[Cite as State v. Wilson, 2012-Ohio-1952.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97350


                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     SAMUEL WILSON
                                                      DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-549075

        BEFORE: Sweeney, P.J., Rocco, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     May 3, 2012
ATTORNEY FOR APPELLANT

Britta M. Barthol, Esq.
P.O. Box 218
Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Matthew Waters, Esq.
      Katherine Mullin, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:

       {¶1} Defendant-appellant Samuel Wilson (“defendant”) appeals his conviction for

attempted murder following a bench trial. Defendant contends that his conviction was

based on insufficient evidence. He also asserts that his conviction was against the weight

of the evidence on the alleged basis that he acted in self-defense. For the reasons that

follow, we affirm.

       {¶2} According to the record, defendant operated an auto repair business out of his

residence in Cleveland, Ohio. Defendant started this home business because he had

difficulty walking for various reasons, including injuries and obesity.1 Defendant was able

to operate his business with the aid of a few workers.

       {¶3} Defendant met Jason Andrews (“Andrews”) a few years ago when Andrews

was working for a cable television company. Andrews testified that he was responsible for

collecting past due cable payments, or in lieu thereof, shutting off the cable service on the

delinquent accounts. However, for his own personal gain, Andrews would sometimes

illegally reconnect the cable services for a fee. Andrews said he did this for defendant but

defendant denied it.

       {¶4} Defendant began working on Andrews’s cars and Andrews also referred

customers to defendant. The two men developed a friendship. When Andrews left the

employ of the cable company he asked defendant for work. Andrews began working at

defendant’s home business around January or February of 2011.

       1
        The record reflects that defendant used a walker and a wheelchair but could
also sometimes walk without assistance.
      {¶5} Several other men worked for defendant in addition to Andrews, including

George Huggins (“Huggins”) and Rushid Wright (“Wright”). 2            Huggins lived with

defendant and was familiar with Andrews.

      {¶6} Defendant designated Andrews as the “key master” which meant he was

responsible for locking up the tools and equipment at the end of each business day.

      {¶7} Andrews worked for defendant for less than a month and during this time

some of defendant’s tools were stolen. Defendant testified that he lost about $4,500.00

worth of equipment. Defendant suspected that Andrews took it; possibly with Huggins as

an accomplice. For this reason, defendant withheld approximately $100.00 that he owed to

Andrews for work that was done. Andrews denied stealing the equipment and was angry

about being shorted on his pay. Andrews continued to demand payment from defendant.

      {¶8} Andrews went to defendant’s house on one occasion after being terminated

and let himself in. Andrews found Huggins in the kitchen and spoke to him about the

money. At that time, defendant was asleep and Andrews did not wake him. This is the

day an air compressor was stolen from defendant’s house.

      {¶9} Huggins said he did not think there was anything wrong with Andrews

entering the house on that day even though he had already been fired. Huggins even

offered Andrews food and a beverage. Huggins believed Andrews stole the air

compressor.




       2
        Wright was hired after Andrews was terminated and the two men never
worked together.
       {¶10}     Later, Andrews spoke with Huggins on the phone about wanting his

money from defendant. According to Huggins, Andrews threatened to “bring the fire” if

defendant did not pay him.           Huggins relayed the message to defendant. Defendant

testified that he believed Andrews was threatening him through Huggins.

       {¶11}      Andrews’s testimony also acknowledged that defendant appeared to

believe Andrews had threatened him. Andrews denied it. Andrews alleged that what he

had actually told Huggins was that he was “fired up” in reference to being owed money.

Andrews told police that he told Huggins there would be problems if defendant did not pay

him. The officer considered that statement to be a threat.

       {¶12}    Defendant testified that he heard a pounding on his door on April 5, 2011.

He either saw Andrews or believed Andrews was outside trying to break in. Defendant

called the police and reported it.

       {¶13}      Before noon on April 6, 2011, Wright was outside of defendant’s

residence working on his truck. He saw Andrews approach and told him defendant was

inside of the house.

