[Cite as State v. Mills, 2011-Ohio-5793.]


                   IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
v.                                              :       JUDGMENT ENTRY
                                                :
JOHN MILLS                                      :
                                                :
        Defendant-Appellant                     :       CASE NO. 10CA119



         This Judgment Entry reflects the Opinion that was filed on November 2, 2011.

This Nunc Pro Tunc is being filed to correct an error on the cover page with the

counsel's name for the Defendant-Appellant.

        IT IS SO ORDERED.




                                                _s/ Sheila G. Farmer_________________



                                                _s/ William B. Hoffman ______________



                                                _s/ Julie A. Edwards__________________

                                                            JUDGES
[Cite as State v. Mills, 2011-Ohio-5793.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Julie A. Edwards, J.
v.

JOHN MILLS                                         Case No. 10CA119

        Defendant-Appellant                        OPINION


                                                   NUNC PRO TUNC


CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 10CR299D



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT:                                November 9, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JILL M. COCHRAN                                 PATRICIA O'DONNELL KITZLER
38 South Park Street                            3 North Main Street
Mansfield, OH 44902                             Suite 801
                                                Mansfield, OH 44902
Richland County, Case No. 10CA119                                                       2

Farmer, J.

       {¶ 1} On August 27, 2009, an argument ensued between appellant, John Mills,

along with his sons, Kyle and Kameron Mills, and several members of a neighboring

family, the Edwards Family. The Edwards Family members involved in the altercation

included Michael Edwards, his brother Mack Edwards, Jr. (hereinafter "Junior"),

Michael's girlfriend Timberly Bowman, and her son Maverick Herritt. Appellant's father,

Jim Mills, arrived on the scene to defuse the situation. During the melee, Jim was killed

when he was struck by a board swung by his grandson Kameron.

       {¶ 2} On May 7, 2010, the Richland County Grand Jury indicted appellant on

one count of aiding and abetting murder in violation of R.C. 2903.02(B), one count of

aiding and abetting involuntary manslaughter in violation of R.C. 2903.04(A), and two

counts of felonious assault in violation of R.C. 2903.11(A)(1) or (2), one with aiding and

abetting language and one without. A jury trial commenced on September 2, 2010.

The jury found appellant guilty as charged except for the felonious assault count without

the aiding and abetting language. By judgment entry filed September 14, 2010, the trial

court merged the murder and involuntary manslaughter convictions and sentenced

appellant to an aggregate term of fifteen years to life in prison.

       {¶ 3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶ 4} "APPELLANT WAS DEPRIVED OF DUE PROCESS OF LAW AS

GUARANTEED BY THE OHIO AND U.S. CONSTITUTIONS AS A RESULT OF THE

INEFFECTIVE       ASSISTANCE       OF    COUNSEL       ARISING       FROM   FAILURE   TO
Richland County, Case No. 10CA119                                                  3


EFFECTIVELY OBJECT TO OR LIMIT PREJUDICIAL ‘OTHER ACTS’ EVIDENCE; OR

IN THE ALTERNATIVE, IT WAS PLAIN ERROR TO PERMIT THE STATE’S

GRATUITOUS USE OF SUCH EVIDENCE."

                                         II

       {¶ 5} "APPELLANT’S CONVICTION ON CHARGES OF FELONY MURDER

AND INVOLUNTARY MANSLAUGHTER ARE CONTRARY TO THE MANIFEST

WEIGHT AND SUFFICIENCY OF EVIDENCE PRESENTED AT TRIAL, THUS

DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION AND UNDER

ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

                                         III

       {¶ 6} "THE TRIAL COURT’S REFUSAL TO INSTRUCT THE JURY THAT IT

COULD CONSIDER SELF DEFENSE AS TO COUNTS I AND II CONSTITUTES

ABUSE OF DISCRETION, OR IN THE ALTERNATIVE, PLAIN ERROR, THUS

DEPRIVING APPELLANT OF DUE PROCESS OF LAW UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND UNDER ARTICLE

I, SECTION 16 OF THE OHIO CONSTITUTION."

       {¶ 7} We will address Assignment of Error II relative to the sufficiency and

manifest weight of the evidence first because the discussion impacts on Assignment of

Error I.
Richland County, Case No. 10CA119                                                         4


                                             II

       {¶ 8} Appellant claims his convictions for aiding and abetting felony murder and

involuntary manslaughter were against the sufficiency and manifest weight of the

evidence. We disagree.

       {¶ 9} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

       {¶ 10} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,

certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not
Richland County, Case No. 10CA119                                                       5

translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

       {¶ 11} Appellant was found guilty of aiding and abetting felony murder and aiding

and abetting involuntary manslaughter. R.C. 2903.03 defines aiding and abetting as

follows:

       {¶ 12} "(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

       {¶ 13} "(1) Solicit or procure another to commit the offense;

       {¶ 14} "(2) Aid or abet another in committing the offense;

       {¶ 15} "(3) Conspire with another to commit the offense in violation of section

2923.01 of the Revised Code;

       {¶ 16} "(4) Cause an innocent or irresponsible person to commit the offense."

       {¶ 17} Murder as it pertains to this case is defined in R.C. 2903.02(B) as, "[n]o

person shall cause the death of another as a proximate result of the offender's

committing or attempting to commit an offense of violence that is a felony of the first or

second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised

Code."     Involuntary manslaughter as it pertains to this case is defined in R.C.

