[Cite as State v. Gillespie, 2017-Ohio-6936.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 11-16-07
v.
BRADLEY R. GILLESPIE, OPINION
DEFENDANT-APPELLANT.
Appeal from Paulding County Common Pleas Court Trial Court No. CR-16-520
Judgment Affirmed
Date of Decision: July 24, 2017
APPEARANCES:
Timothy C. Holtsberry for Appellant
Joseph R. Burkard for Appellee Case No. 11-16-07
ZIMMERMAN, J.
{¶1} Defendant-Appellant Bradley R. Gillespie (“Appellant”) appeals his
conviction of two counts of Murder, both unclassified felonies, from the Paulding
County Court of Common Pleas. Appellant alleges six assignments of error related
to the convictions, including: the jury verdict was against the manifest weight of the
evidence; the trial court erred in denying his Crim.R. 29 motion for acquittal; the
trial court erred by not giving a jury instruction for lesser included offenses and/or
a lesser degree of murder when the evidence warranted such instructions; the trial
court erred by not providing jury instructions on self-defense; the trial court erred
by not ruling on Appellant’s request for new trial counsel; and Appellant was denied
effective assistance of counsel at trial. For the reasons that follow, we affirm
Appellant’s convictions.
Statement of the Case and Facts
{¶2} As of January, 2016 Frank Tracy, Jr. (“Frank”) and Hannah Fisher
(“Hannah”) resided together at 119 West Perry Street, Apt. C, in Paulding, Ohio.
Both Frank and Hannah had reputations for being Methamphetamine (“meth”)
users. Appellant had, on occasion, purchased meth from Frank. Further, Appellant
and Hannah were acquaintances through Frank.
{¶3} Sometime during January, 2016, Frank and Appellant had an
altercation, which resulted in Frank pointing an unloaded gun at Appellant’s head
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and pulling the trigger.1 Appellant was angry and upset at Frank over the event and
asked his co-worker and ex-girlfriend, Esmeralda Ferguson (“Ferguson”), to borrow
her Glock 40 caliber handgun, to scare Frank for scaring him. Ferguson gave
Appellant her handgun on the evening of February 1, 2016.
{¶4} The next evening, February 2, 2016, Frank, Hannah, and Appellant
were riding together in a red 2016 Jeep regularly used by Frank. The three were
using drugs. At some point while in the Jeep, Appellant shot Hannah and Frank.
Both Frank and Hannah were killed as a result of gunshot wounds to the head.
{¶5} At approximately 1 a.m. on February 3, 2016, Appellant went to the
Community Memorial Hospital in Hicksville, Ohio, and was treated for a laceration
to his right wrist. Dr. Cui treated Appellant at the hospital for a laceration that was
approximately four (4) centimeters in length on Appellant’s right wrist. According
to the medical records produced at trial, Appellant indicated that his wrist injury had
occurred approximately two (2) hours prior to his arrival at the hospital.
{¶6} Appellant returned to work on February 3 and returned Ferguson’s
handgun to her. At trial, Ferguson testified that when she asked Appellant what had
happened with the gun, Appellant responded that he “shot him [Frank] in the head
and threw him in the river.” (09/27/16 Tr., Vol. II, at 449). Ferguson also testified
that Appellant asked to purchase her handgun, but she refused. Ferguson did not
1 Testimony at trial revealed that Appellant was unaware that the gun was unloaded at the time.
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immediately contact law enforcement as a result of Appellant’s comments of
shooting Frank.
{¶7} On February 9, 2016, Hannah’s body was located in her apartment. An
autopsy revealed that Hannah died from a single gunshot wound to the head. Crime
scene investigators concluded that Hannah’s body had been pulled into her
apartment, and that the location where her body was discovered was not the location
where she was killed. Investigators determined that there was little blood inside the
apartment, but there was a substantial amount of blood in both the driver and
passenger seats of the red 2016 Jeep, which was located outside of Hannah and
Frank’s apartment.
{¶8} Investigators further determined that the driver’s side window of the
Jeep was broken out and covered with a blanket. Additionally, the blood collected
by investigators from the Jeep revealed Frank’s DNA in the driver’s seat and
Hannah’s DNA in the passenger seat. Investigators also found a spent shell casing
in the rear passenger seat area of the Jeep. The shell casing was later determined to
be from Ferguson’s handgun.
