[Cite as State v. Hopkins, 2018-Ohio-373.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )            CASE NO. 15 MA 0224
VS.                                              )
                                                 )                   OPINION
ANTHONY HOPKINS                                  )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas, of Mahoning County,
                                                 Ohio
                                                 Case No. 14 CR 996

JUDGMENT:                                        Conviction affirmed as modified.
                                                 Remanded for sentencing.

APPEARANCES:
For Plaintiff-Appellee                           Attorney Paul Gains
                                                 Mahoning County Prosecutor
                                                 Attorney Ralph Rivera
                                                 Assistant Prosecutor
                                                 21 West Boardman Street, 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          Attorney Louis DeFabio
                                                 4822 Market Street, Suite 220
                                                 Boardman, Ohio 44512

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                 Dated: January 26, 2018
[Cite as State v. Hopkins, 2018-Ohio-373.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Anthony Hopkins, appeals his aggravated murder
conviction and sentence, arguing it was not supported by sufficient evidence and was
against the manifest weight of the evidence because the State did not prove prior
calculation and design. He further asserts he received ineffective assistance of
counsel. As Hopkins' ineffective assistance claim is based upon invited error, it is
meritless. However, the state failed to meet its burden of proof regarding the element
of prior calculation and design. Accordingly, Hopkins' conviction for aggravated
murder is modified to a conviction for murder, pursuant to R.C. 2903.02, and this
matter is remanded for sentencing on Hopkins' modified conviction.
                                 Facts and Procedural History
        {¶2}     Hopkins was indicted on three counts: aggravated murder and an
accompanying firearm specification, tampering with evidence and intimidation. The
following facts were presented during the course of a jury trial.
        {¶3}     Randall Miller testified that he and Hopkins were riding around in
Miller's 2002 Cadillac. Miller stopped to see Frank Brown who was standing outside
of his house. Hopkins remained in the Cadillac while Miller was outside talking to
Brown. Miller suggested that they get a drink later that evening and gave Brown his
cell number before leaving.
        {¶4}     Miller and Hopkins parted ways shortly thereafter, and Miller went home
and fell asleep. Around 10:00 p.m., Miller's wife woke him up because his cell phone
kept ringing. Miller called the number back and it was Brown who asked Miller to go
out. About 45-60 minutes later Miller picked up Brown and drove him to a girl's
house. Miller stayed in the car while Brown went inside; they were there for 15 to 20
minutes. From there, Miller and Brown went to the Southern Tavern.
        {¶5}     Miller stated that Brown had a weapon, which he left in Miller's car and
went into the bar while Miller stayed outside; at that point Hopkins arrived. Brown
came back out and asked Miller to unlock the car so Brown could retrieve his weapon
to take into the bar. Miller went back into the bar with Brown while Hopkins left. Miller
testified that he did not tell Hopkins that they were going to the Southern Tavern.
                                                                                   -2-


Before leaving the Southern Tavern Miller told Hopkins that he probably would go to
Déjà Vu, another bar.
        {¶6}    Between 12:30 a.m. and 1:00 a.m., Miller and Brown left Southern
Tavern and went to Déjà Vu. Miller and Brown sat down at a table and Hopkins
joined them. According to surveillance video, after approximately 25 minutes Miller
left the table and Hopkins and Brown were left alone for about 7 minutes. All three
men stayed until closing and congregated in the parking lot near Miller's car after
they exited the bar. In the parking lot, Brown walked over to speak to another man
who had all of his car doors open and was playing music loudly. After about 5 to 10
minutes Brown returned to the group.
        {¶7}    The three then got into Miller's Cadillac and left. Miller drove, Brown
sat in the front passenger's seat, and Hopkins sat in the backseat behind Brown.
While Miller was drivng, Brown put on a pair of sunglasses saying he "clipped that
n*****." Miller testified that Brown and Hopkins started to "bicker back and forth"
about Brown always stealing and Hopkins always being broke. Hopkins then told
Brown that if he stole from him he would "get f***ed up." Brown responded, "You ain't
got nothing for me to steal, n*****, like f*** you, n*****." Miller stated that he told both
to chill out.
        {¶8}    Miller testified that Brown took the glasses off, put them in his pocket,
pulled out his weapon and said to Hopkins, "N*****, as a matter of fact, f*** with me,
n*****, you'll get f***ed up." Brown then set the weapon on his lap; he never pointed it
at Hopkins. "Maybe about a minute later," Miller heard a "loud bang, bang right in my
ear." He testified to hearing only one shot.
        {¶9}    Miller pulled the car over, and Hopkins pulled Brown's body out of the
car and got back inside. Hopkins then pointed his gun at Miller and stated, "N*****, I
ain't leaving no witnesses, so what you gonna do?" Miller responded, "N*****, I ain't
no witness; I ain't seen nothing." Hopkins threw his gun out the window on their way
to Miller's house. Miller described Hopkins' gun as a semiautomatic, "maybe a .380
or like a 9mm or something like that."
                                                                                 -3-