2903.04(A) as, "[n]o person shall cause the death of another or the unlawful termination

of another's pregnancy as a proximate result of the offender's committing or attempting

to commit a felony." The underlying felony was felonious assault which is defined in

R.C. 2903.11 as follows:

       {¶ 18} "(A) No person shall knowingly do either of the following:

       {¶ 19} "(1) Cause serious physical harm to another or to another's unborn;
Richland County, Case No. 10CA119                                                         6


       {¶ 20} "(2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance."

       {¶ 21} Generally, a criminal defendant has aided or abetted an offense if he has

supported, assisted, encouraged, cooperated with, advised, or incited another person to

commit the offense. State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336; State v.

Hickman, Stark App. No.2003-CA-00408, 2004-Ohio-6760.

       {¶ 22} The bill of particulars filed August 25, 2010 alleged the following:

       {¶ 23} "COUNT I: JOHN MILLS, DOB: 01/31/1959, SSN: [XXX/XX/XXXX], on or

about the 27th day of August, 2009, at the County of Richland, while aiding and abetting

another, did cause the death of another as a proximate result of the offender's

committing or attempting to commit an offense of violence, to-wit: Felonious assault,

and that is not a violation of section 2903.03 or 2903.04 or the Revised Code, in

violation of section 2903.02(B) of the Ohio Revised Code and against the peace and

dignity of the State of Ohio.

       {¶ 24} "John Mills solicited his sons Kameron and Kyle to assist him in assaulting

various persons residing at 668 MCBride (sic) Road, including but not limited to Mack

Edwards, Jr., Mack Edwards, Sr., Maverick Herritt, David Edwards, Michael Edwards,

Timberly Bowman, etc.

       {¶ 25} "John Mills, acting in complicity with his sons Kameron and Kyle Mills,

fought with Mack Edwards, Jr. and members of his extended family. John Mills put

Mack Edwards, Jr. in a choke hold and strangled him to near unconsciousness, and

threatened to kill him with a knife held to this throat while his two sons kicked and struck

Mr. Edwards repeatedly.
Richland County, Case No. 10CA119                                                       7


       {¶ 26} "John Mills encouraged his sons to assault various members of the

Edwards family. John Mills struck Maverick Herritt with a locust stick and punched him

in the face as his sons struck Mr. Herritt with sticks, boards and possibly a piece of

cinder-block.

       {¶ 27} "John Mills encouraged and incited his son Kameron Mills into assaulting

Timberly Bowman by striking her in the abdomen with a board. He taunted his father to

fight with he and his sons and encouraged and incited his son Kameron Mills to strike

James Mills in the head with a board; then struck James Mills in the head with a

wooden object, killing him."

       {¶ 28} The bill of particulars on the involuntary murder count mirrors these

allegations.

       {¶ 29} Appellant did not appeal the predicate offense of felonious assault;

therefore, we find he conceded the conviction. What appellant contests is the finding

that he aided and abetted in the murder/involuntary manslaughter of his father.

Appellant argues the evidence failed to show that he "voiced encouragement to his sons

during the melee, that he asked for their assistance, cheered them on, or did anything to

solicit or incite them to violence." Appellant's Brief at 26. Appellant also argues his

father's death was not the proximate result of the predicate offense of felonious assault,

and there was no credible evidence that he initiated the altercation.

       {¶ 30} In State v. Dykas, 185 Ohio App.3d 763, 2010-Ohio-359, ¶22-27, our

brethren from the Eighth District explained the following:
Richland County, Case No. 10CA119                                                       8

      {¶ 31} "In State v. Robinson (1994), 98 Ohio App.3d 560, 574, 649 N.E.2d 18,

quoting State v. Chambers (1977), 53 Ohio App.2d 266, 272-273, 7 O.O.3d 326, 373

N.E.2d 393, we stated:

      {¶ 32} " ' "Having found that the Ohio legislature intended to adopt the proximate

cause theory of criminal liability, as to R.C. 2903.04, we hold that when a person, acting

individually or in concert with another, sets in motion a sequence of events, the

foreseeable consequences of which were known or should have been known to him at

the time, he is criminally liable for the direct, proximate and reasonably inevitable

consequences of death resulting from his original criminal act." See, also, State v.

Younger (May 31, 1990), Cuyahoga App. No. 57080, unreported, 1990 WL 71529.'

      {¶ 33} "A defendant cannot be held responsible for consequences that no

reasonable person could expect to follow from his conduct, but he will be held

responsible for consequences that are direct, normal, and reasonably inevitable when

viewed in the light of ordinary experience. State v. Losey (1985), 23 Ohio App.3d 93,

95, 23 OBR 158, 491 N.E.2d 379. It is not necessary that the defendant 'be in a

position to foresee the precise consequence of his conduct; only that the consequence

be foreseeable in the sense that what actually transpired was natural and logical in that

it was within the scope of the risk created by his conduct.' Id. at 96, 23 OBR 158, 491

N.E.2d 379.

      {¶ 34} "Only a reasonably unforeseeable intervening cause will absolve one of

criminal liability in this context. State v. Lovelace (1999), 137 Ohio App.3d 206, 215,

738 N.E.2d 418. '[W]hen the result varied from the harmed [sic] intended or hazarded, it

must be determined that the result achieved was not so extraordinary or surprising that
Richland County, Case No. 10CA119                                                         9


it would be simply unfair to hold the defendant criminally responsible for something so

unforeseeable.' Id. at 216, 738 N.E.2d 418, citing LaFave & Scott, Criminal Law (1972),

246, Section 35.