{¶9} Ferguson turned over her Glock handgun to the Paulding Police
Department on March 4, 2016. Ultimately, testing at the Ohio Bureau of Criminal
Investigation (“BCI”) revealed that the handgun contained Frank’s DNA.
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{¶10} On March 15, 2016, Frank’s body was discovered along the Maumee
River in Rochester Cemetery near Cecil, Ohio. An autopsy of Frank’s body
revealed that a single gunshot wound to the head was the cause of his death.
{¶11} Appellant was subsequently arrested as a result of the investigation
into Frank and Hannah’s murders.
Procedural History
{¶12} On March 28, 2016, the Paulding County Grand Jury returned a two
count indictment against Appellant, charging him with: Count I, Murder, an
unclassified felony, with a firearm specification; and Count II, Murder, an
unclassified felony, also with a firearm specification. The indictment alleged that
on or about February 3, 2016, Appellant purposely caused the death of Hannah
Fisher and Frank A. Tracy, Jr. The indictment also alleged that Appellant had a
firearm about his person or under his control while committing the offenses.
{¶13} This matter proceeded to a jury trial on September 26, 2016. Prior to
the commencement of trial, defense counsel requested a motion in limine regarding
statements that Appellant made to law enforcement officers who transported him
from the correctional facility to court. On September 27, 2016, the trial court
granted the motion in part, finding that the officers “interrogated” Appellant
impermissibly without advising Appellant of his Miranda rights. However, the trial
court also denied the motion in part, finding that the Appellant had volunteered
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certain information to the officers, which did not require the advisement of his
Miranda rights.
{¶14} Also on the 27th of September, defense counsel filed a request for
additional jury instructions on lesser included offenses to the murder charges. On
September 30, 2014 the trial concluded and the jury returned verdicts of “guilty” to
both counts of murder. The jury also found Appellant had a firearm on his person
or under his control for each of the murders.
{¶15} On October 31, 2016 the trial court sentenced Appellant to two
indefinite prison terms, with a minimum sentence of 15 years for each count. The
trial court also imposed the 1 year of mandatory prison time for each firearm
specification. The trial court ordered that the murder and the specification terms to
run consecutively to each other, with the specification terms to be served prior to
the indefinite prison terms. Thus, Appellant was ordered to serve a minimum term
of imprisonment of thirty-two (32) years.
{¶16} From his convictions Appellant timely appealed, and presents the
following assignments of error for our review:
ASSIGNMENT OF ERROR NO. I
THE VERDICT OF THE JURY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
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ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIMINAL RULE 29 MOTIONS FOR ACQUITTAL WHEN THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRORED [SIC] BY NOT GIVING A JURY INSTRUCTION FOR LESSER INCLUDED CRIMES OR LESSER DEGREE OF MURDER WHEN THE EVIDENCE WARRANTED SUCH AN INSTRUCTION.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRORED [SIC] BY NOT PROVIDING TO THE JURY INSTRUCTIONS REGARDING SELF- DEFENSE.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRORED [SIC] IN NOT CONSIDERING OR RULING ON DEFENDANT’S REQUEST FOR NEW TRIAL COUNSEL.
ASSIGNMENT OF ERROR NO. VI
THE DEFENDANT WAS DENIED HIS RIGHTS UNDER THE SIXTH AMENDMENT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error I
{¶17} In his first assignment of error, Appellant alleges that the verdict was
against the manifest weight of the evidence. Specifically, Appellant asserts that the
jury verdict is against the manifest weight of the evidence due to the lack of physical
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evidence connecting him to the Red Jeep, to Hannah’s apartment, and to Hannah or
Frank’s bodies. For the reasons set forth below, we disagree.
Standard of Review
{¶18} In analyzing a claim that a conviction is against the manifest weight
of the evidence, an appellate court:
sits as the “thirteenth juror” and may disagree with the fact finder’s resolution of the conflicting testimony. * * * The appellate court, “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.”
State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State
v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶ 14 (citations
omitted). However, in sitting as the thirteenth juror the appellate court should give
due deference to the findings made by the jury. Id.
{¶19} “Weight of the evidence 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. It indicates clearly to the jury that the party having the burden of
proof will be entitled to their verdict, if, on weighing the evidence in their minds,
they shall find the greater amount of credible evidence sustains the issue which is
to be established before them. Weight is not a question of mathematics, but depends
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on its effect in inducing belief.’” (Emphasis omitted.) State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting Black’s Law Dictionary
1594 (6th Ed.1990).
{¶20} Furthermore, “[t]o reverse a judgment of a trial court on the weight of
the evidence, when the judgment results from a trial by jury, a unanimous
concurrence of all three judges on the court of appeals panel reviewing the case is
required.” Id., at paragraph 4 of the syllabus, citing Ohio Constitution, Article IV,
Section 3(B)(3).
Relevant Statutory Provisions
{¶21} Appellant was indicted on two counts of Murder, both unclassified
felonies, in violation of R.C. 2903.02(A). R.C. 2903.02(A) states, in its pertinent
part: “No person shall purposely cause the death of another * * *.” R.C. 2903.02(A).
{¶22} Appellant’s indictment also contained a firearm specification as to
each count. Pursuant to R.C. 2941.141(A), the trial court may impose a mandatory
one-year prison term when “ * * * the indictment, or the information charging the
offense specifies that the offender had a firearm on or about the offender’s person
or under the offender’s control while committing the offense. * * * ” R.C.
2941.141(A).
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Analysis
{¶23} In our review of the record, we find that the State provided limited
physical evidence connecting Appellant to either Hannah or Frank’s murder scenes.
However, the State did provide a direct link between the Appellant and a handgun
that was used in the murders. Further, the State introduced the statements of
Appellant, through various witnesses, linking him to Hannah and Frank’s murders.
Specifically, Esmeralda Ferguson testified that Appellant confessed to her that “I
shot him [Frank] in the head and threw him in the river.” (09/27/2016 Tr., Vol. II,
at 449). Zachary Deal, an inmate at the Paulding County Jail who shared the same
“pod” with Appellant while the case was pending, testified that Appellant confessed
to him that he [Appellant] was smoking meth with Frank and Hannah and “he
[Appellant] felt disrespected, so he shot Hannah in the head. When Frank turned
around and stabbed him [Appellant], he [Appellant] shot him [Frank] in the head,
too.” (09/28/2016 Tr., Vol. III, at 600).
{¶24} Appellant also made statements to law enforcement officers
implicating himself in the murders. Paulding County Sheriff’s Deputy Robert
Garcia interviewed Appellant on March 20, 2016, and testified at trial that Appellant
admitted to “putting a gun to Frank’s head,” in order to scare him. (09/29/2016 Tr.
at Vol. IV, at 794). Paulding County Sheriff’s Deputy Jonathan Shane Dyson
testified that Appellant admitted to having “the taste of blood in his mouth,” and to
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“the effect of the gunshots” on him (Appellant). (Id. at 728). Appellant’s
admissions made to Deputy Garcia and Deputy Dyson were recorded and played for
the jury. (State’s Ex. Nos. 44; 41)
{¶25} It is well stated that “the trier of fact is in the best position to observe
the credibility of the witnesses and the weight of the evidence.” State v. Craun, 158
Ohio App.3d 389, 2004-Ohio-4403, 815 N.E.2d 1141, ¶ 23 (3rd Dist.). Thus, in this
case the jury’s determination of guilt in both murders was based, in part, upon
Appellant’s statements, which was, upon our independent review of the record,
competent and credible evidence of Appellant’s involvement.
{¶26} Further, the State provided the jury with Ferguson’s handgun, together
with the spent shell casing found in the Jeep, which was determined to be the
weapon used in the murders. Thus, in our review of the record we cannot say that
the jury clearly lost its way by finding Appellant guilty of the two counts of murder
with firearm specifications as competent and credible evidence was provided to the
jury to support its verdicts. Accordingly, the first assignment of error is overruled.
Assignment of Error II
{¶27} In his second assignment of error, Appellant argues that the trial court
erred in denying his Crim.R. 29 motions for acquittal because the State failed to
present sufficient evidence to sustain convictions. Specifically, Appellant asserts
that the State failed to present any physical evidence connecting Appellant to the
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murders in its case-in-chief, and that upon presenting their defense witnesses, the
State’s case “completely unraveled.” We disagree.
{¶28} “When an appellate court reviews the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt.” State v. Blanton,
2015-Ohio-4620, 48 N.E.3d 1018, ¶ 29 (3rd Dist.), cause dismissed, 145 Ohio St.3d
1420, 2016-Ohio-1173, 47 N.E.3d 165, ¶ 29, citing State v. Monroe, 105 Ohio St.3d
384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47. “In essence, sufficiency is a test of
adequacy.” Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
“‘Whether the evidence is legally sufficient to sustain a verdict is a question of
law.’” State v. Anders, 3rd Dist. Hancock No. 5-16-27, 2017-Ohio-2589, ¶ 32,
quoting Thompkins, supra.
{¶29} In our review of this assignment, we must review the evidence
presented in a light most favorable to the prosecution to determine whether any
rational trier of fact could have found that the essential elements of each count of
murder (and specifications) were proven by the State beyond a reasonable doubt. In
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doing so, the State must present sufficient evidence that the Appellant purposely
caused the deaths of Frank and Hannah pursuant to R.C. 2903.02(A), and, at such
time, had a firearm on or about his person or under his control.
{¶30} In regard to the death of Hannah, the State offered to the jury the
testimony of Zachary Deal. Deal testified that the Appellant admitted to him that
“he [Appellant] felt disrespected, so he shot Hannah in the head.” (09/28/2016 Tr.,
Vol. III, at 600). Such admission against interest by the Appellant is evidence that
the Appellant purposely caused Hannah’s death by shooting her in the head that any
rational trier of fact could rely upon to convict Appellant of murder with a firearm
specification.
{¶31} The State also offered into evidence Ferguson’s handgun, a spent shell
casing from the handgun (found in the back seat of the Jeep), and Hannah’s DNA,
revealing that Hannah was shot and killed in the Jeep. Kevin Belcik, (“Belcik”) a
forensic scientist at BCI, examined the casing found in the 2016 Jeep. (Id. at 567).
Belcik then test fired Ferguson’s gun and examined the test samples. (Id. at 571).
Belcik found that the test fired casing sample from Ferguson’s gun was a match to
the casing found in the Jeep. (Id.). Additionally, blood collected from the passenger
seat was consistent with Hannah’s DNA profile. (Id. at 709, State’s Ex. No. 39).
As such, as to Hannah’s death, we find the evidence presented was legally sufficient
to sustain a verdict of guilty to murder with a firearm specification.
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{¶32} Regarding the murder of Frank, the State presented the testimonies of
Zachary Deal, Esmeralda Ferguson, and Sheriff’s Deputies Garcia and Dyson,
wherein Appellant confessed his culpability. Zachary Deal testified that Appellant
admitted that he “shot [Frank] in the head, too.” (Id. at 600). Ferguson testified that
the Appellant stated that he “shot Frank in the head.” (09/27/2016 Tr., Vol. II, at
449). And Deputies Garcia and Dyson testified that Appellant “put a gun to Frank’s
head” and that Appellant “had the taste of blood in his mouth. (09/29/2016 Tr. at
Vol. IV, at 728; 794). Further, Frank’s DNA was found on Ferguson’s gun which
Appellant possessed for only two days before he returned it. Frank’s DNA was also
found in the driver side seat of the 2016 Jeep. (09/28/2016 Tr., Vol. III, at 707-08).
{¶33} Thus, we find as a matter of law that the prosecution presented legally
sufficient evidence to the jury on Frank’s murder and the firearm specification
through his multiple admissions of guilt and link to the murder weapon. Thus,
legally sufficient evidence exists in the record for any rational trier of fact to find
that the essential elements of murder (with a firearm) were proven beyond a
reasonable doubt in Frank’s murder and the second assignment of error is overruled.
Assignment of Error III
{¶34} In his third assignment of error, Appellant asserts that the trial court
erred by failing to instruct the jury on lesser included offenses or lesser degrees of
murder. Specifically, Appellant asserts that the trial court erred by refusing to give
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the jury an instruction on the lesser included offenses of reckless homicide and
voluntary manslaughter.
