[Cite as State v. Dillard, 2012-Ohio-2716.]
                           STATE OF OHIO, COLUMBIANA COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                  )    CASE NO. 09 CO 28
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )    OPINION
                                               )
ERIC DILLARD                                   )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Columbiana County,
                                                    Ohio
                                                    Case No. 2008 CR 115

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Robert Herron
                                                    Columbiana County Prosecutor
                                                    Atty. Ryan P. Weikart
                                                    Assistant Prosecuting Attorney
                                                    105 South Market Street
                                                    Lisbon, Ohio 44432

For Defendant-Appellant:                            Atty. Joseph A. Mamone
                                                    75 Public Square, #1100
                                                    Cleveland, Ohio 44113

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                    Dated: June 11, 2012
[Cite as State v. Dillard, 2012-Ohio-2716.]
WAITE, P.J.


        {¶1}     In the late evening of April 28, 2008 Appellant Eric Dillard shot Jamie

Farley twice in the chest. Two bullets left Appellant’s gun and a third jammed when

he pulled the trigger. At the time of the shooting, Appellant was prohibited from

possessing or using a firearm due to a prior felony conviction. Appellant was then

indicted on two counts: murder with a firearm specification and possession of a

weapon while under a disability. He was convicted on both counts at the conclusion

of a three day trial. On appeal, Appellant challenges the sufficiency and the weight of

the evidence against him while also asserting that he established the elements of

self-defense by a preponderance of the evidence. Appellant’s choice of defense

defeats both his sufficiency and weight arguments because he must concede the

elements of the crimes. Appellant’s conviction was supported by probative evidence

on all elements of the offenses charged. Although Appellant sought to support his

defense by suggesting the existence of a second firearm used by the victim, despite

repeated searches of the crime scene and the dredging of a lake, no evidence of any

other firearm at the scene emerged.                     Appellant’s four assignments of error

challenging the court’s decision as to certain evidence and the weight of the

evidence, the performance of trial counsel, and the trial court’s decision not to grant a

new trial, are equally without merit. The judgment of the trial court is affirmed.

                                              Statement of Fact

        {¶2}     In May of 2000, Appellant pled guilty to preparation of a controlled

substance for sale, a felony.                 He entered a community intervention in lieu of

conviction program and was given conditional release.                  Appellant subsequently
                                                                                      -2-

tested positive for cocaine during a random drug test, a violation of the terms of the

diversion program. Due to this violation, his felony plea was reinstated, resulting in

probation which was terminated in 2003 without further violation.           Under R.C.

2923.13(A)(3), because Appellant pleaded guilty to a drug related felony charge he is

prohibited from knowingly acquiring, having, carrying or using any firearm or

dangerous ordnance.       R.C. 2923.13(A)(3).      Appellant does not challenge his

conviction on the possession charge, and concedes that he is under this disability in

his fourth assignment of error.

       {¶3}   Appellant’s son was born on October 23, 2005. (Tr. Vol. IX, p. 1481.)

Appellant admits that when his son was born, he was supporting himself by selling

marijuana. Appellant continued to sell marijuana until at least March of 2006. (Tr.

Vol. IX, p. 1481.) Appellant testified that around this time he received a phone call

from his attorney, who asked him if he wanted to stop selling drugs and suggested

that he make a proffer to the Drug Enforcement Administration (“DEA”). (Tr. Vol. IX,

pp. 1484-1485.) The record reflects that the actual proffer took place on June 28,

2006. (Tr. Vol. IX, p. 1487; Defense Exhibit AL.) Appellant nevertheless maintains

that his motivation to stop selling marijuana was his desire to “be there” for his son.

From approximately June of 2006, Appellant began supporting himself by selling

clothing, first from a drive-thru in Wellsville, then from his car, and later on eBay and

from a storefront in Wellsville. (Tr. Vol. IX, pp. 1488-1489.) To stock his site and

store he would buy in bulk, primarily from vendors in New York and Florida.
                                                                                   -3-

      {¶4}    Appellant testified that he was approached by the victim, Jamie Farley,

who told him that he was in trouble with the law, might be going to jail, and needed a

way to support his children. Appellant had known the victim for most of his life

because the victim grew up down the street from him in Wellsville. Later as an adult,

the victim lived in the same apartment building as Appellant’s girlfriend. The victim

told Appellant that he had some money from his recently deceased father’s estate

and that he wanted to use the money to buy clothing for resale. (Tr. Vol. IX, pp.

1493-1496.)    Testimony from Appellant, his girlfriend, and the victim’s girlfriend

describing the resulting business relationship between the two men differs. Appellant

maintains he essentially bought clothing on behalf of the victim, who was himself

responsible for marketing and selling, as a one-time favor.        Both the victim’s

girlfriend’s testimony and Appellant’s subsequent testimony, concerning lump sum

payments to the victim, suggest more of an investment or partnership scenario.

      {¶5}    At some point in late September or early October of 2007, the victim

brought an amount from $20,000.00 to $25,000.00, in twenty dollar bills and

miscellaneous coins, to Appellant’s house, where it was counted and turned over to

Appellant. The victim’s girlfriend testified that $10,000.00 of the money came from

her savings, and that the total was closer to $25,000.00, but also admitted that after

counting out the first $20,000.00 she left the house. (Tr. Vol. V, p. 947.) Appellant

testified he accepted exactly $20,000.00 and that there was a surplus of a few

hundred dollars that the victim retained.    Bank records from Appellant’s various

accounts during this period show two deposits of $4,000.00 made on October 5,
                                                                                     -4-

2007 at different times to separate branches of the same bank, and a third deposit of

$2350.00 made on October 16, 2007.           The balance of the money cannot be

accounted for using Appellant’s bank statements. Appellant testified that he gave his

New York contact the money in cash for additional clothing. (Tr. Vol. IX, pp. 1495-

1497; 1512-1513.)

