidence were relevant to Mr. Jackson’s claim of self-defense. “The elements of a valid

claim of self-defense are as follows: (1) the defendant was not at fault in creating the

situation giving rise to the affray; (2) the defendant had 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

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escape from such danger was in the use of such force; and (3) the defendant did not

violate any duty to retreat or avoid the danger.” State v. Petway, 11th Dist. Lake No.

2019-L-124, 2020-Ohio-3848, ¶41 citing State v. Barnes, 94 Ohio St.3d 21, 24 (2002).

{¶14} We first address the court’s exclusion of the text message. While we agree

the text message was hearsay, we find it was improperly excluded as it falls under the

exception listed in Evid.R. 803(3), which permits statements of the declarant’s then-

existing state of mind. Moreover, though Mr. Jackson had no personal knowledge of the

text message at the time of the shooting, it did corroborate Mr. Jackson’s testimony

regarding Mr. Anderson’s threats to his life. His lack of knowledge of the text at the time

does not render the evidence irrelevant because it goes to an interpretation of the victim’s

prior threat and is germane in that it serves to confirm the magnitude and sincerity of the

threat. This is particularly helpful to the jury as the threats the two exchanged that

morning were done over a social media live stream in real time, a medium that involves

a contemporaneous, unrecorded communication between the parties which would likely

be irretrievable and thus incapable of admission for the jury to directly review. The

admission of the text message would have assisted the jury in understanding what was

actually occurring in Mr. Anderson’s mind and underscored the gravity of Mr. Jackson’s

beliefs. Further, its admission would confirm and lend credibility to Mr. Jackson’s

subjective belief. It is, therefore, directly relevant to his claim of self-defense and

admissible; the trial court erred in excluding the text message.

{¶15} Mr. Jackson also sought to testify as to what Mr. Anderson told him over

social media that morning. As one of the elements of self-defense requires a showing of

the defendant’s subjective belief, not the victim’s true intentions, we agree with Mr.

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Jackson that the statements regarding the conversation with Mr. Anderson via social

media that morning were not offered to prove the truth of the matter asserted, but his

mindset the morning of the shooting. Therefore, the testimony was not hearsay and the

trial court improperly excluded Mr. Jackson’s testimony regarding his social media

conversation with Mr. Anderson that morning.

{¶16} These errors drastically hindered Mr. Jackson’s self-defense argument and

merit reversal. Accordingly, Mr. Jackson’s first assignment of error has merit.

{¶17} His second assignment of error states:

{¶18} “Jackson was denied his right to the effective assistance of counsel

because counsel failed to request an instruction on the castle doctrine.”

{¶19} In order to show ineffective assistance of counsel, the defendant must show

that counsel’s performance fell below an objective standard of reasonable representation

and that the defendant was prejudiced by counsel’s performance. State v. Bradley, 42

Ohio St.3d 136 (1984), paragraph two of the syllabus. “‘[A] court need not determine

whether counsel’s performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies.’” Id. at 143 quoting Strickland v.

Washington, 466 U.S. 668, 697 (1984). “‘If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, * * * that course should be followed.’”

Bradley, supra, quoting Strickland, supra. In order to succeed on such a claim, “[t]he

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different.” Id. at

694. Critically, Mr. Jackson was not entitled to a jury instruction on the castle doctrine

and thus, he cannot prove prejudice.

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 {¶20} The castle doctrine, as in effect at the time of the shooting, states that “a

person who lawfully is in that person’s residence has no duty to retreat before using force

in self-defense, defense of another, or defense of that person’s residence * * *.” Former

R.C. 2901.09(B). “[A] person who, through no fault of her own, is assaulted in her home

may stand her ground, meet force with force, and if necessary, kill her assailant, without

any duty to retreat.” State v. Thomas, 77 Ohio St.3d 323, 327 (1997). “Residence”, as

used in this section, “means a dwelling in which a person resides either temporarily or

permanently or is visiting as a guest.” R.C. 2901.05(D)(3). Further, “‘[d]welling’ means a

building or conveyance of any kind that has a roof over it and that is designed to be

occupied by people lodging in the building or conveyance at night, regardless of whether

the building or conveyance is temporary or permanent or is mobile or immobile. As used

in this division, a building or conveyance includes, but is not limited to, an attached porch,

and a building or conveyance with a roof over it includes, but is not limited to, a tent.”

R.C. 2901.05(D)(2).

{¶21} The cases Mr. Jackson cites in support of his argument are clearly and

fatally distinguishable as the facts of those cases did not involve a shooting in a parking

lot, but took place in dwellings, as defined by statute. The parking lot of an apartment

complex is not a “dwelling” for purposes of R.C. 2901.09; it is neither building nor

conveyance, it has no roof, and it is not intended to be occupied overnight. A parking lot

is more akin to a driveway, to which Ohio courts have declined to extend castle doctrine

protections. See State v. Moore, 4th Dist. Lawrence No. 19CA13, 2020-Ohio-4321, ¶21.

