State v. Hare

2023 Ohio 1623

• Court: Ohio Court of Appeals
• Decided: May 15, 2023
• Docket: 2022-A-0048
• Status: Published

Opinion

[Cite as State v. Hare, 2023-Ohio-1623.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2022-A-0048

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

TRAVIS LEE HARE, Trial Court No. 2020 CR 00390 Defendant-Appellant.

OPINION

Decided: May 15, 2023 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, Christopher R. Fortunato and Christine Davis, Assistant Prosecutors, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Travis Lee Hare, appeals his convictions for

Felonious Assault and Using Weapons While Intoxicated in the Ashtabula County Court

of Common Pleas. For the following reasons, Hare’s convictions are affirmed.

{¶2} On September 23, 2020, the Ashtabula County Grand Jury indicted Hare

for Felonious Assault (Count 1), a felony of the second degree in violation of R.C

2903.11(A)(1) and (D)(1)(a); Felonious Assault (Count 2), a felony of the second degree

in violation of R.C. 2903.11(A)(2) and (D)(1)(a); and Using Weapons While Intoxicated (Count 3), a misdemeanor of the first degree in violation of R.C. 2923.15(A) and (B).

Counts 1 and 2 included a Firearm Specification pursuant to R.C. 2941.145(A). All three

Counts included a Specification for Forfeiture of a Weapon pursuant to R.C.

2941.1417(A).

{¶3} The case was tried before a jury between March 29 and April 1, 2022. The

following testimony and evidence were presented:

{¶4} Patrolman Aaron McCracken of the Ashtabula Police Department testified

that, in the early hours of July 5, 2020, he responded to a dispatch of a fight involving

multiple persons with gunshots reported. McCracken arrived at Cornell Avenue in

Ashtabula to find a chaotic scene: “There was a bunch of people fighting, people

screaming and running everywhere.” A woman approached and indicated that the person

the police were looking for was in her house. McCracken made contact with the woman’s

son, Hare, who advised that he had a gun and a CCW permit and had heard shots fired

but that he did not fire them. McCracken left to search for a victim. McCracken found

Undray Bradley, who was bleeding badly from both legs, and applied tourniquets to each

leg. After Bradley was delivered to EMS, witnesses directed McCracken to Hare as the

shooter.

{¶5} Officer McCracken then took Hare into custody. At the police station, Hare

said that “he didn’t shoot anybody and that he was intoxicated and very nervous.”

McCracken advised him to stop talking and that he would be interviewed later by

detectives. In subsequent searches of Hare’s residence, a handgun (a Smith & Wesson

.40 caliber) and magazine were found. Shell casings were also found that matched the

gun recovered from the house.

Case No. 2022-A-0048 {¶6} Undray Bradley (“Bradley”) testified that on July 4-5, 2020, he was visiting

his brother (“Orlando”) for a cookout. An argument developed between Bradley and some

of the neighbors. A female spit on Bradley, he slapped her, and “that’s when my brother

and everybody just started getting out of control.” In the ensuing melee, Bradley traded

punches with a woman named Kathy Ortiz and her boyfriend. Bradley noticed a man

come from the porch of one of the neighboring houses with a gun. Bradley described

what happened:

He said, I’m going to kill you ni***r. And I’m, like, oh, really? * * * I’m coming at him. I’m, like, literally coming at him. And he * * * pointed it at me, but then when he actually pointed it at me, he shot two in the ground, and then he pointed it back at me. He’s, like, I’m going to kill you. I’m, like, whatever. So, I’m still * * * coming up on him. I didn’t think he was going to shoot me, and he just * * * pulled the trigger.

Two bullets became lodged in Bradley’s body. He ran back to his car, which also had

bullet holes, and passed out and/or collapsed.

{¶7} Jessica Bradley testified that she was Orlando Bradley’s wife. She retrieved

video from a home security camera which recorded about twenty seconds of the incident.

The video depicted Bradley running to his car saying he had been shot while additional

shots could be heard being fired.

