[Cite as State v. Clarke, 2024-Ohio-2921.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230646 TRIAL NO. B-2303846 Plaintiff-Appellee, : O P I N I O N. vs. :
DARREN CLARKE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 2, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Roughly 30 minutes after R.W. and defendant-appellant Darren Clarke
engaged in an altercation that left Clarke dazed on the ground, Clarke re-ignited the
altercation and attacked R.W. Following a bench trial, the trial court convicted Clarke
of felonious assault. On appeal, Clarke argues that his conviction is against the
manifest weight of the evidence because he acted in self-defense, or that he attacked
R.W. in a sudden fit of rage. We disagree. First, we hold that a fear of great bodily harm
at the hands of an incapacitated person is objectively unreasonable. Second, kicking
an incapacitated person in the head is excessive force. Third, a 30-minute period after
a fight is a sufficient cooling-off period to dampen any passion or rage.
{¶2} Clarke also contends that he received constitutionally ineffective
assistance of counsel because his attorney failed to present expert testimony of his
mental state. But on direct appeal, Clarke can only speculate about what his
hypothetical expert would explain. Therefore, he cannot show that there is a
reasonable probability that the outcome of his trial would have been different.
{¶3} We overrule both assignments of error and affirm Clarke’s conviction.
I. Facts and Procedure
{¶4} After two late-night fights between Clarke and R.W. near elevators on
the second floor of an apartment building, the state charged Clarke with felonious
assault in violation of R.C. 2903.11(A)(1).
{¶5} At the bench trial, the state built its case primarily around surveillance
footage from inside of the apartment building. A responding officer explained that the
cameras near the elevators captured an initial “altercation” between Clarke and R.W.
inside one elevator at roughly 10:45 p.m. The surveillance footage captured by a
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hallway camera shows Clarke falling out of the elevator onto his back. Then R.W. stood
in the elevator doorway over a visibly dazed Clarke. R.W. shoved Clarke’s legs out of
the elevator and walked to an adjacent elevator. Clarke stumbled and struggled to
maintain his balance as he tried to stand. R.W. left in an elevator as a bystander helped
Clarke to his feet.
{¶6} Roughly 30 minutes later, the footage shows R.W. inside of a different
elevator. As an officer testified, R.W.’s hands were “down to his sides” and relaxed,
nonchalantly tapping a rhythm with his right hand. Clarke exited from a second-floor
apartment and walked to the elevators. An elevator door opened in front of Clarke.
R.W. left the elevator and took two steps into the hallway. Clarke, then face-to-face
with R.W., paused briefly before punching R.W., knocking him to the ground. As R.W.
was motionless on the ground, Clarke, using great force, stomped on R.W.’s head five
times. R.W. continued lying motionless and appeared to be unconscious.
{¶7} Clarke took a five-second break to use his cell phone, and then resumed
his attack. Meanwhile, a resident came out of her apartment nearby and rushed to stop
Clarke. Clarke held off the resident as he swung his leg back and kicked R.W.’s head
three times with enough force to rotate R.W.’s body roughly 45 degrees. R.W. was
initially lying parallel to the elevator doors after the first punch but ended up
perpendicular to the elevators. Clarke continued fending off the resident as he kicked
R.W. in the head two more times with force that caused R.W.’s head to jerk back and
forth. With each kick, blood splattered across the hallway.
{¶8} Five more residents rushed to the scene as Clarke hovered over R.W.
and then stomped on his head one final time. In total, Clarke delivered one punch and
13 kicks to R.W.’s head in 40 seconds. As multiple residents restrained Clarke, several
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others attended to R.W., who was lying in a pool of blood. Three residents checked to
see if R.W. had a pulse.
{¶9} An officer testified that R.W. had to be intubated. When an officer
interviewed R.W. at a physical rehabilitation center, he had no memory of that night.
That officer also interviewed Clarke, who said that his “head still hurt” when he saw
R.W. exit from the elevator and that he was angered by the fact that R.W. failed to
“acknowledg[e] the prior interaction.”
Self-defense and mitigation evidence
{¶10} Clarke raised two arguments in his defense. First, he argued that he
acted in self-defense. Alternatively, Clarke asserted that he acted in a sudden fit of
rage, which mitigated the severity of the offense.
