[Cite as State v. Adams, 2017-Ohio-1145.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                     :   Hon. W. Scott Gwin, J.
                                               :   Hon. William B. Hoffman, J.
 -vs-                                          :
                                               :   Case No. 2016CA00106
                                               :
 JERMAINE LATIFF ADAMS                         :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No.
                                                   2016CA00106



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            March 27, 2017




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 JOHN D. FERRERO, JR.                              AARON KOVALCHIK
 STARK CO. PROSECUTOR                              116 Cleveland Ave. NW
 RENEE M. WATSON                                   808 Courtyard Centre
 110 Central Plaza S., Ste. 510                    Canton, OH 44702
 Canton, OH 44702-1413
Stark County, Case No. 2016CA00106                                                        2

Delaney, P.J.

       {¶1} Appellant Jermaine Latiff Adams appeals from the April 25, 2016 Judgment

Entry of the Stark County Court of Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on August 16, 2015, when victim Alondo Perry was shot

four times by appellant, his housemate. Perry died as a result of his injuries.

       {¶3} Appellant, his girlfriend Beth Hartsel, and their child lived in a house on 23rd

Street Northwest in Canton. Also living in the house were Alondo Perry, Jessica Smith,

and Carlton Trammel. Smith’s two young children were sometimes present as well.

                                     Carlton Trammel

       {¶4} On August 16, Trammel was sitting in a chair in appellant’s bedroom

watching television, as he was accustomed to do. Appellant and Perry arrived at the

house and knocked on the front door because they did not have a key. Trammel let them

in and all three went into appellant’s bedroom to watch television. Shortly thereafter Perry

took a call on his cell phone and briefly left the room. Upon his return, appellant asked

Trammel to leave the room so he and Perry could talk. Trammel grabbed a cigarette and

left the house through a back door. He walked across the backyard toward a friend’s

house when he heard a muffled sound like “ch-ch-ch” and someone screamed. Trammel

kept walking and “[tried] to think about nothing.” T. 307. He did not return to the house

that night.

       {¶5} Trammel testified that appellant and Perry were not agitated or fighting

when they came into the house or while they were in the bedroom. Trammel was unaware
Stark County, Case No. 2016CA00106                                                      3


of any problem between the two at all and did not become aware of the murder until the

next day.

                                         Jessica Smith

       {¶6} Jessica Smith was arrested on a material witness warrant and reluctantly

testified at trial. Smith lived at the house intermittently and was present on the evening

of August 16, 2015. She heard appellant and Perry come home and go into appellant’s

bedroom. Smith was in a bathroom in the back of the house bathing one of her children

when Beth Hartsel came into the bathroom yelling and locked the door. Smith and Hartsel

gathered the children and led them out of the house.

       {¶7} As they left, Smith saw Perry’s body on the floor. Appellant was sitting on

the steps with a gun in his hand and Smith asked him what happened. Appellant told her

someone tried to rob Perry and told her to call 911. Smith called 911 and said an

ambulance was needed. Smith, Hartsel, and the children left the scene.

                           Conflicting Stories to E.M.T.s and Police

       {¶8} E.M.T.s arrived on the scene first, without police, because the 911 caller

requested medical attention and hung up. First responder Michael Rodriques arrived and

found a man standing on the front porch. The man told him someone inside the house

needed a medic. Rodriques asked, “What’s wrong with him?” and the man responded “I

shot him.” In response to Rodriques’ questions, the man said the victim broke into the

house and they struggled over a gun. Rodriques entered the house and found Perry on

the floor, already deceased. Rodriques called police and started C.P.R. Appellant sat on

the couch and was present when police arrived.
Stark County, Case No. 2016CA00106                                                        4


       {¶9} Ptl. Christopher Wells was among the first police officers on the scene. He

found appellant sitting in a chair, sweating profusely and breathing heavily. Appellant told