       {¶ 35} "In State v. Ervin, Cuyahoga App. No. 87333, 2006-Ohio-4498, 2006 WL

2507563, ¶25, quoting State v. Dixon (Feb. 8, 2002), Montgomery App. No. 18582,

2002 WL 191582, *5, we stated:

       {¶ 36} " ' "Under the 'proximate cause theory,' it is irrelevant whether the killer

was the defendant, an accomplice, or some third party such as the victim of the

underlying felony or a police officer. Neither does the guilt or innocence of the person

killed matter. [A] Defendant can be held criminally responsible for the killing regardless

of the identity of the person killed or the identity of the person whose act directly caused

the death, so long as the death is the 'proximate result' of Defendant's conduct in

committing the underlying felony offense; that is, a direct, natural, reasonably

foreseeable consequence, as opposed to an extraordinary or surprising consequence,

when viewed in the light of ordinary experience." ' See also Chambers, 53 Ohio App.2d

266, 7 O.O.3d 326, 373 N.E.2d 393; State v. Bumgardner (Aug. 21, 1998), Greene App.

No. 97-CA-103, 1998 WL 892120."

       {¶ 37} It is conceded that the fact scenario in this case is very convoluted and

confusing with some seven witnesses explaining their personal and limited observations

of the incident. Appellant and all the witnesses from the Edwards Family testified to

continued hostility and harassment between the families. T. at 233, 237, 325, 377-378,

509, 1248. Various incidents, disputes, and disharmony over time i.e., shutting off of
Richland County, Case No. 10CA119                                                        10


well water, driving by and flipping people off, name calling, cussing, spinning tires,

throwing rocks, culminated in the events of August 27th.

       {¶ 38} The altercation between the parties appears to have started by the

cussing and name calling by appellant's sons Kyle and Kameron as Junior was walking

to meet Timberly's son Maverick, who is mentally challenged, at the school bus. T. at

235, 237. After Junior returned with Maverick to their home, Kyle and Kameron drove

by, cussing and hollering. T. at 238. The boys opened a gate and drove onto their own

property. T. at 238-239. They then taunted the Edwards Family to "fucking come over

here and make us shut up." T. at 240. The boys started throwing rocks and the

Edwards Family threw some back, one of them breaking the taillight of the boys' vehicle.

T. at 242-245, 380, 401. The boys took off in the vehicle and returned with appellant.

T. at 380, 474. Appellant was carrying his walking stick and each boy had a board in

their hands. T. at 246, 403.

       {¶ 39} What is critical to the analysis in determining whether appellant aided and

abetted in the murder and involuntary manslaughter of his own father are appellant's

specific actions after he and his boys returned to the Edwards's home. It is not disputed

that Kameron struck his grandfather with a board, causing his death. It is from this fact

that appellant launches his challenge to the aiding and abetting charges against him.

       {¶ 40} The state's theory of the case was that appellant encouraged, incited,

solicited, and aided and abetted the melee that resulted in the death of James Mills:

       {¶ 41} "The bottom line is none of this would have happened had John Mills not

decided, 'That's enough of this shit, I'm taking my stick.' He wants you to believe that, I

took my stick, I don't know what I was going to do with it, I just take it everywhere.
Richland County, Case No. 10CA119                                                        11


       {¶ 42} "Now, his taillight has been busted.        His sons have come to him

complaining after a month of all this back and forth, F you, flipping off, throwing gravel,

all this stuff going on, and, oh, well, I can't leave without my, let's see, make sure I got

my cell phone, got my keys, got my walking stick, let's go down there and see if we can

settle this. Let's go down there and find out who did it so we can call the cops.

       {¶ 43} "You know why he took his stick. He took his stick because he's ready to

go down there and beat some people. He didn't know, of course, that there were going

to be eight or nine of them coming out. His intention clearly was to go down there and

get Mack Edwards and beat the crap out of him, take his two boys. He didn't need

Kaleb, Kaleb had been working, Kaleb is in bed, Kaleb is slow getting up getting his

shoes on, whatever, they left him, they don't need him. The three of them could easily

handle Mack Edwards and give him an education." T. at 1310-1311.

       {¶ 44} The testimony supports this theory. Junior testified appellant, carrying a

stick and flanked by Kameron and Kyle, each with a board in their hands, approached

the Edwards's property. T at 246, 293. Upon exiting his house, Junior observed that

his girlfriend Timberly and her son Maverick had been struck. T. at 248. He observed

Kameron raising his board to strike Maverick again so he lunged at appellant and his

sons. T. at 249. He knocked appellant over and one of the boys started hitting him with

a board. Id. Thereafter, appellant started choking him and threatening his life. T. at

249-250. Junior passed out. T. at 250. When he came to, he broke free and saw

everyone around Jim who was down on the ground. T. at 251.

       {¶ 45} Junior's brother Michael observed Kameron strike Timberly with a board

and then Kameron struck him. T. at 385. Michael saw appellant and Jim talking and
Richland County, Case No. 10CA119                                                      12


appellant running around Jim to confront Junior.       T. at 404, 413.    Michael heard

appellant taunt Junior, stating "I want a piece of you."      T. at 404-405, 413.     Jim

attempted to take the board out of Kyle's hands and Junior lunged at appellant and

knocked him down. T. at 388, 406, 415. One of the boys started hitting and kicking

Junior. T. at 388. Michael observed Jim standing with blood on the side of his face and

then lying on the ground. T. at 389.

       {¶ 46} Timberly testified to Kameron hitting her with a board. T. at 331. She

observed Michael getting hit, Kameron striking Jim with a board, appellant choking

Junior, and the boys hitting Junior as he was on the ground. T. at 333, 335, 337, 362.

       {¶ 47} Maverick testified to observing appellant choking Junior and Kameron

hitting Jim with a board. T. at 432, 434. Maverick testified that "Kyle hit me in my head,

and Kameron hit me on my side and their dad punched me in the face with some kind of

stick material." T. at 428.

