[Cite as State v. Harper, 2022-Ohio-1966.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs- Case No. 21CA000019 JACOB HARPER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Guernsey County Court of Common Pleas, Case No. 20 CR 224
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 10, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LINDSEY K. ANGLER GEORGE URBAN Prosecuting Attorney 116 Cleveland Avenue, N.W. – Ste. #808 Guernsey County Prosecutor’s Office Canton, Ohio 44702
JASON R. FARLEY Assistant Prosecuting Attorney Guernsey County Prosecutor’s Office 627 Wheeling Avenue Cambridge, Ohio 43725 Guernsey County, Case No. 21CA000019 2
Hoffman, J. {¶1} Defendant-appellant Jacob Harper appeals the judgment entered by the
Guernsey County Common Pleas Court convicting him of aggravated murder (R.C.
2903.01(A)) with a firearm specification, murder (R>C. 2903.02(A)) with a firearm
specification, and improper handling of a firearm in a motor vehicle (R.C. 2923.16(B)) and
sentencing him to an aggregate term of life imprisonment without the possibility of parole.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In the evening of August 22, 2020, Alexander Anderson called his friend
Paige Willis for a ride after his motorcycle broke down. Willis took Anderson to her house,
where they did methamphetamine. During the early morning hours of August 23, 2020,
Anderson began texting with his friend Katelan who had his car. Willis agreed to drive
Anderson from Licking County to Guernsey County on the morning of August 23 to
retrieve Anderon’s car.
{¶3} Anderson was driving Willis’s vehicle in a rural area of Guernsey County.
While Willis was giving Anderson a “blow job,” Anderson lost control of the car and it
became wedged between trees in a ditch. Anderson told Willis his car was right up the
road, and he would walk to retrieve his car. After he retrieved his car, they could figure
out what to do about Willis’s car. Anderson returned about an hour later with his car.
{¶4} While Anderson and Willis were trying to figure out how to get her car out,
a black SUV driven by Kasey Means drove by, then turned around and came back.
Appellant got out of the SUV. Anderson stated he got his car from Katelan at Daniel
Welch’s house. Appellant also knew Daniel. Anderson told Appellant he was Daniel’s Guernsey County, Case No. 21CA000019 3
“plug,” slang for drug dealer. Appellant said his dad could help with the car, and he and
Means left.
{¶5} Means drove to Appellant’s house, where Appellant yelled for a man she
knew as “Jack Jack.” After speaking to Jack Jack outside of Means’s hearing, both men
got in the car. They had no conversation in the car. They returned to where Anderson
and Willis were waiting.
{¶6} Appellant got out of the car and began talking to Anderson. The
conversation was not hostile or aggressive. Means saw Appellant begin to get irritated,
and heard Appellant say to Anderson, “You know what it is.” Tr. 358. Appellant was
holding a gun to Anderson. Anderson did not have a gun, and his hands were hanging
down at his sides. Appellant shot Anderson once. As Anderson backed away, Appellant
shot him two more times. Appellant then jumped in the car and told Means to drive away.
{¶7} Willis was putting her bags into Anderson’s car, and heard a “pop pop”
sound like a gun. Tr. 319. She saw Anderson stumbling backwards, then heard more
shots. Appellant got in the black SUV, and it drove away. Anderson fell partly into the
vehicle. He told Willis he was dying.
{¶8} Willis heard the black SUV stop. Appellant and Jack Jack remembered
Willis was at the scene and could identify them, and they wanted to “get rid” of Willis. Tr.
365. When Anderson heard the SUV stop, he told Willis to leave. She pushed him out
of the vehicle, and drove away. Willis called 911, and led police to where Anderson’s
dead body was found lying in the road. A gun was found in Anderson’s car. While Willis
knew Anderson had a gun, she did not see him with a gun on August 23, and she did not
see him with a gun in his hand while he was talking to Appellant. Guernsey County, Case No. 21CA000019 4
{¶9} Meanwhile, Appellant told Means they needed to go somewhere safe. She
drove Appellant to her mom’s house in Zanesville. Means was afraid of Appellant, as she
had witnessed him shoot Anderson, and he reminded her, “no face, no case.” Tr. 369.
Appellant convinced Means to drive him back to Guernsey County. She told her family if
they did not hear from her in an hour to call the police. She was crying as they drove
back to Guernsey County, and Appellant yelled at her, calling her a crybaby. Appellant
instructed her to park at an apartment complex in Newcomerstown. He got out of the car.