Wells he and Perry had argued in a vehicle on their way back to the house; Perry

demanded money from appellant; appellant tried to calm Perry down; Perry jumped on

appellant’s back and tried to reach for cash in appellant’s back pocket, causing appellant

to fall onto the bed. Appellant told Wells he shot Perry because Perry threatened to stab

him with a pair of scissors

                        Appellant’s Videotaped Statements to Detectives

       {¶10} Appellant made a videotaped statement to law enforcement which was

shown to the jury as appellee’s Exhibits 23-A and 23-B. Appellant stated that he and

Perry were related and had known each other for a long time. Perry was from Detroit but

he would often come to Canton on a bus and stayed with appellant. Appellant said Perry

sold weed to make a living and appellant tried to “help him out,” but Perry “acted like

appellant owed him something.” On the day of the murder, he and Perry intended to

travel to Akron to buy marijuana for personal use. Neither man had a driver’s license, so

appellant asked an acquaintance, Bridgette Hill, to drive them in her car.

       {¶11} Hall drove appellant and Perry to a residence in Akron. Appellant told police

this was Perry’s “connection” and he didn’t know the people involved, but the person Perry

wanted to see did not show up. Hall briefly returned to pick the two up, but left again

when they weren’t ready to leave. Hall did not return for several hours, which angered

Perry. When Hall finally returned, Perry was agitated and “talking crazy” to her, to the

extent that she stopped the car at a friend’s house, got out, and refused to accompany
Stark County, Case No. 2016CA00106                                                      5


the men any further.     Appellant proceeded to drive Hall’s car back to the Canton

residence, with Perry, trying to calm him down.

        {¶12} Appellant said that upon their return to the residence, Trammel let them in,

they proceeded to the bedroom, and appellant asked Trammel to leave the room so he

could talk to Perry. Perry, though, knew appellant had $2700 on him that he had intended

to buy “weed” with. Perry told appellant to give him the money and appellant refused.

Appellant said Perry “rushed” him and the two “tussled” back and forth, with Perry

attempting to reach into appellant’s back pants pocket to grab the money. At some point

Perry was on top of appellant on the bed and appellant was able to reach between the

mattress and headboard where his handgun was hidden. Appellant said he grabbed the

gun and “cocked” it, and Perry grabbed a pair of scissors and threatened to stab him with

them.

        {¶13} Appellant said Perry stood in front of the only way out of the bedroom, a

single doorway, with the scissors in his hand. Appellant said he started shooting when

Perry threatened him with the scissors, but aimed low because he only wanted to get

Perry away from him and did not want to kill him. Appellant said he opened the bedroom

door and told Hartsel to call 911.

                                       Physical Evidence

        {¶14} Appellant was found to have $2630.75 in cash in his back shorts pocket.

He had a superficial cut on his left hand and scrapes on his legs which he said were from

mosquito bites. Police collected a D.N.A. standard and a gunshot residue test from

appellant, which ultimately indicated he had recently fired a gun.
Stark County, Case No. 2016CA00106                                                          6


       {¶15} At the residence, police collected a .40 caliber Smith and Wesson

semiautomatic firearm with one round in the chamber and a magazine for the firearm

containing 7 rounds. Four spent shell casings were found in the bedroom. Police also

found one pair of scissors on top of a dresser under some books and a second pair of

scissors on the floor concealed under an article of clothing. The latter pair of scissors

were silver in color with gold handles.

       {¶16} From the coroner, police collected a bullet found in Perry’s body and his

clothing.

       {¶17} The autopsy revealed four entrance wounds. A wound referred to at trial

as “wound six” (based upon the autopsy diagram) was to the victim’s left side. The bullet

traveled through Perry’s body and exited on the right. Due to this injury, two liters of fluid

blood entered Perry’s abdominal cavity, causing him to “bleed out.” This wound alone

would have been fatal.

       {¶18} A second gunshot wound, referred to at trial as “wound seven,” entered

Perry’s abdomen and the bullet was found lodged in his spine. This wound could have

eventually proven fatal and would also have potentially caused neurological issues and

paralysis.

       {¶19} The remaining gunshot wounds, including a shot to the victim’s scrotum,

would not have proven fatal.

