[Cite as State v. Burrows, 2014-Ohio-3164.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25918 Plaintiff-Appellee : : Trial Court Case No. 12-CR-1856 v. : : JAMES D. BURROWS, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 18th day of July, 2014.
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
DANIEL A. PERRY, Atty. Reg. #0087548, 123 Boggs Lane, Cincinnati, Ohio 45246 Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant James Burrows appeals from his conviction and sentence 2
for Having a Weapon While Under a Disability. Burrows contends that his confession should
not have been admitted, because the State failed to present evidence of the corpus delicti. He
further contends that the State failed to present evidence sufficient to sustain the conviction.
Finally, Burrows contends that his conviction is against the weight of the evidence because he
proved his affirmative defense of self-defense.
{¶ 2} We conclude that there was sufficient independent evidence to permit the
admission of Burrows’s confession. We also conclude that the evidence in the record is sufficient
to sustain the conviction. We finally conclude that Burrows’s conviction is not against the
manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed.
I. Shots Are Fired
{¶ 3} Dayton Police Officer David House was dispatched on a call regarding shots
fired at 5004 Hoover Avenue. When he arrived at the scene, he found bullet holes in the front of
the house. He also discovered spent shells from a 45-caliber weapon and a 9-millimeter weapon
located in the street in front of the home. According to House, he also noticed three shotgun
shell casings by the sidewalk. Eventually two more shotgun shells were found. House testified
that Burrows and his sister Stephanie Baxter then arrived on the scene followed by Dayton Police
Officer Eric Kleinhans.
{¶ 4} Burrows told House that he had been inside the house when the shooting started.
Burrows said that after the shots stopped, he ran into the front yard and saw a car driving away
from the residence. Burrows then ran back into the house, grabbed a shotgun, and went back
outside. Burrows saw two men coming out of the bushes to the west of the house. The men 3
walked to the opposite side of the street.
{¶ 5} Burrows saw a car turn around. He believed it was coming “to possibly pick
these two guys up.” Burrows told House that he fired the shotgun to “possibly scare anybody off
that might be hiding.” Burrows then left the scene, took the shotgun, and went to his aunt’s
apartment, where he left the shotgun.
{¶ 6} House testified that he spoke to someone identified as Burrows’s aunt about the
gun. Officer Kleinhans later went to the apartment to retrieve the shotgun.
{¶ 7} House discovered that Burrows had a felony record, so he arrested Burrows,
informing Burrows that he was not allowed to possess a weapon, because of his prior felony.
Burrows responded that the conviction “was so old he thought he could.”
{¶ 8} The testimony of Officer Kleinhans corroborated House’s testimony. Kleinhans
also testified that he observed bullet holes in three windows in the front of the home. There
were also bullet holes near the door. Kleinhans observed damage to the interior walls of the
house caused by bullets. He testified that the shotgun shells were found in the yard, while the
other shells were found in the street gutter near the yard. Kleinhans attempted to make contact
with the aunt to retrieve the weapon, but no one was home.
{¶ 9} Burrows presented the testimony of his sister, Stephanie Baxter. Baxter testified
that she was in the home with Burrows, her mother and about seven other people watching
television, when she heard gun shots, and the glass from the windows shattered. Everyone hit
the ground. After the shooting stopped, Baxter went to the door to look outside, and heard
Burrows outside yelling, “come on, let’s go, let’s go, let’s go.” Baxter testified that Burrows
sounded “hysterical, nervous and fear[ful].” Everyone in the house left the premises in vehicles, 4
and went to their aunt’s apartment. Baxter and Burrows stayed at the apartment for
approximately fifteen minutes, and then drove back to the house on Hoover Avenue. They
parked the car near the house, and Baxter called the police to report the shooting. Once the
police arrived, Baxter and Burrows returned to the Hoover Avenue house.
{¶ 10} Jacquelin McDonald testified that she is great-aunt to both Burrows and Baxter.
She was at her apartment when Burrows, Baxter, and some others came to her apartment.
Baxter and Burrows left after a while. McDonald testified that she kept a shotgun in the home
on Hoover Avenue.1 McDonald testified that Baxter later called her, and that she understood
that a police officer was coming to the apartment “about a shotgun.” She testified that no one
ever came to her apartment. On cross-examination, McDonald testified that she actually spoke
to an officer on the phone regarding a gun, and she told him she did not have one. She further
testified that the officer did not say that he was coming to her apartment.