See also State v. Estelle, 3rd Dist. Allen No. 1-20-50, 2021-Ohio-2636, ¶16.

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 {¶22} In light of the foregoing, we find Mr. Jackson cannot show he was prejudiced

by the exclusion of a castle doctrine jury instruction, and thus counsel was not ineffective

for failing to request such an instruction.

{¶23} Mr. Jackson’s second assignment of error is without merit.

{¶24} His third states:

{¶25} The convictions were not supported by sufficient evidence.

{¶26} In determining whether there is sufficient evidence presented to sustain a

conviction, a reviewing court “is to examine the evidence admitted at trial to determine

whether such evidence, if believe, would convince the average mind of the defendant’s

guilty beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. “[a] reviewing court must look to the evidence presented * * * to

assess whether the state offered evidence on each statutory element of the offense, so

that a rational trier of fact may infer that the offense was committed beyond a reasonable

doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 WL 535675, *3 (July 16,

1999).

{¶27} Notwithstanding our discussion under Mr. Jackson’s first assigned error, we

will also consider his challenges regarding the sufficiency of the evidence that the state

presented. Specifically, Mr. Jackson challenges his conviction for the attempted murder

of Mr. Anderson on the grounds that the state did not present the testimony of the victim,

Mr. Anderson.1

1. Because the felonious assault and attempted murder counts merged for purposes of sentencing, we only
address his conviction of attempted murder.
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 {¶28} Attempted murder requires a showing that a defendant purposely or

knowingly engaged in conduct which, if successful, would result in the death of another.

R.C. 2923.02(A) and R.C. 2903.02. However, the testimony of the victim is not required

to prove intent to kill or cause physical harm. “Intent does not need to be proven by direct

testimony.” In re A.J.S., 173 Ohio App.3d 171, 2007-Ohio-3216, ¶43 (10th Dist.), citing

State v. Burke, 73 Ohio St.3d 399 (1995). “An intent to kill may be inferred ‘where the

natural and probable consequence of a wrongful act is to produce death.’” A.J.S., supra,

at ¶42, quoting State v. Robinson, 161 Ohio St. 213 (1954), paragraph five of the syllabus.

“‘It is a fundamental principle that a person is presumed to intend the natural, reasonable

and probable consequences of his voluntary acts.’” A.J.S., supra, quoting State v.

Johnson, 56 Ohio St.2d 35, 39 (1978). Moreover, “‘a firearm is an inherently dangerous

instrumentality, the use of which is reasonably likely to produce death.’” A.J.S., supra,

quoting State v. Widner, 69 Ohio St.2d 267, 270 (1982).

{¶29} Here, intent may be reasonably inferred from the fact that Mr. Jackson fired,

by his own testimony, ten shots “rapid fire” at Mr. Anderson from a firearm. Furthermore,

Mr. Davis affirmed that once Mr. Jackson recognized Mr. Anderson was in the parking

lot, he produced the firearm and fired several shots out the window. Even if Mr. Jackson

wasn’t aiming for Mr. Anderson’s head, as he testified, he still admits he was aiming and

firing at Mr. Anderson. Thus, the jury could reasonably find that Mr. Jackson intended to

kill Mr. Anderson without the testimony of Mr. Anderson.

{¶30} In light of the foregoing, we find the state presented sufficient evidence of

each element of attempted murder.

{¶31} Mr. Jackson’s third assignment of error is without merit.

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 {¶32} His fourth states:

{¶33} The convictions for felonious assault and attempted murder were against

the manifest weight of the evidence.

{¶34} Unlike a sufficiency argument, manifest weight requires the appellate court

to conduct an analysis of the weight of the evidence presented, putting the appellate court

in the role of the “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

The appellate court must give deference to the factual findings of the jury regarding

evidence presented and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d

230 (1967), paragraph two of the syllabus. When applying the manifest-weight standard

of review, the reviewing court reviews the entire record, “‘“weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such

a manifest miscarriage of justice that the [judgment] must be reversed and a new trial

ordered.”’” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶20,

quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001), quoting

Thompkins, supra.

{¶35} However, given our disposition of the case under Mr. Jackson’s first

assigned error, we need not address his manifest-weight argument. Evidence of his self-

defense claim, which would have gone to the weight of the evidence, was improperly

excluded, and necessitates reversal.

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 {¶36} In light of the foregoing, the judgment of the Lake County Court of Common

Pleas is reversed and remanded for a new trial.

THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion,

JOHN J. EKLUND, J., dissents with a Dissenting Opinion.

_______________________

THOMAS R. WRIGHT, P.J., concurring.

{¶37} I concur with the lead opinion. However, I write separately to expand on

why the statements at issue were not properly excluded as hearsay and why their

exclusion did not amount to harmless error.

{¶38} The two sets of statements were purportedly made by Anderson to

Herbruck and to Jackson. In the statement to Herbruck, Anderson allegedly stated via

text, “got to whack a n* * *, bro,” prior to Herbruck driving Anderson from Detroit to Ohio

and eventually to Jackson’s apartment building. Defense counsel sought to elicit

testimony from Herbruck as to this statement and argued, in part, that it was admissible

as demonstrating Anderson’s intent pursuant to Evid.R. 803(3). In the statements to

Jackson, Anderson purportedly stated over social media prior to the shooting that he was

going to kill Jackson and his girlfriend. Defense counsel indicated that he was not offering

the statements made to Jackson for the truth of the matter asserted but, instead, for the

effect of the statements on Jackson. The trial court excluded testimony as to the

statements as hearsay.

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 {¶39} Subject to specific exclusions, hearsay “is a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted in the statement.” (Emphasis added.) Evid.R. 801(C). Thus,

not all extrajudicial utterances constitute hearsay. “‘Statements offered as evidence of

commands or threats or rules directed to the witness, rather than for the truth of the matter

asserted therein, are not hearsay.’” State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-

6391, 819 N.E.2d 215, ¶ 132, quoting United States v. Bellomo, 176 F.3d 580, 586 (2d

Cir.1999), citing United States v. Stratton, 779 F.2d 820, 830 (2d Circ.1985).

{¶40} “If a statement is not offered to prove its truth but is offered for
some other reason such as simply to prove the statement was
made, if such fact is relevant, it is not hearsay.” 1980 Staff
Note, Evid.R. 801(C). Additionally, “[w]ords constituting
conduct are not hearsay, e.g., words of a contract, libel,
slander, threats and the like.” Id.

State v. Fambro, 11th Dist. Trumbull No. 2016-T-0063, 2017-Ohio-5646, ¶ 45. See also

State v. Jalowiec, 91 Ohio St.3d 220, 227, 744 N.E.2d 163 (2001), citing Evid.R. 801(C)

and Comment (“Testimony about threats is not hearsay.”). Therefore, when evidence of

a threat is offered for purposes independent of the truthfulness of the speaker’s intention

to act in the manner described, the threat does not constitute hearsay by definition.

Fambro at ¶ 47, quoting State v. Skipper, 2d Dist. Montgomery No. 25404, 2013-Ohio-

4508, ¶ 14 (“‘The very act of uttering the words constitutes the threat whether or not the

declarant actually intended to act in the manner described in the threat.’”), and citing State

v. Williams, 38 Ohio St.3d 346, 348, 528 N.E.2d 910 (1988) (“[a] statement is not hearsay

if it is admitted to prove that the declarant made it, rather than to prove the truth of its

contents”), State v. Taylor, 8th Dist. Cuyahoga No. 45374, 1983 WL 5896, *3 (Mar. 31,

1983) (“[e]vidence of a threat is commonly offered to show the threat was made, rather
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than to prove the truth of any fact existing at or before it was made”), and State v.

Beckwith, 8th Dist. Cuyahoga No. 102544, 2016-Ohio-3267, ¶ 23 (cases cited). See also

Williams at 348, fn. 4, citing Giannelli, Ohio Evidence Manual, Section 801.06, at 7-8

(1982) (“an out-of-court statement which would otherwise be considered hearsay may be

admitted to show the existence of a verbal act (such as the acceptance of an offer) to

give meaning to otherwise ambiguous conduct, to show the effect on the hearer, and to

show the mental state of the declarant”), Bryant v. Spear-Hardy, 2d Dist. Montgomery No.

23449, 2010-Ohio-1903, ¶ 37 (characterizing threats as “verbal acts” offered to show that

the words were spoken, and not for their truth), and 2 McCormick, Evidence, Section 249

(8th Ed.) (“Utterances and writings offered to show effect on hearer or reader,” such as in

self-defense cases where a threat is “offered to show the defendant’s reasonable

apprehension of danger, the statement is not offered for a hearsay purpose because its

value does not depend on its truth.”).

{¶41} However, if a threat is offered into evidence to prove the truthfulness of the

expressed intention of the speaker, it constitutes hearsay but is not barred by the rule

against hearsay due to an exception contained in Evid.R. 803(3). Evid.R. 803(3)

provides:

{¶42} The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:

{¶43} * * *

{¶44} (3) Then Existing, Mental, Emotional, or Physical
Condition. A statement of the declarant’s then existing state
of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
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 execution, revocation, identification, or terms of declarant’s
will.

