[Cite as State v. Santana, 2022-Ohio-4118.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29348 : v. : Trial Court Case No. 2019-CR-3574 : VICTOR SANTANA : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 18th day of November, 2022.
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant
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LEWIS, J. -2-
{¶ 1} Defendant-Appellant Victor Santana appeals from his convictions for murder
and felonious assault. Santana contends that the trial court improperly excluded
evidence of past trespasses on his property, which was relevant to his state of mind at
the time he shot and killed two trespassers in his detached garage. Santana also argues
that the trial court should have excluded from evidence two recordings of his interviews
with police due to a lack of clarity in his responses to the officers’ questions. Further,
Santana contends that his trial counsel provided ineffective assistance by failing to object
to the admission of those recordings. Finally, Santana argues his convictions were
against the manifest weight of the evidence.
{¶ 2} For the reasons that follow, we affirm Santana’s convictions.
I. Facts and Course of the Proceedings
{¶ 3} On November 21, 2019, a Montgomery County grand jury indicted Santana
on four counts of murder (proximate result), first-degree felonies in violation of R.C.
2903.02(B); two counts of felonious assault (serious physical harm), second-degree
felonies in violation of R.C. 2903.11(A)(1); three counts of felonious assault (deadly
weapon), second-degree felonies in violation of R.C. 2903.11(A)(2); and one count of
attempt to commit murder, a first-degree felony in violation of R.C. 2923.02(A). All
counts contained firearm specifications. All of the counts relate to the night of August
28, 2019, when Santana shot and killed Devin Henderson and Javier Harrison, who were
sitting in a car in the detached garage on Santana’s property with their friend, Ja’shin
Gibson. -3-
{¶ 4} Santana filed a motion to suppress the statements he made during his two
interviews with the police. He also filed a motion in limine requesting that the trial court
allow his counsel to elicit testimony and evidence that trespassers had previously caused
damage to his house and truck. The trial court overruled both motions. On November
29, 2021, Santana moved to dismiss the attempt to commit murder count of the
indictment. Ultimately, this count was dismissed, leaving nine counts to be tried to a jury.
{¶ 5} The jury trial was held from November 30 to December 2, 2021. Several
witnesses testified at the trial. Lee Lehman, the Chief Deputy Coroner for Montgomery
County, testified first for the State. He had performed autopsies on Devin Henderson
and Javier Harrison. According to Lehman, Henderson was shot multiple times in his
back, and the bullets did not exit his body. The gunshot wounds caused Henderson’s
death, and there were no other contributing causes. Trial Tr., p. 184-193, 198-199.
Both bullets entered Henderson’s back in a downward path. Id. at 194. Henderson’s
toxicology report was positive for the presence of marijuana. Id. at 198. Lehman
testified that Javier Harrison had a gunshot wound to the left side of his back; the bullet
went through his heart and left lung. He also had a gunshot wound to his left forearm.
Id. at 204-205, 207-209. Harrison died as a result of multiple gunshot wounds. Id. at
214. Harrison’s toxicology report also showed the presence of marijuana. Id. at 213.
Lehman did not find any weapons in the possession of Henderson or Harrison. Id. at
214.
{¶ 6} Dayton Police Officer Jeff Downing testified next for the State. He had been
dispatched to Santana’s house at 848 Conners Street around 10:00 p.m. on August 28, -4-
2019, due to a reported shooting. Id. at 221-223. Downing took several photographs
of the crime scene. Officer Downing did not find any weapons around either Harrison or
Henderson. Id. at 232, 236. He noted that Santana’s yard was well maintained, but he
did notice some plywood and plastic over some windows of the house. Id. at 228, 241.
It was very dark around the garage and there was no electricity in the garage. Id. at 242.
Officer Downing agreed that there were many abandoned houses in Santana’s
neighborhood. Id. at 243.
{¶ 7} Ja’shin Gibson testified for the State. Gibson, who was 19 years old on the
night of August 28, 2019, had known Harrison since they were 12 or 13 years old, and he
had met Henderson at the Boys and Girls Club when he was five or six years old. Id. at
252-253. The three of them ran around together all the time, chilling, smoking, and
laughing. Id. at 253. They regularly smoked marijuana together. Id. at 253-254. The
three men met at Gibson’s place that night and were looking for a place to smoke. They
walked by Santana’s house and thought it was abandoned due to the boarded windows
and run-down cars in the garage. Id. at 254-255. None of them had any weapons, and
Harrison brought the marijuana. Id. at 257. It was very dark on the property, and
Gibson did not notice any lights on in the house. Id. at 257-259. The three men entered
the garage and got into the Lincoln Continental in the garage. Gibson sat in the front on
the passenger’s side, Henderson sat in the front on the driver’s side, and Harrison sat in
the back on the driver’s side. Id. at 263.
