State v. Santana

[Cite as State v. Santana, 2022-Ohio-4118.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29348
:
v. : Trial Court Case No. 2019-CR-3574
:
VICTOR SANTANA : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 18th day of November, 2022.

...........

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio
45419
Attorney for Defendant-Appellant

.............

LEWIS, J.
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{¶ 1} Defendant-Appellant Victor Santana appeals from his convictions for murder

and felonious assault. Santana contends that the trial court improperly excluded

evidence of past trespasses on his property, which was relevant to his state of mind at

the time he shot and killed two trespassers in his detached garage. Santana also argues

that the trial court should have excluded from evidence two recordings of his interviews

with police due to a lack of clarity in his responses to the officers’ questions. Further,

Santana contends that his trial counsel provided ineffective assistance by failing to object

to the admission of those recordings. Finally, Santana argues his convictions were

against the manifest weight of the evidence.

{¶ 2} For the reasons that follow, we affirm Santana’s convictions.

I. Facts and Course of the Proceedings

{¶ 3} On November 21, 2019, a Montgomery County grand jury indicted Santana

on four counts of murder (proximate result), first-degree felonies in violation of R.C.

2903.02(B); two counts of felonious assault (serious physical harm), second-degree

felonies in violation of R.C. 2903.11(A)(1); three counts of felonious assault (deadly

weapon), second-degree felonies in violation of R.C. 2903.11(A)(2); and one count of

attempt to commit murder, a first-degree felony in violation of R.C. 2923.02(A). All

counts contained firearm specifications. All of the counts relate to the night of August

28, 2019, when Santana shot and killed Devin Henderson and Javier Harrison, who were

sitting in a car in the detached garage on Santana’s property with their friend, Ja’shin

Gibson.
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{¶ 4} Santana filed a motion to suppress the statements he made during his two

interviews with the police. He also filed a motion in limine requesting that the trial court

allow his counsel to elicit testimony and evidence that trespassers had previously caused

damage to his house and truck. The trial court overruled both motions. On November

29, 2021, Santana moved to dismiss the attempt to commit murder count of the

indictment. Ultimately, this count was dismissed, leaving nine counts to be tried to a jury.

{¶ 5} The jury trial was held from November 30 to December 2, 2021. Several

witnesses testified at the trial. Lee Lehman, the Chief Deputy Coroner for Montgomery

County, testified first for the State. He had performed autopsies on Devin Henderson

and Javier Harrison. According to Lehman, Henderson was shot multiple times in his

back, and the bullets did not exit his body. The gunshot wounds caused Henderson’s

death, and there were no other contributing causes. Trial Tr., p. 184-193, 198-199.

Both bullets entered Henderson’s back in a downward path. Id. at 194. Henderson’s

toxicology report was positive for the presence of marijuana. Id. at 198. Lehman

testified that Javier Harrison had a gunshot wound to the left side of his back; the bullet

went through his heart and left lung. He also had a gunshot wound to his left forearm.

Id. at 204-205, 207-209. Harrison died as a result of multiple gunshot wounds. Id. at

214. Harrison’s toxicology report also showed the presence of marijuana. Id. at 213.

Lehman did not find any weapons in the possession of Henderson or Harrison. Id. at

214.

{¶ 6} Dayton Police Officer Jeff Downing testified next for the State. He had been

dispatched to Santana’s house at 848 Conners Street around 10:00 p.m. on August 28,
 -4-

2019, due to a reported shooting. Id. at 221-223. Downing took several photographs

of the crime scene. Officer Downing did not find any weapons around either Harrison or

Henderson. Id. at 232, 236. He noted that Santana’s yard was well maintained, but he

did notice some plywood and plastic over some windows of the house. Id. at 228, 241.

It was very dark around the garage and there was no electricity in the garage. Id. at 242.

Officer Downing agreed that there were many abandoned houses in Santana’s

neighborhood. Id. at 243.

{¶ 7} Ja’shin Gibson testified for the State. Gibson, who was 19 years old on the

night of August 28, 2019, had known Harrison since they were 12 or 13 years old, and he

had met Henderson at the Boys and Girls Club when he was five or six years old. Id. at

252-253. The three of them ran around together all the time, chilling, smoking, and

laughing. Id. at 253. They regularly smoked marijuana together. Id. at 253-254. The

three men met at Gibson’s place that night and were looking for a place to smoke. They

walked by Santana’s house and thought it was abandoned due to the boarded windows

and run-down cars in the garage. Id. at 254-255. None of them had any weapons, and

Harrison brought the marijuana. Id. at 257. It was very dark on the property, and

Gibson did not notice any lights on in the house. Id. at 257-259. The three men entered

the garage and got into the Lincoln Continental in the garage. Gibson sat in the front on

the passenger’s side, Henderson sat in the front on the driver’s side, and Harrison sat in

the back on the driver’s side. Id. at 263.

