State v. Perrien

2020 Ohio 798, 152 N.E.3d 897

• Court: Ohio Court of Appeals
• Decided: March 5, 2020
• Docket: 108339
• Status: Published

Opinion

[Cite as State v. Perrien, 2020-Ohio-798.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108339 v. :

DENNIS W. PERRIEN, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 5, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626337-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Theodore Parran, III, and Anna M. Faraglia, Assistant Prosecuting Attorneys, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, and Paul Kuzmins, Assistant Public Defender, for appellant.

FRANK D. CELEBREZZE, JR., J.:

Defendant-appellant, Dennis Perrien, Jr. (“appellant”), brings the

instant appeal challenging his convictions for reckless homicide and felonious

assault. Appellant argues that he was denied his constitutional right to the effective assistance of counsel, his convictions are not supported by sufficient evidence and

against the manifest weight of the evidence, the trial court committed plain error by

failing to provide a jury instruction on the offense of negligent homicide, and he was

denied his constitutional right to a fair trial. After a thorough review of the record

and law, this court affirms.

I. Factual and Procedural History

The instant appeal pertains to a shooting that occurred on February 23,

2018, in a warehouse of an industrial park on Cleveland’s west side. Appellant,

victim Donald Van Horn III (hereinafter “victim”), and Jerrold Saxton met at the

warehouse, which they planned to remodel into a clubhouse for their motorcycle

club, the All American Men of Honor Motorcycle Club. The purpose of the February

23 meeting was to assess the progress of the remodeling and sign the lease that had

been drawn up by the owner, Scott Landry.

Appellant discharged a single round from his 9 mm Ruger SR9c

handgun. A primary issue in this appeal is whether the shot was discharged

recklessly or negligently. The shot struck the victim from a distance of

approximately one to three feet. Appellant immediately began performing life

saving measures and emergency personnel were contacted. The victim ultimately

succumbed to the gunshot wound, and was pronounced dead at the scene at

approximately 10:00 a.m.

There were no eyewitnesses to the shooting that could testify about the

specific circumstances under which the shot was fired from appellant’s gun. Appellant advised the responding officers that he accidentally shot the victim and

that he was joking around with the victim at the time the gun discharged. Appellant

explained that he and the victim would often joke around with one another, during

which the victim would pull his switchblade knife and appellant would pull his gun.

Appellant was arrested for his involvement in the shooting on February

23, 2018. On March 22, 2018, the Cuyahoga County Grand Jury returned a two-

count indictment charging appellant with (1) murder, in violation of R.C.

2903.02(B), and (2) felonious assault, in violation of R.C. 2903.11(A)(1). Both

counts contained one- and three-year firearm specifications. The murder offense

charged in Count 1 alleged that appellant caused the death of the victim as a

proximate result of committing or attempting to commit felonious assault, an

offense of violence. Appellant pled not guilty to the indictment during his

arraignment on March 27, 2018.

On January 7, 2019, the state filed a brief “regarding lesser included

offenses.” Therein, the state argued that reckless homicide, in violation of R.C.

2903.041(A), is a lesser-included offense of homicide, in violation of R.C.

2903.02(B), and that negligent homicide, in violation of R.C. 2903.05(A), is not a

lesser-included offense of homicide. Accordingly, the state maintained that

negligent homicide “cannot be considered as a possible legal theory for jury

instructions in this matter.”

A jury trial commenced on January 8, 2019. At the close of the state’s

case, defense counsel moved for a Crim.R. 29 judgment of acquittal. The trial court denied defense counsel’s motion. The defense did not call any witnesses. Defense

counsel renewed the Crim.R. 29 motion after resting, and the trial court denied the

renewed motion.

On January 16, 2019, the state filed a brief regarding “jury instructions

pertaining to accident.” Therein, the state argued that a jury instruction on accident

was not proper because the state did not bear the burden of demonstrating that

appellant acted purposefully, rather, the state had to demonstrate that appellant

acted knowingly. The state contended that an accident instruction was only

appropriate and warranted when a defendant is alleged to have engaged in

purposeful conduct.

The trial court instructed the jury on January 16, 2019. The trial court

provided jury instructions on the murder offense charged in Count 1, the felonious

assault offense charged in Count 2, including the mental state of knowingly, the

lesser-included offense on Count 1 of reckless homicide, including the mental state

of recklessly, and the defense of accident. On January 18, 2019, the jury returned its

verdict. The jury found appellant guilty on Count 1 of the lesser-included offense of

reckless homicide, a third-degree felony in violation of R.C. 2903.041(A), and guilty

of the underlying one- and three-year firearm specifications. The jury found

appellant not guilty on Count 2.

The trial court held a sentencing hearing on February 26, 2019. The

trial court sentenced appellant to a prison term of four years: three years on the firearm specification to be served prior and consecutive to one year on the reckless

homicide conviction.

On March 22, 2019, appellant filed the instant appeal challenging the

trial court’s judgment. He assigns six errors for review:

I. Trial counsel was ineffective for failing to request a jury instruction on negligent assault.

II. The trial court committed plain error when it failed to instruct the jurors on the offense of negligent homicide.

III. Appellant’s conviction for reckless homicide is not supported by sufficient evidence where the evidence only supports a finding of negligence.

IV. Appellant’s conviction for reckless homicide is against the manifest weight of the evidence.

V. [Appellant] was denied a fair trial when he was not permitted to present evidence about the existence of the charge of negligent homicide even if a jury instruction was not forthcoming.

VI. Trial counsel was ineffective for asking a question of the victim’s widow [to which] counsel did not know the answer and that no trial tactic would justify.

For ease of discussion, we will address appellant’s assignments of error out of order.

II. Law and Analysis

A. Sufficiency and Manifest Weight

In his third assignment of error, appellant argues that his conviction

for reckless homicide was not supported by sufficient evidence. Specifically,

appellant contends that the state failed to demonstrate the element of recklessness.

In his fourth assignment of error, appellant argues that his conviction for reckless

homicide is against the manifest weight of the evidence because the weight of the evidence demonstrated that he committed the offense of negligent homicide, not

reckless homicide. Because these issues are closely related, we will address them

together.

The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

In contrast to sufficiency of the evidence, weight of the evidence

involves the inclination of the greater amount of credible evidence. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of

the evidence is a test of adequacy as to whether the evidence is legally sufficient to

support a verdict as a matter of law, * * * weight of the evidence addresses the

evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-

Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words,

a reviewing court asks whose evidence is more persuasive — the state’s or the

defendant’s?” Id. The reviewing court must consider all the evidence in the record,

the reasonable inferences, and the credibility of the witnesses to determine

“‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

Appellant was convicted of reckless homicide, a third-degree felony in

violation of R.C. 2903.041(A), which provides that “[n]o person shall recklessly

cause the death of another[.]”