       {¶ 48} Junior's brother David Edwards testified when appellant and the boys

returned to the property, he heard appellant say to Junior, " 'You know, I've had enough,

come and get some,' or whatever he said, along them lines." T. at 532, 538. David

observed all of the fighting, Jim coming down and taking a board from Kyle, and then

the following:

       {¶ 49} "Right after that happened, John got up in his [Jim's] face and started

shaking a walking stick it looked like into his face. He started saying, 'Come on, hit me

old man. I'm tired of you standing up for them all the time.' He said, 'Hit me old man,'

that's what I remember from that point.
Richland County, Case No. 10CA119                                                      13


       {¶ 50} "Then after that he [Jim] walked up, and he went to grab Kameron's two

by four from him, and in the process, Kameron, when he did it, Kameron jerked back

real hard like that and hit Jim." T. at 520.

       {¶ 51} David's girlfriend Amanda Wood testified that Jim was trying to stop the

fighting and she overheard the following:

       {¶ 52} "He [Jim] was saying, 'Stop, this is nonsense, we're neighbors, this doesn't

need to go on.' He went up to John, and I don't know what he said to John, but I know

that John had his walking stick and was shoving it in his face and saying, 'Come on you

old mother-fucker, hit me. Come on you pussy, hit me.' " T. at 478.

       {¶ 53} Kameron and Kyle were there during this exchange.               T. at 502.

Thereafter, Amanda saw Jim try to stop Kameron and Kameron strike Jim with a board.

T. at 479, 482.

       {¶ 54} Jim's grandson Gary Wilson observed cussing and rock throwing between

Kameron and Kyle and members of the Edwards family. T. at 806. Appellant was not

doing anything to stop his sons' behavior.     T. at 807.    In fact, appellant was "just

standing there smiling." Id. Gary described appellant's actions as "egging them on to

do it." Id.

       {¶ 55} Gary's mother and Jim's daughter Katherine Wilson testified to observing

Kameron hit her father. T. at 876.

       {¶ 56} Jim's wife Sandra Mills testified to seeing her grandson Kameron hit his

grandfather with the board. T. at 991-992. "[H]e swung it like a freaking golf club or a

ball bat." T. at 992.
Richland County, Case No. 10CA119                                                    14


       {¶ 57} Appellant testified in his own defense. On direct, appellant explained how

he reacted to hearing the taillight had been broken and how the altercation occurred as

follows:

       {¶ 58} "A. I said, 'That's enough of this shit. We're going to go up and we're

going to fix this right now.'

       {¶ 59} "Q. How were you going to fix it?

       {¶ 60} "A. Well, we went up to find out who broke the taillight and we was going

to call the sheriff.

       {¶ 61} "Q. We heard some testimony that you grabbed your walking stick?

       {¶ 62} "A. Yes.

       {¶ 63} "Q. Why did you grab your walking stick?

       {¶ 64} "A. I took it everywhere.

       {¶ 65} "Q. I think Maverick Herritt said that you took it everywhere.

       {¶ 66} "A. Yeah, just a habit.

       {¶ 67} "Q. Okay. What about Kameron and Kyle, did they grab any kind of a

stick or weapon?

       {¶ 68} "A. No.

       {¶ 69} "Q. And who drove?

       {¶ 70} "A. I did.

       {¶ 71} "Q. And I think there was some testimony from the Grand Jury that you

flew down through the field?

       {¶ 72} "A. Well, as fast as you can drive in a field.

       {¶ 73} "***
Richland County, Case No. 10CA119                                                        15


       {¶ 74} "Q. You go back down to the gate?

       {¶ 75} "A. We drove through the creek and up to the gate, yeah.

       {¶ 76} "Q. What happened when you got to the gate?

       {¶ 77} "A. When we pulled up to the gate dad was at the gate chaining it shut.

He said, 'There ain't going to be no trouble.' I said, 'I m going to find out who broke my

fucking taillight, I'm going to the cops, they're going to jail.'

       {¶ 78} "Q. What did your dad say?

       {¶ 79} "A. He said, 'I don't want no trouble, just let it go.' I said, 'You might let

them tear up your shit, but they ain't fucking my stuff up.'

       {¶ 80} "Q. That's the way you talked to your dad?

       {¶ 81} "A. Yep, that's the way I put it.

       {¶ 82} "Q. What did Kameron and Kyle do?

       {¶ 83} "A. When dad was locking the gate they jumped over the side of the fence

next to the gate.

       {¶ 84} "***

       {¶ 85} "Q. Did you make it through the gate?

       {¶ 86} "A. When dad went over to Kameron and Kyle because they jumped over

the fence I opened the gate and went through the gate." T. at 1211-1213.

       {¶ 87} Appellant claimed Junior admitted to breaking the taillight and "there

wasn't going to be no fight" because he was going to call the police about the

admission. T. at 1214-1215. Next thing appellant knows, Maverick came running at

him and he hit Maverick in the face with his walking stick. T. at 1215-1217. Kyle then

hit Maverick in the side of the head with a piece of cement block. T. at 1217. As
Richland County, Case No. 10CA119                                                      16


appellant turned to retreat, he saw Kameron hit Timerbly and Michael with a board. T.

at 1218. Appellant threw his stick down and Junior hit him on the top of his head. Id.

Kyle hit Junior on the side of his head knocking him down and appellant put a choke

hold on him. T. at 1219. Appellant then placed his unopened knife on his throat and

told him he would "kill him because he wouldn't lay still. I had enough." T. at 1220.