       {¶20} Both pairs of scissors were examined for D.N.A. Appellant told police Perry

threatened him with a heavy pair of scissors with gold handles. The pair found on the

dresser yielded a mixture of D.N.A. from more than one person, but the criminalist was

unable to include or exclude appellant or Perry due to the size of the sample. The gold-
Stark County, Case No. 2016CA00106                                                         7


handled scissors contained appellant’s D.N.A. on the blades. The handles had a mixture

of D.N.A. which was not enough for inclusion although Perry was excluded as a

contributor.

                                   Indictment, Trial, and Conviction

       {¶21} Appellant was charged by indictment with one count of murder pursuant to

R.C. 2903.02(B), a felony of the first degree [Count I],1 and one count of having weapons

while under disability pursuant to R.C. 2923.13(A)(3), a felony of the third degree [Count

II]. Count I was accompanied by a firearm specification pursuant to R.C. 2923.13(A)(3).

       {¶22} Appellant entered pleas of not guilty and waived his right to trial by jury upon

Count II. The matter proceeded to jury trial upon Count I, murder, and the firearm

specification. Appellant was found guilty as charged and sentenced to an aggregate

prison term of 20 years to life.

       {¶23} Appellant now appeals from the judgment entry of conviction and sentence

entered in the Stark County Court of Common Pleas on April 25, 2016.

       {¶24} Appellant raises six assignments of error:

                               ASSIGNMENTS OF ERROR

       {¶25} “I.    APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

       {¶26} “II.   THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING

GRUESOME PHOTOS WHICH WERE INFLAMMATORY AND HIGHLY PREJUDICIAL.”




1Appellant was charged with causing the death of Alondo Perry as a proximate result of
committing the offense of felonious assault pursuant to R.C. 2903.11(A)(1) [serious
physical harm] and/or 2903.11(A)(2) [by means of deadly weapon].
Stark County, Case No. 2016CA00106                                                       8


       {¶27} “III.   APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF

PROSECUTORIAL MISCONDUCT.”

       {¶28} “IV. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY

THAT APPELLANT HAD A DUTY TO RETREAT.”

       {¶29} “V. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.”

       {¶30} “VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

ALLOW TESTIMONY TO BE PRESENTED CONCERNING THE VICTIM’S CRIMINAL

RECORD.”

                                       ANALYSIS

                                            I.

       {¶31} In his first assignment of error, appellant argues his murder conviction is

against the manifest weight and sufficiency of the evidence. We disagree.

       {¶32} 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,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
Stark County, Case No. 2016CA00106                                                         9


viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

       {¶33} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶34} Appellant was convicted of one count of murder pursuant to R.C.

2903.02(B), which required appellee to prove appellant caused Perry’s death 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. In this case, the underlying offense

is felonious assault pursuant to R.C. R.C. 2903.11(A)(1) and/or (A)(2), which state, “No

person shall knowingly [c]ause serious physical harm to another * * *, or [c]ause or attempt

to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” Appellant was also convicted of the accompanying firearm specification

pursuant to R.C. 2941.145.
Stark County, Case No. 2016CA00106                                                        10


       {¶35} Appellant argues his convictions are against the manifest weight and

sufficiency of the evidence because he acted in self-defense.2 “To establish self-defense,

the following elements must be shown: (1) the slayer was not at fault in creating the

situation giving rise to the affray * * * [citations omitted]; (2) the slayer has 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 * * * [citations omitted];

and (3) the slayer must not have violated any duty to retreat or avoid the danger, State v.

Peacock, 40 Ohio St. 333, 334 (1883); Graham v. State, 98 Ohio St. 77, 79 [120 N.E.

232] (1918).’” State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d 755 (1979), quoting

State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978).

       {¶36} Appellant argues the evidence at trial supports his claims that he was

assaulted by Perry first, the two struggled, and he had a bona fide belief his life was in

imminent danger due to Perry’s threats with the scissors.3 Appellee responds that the

affirmative defense of self-defense is not available to appellant because, as the jury was

instructed, “[i]f the defendant used more force than was reasonably necessary and if the

force used is greatly disproportionate to the apparent danger, then the defense of self-

defense is not available.” (T. III, 97).