See State v. Allen, 9th Dist. Medina No. 1814, 1990 WL 40197, *4 (Apr. 4, 1990) (“The

seminal case on the state of mind exception is Mutual Life Ins. Co. v. Hillmon (1892) 145

U.S. 285, which stands for the proposition that hearsay statements reflecting a declarant’s

intentions or future plans are admissible to prove subsequent conduct.”). See also State

v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 33.

{¶45} Accordingly, determination of whether a threat constitutes hearsay depends

on the purpose for which it was offered. Thus, for example, if the threat is offered solely

to prove its effect on the listener, and the truthfulness of the expressed intention is

immaterial, the threat does not constitute hearsay. See Evid.R. 801(C). However, if the

threat is offered to demonstrate the truthfulness of the speaker’s forward-looking

intention, it is hearsay, but it is excepted from the rule against admission of hearsay

pursuant to Evid.R. 803(3). Yarbrough at ¶ 33.

{¶46} Here, with respect to the statement made by Anderson to Herbruck, on

cross-examination of Herbruck, defense counsel asked him: “The morning of April 26th

[Anderson] texted you that he’s got to go whack a n* * *r.” The court sustained the state’s

objection to this question without specification of the basis of the objection or the ruling.

After the court sent the jury to begin deliberations, the following exchange occurred

between the court and counsel:

{¶47} THE COURT: Anything else for the record?

{¶48} [DEFENSE COUNSEL]: Judge, may I do an offer of proof for
the record?

{¶49} THE COURT: All right. You’ll have to be quick.

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 {¶50} [DEFENSE COUNSEL]: I will. Thank you. I'm just submitting
for the purposes of the record Defendant’s Exhibit E, I’ve
marked it as such. This is the text message from [Anderson]
to * * * Herbruck in which it’s been referenced at trial but it
says got to whack a n* * *, bro and [Herbruck]’s response
coming RN which in text message language means right now.
I believe this was admissible under a hearsay exception 803.3
to show * * * Anderson[’s] * * * intent or plan to kill * * *Jackson
on the day of April 26th. I also believe it was admissible as
impeachment purposes against * * * Herbruck because he
denied knowing or being aware that [Anderson’s] intent was
to kill * * * Jackson and that this message clearly responds
affirmatively to this objective by [Anderson]. Thank you.

{¶51} Because the statement by Anderson demonstrated Anderson’s intent/plan,

it is excepted from the rule against hearsay through Evid.R. 803(3). Accordingly, the

statement should not have been excluded on the basis of hearsay.2

{¶52} With respect to the statements made by Anderson to Jackson, during direct

examination of Jackson, Jackson explained that about one month prior to the shooting,

he had tried to purchase Percocet from Anderson, but Anderson took Jackson’s money

without delivering the pills. Thereafter, Jackson advised others in the Lake County area

not to purchase drugs from Anderson. Jackson then testified as follows:

{¶53} Q. Okay. What dispute were we talking about earlier then?

{¶54} A. The dispute that we were talking about earlier was when
[Anderson] said, so after [Anderson] robbed me and I told
everybody that he robbed me [Anderson] got p*ssed off that I
told everybody because he was coming to Ohio for no reason
and he couldn’t get his drugs off any more, at least the people

2. It is not clear from the transcript whether the trial court excluded Herbruck’s testimony regarding the text
on the basis of hearsay. However, as defense counsel assumed as much when making the proffer, and
the trial court did not correct defense counsel’s presumption, I likewise presume that hearsay was the basis
of the objection and ruling. Further, I concur in the lead opinion’s determination that Anderson’s intent was
relevant, and therefore, exclusion of the statement on the basis of irrelevance would likewise have been in
error.

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 that I know and he knew so since he was mad about that he
told me, he's like –

{¶55} [THE STATE]: Objection.

{¶56} THE COURT: Sustained.

{¶57} Q. You can't say what [Anderson] said.

{¶58} A. Okay.

{¶59} [DEFENSE COUNSEL]: I apologize, Your Honor, can we
have a quick conference at the bench?

{¶60} - - - -

{¶61} Thereupon, the following occurred at a sidebar at the bench
between counsel and the Court, outside of the presence and
the hearing of the jury:

{¶62} [DEFENSE COUNSEL]: I apologize. What I’m asking * * *
Jackson is only for a specific threat that [Anderson] made to
him about [Anderson] saying he was going to kill [Jackson].3
That’s relevant to our self-defense arguments because it
gives [Jackson] knowledge of [Anderson]’s intent to him
before that date April 26th.

{¶63} THE COURT: I’m not following you.