After letting Junior up, Junior mouthed-off so appellant decided he was going to "whoop

his ass." T. at 1221. Appellant then testified to the following:

        {¶ 88} "A. When I went after him [Junior] he turned around, dad was right behind

him and he had his whopping stick, and when he turned around to run past dad he

threw his arm up and run past dad and hit him in the side of the head and dad fell to the

ground.

        {¶ 89} "Q. So you are telling us Mack Edwards is the one that caused your father

to fall to the ground?

        {¶ 90} "A. Yes." T. at 1221.

        {¶ 91} Appellant did not see Kameron hit Jim. T. at 1222.

        {¶ 92} On cross-examination, appellant admitted that once he arrived at the

Edwards's property, he "immediately started sizing up whose got who when this all

starts." T. at 1256. Appellant did not tell his sons not to fight. T. at 1256-1257. He did

not tell his sons to drop their boards. T. at 1276. Instead, appellant said, " 'You guys

are going to get an education why you shouldn't have busted the taillight on my car.' "

T. at 1257.    Appellant never told his sons to stop fighting.      T. at 1265-1266.   He

admitted that his father Jim was trying to stop the fighting even before it started. T. at

1273.
Richland County, Case No. 10CA119                                                          17


       {¶ 93} The predicate offense in the involuntary manslaughter charge was

felonious assault which appellant does not contest. The bill of particulars filed August

25, 2010, as to the involuntary manslaughter count, alleged appellant solicited his sons

to assist him in the assault, and encouraged and incited his sons to participate in the

melee.1 We find the above cited testimony is more than sufficient to sustain the aiding

and abetting of involuntary manslaughter.

       {¶ 94} The predicate offense in the felony murder was also the felonious assault

charge again, which appellant does not contest. The original disagreement with name

calling and rock throwing was between Junior and appellant's boys. The boys went

home and returned with appellant as their leader and undeniably the aggressor. As the

cited evidence establishes, appellant came prepared for a fight. He flew through the

field and confronted the Edwards Family with his two sons, each armed with a board.

Appellant was holding his walking stick. He sized-up the Edwards Family and taunted

Junior. He ignored his father's pleadings not to fight and did not tell his sons not to fight.

By his actions, appellant set forth in motion a sequence of events with foreseeable

consequences that he should have known would result in someone's death.                 Jim's

death was "natural and logical in that it was within the scope of the risk created by his

[appellant's] conduct." Dykas, quoting Losey, supra. Kameron striking his grandfather




1
  We note appellant was never charged with R.C. 2917.01, inciting to violence, as stated
in appellee's brief at 21. Although appellant did not object, we note the trial court erred
in so charging the jury. T. at 1293. However, we find the error to be harmless given the
fact that the trial court merged the felony murder and involuntary manslaughter counts
and sentenced appellant on the felony murder. Crim.R. 52(A); September 14, 2010 T.
at 1374; Sentencing Entry filed September 14, 2010. In addition, aiding and abetting
language parallels the language charged to the jury. See, ¶21, supra.
Richland County, Case No. 10CA119                                                          18


with the board and killing him was not extraordinary or surprising given the facts cited

supra.

         {¶ 95} Disregarding any character evidence presented, the overall tenor of the

altercation was that appellant was the sole person in charge, initiated the return to the

Edwards's property, and did nothing to stop his boys from participating in the melee

which ultimately resulted in Jim's death.

         {¶ 96} Upon review, we find sufficient credible evidence of aiding and abetting

felony murder and involuntary manslaughter, and no manifest miscarriage of justice.

         {¶ 97} Assignment of Error II is denied.

                                               I

         {¶ 98} Appellant claims he was denied the effective assistance of trial counsel for

counsel's failure to object to "other acts" evidence. We disagree.

         {¶ 99} The standard this issue must be measured against is set out in State v.

Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari

denied (1990), 497 U.S. 1011. Appellant must establish the following:

         {¶ 100}      "2. Counsel's performance will not be deemed ineffective unless

and until counsel's performance is proved to have fallen below an objective standard of

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

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;

Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

         {¶ 101}      "3. To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a reasonable
Richland County, Case No. 10CA119                                                       19


probability that, were it not for counsel's errors, the result of the trial would have been

different."

         {¶ 102}       An error not raised in the trial court must be plain error for an

appellate court to reverse. State v. Long (1978), 53 Ohio St.2d 91; Crim.R. 52(B). In

order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error.   Long.     Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

         {¶ 103}       Evid.R. 403(A) provides, "[a]lthough relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 404 governs

"character evidence" and states the following in pertinent part:

         {¶ 104}       "(A) Character evidence generally. Evidence of a person's

character or a trait of character is not admissible for the purpose of proving action in

conformity therewith on a particular occasion, subject to the following exceptions:

         {¶ 105}       "(1) Character of accused. Evidence of a pertinent trait of

character offered by an accused, or by the prosecution to rebut the same is admissible;

however, in prosecutions for rape, gross sexual imposition, and prostitution, the

exceptions provided by statute enacted by the General Assembly are applicable.

         {¶ 106}       "***

         {¶ 107}       "(B) Other crimes, wrongs or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show
Richland County, Case No. 10CA119                                                       20


action in conformity therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident."

       {¶ 108}       The complained of evidence can be divided into two categories.

The first is witness testimony concerning previous incidents involving appellant, and the

second is opinion testimony about appellant's demeanor/character/propensity for

violence.

       {¶ 109}       Appellant complains of testimony elicited about him shooting his

own dog, shutting off the water to the Edwards's home, drinking and drug abuse,

Timberly's comment that appellant "got into it" with her brother, calling Junior's father a

"deaf motherfucker," pointing a gun at Dana Keen, and riding his tractor with a shotgun.

Appellant's Brief at 19-20.