{¶ 8} The three men had been in the car only for approximately five to ten minutes
when Gibson lit his lighter to give Harrison some light to roll up a marijuana blunt. As -5-
Gibson passed the lighter to Harrison to light up the blunt, he saw the back door of the
car open, saw flashes, and heard gunshots. Harrison screamed that he had been shot.
The person with the gun then opened Henderson’s door and pointed the gun inside.
Henderson tried to push the gun up and exit the car. Henderson attempted to run to the
front of the car after getting out but was shot in the back. Id. at 264-271. Gibson was
able to get out of the car and hide underneath it. Gibson stayed underneath the car until
the shooter exited the garage. After Gibson got out from underneath the car, he was
able to observe the shooter enter the house on the property. Gibson then left the
property and ran away screaming for help. Id. at 271-273.
{¶ 9} Gibson returned to the scene of the shooting after he tried to tell people what
had happened. He spoke to a detective and initially lied about what had happened. Id.
at 273, 290. But he then told the truth. Id. at 278. On cross-examination, Gibson
reiterated that he had not heard the shooter coming before he had started shooting. He
admitted that he had not been able to see the shooter during the gunfire, but he had seen
the shooter go into the house afterward. Further, Gibson testified that he and his two
friends had never been on that property before and that, if the cars in the garage had
been locked, they would have left the property without smoking there. According to
Gibson, he and his friends had not intended to damage or take anything that night. Id.
at 279-280, 286, 299.
{¶ 10} Sergeant Clinton Evans of the Dayton Police Department also testified for
the State. He was dispatched to the crime scene on the night in question in response to
the homeowner’s call about a shooting. Id. at 304-305. When Sergeant Evans arrived, -6-
there was a firearm on the porch of the residence and there were two individuals in the
garage. He testified that there were no signs of life from the individuals in the garage
and no evidence of any weapons near them. Id. at 310-311. As Sergeant Evans
approached the garage in the dark, he had his weapon drawn. Id. at 312-314.
{¶ 11} Detective Stephen Lloyd of the Dayton Police Department testified next for
the State. He was dispatched to the crime scene at 9:20 p.m. based on a report that a
male had shot two other males in his garage. Id. at 317-319. When Detective Lloyd
arrived, he noticed that it was very dark on the property near the detached garage. Two
of the officers on the scene pulled an individual from the garage to render medical aid.
Id. at 322-323. The officers had approached the garage with their guns drawn for their
own safety. Ultimately, there were no signs of life from the two individuals in the garage
and no sign of weapons. Id. at 324-325. Detective Lloyd noticed a male near the
property who was crying, pacing, and very agitated; this male was Gibson. Detective
Lloyd eventually spoke with Gibson about what had happened. Gibson initially stated
that he and his friends had been in the alley when Santana started shooting at them, but
he then changed his story and told Lloyd that he and his friends had gone into the garage
to smoke marijuana and then Santana had started shooting at them. Id. at 331-335, 340.
{¶ 12} Detective Alexander Dole also testified for the State. He was part of the
special victims’ unit of the Dayton Police Department. Detective Dole had been called
to the crime scene on the night of August 28, 2019. When he arrived, the garage door
was open, and officers were pulling a male out of the garage. Detective Dole observed
a male at the front of the car bleeding and likely deceased. Id. at 347-349. He did not -7-
observe any weapons around either of the two males. Id. at 351. Detective Dole
agreed on cross-examination that he would not have been able to observe any weapons
without the use of a flashlight. Id. at 352.
{¶ 13} Officer Jamie Luckoski of the Dayton Police Department testified that he
had been dispatched to the crime scene and had approached the garage with other
officers. Id. at 359-360. Officer Luckoski had pulled Harrison out of the garage and had
noted a faint pulse, but both Harrison and Henderson ultimately were pronounced dead
at the scene. Id. at 365-367. On cross-examination, Officer Luckoski noted that
flashlights had been used when approaching Henderson and Harrison to help determine
if there were any weapons or any movements. Id. at 368-369.