{¶ 8} The three men had been in the car only for approximately five to ten minutes

when Gibson lit his lighter to give Harrison some light to roll up a marijuana blunt. As
 -5-

Gibson passed the lighter to Harrison to light up the blunt, he saw the back door of the

car open, saw flashes, and heard gunshots. Harrison screamed that he had been shot.

The person with the gun then opened Henderson’s door and pointed the gun inside.

Henderson tried to push the gun up and exit the car. Henderson attempted to run to the

front of the car after getting out but was shot in the back. Id. at 264-271. Gibson was

able to get out of the car and hide underneath it. Gibson stayed underneath the car until

the shooter exited the garage. After Gibson got out from underneath the car, he was

able to observe the shooter enter the house on the property. Gibson then left the

property and ran away screaming for help. Id. at 271-273.

{¶ 9} Gibson returned to the scene of the shooting after he tried to tell people what

had happened. He spoke to a detective and initially lied about what had happened. Id.

at 273, 290. But he then told the truth. Id. at 278. On cross-examination, Gibson

reiterated that he had not heard the shooter coming before he had started shooting. He

admitted that he had not been able to see the shooter during the gunfire, but he had seen

the shooter go into the house afterward. Further, Gibson testified that he and his two

friends had never been on that property before and that, if the cars in the garage had

been locked, they would have left the property without smoking there. According to

Gibson, he and his friends had not intended to damage or take anything that night. Id.

at 279-280, 286, 299.

{¶ 10} Sergeant Clinton Evans of the Dayton Police Department also testified for

the State. He was dispatched to the crime scene on the night in question in response to

the homeowner’s call about a shooting. Id. at 304-305. When Sergeant Evans arrived,
 -6-

there was a firearm on the porch of the residence and there were two individuals in the

garage. He testified that there were no signs of life from the individuals in the garage

and no evidence of any weapons near them. Id. at 310-311. As Sergeant Evans

approached the garage in the dark, he had his weapon drawn. Id. at 312-314.

{¶ 11} Detective Stephen Lloyd of the Dayton Police Department testified next for

the State. He was dispatched to the crime scene at 9:20 p.m. based on a report that a

male had shot two other males in his garage. Id. at 317-319. When Detective Lloyd

arrived, he noticed that it was very dark on the property near the detached garage. Two

of the officers on the scene pulled an individual from the garage to render medical aid.

Id. at 322-323. The officers had approached the garage with their guns drawn for their

own safety. Ultimately, there were no signs of life from the two individuals in the garage

and no sign of weapons. Id. at 324-325. Detective Lloyd noticed a male near the

property who was crying, pacing, and very agitated; this male was Gibson. Detective

Lloyd eventually spoke with Gibson about what had happened. Gibson initially stated

that he and his friends had been in the alley when Santana started shooting at them, but

he then changed his story and told Lloyd that he and his friends had gone into the garage

to smoke marijuana and then Santana had started shooting at them. Id. at 331-335, 340.

{¶ 12} Detective Alexander Dole also testified for the State. He was part of the

special victims’ unit of the Dayton Police Department. Detective Dole had been called

to the crime scene on the night of August 28, 2019. When he arrived, the garage door

was open, and officers were pulling a male out of the garage. Detective Dole observed

a male at the front of the car bleeding and likely deceased. Id. at 347-349. He did not
 -7-

observe any weapons around either of the two males. Id. at 351. Detective Dole

agreed on cross-examination that he would not have been able to observe any weapons

without the use of a flashlight. Id. at 352.

{¶ 13} Officer Jamie Luckoski of the Dayton Police Department testified that he

had been dispatched to the crime scene and had approached the garage with other

officers. Id. at 359-360. Officer Luckoski had pulled Harrison out of the garage and had

noted a faint pulse, but both Harrison and Henderson ultimately were pronounced dead

at the scene. Id. at 365-367. On cross-examination, Officer Luckoski noted that

flashlights had been used when approaching Henderson and Harrison to help determine

if there were any weapons or any movements. Id. at 368-369.

