IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2025-P-0090
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
KIREY L. HOLLEY, Trial Court No. 2025 CR 00014 Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Decided: September 14, 2026 Judgment: Affirmed
Connie J. Lewandowski, Portage County Prosecutor, and Timothy P. Bogner, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Kirey L. Holley, appeals his judgment of conviction for felonious assault, two firearm specifications, domestic violence, and two counts of endangering children following a jury trial in the Portage County Court of Common Pleas.
{¶2} Appellant raises three assignments of error, arguing (1) the evidence was insufficient to support the jury’s guilty verdict for felonious assault because he had acted in self-defense; (2) his conviction for felonious assault is against the manifest weight of the evidence because he had acted in self-defense; and (3) the record clearly and convincingly fails to support the trial court’s consecutive-sentence findings.
{¶3} Having reviewed the record and the applicable law, we find that Appellant’s assignments of error are without merit. First, Appellant has not presented a valid sufficiency argument. Appellant challenges whether the State met its burden of disproving that Appellant acted in self-defense, which implicates the manifest weight of the evidence. Second, Appellant has not established that his conviction for felonious assault is against the manifest weight of the evidence. The jury may have concluded that Appellant’s escalation of a fistfight into a shooting and stabbing was unwarranted and disproportionate to the threat posed to him. Third, even if the record clearly and convincingly did not support the trial court’s consecutive-sentence findings, Appellant cannot establish reversible error. Although the trial court made consecutive-sentence findings, it was not legally required to do so; rather, consecutive sentences were mandatory under the applicable statutes.
{¶4} Therefore, we affirm the judgment of the Portage County Court of Common Pleas.
Substantive and Procedural History
{¶5} Appellant lived in North Carolina. Two of his children lived with their mother, V.G., in an apartment in Ravenna, Ohio. Shortly before Christmas of 2024, Appellant visited V.G. and the children in Ohio. According to V.G., Appellant “kind of just showed up.”
{¶6} At approximately midnight on December 30, 2024, V.G. and her infant child were on the bed in V.G.’s upstairs bedroom with the door closed and locked. V.G. was talking to her brother, L.W., via FaceTime. Appellant loudly banged on the V.G.’s bedroom door. According to V.G., she let Appellant in, and he started choking her, which
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caused her to accidentally lie on top of the infant. Appellant also hung up V.G.’s FaceTime call with her brother, threw V.G.’s phone at her, and threw his belongings down the stairs, stating that he was leaving and never coming back.
{¶7} A short time later, L.W. arrived at the apartment from his home in Akron.
He searched the apartment to look for Appellant, but Appellant was not present. V.G. made L.W. a plate of food. Between 3:00 and 4:00 a.m., Appellant returned to the apartment, and V.G. let him in the back door. L.W. angrily confronted Appellant about his actions toward V.G., and they began arguing. L.W., who was physically larger than Appellant, pushed Appellant several times, got him to the ground, and punched him in the face. V.G. told L.W. to stop, and he complied.
{¶8} Appellant got up and looked through his belongings by the front door. L.W.
began throwing Appellant’s belongings out of the front door and told Appellant that he needed to leave. Appellant retrieved a black bag from his suitcase and walked up the stairs. Appellant then pulled out a gun, shot at L.W., and said, “What’s up now, fat boy.” According to L.W., Appellant’s shot struck his abdomen. L.W. ran out of the front door, and Appellant chased after him. V.G. ran upstairs, gathered the children, ran to a neighbor’s house, and called 911.
{¶9} L.W. ran through the apartment complex’s parking lot, slipped on the grass, and fell in mud. Appellant followed closely behind and attempted to unjam his gun. L.W. ran back in the house and tried to close the door. Appellant successfully pried the door open and entered the apartment. The two men struggled over the gun, and it fired into L.W.’s bicep. L.W. managed to press the gun’s magazine release, and the magazine fell out. L.W. grabbed the gun and threw it. While blood spewed from L.W.’s arm, Appellant
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told him, “breath, big boy, breathe, big boy.” According to L.W., this was because Appellant wanted him to “bleed out.” Appellant next went into the kitchen, grabbed kitchen shears, and stabbed L.W. in the hand, leg, chest, back, and head.
{¶10} Deputy Dolman of the Portage County Sheriff’s Department arrived at the apartment complex in response to a reported shooting. He exited his vehicle, obtained his rifle, and approached the front door. The deputy noticed that the door was partially opened and observed large blood smears on the wall. He announced his presence and heard a male’s voice say, “hurry up, he’s trying to kill me.” The deputy opened the door and observed the room in disarray and Appellant straddling L.W. on the ground. Deputy Dolman ordered Appellant off of L.W. and escorted Appellant out of the apartment, where Deputy Hoffman detained him.