{¶ 14} Officer Stephen Cline of the Dayton Police Department also testified that he
had recovered a revolver at the scene, discovering one live round and five spent casings
in the gun. Id. at 376.
{¶ 15} Craig Stiver, a coroner investigator for the Montgomery County Coroner’s
Office, testified that he had examined the Lincoln Continental from the garage, noting that
it had been very dusty and had no battery. Also, there had been blood on the front
bumper and in the back seat. Stiver also found a marijuana cigarette and a spent bullet.
Id. at 386, 388-394. While Stiver stated that he did not find any weapons in the car, he
testified on cross-examination that he found a wrench, screwdriver, and a PVC pipe under
the driver’s seat. Id. at 396-397.
{¶ 16} Detective Melissa Schloss of the Dayton Police Department was also
dispatched to the crime scene on the night in question. She testified that there had been -8-
no lighting in the garage area and that it was approximately 42 feet from the back of the
house to the garage. Id. at 410-411. She spoke with Gibson on the night of the
shootings. Officer Schloss testified that Gibson’s testimony at trial was consistent with
what he told her on the night of the shootings. Id. at 412. She interviewed Santana
twice after the shootings, once on the night of the shooting and once about three months
after the shooting. On cross-examination, Detective Schloss testified that Santana had
told her that he feared the males coming into his house on the night of the shooting. Id.
at 435.
{¶ 17} Elizabeth Ramirez, Santana’s niece, testified that Santana was a working
man who was handy and had a routine of going to work, cutting his grass, and researching
information on his computer. Id. at 456-457. Elizabeth said Santana was like a father
to her. Id. at 457. She had never seen him with a gun and considered him to be a very
peaceful man. Id. at 458-459. According to Elizabeth, Santana sometimes volunteered
at a homeless shelter. Id. at 459.
{¶ 18} Leticia Ramirez, Santana’s sister, also testified for the defense. Id. at
465-475. She noted that Santana had worked all of his life. Id. at 468. She and
Santana visited each other often and were very close. Leticia described her brother as
a kind, loving, peaceful, quiet man. Id. at 469, 471. Santana had told her that he
purchased a gun. Id. at 470. Leticia testified that her brother had a routine of going to
work, coming home, learning about new things, and going for walks. Id. at 474.
{¶ 19} The State also played for the jury portions of the videotaped recordings from
Santana’s two interviews with the police. The jury had the opportunity to see and hear -9-
Santana explaining what had happened on the night in question and why he had shot
Henderson and Harrison.
{¶ 20} The State read to the jury the stipulations of the parties. The stipulations
provided, in part, that the revolver recovered from the front porch of 848 Conners Street
was Santana’s firearm, that an expert would testify that the five fired cartridges found at
the scene were identified as having been fired from Santana’s firearm, and that the DNA
profiles obtained from the rear driver’s-side area of the car matched Javier Harrison. Id.
at 399-400.
{¶ 21} Following the testimony, the jury returned guilty verdicts on the first eight
counts, which involved allegations of murder and felonious assault against Henderson
and Harrison. But the jury returned a not guilty verdict on the ninth count, a felonious
assault count related to Ja’shin Gibson. The trial court merged counts 1, 2, 5, and 6
relating to Devin Henderson and counts 3, 4, 7, and 8 relating to Javier Harrison. The
court then imposed concurrent sentences of 15 years to life on counts 1 and 3, and it
ordered that the three-year firearm specifications attached to counts 1 and 3 be served
consecutively to each other and to the 15 years to life, for a total sentence of 21 years to
life. Santana filed a timely appeal from his convictions.
II. The Trial Court Did Not Abuse Its Discretion By Excluding Evidence of Past
Trespasses
{¶ 22} Santana’s first assignment of error states:
THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM -10-
INTRODUCING RELEVANT EVIDENCE IN HIS DEFENSE, THEREBY
VIOLATING HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR
TRIAL, THE RIGHT TO A FULL AND FAIR DEFENSE, AND
FUNDAMENTAL FAIRNESS.
{¶ 23} Santana contends that he purchased a gun for protection of himself and his
property based on prior incidents involving damage to his property and house. He points
out that he had previously complained to police about damage to the main door of his
residence and the window to his truck and about individuals throwing rocks at his
property. Appellant’s Brief, p. 12. According to Santana, “Ohio has a subjective test to
determine whether or not a defendant acted in self-defense,” and “the defendant’s state
of mind is crucial.” Id. at p. 13. Therefore, Santana’s “situation should have been
evaluated in accordance with his actual interpretation of the danger these individuals
posed to him based on his unique circumstances,” which included prior trespasses. Id.
