[Cite as State v. Barnette, 2013-Ohio-990.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2012-05-099

                                                    :           OPINION
    - vs -                                                       3/18/2013
                                                    :

STEPHAN R. BARNETTE,                                :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-02-0146



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Stephan Barnette, appeals his conviction in the Butler

County Court of Common Pleas for murder with a gun specification. For the reasons set

forth below, we affirm the conviction.

        {¶ 2} On the evening of October 6, 2011, appellant, Jordan Hardy, and Robert Reece

traveled by vehicle to Fairview Avenue in Hamilton, Butler County, Ohio for the purposes of

collecting drug money owed to appellant by Rickey L. Butler (the "victim"). Appellant and
                                                                      Butler CA2012-05-099

Reece entered the victim's Fairview Avenue apartment (the "Fairview Residence") and spoke

with the victim for a time. Hardy waited in the car. At some point during the discussion, the

victim allegedly pulled out a knife. An altercation occurred concluding in appellant firing

numerous shots from a 9 mm handgun, striking the victim five times. Appellant and Reece

then exited the Fairview Residence, entered the vehicle driven by Hardy, and fled the scene.

The gun was sold the same night and later disposed of by the purchaser.

       {¶ 3} On February 8, 2012, appellant was indicted for the murder of the victim in

violation of R.C. 2903.02(A) and a gun specification pursuant to R.C. 2941.14. At a trial by

jury, appellant claimed self-defense. The jury ultimately found appellant guilty of murder

while in possession of a firearm. Appellant was sentenced to 15 years to life for the murder

conviction and received an additional three-year sentence for the gun specification, to run

consecutively. Appellant now appeals, raising five assignments of error.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} THE JUDGMENT AND CONVICTION IN THE INSTANT CASE WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE AND THE JURY CLEARLY LOST ITS WAY

IN REACHING A VERDICT OF GUILTY.

       {¶ 6} In his first assignment of error, appellant contends that his conviction was

against the manifest weight of the evidence when all eye-witness testimony indicated that the

victim attacked appellant with a knife and appellant only shot the victim in self-defense.

       {¶ 7} A "manifest weight challenge 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."

State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298, ¶ 34. In determining

whether the conviction is against the manifest weight of the evidence, an appellate court

"must weigh the evidence and all reasonable inferences from it, consider the credibility of the

witnesses and determine whether in resolving conflicts, the jury clearly lost its way and
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created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered." State v. Coldiron, 12th Dist. Nos. CA2003-09-078, CA2003-09-079, 2004-

Ohio-5651, ¶ 24; State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.                   "This

discretionary power should be exercised only in the exceptional case where the evidence

weighs heavily against conviction." Id. An appellate court will not reverse a judgment as

against the manifest weight of the evidence in a jury trial unless it unanimously disagrees

with the jury's resolution. State v. Bailey, 12th Dist. No. CA2002-03-057, 2003-Ohio-5280, ¶

22.

       {¶ 8} Appellant was charged with murder in violation of R.C. 2903.02(A), which

provides that "[n]o person shall purposely cause the death of another * * *." While it is

undisputed that appellant shot and killed the victim, appellant contends that the jury lost its

way and created a manifest miscarriage of justice in not finding that appellant's actions were

done in self-defense.

       {¶ 9} "Under Ohio law, self-defense is an affirmative defense a defendant must prove

by a preponderance of the evidence." State v. Tucker, 12th Dist. No. CA2010-10-263, 2012-

Ohio-139, ¶ 24, citing State v. Smith, 12th Dist. No. CA2010-05-047, 2011-Ohio-1476, ¶ 33.

To establish self-defense in a case where a defendant used deadly force, such as the case

here, appellant must prove: "(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." Id., citing State v. Gray, 12th Dist. No.

CA2010-03-064, 2011-Ohio-666, ¶ 43. If appellant "fails to prove any one of these elements

by a preponderance of the elements he has failed to demonstrate that he acted in self-

defense." Id., citing State v. Jackson, 22 Ohio St.3d 281, 284 (1986).

       {¶ 10} At trial, Jordan Hardy, a friend who was with appellant on the night of the
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shooting, was the first to testify. Hardy stated that he picked up appellant and another

individual, Robert Reece, on the evening of October 6, 2011, in his mother's Buick LeSabre.

