[Cite as State v. Frost, 2021-Ohio-457.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-19-040
Appellee Trial Court No. 18 CR 847
v.
John J. Frost DECISION AND JUDGMENT
Appellant Decided: February 19, 2021
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
Sarah R. Anjum, for appellant.
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, John J. Frost, appeals the September 10, 2019 judgment of the
Sandusky County Court of Common Pleas which, after a jury found him guilty of
involuntary manslaughter with a firearm specification and having a weapon while under
disability, sentenced appellant to an aggregate prison term of 84 months. For the reasons
that follow, we affirm the judgment. II. Facts and Procedural Background
{¶ 2} On July 28, 2018, appellant shot and killed Curtis Gibbs outside his
apartment door. At the time of the shooting, Gibbs and his girlfriend, Kelly Ahrens, were
unwelcome visitors at appellant’s home. Appellant was a recovering addict and Gibbs
and Ahrens were part of his old life, before he began his almost two-year treatment for
opioid addiction. Both appellant and Gibbs were armed the night of the shooting, and
appellant claimed he shot Gibbs in self-defense.
{¶ 3} Police responded to the scene, took appellant into custody, and secured the
firearms. The next day, appellant submitted to a drug test and tested negative for drugs,
including Suboxone, which was prescribed as part of his treatment. Police searched
appellant’s home pursuant to a warrant and recovered Suboxone strips, a leafy substance
believed to be marijuana, pills, rolling papers, syringes, pipes, and other drug
paraphernalia. Appellant was charged and arraigned on one count of murder in violation
of R.C. 2903.02(A), an unclassified felony with an attendant firearm specification; one
count of involuntary manslaughter in violation of R.C. 2903.04(A), a felony of the first
degree with an attendant firearm specification; and one count of having weapons while
under disability in violation of R.C. 2923.13(A)(4), a felony of the third degree.
{¶ 4} The matter proceeded to a jury trial on July 15-19, 2019. The state
presented testimony by Ahrens, as well as responding police officers and investigators,
the coroner, and Dr. Max Pavlock, who was treating appellant for opioid dependency and
had prescribed the Suboxone found in the apartment. Appellant presented testimony of a
2. neighbor and a friend, who both heard gunfire from inside the apartment across the hall,
and testified regarding what they witnessed immediately after the shooting.
{¶ 5} Ahrens testified she and Gibbs had stopped to see appellant at his second-
story apartment the day before, which was her birthday. On the 28th, Ahrens and Gibbs
returned to appellant’s apartment to use his bathroom and charge their phones. She also
testified that she and Gibbs hoped appellant would want to get drugs so they could take a
cut, indicating the three had used heroin together over a year and one-half to two years
prior to the date of the shooting. Ahrens testified that appellant answered his apartment
door that day holding his handgun, let them in, and when Ahrens came out of the
bathroom, she saw appellant aiming the gun’s laser sight around the apartment. She
witnessed appellant briefly aim the laser sight at Gibbs’ chest. After she and Gibbs were
in the apartment about 15 minutes, appellant angrily told them to leave.
{¶ 6} In response to appellant’s request to leave, Ahrens testified that she and
Gibbs walked out, but Gibbs stayed at the top of the stairs as she started down. Ahrens
saw Gibbs holding a phone in one hand and a charger in the other. She testified that
appellant followed the two out of his apartment, his gun in a grocery bag. Appellant
stopped to lock his door, and she heard Gibbs tell appellant that if he was going to point a
gun at him, he had better use it, because he had a gun too. Ahrens testified that appellant
responded to Gibbs by saying “oh, yeah, mother fucker, if you ain’t got the balls to do it,
I do.” Then Ahrens heard gunfire.
3. {¶ 7} Officer Seth Strecker was the first to respond to the scene. He testified that
upon arriving at the apartment building, he observed Gibbs lying face down at the bottom
of the stairs, with Ahrens cradling his head. Gibbs was unresponsive, with blood on his
face. Appellant was at the top of the stairs, and advised Officer Strecker that he shot
Gibbs. Appellant complied with the order to keep his distance from the firearm at the top
of the stairs and remained in Officer Strecker’s sight while the officer attempted to
preserve the scene and waited for additional law enforcement to arrive.
{¶ 8} Sergeant Marc Linder1 arrived soon after, and assisted Officer Strecker in
securing the scene. He, too, observed Gibbs lying face down, with Ahrens holding his
head. Sergeant Linder was the investigating officer, and he contacted dispatch to send
additional officers to take statements from people in the building and requested assistance
from the Bureau of Criminal Investigation (BCI). Sergeant Linder moved Gibbs from the
stairs to the floor, and approached appellant at the top of the stairs. He later interviewed
both appellant and Ahrens, and the prosecution played a recording of appellant’s
statements to Sergeant Linder. Appellant acknowledge an exchange with Gibbs in the
hallway. Gibbs told appellant he would kill appellant if he ever pointed his gun at him, to
which appellant replied, “what if I point it at you first?”
{¶ 9} Agent Timothy Woolf testified regarding the search of appellant’s home.
He served on the Drug Task Force, and provided assistance in the hours after the
1 By the time of trial, Sergeant Linder had been promoted to Chief of Police for the city of Bellevue.
4. shooting. He described the items he seized from appellant’s apartment, including the
guns belonging to appellant and Gibbs and additional ammunition inside the apartment.
Agent Woolf also seized items from a night stand, next to the bed, including a substance
that appeared to be marijuana, rolling papers and a grinder, various pills, syringes, and
burnt roaches. He seized additional syringes from two other locations in the apartment,
and also seized crack pipes and a push rod, wrapped in a yellow cloth, from a closet shelf,
and two more crack pipes from the bedroom closet.
{¶ 10} BCI Agent David Horn testified regarding his investigation of the crime
scene. He took photographs and noted the locations of cartridge casings, indicating two
weapons and providing probable locations for each shooter, based on two sets of shell
casings and the positioning of those casings. According to Agent Horn, appellant’s
firearm shot toward the stairs and downward, and Gibbs’ firearm shot toward appellant’s
door, near where appellant could have been standing as he locked the door. Agent Horn
testified that Gibbs’ firearm had been disabled, with the possibility a bullet from
appellant’s gun struck Gibbs’ firearm.
{¶ 11} Dr. Cynthia Beisser, M.D., a forensic pathologist, testified regarding the
cause and manner of death. Dr. Beisser conducted the autopsy of Gibbs, and testified that
he had seven entrance and three graze-type gunshot wounds. Gibbs’ entrance wounds
were described by Dr. Beisser as: (1) a head wound caused by a bullet entering on the
left and exiting on the right, angled downward; (2) a chest wound, entering left and
exiting right, almost horizontal; (3) an abdominal wound, entering the right side and
5. exiting around the right flank, angled downward; (4) a wound to the left flank, angled
downward and forward; (5) a wound to the left back, angled downward and forward;
(6) a wound to the left arm, entering through the elbow joint; and (7) a wound to the left
wrist, entering left and exiting right, with a downward and forward trajectory. Dr.
Beisser indicated more than one of the entrance wounds could have been fatal. She also
noted that Gibbs had Methamphetamine toxicity, indicating he had used the drug close in
time to his death. Dr. Beisser determined the cause of death as multiple gunshot wounds,
the manner of death as homicide.
{¶ 12} Dr. Max Pavlock testified regarding appellant’s treatment, indicating
appellant kept his appointments, took his Suboxone as directed, and submitted to drug
screens, both scheduled and random. While appellant occasionally tested positive for
marijuana use, this did not concern Dr. Pavlock, as he considered the marijuana use
negligible and considered marijuana something less than illegal, based on legalization
efforts and medicinal uses for the drug. When confronted with appellant’s possession of
drug paraphernalia, however, he revised his opinion, and testified that he believed
appellant was in danger of becoming drug dependent, despite his otherwise successful
treatment for opioid addiction.
{¶ 13} After the close of the prosecution’s case, appellant moved for acquittal,
which the trial court denied. Appellant presented two witnesses, his neighbor across the
hall and her boyfriend. The two neighbors, who were friends of appellant, were in their
apartment at the time of the shooting. Each testified they first heard two, more distant
6. popping sounds, presumed to be Gibbs’ gun, followed by louder, closer-sounding
gunfire, presumed to be appellant’s gun, because after the gunfire stopped, the couple
opened the apartment door and saw appellant standing just outside.