{¶8} Detective Wesley Burns of the Ashtabula Police Department testified that,

on the night in question, five shell casings were recovered from the roadway on Cornell

Avenue. In the house where Hare was living, a Smith & Wesson handgun secured by a

gunlock was recovered from his mother’s bedroom and a loaded magazine was

recovered from Hare’s bedroom.

Case No. 2022-A-0048 {¶9} Detective Michael Palinkas of the Ashtabula Police Department testified

that he interviewed Hare at the Ashtabula Police Department. Hare related that when the

fighting started, he was on another street. He returned to Cornell and saw Bradley shove

a neighbor, Kathy Ortiz, to the ground. He went inside his house. He heard “a series of

pops outside” and looked out the window to see someone in a hoody running away. He

remained inside until he was taken into custody by the police. He denied doing anything

wrong. Hare admitted that he had considered getting his gun but did not do so because

he felt he was too intoxicated to possess a gun at that time.

{¶10} Detective Palinkas advised Hare that he had been identified as the shooter

and that there might be video of the incident. Hare then reported that he was there when

the altercation began between the people from the Bradley house and the people from

the Higgins/Ortiz house. He heard Bradley say that somebody was going to be stabbed

this evening and someone else tell him to “get his shit” which he understood to be his

firearm. After he returned with the gun, he saw Bradley reach into his waistband. He

fired two shots at the ground to try to get Bradley and his group to back up. Hare did not

claim to have seen anyone with a weapon that evening.

{¶11} Detective Palinkas testified that interviews are normally recorded but, for

reasons unknown, the interview of Hare was purged (rewritten over) from the recording

system and that the only hardcopy of the interview that had been produced was lost.

Palinkas had made a written summary of the interview which he had reviewed in

preparation for testifying. Palinkas did not think that Hare was intoxicated at the time of

the interview.

Case No. 2022-A-0048 {¶12} Katherine Ortiz-Alvarez testified on behalf of the defense that, in July 2020,

she lived on Cornell Avenue and that Hare and Orlando Bradley were her neighbors. On

the evening in question, she was having a party at which Hare was present. Over the

course of the evening, Hare had drunk three or four beers and had a couple of “jello-

shots.” After the fighting started, she observed the Bradley brothers and Webber confront

her son (Antonio). She approached the group to learn what was happening when Bradley

punched her, knocking her to the ground. Then Orlando punched her and her daughter.

She heard Bradley say that somebody was going to get stabbed tonight as “he was

walking up on” Hare. She testified that Hare “fired warning shots into the ground” and

Bradley “was hit.” But she did not see Hare point or fire his gun at Bradley.

{¶13} Justin Fourqurean testified for the defense that, on July 4, 2020, he was

visiting Kathy Ortiz. Fourqurean stated that the altercation that evening began when

Bradley threw a punch at a lady named Jessica Spring. Fourqurean also saw Bradley

put his hands on Ortiz. In the ensuing fight, he saw Bradley running at Hare and Hare

firing shots “pointed up” like “in the air” but not aimed at anyone.

{¶14} The jury found Hare guilty of Felonious Assault (Count 2) and Using

Weapons While Intoxicated with the Specifications, but not guilty of Felonious Assault

(Count 1).

{¶15} On May 19, 2022, the sentencing hearing was held. For Felonious Assault,

Hare was sentenced to serve a minimum prison term of two years and a maximum term

of three years plus a consecutive term of three years for the Firearm Specification. For

Using Weapons While Intoxicated, Hare was sentenced to serve one hundred eighty days

in the Ashtabula County Jail concurrent with the sentence imposed for Felonious Assault.

Case No. 2022-A-0048 {¶16} On June 6, 2022, Hare filed a Notice of Appeal. On appeal, he raises the

following assignment of error: “The verdicts are against the manifest weight of the

evidence and the sufficiency of the evidence.”