Hardy explained that he had previously discussed plans to "set up a robbery with [appellant]"

and that the trio drove to the intended robbery victim's home and waited outside. Hardy

further stated that be brought with him a 9 mm handgun and made it known to Reece and

appellant that the gun was in the middle console of the vehicle.

      {¶ 11} After the intended robbery victim did not "show," Hardy testified that he

eventually drove Reece and appellant to the victim's Fairview Residence so that appellant

could collect a debt that was owed to him. After initially approaching the front of the

residence, appellant instructed Hardy to pull around to an alleyway at the back of the

residence. Reece and appellant then climbed a staircase and approached the back of the

Fairview Residence while Hardy waited in the car. It was at this time that Hardy realized the

gun was no longer in the vehicle. After sitting in the car for a brief time, Hardy heard one

gunshot and a pause followed by "a couple more" gunshots. Hardy then observed Reece

and appellant "running down the stairs to the car." The pair got into the vehicle and

instructed Hardy to drive away.

      {¶ 12} Hardy testified appellant looked "sad, regretful, kind of angry in the same

sense." According to Hardy, appellant described the sequence of events at the Fairview

Residence as follows:

             HARDY: [Appellant] said there were words over the money that
                    was owed within the debt, and it started to become
                    argument [sic], and something happened or other.
                    And I was told that [the victim] had came [sic] at
                    [appellant] with a knife, and [appellant] told him to stop
                    and back up continuously, and [the victim] wouldn't do
                    it. And it got to the point where, I guess, he tried to
                    slap his hand.

             STATE: Who tried to slap whose hand?


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                                                                                Butler CA2012-05-099

                 HARDY: [The victim] tried to slap [appellant's] hand.

                 STATE: Okay.

                 HARDY: From what I was told, that's when the first shot
                        happened.

                 STATE: And did—did [appellant] tell you where the first shot
                        ended up?

                 HARDY: I don't—I don't know for sure. I believe the leg.

                 STATE: All right. And then what happened after that shot?

                 HARDY: I was told [the victim] fell to the ground and was
                        starting to get back up, assuming he still had the knife
                        in his hand.

                 STATE: Now, when you say, I'm assuming he had the knife in
                        his hand, is that what [appellant] told you? He got up
                        and still had the knife in his hand?

                 HARDY: Yes.

                 STATE: He told you that. All right. So then what happened?

                 HARDY: And I guess a few—I'm supposedly guessing a few
                        more shots had came [sic] out after that.1

                 STATE: All right. Did [appellant] tell you where the next several
                        shots or couple shots went?

                 HARDY: He said he thought the chest.

                             ***

                             And somewhere in the back.

        {¶ 13} Reece then explained to Hardy, without dispute or contradiction from appellant,

that the victim was shot in the back because "if he wasn't dead, we would all get in trouble."

Hardy observed that appellant had the gun in his possession at this time. Testimony also

revealed that the gun used in the shooting was sold that night to a George Maddox, whose



1. Hardy later clarified that he believed he heard three to five shots fired.
                                                        -5-
                                                                      Butler CA2012-05-099

mother disposed of the gun in a garbage bin after learning that the gun was "hot." The gun

was never recovered.

       {¶ 14} The victim's brother, James Butler, testified regarding leg problems suffered by

the victim. Butler stated that the victim had constant problems with his legs, feet, and knees,

as well as gout. Butler explained that the victim "rarely got out of bed * * * in the last few

months because he * * * was having problems with his legs and it hurt him to get up. He

would leave the door open for me, and I would bang on the door, and he would yell, [']Come

on in['], and he was always in bed." When the victim did get out of bed, Butler witnessed the

victim often using a cane or a walker. Butler also testified that he saw his brother on the two

days preceding his death and stated that the victim did not move around much.

       {¶ 15} Next, Detective James Smith with the Hamilton City Police Department testified

that he was the first detective on the scene on the night of October 6, 2011. Detective Smith

explained that he processed the scene by taking a series of photographs depicting various

images of the Fairview Residence as well as collecting evidence and samples including

blood, shell casings, and spent bullets. Through the use of over 50 photographs, Detective

Smith explained to the jury the layout of the Fairview Residence, stating that one would enter

the residence through a door in the kitchen. From the kitchen, one would proceed through

the living room and then into the bedroom, which is connected only by a doorframe that has

no attached door. Detective Smith testified that a large blood pool was found in the bedroom

of the Fairview Residence where the victim had originally been discovered.

