[Cite as State v. Ramey, 2018-Ohio-3072.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 27636
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-955
                                                  :
 JERRY V. RAMEY, JR.                              :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 3rd day of August, 2018.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                            .............
                                                                                          -2-


TUCKER, J.

       {¶ 1} Defendant-appellant Jerry V. Ramey, Jr., appeals from his conviction and

sentence for murder and aggravated burglary. He contends the trial court erred by failing

to merge the murder and aggravated burglary convictions. He further contends that the

trial court erred in instructing the jury. Finally, Ramey claims that the convictions are not

supported by the manifest weight of the evidence.

       {¶ 2} We conclude that the trial court did err by failing to merge the murder and

aggravated burglary convictions. We find Ramey’s claims regarding the jury instructions

to be without merit.   We further conclude that his convictions are supported by the

evidence in the record. Accordingly, the judgment of the trial court is affirmed in part,

reversed in part, and remanded for resentencing.



                            I. Facts and Procedural History

       {¶ 3} This case arises from the March 21, 2016, death of Earl Davis, Jr. Davis

was in his home located on Strand Avenue in Dayton when he was strangled to death by

Ramey. Ramey was indicted on one count of murder (proximate cause aggravated

burglary) in violation of R.C. 2903.02(B), one count of murder (proximate cause felonious

assault) in violation of R.C. 2903.02(B), one count of aggravated burglary (physical harm)

in violation of R.C. 2911.11(A)(1), and one count of felonious assault (serious harm) in

violation of R.C. 2903.11. A jury trial was conducted over the course of five days in May

2017. The following facts are adduced from the trial testimony.

       {¶ 4} Ramey and Davis, who had known each other since they were young,

became close following the death of Davis’s brother in 2013, and they began to spend
                                                                                         -3-


significant time together. On March 21, 2016, Ramey and Davis were drinking at Davis’s

home. At some point, Ramey went out to his car, at which time he noticed that $300 that

he had placed in the console of his vehicle was missing. Ramey went back into the

house and asked Davis if he had seen the money. Davis indicated that he had not.

Ramey then returned to the car to search it again. Unable to find the money, Ramey

returned to the house and asked Davis if he was sure he had not seen it. According to

Ramey, Davis “went off” on him and was verbally abusive. Ramey testified that he

informed Davis he was not accusing Davis of taking the money, but rather was just asking

if he had seen it. Davis then told Ramey to get out of his house. Ramey stated that

Davis was “real adamant” that Ramey leave his home. Ramey left the house, but as he

was walking to his car, he heard Davis indicate that he had taken the money. Davis then

told Ramey to stay away from his house.

      {¶ 5} Ramey, after experiencing difficulty with his vehicle, ultimately parked the car

at his grandmother’s home. At this point Ramey decided to walk back to Davis’s home

in order to ask him to return the money. Ramey walked about a quarter of a mile when

a friend, who was driving by, stopped to pick him up. The friend then dropped Ramey at

the entrance to an alley near Davis’s home. Ramey walked down the alley and walked

into Davis’s home through the back door. As he entered the home, he saw Davis, who

said, “What’s your fat [ass] doing here again?” Ramey and Davis began to walk toward

each other, and Ramey gave Davis a shove to “get his attention.” According to Ramey,

Davis then came toward him and aggressively shoved him backward into the living room,

where Ramey hit the edge of a loveseat before regaining his balance. Davis continued

to come toward him, and Ramey realized that a fight was starting. Ramey tried to put
                                                                                       -4-


himself into an “advantageous position,” and, thus, he lunged back at Davis, who tumbled

over a couch with Ramey ending up on top of him. The pair fell off the couch and Davis

jumped at Ramey, at which time Ramey pushed Davis back onto the couch. Ramey

again was on top of Davis with his hands around Davis’s throat and a knee on one of

Davis’s arms. Davis continued to struggle, but Ramey eventually noticed that Davis

ceased to move, at which time he removed his hand from Davis’s neck. Ramey left the

house and went to a nearby drive-thru store where he purchased a bottle of wine.

Thereafter, Ramey returned to his grandmother’s home where he informed her and his

aunt that he had strangled Davis and that he was going to turn himself in. He changed

his clothes and left them in a pile on the living room floor. He then had his uncle take

him to a local motel, where he spent the night.

       {¶ 6} After Ramey left her home, his grandmother, Sarah Wilson, called Davis’s

mother and informed her that Ramey had strangled Davis. Wilson then called 911. The

police responded to Davis’s home and found his body on the living room floor. Ramey

was arrested the following evening when he was located at a barber shop. He was

belligerent and resisted attempts to place him in handcuffs. Officers were eventually able

to subdue and handcuff Ramey who, due to his large size, had to be transported in a

police van rather than a cruiser.

       {¶ 7} An autopsy revealed that Davis had injuries to his neck, as well as

hemorrhages in his eyes, consistent with strangulation. According to the coroner, Davis

would have lost consciousness after 90 seconds, but it likely took four to six minutes of

sustained pressure to the neck to cause his death. Davis had a blood alcohol level that

was approximately three times the legal limit. At the time of his death, Davis was 5’10”
                                                                                          -5-


tall and weighed approximately 144 pounds.1 Davis’s left hand was bandaged as a result

of bone fractures which required the insertion of multiple metal rods. Davis also had a

recent surgery to his fractured right leg during which a metal rod was inserted to support

the fracture. The coroner discovered a gun in Davis’s waistband.

