State v. Ivery

2018 Ohio 2177

• Court: Ohio Court of Appeals
• Decided: June 6, 2018
• Docket: 28551
• Status: Published

Opinion

[Cite as State v. Ivery, 2018-Ohio-2177.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 28551

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE KENAN IVERY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2014 12 3681

DECISION AND JOURNAL ENTRY

Dated: June 6, 2018

HENSAL, Judge.

{¶1} Kenan Ivery appeals his convictions from the Summit County Court of Common

Pleas. This Court affirms.

I.

{¶2} This case involves an altercation at a bar that resulted in the shooting death of an

off-duty Akron police officer, as well as several other bar patrons sustaining injuries. We begin

our review with a brief recitation of the pertinent facts, summarizing the State’s witnesses’

testimony.

{¶3} Tiffany, the manager of Papa Don’s Pub in Akron, testified that she and her

fiancé, Justin (an Akron police officer), went to Papa Don’s the evening of November 15, 2014,

to hang out. According to Tiffany, Ann Marie – a bar patron known to Tiffany – approached

Tiffany and told her that Kenan Ivery made comments to her that made her feel uncomfortable.

According to Ann Marie, Ivery aggressively tried to get her attention because he wanted her to 2

come over and talk to him. Ann Marie declined his advances and told him she had a boyfriend,

who was also in the bar. Ivery then got out of his seat and said “I don’t care. I have a 40[,]”

which Ann Marie assumed referred to a 40-ounce beer. Ann Marie indicated that she was

“creeped * * * out,” and that Ivery made her nervous, so she went and sat next to her boyfriend.

{¶4} When Ivery later saw Ann Marie talking to Tiffany, he immediately approached

and, according to Tiffany, became angry. Ann Marie went back to her seat and Tiffany tried to

calm Ivery down and defuse the situation. Meanwhile, Justin and a bar employee asked Tiffany

if she needed assistance, which she declined. Realizing that Ivery was not going to calm down,

Tiffany ultimately asked him to leave, and told the bartender to bring Ivery his check and a box

for the chicken wings he had ordered. Ivery paid his bill but, according to the bartender, Ivery

said “I don’t want these fucking wings[,]” and pushed them to the side. As Ivery was walking

out of the bar, he stopped to talk to Justin. An employee overheard Ivery tell Justin “I will

smack that bitch” two or three times before Ivery exited the bar without further incident.

{¶5} About eight minutes later, Ivery returned to the bar. Tiffany immediately

approached him and told him to leave, to which he responded “I’m not alone anymore.” This

confused Tiffany because she did not see anyone with Ivery. “Big Dave,” a regular patron of the

bar, walked over and also told Ivery to leave. Ivery then showed Tiffany the barrel of a gun in

his waistband. Realizing she needed assistance, Tiffany reached for Justin and told him that

Ivery had a gun. Justin stood up from his seat and approached Ivery. Another patron, Dave E.,

saw Ivery pulling his shirt up, touching the gun in his waistband, and talking to Justin. Dave E.

then began walking toward the men and saw Ivery pull the gun out of his waistband. Dave E.

grabbed Ivery’s right arm in an attempt to take the gun from him. At that point, Ivery was

surrounded by Justin, Big Dave, and Dave E., who then shoved Ivery. The four men fell into a 3

“big dog pile” near the front door and Ivery fired several shots. The shots struck Justin, Big

Dave, and two other patrons. The shots also grazed another patron and went through Dave E.’s

jacket. Ivery then fled from the scene on foot, and the police and EMS arrived shortly thereafter.

Justin later died as a result of the gunshot wounds, but the other injured patrons ultimately

recovered from their injuries.

{¶6} Having briefly summarized the State’s evidence, we now turn to the evidence

presented by the defense. Ivery testified on his own behalf. According to him, he offered to buy

Ann Marie a drink several times, which she declined. After Ann Marie told him she had a

boyfriend, he told her he “ha[d] a 40 on [him,]” meaning he had a .40-caliber pistol on him,

because he felt threatened. As soon as he saw Ann Marie approach Tiffany, he walked over to

the women. Tiffany indicated that Ann Marie told her he had called her a derogatory name,

which he denied doing. Tiffany then asked him to leave and, after a brief conversation, he

started to walk out of the bar. Before exiting, he stopped to talk to Justin because he recognized

him from a fundraising event earlier in the night. Ivery then exited the bar, got into his car, and

headed home. While on his way home, he realized that he left his chicken wings at the bar, so he

returned to get them.

