[Cite as State v. Turner, 2019-Ohio-144.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  Appellate Case No. 2017-CA-78
                                                  :
 v.                                               :  Trial Court Case No. 16-CR-578
                                                  :
 TEVIUS S. TURNER                                 :  (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

                            Rendered on the 18th day of January, 2019.

                                             ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 N. Fairfield Road, Suite C, Beavercreek,
Ohio 45432
      Attorney for Defendant-Appellant

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

FROELICH, J.
                                                                                          -2-


       {¶ 1} Tevius1 S. Turner was indicted on charges of aggravated murder, murder

(purposeful), and felony murder, all with firearm specifications, together with charges of

felonious assault, tampering with evidence, and improper handling of a firearm in a motor

vehicle. After a jury trial, he was convicted and sentenced for purposeful murder with a

firearm specification, tampering with evidence, and improper handling of a firearm in a

motor vehicle. 2 The trial court’s judgment will be reversed as to Turner’s purposeful

murder conviction only, and this matter will be remanded for further proceedings

consistent with this opinion.

                     Factual Background and Procedural History

       {¶ 2} Turner was the manager of a Springfield-area hotel where Evan Stewart had

worked as a cook until being fired. On November 18, 2016, Stewart arrived at the hotel

before noon to pick up his final paycheck. Turner greeted Stewart, placed Stewart’s

paycheck and some cash on the hotel’s front desk, and asked Stewart to sign over the

paycheck to repay money Turner previously had loaned to Stewart. The cash was

intended to compensate for the difference between the amount of the paycheck and what

Stewart owed Turner on the personal loan. An argument about Stewart’s termination

ensued. When Turner walked away to attend to other business matters, Stewart left with

both his paycheck and the cash.

       {¶ 3} Stewart proceeded to a local convenience store in a Chevy Malibu driven by


1 The indictment, the trial court’s docket entries, the judgment entry of conviction and
sentence, and the ODRC offender directory all list Turner’s first name as “Tevius.”
However, the briefs filed in this court instead refer to Turner as “Tevious,” which the trial
transcript indicates is the correct spelling. (See Tr. 452-453). Here, we have used the
spelling that appears in the appealed judgment.
2 The jury also found Turner guilty of other charges, which the trial court merged at

sentencing.
                                                                                          -3-


Melody Turner, his cousin. 3 Accompanied by hotel employee Leanna Mills, Turner

thereafter drove to the same location in his black BMW. Upon arriving, Turner parked his

car next to Melody’s Malibu. Stewart already had entered the store and unsuccessfully

attempted to cash his paycheck. Turner met him inside and again requested the check,

but Stewart refused to surrender it. Stewart then left the store and got into the passenger’s

seat of the Malibu, where Melody was waiting in the driver’s seat.

       {¶ 4} Turner also exited the store and returned to his BMW, where he retrieved a

handgun from the center console. Turner approached the passenger’s side window of the

Malibu and reached across Stewart with his left hand to grab an envelope (presumably

containing either Stewart’s paycheck or Turner’s cash) while holding the gun in his right

hand, pointed toward Stewart.

       {¶ 5} At trial, the State played video recordings from the store’s security cameras

of Turner’s and Stewart’s encounters both inside and outside the store. Stewart testified

that the Malibu “was already in reverse” when Turner walked up to the passenger side

and reached inside. Stewart said that while the car was backing up, he and Turner

“tussled” as Stewart tried to remove Turner’s left arm from the Malibu’s passenger

window. Stewart claimed, however, that he never grabbed or touched the gun. He testified

that the gun was in Turner’s right hand with Turner’s finger on the trigger. Stewart said

that, as Melody shifted the Malibu into drive and pulled forward, he heard a gunshot,

looked over, and saw Melody bleeding and unresponsive with her foot on the gas pedal.

Stewart took the wheel of the moving vehicle and steered it into an intersection where he



3 Although Stewart’s cousin and appellant Turner share the same last name, they are not
related. To avoid confusion, we will refer to Melody Turner by her first name.
                                                                                            -4-


managed to stop.

       {¶ 6} Melody died as the result of a single gunshot to the head. Stewart promptly

identified the shooter as Turner, whom police located a few hours later on Interstate 75

in Kentucky near the Tennessee border. The gun, which Turner claimed to have thrown

into a grassy area somewhere along that highway, was not recovered.

       {¶ 7} Testifying in his own defense at trial, Turner admitted having a dispute with

Stewart about the paycheck. He also admitted retrieving a handgun from his BMW and

approaching the passenger’s side of the Malibu with the gun in his right hand. Turner

stated that he only intended to “scare” Stewart into giving him back either the paycheck

or the cash. Instead, with Turner’s arm and upper body inside the Malibu, he and Stewart

began to struggle over the weapon. Turner testified that Stewart grabbed the gun while

the vehicle was moving and that the gun “just went off.” Turner claimed that he “never

intended to hurt anyone.”

       {¶ 8} On cross examination, Turner testified that he recently had acquired the gun

for protection but did not realize that it was loaded. “I’ve never purchased any bullets. * * *

I had never put any ammo in it. I never did anything. I [just] put it in the middle console.”

He also denied “racking” a round into the chamber and claimed that his finger was not on

the trigger when the weapon fired.

       {¶ 9} Mills, Turner’s passenger, testified that upon exiting the store, Turner

returned to his BMW and opened the center console before walking to the Malibu where

Stewart was seated. She heard “a noise * * * like a cocking sound” – “like [he was] cocking

his gun” – as Turner and Stewart argued. Mills saw the two men “tussling” through the

car window. With Turner leaning into the Malibu, Mills heard Stewart tell the driver of the
                                                                                             -5-


Malibu “to pull off,” then heard a gunshot.

       {¶ 10} Mills recalled Turner’s pulling his BMW alongside the Malibu after the

shooting. As Stewart attempted to steer the Malibu from the passenger’s seat, he told

Turner that Melody was dead. According to Mills, Turner just kept demanding his money.

Mills also testified that, after the shooting, Turner got back into his car and stated, “I don’t

know why I just did that.”

       {¶ 11} Detective Ronald W. Jordan of the Springfield Police Department testified

that while investigating Melody’s death, he viewed the surveillance video from outside the

store where the shooting had occurred. He said that video depicted a man “with a firearm

in his right hand” near a car identified as Turner’s.4 However, the detective did not identify

the specific type of weapon shown.