      {¶6}   When the clothing arrived, Appellant stored it in a storefront he

maintained next to the restaurant he and his girlfriend operated. The victim, the

victim’s girlfriend, and family members all had access to the clothing stored in the

building through Appellant. According to Appellant, the victim’s family and friends all

took clothing, both to sell and for personal use. It does not appear that the victim had

his own key or separate means to access the building where the clothing was stored

and sold.

      {¶7}   At some point during October of 2007, Appellant and his girlfriend

decided to close the restaurant, which was losing money. (Tr. Vol. IX, p. 1516.) The

storefront, where Appellant sold adult materials and shoes in addition to clothing,

remained open. On a Sunday in early February of 2008, Appellant and the victim

went to the storefront and found that the locks on the doors had been changed by the

landlord. (Tr. Vol. IX, p. 1520.) Appellant did not know why he had been locked out.

Testimony suggests that the victim was angered by the lockout and that Appellant

contacted their mutual attorney to begin legal action to resolve the matter. Appellant

was subsequently contacted by a DEA agent who asked him if there were drugs

being stored on the premises. Appellant denied this and agreed to a search of the
                                                                                      -5-

building.     He was then contacted by a Wellsville police officer, who would be

conducting the search on behalf of the DEA. As Appellant had given consent to the

DEA agent for the search, he was never shown a warrant. Appellant was present

when the landlord unlocked the building and the officers conducted the search.

During the search nothing was seized. Although Appellant was present, he was not

allowed to enter the building.

       {¶8}     Appellant’s efforts to gain access to the storefront continued into March

of 2008. Although the various bank statements offered in evidence show either small

or negative bank balances for the life of all accounts associated with Appellant and

his businesses, Appellant cites the lockout as the origin of his financial problems.

(Tr. Vol. IX, pp. 1523-1526; 1528.) Appellant also testified that soon after giving

Appellant his “investment,” the victim began inquiring about the money and asking

Appellant for money. Appellant testified that he “paid back between four and five” or

“four thousand and forty-five hundred dollars” of the money he was given before the

landlord locked the building. (Tr. Vol. IX, p. 1528.) Although Appellant testified he

was having trouble making utility and car payments, at some point in March several

weeks after the locks were changed, he made arrangements to purchase a Hummer

to replace the Yukon he had been driving. After his purchase of the Hummer, the

victim’s requests for money intensified, despite Appellant’s explanation that the

payments on the new car were actually lower, so he was saving money. (Tr. Vol. IX,

pp. 1532-1533.)
                                                                                      -6-

       {¶9}   According to Appellant, between March 18, 2008 and April 22, 2008 the

victim made verbal threats four or five times. He describes only one specific instance

which occurred at a car wash, when the victim said “[o]kay, I believe [that you don’t

have money], because I’d hate to have to run up in your house when you guys

was[sic] asleep, get you late at night.”     (Tr. Vol. IX, pp. 1533-1535.)     Appellant

describes the other threats as “[j]ust saying like how he had beat people up, shot at

people’s houses, and he had killed somebody before and he got away with it.” (Tr.

Vol. IX, p. 1535.) Appellant also testified that he had seen the victim with a gun on

four or five occasions and that the victim told him he always carried a gun “[j]ust for

pro- - just that he always had one with him.” (Tr. Vol. IX, p. 1537.) Appellant was

also aware that the victim had been in “trouble” for “[a]ssaults, criminal damaging,

menace and chasing after people, robbery, selling drugs,” and that he knew the

victim had been to prison for drug trafficking and, as a juvenile, for robbery. (Tr. Vol.

IX, pp. 1535; 1536-1537.)       There were no other witnesses to the threats, and

Appellant did not report them to the police. Appellant admitted that he never actually

saw the victim threaten anyone with a gun. He also explained that although he never

formally reported the threats to the police, he had mentioned them to an Officer

Weekly, who had responded dismissively, saying the victim was not a threat, a point

Appellant conceded, saying “[y]eah, I know, but he could maybe pay a crackhead to

do it.” (Tr. Vol. IX, pp. 1660-1661.)

       {¶10} On the evening of April 22, 2008, Appellant’s girlfriend spoke with the

new tenant of the restaurant that shared the building where the clothing was stored.
                                                                                        -7-

She believed the new tenant was going to open the door for her and Appellant that

night to allow them to remove the clothing. In preparation, she drove to West Virginia

to borrow a truck from her brother. Later that evening when Appellant was at home

with his son he received a phone call from the victim, who called from another

person’s cell phone, and was “screaming” and saying “[y]ou act’en[sic] like I ain’t a

man, Dawg?      You act’en[sic] like I ain’t a man, Dawg.”        (Tr. Vol. IX, p. 1560.)

According to Appellant, the victim continued, “‘F’ this fed case. I’m doing you in

tonight.” (Tr. Vol. IX, p. 1561.) Appellant recorded a portion of this call with a

recording feature on his phone, however, the recorded portion did not include any

raised voices or the above quotes. The recording, which lasts for one minute of the

three minute call, was transcribed during the trial as follows: “***(Inaudible) I got my

own (inaudible). (Pause.) But that ain’t helping me pay my shit. (Pause.) Now,

listen, y’all. (Inaudible). (Pause.) (Inaudible). (Pause.) No, I’ll just – I’ll come there,

Dawg. Don’t worry (inaudible). (Beep.)” (Tr. Vol. VII, pp. 1147-1148.) The recording

was recovered from Appellant’s phone by Special Agent Richard Warner and

presented by the agent at trial. Appellant testified that by the conclusion of the call,

which is not contained in the recording, the victim had reached his house and was

calling for Appellant to come outside. Appellant responded by going to his closet,

taking out his handgun, which he kept loaded, and carrying the handgun outside with

him. Appellant confronted the victim, pointed the gun at him and said “get the ‘F’ off

my property and don’t never come back. * * * ‘You’re not going to be threatening us
                                                                                       -8-

down here.’ * * * ‘You can wait for [our lawyer] to sue the landlord or there’s nothing

else I can do.’” (Tr. Vol. IX, pp. 1564-1570.)

