State v. Gillespie

[Cite as State v. Gillespie, 2017-Ohio-6936.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 11-16-07

v.

BRADLEY R. GILLESPIE, OPINION

DEFENDANT-APPELLANT.

Appeal from Paulding County Common Pleas Court
Trial Court No. CR-16-520

Judgment Affirmed

Date of Decision: July 24, 2017

APPEARANCES:

Timothy C. Holtsberry for Appellant

Joseph R. Burkard for Appellee
Case No. 11-16-07

ZIMMERMAN, J.

{¶1} Defendant-Appellant Bradley R. Gillespie (“Appellant”) appeals his

conviction of two counts of Murder, both unclassified felonies, from the Paulding

County Court of Common Pleas. Appellant alleges six assignments of error related

to the convictions, including: the jury verdict was against the manifest weight of the

evidence; the trial court erred in denying his Crim.R. 29 motion for acquittal; the

trial court erred by not giving a jury instruction for lesser included offenses and/or

a lesser degree of murder when the evidence warranted such instructions; the trial

court erred by not providing jury instructions on self-defense; the trial court erred

by not ruling on Appellant’s request for new trial counsel; and Appellant was denied

effective assistance of counsel at trial. For the reasons that follow, we affirm

Appellant’s convictions.

Statement of the Case and Facts

{¶2} As of January, 2016 Frank Tracy, Jr. (“Frank”) and Hannah Fisher

(“Hannah”) resided together at 119 West Perry Street, Apt. C, in Paulding, Ohio.

Both Frank and Hannah had reputations for being Methamphetamine (“meth”)

users. Appellant had, on occasion, purchased meth from Frank. Further, Appellant

and Hannah were acquaintances through Frank.

{¶3} Sometime during January, 2016, Frank and Appellant had an

altercation, which resulted in Frank pointing an unloaded gun at Appellant’s head

-2-
Case No. 11-16-07

and pulling the trigger.1 Appellant was angry and upset at Frank over the event and

asked his co-worker and ex-girlfriend, Esmeralda Ferguson (“Ferguson”), to borrow

her Glock 40 caliber handgun, to scare Frank for scaring him. Ferguson gave

Appellant her handgun on the evening of February 1, 2016.

{¶4} The next evening, February 2, 2016, Frank, Hannah, and Appellant

were riding together in a red 2016 Jeep regularly used by Frank. The three were

using drugs. At some point while in the Jeep, Appellant shot Hannah and Frank.

Both Frank and Hannah were killed as a result of gunshot wounds to the head.

{¶5} At approximately 1 a.m. on February 3, 2016, Appellant went to the

Community Memorial Hospital in Hicksville, Ohio, and was treated for a laceration

to his right wrist. Dr. Cui treated Appellant at the hospital for a laceration that was

approximately four (4) centimeters in length on Appellant’s right wrist. According

to the medical records produced at trial, Appellant indicated that his wrist injury had

occurred approximately two (2) hours prior to his arrival at the hospital.

{¶6} Appellant returned to work on February 3 and returned Ferguson’s

handgun to her. At trial, Ferguson testified that when she asked Appellant what had

happened with the gun, Appellant responded that he “shot him [Frank] in the head

and threw him in the river.” (09/27/16 Tr., Vol. II, at 449). Ferguson also testified

that Appellant asked to purchase her handgun, but she refused. Ferguson did not

1
Testimony at trial revealed that Appellant was unaware that the gun was unloaded at the time.

-3-
Case No. 11-16-07

immediately contact law enforcement as a result of Appellant’s comments of

shooting Frank.

{¶7} On February 9, 2016, Hannah’s body was located in her apartment. An

autopsy revealed that Hannah died from a single gunshot wound to the head. Crime

scene investigators concluded that Hannah’s body had been pulled into her

apartment, and that the location where her body was discovered was not the location

where she was killed. Investigators determined that there was little blood inside the

apartment, but there was a substantial amount of blood in both the driver and

passenger seats of the red 2016 Jeep, which was located outside of Hannah and

Frank’s apartment.

{¶8} Investigators further determined that the driver’s side window of the

Jeep was broken out and covered with a blanket. Additionally, the blood collected

by investigators from the Jeep revealed Frank’s DNA in the driver’s seat and

Hannah’s DNA in the passenger seat. Investigators also found a spent shell casing

in the rear passenger seat area of the Jeep. The shell casing was later determined to

be from Ferguson’s handgun.