{¶7} Upon entering the bar, Big Dave approached him and told him to never talk to or

touch Ann Marie again, and threatened to beat him up. Tiffany positioned herself between Ivery

and Big Dave, at which point Ivery lifted his shirt several times to reveal his gun. He then

noticed Justin and Dave E. moving toward him, and Big Dave moving closer. At that point, he

became fearful because he thought the men were reaching for his gun. As the men were

touching and shoving him he began to fall backward and – fearing for his life – he fired several

shots. After he fired the shots his gun fell to the ground, so he fled from the scene because he 4

was afraid someone would pick it up and use it against him. He then ran to a field where the

police eventually arrested him.

{¶8} After a multi-day trial, the jury found Ivery guilty of aggravated murder, murder,

attempted murder, and felonious assault, as well as the firearm specifications that accompanied

those counts. The jury also found Ivery guilty of having a weapon while under disability,

carrying a concealed weapon, and illegal possession of a firearm in liquor permit premises.

After merging some of the counts and accompanying specifications, the trial court sentenced

Ivery to life imprisonment without the possibility of parole for the aggravated murder count, as

well as additional sentences for the remaining convictions.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTER AND RECKLESS HOMICIDE.

{¶9} In his first assignment of error, Ivery argues that the trial court erred by not

instructing the jury on voluntary manslaughter – an inferior degree of murder – and reckless

homicide, a lesser-included offense of murder. State v. Terrion, 9th Dist. Summit No. 25368,

2011-Ohio-3800, ¶ 11 (“Voluntary manslaughter is * * * an inferior degree of murder.); State v.

Elwell, 9th Dist. Lorain No. 06CA008923, 2007-Ohio-3122, ¶ 39 (“reckless homicide is a lesser

included offense of murder * * *.”). We disagree.

{¶10} The test for whether a trial court is required to give a jury instruction on an

inferior offense is the same test that is applied when the defendant seeks a jury instruction on a

lesser-included offense. State v. Powe, 9th Dist. Summit No. 21026, 2002-Ohio-6034, ¶ 57,

citing State v. Shane, 63 Ohio St.3d 630, 632 (1992). That test requires the trial court to “view

the evidence in the light most favorable to the defendant” and determine whether “‘sufficient 5

evidence’ [exists] to ‘allow a jury to reasonably reject the greater offense and find the defendant

guilty on a lesser included (or inferior degree) offense.’” (Emphasis sic.) State v. Trimble, 122

Ohio St.3d 297, 325 (2009), quoting Shane at 632-633. “[W]hen the evidence presented at trial

does not meet this test, a charge on the lesser included (or inferior-degree) offense is not

required.” Shane at 632.

{¶11} At trial, Ivery requested a voluntary manslaughter jury instruction, which the trial

court denied. Revised Code Section 2903.03(A) governs voluntary manslaughter and provides

that “[n]o 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 * * *.” In

addition to the above-delineated test – and specific to voluntary manslaughter – “the trial court

must make a determination that ‘evidence of reasonably sufficient provocation occasioned by the

victim has been presented to warrant such an instruction.’” Terrion, 2011-Ohio-3800 at ¶ 13,

quoting Shane at paragraph one of the syllabus.

{¶12} “The inquiry into the mitigating circumstances consists of both objective and

subjective components.” Terrion at ¶ 13, citing Shane at 634. “The objective component

determines whether the provocation in a given case ‘is reasonably sufficient to bring on sudden

passion or a sudden fit of rage[.]’” Terrion at ¶ 13, quoting Shane at 634. “Reasonably sufficient

provocation is provocation ‘sufficient to arouse the passions of an ordinary person beyond the

power of his or her control.’” Terrion at ¶ 13, quoting Shane at 635. The subjective component

involves the “‘emotional and mental state of the defendant and the conditions and circumstances

that surrounded him at the time’ to determine if he was in fact provoked.” Terrion at ¶ 13,

quoting Shane at 634. 6

{¶13} Here, Ivery testified that he fired his gun because he feared for his life when the

three men surrounded him and reached for his gun. He testified that he thought the men would

“take it and kill [him,]” so he “defend[ed] [him]self.” He further testified that he “wasn’t

angry[,]” and repeatedly stated that he was “scared.”

