[Cite as State v. Green, 2018-Ohio-3991.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :     CASE NO. CA2017-11-161

         Plaintiff-Appellee,                      :            OPINION
                                                                10/1/2018
                                                  :
   - vs -
                                                  :

 FREDDIE GREEN,                                   :

         Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR32561



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, OH 45036, for plaintiff-appellee

Timothy J. McKenna, 125 East Court Street, Suite 950, Cincinnati, OH 45202, for
defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Freddie Green, appeals his conviction in the Warren

County Court of Common Pleas for murder.

        {¶ 2} In late fall of 2016, appellant was living with his father, Sidney V. Green

("Father"), in Father's home. Appellant was a recovering drug addict. On December 2,

2016, appellant and Father argued over money while doing laundry. Father then went into
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his bedroom where he kept a 9 mm Hi-Point handgun in the top drawer of his dresser. Upon

hearing the top drawer open, appellant went to Father's bedroom and found him holding

the handgun in his left hand with his back to appellant. Appellant pushed Father from

behind and grabbed the handgun away from him. Then, upon hearing Father stating he

would get another firearm, appellant shot Father in the back of the head, killing him.

       {¶ 3} During the next four hours, appellant contemplated suicide, left Father's home

to buy and use heroin and cocaine, returned to Father's home, and called his wife, asking

her to come to Father's home. Shortly after his wife arrived, appellant called 9-1-1 at 8:38

p.m. During the 9-1-1 call, appellant first told the operator that he and Father had an

altercation a few days earlier during which Father "had the gun and he said he was gonna

shoot me and he had the gun loaded, cocked, bullet in the chamber, and my little brother

stopped him." Appellant then told the operator that "[a] little bit ago, [Father] started in again

and he went and grabbed the gun and I took it from him and I fired and I shot him." Appellant

then told the operator that Father was dead.

       {¶ 4} Lebanon Police Officer Jeffrey Haller and two other police officers were

dispatched to Father's home. A 9 mm Hi-Point handgun was recovered on the kitchen

counter. The clip and ammunition were next to the handgun. Father's deceased body was

on the bedroom floor, next to the foot of his bed. His skull had an entrance gunshot wound

to the back of the head and an exit gunshot wound over the left ear. A fired, 9 mm bullet

was recovered in a wall of the bedroom. Inside the partially open top drawer of the dresser

were a box for a 9 mm Hi-Point handgun and a box of 9 mm ammunition. No other firearm

was found in the home.

       {¶ 5} Officer Haller spoke with appellant at the scene. Appellant told the officer that

he and Father were involved in a physical altercation a few days before the shooting

incident, during which Father choked him and pointed a firearm at him. Sidney Green,

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Father's adopted son ("Green"), intervened and broke up the altercation. Appellant next

related to Officer Haller the details of the shooting incident as described above. Appellant

claimed he shot Father to stop him from getting another weapon, and that he tried to shoot

him in the back or shoulder, but hit him in the head. Appellant believed he was two feet

away from Father when he shot him.

      {¶ 6} Appellant was transported to the police station where he provided a written

statement and was interviewed by Detective Greg Spanel on two separate occasions.

Appellant's written statement reflects somewhat different details of the incidents than those

he related to Officer Haller at the scene. Regarding the prior altercation, appellant stated

that Father screamed at him, tried to hit him with the broken handle of a sledgehammer,

punched him in the face with his fists, and choked him at which point Green broke up the

altercation. Appellant also stated that "at some point[,] [Father] had his 9 mm handgun

loaded with one in the chamber [and] stated several times that he had every intentions of

shooting me."

      {¶ 7} Regarding the shooting incident, appellant stated that while in the laundry

room, Father told him that "I was done and * * * that he would just shoot me and end it all."

Father then hit him and tried to choke him. Subsequently, while in the bedroom, as Father

was attempting to turn around, handgun in hand, appellant shoved him in the back and

disarmed him. Upon hearing Father's statement about getting another handgun, appellant

"pulled the trigger on his 9 mm."