{¶9} Ferguson turned over her Glock handgun to the Paulding Police

Department on March 4, 2016. Ultimately, testing at the Ohio Bureau of Criminal

Investigation (“BCI”) revealed that the handgun contained Frank’s DNA.

-4-
Case No. 11-16-07

{¶10} On March 15, 2016, Frank’s body was discovered along the Maumee

River in Rochester Cemetery near Cecil, Ohio. An autopsy of Frank’s body

revealed that a single gunshot wound to the head was the cause of his death.

{¶11} Appellant was subsequently arrested as a result of the investigation

into Frank and Hannah’s murders.

Procedural History

{¶12} On March 28, 2016, the Paulding County Grand Jury returned a two

count indictment against Appellant, charging him with: Count I, Murder, an

unclassified felony, with a firearm specification; and Count II, Murder, an

unclassified felony, also with a firearm specification. The indictment alleged that

on or about February 3, 2016, Appellant purposely caused the death of Hannah

Fisher and Frank A. Tracy, Jr. The indictment also alleged that Appellant had a

firearm about his person or under his control while committing the offenses.

{¶13} This matter proceeded to a jury trial on September 26, 2016. Prior to

the commencement of trial, defense counsel requested a motion in limine regarding

statements that Appellant made to law enforcement officers who transported him

from the correctional facility to court. On September 27, 2016, the trial court

granted the motion in part, finding that the officers “interrogated” Appellant

impermissibly without advising Appellant of his Miranda rights. However, the trial

court also denied the motion in part, finding that the Appellant had volunteered

-5-
Case No. 11-16-07

certain information to the officers, which did not require the advisement of his

Miranda rights.

{¶14} Also on the 27th of September, defense counsel filed a request for

additional jury instructions on lesser included offenses to the murder charges. On

September 30, 2014 the trial concluded and the jury returned verdicts of “guilty” to

both counts of murder. The jury also found Appellant had a firearm on his person

or under his control for each of the murders.

{¶15} On October 31, 2016 the trial court sentenced Appellant to two

indefinite prison terms, with a minimum sentence of 15 years for each count. The

trial court also imposed the 1 year of mandatory prison time for each firearm

specification. The trial court ordered that the murder and the specification terms to

run consecutively to each other, with the specification terms to be served prior to

the indefinite prison terms. Thus, Appellant was ordered to serve a minimum term

of imprisonment of thirty-two (32) years.

{¶16} From his convictions Appellant timely appealed, and presents the

following assignments of error for our review:

ASSIGNMENT OF ERROR NO. I

THE VERDICT OF THE JURY IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.

-6-
Case No. 11-16-07

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN DENYING APPELLANT’S
CRIMINAL RULE 29 MOTIONS FOR ACQUITTAL WHEN
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE
TO SUSTAIN A CONVICTION.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRORED [SIC] BY NOT GIVING A
JURY INSTRUCTION FOR LESSER INCLUDED CRIMES OR
LESSER DEGREE OF MURDER WHEN THE EVIDENCE
WARRANTED SUCH AN INSTRUCTION.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRORED [SIC] BY NOT PROVIDING
TO THE JURY INSTRUCTIONS REGARDING SELF-
DEFENSE.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRORED [SIC] IN NOT
CONSIDERING OR RULING ON DEFENDANT’S REQUEST
FOR NEW TRIAL COUNSEL.

ASSIGNMENT OF ERROR NO. VI

THE DEFENDANT WAS DENIED HIS RIGHTS UNDER THE
SIXTH AMENDMENT TO EFFECTIVE ASSISTANCE OF
COUNSEL.

Assignment of Error I

{¶17} In his first assignment of error, Appellant alleges that the verdict was

against the manifest weight of the evidence. Specifically, Appellant asserts that the

jury verdict is against the manifest weight of the evidence due to the lack of physical

-7-
Case No. 11-16-07

evidence connecting him to the Red Jeep, to Hannah’s apartment, and to Hannah or

Frank’s bodies. For the reasons set forth below, we disagree.

Standard of Review

{¶18} In analyzing a claim that a conviction is against the manifest weight

of the evidence, an appellate court:

sits as the “thirteenth juror” and may disagree with the fact finder’s
resolution of the conflicting testimony. * * * The appellate court,
“reviewing 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 jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against
conviction.”

