[Cite as State v. Travis, 2022-Ohio-1233.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110514 v. :
SIERRA TRAVIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 14, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-653478-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jennifer King, Assistant Prosecuting Attorney, for appellee.
Brian R. McGraw, for appellant.
JAMES A. BROGAN, J.:
Defendant-appellant Sierra Travis (“Travis”) appeals from her
convictions for murder and felonious assault. For the reasons that follow, we affirm. Factual and Procedural History
This case stems from an incident that occurred on September 25,
2020. Travis, who was 23 years old at the time of this incident, met the victim,
Hiriam Frazier (“Frazier”), who was 22 years old at the time of the incident, through
an online dating app, and the two went on their first date in August 2019. According
to Travis, Frazier was working at a furniture store when they met. Around January
2020, Frazier purchased a gun that he used at a new job in security. At the end of
August 2020, Travis purchased her own gun. Around that time, Travis moved out
of her parents’ house. Frazier, who had been staying with his friend Diamond Webb
(“Webb”) and her family, also moved out. Travis and Frazier began staying together.
On the evening of September 25, 2020, Travis picked up Frazier from
his job as a security officer at a bar on the east side of Cleveland, Ohio. Travis was
driving a Jeep Compass, a rental car that the couple shared. They drove to Webb’s
home at Shaker Park Gardens apartments in Warrensville Heights, Ohio. Webb
lived at the apartment with her husband and daughter, and Frazier had stayed with
them until several weeks prior. That night, Frazier and Travis went to Webb’s home
because Webb had contacted Frazier to let him know that a package for him had
been delivered.
Travis and Frazier arrived at Webb’s apartment around 8:30 p.m. and
security footage from the apartment complex shows the two of them approaching
the apartment, greeting people who were sitting outside of the apartment door, and
entering the apartment through a patio door. Several minutes later, the video shows Travis leaving the apartment through the patio door, followed by Frazier leaving the
apartment through a different door. Travis and Webb both testified that the couple
was inside the apartment for no more than a few minutes. Webb testified that Travis
and Frazier were both acting normal, and were being “playful.”
Security footage from the parking lot on the other side of the
apartment building shows the lights on the Jeep turning on as Travis unlocked the
car with her key fob. Frazier and Travis both approached the Jeep. Travis went to
the rear passenger door, opened the door, and retrieved her gun from the backseat
of the car. Frazier went to the driver’s side of the car. While they were on opposite
sides of the car, Travis fired a “warning shot” into the air, away from the parking lot;
the security footage shows Travis raising her arm followed by a muzzle flash. Travis
then walked around the front of the car to where Frazier is standing on the driver
side. Frazier can be seen raising his arms up, and a man’s voice is audible on the
video saying “go head on.” Frazier stepped toward Travis with his arms raised, and
then took a step away from her with his arms still raised. The footage then shows
Travis raising the gun, aiming at Frazier, and firing one shot in his chest.
Frazier fell to the ground screaming, and Travis can be seen bending
down before opening the rear driver side door of the car. Frazier then began to
scream for Webb and walk back toward the apartment building. Shortly thereafter,
the footage shows Travis walking back toward the car and saying into her phone “my
boyfriend’s been shot.” Travis was followed into the parking lot by Webb. Police and EMS responded to the scene. The responding officers
asked Frazier and Travis who shot Frazier; Frazier was in shock and did not respond
coherently, and Travis responded that she did not know. In the process of securing
the scene, one of the responding officers observed two guns in the Jeep. Several
minutes later, when speaking with another responding officer, Travis admitted that
she had shot Frazier. Officers ultimately recovered two guns — Travis’s and Frazier’s
— from the Jeep, as well as one spent shell casing, four magazines, and Travis’s gun
case.
EMS put Frazier into an ambulance and transported him to
MetroHealth; Frazier died en route to the hospital. According to his autopsy, the
bullet lacerated a blood vessel and passed through the upper portion of Frazier’s left
lung, causing extensive bleeding, difficulty breathing, and a fractured rib. Frazier’s
cause of death was a gunshot wound to the chest, and his autopsy listed the manner
of death as homicide.
As a result of this incident, on October 21, 2020, a Cuyahoga County
Grand Jury indicted Travis on one count of murder in violation of R.C. 2903.02(A);
one count of murder in violation of R.C. 2903.02(B); and one count of felonious
assault in violation of R.C. 2903.11(A)(1). Each count carried a one-year firearm
specification, a three-year firearm specification, and a forfeiture of a weapon
specification. Travis pleaded not guilty to these charges. On May 4, 2021, Travis
executed a waiver of her right to trial by jury and the case proceeded to a bench trial. At trial the state called Webb, responding officers, a responding
paramedic, a trace evidence expert, a firearms expert, the forensic pathologist who
performed Frazier’s autopsy, and Frazier’s coworker. The state introduced various
exhibits at trial, including the surveillance footage from the apartment and body cam
footage from the responding officers. At the conclusion of the state’s case, defense
counsel made a Crim.R. 29 motion, which the trial court denied.