       {¶ 110}       The state argues the testimony was necessary background to show

the extent and nature of the animosity between appellant and the Edwards Family. The

testimony explains the defensive actions taken by Junior, Michael, and Maverick, and

further explains why the Edwards Family immediately called "911" even after the first

phase of name calling and rock throwing had passed.

       {¶ 111}       R.C. 2945.59 governs proof of defendant's motive and states the

following:

       {¶ 112}       "In any criminal case in which the defendant's motive or intent, the

absence of mistake or accident on his part, or the defendant's scheme, plan, or system

in doing an act is material, any acts of the defendant which tend to show his motive or

intent, the absence of mistake or accident on his part, or the defendant's scheme, plan,
Richland County, Case No. 10CA119                                                     21


or system in doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto, notwithstanding that such proof

may show or tend to show the commission of another crime by the defendant."

      {¶ 113}       We conclude the complained of witness testimony was admissible

as being relevant to explain the resulting melee.

      {¶ 114}       The second type of evidence concerned appellant's character: his

sister Katherine's opinion that he was "obnoxious, mean and nasty" and he cussed at

his father every day, his mother Sandra's reference to his similarity to Charles Manson,

and poor opinions from his former employer and various co-workers including "road

rage," threats of "whooping" them, cussing, mouthy, ranting and raving, rude and

belligerent, and name calling. Appellant's Brief at 21-22. The state used this testimony

in closing argument to paint appellant's character and ability to manipulate and control

his sons.

      {¶ 115}       Appellant's sister Katherine's testimony detailed the background of

the living arrangement in the Mills Family and the animosity of appellant and the boys

toward the Edwards Family. T. at 856-860, 862-866. She explained why her father Jim

attempted to control the situation between the families and why he intervened in the

altercation. Although her comment that appellant was obnoxious, mean, and nasty was

unsolicited by the state, there is no doubt it was a comment on character that should not

have been permitted under Evid.R. 404.

      {¶ 116}       Appellant's mother Sandra described her lack of a relationship with

appellant and appellant's animosity toward his father. T. at 937-938. She described the
Richland County, Case No. 10CA119                                                        22


atmosphere immediately preceding the altercation as "hell."           T. at 947.     When

questioned about appellant's influence over his sons, she responded as follows:

      {¶ 117}       "A. When John stood up the boys stood up. When John took a step

the boys took a step. When John sat down the boys sat down. I said if you put a

swastika on his head he would be Charles Manson. This, this, this, this, this, this, that's

what you do." T. at 952.

      {¶ 118}       This same testimony about the boys standing up and sitting down

was given by Katherine. T. at 867.

      {¶ 119}       Sandra's comment was her insight into her own son's personality

which could actually qualify as a lay witness opinion. Nevertheless, the comment was

clearly unanticipated, not responsive, and prejudicial. However, we find the character

comments do not rise to the level of plain error and did not affect the outcome of the

trial. In examining the sufficiency and manifest weight issues in Assignment of Error II

independent of the complained of comments, we found the evidence was sufficient and

overwhelming regarding appellant's leadership role in the altercation.

      {¶ 120}       Assignment of Error I is denied.

                                            III

      {¶ 121}       Appellant claims the trial court erred in not charging the jury on self-

defense as to the murder/involuntary manslaughter counts. We disagree.

      {¶ 122}       The giving of jury instructions is within the sound discretion of the

trial court and will not be disturbed on appeal absent an abuse of discretion. State v.

Martens (1993), 90 Ohio App.3d 338. In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and
Richland County, Case No. 10CA119                                                        23

not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217. Jury instructions must be reviewed as a whole. State v. Coleman (1988), 37 Ohio

St.3d 286.

         {¶ 123}     Crim.R. 30(A) governs instructions and states as follows:

         {¶ 124}     "At the close of the evidence or at such earlier time during the trial

as the court reasonably directs, any party may file written requests that the court instruct

the jury on the law as set forth in the requests. Copies shall be furnished to all other

parties at the time of making the requests. The court shall inform counsel of its

proposed action on the requests prior to counsel's arguments to the jury and shall give

the jury complete instructions after the arguments are completed. The court also may

give some or all of its instructions to the jury prior to counsel's arguments. The court

need not reduce its instructions to writing.

         {¶ 125}     "On appeal, a party may not assign as error the giving or

the failure to give any instructions unless the party objects before the jury retires to

consider its verdict, stating specifically the matter objected to and the grounds of the

objection. Opportunity shall be given to make the objection out of the hearing of the

jury."

         {¶ 126}     Because an objection was not made, we will review this assignment

under the plain error doctrine. Crim.R. 52(B); Long, supra.

         {¶ 127}     As pointed out in Assignment of Error II, appellant did not challenge

his felonious assault conviction which was the underlying crime of violence to the

murder/involuntary manslaughter counts. Also in Assignment of Error II, we set forth

appellant's testimony as to his reaction after being told his son's taillight was broken by
Richland County, Case No. 10CA119                                                          24


an Edwards Family member and the altercation that followed. Appellant never claimed

to be in fear of his life or asserted any form of self-defense as to Junior's attack. In fact,

appellant had him in a choke hold, held an unopened knife to his throat, and told him he

was going to kill him.

       {¶ 128}       Upon review, we conclude no evidence was presented to establish

self-defense; therefore, the trial court did not err in not instructing the jury on the

affirmative defense as to the murder/involuntary manslaughter counts.

       {¶ 129}       Assignment of Error III is denied.

       {¶ 130}       The judgment of the Court of Common Pleas of Richland County,

Ohio is hereby affirmed.

By Farmer, J.

Edwards, J. concurs separately and

Hoffman, P.J. dissents.