       {¶10} When they arrived back at Miller's house, Hopkins began to clean the
Cadillac inside Miller's garage. Hopkins told Miller to sweep up the glass. After
Hopkins cleaned the Cadillac, Miller used his wife's vehicle to drive Hopkins home.
Hopkins took all the rags and gloves used to cleaned the car with him.
       {¶11} Two days later, Hopkins and Miller drove to North Canton for a close
friend of Hopkins' to install a replacement window in Miller's Cadillac.
       {¶12} In addition to the three charges contained in Hopkins' indictment, the
trial court also gave a jury instruction for murder. During the course of deliberations, a
juror indicated they were having trouble deliberating, and was removed at the request
of defense counsel without the trial judge questioning the juror. The jury convicted
Hopkins of aggravated murder and the accompanying firearm specification,
tampering with evidence and intimidation. The trial court ordered all sentences to be
served consecutively, imposing an aggregate sentence of 32 1/2 years to life.
                            Sufficiency & Manifest Weight
       {¶13} In his first of two assignments of error, Hopkins asserts:

       The jury's verdict of Guilty as to the Aggravated Murder charge was not
       supported by sufficient evidence and was against the manifest weight of
       the evidence.

       {¶14} Sufficiency and manifest weight are "quantitatively and qualitatively
different." State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541,
paragraph two of the syllabus. Sufficiency is a test of adequacy and whether the
state met its burden of production. State v. Fullerman, 7th Dist. No. 99 CA 0314,
2001-Ohio-3969, *4. Said differently, whether there is sufficient evidence to send the
case to the jury or support a verdict as a matter of law. Thompkins. at 386. Whether
the evidence is legally sufficient is a question of law. State v. Robinson, 162 Ohio St.
486, 124 N.E.2d 148 (1955). The appellate court considers whether the trier of fact
could find the essential elements of the offense were proven beyond a reasonable
doubt after construing the evidence in a light most favorable to the state. State v.
                                                                                 -4-


May, 2011-Ohio-6637, 970 N.E.2d 1029, ¶ 58 (7th Dist.)
       {¶15} Conversely, weight of the evidence measures whether the state has
met its burden of persuasion, and thus "concerns the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other." (Emphasis sic.) Thompkins at 387. A conviction will only be reversed
as against the manifest weight of the evidence if the fact-finder clearly lost its way, in
order to correct a manifest miscarriage of justice. Id. This is because the trier of fact
is in a better position to determine credibility issues, having viewed the demeanor,
voice inflections and gestures of the witnesses. State v. Hill, 75 Ohio St.3d 195, 204,
661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212
(1967). However, "[w]hen there exist two fairly reasonable views of the evidence or
two conflicting versions of events, neither of which is unbelievable, it is not our
province to choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149,
2002-Ohio-1152, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125
(7th Dist.1999).
       {¶16} A court must order the entry of a judgment of acquittal on a charged
offense if the evidence is insufficient to sustain a conviction on the offense. Crim.R.
29(A). However, "a court shall not order an entry of judgment of acquittal if the
evidence is such that reasonable minds can reach different conclusions as to
whether each material element of a crime has been proved beyond a reasonable
doubt." State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus.
Thus, a motion for acquittal tests the sufficiency of the evidence. State v. Tatum, 3d
Dist. No. 13–10–18, 2011–Ohio–3005, ¶ 43, citing State v. Miley, 114 Ohio App.3d
738, 742, 684 N.E.2d 102 (4th Dist.1996).
       {¶17} The scope of Hopkins' appeal is very narrow. He does not contest any
other convictions, nor challenge any other elements of aggravated murder. Hopkins
does not challenge the trial court's decision to give the jury a murder instruction; he
concedes the shooting.      Hopkins' sole argument is that because he shot Brown
immediately after a heated argument, the State failed to prove the element of prior
                                                                                -5-