The culpable mental state of “recklessness” is defined in R.C.

2901.22(C) as follows:

A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

“Substantial risk” is defined in R.C. 2901.01(A)(8) as “a strong

possibility, as contrasted with a remote or significant possibility, that a certain result

may occur or that certain circumstances may exist.”

In the instant matter, appellant argues that he acted “instinctively,

impulsively, [and] without active considerations of the underlying risk.” Appellant’s

brief at 20. Appellant also contends that he did not have enough time to

contemplate and disregard a known risk. Appellant maintains that the evidence

presented at trial was indicative of negligence, not recklessness. We disagree.

As an initial matter, we note that the state’s case was based almost

entirely on circumstantial evidence, which has the same probative value as direct

evidence. See Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492. There were no eyewitnesses to the shooting that could testify about the specific circumstances

under which the shot was fired from appellant’s gun (i.e. whether appellant and

victim were wrestling with gun and it went off accidentally; whether the victim

jokingly lunged at appellant with his knife and appellant reacted by drawing his gun;

whether the victim had, in fact, drawn his knife and whether the blade was open,

etc.). The only individual present inside the warehouse with appellant and the

victim at the time of the shooting was Jerrold Saxton. However, his back was turned

to the victim and appellant, and as a result, he did not see the specific circumstances

under which the shot was fired. Two other witnesses, Kimberly Shaffer and Ann

Marquard, were working in the office next door to the clubhouse in which the shot

was fired. They did not see the specific circumstances under which the shot was

fired.

Saxton testified that he was friends with both appellant and the

victim. On the day of the shooting, he walked through the perspective warehouse

with appellant and the victim. As the three walked through the space to assess the

progress of the renovations, he noticed some paint that was “overspray[ed]” on a

wall. (Tr. 1038.) Saxton made a comment to appellant and the victim about his

observation. The three were joking around with one another about the overspray.

Saxton explained that the victim asked who was responsible for the overspray.

When Saxton said that he did not know who was responsible, the victim “made a

joking gesture * * * pointing at [appellant].” (Tr. 1039.) Appellant and the victim continued to “bust each other’s balls” about

the overspray, and they both said they were doing the best they could with the

renovations. (Tr. 1042.) Saxton walked away from appellant and the victim to put

his soda down. The victim and appellant were still talking, but Saxton was not

paying attention to the specific nature of their conversation. At this point, Saxton

heard a “loud pop,” turned around, and saw the victim stumble backwards one or

two feet. (Tr. 1042.) He initially thought the victim was joking around, but then

observed blood coming from the victim’s chest. Appellant began to yell, “I didn’t

mean it. It was an accident.” (Tr. 1043.) Saxton saw a knife and a gun on the ground

near the victim.

Saxton called 911. Although he could not remember exactly what he

said to the operator, he opined at trial that he said he “needed to report a shooting,

an accident.” (Tr. 1045.) The 911 call was played at trial, and Saxton did not

mention the shooting was an accident during the recorded call.

As noted above, Saxton testified that appellant and the victim were

joking around with one another about the paint overspray. He did not hear either

appellant or the victim raise their voice. Because his back was turned to appellant

and the victim, he did not see a gun or a knife pulled when appellant and the victim

were talking about the overspray.

When Saxton spoke with first responders at the scene, he told them

that the victim was accidentally shot. Saxton explained that he did not know for

certain whether the victim was accidentally shot, but he was speculating that it was an accident because he knows appellant and the victim, and Saxton did not have any

reason to think that the shooting was intentional. Saxton was assuming that the

shooting was an accident “because I know both of them and I know that neither one

of them have ever done anything to each other to try to harm each other.” (Tr. 1064.)

On cross-examination, Saxton testified that he had never seen

appellant and victim argue or get violent with each other. He knew the victim to

carry a “[s]pring-action” knife, commonly known as a “switchblade.” (Tr. 1085.)

This is the type of knife he saw on the ground near the victim’s body. Saxton testified

that the victim would occasionally mess around with his knife: “when [victim] would

joke around, he’d pull it out and pop it open and say, I cut you, and then he’d close

it and put it away.” (Tr. 1085.) Saxton explained that “most of us never really took

[the victim’s joking around] seriously,” and the victim never actually cut anybody.

When Saxton walked away from appellant and the victim, he could

not hear exactly what they were saying to one another as they were “pulling each

other’s chain” about the paint overspray. (Tr. 1092.) Saxton never heard the victim

pull out his knife and say he was going to cut appellant, and he never heard appellant

pull his gun out or make any reference to a gun or a knife. When Saxton turned

around after hearing the loud pop, he did not see a gun in appellant’s hand and he

did not see a knife in the victim’s hand.

Saxton testified that when Kimberly Shaffer, an employee of the

victim’s company, came running into the warehouse where the shooting took place,

he did not say that the shooting was an accident. However, Saxton confirmed that he has told people that the shooting was an accident “[e]very chance I can get.” (Tr.

1105.)

Although it did not bother him when he saw the victim playing or

joking around with his knife in the past, Saxton testified that it would have

concerned him if he saw appellant pull out a loaded gun in a joking manner. Saxton

explained that his concern would not be that appellant would shoot the gun, but “a

loaded gun it, to me, in my eyes, is much more dangerous than a knife.” (Tr. 1114.)

Kimberly Shaffer testified that she was working for the victim’s

heating and cooling company, BTU Comfort Solutions, at the time of the shooting.

Her office was next door to the space that appellant, the victim, and Saxton were

renovating to use as a clubhouse for their motorcycle club. Shaffer testified that

when people were conversing in the clubhouse, she could not hear them. However,

when the people in the clubhouse were yelling, she was able to hear them. Shaffer

testified that she did not hear any yelling or arguing in the clubhouse before she

heard the loud noise that she later learned was a gunshot.

After hearing the loud noise and subsequent commotion, Shaffer ran

from her office into the clubhouse. She saw the victim lying on the ground, and

appellant was kneeling next to him with his hands on the victim’s chest. Shaffer

testified that there was a knife that was on the ground near appellant and the victim.

The knife was closed. Shaffer told appellant to grab the knife and cut victim’s shirt

open so they could see where the blood was coming from. Shaffer confirmed that

the knife was closed, and that appellant opened the knife. On cross-examination, Shaffer explained that she did not notice the

knife and gun on the ground immediately when she ran from her office into the

clubhouse. She noticed the knife on the ground next to the victim when she knelt

down and began talking to him.

