[Cite as State v. Gibson, 2018-Ohio-3809.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2017-CA-47
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-67
                                                   :
 KLAIN A. GIBSON                                   :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 21st day of September, 2018.

                                              ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Klain A. Gibson, appeals from his conviction in the

Greene County Court of Common Pleas after a jury found him guilty of felonious assault.

In support of his appeal, Gibson contends that his conviction was not supported by

sufficient evidence and was against the manifest weight of the evidence. Gibson also

contends that the trial court’s response to a question posed by the jury during

deliberations amounted to plain error and that the trial court should have granted his

Crim.R. 33 motion for new trial based on that error. For the reasons outlined below, the

judgment of the trial court will be affirmed.

                            Facts and Course of Proceedings

       {¶ 2} On February 13, 2017, Gibson was indicted for one count of felonious assault

in violation of R.C. 2903.11(A)(2), with an attendant three-year firearm specification. The

charge and specification stemmed from allegations that Gibson shot Gregory Smith with

a .9-millimeter handgun at a residence in Xenia, Greene County, Ohio. Gibson pled not

guilty to the charge and the matter proceeded to a jury trial.

       {¶ 3} A majority of the facts testified to at trial are not in dispute. In August or

September 2016, Gibson’s friend, De’Eric Gill, and Gill’s girlfriend, Shannon Walker,

moved into a rental house located in Xenia. Shortly thereafter, Gill and Walker ended

their relationship.   In November 2016, Gill moved out of the Xenia residence and

returned to his original home in Cincinnati. Walker stayed at the Xenia residence, but

was scheduled to move out on January 30, 2017.

       {¶ 4} On January 29, 2017, the day before Walker was to move out of the Xenia

residence, Walker’s best friend, Aubree Lewis, and Walker’s new love interest, Gregory
                                                                                       -3-


Smith, came over to the residence to help Walker box up her belongings. After helping

Walker, Lewis and Smith stayed the night. Lewis slept on the couch and Smith slept

upstairs in Walker’s bedroom.

      {¶ 5} Early the next morning, Walker took her 13-year-old daughter to school.

When Walker returned home, Lewis and Smith were still sleeping. Shortly after her

return, Walker saw Gill pull up outside the house in his mother’s vehicle. Walker then

heard Gill banging on her front door.

      {¶ 6} Walker testified that she had previously told Gill to retrieve a box of his

belongings that he had left at the residence. Walker, however, claimed that she was

unaware Gill was planning to come to her residence that morning. Walker also testified

that she suspected Gill knew Smith was at her residence, since Smith posted a message

on her Facebook page at 3:00 a.m. and Gill posted the same message on his Facebook

page 20 minutes later.

      {¶ 7} After Gill started banging on the front door, Walker woke up Smith and told

him that her ex-boyfriend, Gill, was outside. Walker and Smith then walked downstairs,

and Walker opened the front door with Smith standing behind her. After opening the

front door, Walker let Gill and his companion, Gibson, inside the residence. Once Gill

and Gibson were inside the residence, Walker showed Gill where his belongings were

located. During this time, Gill and Walker began to argue. It is undisputed that Smith

and Gibson were not initially involved in the argument.

      {¶ 8} As Walker argued with Gill, Walker told Gill to take his belongings and leave.

Walker and Smith testified that Gill then directed his attention toward Smith. Walker

testified that Gill asked Walker who Smith was, and Smith recalled Gill calling him a
                                                                                            -4-


“motherf****r.” Trans. Vol. 2 (Apr. 18, 2017), p. 261. Smith and Walker both testified

that Smith never threatened or yelled at Gill, but simply told Gill to get his belongings and

leave. Thereafter, Walker and Smith testified that Gibson started walking toward Smith

and that Walker blocked Gibson’s path. Both Walker and Smith claimed that Gibson

then pulled out a silver handgun and fired multiple shots in their direction.

       {¶ 9} After the shots were fired, Smith and Walker testified that Smith fell to the

ground and that Gibson attempted to pistol whip Smith with the gun. Walker testified that

she was on top of Gibson trying to get him off of Smith. Smith testified that he was on

the ground lying on his back trying to fight off Gibson. During this time, Smith claimed

he was able to knock Gibson’s gun from his hand.