{¶ 14} Officer Stephen Cline of the Dayton Police Department also testified that he

had recovered a revolver at the scene, discovering one live round and five spent casings

in the gun. Id. at 376.

{¶ 15} Craig Stiver, a coroner investigator for the Montgomery County Coroner’s

Office, testified that he had examined the Lincoln Continental from the garage, noting that

it had been very dusty and had no battery. Also, there had been blood on the front

bumper and in the back seat. Stiver also found a marijuana cigarette and a spent bullet.

Id. at 386, 388-394. While Stiver stated that he did not find any weapons in the car, he

testified on cross-examination that he found a wrench, screwdriver, and a PVC pipe under

the driver’s seat. Id. at 396-397.

{¶ 16} Detective Melissa Schloss of the Dayton Police Department was also

dispatched to the crime scene on the night in question. She testified that there had been
 -8-

no lighting in the garage area and that it was approximately 42 feet from the back of the

house to the garage. Id. at 410-411. She spoke with Gibson on the night of the

shootings. Officer Schloss testified that Gibson’s testimony at trial was consistent with

what he told her on the night of the shootings. Id. at 412. She interviewed Santana

twice after the shootings, once on the night of the shooting and once about three months

after the shooting. On cross-examination, Detective Schloss testified that Santana had

told her that he feared the males coming into his house on the night of the shooting. Id.

at 435.

{¶ 17} Elizabeth Ramirez, Santana’s niece, testified that Santana was a working

man who was handy and had a routine of going to work, cutting his grass, and researching

information on his computer. Id. at 456-457. Elizabeth said Santana was like a father

to her. Id. at 457. She had never seen him with a gun and considered him to be a very

peaceful man. Id. at 458-459. According to Elizabeth, Santana sometimes volunteered

at a homeless shelter. Id. at 459.

{¶ 18} Leticia Ramirez, Santana’s sister, also testified for the defense. Id. at

465-475. She noted that Santana had worked all of his life. Id. at 468. She and

Santana visited each other often and were very close. Leticia described her brother as

a kind, loving, peaceful, quiet man. Id. at 469, 471. Santana had told her that he

purchased a gun. Id. at 470. Leticia testified that her brother had a routine of going to

work, coming home, learning about new things, and going for walks. Id. at 474.

{¶ 19} The State also played for the jury portions of the videotaped recordings from

Santana’s two interviews with the police. The jury had the opportunity to see and hear
 -9-

Santana explaining what had happened on the night in question and why he had shot

Henderson and Harrison.

{¶ 20} The State read to the jury the stipulations of the parties. The stipulations

provided, in part, that the revolver recovered from the front porch of 848 Conners Street

was Santana’s firearm, that an expert would testify that the five fired cartridges found at

the scene were identified as having been fired from Santana’s firearm, and that the DNA

profiles obtained from the rear driver’s-side area of the car matched Javier Harrison. Id.

at 399-400.

{¶ 21} Following the testimony, the jury returned guilty verdicts on the first eight

counts, which involved allegations of murder and felonious assault against Henderson

and Harrison. But the jury returned a not guilty verdict on the ninth count, a felonious

assault count related to Ja’shin Gibson. The trial court merged counts 1, 2, 5, and 6

relating to Devin Henderson and counts 3, 4, 7, and 8 relating to Javier Harrison. The

court then imposed concurrent sentences of 15 years to life on counts 1 and 3, and it

ordered that the three-year firearm specifications attached to counts 1 and 3 be served

consecutively to each other and to the 15 years to life, for a total sentence of 21 years to

life. Santana filed a timely appeal from his convictions.

II. The Trial Court Did Not Abuse Its Discretion By Excluding Evidence of Past

Trespasses

{¶ 22} Santana’s first assignment of error states:

THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM
 -10-

INTRODUCING RELEVANT EVIDENCE IN HIS DEFENSE, THEREBY

VIOLATING HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR

TRIAL, THE RIGHT TO A FULL AND FAIR DEFENSE, AND

FUNDAMENTAL FAIRNESS.

{¶ 23} Santana contends that he purchased a gun for protection of himself and his

property based on prior incidents involving damage to his property and house. He points

out that he had previously complained to police about damage to the main door of his

residence and the window to his truck and about individuals throwing rocks at his

property. Appellant’s Brief, p. 12. According to Santana, “Ohio has a subjective test to

determine whether or not a defendant acted in self-defense,” and “the defendant’s state

of mind is crucial.” Id. at p. 13. Therefore, Santana’s “situation should have been

evaluated in accordance with his actual interpretation of the danger these individuals

posed to him based on his unique circumstances,” which included prior trespasses. Id.