{¶ 14} The trial court charged the jury, and included a self-defense instruction that
explained both “duty to retreat” and “no duty to retreat.” The jury found appellant not
guilty on the murder charge, but guilty as to involuntary manslaughter and having
weapons while under disability. The jury also made the additional finding as to the
firearm specification, attached to the involuntary manslaughter charge. The trial court
sentenced appellant to 48 months in prison as to the involuntary manslaughter offense, an
additional 36 months for the firearms specification, and 36 months for the having
weapons while under disability offense. The firearm specification was ordered
consecutive to the involuntary manslaughter sentence, but concurrent to the sentence for
having weapons while under disability, for an aggregate prison term of 84 months.
{¶ 15} Appellant filed a timely appeal of this judgment.
III. Assignments of Error
{¶ 16} Appellant mainly challenges the evidence of drug dependency in support of
his conviction for having weapons while under disability and the jury instructions related
to his claim of self-defense, asserting the following as error:
I. The evidence presented at trial was insufficient to support a
conviction for [having] weapons [while] under disability.
7. II. The evidence presented at trial in support of the [having]
weapons [while] under disability charge is against the manifest weight of
the evidence.
III. The trial court erred in instructing the jury on both “Duty to
Retreat” and “No Duty to Retreat”
IV. Counsel was ineffective for failing to timely object to the
erroneous jury instructions.
IV. Analysis
{¶ 17} We address the assigned errors according to the issues raised by appellant.
A. Danger of Drug Dependency
{¶ 18} In his first and second assignments of error, appellant argues a lack of
evidence of drug dependency or danger of drug dependency. R.C. 2923.13(A)(4)
prohibits possession or use of a firearm by a person who is “drug dependent” or “in
danger of drug dependence.” The parties appear to acknowledge that appellant was in
treatment at the time of the shooting, and therefore, not drug dependent as that term is
defined by law.
{¶ 19} A “drug dependent person” is “any person who, by reason of the use of any
drug of abuse, is physically, psychologically, or physically and psychologically
dependent upon the use of such drug, to the detriment of the person’s health or welfare.”
A “person in danger of becoming a drug dependent person” is “any person who, by
reason of the person’s habitual or incontinent use of any drug of abuse, is in imminent
8. danger of becoming a drug dependent person.” See R.C. 3719.011(B) and (C); R.C.
2925.01(B). The statute does not include, within its definitions of drug dependency,
recovering addicts who no longer abuse drugs. State v. Wheatley, 2018-Ohio-464, 94
N.E.3d 578, ¶ 22 (4th Dist.).
{¶ 20} Appellant challenges both the sufficiency and the weight of the evidence as
to the danger of drug dependency.
1. Sufficiency
{¶ 21} “‘Sufficiency’ is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433
(6 Ed.1990). Sufficiency refers to the adequacy of the evidence. Thompkins at 386.
{¶ 22} In reviewing for sufficiency, we construe the evidence in the prosecution’s
favor and consider whether “‘any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’” State v. Smith, 80 Ohio St.3d
89, 113, 684 N.E.2d 668 (1997), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We neither weigh the evidence nor consider the
credibility of the witnesses in considering sufficiency. See, e.g., State v. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79 (“an evaluation of the witnesses’
9. credibility, which—as we have repeatedly pointed out—is not proper on review for
evidentiary sufficiency.”).
{¶ 23} At trial, Dr. Pavlock first testified that appellant was neither drug
dependent nor in danger of drug dependency, based solely on his treatment history. He
indicated appellant sought help for his opioid addiction voluntarily, and had been treating
for about two years. Dr. Pavlock acknowledged some positive drug tests, but did not
consider appellant’s positive tests for marijuana use problematic, further noting that
appellant was maintaining his employment, keeping his doctor appointments, and
complying with treatment requirements. Dr. Pavlock stated he had no concerns regarding
appellant, “[b]ecause following all of the drug screens and the appointments that I had
with [appellant], I seen no reason for concern with him of slipping back into dependence
at the time.”
{¶ 24} However, when presented with additional information regarding drug
paraphernalia and possible drugs in appellant’s home, Dr. Pavlock revised his opinion.
Q: [I]f you have a patient you’ve been treating for two years, they
have multiple positive screens for marijuana, they have a positive screen for
Amphetamine, that patient has crack pipes, syringes and bags of leafy green
vegetation smelling like marijuana in his home, would you say, as a
licensed doctor in Ohio with a Board certification, that that individual is not
in danger of being drug dependent?
A: They are in danger, yes.
