[Cite as State v. Avery, 2023-Ohio-3570.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Andrew J. King, J. -vs- : : CRAIG D. AVERY : Case No. 2022 CA 00160 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2022 CR 0307B
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 2, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE GEORGE URBAN PROSECUTING ATTORNEY 116 Cleveland Avenue NW Suite 808 BY: Christopher A. Piekarski Canton, OH 44702 110 Central Plaza South, Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2022 CA 00160 2
King, J.
{¶ 1} Defendant-Appellant Craig Avery appeals the November 10, 2022 judgment
of conviction and sentence of the Stark County Court of Common Pleas. Plaintiff-Appellee
is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 7, 2022, a group of people gathered at the home of K.T. on
Gilbert Circle in Canton, Ohio, a high-crime area. K.T. lived with her four children, ages
17, 13, 10, and 3. The victim in this matter, T.L. was the father of the three-year old. He
did not live with K.T., but they co-parented the child.
{¶ 3} On the evening of January 7, T.L went to K.T.'s home after he got off work.
When T.L. arrived, K.T.'s children were present along with friends of the oldest child, D.M.
D.M.'s friends were N.R., M.C., and M.M. After T.L. arrived, he and K.T. went to the liquor
store and returned with some Hennessy cognac. K.T.'s sister M.H. showed up shortly
thereafter with some food. The adults settled in the living room to drink and eat, and the
teenagers hung out in the kitchen. M.M. was drinking alcohol and the other teens were
smoking marijuana.
{¶ 4} At some point 16-year-old Avery showed up as well. He had been to K.T.'s
home at least once before. As the evening wore on, Avery and T.L. became hostile with
one another over Avery's reluctance to tell T.L. who his parents are. No physical
altercation took place, however, the two spent some time "mean-mugging," or staring one
another down and bickering.
{¶ 5} While that was going on, T.L.'s friend K.H. showed up to by some marijuana
from T.L. Shortly thereafter, Avery called his friend, 17-year-old Ajani Smith to come over. Stark County, Case No. 2022 CA 00160 3
{¶ 6} Around midnight, T.L. and K.T. decided to go get beer before the local drive
through closed. Around that time Smith arrived wearing all black and a mask. K.T. told
both Smith and Avery they could not stay at her home and told them to leave. T.L., K.T.,
M.C., Smith, and Avery all went outside. M.H. stood in the front doorway looking outside.
T.L. walked to the driver's side of his car which was parked in the driveway. K.T. again
told Smith to leave and to get off her property. Instead of leaving, Smith responded by
pulling a gun on K.T.
{¶ 7} Seeing what was going on, T.L. moved toward Smith and K.T. and yelled
for Smith to get the gun out of K.T.'s face. At that point Avery was in the street by his car
which was parked across from the back end of T.L.'s car. As T.L. approached K.T., Smith
ran off and started shooting. Avery started shooting from the street at the same time. Both
teens then got into two separate stolen vehicles and fled the scene. Traffic cameras
showed them travelling away from the scene in the same direction.
{¶ 8} When the shooting started, K.T. and M.C. ran into the house. Once the
shooting stopped and K.T. realized T.L. had not come inside, she went outside to
investigate. She found T.L. dying on the ground in front of his car.
{¶ 9} Police and EMS arrived to process the scene and remove T.L.'s body.
Police located 17 spent cartridge cases at the scene which were later determined to have
come from three different guns. One led bullet core was recovered from the trunk of T.L.'s
car and another from underneath T.L.'s body. Several bullet holes were found in the front
of the house brick, front door, and windows.
{¶ 10} Canton Police Detective Mark Diels spoke with multiple witnesses including
K.T. M.C., M.H., D.M., M.M., and N.R. Based on his investigation Diels put together two Stark County, Case No. 2022 CA 00160 4
photo arrays. K.T. identified Avery as one of the shooters and M.H. identified Smith as
the other. Of all the witnesses he spoke to, only N.R. said T.L. had a gun.
{¶ 11} Avery was eventually located and interviewed. He denied driving the stolen
vehicle, having a gun, or shooting a gun that night. He also never said T.L. pulled a gun
on him.
{¶ 12} Canton-Stark County Crime Lab firearms expert Abigail Ilijevski examined
the bullets and shell casings in this matter. After doing so, she entered her findings into
the National Integrated Ballistic Information Network or NIBIN. The network can help
determine if a firearm is used in other incidents. Ilijevski later received a potential match
to a Springfield .9mm firearm which was seized in another Ohio county. Iljevski
determined to a reasonable degree of scientific certainty that the Springfield weapon was
used in this incident. No other firearms were recovered.
