State v. Clark

2016 Ohio 948

Opinion

[Cite as State v. Clark, 2016-Ohio-948.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-150318 TRIAL NO. B-1306524 Plaintiff-Appellee, : O P I N I O N. vs. :

TERRY CLARK, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 11, 2016

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ravert J. Clark, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

SYLVIA S. HENDON, Presiding Judge.

{¶1} Following a bench trial, defendant-appellant Terry Clark was

convicted of murder with accompanying weapon specifications, two counts of

felonious assault with accompanying weapon specifications, and having a weapon

while under a disability. He was sentenced to an aggregate term of 18 years’ to life

imprisonment.

{¶2} Clark has appealed, arguing in four assignments of error that his

constitutional right to a public trial was violated; that his right to be present during

all stages of his trial was violated; that his convictions were against the manifest

weight of the evidence; and that the use of felonious assault as the predicate offense

for his felony-murder conviction violated his due-process rights. Finding no merit to

Clark’s arguments, we affirm the trial court’s judgment.

Facts and Procedure

{¶3} The evidence presented at trial established that, on October 12, 2013,

Clark, Lamont Adams, Essense Jones, and several other individuals were partying in

the parking lot of an apartment complex on Lantana Avenue in the Cincinnati

neighborhood of College Hill. Cincinnati Police Officer Anthony Egner was

dispatched to the party in response to a noise complaint. Numerous party-goers,

including Clark and Jones, fled upon Officer Egner’s arrival, but Adams remained on

the scene. Officer Egner noticed a Dodge Charger in the parking lot with an open

driver’s door. He examined the car and saw Clark’s identification card on the front

seat. After the police left, those who had fled returned to the scene. Clark found that

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his car keys and cell phone were missing from the Dodge Charger, and he asked

everybody at the scene if they had taken his items.

{¶4} The following evening, October 13, 2013, Clark was still attempting to

ascertain what had happened to his cell phone and keys. He called Jones, who had

“hooked up” with Adams, and was at the time in Adams’ car with Adams and their

friend Daniko Mizell on St. Elmo Street. Adams got on the phone and gave Clark

their location. Clark arrived within minutes. He approached Adams’ vehicle on the

driver’s side, speaking to Adams, Jones, and Mizell through the open driver’s

window. Clark began asking them about his missing items. Jones suggested that the

police had taken his belongings, but Clark stated that he had called the police and

they had denied taking anything from the Dodge Charger the previous evening. The

discussion began to escalate, and Jones exited from the car after Clark said, “You

better quit playing before I shoot one of you all.” Prior to her exit, she never heard

Adams threaten Clark or saw him pull out a weapon.

{¶5} Jones heard a gunshot as she walked away. When she turned around,

Clark ran past her. Jones saw Mizell running in the other direction and Adams

laying on the ground near his car. Shortly after the shooting, Jones received another

call from Clark. She did not answer, and Clark left an apparently inadvertent

voicemail in which he can be heard stating that “I shot his ass. Well, he knew I was

gonna shoot him, they keep lying.” Officer Egner responded to the shooting and

found Adams lying face-up on the street, already deceased. No weapons were found

at the scene.

{¶6} Clark was apprehended by the Cincinnati Police Fugitive Unit on

October 25, 2013. He was charged with the following offenses: murder pursuant to

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R.C. 2903.02(A) and (B), felonious assault pursuant to R.C. 2903.11(A)(1) and

(A)(2), and having a weapon while under a disability pursuant to R.C. 2923.13(A)(2)

and (A)(3). Weapon specifications accompanied all charges for murder and

felonious assault.

{¶7} The case proceeded to a bench trial. Clark testified on his own behalf

and stated that he had shot Adams in self-defense. He indicated that when he had

confronted Adams about taking his cell phone and keys, Adams revealed a gun and

pointed it at Clark. Clark testified that he had shot Adams only because he believed

that Adams was about to shoot him.

{¶8} The trial court acquitted Clark of murder pursuant to R.C. 2903.02(A)

and having a weapon while under a disability pursuant to R.C. 2923.13(A)(3). He

was convicted of the remaining offenses and sentenced to an aggregate term of 18

years’ to life imprisonment.

Courtroom Closure

{¶9} In his first assignment of error, Clark argues that the trial court’s

closure of the courtroom violated his constitutional right to a public trial.

{¶10} During trial, the court became aware of an episode of witness

intimidation that had occurred. The state had intended to call Antonio Buford to

testify as a witness in its case. Prior to testifying, Buford had been videotaped

entering and exiting the courtroom by an individual named Kevin Abernathy.

Abernathy posted the video of Buford on Facebook with commentary indicating that

Buford was a snitch. After learning of this incident, the court ordered that anyone

entering the courtroom had to present a valid form of identification, and it banned

cell phones from the courtroom. The court then ordered all spectators to exit from

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the room. They were allowed to return immediately upon showing a valid form of

identification to sheriff deputies at a security table outside the courtroom. Clark’s

grandmother did not have any identification on her person and was unable to reenter

the courtroom.