       {¶37} The jury could have reasonably rejected appellant’s self-serving

explanation of events describing Perry as the aggressor.         Appellee’s evidence was



2 Appellant does not challenge his conviction upon Count II, having weapons while under
disability.
3 As appellant points out, and as will be addressed infra, the “duty to retreat” element is

inapplicable because there is no such duty to retreat from one's own home before
resorting to lethal force in self-defense against a cohabitant with an equal right to be in
the home. State v. Thomas, 77 Ohio St.3d 323, 328, 1997-Ohio-269, 673 N.E.2d 1339
(1997).
Stark County, Case No. 2016CA00106                                                        11


undisputed at trial and revealed that appellant told a number of conflicting stories about

events leading to the shooting, only eventually concluding that Perry threatened his life

with scissors. The jury could have reasonably believed appellant was at fault in creating

the situation leading to the murder, or that appellant did not have 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 shooting Perry four times.

       {¶38} In reviewing the evidence in a light most favorable to appellee, we find any

rational trier of fact could find appellant guilty of the essential elements of murder with a

firearms specification beyond a reasonable doubt. Thus, there exists sufficient evidence

to sustain appellant’s conviction upon Count I and the accompanying specification.

Further, upon our review of the entire record, in weighing the evidence and all reasonable

inferences, in considering the credibility of the witnesses and in resolving conflicts in the

evidence, we cannot find the jury clearly lost its way and created a manifest miscarriage

of justice in convicting appellant. His first assignment of error is thus overruled.

                                                 II.

       {¶39} In his second assignment of error, appellant argues the trial court abused

its discretion in admitting autopsy photos which were inflammatory and highly prejudicial.

We disagree.

       {¶40} The admission or exclusion of relevant evidence is a matter left to the sound

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice

to the defendant, a reviewing court should be reluctant to interfere with a trial court’s

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
Stark County, Case No. 2016CA00106                                                         12

In State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), paragraph seven of the

syllabus, the Supreme Court of Ohio held:

                     Properly authenticated photographs, even if gruesome, are

              admissible in a capital prosecution if relevant and of probative value

              in assisting the trier of fact to determine the issues or are illustrative

              of testimony and other evidence, as long as the danger of material

              prejudice to a defendant is outweighed by their probative value and

              the photographs are not repetitive or cumulative in number.

       {¶41} Evid.R. 104 places the trial court in the position of determining admissibility

of evidence. Evid.R. 401 defines “relevant evidence” as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Evid.R. 402 states:

                     All relevant evidence is admissible, except as otherwise

              provided by the Constitution of the United States, by the Constitution

              of the State of Ohio, by statute enacted by the General Assembly not

              in conflict with a rule of the Supreme Court of Ohio, by these rules,

              or by other rules prescribed by the Supreme Court of Ohio. Evidence

              which is not relevant is not admissible.

       {¶42} Further consideration is required under Evid.R. 403(A): “Although relevant,

evidence is not admissible if its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.”

       {¶43} A total of 99 photos were taken during the autopsy of Perry; appellee sought

to admit 22. At trial, appellant generally objected to all of the photos and specifically
Stark County, Case No. 2016CA00106                                                         13


objected to six. Appellant contends the trial court abused its discretion in permitting the

autopsy photos to be shown over objection because there were nine gunshot wounds,

thus “maybe nine photos would be relevant and have probative value” but there can be

“no legitimate purpose” for an additional 13 photos.

       {¶44} We have reviewed the photos admitted in this case, and while the photos

at issue are “unquestionably grisly,” State v. Dixon, 5th Dist. Muskingum CT2013–0055,

2014-Ohio-4235, ¶ 73, appeal not allowed, 142 Ohio St.3d 1448, 2015-Ohio-1591, 29

N.E.3d 1003, their probative value outweighs any prejudice to appellant. “[P]rovided the

probative value of each photograph in the case at bar outweighs its prejudicial impact and

the photograph is neither repetitive nor cumulative in nature, its admission as evidence

will not be disturbed as an abuse of discretion by the trial court.” State v. Morales, 32