{¶11} Deputy Doman did not observe any injuries on Appellant. However, he observed that L.W. was covered in a significant amount of blood and that there was also significant amount throughout the apartment. L.W. remained on the ground and identified himself, and a deputy applied a tourniquet to L.W.’s injured arm.
{¶12} Once Appellant was outside, he became noncompliant, so Deputy Hoffman took him to the ground and patted him down for weapons. Deputy Hoffman noticed that Appellant had a split lip and a significant amount of blood on his clothing and skin but no other injuries. EMS arrived and separately transported Appellant and L.W. to the hospital. EMS personnel handed Deputy Hoffman a pistol magazine containing a live round that was retrieved from Appellant’s pants pocket.
{¶13} Detective Springer and others processed the crime scene. Inside the apartment near the front door, deputies observed blood splatter and smears as well as a
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defect on the wall created by a bullet. Deputies also recovered a live round and a fired casing, the kitchen shears, and Appellant’s gun, which contained a live round in the chamber. In an upstairs bedroom, deputies recovered tissues lying on the bed that appeared to contain blood droplets. Outside the apartment, deputies observed blood droplets and recovered a live round.
{¶14} Detective Hanna recovered surveillance video footage from across the street, which showed a large man wearing a white t-shirt, later identified as L.W., being pursued by a smaller man wearing a black hoodie, later identified as Appellant.
{¶15} At the hospital, Deputy Noall separately interviewed and took photos of Appellant and L.W. With respect to L.W., Deputy Noall observed swelling on his face, dried blood all over his body, gunshot wounds to his right arm and his abdomen, and several small puncture wounds on his body. With respect to Appellant, Deputy Noall observed dried blood around his mouth and on his hands and feet, a cut lip, and that he was wearing a neck brace. Both men told Deputy Noall that they did not have or own any firearms.
{¶16} Later in the afternoon, V.G. called Detective Hanna and told him that while she was cleaning up the blood within the home, she found two bags that belonged to Appellant. Detective Hanna retrieved the bags, and one contained Appellant’s identification and a box of ammunition that was missing several rounds.
{¶17} On January 2, 2025, the Portage County Grand Jury indicted Appellant on the following seven counts: attempted murder, a first-degree felony in violation of R.C. 2923.02, 2903.02(A), and 2929.02 (count 1), with a firearm specification pursuant to R.C. 2929.14 and 2941.145; two counts of felonious assault, second-degree felonies in
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violation of R.C. 2903.11 (counts 2 and 3), with firearm specifications pursuant R.C. 2929.14 and 2941.145; strangulation, a fourth-degree felony in violation of R.C. 2903.18 (count 4); domestic violence, a first-degree misdemeanor in violation of R.C. 2919.25 (count 5); and two counts of endangering children, first-degree misdemeanors in violation of R.C. 2919.22 (counts 6 and 7).
{¶18} On January 6, 2025, Appellant was arraigned and pleaded not guilty.
{¶19} On July 24, 2025, Appellant filed a notice of self-defense pursuant to Crim.R. 2.2.
{¶20} The case was tried to a jury on September 30 and October 1, 2025. The State presented testimony from Deputy Dolman, L.W., Deputy Hoffman, Detective Springer, Deputy Noall, V.G., and Detective Hanna. As exhibits, the State submitted photographs of the scene, the recovered items, Appellant, and L.W.; the surveillance video footage; Appellant’s and L.W.’s medical records; and Deputy Dolman’s body camera footage. Following the State’s case-in-chief, Appellant moved for acquittal pursuant to Crim.R. 29, which the trial court denied.
{¶21} Appellant stipulated to owning and possessing the gun and submitted three exhibits: his medical records and two photographs of V.G.’s alleged injuries. Appellant renewed his Crim.R. 29 motion for acquittal, which the trial court denied.
{¶22} On October 2, 2025, the jury returned verdicts of not guilty on attempted murder (count 1) and strangulation (count 4) and guilty on the remaining counts and the firearm specifications involving counts 2 and 3.
{¶23} On November 17, 2025, the trial court held a sentencing hearing. The trial court merged the two felonious assault counts (counts 2 and 3) and sentenced Appellant
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to four to six years in prison on count 2; three years in prison on each of the two firearm specifications; 180 days in jail each on counts 5 (domestic violence), 6 (endangering children) and 7 (same); court costs, and a $300 fine. The trial court ordered the prison terms to be served consecutively and the jail terms to be served concurrently and granted Appellant credit for 322 days. The court also made consecutive-sentence findings pursuant to R.C. 2929.14(C)(4).
{¶24} On November 25, 2025, the trial court filed Appellant’s judgment of conviction.
{¶25} On December 10, 2025, Appellant timely appealed and raises three assignments of error.
Sufficiency of the Evidence
{¶26} Appellant’s first assignment of error states: “The evidence was insufficient to support the jury verdict of guilty of felonious assault when Appellant was acting in self- defense.”
{¶27} “‘“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, 1997-Ohio- 52, ¶ 23, quoting Black’s Law Dictionary (6th Ed. 1990). “In essence, sufficiency is a test of adequacy.” Id. “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence
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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.” Id.
{¶28} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(1), which provides that “[n]o person shall knowingly . . . [c]ause serious physical harm to another . . . .” Appellant does not argue that the State failed to prove any of the elements of felonious assault. Rather, he argues that he acted in self-defense.
{¶29} “A person is allowed to act in self-defense . . . .” R.C. 2901.05(B)(1). “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, . . . the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense . . . .” Id.
{¶30} The Supreme Court of Ohio has explained that “[s]elf-defense remains an affirmative defense in Ohio, and an affirmative defense is not an element of a crime[.]” State v. Messenger, 2022-Ohio-4562, ¶ 24. “[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.” Id. at ¶ 25. “[I]f 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.” Id. The State then has the “burden of persuading the jury beyond a reasonable doubt that [the defendant] was not acting in self-defense when he [used force].” Id. at ¶ 26. Therefore, “the sufficiency-of- the-evidence standard of review applies to [the defendant’s] burden of production[,] and
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a manifest-weight-of-the-evidence standard of review applies to the [S]tate’s burden of persuasion.” Id.
{¶31} Appellant’s argument involves whether the State satisfied its burden of persuasion, which implicates the manifest weight of the evidence, not its sufficiency. Therefore, Appellant has not presented a valid sufficiency argument.
{¶32} Accordingly, Appellant’s first assignment of error is without merit.
Manifest Weight of the Evidence
{¶33} Appellant’s second assignment of error states: “Appellant’s conviction for felonious assault was against the manifest weight of the evidence when Appellant acted in self-defense.”
{¶34} “[W]eight of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 2007-Ohio-2202, ¶ 25. “[A] reviewing court asks whose evidence is more persuasive—the [S]tate’s or the defendant’s?” Id. In considering whether a conviction is against the manifest weight of the evidence, “‘[t]he [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.’” State v. Thompkins, 1997-Ohio- 52, ¶ 24, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). “‘The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin at 175.
{¶35} “A self-defense claim includes the following elements:
(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
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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, 2022-Ohio-4562, at ¶ 14, quoting State v. Barnes, 2002-Ohio-68, ¶ 11.
{¶36} “[A] person has no duty to retreat before using force in self-defense . . . if that person is in a place in which the person lawfully has a right to be.” R.C. 2901.09(B). The State must disprove at least one of the elements of self-defense beyond a reasonable doubt to meet its burden of persuasion. State v. Alejo, 2026-Ohio-2250, ¶ 108 (11th Dist.).
{¶37} Appellant’s argument involves the first element of self-defense, i.e., whether he was at fault for creating the situation. Appellant asserts that “[i]t is clear from the evidence submitted at trial that [he] did not start the fight between himself and [L.W.]”
{¶38} L.W.’s testimony appeared to acknowledge that he was the initial aggressor regarding his and Appellant’s physical fight. However, the reason L.W. arrived at the apartment and confronted Appellant is because of Appellant’s alleged assault of V.G. Therefore, the first element did not weigh heavily in Appellant’s favor.
{¶39} In addition, the jury did not necessarily base its verdict on the first element of self-defense; rather, it may have relied on the second element. “‘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.”’” State v. Hare, 2023-Ohio-1623, ¶ 22 (11th Dist.), quoting State v. Kean, 2019-Ohio-1171, ¶ 58 (10th Dist.), quoting State v. Hendrickson, 2009-Ohio-4416, ¶ 31 (4th Dist.). For instance, in Hare, this Court rejected
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the appellant’s manifest weight challenge, explaining that the “brawl” that occurred in that case “was essentially a fist fight that did not warrant the use of deadly force.” Id. at ¶ 23.
