[Cite as State v. Leannais, 2019-Ohio-2568.]
                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 107167
                 v.                                  :

STEVEN LEANNAIS,                                    :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 27, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-16-612395-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Paul Kuzmins and Cullen Sweeney, Assistant Public
                 Defenders, for appellant.


EILEEN T. GALLAGHER, P.J.:

                   Defendant-appellant, Steven Leannais, appeals his convictions and

claims the following five errors:
      1. The government failed to present sufficient evidence to demonstrate
      appellant acted recklessly.

      2. Each of the appellant’s convictions is against the manifest weight
      of the evidence where the government failed to present any credible
      evidence that appellant acted recklessly.

      3. Trial counsel was constitutionally ineffective when he failed to
      request a jury instruction on “accident.”

      4. Trial counsel was ineffective when he failed to cross-examine a
      government’s fact witness about an agreement not to prosecute.

      5. Trial counsel was ineffective when he failed to object to the
      government’s misrepresentations of the law of recklessness and
      negligence.

              We find no merit to the appeal and affirm the trial court’s judgment.

                      I. Facts and Procedural History

              In December 2016, Leannais shot and killed his friend, Anthony

Stanford, Jr., while playing with his 9 mm Glock handgun during a dinner party in

his home. As a result of the incident, Leannais was charged in a four-count

indictment with involuntary manslaughter, using weapons while intoxicated,

reckless homicide, and assault. All the counts included a forfeiture specification,

seeking forfeiture of the 9 mm Glock handgun.

              At trial, the state introduced a video recording of the dinner party that

Leannais broadcasted on Facebook Live on the night of the shooting. (Tr. 1054.)

The first part of the video shows Stanford visiting Leannais in his West Tech Loft

apartment while Leannais prepares steaks for his guests. Leannais indicates on the

video that he is drinking Tito’s vodka, and Stanford is seen making himself a vodka
drink. Shortly thereafter, Stanford leaves the apartment and indicates he will return

soon.

               Meanwhile, Leannais takes the Facebook audience on a tour of his

apartment, pointing out certain items of interest such as artwork and a particular

houseplant. He also shows the audience his Glock 9 mm pistol and notes a skull

decal on the rear of the slide, which he calls “the punisher.” After the tour, two other

guests arrive: John Frenden and his girlfriend, Ashley Karmie. Leannais introduces

them to the Facebook audience and continues cooking steaks for his guests.

               Moments later, Frenden is seen in the video playing with a decorative

sword that was hanging on the wall. He disappears from view and reappears with

Leannais’s gun. Leannais warns Frenden that the gun is loaded and takes it from

him. Leannais removes the magazine, racks it twice, and pulls the trigger to make

sure the gun is not loaded. He then hands it back to Frenden, who puts it in his

mouth and says, “Last thing you hear is ‘I didn’t know it was loaded.’” (Facebook

video 1:05:49.) Leannais shows the live round at the top of the magazine to the

Facebook audience and says: “That would have made a bloody mess.” (Facebook

video 1:06:16.) He then appears to place the magazine in his pocket, and Frenden

replies: “You don’t know about the secret clip.” (Facebook video 1:06:40.)

               Stanford soon returns to the apartment.         For the remaining 13

minutes of video, Leannais cooks two more steaks while Karmie puts makeup on in

front of a mirror next to the dining table. Meanwhile, Frenden walks around the
apartment. He refers to a “secret case” and appears to be carrying something toward

the kitchen counter but returns it to some other location. Frenden picks up the iPad

that has been broadcasting the scene on Facebook Live and turns it off at

approximately 8:45 p.m. (Facebook video 1:19:00.)

              The four friends sat down for dinner off camera. Karmie testified at

trial that she does not know how the handgun made its way to the dining table.

However, at some point, Leannais was “joking around” with the gun and pointed it

at her. Karmie testified that even though she believed the gun was unloaded, she

ducked and told Leannais not to point it at her. (Tr. 591.) Karmie saw Leannais turn

toward the other guests and heard a shot. (Tr. 591-592.) Karmie looked up at

Leannais and noticed that his face had “turned white.” Both Leannais and Stanford

exchanged looks of “utter disbelief.” (Tr. 592.)

              Stanford ran out of the apartment followed by Leannais. (Tr. 595.)

Leannais returned moments later, asked Frenden and Karmie to leave, and called

911. Officer James Zak of the Cleveland Police Department responded to the scene

just as EMS were loading Stanford into an ambulance. Leannais met Officer Zak

outside the apartment building and led him and two other officers to his apartment

to explain what happened. Officer Zak’s body camera captured the interview on

film, and the body camera video was introduced as evidence at trial. (Tr. 1054.)

              Leannais, who had a concealed-carry (“CCW”) permit, admitted to

Officer Zak that he fired the shot that ultimately caused Stanford’s death. He
explained: “We all had dinner, we had a couple of drinks, and we were all joking

around, it was on the counter and we were all joking around with it, I shouldn’t have

it out.” (Body camera video 2:37-2:47.) When asked how the shooting occurred,

Leannais explained: “We were all sitting around, there was no magazine in the

chamber, and I pointed it just joking around. As I was bringing it back down, I

pulled the trigger as I was bringing it back down and got him.” (Body camera video

5:40-6:02; tr. 435.)