{¶64} [DEFENSE COUNSEL]: If * * * Jackson were to answer that
question what [Anderson] told him was I’m going to kill you,
I’m going to kill [your girlfriend], that’s all I want to elicit
because that’s information that it’s relevant to our self-defense
arguments. It’s information not because it’s subsequently true
but because it goes to * * * Jackson’s belief about [Anderson’s]
intent when he showed up that day at the house.

{¶65} [THE STATE]: Your Honor, Your Honor, it’s still an out of court
statement and defense could have subpoenaed [Anderson]
and brought, brought him into Court today. The statement

3. Defense counsel indicated that a threat was made that Anderson was going to kill “Ace,” which is
Anderson’s nickname. The context of the remaining portion of defense counsel’s remarks demonstrate that
counsel misspoke, and it was well understood that Anderson’s purported statements consisted of threats
to kill Jackson and Jackson’s girlfriend.
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 should not come in through the defendant because it’s still an
out of court statement by somebody, it’s hearsay.

{¶66} THE COURT: I'm going to sustained (sic.) the objection.

After the defense rested, defense counsel asserted:
{¶67} Okay. For the record, during the direct examination of * * *
Jackson I attempted to ask him about the threat that * * *
Anderson had made toward[] him in the early morning hours
of April 26th. I believe that was admissible because it was not
admitted for or it was not sought to be admitted for the truth of
the matter asserted instead it was a verbal act in the sense
that it was a threat that was being induced (sic.) to show the
state of mind of * * * Jackson at the time he saw [Anderson]
later that same morning. That’s it. Thank you.

{¶68} Accordingly, defense counsel sought to elicit from Jackson threats made to

him by Anderson that Anderson was going to kill Jackson and his girlfriend. The stated

purpose of offering these statements was to establish the effect of the statements on the

listener. Therefore, as the statements were not offered to prove the truth of the matter

asserted, the court erred in sustaining the hearsay objection.

{¶69} Moreover, although the statements made by Anderson to Jackson were not

offered for the truth of the matter asserted, the content of the statements to Jackson

demonstrate intent in substantially the same manner as the statement to Herbruck.

Therefore, although Jackson did not specifically argue that the statements to him were

excepted from the rule against hearsay by Evid.R. 803(3), this court would be remiss if

we failed to acknowledge that the threats made directly to Jackson were also admissible

for the truth of Anderson’s intent.

{¶70} Further, I agree with the lead opinion that exclusion of the statements

significantly hindered Jackson’s self-defense argument. First, with respect to the text

message expressing an intent to kill, as noted by the lead author, although Jackson had
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no personal knowledge of the text, the substance of the text corroborated Jackson’s

version of events and lent credibility to Jackson’s subjective fear for his life. I

acknowledge, as recognized by the dissent, that a detective investigating the case

confirmed the substance of the text message in his testimony. However, the trial court

sustained an objection to a question regarding the text during Herbruck’s testimony.

Further, although the defense relied on the content of Anderson’s text to Herbruck during

closing argument, in the state’s rebuttal argument, it countered:

{¶71} To respond briefly again to some of the arguments defense
made about this text message between [Anderson] and
[Herbruck]. We’re not denying that [Anderson] is not an
upstanding citizen but how does that text message which we
didn’t, there was no clarification as to if it was in fact from
[Anderson] or who [Anderson] was talking about but for
argument purpose let's assume he was talking about
[Jackson]. How does that text message show [Jackson]'s
state of mind when he went to [Jackson’s apartment building]
that day, he had no idea about that text message.

Thus, the state invited the jury to believe the statement to Herbruck did not involve

Jackson; however, as the defense was not permitted to question Herbruck about the

statement, it did not have the opportunity to further elicit testimony that potentially could

have clarified the subject of the text.

{¶72} Moreover, although the state argued that the statement to Herbruck, of

which Jackson was unaware, could not have impacted Jackson’s state of mind, the

statements made directly to Jackson are undoubtedly material to this issue. The dissent

maintains that the error in excluding these statements was mitigated by other evidence

of the threats, including Jackson’s general testimony that Anderson threatened him and

his girlfriend, that Anderson knew where Jackson lived, and that he was fearful of

Anderson after a conversation with him and obtained a gun based on that conversation.
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The dissent further indicates that Jackson’s self-defense claim was undermined by

evidence in the record through which the jury could conclude that Jackson was at fault in

creating the situation that gave rise to the affray.

{¶73} I agree that there existed some evidence supporting Jackson’s state of

mind, and some evidence from which it could be inferred that Jackson was at fault.