Shaffer testified that she did not observe anything that led her to

believe that there was a struggle or a fight between appellant and the victim. She

did not observe any injuries that appellant had sustained.

When police arrived on the scene, Shaffer told officers she thought the

shooting was an accident. (Tr. 895.) Shaffer explained that appellant and the victim

were best friends. Shaffer told several people that the victim had been accidentally

shot, including another member of the motorcycle club, Saxton’s girlfriend, and

appellant’s brother. Finally, Shaffer believed that she told Cleveland Police

Detective Kevin Fischbach (“Det. Fischbach”) that the shooting was an accident.

Ann Marquard was also an employee of the victim’s company. She

testified that when people were in the clubhouse, she could hear them when they

were talking, yelling, and using power tools. (Tr. 921.) On the day of the shooting,

she heard “yelling as far as calling [911], don’t die on me.” (Tr. 922.) She walked

from her office to the clubhouse and saw the victim laying on the floor, appellant

standing over the victim, and Shaffer applying pressure to the victim’s gunshot

wound. She did not hear any yelling or screaming coming from the clubhouse before

she heard someone yell to call 911. The victim’s wife, Krista Van Horn (hereinafter “widow”), testified

that she came to the scene after the shooting and asked appellant what happened.

Appellant indicated to her that the shooting was an accident. (Tr. 954.) She did not

believe that she had ever said that the shooting was an accident.

Sergeant Michael Rybarczyk (“Sgt. Rybarczyk”), a 30-year veteran of

the Cleveland Police Department, was the first officer to arrive on the scene. He

heard appellant on the phone speaking to his mother and appellant said that “he

shot [the victim]; that it was an accident; they were screwing around and like they

always do; and [the victim] pulled a knife, I pulled my gun, and I accidentally shot

him.” (Tr. 700.) In addition to telling this to his mother, appellant provided the

same information about the shooting to Sgt. Rybarczyk.

On cross-examination, Sgt. Rybarczyk explained that appellant

blurted out that he shot the victim accidentally. (Tr. 777.) He authored a report

documenting appellant’s statement that he shot the victim, they were fooling around

like they always do, the victim pulled out a knife, appellant pulled out his gun, and

appellant accidentally shot the victim. (Tr. 778.)

Sgt. Rybarczyk testified that he did not observe anything apparent

indicating that a struggle had taken place. Appellant directed Sgt. Rybarczyk to his

gun that was on the ground. Sgt. Rybarczyk observed a knife on the ground next to

the gun. He could not recall whether the knife was open.

Sgt. Rybarczyk told the other officers on the scene that the shooting

appeared to be “pretty cut and dry[.]” (Tr. 781.) He explained that his “cut and dry” statement was referring to the fact that he had identified the shooter and he was not

looking for other suspects, rather than referring to the fact that the shooting was or

was not an accident. (Tr. 782.) Finally, Sgt. Rybarczyk confirmed that when he was

on the scene, he had no opinion about whether this was an accidental or a purposeful

shooting.

Det. Fischbach testified that when he arrived on the scene with his

partner, they spoke with Sgt. Rybarczyk about what had transpired. The victim

was laying on the ground on his back, and his hands were off to his side.

Det. Fischbach observed a knife on the ground close to the victim’s head. He

described the knife as a “work knife.” (Tr. 1585.) He confirmed that the knife’s blade

was in the open position when it was observed and collected by police.

Det. Fischbach testified about appellant’s holster. He opined that

appellant had the holster for a while. He explained that the holster has “a release

snap on top where you would use to cover the top end of the handgun.” (Tr. 1591.)

The state introduced exhibit No. 25 at trial, which was a photograph of appellant’s

holster. Appellant’s holster connected to his pants belt, and the holster was worn

underneath appellant’s brown jacket. (Tr. 1593.)

On cross-examination, Det. Fischbach acknowledged that the body

camera footage captured by Sgt. Rybarczyk shows appellant saying that he and the

victim were screwing around, and that the shooting was an accident. During an

interview of Saxton, Det. Fischbach learned that the victim would often play with his

knife. Det. Fischbach opined that “playful” was not the proper term to describe the conduct of 50-year-old adults in relation to a murder. He felt that “joking” was more

appropriate to describe the conduct of adults than “playful.”

Det. Fischbach testified that he did not learn anything more about

why this homicide occurred, such as a potential motive, after conducting his

investigation. Det. Fischbach confirmed that when he conducts an investigation, he

presents the facts to the prosecutor and the prosecutor determines what charges to

pursue.

Finally, Det. Fischbach explained that appellant did not assert to him

that the shooting was an accident. Even if appellant had, Det. Fischbach’s inquiry

in this case and in other investigations would not stop merely because someone says

it was an accident.

Roger Polk, an Ohio CCW instructor and United States Marine Corps.

Veteran, testified that appellant completed his CCW course in 2013. Polk explained

that basic military firearms training involves rifles, not handguns. (Tr. 1223.) Basic

training consists of 13 weeks, two of which are spent on the shooting range.

(Tr. 1234.)

In the military, there are basic “principles and fundamentals” of

firearm safety. (Tr. 1230.) These safety principles and fundamentals are

“constantly” drilled into your head during basic training. (Tr. 1231.) Polk described

the principles and fundamentals: “you keep the muzzle pointed in a safe direction;

you keep your finger off the trigger until you’re ready to shoot; and you don’t load it

until you’re instructed to load the gun.” (Tr. 1230-1231.) Polk testified that these three principles and fundamentals of gun safety apply regardless of what branch of

the military a person serves.

Polk emphasizes the same principles of gun safety in his CCW course:

(1) the gun should be unloaded if you are not using it, (2) always keep the gun

pointed in a safe direction, and (3) keep your finger off the trigger. (Tr. 1187-1190.)

Polk opined that an accidental discharge of a firearm typically results when a person

has their finger on the trigger before they are ready to shoot. (Tr. 1224.)

Polk’s testimony demonstrates that appellant would have been taught

the three principles and fundamentals of gun safety — both in his military basic

training and during Polk’s CCW course.

James Kooser, a firearms examiner with the Cuyahoga County

Regional Forensic Science Laboratory, testified that appellant’s gun was a Ruger

SR9c, 9 mm. He performed a trigger pull test and found that it had a trigger pull of

“five and three quarters to six pounds.” (Tr. 1260.) Kooser explained that trigger

pull is the amount of pressure it takes on the trigger to have the gun fire.

Kooser confirmed that appellant’s firearm was operable and

functioned normally. Kooser did not find any malfunctions or anything wrong with

appellant’s gun during his examination.

Cleveland Police Sergeant Michael Quinn (“Sgt. Quinn”), assigned to

the Homicide Unit, testified that Sgt. Rybarczyk told him that appellant said the

victim was his friend, they were fooling around, the victim had a knife, appellant had

a gun, and appellant shot him. Sgt. Quinn explained that the victim’s wife was confused about what had transpired and wanted to speak with appellant. Sgt. Quinn

did not remember the exact conversation between appellant and the victim’s wife,

but appellant put his head down and apologized.

Sgt. Quinn testified that when he learns that something may have been

an accident, he has an obligation to conduct an investigation with an open mind to

see where it takes him. (Tr. 1468.)

On cross-examination, Sgt. Quinn acknowledged that the synopsis in

his report did not indicate appellant stated the shooting was an accident, nor does

the report contain the word “accident.” After watching the body camera footage

obtained by Sgt. Rybarczyk, however, Sgt. Quinn confirmed that Sgt. Rybarczyk told

him appellant stated this was an accident and that him and the victim were fooling

around.

Curtis Jones, from the Cuyahoga County Medical Examiner’s Trace

Evidence Unit, testified at trial that he performed a chemical trace metal detection

test on the hands of the victim. Jones did not observe a reaction on the hands of the

victim after performing this test. If a person handles exposed metal on an object,

such as the handle of a gun or a knife, or a metal pipe, they may have a positive

reaction on the trace metal detection test.

On cross-examination, Jones acknowledged that a negative test result

on the trace metal detection test does not conclusively establish that the person did

not touch or handle a metal object. (Tr. 1302.) Jones received information that the victim had potentially been in possession of a knife, but there was no indication

whether the knife’s handle was metal.

Jones also performed gunshot residue testing in this case. He

performed a chemical Griess test on the victim’s sweatshirt that tests for gunpowder.

This test indicated that the distance from the muzzle of appellant’s gun to the victim

was “intermediate,” anywhere from one to three or four feet. (Tr. 1295.) Jones

explained that the distance between the gun and the victim would not have been

significantly less than one foot, otherwise there would have been the presence of

“fouling,” another type of gunshot residue.

Dr. Thomas Gilson, Cuyahoga County’s Medical Examiner, testified

that appellant’s gun was fired from an intermediate range, somewhere between 7

inches and 1.5 feet (18 inches).

In support of his argument that the state failed to establish that he

acted recklessly, appellant directs this court to State v. Peck, 172 Ohio App.3d 25,

2007-Ohio-2730, 872 N.E.2d 1263 (10th Dist.), in which the Tenth Appellate

District expounded on the definition of recklessness in determining the sufficiency

of the evidence. In Peck, the defendant-appellant, a tow-truck driver, used a “snatch

block,” a large pulley with a hook attached, to pull a tractor trailer out of a median

and tow the tractor. The pulley that Peck used to pull and tow the tractor trailer was

not sufficiently rated to pull the tractor trailer’s weight. The pulley broke, catapulted

into a passing car, and the driver of a passing car was killed as a result of the incident.

Peck was subsequently convicted of reckless homicide. Id. at ¶ 5. On appeal, the Tenth District reversed Peck’s conviction for reckless

homicide, concluding that the evidence did not establish that he knew the risk

associated with his conduct because he was not aware that the equipment, the

pulley, was not sufficiently rated to tow the tractor trailer. The appellate court held

that “[a] mere failure to perceive or avoid a risk, because of a lack of due care, does

not constitute reckless conduct.” Id. at ¶ 12. In order to be convicted of recklessness,

“one must recognize the risk of the conduct and proceed with a perverse disregard

for that risk.” Id. The court explained:

In contrast to the actor who proceeds with knowledge of a risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligence. R.C. 2901.22(D). Recklessness requires more than ordinary negligent conduct. The difference between the terms “recklessly” and “negligently” is normally one of a kind, rather than of a degree. “Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.” Wharton’s Criminal Law, 15th Ed., Section 27, at 170 (emphasis sic); see, also, State v. Wall (S.D. 1992), 481 N.W.2d 259, 262.

Id. at ¶ 13.

After reviewing the record, we find appellant’s reliance on Peck to be

misplaced. The evidence presented at trial demonstrates that appellant had his

finger on or near the trigger of the loaded gun that he drew from his holster and

pointed at or in the vicinity of the victim who was standing less than two feet away.

Appellant does not argue that he thought the gun was unloaded, that he dropped the

gun and it accidentally fired, or that he and the victim wrestled for the gun during which it fired. He summarily argues that while he may have been negligent and

careless, he was not reckless.

The evidence in this case shows that appellant was aware of the risk of

pointing a loaded gun at a target and having his finger on the trigger of the gun.

These firearm safety principles and fundamentals were taught to appellant during

his basic training in the military and Polk’s CCW course. By removing his loaded gun

from his holster, pointing his loaded gun at or in the vicinity of the victim, and

placing his finger on the trigger of his loaded gun that was pointed at or in the

vicinity of the victim, appellant disregarded all three of the principles and

fundamentals of firearm safety.

The facts of this case are more like the facts presented in State v.

Gough, 5th Dist. Licking No. 08-CA-55, 2009-Ohio-322. In Gough, the defendant-

appellant shot the victim in the head while playing with the victim’s gun during a

party at which appellant was drinking. The victim died of a gunshot wound to the

head, and Gough was convicted of reckless homicide. Id. at ¶ 6, 11. The victim’s gun

was initially loaded, then it was unloaded by the owner, who loaded a bullet back

into the gun after showing it to one of the party guests. Id. at ¶ 4.

On appeal, Gough argued that his reckless homicide conviction was

not supported by sufficient evidence because there was no evidence that he knew the

gun had been reloaded and, as a result, the state did not demonstrate that he acted

recklessly. The Fifth District rejected Gough’s argument and affirmed his

conviction, concluding that Gough knew the risks created by his conduct because the gun owner usually kept the gun loaded, the gun had been loaded earlier in the

evening, and Gough had previous experience with firearms. Id. at ¶ 21-23.

In the instant matter, in reviewing the evidence in a light most

favorable to the prosecution, as we must, we find the state presented sufficient

evidence to find that appellant was aware of the risk when he drew his loaded gun,

pointed it at or in the vicinity of the victim, and either had his finger on the trigger

or failed to protect the trigger. Having completed basic training in the military,

serving in the military, and completing Polk’s CCW course, appellant had previous

experience with firearms. Appellant’s gun was loaded. There is no evidence that

anyone other than appellant had possession and control of the gun on the day of the

The evidence presented at trial demonstrated that appellant knew the

risk created by his conduct. Appellant’s act of drawing his loaded gun and pointing

it at or in the vicinity of the victim who was standing less than two feet away, and

placing his finger on the trigger of the gun that required minimal force to discharge

demonstrated a perverse disregard of a known risk that the victim would be shot

and killed.

In State v. Martin, 10th Dist. Franklin No. 07AP-362, 2007-Ohio-

7152, the defendant was convicted of reckless homicide after his girlfriend was

fatally shot. The defendant alleged that the victim’s gun discharged when he tried

to take it away from her. Id. at ¶ 37. On appeal, the Tenth District held that the

defendant’s reckless homicide conviction was supported by sufficient evidence where the defendant admitted that the gun had been in his hand when it discharged,

and the state’s evidence established that the shooting occurred while defendant and

the victim were very close to one another and the state’s firearms examiner testified

that the only way that the gun could be fired is to apply pressure to the trigger. Id.

at ¶ 63.

In the instant matter, as noted above, the evidence established that

the shooting occurred while appellant and the victim were less than two feet away

from one another. There is no evidence that appellant and the victim struggled for

the gun or that the gun was in the possession of anyone other than appellant. There

is also no evidence that something other than appellant’s finger caused the gun to

discharge (i.e., dropping the gun and the gun firing upon hitting the floor, or

bumping into an obstacle that came into contact with the trigger causing the gun to

go off). The jury could have reasonably inferred that appellant drew his loaded

weapon from his holster, pointed it at or in the vicinity of the victim, and had his

finger on the trigger in a manner that applied enough pressure for the gun to

discharge.

Even if appellant did not have his finger on the trigger, the state’s

evidence sufficiently established that by pointing a loaded weapon at or in the

vicinity of the victim who was standing less than two feet away, appellant perversely

disregarded a known risk that his conduct was likely to cause harm. The Supreme

Court of Ohio has recognized that “a firearm is an inherently dangerous instrumentality, the use of which is reasonably likely to produce death” when fired

at an individual. State v. Widner, 69 Ohio St.2d 267, 270, 431 N.E.2d 1025 (1982).

While appellant may not have intended to apply enough pressure to

the trigger to fire a round from the gun, appellant’s actions undoubtedly created a

risk of harm to the victim, who was standing less than two feet away, and appellant

perversely disregarded that risk by drawing his loaded gun from his holster, pointing

it at or in the vicinity of the victim who was less than two feet away, and placing his

finger on the trigger. See State v. G.G., 10th Dist. Franklin No. 12AP-188, 2012-

Ohio-5902, ¶ 14 (“A known risk of handling and manipulating a gun while standing

in very close proximity to a child and while pointing it in the direction of that child,

without checking the chamber to see if a bullet is still in the firearm, is that the

firearm will discharge in the direction of the child, and the bullet will narrowly miss

that child.”).

In State v. Erby, 2d Dist. Montgomery No. 27799, 2018-Ohio-3695,

the Second District explained that “a defendant may be guilty of reckless homicide

for an unintentional shooting if the evidence supports a finding that he handled a

firearm in a reckless manner, resulting in another person’s death.” (Emphasis

added.) Id. at ¶ 20, citing State v. English, 10th Dist. Franklin No. 13AP-88, 2014-

Ohio-89, ¶ 13, and State v. Howse, 2012-Ohio-6106, 985 N.E.2d 246, ¶ 30-31 (9th

Dist.). In Howse, the appellate court affirmed defendant’s reckless homicide

conviction where the defendant “cocked a loaded handgun and pointed it at” the

victim, but did not intend to shoot the victim. Id. at ¶ 31. The evidence showed that the defendant “was aware of the risks posed by firearms,” and despite this

awareness, “acted with heedless indifference to the consequences” of his own

handling of a loaded weapon that discharged. Id. at ¶ 30-31.

In the instant matter, given the evidence presented by the state at trial,

the jury had a reasonable basis for finding that appellant acted recklessly by

removing his loaded gun from his holster and pointing it at or in the vicinity of the

victim who was less than two feet away from him. There is no evidence in the record

indicating that appellant did not know the gun was loaded or that something other

than appellant’s finger caused the gun to discharge. Nevertheless, because

appellant’s gun discharged, the jury could have reasonably inferred that appellant’s

finger came into contact with the trigger, and applied enough force to cause the gun

to discharge. Because appellant was a veteran and a CCW permit holder, the jury

could have reasonably determined that appellant was aware of the risks posed by

firearms, yet acted with heedless indifference to these consequences when he drew

the loaded weapon and pointed it at or around the victim in the clubhouse.

There is no evidence in the record that the bullet ricocheted off of

anything before striking the victim. Therefore, the jury could have reasonably

inferred that appellant pointed his loaded weapon directly at the victim.

Kooser testified at trial that the amount of force required to discharge

appellant’s gun was 5.75 to 6 pounds. (Tr. 1260.) Polk opined that the force needed

to discharge striker fire pistols, such as appellant’s Ruger SR9c handgun, is “[m]uch,

much lighter, dangerously so” than other handguns. (Tr. 1212.) To the extent that appellant argues that the minimal amount of force required to fire his gun supports

a finding that he did not act recklessly, we disagree. Unlike Gough and Martin, the

gun that fired the shot in this case belonged to appellant. Appellant did not pick up

a gun with which he was not familiar. Therefore, the jury could have reasonably

inferred that appellant knew that a minimal amount of force was needed to pull the

trigger and fire the weapon, and, therefore, it was reckless for appellant to have his

finger on or around the trigger while he was “joking around” with the victim.

Saxton appreciated the difference between joking around with a knife

and joking around with a loaded gun. Although it did not bother him when he saw

the victim playing or joking around with his knife in the past, Saxton testified that it

would have concerned him if he saw appellant pull out a loaded gun in a joking

manner. Saxton explained that his concern would not be that appellant would shoot

the gun, but “a loaded gun is, to me, in my eyes, is much more dangerous than a

knife.” (Tr. 1114.) Saxton is not a veteran. Therefore, he did not complete the

military basic firearms training during which the three principles and fundamentals

of gun safety are emphasized. Nevertheless, Saxton’s testimony indicates that with

less training than appellant, Saxton is still cognizant of the inherent danger posed

by firearms.

The aforementioned circumstantial evidence demonstrates that

appellant drew his loaded weapon from his holster, pointed it at the victim who was

standing less than two feet away from him, and placed his finger on or near the

trigger. Appellant’s finger applied enough force to the trigger causing the gun to discharge. The state’s evidence, if believed, supports a finding that appellant

handled his firearm in a reckless manner, and appellant’s reckless conduct resulted

in the victim’s death. Therefore, although appellant and the victim may have been

“joking around,” and the shooting may have been unintentional, the evidence

supports the jury’s verdict.

For all of the foregoing reasons, appellant’s reckless homicide

conviction is supported by sufficient evidence. Appellant’s third assignment of error

is overruled.

Similarly, we find no basis upon which to conclude that appellant’s

reckless homicide conviction is against the manifest weight of the evidence. As an

initial matter, to the extent that appellant argues that his conviction is against the

manifest weight of the evidence because the evidence demonstrates that he

committed the offense of negligent homicide rather than reckless homicide,

appellant did not present this argument or proceed on this theory below. Rather,

appellant defended against the charges on the theory that the shooting was

accidental. Generally, a party cannot raise an argument for the first time on appeal

that was not raised below. See State v. Wintermeyer, Slip Opinion No. 2019-Ohio-

5156, ¶ 10.

Appellant’s manifest weight challenge is based on his argument that

the jury erred by believing the state’s version that appellant recklessly caused the

death of the victim, rather than appellant’s theory that appellant and the victim were

joking around with one another, the shooting was accidental, and appellant did not act recklessly. As noted above, the evidence presented at trial supports the

conclusion that appellant recklessly caused the death of the victim.

Appellant’s reckless homicide conviction is not against the manifest

weight of the evidence merely because the jury rejected the defense’s theory that the

shooting was an accident and found the state’s version of the events to be more

believable. “‘[A] conviction is not against the manifest weight of the evidence simply

because the jury rejected the defendant’s version of the facts and believed the

testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga No. 101773,

2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-

Ohio-2959, ¶ 2. The jury did not lose its way in resolving the conflicting theories

based on the evidence presented at trial.

For all of the foregoing reasons, we are unable to determine that the

jury clearly lost its way in finding appellant guilty of reckless homicide. Appellant’s

conviction is not against the manifest weight of the evidence. Appellant’s fourth

assignment of error is overruled.

B. Negligent Homicide Instruction

In his second assignment of error, appellant argues that the trial court

committed plain error in failing to provide a negligent homicide instruction to the

jury.

Because appellant did not object to the trial court’s jury instructions,

we review for plain error. See State v. Erker, 8th Dist. Cuyahoga No. 107790, 2019-

Ohio-3185, ¶ 147, citing State v. Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, ¶ 8 (8th Dist.). In order to demonstrate plain error, appellant must

show that but for the error pertaining to the jury instructions, the outcome at trial

would have been different. Ruppart at id.

The giving of jury instructions is within the sound discretion of the

trial court, and this court reviews the trial court’s decision for an abuse of discretion.

State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 42, citing State

v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, and State v.

Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3d Dist.1993).

The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. “The first tier, also called the ‘statutory-elements step,’ is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense.” State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6, citing State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a particular case and determines whether “‘a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.’” Evans at ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007- Ohio-2072, 865 N.E.2d 859, [] ¶ 11. “Only in the second tier of the analysis do the facts of a particular case become relevant.” Deanda at ¶ 6.

In determining whether an offense is a lesser included offense of another, a court shall consider whether (1) “one offense carries a greater penalty than the other,” (2) “some element of the greater offense is not required to prove commission of the lesser offense,” and (3) “the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.” Evans at paragraph two of the syllabus, clarifying State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).

After it has been determined that the offense is a lesser included offense, the second tier mandates that courts look to the evidence in a particular case and determine whether “‘a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.’” Deanda at ¶ 6, quoting Evans at ¶ 13. See also State v. Thomas, 40 Ohio St.3d 213, 216, 533 N.E.2d 286 (1988).

State v. Becker, 8th Dist. Cuyahoga No. 100524, 2014-Ohio-4565, ¶ 68-70.

In the instant matter, appellant argues that the jury should have been

instructed on the offense of negligent homicide, a first-degree misdemeanor in

violation of R.C. 2903.05(A). R.C. 2903.05(A) provides that “[n]o person shall

negligently cause the death of another * * * by means of a deadly weapon or

dangerous ordnance as defined in section 2923.11 of the Revised Code.”

Appellant acknowledges that negligent homicide is “not always a

lesser-included offense of reckless homicide.” Appellant’s brief at 16. Nevertheless,

appellant argues that negligent homicide must be a lesser-included offense based on

the facts of this case: “[a]nalyzing the mens rea of each offense it is obvious that

negligent homicide must be a lesser included offense of felony murder and reckless

homicide as the trial court instructed the jury in this case.” Appellant’s brief at 16.

Appellant argues that the Ohio Supreme Court’s holding in State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, should be extended

to the offense of negligent homicide. In Trimble, the Ohio Supreme Court applied

the three-part Deem test and concluded that reckless homicide is a lesser-included

offense of aggravated felony murder:

The first prong of the Deem test is met because reckless homicide is a felony of the third degree, which carries a lesser penalty than felony murder. The second prong is met because a defendant cannot cause the death of a person under R.C. 2903.01(B) without also causing the death of that person under R.C. 2903.041. In purposely causing the death of another, one has to first become reckless in causing the death of another. Finally, the third prong is met because committing reckless homicide does not require the “committing or attempting to commit” another felony. R.C. 2903.01(B).

District courts of appeals have also held that reckless homicide is a lesser included offense of felony murder. See State v. Anderson, [12th Dist. Butler No. CA2005-06-156, 2006-Ohio-2714, ¶ 9] (reckless homicide as a lesser included offense of aggravated felony murder charged under R.C. 2903.01(B)); State v. Alston, [9th Dist. Lorain No. 05CA008769, 2006-Ohio-4152, ¶ 48] (reckless homicide as a lesser included offense of felony murder charged under R.C. 2903.02(B)).

Trimble at ¶ 190-191.

In the instant matter, appellant argues that the Trimble rationale

should be extended to the facts of this case. In Trimble, the Ohio Supreme Court

explained that one cannot knowingly cause the victim’s death as a proximate result

of committing felonious assault without first becoming reckless in causing the death

of another. In other words, in knowingly committing felonious assault which

proximately causes the death of another, the defendant has to first become reckless

in causing the death of another.

Here, in arguing for an extension of Trimble, appellant appears to

argue that one cannot knowingly or recklessly cause the victim’s death without first

becoming negligent in causing the victim’s death. In other words, appellant

contends that in knowingly committing felonious assault which proximately causes

the death of another, or in recklessly causing the death of another, the defendant has

to first become negligent in causing the death of another. Appellant points to no case law supporting his argument that

negligent homicide is a lesser-included offense of either felony murder or reckless

homicide or that the Trimble rationale should be extended to the offense of negligent

homicide. In fact, appellant acknowledges that many of the cases from this court

have held that negligent homicide is not a lesser-included offense of murder or

reckless homicide. He contends, however, that these cases and the other cases from

appellate districts in this state are “wrongly decided in relationship to the unique

facts of this case.” Appellant’s brief at 16.

In State v. Jones, 8th Dist. Cuyahoga No. 80737, 2002-Ohio-6045,

the defendant-appellant was charged with murder in violation of R.C. 2903.02(B).

On appeal, Jones argued that the trial court erred in failing to provide jury

instructions on the offenses of reckless homicide and negligent homicide, which

defense counsel had requested. Id. at ¶ 84.

This court applied the three-part Deem test and held that the trial

court did not err in failing to provide a negligent homicide instruction to the jury:

In accordance with the definition set forth in Deem, negligent homicide is not a lesser included offense of murder proscribed in R.C. 2903.02(B). This is because this greater offense can be committed without the lesser offense, negligent homicide, also being committed. Accord State v. Ford[, 5th Dist. Stark No. 1999CA00177, 2000 Ohio App. LEXIS 3195 (July 10, 2000)] (negligent homicide is not a lesser included offense of murder as defined in R.C. 2903.02(B) because one can cause the death of another as a proximate result of committing or attempting to commit the proscribed felony by means other than by a deadly weapon or dangerous ordnance.)

(Emphasis added.) Jones at ¶ 93. On the other hand, this court held that reckless homicide is a lesser-

included offense of murder:

Regarding reckless homicide, we recognize it to be a lesser included offense. Here, an element of this murder statute, namely, commission of an underlying first or second degree felony, is not required to prove reckless homicide. However, we conclude an instruction on this lesser offense is nonetheless not warranted, because the jury could not have reasonably concluded that the evidence presented in this case supports a conviction for reckless homicide but not murder under R.C. 2903.02(B). See Kidder, [32 Ohio St.3d 279, 513 N.E.2d 311].

Jones at ¶ 94.

In addition to this court’s holding in Jones, the Supreme Court of Ohio

has explicitly stated that “[n]egligent homicide is not a lesser included offense of

murder.” State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970 (1990), paragraph four

of the syllabus. We decline to depart from this established precedent.

After reviewing the record, we find no basis upon which to conclude

that the trial court committed plain error in instructing the jury. Appellant was

charged with murder and the trial court properly instructed the jury that the state

had the burden of proving beyond a reasonable doubt every element of the offense,

including the “purposely” mens rea.

The trial court properly instructed the jury that if they did not find that

the state met its burden on the elements of murder, it could then consider whether

the state proved every element of the offense of reckless homicide, including the

“recklessly” mens rea. The trial court also agreed to provide a jury instruction on

the defense of accident, over the state’s objection. (Tr. 1710.) These instructions could easily allow the jury to understand that recklessness goes beyond what is

considered to be an accident.

For all of the foregoing reasons, we are unable to conclude that the

trial court committed plain error by failing to provide a negligent homicide jury

instruction. The offense of negligent homicide was not charged in the indictment,

and is not a lesser-included offense of either murder or reckless homicide.

Appellant’s second assignment of error is overruled.

C. Fair Trial

In his fifth assignment of error, appellant argues that he was “denied

a fair trial when he was not permitted to present evidence about the existence of the

charge of negligent homicide even if a jury instruction was not forthcoming.”

Citing to a single question during cross-examination of Det.

Fischbach, appellant asserts that defense counsel “sought to educate the jurors

about the offense of negligent homicide[.]” Appellant’s brief at 29. Defense counsel

asked Det. Fischbach whether he “pitched [the incident] to the prosecutors as a

negligent homicide[.]” (Tr. 1645.)

Initially, the record reflects that the trial court sustained the state’s

objection to this question. Furthermore, when this single question is read in context

with the other testimony presented at trial, it is evident that defense counsel was not

trying to “educate” the jury about the offense of negligent homicide. Rather, defense

counsel was trying to elicit testimony that supported the defense’s theory that although this was an accidental shooting, the police and prosecutors rushed to

judgment by arresting appellant and charging him with murder.

There is no evidence in the record that appellant attempted to

present evidence pertaining to the offense of negligent homicide, but was prohibited

from doing so. Rather, the record reflects that appellant presented evidence about

the defense’s theory that the shooting was an accident. As noted above, a party is

generally prohibited from raising an argument for the first time on appeal that was

not raised below. See Wintermeyer, Slip Opinion No. 2019-Ohio-5156, at ¶ 10.

Finally, as noted above, had defense counsel presented evidence

pertaining to the offense negligent homicide, this evidence would have been

inconsistent with the defense’s theory that the shooting was accidental. See

Samuels, 8th Dist. Cuyahoga No. 52527, 1987 Ohio App. LEXIS 8852; Poole, 33

Ohio St.2d 18, 294 N.E.2d 888.

For all of these reasons, we find no basis upon which to conclude that

appellant was denied a fair trial. Appellant’s fifth assignment of error is overruled

D. Ineffective Assistance of Counsel

In his first and sixth assignments of error, appellant argues that he

was denied his constitutional right to the effective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a

defendant must demonstrate: (1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable representation, and

(2) counsel’s errors prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs

two and three of the syllabus.

1. Negligent Homicide Instruction

In his first assignment of error, appellant argues that counsel

provided ineffective assistance by failing to request a jury instruction on the offense

of negligent homicide. Appellant concedes that “trial counsel initially sought a jury

instruction for negligent homicide.” Appellant’s brief at 16-17. However, after an

off-the-record discussion between defense counsel, the prosecution, and the trial

court, defense counsel withdrew his request for a negligent homicide instruction

based on the discussion and his apparent belief that he could either request an

instruction on accident or negligent homicide — not both. (Tr. 1712.) Appellant

argues that counsel’s determination that he could only have one instruction or the

other, not both, was wrong, and as a result, his performance was deficient.

As an initial matter, appellant fails to identify any authority in

support of his assertion that counsel erroneously believed that he could not have an

instruction on accident and the offense of negligent homicide. As noted above, the

defense of accident is totally inconsistent with a jury instruction on negligent

homicide. See Samuels; Poole; see also State v. Gay, 11th Dist. Portage No. 88-P-

2043, 1990 Ohio App. LEXIS 4806, 9-10 (Nov. 2, 1990), citing State v. Hill, 31 Ohio

App.3d 65, 508 N.E.2d 1038 (1st Dist.1987). (“[N]o instruction on negligent homicide is required when the theory of the defense is predicated on an accident.”)