{¶ 24} The State disagrees and notes that there was no evidence to tie the victims
in this particular case to any prior incident involving Santana or his property. Appellee’s
Brief, p. 8. Further, the State notes that when kids threw rocks at Santana’s house and
vehicle in the past, Santana yelled at them and they ran away. According to the State,
there was no evidence presented that any of the prior events involved threats to Santana
that would have justified the force Santana exerted on the night of August 28, 2019.
{¶ 25} The admission or exclusion of relevant evidence is within the sound
discretion of the trial court, and we review that decision for an abuse of discretion. State
v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39. The term “abuse of -11-
discretion” indicates an attitude that is arbitrary, unconscionable, or unreasonable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). It has been
previously noted that most abuses of discretion “will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process
that would support that decision.” Id.
{¶ 26} In its ruling excluding the evidence of prior trespasses onto Santana’s
property, the trial court noted that the prior instances of trespassing onto or throwing rocks
at Santana’s property had been too remote in time to the night of the incident in question.
Further, the trial court stated that there was no evidence directly connecting any of the
prior incidents to the three males involved in the incident on August 28, 2019. Indeed,
Santana’s trial counsel conceded that there was no evidence of such a connection. Trial
Tr., p. 424-425.
{¶ 27} Notably, the trial court allowed the admission of evidence from Santana that
he had seen footprints by the door to his house. Also, Gibson testified that it was
common to hear gunshots in the neighborhood where Santana lived. Id. at 285.
Santana’s counsel specifically mentioned both of these facts in his closing argument. Id.
at 502, 504, 513. Further, Santana’s counsel noted in his closing argument that Gibson
had testified that trespassing was common in that neighborhood. In addition, Santana’s
counsel reminded the jury that Santana had stated in his police interview that he often
heard gunshots in his neighborhood. Id. at 502, 505. In short, Santana was allowed to -12-
introduce other evidence to the jury to paint a picture that Santana had had a reason to
be fearful when he saw the trespassers.
{¶ 28} Based on our review of the evidence that was permitted and the evidence
that was excluded, we do not believe the trial court abused its discretion in refusing to
allow into evidence Santana’s proffered statements regarding past trespasses on his
property that were remote in time to the night of August 28, 2019, and had no connection
to Henderson, Harrison, and Gibson.
{¶ 29} Further, we believe that the proffered evidence regarding prior incidents of
trespass onto Santana’s property, even if admitted into evidence, could not have
overcome the inherent deficiencies in Santana’s claim of self-defense. To establish self-
defense, the evidence must show (1) that the defendant was not at fault in creating the
situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was
in imminent danger of death or great bodily harm and that his 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. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d
1240 (2002), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph
two of the syllabus. If the evidence shows beyond a reasonable doubt that at least one
of these three elements is missing, a defendant cannot establish self-defense.
{¶ 30} “The ‘not at fault’ requirement also means that the defendant must not have
been the first aggressor in the incident.” State v. Turner, 171 Ohio App.3d 82, 2007-
Ohio-1346, 869 N.E.2d 708, ¶ 23 (2d Dist.), citing Robbins. “An individual who is the
first aggressor in an incident is ‘at fault’ for purposes of self-defense.” State v. Williams, -13-
9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 9, citing Turner at ¶ 23. Further, “there
is an objective and a subjective aspect involved in determining whether a defendant had
a bona fide belief that he or she was in imminent danger of death or great bodily harm:
an individual’s belief that he or she was in imminent danger must be objectively
reasonable, and the individual must have an honest subjective belief to that effect.”
(Citations omitted.) Id. at ¶ 11.
{¶ 31} In State v. Perez, 7th Dist. Mahoning No. 09 MA 30, 2010-Ohio-3168, the
court analyzed the interplay between the first two elements of a self-defense claim and
evidence of past trespasses. In Perez, the defendant was responsible for checking on
his sister’s house while she was out of town. At that time, defendant lived at his mother’s
house, which was located near his sister’s house. The defendant knew that a cousin
was staying at his sister’s house, along with a 4-year-old child. The defendant saw an
individual park a car outside his sister’s house, go into the house, and then come back
out of the house and sit in the parked car. The defendant walked over to the car with a
baseball bat and smashed the driver’s side window of the car. Id. at ¶ 1. According to
the defendant, he was acting either in defense of another or defense of property. Id. at
¶ 3. In particular, the defendant argued that he had had a legitimate reason to be afraid
of the individual in the parked car because his mother’s house had been previously
robbed. Id. at ¶ 17.