{¶ 13} Franklin County Deputy Coroner Dr. Todd Barr examined T.L.'s body. T.L
had three gunshot wounds with both entrance and exit. Entrance wounds consisted of
one to T.L.'s left chest, one to his left buttock and one just above the back of his right
ankle. The chest wound was fatal because the bullet perforated T.L.'s pulmonary arteries.
The cause and manner of death were determined to be multiple gunshot wounds and
homicide respectively.
{¶ 14} Avery and Smith's cases were bound over to the Stark County Grand Jury
which subsequently returned an indictment charging both Avery and Smith with one count
each of adding or abetting murder along with attendant three-year firearm specifications. Stark County, Case No. 2022 CA 00160 5
{¶ 15} A joint jury trial began on October 31, 2022. The state called 11 witnesses
and elicited the above outline testimony. Avery called three witnesses, his friends D.M.,
M.C., and N.R.
{¶ 16} D.M. testified she, N.R., and M.M. never went outside and she did not see
what happened outside. She heard 3-4 shots. She never saw T.L. or his friend K.H. with
guns that night. She did not know why K.M. showed up, but did know Avery felt like he
had to call Smith to come over after K.M. arrived.
{¶ 17} M.C. testified she was outside when the shooting started. She stated Avery
fired shots first, but claimed it was after T.L. "clutched" at his pants like he was going to
draw a gun. But she did not know if T.L. had a gun. M.C. stated she never saw Smith in
possession of a gun or shooting a gun. During trial M.C. said she saw a gun lying on the
ground beside T.L. after he was shot, but then admitted that on the night of the incident
she told police she never saw T.L. with a gun.
{¶ 18} On direct examination, N.R. testified he watched what happened through
the screen door but did not go outside. When police spoke to him after the shooting,
however, he stated he was upstairs. N.R. testified he saw Avery pull a gun first and then
T.L. pulled a gun. He testified Smith never pulled a gun. On cross examination N.R. stated
he told police that T.L.'s friend K.H. showed up with two guns but on the stand said that
was not true. At trial N.R. testified T.L. had a gun but he also admitted he never told police
T.L. had a gun.
{¶ 19} Avery requested and received a self-defense jury instruction. The state
requested and received a flight instruction. The jury convicted Avery and Smith as Stark County, Case No. 2022 CA 00160 6
charged. Avery was later sentenced to 15 years to life with a consecutive 3-year prison
term for the firearm specification.
{¶ 20} Avery filed an appeal and the matter is now before this court for
consideration. He raises three assignments of error as follow:
I
{¶ 21} "THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED."
II
{¶ 22} "THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO
PRODUCE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST
APPELLANT."
III
{¶ 23} "THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED."
I, II, III
{¶ 24} Avery's three assignments of error are interrelated and will therefore be
addressed together. Avery argues the state failed to produce sufficient evidence to prove
he aided or abetted Smith in shooting and killing T.L., and the jury lost its way in finding
that he did. He argues Smith shot T.L. He additionally argues that because the state failed Stark County, Case No. 2022 CA 00160 7
to disprove the matter of self-defense during its case-in-chief, the trial court erred when it
failed to grant his Crim.R. 29 motion for acquittal. We disagree.
Applicable Law
{¶ 25} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence
presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002-Ohio-351, citing
State v. Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91, 660 N.E.2d 724; State v. Miley,
114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist. 1996). Crim . R. 29(A) allows a trial
court to enter a judgment of acquittal when the State's evidence is insufficient to sustain
a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,
after viewing the evidence in a light most favorable to the State, the court finds no rational
finder of fact could find the essential elements of the charge proven beyond a reasonable
doubt. State v. Franklin, 5th Dist. Stark No. 2007-CA-00022, 2007-Ohio-4649 at ¶ 12,
citing State v. Dennis, 79 Ohio St.3d 421, 1997-Ohio-372, 683 N.E.2d 1096.
{¶ 26} On review for sufficiency, a reviewing court is to examine the evidence
presented at trial to determine whether such evidence, if believed, would support a
conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest
weight, a reviewing court is to examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine "whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest Stark County, Case No. 2022 CA 00160 8
miscarriage of justice that the conviction must be reversed and a new trial ordered." State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction." Martin at 175.