               Leannais told Officer Zak that prior to the shooting, he removed the

magazine from the chamber and did not know there was a live round in the gun.

(Body camera 10:30-10:58.) Officer Zak referenced Leannais’s CCW permit and

reminded Leannais that the CCW class teaches permit holders to always treat guns

as if they are loaded. (Tr. 438.) When asked how much he had to drink prior to the

shooting, Leannais replied that he “had three drinks,” and later admitted that he was

“buzzed a little bit.”   (Body camera video 6:10-6:16; 20.00; tr. 439.)          While

examining the scene, Officer Zak observed that the firearm did not have a magazine

inside the handle, but he found a magazine on the kitchen counter along with one

loose live round. (Tr. 430.) Leannais informed Officer Zak that he had a total of

three magazines.

               Kristen Koeth, a firearms examiner with the Cuyahoga County

Regional Forensic Science Laboratory in the Cuyahoga County Medical Examiner’s

Office, testified that there are two ways to load a live round into Leannais’s gun. (Tr.
833.) First, if there is a magazine in the gun, the user could load one round into the

chamber by pulling back the slide. Second, the user could load the gun without a

magazine by pulling back the slide, dropping a round into the empty chamber, and

allowing the slide to move forward. (Tr. 833.) Koeth explained that unlike other

gun models, Leannais’s Glock handgun could be fired without a magazine inside.

Koeth also found that the gun did not have a “hair trigger,” meaning that the user

would have to apply some pressure on the trigger in order to fire the gun. (Tr. 840.)

Koeth compared the hollow point bullet recovered from Stanford’s body with bullets

test-fired from Leannais’s gun in the laboratory and concluded that the bullet in

Stanford’s body was fired from Leannais’s gun. (Tr. 848.)

               Koeth reviewed the portion of the Facebook Live video where

Leannais took the gun from Frenden and rendered it safe. She testified that

removing the magazine, racking the slide, and pulling the trigger would have cleared

all live rounds in the gun. (Tr. 854.) She explained, however, that “you always have

to check and make sure that there’s not one in the chamber.” Koeth further

commented that gun-safety classes, such as those required for CCW permits,

instruct gun owners to treat every firearm as if it is loaded and that the user should

never point the gun at anything he or she does not intend to shoot. (Tr. 851.) Koeth

also testified that the “number one rule” of gun safety is to always assume there is a

bullet in the battery ready to be fired. (Tr. 855.)
              Detective Gregory Cook, a homicide detective with the Cleveland

Police Department, interviewed Leannais as part of the homicide investigation. The

interview was recorded, and the video of the interview was entered into evidence.

(Tr. 1054.) During the interview, Leannais told Detective Cook that Frenden spoke

to him about using the gun as a prop for a movie. (Tr. 1000.) At trial, Detective

Cook compared the portion of the Facebook Live video showing Leannais racking

the slide back to clear the weapon with another part of the video in which Leannais

is heard talking to Frenden about playing a prank on someone using blanks.

(Facebook video 1:13:50.)

              The audience cannot see Leannais and Frenden in this portion of the

video, but their actions are heard. Cook testified that clicking sounds heard during

the conversation about using blanks were the same sounds the audience previously

heard when Leannais racked the slide back after taking the gun from Frenden. (Tr.

1004.) He explained that it “[s]ounded like he racked the action back, and it

sounded like it stayed back because when they — at the end, it sounded like he

allowed the slide to slam forward.” (Tr. 1004.) Cook testified that this could have

been the time when a live round was put into the chamber of the gun without using

the magazine because the sounds were consistent with that activity. (Tr. 1004-

1005.) Leannais admitted in his statement to Detective Cook that he failed to check

the chamber of the gun before pulling the trigger. (Tr. 1006.) Detective Cook

testified that Leannais should have checked the chamber of the gun when he it
picked up an hour after handling it in a way in which someone could have dropped

a round into the slide without using the magazine. (Tr. 1047.)

               The jury found Leannais guilty of involuntary manslaughter, reckless

homicide, and assault, but not guilty of using weapons while intoxicated. The state

conceded that all Leannais’s convictions merged for sentencing purposes and

elected to have Leannais sentenced on the reckless homicide charge. The trial court

sentenced Leannais to two years on the reckless homicide charge to be served

consecutive to the three years on the firearm specification, for an aggregate five-year

prison term. Leannais now appeals his convictions.

                              II. Law and Analysis

                                   A. Recklessly

               In the first assignment of error, Leannais argues the state failed to

present sufficient evidence to prove that he acted recklessly.         In the second

assignment of error, Leannais argues his convictions are against the manifest weight

of the evidence because the state failed to present credible evidence that he acted

recklessly. We discuss these assigned errors together because they are closely

related.