{¶11} In support, Clarke’s friend testified that she was visiting Clarke on the
night of the fights to help Clarke unpack, as he had just moved into his apartment. She
described the first altercation between Clarke and R.W. on the elevator. She explained
that R.W. was “intoxicated,” “F’d up,” and that she “just didn’t like the look on his
face.” While she admitted that she and Clarke had consumed alcohol, she testified that
R.W. “was very intoxicated” and that she “could smell it off of him.”
{¶12} According to Clarke’s friend, R.W. warned Clarke that he was too close
to him in the elevator. She recalled that Clarke asked R.W. what he meant, and R.W.
responded, “I said you too close. * * * [B]ack up. Back the ‘F’ up.” She testified that
Clarke told R.W. to “chill out,” and R.W. threatened to “ ‘F’ [Clarke] up” and Clarke
should “know I kill people out here.” Next, according to the friend, R.W. attacked
Clarke and “just kept hitting him,” so she pushed her way out of the elevator. Clarke’s
friend testified that she called the police, but they never arrived.
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{¶13} Clarke testified that he had “no clue” who R.W. was, or why he attacked
Clarke in the elevator. The only thing he recalled was being hit by R.W.—he had no
recollection of what followed. After the first altercation, Clarke checked on his friend
and then went to a second-floor apartment across from the elevators.
{¶14} Clarke explained that he was attempting to return to his fifth-floor
apartment when the elevator doors opened, and R.W. emerged. He testified that, had
he known that R.W. was on the elevator, he would have used the stairs.
{¶15} According to Clarke, R.W. commented, “What’s up, motherfucker” as he
walked off the elevator, which made Clarke afraid of what R.W. would do next and
believe that R.W. would attack him again. Clarke testified that he was “a tad bit” angry
“but more so worried that I am going to be attacked again.” Clarke was unsure of what
R.W. was going to do, so he “reacted.” He said that he struck R.W. out of fear and to
prevent further injury—Clarke described it as “an out-of-body experience.” Clarke
testified that he continued to kick R.W. because he did not “know [R.W.]. He just
attacked me out of nowhere so I don’t know what he’s capable of.”
{¶16} The trial court found Clarke guilty and explained its rejection of Clarke’s
self-defense and mitigation defenses. Beginning with the first altercation, the trial
court found it “weird” that R.W. walked “over” Clarke and did not touch Clarke in the
hallway. While it noted that Clarke’s and his friend’s testimony was somewhat self-
serving, it found that “something happened in there.”
{¶17} But the trial court found that Clarke was not acting in a sudden fit of
rage because there was not “enough time for him to say what’s up, motherfucker,
before you hit him.” The trial court continued, “And even if he did he’s walking away
from you and it’s a half an hour later. And he walks away from you and you clock him
5 OHIO FIRST DISTRICT COURT OF APPEALS
and he’s down, but you don’t stop.” And Clarke was “fine walking out of that -- [his]
friend’s [apartment].”
{¶18} The trial court also found that Clarke’s force was excessive. It
emphasized that R.W. was “down and you keep going and you keep going.” Assuming
Clarke “thought he was going to come and get you, whatever, * * * you can’t do what
you did to him. That is not reasonable.”
{¶19} The trial court sentenced Clarke to four-to-six years in prison. Clarke
appeals in two assignments of error, claiming that his conviction was against the
manifest weight of the evidence and that he received ineffective assistance of counsel.
II. Law and Analysis
{¶20} In his first assignment of error, Clarke argues that his felonious-assault
conviction is against the manifest weight of the evidence. First, he maintains that the
state failed to disprove his self-defense claim. The state disagrees and contends that
“the video essentially speaks for itself.” Second, he argues that he should have been
convicted of aggravated assault as a lesser offense.
A. Clarke’s fear of harm became unreasonable, and his force was excessive
{¶21} The trial court found that the state disproved Clarke’s self-defense
claim, so we must determine whether that finding is against the manifest weight of the
evidence. State v. Warth, 1st Dist. Hamilton No. C-220477, 2023-Ohio-3641, ¶ 37. To
do so, we must review “ ‘the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and determine whether, in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
6 OHIO FIRST DISTRICT COURT OF APPEALS
trial ordered.’ ” State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997,
¶ 59, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶22} Clarke had the initial burden of producing evidence tending to support
that (1) he did not create the situation leading to the affray; (2) he sincerely believed
he was in imminent danger of great bodily harm or death from which he could escape
only by using force; and (3) he did not violate a duty to retreat. State v. Gowdy, 1st
Dist. Hamilton No. C-230644, 2024-Ohio-1765, ¶ 21. If Clarke met this initial burden
of production, the burden shifted to the state to disprove any of the self-defense
elements beyond a reasonable doubt. Warth at ¶ 29.