{¶ 24} The State disagrees and notes that there was no evidence to tie the victims

in this particular case to any prior incident involving Santana or his property. Appellee’s

Brief, p. 8. Further, the State notes that when kids threw rocks at Santana’s house and

vehicle in the past, Santana yelled at them and they ran away. According to the State,

there was no evidence presented that any of the prior events involved threats to Santana

that would have justified the force Santana exerted on the night of August 28, 2019.

{¶ 25} The admission or exclusion of relevant evidence is within the sound

discretion of the trial court, and we review that decision for an abuse of discretion. State

v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39. The term “abuse of
 -11-

discretion” indicates an attitude that is arbitrary, unconscionable, or unreasonable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). It has been

previously noted that most abuses of discretion “will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents.,

Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process

that would support that decision.” Id.

{¶ 26} In its ruling excluding the evidence of prior trespasses onto Santana’s

property, the trial court noted that the prior instances of trespassing onto or throwing rocks

at Santana’s property had been too remote in time to the night of the incident in question.

Further, the trial court stated that there was no evidence directly connecting any of the

prior incidents to the three males involved in the incident on August 28, 2019. Indeed,

Santana’s trial counsel conceded that there was no evidence of such a connection. Trial

Tr., p. 424-425.

{¶ 27} Notably, the trial court allowed the admission of evidence from Santana that

he had seen footprints by the door to his house. Also, Gibson testified that it was

common to hear gunshots in the neighborhood where Santana lived. Id. at 285.

Santana’s counsel specifically mentioned both of these facts in his closing argument. Id.

at 502, 504, 513. Further, Santana’s counsel noted in his closing argument that Gibson

had testified that trespassing was common in that neighborhood. In addition, Santana’s

counsel reminded the jury that Santana had stated in his police interview that he often

heard gunshots in his neighborhood. Id. at 502, 505. In short, Santana was allowed to
 -12-

introduce other evidence to the jury to paint a picture that Santana had had a reason to

be fearful when he saw the trespassers.

{¶ 28} Based on our review of the evidence that was permitted and the evidence

that was excluded, we do not believe the trial court abused its discretion in refusing to

allow into evidence Santana’s proffered statements regarding past trespasses on his

property that were remote in time to the night of August 28, 2019, and had no connection

to Henderson, Harrison, and Gibson.

{¶ 29} Further, we believe that the proffered evidence regarding prior incidents of

trespass onto Santana’s property, even if admitted into evidence, could not have

overcome the inherent deficiencies in Santana’s claim of self-defense. To establish self-

defense, the evidence must show (1) that the defendant was not at fault in creating the

situation giving rise to the affray; (2) that the defendant 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 (3) that the defendant did not violate any

duty to retreat or avoid the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d

1240 (2002), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph

two of the syllabus. If the evidence shows beyond a reasonable doubt that at least one

of these three elements is missing, a defendant cannot establish self-defense.

{¶ 30} “The ‘not at fault’ requirement also means that the defendant must not have

been the first aggressor in the incident.” State v. Turner, 171 Ohio App.3d 82, 2007-

Ohio-1346, 869 N.E.2d 708, ¶ 23 (2d Dist.), citing Robbins. “An individual who is the

first aggressor in an incident is ‘at fault’ for purposes of self-defense.” State v. Williams,
 -13-

9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 9, citing Turner at ¶ 23. Further, “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.”

(Citations omitted.) Id. at ¶ 11.

{¶ 31} In State v. Perez, 7th Dist. Mahoning No. 09 MA 30, 2010-Ohio-3168, the

court analyzed the interplay between the first two elements of a self-defense claim and

evidence of past trespasses. In Perez, the defendant was responsible for checking on

his sister’s house while she was out of town. At that time, defendant lived at his mother’s

house, which was located near his sister’s house. The defendant knew that a cousin

was staying at his sister’s house, along with a 4-year-old child. The defendant saw an

individual park a car outside his sister’s house, go into the house, and then come back

out of the house and sit in the parked car. The defendant walked over to the car with a

baseball bat and smashed the driver’s side window of the car. Id. at ¶ 1. According to

the defendant, he was acting either in defense of another or defense of property. Id. at

¶ 3. In particular, the defendant argued that he had had a legitimate reason to be afraid

of the individual in the parked car because his mother’s house had been previously

robbed. Id. at ¶ 17.