       {¶ 16} Detective Smith then attested that a number of shots were fired at a downward

angle from the living room of the Fairview Residence into the bedroom. Two bullets made

"furrows" along the inside of the doorframe separating the living room and the bedroom.

These bullets were later recovered in the bedroom floorboard of the residence. A third bullet

was found inside the doorframe while a fourth bullet was found within the mattress of the
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                                                                        Butler CA2012-05-099

victim's bed. A fifth bullet was found on the floor inside the bedroom. Various shell casings

were found inside the living room of the residence.

       {¶ 17} In concluding that several of these bullets were fired at a downward angle,

Detective Smith explained that he used a "laser trajectory unit" to "measure the degree

relative to the ground plane floor of the downward angle of the bullet." Specifically, Detective

Smith used the laser trajectory unit to measure the path angle of the two bullets that created

"furrows" on the doorframe between the living room and bedroom. The laser trajectory unit

determined that the ballistic angle for both of the bullets which struck the doorframe were "26

degrees downward" and had come from the living room and into the bedroom. In other

words, Detective Smith testified that the bullets were shot from inside the living room and into

the bedroom at a downward angle.

       {¶ 18} The state's final witness was Dr. Russell Uptegrove, the coroner who performed

the autopsy on the victim's body. Dr. Uptegrove explained that, due to sever blockages in the

coronary arteries of the victim's heart, the victim would generally be "physically limited" as to

the amount and duration of energy he could exert. Dr. Uptegrove also explained his findings

as to the various wounds suffered by the victim during the altercation. Dr. Uptegrove

determined that one bullet entered the chest of the victim and struck the left atrium of the

victim's heart before traveling through his lung and liver. Dr. Uptegrove opined that this was

the wound which caused the victim's death. Dr. Uptegrove further demonstrated, through the

use of 16 autopsy photographs, the general path of the bullets which entered and exited the

victim's body. As to one bullet that entered near the center of the victim's neck, Dr.

Uptegrove specifically testified that this bullet traveled at a downward angle and exited the

body through the chest of the victim near the clavicle.

       {¶ 19} Appellant testified on his own behalf regarding the night of October 6, 2011,

corroborating the general outline of events as testified to by Hardy. Appellant disagreed,
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however, that he was aware of Hardy's intention to commit a robbery before appellant got

into the vehicle with Hardy and Reece. Appellant further claimed that he was unaware that a

gun was in the vehicle until sometime just before going to the Fairview Residence. Appellant

explained that as the trio approached the Fairview Residence, he recalled that a man known

as "Pistol" lived nearby and that Pistol wanted to kill him. Appellant testified he took the gun

for protection and placed it in his pants, covering the gun with his shirt.

       {¶ 20} As to the events that occurred in the victim's apartment, appellant testified that

he and Reece were let into the apartment by the victim. Appellant, Reece, and the victim

then proceeded to walk from the doorway in the kitchen, through the victim's living room, and

into the victim's bedroom in order to "talk business." At some point in the conversation, the

victim asked if appellant would "front him" some cocaine in exchange for pain medication.

Appellant informed the victim he would not "front him" anything but that he would take the

victim's television in exchange for cocaine. Appellant's testimony then proceeded as follows:

              APPELLANT: While I'm talking to him, he's like nodding his
                         head yeah, but he's not saying anything, so I'm
                         going to the TV, like to grab—to scoot the TV off,
                         to grab it so I could take it, and when I'm turning
                         to grab the TV, I see him getting out of bed, and
                         he's standing up out of bed, and I heard a knife. I
                         heard a snap. I'm not thinking nothing [sic] about
                         it. [Reece]'s upstairs too. He's in the doorway.

                             And [Reece] was like, "Watch out, boy, he has a
                             knife."

                             So I stopped.

                             ***

                             I stop grabbing the TV, and I turn around, and I
                             see him coming at me, and he has the knife out in
                             his hand.
                             ***

                             And he's telling me that I can afford to front him.


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                                                      Butler CA2012-05-099

              ***

DEFENSE:      Okay. And as he's coming toward you with the
              knife, what do you say?

APPELLANT: I tell him to back up, and I'm backing up while I'm
           telling him to back up, and he's still coming.