Means told Appellant she wasn’t going with him to Guernsey County, and she got in her
car and left. Appellant was eventually apprehended in West Virginia.
{¶10} Appellant was indicted by the Guernsey County Grand Jury on aggravated
murder and murder, each with firearm specifications, and improper handling of a firearm
in a motor vehicle. The case proceeded to jury trial in the Guernsey County Common
Pleas Court.
{¶11} At trial, Appellant testified when they returned to the scene where Willis’s
car was in the ditch, he told Anderson he could not help with the car. Appellant tried to
purchase meth from Anderson for $500. He testified when he reached into his pocket for
the money, Anderson brought a gun from around his back and pointed it at Appellant. At
this point, Appellant testified he realized he was being robbed, and pulled out his own gun
and fired. He testified Anderson fell against the car door, then started bringing his gun
back up toward Appellant. Appellant testified he fired blindly three times, then jumped in
the SUV and left the scene.
{¶12} The jury found Appellant guilty of all charges. The trial court found the
convictions of aggravated murder and murder merged, and the State elected to have Guernsey County, Case No. 21CA000019 5
Appellant sentenced for aggravated murder. The trial court sentenced Appellant to a term
of incarceration of life without the possibility of parole for aggravated murder, and
eighteen months incarceration for improper handling of a firearm in a motor vehicle, for
an aggregate term of incarceration of life without possibility of parole. It is from the June
30, 2021 judgment of the trial court Appellant prosecutes his appeal, assigning as error:
I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT.
II. THE APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED.
III. THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE APPELLANT DID NOT USE THE FORCE USED IN
SELF DEFENSE.
IV. THE TRIAL COURT COMMITTED ERROR BY FAILING TO
PRESENT A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE
PREDICATED ON THE VICTIM’S USE OF A GUN THAT PROVOKED THE
DEFENDANT AND AGGRAVATED ASSAULT BY THE APPELLANT.
V. THE TRIAL COURT ERRED BY IMPOSING THE SENTENCE OF
LIFE WITHOUT THE POSSIBILITY OF PAROLE. Guernsey County, Case No. 21CA000019 6
I., II.
{¶13} In his first and second assignments of error, Appellant argues the judgment
convicting him of aggravated murder and murder are against the manifest weight and
sufficiency of the evidence.
{¶14} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶15} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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,
paragraph two of the syllabus (1991).\
{¶16} R.C. 2903.01(A) defines aggravated murder, “No person shall purposely,
and with prior calculation and design, cause the death of another.” Appellant specifically
argues there is no evidence to establish he acted with prior calculation and design.
{¶17} The Ohio Supreme Court held it is not possible to formulate a bright-line
test to distinguish between the presence or absence of prior calculation and design, but
instead each case turns on the particular facts and evidence presented at trial. State v.
Taylor, 78 Ohio St.3d 15, 20 (1997). In Taylor v. Mitchell, 296 F.Supp.2d 784 (2003), the Guernsey County, Case No. 21CA000019 7
habeas corpus action considered by the U.S. Northern District of Ohio Federal Court
regarding the conviction reviewed by the Ohio Supreme Court in Taylor, supra, the federal
court summarized Ohio law regarding prior calculation and design as follows:
In view of the understandable lack of a bright line rule governing
determinations of whether the proof shows prior calculation and design,
Ohio courts have consistently considered various factors in addition to those
- the defendant's relationship with the victim, the thought given by the
defendant to the means and place of the crime, and the timing of the
pertinent events - recited in Taylor, 78 Ohio St.3d at 19, 676 N.E.2d 82,
when determining whether the defendant engaged in prior calculation and
design.
Among these other, frequently considered factors are:
—whether the defendant at any time expressed an intent to kill.
—there was a break or interruption in the encounter, giving time for
reflection.
—whether the defendant displayed a weapon from the outset.
—whether the defendant retrieved a weapon during the encounter.
—the extent to which the defendant pursued the victim.
—the number of shots fired.
{¶18} Id. at 821–822, internal citations omitted. Guernsey County, Case No. 21CA000019 8
{¶19} The state can prove “prior calculation and design” from the circumstances
surrounding a murder in several ways, including evidence the murder was executed in
such a manner that circumstantially proved the defendant had a preconceived plan to kill,
such as where the victim is killed in a cold-blooded, execution-style manner. State v.