{¶35} Appellant contends that the testimony concerning his use of
Ferguson’s gun established that he only intended to scare Frank, not kill him, or in
the alternative, that the trial court should have given an instruction on voluntary
manslaughter, because the Appellant acted under the influence of sudden passion or
in a sudden fit of rage, brought on by the serious provocation of the victim. For the
reasons that follow, we find Appellant’s arguments under this assignment are
without merit.
{¶36} “It is well-established that a trial court has broad discretion in
instructing the jury.” State v. Smith, 10th Dist. Franklin No. 01AP-848, 2002-Ohio-
1479, *2, citing Jenkins v. Clark, 7 Ohio App.3d 93, 100, 454 N.E.2d 541 (2nd
Dist.1982). However, “[t]he court must give all instructions that are relevant and
necessary for the jury to weigh the evidence and discharge its duty as the factfinder.”
State v. Joy, 74 Ohio St.3d 178, 181, 1995-Ohio-259, 657 N.E.2d 503 citing State
v. Comen, 50 Ohio St.3d 206, 210, 553 N.E.2d 640 (1990).
{¶37} “‘In reviewing the sufficiency of jury instructions given by a trial
court, the proper standard of review . . . is whether the trial court’s refusal to give a
requested jury instruction constituted an abuse of discretion under the facts and
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circumstances of the case.’” State v. Thompson, 3rd Dist. Henry No. 7-16-10, 2017-
Ohio-792, ¶ 11, quoting Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio
App.3d 89, 2010-Ohio-4173, 940 N.E.2d 993, ¶ 30. An abuse of discretion connotes
more than a mere error of law or an error in judgment. It implies an arbitrary,
unreasonable, unconscionable attitude on the part of the court. State v. Adams, 62
Ohio St.2d, 151, 157, 404 N.E.2d 144 (1980).
Reckless Homicide Jury Instruction
{¶38} R.C. 2903.041(A) states: “no person shall recklessly cause the death
of another * * *.” R.C. 2903.041(A). Reckless homicide may be a lesser included
offense of murder. State v. Day, 8th Dist. Cuyahoga No. 83138, 2004-Ohio-1449,
¶ 47. “Recklessly” under R.C. 2901.22(C) is defined as follows:
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C). Appellant asserts, while completely denying the murder charges,
even if something did happen the greatest charge he could be convicted of was
reckless homicide, because testimony indicated that Appellant only wanted to scare
Frank, not kill him. Therefore, Appellant contends that the trial court abused its’
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discretion by denying him the reckless homicide instruction. We find this argument
to be without merit.
{¶39} As an initial matter, we note that the Ohio Supreme Court has held that
a defendant does not have the right to control whether a jury receives instructions
on lesser included offense. State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18
N.E.3d 1207, ¶ 17. Rather, the law, evidence presented, and the discretion of the
trial judge play a role in whether lesser-included offense jury instructions are
appropriate. Id. at ¶ 21.
{¶40} In our review of the record, the evidence does not support that
Appellant’s shootings of Hannah and Frank were done recklessly. Granted,
Appellant may have borrowed Ferguson’s gun to scare Frank, but the autopsies and
testimony support that the Appellant shot Hannah at point blank range and shot
Frank in the back of the head. Dr. Diane Scala-Barnett (“Dr. Scala-Barnett”) of the
Lucas County Coroner’s Office, performed the autopsy of Frank on March 16, 2016
and testified that Frank died as a result of a single gunshot wound to the back of the
head. (09/28/2016 Tr., Vol. III, at 493, 495). Dr. Jeffrey Hudson (“Dr. Hudson”)
of the Lucas County Coroner’s Office, performed the autopsy of Hannah on
February 11, 2016 and testified that Hannah died as a result of a gunshot wound to
the left side of her forehead/temple. (Id. at 509-10). These findings, coupled with
Zachary Deal’s testimony that Appellant admitted to shooting both Hannah and
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Frank in the head because he felt “disrespected,” support that the trial court was not
unreasonable in failing to instruct the jury on reckless homicide. (09/28/2016 Tr.,
Vol. III, at 600). Accordingly, Appellant’s assertion that the trial court should have
instructed the jury on reckless homicide is without merit.