{¶23} To succeed on his self-defense claim, Clarke’s belief that he faced
imminent danger of death or great bodily harm had to be an honest belief, and
objectively reasonable. State v. Mitchell, 2023-Ohio-2604, 222 N.E.3d 156, ¶ 24 (1st
Dist.). And a defendant’s “force must be reasonably proportionate to the threat.” In re
J.S., 1st Dist. Hamilton Nos. C-230482, C-230483, C-230484, C-230485 and C-
230486, 2024-Ohio-1764, ¶ 23; see In re J.P., 1st Dist. Hamilton Nos. C-220647 and
C-220648, 2023-Ohio-4816, ¶ 25; see also State v. Terry, 1st Dist. Hamilton No. C-
220379, 2023-Ohio-2074, ¶ 15.
{¶24} It is hard to imagine a viable self-defense claim when the defendant
continues using force after the victim appears to lose consciousness. We have rejected
a defendant’s self-defense claim, in part, because the defendant “continued to strangle
[the victim] after [the victim] had been rendered unconscious.” State v. Griffin, 175
Ohio App.3d 325, 2008-Ohio-702, 886 N.E.2d 921, ¶ 30 (1st Dist.). It is unreasonable
to fear great bodily harm from a person lying motionless on the ground.
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{¶25} Moreover, Ohio courts have held that “kicking an unconscious person
in the head is excessive force.” State v. Johnson, 6th Dist. Lucas No. L-08-1325, 2009-
Ohio-3500, ¶ 13, citing State v. Damron, 4th Dist. Ross No. 06CA2903, 2007-Ohio-
1187, ¶ 1. In Johnson, the defendant did not act in self-defense when witnesses testified
that the victim “was punched ten times and kicked fifteen more times, all the while
lying helpless and unconscious on the ground.” Id. at ¶ 14. In Damron, the defendant
was not acting in self-defense when, according to a witness, he kicked the victim who
was “unconscious on the ground, not moving and not fighting back.” Damron at ¶ 12.
Recently, the Eighth District affirmed a conviction where “video evidence depicted
[the victim] lying on the ground, defenseless and not taking any actions to defend
herself as [the defendant] repeatedly hit her.” State v. Fadel, 8th Dist. Cuyahoga No.
112725, 2024-Ohio-730, ¶ 42.
{¶26} Nothing in the surveillance footage suggests that the trial court lost its
way when it rejected Clarke’s self-defense claim. First, R.W. collapsed to the ground
after the initial punch and appeared to lose consciousness. The footage shows Clarke
kicking and stomping on R.W.’s head, taking a short break, and then resuming his
attack. While Clarke testified that he acted out of fear because R.W. might get back up,
Clarke was able to pause his attack and attempt a phone call. Assuming that Clarke
did, in fact, hold a subjective belief that R.W. could retaliate, that R.W. was motionless
on the floor as Clarke used his phone should have dispelled that belief. And like the
defendants in Johnson, Damron, and Fidel, Clarke used excessive force.
{¶27} The trial court’s findings, and ultimate rejection of Clarke’s self-defense
claim, are consistent with the weight of the evidence.
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B. There was a sufficient cooling-off period to dampen Clarke’s passion and rage
{¶28} Clarke also argues that “he acted in a sudden fit of rage,” which makes
him guilty of aggravated assault, a lesser included offense of felonious assault. A
defendant can be found not guilty of the offense charged, “but guilty of an inferior
degree thereof, or of a lesser included offense.” Crim.R. 31(C); see R.C. 2945.74.
{¶29} The trial court convicted Clarke of felonious assault in violation of R.C.
2903.11(A)(1), which makes it a crime to “knowingly * * * cause serious physical harm
to another.” Unless the victim is a law enforcement officer, felonious assault is a
second-degree felony. R.C. 2903.11(D)(1)(a).
{¶30} As an inferior offense, aggravated assault is a fourth-degree felony and
identical to felonious assault, “except for the additional mitigating element of serious
provocation.” State v. Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d
627, ¶ 25 (8th Dist.), quoting State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294
(1988), paragraph four of the syllabus. Specifically, the offender must cause the
physical harm “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.” R.C. 2903.12(A)(1).