Hicks, 8th Dist. Cuyahoga No. 102206, 2015-Ohio-4978, ¶ 40.
{¶20} In the instant case, during the initial meeting between Anderson and
Appellant, Appellant discovered he and Anderson had a mutual friend, and Appellant was
the “plug,” or meth dealer, for this mutual friend. While Appellant claimed he was going
to get equipment to help Willis and Anderson get their car out of the ditch, instead he went
and talked to his friend, “Jack Jack.” While Means did not hear the conversation between
Appellant and his friend, they were quiet on the ride back to the location where Anderson
and Willis were located, and did not have materials with them to attempt to retrieve the
vehicle. Willis and Means both testified the encounter between Anderson and Appellant
was not hostile. Kasey testified Appellant displayed the weapon and said, “You know
what it is,” to Anderson. Appellant shot Anderson one time, after which Anderson backed
away. Appellant then shot Anderson two more times. We find the evidence was sufficient
from which the jury could find Appellant shot the victim in a cold-blooded, execution style
manner, providing circumstantial evidence of a preconceived plan to kill. See Hicks,
supra.
{¶21} Appellant also argues the evidence was insufficient to demonstrate he
“purposely” killed Anderson, as required to support his murder conviction. Murder is
defined by R.C 2903.02(A), “No person shall purposely cause the death of another.” R.C.
2901.22(A) defines the mental state of “purposely”: Guernsey County, Case No. 21CA000019 9
A person acts purposely when it is the person's specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender's specific intention to engage in
conduct of that nature.
{¶22} Counsel for Appellant conceded at trial there was sufficient evidence to go
to the jury on the crime of murder, and only argued there was insufficient evidence of prior
calculation and design required to prove aggravated murder. Tr. 462. We find Means’s
testimony Appellant pointed a gun at Anderson and fired three times sufficient evidence
from which the trier of fact could conclude Appellant acted purposely in causing the death
of Anderson.
{¶23} Appellant argues the testimony of Means and Willis was not credible, while
his version of the events is credible. He argues his version of the events is supported by
the physical evidence at the scene. We find the physical evidence largely unhelpful in
this case, as the only pertinent dispute between Appellant’s version of the events and the
testimony of Willis and Means is whether Anderson pointed a gun at Appellant, causing
Appellant to fire in self-defense, or whether Anderson was unarmed at the time Appellant
shot him. Both women testified Anderson did not have a gun during the encounter.
Although a gun was found by police under a book bag and other items on the passenger
seat of Anderson’s vehicle, we find the jury did no lose its way in finding the testimony
Anderson did not have a weapon in his hands at the time of the murder to be credible.
The judgment is not against the manifest weight of the evidence. Guernsey County, Case No. 21CA000019 10
{¶24} Appellant’s first and second assignments of error are overruled.
III.
{¶25} In his third assignment of error, Appellant argues the State failed to prove
beyond a reasonable doubt he did not shoot Anderson in self-defense.
{¶26} The elements of self-defense in the use of deadly force are: (1) the
defendant was not at fault in creating the situation giving rise to the affray; (2) the
defendant had a bona fide belief he was in imminent danger of death or great bodily harm
and his only means of escape from such a danger was in the use of such force, and (3)
the defendant did not violate any duty to retreat or avoid the danger. State v. Barnes, 94
Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).
{¶27} Pursuant to R.C. 2901.05, if there is evidence presented at trial which tends
to support a claim the defendant used force against another in self-defense or in defense
of another, the State must prove beyond a reasonable doubt the defendant did not use
the force in self-defense or defense of another. R.C. 2901.05(B)(1). Once the initial
showing is made, the burden of persuasion requires the State to disprove at least one of
the elements of self-defense beyond a reasonable doubt. State v. Williams, 5th Dist. Stark
No. 2019CA00188, 2021-Ohio-443, ¶17.
{¶28} In this case, the State does not contest there was evidence tending to show
Appellant acted in self-defense. Therefore, the State was required to disprove self-
defense involving deadly force by proving beyond a reasonable doubt Appellant either:
(1) was at fault in creating the situation giving rise to the affray; or (2) did not have a bona
fide belief he was in imminent danger of death or great bodily harm for which the use of Guernsey County, Case No. 21CA000019 11
deadly force was his only means of escape, or (3) violated a duty to retreat or avoid the
danger. Id. at ¶18.