               The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

               In contrast to sufficiency, “weight of the evidence involves the

inclination of the greater amount of credible evidence.” State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of the evidence is a test

of adequacy as to whether the evidence is legally sufficient to support a verdict as a

matter of law, * * * weight of the evidence addresses the evidence’s effect of inducing

belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶

25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose

evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing

court must consider all the evidence in the record, the reasonable inferences, and

the credibility of the witnesses to 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.’” Thompkins

at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

               As previously stated, Leannais was found guilty of involuntary

manslaughter, reckless homicide, and assault that merged into reckless homicide.

It is undisputed that all three charges required the state to establish that Leannais
acted recklessly.1 Leannais argues there is no evidence that he acted recklessly

because he did not know the gun was loaded when he pulled the trigger. He

contends that in order to demonstrate recklessness, the state had to prove that

Leannais knew or had reason to believe the gun was loaded and that he intentionally

pulled the trigger. However, had Leannais intentionally pulled the trigger knowing

the gun was loaded, he would have been charged with murder and felonious assault

rather than reckless homicide. One commits murder by purposely causing the death

of another. See R.C. 2903.02(A). And a person acts purposely when it is the person’s

specific intention to cause a certain result. R.C. 2901.22(A). Felonious assault

occurs when a person knowingly causes serious physical harm to another. R.C.

2903.11(A)(1). “A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature.” R.C. 2901.22(B). Therefore, had Leannais known the gun

was loaded when he pulled the trigger, he could have been charged with murder and

felonious assault instead of reckless homicide.




1 Leannais was charged with misdemeanor assault in Count 3 of the indictment, which
alleges that he “did recklessly cause serious physical harm to Anthony Stanford.”
Leannais was charged with involuntary manslaughter in Count 1, which alleges that
he “did cause the death of Anthony Stanford and such death was the proximate result
of Steven Leannais committing or attempting to commit the misdemeanor * * * of
assault.” And to commit reckless homicide, as alleged in Count 3, the state had to
prove that Leannais “did recklessly cause the death of Anthony Stanford.”
              It is undisputed that Leannais did not knowingly or purposely harm

Stanford or cause his death. In contrast to a purposeful or knowing mental state,

R.C. 2901.22(C) defines the culpable mental state of “recklessness” as follows:

      A person acts recklessly when, with heedless indifference to the
      consequences, the person disregards a substantial and unjustifiable
      risk that the person’s conduct is likely to cause a certain result or is
      likely to be of a certain nature. A person is reckless with respect to
      circumstances when, with heedless indifference to the consequences,
      the person disregards a substantial and unjustifiable risk that such
      circumstances are likely to exist.

R.C. 2901.01(A)(8) defines “[s]ubstantial risk” as “a strong possibility, as

contrasted with a remote or significant possibility, that a certain result may occur

or that certain circumstances may exist.”

              Leannais argues there was no evidence that he created a substantial

risk of harm that resulted in Stanford’s death. He cites State v. Peck, 172 Ohio

App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263 (10th Dist.), to support his argument.

Peck was a tow-truck driver, who was called to pull a tractor trailer out of a median.

When he arrived on the scene, he informed the driver that his tow truck was too

small to carry the load and that a heavy tow truck was on its way. In setting up the

heavy tow, Peck used a “snatch block” (a large pulley with an attached hook) that

was not sufficiently rated to pull the weight of the tractor-trailer. As a result, the

snatch block broke and catapulted into a passing car. The driver of a passing car was

killed as a result of the incident, and Peck was charged with, and convicted of,

reckless homicide. Id. at ¶ 5.
               In reversing Peck’s reckless homicide conviction, the Tenth District

Court of Appeals found that the evidence failed to prove that Peck knew the risk

associated with his conduct because Peck was unaware that his equipment was not

sufficient to pull a tractor-trailer. The court held that “[a] mere failure to perceive

or avoid a risk, because of a lack of due care, does not constitute reckless conduct.”

Id. at ¶ 12. Rather, to be convicted of recklessness, “one must recognize the risk of

the conduct and proceed with a perverse disregard for that risk.” Id. The court

further explained:

       In contrast to the actor who proceeds with knowledge of a risk, the
       failure of a person to perceive or avoid a risk that his conduct may
       cause a certain result or may be of a certain nature is negligence. R.C.
       2901.22(D). Recklessness requires more than ordinary negligent
       conduct.     The difference between the terms “recklessly” and
       “negligently” is normally one of a kind, rather than of a degree. “Each
       actor creates a risk of harm. The reckless actor is aware of the risk
       and disregards it; the negligent actor is not aware of the risk but
       should have been aware of it.” Wharton’s Criminal Law, 15th Ed.,
       Section 27, at 170 (emphasis sic); see, also, State v. Wall (S.D. 1992),
       481 N.W.2d 259, 262.

Id. at ¶ 13.

               Applying Peck to the facts of this case, Leannais argues he was not

aware that pulling the trigger of his 9 mm Glock handgun posed a risk of harm

because he believed it was unloaded. However, Leannais and Frenden played with

the gun after Leannais removed the magazine and rendered the gun safe. In the

Facebook Live video, Frenden and Leannais talk about using the gun to play a prank

on someone using blanks. Although the audience cannot see Frenden and Leannais

in the film, the gun is heard being racked in a way that it could be loaded from the
top of the slide rather than with a magazine through the handle. (Tr. 1006.)