State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State

v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶ 14 (citations

omitted). However, in sitting as the thirteenth juror the appellate court should give

due deference to the findings made by the jury. Id.

{¶19} “Weight of the evidence concerns ‘the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds,

they shall find the greater amount of credible evidence sustains the issue which is

to be established before them. Weight is not a question of mathematics, but depends

-8-
Case No. 11-16-07

on its effect in inducing belief.’” (Emphasis omitted.) State v. Thompkins, 78 Ohio

St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting Black’s Law Dictionary

1594 (6th Ed.1990).

{¶20} Furthermore, “[t]o reverse a judgment of a trial court on the weight of

the evidence, when the judgment results from a trial by jury, a unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is

required.” Id., at paragraph 4 of the syllabus, citing Ohio Constitution, Article IV,

Section 3(B)(3).

Relevant Statutory Provisions

{¶21} Appellant was indicted on two counts of Murder, both unclassified

felonies, in violation of R.C. 2903.02(A). R.C. 2903.02(A) states, in its pertinent

part: “No person shall purposely cause the death of another * * *.” R.C. 2903.02(A).

{¶22} Appellant’s indictment also contained a firearm specification as to

each count. Pursuant to R.C. 2941.141(A), the trial court may impose a mandatory

one-year prison term when “ * * * the indictment, or the information charging the

offense specifies that the offender had a firearm on or about the offender’s person

or under the offender’s control while committing the offense. * * * ” R.C.

2941.141(A).

-9-
Case No. 11-16-07

Analysis

{¶23} In our review of the record, we find that the State provided limited

physical evidence connecting Appellant to either Hannah or Frank’s murder scenes.

However, the State did provide a direct link between the Appellant and a handgun

that was used in the murders. Further, the State introduced the statements of

Appellant, through various witnesses, linking him to Hannah and Frank’s murders.

Specifically, Esmeralda Ferguson testified that Appellant confessed to her that “I

shot him [Frank] in the head and threw him in the river.” (09/27/2016 Tr., Vol. II,

at 449). Zachary Deal, an inmate at the Paulding County Jail who shared the same

“pod” with Appellant while the case was pending, testified that Appellant confessed

to him that he [Appellant] was smoking meth with Frank and Hannah and “he

[Appellant] felt disrespected, so he shot Hannah in the head. When Frank turned

around and stabbed him [Appellant], he [Appellant] shot him [Frank] in the head,

too.” (09/28/2016 Tr., Vol. III, at 600).

{¶24} Appellant also made statements to law enforcement officers

implicating himself in the murders. Paulding County Sheriff’s Deputy Robert

Garcia interviewed Appellant on March 20, 2016, and testified at trial that Appellant

admitted to “putting a gun to Frank’s head,” in order to scare him. (09/29/2016 Tr.

at Vol. IV, at 794). Paulding County Sheriff’s Deputy Jonathan Shane Dyson

testified that Appellant admitted to having “the taste of blood in his mouth,” and to

-10-
Case No. 11-16-07

“the effect of the gunshots” on him (Appellant). (Id. at 728). Appellant’s

admissions made to Deputy Garcia and Deputy Dyson were recorded and played for

the jury. (State’s Ex. Nos. 44; 41)

{¶25} It is well stated that “the trier of fact is in the best position to observe

the credibility of the witnesses and the weight of the evidence.” State v. Craun, 158

Ohio App.3d 389, 2004-Ohio-4403, 815 N.E.2d 1141, ¶ 23 (3rd Dist.). Thus, in this

case the jury’s determination of guilt in both murders was based, in part, upon

Appellant’s statements, which was, upon our independent review of the record,

competent and credible evidence of Appellant’s involvement.

{¶26} Further, the State provided the jury with Ferguson’s handgun, together

with the spent shell casing found in the Jeep, which was determined to be the

weapon used in the murders. Thus, in our review of the record we cannot say that

the jury clearly lost its way by finding Appellant guilty of the two counts of murder

with firearm specifications as competent and credible evidence was provided to the

jury to support its verdicts. Accordingly, the first assignment of error is overruled.

Assignment of Error II

{¶27} In his second assignment of error, Appellant argues that the trial court

erred in denying his Crim.R. 29 motions for acquittal because the State failed to

present sufficient evidence to sustain convictions. Specifically, Appellant asserts

that the State failed to present any physical evidence connecting Appellant to the

-11-
Case No. 11-16-07

murders in its case-in-chief, and that upon presenting their defense witnesses, the

State’s case “completely unraveled.” We disagree.