Voluntary Manslaughter Jury Instruction
{¶41} Voluntary Manslaughter is an inferior degree offense to murder. See
generally, State v. Manley, 3rd Dist. Allen No. 1-01-159, 2002-Ohio-5582, ¶ 10. A
defendant may mitigate a charge of murder to manslaughter if “the defendant
establishes the mitigating circumstances of sudden passion or a sudden fit of rage in
response to serious provocation by the victim sufficient to incite the defendant to
use deadly force.” (Emphasis added). Id. A defendant is entitled to a jury
instruction on voluntary manslaughter where the evidence presented at trial would
reasonably support both an acquittal on the crime charged and a conviction upon the
inferior degree offense. Id. When determining whether an instruction on an inferior
degree of murder should have been given, the same test for whether an instruction
on a lesser-included offense should have been given is utilized. State v. Shane, 63
Ohio St.3d 630, 632, 590 N.E.2d 272 (1992).
{¶42} In our review of the record, we find that the evidence does not support
the jury being instructed on voluntary manslaughter. Appellant argues that Frank’s
act of placing an unloaded gun to his (Appellant’s) head and pulling the trigger is
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an act sufficient to incite a sudden passion or sudden fit of rage justifying him in
shooting both Frank and Hannah in the head. This argument lacks reason under the
facts presented.
{¶43} In making his “sudden fit of rage” argument, Appellant ignores the
“sudden” requirement set forth in the voluntary manslaughter statute. Testimony at
trial revealed that the incident (wherein Frank put a gun to Appellant’s head)
occurred sometime in mid-January, 2016. (09/29/16 Tr., Vol. IV, at 793, State’s
Ex. 44). However, evidence presented at trial established that Frank and Hannah
were murdered in early February, 2016, more than two weeks after the incident.
(09/28/2016 Tr., Vol. III, at 516). Thus, the passage of time between Frank’s scaring
of Appellant and Appellant’s retaliation resolves this argument.
{¶44} The Ohio Supreme Court held in State v. Mack, “[p]ast incidents or
verbal threats do not satisfy the test for reasonably sufficient provocation when there
is sufficient time for cooling off.” State v. Mack, 82 Ohio St.3d 198, 201, 1998-
Ohio-375, 694 N.E.2d 1328, citing State v. Huertas, 51 Ohio St.3d 22, 31-32, 553
N.E.2d 1058 (1990). In determining what constitutes a sufficient time for cooling
off, it has been consistently held that the cooling off period is a very short time span.
E.g., State v. Kanner, 7th Dist. Monroe No. 04 MO 10, 2006-Ohio-3485, ¶ 28 (in
examining what constitutes an adequate “cooling off” time span, the court recited
case law from different districts that held anything from the few seconds it takes to
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reload a gun to the time it takes to drive home and retrieve a weapon is a sufficient
“cooling off” period).
{¶45} Accordingly, because Appellant had sufficient time to “cool off” from
the January incident with Frank, we are unpersuaded that an instruction on voluntary
manslaughter was appropriate. Thus, we find that the trial court did not abuse its
discretion by refusing to give an instruction on voluntary manslaughter and we
overrule Appellant’s third assignment of error.
Assignment of Error IV
{¶46} In his fourth assignment of error, Appellant contends that the trial
court erred by not instructing the jury on self-defense. Appellant asserts that
because the evidence supported that Appellant was afraid of Frank after Frank put
an unloaded gun to his head, the trial court should have instructed the jury on self-
defense.
{¶47} Self-defense is an affirmative defense. State v. Martin, 21 Ohio St.3d
91, 93, 488 N.E.2d 166 (1986). “R.C. 2901.05(C)(2) defines an affirmative defense
as ‘[a] defense involving an excuse or justification peculiarly within the knowledge
of the accused, on which he can fairly be required to adduce supporting evidence.’”
Id. The burden of proving an affirmative defense, by a preponderance of the
evidence, is on the defendant. Id. See generally, State v. Smith, 3rd Dist. Logan
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No. 8-12-05, 2013-Ohio-746, ¶ 16 (listing the elements that a defendant must show
to establish a claim of self-defense).