       {¶ 12} Based on his training and experience, Detective Jordan testified that some

revolvers have “a cocking mechanism” that makes “[a] clicking sound” when the gun is

cocked, while other, “single-action” revolvers do not need to be cocked in order to be

fired. He further testified that a semiautomatic handgun cannot be fired until a bullet is

loaded into the chamber by moving the “slide” back and forward again, which makes “a

distinctive sound that anyone that’s been around firearms recognizes * * *.” Although he

first described that sliding action as making “a clicking sound,” he clarified that “I wouldn’t

necessarily say it’s a click” when the slide moves forward. After simulating for the jury the

motion that would be required to chamber a round in a semiautomatic weapon, Detective

Jordan opined that the store videotape depicted Turner’s arms positioned in a manner


4
 The State acknowledged during its closing argument that “it’s not that great [quality] an
image” (Tr. 642), but Turner confirmed that a still image taken from that video depicted
him with a gun.
                                                                                         -6-


“similar” to what Detective Jordan had just demonstrated. On cross-examination,

however, Detective Jordan confirmed that the weapon used in Melody’s shooting never

was recovered, and that no ammunition or gun-cleaning equipment was found during

searches of Turner’s residence and car.

       {¶ 13} The State also called Detective Jordan as a rebuttal witness. Detective

Jordan testified that a handgun has a trigger guard to help prevent inadvertent firing. He

explained that “you would have to place your finger inside the trigger guard to depress

the trigger,” which moves “[b]ack towards the person that has it in their hand.”

       {¶ 14} The jury found Turner guilty of purposeful murder and felony murder with

firearm specifications, felonious assault, tampering with evidence, and improper handling

of a firearm in a motor vehicle. The jury acquitted him of aggravated murder. At

sentencing, the trial court merged the purposeful murder, felony murder, and felonious

assault offenses, and the State elected to proceed to sentencing on purposeful murder.

The trial court imposed a prison term of 15 years to life for purposeful murder, with a

three-year consecutive firearm specification. The trial court also imposed concurrent

prison terms of 30 months for evidence tampering and 18 months for improper handling

of a firearm in a motor vehicle, for an aggregate sentence of 18 years to life.

       {¶ 15} Turner appeals that judgment, advancing four assignments of error. First,

he challenges the legal sufficiency of the State’s evidence. Second, he contends the trial

court erred in permitting a witness to refresh her recollection with an unauthenticated

document. Third, he asserts the trial court erred in failing to provide jury instructions on

reckless homicide and involuntary manslaughter. Fourth, he claims that the trial court

erroneously failed to conduct a hearing on his challenge to the racial composition of the
                                                                                             -7-


venire.

            Turner’s First Assignment of Error – Sufficiency of the Evidence

          {¶ 16} Turner first argues that the evidence presented by the State was not

sufficient to prove every element of the offenses of purposeful murder, felony murder, and

felonious assault. That assignment of error is not well taken.

          {¶ 17} “ ‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1433 (6th Ed.1990).

“Sufficiency” is essentially “a test of adequacy. Whether the evidence is legally sufficient

to sustain a verdict is a question of law.” Id., citing State v. Robinson, 162 Ohio St. 486,

124 N.E.2d 148 (1955).

          {¶ 18} “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.” State v. Marshall, 191 Ohio App.3d 444,

2010-Ohio-5160, 946 N.E.2d 762, ¶ 52 (2d Dist.), quoting State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is

whether, after 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.” Id.

          a. Purposeful Murder

          {¶ 19} Having reviewed the trial transcript, we conclude that the evidence
                                                                                            -8-


presented, when construed in the light most favorable to the State, would be sufficient to

prove beyond a reasonable doubt the elements necessary to support the jury finding that

Turner was guilty of purposeful murder. R.C. 2903.02(A) provides that “[n]o person shall

purposely cause the death of another.” “A person acts purposely when it is the person’s

specific intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is the offender's specific intention to engage in conduct of that nature.” R.C.

2901.22(A).

         {¶ 20} “It is well-established that ‘where an inherently dangerous instrumentality

was employed, a homicide occurring during the commission of a felony is a natural and

probable consequence presumed to have been intended.’ ” State v. Esparza, 39 Ohio

St.3d 8, 14, 529 N.E.2d 192 (1988), quoting State v. Jester, 32 Ohio St.3d 147, 152, 512

N.E.2d 962 (1987). “Such evidence is sufficient to allow a jury to find a purposeful intent

to kill.” Id.

         {¶ 21} Here, Turner admitted to using a gun to “scare” Stewart, and the jury

reasonably could have rejected his claimed ignorance that the gun was loaded. 5

Construed in the State’s favor, the evidence was sufficient to support a jury determination

that Turner acted purposefully in shooting Melody, in violation of R.C. 2903.02(A). His

sufficiency of evidence challenge to his purposeful murder conviction therefore is

overruled.



5
  Our conclusion does not detract from our analysis below regarding the trial court’s failure
to instruct the jury on the lesser included offense of reckless homicide. A jury presented
with the option of finding Turner to have acted only recklessly might have concluded that
he did not “purposely” cause Melody’s death.
                                                                                         -9-

       b. Felony Murder/Felonious Assault

       {¶ 22} While Turner also challenges the sufficiency of the evidence supporting the

jury’s guilty verdicts on the felony murder and felonious assault charges against him, we

note that Turner was not actually convicted of those two offenses. “A conviction does not

exist where there has been a guilty verdict * * * but no sentence.” State v. Croom, 7th

Dist. Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶ 59, citing State v. Whitfield, 124 Ohio

St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12. Because the felony murder and felonious

assault offenses were merged with Turner’s purposeful murder conviction for purposes

of sentencing, we need not address Turner’s arguments regarding those merged

offenses. See id. at ¶ 60-61 (as to merged offenses, “there exists no conviction for this

court to vacate”); see also State v. Zimmer, 8th Dist. Cuyahoga No. 104946, 2017-Ohio-

4440, ¶ 9, quoting State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶

14 (“concerning merged offenses, if ‘there is sufficient evidence to support the offense on

which the state elects to have the defendant sentenced, the appellate court need not

consider the sufficiency of the evidence on the count that is subject to merger because

any error would be harmless * * *’ ”).

       {¶ 23} Turner’s first assignment of error is overruled.

       Turner’s Second Assignment of Error – Witness’s Memory Refreshed

       {¶ 24} In his second assignment of error, Turner challenges the trial court’s

decision to allow witness Jody Gartin to refresh her recollection using a 911 dispatch log.

He contends that the State failed to establish that Gartin needed to have her recollection

refreshed and failed to authenticate the dispatch log used as a “refreshing document.”

       {¶ 25} Upon review, we find no merit to either argument. On direct examination,
                                                                                        -10-


Gartin testified that she was in a parking lot when she heard a “pop” that sounded like a

gunshot. She looked across the street and saw a young man enter a black BMW and

speed away. She initially testified that this occurred at about 12:30 p.m., and that she

then called 911 to report what she had seen. Asked if she would have given the 911

operator “an accurate time” when she called, Gartin responded, “Probably so.” The

prosecutor then approached Gartin with a dispatch log, to which defense counsel

objected.

      {¶ 26} After the trial court opined that Gartin had not indicated that she was having

difficulty remembering, the following exchange occurred between the prosecutor and the

witness:

      Q. Ms. Gartin, about the time, as you sit here today, if you told the police or

      9-1-1 something different at that time, would it have been more fresh in your

      memory at that point?