Ohio St.3d 252, 258, 513 N.E.2d 267 (1987). The trial court reviewed each photograph

carefully and admitted only those found not to be unnecessarily duplicative. We have

reviewed each of the admitted photos and agree they are not repetitive or cumulative in

nature. See, State v. Dixon, supra, 2014-Ohio-4235 at ¶ 73. Each photo of Perry’s

injuries depicting the number and location of the injuries and the resulting wounds are all

probative evidence of appellant’s purpose to cause death. State v. Mammone, 139 Ohio

St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 102 (2014), cert. denied 135 S.Ct. 959,

190 L.Ed.2d 848 (2015), citing Maurer, supra, 15 Ohio St.3d at 265. The admitted

autopsy photos best illustrate the extent and severity of the victim’s injuries. Dixon, supra.

The trial court did not abuse its discretion in admitting the limited number of photos.

       {¶45} We find the admission of the photographs in this case was relevant and not

unduly prejudicial. See, State v. Woods, 5th Dist. Stark No. 2013CA00176, 2014-Ohio-
Stark County, Case No. 2016CA00106                                                       14

2375; State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-1647; Dixon,

supra, 2014-Ohio-4235.

       {¶46} Appellant’s second assignment of error is overruled.

                                                III.

       {¶47} In his third assignment of error, appellant argues he was denied a fair trial

as a result of prosecutorial misconduct. We disagree.

       {¶48} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596

(1990). In reviewing allegations of prosecutorial misconduct, we must review the

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not provide a

basis for reversal unless the misconduct can be said to have deprived appellant of a fair

trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d 293.

       {¶49} Appellant argues appellee made improper comments in closing argument

which prejudicially affected his right to a fair trial.   Specifically appellant points to

appellee’s comments that he was not crying or upset when he spoke to law enforcement

and that the first shot fired was the fatal shot. We have reviewed the record of each side’s

closing argument, and appellee’s rebuttal, and agree with appellee that both statements

were made in response to appellant’s closing argument. Appellant fails to point to any

improper statement by the prosecutor which is not arguably supported by appellee's

evidence. State v. Meeks, 2015-Ohio-1527, 34 N.E.3d 382, ¶ 103 (5th Dist.), appeal not
Stark County, Case No. 2016CA00106                                                      15

allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40 N.E.3d 1180. In closing argument, a

prosecutor may comment on “what the evidence has shown and what reasonable

inferences may be drawn therefrom.” Id., citing State v. Lott, 51 Ohio St.3d 160, 165, 555

N.E.2d 293 (1990).

       {¶50} Finally, appellant has failed to demonstrate prejudice based upon either of

the prosecutor's comments he cites. “Appellant does not identify any connection between

the alleged misconduct and his conviction. * * * *. [T]he trial court clearly believed, and

the record reflects, that the prosecutor's theory of the case was relevant as to certain

issues. Appellant's pure speculation as to how the jury might overreact to this evidence

is not the kind of ‘but for’ argument that will support a finding of misconduct.” State v.

Carmichael, 7th Dist. Columbiana No. 11 CO 23, 2013-Ohio-2178, 2013 WL 2325849, ¶

14. None of the evidence or arguments cited by appellant are improper, and appellant

cannot demonstrate, even if they were improper, “but for” the evidence and arguments

he would not have been convicted. Having failed to demonstrate a causal connection

between the alleged misconduct and his resulting convictions, appellant cannot

demonstrate reversible error.

       {¶51} Appellant's third assignment of error is overruled.

                                               IV.

       {¶52} In his fourth assignment of error, appellant argues the trial court erred in

providing the instruction upon duty to retreat as part of the instruction on self-defense.

We disagree to the extent that although the duty-to-retreat instruction was given in error,

we find the error to be harmless.
Stark County, Case No. 2016CA00106                                                        16


       {¶53} Appellant concedes he did not object to the pertinent jury instructions

regarding self-defense or to the verdict forms. However, under Crim.R. 52(B), “[p]lain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” In State v. Cooperrider, 4 Ohio St.3d 226, 448

N.E.2d 452 (1983), the Ohio Supreme Court discussed the application of the plain error

doctrine in the context of an allegedly erroneous jury instruction. The Court stated: “ * * *

[A]n erroneous jury instruction ‘does not constitute a plain error or defect under Crim.R.