Travis called four witnesses and testified on her own behalf. Clarence
Hall testified that he was Travis’s pastor and believed her to be a well-mannered and
responsible person. Mary Logan also knew Travis through her church community
and testified that she found Travis to be energetic and respectful. Certito Bethel was
the mother of Travis’s ex-boyfriend, and she testified that she was familiar with
Travis’s relationship with Frazier. Specifically, she testified that she thought Frazier
was angry and verbally abusive. Travis’s father testified that Travis was a kind and
benevolent person.
In her defense, Travis testified that she loved Frazier and he was her
best friend. She went on to testify that Frazier had anger issues and sometimes got
physical with her. With respect to the date of the incident in this case, Travis
testified that she and Frazier were in Webb’s apartment for no longer than three
minutes. She explained that when they got to the apartment, she was happy, but as
they were leaving the apartment, she and Frazier got into a physical altercation.
Travis testified that Frazier was wearing his gun in a holster on his right hip. Travis
testified that she touched Frazier on the butt, which upset Frazier and prompted him to punch Travis in the leg. Travis testified that she then smacked Frazier “in
retaliation” and told him that she was leaving. Travis testified that when she was
exiting the apartment building, she looked behind her and saw that Frazier was
chasing after her, and her instinct was to grab her gun from the rear passenger side
of the Jeep. Travis explained that she fired a warning shot towards a wooded area
and then went around to the driver side of the car where Frazier was. According to
Travis, her plan was to get into the car and drive away without Frazier. Travis
testified that as she rounded the front of the car, Frazier pulled his gun on her. She
asked him to lower his gun and he did not. Travis then testified that she “pulled
[her] gun up to him, and he stepped forward, and [their] guns ended up hitting each
other,” causing her gun to discharge. Travis testified that she did not intend for her
gun to go off.
Travis testified that she initially denied knowing who shot Frazier,
and that when she admitted she shot Frazier, she initially told police that she only
fired her gun once. Ultimately, Travis testified that she lied to police immediately
following the shooting.
At the close of the defense case, defense counsel renewed its Crim.R.
29 motion. The court again denied this motion. Defense counsel requested an
instruction on self-defense, based on Travis’s testimony that Frazier pointed his gun
at her and stepped forward. Defense counsel also requested an instruction on
accident, based on statements Travis made immediately following the shooting.
Finally, defense counsel asked for an instruction on reckless homicide. In response to these requests, the state argued that Travis could not argue theories that were in
complete opposition. The court took a brief recess, after which the court stated:
We did take a short break with regard to self-defense and the law that was placed before me. I am going to hold at this time that Stand Your Ground does not apply and if in the interim I do find any case law to the contrary I will take that into consideration, but at this time I’m going to find that it does not apply. We will start with closing.
Both parties proceeded with their closing arguments.
On May 7, 2021, the court announced its verdict, making the
following statement with respect to self-defense:
I will start with I don’t believe that self-defense applies in this case, but even if it did, the state of Ohio has met their burden and proved beyond a reasonable doubt that the Defendant did not act in self-defense.
The [c]ourt has also decided to give the [d]efendant the benefit of the new law wherein the duty to retreat was abolished, and even with the benefit of the new law, and in turn not considering the possibility of retreat and relying on the evidence presented, the new law does not change the [c]ourt’s findings.
With respect to accident, the court stated:
Furthermore, the [d]efendant asked the [c]ourt to consider accident as part of the instruction. The [c]ourt does not find that the act was unintentional and not reasonably anticipated or foreseen as a natural or probable result of a lawful act.
The court proceeded to find Travis guilty on all counts and specifications.
On May 12, 2021, the court held a sentencing hearing. The court
merged all three counts and sentenced Travis to 15 years to life on the murder,
consecutive to three years for the firearm specification, for a total sentence of 18
years to life.
Travis appeals, presenting three assignments of error for our review: I. The trial court erred in not considering accident and the relevant jury instructions.
II. The court erred in not considering the lesser offense of reckless homicide (R.C. 2903.041) as manifest weight/sufficiency considerations dictated a verdict on reckless homicide.
III. The court erred in not acquitting Travis of murder on the grounds that she acted in self-defense.
Legal Analysis
I. Accident
In her first assignment of error, Travis argues that the trial court erred
in not considering accident and the relevant jury instructions. Travis also argues
that the court erred in not explaining its reasoning for rejecting her accident
argument.