{¶11} Clark contends that the trial court’s closure of the courtroom and

requirement that all spectators show identification violated his constitutional right to

a public trial. We disagree with Clark’s characterization of the trial court’s actions.

After becoming aware of an episode of witness intimidation, the court implemented a

measure to protect the safety of all witnesses and to prevent further witness

intimidation. No actual closure of the courtroom occurred. The safety measures

implemented were narrowly tailored, allowed the courtroom to remain open to the

public, and were well within the discretion accorded to the trial court to control the

proceedings before it. See State v. Brewster, 1st Dist. Hamilton Nos. C-030024 and

C-030025, 2004-Ohio-2993, ¶ 70. We hold that the trial court’s requirement that all

spectators present a valid form of identification before entering the courtroom did

not infringe upon Clark’s right to a public trial. See State v. Conway, 108 Ohio St.3d

214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 100-101. The first assignment of error is

overruled.

Defendant’s Presence in the Courtroom

{¶12} In his second assignment of error, Clark argues that the trial court

violated his right to be present at all stages of the proceedings. Crim.R. 43(A)

provides that “the defendant must be physically present at every stage of the criminal

proceeding and trial, including the impaneling of the jury, the return of the verdict,

and the imposition of sentence.”

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{¶13} During Clark’s trial, in between witnesses called by the state, the court

conducted a hearing to determine whether there was probable cause to charge Kevin

Abernathy with contempt based on his actions. Clark was not present during this

probable-cause hearing, and he contends that his absence violated Crim.R. 43.

{¶14} The probable-cause hearing against Abernathy was a collateral

proceeding and was entirely unrelated to the charges Clark faced. Clark’s counsel

conceded as much at the time, stating on the record that “I don’t think it has to be

part of this record and it has nothing to do with this trial.” Because the probable-

cause hearing was a collateral proceeding unrelated to Clark’s trial, his absence did

not violate Crim.R. 43(A). See State v. Hale, 1st Dist. Hamilton No. C-810856, 1982

Ohio App. LEXIS 14604 (Dec. 15, 1982) (holding that a defendant’s Crim.R. 43(A)

right to be present at all stages of the proceedings was not violated when the trial

court conducted contempt proceedings against the prosecutor in its chambers,

outside of the defendant’s presence, during the defendant’s trial).

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

Self-Defense

{¶16} In his third assignment of error, Clark argues that his conviction for

murder was against the manifest weight of the evidence. When reviewing the

manifest weight of the evidence, an appellate court must weigh all evidence and

reasonable inferences and consider the credibility of the witnesses to determine

whether the trier of fact lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997).

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{¶17} Clark was convicted of murder under R.C. 2903.02(B), which provides

that “[n]o 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.” The underlying offense of violence that Clark was

charged with in this case was felonious assault, a felony of the second degree.

{¶18} Clark admits to shooting Adams, but he argues that the record

established that he had acted in self-defense. A defendant is entitled to rely on the

affirmative defense of self-defense when he establishes that he was not at fault in

creating the violent situation, that he had a bona fide belief that he was in danger of

imminent death or great bodily harm and that the only means of escape was by use of

force, and that he did not violate any duty to retreat or avoid the danger. See State v.

Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997). The defendant must prove

each element of self-defense by a preponderance of the evidence. State v. Miller, 1st

Dist. Hamilton No. C-070691, 2008-Ohio-5899, ¶ 15.

{¶19} Following our review of the record, we hold that Clark failed to prove

by a preponderance of the evidence that he had acted in self-defense, and that the

trial court did not err in rejecting Clark’s self-defense argument. First, Clark was at

fault in creating the violent situation. He called Jones and Adams to determine their

whereabouts, and he initiated the confrontation about his missing belongings.

Second, other than Clark’s self-serving testimony, the record contains no evidence

that Clark was in danger of imminent death or great bodily harm. Jones never saw

Adams threaten Clark or produce a weapon while speaking with him. And no

weapon was found on or around Adams’ body after he was killed.

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{¶20} Clark’s conviction for murder was not against the manifest weight of

the evidence. The third assignment of error is overruled.

{¶21} In his fourth assignment of error, Clark argues that the use of felonious

assault as the predicate offense for his felony-murder conviction violated his due-

process rights. But Clark has not provided any argument, reference to the record, or

citation to legal authority in support of this assignment of error, as is required by

App.R. 16.1(A)(3). Consequently, the assignment of error is overruled. See Guarino-

Wong v. Hosler, 1st Dist. Hamilton No. C-120453, 2013-Ohio-1625, ¶ 20.

{¶22} Having overruled all of Clark’s assignments of error, we affirm the

judgment of the trial court.

Judgment affirmed.

CUNNINGHAM and DEWINE, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.