Standard of Review

{¶28} “When an appellate court reviews the record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found that the essential

elements of the crime were proven beyond a reasonable doubt.” State v. Blanton,

2015-Ohio-4620, 48 N.E.3d 1018, ¶ 29 (3rd Dist.), cause dismissed, 145 Ohio St.3d

1420, 2016-Ohio-1173, 47 N.E.3d 165, ¶ 29, citing State v. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47. “In essence, sufficiency is a test of

adequacy.” Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

“‘Whether the evidence is legally sufficient to sustain a verdict is a question of

law.’” State v. Anders, 3rd Dist. Hancock No. 5-16-27, 2017-Ohio-2589, ¶ 32,

quoting Thompkins, supra.

Analysis

{¶29} In our review of this assignment, we must review the evidence

presented in a light most favorable to the prosecution to determine whether any

rational trier of fact could have found that the essential elements of each count of

murder (and specifications) were proven by the State beyond a reasonable doubt. In

-12-
Case No. 11-16-07

doing so, the State must present sufficient evidence that the Appellant purposely

caused the deaths of Frank and Hannah pursuant to R.C. 2903.02(A), and, at such

time, had a firearm on or about his person or under his control.

{¶30} In regard to the death of Hannah, the State offered to the jury the

testimony of Zachary Deal. Deal testified that the Appellant admitted to him that

“he [Appellant] felt disrespected, so he shot Hannah in the head.” (09/28/2016 Tr.,

Vol. III, at 600). Such admission against interest by the Appellant is evidence that

the Appellant purposely caused Hannah’s death by shooting her in the head that any

rational trier of fact could rely upon to convict Appellant of murder with a firearm

specification.

{¶31} The State also offered into evidence Ferguson’s handgun, a spent shell

casing from the handgun (found in the back seat of the Jeep), and Hannah’s DNA,

revealing that Hannah was shot and killed in the Jeep. Kevin Belcik, (“Belcik”) a

forensic scientist at BCI, examined the casing found in the 2016 Jeep. (Id. at 567).

Belcik then test fired Ferguson’s gun and examined the test samples. (Id. at 571).

Belcik found that the test fired casing sample from Ferguson’s gun was a match to

the casing found in the Jeep. (Id.). Additionally, blood collected from the passenger

seat was consistent with Hannah’s DNA profile. (Id. at 709, State’s Ex. No. 39).

As such, as to Hannah’s death, we find the evidence presented was legally sufficient

to sustain a verdict of guilty to murder with a firearm specification.

-13-
Case No. 11-16-07

{¶32} Regarding the murder of Frank, the State presented the testimonies of

Zachary Deal, Esmeralda Ferguson, and Sheriff’s Deputies Garcia and Dyson,

wherein Appellant confessed his culpability. Zachary Deal testified that Appellant

admitted that he “shot [Frank] in the head, too.” (Id. at 600). Ferguson testified that

the Appellant stated that he “shot Frank in the head.” (09/27/2016 Tr., Vol. II, at

449). And Deputies Garcia and Dyson testified that Appellant “put a gun to Frank’s

head” and that Appellant “had the taste of blood in his mouth. (09/29/2016 Tr. at

Vol. IV, at 728; 794). Further, Frank’s DNA was found on Ferguson’s gun which

Appellant possessed for only two days before he returned it. Frank’s DNA was also

found in the driver side seat of the 2016 Jeep. (09/28/2016 Tr., Vol. III, at 707-08).

{¶33} Thus, we find as a matter of law that the prosecution presented legally

sufficient evidence to the jury on Frank’s murder and the firearm specification

through his multiple admissions of guilt and link to the murder weapon. Thus,

legally sufficient evidence exists in the record for any rational trier of fact to find

that the essential elements of murder (with a firearm) were proven beyond a

reasonable doubt in Frank’s murder and the second assignment of error is overruled.

Assignment of Error III

{¶34} In his third assignment of error, Appellant asserts that the trial court

erred by failing to instruct the jury on lesser included offenses or lesser degrees of

murder. Specifically, Appellant asserts that the trial court erred by refusing to give

-14-
Case No. 11-16-07

the jury an instruction on the lesser included offenses of reckless homicide and

voluntary manslaughter.