         {¶ 8} The jury convicted Ramey on all the indicted charges. The trial court merged

the two murder convictions and the State elected to proceed to sentencing on Count II,

murder (proximate cause felonious assault). The trial court also merged the conviction

for felonious assault with the murder conviction. The trial court sentenced Ramey to a

term of fifteen years to life for the murder conviction and to a term of nine years on the

aggravated burglary conviction. Finally, the trial court ordered the two sentences to run

concurrently for a total sentence of fifteen years.

         {¶ 9} Ramey appeals.



                                          II. Merger

         {¶ 10} Ramey’s first assignment of error states as follows:

         THE TRIAL COURT ERRED IN NOT ORDERING MERGER OF ALLIED

         OFFENSES AT SENTENCING.

         {¶ 11} Ramey contends that the trial court erred by failing to merge the convictions

for murder and aggravated burglary. In support, he argues that they constitute allied

offense of similar import because they share the underlying element of felonious assault.

         {¶ 12} Section 10, Article I of the Ohio Constitution prohibits multiple punishments

for the same offense. This prohibition is codified at R.C. 2941.25, which states:


1
    At the time of the altercation, Ramey weighed between 320 and 330 pounds.
                                                                                       -6-


       (A) Where the same conduct by defendant can be construed to constitute

       two or more allied offenses of similar import, the indictment or information

       may contain counts for all such offenses, but the defendant may be

       convicted of only one.

       (B) Where the defendant's conduct constitutes two or more offenses of

       dissimilar import, or where his conduct results in two or more offenses of

       the same or similar kind committed separately or with a separate animus as

       to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 13} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (Ruff

I), the Ohio Supreme Court clarified the applicable standard when determining whether

offenses merge as allied offenses of similar import as follows:

       Rather than compare the elements of two offenses to determine whether

       they are allied offenses of similar import, the analysis must focus on the

       defendant's conduct to determine whether one or more convictions may

       result, because an offense may be committed in a variety of ways and the

       offenses committed may have different import. No bright-line rule can

       govern every situation.

Ruff at ¶ 30.

       {¶ 14} In Ruff I, the Supreme Court, with the above in mind, concluded that two or

more offenses may result in multiple convictions if any of the following is true: “(1) the

offenses are dissimilar in import or significance—in other words, each offense caused

separate, identifiable harm, (2) the offenses were committed separately, or (3) the
                                                                                       -7-

offenses were committed with separate animus or motivation.” Ruff I at ¶ 25. This

analysis is dependent upon the facts of each case because R.C. 2941.25, as noted,

focuses on the defendant's conduct. Id. at ¶ 26.

      {¶ 15} An appellate court applies a de novo standard of review when evaluating a

trial court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482,

2012–Ohio–5699, 983 N.E.2d 1245, ¶ 28.             “The defendant bears the burden of

establishing his entitlement to the protection provided by R.C. 2941.25 against multiple

punishments for a single criminal act.” State v. Washington, 137 Ohio St.3d 427, 2013-

Ohio-4982, 999 N.E.2d 661, ¶ 18, quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514

N.E.2d 870 (1987).

      {¶ 16} Ramey was convicted of murder (as a proximate cause of felonious assault)

in violation of R.C. 2903.02(B), which provides:

      No person shall cause 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 and that is not a violation of section

      2903.03 or 2903.04 of the Revised Code.

      {¶ 17} Felonious assault is proscribed by R.C. 2903.11(A)(1), which states that “no

person shall knowingly * * * cause serious physical harm to another * * *.”

      {¶ 18} Ramey was also convicted of aggravated burglary in violation of R.C.

2911.11(A)(1), which provides in pertinent part:

      (A) No person, by force, stealth, or deception, shall trespass in an occupied

      structure * * * when another person other than an accomplice of the offender

      is present, with purpose to commit in the structure * * * any criminal offense
                                                                                             -8-


       if * * * (1) [t]he offender inflicts, or attempts or threatens to inflict physical

       harm on another.

       {¶ 19} The trial court, in declining to merge the murder and aggravated burglary

convictions, found that the aggravated burglary was complete when Ramey entered

Davis’s home without permission, consent or privilege. The trial court also concluded

that the murder of Davis was a new and separate offense.

       {¶ 20} We have not found, and neither party cites, any cases addressing this exact

issue. However, we find instructive the decision of the First District Court of Appeals

upon remand in State v. Ruff, 1st Dist. Hamilton Nos. C-120533, C-120534, 2015-Ohio-

3367 (Ruff II). In this case, the defendant was convicted of aggravated burglary in

violation of R.C. 2911.11(A)(1) as well as rape. The First District stated, in pertinent part,

as follows:

              [R.C. 2911.11(A)(1)] requires that in addition to breaking into an

       occupied structure with the intent to commit a criminal offense, ‘the offender

       inflict[ ] or attempt to inflict[ ] physical harm on another.’ It is this physical-

       harm element that elevates the offense to aggravated burglary. Absent the

       physical-harm element – or a violation of (A)(2) involving a firearm or

       dangerous ordnance – the offense would be simple burglary.

              ***

              * * * The aggravated-burglary offenses at issue here are somewhat

       unusual in that they involve two distinct harms: the intrusion into the sanctity

       of the home and the subsequent physical harm (here, the rapes). One

       harm—the intrusion in the dwelling—is separate and identifiable from the
                                                                                  -9-


harm caused by the rape offenses here, but the other harm—the physical

harm—is not separate and identifiable.