DEFENSE:      Okay. So as you're backing up, he's coming
              toward you?

APPELLANT: Yes.

DEFENSE:      Is he coming toward you with the knife?

APPELLANT: Yes.

DEFENSE:      Does he have the knife out?

APPELLANT: Yes.

DEFENSE:      Did you feel threatened?

APPELLANT: Yes.

DEFENSE:      And how did that make you feel?

APPELLANT: It didn't make me feel good.

              ***

             Made me—I was scared to be honest with you.

             ***

DEFENSE: What else [did] you do?

             ***

APPELLANT: I started side, like sidestepping, and he's pivoting
           while I'm sidestepping, and that's when I took out
           the gun, and I back up all the way against the wall
           to where I can't back up no more [sic]. I'm on my
           tippy toes.

              ***

              When he gets a little bit closer, that's when I go
              on my tippy toes against the wall, and I just—I

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                                                                      Butler CA2012-05-099

                             seen [sic] the knife coming at me, and I just
                             closed my eyes and I just shot.

                             ***

              DEFENSE:       When you shot him, what was your intention?

              APPELLANT: To get him to stop coming towards me with that
                         knife. I didn't want to be stabbed.

       {¶ 21} Appellant explained that he was unaware how many times he fired the gun,

where he was aiming, or what part of the victim's body he struck, as his eyes were closed the

entire time. After appellant opened his eyes, he stated that the victim appeared to have his

"mad face on," was cussing and yelling, and was alive when appellant ran out of the room.

       {¶ 22} On cross-examination, appellant clarified that he was backed up against a

dresser in the victim's bedroom just inside the doorframe between the living room and

bedroom. However, appellant stated that he was unable to escape through this nearby

doorframe, even though there was no door attached to the frame to block or otherwise hinder

access into or out of the room. Therefore, he opened fire while standing in the bedroom.

Appellant testified that he was unaware how shell casings were found in the living room of

the Fairview Residence when all of the shooting occurred in the bedroom.

       {¶ 23} Although we consider the credibility of witnesses in a manifest weight

challenge, we are mindful that the determination regarding witness credibility rests primarily

with the trier of fact. State v. Jones, 12th Dist. No. CA2012-04-077, 2013-Ohio-654, ¶ 19.

The trier of fact is in the best position to view the witnesses and observe their demeanor,

gestures, and voice inflections—observations that are critical to determining a witness's

credibility—and the trier of fact is free to accept or reject any or all the testimony of any

witness. State v. Hill, 75 Ohio St.3d 195, 205 (1996); State v. Antill, 176 Ohio St. 61, 66

(1964).

       {¶ 24} In this case, based upon appellant's testimony alone, the jury could have found
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                                                                        Butler CA2012-05-099

that appellant created the situation giving rise to the affray, and thereby negating a claim of

self-defense, by attempting to take the victim's television without specific confirmation that

the victim agreed to trade the television for cocaine. See generally State v. Tucker, 2012-

Ohio-139 at ¶ 24. Furthermore, the testimony of Detective Smith, if believed by the jury,

stated that appellant must have been in the living room and shooting at a downward angle

when he fired shots at the victim. Thus, appellant would not have been in close proximity to

the alleged knife-wielding victim, who was still in the bedroom, and appellant could have

escaped through the kitchen door. As such, the jury could have found that appellant had an

alternative means of retreat without using deadly force. Although Detective Smith's testimony

contradicted that of appellant, a conviction is not against the manifest weight of the evidence

simply because the trier of fact believes the state's testimony. State v. Guzzo, 12th Dist. No.

CA2003-09-232, 2004-Ohio-4979, ¶ 13.

       {¶ 25} Therefore, upon review of the record, we find that the jury did not lose its way or

create a manifest miscarriage of justice in finding appellant guilty of murder. This is not a

rare and exceptional case where the evidence weighs heavily against conviction. See State

v. Coldiron, 2004-Ohio-5651 at ¶ 24. Accordingly, appellant's conviction is supported by the

manifest weight of the evidence and his first assignment of error is overruled.

       {¶ 26} Assignment of Error No. 2:

       {¶ 27} IT WAS PLAIN ERROR AND AN ABUSE OF DISCRETION TO PERMIT ALL

OF THE PHOTOGRAPHS OF THE DECEASED INTO EVIDENCE EVEN BY STIPULATION

AS THE ADMISSION OF SUCH PHOTOGRAPHS IS PRECLUDED BY EVIDENCE RULE

403(A) AND (B).