{¶35} Appellant contends that the testimony concerning his use of

Ferguson’s gun established that he only intended to scare Frank, not kill him, or in

the alternative, that the trial court should have given an instruction on voluntary

manslaughter, because the Appellant acted under the influence of sudden passion or

in a sudden fit of rage, brought on by the serious provocation of the victim. For the

reasons that follow, we find Appellant’s arguments under this assignment are

without merit.

Standard of Review

{¶36} “It is well-established that a trial court has broad discretion in

instructing the jury.” State v. Smith, 10th Dist. Franklin No. 01AP-848, 2002-Ohio-

1479, *2, citing Jenkins v. Clark, 7 Ohio App.3d 93, 100, 454 N.E.2d 541 (2nd

Dist.1982). However, “[t]he court must give all instructions that are relevant and

necessary for the jury to weigh the evidence and discharge its duty as the factfinder.”

State v. Joy, 74 Ohio St.3d 178, 181, 1995-Ohio-259, 657 N.E.2d 503 citing State

v. Comen, 50 Ohio St.3d 206, 210, 553 N.E.2d 640 (1990).

{¶37} “‘In reviewing the sufficiency of jury instructions given by a trial

court, the proper standard of review . . . is whether the trial court’s refusal to give a

requested jury instruction constituted an abuse of discretion under the facts and

-15-
Case No. 11-16-07

circumstances of the case.’” State v. Thompson, 3rd Dist. Henry No. 7-16-10, 2017-

Ohio-792, ¶ 11, quoting Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio

App.3d 89, 2010-Ohio-4173, 940 N.E.2d 993, ¶ 30. An abuse of discretion connotes

more than a mere error of law or an error in judgment. It implies an arbitrary,

unreasonable, unconscionable attitude on the part of the court. State v. Adams, 62

Ohio St.2d, 151, 157, 404 N.E.2d 144 (1980).

Reckless Homicide Jury Instruction

{¶38} R.C. 2903.041(A) states: “no person shall recklessly cause the death

of another * * *.” R.C. 2903.041(A). Reckless homicide may be a lesser included

offense of murder. State v. Day, 8th Dist. Cuyahoga No. 83138, 2004-Ohio-1449,

¶ 47. “Recklessly” under R.C. 2901.22(C) is defined as follows:

A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.

R.C. 2901.22(C). Appellant asserts, while completely denying the murder charges,

even if something did happen the greatest charge he could be convicted of was

reckless homicide, because testimony indicated that Appellant only wanted to scare

Frank, not kill him. Therefore, Appellant contends that the trial court abused its’

-16-
Case No. 11-16-07

discretion by denying him the reckless homicide instruction. We find this argument

to be without merit.

{¶39} As an initial matter, we note that the Ohio Supreme Court has held that

a defendant does not have the right to control whether a jury receives instructions

on lesser included offense. State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18

N.E.3d 1207, ¶ 17. Rather, the law, evidence presented, and the discretion of the

trial judge play a role in whether lesser-included offense jury instructions are

appropriate. Id. at ¶ 21.

{¶40} In our review of the record, the evidence does not support that

Appellant’s shootings of Hannah and Frank were done recklessly. Granted,

Appellant may have borrowed Ferguson’s gun to scare Frank, but the autopsies and

testimony support that the Appellant shot Hannah at point blank range and shot

Frank in the back of the head. Dr. Diane Scala-Barnett (“Dr. Scala-Barnett”) of the

Lucas County Coroner’s Office, performed the autopsy of Frank on March 16, 2016

and testified that Frank died as a result of a single gunshot wound to the back of the

head. (09/28/2016 Tr., Vol. III, at 493, 495). Dr. Jeffrey Hudson (“Dr. Hudson”)

of the Lucas County Coroner’s Office, performed the autopsy of Hannah on

February 11, 2016 and testified that Hannah died as a result of a gunshot wound to

the left side of her forehead/temple. (Id. at 509-10). These findings, coupled with

Zachary Deal’s testimony that Appellant admitted to shooting both Hannah and

-17-
Case No. 11-16-07

Frank in the head because he felt “disrespected,” support that the trial court was not

unreasonable in failing to instruct the jury on reckless homicide. (09/28/2016 Tr.,

Vol. III, at 600). Accordingly, Appellant’s assertion that the trial court should have

instructed the jury on reckless homicide is without merit.