     Unfortunately, the [Supreme Court] in Ruff [I] did not explicitly say what

we should do in a situation such as this one where one offense involves

multiple harms, and one offense constitutes an aggravating element of the

other. Fortunately, though, it did drop a few breadcrumbs.

     The most obvious clue is the court's rejection of a “categorical rule”

that aggravated burglary and rape are of dissimilar import. The state argued

in the Supreme Court—as it does here—that rape and aggravated burglary

are of dissimilar import because rape is a sexually oriented offense while

burglary is about trespass into structures. Under this logic, aggravated

burglary would always have a dissimilar import from rape or any other act

of violence constituting the “aggravating factor,” because aggravated

burglary always involves a separately identifiable harm in the intrusion into

a dwelling. The [Supreme Court] in Ruff [I], however, specifically rejected

this analysis: it “decline[d] to create an absolute rule based upon the

definition of the offenses.” Ruff, [143 Ohio St.3d 114,] 2015–Ohio–995, [34

N.E.3d 892], at ¶ 26.

     If there only needed to be one harm that was separate and identifiable,

then rape and aggravated burglary could never merge because aggravated

burglary will always involve the “separate and identifiable” harm caused by

the intrusion into the dwelling. The same would be true of assault or any

other crime constituting the aggravating element of physical harm for
                                                                                            -10-


       aggravated burglary. Thus, implicit in its rejection of a categorical rule and

       remand to this court is the idea that the offenses are of similar import when

       the harm caused by one crime is the same harm that is the aggravating

       circumstance of another crime.

            The court suggested as much in its discussion of similar import. It

       explained that offenses are “not allied offenses of similar import if neither is

       incident to the other.” Id. at ¶ 23. It supported this proposition by citing to

       State v. Moss, 69 Ohio St.2d 515, 433 N.E.2d 181 (1982), a case the court

       summarized with this parenthetical: “aggravated burglary was not an allied

       offense of aggravated murder, because it was not incident to and an

       element of aggravated murder.”        Ruff at ¶ 23. In this case, the conduct

       constituting the rape was an element of the aggravated burglary. The rape

       was “incident to and an element of” aggravated burglary in that but for the

       conduct constituting the rape, the offense of aggravated burglary would not

       have [been] established. Only simple burglary could have been found.

            Thus, we conclude that the most reasonable reading of the Supreme

       Court's decision in Ruff is that where the conduct that constitutes one

       offense causes a harm that is not separate and identifiable from the harm

       caused by the aggravating element of another offense, then the offenses

       are of a similar import.

Ruff II at ¶ 3, 13-19 (footnote omitted).

     {¶ 21} In this case, the trial court’s jury instructions informed the jury that in order to

be guilty of aggravated burglary, Ramey “must have trespassed with the ‘purpose’ to
                                                                                         -11-


commit the criminal offense of Felonious Assault and/or Aggravated Assault.” The jury,

by its verdict, concluded that Ramey had trespassed to commit the crime of felonious

assault.   Further, the State’s closing argument included the statement that when Ramey

trespassed in Davis’s home, he had the purpose to commit felonious assault. Thus, we

conclude, consistent with the First District in Ruff II, that Ramey’s conduct constituting

one offense (Davis’s murder as a proximate cause of felonious assault), caused a harm

that is not separate and identifiable from the harm caused by the aggravating element of

another offense (aggravated burglary). In other words, the murder as a proximate cause

of felonious assault is the aggravating element necessary to make the burglary an

aggravated burglary rather than a simple burglary. Without the physical harm caused by

the felonious assault, the burglary would not have had the aggravating element of inflicting

physical harm. Accordingly, we conclude that the trial court erred by failing to merge the

offense of aggravated burglary with the offense of murder as a proximate cause of

felonious assault.2

      {¶ 22} The first assignment of error is sustained.



                                  III. Jury Instructions

       {¶ 23} The second assignment of error asserted by Ramey states:

       THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

       THE INSTRUCTIONS PROVIDED TO THE JURY.

       {¶ 24} Ramey contends that the trial court erred by instructing the jury on the



2
 We note that this holding has no practical effect on Ramey’s sentence as the trial court
ordered the sentences for aggravated burglary and murder to run concurrently.
                                                                                             -12-


“castle doctrine” as part of the instruction on self-defense. He further contends that the

trial court erred with regard to the instructions because it failed to give the jurors a correct

copy of the instructions. Finally, he contends that the trial court erred by incorrectly

instructing the jury on voluntary manslaughter.

       {¶ 25} We begin with the claim that the trial court did not give the jurors a corrected

version of the instructions for use during deliberations.         During trial, the trial court

instructed the jury using Court’s Exhibit V. Each juror was provided a copy of the Exhibit.

While reading the instructions to the jury, the trial court discovered four errors which it

instructed the jurors to correct. With regard to the first error, the original instruction stated

“before you can find Jerry Ramey guilty of the lesser offense of Involuntary Manslaughter,

you must find: (1) The State proved beyond a reasonable doubt that on or about March

21, 2016, and in Montgomery County, Ohio, Jerry caused the death of Earl E. Davis, Jr.,

as a proximate result of Mr. Ramey knowingly causing serious physical harm to Earl

Davis.” The trial court, prior to reading that instruction, conducted a sidebar conference

where the parties discussed the changes. No objections were made. The trial court

then instructed the jury to cross out the words “knowingly causing serious physical harm

to Earl Davis.” The transcript then makes a notation that the jurors complied. The trial

court then instructed the jurors to insert the following replacement:           “committing or

attempting to commit aggravated burglary, an offense of violence.” An unidentified juror

then asked the trial court to repeat the last words at which time the trial court repeated

the entire correction. The trial court then reread that entire instruction as corrected. The

remaining three corrections consisted of the trial court changing the words “all of” to “any

of” in three separate places. Again, the trial court instructed the jurors to cross out the
                                                                                           -13-


incorrect words, then instructed the jurors to write in the corrections. Finally, the trial

court noted that the jurors would have a copy of the instructions in the jury room during

deliberations.