      {¶ 8} Appellant again related a slightly different account of the incidents when

interviewed by Detective Spanel.      Regarding the prior altercation, appellant told the

detective that Father showed the handgun to Green, telling him it was loaded and ready to

shoot and that he was ready to shoot appellant. Regarding the shooting incident, appellant

told the detective that after he pushed Father, Father's left hand moved toward the front of

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his body. Fearing that Father might have a firearm in his pocket, appellant shot him. During

the interviews, appellant alternatively stated that Father always had multiple firearms, used

to have two or three firearms, and always had a second firearm on him. Appellant further

stated he was not sure whether Father had another firearm at the time of the shooting

incident and that he believed Father had another firearm somewhere in the house or on

him.

       {¶ 9} Appellant was indicted in January 2017 on two counts of murder and two

counts of felonious assault. Each count included a firearm specification. A first jury trial

resulted in a mistrial after the jury failed to reach a verdict. Subsequently, the state

dismissed one count of murder and one count of felonious assault and the accompanying

firearm specifications. A second jury trial was held on October 23, 2017. The case

proceeded on one count of murder in violation of R.C. 2903.02(B) with a firearm

specification, and one count of felonious assault in violation of R.C. 2903.11(A)(2) with a

firearm specification. Detective Spanel, Officer Haller, Green, and other witnesses testified

on behalf of the state. The videotapes of Detective Spanel's interviews of appellant were

played for the jury and admitted into the evidence. Appellant, his wife, and two of his siblings

testified on behalf of appellant.

       {¶ 10} Testimony at trial indicated that at the time of the shooting, Father was 64

years old, five feet, nine inches tall, and weighed 156 pounds, and that he was in poor

health. By contrast, appellant was 42 years old, six feet, three inches tall, and weighed 230

pounds. Testimony further revealed that Father was an overbearing "harsh" man, a bully

to his children, and always belittling appellant. Appellant's relationship with Father was

described as abusive.

       {¶ 11} Testimony at trial further indicated that Father always had multiple firearms in

his home and truck when appellant and his siblings were growing up. Green testified that

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in December 2016, he had been living with Father for a year. During that time, Father only

owned one firearm, the 9 mm Hi-Point handgun he acquired in October 2016. Regarding

the prior altercation, Green testified that appellant and Father were arguing over money and

that Father pushed appellant into a chair and yelled at him. The argument subsided after

appellant admitted taking the money to buy drugs.          Green denied breaking up the

altercation.   He further denied that Father hit, kicked, or choked appellant during the

altercation, or that Father grabbed his handgun, pointed it at appellant, or threatened to

shoot appellant. In fact, there was no mention of a firearm during the altercation.

       {¶ 12} Appellant testified that Father always had firearms, "up to four at any given

time," and that he kept them loaded. Appellant admitted, however, that when he was living

with Father in the fall of 2016, he only saw one firearm, the 9 mm Hi-Point handgun.

Regarding the prior altercation, appellant testified that Father hit him, shoved him into a

chair, and started choking him until Green intervened. Ten minutes later, Father showed

the 9 mm handgun to Green and told him it was loaded and that he "had intentions to shoot"

appellant. When asked about Green's testimony as described above, appellant asserted

Green was lying.

       {¶ 13} Regarding the shooting incident, appellant testified that as he and Father were

arguing over money, Father told appellant, "You're done. * * * It's over. You're done,"

before "storm[ing] back" to his bedroom. Then, upon hearing the top drawer of the dresser

open, appellant went to Father's bedroom. Handgun in hand, Father "was turning towards

the [bedroom] door" when appellant "nudged him in the back and took the gun from him."

As appellant pushed Father, the latter "[went] kind of forward" and then stated he would

simply get another firearm. Upon hearing Father's statement and observing Father's "left

arm * * * moving forward," appellant shot Father. Appellant explained he was scared

because he knew from the past that Father kept his weapons loaded and hid them under

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his mattress.1 Appellant stated he intended to shoot Father in the shoulder and not in the

head.