       {¶11} According to Appellant the victim responded “‘You “F”-ed up Dawg.

How you going to pull a gun on a gangster? How you going to pull a gun on a

gangster?’ * * * ‘I’ll be back,’ and he got in the car and left.” (Tr. Vol. IX, pp. 1571-

1572.) At this point, Appellant called his girlfriend to pick up their son and get him out

of the house. She arrived, ran into the house looking for the child, and carried him

out to the Hummer. She and Appellant both testified that Appellant set his firearm

down to help his girlfriend get the child strapped into the vehicle, which was parked

partly in the road and partly on the sidewalk in front of the house. As the two finished

securing the car seat, the victim returned and approached the vehicle from behind,

yelling. The girlfriend testified that she momentarily considered backing over the

victim before she drove away, but she was afraid of what might happen to the baby if

she tried. Appellant testified that at this point, he chose not to get in the car and flee

the scene with his girlfriend and son because he believed that the victim might fire a

gun into the car and hit the child. Appellant testified that the victim was coming

toward him, yelling, as the Hummer pulled away. Appellant ran to retrieve his gun

while the victim was approaching him at an angle. At this point, he could not see

both of the victim’s hands. Appellant raised his gun and told the victim to get down

on the ground. He then fired three times, striking the victim twice before the weapon

jammed.
                                                                                    -9-

       {¶12} According to Appellant, the victim said “[a]h, ah, he shot me” and “took

off running;” jumped into the car which pulled toward him, and then drove past. (Tr.

Vol. IX, p. 1579.) The victim attempted to shut the car door, but did not have enough

strength. The car pulled away and proceeded down the street. When Appellant saw

brake lights as the car slowed at an intersection, he tried to clear the chamber of the

jammed round and put the clip back in the gun to be prepared to shoot again. (Tr.

Vol. IX, p. 1581.) When the car began to turn at the next intersection, the door

swung open and the victim fell into the street.      Neighbors ran down from their

porches and out of their houses, and one of them applied pressure to the victim’s

chest wounds until the paramedics came.         Attempts to stabilize the victim were

unsuccessful and his body was turned over to the coroner.

       {¶13} Police responded within minutes. Appellant was found in his front yard

holding the gun. Appellant testified that when Officer Anderson arrived at the scene

he announced to the officer “I think I shot Jamie Farley” to which the officer

responded “[d]on’t say nothing else, Eric.” (Tr. Vol. IX, p. 1586.) Appellant further

testified that Officers Anderson and Wilson told him to “shut up” at various points

when arresting him, placing him in the car at the scene, and while he was waiting in

the car; but that he did not receive a complete Miranda warning until he reached the

police station. (Tr. Vol. IX, pp. 1592-1594.)

       {¶14} Two separate crime scenes were identified, one in front of Appellant’s

house, and the second at the intersection where the victim fell out of the car. In

addition to taping off, photographing and processing both scenes, a grid search of a
                                                                                     -10-

nearby vacant lot was conducted.          The shell casings were found outside of

Appellant’s fence. Two bullets were retrieved from the victim’s body, two spent shell

casings and one live bullet were retrieved at the scene. A fourth live bullet was taken

from the chamber at the scene by an officer when he secured the firearm. Appellant

admits he did not see the victim with a gun. The victim never fired a shot that night.

No gun other than Appellant’s was found at the scene and no evidence of the

existence of any gun other than Appellant’s was found at the scene that night or

during subsequent searches.

                                Statement of the Case

       {¶15} Appellant was indicted by the grand jury on two counts; the first, murder

with a firearm specification, the second, having weapons while under disability.

Murder is a violation of R.C. 2903.02(A), which provides:             “No person shall

purposefully case the death of another * * *.” The firearm specification refers to the

use of the weapon in the commission of murder. Possession of a weapon while

under disability is a violation of R.C. 2923.13, which states in part: “Unless relieved

from disability * * * no person shall knowingly acquire, have, carry, or use any firearm

or dangerous ordnance, if * * * [t]he person is under indictment for or has been

convicted of any felony offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse.” R.C. 2923.13(A)(3).

       {¶16} On May 15, 2009, the jury returned its verdict, finding Appellant guilty of

murder, a violation of R.C. 2903.02(A); guilty of a firearm specification, a violation of

R.C. 2941.145(A); and guilty of having a weapon while under a disability, a violation
                                                                                  -11-

of R.C. 2923.13(A)(3). The court polled the jury sua sponte and each juror confirmed

the verdict. The trial court scheduled the sentencing hearing for a later date.

       {¶17} Appellant filed a motion for acquittal and/or new trial on May 29, 2009.

A hearing on the motion was held June 29, 2009.           No additional evidence was

presented at this hearing. Subsequently, Appellant presented the affidavits of two

witnesses who swore that they saw the victim’s girlfriend’s mother drop a white

plastic bag into Highlandtown Lake. Appellant claimed he had reason to believe a

gun was concealed in the bag. The state filed an affidavit from the woman said to

have thrown the bag in the lake, who stated that this event never happened.

Nevertheless, the court ordered dredging of the lake, but this failed to uncover either

a weapon or the bag. Appellant’s motion for new trial was ultimately denied on July

1, 2009.