       {¶ 26} Ramey claims that the record is devoid of any indication that the trial court

gave the jurors a corrected copy of the instructions or that the jurors made the appropriate

corrections to their copies of the instructions. We disagree. The record demonstrates

affirmatively that with regard to the first and most significant correction, the jurors

complied with the trial court’s instructions. Further, one juror asked the trial court to

repeat the corrected instruction. Also, the trial court read the corrected version of the

instruction to the jury three separate times. There is nothing in the record to indicate that

the jurors failed to comply with the three remaining corrections, and, of course, we

presume that the jury follows the instructions of the trial court. State v. Lackey, 2015-

Ohio-5492, 55 N.E.3d 613, ¶ 52 (2d Dist.). Finally, the trial court specifically stated on

the record that the jurors would have a copy of the instructions with them in the jury room

for deliberations. Thus, we find nothing to indicate that the jury had incorrect instructions

in the jury room during deliberations.

       {¶ 27} We next turn to the claims that the trial court erred in its instructions and the

standards to be used in reviewing such claims. “Generally, a trial court should give a

requested jury instruction if it is a correct statement of the law as applied to the facts of

the particular case.” State v. Frazier, 2d Dist. Clark No. 2008 CA 118, 2010-Ohio-1507,

¶ 37, citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991).

A trial court’s decision concerning whether or not to give a particular instruction will be

reviewed under the abuse of discretion standard. Clark v. Grant Med. Ctr., 2015-Ohio-
                                                                                          -14-


4958, 47 N.E.3d 526, ¶ 50 (10th Dist.). The term “abuse of discretion” implies that the

court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, “[t]he jury instructions given

by a trial court must be a correct, clear, and complete statement of the law applicable to

the case.” McBride v. Quebe, 2d Dist. Montgomery No. 21310, 2006-Ohio-5128, ¶ 50,

quoting Roberts v. State Farm Mut. Auto. Ins. Co., 155 Ohio App.3d 535, 2003-Ohio-

5398, 802 N.E.2d 157, ¶ 48 (2d Dist). When determining whether a jury instruction

contains a correct statement of the law, a reviewing court applies a de novo standard of

review. State v. Franklin, 2d Dist. Montgomery Nos. 24011, 24012, 2011-Ohio-6802, ¶

82.

       {¶ 28} Ramey claims that the trial court improperly included the “castle doctrine”

when it instructed the jury on self-defense. The self-defense instruction, which extends

over four pages of the transcript, tracks the self-defense instruction contained in the Ohio

Jury Instructions (OJI). It properly stated that, in order to establish that he was acting in

self-defense, Ramey had to meet a tripartite test which, relevant to the current discussion,

required him to show that he did not violate any duty to retreat or avoid the danger that

caused him to act in self-defense. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-

Ohio-578, ¶ 44, citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979),

paragraph two of the syllabus. However, the trial court added the following instruction

which does not track OJI:

       A person who lawfully is in his residence has no duty to retreat before using

       force in self-defense. Where one is assaulted in his home, he may use

       such means as are necessary to repel the assailant from the house.
                                                                                         -15-


       {¶ 29} This instruction is known as the castle doctrine, which “takes its name from

the maxim that a man's home is ‘his castle’.” State v. Waller, 2d Dist. Clark No. 2013-

CA-26, 2014-Ohio-237, ¶ 40, citing State v. Comer, 4th Dist. Gallia No. 10CA15, 2012–

Ohio–2261, ¶ 11, citing 4 Blackstone, Commentaries on the Laws of England (Rev.

Ed.1979) 223, Chapter 16. This doctrine was codified in 2008 and is set forth in R.C.

2901.09(B), which states that “[f]or purposes of any section of the Revised Code that sets

forth a criminal offense, a person who lawfully is in that person's residence has no duty to

retreat before using force in self-defense, defense of another, or defense of that person's

residence, and a person who lawfully is an occupant of that person's vehicle or who

lawfully is an occupant in a vehicle owned by an immediate family member of the person

has no duty to retreat before using force in self-defense or defense of another.” The

castle doctrine “relates to the applicability of the duty to retreat” prong of self-defense.

State v. Martin, 2d Dist. Montgomery No. 27220, 2017-Ohio-7431, ¶ 39. The instruction

is given when a defendant, who claims he used force in self-defense, is in his own home.

We have not found, and the State has not cited, any case in which the castle doctrine

instruction was given when, as here, the victim was in his own home and the defendant

claimed he acted in self-defense.

       {¶ 30} Ramey claims that by giving this instruction, the trial court “created the

implication that there was a legal impediment that [he] had to overcome in order to raise

his own legitimate defense of self-defense, when in reality, that legal hurdle should have

never been applicable.” However, as argued by the State, the instruction given by the

trial court is a correct statement of law, and is arguably applicable given that Ramey

claimed Davis started the altercation when he pushed Ramey into the edge of the
                                                                                           -16-


loveseat. Further, the trial court noted that it gave the instruction, with the instruction not

mentioning Davis’s name in connection therewith, due to the State’s concern that the jury

might think Davis should have left his home in order to retreat from the conflict.

       {¶ 31} The instruction given by the trial court is a correct statement of the law.

And, given the trial court’s reasoning for its inclusion, we cannot say that its use was an

abuse of discretion.

       {¶ 32} Finally, we address the claim that the trial court erred with regard to its

instructions on voluntary manslaughter. We agree with Ramey that the instruction was

not correctly given. We find it troubling that the trial court repeatedly mislabeled the

charge as involuntary manslaughter rather than voluntary manslaughter.                    Also

problematic is the trial court’s repeated identification of voluntary manslaughter as an

affirmative defense and as a lesser-included offense, when it is not an affirmative defense

and should be labeled as an inferior degree of murder. State v. Shane, 63 Ohio St.3d

630, 632, 590 N.E.2d 272 (1992). Finally, the trial court improperly omitted the term

“knowingly” in its definition of voluntary manslaughter. However, before we determine

whether Ramey was prejudiced by the trial court’s instruction, we must first determine

whether he was entitled to an instruction on voluntary manslaughter.

       {¶ 33} Voluntary manslaughter is proscribed by R.C. 2903.03(A), which 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 * * *.” “The Ohio Supreme Court has repeatedly cautioned that a

trial court need not give the instruction every time ‘some evidence’ is presented going to
                                                                                              -17-

the inferior degree offense.” State v. Miller, 2d Dist. Montgomery No. 22433, 2009-Ohio-

4607, ¶ 22, citing Shane at 633. “To require the instruction to be given every time there

is ‘some evidence,’ however minute, would mean that no trial judge could ever refuse to

instruct on the inferior degree offense.” Id.

       {¶ 34} Ohio courts use a two-part test when considering whether to give a voluntary

manslaughter instruction. Miller at ¶ 23. “In determining whether the provocation is

reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective

standard must be applied.       Then, if that standard is met, the inquiry shifts to the

subjective component of whether this actor, in the particular case, actually was under the

influence of a sudden passion or in a sudden fit of rage. It is only at that point that the      ‘

* * * emotional and mental state of the defendant and the conditions and circumstances

that surrounded [the defendant] at the time * * * ’ must be considered.” Id., citing Shane

at 634, quoting State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), at paragraph

five of the syllabus.

       {¶ 35} First, Ramey was not entitled to the voluntary manslaughter instruction

based upon any potential claim that he was seriously provoked when Davis shoved him

into the living room and, at least in Ramey’s eyes, started the altercation. A “victim [is]

within his rights in using reasonable force to repel [a] defendant from his home. Thus,

his act of [shoving] the defendant could not provide the ‘serious provocation’ to reduce

the defendant’s conduct from [murder] to manslaughter.” State v. Johnston, 2d Dist.

Montgomery No. 19019, 2002 WL 1393988, *3 (June 28, 2002).

       {¶ 36} Further, Ramey’s own testimony indicated that he was afraid Davis would

shoot him if Ramey released him.          This testimony indicates that Ramey was not
                                                                                       -18-


overcome by sudden passion or a sudden fit of rage, because “fear is insufficient to

demonstrate the emotional states of sudden passion or a fit of rage.” State v. Williams,

7th Dist. Jefferson No. 11 JE 7, 2012-Ohio-5256, ¶ 24. Accord State v. Beatty-Jones,

2d Dist. Montgomery No. 24245, 2011-Ohio-3719, ¶ 30.

      {¶ 37} We conclude that Ramey was not entitled to an instruction on voluntary

manslaughter.    Thus, any errors in the instruction were harmless.       Miller, 2d Dist.

Montgomery No. 22433, 2009-Ohio-46707, ¶ 28.

      {¶ 38} The second assignment of error is overruled.



                                  IV. Manifest Weight

      {¶ 39} Ramey’s third assignment of error provides:

      THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT

      OF THE EVIDENCE.

      {¶ 40} Ramey contends that his convictions were not supported by the weight of

the evidence because he demonstrated that he acted in self-defense. He further claims

that the State failed to produce evidence sufficient to prove the element of trespass

required for a conviction for aggravated burglary.

      {¶ 41} A sufficiency of the evidence analysis focuses upon whether the prosecution

presented adequate evidence, viewing such evidence in the light most favorable to the

prosecution, to sustain the verdict. (Citations omitted.) State v. Radford, 2d Dist. Clark

No. 2016-CA-80, 2017-Ohio-8189, ¶ 14. The prosecution has presented sufficient

evidence when “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d
                                                                                           -19-


259, 574 N.E.2d (1991), paragraph two of the syllabus.

       {¶ 42} A manifest weight analysis, in contrast, requires an appellate court to review

the record, weigh the evidence and any reasonable inferences allowed by the evidence,

consider witness credibility, and determine whether the trier of fact, in resolving any

evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that

the conviction must be reversed and a new trial ordered.”           Radford at ¶ 15.     This

consideration of the evidence must be exercised with caution so that a new trial will only

be granted “in the exceptional case in which the evidence weighs heavily against the

conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). Though different legal concepts are involved, if a verdict is supported by the

manifest weight of the evidence, the evidence, by necessity, is legally sufficient. (Citations

omitted.) Radford at ¶ 16.

       {¶ 43} As noted above, the offense of aggravated burglary is defined by R.C.

2911.11(A)(1), which states, in pertinent part, that “[n]o person, by force, stealth, or

deception, shall trespass in an occupied structure * * * when another person other than

an accomplice of the offender is present, with purpose to commit in the structure * * * any

criminal offense, if * * * the offender inflicts, or attempts or threatens to inflict physical

harm on another[.]”

       {¶ 44} Ramey contends that the State failed to prove the element of trespass

required by R.C. 2911.11(A)(1) for a conviction of aggravated burglary. In support, he

argues that the evidence demonstrates that he was permitted to enter Davis’s house any

time he wished without first seeking permission. In support, he cites the testimony of

Cynthia Moore who testified that in the past she had seen Ramey enter Davis’s home
                                                                                          -20-


without asking permission, and that she never observed Davis tell him to leave. He

further cites the testimony of Pietro Bass that Ramey was “more welcome [at Davis’s

house] than anyone else.”

       {¶ 45} “Trespass” is defined by R.C. 2911.21(A), which states that “[n]o person,

without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises

of another.” “Force” is defined as “any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). “ ‘Force’

is satisfied by ‘any effort physically exerted.’ ” State v. Johnson, 2d Dist. Montgomery

No. 26961, 2017-Ohio-5498, ¶ 21, quoting State v. Snyder, 192 Ohio App.3d 55, 2011-

Ohio-175, 947 N.E.2d 1281, ¶ 18 (9th Dist.).          This court has held that “the effort

necessary to open a door, locked or unlocked, is sufficient to satisfy the element of ‘force’

necessary to prove burglary.” State v. DeMoss, 2d Dist. Champaign No. 2001-CA-5,

2002 WL 360581, *10 (Mar. 8, 2002), quoting State v. Ford, 2d Dist. Montgomery No.

15374, 1996 WL 257442, *2 (May 17, 1996).

       {¶ 46} We cannot say that the testimony of Moore and Bass supported a finding

that Ramey had free access to Davis’s home.             Neither witness claimed to have

knowledge of the events and interactions between Ramey and Davis at the time in

question. Moore’s testimony merely indicates that at unspecified times when she was

present, she had previously observed Ramey enter the house without having to seek

permission. Her testimony did not establish whether this type of access was ongoing, or

whether it occurred only when Davis was entertaining other people.              And Bass’s

testimony does nothing to negate trespass on the day of the offenses. The jury, as the

trier of fact, was free to disregard this evidence.
                                                                                        -21-


      {¶ 47} Further, Ramey’s own testimony supports a finding that on the day of the

murder he had been told to leave Davis’s home and also told not to return. He admitted

that when he returned after being told to leave, he simply opened and walked through the

screen door of Davis’s home. He did not knock, announce himself or request to enter.

Ramey also testified that when he entered the home, Davis asked him what he was doing

there and indicated that Ramey entered without invitation. Ramey admitted he was

aware Davis did not want him in his house. Ramey also admitted that when Davis came

toward him, he shoved Davis. We conclude that this testimony alone is sufficient to

establish the element of trespass. The State, in short, produced sufficient evidence to

establish that Ramey trespassed into Davis’s home.

      {¶ 48} Ramey next contends that the jury’s failure to find that he acted in self-

defense was against the weight of the evidence. He argues that his testimony was

undisputed and that there was no other version of the events for the jury to have believed.

He notes that he presented evidence consisting of his own testimony as well as that of

his grandmother, Sarah Wilson, that Davis had a reputation for violence.          He also

testified that, prior to Thanksgiving 2015, Davis pulled a gun on him and threatened to

shoot him. He also notes that Davis had a gun on his person at the time of the offense.

According to Ramey, when he had Davis on his back on the couch, he began to think that

Davis “probably got [sic] his pistol on him,” and that he began to believe Davis “might”

shoot him if he broke free. While Ramey admitted that Davis never pulled a gun or knife

during the instant altercation, he claimed that he was merely trying to keep Davis’s hands

from going towards his “waist or whatever, where he might have [his gun].” Ramey

appears to argue that the jury was, thus, compelled to find that he acted in self-defense.
                                                                                             -22-


       {¶ 49} To establish self-defense, a defendant must prove by a preponderance of

the evidence that he (1) was not at fault in creating the situation giving rise to the fight, (2)

had reasonable grounds to believe and an honest belief that he was in imminent danger

of death or great bodily harm and that his only means of escape was through the use of

deadly force, and (3) did not violate any duty to retreat or avoid the danger. State v.

Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-6541. “If the defendant fails to

prove any one of these elements by a preponderance of the evidence, he has failed to

demonstrate that he acted in self-defense.” State v. Williford, 49 Ohio St.3d 247, 249,

551 N.E.2d 1279 (1990), quoting State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d

893 (1986).

       {¶ 50} In State v. Higgins, 2d Dist. Montgomery No. 18974, 2002-Ohio-4679, this

court discussed self-defense in the context of aggravated burglary:

              The Ohio Supreme Court has stated that there are affirmative

       defenses that do not seek to negate any of the elements of the offense that

       the State is required to prove. State v. Martin, 21 Ohio St.3d 91, 94, 488

       N.E.2d 166, (1986), citation omitted. One of these defenses is self-defense,

       which is characterized as a “justification for admitted conduct.” Id. The

       Court has further explained this characterization as follows:

              “Self-defense represents more than a ‘denial or contradiction of

       evidence which the prosecution has offered as proof of an essential element

       of the crime charged * * *.’ Rather, * * * this defense admits the facts

       claimed by the prosecution and then relies on independent facts or

       circumstances which the defendant claims exempt him from liability. Thus,
                                                                                           -23-


       the burden of proving self-defense by a preponderance of the evidence

       does not require the defendant to prove his innocence by disproving an

       element of the offense with which he is charged. The elements of the crime

       and the existence of self-defense are separate issues. Self-defense seeks

       to relieve the defendant from culpability rather than to negate an element of

       the offense charged.”     Id.

              The defense of self-defense requires a defendant to establish,

       among other things, that he was not at fault in creating the situation giving

       rise to the affray. State v. Barnes, 94 Ohio St.3d 21, 24, 2002-Ohio-68,

       759 N.E.2d 1240. However, trespass is an essential element of the offense

       of Aggravated Burglary, as defined in R.C. 2911.11(A)(1) * * *. In order for

       the jury to find [a defendant] guilty as charged, it necessarily had to find that

       he was trespassing when he injured [the victim]. This is inconsistent with

       the defense of self-defense, because it presupposes that [the defendant]

       was at fault in creating the situation that gave rise to the altercation. Thus,

       self-defense was not available as a defense * * *.

Id. at ¶ 17-19.

       {¶ 51} In this case, Ramey was charged with murder as a proximate cause of

aggravated burglary. Ramey’s own testimony establishes that he trespassed and that

he was the first aggressor. This evidence, standing alone, was sufficient to defeat the

claim of self-defense as it demonstrated that Ramey’s actions gave rise to the fight.

       {¶ 52} Ramey also argues that, regardless of whether he trespassed or was the

first aggressor, the jury should have found that the need for self-defense arose after the
                                                                                           -24-


fight progressed and he began to believe that he might be shot by Davis.

       {¶ 53} However, the jury was not bound to find that Ramey had a bona fide belief

he was in imminent danger.       The jury heard the testimony of three witnesses who

contradicted the testimony of Ramey and his grandmother that Davis had a reputation for

violence. And the jury had Ramey’s admission that he trespassed, that he knew he was

not welcome even after he entered, and that he was the first aggressor. Also, Ramey

admitted that Davis did not threaten deadly force at any time during the fight. It is also

clear that Ramey was on top of Davis, and that he had at least one of Davis’s arms pinned

down. Further, the evidence shows that Ramey was more than twice the size of Davis,

who was recovering from surgery to his leg and hand, both of which had healing fractures

present at the time of his death. By his own testimony, it was not until Ramey had Davis

effectively pinned down that he began to fear for his life. The jury could also have

determined from the testimony of the coroner that Ramey had an opportunity to retreat

after Davis passed out rather than continuing to apply pressure to his neck for an

additional four minutes.

       {¶ 54} We conclude that there was sufficient evidence in the record upon which

the jury could rely in finding that Ramey trespassed. Further, given the facts in the

record, we cannot say that the jury lost its way in rejecting the claim of self-defense.

       {¶ 55} The third assignment of error is overruled.



                                      V. Conclusion

       {¶ 56} The first assignment of error being sustained and the second and third

assignments of error being overruled, the judgment of the trial court is affirmed in part,
                                                                                        -25-


reversed in part, and remanded for re-sentencing in accordance with this opinion.



                                     .............



DONOVAN, J., concurs.

HALL, J., concurring in part and dissenting in part:

       {¶ 57} I agree that there was no error in the trial court’s jury instructions, and I

agree that Ramey’s convictions are not against the manifest weight of the evidence. In

my opinion, however, the offenses of aggravated burglary and felony murder as a result

of felonious assault do not merge. Therefore, I concur in part and dissent in part.

       {¶ 58} Ramey was found guilty of four counts. In sequential order, they were felony

murder, the proximate result of aggravated burglary, in violation of R.C. 2903.02(B);

felony murder, the proximate result of felonious assault, also in violation of R.C.

2903.02(B); aggravated burglary in violation of R.C. 2911.11(A)(1); and felonious assault

(serious physical harm) in violation of R.C. 2903.11(A)(1). At sentencing the trial court

indicated the felony-murder counts merged with each other, and the State elected to

proceed with sentencing on the second count, felony murder the proximate result of

felonious assault. The trial court also determined that the stand-alone felonious assault

count merged with the felony murder predicated on felonious assault. It is the stand-alone

conviction for aggravated burglary that I believe does not merge with the conviction for

murder as a proximate result of felonious assault.

       {¶ 59} The indictment for aggravated burglary tracks the statutory definition that

Ramey trespassed in an occupied structure with purpose to commit any criminal offense
                                                                                              -26-


and did attempt, threaten or inflict physical harm. (Indictment, Doc. # 4). Similarly, the

State’s wording of the May 5, 2017 bill of particulars included language that the trespass

was for the purpose to commit “any criminal offense,” supplemented with the alternatives

felonious assault, aggravated assault, or assault. This wording was also read to the jury

by the court during jury selection.3 The prosecution referred to the identical wording,

including the three potential criminal offenses, in its opening statement. (Tr. at 172). The

trial court’s initial draft of jury instructions indicated that the purpose of the entry was to

commit any of the same three potential criminal offenses—felonious assault, aggravated

assault, or assault. However, during the charge conference the court engaged counsel in

discussions to “simplify” the instructions by deleting unnecessary clauses from the

standard OJI instructions. To prevent giving an additional “simple assault instruction” that

could possibly be “technically a lesser [offense],” the court deleted “assault” from the “any

criminal offense” portion of the instruction with the State’s acquiescence. (Tr. at 912-913).

