[Cite as State v. Callahan, 2016-Ohio-2934.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102900
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
REGINALD G. CALLAHAN DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585455-A
BEFORE: Boyle, J., McCormack, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: May 12, 2016 ATTORNEYS FOR APPELLANT
Carmen P. Naso Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106
Amir Gholizadeh Certified Legal Intern Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Edward D. Brydle Assistant County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} On May 6, 2014, defendant-appellant, Reginald Callahan (“Reginald”), shot
his nephew while inside the family home at Bessemer Avenue, Cleveland, Ohio, after an
altercation ensued between the two men. Reginald maintained that he acted in
self-defense. Following a bench trial, Reginald was convicted of felonious assault and
having a weapon while under disability and sentenced to five years in prison. Reginald
now appeals his felonious assault conviction on the grounds that the trial court “failed to
consider the Castle Doctrine before considering the elements of self-defense” and that his
conviction is against the manifest weight of the evidence. Finding no merit to the
appeal, we affirm.
I. Bench Trial
A. The Residence on Bessemer
{¶2} The state presented seven witnesses at trial, including the victim, Delorents
Bush, who was in his mid-twenties. According to Delorents, he was raised by his
grandmother in the home on Bessemer Avenue.1 In October 2012, Delorents’s aunt,
Pauletta Pope Callahan (“Pauletta”), and Pauletta’s husband, Reginald, moved into the
residence and took care of Delorents’s grandmother. Reginald was also going through
chemotherapy at that time.
The record reflects that Delorents’s mother had owned the house but quit- claimed the 1
deed to Delorents’s grandmother and Delorents’s uncle, who both took care of Delorents. {¶3} Delorents testified that he had no relationship with Reginald “other than
him being my aunt’s husband.” Delorents further explained that he had gotten in a
“little confrontation” with Reginald after Reginald and Pauletta moved into the residence.
Reginald confronted Delorents about Delorents being disrespectful by failing to
acknowledge him. Delorents testified that the altercation was “just verbal” and that his
grandmother intervened to end the confrontation. Delorents admitted that he did not
speak to Reginald because he did not like him. Delorents believed that Reginald was
taking advantage of the family.
{¶4} Shortly after the confrontation, Delorents temporarily moved in with his
cousin but ultimately returned to the Bessemer residence. In June 2013, Delorents
moved out again, but still maintained his bedroom at the Bessemer residence, had his mail
delivered there, and kept a key to the house.
{¶5} In November 2013, Delorents’s grandmother died. Following her death,
Delorents’s uncle, David Bush, was the sole titled owner of the house. David testified
that Delorents was supposed to move back and renovate the Bessemer house and that
Reginald and Pauletta were moving to Las Vegas. Delorents had obtained a $25,000
loan to remodel the house, and David was in agreement with the planned renovation,
including the presence of contractors at the house.
{¶6} Delorents testified that his aunt was “fine” with him bringing contractors to
the house as part of the future renovations and that she had even offered her input with
contractors that Delorents had brought to the house prior to May 6, 2014. As a courtesy, Delorents would text his aunt to let her know beforehand if he was going to the house.
The state presented text messages between Delorents and Pauletta corroborating
Delorents’s testimony. Specifically, on May 5, 2014 — the day before the shooting —
Delorents sent his aunt a text, stating “Stopping by tomorrow Aunty round 11 or a little
later.”
B. Discussion of Renovations with Contractors Sparks Heated Argument
{¶7} On May 6, 2014, a contractor and his secretary (“the contractors”) arrived at
the Bessemer residence to meet with Delorents. The contractors, who were hearing
impaired, entered the house with Delorents. According to Delorents, Pauletta opened
the front door and informed him “in a hush tone” that she did not want “anymore
contractors” at the house after today. Delorents and the contractors then proceeded
inside the house and sat at the kitchen table to discuss the plans.
{¶8} According to the contractors, after approximately five minutes into the
meeting, Pauletta interrupted the meeting, arguing with Delorents. This argument
prompted Reginald to come downstairs, resulting in Delorents engaging in a heated
exchange with Reginald, both in the kitchen and then on the staircase. The secretary
testified that Reginald, who was very angry, did not appear to be afraid of Delorents.
{¶9} According to Delorents, Reginald interrupted the meeting, confronted the
contractor, and indicated that “[n]o work is starting until we leave.” Delorents
responded by saying, “Auntie, get your husband.” Delorents testified that Pauletta did
nothing and then Reginald ran upstairs. Delorents then followed Reginald upstairs, reaching the first landing of the two staircases when Reginald responded, “If you come up
here, I’ll shoot you.” Delorents then returned downstairs and the contractors left.