       {¶18} Appellant’s sentencing hearing was held on August 3, 2009. The court

heard statements from the victim’s family and from Appellant. The court sentenced

Appellant to fifteen years to life on the murder conviction, with an additional three

years for the firearms specification, to be served consecutively.       On the second

count, having a firearm while under a disability, the court regarded what had occurred

as the worst form of the offense and sentenced Appellant to five years, the statutory

maximum. The court ordered these sentences to be served consecutively, for an

aggregate minimum term of twenty-three years, and a maximum term of life in prison.
                                                                                    -12-

                                  Argument and Law

                               First Assignment of Error

       APPELLANT’S RIGHTS TO DUE PROCESS GUARANTEED BY THE

       FIFTH, SIXTH AND FOURTEENTH AMENDMENTS WERE VIOLATED

       AS THE VERDICT WAS CONTRARY TO LAW.

                             Second Assignment of Error

       APPELLANT’S RIGHT TO DUE PROCESS AND AN IMPARTIAL JURY

       UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS

       WERE VIOLATED AS THE VERDICT OF THE JURY WAS AGAINST

       THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶19} Appellant’s first and second assignments of error are in essence the

same argument: that the verdict was against the manifest weight of the evidence

because Appellant proved that he was defending himself or others by a

preponderance of the evidence.        The two assignments are both without merit,

however. The state offered probative evidence on each element of the offenses

charged and in Appellant’s affirmative defense he concedes those elements.

Although Appellant sought at trial to suggest a version of events driven by his fear of

the victim, this was a credibility determination for the jury. Appellant’s credibility on

this issue was undermined, however, by the facts in the record: no witness saw the

victim with a gun at the scene, no gun was recovered from the scene; and no trace

evidence of a second firearm was recovered from the victim’s body or from the

scene; Appellant had conceded that the victim was harmless and the conversation
                                                                                     -13-

that Appellant recorded between himself and the victim included none of the threats

described; both Appellant’s testimony and the location of the evidence at the scene

place the victim on the sidewalk and the street and not on Appellant’s property.

Nothing identified by Appellant in the record supports a conclusion that the verdict

was either contrary to law or against the weight of the evidence.

       {¶20} In order to prevail, Appellant had the burden of proof to show that he

acted in self-defense by a preponderance of the evidence. R.C. 2901.05. “The

proper standard for determining in a criminal case whether a defendant has

successfully raised [self-defense] under R.C. 2901.05 is to inquire whether the

defendant has introduced sufficient evidence, which, if believed, would raise a

question in the minds of reasonable men concerning the existence of such issue.”

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

syllabus.   Self-defense is an affirmative defense which the code defines as a

“defense involving an excuse or justification” and the Supreme Court describes as

“‘justification[s] for admitted conduct’” which a defendant claims “exempts him from

liability even if it is conceded that the facts claimed by the prosecution are true.” R.C.

2901.05(D)(1)(b); State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973).

“[T]his defense admits the facts claimed by the prosecution and then relies on

independent facts or circumstances which the defendant claims exempt him from

liability.” State v. Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986). In the instant

matter, Appellant admits to the purposeful killing of Jaime Farley. Appellant claims,
                                                                                     -14-

however, that his act was justified by a fear for his life or the lives of others and was

therefore excusable.

       {¶21} While Appellant mentions due process in his first assignment of error,

he briefly argues in this assignment that he established the elements necessary to

establish that he was acting in self-defense by a preponderance of the evidence, and

this is the crux of his argument. In support of this contention, Appellant generally

cites to his own testimony concerning his first-hand experiences of the victim and the

testimony of other witnesses describing instances of the victim’s behavior which were

unknown to Appellant at the time of the shooting. He also specifically relies on a

photograph of the victim’s tattoo, which the court ruled inadmissible at trial, in support

of his argument. The tattoo on the victim’s chest read “thug life” and was offered by

Appellant as evidence of the victim’s violent nature. Appellant argues that the court’s

decision not to admit the photograph of the tattoo was prejudicial because the

photograph was the single piece of evidence that would have allowed the jury to

reach the correct conclusion that he had acted in self-defense. Appellant specifically

relies on this ruling as the single prejudicial error that requires reversal; however he

attempts to buttress his argument with the trial court’s limiting instructions concerning

testimony describing the victim’s prior, unrelated, violent behavior, behavior which

Appellant was unaware of at the time of the shooting.

       {¶22} Appellant argues in his second assignment of error that the verdict was

against the manifest weight of the evidence. Rather than challenge the state’s proof

on the elements of the offense, his argument consists of a catalogue of the victim’s
                                                                                     -15-

alleged violent tendencies. In both assignments of error, Appellant does not argue

that the state failed to present sufficient evidence of the elements of the charged

offenses. Rather, Appellant advances the theory that his admittedly criminal conduct

is excused because he was acting in self-defense, and the evidence in the record

supporting his self-defense theory outweighs the evidence against reaching this

conclusion. Thus, the two assignments will be considered together.

       {¶23} In determining whether a criminal judgment is against the manifest

weight of the evidence, this Court acts as a “thirteenth juror” to determine whether

“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. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1983).        The verdict is not against the weight of the

evidence when the record contains evidence which, if believed, will convince the

average person of the accused’s guilt beyond a reasonable doubt. State v. Eley, 56

Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).

       {¶24} The “ ‘[w]eight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. It indicates clearly to the jury that the party having the burden of proof

will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue which is to be

established before them. Weight is not a question of mathematics, but depends on

its effect in inducing belief.”’ (Emphasis sic.)” (Internal citations omitted.) State v.
                                                                                  -16-

Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶24, quoting Thompkins, supra, at

387. The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of fact to determine. State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. “The admission of evidence lies

within the broad discretion of a trial court, and a reviewing court should not disturb

evidentiary decisions in the absence of an abuse of discretion that has created

material prejudice.” State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d

88, ¶43.