        {¶ 14} On cross-examination, appellant acknowledged that while his written

statement provides that Father threatened to shoot him and end it all before Father went to

his bedroom during the shooting incident, appellant never mentioned Father's threat to the

9-1-1 operator, Officer Haller, or Detective Spanel, or during direct examination. Appellant

further admitted that while he testified on direct examination that Father was leaning and

reaching towards the left rear side of the bed after appellant disarmed him, appellant never

mentioned Father's behavior in his 9-1-1 call, his written statement, or to Officer Haller.

        {¶ 15} Appellant conceded that after he grabbed the handgun from Father, the latter

did not have a weapon and was thus unarmed, and that appellant, who was behind Father,

"could have leveled with him if [he] wanted to." Appellant reluctantly agreed that once

Father was unarmed, he could have held Father at gunpoint or "jumped on top of him"

instead of shooting him.

        {¶ 16} On October 25, 2017, the jury found appellant guilty of murder and felonious

assault and the accompanying firearm specifications. During sentencing, the trial court

merged the felonious assault count into the murder count and sentenced appellant to an

aggregate prison term of 18 years to life.

        {¶ 17} Appellant now appeals, raising four assignments of error. The first three

assignments of error will be addressed together.

        {¶ 18} Assignment of Error No. 1:



1. Appellant's testimony regarding Father's weapons was conflicting. On one hand, appellant repeatedly
testified that it was Father's habit to keep his weapons loaded, and that when Father showed the 9 mm
handgun to Green following the prior altercation, Father specifically stated that the handgun was loaded and
that he had every intention of shooting appellant. Yet, appellant also repeatedly testified that when he heard
Father open the top drawer of his dresser and next saw Father with the handgun in his hand, he "had no idea"
whether the handgun was loaded and was not even sure there was a bullet in the handgun.
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       {¶ 19} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT AS THERE WAS INSUFFICIENT EVIDENCE TO CONVICT.

       {¶ 20} Assignment of Error No. 2:

       {¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 22} Assignment of Error No. 3:

       {¶ 23} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT BECAUSE HE AFFIRMATIVELY SHOWED SELF DEFENSE.

       {¶ 24} Appellant argues that his murder conviction is not supported by sufficient

evidence and is against the manifest weight of the evidence because the evidence

presented at trial showed he was acting in self-defense when he fatally shot Father.

       {¶ 25} The concept of legal sufficiency of the evidence refers to whether the

conviction can be supported as a matter of law. State v. Everitt, 12th Dist. Warren No.

CA2002-07-070, 2003-Ohio-2554, ¶ 10. Upon review of the sufficiency of the evidence to

support a criminal conviction, an appellate court must examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact

would have found all the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus; Everitt at ¶ 10.

       {¶ 26} To determine whether a conviction is against the manifest weight of the

evidence, a reviewing court must look at the entire record, weigh the evidence and all

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

resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such

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a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.

An appellate court will overturn a conviction due to the manifest weight of the evidence only

in extraordinary circumstances when the evidence presented at trial weighs heavily in favor

of acquittal. Id. at ¶ 18.

       {¶ 27} Appellant argues that the evidence was insufficient to convict him of murder

because he established he acted in self-defense.

       {¶ 28} Self-defense is an affirmative defense and as such is not considered in a

sufficiency of the evidence analysis. State v. Palmer, 80 Ohio St.3d 543, 563 (1997); State

v. Johnson, 10th Dist. Franklin No. 06AP-878, 2007-Ohio-2595, ¶ 30. That is because a

challenge to the sufficiency of the evidence does not involve an analysis of the strength of

the defendant's evidence, but rather, analyzes the legal adequacy of the state's evidence

by deciding whether the case should go to the jury. See State v. Hancock, 108 Ohio St.3d

57, 2006-Ohio-160. "An affirmative defense does not negate the legal adequacy of the

state's proof for purposes of submitting it to the jury. An affirmative defense involves an

excuse or justification for doing an otherwise illegal act. * * * It does not deny the existence

of the act; it simply provides a legal justification for it." State v. Cooper, 170 Ohio App.3d

418, 2007-Ohio-1186, ¶ 15 (4th Dist.); Johnson at ¶ 30.