       {¶ 28} In his second assignment of error, appellant contends that it was plain error and

an abuse of discretion for the trial court to admit 16 autopsy photographs of the victim

depicting his various injuries when the parties has stipulated that the victim had died from
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                                                                       Butler CA2012-05-099

multiple gunshots and the coroner's report was admitted by stipulation.             Specifically,

appellant argues that the admission of these photographs was in contravention of Evid.R.

403(A) and (B).

       {¶ 29} In general, the "admission or exclusion of photograph evidence is left to the

discretion of the trial court." State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶

92 (12th Dist.). However, the failure of appellant to object to the admission of these

photographs at trial waives all but plain error. State v. Hartman, 93 Ohio St.3d 274, 281

(2001).

       {¶ 30} "To constitute plain error, the error must be obvious on the record, palpable,

and fundamental, so that it should have been apparent to the trial court without objection."

State v. Dominguez, 12th Dist. No. CA2011-09-010, 2012-Ohio-4542, ¶ 26. "Plain error does

not exist unless the appellant can establish that the outcome of the trial would have been

different but for the trial court's allegedly improper action." Id.; State v. Waddell, 75 Ohio

St.3d 163, 166, 1996-Ohio-100. "Notice of plain error * * * is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice." State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus; State v.

Phillips, 74 Ohio St.3d 72, 83, 1995-Ohio-171.

       {¶ 31} Evid.R. 403 permits the exclusion of relevant evidence on the grounds of

prejudice, confusion, and undue delay. The rule states:

              (A) Exclusion mandatory. Although relevant, evidence is not
                  admissible if its probative value is substantially outweighed
                  by the danger of unfair prejudice, of confusion of the issues,
                  or of misleading the jury.

              (B) Exclusion discretionary. Although relevant, evidence may
                   be excluded if its probative value is substantially outweighed
                   by considerations of undue delay, or needless presentation
                   of cumulative evidence.

In other words, Evid.R. 403 provides that "a trial court may reject an otherwise admissible
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                                                                       Butler CA2012-05-099

photograph that, because of its inflammatory nature, creates a danger of prejudice that

substantially outweighs the probative value of the photograph as evidence, but absent such

danger the photograph is admissible." Blankenburg at ¶ 92, citing State v. Morales, 32 Ohio

St.3d 252, 257 (1987). The trial court has broad discretion in balancing the probative value

against the danger of unfair prejudice. State v. Harcourt, 46 Ohio App.3d 52, 55 (12th

Dist.1988).

       {¶ 32} The 16 autopsy photographs depict the victim's body including various bullet

entry and exit wounds and can be considered gruesome. See State v. DePew, 38 Ohio

St.3d 275, 281-282 (1988). "However, the mere fact that a photograph is gruesome or

horrendous is not sufficient to render it per se inadmissible." Id., quoting State v. Maurer, 15

Ohio St.3d 239, 265 (1984). The photographs' "probative value must outweigh the danger of

prejudice, and they must not be repetitive or cumulative." Id.

       {¶ 33} The probative value of these photographs is beyond dispute, as they are

manifestly relevant to show the manner and circumstances surrounding the victim's death,

the nature and type of wounds he suffered demonstrating a purpose to cause death, and the

trajectory and angle of the bullets which entered the wounds. These photographs were

specifically used by Dr. Uptegrove to demonstrate the downward path the bullets took as

evidence that the bullets were fired at an angle which would not indicate self-defense. See

State v. Harcourt at 55. "[P]hotographs illustrating the type of wounds suffered by the victim

and those corroborating the testimony of the coroner have significant probative weight that

can overcome potential prejudice." State v. Clay, 7th Dist. No. 08 MA 2, 2009-Ohio-1204, ¶

61, citing State v. Moore, 81 Ohio St.3d 22, 32 (1998); State v. Allen, 73 Ohio St.3d 626, 636

(1995). Specifically, the photographs relating to the angle and location of the bullet holes

were important to prove specific intent because of appellant's claim that he acted in self-

defense. The photographs and oral testimony relating to the entry and exit wounds tended to
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                                                                                        Butler CA2012-05-099

refute any claim of self-defense and, therefore, had a high probative value which outweighed

their prejudicial impact. State v. Taylor, 8th Dist. No. 65711, 1995 WL 663267, * 15 (Nov. 9,

1995), affirmed, 78 Ohio St.3d 15 (1997). Thus, the probative value of the photographs was

substantial, while the danger of unfair prejudice, though present, was relatively limited.