      {¶25} To establish self-defense, a defendant bears the burden of proving the

following elements: (1) the defendant was not at fault in creating the situation giving

rise to the affray; (2) the defendant 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) the defendant did not violate any duty to

retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755

(1979), paragraph two of the syllabus. Specific instances of a victim’s conduct are

not admissible to prove that the victim was the initial aggressor. State v. Barnes, 94

Ohio St.3d 21, 759 N.E.2d 1240 (2002).        In reaching this conclusion, the Ohio

Supreme Court noted that “[p]roof of a victim’s propensity for violence, standing

alone, does not prove an element of a claim of self-defense. Proof of a victim’s

violent character does not show that the victim was the first aggressor in a particular

conflict, nor does proof of a victim’s passive demeanor foreclose the defendant from

asserting a claim of self-defense.” Id. at 25 quoting State v. Custodio, 136 Idaho
                                                                                 -17-

197, 30 P.3d 975, 982 (App.2001) as persuasive authority. The Ohio Supreme Court

reasoned that, “[a]lthough a victim’s violent propensity may be pertinent to proving

that he acted in a way such that a defendant’s responsive conduct satisfied the

elements of self-defense, no element requires proof of the victim’s character or

character traits. A defendant may successfully assert self-defense without resort to

proving any aspect of a victim’s character.” (Emphasis omitted.) Barnes at 24.

      {¶26} In the matter at bar, Appellant makes the very mistake identified by the

Barnes Court.    He has confused the possible relevance of the victim’s alleged

propensity for violence to his affirmative defense with the existence of the defense

itself. Appellant’s defense devoted significant time to testimony from people who

knew the victim and had witnessed violent episodes. While the defense established

that the victim had, at various points, been violent to and in front of a variety of

people, none of the instances appear to have been known to Appellant prior to April

28, 2008. More importantly, neither this testimony nor the existence of a suggestive

tattoo addresses the issue crucial to Appellant’s defense: whether actual threatening

behavior engaged in by the victim (not simply shouting) was the origin of the

shooting, whether Appellant was blameless in creating the situation, and whether

Appellant acted in the absence of a duty to retreat.

      {¶27} The testimony offered by Appellant and his girlfriend describes verbal

threats and shouting on the night of the shooting, although no threats or shouting are

included in the portion of the conversation actually taped by Appellant. Appellant

testified that he responded to the conversation he taped, which appeared to conclude
                                                                                    -18-

with “don’t worry,” by calling his girlfriend to remove his child from the house,

retrieving his loaded gun, confronting the victim with the gun, and ordering him off of

the property.   Appellant describes helping his girlfriend load their son into their

vehicle in front of the house when the victim returned to the scene. Appellant stated

he stood on the sidewalk in front of his house, told his girlfriend to leave, turned, and

shortly thereafter shot the victim twice in the chest.

       {¶28} The locations of the bullet casings and blood stains at the crime scene

reflect that two shots occurred outside of Appellant’s fenced-in yard, and certainly

outside of the house. Nothing found at the crime scene, or in subsequent searches,

would indicate that the victim had a gun or other weapon that night. Under these

circumstances it is entirely reasonable for the jury to conclude from the information

before it that Appellant was not acting in self-defense. While Appellant testified that

he believed he was in imminent danger, his testimony and the testimony of others

also shows that rather than calling the police or letting his dogs out into the yard and

remaining inside, he choose to arm himself, leave the house, point a gun at the victim

and then shoot the unarmed victim in the street.

       {¶29} The fact that Appellant’s defense included testimony concerning acts of

violence allegedly perpetrated by the victim and the fact that the victim had a

suggestive tattoo in no way discharged Appellant’s burden to establish the three

elements of his affirmative defense:      the absence of fault, a bona fide belief of

inherent danger and the absence of a duty to retreat. Robbins, supra, at paragraph

two of the syllabus. Whether or not the victim had a gangland-style tattoo was in no
                                                                                 -19-

way probative of the victim’s conduct on the night in question.      The trial court’s

decision to exclude evidence of this tattoo was within the court’s discretion. Barnes,

supra, p. 25. Appellant has conceded the elements of the underlying crimes. He

bore the burden of proving his self-defense claim. This defense hinges, in large part,

on his credibility. The record is clear, however, that the victim was not seen with a

weapon at the time he was shot, most tellingly, not even by Appellant. The record of

the events of April 22, 2008, at the very least, does not reflect that Appellant was

blameless in creating the circumstances or that he acted in the absence of a duty to

retreat. Appellant’s first and second assignments of error are without merit and are

therefore overruled.

                              Third Assignment of Error

      APPELLANT WAS DENIED HIS RIGHTS UNDER THE SIXTH AND

      FOURTEENTH AMENDMENTS TO THE EFFECTIVE ASSISTANCE

      OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO PROTECT

      HIS RIGHTS DURING TRIAL.

      {¶30} Appellant identifies five alleged errors made by trial counsel and argues

that each rises to the level of ineffective assistance of counsel. Appellant believes

trial counsel should have: (1) sought a change of venue for trial; (2) prevented him

from testifying; (3) sought to suppress all statements made by Appellant; (4) moved

to exclude the victim’s dying declaration, and (5) forced an additional witness to

testify. Appellant fails to demonstrate that trial counsel’s performance was deficient
                                                                                     -20-

in any way and further fails to demonstrate prejudice as a result of these alleged

errors.