       {¶ 29} Accordingly, "[o]nce the state has satisfied the question of legal adequacy * *

*, the question of the relative persuasiveness of [a self-defense affirmative defense] must

await a jury's determination and face appellate scrutiny under a manifest weight of the

evidence analysis." Cooper at ¶ 15. As such, we find no merit to appellant's claim his

murder conviction is based on insufficient evidence under the theory he acted in self-

defense. Johnson at ¶ 31.

       {¶ 30} Appellant further argues that his conviction is against the manifest weight of

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the evidence because he acted in self-defense.

        {¶ 31} Appellant was convicted of murder, in violation of R.C. 2903.02(B), which

prohibits any person from causing "the death of another as a proximate result of the

offender's committing or attempting to commit an offense of violence that is a felony of the

first or second degree[.]" The "offense of violence" committed by appellant was felonious

assault, in violation of R.C. 2903.11(A)(2), which prohibits any person from "knowingly * * *

[c]aus[ing] or attempt[ing] to cause physical harm to another * * * by means of a deadly

weapon[.]" Appellant admits he killed Father by shooting him in the back of the head with

a firearm. Hence, the evidence at trial established the elements of murder under R.C.

2903.02(B). Appellant argues, however, that his "action was excused by self-defense."

        {¶ 32} As stated above, self-defense is an affirmative defense; the burden of going

forward with evidence of self-defense and the burden of proving self-defense by a

preponderance of the evidence is upon the accused. Palmer, 80 Ohio St.3d at 563.

        {¶ 33} To establish self-defense in a case where a defendant used deadly force, the

defendant must prove that (1) he was not at fault in creating the situation giving rise to the

affray; (2) he had a bona fide belief he was in imminent danger of death or great bodily

harm and that his only means of escape from such danger was the use of deadly force; and

(3) he did not violate any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio

St.2d 74 (1979), paragraph two of the syllabus; State v. Gray, 12th Dist. Butler No. CA2010-

03-064, 2011-Ohio-666, ¶ 43. If a defendant fails to prove any one of these elements, he

has failed to demonstrate he acted in self-defense. Gray at ¶ 43.2

        {¶ 34} Upon thoroughly reviewing the record, we find that the jury did not lose its way



2. Under the third element of self-defense, "there is no duty to retreat from one's own home before resorting
to lethal force in self-defense against a cohabitant with an equal right to be in the home." State v. Thomas,
77 Ohio St.3d 323, 328 (1997). Because appellant was living in Father's home at the time of the shooting,
appellant had no duty to retreat from the home before shooting Father.
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and create a manifest miscarriage of justice by rejecting appellant's claim of self-defense

and finding him guilty of murder.

      {¶ 35} A defendant is privileged to use only that force that is reasonably necessary

to repel the attack. State v. Williford, 49 Ohio St.3d 247, 249 (1990). In other words, "a

defendant must show that the degree of force was 'warranted' under the circumstances and

'proportionate' to the perceived threat." State v. Waller, 4th Dist. Scioto Nos. 15CA3683

and 15CA3684, 2016-Ohio-3077, ¶ 26, citing Palmer, 80 Ohio St.3d at 564. See also State

v. Gray, 2d Dist. Montgomery No. 26473, 2016-Ohio-5869; State v. Wright, 6th Dist. Lucas

No. L-16-1053, 2017-Ohio-1225.

      {¶ 36} The evidence establishes that appellant fatally shot Father in the back of the

head. Even if appellant's version of the events is believed, he failed to show he had a bona

fide belief he was in imminent danger of death or great bodily harm. At the time of the

shooting, appellant was aware of only one firearm in Father's home, the 9 mm handgun

appellant grabbed from Father, disarming him. When appellant shot Father, Father had no

weapon and was stumbling forward with his back to appellant.            Nor has appellant

demonstrated that he could escape "from such danger" only by using deadly force. At the

time of the shooting, Father was small in stature and in poor health. By contrast, appellant

was much younger and larger in stature. Appellant admitted that he could have held up

Father at gunpoint or physically subdued him instead of shooting him. Appellant has not

demonstrated that the force reasonably necessary to repel Father's alleged attack required

shooting Father in the back of the head. Simply stated, appellant used deadly force when

he was not faced with deadly force. The degree of force used by appellant was neither

warranted under the circumstances nor proportionate to the perceived threat. See State v.

Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751; State v. Rice, 12th Dist. Butler No. CA2003-

01-015, 2004-Ohio-697; State v. Phutseevong, 6th Dist. Lucas No. L-03-1178, 2005-Ohio-

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1031.

        {¶ 37} In light of the foregoing, we find that appellant's murder conviction is not

against the manifest weight of the evidence. The jury heard all of the testimony, considered

the evidence, and found the state's witnesses credible, and we will not disturb the jury's

verdict on appeal. The jury did not lose its way simply because it believed the prosecution

testimony and disbelieved appellant's account. See Gray, 2016-Ohio-5869.

        {¶ 38} Appellant's first, second, and third assignments of error are overruled.

        {¶ 39} Assignment of Error No. 4:

        {¶ 40} THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL

COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE 1, OF THE OHIO

CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.

        {¶ 41} Appellant argues that his trial counsel was ineffective because he failed to

"put on any expert crime scene reconstruction testimony." Appellant asserts that given the

fact there were no eye witnesses, and physical and scientific evidence was lacking, a crime

scene reconstruction expert would have demonstrated "a possible sequence of events,"

and thus, counsel's failure to call such an expert "was fatal."

        {¶ 42} To prevail on his ineffective assistance of counsel, appellant must show his

trial counsel's performance was deficient, and that he was prejudiced as a result. State v.

Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39; Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance

will not be deemed deficient unless it fell below an objective standard of reasonableness.

Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's

errors, there is a reasonable probability that the result of his trial would have been different.

Id. at 694.

        {¶ 43} The failure to call an expert and instead rely on cross-examination does not

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necessarily constitute ineffective assistance of counsel. State v. Nicholas, 66 Ohio St.3d

431, 436 (1993); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 66. Thus, it is

generally a legitimate trial strategy for defense counsel not to present expert testimony and

instead rely upon cross-examination of a state's expert to rebut evidence of a crime. State

v. Glover, 12th Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392, ¶ 25. In many criminal

cases, such a decision by trial counsel is unquestionably tactical because such an expert

might uncover evidence that further inculpates the defendant. See State v. Walker, 3d Dist.

Seneca No. 13-2000-26, 2001 Ohio App. LEXIS 1008 (Mar. 8, 2001). Further, even if the

wisdom of such an approach is debatable, "debatable trial tactics" do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980). We find

nothing in the record to suggest that trial counsel's failure to call a crime scene

reconstruction expert was anything other than a reasonable, tactical decision. See State v.

O'Linn, 8th Dist. Cuyahoga No. 75815, 2000 Ohio App. LEXIS 1064 (Mar. 16, 2000).

       {¶ 44} Furthermore, appellant has failed to establish that, but for his trial counsel's

error, there is a reasonable probability that the result of his trial would have been different.

Appellant asserts that his case "depended in large part in the jury understanding that

[Father] drew the gun first," and that had trial counsel "engaged a crime scene

reconstruction expert to demonstrate a possible sequence of events, * * * the case would

have been decided the other way." The jury heard from several state witnesses that the

physical evidence was consistent with appellant's version of the events, and fully

understood that Father pulled his handgun first and then, when disarmed, threatened to get

another firearm. Appellant does not disclose what a crime scene reconstruction expert

would have stated at trial that was not apparent from the testimony, or how it would have

been helpful to the defense and furthered appellant's self-defense claim. Appellant has,

therefore, not shown how the expert would have assisted his case, let alone changed the

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outcome of the trial.

       {¶ 45} We therefore find that appellant has failed to prove that he received ineffective

assistance of counsel at trial. Appellant's fourth assignment of error is overruled.

       {¶ 46} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




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