      A. Yes.

      Q. As you sit here today, are you for sure what time you would have left and

      made that phone – and told the police that it happened that day?

      ***

      A. No, I’m not sure that would be the exact time.

      Q. Would it help to see a memo of your recording of your 9-1-1 call, a memo

      of that call to the police?

      A. Yes.

      {¶ 27} Over defense counsel’s objection, the trial court then permitted the

prosecutor to use the call log (or memo) to refresh Gartin’s recollection about when she
                                                                                         -11-


reported the incident. Gartin testified that it was at around 11:50 a.m. We see no error in

the trial court’s ruling.

       {¶ 28} After silently reviewing the document, Gartin testified that it had refreshed

her recollection as to when she reported the incident to police. Moreover, it was

unnecessary to first authenticate the document. A writing used to refresh a witness’s

recollection is merely “a memory jogging device,” not evidence, and authentication is not

required because the document “has no substantive evidentiary significance.” State v.

Carr-Poindexter, 2d Dist. Montgomery No. 20197, 2005-Ohio-1571, ¶ 38.

       {¶ 29} Furthermore, Gartin’s testimony about the time of her 911 call was

inconsequential to Turner’s conviction. Turner did not dispute shooting and killing the

victim, and his defense did not depend on the timing of that incident. Instead, his sole

defense was that his gun “just went off” during a struggle. Because the timing of Gartin’s

911 call had little or no relevance to the material issues in this case, any purported error

in allowing Gartin to refresh her recollection (and we find no such error) would have been

harmless. Turner’s second assignment of error is overruled.

           Turner’s Third Assignment of Error – Lesser Included Offenses

       {¶ 30} In his third assignment of error, Turner claims the trial court erred by

refusing to instruct the jury on the lesser included offenses of reckless homicide and

involuntary manslaughter. Turner requested these instructions but the trial court found

that the evidence, “taken as a whole,” did not warrant giving them.

       a. Reckless Homicide

       {¶ 31} While a purposeful murder conviction requires proof that the defendant

“purposely cause[d] the death of another,” R.C. 2903.02(A), conviction of reckless
                                                                                           -12-


homicide requires a less culpable mental state, namely that the defendant “recklessly

cause[d] the death of another.” R.C. 2903.041(A). “A person acts purposely when it is the

person’s specific intention to cause a certain result,” R.C. 2901.22(A), whereas “[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.” R.C. 2901.22(C). Thus, reckless

homicide is a lesser included offense of murder. State v. Hipshire, 2d Dist. Darke No.

2010-CA-07, 2011-Ohio-3863, ¶ 36-38, citing State v. Wright, 4th Dist. Scioto No.

01CA2781, 2002-Ohio-1462, ¶ 24.

       {¶ 32} Where the evidence presented by the defense, if believed, would support

both an acquittal of the greater offense and a conviction on the lesser included offense,

“the trial court [i]s required to charge the jury on the lesser included offense[ ].” (Emphasis

sic.) State v. Barker, 11th Dist. Portage No. 2010-P-0044, 2012-Ohio-522, ¶ 172, citing

State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the

syllabus (“Even though an offense may be statutorily defined as a lesser included offense

of another, a charge on such lesser included offense is required only where the evidence

presented at trial would reasonably support both an acquittal on the crime charged and a

conviction upon the lesser included offense”). In other words, where the defendant is

charged with purposeful murder, a court must instruct the jury on reckless homicide if the

jury reasonably could find against the State on the element of purposefulness, but find for

the State on the element of recklessness. See Thomas at 216.

       {¶ 33} “In deciding whether to instruct the jury on a lesser-included offense, the

trial court must view the evidence in a light most favorable to the defendant.” (Citations
                                                                                         -13-

omitted.) State v. Underwood, 2d Dist. Montgomery No. 26711, 2016-Ohio-1101, ¶ 11.

An instruction is not required whenever “some evidence” is presented to support a lesser

offense. State v. Callahan, 2d Dist. Montgomery No. 24595. 2012-Ohio-1092, ¶ 33,

quoting State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192.

Rather, the evidence must be sufficient to enable the jury reasonably to reject the greater

offense and to find the defendant guilty on a lesser, or inferior degree, offense. Id.

       {¶ 34} In a case involving facts substantially similar to those before us, a jury did

find the defendant guilty of the lesser included offense of reckless homicide. See State v.

Duncan, 8th Dist. Cuyahoga No. 87220, 2006-Ohio-5009. The defendant in Duncan

pulled out a handgun while seated in a car arguing with another man about money. Id. at

¶ 2. According to the defendant’s testimony, he “only intended to scare [the other man],”

but during the course of the argument, they “struggled for control of the firearm,” which

“accidentally went off,” killing the other man. Id. The offenses charged in that case

included aggravated murder (“purposely, and with prior calculation and design, cause the

death of another,” R.C. 2903.01(A)), but not purposeful murder (“purposely cause the

death of another,” R.C. 2903.02(A)). Still, the jury convicted the defendant of reckless

homicide, “as a lesser included offense of aggravated murder.” Id. at ¶ 3.

       {¶ 35} The question, then, is whether reasonable jurors considering the evidence

presented in this case could have found Turner not guilty of purposeful murder and guilty

of reckless homicide. Based on the record, we conclude that they could.

       {¶ 36} Here, Turner testified that he removed the handgun from the console of his

BMW only to “scare” Stewart. Turner claimed that he only recently had purchased the

gun and did not realize that it was loaded. He also denied “racking” a bullet into the
                                                                                        -14-


chamber and claimed that he never put his finger on the trigger. According to Turner, as

he and Stewart struggled for the gun with Turner’s head and upper body inside the car,

the car began to move and the gun discharged, striking Melody. Mills likewise testified

that she saw Turner and Stewart “tussling” through the passenger side window of

Stewart’s moving car when the shooting occurred. Stewart, too, confirmed that he and

Turner were “tussling” when the gun discharged, although he denied that he grabbed

Turner’s gun. A police detective testified that video of the shooting did not show whose

finger was on the trigger when the gun fired.

       {¶ 37} Another Ohio appellate court has opined that a defendant “at least

knowingly caused the victim’s death by participating in a struggle over the gun” under the

circumstances of that case. See State v. Given, 7th Dist. Mahoning No. 15 MA 0108,

2016-Ohio-4746, ¶ 67. However, the defendant in Given did not claim to have been

unaware that the gun was loaded. 6 The differing circumstances of this case do not

compel a conclusion that Turner acted more than recklessly by using what he denies

knowing was a loaded gun.

       {¶ 38} As we concluded above in discussing the sufficiency of the evidence to

support Turner’s purposeful murder conviction, a reasonable jury could choose to believe

certain evidence and reject other evidence in order to find that Turner acted purposefully.