52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise.’

State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). Additionally, the plain error

rule is to be applied with utmost caution and invoked only under exceptional

circumstances, in order to prevent a manifest miscarriage of justice.” Id. at 227. Finally,

“a single jury instruction should not be judged in isolation but, instead, must be considered

in the context of the overall charge.” State v. Black, 5th Dist. Stark No. ****, 2012-Ohio-

2874, ¶ 29, citing State v. Schlee, Lake App.No.2004–L–070, 2005–Ohio-5117, ¶ 32

(additional citations omitted).

       {¶54} As we noted supra, there is no such duty to retreat from one's own home

before resorting to lethal force in self-defense against a cohabitant with an equal right to

be in the home. State v. Thomas, 77 Ohio St.3d 323, 328, 1997-Ohio-269, 673 N.E.2d

1339 (1997). Appellant argues the outcome would have been different if a “no duty to

retreat” instruction had been given because the superfluous element created an

insurmountable barrier to his ability to demonstrate self-defense. Upon review, we do not

find plain error in the complained of jury instructions because appellant suffered no

material prejudice. See, State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772
Stark County, Case No. 2016CA00106                                                         17

N.E.2d 81, ¶ 77 (2002); State v. Farringer, 5th Dist. Fairfield No. 14-CA-43, 2015-Ohio-

2644, appeal not allowed, 144 Ohio St.3d 1440, 2015-Ohio-5468, 43 N.E.3d 451.

       {¶55} Appellant’s fourth assignment of error is overruled.

                                                 V.

       {¶56} In his fifth assignment of error, appellant argues he received ineffective

assistance of counsel because defense trial counsel failed to object to the portion of the

self-defense instruction regarding duty to retreat. We disagree.

       {¶57} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

       {¶58} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶59} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for
Stark County, Case No. 2016CA00106                                                          18


counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶60} We have already determined the outcome of appellant’s trial would not have

been clearly different if the trial court had not given the duty-to-retreat instruction, supra.

We further find Appellant has failed to establish the second prong of Strickland as well,

i.e., that there is a reasonable probability that, but for counsel's failure to object to the

instruction, the result of the proceeding would have been different. The physical evidence

established appellant responded with four gunshots to repel the threat of a use of

scissors. Therefore, the jury could have found self-defense is not available since the force

used was greatly disproportionate to the apparent danger.

       {¶61} Appellant’s fifth assignment of error is overruled.



                                                 VI.

       {¶62} In his sixth assignment of error, appellant summarily argues the trial court

should have permitted the defense to admit evidence of appellant’s knowledge that Perry

had served time in prison. We disagree.

       {¶63} We recently examined a similar argument in State v. Galloway, 5th Dist.

Delaware No. No. 15 CAC 11 0089, 2016-Ohio-7767, --N.E.3d--, ¶¶ 10-27.                    The

admission or exclusive of relevant evidence rests within the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Self-defense is an

affirmative defense and the burden of going forward with evidence on that issue and the

burden of proof by a preponderance of the evidence, is upon the accused. R.C.

2901.05(A).
Stark County, Case No. 2016CA00106                                                     19


       {¶64} Evid.R. 404(A)(2) governs the admission of evidence concerning character

of a victim and provides as follows:

                    Character evidence generally. Evidence of a person's

             character or a trait of character is not admissible for the purpose of

             proving action in conformity therewith on a particular occasion,

             subject to the following exceptions: * * * (2) Character of victim.

             Evidence of a pertinent trait of character of the victim of the crime

             offered by an accused, or by the prosecution to rebut the same * * *.

       {¶65} Where character evidence is permitted, Evidence Rule 405 governs the

permissible methods for proving character and provides, in pertinent part:

                    Reputation or opinion. In all cases in which evidence of

             character or a trait of character of a person is admissible, proof may

             be made by testimony as to reputation or testimony in the form of an

             opinion. On cross-examination, inquiry is allowable into relevant

             specific instances of conduct. Specific instances of conduct. In cases

             in which character or a trait of a person is an essential element of a

             charge, claim, or defense, proof may also be made of specific

             instances of his conduct.