Detective Cook testified that a live bullet could have been loaded in the gun at this

point in the video because the sounds were consistent with that activity. (Tr. 1004-

1005.)

                When Officer Zak entered the apartment after the shooting, he found

the gun, a magazine containing hollow point bullets, and one loose round on the

kitchen counter.2 (Tr. 430.) Although Leannais previously had the magazine in his

possession when he removed it from the gun, he either reloaded a bullet or left the

gun and magazine accessible to his guests, who could have loaded it. Indeed,

Leannais told Detective Cook in the recorded interview: “I don’t know, I’m thinking

that if [Frenden] cocked it and there was one in the chamber the whole time and I

didn’t check it * * *.” (Leannais video statement 14:26-14:42.) Leannais also

admitted to Detective Cook: “‘The only thing mistaken is that I didn’t check the

chamber of the gun[.]’” (Tr. 1006.) Therefore, the evidence shows Leannais was

aware of a strong possibility that the gun could have been reloaded after he had

rendered it safe earlier that night. We, therefore, find Peck distinguishable from the

facts of this case.

                The facts of this case are more like the facts presented in State v.

Gough, 5th Dist. Licking No. 08-CA-55, 2009-Ohio-322. In Gough, the Fifth

District found there was sufficient evidence to sustain a reckless homicide


2 Police confiscated two other magazines from Leannais’s bedroom that contained
bullets made by other manufacturers. (Tr. 982-983.)
conviction where the defendant, who had been drinking at a party, shot the victim

in the head while playing with the victim’s gun. As in the instant case, the gun was

initially loaded, and subsequently unloaded. After it was unloaded, the bullets were

placed on an end table. Id. at ¶ 4. One of the guests asked to see a bullet, and the

gun owner handed him a bullet. After the guest examined it, he returned it to the

gun owner, who loaded it into the gun. Minutes later, Gough picked up the gun,

aimed it at the gun owner’s head, and pulled the trigger.          The gun owner

subsequently died of a gunshot wound to the head, and Gough was convicted of

reckless homicide. Id. at ¶ 6, 11.

               On appeal, Gough argued there was insufficient evidence that he

acted recklessly because there was no evidence that he knew the gun was loaded.

The Fifth District rejected that argument and found that Gough knew the risks

created by his conduct because the gun owner generally kept the gun loaded, and

the gun had been loaded earlier that night. Id. at ¶ 23. Leannais’s gun was also

loaded earlier in the night. Although it was subsequently unloaded, Leannais and

Frenden racked the slide in a manner in which a bullet could have been reloaded

without the magazine. Because Leannais played with the gun after he unloaded it,

he was aware of the possibility that it could have been reloaded. Indeed, his

admissions that he should have checked the chamber evidences the fact that he was

aware of the risks involved in pulling the trigger. Therefore, there was competent,

credible evidence that Leannais acted recklessly when he caused Stanford’s death.

               The first and second assignments of error are overruled.
                     B. Ineffective Assistance of Counsel

               In the third, fourth, and fifth assignments of error, Leannais argues

his trial counsel was ineffective because they (1) failed to request a jury instruction

on “accident,” (2) failed to cross-examine a state witness about an agreement not to

prosecute, and (3) failed to object to the state’s representation of the law on

recklessness and negligence. We discuss these assigned errors together because

they involve the same standard for assessing an ineffective assistance of counsel

claim.

               To establish a claim for ineffective assistance of counsel, the appellant

must show that his trial counsel’s performance was deficient and that the deficient

performance prejudiced his defense. State v. Drummond, 111 Ohio St.3d 14, 2006-

Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant

demonstrates “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland at 694.



                             1. Accident Instruction

               Leannais argues Stanford’s death was the result of a tragic accident

and that his trial counsel was ineffective because they failed to request a jury

instruction on accident. However, “accident” is not an affirmative defense. Rather,

it is “a factual defense that denies that the accused acted with the degree of
culpability or mens rea required for the offense, when that involves purposeful

conduct.” In re F.D., 8th Dist. Cuyahoga No. 102135, 2015-Ohio-2405, ¶ 32, citing

State v. Taylor, 5th Dist. Richland No. 2005-CA-0112, 2006-Ohio-4064, ¶ 35.

               As previously stated, Leannais was not charged with any offenses

involving purposeful or intentional conduct. He was charged with offenses that

required the state to prove that he acted recklessly. In accordance with the statutory

definition of “recklessness,” the court instructed the jury that

      [a] person acts recklessly when with heedless indifference to the
      consequences the person disregards a substantial and unjustifiable
      risk that the person’s conduct is likely to cause a certain result or is
      likely to be of a certain nature. A person is reckless with respect to
      circumstances when with heedless indifference to the consequences
      the person disregards a substantial and unjustifiable risk that such
      circumstances are likely to exist. Risk means a significant possibility
      as contrasted with a remote possibility that a certain result may occur
      or that certain circumstances may exist.