       {¶ 10} After Gibson’s gun was knocked from his hand, Walker and Smith heard

Gibson tell Gill to get his gun. Smith testified that he then saw Gill grab Gibson’s gun.

In addition to Gibson’s gun, Smith and Walker testified that Gill also had a black and silver

handgun, which Gill pressed against Smith’s neck while Smith was lying on the ground.

Walker claimed that it looked like Gill was trying to shoot Smith, but Gill’s gun did not fire.

Smith and Walker then testified that Gill grabbed his box of belongings and left the

residence with Gibson, who kicked Smith just before leaving.

       {¶ 11} After Gill and Gibson left the scene, Smith and Walker realized that Smith

had been shot during the altercation. Lewis, who did not testify at trial, called 9-1-1 as

Walker tended to Smith.       Smith was then taken to the hospital by ambulance and

received treatment for a gunshot wound. According to Smith, a bullet went into his left

arm, through his chest, and lodged in his spinal cord. As a result of the injury, Smith is

permanently paralyzed from the waist down.
                                                                                          -5-


        {¶ 12} Gibson testified in his defense at trial and admitted to carrying a silver .9-

millimeter handgun into the Xenia residence and firing multiple shots at Smith. Gibson,

however, claimed that he fired the shots in self-defense. In support of this claim, Gibson

and Gill testified that the second gun, described as a silver and black .380-millimeter

handgun, belonged to Smith, not Gill. Both Gibson and Gill testified that Smith pulled

out the .380-millimeter handgun first while Gill and Walker were arguing. In contrast,

Walker and Smith testified that Smith never had a gun and never threatened Gibson or

Gill.

        {¶ 13} When describing his version of events at trial, Gibson testified that he

entered the residence with Gill, sat on the couch, and “zoned out” while Gill and Walker

argued. Trans. Vol. 5 (Apr. 19, 2017), p. 1008. Gibson claimed that he “zoned out” for

five minutes until he heard Gill say: “What’s you pulling your gun out for, Bro?” Id. at

1008-1009. At that point, Gibson claimed he noticed Smith had a silver and black .380-

millimeter handgun in his hand.

        {¶ 14} Continuing, Gibson testified that Smith did not initially point the gun at

anyone. However, as a precautionary measure, Gibson testified that he covertly pulled

out his .9-millimeter handgun and placed it behind his leg while he was sitting on the

couch. Gibson testified that Smith then started to walk toward him and that it looked as

if Smith was going to pull up his gun and shoot at him. In response, Gibson testified that

he stood up from the couch and started shooting his .9-millimeter handgun at Smith.

According to Gibson, he and Smith fired simultaneously at each other.

        {¶ 15} Once out of ammunition, Gibson testified that he dropped his .9-millimeter

handgun, grabbed Smith’s .380-millimeter handgun, and swept Smith’s legs from under
                                                                                           -6-


him, causing Smith to fall on the ground. At that time, Gibson claimed he and Smith

began fighting on the ground for possession of the .380-millimeter handgun. Gibson

claimed the .380-millimeter handgun came out of both their hands and that Gill picked it

up. Gibson testified that he then grabbed his .9-millimeter handgun and put it in Gill’s

box of belongings.     According to Gibson, Gill thereafter put Smith’s .380-millimeter

handgun in the box as well. Gibson claimed that he and Gill then left the house, and that

Gill put the box containing the guns in the trunk of his car before they left the scene.

       {¶ 16} Unlike Gibson, Gill testified that Smith pulled out the .380-millimeter

handgun as soon as they walked in the house to get his belongings. According to Gill,

Smith pointed the .380-millimeter handgun in Gibson’s face, and Gill then tried to grab

the gun and push it away. Immediately thereafter, Gill testified that he heard multiple

gunshots. Gill claimed that he never saw Gibson with a gun and did not see who fired

the shots, but assumed it was Smith. Gill testified that Smith’s .380-millimeter handgun

fell out of his hand while Smith and Gibson were fighting on the ground. Gill claimed that

he picked up the .380-millimeter handgun to disarm Smith and placed it in his box of

belongings. Gill also claimed that he left the house before Gibson and that he never put

a .9-millimeter handgun in the trunk of his car.