Nevertheless, a reasonable jury construing the evidence in the light most favorable to

Turner, see Underwood, 2d Dist. Montgomery No. 24595, 2016-Ohio-1101, ¶ 11, could

have found that Turner did not know the gun was loaded, did not have his finger on the



6
  Instead, the dispute in Given centered on whether the victim or the defendant had drawn
the gun over which they struggled. See Given at ¶ 7-8, ¶ 64-65.
                                                                                          -15-


trigger, and did not know that the car would move. On that basis, a reasonable jury could

have concluded that Turner acted recklessly rather than purposely. Therefore, the trial

court erred by failing to instruct the jury on the lesser included offense of reckless

homicide. Turner’s third assignment of error is sustained with respect to this argument.7

       b. Involuntary Manslaughter

       {¶ 39} Turner’s argument for an involuntary manslaughter instruction is not well

taken, however. Involuntary manslaughter “is always and necessarily a lesser included

offense of murder.” State v. Kidder, 32 Ohio St.3d 279, 282, 513 N.E.2d 311 (1987). But

in contrast to purposeful murder and reckless homicide, a conviction of involuntary

manslaughter requires proof that the defendant “cause[d] the death of another * * * as a

proximate result of the offender’s committing or attempting to commit a felony” or certain

misdemeanors, without requiring a particular culpable mental state. R.C. 2903.04(A), (B).

       {¶ 40} As applicable here, involuntary manslaughter in violation of R.C. 2903.04(A)

requires causing the death of another as a proximate result of committing a felony. Turner

advances two underlying felonies as possible support for an involuntary manslaughter

instruction: (1) improper handling of a firearm in a motor vehicle, and (2) felonious assault.

But the improper-handling offense occurred inside Turner’s BMW, where the loaded

handgun was stored in the center console. His improper handling of the firearm in his car



7
  The Double Jeopardy Clause would not preclude the State from retrying Turner for
purposeful murder and/or the merged offenses of felony murder and felonious assault,
because the evidence admitted at trial was sufficient to support his conviction. See State
v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284. Moreover, “[c]onsistency
in the verdict is not necessary.” State v. Handcock, 2d Dist. Clark No. 2008 CA 85, 2009-
Ohio-4327, ¶ 23, citing State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889
N.E.995, ¶ 81. Accordingly, we would not be required to overturn a jury’s verdict even if
it reached inconsistent findings regarding Turner’s state of mind. See id.
                                                                                              -16-


did not proximately cause Melody’s death, which occurred after Turner retrieved the

weapon from his car and pointed it through the window of her Malibu.

       {¶ 41} Turner also could not rely on felonious assault to support an involuntary

manslaughter instruction. Using felonious assault as the underlying felony would have

duplicated the felony murder charge against Turner. “[I]f ‘felonious assault is the

underlying offense that causes the death of [a person], [then] felony murder is the proper

charge,’ and in such a case, a trial court does not err by refusing to charge a jury on

involuntary manslaughter.” State v. Lynch, 2d Dist. Montgomery No. 27620, 2018-Ohio-

1424, ¶ 26.

       {¶ 42} Because we agree with Turner that the trial court should have provided the

jury with instructions regarding reckless homicide, Turner’s third assignment of error is

sustained in part. The portion of Turner’s third assignment of error that relies on the trial

court’s failure to provide an involuntary manslaughter instruction is overruled.

     Turner’s Fourth Assignment of Error – Racial Composition of Jury Venire

       {¶ 43} In his fourth assignment of error, Turner contends that the trial court erred

by failing to conduct a hearing after defense counsel challenged the racial composition of

the venire. The record reflects the following discussion that occurred during a bench

conference at the outset of voir dire, just after the trial court seated the first set of

prospective jurors and alternates:

              [DEFENSE COUNSEL]: Judge, for the record, I would object to the

       array of this jury. I believe Mr. Turner is entitled to a jury of his peers. In this

       matter, as I look at the array of jurors here today – Mr. Turner is an African-

       American male, age 35. As I look at this jury, there’s not one African-
                                                                                    -17-


American in the entire jury pool. I believe on its face, it’s prejudicial towards

him in that there are no jurors who seem to have any similar characteristics

to him, particularly with regard to race. There are none in the first 18 in the

box or in the gallery as I see it. Therefore, we would object to the array of

the jury and ask for mistrial and ask that jurors of his peers [sic] be selected,

including African-American jurors.

       [PROSECUTOR]: He’s not put forth a challenge regarding the

procedures used to select jurors. My understanding, in Clark County that is

done from the voter rolls, and nothing about that process is inherently

prejudicial. It just so happens with this particular group of jurors that there

does not appear to be any African-American members of the panel, but that

in and of itself does not give rise to cause for mistrial.

       [DEFENSE COUNSEL]: Judge, just for the record, I would question

the procedures and the selection of jurors due to the total racial imbalance

on this matter. Respectfully.

       THE COURT: Thank you. For the record, the jurors are selected by

a computer of the registered voters of Clark County. There is nothing in that

draw which informs the Court or anyone involved in it as to a race of jurors.

I do know that not all potential jurors showed up today. They will be

summonsed [sic] to court to show why they should not be held in contempt,

but there is nothing in our procedure that includes or potentially excludes

any race. So the motion for mistrial is overruled.

{¶ 44} The Sixth Amendment’s guarantee of a trial by jury “contemplates a jury
                                                                                          -18-

drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527,

95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To establish a violation of that requirement, a

defendant “must prove: (1) that the group alleged to be excluded is a ‘distinctive’ group in

the community; (2) that the representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of such persons in the

community, and (3) that the representation is due to systematic exclusion of the group in

the jury-selection process.” (Citations omitted.) State v. McNeil, 83 Ohio St.3d 438, 443-

444, 700 N.E.2d 596 (1998). A defendant who challenges the racial composition of his or

her jury bears the burden of proving systematic exclusion. See Columbus v. Bryant, 10th

Dist. Franklin Nos. 76AP-117 to 76AP-124, 1977 WL 200264, *4 (June 30, 1977)

(“defendants have not met their burden [of] showing a systemic exclusion of all blacks”).

       {¶ 45} Here, defense counsel initially challenged only the absence of African-

Americans in Turner’s own jury pool. Underrepresentation of a distinctive group on a

single venire “is not systematic exclusion” for purposes of a Sixth Amendment claim,

however. (Emphasis sic.) McNeil at 444, citing Duren v. Missouri, 439 U.S. 357, 366, 99

S.Ct. 664, 58 L.Ed.2d 579 (1979) (systematic exclusion demonstrated where “gross

discrepancy” between distinctive groups within jury venire shown to exist “not just

occasionally but in every weekly venire for a period of nearly a year”). After the prosecutor

pointed out the applicable standard, defense counsel “question[ed] the procedures and

the selection of jurors due to the total racial imbalance on this matter.” Still, challenging

the jury-selection process based on the racial composition of a single venire does not

evidence systematic exclusion.