      * * *

      If you find that the State failed to prove beyond a reasonable doubt
      any one of the essential elements of the offense of reckless homicide
      as charged in Count 3 of the indictment, your verdict must be not
      guilty according to your findings.

(Tr. 1092-1093.) This definition would have allowed the jury to understand that

recklessness requires conduct beyond that of mere accident. Therefore, had the

jury concluded that Leannais’s conduct was an accident, it would have acquitted

him of any charges that required proof of recklessness. See, e.g., State v. Tiber, 7th

Dist. Belmont No. 88-B-28, 1990 Ohio App. LEXIS 1865 (May 17, 1990) (Jurors

provided definition of recklessness could “easily reason that defense to that charge
would be proof by the defendant of accident” since “[t]he phrases perversely

disregards a heedless indifference speak of a requirement going well beyond an

accident.”).   Therefore, inclusion of an accident instruction would not have

changed the outcome of the trial, and counsel’s failure to request an accident

instruction does not meet the test for ineffective assistance of counsel.

                2. Failure to Cross-Examine State’s Witness

               Leannais further argues his trial counsel was ineffective because they

failed to cross-examine Frenden regarding the state’s promise not to prosecute him

for allegedly tampering with evidence and tampering with records. However, had

counsel questioned Frenden about a promise not to prosecute him, it would have

opened the door to the state asking Frenden to review the statements he made to

police prior to receiving any promises in order to prove that his testimony was

consistent with his earlier statements. Reviewing Frenden’s prior statements would

have bolstered his trial testimony rather than discrediting it.

               Trial counsel made a tactical decision to avoid the risk of having

Frenden’s testimony bolstered and relied instead on other methods of

impeachment.     For example, Frenden admitted on cross-examination he was

dishonest and lost his license to practice law as a result of his “dishonest and selfish

motives.” (Tr. 569.) Frenden also admitted that after Leannais was in custody, he

lied to jail personnel and signed in as Leannais’s lawyer even though he was

disbarred. (Tr. 541.) Moreover, counsel got Frenden to admit that he urged

Leannais to delete the Facebook Live video and that such an act could be viewed as
a tampering with evidence. Under these circumstances, we cannot say Leannais’s

trial counsel’s performance was deficient or that their failure to ask Frenden about

the state’s promise not to prosecute him changed the outcome of the trial.

                          3. State’s Representations of
                          Recklessness and Negligence

               Finally, Leannais argues his trial counsel was ineffective for failing to

object to certain statements made by the prosecutor during his closing arguments

that conflated the concepts of recklessness and negligence. He contends the state

advised the jury that there were only two choices in this case; either Leannais was a

“reasonably careful person,” i.e., not negligent, or Leannais “acted recklessly.”

(Appellant’s brief at 38.) He further argues the state erroneously argued that the

person who “locked away” the gun is the “reasonably careful person” who can claim

negligence, and the person who was “pouring drinks” for his guests takes a

“substantial and unjustifiable risk.” (Appellant’s brief, citing tr. 1154-1155.)

               However, these statements need to be read in context. Defense

counsel requested and received an instruction on the lesser included offense of

negligent homicide. Accordingly, the court instructed the jury on negligence, as

follows:

      A person acts negligently when because of a substantial lapse from
      due care the person failed to perceive or to avoid a risk that the
      person’s conduct may cause a certain result or be of a certain nature.
      A person is negligent with respect to circumstances when because of
      the substantial lapse from due care the person fails to perceive or to
      avoid a risk that such circumstance may exist. Due care is the amount
      of care which a reasonably careful person would use under the same
      or similar circumstances.
      The lapse or failure to use due care must be substantial. Substantial
      is another word for material, which means being of real importance
      or great consequence. Risk means a significant possibility as
      contrasted with a remote possibility that a certain result may occur.

(Tr. 1097.)

              In light of these instructions, Leannais’s trial counsel argued that

Leannais was negligent rather than reckless because Leannais had a momentary

lapse of due care when he handled the gun without checking to see if it was loaded.

(Tr. 1145-1146.) In response, the state provided its own perspective on the difference

between negligence and recklessness:

      Couple ideas that are important when you consider negligent and
      reckless. Negligent, one of the things you have to consider is due care.
      And one of the elements of due care revolves around the reasonably
      careful person. Contrast that with one of the ideas of recklessness we
      have, which is the substantial and unjustifiable risk.

(Tr. 1152.) We find nothing confusing or misleading about this argument. And in

making the argument that Leannais acted recklessly, the state merely emphasized

the substantial risk involved in playing with a gun while drinking. In contrast to

defense counsel’s characterization of Leannais’s conduct, the prosecutor argued

that Leannais’s reckless conduct began when he first introduced the gun in the

Facebook Live video while he was drinking. (Tr. 1153.) The prosecutor explains:

      That’s when the recklessness begins. It begins there because he’s
      drinking. He’s got people coming over who are going to drink. And
      he’s got a loaded gun just sitting around in his apartment — waiting
      for something to happen.