However, the trial court’s erroneous hearsay ruling regarding Anderson’s threats to kill

Jackson precluded Jackson from fully testifying on a central issue to self-defense and

providing the basis for his “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.” See State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 41 (11th

Dist.), citing State v. Barnes, 94 Ohio St.3d.21, 24, 759 N.E.2d 1240.

{¶74} Further, the court’s erroneous ruling hampered the remainder of Jackson’s

testimony. After the trial court ruled that Anderson’s threats to kill constituted hearsay,

defense counsel questioned Jackson about conversations he had with Anderson over

social media:

{¶75} Q. Okay. What was your feeling after having that
conversation with [Anderson]?

{¶76} A. I was in fear cause [Anderson] knows where I live, he’s
been to my house before. So I don’t know where [Anderson]
lives at. When I went to Detroit he had me go to some
apartment building that wasn’t his apartment building so I
don’t know where [Anderson] lives but [Anderson] knows
where I live. And I can’t say what he said but [Anderson]
threatened me, told me that he was going to kill me and my
family.

{¶77} [THE STATE]: Objection.

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 {¶78} THE COURT: Sustained. The jury is instructed to disregard
that answer.

{¶79} * * *

{¶80} Q. Now let me skip back to the first conversation with []
Anderson. After you had that conversation you felt it was
necessary to get a gun; is that correct?

{¶81} A. What is the first conversation?

{¶82} Q. Was the one a week before April 26th.

{¶83} A. Yes, when he told me he was going to kill my family.

{¶84} [THE STATE]: Objection.

{¶85} Q. Don’t –

{¶86} [THE COURT:] The objection is sustained and the jury is
instructed to disregard that statement.

{¶87} You’re instructed not to state what other people told you so
you’re to follow that instruction.

{¶88} The record indicates that the court’s admonition impacted Jackson’s further

testimony. When defense counsel inquired as to why Jackson obtained a firearm when

he knew that he was prohibited from possessing a firearm due to a previous felony

conviction, the following exchange occurred:

{¶89} A. I can’t answer that question because I’m instructed not to
say what was said.

{¶90} Q. Oh no, no, without saying what [Anderson] said why did
you choose to go out and get a firearm regardless of what
happened to [Anderson]?

{¶91} A. Cause I didn’t want anything to happen to me or my family.

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Case No. 2021-L-018
 {¶92} Subsequently, as Jackson was testifying regarding seeing Anderson at his

apartment building, he maintained that he went “into shock because [he and Anderson]

just was on the phone six hours ago, [and Anderson] was just flashing guns in his

FaceTime/Instagram live video and [Jackson] pulled up and [Anderson’s] at [Jackson’s]

door.” While explaining what happened thereafter, Jackson maintained that Anderson

did not notice Jackson pulling into the parking lot, and Jackson’s friend, who was driving,

pulled up closer to Anderson, at which point Anderson noticed him. Jackson testified:

{¶93} A. * * * As soon as I say something, at this time I still have
long hair and my dreads were blond[e] so I said, I says you
got balls coming to my house, [Anderson]. He said what? He
said I’ll blow you right now.

{¶94} [THE STATE]: Objection.

{¶95} A. I’m sorry.

{¶96} [THE COURT]: Sustained. The jury’s instructed again to
disregard that statement.

{¶97} Then, while testifying as to Anderson’s actions immediately prior to the

shooting, Jackson maintained:

{¶98} A. As [Anderson] is walking through that parking spot he
steps into his conversation which would be back and forth with
me and he, he says what he says and when he says what he
says I question him, I say what and he pulled, he reached. As
soon as he reached I put one in the head when I said put one
in the head I load it. My gun wasn’t loaded but when he
reached I put one in the head. When I see his gun I fire two
shots pow pow. I fired my two shots, he let off the shot,
[Jackson’s friend who was driving him] had already hit the gas
so now he moving, we’re moving, [Anderson] is –

Jackson then proceeded to describe his actions during and after the shooting.

{¶99} Therefore, due to the trial court’s erroneous ruling, the jury was specifically

instructed to disregard Jackson’s testimony of Anderson’s threats to Jackson, and
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defense counsel and Jackson were required to structure their questions and answers in

a way as to prevent further testimony as to Anderson’s statements.

{¶100} However, the nature of the threat, i.e. to kill, and Jackson’s perspective of

the threat to his life were essential to his self-defense argument—that Jackson held a

bona fide belief that he was in imminent danger of death or great bodily harm.

Accordingly, Jackson’s generalized testimony about “threats” and the testimony of other

individuals regarding the threats do not render the errors harmless. Although Jackson’s

excluded testimony that Anderson directly threatened to kill him was essential to his self-

defense argument, the court repeatedly instructed the jury to disregard Jackson’s

testimony of the specific threat. Based upon the gravity and import of the excluded

statements and the circumstances of this case, I cannot say that the court’s errors in

excluding the statements that were offered to establish a core element of self-defense

were harmless. Accordingly, I concur with the lead opinion.