       {¶ 46} Significantly, at no time did defense counsel contend that the jurors in
                                                                                         -19-


Turner’s case had been selected on any basis other than a computerized draw from

among “the registered voters of Clark County.” “The use of voter registration rolls as

exclusive sources for jury selection is constitutional and ‘does not systematically, [or]

intentionally, exclude any [economic, social, religious, racial, political and geographical

group of the community].’ ” State v. Moore, 81 Ohio St.3d 22, 28, 689 N.E.2d 1 (1998),

quoting State v. Johnson, 13 Ohio St.2d 106, 114, 285 N.E.2d 751 (1972). Absent any

evidence of systematic exclusion of African-Americans in Clark County’s jury selection

process, the trial court did not err by failing to hold a hearing on that issue.8 Turner’s

fourth assignment of error is overruled.

                                        Conclusion

         {¶ 47} The judgment of the Clark County Common Pleas Court will be reversed as

to Turner’s purposeful murder conviction only and affirmed as to all other convictions; this

matter will be remanded to the trial court for further proceedings consistent with this

opinion.

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

DONOVAN, J., concurs.

HALL, J., concurring in part and dissenting in part:

         {¶ 48} I agree that the first, second, and fourth assignments of error should be

overruled for the reasons detailed in the majority opinion. Regarding the third assignment

of error, I disagree that the trial court erred by denying Turner’s request for a lesser

included instruction on the offense of reckless homicide.

         {¶ 49} At trial the defendant requested a reckless homicide instruction after the


8
    Notably, defense counsel never requested such a hearing.
                                                                                            -20-


close of all the evidence. (Tr. 613). The trial court considered the arguments and the

cases presented by the defense over that evening and issued a two-page written decision

the next morning. (Doc. #27). In that decision, the court recited and applied the correct

legal standards for evaluation of a lesser included instruction. Therefore, the only question

before us is whether the trial court abused its discretion by declining to give the instruction.

On this record, I think not. In my opinion, the case law cited by the majority does not

support the instruction, the trial court did not abuse its discretion by denying the requested

instruction, and there was no evidence of reckless behavior to support that instruction.

                                    ADDITIONAL FACTS

       {¶ 50} To adequately evaluate the requested lesser-included offense instruction,

additional facts are necessary, as well as recognition of where those facts are found in

the record. Some of the facts in the majority opinion are included here to provide context

for the additional information.

       {¶ 51} The initial confrontation between Tevius Turner and Evan Stewart occurred

inside the Springfield Quality Inn where Turner was the manager and Stewart was a

recently-fired employee. Stewart testified that he owed Turner some money for a loan,

and Turner wanted Stewart to sign over his final paycheck in exchange for some cash in

an envelope, which Stewart said was “the remaining sum * * * of what I owed him out of

my check.” (Tr. 240). Both the check and cash were given to Stewart at the front desk

while Stewart was arguing with Turner, contending that he had been fired unlawfully. (Id.

at 244). A video surveillance recording without audio (Exhibit #89) corroborates the

disagreement at the front desk and shows that, after a while, the two men went to Turner’s

office to further discuss the matter, apparently because the heated discussion in the lobby
                                                                                            -21-


occurred while customers were coming and going. Stewart said he offered the cash back

to Turner but “[h]e didn’t want the cash. He just wanted my check.” (Tr. 247).

       {¶ 52} Many minutes later, the video shows Turner leaving the office and heading

away from the lobby toward the dining hall. Shortly thereafter, Stewart leaves the office

and walks out through the lobby with the check and cash in hand. Stewart proceeded to

a nearby convenience store to cash the check.

       {¶ 53} Upon discovering that Stewart was gone, Turner, who said he had driven

Stewart to a place to cash his check before, asked another employee to show him where

that place was because he remembered the store but did not know its location. Turner

had employee Leanna Mills go with him. The hotel video shows them hurrying out of the

hotel to go after Stewart.

       {¶ 54} Mills testified that once they were at the convenience store, she remained

in Turner’s car scrolling through Facebook while Turner went inside. (Tr. 347.) Turner

then came out of the store, he got something out of the center console, and he started

toward Stewart’s car. (Id). When Turner was back outside of his car, Mills heard a noise

that “was like a cocking sound.” (Id. at 348). She testified: “Well it kind of got my attention.

I didn’t know what it was at the time, but it was like him cocking his gun.” (Id.). After the

shot was fired and Turner returned to his car, “[h]e set [the gun] on his lap.” (Id. at 349).

He drove in the same direction Stewart’s vehicle went and “pull[ed] up beside [Stewart].”

Stewart was crying and saying, “I can’t believe you shot my cousin.” (Id. at 351). Turner

responded, “Just pull over. I want my money.” (Id. at 352). According to Mills, Turner soon

pulled away and “[h]e said he couldn’t believe that he just did that. He needed to get out

of town and told me that he needed my help.” (Id. at 353).
                                                                                       -22-


      {¶ 55} Exhibit 92, a timeline compilation recording of various surveillance video

cameras at the convenience store (without audio), was played for the jury. The video

included a recording of the outside of the store where Turner parked his car and a partial

view of when and how the shooting occurred. Stewart was still inside the store at the

counter when Turner arrived in his car. Turner parked askew next to the car in which

Stewart had been riding, entered the store, and confronted Stewart. Turner gestured with

his hand for Stewart to give him either, or perhaps both, the check and cash. Stewart

apparently refused. They both left the store arguing, with Turner exiting first. Turner

quickly opened his car door and reached into the center console area, retrieving a

handgun and stepping toward the car where Stewart was in the passenger seat.

      {¶ 56} Detective Ronald Jordan had been with the Springfield police division for

twenty years, had been a detective for fourteen years, and had been a member of the

SWAT team for nearly fifteen years. (Tr. at 466-467, 497). Jordan explained that loading

a magazine into a semi-automatic weapon does not load a cartridge into the chamber

and it would not be ready to fire. He described how a round is loaded and testified that

the motion of the slide when a round is chambered makes a “distinctive sound that anyone

that’s been around firearms recognizes that sound.” (Id. at 500). Detective Jordan was

permitted to demonstrate with his hands the movements used to chamber a round. (Id. at

504). Jordan observed the parking lot video and a print copy of a still frame showing

Turner with both hands on the weapon. (Exhibit 76).9 Jordan then opined that the hand

movements used to chamber a round appeared to be similar to the positioning of Turner’s



9 The prosecutor represented that the video only records a couple of frames a second.
(Tr. 494). Therefore, it does not display an entirely smooth continuous recording.
                                                                                        -23-

body in the video. (Id. at 504).