          {¶31} To prevail on a claim of ineffective assistance of counsel, Appellant

must show not only that counsel's performance was deficient, but also that he was

prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674, (1984) see also State v. Williams, 99 Ohio St.3d 493, 2003-

Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means performance falling

below an objective standard of reasonable representation.            “Prejudice,” in this

context, is defined as a reasonable probability that, but for counsel's errors, the result

of the proceeding would have been different. Strickland at 687-688, 694. Moreover,

in evaluating the performance of counsel, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Id. at 690-691. Each of the errors alleged

here will be evaluated under the two pronged Strickland test, in addition to any

applicable individual standard.

          {¶32} Appellant challenges trial counsel’s decision not to seek a change of

venue. Appellant argues that he was known in the community for his drug-related

activities and refers to some publicity concerning the shooting in support of this

contention.     Appellant does not specifically identify the information driving this

argument or its source, nor does he identify any comment or action by the jurors
                                                                                      -21-

tending to demonstrate bias or improper influence due to this publicity. Criminal Rule

18(B) does not require a change of venue due to the mere existence of pretrial

publicity, even extensive pretrial publicity. State v. Landrum, 53 Ohio St.3d 107, 116-

117, 559 N.E.2d 710, 722-723 (1990). Any decision on a change of venue rests in

the sound discretion of the trial court. Id. at 116. “ ‘[A] careful and searching voir dire

provides the best test of whether prejudicial pretrial publicity has prevented obtaining

a fair and impartial jury from the locality.’ ” Id. at 117, quoting State v. Bayless, 48

Ohio St.2d 73, 98, 357 N.E.2d 1035, 1051 (1976), vacated on other grounds, 438

U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978). A defendant claiming that pretrial

publicity has denied him a fair trial must show that one or more jurors were actually

biased. Mayola v. Alabama, 623 F.2d 992, 996 (5th Cir.1980). Only in rare cases

may prejudice be presumed. Id. at 997; accord Nebraska Press Assn. v. Stuart, 427

U.S. 539, 554-555, 96 S.Ct. 2791, 2800-2801, 49 L.Ed.2d 683, 694-695 (1976).

Even extensive pretrial publicity does not require a change of venue where none of

the jurors indicate they would have trouble putting it out of mind. Landrum, 117.

       {¶33} Although the record reflects that the shooting did receive some

publicity, Appellant produced nothing to suggest that the publicity influenced the jury

in any way. The majority of the jurors indicated that they did not know Appellant or

the victim and were at most only peripherally aware of any publicity.            The two

potential jurors who were familiar with Appellant were excused. The record reflects

extensive questioning by counsel concerning publicity and the ability of the jurors to

reach independent conclusions on each element of the crimes charged. The juror’s
                                                                                   -22-

responses reflect ignorance of Appellant’s alleged reputation and ignorance of the

shooting. Nothing in these responses suggests that the jury selected was in any way

less objective than a jury empanelled in a different jurisdiction would have been. The

fact that there may have been some publicity about the shooting or Appellant’s past

criminal activities is irrelevant when all but two potential jurors (who were dismissed)

were ignorant of this information. Nothing in the record suggests trial counsel was

deficient in not requesting a change of venue or that a change would have been

merited had one been requested.

      {¶34} Appellant next maintains that trial counsel should have prevented him

from testifying on his own behalf during trial. This record reflects that Appellant was

informed by the court that he was not obligated to testify. He was fully informed of

his rights, asked whether he had discussed the decision with counsel, and he was

offered additional time to again discuss his decision with counsel.           Appellant

indicated that he understood the ramifications of his decision, and that he

nevertheless wished to testify. (Tr. Vol. VIII, pp. 1342-1344.) As the state points out,

Appellant’s chose to maintain a theory of self-defense, not innocence. He was thus

required to prove not only his reasonable fear of the victim, but also that he was not

at fault in creating the situation and did not violate any duty to retreat. Under the

circumstances, it is difficult to understand how Appellant could satisfy the

requirements of his own defense without taking the stand. Appellant’s suggestion

that all of the material covered by his testimony could have been “adduced through

other means” strains credulity in the context of his affirmative defense. (Appellant’s
                                                                                     -23-

Brf., p. 26.) Appellant’s assertion that counsel should have forced him not to testify

under these circumstances is equally incongruous.          It is unclear what means

Appellant now believes counsel should have employed to force him to invoke his Fifth

Amendment rights and give up his right to testify. Neither a decision to testify or to

remain silent can be compelled. Appellant made his decision to take the stand on his

own behalf after being fully informed of its potential consequences, and trial counsel

was not deficient in agreeing with Appellant’s decision.

      {¶35} Appellant next argues that, although he was told by various officers at

the scene to remain silent, because he was not read his Miranda rights in their

entirety until he reached the police station where he signed a Miranda

acknowledgment     and   was    allowed   to   see   counsel   after   he   signed   the

acknowledgement, his warning was somehow defective. (Tr. Vol. IX, pp. 1644-1648.)

He claims that his rambling, one-sided discussion of the night’s events which were

recorded in the cruiser as he was being transported to the police station should have

been suppressed. He also argues that the search of his house, conducted after

Appellant consulted with two attorneys at the police station and signed a consent

form allowing this search, should not have been conducted without a warrant.