In Hill, the First District explained that because the defendant argued from the

outset that the shooting was accidental, a jury instruction on negligent homicide

would not be appropriate. Id. at 67.

In the instant matter, the record reflects that after reviewing all of

the evidence and the testimony presented at trial, defense counsel made the

strategic, tactical decision to pursue the theory of accident to reduce appellant’s

criminal culpability rather than pursuing the theory of negligent homicide. See

State v. Taylor, 5th Dist. Richland No. 2005-CA-0112, 2006-Ohio-4064, ¶ 41. The

decision about which defense or theory to pursue at trial is a matter of trial strategy

“within the exclusive province of defense counsel to make after consultation with his

[or her] client.” State v. Murphy, 91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001).

A defendant is not denied the constitutional right to effective

assistance of counsel if counsel makes the strategic decision to not pursue every

possible trial strategy. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523

(1988). Absent a showing that counsel failed to research the facts or the law, or that

counsel disregarded a crucial defense, this court defers to counsel’s judgment. State

v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980), citing People v. Miller, 7

Cal.3d 562, 573-574, 102 Cal.Rptr. 841, 498 P.2d 1089 (1972).

In this case, the record reflects that defense counsel considered the

theory of negligent homicide and raised the issue of a negligence instruction. However, defense counsel ultimately decided to pursue the theory of accident rather

than the theory that appellant acted negligently.

The Ohio Supreme Court has explained that reviewing courts “will

ordinarily refrain from second-guessing strategic decisions counsel make at trial,

even where counsel’s trial strategy was questionable.” State v. Myers, 97 Ohio St.3d

335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 152; see also State v. Conway, 109 Ohio

St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (“[D]ebatable trial tactics do not

constitute ineffective assistance of trial counsel.”). The Ohio Supreme Court has

declined to second-guess a strategic decision made by trial counsel even when

appellate counsel argues that he or she would have defensed against the charges

differently. State v. Post, 32 Ohio St.3d 380, 388, 513 N.E.2d 754 (1987); State v.

Mason, 82 Ohio St.3d 144, 169, 694 N.E.2d 932 (1998).

After reviewing the record, we decline to second-guess trial counsel’s

strategical and tactical decision to pursue the defense of accident rather than the

theory that appellant committed the offense of negligent homicide. For all of the

foregoing reasons, appellant’s ineffective assistance claim fails in this regard.

Appellant’s first assignment of error is overruled.

2. Widow

In his sixth assignment of error, appellant argues that counsel’s

performance was deficient during pretrial proceedings because counsel failed to

conduct a reasonable investigation and failed to interview the widow before trial.

Furthermore, appellant argues that counsel’s performance during trial was deficient because counsel asked the widow a question during trial to which counsel did not

know the answer, and in doing so, elicited testimony at trial that “directly

contradicted [the] theory of defense.” Appellant’s brief at 32. As noted above, the

defense’s theory of the case was that appellant’s gun discharged accidentally.

Defense counsel asked the widow whether she had a hair

appointment on the day of or shortly after the shooting. The state objected, and the

trial court called the parties to sidebar. During sidebar, the state argued that the

testimony was irrelevant. In response, defense counsel explained, “[w]ell, the

relevance is [the widow said she] had a hair appointment that day and she cancelled

it and said her husband was accidentally shot and I want to see if she actually said

that.” (Tr. 969.) The prosecutor asked defense counsel who the widow made the

statement to, and defense counsel asserted that he wanted to find that out. “[The

widow] had a hair appointment and it became recent knowledge to me that she

cancelled it. She called and said, [m]y husband was accidentally shot. I want to see

if she said — I meant to see if it comes from her mouth.” (Tr. 969.)

On the day of the shooting, the widow asked appellant what had

happened. Appellant asserted that the shooting was an accident. This testimony

was elicited by the state. Defense counsel sought to ask the widow whether she

believed appellant.

The trial court explained that whether or not to believe appellant’s

assertion is for the jury, not for the widow to testify about. The court asked the

defense attorneys whether they knew the answer to the question (did the widow believe appellant’s assertion that the shooting was an accident?). Both attorneys

confirmed that they did not. (Tr. 973.)

Following the sidebar, the following exchange took place between

defense counsel and the widow:

[Defense Counsel]: Okay. Have you ever told anybody that this was an accident?

***

[Defense Counsel]: I said, Your Honor, has [widow] ever relayed to anybody that this was an accident.

[Widow]: Have I ever said that it was an accident? I don’t believe so.

(Tr. 975-976.)

After reviewing the record, we find that appellant’s ineffective

assistance claim regarding defense counsel’s question to the widow fails under the

second Strickland prong. Assuming, arguendo, that counsel’s failure to interview

the widow and the question with which appellant takes issue constitutes deficient

performance, appellant cannot demonstrate a reasonable probability that but for

counsel’s question, the result at trial would have been different. Even if the widow

had testified that she had, in fact, communicated to people after the shooting that

the victim was shot accidentally, this does not constitute a reasonable probability

that the outcome at trial would have been different. Finally, the record reflects that

counsel had recently learned about the widow’s purported statement — asserting

that her husband had been accidentally shot in cancelling her hair appointment.

Although counsel did not know the answer to the question with which appellant takes issue, counsel made a strategical, tactical decision to ask the question, which

could have supported the defense’s theory of an accidental shooting.

Finally, we note that this was a jury trial that spanned eight days

during which 16 different witnesses testified. We decline to second guess counsel’s

strategic decision to ask the single question with which appellant takes issues. An

affirmative answer to the question would have supported the defense’s theory that

the shooting was accidental, and a negative answer to the question was of little to no

consequence in determining whether appellant recklessly caused the death of the

victim.

Because appellant has failed to demonstrate prejudice or a

reasonable probability that the outcome at trial would have been different but for

defense counsel’s question, appellant’s ineffective assistance claim fails in this

regard. Appellant’s sixth assignment of error is overruled.

III. Conclusion

After thoroughly reviewing the record, we overrule appellant’s

assignments of error and affirm the trial court’s judgment. Appellant’s conviction

for reckless homicide was supported by sufficient evidence and is not against the

manifest weight of the evidence. The trial court did not commit plain error in failing

to provide a negligent homicide instruction to the jury, and appellant was not denied

his right to a fair trial. Appellant was not denied his constitutional right to the

effective assistance of counsel.

Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and EILEEN A. GALLAGHER, J., CONCUR