C. Delorents’s Version of the Events
{¶10} After the contractor and secretary left, Reginald returned downstairs, where
he and Delorents continued to argue. At some point, Reginald pulled out a gun from his
back pocket and Delorents ultimately called his uncle David — the owner of the house —
after learning that Reginald called the police. David’s cell phone recorded a message
from Delorents, which the state played for the court. At trial, Delorents admitted to
saying, “Reggie just pulled something out on me. I am about to smack the fuck out of
him.”
{¶11} Delorents explained that he was very angry and frustrated, especially
because his aunt was telling him that “You’re wrong, you’re wrong,” yet “her husband is
standing behind her with a gun at his side threatening to shoot me.” Delorents further
testified that Reginald kept “egging him on,” threatening to change the locks and claiming
that he “pays all the bills.”
{¶12} Delorents further explained that Reginald came in the threshold area
between the living room and kitchen; Delorents was in the living room facing the kitchen
and Reginald stood in the kitchen; Pauletta was between both of them facing Delorents.
While Pauletta was arguing with Delorents, Reginald raised the gun up, prompting
Delorents to grab Pauletta by her shoulders and move her to the side. Delorents testified
that his aunt weighs “maybe 120 pounds” and that he never threw her across the room. According to Delorents, his aunt, who was right by a chair, went over the arm of the
chair, jumped back, and then turned toward Reginald for the first time. At this point,
Reginald reached around Pauletta and shot Delorents.
{¶13} Pauletta called 911 for assistance. In the 911 call played before the court,
Reginald is heard in the background saying, “If you wouldn’t have been * * * [inaudible]
* * *, you wouldn’t have been shot.” Reginald also remarked on Delorents’s attitude.
{¶14} According to Delorents, while he laid on the ground in pain, Reginald
taunted him with “trash talk,” saying such remarks as: “You a whole-ass nigga”; and
“Now who a bitch?” Believing that Reginald was going to shoot him again, Delorents
crawled from the living room to the edge of the curb. Delorents further testified that he
had removed his sweater when he first entered the house with the contractors.
{¶15} On cross-examination, Delorents acknowledged that his aunt asked him to
leave the house at least three times after the arguments ensued. Delorents testified that
he did not leave because he was waiting for the police to arrive. Delorents further
acknowledged that in the background of the 911 call made by Reginald, Delorents can be
heard speaking to his aunt, saying “I love you, but I will fuck him up.”
D. Reginald’s Statement to the Police
{¶16} Reginald was arrested on the scene where he admitted to shooting
Delorents. Reginald also agreed to provide a statement to the police after being arrested,
which was recorded and presented at trial. {¶17} Reginald first described his relationship to Delorents, stating that Delorents
“doesn’t care about me.” He explained that the incident started with Delorents
“mouthing off.” He stated that he had no intention of “going as far” as he did but
explained that Delorents “really wanted to whip my ass.”
{¶18} Reginald detailed the incident, stating that he went back up and downstairs
approximately five times before shooting Delorents. He stated that prior to using the
gun, he grabbed a knife but then put it down. Reginald admitted buying the gun a
couple weeks earlier from someone on the street. He further explained that, although he
brought the gun downstairs, he never intended to use it; he simply wanted to scare
Delorents. Reginald stated that during his final trip downstairs, he placed the gun in the
kitchen drawer but grabbed it when Delorents “tossed” Pauletta. Reginald then
described a situation where both “fear overcame him” and Delorents “pressed up against
the pistol.” According to Reginald, Delorents “walked into the gun” and Reginald
reacted, firing the weapon. Reginald expressed remorse but claimed that he was afraid
for his life and his wife’s life. He further acknowledged regret in having the “damn gun
in the first place.”
E. Pauletta’s Version of the Events
{¶19} Reginald presented Pauletta’s testimony in support of his claim of
self-defense. Although Pauletta’s account of the confrontation between Delorents and
Reginald differed in certain aspects, she also corroborated certain key facts, such that Delorents had authority to enter the home on May 6 and that Reginald retrieved a gun at
some point during the verbal altercation.
{¶20} But unlike Delorents’s testimony — casting Reginald as erratic and the
primary agitator, Pauletta painted a drastically different picture. According to Pauletta,
the first argument erupted when she told Delorents that any renovations to the house had
to wait until after they moved out, including any work on the roof. Pauletta based this
decision on the fact that Reginald gestured “no” to any work starting at the home.
Delorents became very irate, stating that “I’m tired of this motherfucker always getting in
the way, always blocking something.”