calculation and design. Thus, the aggravated murder conviction is not supported by
sufficient evidence.
       {¶18} Hopkins was convicted of aggravated murder: "No person shall
purposely, and with prior calculation and design, cause the death of another [.]" R.C.
2903.01(A). Hopkins argues that the State failed to demonstrate that he acted with
prior calculation and design because his decision to shoot was the product of
instantaneous deliberation at the end of a heated argument.
       {¶19} The Ohio Supreme Court held prior calculation and design is
established when "the purpose to cause the death was reached by a definite process
of reasoning in advance of the homicide, which process of reasoning must have
included a mental plan involving studied consideration of the method and the means
and/or instrument with which to cause the death of another." State v. Coley, 93 Ohio
St.3d 253, 267, 2001-Ohio-1340, 754 N.E.2d 1129.
       {¶20} The Eighth District recently discussed prior calculation and design:

       Furthermore, the phrase indicates " 'studied care in planning or
       analyzing the means of the crime as well as a scheme encompassing
       the death of the victim.' " State v. Powell, 8th Dist. Cuyahoga No.
       99386, 2014-Ohio-2048, 2014 WL 2019258, ¶ 11, quoting State v.
       Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997). Instantaneous
       deliberation is not sufficient to show prior calculation and design—the
       defendant must act consistent with "a scheme designed to implement
       the calculated decision to kill." State v. Cotton, 56 Ohio St.2d 8, 11, 381
       N.E.2d 190 (1978).

       The Ohio Supreme Court has considered the following three factors in
       determining whether a defendant acted with prior calculation and
       design:

       (1) Did the accused and the victim know each other, and if so, was that
                                                                             -6-


      relationship strained? (2) Did the accused give thought or preparation to
      choosing the murder weapon or murder site? and (3) Was the act
      drawn out or an almost spontaneous eruption of events?

      Taylor at 19, 676 N.E.2d 82; State v. Shabazz, 8th Dist. Cuyahoga No.
      100021, 2014-Ohio-1828, 2014 WL 1775686, ¶ 26.

State v. Nelson, 2017-Ohio-5568, __ N.E.3d ___, ¶ 29-30 (8th Dist.).
      {¶21} Looking at the Taylor factors, Hopkins and Brown knew each other but
there was no evidence of a strained relationship prior to the argument in the car.
There was no evidence that Hopkins gave any thought or preparation to choosing the
murder weapon or murder site. More important, as held in Cotton, something more
than instantaneous deliberation must be proven beyond a reasonable doubt to
constitute prior calculation and design. Hopkins shot Brown immediately after a
heated argument in which Brown pulled out his own weapon. As the State failed to
establish the element of prior calculation and design, Hopkins' conviction for
aggravated murder is not supported by sufficient evidence. Accordingly, his first
assignment of error is meritorious.
      {¶22} Though the record does not support a conviction for aggravated murder
due to the absence of prior calculation and design, it does support a conviction for
murder. "No person shall purposely cause the death of another." R.C. 2903.02(A).
"A person acts purposely when it is the person's specific intention to cause a certain
result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is his
specific intention to engage in conduct of that nature." R.C. 2901.22(A).
      {¶23} Circumstantial evidence can be used to establish purpose or intent.
State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). Intent may be inferred
from all of the surrounding circumstances, such as the instrument used to produce
death and the manner of inflicting the fatal wound. State v. Robinson, 161 Ohio St.
213, 53 O.O. 96, 118 N.E.2d 517 (1954), paragraph five of the syllabus.           Here,
                                                                               -7-


Hopkins shot Brown with a firearm, an inherently dangerous instrument which is likely
to produce death.
      {¶24} "It is well established that this court has the authority to reduce a
conviction to that of a lesser included offense when it is supported by the record,
rather than ordering an acquittal or a new trial." State v. Reddy, 192 Ohio App.3d
108, 2010-Ohio-5759, 948 N.E.2d 454, ¶ 35 (internal citations omitted). In Reddy,
the Eighth District held the state failed to prove the prior calculation and design
element of aggravated murder, but did prove the elements of the lesser included
offense of murder. As a result, Reddy's aggravated murder conviction was modified
to a murder conviction and the case remanded for the trial court to impose a
sentence on the modified conviction. Accordingly, we modify Hopkins conviction to
find him guilty of one count of murder.
                               Ineffective Assistance
      {¶25} In his second of two assignments of error, Hopkins asserts:

      The Appellant received ineffective assistance of trial counsel when his
      trial attorney failed to request that the trial court conduct a hearing and
      interview a juror before removing the juror during deliberations.

