[Cite as State v. Jackson, 2020-Ohio-1606.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 108493
                 v.                                 :

TYMAINE JACKSON,                                    :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 23, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-632209-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Maxwell M. Martin, Assistant Prosecuting
                 Attorney, for appellee.

                 Allison S. Breneman, for appellant.


LARRY A. JONES, SR., J.:

                   Defendant-appellant Tymaine Jackson (“Jackson”) appeals from his

multiple convictions in the shooting death of Sir Rell Sizemore (“Sizemore”).

Finding no merit to the appeal, we affirm.
               Jackson was indicted with aggravated murder, murder, five counts

of felonious assault, three counts of attempted murder, and discharge of a firearm

on or near prohibited premises. All counts contained one- and three-year firearm

specifications. The matter proceeded to a jury trial at which the following evidence

was presented.

               On the evening of August 11, 2018, Jackson, who was 19 years old,

and his girlfriend went to a convenience store where it was common for people to

congregate. Jackson’s girlfriend stayed in the car off to one side of the parking lot

while Jackson walked around the large and crowded parking lot talking to friends.

               On the same evening, 28-year old Sizemore was driven by his sister,

Sherron, to the same convenience store. His brother, Sir Robert, his nephew,

William, and a friend were also in the car. Sizemore and William got out of the car

to buy cigarettes, but Sizemore stayed outside of the store; Sizemore was not

allowed in the store because he was not wearing a shirt. William went inside the

store while Sizemore walked around the parking lot listening to music and

dancing.

               Sizemore was in the middle of the parking lot when Jackson walked

up to him; Jackson testified he was just trying to pass Sizemore on the way back to

his girlfriend’s car. Sizemore tried to shake or “dap” Jackson’s hand; Jackson

declined. Sir Robert saw Jackson approach his brother and Sir Robert testified he

got a “tight, nervous feeling.”
              According to Jackson, Sizemore saw that Jackson had a gun in his

shorts and told Jackson that “they had guns too,” meaning the people Sizemore

was with also carried firearms.       Jackson claimed that Sizemore was being

aggressive towards him and Jackson feared for his safety.

              William testified that he went into the convenience store and when

he exited the store he saw a man approach his uncle; the man walked from the

crowd and up to Sizemore. Sizemore tried to greet the man and give him a

handshake. William observed the man and Sizemore talking but could not hear

what they were saying.     William was standing near his aunt’s car when he saw

Jackson shoot Sizemore. He tried to get to Sizemore but was unable to because

Jackson started firing his weapon at him.

              Jackson testified to the following version of events. He walked over

to talk to a group of friends who were at the store while his girlfriend waited in the

car. On his way back to his girlfriend’s car, he crossed paths with Sizemore, stating

that he walked past Sizemore because this was the most direct way back to his

vehicle. Jackson had a gun in the pocket of his basketball shorts and approached

Sizemore with his hand in the pocket of his shorts. Sizemore noticed the gun in

Jackson’s waistband and told Jackson that his group had guns too. Sizemore was

being aggressive, called him a derogatory slur, and he saw Sizemore reach into his

own pocket for a gun. Jackson saw someone Sizemore was with get out of a car

and thought that man was going to kill him. Then Sizemore punched Jackson. It

was at this point Jackson pulled his gun out of his pocket and shot Sizemore. He
fled on foot with his girlfriend following in her car. Jackson turned himself in to

police a few days later.

               According to the state, the surveillance video of the incident, which

was played for the jury and entered into evidence, showed Jackson pulling his gun

out of his pocket prior to Sizemore punching him. Immediately after Sizemore

punched Jackson, Jackson raised his gun and shot Sizemore multiple times in

rapid succession. Jackson then shot at William, who began to approach Sizemore

only after Sizemore was shot.

               Forensic pathologist Todd Barr, M.D. (“Barr”), testified that

Sizemore’s cause of death was multiple gunshot wounds, including a close range

gunshot wound to the chest that was in and of itself fatal. Sizemore had alcohol

and cocaine in his system at the time of his death. Barr opined that Sizemore

ingested cocaine more than a day prior to his death and was not under the

influence of cocaine at the time of his death.