II. The Course of Proceedings
{¶ 11} Burrows was charged by indictment with one count of Having a Weapon While
Under a Disability, in violation of R.C. 2923.13(A)(3). At trial, it was stipulated that Burrows
had been convicted of Possession of Heroin in 2009. A jury found Burrows guilty as charged.
He was sentenced to community control sanctions. Burrows appeals.
III. The Spent Shotgun Shell Casings Found at the Location in which Burrows Confessed
1 McDonald was in the process of moving from the Hoover Avenue home to the apartment. Burrows and Baxter resided with her at the home, and were going to move into the apartment with her. 5
to Having Fired a Shotgun, and the Evidence that Burrows Was Under a Disability,
Constitute Sufficient Independent Evidence that a Crime Was Committed, and that
Burrows Committed it, to Satisfy the Corpus Delicti Rule
{¶ 12} Burrows’s First Assignment of Error states:
THE TRIAL COURT ERRED IN FAILING TO LIMIT THE
TESTIMONY OF THE STATE’S WITNESS ERIC KLEINHANS AND
OFFICER HOUSE BASED ON THE APPELLANT’S OBJECTION THAT THE
CORPUS DELECTI [SIC] HAD NOT BEEN SHOWN AND OFFICER
KLEINHANS AND OFFICER HOUSE SHOULD NOT HAVE BEEN
PERMITTED TO TESTIFY AS TO APPELLANT’S ALLEGED
OUT-OF-COURT STATEMENTS.
{¶ 13} Burrows claims that the trial court should not have permitted the State to
introduce the inculpatory statements he made to House. Specifically, he objects to the inclusion
of testimony that he admitted to the possession of a firearm. In support, he argues that the State
failed to establish the corpus delicti of the charged offense.
{¶ 14} This court has previously discussed the issue of the corpus delicti in State v.
Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867 N.E.2d 474, ¶ 56-57 (2d Dist.), reversed on
other grounds, In re Criminal Sentencing Cases, 116 Ohio St.3d 31, 2007-Ohio-5551, 876
N.E.2d 528, wherein we stated:
The corpus delicti of an offense consists of the act and the criminal agency
of the act. Before a confession of a crime may be admitted at trial, the state must
introduce evidence independent of the confession to establish the corpus delicti of 6
the offense. The corpus delicti rule is designed to protect “persons who confess to
crimes that they not only did not commit themselves, but which were never
committed by anyone.” Accordingly, “this rule does not require evidence, other
than the confession, showing that the accused committed the crime but, rather,
requires some evidence that a crime was, in fact, committed.”
“The evidence presented need not be so strong that it is capable of
persuading a factfinder on some element of the crime beyond a reasonable doubt.”
Nor must the evidence be “even enough to make it a prima facie case.” Rather,
“[i]t is sufficient if there is some evidence outside of the confession that tends to
prove some material element of the crime charged.” The corpus delicti rule does
not require evidence related to all elements of the crime. Furthermore, the
evidence need not be direct but, rather, may be circumstantial. Although the rule
remains applicable, the Supreme Court has indicated that it need not be applied
“with a dogmatic vengeance.” (Citations omitted.)
{¶ 15} The Supreme Court of Ohio has stated that “[i]n light of the myriad procedural
protections granted defendants in modern criminal practice, however, ‘the corpus delicti rule is
supported by few practical or social policy considerations.’ ” State v. Van Hook, 39 Ohio St.3d
256, 261, 530 N.E.2d 883 (1988). Thus, while the corpus delicti rule requires the State to
present some independent evidence of the criminal act and criminal agency, that burden is
minimal. Id.; State v. Barker, 2d Dist. Montgomery No. 23691, 2010-Ohio-5744, ¶ 10.
{¶ 16} In the case before us, Burrows contends that the State failed to offer independent
evidence of the corpus delicti, because there was no evidence that a gun was recovered, or that 7
Burrows possessed it. But the State did present evidence that a shotgun was kept in the home.
It also presented evidence that the shots directed at the house were fired from weapons using
45-caliber and 9-millimeter shells, and there is no evidence that the damage to the house was
caused by a shotgun. The record further shows that the police recovered five spent shotgun
shells in the front yard of the house – evidence that a shotgun was fired in that location. Thus,
there is independent evidence of the act and the agency in the form of evidence that a shotgun
was fired in the location from which Burrows confessed to having fired it. Independent evidence
was also introduced that Burrows was under a disability.