{¶ 27} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180
(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
Avery's Arguments
{¶ 28} First, as to Avery's complaint that the state failed to produce sufficient
evidence to prove he shot T.L., or aided and abetted in the shooting of T.L., at trial Avery
advanced the affirmative defense of self-defense. In so doing, Avery necessarily admitted
that he shot and killed T.L. but did so in self-defense. We therefore reject Avery's claims
that the state failed to prove he shot and killed T.L.
{¶ 29} Next Avery argues the state presented no evidence to disprove his claim
that he acted in self-defense. While Avery frames this argument as a sufficiency
challenge, the state's burden of disproving a defendant's self-defense claim beyond a
reasonable doubt is subject to a manifest-weight review on appeal. State v. Messenger,
171 Ohio St.3d 227, 2022-Ohio-4562, --- N.E.3d ---- ¶27.
{¶ 30} R.C. 2901.05(B)(1) provides: Stark County, Case No. 2022 CA 00160 9
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person's residence. If, at the trial of a person who
is accused of an offense that involved the person's use of force
against another, there is evidence presented that tends to support
that the accused person used the force in self-defense, defense of
another, or defense of that person's residence, the prosecution must
prove beyond a reasonable doubt that the accused person did not
use the force in self-defense, defense of another, or defense of that
person's residence, as the case may be.
{¶ 31} The defendant has the initial burden of production, which is the burden of
producing evidence "that tends to support" that the defendant used force in self-defense.
State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, --- N.E.3d ---- ¶ 21. The burden
then shifts to the state under its burden of persuasion to prove beyond a reasonable doubt
that the defendant did not use the force in self-defense. Id. at ¶ 24. In other words, if the
evidence tends to support that the defendant acted in self-defense, then the prosecution
must prove beyond a reasonable doubt that the defendant did not act in self-defense. Id.
at ¶26; State v. Gatewood, 1st Dist. Hamilton No. C-190654, 2021-Ohio-3325, ¶ 68. The
state need only disprove one of the elements of self-defense beyond a reasonable doubt
at trial to sustain its burden. State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893
(1986). Accord, State v. Staats, 5th Dist. Stark No. 2019CA00181, 2021-Ohio-1325 ¶ 28.
{¶ 32} The state was required to disprove at least one of the following: 1) Avery
was not at fault in creating the situation giving rise to the affray, 2) Avery had reasonable Stark County, Case No. 2022 CA 00160 10
grounds to believe and an honest belief even if mistaken that he was in imminent danger
of death or great bodily harm and that he did not use more force than necessary to defend
against the attack and 3) Avery must not have violated any duty to retreat or avoid the
danger. State v. Robbins, 58 Ohio St.2d 74, 79, 388 N.E.2d 755 (1979) (citations omitted);
{¶ 33} In this matter the jury was instructed in relevant part as follows:
At fault. The defendant did not act in self-defense if the State
proved beyond a reasonable doubt that the Defendant was at fault in
creating the situation that resulted in the death. Defendant was at
fault if the Defendant was the initial aggressor and
A, [T.L.] did not escalate the situation by using [sic] the first to use
deadly force or attempt to use deadly force; or
B, the defendant provoked [T.L.] to use deadly force; or
C, the Defendant did not withdraw from the situation; or
D, the Defendant withdrew from the situation, but did not inform [T.L.]
of his withdraw by words or acts to [T.L.]
Test for reasonable grounds and honest belief. In deciding
whether the Defendant had reasonable grounds to believe and an
honest belief that he was in imminent or immediate danger of being
killed or receiving great bodily harm, you must put yourself in the
position of the Defendant, with his characteristics, his knowledge or
lack of knowledge, and under the circumstances and conditions that
surround him at the time. You must consider the conduct of [T.L.] and Stark County, Case No. 2022 CA 00160 11
decide whether his acts and words caused the Defendant to
reasonably and honestly believe that the Defendant was about to be
killed or receive great bodily harm. In determining whether the
Defendant, in using force in self-defense, reasonably believed that
the force was necessary to prevent injury, loss, or risk of life or safety,
you may not consider the possibility of retreat by the Defendant.
No duty to retreat. The Defendant had no duty to retreat
before using force in self-defense if the Defendant was in a place in
which he lawfully had a right to be. Lawfully had a right to be means
that the Defendant was not trespassing when he used force in, in
self-defense.