_______________________

JOHN J. EKLUND, J., dissents with a Dissenting Opinion.

{¶101} I would affirm the judgment of the Lake County Court of Common Pleas. I

respectfully dissent from the majority’s conclusions as to the first assignment of error and

would also conclude, as to the fourth assignment of error, that the appellant’s conviction

was supported by the manifest weight of the evidence. I concur with the majority’s opinion

as to the second and third assignments of error.

{¶102} To begin, when analyzing with “a pure legal question such as whether

testimony constitutes inadmissible hearsay, we apply a de novo standard of review.”

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Case No. 2021-L-018
State v. Kratochvill, 11th Dist. Lake No. 2019-L-088, 2020-Ohio-7000, 166 N.E.3d 43, ¶

27, appeal not allowed, 163 Ohio St.3d 1419, 2021-Ohio-1606, 167 N.E.3d

974, reconsideration denied, 163 Ohio St.3d 1497, 2021-Ohio-2270, 169 N.E.3d 1286,

citing Jack F. Neff Sand & Gravel, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. Lake No.

2012-L-145, 2014-Ohio-2875, ¶ 23.

{¶103} Evid. R. 801(C) provides that “‘Hearsay’ is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” The staff note acknowledges the “relative nature” of the

hearsay definition. For example, “[w]ords constituting conduct are not hearsay, e.g.,

words of a contract, libel, slander, threats and the like.” 1980 Staff Note, Evid.R. 801(C).

{¶104} Threats are often, but not consistently, treated as verbal acts which are non-

hearsay statements. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819

N.e.2d 215, ¶ 132; State v. Skipper, 2d Dist. Montgomery No. 25404, 2013-Ohio-4508, ¶

14. A defendant may introduce proof of the victim’s threats to establish the defendant’s

state of mind and the effect the threat had on the defendant rather than to prove the truth

of the matter asserted. State v. Fambro, 11th Dist. Trumbull No. 2016-T-0063, 2017-Ohio-

5646, ¶ 48-49. Moreover, courts routinely admit hearsay testimony under various

exceptions such as an excited utterance (Evid.R. 803(2)) or a then existing mental,

emotional, or physical condition (Evid.R. 803(3)). See Id. at ¶ 50.

{¶105} When a trial court excludes otherwise admissible evidence, the issue

becomes whether the exclusion of proffered testimony was harmless error. A non-

constitutional error is harmless when there is other substantial evidence to support the

guilty verdict. Id. at ¶ 51, citing State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023

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(1994). In Fambro, this court addressed whether a trial court erred in excluding direct

evidence of a threat, but found that error was mitigated by several factors. Id. at ¶ 52.

{¶106} First, the exclusion of the threat was mitigated by the trial court granting

Fambro “wide latitude to testify regarding his state of mind and Hunter’s conduct in the

moments before the shooting. Fambro testified that Hunter hit him in the head with the

gun; she threatened him; her tone and her volume scared him; and when struck in the

head, he thought he was going to die ‘because of her tone, her anger, and the situation.’”

Id. Although Fambro did not repeat “the substance of Hunter’s threat, the prosecuting

attorney did so in closing argument * * *.” Id. The second mitigating factor was that

“Fambro’s self-defense claim was further undermined by other evidence in the record,

such as: the murder weapon being directly connected with Fambro; Fambro’s efforts to

conceal the crime; and the nature of Hunter’s wounds * * *.” Id. at ¶ 53. Therefore, this

court held that “it cannot be reasonably concluded that the exclusion of direct testimony

that Hunter threatened to kill Fambro affected the outcome of the trial.” Id. at ¶ 54.

{¶107} Appellant argued in his first assignment of error that the trial court erred by

precluding him from testifying as to statements which the court construed as hearsay.

The first statement was a text message from Anderson to Herbruck of which appellant

had no prior knowledge. The second statements were the live social media

communications wherein appellant and Anderson exchanged threats.

Text Message:

{¶108} Testimony about Anderson’s text message to Herbruck was admitted into

evidence while the text itself was not admitted. Appellant’s trial counsel proffered the

exhibit stating that it had “been referenced at trial but it says got to whack a n****, bro and

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Case No. 2021-L-018
Phil’s response coming RN which in text message language means right now. I believe

this was admissible under a hearsay exception 803.3 to show Vincent Anderson

otherwise known as Ace’s intent or plan to kill Mr. Jackson on the day April 26th.” Trial

counsel also argued that the text was admissible to impeach Herbruck’s testimony

because he denied knowledge of Anderson’s intent to kill appellant.