      {¶26} To prove ineffective assistance of counsel, the defendant must satisfy a
two-prong test; that counsel's performance has fallen below an objective standard of
reasonable representation, and that he was prejudiced by counsel's performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. To demonstrate prejudice, the defendant must prove that, but for counsel's
errors, the result of the trial would have been different. Id., paragraph three of the
syllabus. In Ohio, a properly licensed attorney is presumed to be competent and the
burden is on the defendant to prove otherwise. State v. Hamblin, 37 Ohio St.3d 153,
155, 524 N.E.2d 476 (1988).
      {¶27} Hopkins argues that his trial counsel was ineffective because he failed
                                                                               -8-


to request that the trial court conduct a hearing and interview a juror before the juror
was removed. The State responds that even if this was an error, it was invited by
counsel.
      {¶28} The Fourth District recently explained the invited error doctrine in:

             Under the invited error doctrine, "a party is not entitled to take
      advantage of an error that he himself invited or induced." State v. Doss,
      8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, 2005 WL 433531, ¶ 5,
      quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-
      4849, 775 N.E.2d 517, ¶ 27; State ex rel. V. Cos. v. Marshall, 81 Ohio
      St.3d 467, 471, 692 N.E.2d 198 (1998). The doctrine precludes a
      defendant from making "an affirmative and apparent strategic decision
      at trial" and then complaining on appeal that the result of that decision
      constitutes reversible error. Doss at ¶ 7, quoting United States v.
      Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003). The doctrine applies
      when defense counsel is "actively responsible" for the trial court's error.
      State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000).
      Furthermore, in Jenkins, supra, at fn. 2, we observed that some courts
      refuse to recognize an ineffective assistance of counsel claim when the
      allegation is that trial counsel invited the alleged error.

State v. Jarrell, 4th Dist. No. 15CA8, 2017-Ohio-520, ¶ 54
      {¶29} Here, after concerns over a juror arose, the following exchange took
place between the trial court and counsel:

      THE COURT: We are back in chambers on the record with counsel. I
      took the lunch hour to take a look at Revised Code 2945.29, Criminal
      Rule 24(G), with regard to replacing jurors. After looking at the statute
      and the case law and the rule, I believe that what needs to be
      determined is whether there have been facts presented which convince
                                                                                -9-


       me that the juror's ability to perform his or her duties is impaired. My
       concern is that right now I have a very, very, very strong belief that we
       are, in fact, talking about Juror No. 11. An additional fact that came to
       light after the lunch hour is they were all coming back, and she was
       sitting outside in the hallway by herself. However, that is not
       determinative. So we can approach it one of two ways. I can talk to her
       and confirm that suspicion. You had -- defense counsel had indicated
       earlier you did not want that to happen?
       DEFENSE COUNSEL: Let's just boot her.
       THE COURT: Okay. Just so that you know, the other part of my
       research tells me that if I in fact boot her, the fact that I booted her
       without additional information cannot be raised as an error on appeal.
       And you're agreeing to –
       DEFENSE COUNSEL: I'm comfortable based on the status of the
       record that we're talking about the same person.

       {¶30} This is invited error. The trial court indicated the proper procedure for
handling the juror in question and the ramifications on appeal if that procedure was
not followed. Defense counsel specifically requested that the trial court dismiss the
juror without inquiry, and that he was comfortable with the consequences on appeal
as the result of the trial court acting in conformity with his request. Thus, Hopkin's
second assigned error is meritless.
       {¶31} In sum, Hopkins' second assignment of error is meritless as invited
error. However, as the State failed to prove prior calculation and design, Hopkins' first
assignment of error is meritorious. Accordingly, Hopkins' sentence for aggravated
murder is modified to a conviction for murder, pursuant to R.C. 2903.02, and this
                                                                - 10 -


matter is remanded for sentencing on his modified conviction.

Donofrio, J., concurs.

Robb, P. J., concurs.