      * * *
      How on earth can anyone say Mr. Leannais is the reasonably careful
      person when he’s drinking alcohol and he’s got John Frenden coming
      over with [the gun] out in the open?

(Tr. 1153-1154.)   Although the state contrasted this behavior with that of a

“reasonably careful person” who makes sure his gun is “locked away safely,” such

an argument does not preclude the jury from finding that Leannais was neither

reckless nor “reasonably careful,” but negligent. The state’s description of a

“reasonably careful person,” was accurate and would not have prevented the jury

from finding Leannais negligent if the facts supported such a finding. Indeed, the

jury received a verdict form for negligent homicide in the event it found that

Leannais acted negligently rather than recklessly or carefully. Therefore, defense

counsel was not ineffective for failing to object to this argument because the

argument was not erroneous and the outcome of the trial would not have been

different if the argument had been stricken.

              Therefore, the third, fourth, and fifth assignments of error are

overruled.

              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 of this court directing the common

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

been affirmed, any bail pending 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.



EILEEN T. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION


EILEEN A. GALLAGHER, J., DISSENTING:

              I respectfully dissent. I find merit to Leannais’ first assignment of

error. I would vacate Leannais’ conviction for reckless homicide and the findings of

guilt on the merged offenses of involuntary manslaughter and reckless assault

because I do not believe that the evidence presented at trial, even when construed

in the light most favorable to the state, was sufficient to prove beyond a reasonable

doubt that Leannais acted recklessly.

              Leannais was convicted of reckless homicide in violation of R.C.

2903.041(A) and also found guilty of involuntary manslaughter in violation of R.C.

2903.04(B) and reckless assault in violation of R.C. 2903.13(B). Each of these

offenses required the state to prove beyond a reasonable doubt that Leannais acted

recklessly. See R.C. 2903.041(A) (“No person shall recklessly cause the death of

another or the unlawful termination of another’s pregnancy.”); R.C. 2903.13(B)
(“No person shall recklessly cause serious physical harm to another or to another’s

unborn.”).3 Recklessness is defined in R.C. 2901.22(C) as follows:

       A person acts recklessly when, with heedless indifference to the
       consequences, the person disregards a substantial and unjustifiable
       risk that the person’s conduct is likely to cause a certain result or is
       likely to be of a certain nature. A person is reckless with respect to
       circumstances when, with heedless indifference to the consequences,
       the person disregards a substantial and unjustifiable risk that such
       circumstances are likely to exist.4
See also 1974 Committee Comment to H.B. No. 511 (“A person is said to be reckless

under the section when, without caring about the consequences, he obstinately

disregards a known and significant possibility that his conduct is likely to cause a

certain result or be of a certain nature, or that certain circumstances are likely to


      3  R.C. 2903.04(B) states, in relevant part: “No 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 misdemeanor of any degree * * *.” “The
culpable mental state of involuntary manslaughter is supplied by the underlying offense.”
State v. Johnson, 8th Dist. Cuyahoga No. 94813, 2011-Ohio-1919, ¶ 54, citing State v.
Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912 N.E.2d 133, ¶ 36 (8th Dist.); see also
State v. Carpenter, 3d Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶ 45; State v. Vogt, 4th
Dist. Washington No. 17CA17, 2018-Ohio-4457, ¶ 92. Because the underlying offense for
the involuntary manslaughter count was the reckless assault charge, recklessness was also
required to prove involuntary manslaughter.

      4   R.C. 2901.22(C) was amended effective March 23, 2015. It previously stated:

      A person acts recklessly when, with heedless indifference to the
      consequences, he perversely disregards a known risk that his conduct is likely
      to cause a certain result or is likely to be of a certain nature. A person is
      reckless with respect to circumstances when, with heedless indifference to
      the consequences, he perversely disregards a known risk that such
      circumstances are likely to exist.


       This court has indicated that the definition of recklessness in the current version
of R.C. 2901.22(C) and the former version of R.C. 2901.22(C) are “substantively [the]
same.” See State v. Jones, 2018-Ohio-498, 105 N.E.3d 702, ¶ 92-93 (8th Dist.).
exist.”). A “risk” is “a significant possibility, as contrasted with a remote possibility,

that a certain result may occur or that certain circumstances may exist.” R.C.

2901.01(A)(7). A “substantial risk” is “a strong possibility, as contrasted with a

remote or significant possibility, that a certain result may occur or that certain

circumstances may exist.” R.C. 2901.01(A)(8).5 “[S]omething is ‘likely’ when there

is * * * good reason for expectation or belief.” 1974 Committee Comment to H.B.

No. 511.     Thus, to support guilty verdicts for reckless homicide, involuntary

manslaughter and reckless assault, the state needed to prove beyond a reasonable

doubt that Leannais, with heedless indifference to the consequences, disregarded a

“strong possibility” that his conduct would “likely” cause, i.e., that there was good

reason to expect his conduct would cause, death or serious physical harm.

                 The video recording of the Facebook Live broadcast shows Leannais

taking the gun from Frenden, removing the magazine, racking it twice and pulling

the trigger to make sure the gun is not loaded before handing it back to Frenden.