{¶ 32} The Seventh District rejected the defendant’s arguments. According to the

court:

In determining whether there are reasonable grounds for believing
 -14-

there was an imminent threat of bodily harm, the court can consider whether

the defendant received prior threats or encountered prior trespassers.

State v. Fields (1992), 84 Ohio App.3d 423, 428, 616 N.E.2d 1185.

***

Appellant believes that he had a legitimate reason to be afraid of J.R.

because his mother's house had been previously robbed. It is true that the

defendant's state of mind is an important factor in establishing self-defense.

State v. Moore, 3d Dist. Nos. 1-06-89, 1-06-96, 2007-Ohio-3600, ¶ 59.

There must be both reasonable and objective grounds to believe that harm

is imminent, and there must be an honest and subjective belief that harm is

imminent. State v. Thomas (1997), 77 Ohio St.3d 323, 330, 673 N.E.2d

1339. It is also true that, in determining whether there are reasonable

grounds for believing there was an imminent threat of great bodily harm, the

court may consider whether the defendant received prior threats or

encountered prior trespassers. State v. Fields (1992), 84 Ohio App.3d

423, 428, 616 N.E.2d 1185. Nevertheless, the defense of self-defense

does not permit the alleged victim to become the aggressor once the affray

has ended, or before an affray has even taken place. “The ‘not at fault’

requirement * * * means that the defendant must not have been the first

aggressor in the incident.” * * *

Appellant was obviously at fault in creating the affray because J.R.

was sitting in his car preparing to leave when Appellant attacked him. There
 -15-

is no evidence that J.R., a 16-year old boy, presented any type of threat to

anyone when he was assaulted.

Perez at ¶ 15-18.

{¶ 33} Like the defendant in Perez, Santana was the first aggressor and at fault in

creating the affray. Santana left his home searching for the trespassers. When he

entered the detached garage that was 42 feet from his house, he was not confronted or

cornered by the trespassers. Rather, he saw a light flicker in the inside of a car in the

detached garage. Instead of returning to his home from the detached garage, he walked

toward the car, opened the back door, and shot Harrison. He then proceeded to shoot

Henderson. Under these facts, no reasonable jury could have found that Santana shot

Harrison and Henderson in self-defense. Nothing in the evidence proffered to the trial

court relating to past occurrences of trespass or damage to his property could have

altered the fact that Santana was at fault for the affray as the aggressor, which precluded

a finding of self-defense as a matter of law.

{¶ 34} Santana’s first assignment of error is overruled.

III. The Trial Court Did Not Abuse Its Discretion By Admitting Into Evidence The

Two Police Interviews

{¶ 35} Santana’s second assignment of error states:

APPELLANT WAS DEPRIVED OF THE RIGHT TO A FAIR TRIAL

AND FUNDAMENTAL FAIRNESS THROUGH THE ADMISSION OF TWO

TAPED INTERVIEWS.
 -16-

{¶ 36} Santana contends that the trial court improperly admitted into evidence

taped recordings of two interviews of Santana conducted by police. According to

Santana:

[L]arge portions of these recordings were entirely incomprehensible

due to the quality of the recordings, mumbling, Appellant’s poor English.

Although an interpreter was present for the second interview, he appeared

to be allowing Appellant to struggle through the interview without

interpreting portions of it. Further, the interpreter was mumbling and was

turned away from the camera. The bulk of the recording was unintelligible.

Appellant’s Brief, p. 15. Santana argues that the “[e]xclusion of these recordings was

mandatory under the Ohio Rules of Evidence, as their probative value was substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.” Id. at 17.

{¶ 37} The State responds that, although Santana speaks in broken English, “he

could both speak understandable English and he understood English and the questions

that were being asked.” Appellee’s Brief, p. 15. According to the State, “Santana

described what happened, and although his English is not perfect, he was

understandable.” Id. Further, the State points out that the trial court reviewed the two

interviews when ruling upon Santana’s motion to suppress, and it noted that one could

determine what Santana was saying in English upon careful listening. Id. at 16. Also,

at oral argument, counsel for the State pointed out that any argument regarding difficulty

in understanding or hearing portions of the two taped interviews would go to the weight
 -17-

to be given the evidence, rather than its admissibility.