Voluntary Manslaughter Jury Instruction

{¶41} Voluntary Manslaughter is an inferior degree offense to murder. See

generally, State v. Manley, 3rd Dist. Allen No. 1-01-159, 2002-Ohio-5582, ¶ 10. A

defendant may mitigate a charge of murder to manslaughter if “the defendant

establishes the mitigating circumstances of sudden passion or a sudden fit of rage in

response to serious provocation by the victim sufficient to incite the defendant to

use deadly force.” (Emphasis added). Id. A defendant is entitled to a jury

instruction on voluntary manslaughter where the evidence presented at trial would

reasonably support both an acquittal on the crime charged and a conviction upon the

inferior degree offense. Id. When determining whether an instruction on an inferior

degree of murder should have been given, the same test for whether an instruction

on a lesser-included offense should have been given is utilized. State v. Shane, 63

Ohio St.3d 630, 632, 590 N.E.2d 272 (1992).

{¶42} In our review of the record, we find that the evidence does not support

the jury being instructed on voluntary manslaughter. Appellant argues that Frank’s

act of placing an unloaded gun to his (Appellant’s) head and pulling the trigger is

-18-
Case No. 11-16-07

an act sufficient to incite a sudden passion or sudden fit of rage justifying him in

shooting both Frank and Hannah in the head. This argument lacks reason under the

facts presented.

{¶43} In making his “sudden fit of rage” argument, Appellant ignores the

“sudden” requirement set forth in the voluntary manslaughter statute. Testimony at

trial revealed that the incident (wherein Frank put a gun to Appellant’s head)

occurred sometime in mid-January, 2016. (09/29/16 Tr., Vol. IV, at 793, State’s

Ex. 44). However, evidence presented at trial established that Frank and Hannah

were murdered in early February, 2016, more than two weeks after the incident.

(09/28/2016 Tr., Vol. III, at 516). Thus, the passage of time between Frank’s scaring

of Appellant and Appellant’s retaliation resolves this argument.

{¶44} The Ohio Supreme Court held in State v. Mack, “[p]ast incidents or

verbal threats do not satisfy the test for reasonably sufficient provocation when there

is sufficient time for cooling off.” State v. Mack, 82 Ohio St.3d 198, 201, 1998-

Ohio-375, 694 N.E.2d 1328, citing State v. Huertas, 51 Ohio St.3d 22, 31-32, 553

N.E.2d 1058 (1990). In determining what constitutes a sufficient time for cooling

off, it has been consistently held that the cooling off period is a very short time span.

E.g., State v. Kanner, 7th Dist. Monroe No. 04 MO 10, 2006-Ohio-3485, ¶ 28 (in

examining what constitutes an adequate “cooling off” time span, the court recited

case law from different districts that held anything from the few seconds it takes to

-19-
Case No. 11-16-07

reload a gun to the time it takes to drive home and retrieve a weapon is a sufficient

“cooling off” period).

{¶45} Accordingly, because Appellant had sufficient time to “cool off” from

the January incident with Frank, we are unpersuaded that an instruction on voluntary

manslaughter was appropriate. Thus, we find that the trial court did not abuse its

discretion by refusing to give an instruction on voluntary manslaughter and we

overrule Appellant’s third assignment of error.

Assignment of Error IV

{¶46} In his fourth assignment of error, Appellant contends that the trial

court erred by not instructing the jury on self-defense. Appellant asserts that

because the evidence supported that Appellant was afraid of Frank after Frank put

an unloaded gun to his head, the trial court should have instructed the jury on self-

defense.

{¶47} Self-defense is an affirmative defense. State v. Martin, 21 Ohio St.3d

91, 93, 488 N.E.2d 166 (1986). “R.C. 2901.05(C)(2) defines an affirmative defense

as ‘[a] defense involving an excuse or justification peculiarly within the knowledge

of the accused, on which he can fairly be required to adduce supporting evidence.’”

Id. The burden of proving an affirmative defense, by a preponderance of the

evidence, is on the defendant. Id. See generally, State v. Smith, 3rd Dist. Logan

-20-
Case No. 11-16-07

No. 8-12-05, 2013-Ohio-746, ¶ 16 (listing the elements that a defendant must show

to establish a claim of self-defense).