       {¶14}    There was conflicting testimony concerning whether Andrews broke into

the house on April 6, 2011, as reflected in the testimony of defendant, Wright and

Andrews.

       {¶15}    By all accounts, the door locks were damaged and defendant would secure

the door with a bar. However, some of the workers, including Andrews, knew how to open

the door if the bar was in a “secondary” position. Wright could not recall if the back door

of the house was open or barred shut when Andrews went inside. Defendant testified the
bar was in the secondary location on April 6, 2011 because Wright needed to be able to get

in and out of the house and defendant felt unable to move around that day. Andrews

testified that the two back doors were open and that he even knocked on the second door

before entering defendant’s kitchen.

       {¶16} Defendant was in the kitchen cooking when he heard someone entering and

believed it was Wright. Defendant gave various accounts of the ensuing events — one to

police on April 6, 2011 and another at trial.

       {¶17} Defendant had a gun on his person, which he said he began carrying in fear

of Andrews. On April 6, defendant reported that Andrews was angry and lunged at him

with a knife. When he saw the knife, defendant fired a shot at defendant. The bullet

struck Andrews in the stomach and he fell to the ground. A few minutes later Andrews

came at defendant again and was shot in the head. Defendant crawled out of the back door

and called 9-1-1, and during this time, he observed Andrews go out of an upstairs window

and drive off in a car. Defendant told the 9-1-1 operator that Andrews was heading

towards E. 55th Street and that Andrews lived on Dibble. Defendant also told the 9-1-1

operator that he had left the gun in the house.

       {¶18}     At trial, defendant recalled things a bit differently.   When Andrews

entered the house he moved defendant’s walker and grabbed defendant’s shoulder.

Defendant said he was paralyzed in fear and tasted blood as his vision began to blur. At

first, defendant believed Andrews was reaching for a knife but then was certain he saw the

outline of a gun in Andrews’s pants. As Andrews reached in his pants, defendant shot

him. Although defendant was aiming for Andrews’s leg, the bullet hit his stomach. When
Andrews expressed disbelief at being shot, defendant responded “what do you expect me

to do, to sit here and not be prepared and you have been threatening me all week and you

strong arm me and stole all my stuff?”

       {¶19}   Defendant asked Andrews for his phone but set it on the counter because

he did not know how to use it. Andrews grabbed defendant’s leg and defendant shot the

gun again trying to get free of Andrews’s hold. The second bullet hit Andrews in the head

but did not penetrate his skull. Defendant went into his bedroom to get his phone and went

outside and called 9-1-1. Defendant said he had the gun in his hand during the 9-1-1 call

but later put it back in the house. Defendant left Andrews inside on the floor. Andrews

escaped through an upstairs window and drove off.

       {¶20}   Defendant estimated the entire incident lasted a few minutes.

       {¶21}   Andrews said he went to defendant’s house on April 6, 2011 in an effort to

collect his money. He entered through an open door and knocked before entering the

kitchen. He began arguing with defendant about the money and the stolen property. He

denied ever threatening defendant but admitted that he was mad. According to Andrews,

defendant shot him in the stomach for no reason at all. Defendant then sat in the kitchen

for a half an hour as defendant was bleeding and asking defendant to call an ambulance.

Defendant spoke to someone on the phone but Andrews did not think it was an ambulance

service.

       {¶22}   Defendant took Andrews’s phone and Andrews recalls that it kept ringing.

Andrews told defendant not to move or he would kill him. Andrews said he did not want

to die in defendant’s house and attempted to leave. At that point, defendant was blocking
his exit and shot him in the head. Then, defendant instructed Wright to watch Andrews and

defendant went outside. Andrews begged Wright not to be an accomplice or

“co-defendant.” Somehow Andrews was able to crawl upstairs where he threw a VCR

through a window and climbed out. Andrews hang dropped from the gutter off of the

second floor. Andrews fled the scene in one of defendant’s vehicles. He sought help and

was taken to the hospital where he remained in recovery for three days.

       {¶23}     Andrews confirmed that defendant could have killed him a couple of times

during the ordeal but he did not. Andrews’s medical records indicate that he tested

positive for opiates in his system. Andrews admitted to using marijuana but denied any

other drug abuse. Andrews also testified that he did not have a weapon on April 6, 2011.