{¶17} Criminal Rule 29(A) provides that “[t]he court * * * shall order the entry of a

judgment of acquittal of one or more offenses charged * * * if the evidence is insufficient

to sustain a conviction of such offense or offenses.” In reviewing the sufficiency of the

evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶18} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the

evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio

St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence

is more persuasive—the state’s or the defendant’s?” Id. An appellate court must

consider all the evidence in the record, the reasonable inferences, the credibility of the

witnesses, and 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.” (Citation omitted.) Thompkins at 387. “Since there must

be sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction

is supported by the weight of the evidence necessarily must include a finding of

Case No. 2022-A-0048 sufficiency.’” (Citation omitted.) State v. Barnes, 11th Dist. Trumbull No. 2022-T-0061,

2023-Ohio-353, ¶ 43.

{¶19} In order to convict Hare of Felonious Assault, the State was required to

prove beyond a reasonable doubt that he did knowingly “[c]ause or attempt to cause

physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”

R.C. 2903.11(A)(2). “If, at the trial of a person who is accused of an offense that involved

the person’s use of force against another, there is evidence presented that tends to

support that the accused person used the force in self-defense, defense of another, or

defense of that person’s residence, the prosecution must prove beyond a reasonable

doubt that the accused person did not use the force in self-defense, defense of another,

or defense of that person’s residence, as the case may be.” R.C. 2901.05(B)(1).

{¶20} “[A] defendant charged with an offense involving the use of force has the

burden of producing legally sufficient evidence that the defendant’s use of force was in

self-defense,” i.e., “if the defendant’s evidence and any reasonable inferences about that

evidence would allow a rational trier of fact to find all the elements of a self-defense claim

when viewed in the light most favorable to the defendant, then the defendant has satisfied

the burden.” State v. Messenger, __ Ohio St.3d __, 2022-Ohio-4562, __ N.E.3d __, ¶ 25.

Where, as here, the defendant satisfies this burden of production, the prosecution must

satisfy the “burden of disproving the defendant’s self-defense claim beyond a reasonable

doubt,” i.e., the burden “of persuading the jury beyond a reasonable doubt that [the

defendant] was not acting in self-defense when he [used force against another].” Id. at ¶

27, 26.

Case No. 2022-A-0048 {¶21} The elements of a self-defense claim include the following: “(1) that the

defendant was not at fault in creating the situation giving rise to the affray; (2) that the

defendant had a bona fide belief that he [or she] was in imminent danger of death or great

bodily harm and that his [or her] only means of escape from such danger was in the use

of such force; and (3) that the defendant did not violate any duty to retreat or avoid the

danger.” Messenger at ¶ 14.

{¶22} “Implicit in the ‘second element of self-defense, i.e., that the defendant’s

use of deadly force was in “good faith,” is the requirement that the degree of force used

was “warranted” under the circumstances and “proportionate” to the perceived threat.’”

(Citation omitted.) State v. Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶

58; State v. Montgomery, 2015-Ohio-4652, 48 N.E.3d 1042, ¶ 16 (12th Dist.) (“[t]he

second element of self-defense involves determining whether the defendant’s use of force

was ‘reasonably necessary to repel the attack’ or in other words, whether the defendant

used excessive force”); State v. Rose, 11th Dist. Ashtabula No. 2021-A-0015, 2022-Ohio-

3197, ¶ 48 (“[t]he degree of force permitted depends upon what is reasonably necessary

to protect that individual from the imminent use of unlawful force”) (citation omitted).

{¶23} Hare argues that “[u]nder R.C. § 2901.05 [he] was permitted to engage the

Bradley brothers and Webber when they became violent, especially when a female guest

was knocked unconscious and threats of stabbings were heard.” Brief of Appellant at 11.

Considering the facts of the present case, the jury’s conclusion that Hare was not justified

in the use of force is not against the weight of the evidence. The brawl that occurred on

Cornell Avenue was essentially a fist fight that did not warrant the use of deadly force.