{¶ 32} The Seventh District rejected the defendant’s arguments. According to the
court:
In determining whether there are reasonable grounds for believing -14-
there was an imminent threat of bodily harm, the court can consider whether
the defendant received prior threats or encountered prior trespassers.
State v. Fields (1992), 84 Ohio App.3d 423, 428, 616 N.E.2d 1185.
***
Appellant believes that he had a legitimate reason to be afraid of J.R.
because his mother's house had been previously robbed. It is true that the
defendant's state of mind is an important factor in establishing self-defense.
State v. Moore, 3d Dist. Nos. 1-06-89, 1-06-96, 2007-Ohio-3600, ¶ 59.
There must be both reasonable and objective grounds to believe that harm
is imminent, and there must be an honest and subjective belief that harm is
imminent. State v. Thomas (1997), 77 Ohio St.3d 323, 330, 673 N.E.2d
1339. It is also true that, in determining whether there are reasonable
grounds for believing there was an imminent threat of great bodily harm, the
court may consider whether the defendant received prior threats or
encountered prior trespassers. State v. Fields (1992), 84 Ohio App.3d
423, 428, 616 N.E.2d 1185. Nevertheless, the defense of self-defense
does not permit the alleged victim to become the aggressor once the affray
has ended, or before an affray has even taken place. “The ‘not at fault’
requirement * * * means that the defendant must not have been the first
aggressor in the incident.” * * *
Appellant was obviously at fault in creating the affray because J.R.
was sitting in his car preparing to leave when Appellant attacked him. There -15-
is no evidence that J.R., a 16-year old boy, presented any type of threat to
anyone when he was assaulted.
Perez at ¶ 15-18.
{¶ 33} Like the defendant in Perez, Santana was the first aggressor and at fault in
creating the affray. Santana left his home searching for the trespassers. When he
entered the detached garage that was 42 feet from his house, he was not confronted or
cornered by the trespassers. Rather, he saw a light flicker in the inside of a car in the
detached garage. Instead of returning to his home from the detached garage, he walked
toward the car, opened the back door, and shot Harrison. He then proceeded to shoot
Henderson. Under these facts, no reasonable jury could have found that Santana shot
Harrison and Henderson in self-defense. Nothing in the evidence proffered to the trial
court relating to past occurrences of trespass or damage to his property could have
altered the fact that Santana was at fault for the affray as the aggressor, which precluded
a finding of self-defense as a matter of law.
{¶ 34} Santana’s first assignment of error is overruled.
III. The Trial Court Did Not Abuse Its Discretion By Admitting Into Evidence The
Two Police Interviews
{¶ 35} Santana’s second assignment of error states:
APPELLANT WAS DEPRIVED OF THE RIGHT TO A FAIR TRIAL
AND FUNDAMENTAL FAIRNESS THROUGH THE ADMISSION OF TWO
TAPED INTERVIEWS. -16-
{¶ 36} Santana contends that the trial court improperly admitted into evidence
taped recordings of two interviews of Santana conducted by police. According to
Santana:
[L]arge portions of these recordings were entirely incomprehensible
due to the quality of the recordings, mumbling, Appellant’s poor English.
Although an interpreter was present for the second interview, he appeared
to be allowing Appellant to struggle through the interview without
interpreting portions of it. Further, the interpreter was mumbling and was
turned away from the camera. The bulk of the recording was unintelligible.
Appellant’s Brief, p. 15. Santana argues that the “[e]xclusion of these recordings was
mandatory under the Ohio Rules of Evidence, as their probative value was substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.” Id. at 17.
{¶ 37} The State responds that, although Santana speaks in broken English, “he
could both speak understandable English and he understood English and the questions
that were being asked.” Appellee’s Brief, p. 15. According to the State, “Santana
described what happened, and although his English is not perfect, he was
understandable.” Id. Further, the State points out that the trial court reviewed the two
interviews when ruling upon Santana’s motion to suppress, and it noted that one could
determine what Santana was saying in English upon careful listening. Id. at 16. Also,
at oral argument, counsel for the State pointed out that any argument regarding difficulty
in understanding or hearing portions of the two taped interviews would go to the weight -17-
to be given the evidence, rather than its admissibility.