       {¶24}      Shortly after Andrews left, police arrived on the scene and found

Andrews’s cell phone in defendant’s front yard. Andrews believed defendant planted it

there. A blood trail found in defendant’s house corroborated Andrews’s testimony about

his exit path.

       {¶25}     Defendant’s gun was inside of the house. Defendant was outside and

breathing heavily. Officers interviewed both defendant and Andrews.

       {¶26}     Wright’s testimony was fraught with inconsistencies and the trial court

indicated on the record that Wright had “significant memory problems.” In summary, he

recalled hearing gunshots on two separate occasions, which prompted him to briefly peek

inside of defendant’s house. Each time, he observed Andrews laying on the kitchen floor

but chose not to get involved. The first time, Wright resumed working on his truck

outside and the second time he was intent on leaving what he considered to be a dangerous
situation. He estimated the gunshots were approximately five minutes apart. Wright had

heard defendant and Andrews arguing inside of the house.

       {¶27}    Huggins testified that he was not present at the house during the shooting

on April 6, 2011. Defendant called him and said he had shot Andrews, which Huggins

thought was a joke and hung up. Defendant called back and told Huggins he was being

arrested.

       {¶28}    Defendant was charged with attempted murder and two counts of felonious

assault with firearm and forfeiture specifications.

       {¶29}    Following the bench trial, the court found defendant guilty on all counts

and specifications. At sentencing, the trial court determined that defendant’s convictions

were allied offenses and all were merged into the attempted murder count. The court

imposed an eight year aggregate sentence comprised of a three year term for the gun

specification consecutive to a five year prison term for attempted murder.

       {¶30}    Defendant appeals assigning two errors for our review.

       {¶31}    “Assignment of Error I: The evidence was insufficient as a matter of law

to support a finding beyond a reasonable doubt that Appellant was guilty of attempted

murder.”

       {¶32}     When reviewing sufficiency of the evidence, an appellate court must

determine, “after viewing the evidence in a light most favorable to the prosecution,

whether any reasonable trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d

492 (1991).
       {¶33}     In order to withstand the defendant’s Crim.R. 29 motion as to the

attempted murder charge, the record must contain some evidence that would prove beyond

a reasonable doubt that defendant violated R.C. 2923.02(A) and R.C. 2903.02(A) which

respectively provide:

       No person, purposely or knowingly, and when purpose or knowledge is
       sufficient culpability for the commission of an offense, shall engage in
       conduct that, if successful, would constitute or result in the offense.

       No person shall purposely cause the death of another or the unlawful
       termination of another’s pregnancy.

       {¶34} Defendant asserts that the evidence fails to prove he purposely attempted to

cause Andrews’s death.

       A jury may find intent to kill where the natural and probable consequences
       of a defendant’s act is to produce death, and the jury may conclude from all
       the surrounding circumstances that a defendant had a specific intention to
       kill.
State v. Brown, 8th Dist. No. 92814, 2010-Ohio-661, ¶ 52.

       {¶35} Defendant admitted that he intentionally fired two gunshots at Andrews but

claims that his actions were justified on the basis of self-defense. Whether the court erred

by convicting defendant in light of his asserted claim of self-defense requires an analysis

under the manifest weight of the evidence standard, which is addressed in connection with

defendant’s next assignment of error. State v. Dykas, 85 Ohio App.3d 763,

2010-Ohio-359, 925 N.E.2d 685, ¶18 (8th Dist.); see also, State v. Kozlosky, 195 Ohio

App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097, ¶ 31 (8th Dist.).

       {¶36}   We note that defendant is not challenging the court’s verdict which found

him guilty of two counts of felonious assault, apparently recognizing that there was
sufficient evidence to support those convictions. Whether defendant's purpose was to kill

rather than injure Andrews was a disputed fact; either of which conclusion would have

been supported by this record. However, if the surrounding circumstances and testimony

are viewed in a light most favorable to the state, a rationale trier of fact could conclude

that defendant intended to kill Andrews. For example, Andrews said that as he lay

bleeding on the kitchen floor from the first gunshot wound, defendant told Andrews he

would kill him if he moved. When Andrews attempted to leave the house, defendant, in

fact, shot him in the head. Clearly defendant disputed this version of events, however,

that was a matter of credibility for the trier of fact to resolve. The first assignment of

error is overruled.