{¶29} The State need only disprove one of the elements of self-defense beyond
a reasonable doubt. State v. Williams, 9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶
10. In reviewing a sufficiency of the evidence challenge involving self-defense, we must
view the evidence in a light most favorable to the State, and determine whether any
rational trier of fact could have found the State disproved at least one of the elements of
self-defense beyond a reasonable doubt. Id. at ¶19, citing State v. Davis, 10th Dist.
Franklin No. 19AP-521, 2020-Ohio-4202, ¶ 27; State v. Smith, 1st Dist. Hamilton No. C-
190507, 2020-Ohio-4976, ¶51.
{¶30} Kasey Means testified Appellant pulled a gun out and shot Anderson, while
Anderson was not holding a gun, and had his hands at his sides. She testified after
Appellant shot Anderson the first time, Anderson clutched his stomach and backed away,
whereupon Appellant shot Anderson two more times. Paige Willis testified Anderson did
not have a gun in his hand when he was talking to Appellant Both witnesses testified
there was not a fight or altercation prior to the shooting. We find this testimony is sufficient
evidence from which a rational trier of fact could determine the State proved Appellant
did not have a bona fide belief he was in imminent danger of death or great bodily harm
for which the use of deadly force was his only means of escape.
{¶31} The third assignment of error is overruled. Guernsey County, Case No. 21CA000019 12
IV.
{¶32} In his fourth assignment of error, Appellant argues the trial court erred in
failing to instruct the jury on the lesser included offenses of voluntary manslaughter and
involuntary manslaughter, with aggravated assault as the predicate offense.
{¶33} A jury charge on a lesser included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser or inferior offense. See, e.g., State v. Thomas,
40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. In making this
determination, the court must view the evidence in a light most favorable to the defendant.
State v. Smith, 89 Ohio St.3d 323, 331, 731 N.E.2d 645(2000). Nevertheless, an
instruction is not warranted every time any evidence is presented on a lesser-included
offense. There must be sufficient evidence to allow a jury to reasonably reject the greater
offense and find the defendant guilty on a lesser included offense. State v. Shane, 63
Ohio St.3d at 632–633, 590 N.E.2d 272; State v. Conway, 108 Ohio St.3d at 240,842
N.E.2d at 1027, 2006–Ohio–791 at ¶ 134.
{¶34} In Shane, supra, the Ohio Supreme Court cautioned:
Past decisions of this court have sometimes given the erroneous
impression that, whenever there is “some evidence” that a defendant in a
murder prosecution may have acted in such a way as to satisfy the
requirements of the voluntary manslaughter statute, an instruction on the
inferior-degree offense of voluntary manslaughter must always be given.
See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378 Guernsey County, Case No. 21CA000019 13
N.E.2d 738, paragraph four of the syllabus. See, also, Tyler, supra, 50 Ohio
St.3d at 37, 553 N.E.2d at 592. That clearly never has been the law in this
state, nor is it the law today. The “some evidence” referred to in those cases
is simply an abbreviated way of saying that a jury instruction must be given
on a lesser included (or inferior-degree) offense when sufficient evidence is
presented which would allow a jury to reasonably reject the greater offense
and find the defendant guilty on a lesser included (or inferior-degree)
offense.
To require an instruction to be given to the jury every time “some
evidence,” however minute, is presented going to a lesser included (or
inferior-degree) offense would mean that no trial judge could ever refuse to
give an instruction on a lesser included (or inferior-degree) offense. Trial
judges are frequently required to decide what lesser included (or inferior-
degree) offenses must go to the jury and which must not. The jury would be
unduly confused if it had to consider the option of guilty on a lesser included
(or inferior-degree) offense when it could not reasonably return such a
verdict.
{¶35} 63 Ohio St.3d at 632–33, 590 N.E.2d at 275.
{¶36} In the instant case, Appellant presented a claim of self-defense, which, if
accepted by the jury, would be a complete defense to the crime charged. Whether or not
a defendant raises a complete defense to the charged crime, the State has the burden to
prove beyond a reasonable doubt all of the elements of the crime charged. State v. Wine, Guernsey County, Case No. 21CA000019 14
140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 33. The fact the evidence could
be interpreted by the jury as questionable on a single element does not mean the
defendant committed no crime. Id. “Simply put, a jury can both reject an all-or-nothing
defense—e.g., alibi, mistaken identity, or self-defense—and find that the state has failed
to meet its evidentiary burden on an element of the charged crime.” Id. In such a case,
“if due to some ambiguity in the state's version of the events involved in a case the jury
could have a reasonable doubt regarding the presence of an element required to prove
the greater but not the lesser offense, an instruction on the lesser included offense is
ordinarily warranted.” Id., citing State v. Solomon, 66 Ohio St.2d 214, 221, 421 N.E.2d
139.