        {¶ 34} Furthermore, we find that the photographs were not a needless presentation of

cumulative evidence. Appellant argues that the photographs were cumulative in nature

because the parties had stipulated to the admission of the coroner's report and that the victim

died from multiple gunshot wounds. However, the photographs were not cumulative and,

instead, were used to corroborate the oral testimony concerning the trajectory of the bullets

and the likelihood that appellant did not shoot the victim in self-defense.

        {¶ 35} Therefore, based upon our review of the record, the probative value of these

photographs was not substantially outweighed by the danger of unfair prejudice or the

needless presentation of cumulative evidence. See Evid.R. 403(A) and (B). As such, we find

that the trial court did not err in admitting these photographs and that the outcome of the trial

would not have been different had the photographs been excluded. Accordingly, appellant's

second assignment of error is overruled.

        {¶ 36} Assignment of Error No. 3:

        {¶ 37} IT WAS ERROR FOR THE [TRIAL] COURT TO REFUSE TO GIVE A JURY

CHARGE IN THE INSTANT CASE OF THE LESSER CHARGE OF INVOLUNTARY

MANSLAUGHTER [SIC] AS REQUESTED BY DEFENDANT.

        {¶ 38} In his third assignment of error, appellant contends that it was an abuse of
                                                                                                         2
discretion for the trial court not to give a voluntary manslaughter jury instruction.




2. Although appellant indicates in his brief that an instruction relating to "involuntary manslaughter" should have
been given to the jury, appellant clarified in his reply brief and at oral argument that his argument relates to a jury
instruction for "voluntary manslaughter."
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                                                                          Butler CA2012-05-099

       {¶ 39} "Jury instructions are matters left to the sound discretion of the trial court." State

v. Tucker, 12th Dist. No. CA2010-10-263, 2012-Ohio-139, ¶ 23. Therefore, an appellate

court "reviews the trial court's decision refusing to provide the jury with a requested jury

instruction for an abuse of discretion." Id.; State v. Wolons, 44 Ohio St.3d 64, 68 (1989). As

noted above, a trial court abuses its discretion when it acts unreasonably, arbitrarily, or

unconscionably. Tucker at ¶ 23.

       {¶ 40} "A trial court must give the jury all instructions that are relevant and necessary

for the jury to weigh the evidence and fulfill its duty as the fact finder." State v. Hamilton,

12th Dist. No. CA2001-04-098, 2002-Ohio-3862, ¶ 8; State v. Comen, 50 Ohio St.3d 206,

210 (1990). However, a trial court does not err in failing to provide a certain jury instruction

requested by a party "where the evidence is insufficient to support the instruction." State v.

Burchett, 12th Dist. Nos. CA2003-09-017, CA2003-09-018, 2004-Ohio-4983, ¶ 26; Rice v.

City of Cleveland, 144 Ohio St. 299 (1944).

       {¶ 41} Voluntary manslaughter is an inferior degree of murder, for its elements are

contained within the indicted offense, except for one or more additional mitigation elements.

State v. Rice, 12th Dist. No. CA2003-01-015, 2004-Ohio-697, ¶ 31, citing State v. Shane, 63

Ohio St.3d 630, 632 (1992). Specifically, R.C. 2903.02(A) provides that "[n]o personal shall

purposely cause the death of another * * *." On the other hand, R.C. 2903.03(A), governing

voluntary manslaughter, provides that "[n]o person, while under the influence of sudden

passion or in a sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person into using deadly

force, shall knowingly cause the death of another * * *."

       {¶ 42} "Even though voluntary manslaughter is not a lesser included offense of

murder, the test for whether a judge should instruct a jury on voluntary manslaughter when a

defendant is charged with murder is the same test to be applied when an instruction on a
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                                                                                 Butler CA2012-05-099

lesser included offense is sought. Rice at ¶ 31, citing Shane at 37. A trial court should give a

lesser included offense instruction "only where the evidence presented at trial would

reasonably support both an acquittal on the crime charged and a conviction upon the lesser

included offense." Id. at ¶ 32, citing State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph

two of the syllabus.