Appellant’s own testimony, however, establishes that he was told repeatedly to stop

talking both before and after being placed in the cruiser and Appellant does not

dispute the fact that his various statements were voluntary and not in response to

questioning. Appellant also does not dispute that he consented to a search of his

property.
                                                                                  -24-

      {¶36} As the Ohio Supreme Court explained in State v. Tucker, 81 Ohio St.3d

431, 692 N.E.2d 171 (1998), and in accord with Rhode Island v. Innis, 446 U.S. 291,

100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), “the Miranda rules do not operate to prevent

the use as evidence of every statement made by a person in custody: ‘Confessions

remain a proper force in law enforcement. Any statement given freely and voluntarily

without any compelling influences is, of course, admissible in evidence.           The

fundamental import of the privilege [against compulsory self-incrimination] while an

individual is in custody is not whether he is allowed to talk to the police without the

benefit of warnings and counsel, but whether he can be interrogated.’” (Emphasis

deleted.) Tucker at 436, quoting Innis at 299-300. Where, as here, a defendant

makes voluntary, unprovoked statements to the police, even while under arrest and

being transported to jail, those “statements * * * do not fall under the Miranda

protections.” State v. Dumas, 7th Dist. No. 06 MA 36, 2008-Ohio-872, ¶18. “The

Miranda requirements do not affect the admission of volunteered statements made

without police coercion or inducement.” Id.

      {¶37} The fact that Appellant’s statements in the cruiser were recorded does

not alter the Miranda analysis.    Various Ohio courts have held that there is no

expectation of privacy in the back of a police cruiser, and have declined to exclude a

variety of communications recorded in the back of a cruiser without the knowledge of

one or all individuals involved. State v. Ingram, 9th Dist. No. 10CA0022-M, 2010-

Ohio-3546, ¶15-17 (appellant had no reasonable expectation in his cell phone

conversation with his mother which was recorded while he was seated in the back
                                                                                   -25-

seat of the police cruiser prior to formal arrest) accord State v. Blackwell, 8th Dist.

No. 87278, 2006-Ohio-4890, ¶33-35 (appellant had no reasonable expectation of

privacy in his unwittingly tape-recorded conversation in the back of a police cruiser

with two co-defendants regardless of the fact that one co-defendant then turned

state’s evidence) accord State v. Skidmore, 12th Dist. No. CA99-12-137, 2000 WL

1086722 (August 7, 2000) (where appellant, who had been arrested but not read his

rights, and did not know he was being recorded, made spontaneous statements while

in the back of the police cruiser the reviewing court found that there was no Miranda

violation, appellant had no expectation of privacy in the cruiser, and trial counsel was

not ineffective for not having sought to suppress the recording). Here, Appellant’s

voluntary, unprovoked statements in the cruiser were not Miranda violations and in

no way pollute the information and waivers obtained after he was read his Miranda

rights, signed his acknowledgement, met with counsel, and signed the consent to

search waiver. Appellant presents no valid reason why trial counsel should have

moved to suppress the recording, nor does he offer any argument in support of his

conclusion that the search to which he consented should, instead, have been

conducted pursuant to a warrant. Nothing in the record or under applicable law

suggests a motion to suppress was merited or that, if filed, such a motion would have

been granted.    Accordingly, Appellant has failed to demonstrate that counsel’s

decision not to seek the suppression of his voluntary statements and the consent to

search was deficient and has failed to demonstrate any resulting prejudice.
                                                                                   -26-

      {¶38} Appellant also claims that statements made by the victim to Officer

Eisenhart while he was lying in the street waiting for an ambulance after the shooting

should have been excluded as hearsay. As we have summarized in State v. Ross,

7th Dist. Nos. 96 C.A. 247, 96 C.A. 251 (October 12, 1999) and in State v. McGee,

7th Dist. No. 07 MA 137, 2009-Ohio-6397, ¶33:          “In order for statements of a

deceased to be admissible as dying declarations, ‘[i]t is essential * * * that it should

be made to appear to the court, by preliminary evidence, not only that they were

made in articulo mortis [at the point of death], but also made under a sense of

impending death, which excluded from the mind of the dying person all hope or

expectation of recovery.’ * * * Robbins v. State (1857), 8 Ohio St. 131. The state of

mind of the declarant at the time of his declarations is decisive. State v. Woods

(1972), 47 Ohio App.2d 144, 147, 352 N.E.2d 598. ‘Despair of recovery may * * * be

gathered from the circumstances if the facts support the inference.’ State v. Kotowicz

(1937), 55 Ohio App. 497, 501, 9 N.E.2d 1003, quoting Shepard v. United States

(1933), 290 U.S. 96, 100, 54 S.Ct. 22, 78 L.Ed. 196.” The United States Supreme

Court noted in Shepard, “[t]here is no unyielding ritual of words to be spoken by the

dying. Despair may even be gathered, though the period of survival outruns the

bounds of expectation.” Id. at 100.

      {¶39} The record in this instance reflects that the victim was shot, retreated to

the car in pain, and struggled to get in. When the car began to turn, the victim’s door

swung open and he fell out into the street, where he was unable to move. He told his

girlfriend repeatedly, “[b]aby, I’m dying.” (Tr. Vol. V, pp. 977-980.) When a witness
                                                                                      -27-

arrived to help, the victim said “[m]an, I think I’m going to die.” (Tr. Vol. III, p. 546.)

When Officer Eisenhart arrived, the victim told her he could not breathe and that he

had been shot by Appellant. (Tr. Vol. III, p. 440.) The timeline in the record shows

that all of this occurred in the space of a few minutes. It is not necessary that the

decedent utter the precise words “I believe I am dying” or “this is my dying

declaration,” however, here the record clearly shows that the victim said precisely

these words. Where the victim is shot twice in the chest, is bleeding from both

wounds, is unable to lift himself or help others to do so and as a result lays in the

middle of the street struggling to breathe, having told those around him he believes

he is going to die, the trial court’s decision to admit his statement to the responding

officer is plainly reasonable. In fact, this scenario appears to present a textbook

example of a dying declaration.