{¶ 17} The First Assignment of Error is overruled.
IV. Based on the Evidence in the Record, a Reasonable Jury Could Find, Beyond
Reasonable Doubt, that Burrows Committed the Charged Offense
{¶ 18} Burrows asserts the following as his Second Assignment of Error:
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S
MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS
PLAINTIFF-APPELLEE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
EACH ELEMENT OF THE CRIMINAL OFFENSE OF HAVING WEAPONS
WHILE UNDER DISABILITY.
{¶ 19} Burrows contends that the State failed to produce evidence sufficient to sustain
the conviction, so that the trial court erred by overruling his Crim.R. 29 motion for acquittal.
{¶ 20} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court
applies the same standard it uses in the review of a sufficiency-of-the-evidence claim. The 8
relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most
favorable to the State, could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty
verdict will not be disturbed on appeal unless “reasonable minds could not reach the conclusion
reached by the trier-of-fact.” Id .
{¶ 21} Burrows was convicted of Having a Weapon While Under a Disability, in
violation of R.C. 2923.13, which provides in pertinent part as follows:
(A) Unless relieved from disability as provided in section 2923.14 of the
Revised Code, no person shall knowingly acquire, have, carry, or use any firearm
or dangerous ordnance, if any of the following apply:
***
(3) The person * * * has been convicted of any felony offense involving
the illegal possession, use, sale, administration, distribution, or trafficking in any
drug of abuse * * *.
{¶ 22} “A person acts knowingly, regardless of his purpose, when he is aware that his
conduct will probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.
2901.22(B).
{¶ 23} It is stipulated that in September 2009 Burrows was convicted of Possession of
Heroin, a fourth-degree felony. The presence of the spent shotgun shells at Burrows’s house is
evidence from which a reasonable jury could find that a shotgun was fired there, and Burrows
admitted that he fired the shotgun. This evidence, if believed, would permit a reasonable jury to 9
find, beyond reasonable doubt, that Burrows was guilty of the charged offense. The trial court
did not err by overruling the motion for acquittal.
{¶ 24} The Second Assignment of Error is overruled.
V. The Jury’s Conclusion that Burrows Failed to Prove
Self-Defense by a Preponderance of the Evidence Is
Not Against the Manifest Weight of the Evidence
{¶ 25} Burrows’s Third Assignment of Error provides as follows:
TRIAL COURT ERRED IN FAILING TO ISSUE A DIRECTED
VERDICT AND ENTER A FINDING OF NOT GUILTY AS DEFENDANT’S
CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND SUPPORTS DEFENDANT’S CLAIM OF SELF-DEFENSE BY A
PREPONDERANCE OF THE EVIDENCE.
{¶ 26} Burrows contends that the jury’s finding that he did not commit the act of Having
a Weapon While Under a Disability in self-defense is against the manifest weight of the
evidence. “Weight of the evidence concerns the inclination of the greater amount of credible
evidence offered at trial, to support one side of the issue, rather than the other.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing Black's Law Dictionary 1594
(6th Ed.1990). The credibility of the witnesses and the weight to be given to their testimony are
primarily for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967). “Because the factfinder, be it the jury, or, * * * the trial judge, has the opportunity to see
and hear the witnesses, the cautious exercise of discretionary power of a court of appeals to find 10
that a judgment is against the manifest weight of the evidence requires that a substantial
deference be extended to the factfinder's determinations of credibility. The decision whether, and
to what extent, to credit the testimony of particular witnesses is within the peculiar competence
of the factfinder, who has seen and heard the witnesses.” State v. Lawson, 2d Dist. Montgomery
No. 16288, 1997 WL 477684, *5 (Aug. 22, 1997). This court will not substitute its judgment for
that of the trier of facts on the issue of witness credibility, unless it is patently apparent that the
trier of fact lost its way in arriving at its verdict. Less deference is given to a fact-finder’s
weighing of reasonable inferences, but some deference is still given. Id.
{¶ 27} Burrows requested and received an instruction on self-defense. “Self-defense is
an affirmative defense that excuses or justifies a use of force which would otherwise result in
criminal liability. The basis of self-defense is the perceived necessity of the use of force to protect
oneself.” State v. Bayes, 2d Dist. Clark No. 00CA0032, 2000 WL 1879101, * 3-4 (Dec. 29,
2000). “To establish self-defense, the following elements must be shown: (1) the [offender] was
not at fault in creating the situation giving rise to the affray; (2) the [offender] has a bona fide
belief that he was in imminent danger of death or great bodily harm and that his only means of
escape from such danger was in the use of such force; and (3) the [offender] must not have
violated any duty to retreat or avoid the danger.” Id., quoting State v. Melchior, 56 Ohio St.2d
15, 20-21, 381 N.E.2d 195 (1978).