        {¶ 43} "For example, a trial court will give an instruction on the inferior degree offense

of voluntary manslaughter in a murder trial only when the jury could reasonably find against

the state on the element of purposefulness and still find for the state on the defendant's act

of killing another." Rice at ¶ 33. However, "an instruction is not warranted every time 'some

evidence' is presented on a lesser included or inferior degree offense." Id. Thus, if

insufficient evidence of provocation is presented, so that no reasonable jury would decide, by

a preponderance of the evidence, that an actor was reasonably provoked by the victim, the

trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction. Id. at

¶ 36; State v. Harris, 129 Ohio App.3d 527, 534 (10th Dist.1998). To determine whether the

provocation was reasonably sufficient to incite the use of deadly force, "the court must

consider the emotional and mental state of the defendant and the conditions and

circumstances that surrounded him at the time." Id.; State v. Deem, 40 Ohio St.3d 205, 211

(1988).

        {¶ 44} In this case, there was no evidence adduced at trial that appellant was under

the influence of a sudden passion or in a sudden fit of rage due to the victim's conduct. On

the contrary, appellant specifically testified that the decision to open fire was a clear-headed

decision and that he was not experiencing any feeling of passion or rage at the time.3


3. Appellant testified at trial as follows:

                 STATE:          Clear-headed decision of your mind, no question about
                                 that?


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Though appellant argues that his feelings of "fear" warrant a voluntary manslaughter

instruction, being fearful or scared does not constitute sudden passion or a fit of rage as

contemplated by the voluntary manslaughter statute. See Harris at 534-535. As such,

appellant's testimony fails to satisfy the requirements necessary for a voluntary manslaughter

jury instruction. Therefore, appellant's contention that the trial court erred in not instructing

the jury on the offense of voluntary manslaughter is without merit. Accordingly, appellant's

third assignment of error is overruled.

       {¶ 45} Assignment of Error No. 4:

       {¶ 46} THE CASE SHOULD BE REVERSED IN THE INSTANT CASE BECAUSE OF

INEFFECTIVE REPRESENTATION OF COUNSEL.

       {¶ 47} In his fourth assignment of error, appellant argues that he was deprived his

right to effective assistance of counsel because trial counsel failed to object to the admission

of the autopsy photographs and failed to object to hearsay statements.

       {¶ 48} "To establish a claim of ineffective assistance of counsel, a defendant must

show that his or her counsel's actions were outside the wide range of professionally

competent assistance, and that prejudice resulted by reason of counsel's actions." State v.


              APPELLANT: Yes.

                           ***

              STATE:       And with clarity of mind, you decided to pull the trigger
                           and point that gun at him with the objective of that bullet
                           hitting his body. You did do that, didn't you?

              APPELLANT: Yes, sir, but only to keep him from hurting me.

              STATE:       I understand that. And that was the only reason, no
                           other reason?

              APPELLANT: No other reason, no, sir.

              STATE:       No passion, no rage, nothing like that, just clarity of mind
                           to do that, correct?

              APPELLANT: Yes.
                                                 - 17 -
                                                                       Butler CA2012-05-099

Ullman, 12th Dist. No. CA2002-10-110, 2003-Ohio-4003, ¶ 43, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). A counsel's performance will not be

deemed ineffective unless the appellant demonstrates that "counsel's representation fell

below an objective standard of reasonableness and that there exists a reasonable probability

that, were it not for counsel's errors, the result of the proceeding would have been different."

Id.; Strickland at 688; State v. Bradley, 42 Ohio St.3d 136, 143 (1989). "A reasonable

probability is 'a probability sufficient to undermine confidence in the outcome of the

proceeding.'" State v. Fields, 102 Ohio App.3d 284 (12th Dist.1995), quoting Strickland at

694. "A defendant bears the burden of demonstrating ineffective assistance of counsel."

State v. Bishop, 12th Dist. No. CA97-07-081, 1998 WL 102994, * 1 (Mar. 9, 1998), citing

State v. Hamblin, 37 Ohio St.3d 153, 155-156 (1988).