This “render[s] the provoked defendant less worthy of blame and subject to less
punishment.” State v. Smith, 168 Ohio App.3d 141, 2006-Ohio-3720, 858 N.E.2d
1222, ¶ 44 (1st Dist.). But “the defendant must react suddenly”—a provocation defense
is not available when there is a sufficient cooling-off period. Id. at ¶ 48.
{¶31} What constitutes a serious provocation “ ‘is a factual inquiry that
contains both objective and subjective components.’ ” State v. Thompkins, 1st Dist.
Hamilton No. C-220307, 2023-Ohio-2603, ¶ 19, quoting Smith at ¶ 46. Beginning with
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the objective component, a serious provocation is an event “intense enough to cause
an ordinary person to lose control of their emotions, acting out of passion rather than
reason.” Id., citing Smith at ¶ 46. When determining if a provocation was objectively
reasonable, this court “does not consider the defendant’s individual characteristics,
such as short-temperedness.” Id. In Smith, we explained that “[p]ast altercations and
past verbal threats do not satisfy the test for sufficient provocation where there is
sufficient time for cooling off.” Smith at ¶ 48. Likewise, “[w]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” Id.
{¶32} Turning to the subjective component, this court must consider both the
defendant’s emotional and mental state and the circumstances surrounding the
incident to determine whether the defendant acted under sudden passion or a fit of
rage. Id. at ¶ 20. A defendant’s “fear alone is insufficient to show that a defendant acted
under a sudden passion or fit of rage.” State v. Rhymer, 1st Dist. Hamilton No. C-
200164, 2021-Ohio-2908, ¶ 34; see Smith at ¶ 48.
{¶33} Clarke argues that he attacked R.W. in response to R.W.’s initial
unprovoked attack in the elevator and R.W.’s subsequent taunt 30 minutes later.
Clarke argues that the provocation in this case is similar to the evidence of provocation
in Rhymer. In Rhymer, this court held that an objectively serious provocation
preceded James Rhymer’s killing Thomas Landacre because
Landacre was dating the mother of Rhymer’s child and was a father
figure to that child. * * * Landacre had previously threatened him with
violence, had texted him a picture of his penis, had broken [the mother
of Rhymer’s child]’s car windows, and had tried to kill [Rhymer’s child].
10 OHIO FIRST DISTRICT COURT OF APPEALS
Landacre showed up to the custody exchange uninvited, extremely
agitated, and under the influence of drugs. Rhymer testified that
Landacre challenged him to a fight in front of [Rhymer’s child], yelling,
“There you are you, you are hiding from me, I found you, little pussy
bitch, come on pussy bitch, let’s do this right now, let’s do this
motherfucker.” Furthermore, Rhymer testified that Landacre pushed
him and tried to grab the firearm from him.
Rhymer at ¶ 32. While Clarke likens the facts of this case to Rhymer, the victim’s
statements in Rhymer were highly inflammatory and deeply personal, in contrast to
R.W.’s alleged taunt of “what’s up, motherfucker?”
{¶34} Plus, the trial court questioned whether R.W. made that remark. While
Clarke testified that R.W.’s remark prompted him to attack R.W., the trial court
explained, “I don’t think there’s enough time for him to say what’s up, mother fucker,
before you hit him. I don’t think he could have said that. From the video I don’t think
there’s enough time left for him to say that.” And elsewhere, the trial court questioned
the credibility of Clarke’s testimony. It is well established that this court will presume
in a bench trial, the trial court is in the best position to view the witnesses’ manner and
demeanor, account for inconsistencies, and determine witness credibility. State v.
Nettles, 1st Dist. Hamilton No. C-180535, 2019-Ohio-3682, ¶ 17. The footage does not
contradict or undermine the trial court’s finding. And absent a taunt, the only fact
supporting Clarke’s provocation theory is the initial fight in the elevator. Ohio courts
have routinely held that “past incidents * * * are not sufficient” to show a serious
provocation. State v. Mitchell, 6th Dist. Lucas No. L22-1166, 2023-Ohio-3543, ¶ 53.
11 OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Finally, Ohio courts have held that “fifteen to twenty minutes after [a]
fight” is a sufficient cooling-off period. See State v. Maldonado, 8th Dist. Cuyahoga
No. 108907, 2021-Ohio-1724, ¶ 39; see also State v. Patterson, 10th Dist. Franklin No.