{¶14} As the State points out, this case bears similarities to our prior decision in State v.

Thomas, 9th Dist. Summit No. 27266, 2015-Ohio-2935. There, the defendant fatally shot the

victim and was charged with aggravated murder. Id. at ¶ 2. At trial, the defendant testified that

when he fired the gun, “he was angry and afraid that [the victim] would regain control of the gun

and shoot [him].” Id. at ¶ 29. On appeal, the defendant argued that the trial court erred when it

refused to instruct the jury on voluntary manslaughter and reckless homicide. Id. at ¶ 25. This

Court rejected the defendant’s argument, concluding that his testimony “demonstrated that he

shot [the victim] because he feared [the victim] would have killed or hurt him, not because [the

victim] had provoked him into firing the gun due to a fit of rage or sudden passion.” Id. at ¶ 29.

We, therefore, held that “the trial court did not err by failing to instruct on voluntary

manslaughter.” Id. This same analysis applies here. Ivery’s testimony indicated that he fired his

gun because he was afraid the men would take it from him and shoot him. We, therefore, cannot

say that the trial court erred by refusing to instruct the jury on voluntary manslaughter.

{¶15} We now turn to Ivery’s argument regarding the reckless-homicide instruction.

Ivery asserts that the trial court committed plain error by not instructing the jury on reckless

homicide because the jury could have found that he acted recklessly when he brought a gun into

a crowded bar and fired four shots into the crowd. Although he cites Criminal Rule 52

(“Harmless Error and Plain Error”), he has not developed any argument in that regard. We,

therefore, decline to address this alleged error. State v. Wilson, 9th Dist. Summit No. 25652, 7

2011-Ohio-5638, ¶ 16, citing App.R. 12(A)(2) and App.R. 16(A)(7) (holding that the defendant

“has not developed a plain error argument, and, thus, we decline to address this alleged error.”).

In light of the foregoing, Ivery’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

APPELLANT’S CONVICTION[S] FOR AGGRAVATED MURDER, MURDER, ATTEMPTED MURDER AND FELONIOUS ASSAULT WERE BASED UPON INSUFFICIENT EVIDENCE AS A MATTER OF LAW AND W[ERE] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶16} In his second assignment of error, Ivery challenges the sufficiency and manifest

weight of the evidence presented at trial. Specifically, he challenges his convictions for

aggravated murder under Section 2903.01, murder under Sections 2903.02(A) and 2903.02(B),

and attempted murder under Sections 2923.02 and 2903.02(A).1 For the reasons that follow, we

decline to address Ivery’s assignment of error.

{¶17} Appellate Rule 16(A)(7) provides that an appellant’s brief shall include “[a]n

argument containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies.” Consistent with this

Rule, when “an appellant relies solely on a recitation of the facts without any legal argument, we

may disregard an assignment of error.” State v. Jackson, 9th Dist. Summit No. 27739, 2017-

Ohio-278, ¶ 32; see also State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 28

(“This Court will not construct an argument on behalf of an appellant.”).

{¶18} Here, aside from citing the applicable statutes and standards of review for

sufficiency and manifest weight, Ivery has cited no authority in support of his assignment of

1 Although the caption of Ivery’s second assignment of error lists felonious assault, he did not challenge that conviction in the body of his assignment of error. 8

error. Indeed, despite challenging each conviction on the basis that the facts indicated that he

either acted in self-defense or in a fit of rage after having been provoked, his assignment of error

contains no law or analysis relative to self-defense or voluntary manslaughter. Additionally,

although he provides citations to the record with respect to his conviction for murder under

Section 2903.02(A), he fails to cite the record with respect to the other challenged convictions

(i.e., aggravated murder, murder under Section 2903.02(B), and attempted murder). In light of

these deficiencies, we decline to address Ivery’s second assignment of error.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DENYING A BATSON CHALLENGE WHEN IT IMPROPERLY APPLIED THE THREE STEP PROCESS ESTABLISHED BY THE U.S. SUPREME COURT.