       {¶37} “Assignment of Error II: Appellant’s convictions for attempted murder and

felonious assault were against the manifest weight of the evidence when Appellant proved

by a preponderance of the evidence that he acted in self-defense.”

       {¶38} To warrant reversal of a verdict under a manifest weight of the evidence

claim, this court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether, in resolving

conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the judgment must be reversed and a new trial ordered. State v. Thompkins,

78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997).

       {¶39} Defendant contends his convictions were against the manifest weight of the

evidence because he believes that the evidence supports his claim of self-defense.
        [W]hen reviewing a claim by a defendant that evidence supports his claim of
        self-defense, the manifest-weight standard is the proper standard of review
        because a defendant claiming self-defense does not seek to negate an
        element of the offense charged but rather seeks to relieve himself from
        culpability.

 Dykas, 2010-Ohio-359, ¶18 (citations omitted).

        {¶40}    Generally, the defendant bears the burden of proving this affirmative

 defense by presenting a preponderance of the evidence on the following elements: 1) he

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

 imminent danger of death or great bodily harm and that his only means of escape from

 such danger was in the use of such force; and 3) he did not violate any duty to avoid the

 danger. Kozlosky, 2011-Ohio-4814, ¶ 23.

        {¶41}    However, R.C. 2901.09(B) codifies a form of self-defense known as the

 “Castle Doctrine” and provides:

        For purposes of any section of the Revised Code that sets forth a criminal
        offense, a person who lawfully is in that person's residence has no duty to
        retreat before using force in self-defense, defense of another, or defense of
        that person's residence, and a person who lawfully is an occupant of that
        person's vehicle or who lawfully is an occupant in a vehicle owned by an
        immediate family member of the person has no duty to retreat before using
        force in self-defense or defense of another.

       {¶42} This court has noted that “this statute creates a rebuttable presumption, and the

burden to prove that the charged individual was not acting in self-defense falls on the state.”

Id. at ¶ 25. In accordance with State v. Johnson, 8th Dist. No. 92310, 2010-Ohio-145, ¶ 25:

        Under the Castle Doctrine, a person is presumed to have acted in self-defense
        when attempting to expel or expelling another from his home who is
        unlawfully present. Further, under the Castle Doctrine, a person attempting to
        expel or expelling another is allowed to use deadly force or force great enough
        to cause serious bodily harm. There is also no duty to retreat inside one’s
        home anymore.

      {¶43}    We agree with defendant's argument that the Castle Doctrine applies in this

case. However, the state did present evidence to rebut the presumption that defendant was

acting in self-defense. Simply put, if defendant’s version of events was believed, his actions

in shooting Andrews were justified but if Andrews’s testimony was deemed more credible,

then they were not.

      {¶44}    In this case, we have a scenario where not just one, but two gunshots were

fired at the victim with at least five minutes passing between them. Additionally, defendant

was not alone on his property when this happened. Wright was outside working on his

vehicle and periodically looked inside the house to see Andrews bleeding on the kitchen

floor. Defendant was aware of Wright’s presence but did not enlist his help until after he

had already shot Andrews twice. Defendant took Andrews’s phone but did not use it and

then shot Andrews again before retrieving his own phone from the bedroom. Then, defendant

allegedly went right past Andrews (who he believed to be armed with a gun or knife) and left

the house with Andrews still inside. If Andrews had a weapon, he never used it but chose

instead to crawl, while bleeding from the head and stomach, up the stairs and out of a

second-story window. Based on this record evidence, we cannot say that the trial court

clearly lost its way when it found that the state had rebutted the presumption that defendant

acted in self-defense. This assignment of error is overruled.

      {¶45}    Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.     The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR
