[Cite as State v. Murray, 2025-Ohio-1485.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 30254 : v. : Trial Court Case No. 2023 CR 02302 : ANTONIO MARVIN MURRAY : (Criminal Appeal from Common Pleas : Court) Appellant : :
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OPINION
Rendered on April 25, 2025
CHIMA R. EKEH, Attorney for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Antonio Marvin Murray appeals from his conviction for
murder following a bench trial in the Montgomery County Court of Common Pleas. For
the following reasons, we will affirm in part and reverse in part the judgment of the trial
court, and we will remand the cause for the trial court to impose a concurrent sentence -2-
on the third firearm specification.
I. Course of Proceedings and Evidence Presented at Trial
{¶ 2} On August 11, 2023, Murray was indicted by a Montgomery County grand
jury on two counts of murder, two counts of felonious assault, and three counts of
weapons while under disability. The murder and felonious assault counts all carried
three-year firearm specifications. The charges resulted from Murray’s shooting and
killing R.B. in the early morning of August 1, 2023.
{¶ 3} A bench trial was held in April 2024. Eleven witnesses testified at the trial.
Nyjia Brown Simmons testified first. At the time R.B. was killed, Simmons had been
dating him since February 2021. On the night of July 31, 2023, R.B. dropped Simmons
off at a shelter on Apple Street near downtown Dayton. He was driving his blue van.
After R.B. dropped her off, Simmons went inside the shelter but did not check in. Rather,
she left the shelter and started walking on South Main Street toward downtown Dayton.
She spoke to R.B. on the phone shortly after she left the shelter and let him know that
she had decided to no longer date him because he was physically and emotionally
abusive.
{¶ 4} While Simmons was walking north on South Main Street toward downtown,
Murray approached her and began talking to her. She responded that she just got out
of an abusive relationship and did not want to be bothered. According to Simmons,
Murray kept following her and talking to her. She did not give him any details about the
abusive relationship with R.B. However, Simmons also testified that she may have been -3-
talking aloud during some of the walk about how she had been abused and her abuser
would not leave her alone. Simmons attributed this to the fact she used to be on
medication for schizophrenia.
{¶ 5} Shortly after Murray approached her, a blue van driven by R.B. arrived where
they were walking. R.B. parked the van and began talking to Simmons. Referring to
Murray, R.B. yelled to Simmons: “Well, are you with him now, the thug?” As R.B.
approached Simmons, Murray warned him that if he put Simmons in the van, Murray
would call the police and tell them that R.B. had kidnapped her. R.B. told Murray to go
ahead and do that and walked up to Simmons and tried to grab her arm to walk her back
to the van. According to Simmons, R.B. did not grab her by the neck or the hair, he did
not threaten her at that moment, and she was not afraid of him when he approached her.
Rather, Simmons planned to walk back to the van with R.B. to avoid a confrontation.
Before R.B. was able to grab her arm, Murray pulled out a gun and shot R.B. When
Simmons saw the gun, she began running.
{¶ 6} After Murray shot R.B., Simmons witnessed him going through R.B.’s
pockets. Murray then tried to hand something to Simmons, but she did not see what it
was.
{¶ 7} Detective Zachary Farkas testified next at the trial. He was a homicide
detective with the Dayton Police Department. He spoke with two witnesses about R.B.’s
shooting. One of the witnesses he spoke with was Caden Laing, who told Detective
Farkas that he was too far away to identify people and see what exactly had happened
during the shooting. According to Detective Farkas, Laing stated that there were trees -4-
blocking his view during the shooting. Detective Farkas assisted in collecting video
footage from cameras near the shooting. He explained that the video evidence showed
Murray straddling R.B. after R.B. fell to the ground as a result of the gunshot.
{¶ 8} Police Officer Kenneth Webster also testified. At the time of the trial, he had
worked for the Dayton Police Department for five years. He was in the area of the
shooting when it occurred. Immediately before the shooting, he ran the license plates
on R.B.’s van through his cruiser’s computer system. When he heard the gunshot, he
did a U-turn and saw several individuals fleeing the scene. He stopped Murray and
patted him down but did not locate a gun on Murray. Officer Webster was unaware at
the time that Murray had been carrying a bag that he put down on the ground before
Officer Webster briefly detained him. Murray did not inform Officer Webster that he had
been involved in the shooting or that the shooting had been a result of defending
Simmons. Officer Webster allowed Murray to leave and then proceeded to check on
R.B. and Simmons. He received from Simmons a brief description of the shooter.
Officer Webster did not locate a gun on R.B. but did locate R.B.’s wallet.