       {¶ 57} Stewart testified that, when Turner approached him in the car, “[h]e reaches

in to grab the check with the firearm in the other hand pointed at me.” (Id. at 256). The

gun was in Turner’s right hand. (Id.). “He repeatedly asked for the check.” (Id.). Stewart

never grabbed, manipulated or touched the firearm. (Id. at 257). Turner always had the

weapon “controlled in his right hand.” (Id.). While Turner remained at the window grabbing

for the check, the driver, Stewart’s cousin, backed out, put the vehicle in drive, and was

starting forward when the shot went off. (Id. at 258). Turner had his finger on the trigger

when the gun went off. (Id.).10 The only person who had the gun at that point was Tevius

Turner. (Id. at 260). Stewart later was asked to demonstrate and, while apparently doing

so, he said: “He proceeded to grab the check with his left and he was still brandishing a

firearm with the right.” (Id. at 270). On cross examination, defense counsel asked if

Stewart and Turner were “tussling” (counsel’s word): “And you guys begin to tussle,

correct, as this car backs up. Correct?” Stewart responded, “Yes.” (Id. 292). Immediately

thereafter though counsel asked, “He’s reaching for the check, and you’re tussling with

him over the gun and the check, Correct?” Steward responded, “No not over the gun.

The gun is near his right side and his ….” Id. Stewart’s answer was cut off with another

question. After an objection was sustained, Stewart was asked, “So you guys are tussling

from where the car was parked back into the middle of the parking lot. Correct?” Stewart

responded, “Yes.” (Id. at 292-293). Defense counsel then asked, “And it was during this

tussle that a gun fired. Correct?” Stewart responded, “No, the car was in forward when


10
   The precise question to Stewart was “do you know or recall if he had his finger on the
trigger when that went off?” The answer was “Yes.” But in context, Stewart’s testimony
is that Turner had his finger on the trigger when the shot was fired.
                                                                                          -24-

the shot was fired.” (Id. at 293). In short, Stewart consistently denied “tussling” over the

gun or even with Turner’s right arm or hand.

       {¶ 58} With Melody shot in the head and apparently unconscious, her foot

remained on the accelerator, and the car proceeded over a curb and out into the road.

Stewart tried to steer the car from the passenger seat. The video shows Turner’s car

leaving the lot in the same direction and both cars then moving out of sight. Stewart

testified, consistent with Leanna Mills, that Turner pulled his car alongside and “asked me

to pull over.” (Id. at 295). Turner then left, and Stewart was able to put the car into park.

       {¶ 59} At this point in the trial, when the State rested, there was absolutely no

evidence to support the notion that a reckless homicide instruction should be given for

any of the three murder charges. Consequently, if such an instruction were appropriate,

of necessity it would have been predicated on Turner’s testimony.

                                 TURNER’S TESTIMONY

       {¶ 60} Turner testified that when he got the weapon out of the car he told Leanna

Mills he was about to scare Stewart. (Id. at 574). That was not corroborated in Mills’

testimony, but neither counsel asked her about such a statement. Turner said he went to

Stewart’s car and “was reaching for an envelope that was, actually looks like it was

between a bottle and something else in the middle console.” (Id. at 575). “[Stewart]

reaches over and grabs the gun in my other hand and we begin to struggle.” (Id.) Turner

testified that as he and Stewart struggled and the vehicle began to move, “[t]he gun went

off. The gun just went off.” When asked whether he intentionally or purposely try to shoot

anyone, Turner responded, “No. No. I never intended to hurt anyone.” (Id.).

       {¶ 61} Turner testified that he then panicked. He went back to the hotel, hurriedly
                                                                                          -25-


packed, and headed to see family in Georgia, a trip he said he already had planned for

some time. On the way down Interstate 75, he threw the gun into a grassy area. (Id. at

578). When direct examination ended, Turner had yet to claim he did not know the

weapon was loaded.

       {¶ 62} On cross examination, Turner was asked, “You had a gun in your car that

was a loaded firearm. Correct?” (Id. at 579). His reply was the first mention of ammunition:

“I didn’t know that it was loaded.” The question about whether he had a loaded gun in the

car was asked again, and he replied, “Obviously.” (Id. at 580). He testified that he bought

the gun for his safety because he had received several threats from ex-employees. He

had had it for about two weeks, but never purchased bullets for the gun, although he “did

know how to work it.” (Id. 582). Such operational knowledge was confirmed by his

response to the question, “So that isn’t you racking that gun on the way to that car?”

Turner replied, “I did not rack the gun, sir.” (Id. at 589). When asked about State’s Exhibit

76, the still frame where he had the weapon in his right hand and he also put his left hand

on the weapon, he denied he was racking a round in the chamber. (Id. at 583). Rather,

he said, “I actually put the gun in my hand so I can grab the bottom handle. I did not even

have my hand on the trigger. I just pushed it in my hand and had it in the car when I was

in the car. My finger was not even on the trigger.” (Id. at 584). The following exchange

then occurred between the prosecutor and Turner:

       Q. Your finger was not on the trigger?

       A. No.

       Q. So you didn’t even pull that trigger?

       A. No. Sir.
                                                                                          -26-


       Q. Whose hand was on the trigger?

       A. We was struggling. Both of our hands was on the gun.

       Q. “But yours wasn’t on the trigger?

       A. No.

(Id. at 584).

       {¶ 63} Turner testified that “[a]s the car moved forward, the gun discharged.” (Id.

at 599). Throughout all of his testimony, Turner never said Stewart’s hand or finger was

on the trigger or that Stewart caused the weapon to fire.

       {¶ 64} Turner stated that after leaving the convenience store parking lot he drove

beside Stewart but, contrary to Stewart’s and Mills’ testimony, “I didn’t pull up beside him.”

(Id. at 591). Turner further denied he said anything to Stewart or asked him for the money

or to pull over, as both Stewart and Mills testified. (Id.). Turner also denied that he knew

anyone was shot but said he panicked and fled because the gun went off. (Id. at 592). He

also claimed he did not know anyone was shot when he discarded the gun along the

highway, explaining “[b]eing that the gun went off, I didn’t want it.” (Id. at 593).

     STATE V. DUNCAN IS NOT PRECEDENT FOR THE PROPOSITION THAT A

        RECKLESS HOMICIDE INSTRUCTION SHOULD HAVE BEEN GIVEN.

       {¶ 65} The majority cites State v. Duncan, 8th Dist. Cuyahoga No. 87220, 2006-

Ohio-5009, as a “substantially similar” case in which a jury found the defendant guilty of

reckless homicide. But the case is not similar. If anything, it supports the notion that a

death resulting from struggling over a firearm constitutes felony murder.

       {¶ 66} In Duncan, the victim, Frederick Futrell, agreed to cash a check that Duncan

had stolen in exchange for $100, but afterward Futrell wanted a larger cut of the proceeds.
                                                                                        -27-


Duncan pulled out a pistol. “According to [Duncan], he only intended to scare Futrell;

however, during the course of the argument, he and Futrell struggled for control of the

firearm and the gun accidentally went off.” Id. at ¶ 2. Futrell died. Duncan was charged

with aggravated murder, R.C. 2903.01(A) (purposefully with prior calculation and design),

felony murder, R.C. 2903.02(B) (cause death as result of first or second degree felony),

and two counts of aggravated robbery, R.C. 2911.01(A)(1). The trial court did instruct on

reckless homicide as a lesser included offense of the aggravated murder count. The jury

found Duncan guilty of reckless homicide “as a lesser included offense of aggravated

murder,” but it also found him guilty of felony murder and the aggravated robberies. Id. at

¶ 3. Because the jury found Duncan guilty of felony murder, of necessity it also would find

him guilty of reckless homicide, which is also a lesser included offense of felony murder.