Leannais then appears to put the magazine in his pocket. One of the state’s experts,

Kristen Koeth, testified that Leannais’ actions would have cleared all live rounds in

the gun and would have “rendered the gun safe.” Detective Cook agreed that the

weapon was rendered safe at that point and “wouldn’t fire” without having “another

bullet loaded into it.” Leannais had a concealed carry permit and some familiarity

with guns. Other magazines for the gun were kept in Leannais’ bedroom.




      5   “Unjustified risk” is not defined in R.C. 2901.01.
               When Leannais handled the gun approximately an hour later,

shooting and killing Stanford, there was no magazine in the gun. Because Leannais

had properly unloaded the gun earlier that evening, the only way Leannais’ conduct

could be “likely to cause” serious physical harm or death or that Leannais could be

said to have “disregard[ed]” a “strong possibility” that his conduct was “likely to

cause” serious physical harm or death is if Leannais knew that the gun had been

reloaded or knew that there was a likelihood that the gun had been reloaded at the

time he handled the gun. Koeth testified that there are two ways to load a bullet into

the gun at issue: (1) a loaded magazine could be inserted into the bottom of the gun

and the slide could be pulled back and then allowed to go forward or (2) a person

could unlock the slide, pull the slide back, drop a round into the chamber, and allow

the slide to go forward.

               Officer Zak testified that when he entered Leannais’ apartment after

the incident, he observed the gun with no magazine inside the grip, a magazine and

one loose live round on the kitchen counter. There was no direct evidence at trial

establishing who reloaded the gun, when the gun was reloaded or that Leannais

knew that the gun had been reloaded when he was “joking around with it” an hour

later. Although circumstantial evidence can have the same probative value as direct

evidence, I do not believe there was sufficient circumstantial evidence here to allow

the jury to find beyond a reasonable doubt that Leannais knew that there was a

“strong possibility” or likelihood that the gun had been reloaded when Leannais

handled it an hour later.
               In determining that there was sufficient evidence to support the jury’s

finding that Leannais acted recklessly, the majority points to evidence that Leannais

and Frenden “played with the gun after Leannais removed the magazine and

rendered the gun safe” and that they joked about “using the gun to play a prank on

someone using blanks.” They also point to (1) Detective Cook’s testimony that,

although Leannais and Frenden could not be seen on the Facebook Live video during

their conversation about “using blanks,” “clicking sounds” could be heard on the

video during that conversation that sounded like the racking of the slide — i.e., “like

he racked the action back, and it sounded like it stayed back because * * * at the end,

it sounded like he allowed the slide to slam forward” — and (2) Detective Cook’s

supposition that this could have been when the gun was reloaded, i.e., that these

sounds could have been “consistent with perhaps loading [the gun] * * * either from

the top or allowing the slide to go forwards.” The majority concludes that this

evidence combined with Leannais’ statement to police after the incident in which

Leannais acknowledges that he made a “mistake” in failing to “check the chamber of

that gun” before handling it, shows that Leannais was “aware of the possibility that

[the gun] could have been reloaded” and of “the risks involved in pulling the trigger”

and constituted sufficient “competent, credible evidence that Leannais acted

recklessly” when he caused Stanford’s death. I disagree.

               Proof of recklessness requires more than evidence of negligence.

Although there is evidence that Frenden and Leannais continued to “jok[e] around”

with the gun after Leannais had unloaded it, based upon the record before us, I
believe too much is unknown about what happened to the gun after Leannais

unloaded it (and how and when it was reloaded) for a reasonable jury to do anything

more than speculate as to whether Leannais was aware that there was a “strong

possibility” that the gun had been reloaded and that, with heedless indifference to

the consequences, he disregarded a substantial and unjustifiable risk that his

conduct would likely cause death or serious physical harm.

               “Proof beyond a reasonable doubt cannot be based on conjecture,

speculation or an assessment of the likelihood of various possibilities.” State v.

Hicks, 8th Dist. Cuyahoga No. 102206, 2015-Ohio-4978, ¶ 57; see also State v.

Brown, 8th Dist. Cuyahoga No. 98540, 2013-Ohio-1982, ¶ 31 (“It is well established

that ‘[c]riminal convictions cannot rest upon mere speculation; the state must

establish the guilt of the accused by proof beyond a reasonable doubt.’”), quoting

State v. Haynes, 25 Ohio St.2d 264, 270, 267 N.E.2d 787 (1971); State v. Miller, 11th

Dist. Lake No. 2002-L-162, 2004-Ohio-6342, ¶ 50 (“speculative evidence does not

support a conviction beyond a reasonable doubt”). “Proof beyond a reasonable

doubt is not a mere probability or even a strong probability.” Hicks at ¶ 57. It

requires a fact finder to be “firmly convinced” of the truth of a fact, i.e., “proof of

such a character that an ordinary person would be willing to rely and act upon it in

the most important of [his or her] own affairs.” R.C. 2901.05(E); State v. Givens, 2d

Dist. Clark No. 2005-CA-42, 2005-Ohio-6670, ¶ 11 (“Proof beyond a reasonable

doubt is a very high degree of proof such that the jurors must be ‘firmly convinced’
of the proof of the charge.”). I do not believe such proof of recklessness was present

here.