       {¶ 17} Shortly after leaving the residence, Gibson and Gill were stopped by Xenia

police officers while driving northwest on West Ankeney Street. Upon stopping Gill’s

vehicle, the officers discovered a .9-millimeter unspent bullet in plain view on the

passenger seat where Gibson was sitting. After obtaining a search warrant, the officers

also discovered Gibson’s silver .9-millimeter handgun and the silver and black .380-

millimeter handgun in a box located in the trunk of Gill’s car.        The .380-millimeter
                                                                                          -7-


handgun had an unspent round jammed in its chamber.

         {¶ 18} The officers also discovered four .9-millimeter shell casings and one .380-

millimeter shell casing in the living room of the Xenia residence. In addition, the officers

discovered a .45-millimeter unspent bullet in an ashtray belonging to Gill in Walker’s

upstairs bedroom. The investigating detectives testified that the .45-millimeter bullet was

not of interest given that it did not match any of the shell casings in the living room where

the shooting occurred. The .45-millimeter bullet was also not of interest to the detectives

because it was stuck inside the ashtray, indicating the bullet had been there for some

time. Walker also testified that the .45-millimeter bullet was old, as she claimed it was

from a box of bullets that she had purchased for Gill when she lived in Dayton. According

to Walker, neither she nor Gill ever kept a gun at the Xenia residence.

         {¶ 19} Gunshot residue analysis performed on swabs taken from Gibson’s and

Gill’s hands after the shooting established that both Gibson and Gill had gunshot residue

on their hands. The expert who performed the gunshot residue analysis testified that the

residue on Gill’s and Gibson’s hands indicated that Gill and Gibson either shot a gun,

were in the immediate vicinity of a gunshot, or had touched a gun that had recently been

fired.

         {¶ 20} DNA testing confirmed that Gibson was the main contributor of DNA on the

.9-millimeter handgun. In contrast, a mixed DNA profile was obtained for the .380-

millimeter handgun, which excluded Smith, Gibson, and Gill as major DNA contributors.

However, the State’s DNA expert testified that such a result does not necessarily indicate

that Smith, Gibson, or Gill never touched the .380-millimeter handgun.

         {¶ 21} The State’s DNA expert also testified that the major contributor of DNA on
                                                                                             -8-


the .380-millimeter handgun was an individual named Martinez Taylor. According to the

DNA expert, Taylor’s DNA was in a bank of criminal DNA profiles kept by the Ohio Bureau

of Criminal Investigation.    Detective Matthew Dray of the Xenia Police Department

testified that Taylor was on probation in Montgomery County and could not be located for

questioning. Both Smith and Walker testified that they did not know anyone by the name

of Martinez Taylor.

       {¶ 22} At the close of the State’s case, Gibson moved for acquittal pursuant to

Crim.R. 29, alleging that the evidence was insufficient. The trial court overruled this

motion. The defense then called two witnesses, Gibson and Gill, who testified to a

different version of events, as described below. Gibson did not renew his Crim.R. 29

motion at the close of evidence.

       {¶ 23} At the close of trial, the parties gave their closing arguments and the trial

court provided the jury with its final jury instructions, which included an instruction on self-

defense. During deliberations, the jury wrote a note to the trial court asking: “If a person

acted in self-defense, but helped contribute to the situation does that delete out the

self[-]defense?”

       {¶ 24} The trial court provided a written response to the jury’s question, which

stated: “You must apply the facts as you find them to be[.] As to w[h]ether the defendant

has proven by the greater weight of the evidence the affirmative defense of self[-]defense

[i]s defined in your instructions beginning on page 7.” The trial court’s written response

also included a notation stating that the response was “approved by all parties.”1


1The jury’s note and the trial court’s response were made part of the record via a May
17, 2018, judgment entry. See Judgment Entry (May 17, 2018), Case No. 2017 CR
0067, Docket No. 77.
                                                                                            -9-


       {¶ 25} Following deliberations, the jury found Gibson guilty as charged.