10. {¶ 25} In order to satisfy sufficiency requirements, the state needed to present
evidence demonstrating appellant was in danger of becoming drug dependent. Here, the
state presented Dr. Pavlock’s testimony, along with evidence of failed drug tests and drug
paraphernalia in appellant’s home. Expert testimony may be considered for purposes of
determining whether a defendant falls within the disability of R.C. 2923.13(A)(4), with
the trier of fact ultimately deciding the issue. State v. Tomlin, 63 Ohio St.3d 724, 727,
590 N.E.2d 1253 (1992) (permitting expert testimony to assist the jury in determining
whether a defendant is a “chronic alcoholic” for purpose of R.C. 2923.13(A)(4)).
{¶ 26} Construing the record most favorably for the prosecution, the state
presented evidence of continued, illicit drug use, despite appellant’s lengthy
treatment with Dr. Pavlock, and Dr. Pavlock’s expert opinion that appellant was in
danger of becoming drug dependent. Therefore, there was sufficient evidence to
support a finding that appellant was in danger of becoming drug dependent, and
appellant’s first assignment of error is not well-taken.
2. Manifest Weight
{¶ 27} Appellant next argues that the conviction is not supported by the manifest
weight of the evidence regarding a danger of drug dependency. Manifest weight, in
contrast to sufficiency, “concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.’”
(Emphasis sic.) Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Black’s at
1594.
11. {¶ 28} In considering whether the weight of the evidence supports a finding that
appellant was in danger of drug dependence, we review the record, weigh the evidence
and all reasonable inferences, and consider the credibility of the testimony, sitting as “a
‘thirteenth juror’” that reviews the factfinder’s resolution of the conflicting testimony.
We reverse a judgment only if we determine that the trier of fact lost its way in resolving
conflicts in the evidence. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). Reversal, moreover, is reserved for the exceptional
case, to prevent a manifest miscarriage of justice. Thompkins at 387, citing Tibbs v.
Florida, 457 U.S. 31, 45, 102 S.Ct.2211, 72 L.Ed.2d 542 (1928); Martin at 175.
{¶ 29} At issue in this case was whether the evidence demonstrated appellant was
in danger of becoming drug dependent, based on “habitual or incontinent use of any drug
of abuse.” Dr. Pavlock, whose expertise lies in treating drug dependency, considered the
drug paraphernalia found in appellant’s home, along with appellant’s past history of
positive drug screens, and despite appellant’s progress with his treatment, Dr. Pavlock
testified that he believed appellant was in danger of drug dependency. In contrast,
appellant presented testimony demonstrating his progress in treatment, and argued the
drug paraphernalia was merely left over from his previous life, before treatment.
{¶ 30} Upon review of the record, we do not find that this is the exceptional case,
requiring reversal to correct a manifest injustice because the jury clearly lost its way.
Although there was conflicting evidence, the testimony and evidence reasonably
demonstrated that appellant continued to use and/or abuse illicit drugs, and therefore was
12. in danger of drug dependency. Based on the evidence, we do not find the jury lost its
way in resolving conflicts in the testimony. Accordingly, we find no merit to appellant’s
second assignment of error, challenging the weight of the evidence.
B. Self-Defense
{¶ 31} In his third and fourth assignments of error, appellant argues error relative
to the jury instruction on self-defense. Pursuant to R.C. 2901.05, a self-defense
instruction is required if “there is evidence presented that tends to support that the
accused person used the force in self-defense.” Appellant argues that the trial court
incorrectly instructed the jury as to both a “duty to retreat” and “no duty to retreat,” and
his trial counsel was ineffective in failing to object to this instruction.
1. Duty to Retreat
{¶ 32} Under the current version of R.C. 2901.05, the prosecution has the burden
to prove, by a preponderance of the evidence, that appellant did not act in self-defense in
using deadly force against Gibbs. See State v. Smith, 6th Dist. Wood No. WD-19-070,
2020-Ohio-5119, ¶ 32 (“amended R.C. 2901.05 applies, prospectively, to all trials that
are held after the effective date of the statute.”). To claim self-defense as an affirmative
defense, the claimant must not be at fault in creating the situation, the claimant must have
a genuine belief that he or she is in imminent danger of death or great bodily harm with
no other means of escape, and the claimant must not violate a duty to retreat or avoid
danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). There are
exceptions to the duty to retreat, however, such as where the person acting in self-defense
13. is in their own home, or retreat is not possible. See State v. Thomas, 77 Ohio St.3d 323,
326, 673 N.E.2d 1339 (1997); R.C. 2901.09(B).
{¶ 33} The trial court provided the following jury instruction regarding self-
defense:
Now, in this case we have an affirmative defense of self-defense.
The Defendant is allowed to use deadly force in self-defense. Evidence
was presented that may support a finding that the Defendant used deadly
force in his self-defense. The State has the burden of proving beyond a
reasonable doubt that the Defendant did not justifiably use deadly force in
his self-defense.
Self-defense means that * * * the Defendant was not at fault in
creating the situation giving rise to the shooting which occurred on July 29,
2018 at 113 Thomas Drive, Bellevue; and the Defendant had reasonable
grounds to believe and an honest belief, even if mistaken, that he was in
imminent danger of death or great bodily harm; and the Defendant did not
violate any duty to retreat to avoid the danger; and the Defendant used
reasonable force.
***
Now, Duty to Retreat. The Defendant had a duty to retreat if he,
(A), was at fault in creating the situation giving rise to the shooting; (B) he
did not have reasonable grounds to believe and an honest belief that he was
14. in imminent or immediate danger of death or great bodily harm; or, (C),
that he had a reasonable – or that he had a reasonable means of escape from
that danger other than by the use of deadly force.
Now, No Duty to Retreat. The Defendant did not have a duty to
retreat if, (1) he reasonably indicated his intention to retreat or escape from
the situation and no longer participate in it; (2) he then had reasonable
grounds to believe and an honest belief that he was in imminent or
immediate danger of death or great bodily harm; and (3) the only
reasonable means of escape from that danger was by the use of deadly
force, even though he was mistaken as to the existence of that danger.
{¶ 34} We review a trial court’s decision regarding jury instructions for an abuse
of discretion. (Citation omitted.) State v. White, 988 N.E.2d 595, 2013-Ohio-51, ¶ 97
(6th Dist.). The trial court should include “all instructions which are relevant and
necessary for the jury to weigh the evidence and discharge its duty as the fact finder.”
White at ¶ 97, quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990),
paragraph two of the syllabus.
{¶ 35} Appellant argues that the “duty to retreat” and “no duty to retreat”
instructions, when given together, created confusion because a jury could find that
appellant had both a duty to retreat and no duty to retreat, based on application of the law
as provided by the trial court. We disagree. The jury instructions echoed the common
law regarding self-defense, requiring retreat in most circumstances unless retreat was not
15. possible and the use of force unavoidable. Thomas, 77 Ohio St.3d at 326, 673 N.E.2d
1339.
{¶ 36} Here, the jury considered the evidence, including appellant’s anger,
appellant’s brandishing of his handgun, the confrontational exchange outside the
apartment door between appellant and Gibbs, and the exchange of gunfire that appeared
to flow from that confrontation. In considering the evidence, the jury was tasked with
applying the law, which first required considering the elements for a self-defense claim.
{¶ 37} “[T]he elements of self-defense are cumulative.” State v. Jackson, 22 Ohio
St.3d 281, 284, 490 N.E.2d 893 (1986). Therefore, if the jury determined that appellant
was “at fault in creating the situation giving rise to the affray,” appellant had a duty to
retreat. Id. at 283. That duty to retreat continued unless appellant attempted to withdraw
from the conflict but found his only means of escape was the use of force. Id. at 284.
The trial court, therefore, appropriately instructed the jury according to the applicable
law, and we find no abuse of discretion. Appellant’s third assignment of error,
accordingly, is not well-taken.
2. Ineffective Assistance
{¶ 38} In his fourth and final assignment of error, appellant argues his trial counsel
was ineffective in failing to object to the “erroneous” jury instruction regarding self-
defense. To prevail on a claim for ineffective assistance of counsel, appellant must first
demonstrate that his trial counsel’s performance was deficient. See State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989), at paragraph two of the syllabus. As we found
16. no error in the trial court’s jury instruction regarding a duty to retreat, we find no
deficiency by trial counsel in this regard. Appellant’s fourth assignment of error,
therefore, is without merit.
V. Conclusion
{¶ 39} Having found substantial justice has been done, we affirm the
September 10, 2019, judgment of the Sandusky County Court of Common Pleas.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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