{¶37} When reviewing a trial court's jury instructions, the proper standard of
review for an appellate court is whether the trial court's refusal to give a requested jury
instruction constituted an abuse of discretion under the facts and circumstances of the
case. State v. Miku, 5th Dist. Stark No. 2017 CA 00057, 2018-Ohio-1584, 111 N.E.3d
558, ¶ 53.
{¶38} Appellant requested the trial court instruct the jury on involuntary
manslaughter with a predicate offense of aggravated assault. He argued there was
sufficient evidence presented through Appellant’s own testimony from which the jury
could find Appellant was provoked by Anderson into shooting him. The State disagreed,
and suggested if the court was inclined to give a lesser included offense instruction, the
State would prefer voluntary manslaughter instead of involuntary manslaughter, which
includes much of the same language as aggravated assault. The trial court stated it found Guernsey County, Case No. 21CA000019 15
no evidence presented about sudden passion or a sudden fit of rage, and denied the
request. Tr. 566-69.
{¶39} Involuntary manslaughter is defined, “No person shall cause the death of
another…as a proximate result of the offender's committing or attempting to commit a
felony.” Appellant suggested the predicate felony offense in this case is aggravated
assault, as defined by R.C. 2903.12:
(A) No person, 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, shall knowingly:
(1) Cause serious physical harm to another or to another's unborn;
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous ordnance, as
defined in section 2923.11 of the Revised Code.
{¶40} Voluntary manslaughter is defined by R.C. 2903.03:
(A) No person, 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, shall knowingly cause the death of another or the
unlawful termination of another's pregnancy. Guernsey County, Case No. 21CA000019 16
{¶41} In the instant case, there was no evidence presented demonstrating
Appellant acted under the influence of sudden passion or in a sudden fit of rage, brought
on by serious provocation occasioned by the victim. The State’s witnesses testified the
victim did nothing to provoke the attack, and there was no evidence of an altercation prior
to Appellant pulling a gun and shooting the victim. Appellant testified solely he believed
he was being robbed when the victim pulled a gun on him, and he shot the victim in self-
defense. Nothing in Appellant’s testimony suggests the victim provoked him into a sudden
fit of rage. Because there was no evidence to support the giving of an instruction on
involuntary manslaughter with a predicate offense of aggravated assault or an instruction
on voluntary manslaughter, we find the trial court did not abuse its discretion in denying
Appellant’s request for a lesser-included offense instruction.
{¶42} The fourth assignment of error is overruled.
V.
{¶43} In his fifth assignment of error, Appellant argues the trial court erred in
sentencing him to life imprisonment without possibility of parole for the crime of
aggravated murder. He specifically argues the trial court failed to consider rehabilitation
when weighing the statutory factors set forth in R.C. 2929.11 and 2929.12.
{¶44} R.C. 2953.08 governs appellate review of felony sentencing. R.C.
2953.08(A) states “[i]n addition to any other right to appeal and except as provided in
division (D) of this section, a defendant who is convicted of or pleads guilty to a felony
may appeal as a matter of right the sentence imposed upon the defendant on [one of the
grounds listed in subsections (A)(1) through (A)(5) ]”. In turn, R.C. 2953.08(D)(3) Guernsey County, Case No. 21CA000019 17
provides: “A sentence imposed for aggravated murder or murder pursuant to sections
2929.02 to 2929.06 of the Revised Code is not subject to review under this section.”
{¶45} The Ohio Supreme Court has held R.C. 2953.08(D)(3) does not preclude
an appeal of a sentence for aggravated murder or murder which is based on constitutional
grounds. State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶22.
{¶46} However, in the instant case, Appellant does not challenge his sentence on
constitutional grounds, but rather argues the trial court’s sentence was based on an
improper weighing of the statutory factors. As such, pursuant to R.C. 2953.08(D)(3) we
are without statutory jurisdiction to review Appellant’s sentence.
{¶47} The fifth assignment of error is overruled.
{¶48} The judgment of the Guernsey County Common Pleas Court is affirmed.
By: Hoffman, J. Wise, Earle, P.J. and Gwin, J. concur