In a bench trial, the court is presumed to know and apply the law
correctly unless the record affirmatively demonstrates otherwise. State v. Kilbane,
8th Dist. Cuyahoga No. 106753, 2019-Ohio-863, ¶ 15, citing State v. Shropshire, 8th
Dist. Cuyahoga No. 103808, 2016-Ohio-7224, ¶ 37. The instruction for accident, set
forth in the general criminal trial instructions of the Ohio Jury Instructions states:
1. The defendant denies any purpose to (describe). He denies that he committed an unlawful act and says that the result was accidental.
2. DEFINED. An accidental result is one that occurs unintentionally and without any design or purpose to bring it about. An accident is a mere physical happening or event, out of the usual order of things and not reasonably (anticipated) (foreseen) as a natural or probable result of a lawful act.
3. FORESEEABILITY. OJI-CR 417.25. 4. CONCLUSION ON ACCIDENT. If after considering all the evidence, including that on the subject of accident, you are not convinced beyond a reasonable doubt that the defendant had a purpose to (describe), you must return a verdict of not guilty.
Ohio Jury Instructions, CR Section 421.01.
Here, Travis’s argument that the trial court failed to consider accident
and the corresponding jury instructions is without merit. First, Travis presents no
law in support of her assertion that the trial court was required to consider accident
jury instructions. Additionally, Travis provides no law in support of her argument
that the trial court was somehow required to explain its reasoning. Crim.R. 23(C)
only requires the court in a bench trial to make a general finding regarding its
verdict. Cleveland Hts. v. Watson, 8th Dist. Cuyahoga No. 85344, 2005-Ohio-3595,
¶ 15, citing State v. Walker, 26 Ohio App.3d 29, 31, 498 N.E.2d 191 (8th Dist.1985).
Moreover, the record reflects that the trial court did in fact consider Travis’s defense
theory that the shooting of Frazier was an accident. The court referred to the
language of the accident jury instruction when it stated that it did “not find that the
act was unintentional and not reasonably anticipated or foreseen as a natural or
probable result of a lawful act.” Therefore, the trial court did not err by not
considering accident and the corresponding jury instructions. Travis’s first
assignment of error is overruled.
II. Reckless Homicide
In her second assignment of error, Travis argues that the trial court
erred in not considering the lesser included offense of reckless homicide. “In a bench trial, it is presumed that ‘the court considered inferior and lesser-included
offenses.’” State v. Churn, 8th Dist. Cuyahoga No. 105782, 2018-Ohio-1089, ¶ 13,
quoting State v. Masci, 8th Dist. Cuyahoga No. 96851, 2012-Ohio-359, ¶ 25; State
v. Perez, 8th Dist. Cuyahoga No. 91227, 2009-Ohio-959; State v. Waters, 8th Dist.
Cuyahoga No. 87431, 2006-Ohio-4895, ¶ 11. In this case, Travis requested an
instruction on reckless homicide, and the state did not object to this. Although the
trial court did not make an explicit statement on the record with respect to the lesser
included offense of reckless homicide, we reiterate that it was not required to do so
pursuant to Crim.R. 23(C).
“[A]n instruction on a lesser included offense is warranted if the jury
could reasonably conclude that the evidence supported the lesser charge and did not
support the greater charge.” State v. Berry, 8th Dist. Cuyahoga No. 83756, 2004-
Ohio-5485, ¶ 48. The trial court here found that the evidence supported the charge
of murder. This finding, in light of the presumption that the trial court considered
lesser included offenses, supports a conclusion that the trial court did not err in
failing to consider the lesser included offense of reckless homicide.
To the extent that Travis refers to the manifest weight of the evidence
and sufficiency of the evidence in her second assignment of error, we note that her
brief does not provide any arguments related to these concepts. App.R. 16(A)(7)
provides that the appellant’s brief shall include “[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.” In the
absence of such arguments in accordance with App.R. 16(A)(7), we decline to
consider any purported arguments that Travis’s convictions were against the
manifest weight of the evidence or not supported by sufficient evidence. Travis’s
second assignment of error is overruled.
III. Self-Defense
In Travis’s third assignment of error, she argues that the trial court
erred in not acquitting her of murder on the grounds that she acted in self-defense.
Specifically, Travis argues that she testified that she fired her weapon when she was
“confronted” and “advanced upon.”
“Self-defense claims are generally an issue of credibility.” State v.
Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037, ¶ 13. “If evidence
presented at trial tends to support the conclusion ‘that the defendant used force
against another in self-defense or in defense of another, the state must prove beyond
a reasonable doubt that the defendant did not use the force in self-defense or defense
of another.’” Id., quoting State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-
Ohio-4976, ¶ 49, citing R.C. 2901.05(B)(1).
As an initial matter, we recognize the contradiction inherent in
Travis’s arguments at trial and in this appeal. “A defendant claiming self-defense
‘concedes that he had the purpose to commit the act, but asserts that he was justified
in his actions.’” State v. Davis, 8th Dist. Cuyahoga No. 109890, 2021-Ohio-2311, ¶
38, quoting State v. Talley, 8th Dist. Cuyahoga No. 87413, 2006-Ohio-5322, ¶ 45. Because self-defense presumes an intentional, willful use of force, “‘when an
individual testifies that they did not intend to cause harm, such testimony prevents
the individual from claiming self-defense.’” Id., quoting State v. Hubbard, 10th
Dist. Franklin No. 11AP-945, 2013-Ohio-2735, ¶ 54. Here, Travis’s theory of the case
has shifted multiple times, from her statements immediately following the shooting
through the instant appeal. She has characterized the shooting as accidental at
various points, including in her first assignment of error. While these
inconsistencies do not preclude Travis from asserting alternative arguments in her
defense or on appeal, we are mindful that the trier of fact — in this case, the trial
court — may have considered these inconsistencies in assessing Travis’s testimony
and her overall credibility.
To establish that the affirmative defense of self-defense does not
apply, the state must prove at least one of the following elements beyond a
reasonable doubt: (1) that the defendant was at fault in creating the situation giving
rise to the affray in which the force was used or (2) that the defendant did not have
reasonable grounds to believe or an honest belief that he or she was in imminent
danger of bodily harm or (3) the defendant used more force than was reasonably
necessary to defend against the imminent danger of bodily harm. State v. Jacinto,
2020-Ohio-3722, 155 N.E.3d 1056, ¶ 46 (8th Dist.).
While not explicitly articulated in her brief, Travis is effectively
arguing that her convictions are against the manifest weight of the evidence. In our
manifest weight review of a bench trial verdict, we recognize that the trial court serves as the factfinder, and not the jury. State v. Crenshaw, 8th Dist. Cuyahoga
No. 108830, 2020-Ohio-4922, ¶ 23. “When considering whether a judgment is
against the manifest weight of the evidence in a bench trial, an appellate court will
not reverse a conviction where the trial court could reasonably conclude from
substantial evidence that the state has proved the offense beyond a reasonable
doubt.” State v. Worship, 12th Dist. Warren No. CA2020-09-055, 2022-Ohio-52, ¶
34, quoting State v. Tranovich, 12th Dist. Butler No. CA2008-09-242, 2009-Ohio-
2338, ¶ 7. To warrant reversal from a bench trial under a manifest weight of the
evidence claim, this court must determine that “the trial court clearly lost its way
and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered.” Crenshaw at ¶ 23. “A conviction should be
reversed as against the manifest weight of the evidence only in the most ‘exceptional
case in which evidence weighs heavily against the conviction.’” Id., quoting State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).
Here, the evidence presented at trial showed that Travis was at fault
in creating the situation giving rise to the shooting. The surveillance video and
Travis’s own testimony show that she retrieved her gun from the car before Frazier
reached the car. The surveillance video and Travis’s testimony also show that Travis
fired a “warning shot.” While Travis testified that she was attempting to get away
from Frazier following a physical altercation that she claimed occurred as they were
leaving the apartment, this testimony was undermined by the balance of the
evidence. Webb, who had seen Frazier and Travis seconds before this altercation allegedly occurred, testified that the couple was not arguing or upset when they were
in the apartment. Furthermore, the surveillance footage undermines Travis’s claims
that Frazier had pulled his gun on her at any point prior to her shooting him in the
chest. When he initially walks out of the apartment, the footage shows Frazier
carrying the package that he retrieved from Webb’s apartment. Moments later, he
is seen with his hands raised near his head. While Frazier does take a step towards
Travis at one point shortly before she shoots him, he does so with his arms still raised
in the air and subsequently steps away from Travis.
The trial court heard all of this evidence and determined that Travis
was not acting in self-defense. Nothing in our review indicates that the trial court
clearly lost its way and created a manifest miscarriage of justice in finding that Travis
was not acting in self-defense. For these reasons, Travis’s third assignment of error
is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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
conviction having been affirmed, any bail pending 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.
JAMES A. BROGAN, JUDGE*
SEAN C. GALLAGHER, A.J., and LISA B. FORBES, J., CONCUR
(*Sitting by assignment: James A. Brogan, J., retired, of the Second District Court of Appeals.)