       {¶ 49} Appellant's first argument relates to the admission of the autopsy photographs

discussed in the second assignment of error. As we have previously determined, the

admission of these photographs was not improper. Finding no error in the admission of the

photographs, we likewise find no error in trial counsel's failure to object to the admission of

these photographs.

       {¶ 50} Appellant also contends that trial counsel was ineffective in allowing hearsay to

be admitted. Specifically, appellant references five pages in the trial transcript where the

state elicited testimony from Hardy regarding Reece's statements that the victim was shot in

the back because "if he wasn't dead, we would all get in trouble." Appellant argues that this

testimony was admitted without objection and, therefore, trial counsel was ineffective.

However, our review of the record indicates otherwise. Not only did trial counsel object, but a

sidebar was held between the judge, the state, and trial counsel regarding this testimony

wherein the trial court decided to admit the testimony while noting trial counsel's continuing

objection. Trial counsel then objected an additional two times regarding the admission of this
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                                                                         Butler CA2012-05-099

testimony.

       {¶ 51} Thus, as the photographs were not improperly admitted at trial and the alleged

hearsay statements referenced in appellant's brief were objected to by trial counsel, we find

appellant's arguments that he received ineffective assistance of trial counsel meritless. As

such, appellant's fourth assignment of error is overruled.

       {¶ 52} Assignment of Error No. 5:

       {¶ 53} IT WAS PLAIN ERROR AND AN ABUSE OF DISCRETION FOR THE [TRIAL]

COURT NOT TO GIVE A CHARGE TO THE JURY RELATIVE TO R.C. 2901.09 THAT THE

DEFENDANT APPELLANT HAD NO DUTY TO RETREAT BEFORE USING FORCE,

INCLUDING DEADLY FORCE IN SELF-DEFENSE.

       {¶ 54} In his fifth and final assignment of error, appellant contends the trial court erred

in not instructing the jury on the "castle doctrine." More precisely, appellant argues that,

when the altercation occurred, he was lawfully within the Fairview Residence and, therefore,

the trial court should have instructed the jury that appellant had no duty to retreat.

       {¶ 55} As stated above, jury instructions are matters left to the sound discretion of the

trial court and a determination not to instruct the jury shall not be reversed absent an abuse

of discretion. State v. Tucker, 2012-Ohio-139 at ¶ 23. Furthermore, when a party fails to

object to jury instructions before the jury retires, the party waives any claim of error regarding

the instructions absent plain error. See Crim.R. 30(A); Crim.R. 52(B); State v. Williford, 49

Ohio St.3d 247, 251 (1990).

       {¶ 56} R.C. 2901.09 codifies a form of self-defense as the castle doctrine and states

that "a person who lawfully is in that person's residence has no duty to retreat before using

force in self-defense * * *." (Emphasis added.) Initially, we note that a review of the jury

instructions reveals that the jury was instructed on the castle doctrine, when the trial court

stated that "[a] person who lawfully is in his residence has no duty to retreat before using
                                              - 19 -
                                                                      Butler CA2012-05-099

force in self-defense or defense of his residence."

       {¶ 57} However, even if this statement had not been read to the jury, appellant was

still not entitled to an instruction that he was lawfully within the Fairview Residence and had

no duty to retreat. The mere fact that one is lawfully inside the residence of another does not

invoke the strictures of the castle doctrine. State v. Lewis, 8th Dist. No. 97211, 2012-Ohio-

3684, ¶ 13 (stating that the castle doctrine provides that a person "who is in his or her own

home has no duty to retreat before using self-defense"). Rather, to invoke the castle doctrine

in this case, appellant must have been the lawful occupant or resident of the Fairview

Residence. See State v. Bushner, 9th Dist. No. 26532, 2012-Ohio-5996, ¶ 16 (finding that a

defendant would be entitled to a castle doctrine instruction "if he was lawfully occupying the

residence at the time he used deadly force"); State v. Kozlosky, 195 Ohio App.3d 343, 2011-

Ohio-4814, ¶ 25 (8th Dist.) (holding that the castle doctrine creates a rebuttable presumption

that a defendant acted in self-defense when attempting to expel a person from the

defendant's home). As appellant was not the owner or lawful occupant of the Fairview

Residence, the castle doctrine is inapplicable to this case. Accordingly, appellant's fifth and

final assignment of error is overruled.

       {¶ 58} Judgment affirmed.


       S. POWELL and M. POWELL, JJ., concur.




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