{¶ 9} Sergeant Richard Taylor of the Dayton Police Department testified that he
assisted in determining what cameras in the area were online during the shooting. As
he watched a video from the shooting, Sergeant Taylor identified Murray as the individual
in the ball cap.
{¶ 10} Dayton Police Officer Natalie Flory also testified at trial. She was an
evidence technician who took photographs of crime scenes and collected evidence. A 9
mm Luger Blazer casing was recovered at the crime scene as well as the keys to R.B.’s -5-
van, his hat, and his cell phone. No firearms were discovered in R.B.’s van.
{¶ 11} Dayton Police Officer Madeline Ambrose testified that she was patrolling
the East Side of Dayton on the morning of the shooting and was called to the scene of
the shooting to assist other officers. She located a single shell casing at the crime scene.
{¶ 12} Dr. Susan Brown, a forensic pathologist in the Montgomery County
Coroner’s Office, also testified at the bench trial. She took photos of R.B. There were
no signs of struggle. The cause of R.B.’s death was a single gunshot wound to the chest.
{¶ 13} Detective David Posma with the Montgomery County Sheriff’s Office
testified that he spoke with one witness at the scene, but the witness’s information turned
out to be inaccurate. When he reviewed some of the video footage near the crime scene,
the way Murray walked caught his attention. He later located Murray walking South on
Riverside near Parkwood Avenue. He was wearing the same hat as the one he was
wearing in the video that captured the area near the crime scene.
{¶ 14} Detective David House testified as the last witness for the State. At the
time of the trial, he had been with the Dayton Police Department for a total of 32 years.
He interviewed Simmons after R.B. was shot and later interviewed Murray. According
to Detective House, Murray initially claimed he had nothing to do with the shooting and
told several lies in response to questioning.
{¶ 15} Caden Laing testified as the first witness for the defense. He lived close to
where R.B. was killed. Laing testified that he saw R.B. grab Simmons by the arm, yank
her around, threaten her, and call her several slurs. He heard Murray warn R.B. several
times before Murray shot R.B. Laing testified that he was upset with the police officers -6-
who questioned him, because they forced him into a police cruiser and hurt his back.
According to Laing, “I wanted those pigs off of me.” Trial Tr. 326. Laing stated that he
had not told any police officer that trees prevented him from seeing what happened.
Rather, Laing said that he told the police that he had not been able to see what hand
movements happened because he was behind Murray at the time of the shooting.
{¶ 16} Murray also testified in his own defense. At the time of the trial, Murray was
44 years old. Murray had been homeless for four years prior to the day he shot the
victim. He had never met Simmons prior to the night he approached her on South Main
Street. According to Murray, he approached Simmons and asked her for a light, and she
responded that she would give him a light if he walked with her. Murray testified that
Simmons told him about her boyfriend and the abuse that she suffered at his hands. For
example, Murray stated that Simmons explained the victim had been “putting his hands
on [her]. That he’d been beating on her. That she’d been trying to get away from him,
he won’t let her make her own money.” Id. at 339.
{¶ 17} As they were walking together, Murray mentioned to Simmons that there
was a van following them. She got scared and said that R.B. was coming to get her. R.B.
got out of his van and started yelling at Simmons. R.B. then approached Simmons and
grabbed her by the arm, neck, and hair. According to Murray, R.B. spent a couple of
minutes yanking Simmons by the hair, causing her head to move. Murray warned him
to stop doing that or he would call the police. Murray testified that he believed R.B. “was
either about to kill her, or he was about to hurt this young girl seriously or take her
somewhere and kill her.” Id. at 344. After Murray gave R.B. a fourth and final warning, -7-
he saw R.B. reach toward his pocket, so Murray pulled out a gun from his bag, ran toward
R.B., and shot R.B. in the chest. Murray then patted R.B. down and found a gun on him.
He tried to hand it to Simmons, but she would not take it. Murray then ran away because
he was scared. He testified that he ultimately put the gun “somewhere where could
nobody ever find the gun.” Id. at 349. According to Murray, when he shot R.B., he was
“just trying to protect somebody at that time that was in great danger. You know, I was
an innocent bystander trying to look out for somebody that was in great danger.” Id. at
352. He admitted at the trial that he had lied to the police several times while they were
questioning him after the shooting. Murray stated that he lied because he panicked and
did not trust the police.