      {¶ 67} Ohio’s hierarchy of culpable mental states means that when a defendant

commits an offense with a higher culpable mental state than a statute requires, he has

committed the offense and also has committed the degree of the offense or lesser

included offense with a lower mental state. “When recklessness suffices to establish an

element of an offense, then knowledge or purpose is also sufficient culpability for such

element.” R.C 2901.22(E). Inversely, then, purpose includes knowledge, knowledge

includes   recklessness,   and   recklessness    includes   negligence.   Therefore,   the

“knowledge” mental state required for the Duncan jury’s felony murder verdict included

and subsumed the recklessness required for the death caused by recklessness, i.e. the

reckless homicide. In light of the felony murder conviction, the only logical conclusion

was for the jury to have found him guilty of reckless homicide.

      {¶ 68} Duncan is an example of how a jury could choose reckless homicide instead
                                                                                          -28-


of purposeful prior-calculation-and-design murder. It does nothing to help analyze the

factual scenario here where a jury has chosen to find one guilty of both purposeful

aggravated murder and knowledgeable felony murder. The jury here found Turner not

guilty of prior-calculation-and-design aggravated murder. It just did not have the option of

the lesser offense of reckless homicide to that offense. But that matters not because if it

had been given that option, to be logically consistent it also would have found Turner

guilty of reckless homicide, as the jury did in Duncan, due to the culpable mental state

hierarchy. The salient question is whether Turner’s jury should have had the option of

reckless homicide to the exclusion of purposeful aggravated murder or knowledgeable

felony murder. That question is not answered by Duncan, so the case does not provide

guidance here.

       THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DECLINING

             TO GIVE A RECKLESS HOMICIDE INSTRUCTION FOR THE

           OFFENSES OF PURPOSEFUL MURDER OR FELONY MURDER

       {¶ 69} A trial court is not required to give a lesser included instruction just because

a defendant raises “some evidence” to support the lesser charge. In State v. Hubbard,

10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, the defendant testified that he merely

fired shots into the ground and did not intend to shoot anyone. But two people were struck

by bullets and one died. Hubbard was charged with aggravated murder and felony murder

(proximate result of felonious assault) regarding the decedent, and attempted murder and

felonious assault regarding the survivor. The jury was unable to reach a verdict on

aggravated murder, a charge that was later nolled. Hubbard was convicted of felony

murder, firearm specifications, attempted murder, and felonious assault.
                                                                                           -29-


       {¶ 70} On appeal, there were procedural inadequacies with Hubbard’s claim that

he should have received several lesser included instructions. But the Tenth District

“encouraged both parties to present arguments regarding the trial court's failure to instruct

the jury on the lesser-included offense of reckless homicide.” Further, “in the interest of

justice,” the appellate court agreed to “address defendant's fifth assignment of error only

as it relates to reckless homicide.” Id. at ¶ 34. In addition, plain error review applied

because the instruction had not been requested.

       {¶ 71} Nonetheless, the appellate court observed that “ ‘a defendant’s own

testimony that he did not intend to kill his victim does not entitle him to a lesser-included

offense instruction.’ * * * Even though the defendant’s own testimony may constitute some

evidence supporting a lesser offense, if the evidence on whole does not reasonably

support an acquittal on the murder offense and a conviction on a lesser offense, the court

should not instruct on the lesser offense.” (Citations omitted) Id. at ¶ 41. The Tenth District

then noted that the rest of the evidence was contrary to Hubbard’s assertion that he fired

at the ground and that there was no testimony or physical evidence to corroborate his

statements. Under those circumstances, it was not plain error to fail to give a reckless

homicide instruction.

       {¶ 72} Here, Turner’s testimony about an unloaded gun aptly can be described as

an afterthought not raised until cross-examination. There is no physical or testimonial

evidence of corroboration. All other evidence in the case supports an inference and

conclusion that Turner did know his gun was loaded: he testified that he kept the gun in

his car for protection (which would require the gun to be loaded), he knew how to operate

the weapon, he bought the gun two weeks earlier but implausibly claimed he never
                                                                                       -30-


determined there was ammunition in it, his passenger heard a “cocking” sound just before

the gun discharged, a video appeared to show him chambering a round just before the

shooting, he did not act shocked or surprised after shooting the victim, and he fled Ohio

and discarded the weapon. After hearing the evidence—including the videos, the still

frames, the blow-up portions thereof, the testimony of Leanna Mills, Evan Stewart, and

Detective Jordan, the display about ratcheting a round in the chamber and the nature of

a trigger guard on a handgun, and the fact that Turner tracked down Stewart and was

grabbing the paycheck as the car moved—the trial court reasonably could have

concluded that the only reasonable interpretation of the evidence was that Turner

chambered a round in the weapon as he approached Stewart, that he knew the weapon

was loaded and ready to fire, and that he acted purposely and knowingly in firing the

weapon and killing Stewart’s cousin Melody.         Accordingly, it was not an abuse of

discretion for the court to decline to give a reckless homicide instruction.

        INTERPRETING TURNER’S TESTIMONY MOST FAVORABLY TO HIM, THE

UNLOADED GUN THAT “JUST WENT OFF” WITHOUT ANYONE’S FINGER ON THE

      TRIGGER DESCRIBES AN ACCIDENT AND NOT RECKLESS HOMICIDE.

       {¶ 73} Case law supports the denial of the reckless homicide instruction. In State

v. Evans, 7th Dist. Mahoning No. 00 CA 93, 2002-Ohio-3047, Evans got a gun out of his

car and approached Jason Jenkins, with whom he was having an argument. Although

there was testimony to the contrary, Evans said that “Jason grabbed appellant’s arm.

Appellant pulled away. Appellant testified that as he pulled away, the gun just went off.”

Id. at ¶ 5. Jason was shot but survived. Evans was charged with felonious assault with a

firearm specification. He requested an instruction on the lesser included offense of
                                                                                          -31-


negligent assault. The trial court, applying the proper standard, declined to give that

instruction, indicating that either Evans acted knowingly or the whole incident was an

accident. The court of appeals agreed:

              Appellant testified that the gun just “went off.” Jason and [another

       witness] testified that appellant pointed the gun at Jason and shot him.

       Nowhere did anyone testify that appellant negligently handled the gun or

       failed to perceive or avoid a risk. Thus, it is apparent that the evidence

       adduced at trial did not reasonably support a charge of negligent assault.