       {¶66} The Ohio Supreme Court held that specific instances of a victim's prior

conduct are not admissible to prove that a victim was the initial aggressor, regardless of

a defendant's knowledge. State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002).

The Court reasoned that while a victim's “violent propensity may be pertinent to proving

that he acted in a way such that a defendant's responsive conduct satisfied the elements
Stark County, Case No. 2016CA00106                                                          20

of self-defense, no element requires proof of the victim's character or character traits.” Id.

Since a defendant can “successfully assert self-defense without resort to proving any

aspect of the victim's character,” Evid.R. 405(B) “precludes a defendant from introducing

specific instances of the victim's conduct to prove that the victim was the initial aggressor.”

Id.

       {¶67} The Ohio Supreme Court reaffirmed its decision in Barnes finding a victim's

character is not an essential element of a self-defense claim and that Evid.R. 405(A) does

not allow a party to use extrinsic evidence of specific instances of a person's character to

rebut the other party's evidence regarding that person's character. State v. Hale, 119 Ohio

St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864. The Court further held that Evid.R. 405

authorizes the use of specific instances of conduct in two situations: (1) on cross

examination of other party's character witness and (2) in cases where character or a trait

of character of a person is an essential element of a charge, claim, or defense. Id. Neither

is the case here, where appellant argues he should have been permitted to “elicit

testimony from law enforcement” that appellant was aware Perry had spent time in prison.

As appellee points out, Perry’s character is not an essential element of the claim of self-

defense because Evid.R. 405(B) precludes a defendant from introducing specific

instances of the victim's conduct to prove that the victim was the initial aggressor. Barnes,

supra, 94 Ohio St.3d at 23.

       {¶68} Appellant argues summarily such testimony would have been admissible to

demonstrate his state of mind at the time of the incident, but Perry’s alleged propensity

for violence is not an essential element of the defense of self-defense. Galloway, supra,

2016-Ohio-776 at ¶ 23, citing State v. Richards, 5th Dist. Licking No. 2011–CA–00074,
Stark County, Case No. 2016CA00106                                                        21

2012-Ohio-1115, 2012 WL 929662 and State v. Snyder, 5th Dist. Tuscarawas No.

10AP060021, 2011-Ohio-3334, 2011 WL 2586789.

       {¶69} As in Galloway, appellant did not testify and sought to introduce the

evidence through cross-examination of law enforcement. However, courts have not

extended the state of mind exception to witnesses other than a defendant. Id. at ¶ 24,

citing State v. Evans, 8th Dist. Cuyahoga No. 79895, 2002 WL 1041745; State v. Miles,

8th Dist. Cuyahoga No. 81480, 2003-Ohio-2651, 2003 WL 21196552; State v. Mason,

6th Dist. Lucas Nos. L–02–1211, L–02–1189, 2003-Ohio-5974, 2003 WL 22532865. As

the Sixth District stated, “an alleged victim's purported violent nature is not an essential

element of self-defense and therefore, witnesses other than the defendant have no

admissible basis for testifying to specific instances of violent conduct.” State v. Gott, 6th

Dist. Lucas No. L–11–1070, 2013-Ohio-4624, 2013 WL 5728347.

       {¶70} Finally, as appellee points out, appellant could have introduced the

argument of Perry’s alleged propensity for violence through other means. The trial court

ruled appellant could testify to specific instances of Perry’s violent conduct and his

reputation for violent behavior. See, State v. Davis, 5th Dist. Stark No. 2003 CA 429,

2004-Ohio-7056 (the defendant may offer his own testimony regarding specific instances

of the victim’s prior violent conduct in order to establish his state of mind, i.e. his bona

fide belief that he was in imminent danger).

       {¶71} Appellant’s sixth assignment of error is overruled.
Stark County, Case No. 2016CA00106                                                 22


                                   CONCLUSION

      {¶72} Appellant’s six assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Gwin, J. and

Hoffman, J., concurs.