{¶ 18} The State also introduced into evidence footage from several video
cameras. State’s Exhibit 36 contained three different videos showing the area where the
shooting occurred. The video supported Simmons’s testimony that R.B. did not grab her
by the neck and head prior to being shot by Murray. The video evidence did not support
Murray’s testimony that R.B. was physically yanking Simmons around for a couple of
minutes before Murray shot him. Rather, the video evidence showed that only a few
seconds elapsed between when R.B. approached Simmons and when Murray shot him.
{¶ 19} The trial court found Murray guilty as charged on all counts in the indictment.
On August 6, 2024, the trial court issued a judgment entry in which it found that the first
four counts of the indictment (the murders and felonious assaults) merged for purposes
of sentencing. The State elected to proceed on count one, murder. The trial court
sentenced Murray to 15 years to life in prison and an additional term of three years in -8-
prison on each of the three firearm specifications, which the trial court ran consecutive to
each other and the 15 years to life. The court also merged counts five through seven
(having weapons under disability) and the State elected to proceed on count seven,
having weapons while under disability (prior offense of violence). The trial court
sentenced Murray to three years in prison on count seven to be served concurrently with
count one, resulting in a total prison sentence of 24 years to life.
{¶ 20} Murray filed a timely notice of appeal from the trial court’s judgment.
II. The State Disproved Beyond a Reasonable Doubt Murray’s Claim of Defense
of Another
{¶ 21} Murray’s first assignment of error states:
THE STATE DID NOT MEET ITS BURDEN OF DISPROVING
BEYOND A REASONABLE DOUBT THAT MURRAY ACTED IN DEFENSE
OF ANOTHER.
{¶ 22} Murray does not dispute on appeal that he shot and killed R.B. And he
does not argue that he was defending himself when he killed R.B. Rather, Murray
contends that he shot R.B. while defending Simmons.
{¶ 23} R.C. 2901.05(B)(1) governs the burden and degree of proof required for the
affirmative defense of defense of another and provides that:
A person is allowed to act in self-defense, defense of another, or
defense of that person's residence. If, at the trial of a person who is
accused of an offense that involved the person's use of force against -9-
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.
{¶ 24} “Defense of another requires proof of the same elements as self-defense.”
State v. Cumberlander, 2024-Ohio-2431, ¶ 41, fn. 9 (10th Dist.), citing State v. Moss,
2006-Ohio-1647, ¶ 14 (2d Dist.). “R.C. 2901.05(B)(1) places the initial burden of
producing evidence ‘that tends to support’ a self-defense claim on the defendant.” State
v. Bowen, 2024-Ohio-1079, ¶ 11 (2d Dist.), quoting R.C. 2901.05(B)(1). “ ‘[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.’ ”
State v. Palmer, 2024-Ohio-539, ¶ 20, quoting State v. Messenger, 2022-Ohio-4562,
¶ 25. “This burden of production is ‘not a heavy one and . . . might even be satisfied
through the state's own evidence.’ ” Id., quoting Messenger at ¶ 22.
{¶ 25} Once the defendant puts forth sufficient evidence that he was acting in self-
defense, the burden then shifts to the State to prove that the defendant did not act in self-
defense. Bowen at ¶ 12, citing Messenger at ¶ 19. “To accomplish this, the State must
disprove beyond a reasonable doubt at least one of the elements of self-defense.” Id.,
citing State v. Gutierrez-Reynoso, 2023-Ohio-3122, ¶ 72 (11th Dist.).
{¶ 26} Where deadly force is used, the elements of a self-defense claim are: “ ‘(1) -10-
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, quoting State v. Barnes, 94 Ohio St.3d 21, 24
(2002). Effective April 6, 2021, R.C. 2901.09 was amended to reflect that the “duty to
retreat” element is no longer required where the person using force in self-defense or
defense of another is in a place in which the person lawfully has a right to be. R.C.
2901.09(B). Furthermore, R.C. 2901.09(C) provides that: “A trier of fact shall not
consider the possibility of retreat as a factor in determining whether or not a person who
used force in self-defense, defense of another, or defense of that person's residence
reasonably believed that the force was necessary to prevent injury, loss, or risk to life or
safety.”
{¶ 27} The State’s burden “of disproving the defendant's self-defense claim
beyond a reasonable doubt is subject to a manifest-weight review on appeal.”
Messenger at ¶ 27. When conducting a manifest weight review, “[t]he 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
[trier of fact] 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), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
A case should not be reversed as being against the manifest weight of the evidence -11-
except “ ‘in the exceptional case in which the evidence weighs heavily against the
conviction.’ ” Id., quoting Martin at 175.
{¶ 28} Murray argues that the State failed to carry its burden of disproving any
element of Murray’s defense of another defense. According to Murray, the evidence
established that: (1) R.B. initiated the incident and was the aggressor; (2) Murray believed
that R.B. had a gun; (3) Murray was acting in good faith and upon reasonable grounds to
believe that Simmons was in imminent danger of death or great bodily harm; and (4)
Simmons and Murray were both lawfully walking on the sidewalk and had no duty to
retreat. Murray contends that “the greater weight of the evidence demonstrated that the
State failed to disprove beyond a reasonable doubt that he acted in defense” of
Simmons.” Appellant’s Brief, p. 15.
{¶ 29} The State concedes that Simmons and Murray were not at fault for creating
the situation. However, the State contends that it proved beyond a reasonable doubt
that Murray did not have a bona fide belief that he or Simmons was in imminent danger
of death or great bodily harm. The State notes that Simmons testified that she was not
afraid of R.B. when he approached her shortly before the shooting. Further, Murray’s
testimony that R.B. grabbed Simmons by her hair and neck and was “yanking her around”
for a few minutes was belied by the video evidence submitted at trial. Finally, the State
argues that it proved beyond a reasonable doubt that Murray used more force than was
necessary to repel the alleged attack. The State points to Simmons’s testimony and the
video evidence admitted at trial to demonstrate that “[t]he force used by Murray, shooting
R.B. was vastly disproportionate to the force R.B. was using on [Simmons], namely -12-
grabbing her arm in an attempt to pull her towards his van.” Appellee’s Brief, p. 11.
{¶ 30} We will focus on the second element of self-defense since it is dispositive
of this appeal. “The second element–whether the defendant 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 deadly force–‘requires consideration of the force that was used in
relation to the danger the accused believed he was in.’ ” State v. Rothermel, 2014-Ohio-
3168, ¶ 14 (2d Dist.), quoting State v. Bayes, 2000 WL 1879101, *4 (2d Dist. Dec. 29,
2000). The bona-fide-belief element “is a combined subjective and objective test.”
State v. Thomas, 77 Ohio St.3d 323, 330 (1997). As we explained in State v. Wheatley,
2000 WL 145394 (2d Dist. Feb. 11, 2000):
The trier-of-fact “first must consider the defendant's situation
objectively, that is, whether, considering all of the defendant's particular
characteristics, knowledge, or lack of knowledge, circumstances, history,
and conditions at the time of the attack, she reasonably believed she was
in imminent danger.” . . . “Then, if the objective standard is met, the jury
must determine if, subjectively, this particular defendant had an honest
belief that she was in imminent danger.” . . . Thus, “self defense ‘is
placed on the grounds of the bona fides of defendant's belief, and
reasonableness therefor, and whether, under the circumstances, he
exercised a careful and proper use of his own faculties.’ ”
(Emphasis in original.) (Citations omitted.) Id. at *3, quoting Thomas at 331.
{¶ 31} In finding Murray guilty of murder, the trial judge clearly credited the -13-
testimony of the State’s witnesses over that of Murray and Laing. “The decision whether,
and to what extent, to credit the testimony of particular witnesses is within the peculiar
competence of the factfinder, who has seen and heard the witness.” State v. Lawson,
1997 WL 476684, *4 (2d Dist. Aug. 22, 1997). “The fact that the evidence is subject to
different interpretations does not render the conviction against the manifest weight of the
evidence.” State v. Adams, 2014-Ohio-3432, ¶ 24 (2d Dist.), citing State v. Wilson, 2009-
Ohio-525, ¶ 14 (2d Dist.). “This court will not substitute its judgment for that of the trier
of fact on the issue of witness credibility unless it is patently apparent that the trier of fact
lost its way in arriving at its verdict.” State v. Segovia, 2024-Ohio-1392, ¶ 36 (2d Dist.),
citing State v. Bradley, 1997 WL 691510, *4 (2d Dist. Oct. 24, 1997).
{¶ 32} Murray testified that he was worried that R.B. would kill Simmons.
According to Murray, he knew that R.B. had abused Simmons and he feared that R.B.
would either kill her there or take her somewhere and kill her. Murray also testified that
he thought R.B. may have been reaching for a gun immediately before Murray pulled out
his gun and shot R.B. Murray conceded, however, that he lied several times to police
officers after the shooting. Despite having been given multiple opportunities to do so
both immediately after the shooting and then hours after the shooting, R.B. did not readily
admit that he was the one who shot R.B., let alone that he did it in defense of Simmons.
{¶ 33} Murray’s testimony was also at odds with other evidence presented at trial.
Simmons testified that she was not afraid of R.B. when he approached her, and he did
not grab her by the hair or neck. The video evidence contained in State’s Exhibit 36
directly contradicted Murray’s testimony that he shot R.B. after R.B. had been physically -14-
assaulting Simmons for a couple of minutes. Rather, the video evidence showed Murray
shooting R.B. within a few seconds of R.B.’s approaching Simmons and attempting to
grab her arm. The video did not support the testimony of Murray or Laing that Murray
shot R.B. after R.B. assaulted Simmons several times in front of them. After Murray shot
R.B., he fled from the scene, did not call the police, disposed of evidence, and did not
turn himself in, further casting doubt on his later claim that he shot R.B. in defense of
Simmons.
{¶ 34} The only other testimony supporting Murray’s claim that he shot R.B. in
defense of Simmons was Laing’s testimony. Laing testified that Murray warned R.B.
several times while R.B. was physically assaulting Simmons. But Simmons’s testimony
and the video evidence introduced at trial directly contradicted Laing’s testimony.
Further, Laing answered multiple questions at trial in such a way that it was clear he had
issues with the police officers involved in the investigation of the case and possibly law
enforcement in general. His testimony also was contradicted by statements he made to
Detective Farkas shortly after the shooting. Therefore, it is not surprising that the trial
judge did not find credible Laing’s trial testimony.
{¶ 35} Whether Murray had reasonable grounds to believe and did in fact believe
that Simmons was in imminent danger of death or serious physical harm under the facts
presented in this case was for the factfinder to determine. The trial judge credited the
testimony of the State's witnesses over Murray’s, and we defer to his credibility
assessment. The judge considered all the evidence and ultimately found the State's
version of events more credible, thereby rejecting Murray’s claim of defense of another. -15-
As the trial judge noted, the video evidence was crucial in disproving the second element
of Murray’s claim that he was defending Simmons from imminent danger of death or great
bodily harm. The evidence also showed that the amount of force Murray used on R.B.
was greatly disproportionate to the force R.B. used in reaching for Simmons’s arm. The
video evidence, Simmons’s testimony, Murray’s lies to the police, and Laing’s clear bias
against the police all weighed heavily against Murray’s defense theory.
{¶ 36} Based on the evidence presented, the trial court did not lose its way and
create a manifest miscarriage of justice. To the contrary, the evidence supported beyond
a reasonable doubt the trial court’s rejection of Murray’s defense of another claim.
Murray’s case is not an exceptional one in which the evidence weighed heavily against
his conviction.
{¶ 37} The first assignment of error is overruled.
III. The Trial Court Did Not Err by Convicting Murray of Murder Instead of Voluntary
Manslaughter
{¶ 38} Murray’s second assignment of error states:
THE TRIAL COURT ERRED BY CONVICTING MURRAY OF
MURDER INSTEAD OF VOLUNTARY MANSLAUGHTER.
{¶ 39} Voluntary manslaughter is defined in R.C. 2903.03(A). The statute
provides as follows: “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 -16-
victim that is reasonably sufficient to incite the person into using deadly force, shall
knowingly cause the death of another.”
{¶ 40} We have recognized that “voluntary manslaughter is an inferior-degree
offense to murder.” State v. Dixon, 2022-Ohio-3157, ¶ 21 (2d Dist.). This is because
voluntary manslaughter contains an additional mitigating element of “serious
provocation.” Id., citing State v. Rider, 2022-Ohio-1964, ¶ 39-40 (2d Dist.).
{¶ 41} In State v. Shane, 63 Ohio St.3d 630 (1992), the Ohio Supreme Court
elaborated on what constitutes “reasonably sufficient” provocation. First, an objective
standard must be applied to determine whether the alleged provocation was reasonably
sufficient to bring on a sudden passion or fit of rage. That is, the provocation must be
“sufficient to arouse the passions of an ordinary person beyond the power of his or her
control.” Id. at 635. If this objective standard is met, the inquiry shifts to a subjective
standard, to determine whether the defendant in the particular case “actually was under
the influence of sudden passion or in a sudden fit of rage.” Id. at 634-635.
{¶ 42} Normally, voluntary manslaughter is incompatible with a theory of self-
defense because self-defense requires proof of fear while voluntary manslaughter
requires a showing of a sudden passion or rage. See State v. Bouie, 2019-Ohio-4579,
¶ 47 (8th Dist.). Further, “[f]ear alone is insufficient to demonstrate the kind of emotional
state necessary to constitute sudden passion or fit of rage.” (Citations omitted.) State
v. Mack, 82 Ohio St.3d 198, 201 (1998). A defendant’s fear for his own safety or for the
safety of others “ ‘does not constitute sudden passion or a fit of rage as contemplated by
the voluntary manslaughter statute.’ ” State v. Estelle, 2021-Ohio-2636, ¶ 29 (3d Dist.), -17-
quoting State v. Harris, 129 Ohio App.3d 527, 535 (10th Dist. 1998).
{¶ 43} Murray contends that “R.B.’s confrontation and assault of [Simmons]
sufficiently provoked Murray’s sudden and passionate response of firing one shot at R.B.,
unfortunately causing his death.” Appellant’s Brief, p. 15. According to Murray, “[t]he
incident unfolded in a matter of seconds, which supports a sudden and passionate
reaction by Murray, as opposed to a reasoned and composed decision. Murray
presented evidence regarding his state of mind to support that he was acting in a fit of
passion or rage.” Id. at 18.
{¶ 44} The State responds that “[a]t no time during the trial did Murray attempt to
argue for voluntary manslaughter, or any lesser included offense.” Appellee’s Brief, p.
14. Therefore, the State argues that we should review this assignment of error under a
plain error standard. Further, the State notes that self-defense and voluntary
manslaughter are generally inconsistent with each other. “ ‘This is so because self-
defense is grounded in fear whereas voluntary manslaughter is grounded in a different
emotion, a fit of passion or rage.’ ” Id. at 15, quoting State v. Van Voorhis, 2024-Ohio-
1898, ¶ 36 (2d Dist.). According to the State, although Murray testified that he was afraid
of what R.B. might do to Simmons, “ ‘fear alone is insufficient to demonstrate the
emotional states of sudden passion or a fit of rage.’ ” Id., quoting State v. Ramey, 2018-
Ohio-3072, ¶ 36 (2d Dist.).
{¶ 45} Contrary to his theory and interpretation of the evidence at trial, Murray
argues that the trial court should have convicted him of voluntary manslaughter rather
than murder. Murray and his defense counsel maintained throughout the entirety of the -18-
trial that Murray had acted in defense of Simmons and only fired the fatal gunshot
because he feared imminent death or great bodily harm to Simmons. At no point during
the trial did the defense argue or introduce evidence to insinuate that Murray acted under
the influence of sudden passion or a sudden fit of rage. And Murray’s own testimony did
not support such an insinuation. Rather, Murray testified that he was in fear of Simmons
losing her life, so he shot R.B. to protect Simmons. Therefore, we cannot conclude that
the trial court erred by convicting Murray of murder rather than voluntary manslaughter.
{¶ 46} The second assignment of error is overruled.
IV. The Trial Court Did Not Commit Plain Error by Permitting A Witness to Testify
While Wearing a Mask
{¶ 47} Murray’s final assignment of error states:
THE TRIAL COURT ERRED IN PERMITTING NYJIA BROWN
SIMMONS TO TESTIFY WHILE WEARING A MASK.
{¶ 48} According to Murray, the trial court “violated Murray’s right to confront the
witnesses against him by permitting [Simmons] to testify, while wearing a mask.”
Appellant’s Brief, p. 20. While Murray concedes that Simmons gave her testimony under
oath and his counsel had the opportunity to cross-examine her, he contends that he and
his counsel were unable to observe Simmons’s demeanor during her testimony since she
had her mask on while she testified. According to Murray, this was “critical” because
Simmons “was combative.” Id. at 21. Murray continues, “Worse, her mask made it
unlikely that her demeanor during the outburst could be evaluated adequately by the trial -19-
court.” Id. at 22-23.
{¶ 49} The State responds that no objection was made at trial to Simmons’s
wearing a mask while she testified and, therefore, our review on appeal is limited to plain
error. The State contends that “ ‘[l]iteral face-to-face confrontation is not the sine qua
non of the confrontation right.’ ” Appellee’s Brief, p. 17, quoting Maryland v. Craig, 497
U.S. 836, 847 (1990). According to the State, Simmons was in the courtroom and
testified under oath within full view of the trial court and responded to questions from both
the State and the defense. Although the trial court could not see all of Simmons’s face,
“it was able to see her entire body language and hear her voice and any inflections or
emotions that may have been present in her testimony.” Id. The State also cites State
v. Hadlock, 2021-Ohio-3176 (11th Dist.), which rejected a similar argument as that made
by Murray when a witness wore a mask while testifying during the Covid-19 pandemic.
The State concludes that Simmons has failed to establish plain error in the trial court’s
decision to allow Simmons to testify while wearing a mask.
{¶ 50} Murray concedes that neither he nor his counsel raised before the trial court
any issue relating to the fact that Simmons testified while wearing a mask. By failing to
object during the trial and not giving the trial court an opportunity to rule on this argument,
it is forfeited on appeal and may be reviewed only for plain error. See, e.g., State v.
Terrel, 2015-Ohio-4201, ¶ 19 (2d Dist.). “Notice of plain error under Crim.R. 52(B) is to
be taken with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three
of the syllabus. -20-
{¶ 51} “The Sixth Amendment's Confrontation Clause provides that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’ ” Crawford v. Washington, 541 U.S. 36, 42 (2004), quoting U.S.
Const. amend. VI. “The Confrontation Clauses were written into our Constitutions ‘to
secure for the opponent the opportunity of cross-examination. The opponent demands
confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon
by him, but for the purpose of cross-examination, which cannot be had except by the
direct and personal putting of questions and obtaining immediate answers.’ ” (Emphasis
in original.) State v. Self, 56 Ohio St.3d 73, 76 (1990), citing 5 Wigmore, Evidence, §
1395, at 150 (Chadbourn Rev. 1974). Literal face-to-face confrontation “is not the sine
qua non of the confrontation right.” Craig at 847.
{¶ 52} The Eleventh District’s decision in Hadlock, 2021-Ohio-3176 (11th Dist.), is
persuasive authority relating to Murray’s third assignment of error. In Hadlock, a witness
testified while wearing a mask during the Covid-19 pandemic. On appeal, the defendant
argued that the trial court’s decision to allow the witness to wear a mask while testifying
violated the Confrontation Clause. The Eleventh District held that the Confrontation
Clause does not require the factfinder to “see a witness’ entire face or body.” Id. at ¶ 51,
citing Morales v. Artuz, 281 F.3d 55, 56, 60-61 (2d Cir. 2002) (allowing a witness to testify
while wearing dark sunglasses), and United States v. de Jesus-Castaneda, 705 F.3d
1117, 1120-21 (9th Cir. 2013) (permitting a confidential informant to testify wearing a wig
and fake mustache did not violate the Confrontation Clause). Further, the Hadlock court
rejected the contention that the trier of fact was prevented from observing the demeanor -21-
of the witness simply because he was wearing a mask. As the Eleventh District
explained:
Demeanor is the language of the entire body. The jurors were able
to observe how Dr. Haniff moved when he answered a question; to observe
hesitation(s), if any, in his answers; if he blinked in an unusual way or rolled
his eyes. The Confrontation Clause cannot be reasonably construed to
afford the right to see a witness’ lips move or nose wrinkle any more than it
could be understood to guarantee that jurors must observe a witness’ bare
arms to determine whether he or she had “goosebumps” as the result of a
uniquely probative question. Just as proper clothing will cover sweating or
other potentially inadvertent physical reactions to effective questioning,
masks will invariably cover a witness’ nose and mouth. This does not,
however, prevent a jury from constructively assessing the credibility of the
testimony a witness offers.
We recognize that body language and hesitation in testimony are
critically important in gleaning whether a witness is lying, hiding information,
or being truthful. We decline, however, to conclude that the wearing of a
mask, particularly in the case of a physician testifying to his or her
assessment and diagnostic methods, would prevent the jury from effectively
adjudicating the witness’ credibility. The jurors were able to physically see
the doctor's body language, albeit not his nose and mouth, as well as hear
the testimony. Because counsel was able to cross-examine the doctor and -22-
the testimony was understood, despite his mask, we hold appellant did not
suffer a deprivation of his right to Confrontation.
Id. at ¶ 52-53.
{¶ 53} Murray has not established that the trial court committed plain error by
allowing Simmons to wear a mask while she testified. Murray’s counsel was able to
confront and cross-examine Simmons at length, which are the primary rights the
Confrontation Clause protects. Instead of claiming his counsel was not able to conduct
cross-examination, Murray focuses on whether the mask affected the trial judge’s ability
to observe the demeanor of Simmons. This concern is not born out by the record.
Further, if the trial judge felt the need to see Simmons’s mouth or nose in order to make
a credibility determination, we are confident the judge would have asked her to remove
her mask.
{¶ 54} The third assignment of error is overruled.
V. The State Concedes that the Trial Court Erred in Running the Sentence on the
Third Firearm Specification Consecutively to Rather than Concurrently with the
Other Prison Terms
{¶ 55} During the March 11, 2025 oral argument, this Court inquired whether the
sentence imposed on Murray was inconsistent with the Ohio Supreme Court’s recent
decision in State v. Beatty, 2024-Ohio-5684, which was issued after Murray filed his
appellate brief in this matter. We subsequently ordered Murray and the State to file
supplemental memoranda addressing the Beatty decision and whether that decision -23-
affects Murray’s sentence and, ultimately, the outcome of this appeal.
{¶ 56} On March 17, 2025, the State filed its supplemental brief in response to our
order. Based upon the Ohio Supreme Court’s decision in Beatty, the State conceded
that the trial court’s sentence was unlawful. According to the State, the trial court was
required to run two firearm specifications consecutively to Murray’s 15 years to life prison
sentence and run any remaining discretionary firearm specifications concurrently with that
prison sentence, which would result in a total sentence of 21 years to life in prison.
Therefore, the State requested that we remand the cause for the sole purpose of imposing
a sentence in line with the Beatty decision. On March 19, 2025, Murray filed his
supplemental brief. He agreed with the State that the trial court’s judgment should be
reversed and remanded for the trial court to run the three-year sentence on the third
firearm specification concurrently with all other prison terms.
{¶ 57} In Beatty, a jury found the defendant guilty of four counts of felonious
assault and four attendant firearm specifications. Id. at ¶ 2. The jury also found Beatty
guilty of one count of discharging a firearm on or near prohibited premises, along with an
attendant firearm specification, and one count of improperly handling firearms in a motor
vehicle. At sentencing, the trial court did not impose any prison term for the firearm
specification attached to the firearm-discharge offense, but it imposed three-year prison
terms for each of the four firearm specifications attached to the felonious-assault
offenses. Two of those prison terms were mandatory under R.C. 2929.14(B)(1)(g) and
two were imposed at the trial court’s discretion, as authorized by R.C. 2929.14(B)(1)(g).
The trial court ran all four sentences consecutively, for a total of 12 years. The court -24-
imposed prison terms of four to six years for each of the four felonious-assault offenses,
18 months for the offense of discharging a firearm on or near prohibited premises, and
12 months for the offense of improperly handling firearms in a motor vehicle. The prison
terms for Beatty’s offenses were ordered to be served concurrently with each other and
consecutively to the firearm-specification prison terms, for an aggregate prison term of 16
to 18 years. Id. at ¶ 3. The defendant appealed, but the Twelfth District Court of
Appeals ultimately affirmed, holding that R.C. 2929.14(B)(1)(g) required the trial court to
run all the firearm-specification prison terms consecutively. Id. at ¶ 6, citing State v.
Beatty, 2022-Ohio-3099, ¶ 4 (12th Dist.) (en banc). Beatty appealed and the Ohio
Supreme Court accepted jurisdiction.
{¶ 58} After analyzing Ohio sentencing law, the Ohio Supreme Court noted that
“the plain language of R.C. 2929.41(A) evinces the General Assembly’s intent that all
prison terms—including those for firearm specifications—run concurrently unless a
specific exception applies within the statutory provisions enumerated in R.C. 2929.41(A).”
Id. at ¶ 17. The Court found that “[t]he only statutory provision allowing for consecutive
prison terms for firearm specifications—R.C. 2929.14(C)(1)(a)—applies to ‘mandatory
prison term[s]’ only, and therefore does not apply to prison terms imposed at the trial
court’s discretion under R.C. 2929.14(B)(1)(g).” Id. at ¶ 26. As a result, the Beatty court
concluded that “[t]he General Assembly has not given trial courts the power to require
that discretionary prison terms for firearm specifications be served consecutively, and
therefore, under R.C. 2929.41(A), such prison terms ‘shall be served concurrently’ with
other prison terms.” Id. at ¶ 27. The Court reversed the judgment of the Twelfth District -25-
and remanded the cause to the trial court with instructions that it amend its sentence to
run the two discretionary prison terms imposed for the firearm specifications concurrently
with each other and with the other prison terms imposed. Id. at ¶ 29.
{¶ 59} We agree with the parties that the recent Beatty decision applies to the
current appeal and requires us to reverse the trial court’s judgment with regard to the
sentence imposed on Murray, because the trial court ran the sentence on the third firearm
specification consecutively to rather than concurrently with the other prison terms.
Therefore, we will remand for the trial court to impose a concurrent sentence on the third
firearm specification, which will result in a total prison sentence of 21 years to life.
VI. Conclusion
{¶ 60} We will reverse the trial court’s judgment in part and remand the cause for
the sole purpose of imposing a concurrent sentence on the third firearm specification.
The judgment of the trial court will be affirmed in all other respects.
TUCKER, J. and HANSEMAN, J., concur.