{¶48} To prove a claim of self-defense, a defendant must establish, by a
preponderance of the evidence, the following: “(1) that he was not at fault in giving
rise to the affray, (2) that he had a bona fide belief that he was in imminent danger
of death or great bodily harm and that his only means of escape was the use of such
force, and (3) that he did not violate any duty to retreat or avoid the danger.” State
v. Jackson, 22 Ohio St.3d 281, 282, 490 N.E.2d 893 (1986). “Preponderance of the
evidence” means the greater weight of the evidence. Dawson v. Anderson, 121 Ohio
App.3d 9, 13, 698 N.E.2d 1014 (10th Dist.1997).
{¶49} At the outset, we note that Appellant failed to request a jury instruction
for self-defense. “The failure to raise an issue at trial acts as a waiver of the issue
on appeal except for plain error.” Deutsche Bank Natl. Trust Co. v. Sopp, 2016-
Ohio-1402, 62 N.E.3d 863, ¶ 8 (10th Dist.) citing Cleveland v. Ellsworth, 8th Dist.
Cuyahoga No. 83040, 2004-Ohio-4902, ¶ 8. “‘Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.’” State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978) quoting
Crim.R. 52(B). Plain error should be applied cautiously and only in exceptional
circumstances. Id. Plain error should be applied only to avoid a clear miscarriage
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of justice, and but for the error, the outcome of the trial clearly would have been
otherwise. Id. at 97.
{¶50} In our review of the record, Appellant has not established that “the
outcome of the trial clearly would have been otherwise” had the trial court given an
instruction on self-defense. We find that there is no evidence in the record to support
Appellant’s argument that a situation involving the need for self-defense arose at or
near the time of Frank and Hannah’s murders. Not only has Appellant failed to
provide us with evidence of plain error, he also failed to establish by a
preponderance of the evidence that he acted in self-defense by shooting Frank
and/or Hannah. Accordingly, we overrule Appellant’s fourth assignment of error.
Assignment of Error V
{¶51} In Appellant’s fifth assignment of error, Appellant asserts that the trial
court erred in not considering or ruling on his request for new trial counsel.
Appellant asserts that prior to trial, there was a complete breakdown in his attorney-
client relationship, and as a result his trial counsel should have been replaced.
Appellant also asserts that he sent letters to the trial court relative to the breakdown,
and the trial court erred by failing to rule on Appellant’s request. We disagree.
{¶52} “‘An indigent defendant has no right to have a particular attorney
represent him and therefore must demonstrate ‘good cause’ to warrant substitution
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of counsel.’” State v. Cowans, 87 Ohio St.3d 68, 72, 1999-Ohio-250, 717 N.E.2d
298, quoting United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). “‘[T]he trial
judge may * * * [deny the requested substitution and] require the trial to proceed
with assigned counsel participating if the complaint * * * is unreasonable.’” Id. at
72, 73, quoting State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), syllabus.
“The trial court’s decision is reviewed under an abuse of discretion standard.” Id.
{¶53} “Under an abuse of discretion standard, a lower court’s decision will
not be reversed for mere error, but only when the court’s decision is unreasonable,
arbitrary, or unconscionable.” Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-
4542, 3 N.E.3d 144, ¶ 9. Given that the abuse of discretion standard is a deferential
review, “[i]t is not sufficient for an appellate court to determine that a trial court
abused its discretion simply because the appellate court might not have reached the
same conclusion or is, itself, less persuaded by the trial court’s reasoning process
than by countervailing arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-
Ohio-2407, 972 N.E.2d 528, ¶ 14. If there is some competent, credible evidence to
support the trial court’s decision, there is no abuse of discretion. Middendorf v.
Middendorf, 82 Ohio St.3d 397, 401, 1998-Ohio-403, 696 N.E.2d 575.
{¶54} “‘Factors to consider in deciding whether a trial court erred in denying
a defendant’s motion to substitute counsel include the timeliness of the motion; the
adequacy of the court’s inquiry into the defendant’s complaint; and whether the
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conflict between the attorney and client was so great that it resulted in a total lack
of communication preventing an adequate defense.’” State v. Beadle, 3rd Dist.