{¶ 38} As noted above, the admission or exclusion of relevant evidence is within

the sound discretion of the trial court, and we review that decision for an abuse of

discretion. State v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39.

Normally, potential prejudice is an insufficient basis on which to exclude relevant

evidence. Rather, a trial court may exclude relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice. Evid.R. 403. “Exclusion on

the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair

prejudice simply meant prejudice, anything adverse to the litigant’s case would be

excludable under Rule 403. Emphasis must be placed on the word ‘unfair.’ Unfair

prejudice is that quality of evidence which might result in an improper basis for a jury

decision.” (Citation omitted.) Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172,

743 N.E.2d 890 (2001). For example, “if the evidence arouses the jury’s emotional

sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence

may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence

appeals to the jury’s emotions rather than intellect.” Id.

{¶ 39} We have reviewed the recordings of Santana’s two interviews with police.

Although there are instances in which Santana’s statements are more difficult to

understand than others, we do not agree with Santana’s assertion that the video

recordings are largely unintelligible. Rather, a close listener can discern what Santana

was saying. We note that Santana’s trial counsel quoted rather extensively from

Santana’s recorded interviews during his closing argument at trial. Trial Tr., p. 503-505.
 -18-

Further, Santana has failed to explain on appeal what particular portions of the recordings

could cause unfair prejudice by the jury’s viewing them. On the record before us, we

cannot conclude that the trial court abused its discretion by allowing the admission of the

the recordings of Santana’s interviews with the police.

{¶ 40} Santana also contends in this assignment of error that one of the State’s

comments in its closing argument may have improperly implied that Santana’s decision

not to testify should be held against him. Appellant’s Brief, p. 16-17. He cites page 490

of the trial transcript in support of his contention. In that particular portion of its closing

argument, the State explained:

Now, the evidence that you heard from Ja’shin and this Defendant is

that these three individuals were seated in his car in the pitch darkness, and

that the Defendant saw a light come on in the car. And you heard Ja’shin

explain what that was. They lit a lighter. They were going to light up a

blunt and get high.

And they were sitting in the car. And the next Ja’shin knows is the

door opens, and the Defendant starts shooting. That’s Ja’shin. So we

have two people that were there that can come in here and actually take

that stand and tell you what happened, okay? One is Ja’shin, and that’s

what he told you. The other one is this Defendant.

And what this Defendant told you was he heard voices. He got up

out of bed, and he went and got his gun. That was the first thing he did.

And he didn’t lock the doors. And he didn’t call 911. He went out to the
 -19-

front and he looked around. And he didn’t see anybody. And he tells you

that he’s scared, okay?

(Emphasis added.) Trial Tr., p. 489-490. The State then went on to discuss other

statements Santana made in his interviews with the police.

{¶ 41} While we acknowledge that the State toed the line when it brought up the

fact that Santana could have taken the stand at trial, we do not agree with Santana that

the State crossed the line into improper interference with Santana’s right to a fair trial.

Rather, the State immediately began to explain what Santana’s story to police was, taken

directly from interviews with the police that previously had been played for the jury. In

other words, the State noted that two people were able to explain what had happened

that night, Ja’shin and Santana. Then the State recapped what each said about the night

in question. Therefore, we conclude that the State’s solitary reference to Santana’s

opportunity to “take that stand,” when considered in context, did not violate Santana’s

right to a fair trial.

{¶ 42} Santana’s second assignment of error is overruled.

IV. Santana Was Not Denied His Right to Effective Assistance of Counsel

{¶ 43} Santana’s third assignment of error states:

APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 44} Santana contends that his trial counsel “was ineffective for failing to object

to the playing of the two largely unintelligible and inaudible recorded interviews for the
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jury.” Appellant’s Brief, p. 18.

{¶ 45} To prevail on his ineffective assistance of counsel claim, Santana must

prove that his attorney was ineffective under the standard test from Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To do so, he

must prove that his counsel’s performance was deficient and that he was prejudiced by

that performance. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560,

¶ 10. “Thus, the defendant must demonstrate that counsel’s performance fell below an

objective standard of reasonableness and that there exists a reasonable probability that,

but for counsel’s error, the result of the proceeding would have been different.” Id. The

failure to meet either prong is fatal to an ineffective assistance of counsel claim.

Strickland at 697.