                                              _s/ Sheila G. Farmer______________



                                              _______________________________



                                              _______________________________

                                                             JUDGES
Richland County, Case No. 10CA119                                                          25

Hoffman, P.J., dissenting

         (¶131) I respectfully dissent from the Majority’s disposition of Appellant’s second

assignment of error.

         (¶132) Appellant argues in his second assignment of error his convictions for

felony murder and involuntary manslaughter are against the manifest weight and

sufficiency of the evidence.      Appellant was convicted of aiding and abetting felony

murder and involuntary manslaughter in the death of Jim Mills.

         (¶133) As can be seen from the record quoted in the Majority Opinion and as

conceded by the Majority2, it is difficult to draw a clear picture of the events that

transpired that day. The testimony of the witnesses is often inconsistent and frequently

contradictory. At what stage during the incident was Jim hit? Where was Jim when he

was hit? Was Jim struck accidently or intentionally by Kameron? And finally why was

Jim struck? The answers are unclear. As the Appellee aptly concedes in its brief to this

Court “As a result of the myriad of statements, the exact sequence of events . . . is hard

to pin down.” (Appellee’s brief at p.1).

         (¶134) What this Court must determine is whether Appellant aided and abetted

Kameron in Kameron’s causing the death of Jim. More specifically, was Jim’s death the

proximate result of Appellant committing the predicate offense of either a felony offense

of violence (felony murder) and/or any felony offense (involuntary manslaughter).

         (¶135) R.C. 2923.03 requires death be a proximate result of the offender’s

commission of the underlying felony.




2
    Maj. Op. at Paragraph 37.
Richland County, Case No. 10CA119                                                     26


      (¶136) “Defendant can be held criminally responsible for the killing regardless of

the identity of the person killed or the identity of the person whose act directly caused

the death, so long as the death is the ‘proximate result’ of Defendant's conduct in

committing the underlying felony offense; that is, a direct, natural, reasonably

foreseeable consequence, as opposed to an extraordinary or surprising consequence,

when viewed in the light of ordinary experience. Id; State v. Bumgardner (August 21,

1998), Greene App. No. 97-CA-103, unreported; State v. Lovelace (1999), 137 Ohio

App.3d 206, 738 N.E.2d 418.” State v. Dixon, 2002-Ohio-541; See also, State v.

Tuggle 2010-Ohio- 4162, citing State v. Chambers (1977), 53 Ohio App.2d 266, 269,

373 N.E.2d 393. State v. Bumgardner, supra, and State v. Lovelace, supra.

      (¶137) In State v. Lovelace, 137 Ohio App.3d 206, the First District Court of

Appeals determined for a defendant’s conduct to be the proximate cause of a certain

result, it must be determined 1) the conduct was the cause in fact of the result, meaning

“but for” the conduct, the result would not have occurred, and 2) when the result was

different than intended, it must be determined the result achieved was not so

extraordinary or surprising it would simply be unfair to hold the defendant criminally

responsible for something so unforeseeable. Id.

      (¶138) Applying this case law to the evidence, I find Kameron’s striking of his own

grandfather (Jim) with the board was an extraordinary and surprising consequence of

the underlying predicate offense; that being the commission of felonious assault against

the Edwards’ clan in general, and Mack, Jr., in particular. Though Appellant may have

had argumentative words with his father before Appellant began the physical fray

against the Edwards party, Jim was not the intended object of that predicate offense
Richland County, Case No. 10CA119                                                         27


and I believe it would be unfair to hold him criminally responsible for Kameron’s actions

based upon the circumstances of this case.

       (¶139) More importantly, Kameron’s blow to Jim was separate and apart from

Appellant’s felonious assault against Mack, Jr. and occurred after the offense against

the Edwards’ group had ended. It occurred as Kameron was leaving the fray. While

there was evidence Appellant had significant influence over his sons, and John had little

to no respect for, if not a hatred of, his father, I still find Kameron’s striking Jim was an

unexpected consequence of the underlying predicate offense and so attenuated as to

render it insufficient to establish Jim’s death was the proximate result of its commission.

       (¶140) Clearly, there was sufficient competent credible evidence to support

Appellant’s conviction for committing a felonious assault against Mack Edwards, Jr.

However, I find the evidence is insufficient to support a finding Jim Mill’s death was the

proximate result of Appellant committing the underlying predicate felony offense against

Mack, Jr.

       (¶141) I would sustain Appellant’s second assignment of error.



                                                  _s/ William B. Hoffman_____________
                                                  HON. WILLIAM B. HOFFMAN
Richland County, Case No. 10CA119                                                                28


EDWARDS, J., CONCURRING OPINION

       {¶142} I concur with the disposition of this case by Judge Farmer.

       {¶143} I write separately, though, because my analysis of the second assignment

of error differs from that of Judge Farmer. Both Judge Farmer and Judge Hoffman (in

his dissent) separately seem to find that the predicate felony offense for the charges of

felony murder and involuntary manslaughter was the felonious assault of Mack, Jr. by

the appellant.

       {¶144} From my review of the opening and closing arguments of counsel, I reach

the conclusion that the primary theory of this case by the prosecution is that the

appellant aided or abetted Kameron Mills in committing a felonious assault on Jim Mills

which resulted in Jim Mills’ death. The predicate offense is the felonious assault by

Kameron Mills against Jim Mills. The State primarily3 argued that appellant aided and

abetted in this felonious assault by encouraging and inciting the felonious assault. The

prosecutor in opening statement said: “[Witnesses] are going to say Kameron killed his

grandfather. And they are going to say that John incited him to do it. They are going to

say John instigated it…” T. Volume I, pgs. 210-211. The prosecutor further stated: “this

is murder based on felonious assault that results in death. That’s a fact that will be

beyond a reasonable doubt.