{¶48} To prove a claim of self-defense, a defendant must establish, by a

preponderance of the evidence, the following: “(1) that he was not at fault in giving

rise to the affray, (2) that he had a bona fide belief that he was in imminent danger

of death or great bodily harm and that his only means of escape was the use of such

force, and (3) that he did not violate any duty to retreat or avoid the danger.” State

v. Jackson, 22 Ohio St.3d 281, 282, 490 N.E.2d 893 (1986). “Preponderance of the

evidence” means the greater weight of the evidence. Dawson v. Anderson, 121 Ohio

App.3d 9, 13, 698 N.E.2d 1014 (10th Dist.1997).

{¶49} At the outset, we note that Appellant failed to request a jury instruction

for self-defense. “The failure to raise an issue at trial acts as a waiver of the issue

on appeal except for plain error.” Deutsche Bank Natl. Trust Co. v. Sopp, 2016-

Ohio-1402, 62 N.E.3d 863, ¶ 8 (10th Dist.) citing Cleveland v. Ellsworth, 8th Dist.

Cuyahoga No. 83040, 2004-Ohio-4902, ¶ 8. “‘Plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.’” State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978) quoting

Crim.R. 52(B). Plain error should be applied cautiously and only in exceptional

circumstances. Id. Plain error should be applied only to avoid a clear miscarriage

-21-
Case No. 11-16-07

of justice, and but for the error, the outcome of the trial clearly would have been

otherwise. Id. at 97.

{¶50} In our review of the record, Appellant has not established that “the

outcome of the trial clearly would have been otherwise” had the trial court given an

instruction on self-defense. We find that there is no evidence in the record to support

Appellant’s argument that a situation involving the need for self-defense arose at or

near the time of Frank and Hannah’s murders. Not only has Appellant failed to

provide us with evidence of plain error, he also failed to establish by a

preponderance of the evidence that he acted in self-defense by shooting Frank

and/or Hannah. Accordingly, we overrule Appellant’s fourth assignment of error.

Assignment of Error V

{¶51} In Appellant’s fifth assignment of error, Appellant asserts that the trial

court erred in not considering or ruling on his request for new trial counsel.

Appellant asserts that prior to trial, there was a complete breakdown in his attorney-

client relationship, and as a result his trial counsel should have been replaced.

Appellant also asserts that he sent letters to the trial court relative to the breakdown,

and the trial court erred by failing to rule on Appellant’s request. We disagree.

Standard of Review

{¶52} “‘An indigent defendant has no right to have a particular attorney

represent him and therefore must demonstrate ‘good cause’ to warrant substitution

-22-
Case No. 11-16-07

of counsel.’” State v. Cowans, 87 Ohio St.3d 68, 72, 1999-Ohio-250, 717 N.E.2d

298, quoting United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). “‘[T]he trial

judge may * * * [deny the requested substitution and] require the trial to proceed

with assigned counsel participating if the complaint * * * is unreasonable.’” Id. at

72, 73, quoting State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), syllabus.

“The trial court’s decision is reviewed under an abuse of discretion standard.” Id.

{¶53} “Under an abuse of discretion standard, a lower court’s decision will

not be reversed for mere error, but only when the court’s decision is unreasonable,

arbitrary, or unconscionable.” Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-

4542, 3 N.E.3d 144, ¶ 9. Given that the abuse of discretion standard is a deferential

review, “[i]t is not sufficient for an appellate court to determine that a trial court

abused its discretion simply because the appellate court might not have reached the

same conclusion or is, itself, less persuaded by the trial court’s reasoning process

than by countervailing arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, ¶ 14. If there is some competent, credible evidence to

support the trial court’s decision, there is no abuse of discretion. Middendorf v.

Middendorf, 82 Ohio St.3d 397, 401, 1998-Ohio-403, 696 N.E.2d 575.

{¶54} “‘Factors to consider in deciding whether a trial court erred in denying

a defendant’s motion to substitute counsel include the timeliness of the motion; the

adequacy of the court’s inquiry into the defendant’s complaint; and whether the

-23-
Case No. 11-16-07

conflict between the attorney and client was so great that it resulted in a total lack

of communication preventing an adequate defense.’” State v. Beadle, 3rd Dist.

Hancock No. 5-13-08, 2013-Ohio-5659, ¶ 17, quoting State v. Jones, 91 Ohio St.3d

335, 342, 2001-Ohio-57, 744 N.E.2d 1163.