{¶19} In his third assignment of error, Ivery argues that the trial court erred by denying a

Batson challenge because it improperly applied the three-step process established by the United

States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). Because Batson was not

implicated in this case, we disagree.

{¶20} As an initial matter, we note that under the United States Supreme Court’s

decision in Batson, “a criminal defendant may raise a prima facie case of purposeful racial

discrimination in the selection of the jury by showing that he belongs to a cognizable racial

group, that the prosecution excluded members of the defendant’s race, and that those facts and

other circumstances raise an inference that the State used peremptory challenges to purposefully

exclude members of the defendant's race.” (Emphasis added.) State v. Williams, 9th Dist.

Summit No. 23560, 2008-Ohio-1048, ¶ 9. Here, after the trial had commenced, the State moved

to remove an African American juror for cause because monitoring of Ivery’s jail calls indicated

that the juror approached a woman who had been in the courtroom and inquired about a friend 9

she was with the day before. The State argued that the juror violated the trial court’s admonition

to not communicate with anyone in the courtroom. The trial court questioned the juror about the

interaction, who initially denied that he had communicated with anyone. After the trial court

provided additional information, the juror eventually admitted that he had talked to the woman,

but indicated it had nothing to do with the case; he was only inquiring about the woman’s friend

in a flirtatious manner.

{¶21} The trial court determined that the juror’s failure to be forthright with information

about the interaction, including the fact that he only admitted to the interaction after the trial

court confronted him with additional information, indicated that the juror was “deceptive and

that he lied to the Court * * *.” The trial court made clear that this was not a preemptory

challenge and was “not an issue of race” that implicated Batson. The trial court then found that

the “juror * * * violated the Court’s order about contacting people outside of the courtroom and

* * * got caught lying to the Court.” It, therefore, removed the juror from the case for that

reason.

{¶22} On appeal, Ivery argues that the State failed to provide a race-neutral reason for

its preemptory challenge, and that the trial court simply created its own race-neutral reason. As

the Ohio Supreme Court has stated, “Batson applies only to prospective jurors removed by

peremptory challenge.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 158, citing

Batson, 476 U.S. 79, at 96-98. Here, the State challenged the juror for cause based upon the

juror’s violation of the trial court’s admonition to not communicate with anyone in the

courtroom. Moreover, the trial court based its decision to remove the juror on the fact that he

lied to the Court and was “more or less caught” doing so. Batson, therefore, has no application,

and we reject Ivery’s third assignment of error. 10

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE STATE OF OHIO TO ELICIT EXPERT TESTIMONY FROM LAY WITNESSES.

{¶23} In his fourth assignment of error, Ivery argues that the trial court abused its

discretion when it allowed the State to elicit expert testimony from a lay witness in violation of

Evidence Rule 701. This Court “reviews a trial court’s decision pertaining to the admission of

evidence under Evid.R. 701 for an abuse of discretion.” State v. Thomas, 9th Dist. Summit No.

26893, 2014-Ohio-2920, ¶ 23. An abuse of discretion implies that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). In addition to demonstrating that the trial court abused its discretion,

Ivery must also show that he was “materially prejudiced” by the trial court’s evidentiary ruling.

State v. Martin, 19 Ohio St.3d 122, 129 (1985); State v. Harpley, 9th Dist. Summit No. 22816,

2006-Ohio-2976, ¶ 28 (“[A] court’s admission of evidence will not be disturbed absent an abuse

of discretion that materially prejudiced the defendant.”).

{¶24} Here, Ivery argues that the trial court erred by allowing a detective to testify as to

events depicted in a surveillance video that, aside from watching the video as part of his

investigation, the detective did not perceive. Ivery also challenges the detective’s testimony as it

relates to what certain pictures depicted, as well as a timeline of events that the detective created

after viewing the surveillance video.

{¶25} Even assuming without deciding that the trial court abused its discretion in this

regard, Ivery’s merit brief is devoid of any argument as to how the trial court’s evidentiary ruling

materially prejudiced him. He, therefore, has not established error on appeal. See App.R.

16(A)(7). Accordingly, Ivery’s fourth assignment of error is overruled. 11

III.

{¶26} Kenan Ivery’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SCHAFER, P. J. CARR, J. CONCUR. 12

APPEARANCES:

RHONDA KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.