               Eight spent 9 mm cartridge cases were recovered at the crime scene.

The firearm was never recovered.

               The state theorized that because Jackson approached Sizemore with

a loaded gun already in hand and a round in the chamber, Jackson murdered

Sizemore. Jackson claimed he acted in self-defense.

               The jury acquitted Jackson of aggravated murder but found him

guilty of the lesser included offense of voluntary manslaughter, guilty of murder,

guilty of three counts of felonious assault, and guilty of discharge of a firearm on or
near prohibited premises. The guilty verdicts included all firearm specifications.

The trial court sentenced Jackson to 35 years to life in prison.

               It is from this conviction that Jackson now appeals, raising four

assignments of error for review. The assignments of error will be discussed out of

order for clarity.

       I: The jury found, against the manifest weight of the evidence, that
       the appellant committed the acts charged in the indictment and was
       not acting in self-defense.

       II: The evidence was not legally sufficient to sustain a guilty verdict.

       III: The state failed to meet their burden of proving that defendant
       did not act in self-defense.

       IV: The trial court abused its discretion by imposing a prison
       sentence contrary to R.C. 2929.14 and the purposes and principles of
       the felony sentencing guidelines and erred by imposing consecutive
       sentences.

Self-Defense

               In the third assignment of error, Jackson contends that the state

failed to meet its burden of proving that he acted in self-defense.

               On March 19, 2019, R.C. 2901.05 was amended to provide that the

state must prove beyond a reasonable doubt that a defendant did not act in self-

defense. See Am.Sub.H.B. No. 228. Prior to the amendment, R.C. 2901.05 placed

the burden on the defendant to show that he or she acted in self-defense. See

former R.C. 2901.05(A) (“The burden of going forward with the evidence of an

affirmative defense, and the burden of proof, by a preponderance of the evidence,

for an affirmative defense, is upon the accused.”). At the time of Jackson’s trial in
April 2019, the state bore the burden of proving beyond a reasonable doubt that he

did not act in self-defense.

               R.C. 2901.05(B)(1) provides that a person is allowed to act in self-

defense. If, at trial, there is evidence presented that tends to support that the

accused person used the force in self-defense, the prosecution must prove beyond

a reasonable doubt that the accused person did not use the force in self-defense.

Id. When a defendant raises the claim of self-defense, the state bears the burden of

proving beyond a reasonable doubt that the defendant was at (1) fault in creating

the situation giving rise to the affray; (2) that the defendant did not have a bona

fide belief that he or she was in imminent danger of death or great bodily harm and

that his or her only means of escape from such danger was in the use of force and;

(3) that the defendant must not have violated any duty to retreat or avoid danger.

These elements remain cumulative.

               Jackson contends he was merely crossing the gas station parking lot

to return to his vehicle when he was approached by Sizemore, who punched him

after a brief conversation. Jackson argues that Sizemore warned him that “he and

his people” had guns, acted aggressively towards him, and called him a derogatory

name.    At this point, Jackson testified, Sizemore put his hand in his pocket

reaching for a weapon and Sizemore’s group started walking towards him.

Jackson believed Sizemore and his friends had weapons on them and when

Sizemore punched him, he reacted to defend himself by shooting Sizemore.

Jackson argued he shot at Sherron’s car because Sizemore’s group were rushing
towards him. During the entire encounter, Jackson “believ[ed] he was going to be

shot and killed.”

                We first consider who was at fault in creating the situation giving

rise to the affray. Although Jackson argues that Sizemore was the aggressor,

Jackson walked towards Sizemore, who tried to shake his hand. Jackson rebuffed

Sizemore’s advance and was immediately hostile towards the other man. On cross-

examination, Jackson admitted:

      State: The fact of the matter is you escalated this situation? You
      made it into the violent confrontation it was, didn’t you?

      Defendant: Yes.

(T. 733). Thus, we find Jackson was at fault in creating the situation giving rise to

the shooting.