Analysis

{¶55} While Appellant asserts that the trial court abused its discretion in not

ruling on Appellant’s motion, Appellant has provided no record of his handwritten

letters for us to review. Other than the assertion that he wrote letters to the trial

court requesting new counsel, and one reference to the sentencing transcript that

indicated that he was not happy with his trial counsel (after being convicted of two

counts of Murder), the record before us is void of any evidence to support this

assignment of error.

{¶56} In essence, Appellant offers no support, either legal or factual, for his

assertion that the trial court erred by failing to replace his trial counsel or rule on his

handwritten requests. “‘The court may disregard an assignment of error presented

for review if the party raising it fails to identify in the record the error on which the

assignment is based * * *.’” Gianetti v. Teakwood, Ltd., 10th Dist. Franklin No.

15AP-413, 2016-Ohio-213, ¶ 30 quoting App.R.12(A)(2). “‘It is the duty of the

appellant, not the appellate court, to construct the legal arguments necessary to

support the appellant’s assignments of error.’” Id. quoting Bond v. Canal

-24-
Case No. 11-16-07

Winchester, 10th Dist. Franklin No. 07AP-556, 2008-Ohio-945, ¶ 16. As it is not

this court’s duty to search the record for some evidence related to his handwritten

motions to support Appellant’s argument, we conclude our analysis and overrule

Appellant’s fifth assignment of error.

Assignment of Error VI

{¶57} Lastly, Appellant contends that he was denied the effective assistance

of counsel, because Appellant did not believe that his attorneys were giving him an

adequate defense. Appellant further asserts that he disagreed with his defense

counsel’s strategy, which resulted in a breakdown of the attorney-client relationship

and their “nearly non-existent” communication. Finally, Appellant criticizes his

defense counsel’s performance at trial as being ineffective. We disagree with

Appellant that he was denied effective assistance of counsel.

Standard of Review

{¶58} “‘When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that the counsel’s representation fell

below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d

150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466

U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must

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

-25-
Case No. 11-16-07

errors, the result of the proceedings would have been different.’” Id., at 694. See

also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).

{¶59} In analyzing a claim for ineffective assistance of counsel, this court’s

scrutiny of counsel’s performance must be highly deferential, with a “‘strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687-

88. “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel’s

performance.” Id.

Analysis

{¶60} We again begin our analysis noting that Appellant reiterates his

arguments from his previous assignments of error with the notion that his trial

counsel’s performance was deficient. However, Appellant cannot direct us to any

specific instance in the record to support that his counsels’ representation fell below

an objective standard of reasonableness.

{¶61} Thus, the specific complaints Appellant makes in this assignment of

error are unpersuasive. Each of the alleged deficiencies – spending too little time

with Appellant for trial preparation, not requesting jury instructions on self-defense

and voluntary manslaughter, and the fact that the trial court had to remind

-26-
Case No. 11-16-07

Appellant’s counsel to make Crim.R. 29 motions, standing alone and together, fall

“‘within the wide range of reasonable professional assistance.’” State v. Bradley,

42 Ohio St.3d 136, 143-44, 538 N.E.2d 373 (1989) quoting Strickland, supra.

{¶62} Contrary to Appellant’s arguments, the record is replete with examples

of his trial counsel providing reasonable representation. For example, Appellant’s

trial counsel successfully limited Appellant’s statements to law enforcement

officers through a motion in limine. (08/27/2016 Tr., Vol. II, at 226). Further,

Defense counsel presented two fact witnesses on Appellant’s behalf at trial.

(09/29/2016 Tr., Vol. IV, at 823; 842). Additionally, Appellant’s counsel filed

numerous pretrial motions including: a Motion for Appropriation of Investigator

Funds; a Motion in Limine Regarding Statement of Defendant; a Motion for

Defendant to Appear in Street Clothes; and a Motion to Prohibit Expressive

Clothing by Courtroom Spectators. (Doc. Nos. 20, 63, 64, 87).

{¶63} In our review of the record, we find that Appellant’s trial counsel acted

within a reasonable degree of professional representation, and as such, we find

Appellant’s argument regarding ineffective assistance is without merit.

{¶64} Accordingly, Appellant’s sixth assignment of error is overruled.

-27-
Case No. 11-16-07

{¶65} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr

-28-