       {¶145} “The second thing that’s going to be beyond a reasonable doubt is that

Kameron Mills, John Mills’ nineteen-year-old-son, had a big hand in it, and did it.

       {¶146} “The third thing that is going to be there beyond a reasonable doubt,

proved beyond a reasonable doubt, is that John Mills is as much responsible for it as


3
 The State also argued in closing statement that appellant hit Jim Mills even though Kameron was the
one who landed the fatal blow.
Richland County, Case No. 10CA119                                                      29


anybody there that night. He is the instigator. He’s the inciter. He’s the encourager.

He’s the solicitor. He solicited these boys to go down there and give these people an

education and not let anybody get in their way…” T. Vol. I, pp 212-213. Defense

counsel understood that this was the state’s theory of the case and said in opening

statements: “And despite the prosecutor’s theory, I don’t think you are going to hear any

evidence that John Mills said, ‘Boys, let’s get in the car and go down there and whip

some ass.’ You are not going to hear that.”

      {¶147} Similar arguments, illustrated by evidence from the trial, were made by

both counsel in closing arguments.            The Prosecutor said “[Jim Mills] died

because….[appellant] incited, influenced, inflamed and encourage his sons to use

violence, and not let anyone, not even, quote, that stupid old son of a bitch, stop them

or get in their way.” T. p. 1317. Defense counsel responded: “There is no evidence that

John solicited, instigated, encouraged, enticed or provoked his sons into going down

there and fighting with the Edwards.” T. p. 1338.

      {¶148} The wording of the indictment is difficult to understand.       It uses the

wording from the statutes but is not clear as to what constituted the predicate felony

offense. The Bill of Particulars makes it clear that the State was alleging that appellant

encouraged, solicited and incited his sons to commit assault/felonious assault.

      {¶149} Jury instructions as given by the trial court are also consistent with the

state’s theory of the case: “The first thing he’s charged with is complicity to commit

murder as the result of a violent offense. Before you can find him guilty of this crime

you must find, beyond a reasonable doubt, that on or about August 27, 2009, here in

Richland County, John Mills aided or abetted another in causing the death of James
Richland County, Case No. 10CA119                                                      30


Mills as a proximate result of John Mills, or the person he aided or abetted, committing

felonious assault; or that he caused an irresponsible person to cause the death of

James Mills as a proximate result of other person committing felonious assault; or the

third alternative, that he solicited or procured another to cause the death of James Mills

as a proximate result of committing felonious assault. . . . Aided or abetted means

helped, supported, assisted, encouraged, cooperated with, advised or incited. An aider

or abettor is to be prosecuted and punished as if he were the principal offender.” T. p.

1288. “It’s no defense to a charge of complicity that no person with whom John Mills

was in complicity has been convicted as a principal offender.” T. p. 1289.

       {¶150} While I disagree with Judge Farmer’s (and Judge Hoffman’s) analysis that

the predicate offense of the felony murder and involuntary manslaughter was

appellant’s assault on Mack, Jr.    I do find that the verdict was based on sufficient

evidence and not against the manifest weight of the evidence based on the State’s

theory that appellant aided or abetted Kameron Mills in the felonious assault that

resulted in the death of Jim Mills by encouraging and inciting Kameron Mills to engage

in the felonious assault actions.

       {¶151} I concur with Judge Farmer as to her analysis and disposition of the first

assignment of error.

       {¶152} As to the third assignment of error, I concur with Judge Farmer as to the

disposition of said assignment. But I differ regarding the analysis. Defense counsel

argued throughout the trial that appellant and his sons just went to the Edwards’ to find

out who broke the taillight and then call the police, and that it was a large group of the

Edwards’ who came at appellant and his sons. Therefore, the defense argued, all acts
Richland County, Case No. 10CA119                                                           31


were committed in self-defense. Under a plain error analysis, I find no prejudicial error

in defense counsel’s failure to request a self-defense instruction regarding the felony-

murder and the involuntary manslaughter.           Based on the evidence of appellant’s

involvement in the melee, his initiation of the confrontation, the violent nature of

Kameron’s assault on Jim Mills and Jim Mill’s unwavering attempts to prevent and/or

stop the fight, I cannot conclude that but for counsel’s failure to request this jury

instruction, the results of the trial would have been different.

       {¶153}   In addition, appellant’s counsel, in her brief, does not argue the above

issue. She argues: “the instruction deprived the jury of the ability to logically reason that

if it found self defense as to the two counts of felonious assault, it could therefore find its

way to an acquittal on Counts I and II [felony-murder and involuntary manslaughter].”

The jury did not find self-defense on at least one count of felonious assault. And, based

on the actual theory of the case by the State, the conviction of appellant on one count of

felonious assault was irrelevant to the conviction on the felony-murder and
Richland County, Case No. 10CA119                                             32



manslaughter charges because the felonious assault charge for which appellant was

convicted was not the predicate offense for the felony murder and involuntary

manslaughter charges.

      {¶154} Therefore, I would affirm the judgment of the trial court.




                               __s/ Julie A. Edwards____________________________

                                    Judge Julie A. Edwards
[Cite as State v. Mills, 2011-Ohio-5793.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
v.                                              :        JUDGMENT ENTRY
                                                :
JOHN MILLS                                      :
                                                :
        Defendant-Appellant                     :        CASE NO. 10CA119




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                                _s/ Sheila G. Farmer_______________



                                                _s/ Julie A. Edwards_______________



                                                _______________________________

                                                            JUDGES