                The evidence further showed that Jackson did not have a bona fide

belief that he was in imminent danger of death or great bodily harm or that his

only means of escape from such danger was in the use of deadly force. The record

shows that Sizemore was standing in the parking lot, waiting for his nephew to

purchase cigarettes, when Jackson approached him with his gun ready. Jackson

could have easily avoided Sizemore, but instead walked up to him, with his hand

on his gun that was in his pocket. Jackson said he thought Sizemore had a gun,

but Sizemore was shirtless, wearing low hanging jeans and underwear with a

visible waistband. Witnesses testified that Sizemore, and the rest of the group,

were unarmed.
               Sizemore, who by all accounts was dancing and having a good time,

tried to shake Jackson’s hand. Jackson refused Sizemore’s greeting, squared off to

him, and spoke to him in an aggressive manner. A short argument ensued before

Sizemore punched Jackson. Jackson admitted that Sizemore saw his gun before

Sizemore punched Jackson; Sizemore knew Jackson was armed.                   Jackson

responded to the punch by shooting Sizemore five times in rapid succession,

hitting him four times. Even after Sizemore fell to the ground, Jackson continued

to shoot him. Thus, Jackson also failed to meet his duty to retreat. There is no

indication that Jackson was unable to avoid the situation. He could have avoided

Sizemore altogether by choosing a different route back to his girlfriend’s car. He

also could have turned or backed away from Sizemore at any point during their

encounter. Instead, he admittedly escalated the encounter into a violent encounter

that ended up with him shooting Sizemore and causing his death.

               In light of the above, we find that the state met its burden. The third

assignment of error is overruled.

Sufficiency of the Evidence

               In the second assignment of error, Jackson contends that the

evidence was insufficient to sustain his convictions for the sole reason that the

state did not prove that he acted in self-defense.

               Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). Sufficiency is a test of adequacy. Id.
              Jackson was convicted of committing murder pursuant to R.C.

2903.02(B), voluntary manslaughter pursuant to R.C. 2903.03, felonious assault

pursuant to R.C. 2903.11(A)(1) and (A)(2); and discharge of a firearm on or near

prohibited premises pursuant to R.C. 2923.162(A)(3). Jackson argues that the

evidence did not support his convictions because he acted in self-defense.

              Jackson’s sufficiency argument based on his asserted self-defense

claim has no merit. When reviewing a claim by a defendant that evidence supports

his or her claim of self-defense, the manifest-weight standard is the proper

standard of review because a defendant claiming self-defense does not seek to

negate an element of the offense charged but rather seeks to relieve himself or

herself from culpability. State v. Colon, 8th Dist. Cuyahoga No. 106031, 2018-

Ohio-1507, ¶ 16.    A sufficiency review, on the other hand, is applied to the

substantive elements of the crime as state law defines them. Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, Jackson’s reliance on his

self-defense testimony is not relevant to the analysis of whether there was

sufficient evidence to support the substantive elements of murder, voluntary

manslaughter, felonious assault, and discharge of a firearm on or near prohibited

premises.

              We find evidence in the record that supports the jury’s verdict. It is

undisputed that Jackson approached Sizemore after talking to a group of friends.

The two exchanged words. Sizemore punched Jackson and Jackson shot Sizemore

instead of retreating. Jackson shot at Sizemore five times, hitting him four times,
and killing him. Jackson then shot at Sizemore’s family, hitting the car in which

they were sitting.

               The second assignment of error is overruled.

Manifest Weight of the Evidence

               In the first assignment of error, Jackson argues that his convictions

are against the manifest weight of the evidence. Determinations of credibility and

weight of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The jury, or the

court in a bench trial, may take note of inconsistencies at trial and resolve them

accordingly, “believ[ing] all, part, or none of a witness’s testimony.” State v. Metz,

8th Dist. Cuyahoga Nos. 107212, 107246, 107259, 107261, 2019-Ohio-4054, ¶ 70

citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Therefore,

“[w]hen a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a

‘“thirteenth juror”’ and disagrees with the factfinder’s resolution of the conflicting

testimony.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Tibbs v.

Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). 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 id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Appellate courts should reverse a conviction as being against the

manifest weight of the evidence only in the most ‘“exceptional case in which the

evidence weighs heavily against the conviction.”’ Thompkins at id., quoting Martin

at id.