{¶21} At this point, Reginald returned down the stairs to “maybe like the third
step.” Delorents yelled at Reginald to return upstairs and then “ran up” after him.
According to Pauletta, she has never seen Delorents so angry. Pauletta followed
Delorents up the stairs, pulling on him to come back down. At this point, Reginald was
standing in the doorway of his bedroom. Delorents returned downstairs with Pauletta,
where Delorents called David, saying “that motherfucker pulled a gun, I am going to fuck
him up.”
{¶22} When Delorents called David, Reginald simultaneously called 911 while
sitting on the stairs.
{¶23} Pauletta testified that Delorents was very upset and crying. Pauletta further
explained that she told Delorents to leave many times and questioned why he was treating
his family this way. Delorents responded that “he hates that motherfucker.” Pauletta testified that she told Delorents that he was wrong and pushed him toward the living room
and front door from the kitchen area. Reginald returned to the kitchen and ultimately
grabbed a knife while Pauletta and Delorents argued. According to Pauletta, this did not
“dissuade” Delorents — it only enraged him further. Pauletta testified that Delorents
then took off his sweater and headed toward Reginald. Pauletta further explained that
she was between Delorents and Reginald so Delorents threw her to the ground, rushing
toward Reginald. At this point, Reginald shot Delorents at close range in the upper left
abdomen.
II. Presumption of Self-Defense Under Castle Doctrine
{¶24} In his first assignment of error, Reginald argues that the “trial court erred in
failing to consider the Castle Doctrine before considering the elements of self-defense.”
{¶25} In Ohio, self-defense is an affirmative defense that a defendant must prove
by a preponderance of the evidence. R.C. 2901.05(A); State v. Willford, 49 Ohio St.3d
247, 249, 551 N.E.2d 1279 (1990). To succeed on a claim of self-defense, a defendant
must establish the following three elements: (1) no fault in creating the situation giving
rise to the affray; (2) a bona fide belief that he or she was in imminent danger of death or
great bodily harm and that the only means of escape from such danger was in the use of
force; and (3) no violation of any duty to retreat or avoid the danger. State v. Barnes, 94
Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).
{¶26} R.C. 2901.09(B), also known as the “Castle Doctrine,” creates an exception
to the general duty to retreat (the third element), and it states in pertinent part: 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.
{¶27} R.C. 2901.05(B)(1) further explains that, subject to two exceptions
contained in R.C. 2901.05(B)(2), a defendant is entitled to a presumption of self-defense
“if the person against whom the defensive force is used is in the process of unlawfully
and without privilege to do so entering, or has unlawfully and without privilege to do so
entered, the residence * * *.” Under R.C. 2901.05(B)(2)(a), however, this presumption
“does not apply if the person against whom the defensive force is used has a right to be
in, or is a lawful resident of, the residence * * *.” Further, “[t]he presumption set forth
in * * * [R.C. 2901.05(B)(1)] is a rebuttable presumption and may be rebutted by a
preponderance of the evidence.” R.C. 2901.05(C).
{¶28} Reginald argues that he was entitled to a presumption that he acted in
self-defense because the shooting occurred in his residence after Delorents had been
instructed to leave. Relying on the trial court’s statements in announcing the verdict,
Reginald contends that the trial court failed to even consider the Castle Doctrine and that
the failure to properly apply the Castle Doctrine constitutes reversible error. Reginald,
however, misconstrues the trial court’s statement and the circumstances entitling a
defendant to the presumption of self-defense.
{¶29} The presumption of self-defense contained in R.C. 2901.05(B)(1) does not
apply because Delorents did not “unlawfully and without privilege” enter Reginald and
Pauletta’s residence. By all the witnesses’ accounts, including Pauletta’s, Delorents entered the home with the express privilege to do so. Reginald’s argument, however,
does not focus on Delorents’s entry; instead, he argues that once Pauletta told Delorents
to leave, he became a trespasser and thus was unlawfully in the house. He likens the
situation to that in which an invitee becomes a trespasser for purposes of aggravated
burglary. See State v. Holloway, 38 Ohio St.3d 239, 243, 527 N.E.2d 931 (1989), citing
State v. Stefan, 31 Ohio St. 111, 509 N.E.2d 383 (1987).