Thereafter, Gibson filed a Crim.R. 33 motion for new trial. In the motion, Gibson claimed

his trial counsel had had a post-verdict discussion with some of the jurors that indicated

the jurors had incorrectly applied the law of self-defense. According to Gibson, his trial

counsel’s discussion with the jurors revealed that a majority of the jurors found that Smith

pointed a gun at Gibson first and that Gibson fired his gun at Smith in order to defend

himself.   However, the jurors allegedly told Gibson’s counsel that because Gibson

carried a gun into the residence, they believed he contributed to the violent situation and

thus could not establish a claim of self-defense.

       {¶ 26} In light of this information, Gibson argued in his motion for new trial that the

jurors incorrectly applied an additional element to the law of self-defense, specifically, that

Gibson had to be unarmed to establish self-defense. Gibson also argued that the jurors’

mistake was perpetuated by the trial court’s response to the jury’s question regarding self-

defense. According to Gibson, the trial court should have simply responded “no” to the

jury’s question.

       {¶ 27} The trial court overruled Gibson’s motion for new trial on grounds that the

motion was barred by the aliunde rule and Evid.R. 606(B). The trial court then sentenced

Gibson to three years in prison for felonious assault and three years in prison for the

firearm specification. The prison terms were ordered to run consecutively for a total

prison term of six years.

       {¶ 28} Gibson appeals from his conviction, raising three assignments of error for

review.
                                                                                         -10-


                               First Assignment of Error

       {¶ 29} Gibson’s First Assignment of Error is as follows:

       GIBSON’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE AND BASED ON INSUFFICIENT EVIDENCE.

       {¶ 30} Under his First Assignment of Error, Gibson contends his conviction for

felonious assault was not supported by sufficient evidence and was against the manifest

weight of the evidence.

       {¶ 31} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.) Id.

       {¶ 32} In contrast, “[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.” (Citation omitted.) Wilson at ¶ 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 reasonable inferences, consider
                                                                                           -11-


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 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). A judgment of

conviction should be reversed as being against the manifest weight of the evidence only

in exceptional circumstances. Martin at 175.

       {¶ 33} As a preliminary matter, we note that Gibson failed to preserve his

insufficiency argument by not renewing it at the close of evidence. See State v. Goney,

2d Dist. Greene No. 2017-CA-43, 2018-Ohio-2115, ¶ 71, citing State v. Zimpfer, 2d Dist.

Montgomery No. 26062, 2014-Ohio-4401, ¶ 42. The record indicates that Gibson moved

for acquittal at the close of the State’s case-in-chief, the trial court denied the motion, and

Gibson then presented the testimony of two defense witnesses. However, after resting,

Gibson failed to renew his Crim.R. 29 motion for acquittal. “It is generally accepted in

Ohio that if counsel fails to make and renew a Crim.R. 29 motion during a jury trial, the

issue of sufficiency is waived on appeal.” Goney at ¶ 71, citing State v. Richardson,

2016-Ohio-8081, 75 N.E.3d 831, ¶ 16 (2d Dist.).

       {¶ 34} Nevertheless, even if Gibson had renewed his Crim.R. 29 motion, upon

review, we find that his argument on appeal is actually confined to a manifest weight

claim. This is because Gibson does not claim the State failed to prove an element of

felonious assault. Rather, Gibson merely argues the evidence weighs heavily against

his conviction because the greater weight of the evidence demonstrated that he acted in

self-defense. We disagree.

       {¶ 35} “Self-defense is an affirmative defense, which means that the burden of
                                                                                           -12-


going forward is on the defendant who must prove each element by a preponderance of

the evidence.” (Citations omitted.) State v. Kimmell, 3d Dist. Wyandot No. 16-10-06,

2011-Ohio-660, ¶ 19. Accord State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 23 (2d

Dist.) “Affirmative defenses such as self-defense ‘ “do not seek to negate any elements

of the offense which the State is required to prove” but rather they “admit[ ] the facts

claimed by the prosecution and then rel[y] on independent facts or circumstances which

the defendant claims exempt him from liability.” ’ ” State v. Oates, 2013-Ohio-2609, 993

N.E.2d 846, ¶ 10 (3d Dist.), quoting State v. Smith, 3d Dist. Logan No. 8-12-05, 2013-

Ohio-746, ¶ 32, quoting State v. Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986).

Accord Brown at ¶ 23.