               There is no dispute in this case that Leannais violated the “number

one rule” of gun safety — i.e., to always assume that there is a bullet in the gun ready

to be fired — and exercised extremely poor judgment in “joking around” with the

gun, with tragic consequences. However, I believe the evidence in this case supports

a finding of criminal negligence — not recklessness — beyond a reasonable doubt.

See R.C. 2901.22(D) (“A person acts negligently when, because of a substantial lapse

from due care, the person fails to perceive or avoid a risk that the person’s conduct

may cause a certain result or may be of a certain nature. A person is negligent with

respect to circumstances when, because of a substantial lapse from due care, the

person fails to perceive or avoid a risk that such circumstances may exist.”).

               I believe this case is distinguishable from State v. Gough, 5th Dist.

Licking No. 08-CA-55, 2009-Ohio-322, upon which the majority relies, and a

number of other cases in which courts have upheld convictions for reckless homicide

based on an unintentional discharge of a firearm. In Gough, the defendant knew

the gun owner “usually” kept his gun loaded and that the gun was actually loaded

sometime that evening. Id. at ¶ 3, 21, 23. At one point, a guest removed the bullets

from the gun, placing the gun on the kitchen table and the bullets on an end table.

However, later on that evening, the gun owner and another guest examined the gun

in the living room. Id. at ¶ 4-5. The defendant was in the living room, sitting next

to the gun owner on a futon, while the gun owner and the guest looked at the gun.
Id. at ¶ 5, 22. When the guest asked to see a bullet, the gun owner retrieved one and

gave it to the guest. Id. After he finished observing it, the guest gave the bullet back

to the gun owner. Id. at ¶ 5, 22. The gun owner put the bullet back into the gun,

then placed the gun on the coffee table in front of the futon. Id. Minutes later, the

defendant picked up the gun, pointed the gun at the gun owner’s head, cocked the

gun and pulled the trigger, killing the gun owner. Id. at ¶ 6, 8, 22. The defendant

was convicted of reckless homicide and appealed. Id. at ¶ 10-11. On appeal, the Fifth

District affirmed his conviction, concluding that the evidence was sufficient to show

that the defendant “knew the risks created by his conduct” and that “[h]is act of

holding the gun to the head of [the gun owner] demonstrated a perverse disregard

of a known risk that [the gun owner] would be shot and killed.” Id. at ¶ 23. This is

not that case.

                 This is not a case in which the defendant knew the gun was loaded,

had reason to believe the gun was loaded or had no reason to believe whether or not

the gun was loaded at the time the offense occurred. Compare, e.g., State v. Erby,

2d Dist. Montgomery No. 27799, 2018-Ohio-3695, ¶ 20-24 (evidence was sufficient

to prove beyond a reasonable doubt that defendant was guilty of reckless homicide

where defendant, who had limited familiarity with the weapon, waved what he knew

to be a loaded gun within two feet of where the victim was lying on the bed, with his

finger on the trigger, while he was in a ‘“hyped up’ state”); State v. English, 10th

Dist. Franklin No. 13AP-88, 2014-Ohio-89, ¶ 6-9, 11-13, 15 (defendant who did not

have any experience with firearms perversely disregarded a known risk by “messing
with” the hammer of a shotgun when he did know whether gun was loaded); see also

State v. Swanson, 10th Dist. Franklin No. 10AP-502, 2011-Ohio-776, ¶ 12-16

(conviction for reckless homicide was not against the manifest weight of the

evidence where defendant who was unfamiliar with guns, picked up a gun in anger,

pointed it in the direction of her husband’s head, and pulled the trigger without

knowing whether the gun was loaded). In this case, because he had unloaded the

gun himself earlier that evening, Leannais had reason to believe the gun was

unloaded at the time he pulled the trigger.

               In my view, this is not a case of a defendant who was aware of a

substantial and unjustified risk and, with heedless indifference, disregarded it; this

is a case of a defendant who, due to a substantial lapse in judgment, failed to perceive

a significant risk — i.e., that a gun he had reason to believe was unloaded might

actually be loaded — and take the appropriate steps to avoid that risk. In other

words, a case of criminal negligence not recklessness. See State v. Johnson, 8th Dist.

Cuyahoga No. 105841, 2018-Ohio-1519, ¶ 11 (“While the reckless person and the

negligent person both create a risk of harm, their conduct is nonetheless

distinguishable: “‘[t]he reckless actor is aware of the risk and disregards it; the

negligent actor is not aware of the risk but should have been aware of it.’””), quoting

State v. Peck, 172 Ohio App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263, ¶ 13 (10th

Dist.), quoting Torcia, Wharton’s Criminal Law, Section 27, 170 (15th Ed.1994).

               Because I believe the state failed to present sufficient evidence to

prove, beyond a reasonable doubt, that Leannais acted recklessly, I would reverse
his conviction for reckless homicide and the guilty verdicts on the involuntary

manslaughter and reckless assault counts.