Id. at ¶ 31. If a negligent homicide instruction is not appropriate in the case of an accident

when a gun “just goes off,” then certainly an instruction on a higher culpable mental state,

recklessness, should not be given when an unloaded firearm just goes off unless there is

some other evidence of reckless behavior.

       {¶ 74} The difference between reckless and negligent conduct was explained in

State v. Peck, 172 Ohio App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263 (10th Dist.). Peck,

a tow truck driver, was convicted of reckless homicide. He was using an underrated

snatch block on his tow trucks, which broke and catapulted into a passing vehicle, killing

that driver. The court held that the evidence did not prove that Peck knew of the risk

associated with his conduct. Because he was unaware that he was using the wrong

equipment, the evidence did not support his conviction for reckless homicide. The Peck

court explained: “A mere failure to perceive or avoid a risk, because of a lack of due care,

does not constitute reckless conduct.” (Citation omitted.) Id. at 29. “The reckless actor is

aware of the risk and disregards it; the negligent actor is not aware of the risk but should

have been aware of it.” Id. at 30, citing Wharton's Criminal Law (15th Ed.1993), Section
                                                                                        -32-


27, 170. To evaluate whether actions constitute reckless behavior, a court must “assess

the defendant’s knowledge of the specific risk created by the defendant’s conduct, not the

defendant’s knowledge of the general risk inherent in the activity, in determining criminal

liability for reckless homicide. Otherwise, there could be criminal liability for even

negligent conduct whenever the defendant is aware that he is engaged in an inherently

dangerous activity.” (Emphasis added.) (Citation omitted.) Id. at 31.11

       {¶ 75} Here, interpreting the evidence most favorably to Turner, there was no

evidence of recklessness. If his testimony were believed, he did not know the weapon

was loaded. He had no intention of hurting anyone. His finger was not on the trigger, and

he did not testify that Stewart’s was either. He threw the gun away because “[b]eing that

the gun went off, I didn’t want it.” That describes a weapon that malfunctioned on its

own, not one that was fired, intentionally or otherwise. That describes an accident, not

reckless handling.

       {¶ 76} In State v. Rohdes, 23 Ohio St.3d 225, 492 N.E.2d 430 (1986), 12 Fred

Rohdes killed Paul Boysel with one shot from a handgun. The two were arguing in

Rohdes’ house when Rohdes picked up a handgun and displayed it. Boysel went outside,

and Rohdes followed. Rohdes “testified that he slipped in the snow or tripped over some



11 R.C. 2901.22(C), the “recklessly” definition, was amended effective 3-23-15. The
“disregards a ‘known risk’ ” was changed to “disregards ‘a substantial and unjustifiable
risk.’ ” In a civil case, we have commented that the new statutory language was not a
“significant distinction” from the old version. Brewer v. Dick Lavy Farms, L.L.C., 2016-
Ohio-4577, 67 N.E.3d 196, ¶ 21, fn. 1 (2d Dist.).
12 Rohdes was modified regarding analysis of involuntary manslaughter as a lesser
offense in State v. Kidder, 32 Ohio St.3d 279, 513 N.E.2d 311 (1987). That does not affect
the analysis here.
                                                                                          -33-

other object in his house slippers, and the resultant shooting was an accident.” Id. at 225.

Rohdes was charged with murder, and at trial the State requested an instruction on

involuntary manslaughter by the misdemeanor of menacing. That instruction was given.

Rohdes requested a lesser instruction on negligent homicide. That was not given. He was

convicted of involuntary manslaughter. The court of appeals reversed, but appeal was

allowed on a motion and cross motion for leave to appeal in the Ohio Supreme Court. Of

relevance here, the Ohio Supreme Court analyzed whether an instruction on negligent

homicide should have been given.

       {¶ 77} The Ohio Supreme Court reinstated the involuntary manslaughter

conviction. In so doing, it also concluded that a negligent homicide instruction was not

required. “[T]he evidence does not, even when construed most favorably to the appellee,

present any fact pattern on which a trier of fact could reasonably find appellee guilty of

negligently causing the death of another by means of a deadly weapon. Slipping or

tripping in the snow, if believed by the jury, is an accident, not the substantial lapse from

due care required under R.C. 2903.05 to establish negligence.” Id. at 228. If a court should

not give a negligent homicide instruction when an accident is described, certainly a

reckless homicide instruction should not be given when the defendant’s evidence

describes an accidental misfiring of a weapon believed to be unloaded.

       {¶ 78} In a case similar to the one before us, State v. Easley, a defendant was

charged with attempted murder and two counts of felonious assault in addition to firearm

specifications and a weapons charge. Pertinent here, the defendant requested an

instruction on attempted reckless homicide. This following passage encapsulates the rest

of the story:
                                                                                        -34-


             * * * [A]ppellant provided no evidence to demonstrate his being

      reckless in the shooting incident against Woods. Instead, appellant claimed

      that the gun discharged accidentally during a struggle. Reckless conduct

      goes beyond what is considered to be an accident. State v. Martin, Franklin

      App. No. 07AP-362, 2007-Ohio-7152, at ¶ 53. Indeed, an accident claim is

      inconsistent with recklessness; accident is an unintentional act that

      denounces a culpable mental state. State v. Fears, 86 Ohio St.3d 329, 340,

      1999-Ohio-111; State v. Barnd (1993), 85 Ohio App.3d 254, 260; State v.

      Skeens, Noble App. No. 286, 2001-Ohio-3476. Given that appellant claimed

      an accident here, and not reckless conduct, and in light of the above-noted

      evidence otherwise establishing appellant’s purposeful conduct in shooting

      Woods, we do not find under any reasonable view of the evidence that the

      jury could have found appellant not guilty of attempted murder, but guilty of

      attempted reckless homicide.

(Emphasis added.) State v. Easley, 10th Dist. Franklin No. 07AP-578, 2008-Ohio-468,

¶ 60; see also State v. Wyatt, 12th Dist. Butler No. CA2010-07-171, 2011-Ohio-3427,

citing Easley (court held that a reckless homicide instruction not required where defendant

testified his wife was shot in the back of the head when a “sudden movement” caused the

gun to discharge when he went to hug his wife. Although appellant claimed the shooting

was accidental, “[r]eckless conduct goes beyond what is considered to be an accident.”).

      {¶ 79} Here there was no testimony about the risks associated with pointing a

firearm in the direction of a human being, unloaded or otherwise, and no testimony about

firearm safety or verification of whether a weapon was inoperable, none. There was no
                                                                                  -35-


testimony from Turner, on either direct or cross examination, from which one could

evaluate whether he contemplated, recognized, knew of, or appreciated a risk that his

actions involving an unloaded weapon might result in an unintended and uncaused

misfire, none. To the contrary, Turner described an accidental misfire of a weapon he

believed was not loaded. Without evidence of reckless conduct, a reckless homicide

instruction properly was excluded.

      {¶ 80} I would affirm the judgment of the trial court.



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


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Andrew R. Pickering
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Hon. Richard J. O’Neill