       {¶ 36} “To establish self-defense, a defendant must introduce evidence showing

that: (1) he was not at fault in creating the violent situation; (2) he had a bona fide belief

that he was in imminent danger of bodily harm; and (3) he did not violate any duty to

retreat or avoid the danger.” State v. Thomason, 2018-Ohio-1228, ___ N.E.3d ___, ¶ 24

(2d Dist.), citing State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997).

(Other citation omitted.) Therefore, “[t]o support a claim for self-defense, a defendant

must demonstrate that he acted out of fear, or he felt that his life was threatened.” State

v. Crawford, 2d Dist. Montgomery No. 22314, 2008-Ohio-4008, ¶ 26.

       {¶ 37} In this case, Gibson relies on his and Gill’s version of events to support his

self-defense claim.     Specifically, Gibson contends that during a heated argument

between Gill and Walker, Smith pulled out a gun and pointed it at Gibson, which caused

Gibson to fear for his life and shoot Smith with his own gun.       Gibson therefore claims

that Smith created the situation by pulling out a gun first and pointing it at him. Gibson
                                                                                         -13-


also claims that he established a bona fide belief he was in imminent danger of bodily

harm since he testified to being scared and fearing for his life when Smith pulled out the

gun. Finally, Gibson contends that he did not have the ability to retreat from the danger

of being shot because everything happened so fast.

      {¶ 38} Gibson’s testimony, however, indicates that he did have time to retreat, but

failed to do so. Specifically, Gibson testified that, before Smith came toward him and

pointed a gun at him, he looked up and noticed that Smith was holding a gun “not pointing

it at anybody or anything.” Trans. Vol. 5 (Apr. 19, 2017), p. 1010. Gibson also testified

that Smith was acting strangely while holding the gun and that he (Gibson) was “trying to

assess why [Smith] ha[d] his gun out.” Id. After noticing Smith’s gun and Smith’s

strange behavior, Gibson did not retreat from the situation and attempt to leave the

residence. Instead, Gibson testified that he readied himself by covertly pulling out his

own gun and placing it behind his leg while he was sitting on the couch. Gibson stated:

      So I see his gun, so I pulled mines out, and I put it behind my leg (indicating)

      just in case he, you know, tries to shoot [Gill] or try to do—I don’t know.

      Because you know, I’ve been in situations like this before, and I know when

      somebody pulls a gun out, somebody’s going to get robbed or somebody’s

      going to get shot or something’s going to go down. So I pull mines out, and

      I put it behind my leg (indicating) just in case.

Id. at 1010-1011.

      {¶ 39} In addition, Gibson’s testimony does not clearly indicate whether Smith

pointed his gun at Gibson at the time Gibson fired at Smith. Specifically, Gibson testified

that Smith “starts walking toward me; but as he’s walking toward me, it looks like he’s
                                                                                          -14-

going to pull, pull his gun up. So I stand up, and I start shooting, and I think he shoots

at the same time—not really sure—you know, but, you know, and I shoot until my gun

doesn’t shoot anymore.” (Emphasis added.) Id. at 1012-1013. We note that Gill could

not testify who put their gun up first, because he claimed that Gibson was in front of him

slightly and that he never saw Gibson with a gun.

       {¶ 40} Regardless of Gibson and Gill’s testimony, Smith and Walker testified to a

different version of events indicating that Gibson was at fault in creating the violent

situation. As previously noted, Smith and Walker both testified that Smith never had a

gun and never spoke to Gibson, but merely told Gill to get his box of belongings and

leave. According to Smith and Walker, Gibson fired his weapon at Smith in response to

him telling Gill to leave and then attempted to pistol whip Smith after Smith fell to the

ground.

       {¶ 41} “Because the trier of fact sees and hears the witnesses at trial, we must

defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61, 2013 CA 62,

2014-Ohio-3432, ¶ 24, citing State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997).        “The fact that the evidence is subject to different

interpretations does not render the conviction against the manifest weight of the

evidence.” Id., citing Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525 at ¶ 14.