              Jackson asserts his convictions are against the manifest weight of

the evidence because he acted in self-defense. According to his testimony, he

feared for his life and only shot Sizemore after Sizemore punched him and

Sizemore’s family members charged him.

              Ultimately, the jury had to decide whether to believe the account of

the incident given at trial by the state’s witnesses or by Jackson. That is, it was

within the province of the jury to resolve the conflicts in the testimony about the

confrontation between Jackson and Sizemore, and to find that Jackson did not act

in self-defense. In resolving this conflict, the jury had the opportunity to view the

video of the incident. The jury also could assess Jackson’s motivation to lie about

his conduct. In view of its verdict, the jury did not believe fully Jackson’s account,

but they also acquitted him of the most serious charge, aggravated murder, and of

other charges. Upon reviewing the entire record, we find that the jury’s resolution

of the competing testimony and evidence was not against the manifest weight of

the evidence. This not an exceptional case in which the evidence weighs heavily

against the conviction.

              In light of the above, the first assignment of error is overruled.
Sentencing

              In the fourth assignment of error, Jackson contends that the trial

court erred in sentencing him to a sentence of 35 years to life in prison. He argues

that the trial court abused its discretion by failing to properly weigh the

seriousness and recidivism factors set forth in R.C. 2929.12, as well as failing to

properly consider the purposes and principles of the felony sentencing guideline

before imposing a 35-year-to-life sentence. He also argues that the record does not

support the imposition of consecutive sentences.

              We review felony sentences using the standard of review set forth in

R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 22. In State v. Gwynne, 2019-Ohio-4761, 158 Ohio St.3d 279, the Ohio

Supreme Court held that R.C. 2929.11 and 2929.12 apply only to individual

sentences; R.C. 2953.08(G)(2)(a) and 2929.14(C) set forth the exclusive means of

appellate review of consecutive sentences. Id. at ¶ 16-17.

              R.C. 2953.08(G)(2) provides we may either increase, reduce,

modify, or vacate a sentence and remand for resentencing where we clearly and

convincingly find that either the record does not support the sentencing court’s

findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I),

or the sentence is otherwise contrary to law. See also State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶ 16.

              In general, it is presumed that prison terms will be served

concurrently. R.C. 2929.41(A); Bonnell at ¶ 16, 23. However, after determining
the sentence for a particular crime, a sentencing judge has discretion to order an

offender to serve individual counts of a sentence consecutively to each other or to

sentences imposed by other courts. R.C. 2929.14(C)(4) permits a trial court to

impose consecutive sentences if it finds that (1) consecutive sentencing is necessary

to protect the public from future crime or to punish the offender, (2) consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public, and (3) any of the following applies:

      (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a
      sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
      of the Revised Code, or was under post-release control for a prior
      offense.

      (b) At least two of the multiple offenses were committed as part of
      one or more courses of conduct, and the harm caused by two or more
      of the multiple offenses so committed was so great or unusual that
      no single prison term for any of the offenses committed as part of
      any of the courses of conduct adequately reflects the seriousness of
      the offender’s conduct.

      (c) The offender’s history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from future
      crime by the offender.

              A review of the record shows that the trial court complied with R.C.

2929.14(C)(4) by making the required statutory findings. The court found, both

orally and in its judgment entry, that consecutive sentences were necessary to

protect the public or to punish Jackson and that consecutive sentences were not

disproportionate to the seriousness of his conduct and to the danger that he posed

to the public. Lastly, the court found that Jackson’s history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public from

future crime by him. The trial court emphasized that there was no connection

between Jackson and Sizemore. The trial court called the case the “worst case of

murder that I’ve seen” and said that Jackson “slaughtered” Sizemore for no reason

other than Jackson was “looking for someone to kill.”

               Upon review of the record, we do not clearly and convincingly find

that the record does not support the trial court’s findings relative to its imposition

of consecutive sentences.

               The fourth assignment of error is 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 out of this court directing the

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

conviction having been affirmed, any bail pending 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.



LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