Hancock No. 5-13-08, 2013-Ohio-5659, ¶ 17, quoting State v. Jones, 91 Ohio St.3d
335, 342, 2001-Ohio-57, 744 N.E.2d 1163.
{¶55} While Appellant asserts that the trial court abused its discretion in not
ruling on Appellant’s motion, Appellant has provided no record of his handwritten
letters for us to review. Other than the assertion that he wrote letters to the trial
court requesting new counsel, and one reference to the sentencing transcript that
indicated that he was not happy with his trial counsel (after being convicted of two
counts of Murder), the record before us is void of any evidence to support this
assignment of error.
{¶56} In essence, Appellant offers no support, either legal or factual, for his
assertion that the trial court erred by failing to replace his trial counsel or rule on his
handwritten requests. “‘The court may disregard an assignment of error presented
for review if the party raising it fails to identify in the record the error on which the
assignment is based * * *.’” Gianetti v. Teakwood, Ltd., 10th Dist. Franklin No.
15AP-413, 2016-Ohio-213, ¶ 30 quoting App.R.12(A)(2). “‘It is the duty of the
appellant, not the appellate court, to construct the legal arguments necessary to
support the appellant’s assignments of error.’” Id. quoting Bond v. Canal
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Winchester, 10th Dist. Franklin No. 07AP-556, 2008-Ohio-945, ¶ 16. As it is not
this court’s duty to search the record for some evidence related to his handwritten
motions to support Appellant’s argument, we conclude our analysis and overrule
Appellant’s fifth assignment of error.
Assignment of Error VI
{¶57} Lastly, Appellant contends that he was denied the effective assistance
of counsel, because Appellant did not believe that his attorneys were giving him an
adequate defense. Appellant further asserts that he disagreed with his defense
counsel’s strategy, which resulted in a breakdown of the attorney-client relationship
and their “nearly non-existent” communication. Finally, Appellant criticizes his
defense counsel’s performance at trial as being ineffective. We disagree with
Appellant that he was denied effective assistance of counsel.
{¶58} “‘When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that the counsel’s representation fell
below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d
150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466
U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceedings would have been different.’” Id., at 694. See
also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).
{¶59} In analyzing a claim for ineffective assistance of counsel, this court’s
scrutiny of counsel’s performance must be highly deferential, with a “‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687-
88. “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel’s
performance.” Id.
{¶60} We again begin our analysis noting that Appellant reiterates his
arguments from his previous assignments of error with the notion that his trial
counsel’s performance was deficient. However, Appellant cannot direct us to any
specific instance in the record to support that his counsels’ representation fell below
an objective standard of reasonableness.
{¶61} Thus, the specific complaints Appellant makes in this assignment of
error are unpersuasive. Each of the alleged deficiencies – spending too little time
with Appellant for trial preparation, not requesting jury instructions on self-defense
and voluntary manslaughter, and the fact that the trial court had to remind
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Appellant’s counsel to make Crim.R. 29 motions, standing alone and together, fall
“‘within the wide range of reasonable professional assistance.’” State v. Bradley,
42 Ohio St.3d 136, 143-44, 538 N.E.2d 373 (1989) quoting Strickland, supra.
{¶62} Contrary to Appellant’s arguments, the record is replete with examples
of his trial counsel providing reasonable representation. For example, Appellant’s
trial counsel successfully limited Appellant’s statements to law enforcement
officers through a motion in limine. (08/27/2016 Tr., Vol. II, at 226). Further,
Defense counsel presented two fact witnesses on Appellant’s behalf at trial.
(09/29/2016 Tr., Vol. IV, at 823; 842). Additionally, Appellant’s counsel filed
numerous pretrial motions including: a Motion for Appropriation of Investigator
Funds; a Motion in Limine Regarding Statement of Defendant; a Motion for
Defendant to Appear in Street Clothes; and a Motion to Prohibit Expressive
Clothing by Courtroom Spectators. (Doc. Nos. 20, 63, 64, 87).
{¶63} In our review of the record, we find that Appellant’s trial counsel acted
within a reasonable degree of professional representation, and as such, we find
Appellant’s argument regarding ineffective assistance is without merit.
{¶64} Accordingly, Appellant’s sixth assignment of error is overruled.
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{¶65} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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