       {¶ 42} Although Gibson claims that Smith’s and Walker’s testimony lacked

credibility in various respects, and that the jury lost its way in believing it, Gibson’s and

Gill’s testimony had just as many credibility issues.        Unlike Smith’s and Walker’s

testimony, which matched fairly consistently throughout trial, Gill’s and Gibson’s
                                                                                          -15-


testimony deviated in multiple ways. First, Gill claimed that Gibson was standing next to

him when Smith pulled out a gun and pointed it at Gibson’s face and that Gill grabbed

Smith’s gun in order to push it out of Gibson’s face. Gibson, on the other hand, testified

that he was sitting on the couch when Smith pointed his gun at him and made no

reference to Gill pushing Smith’s gun out of his face.

       {¶ 43} Gill also testified that Smith pulled out his gun as soon as they entered the

house, while Gibson claimed he sat on the couch and “zoned out” for five minutes while

Gill and Walker argued before Smith pulled out his gun. Gill further testified that he never

recalled seeing Gibson with a gun, yet Gibson testified that he had the .9-millimeter

handgun on him at all relevant times, pulled his gun out to shoot Smith, and put it in Gill’s

box of belongings before Gill placed the box in the trunk of his car.

       {¶ 44} Given the multiple credibility issues with Gibson’s and Gill’s testimony, we

do not find the jury lost its way in choosing to believe Walker’s and Smith’s version of

events.   Furthermore, even if the jury had accepted Gibson’s and Gill’s testimony,

Gibson’s testimony indicated that he could have retreated from the situation and was

possibly premature in firing at Smith, who, according to Gibson, merely looked like he

was going to pull his gun up. Therefore, based on the facts and circumstances of this

case, the jury did not create a manifest miscarriage of justice in failing to find that Gibson

acted in self-defense. Accordingly, we do not find that Gibson’s conviction for felonious

assault was against the manifest weight of the evidence.

       {¶ 45} Gibson’s First Assignment of Error is overruled.



                              Second Assignment of Error
                                                                                         -16-


       {¶ 46} Gibson’s Second Assignment of Error is as follows:

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN RESPONDING

       TO THE JURY’S WRITTEN QUESTION ABOUT SELF-DEFENSE.

       {¶ 47} Under his Second Assignment of Error, Gibson challenges the trial court’s

response to the jury’s question: “If a person acted in self-defense, but helped contribute

to the situation does that delete out the self[-]defense?” Although Gibson concedes that

he did not object to the trial court’s response and waived all but plain error for appeal,

Gibson nevertheless contends that it was plain error for the trial court to respond to the

jury’s question by directing the jurors to the written jury instruction on self-defense as

opposed to directly answering “no” to the question. We disagree.

       {¶ 48} To demonstrate plain error, it must be shown that “but for a plain or obvious

error, the outcome of the proceeding would have been otherwise, and reversal must be

necessary to correct a manifest miscarriage of justice.” State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, citing State v. Davis, 127 Ohio St.3d

268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 29. “The burden of demonstrating plain error

is on the party asserting it.” Id., citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-

4642, 873 N.E.2d 306, ¶ 17.

       {¶ 49} In support of his plain error argument, Gibson contends that his trial

counsel’s post-verdict discussion with some of the jurors indicated that the jury would

have found he acted in self-defense had the trial court answered the jury’s question in the

negative, as opposed to directing the jury to the written jury instruction on self-defense.

As previously noted, the jurors allegedly told Gibson’s trial counsel that a majority of the

jurors believed Gibson fired shots at Smith in self-defense after Smith pointed a gun at
                                                                                            -17-


Gibson, but mistakenly believed that Gibson’s sole act of bringing a gun inside Walker’s

residence prevented him from succeeding on a self-defense claim.

       {¶ 50} Gibson’s argument lacks merit for multiple reasons.              First, Gibson’s

argument hinges on his trial counsel’s unsubstantiated, post-verdict discussion with some

of the jurors, which is not part of the record and cannot not be considered on appeal.

State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus

(“[a] reviewing court cannot add matter to the record before it, which was not a part of the

trial court’s proceedings, and then decide the appeal on the basis of the new matter”).