15AP-1117, 2016-Ohio-7130, ¶ 40 (collecting cases). The trial court appeared to find
that Clarke had sufficient time to cool off after the first fight. Specifically, it explained
that the first fight “couldn’t have been that bad because [Clarke’s friend] left you and
a half hour goes by. So if you’re still pissed off about being assaulted, you don’t call the
police. You don’t look for the police. You stick around and go get some smokes.” The
trial court’s findings are consistent with Ohio law.
{¶36} As the trial court noted, something happened when Clarke first
encountered R.W. in the elevator. We do not doubt that Clarke attacked R.W. in
response. But 30 minutes had passed between that fight and Clarke’s attack, which
was a reasonably sufficient time for Clarke’s passion to cool. We defer to the trial
court’s finding that R.W. did not challenge Clarke when he stepped off the elevator.
We hold that the trial court did not lose its way when it found that Clarke was not
acting in a sudden fit of rage when he attacked R.W.
{¶37} Clarke’s conviction is not against the manifest weight of the evidence.
We overrule Clarke’s first assignment of error.
C. Speculation does not establish ineffective assistance of counsel
{¶38} In his second assignment of error, Clarke claims that his trial attorney
was ineffective in violation of his right to counsel for failing to introduce expert
testimony of his mental state. He argues that his self-defense claim and mitigation
defense both implicate his mental state, and “[a]n expert could have interviewed
12 OHIO FIRST DISTRICT COURT OF APPEALS
and/or tested Mr. Clarke for how he responds to stress and threats,” which would have
assisted the trial court in considering whether his response to R.W. was reasonable.
{¶39} To establish an ineffective-assistance-of-counsel claim, Clarke must
show that his attorney’s “performance was deficient and that the deficient
performance prejudiced the accused.” State v. Davis, 1st Dist. Hamilton No. C-
190302, 2021-Ohio-1693, ¶ 65, quoting Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that his attorney’s performance was
deficient, he must “show his lawyer’s performance fell below an objective standard of
reasonable representation.” State v. Quinones, 8th Dist. Cuyahoga No. 94082, 2010-
Ohio-5240, ¶ 25, citing Strickland at paragraph two of the syllabus. To show prejudice,
he must demonstrate that “there is a reasonable probability that the outcome of the
proceedings would have been different but for the complained-of conduct.” Davis at
¶ 65, citing Strickland at 694.
{¶40} As Clarke points out, typically “the decision not to call an expert witness
does not constitute ineffective assistance of counsel because that decision is solely a
matter of trial strategy.” Davis at ¶ 66, citing State v. Coleman, 45 Ohio St.3d 298,
307-308, 544 N.E.2d 622 (1989). Yet, Clarke argues that his attorney “failed to put on
any expert evidence to establish Mr. Clarke’s state of mind.”
{¶41} Clarke offers little more than speculation about this expert testimony.
And without more, he cannot establish prejudice because when “ ‘[n]othing in the
record indicates what kind of testimony an [expert witness] could have provided,’
resolving the issue of whether counsel was deficient in failing to employ an expert is
‘purely speculative.’ ” Quinones at ¶ 26, quoting State v. Madrigal, 87 Ohio St.3d 378,
390-91, 721 N.E.2d 52 (2000); see State v. Powell, 8th Dist. Cuyahoga No. 107276,
13 OHIO FIRST DISTRICT COURT OF APPEALS
2020-Ohio-3387, ¶ 37; see also State v. Long, 12th Dist. Warren No. CA2021-02-014,
2021-Ohio-3651, ¶ 41; City of Mansfield v. Studer, 5th Dist. Richland Nos. 2011-CA-
93 and 2011-CA-94, 2012-Ohio-4840, ¶ 65.
{¶42} Still more, we have held that speculative assertions about the substance
of hypothetical expert testimony cannot establish prejudice. See Davis, 1st Dist.
Hamilton No. C-190302, 2021-Ohio-1693, at ¶ 65. Clarke’s arguments are ill-suited
for an ineffective-assistance claim raised on direct appeal because there is no evidence
in the record related to his mental state and he cannot offer anything more than mere
speculation.
{¶43} Since mere speculation does not establish an ineffective-assistance
claim, we overrule Clarke’s second assignment of error.
III. Conclusion
{¶44} We overrule Clarke’s assignments of error and affirm his conviction.
Judgment affirmed.
BERGERON and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.