{¶40} Similar reasoning applies in this case. The evidence indicates Appellant and L.W. had engaged in a fistfight that appeared to have ended. Appellant then escalated the situation by pulling out a gun, shooting at L.W., and chasing L.W. outside the apartment with the gun. After reentering the apartment, the men wrestled over the gun, and L.W. was shot in the arm. Appellant then left the room, grabbed kitchen shears, repeatedly stabbed L.W., and straddled him on the ground. Although the evidence indicates L.W. was physically larger than Appellant, the jury may have concluded that Appellant’s violent acts were unwarranted and disproportionate to the threat posed to him. Appellant’s argument does not address the second element or discuss the foregoing acts, other than to passively state that “[d]uring the confrontation [L.W.] was shot by Appellant.” Therefore, Appellant has not established that his conviction for felonious assault is against the manifest weight of the evidence.
{¶41} Accordingly, Appellant’s second assignment of error is without merit.
Consecutive Sentences
{¶42} Appellant’s third assignment of error states: “The trial court erred when it sentenced Appellant to consecutive prison terms when clearly and convincingly the record failed to support its findings.”
{¶43} Appellate review of consecutive sentences is governed by R.C.
2953.08(G)(2), which provides:
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
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The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard of review is not whether the sentencing court abused its discretion.
The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under .
. . (C)(4) of section 2929.14 . . . of the Revised Code . . . ;
(b) That the sentence is otherwise contrary to law.
{¶44} “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus
{¶45} Appellant’s prison terms on the two firearm specifications were both mandatory. R.C. 2929.14(B)(1) governs the imposition of prison terms for firearm specifications connected to felony offenses. State v. Beatty, 2024-Ohio-5684, ¶ 10. It provides, in relevant part, that
if an offender who is convicted of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of the type described in section . . . 2941.145 of the Revised Code, the court shall impose on the offender . . .
A prison term of three years if the specification is of the type described in division (A) of section 2941.145 of the Revised Code that charges the offender with having a firearm on or about the offender’s person or under the offender's control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense.
R.C. 2929.14(B)(1)(a)(ii).
{¶46} R.C. 2929.14(B)(1)(b) provides that a “court shall not impose more than one prison term on an offender under division (B)(1)(a) of this section for felonies committed PAGE 12 OF 15 as part of the same act or transaction.” R.C. 2929.14(B)(1)(g) contains an exception, providing in relevant part:
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are . . . felonious assault . . . , and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty . . . .
{¶47} Thus, “if any of the offenses is a serious felony such as . . . felonious assault, the trial court must impose prison terms for two of the firearm specifications . . . .” (Emphasis in original.) Beatty at ¶ 10. “Because the trial court ‘must’ impose prison terms for two of the firearm specifications, those prison terms are ‘mandatory prison term[s]’ . . . .” Id., quoting R.C. 2929.01(X)(1).
{¶48} “Ohio law presumes that a defendant convicted of multiple crimes will serve his sentences concurrently.” State v. Glover, 2024-Ohio-5195, ¶ 38; R.C. 2929.41(A). In this case, however, the trial court was required to impose consecutive prison sentences. R.C. 2929.14(C)(1)(a) provides, in relevant part:
[I]f a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender’s person or under the offender’s control while committing a felony, . . . , the offender shall serve any mandatory prison term imposed under [such] division . . . consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code . . . .
{¶49} Thus, “if a court imposes a ‘mandatory prison term’ for a firearm specification, it must be served consecutively to any other ‘mandatory prison term’ imposed for the enumerated specifications and consecutively to the prison term for the underlying felony to which the specification is attached.” Beatty, 2024-Ohio-5684, at ¶ PAGE 13 OF 15 12. Courts have held that when a trial court is required to order consecutive service of certain specifications, the court is not required to make R.C. 2929.14(C)(4) findings. E.g., State v. Young, 2015-Ohio-2862, ¶ 10 (8th Dist.); State v. Urconis, 2017-Ohio-8515, ¶ 10 (9th Dist.); State v. Howard, 2021-Ohio-4501, ¶ 17 (2d Dist.).
{¶50} Although the trial court made consecutive-sentence findings, it was not legally required to do so. Therefore, even if the record clearly and convincingly did not support one or more such findings, Appellant cannot establish reversible error.
{¶51} Accordingly, Appellant’s third assignment of error is without merit.
{¶52} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas is affirmed.
EUGENE A. LUCCI, J., SCOTT LYNCH, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, Appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed.
Costs to be taxed against Appellant.
JUDGE JOHN J. EKLUND
JUDGE EUGENE A. LUCCI,
concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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