{¶ 28} “Self-defense is not merely a denial or contradiction of evidence offered by the
state to prove the essential elements of the charged crime. Rather, it is an admission of the
prohibited conduct coupled with a claim that the surrounding facts or circumstances exempt the
accused from liability therefor — ‘justification for admitted conduct.’ ” State v. Grubb, 111 Ohio 11
App.3d 277, 282, 675 N.E.2d 1353 (2d Dist.1996), citing State v. Poole, 33 Ohio St.2d 18, 294
N.E.2d 888 (1973); State v. Martin, 21 Ohio St.3d 91, 488 N.E.2d 166 (1986).
{¶ 29} Burrows told House that he went out after the shots stopped, and saw a car
driving away from the residence. He then returned to the house and retrieved the shotgun, took
it outside, and saw two individuals. He then fired the shotgun. Burrows did not make any
statement indicating that he thought the individuals posed a threat of imminent harm, or that he
was in imminent danger. He left the relative safety of the house and went outside to confront the
shooters, firing shots in the air to scare off anyone who might have been hiding in the vicinity.
We conclude that the jury did not lose its way in finding that Burrows had failed to prove
self-defense by a preponderance of the evidence.
{¶ 30} Furthermore, as the State points out, there is evidence in the record from which
the jury could find that even after the shooting at his house, and any imminent danger represented
thereby, Burrows maintained possession of the shotgun, transporting it to his aunt’s apartment.
A reasonable jury could have found from this fact, alone, that Burrows failed to prove
{¶ 31} Accordingly, the Third Assignment of Error is overruled.
VI. Conclusion
{¶ 32} All of Burrows’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
WELBAUM, J., concurs. 12
HALL, J., concurring:
{¶ 33} I agree with the result and the analysis of the issues that were presented by the
appellant. I write separately with regard to the third assignment of error to suggest that the
affirmative defense of self-defense, although requested by the defense, given by the court, but not
adopted by the jury, is not an adequate characterization of a defense to having a weapon under
disability. Rather, in my view, the correct defense should be classified under “justification” and
contains elements distinctively different from the self-defense instruction given. Nonetheless,
because the instruction given is what the defense requested, there is no error.
{¶ 34} I acknowledge that in State v. Hardy, 60 Ohio App.2d 325, 397 N.E.2d 773 (8th
Dist.1978) a narrow exception to having a weapon while under disability was recognized by the
Eighth District if the weapon was possessed for self-defense. There, the defendant was under a
disability and was employed in a beverage store. He was the victim of a robbery. To stop the
armed robber the defendant used the store owner’s nearby rifle, which was accessible to all
employees, and shot the robber. Hardy stands for the proposition that a person under a firearm
disability is not prevented from “acting in self-defense, when he did not knowingly acquire, have,
carry or use a firearm previously.” Id. at 330.
{¶ 35} After Hardy, Ohio courts have wrestled with its application in various factual
situations. In State v. Phelps, 2d Dist. Montgomery No. 8043, 1983 WL 2430 (May 9, 1983),
Anthony Phelps walked out onto a front porch where he had an exchange of words with an
arriving Sherwood Thornton. Phelps asked Thornton to drop the knife he was holding and, upon
receiving a negative reply, Phelps reached into his own rear pocket and pulled out a gun. Phelps
shot Thornton who subsequently died. The trial court gave a self-defense instruction for the 13
murder charge (for which Phelps was found not guilty), but not for a weapons under disability
offense. We determined that the denial of the second self-defense instruction was not error
because “Phelps had physical possession of the firearm before the confrontation with Sherwood
Thornton. His possession of the firearm was not the outgrowth of the alleged assault, and he was
in violation of the applicable statute without reference to the issue of self-defense.” Id. at *1.