       {¶ 51} Even if this court could consider trial counsel’s purported discussion with

the jurors, we do not find that the trial court’s response to the jury’s question about self-

defense amounted to a plain or obvious error.           As previously noted, the trial court

responded to the jury’s question by referring the jurors back to its original jury instruction

on self-defense. Reiterating jury instructions that are not misleading and which correctly

state the law does not, without more, constitute reversible error. See State v. Kirin, 11th

Dist. Trumbull No. 99-T-0054, 2000 WL 1140261, *4 (Aug. 11, 2000) (the trial court’s

reliance on the written jury instructions when responding to the jury’s question was not in

error where there was no contention that the instructions misapplied the law or were

misleading); State v. Holmes, 6th Dist. Lucas No. L-08-1034, 2009-Ohio-6255, ¶ 27 (the

neutral reiteration of jury instructions does not constitute reversible error); State v. Carter,

72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) (no reversible error where the trial court

refused to instruct the jury beyond the instructions given and defendant failed to object).

       {¶ 52} The trial court’s written jury instruction on self-defense stated, in relevant

part, as follows:
                                                                                         -18-


       The defendant claims to have acted in self-defense. To establish a claim

       of self-defense the defendant must prove by the greater weight of the

       evidence that he was not at fault in creating the situation giving rise to the

       injury to Gregory Smith; and he had reasonable grounds to believe and an

       honest belief, even if mistaken, that he was in imminent or immediate

       danger of death or great bodily harm, and that his only reasonable means

       of retreat from such danger was by the use of deadly force; and he had not

       violated any duty to retreat to avoid the danger.

Court’s Exhibit No. 1 (Apr. 20, 2017), Docket No. 36, p. 7.

       {¶ 53} Gibson does not argue and we do not find that the self-defense jury

instruction given by the trial court was misleading or an incorrect statement of law.

Gibson has therefore failed to establish that a plain or obvious error occurred when the

trial court responded to the jury’s question. This is particularly true here considering the

record indicates that Gibson approved of the trial court’s response to the jury’s question.

Therefore, because the trial court did not err in answering the jury’s question as it did,

Gibson’s plain error argument lacks merit.

       {¶ 54} Gibson’s Second Assignment of Error is overruled.



                               Third Assignment of Error

       {¶ 55} Gibson’s Third Assignment of Error is as follows:

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING GIBSON’S

       MOTION FOR NEW TRIAL AND TO SET ASIDE THE VERDICT.

       {¶ 56} Under his Third Assignment of Error, Gibson claims the trial court erred in
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failing to grant his Crim.R. 33 motion for new trial. In support of this claim, Gibson

contends the jury’s guilty verdict was not sustained by sufficient evidence and that an

error of law that occurred at trial when the trial court responded to the jury’s question

about self-defense. We again disagree.

       {¶ 57} “A trial court's decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.

24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus. (Other citation omitted.) “A trial court abuses its

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

(Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d

971, ¶ 34.

       {¶ 58} Crim.R. 33(A)(4) provides that a new trial may be granted if the verdict is

not sustained by sufficient evidence or is contrary to law. Gibson did not raise this claim

in his motion for new trial; therefore, he is barred from raising for the first time on appeal.

See State v. Schneider, 2d Dist. Greene No. 95-CA-18, 1995 WL 737910, *1 (Dec. 13,

1995), citing State v. Coleman, 37 Ohio St.3d 286, 294, 525 N.E.2d 792 (1988) (“[i]t is

settled law that issues raised for the first time on appeal and not having been raised in

the trial court are not properly before this court and will not be addressed”).

       {¶ 59} Crim.R. 33(A)(5) provides that a new trial may be granted on motion of the

defendant for any error of law occurring at trial. Gibson claims an error of law occurred

at trial when the trial court responded to the jury’s question about self-defense, claiming

the trial court should have answered “no” to the jury’s question as opposed to directing

the jury to the written jury instructions. As previously noted, although Gibson approved
                                                                                         -20-


the trial court’s response before it was delivered to the jury, Gibson now claims the trial

court’s response caused the jury to improperly apply the law of self-defense and bases

this claim on his trial counsel’s post-verdict discussion with the jurors.