Nonetheless, the instructions as given, consistent with the aggravated burglary statute,

explained that after entry into the occupied structure, aggravated burglary requires only

that the offender “did recklessly inflict, attempted to inflict, or threatened to inflict physical

harm on Earl E. Davis, Jr.” (Emphasis added.) (Tr. at 953.) The court also provided the

statutory definition of “physical harm,” meaning “any injury, illness, or other physiological



3
   The court referred to count three of the indictment as requiring a trespass “with purpose
to commit in the structure or in the separately secured or separately occupied portion of
the structure, any criminal offense, to wit: Felonious Assault (serious physical harm), in
violation of §2903.11(A)(1) of the O.R.C., a felony of the second degree, and/or
Aggravated Assault, in violation of §2903.12(A)(1) of the O.R.C., a felony of the fourth
degree, and/or Assault, in violation of §2903.13(A) of the O.R.C., a misdemeanor of the
first degree, and did inflict, or attempt or threaten to inflict physical harm on another.” (Tr.
at 8.)
                                                                                         -27-


impairment, regardless of its gravity or duration.” (Tr. at 956.)

       {¶ 60} We have held that aggravated burglary and felonious assault of a victim in

the entered residence do not merge. State v. Harmon, 2017-Ohio-8106, 98 N.E.3d 1238,

¶ 64 (2d Dist.) (“[A]ggravated burglary was committed when Harmon broke into D.M.’s

residence while carrying a loaded handgun with the intent to cause serious harm to D.M.

Once inside the residence, Harmon went to D.M.’s bedroom * * * and shot D.M. in the

face. Essentially, the aggravated burglary was completed before Harmon committed the

felonious assault offense against D.M. by shooting her in the face. Contrary to Harmon’s

argument, felonious assault was not an element of aggravated burglary as charged in the

indictment.”). Other districts have ruled similarly. See e.g. State v. Ortiz, 6th Dist. Lucas

No. L-14-1251, 2016-Ohio-974, ¶ 31-32 (“As to the aggravated burglary charge, the

evidence presented at trial demonstrated that the aggravated burglary was committed

when appellant hit M.C. and forcibly pushed his way into the apartment. * * * Once M.C.

was knocked to the ground, appellant committed a felonious assault by ‘stomping’ on

him.”); State v. McKinnon, 7th Dist. Columbiana No. 16 CO 0011, 2017-Ohio-5784, ¶ 36

(“[A]ppellant completed the aggravated burglary when he entered L.T.’s apartment and

caused her physical harm by striking her. But appellant continued to beat L.T. throughout

various rooms in the apartment and the harm escalated to serious physical harm”

[constituting felonious assault]); see also State v. Bruce, 7th Dist. Jefferson No. 17 JE

0023, 2018-Ohio-2478, ¶ 22 (“Thus, when appellant trespassed into D.W.'s hotel room by

pretending to be her brother and threatened to kill her, the aggravated burglary was

complete. Then when appellant hit, slapped, and stabbed D.W., he committed felonious

assault.”).
                                                                                         -28-


       {¶ 61} In this case, Ramey admittedly realized that a fight was starting, and he

shoved Davis backward and lunged at Davis, causing Davis to tumble over a couch with

Ramey landing on top of him. This activity alone established the causing of physical harm,

and at that point the aggravated burglary was complete. Then Ramey put his hands

around Davis’s throat and a knee on one of his arms and strangled Davis to death. That

subsequent strangulation constitutes the “serious physical harm” necessary to support

the felonious assault charge, which in turn supports the count-two murder charge.

Therefore, the offense of murder as a result of felonious assault does not merge with the

aggravated burglary, because those charges are the result of different and separate

conduct. Although, in my opinion, the trial court should have instructed the jury that entry

for the purpose to commit a simple assault also qualified as “any criminal offense,” it

matters not whether Ramey’s purpose in entering the residence was to commit felonious

assault because, having entered, if he stopped after only causing physical harm by the

simple assault of Davis, the aggravated burglary already was complete. Strangling

someone to death so far exceeds the “physical harm” required to complete the aggravated

burglary that it constitutes separate conduct and precludes merger.

       {¶ 62} The Ohio Supreme Court's decision in State v. Earley, 145 Ohio St.3d 281,

2015-Ohio-4615, 49 N.E.3d 266, provides further guidance about the holding in Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. In Earley, the Court concluded that

misdemeanor operating a motor vehicle while under the influence and felony aggravated

vehicular assault “are offenses of dissimilar import and significance that are to be

punished cumulatively.” Earley at ¶ 20. This is despite the fact that operating a vehicle

while under the influence of alcohol is the predicate conduct for aggravated vehicular
                                                                                        -29-


assault. Therefore, here even if the purpose of entry into the residence was to commit

felonious assault, under the Earley analysis, that conduct was not sufficient to require

merger of aggravated burglary and murder as the proximate result of felonious assault.

      {¶ 63} Finally, the import of causing the death of another, murder, is markedly

different than the import of aggravated burglary, which primarily is a property offense,

although use of threats or causing physical harm enhances the level of a burglary.

Ordinary logic leads me to two conclusions. One, an offender who commits a murder after

violating the sanctity of someone else’s dwelling is a different offender than one who

commits the same offense in the public arena. And two, an offender who breaks into a

house to threaten or harm someone is a different offender that one who enters and kills

the occupant. In either event, the offender should be eligible to be separately responsible

for the offenses he has committed, and the offenses should not merge for sentencing.

      {¶ 64} For the foregoing reasons, I concur in part and dissent in part.




Copies mailed to:

Mathias H. Heck, Jr.
Heather N. Jans
Jay A. Adams
Hon. Dennis J. Langer