       {¶40} Finally, Appellant alleges error as a result of the decision not to

subpoena Attorney Christopher D’Amato as a defense witness.                   In general,

“counsel's decision whether to call a witness falls within the rubric of trial strategy and

will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d

460, 490, 739 N.E.2d 749 (2001). It appears from the record that Atty. D’Amato had

been engaged by both the victim and Appellant in connection with their business

venture. After the shooting, he was barred from representing Appellant due to his

professional relationship with the victim, although he was apparently present when

Appellant was taken to the police station following the shooting. Appellant believes

that Atty. D’Amato should have been called to testify as to the victim’s reputation for
                                                                                  -28-

violence.   However, nothing in the record or advanced by Appellant on appeal

suggests that the attorney, who was not present at the scene of the crime, could

have offered relevant testimony. It is equally possible, inasmuch as Atty. D’Amato

was privy to unsavory information regarding Appellant, as well, that any testimony he

could give would be harmful to the defense. There is no reason to second-guess trial

counsel’s decision not to call Atty. D’Amato.

      {¶41} Again, in order to reverse a trial verdict on a claim of ineffective

assistance of counsel, Appellant must demonstrate not only that counsel’s

performance was deficient, he must also show prejudice resulting from the

deficiency. “To establish prejudice, ‘the defendant must prove that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different.’ ” State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781

N.E.2d 88, ¶108. Appellant in this instance failed on both elements. He has not

demonstrated that any of the decisions he identifies were deficient, and has further

failed to connect the alleged errors to any reasonable probability that had counsel

acted otherwise, the result of the trial would have been different.   Appellant’s third

assignment of error is overruled.

                              Fourth Assignment of Error

      APPELLANT’S RIGHT TO DUE PROCESS GUARANTEED BY THE

      FIFTH, SIXTH AND FOURTEENTH AMENDMENTS WAS VIOLATED

      WHEN THE TRIAL COURT DENIED APPELLANT’S MOTION FOR

      NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
                                                                                    -29-

       {¶42} In Appellant’s fourth assignment of error he alleges the existence of

newly discovered evidence. In support of this argument, Appellant cites the trial

testimony of a bystander, Edwin Mercer, concerning a diaper bag allegedly located at

the scene and refers to affidavits concerning the alleged disposal of a white plastic

bag in Highlandtown Lake. Although one witness, Mr. Mercer, recalls seeing a light

blue diaper bag on the back seat of the victim’s car, the police inventory of the

vehicle reflects no such bag in the car, and instead notes a car seat in the back seat

and a purse on the floor in the same area. Appellant suggests that there may have

been a diaper bag in the victim’s car and that the victim’s gun was removed from the

scene in that diaper bag before being thrown in the lake by the victim’s girlfriend’s

mother.   On the night of the murder, the car was inventoried and the police

conducted a grid search of the alley and of an adjacent empty field. The police

returned a few days later, on a tip from Appellant’s girlfriend, to re-examine the gutter

in the alley. None of these searches resulted in any evidence that there was a

second firearm involved in the shooting.       Although the victim’s hands were not

bagged at the scene due to ongoing efforts to medically stabilize him, none of the

surviving trace evidence supports the conclusion that he had a gun. Although one

witness believes he saw a diaper bag, no witness, not even Appellant, testified that

the victim also possessed a gun that night or that it was a gun that was allegedly

thrown into the lake after the shooting. Under the circumstances, it appears plausible

that what the witness identified as a diaper bag in the back seat of the victim’s car
                                                                                       -30-

was in fact what the inventory lists as a purse. In any event, not one witness to this

shooting saw a gun other than the one Appellant used to kill the victim.

          {¶43} In her testimony, the victim’s girlfriend’s stated that the victim threw his

empty hands up in a questioning manner and Appellant then shot him twice. (Tr. Vol.

V, p. 969.) She testified that at the time of the shooting the victim no longer owned a

handgun, and that they sold his 9 mm and her .20 or .22 gauge shotgun to her

brother in 2006 or 2007, at least a year prior to this shooting. (Tr. Vol. V, pp. 973-

976.) Her siblings confirmed that they purchased firearms from the victim but they

also testified that he may have had guns in addition to the two identified by their

sister.

          {¶44} After trial, Appellant produced two affidavits in which the affiants

described seeing the victim’s girlfriend’s mother stop her car on a bridge over

Highlandtown Lake and drop a white plastic bag into the lake. Neither affiant saw a

gun; only the bag. The two affiants state that they were in a boat fishing on the lake

at the time. According to the state, neither affiant has ever held a fishing license. In

response to the two affidavits produced by Appellant, the state filed a sworn

statement from the victim’s girlfriend’s mother who attested that this act never

occurred. The trial court nevertheless ordered dredging at the state’s expense. No

bag, gun, or other evidence was recovered.

          {¶45} In short, there was no new evidence for the court to consider. The

testimony about a diaper bag, the firearm tip, lack of trace evidence and second

search of the property was in front of the jury during the deliberations that resulted in
                                                                                     -31-

the guilty verdict, and is not new information. The court fully investigated the post-

trial allegations concerning the plastic bag and produced no further evidence. In the

absence of any new evidence supporting the motion for new trial, the trial court’s

ruling was proper. Appellant’s fourth assignment of error is overruled in its entirety.

                                         Conclusion

       {¶46} Appellant’s conviction was supported by probative evidence as to all

elements of the offenses charged and was not against the weight of the evidence.

Trial counsel performed appropriately and made reasonable tactical decisions. There

was no evidence of prejudice to the defendant resulting from the decisions of trial

counsel. Although the trial court fully investigated Appellant’s claims concerning new

evidence, no actual new evidence was produced by Appellant.                 Accordingly,

Appellant’s four assignments of error are without merit and are overruled.           The

judgment of the trial court is affirmed in full.


Donofrio, J., concurs.

DeGenaro, J., concurs.