{¶ 46} As we explained in our resolution of Santana’s second assignment of error,

the trial court did not abuse its discretion by admitting into evidence the taped recordings

of Santana’s two interviews with the police. As such, we cannot conclude that the failure

of Santana’s trial counsel to object to the admission of this evidence constituted an error,

let alone that there is a reasonable probability that, but for that alleged error, the result of

the trial proceedings would have been different.

{¶ 47} The third assignment of error is overruled.

V. Santana’s Convictions Were Not Against The Manifest Weight of The Evidence

{¶ 48} Santana’s fourth assignment of error states:

APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
 -21-

WEIGHT OF THE EVIDENCE.

{¶ 49} Santana contends that his convictions were against the manifest weight of

the evidence and “that the evidence simply does not support the felonious assault

charges pertaining to Ja’shin Gibson, as Ja’shin could not see well enough in the garage

to know what was happening, and there was insufficient evidence to support the

contention that Appellant had attempted to shoot at him during this incident.” Appellant’s

Brief, p. 23.

{¶ 50} Before addressing whether Santana’s convictions were against the

manifest weight of the evidence, we must point out that Santana was found not guilty of

the one count of felonious assault relating to Ja’shin Gibson. Therefore, in this

assignment of error, we will only address the counts on which Santana was found guilty.

{¶ 51} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997). However, “[w]here an appellate court

determines that a conviction is not against the manifest weight of the evidence, the

conviction is necessarily based on legally sufficient evidence.” (Citations omitted.)

State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426, ¶ 8.

{¶ 52} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12. When evaluating whether a conviction is against the manifest weight of the

evidence, the appellate court must review the entire record, weigh the evidence and all
 -22-

reasonable inferences, consider witness credibility, 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” such that the conviction must be reversed and a new trial ordered.

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). Because the trier of fact sees and hears the witnesses at trial, we must defer

to the fact finder's decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). A judgment of conviction should be reversed as being

against the manifest weight of the evidence only in exceptional circumstances. Martin

at 175.

{¶ 53} We recognize that, in other assignments of error, Santana challenges the

trial court’s admission of the video from Santana’s two police interviews. However, when

reviewing claims based on the sufficiency or manifest weight of the evidence, we are

required to consider all of the evidence admitted at trial, regardless of whether it was

admitted erroneously. See State v. Fleming, 2d Dist. Clark No. 2021-CA-40, 2022-Ohio-

1876, ¶ 27, citing, e.g., State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d

284. Accordingly, and because we have found that the videos were properly admitted,

we must consider the two interviews as part of our analysis.

{¶ 54} Santana was found guilty of several counts of murder and felonious assault.

Pursuant to R.C. 2903.02(B), a person is guilty of murder if he causes “the death of

another as a proximate result of the offender's committing or attempting to commit an

offense of violence that is a felony of the first or second degree and that is not a violation
 -23-

of section 2903.03 or 2903.04 of the Revised Code.” Pursuant to R.C. 2903.11(A)(1), a

person is guilty of felonious assault if he knowingly causes serious physical harm to

another. Further, pursuant to R.C. 2903.11(A)(2), a person is guilty of felonious assault

if he knowingly causes serious physical harm to another by means of a deadly weapon

or dangerous ordnance.

{¶ 55} At trial, it was uncontested that Santana left his home and went searching

for trespassers that he had seen when looking out the window of his home. He

eventually found them in his detached garage, which was located about 42 feet from his

house. When he entered the garage, he was not confronted or cornered by the

trespassers. Rather, they were sitting in a car with the doors closed. Rather than

returning to his home, Santana continued to the car, opened the back door, and started

shooting. Harrison and Henderson died as a direct result of the gunshot wounds from

Santana’s gun. The overwhelming evidence of record, including the statements made

by Santana during his police interviews, the testimony of Ja’shin Gibson, who was the

only other surviving witness, the testimony of the police officers who were called to the

crime scene and the officer who interviewed Gibson and Santana, and the stipulations at

trial, supported the jury’s guilty verdicts on the felonious assault and murder counts

Further, as we explained above, Santana’s claim of self-defense failed as a matter of law

because he was the first aggressor.

{¶ 56} Upon the record before us, we cannot conclude that Santana’s convictions

were against the manifest weight of the evidence. Therefore, the fourth assignment of

error is overruled.
 -24-

VI. Conclusion

{¶ 57} Having overruled all of Santana’s assignments of error, the judgment of the

trial court is affirmed.

.............

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Charles W. Slicer, III
Hon. Timothy N. O’Connell