{¶30} But as recently recognized by the First Appellate District, “the trespassing
statute speaks to a defendant entering or remaining without privilege.” State v. Everett,
1st Dist. Hamilton No. C-140275, 2015-Ohio-5273, ¶ 14, citing R.C. 2911.21(A). “In
contrast, R.C. 2901.05(B)(1) looks to the status of the person against whom force is used
when [he or] she entered the building.” Id. Ohio courts have consistently applied the
statute this way, recognizing that the presumption contained in R.C. 2901.05(B)(1)
“clearly contemplates a scenario of a home/car invasion — i.e., the person against whom
the defensive force is used is in the process of unlawfully and without privilege entering
(or has entered) the defendant’s residence or vehicle.” State v. Nye, 3d Dist. Seneca No.
13-13-05, 2013-Ohio-3783, ¶ 29; see also State v. Hogg, 10th Dist. Franklin No.
11AP-50, 2011-Ohio-6454, ¶ 36. Thus, because Delorents entered the home lawfully,
the R.C. 2901.05(B)(1) presumption does not apply.
{¶31} But even assuming arguendo that the presumption of self-defense applied
and that the burden had been shifted to the prosecution to prove Reginald did not act in
self-defense, the record shows that the prosecution presented evidence to adequately rebut the presumption by a preponderance of the evidence. See R.C. 2901.05(B)(3). Indeed,
the state’s evidence demonstrated that Reginald’s conduct in the affray did not meet all
three of the elements necessary for self-defense.
{¶32} First, turning to the first element of a claim for self-defense, the state’s
evidence established that Reginald, who did not have a favorable relationship with
Delorents, caused the situation giving rise to the affray. According to the state’s
witnesses, Reginald was very upset about Delorents moving forward with any renovations
while Reginald and Pauletta still lived in the house and erratically engaged in a verbal
argument with Delorents. Despite the profanities being exchanged between the parties,
Reginald clearly escalated the situation by retrieving and then brandishing a gun,
threatening to shoot Delorents. The state further established that, after Reginald
retrieved the gun, he continued to agitate Delorents. According to Delorents, as soon as
one argument ended, Reginald started another. Moreover, based on Reginald’s own
admission, the entire situation could have been avoided if he never had brandished the
gun in the first place.
{¶33} Second, the state also demonstrated that Reginald did not have reasonable
grounds to believe he was in imminent danger of death or great bodily harm and that his
only reasonable response was the use of deadly force. Unlike Reginald, Delorents was
unarmed. Further, the state’s evidence, including Reginald’s own statements during the
911 calls, demonstrated that Reginald despised Delorents — not that he feared him. As for Delorents’s refusal to leave the house, he knew that the police were on their way to
the home and was waiting to meet with them.
{¶34} Accordingly, we find that the trial court properly recognized that the Castle
Doctrine presumption of self-defense under R.C. 2901.05(B)(1) did not apply in this case
and that the record did not support a claim of self-defense. The first assignment of error
is overruled.
III. Manifest Weight of the Evidence
{¶35} In his second assignment of error, Reginald argues that his felonious assault
conviction is against the manifest weight of the evidence because the evidence
overwhelmingly demonstrates that he acted in self-defense and defense of his wife. We
disagree.
{¶36} A challenge to the manifest weight of the evidence attacks the credibility of
the evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so, it must
review 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 miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Id., quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being
against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the
conviction.” Id.
{¶37} Reginald argues that he proved the affirmative defense of self-defense by a
preponderance of the evidence through Pauletta’s testimony. He contends that
Delorents’s account of the incident was simply not credible and should have been
disregarded. The trier of fact, however, believed Delorents’s testimony, as it was free to
do. “Although an appellate court must act as a ‘thirteenth juror’ when considering
whether the manifest weight of the evidence requires reversal, it must give great
deference to the factfinder’s determination of the witnesses’ credibility.” State v.
Fisher, 8th Dist. Cuyahoga No. 101365, 2015-Ohio-597, ¶ 43.
{¶38} Moreover, aside from Pauletta’s obvious bias in favor of her husband, we
cannot agree that her testimony established the elements of self-defense even if believed.
As discussed above, the record overwhelmingly establishes that Reginald caused the
situation giving rise to the affray. The verbal altercation escalated into a life-threatening
situation only after Reginald retrieved and then brandished his gun. Further, based on
Reginald’s own statements recorded during the 911 calls as well as own statement to the
police, the trier of fact reasonably concluded that Reginald did not have reasonable
grounds to believe he (or his wife) was in imminent danger of death or great bodily harm
that warranted the use of deadly force. And although Delorents was clearly very
frustrated and angry, his conduct amounted to nothing more than verbal threats. {¶39} This is not the exceptional case where the trier of fact lost its way. The
second assignment of error is overruled.
{¶40} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
TIM McCORMACK, P.J., and PATRICIA ANN BLACKMON, J., CONCUR