State v. Jordan, 1st Dist. Hamilton No. C-210603, 2022-Ohio-2566, ¶ 60 (“the jury did not

Case No. 2022-A-0048 clearly lose its way and create a manifest miscarriage of justice by finding that [the] state

met its burden of persuasion to show the absence of self-defense” where “Jordan [by

stabbing the victim] used more force than was necessary when the men were engaged

in a fist fight or tussle”); State v. Kendricks, 10th Dist. Franklin Nos. 10AP-114 and 10AP-

115, 2010-Ohio-6041, ¶ 41 (“the jury in weighing the credibility of the various witnesses

reasonably could conclude defendant was the only one firing a gun and in effect escalated

a fist fight into a shoot out”).

{¶24} We note that, although Bradley was reported to have threatened that

somebody was going to be stabbed, there was no evidence that he brandished or even

possessed a knife. Bradley only approached Hare after Hare had retrieved the firearm

and brandished it at Bradley. Ortiz was not knocked unconscious. Rather, after being

struck by Bradley, Ortiz testified: “I was on the ground. My daughter’s fiancé helped me

up. I was ready to fight, as anybody would be.” Moreover, there was abundant evidence

that Hare fired to injure rather than just to scare or warn. Bradley and Webber both

testified that Hare pointed the gun directly at Bradley. Bradley was struck in both thighs

and Bradley’s vehicle was struck. The home security video showed that shots continued

to be fired after Bradley had turned and retreated to his vehicle. Significant also is the

fact that in the aftermath of the shooting Hare did not assert self-defense or defense of

another but attempted to conceal his identity as the shooter and deny his involvement in

the shooting. Based on the foregoing, the State satisfied its burden of persuasion on the

issue of self-defense.

Case No. 2022-A-0048 {¶25} Hare argues that “[t]he State also failed to prove that Appellant was under

the influence of any substance when handling his firearm so that Count 3 fails.” Brief of

the appellant at 12. We disagree.

{¶26} In order to convict Hare of Using Weapons While Intoxicated, the State was

required to prove beyond a reasonable doubt that he did, “while under the influence of

alcohol or any drug of abuse, * * * carry or use any firearm or dangerous ordnance.” R.C.

2923.15(A). For the purposes of this statute, “‘[u]nder the influence’ has been defined as

the condition in which a person finds himself after having consumed some intoxicating

beverage, whether mild or potent, and in such quantity, whether small or great, that its

effect on the person adversely affects his actions, reactions, conduct, movements or

mental processes or impairs his reactions to an appreciable degree, under the

circumstances then existing so as to deprive him of the clearness of the intellect and

control of himself which he would otherwise possess.” State v. Weber, 2019-Ohio-916,

132 N.E.3d 1140, ¶ 13 (12th Dist.) (cases cited).

{¶27} A defendant’s admission that he was intoxicated and testimony that he had

been consuming alcohol is sufficient evidence to prove that he is under the influence of

alcohol. In the present case, Hare admitted to Officer McCracken and Detective Palinkas

that he was intoxicated and did not or at least should not have been handling a firearm.

Webber and Ortiz both testified to having seen Hare consuming alcohol throughout the

evening. Moreover, there was witness testimony that Hare had been carrying his firearm

and had even discharged it prior to melee that occurred around midnight. Webber had

earlier in the day asked Hare to put the handgun away and he did so. Ortiz testified that

a woman named Laura had asked her to ask Hare to put the gun away (although Ortiz

Case No. 2022-A-0048 refused to do this). The testimony at trial of Hare’s intoxication is both competent and

credible. The conviction for Using Weapons While Intoxicated was not against the weight

of the evidence.

{¶28} Hare’s sole assignment of error is without merit.

{¶29} For the foregoing reasons, Hare’s convictions for Felonious Assault and

Using Weapons While Intoxicated are affirmed. Costs to be taxed against the appellant.

JOHN J. EKLUND, P.J.,

EUGENE A. LUCCI, J.,

concur.

Case No. 2022-A-0048