Accordingly, possession of a weapon before the incident giving rise to self-defense precludes the
defense. See also State v. Conwell, 9th Dist. Summit No. 19482, 2000 WL 372310, *4 (April 12,
2000) (“Conwell's own testimony clearly showed that he purchased the shotgun far in advance of
the events that occurred....”); State v. Martz, 163 Ohio App.3d 780, 2005-Ohio-5428, 840 N.E.2d
648, ¶ 41 (5th Dist.) (“We find that self-defense is not available as a defense to having weapons
while under disability as a matter of law where an offender possessed the weapon prior to the
incident where alleged self-defense arises.").
{¶ 36} Conversely, in State v. Foster, 7th Dist. Columbiana No. 81-C-27, 1982 WL
6168 (Aug. 4, 1982), the defendant’s brother opened their door and was shot by Sam Allen. They
struggled and the gun fell on the floor as Allen escaped. The defendant, Foster, who had not seen
Allen, was awakened and learned that Allen had fled up the alley. The defendant picked up the
gun from the floor and went outside to locate Allen. Foster was returning to the house when he
was apprehended by the police. Foster argued that the trial court’s instruction on self-defense was
wrong because it included a duty to retreat and he argued he did not have any such duty in, or in
the immediate vicinity of, his home. The court of appeals found no error with the instruction but
determined the Hardy defense inapplicable anyway because Foster was never assaulted, never
saw the assailant and was outside the house looking for him. According to that analysis, 14
continued possession of a weapon after the incident giving rise to self-defense precludes assertion
of the defense. See also State v. Link, 10th Dist. Franklin No. 93AP-533, 1993 WL 540279, *4
(Dec. 28, 1993) (It was not plain error to fail to give a self-defense instruction because “a
reasonable jury could have convicted Link of having a weapon while under a disability based
upon his retention of the gun for a significant period of time after the need for self-defense
ceased.”). In my view, whether a defendant has possessed a firearm for an unreasonable amount
of time before, or after, the self-defense event is an important element that should be included in
a jury instruction and left for the jury to decide. The standard self-defense instruction does not
contain that element.
{¶ 37} Circumstances can also arise where there may be justification for temporary
possession of a firearm but the application of a traditional self-defense instruction becomes
awkward or impossible. In State v. Mick, 6th Dist. Lucas No. L-11-1034, 2012-Ohio-3296,
Mick and a friend, Collins, were working on the cage of Mick’s aggressive and agitated dog,
Sarge. When the dog was about to get loose in the vicinity of neighborhood children, Collins shot
the dog several times. It lay motionless in the cage. They went inside. When they returned, Mick,
who was under a firearm disability, also shot the dog with Collins’ weapon. In a footnote of its
opinion, the court of appeals explained that a Hardy defense would not be available because that
variety of self-defense is personal and does not extend to third persons or for other purposes. Id.
at fn 2. However, there should be allowance for the question as to whether a person prohibited
from having a firearm would be justified in temporary possession or use of a firearm to kill a
vicious animal which is attacking or about to attack another person. A self-defense instruction
does not conveniently apply. Additionally, shouldn’t a person with a firearm disability be 15
permitted to remove a firearm from a young child if no one else is present? And shouldn’t that
person be permitted to disarm one who is threatening suicide with a firearm? Those situations are
not related to a claim of self-defense and a self-defense instruction would be inadequate.
{¶ 38} From Ohio case law on justification and self-defense, see, e.g., State v. Williford,
49 Ohio St.3d 247, 551 N.E.2d 1279 (1990), the patterned Ohio self-defense instruction, Ohio
Jury Instructions Section 417.27, and from case law or instructions from other venues, see, e.g.,
U.S. v. Moore, 733 F.3d 171 (6th Cir. 2013), California Criminal Jury Instructions Nos. 3403 &
2514, I have cobbled together what I believe are the elements necessary for a jury to properly
evaluate a justification defense for the temporary possession of a firearm by someone who is
under a firearm disability. The conjunctive elements are that a defendant can be found not guilty
of prohibited possession of a firearm if he proves by a preponderance of the evidence that 1) he
acted in an emergency that he reasonably believed posed a threat of death or serious injury to
himself or someone else; 2) he did not contribute to the cause of the threat; 3) the defendant
actually believed the act of possession of the firearm was reasonably necessary to prevent the
threatened harm; 4) no adequate legal alternative of avoiding the danger of injury was available;
and 5) the defendant possessed the firearm temporarily, that is, for a period no longer than was
reasonably necessary [to avoid the danger] [for his own defense].
Copies mailed to:
Mathias H. Heck Michele D. Phipps Daniel A. Perry Hon. Charles S. Wittenberg (sitting for Judge Mary K. Huffman)