Trespass. A trespass occurs when a person knowingly enters
or remains on the land or premises of another without privilege to do
so.
***
Words. Words alone do not justify the use of force. Resort to
deadly force is not justified by abusive language, verbal threats, or
other words no matter how provocative.
Unreasonable force, A person's [sic] allowed to use force that
is reasonably necessary under the circumstances to protect himself
from an apparent danger. For you to find the Defendant guilty, the
state must prove beyond a reasonable doubt that the Defendant
used more force than reasonably necessary and that the force was Stark County, Case No. 2022 CA 00160 12
greatly disproportionate to the apparent danger. In deciding whether
the force used was greatly disproportionate to the apparent danger,
you may consider whether the force used shows revenge or criminal
purpose.
{¶ 34} Transcript of Trial, volume III(B) 26-30.
{¶ 35} Evidence presented by the state at trial showed there was tension in the
home when Avery became rude and antagonistic with T.L. after he asked who Avery's
parents were. T. (I), 177-178, 208-209. M.H. observed Avery texting after he became
angry with T.L. and Smith showed up shortly thereafter. T. (I) 210-212. Neither M.H. nor
K.T. saw T.L. or his friend K.H. with guns that night, and both testified there was never a
physical altercation between Avery and T.L. before the shooting. T. (I) 187-188, 209-210.
Just before T.L. and K.T. left to go to the drive through, K.T. told Avery he was no longer
welcome in her home. T. (I) 178. Smith, who had just showed up, was also asked to leave.
T. (I) 181, 210-211.
{¶ 36} Further evidence presented by the state showed T.L., K.T, M.C., Avery, and
Smith all went outside together while M.H. stood in the front doorway. T(I) 182, 213. T.L.
walked to his car which was parked in the driveway, and Avery ran towards his vehicle
situated on the street behind T.L.'s vehicle. T(I) 182, 214. Instead of leaving as asked,
Smith became belligerent with K.T. and K.T. told Smith to get off of her property. Id. In
response, Smith pulled a gun, and pointed it at K.T. Id. T.L. saw what was happening and
yelled for Smith to get the gun out of T.L.'s face. T(I) 182. Smith ran off while shooting his Stark County, Case No. 2022 CA 00160 13
gun. Avery simultaneously fired his gun from the street towards T.L. and his car. T(I) 185,
214.
{¶ 37} The state's evidence therefore showed Avery and Smith were at fault for
creating the situation that led to T.L.'s death. Each eyewitness testified there was tension
inside the home. Once outside, however, instead of simply leaving as they were asked to
do, Avery and Smith reignited the feud and escalated the situation from one of mere words
and dirty looks to one involving the unreasonable use of deadly force when Smith pulled
a gun on K.T. Moreover, because Avery and Smith had been asked to leave, any privilege
the two may have had to be on K.T.'s property and in her home evaporated upon her
clear revocation of that privilege. Therefore, even if Avery somehow felt threatened, he
had a duty to retreat.
{¶ 38} Avery argues his witnesses, M.C. and N.R. both testified T.L. had a gun,
testimony which he argues supported his affirmative defense of self-defense. While these
witnesses did testify on direct examination that T.L. had a gun, on cross-examination both
admitted or were confronted with the fact that they changed their stories regarding T.L.'s
possession of a gun and other important details between their statements the night of the
incident and trial. T. (II) 235-248, T.(IIIA) 66-69. The jury could have therefore reasonably
found the testimony of M.C. and N.R. was not credible.
{¶ 39} Finally, Avery argues shell casings from three different weapons were
recovered at the scene and the state made no effort to explain that fact. Manifest weight
and sufficiency standards, however, look to what evidence was produced, not what was
not produced. Moreover, the incident took place in a high crime area and none of the
witnesses testified to hearing more than four shots or seeing more than two shooters. Stark County, Case No. 2022 CA 00160 14
{¶ 40} We find the trial court did not err in overruling Avery's Crim.R. 29 motion,
that the state produced sufficient evidence to support Avery's conviction for aiding and
abetting murder and that the jury did not lose its way in so convicting Avery. We further
find the state met its burden of proving beyond a reasonable doubt that Avery did not act
in self-defense.
{¶ 41} Avery's three assignments of error are overruled.
{¶ 42} The judgment of the Stark County Court of Common Pleas is affirmed.
By King, J.,
Wise, P.J. and
Delaney, J. concur.