{¶109} Detective Marc Christensen testified about the text message between

Anderson and Herbruck. He testified that Anderson sent a text stating he needed a

weapon and that on the morning of the shooting, he said, “I’ve got to go whack a n*****.”

Christensen also confirmed that Herbruck said he was coming right now. The court

sustained an objection seeking to allow Herbruck to testify as to what Anderson said in

the text. Anderson himself did not testify. Finally, appellant never offered any testimony

about the text. Indeed, appellant was not aware of this text on the date of the shooting.

{¶110} While the court did not admit the exhibit of the text message, the court did

admit Detective Christensen’s testimony about the specific content of the text. The jury

heard testimony about the messages and defense counsel referenced the message in

closing arguments. Counsel argued that the State did not call Anderson because he

would have hurt their case because there was “a text message from Vincent [Anderson]

saying he’s going to go whack somebody and you can be certain that I would have pointed

that out.”

Social Media Threats:

{¶111} During trial, appellant testified about the threats exchanged between

appellant and Anderson. He said that he had multiple conversations with Anderson via

social media. After one conversation a week before the shooting, appellant said that he

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Case No. 2021-L-018
“was in fear cause Ace knows where I live, he’s been to my house before. So I don’t

know where Ace lives at.” (Bold added). After this conversation, appellant felt it was

necessary to get a gun. One week later, appellant had another social media conversation

with Anderson early in the morning on April 26th. Appellant told his girlfriend Trina about

the conversation saying that Anderson was “threatening me, he’s threatening you. He’s

talking about – oh, I can’t say what he’s talking about but I’m just telling her what was said

on Instagram live and on the FaceTime. She ended up joining the Instagram live herself

and watching it and was able to see from her end what was going on.” (Bold added).

Appellant also stated that Anderson was flashing guns on the FaceTime and Instagram

Live videos.

{¶112} Appellant’s counsel proffered testimony of the social media threats saying

that he was asking appellant about specific threats that Anderson made – that Anderson

was going to kill appellant, going to kill Trina, his girlfriend – and these threats were

relevant to appellant’s self-defense arguments because they went to appellant’s belief

about Anderson’s intent.

{¶113} While I agree with the majority that the trial court improperly excluded both

the text message exhibit and more specific testimony about the threats Anderson made

to appellant, I believe that the error was harmless. Like in Fambro, supra, the error was

mitigated.

{¶114} As to the text message, it was mitigated because the jury heard testimony

from a detective with knowledge of the text message. The detective testified as to the

exact content of the message as well as other statements that Anderson made to

Herbruck via text. Trial counsel referenced Anderson’s text as well as Anderson’s own

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Case No. 2021-L-018
absence from trial in closing arguments. Finally, appellant himself had no personal

knowledge of the message, and trial counsel never attempted to elicit specific testimony

from him about the text. Therefore, I would find that it was harmless error to exclude the

exhibit containing the text message.

{¶115} In reference to the social media threats, there were also mitigating factors

that render the error harmless. The first mitigating factor was that appellant did provide

testimony that Anderson threatened him. Although appellant was not permitted to repeat

the substance of Anderson’s threats, he was permitted to state as fact that Anderson

threatened him and Trina. Appellant was also able to state that Anderson knew where

appellant lived and that he had been to his house before. Appellant further stated that he

was fearful of Anderson after a conversation with him and that he obtained a gun because

of that fear.

{¶116} The second mitigating factor was that appellant’s self-defense claim was

undermined by other evidence in the record including evidence from which a reasonable

jury could conclude that appellant was at fault for creating the situation giving rise to the

affray. Appellant, upon seeing Anderson in the parking lot, began to shoot at Anderson.

Although appellant asserted that he acted in self-defense, the jury was charged with

considering that claim and rejected it.

{¶117} Although the concurring opinion writes that the general evidence of

Anderson’s threats against Jackson was less impactful because the trial court excluded

Anderson’s specific threats, I disagree. Although Jackson was prevented from stating

Anderson’s specific words, the court did not preclude Jackson from speaking freely and

forcefully about the impact that Anderson’s threats had upon him and the fear that those

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Case No. 2021-L-018
threats incited. Jackson testified that Anderson threatened him, and Jackson was free to

describe his state of mind graphically and specifically to the jury because of those threats.

Therefore, I do not agree that the exclusion of the specific words dampened Jackson’s

self-defense case. The exclusion was harmless error.

{¶118} While the trial court should not have prohibited appellant from testifying

specifically about Anderson’s threats made on social media, this was harmless error

because there was general testimony about the nature of the threats and the effect they

had on appellant.

{¶119} Accordingly, I would find that appellant’s first assignment of error is

without merit and would also conclude that the appellant’s conviction was supported by

the manifest weight of the evidence.

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