       {¶ 60} In rejecting Gibson’s claim, the trial court found that Gibson’s Crim.R 33

motion was barred by the aliunde rule and Evid.R. 606(B). “[T]he aliunde rule provides:

‘that the verdict of a jury may not be impeached by the statement of a member of a jury

unless there is evidence aliunde, i.e., from some other source, to impeach the verdict.’ ”

State v. Kellum, 2d Dist. Miami No. 81 CA 47, 1982 WL 3795, *8 (Sept. 10, 1982), quoting

State v. Adams, 141 Ohio St. 423, 427, 48 N.E.2d 861 (1943).

       {¶ 61} The aliunde rule is codified in Evid.R. 606(B), which provides:

       Upon an inquiry into the validity of a verdict or indictment, a juror may not

       testify as to any matter or statement occurring during the course of the jury’s

       deliberations or to the effect of anything upon that or any other juror’s mind

       or emotions as influencing the juror to assent to or dissent from the verdict

       or indictment or concerning the juror's mental processes in connection

       therewith.    A juror may testify on the question whether extraneous

       prejudicial information was improperly brought to the jury’s attention or

       whether any outside influence was improperly brought to bear on any juror,

       only after some outside evidence of that act or event has been presented.

       However a juror may testify without the presentation of any outside

       evidence concerning any threat, any bribe, any attempted threat or bribe, or

       any improprieties of any officer of the court. A juror’s affidavit or evidence

       of any statement by the juror concerning a matter about which the juror
                                                                                           -21-


       would be precluded from testifying will not be received for these purposes.

       {¶ 62} As noted by the Supreme Court of Ohio, “[t]he first sentence of Evid.R.

606(B) embodies the common-law tradition of protecting and preserving the integrity of

jury deliberations by declaring jurors generally incompetent to testify as to any matter

directly pertinent to, and purely internal to, the emotional or mental processes of the jury’s

deliberations.” Schiebel, 55 Ohio St.3d at 75, 564 N.E.2d 54. “The rule is designed to

protect the finality of verdicts and to ensure that jurors are insulated from harassment by

defeated parties.” (Citation omitted.) Id.

       {¶ 63} This court has explained that “Evid. R. 606(B) contains three basic parts:

(1) the rule excludes inquiry into juror thought process or related statements or the

reasoning leading to a juror’s conclusions, (2) the rule precludes juror testimony (or

affidavit) in the absence of some outside evidence (the actual aliunde part of the rule),

and (3) the rule permits juror evidence of threats, bribes, or officer-of-the-court

misconduct without limitation[.]” State v. McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 29

(2d Dist.).

       {¶ 64} In this case, Gibson based his motion for new trial on unsubstantiated

statements by jurors that allegedly indicated the trial court’s response to the jury’s

question on self-defense caused the jurors to misapply the law of self-defense. In other

words, Gibson is relying on alleged juror statements to show how the trial court’s response

affected the jurors’ thought process and reasoning during deliberations. This is clearly

prohibited by Evid.R. 606(B).

       {¶ 65} Under Evid.R. 606(B), jurors are “generally incompetent to testify about the

jury’s internal deliberations related to the verdict.” State v. Fricke, 2d Dist. Montgomery
                                                                                         -22-

No. 26126, 2016-Ohio-2747, ¶ 54, citing Schiebel, 55 Ohio St.3d at 75, 564 N.E.2d 54.

Likewise, an attorney’s testimony or affidavit that attributes statements to jurors is

incompetent and may not be received for purposes of impeaching the verdict or for laying

a foundation of evidence aliunde. State v. Brown, 2d Dist. Montgomery No. 17891, 2000

WL 966161, *7 (July 14, 2000), citing Tasin v. SIFCO Industries, Inc., 50 Ohio St.3d 102,

553 N.E.2d 257 (1990). As a result, any statement by the jurors or Gibson’s trial counsel

regarding the jury’s deliberations was prohibited by Evid.R. 606(B) and could not serve

as a mechanism for setting aside the jury’s guilty verdict in this case or ordering a new

trial. Therefore, the trial court did not abuse its discretion in overruling Gibson’s motion

for new trial.

       {¶ 66} Gibson’s Third Assignment of Error is overruled.



                                           Conclusion

       {¶ 67} Having overruled all three assignments of error raised by Gibson, the

judgment of the trial court is affirmed.



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



FROELICH, J. and TUCKER, J., concur.



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Nathaniel R. Luken
Lucas W. Wilder
Hon. Stephen Wolaver