{¶ 38} As noted above, the admission or exclusion of relevant evidence is within
the sound discretion of the trial court, and we review that decision for an abuse of
discretion. State v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39.
Normally, potential prejudice is an insufficient basis on which to exclude relevant
evidence. Rather, a trial court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice. Evid.R. 403. “Exclusion on
the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair
prejudice simply meant prejudice, anything adverse to the litigant’s case would be
excludable under Rule 403. Emphasis must be placed on the word ‘unfair.’ Unfair
prejudice is that quality of evidence which might result in an improper basis for a jury
decision.” (Citation omitted.) Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172,
743 N.E.2d 890 (2001). For example, “if the evidence arouses the jury’s emotional
sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence
may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence
appeals to the jury’s emotions rather than intellect.” Id.
{¶ 39} We have reviewed the recordings of Santana’s two interviews with police.
Although there are instances in which Santana’s statements are more difficult to
understand than others, we do not agree with Santana’s assertion that the video
recordings are largely unintelligible. Rather, a close listener can discern what Santana
was saying. We note that Santana’s trial counsel quoted rather extensively from
Santana’s recorded interviews during his closing argument at trial. Trial Tr., p. 503-505. -18-
Further, Santana has failed to explain on appeal what particular portions of the recordings
could cause unfair prejudice by the jury’s viewing them. On the record before us, we
cannot conclude that the trial court abused its discretion by allowing the admission of the
the recordings of Santana’s interviews with the police.
{¶ 40} Santana also contends in this assignment of error that one of the State’s
comments in its closing argument may have improperly implied that Santana’s decision
not to testify should be held against him. Appellant’s Brief, p. 16-17. He cites page 490
of the trial transcript in support of his contention. In that particular portion of its closing
argument, the State explained:
Now, the evidence that you heard from Ja’shin and this Defendant is
that these three individuals were seated in his car in the pitch darkness, and
that the Defendant saw a light come on in the car. And you heard Ja’shin
explain what that was. They lit a lighter. They were going to light up a
blunt and get high.
And they were sitting in the car. And the next Ja’shin knows is the
door opens, and the Defendant starts shooting. That’s Ja’shin. So we
have two people that were there that can come in here and actually take
that stand and tell you what happened, okay? One is Ja’shin, and that’s
what he told you. The other one is this Defendant.
And what this Defendant told you was he heard voices. He got up
out of bed, and he went and got his gun. That was the first thing he did.
And he didn’t lock the doors. And he didn’t call 911. He went out to the -19-
front and he looked around. And he didn’t see anybody. And he tells you
that he’s scared, okay?
(Emphasis added.) Trial Tr., p. 489-490. The State then went on to discuss other
statements Santana made in his interviews with the police.
{¶ 41} While we acknowledge that the State toed the line when it brought up the
fact that Santana could have taken the stand at trial, we do not agree with Santana that
the State crossed the line into improper interference with Santana’s right to a fair trial.
Rather, the State immediately began to explain what Santana’s story to police was, taken
directly from interviews with the police that previously had been played for the jury. In
other words, the State noted that two people were able to explain what had happened
that night, Ja’shin and Santana. Then the State recapped what each said about the night
in question. Therefore, we conclude that the State’s solitary reference to Santana’s
opportunity to “take that stand,” when considered in context, did not violate Santana’s
right to a fair trial.
{¶ 42} Santana’s second assignment of error is overruled.
IV. Santana Was Not Denied His Right to Effective Assistance of Counsel
{¶ 43} Santana’s third assignment of error states:
APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 44} Santana contends that his trial counsel “was ineffective for failing to object
to the playing of the two largely unintelligible and inaudible recorded interviews for the -20-
jury.” Appellant’s Brief, p. 18.
{¶ 45} To prevail on his ineffective assistance of counsel claim, Santana must
prove that his attorney was ineffective under the standard test from Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To do so, he
must prove that his counsel’s performance was deficient and that he was prejudiced by
that performance. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560,
¶ 10. “Thus, the defendant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness and that there exists a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different.” Id. The
failure to meet either prong is fatal to an ineffective assistance of counsel claim.
Strickland at 697.
{¶ 46} As we explained in our resolution of Santana’s second assignment of error,
the trial court did not abuse its discretion by admitting into evidence the taped recordings
of Santana’s two interviews with the police. As such, we cannot conclude that the failure
of Santana’s trial counsel to object to the admission of this evidence constituted an error,
let alone that there is a reasonable probability that, but for that alleged error, the result of
the trial proceedings would have been different.
{¶ 47} The third assignment of error is overruled.
V. Santana’s Convictions Were Not Against The Manifest Weight of The Evidence
{¶ 48} Santana’s fourth assignment of error states:
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST -21-
WEIGHT OF THE EVIDENCE.
{¶ 49} Santana contends that his convictions were against the manifest weight of
the evidence and “that the evidence simply does not support the felonious assault
charges pertaining to Ja’shin Gibson, as Ja’shin could not see well enough in the garage
to know what was happening, and there was insufficient evidence to support the
contention that Appellant had attempted to shoot at him during this incident.” Appellant’s
Brief, p. 23.
{¶ 50} Before addressing whether Santana’s convictions were against the
manifest weight of the evidence, we must point out that Santana was found not guilty of
the one count of felonious assault relating to Ja’shin Gibson. Therefore, in this
assignment of error, we will only address the counts on which Santana was found guilty.
{¶ 51} “The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). However, “[w]here an appellate court
determines that a conviction is not against the manifest weight of the evidence, the
conviction is necessarily based on legally sufficient evidence.” (Citations omitted.)
State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426, ¶ 8.
{¶ 52} “[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 12. When evaluating whether a conviction is against the manifest weight of the
evidence, the appellate court must review the entire record, weigh the evidence and all -22-
reasonable inferences, consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest
miscarriage of justice” such that the conviction must be reversed and a new trial ordered.
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Because the trier of fact sees and hears the witnesses at trial, we must defer
to the fact finder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). A judgment of conviction should be reversed as being
against the manifest weight of the evidence only in exceptional circumstances. Martin
at 175.
{¶ 53} We recognize that, in other assignments of error, Santana challenges the
trial court’s admission of the video from Santana’s two police interviews. However, when
reviewing claims based on the sufficiency or manifest weight of the evidence, we are
required to consider all of the evidence admitted at trial, regardless of whether it was
admitted erroneously. See State v. Fleming, 2d Dist. Clark No. 2021-CA-40, 2022-Ohio-
1876, ¶ 27, citing, e.g., State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d
284. Accordingly, and because we have found that the videos were properly admitted,
we must consider the two interviews as part of our analysis.
{¶ 54} Santana was found guilty of several counts of murder and felonious assault.
Pursuant to R.C. 2903.02(B), a person is guilty of murder if he causes “the death of
another as a proximate result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second degree and that is not a violation -23-
of section 2903.03 or 2903.04 of the Revised Code.” Pursuant to R.C. 2903.11(A)(1), a
person is guilty of felonious assault if he knowingly causes serious physical harm to
another. Further, pursuant to R.C. 2903.11(A)(2), a person is guilty of felonious assault
if he knowingly causes serious physical harm to another by means of a deadly weapon
or dangerous ordnance.
{¶ 55} At trial, it was uncontested that Santana left his home and went searching
for trespassers that he had seen when looking out the window of his home. He
eventually found them in his detached garage, which was located about 42 feet from his
house. When he entered the garage, he was not confronted or cornered by the
trespassers. Rather, they were sitting in a car with the doors closed. Rather than
returning to his home, Santana continued to the car, opened the back door, and started
shooting. Harrison and Henderson died as a direct result of the gunshot wounds from
Santana’s gun. The overwhelming evidence of record, including the statements made
by Santana during his police interviews, the testimony of Ja’shin Gibson, who was the
only other surviving witness, the testimony of the police officers who were called to the
crime scene and the officer who interviewed Gibson and Santana, and the stipulations at
trial, supported the jury’s guilty verdicts on the felonious assault and murder counts
Further, as we explained above, Santana’s claim of self-defense failed as a matter of law
because he was the first aggressor.
{¶ 56} Upon the record before us, we cannot conclude that Santana’s convictions
were against the manifest weight of the evidence. Therefore, the fourth assignment of
error is overruled. -24-
VI. Conclusion
{¶ 57} Having overruled all of Santana’s assignments of error, the judgment of the
trial court is affirmed.
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Andrew T. French Charles W. Slicer, III Hon. Timothy N. O’Connell