[Cite as State v. Yarbrough, 2012-Ohio-2153.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110355 TRIAL NO. B-0905324 Plaintiff-Appellee, : O P I N I O N. vs. :
CHAUNCEY YARBROUGH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 16, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William F. Oswall, Jr., for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Judge.
{¶1} Following a bench trial, defendant-appellant Chauncey Yarbrough
was found guilty of two counts of murder with accompanying weapon specifications,
two counts of carrying a concealed weapon, and having a weapon while under
disability. The trial court sentenced Yarbrough to an aggregate term of 19 years’ to
life imprisonment for these offenses.
{¶2} Yarbrough’s convictions stemmed from a shooting that occurred
outside Annie’s nightclub in the early morning hours of July 27, 2009. Marcus
Mitchell and Daunte Phillips were shot and killed in the parking lot of Annie’s as they
left the club. Immediately prior to the shooting, Yarbrough and Mitchell had been
engaged in an argument. During the altercation, Yarbrough fired his weapon several
times at Mitchell. Two shots struck Mitchell, and he died from the resulting injuries.
A stray bullet struck and killed Daunte Phillips, a bystander who had not been
involved in the altercation between Yarbrough and Mitchell.
{¶3} Yarbrough now appeals from the trial court’s judgment, raising six
assignments of error for our review. Because we find no merit to Yarbrough’s
arguments, we affirm the judgment of the trial court.
Manifest Weight
{¶4} In his first assignment of error, Yarbrough argues that his conviction
for the murder of Marcus Mitchell was against the manifest weight of the evidence.
When reviewing the manifest weight of the evidence, an appellate court must weigh
all evidence and reasonable inferences and consider the credibility of the witnesses
to determine whether the trier of fact lost its way and created a manifest miscarriage
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of justice such that the conviction must be reversed. State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶5} Yarbrough was convicted of murder under R.C. 2903.02(A), which
provides that “[n]o person shall purposely cause the death of another.” Yarbrough
admits to shooting Mitchell, but asserts that the evidence demonstrated that he had
acted in self-defense. A defendant is entitled to rely on the affirmative defense of
self-defense when he establishes “(1) the defendant was not at fault in creating the
violent situation, (2) the defendant had a bona fide belief that [he] was in imminent
danger of death or great bodily harm and that [his] only means of escape was the use
of force, and (3) that the defendant did not violate any duty to retreat or avoid the
danger.” State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997). A
defendant bears the burden of proving each element of self-defense by a
preponderance of the evidence. State v. Miller, 1st Dist. No. C-070691, 2008-Ohio-
5899, ¶ 15.
{¶6} The state presented testimony from Willie Smith, a friend of Mitchell’s
who had witnessed his murder. Prior to the shooting, Mitchell, who went by the
nickname of “Murder,” had exited from Annie’s nightclub and had told Smith that
“this motherfucker think I’m playing with him. I’m opting to show him I ain’t
playing with him.” Mitchell then crossed the street and retrieved something from his
car, which Smith did not view but believed to be a gun. Smith cautioned Mitchell
against engaging in any sort of confrontation, but Mitchell ignored his friend’s advice
and approached Yarbrough in the parking lot. As Yarbrough and his friends began to
walk away, Mitchell said to Yarbrough “you think I’m playing whichu?” Yarbrough
responded by likewise challenging Mitchell, “you think I’m playing whichu?” He then
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immediately pulled a gun out of his right pocket and fired repeatedly at Mitchell.
Smith testified that he had never seen Mitchell expose a gun during the altercation,
and that Mitchell had tried to back up when Yarbrough had revealed his weapon.
{¶7} Cincinnati Police Officer Sabreen Williams had been working an off-
duty detail at Annie’s on the night of the shooting. She testified that, shortly after the
nightclub let out for the evening, she had heard approximately seven gunshots that
came from the same general area. Responding to the shots, she found Mitchell face
down on the ground with no pulse. After rolling Mitchell over, Officer Williams
discovered a weapon on him. Cincinnati Police Detective Kurt Ballman confirmed
that a weapon had been found on Mitchell. Detective Ballman testified that
Mitchell’s weapon had been holstered deep inside the right side of his pants.
{¶8} Marvin Gates had been at Annie’s nightclub on the night of the
shooting with his friend Daunte Phillips, who was struck by a stray bullet. Gates
testified that he and Phillips had deliberately attempted to avoid Yarbrough in the
parking lot that evening because they had seen him standing at the top of a hill
flexing a weapon behind his back as Mitchell walked towards him.
{¶9} At trial, Yarbrough testified that he carried a weapon for protection,
even though he was not legally permitted to do so because of a prior conviction. He
did so because he worked as a security guard at several area clubs and often angered
people by enforcing the club rules. He further stated that he had been robbed twice
at gun point and that several of his friends had been murdered.
{¶10} Yarbrough testified that he had gone to Annie’s nightclub on the night
of the shooting with his friends Midnight, 80, and Kenny. As he waited in the
parking lot, Mitchell approached him with a crazy look on his face, while shouting
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“Fuck you whore-ass nigga, I ain’t perpin’. You know I ain’t playing whichu.”
Yarbrough testified that he saw Mitchell make a reaching motion toward his pants
with his right hand. Fearful that Mitchell was in the process of retrieving a weapon,
Yarbrough pulled out his own weapon and fired approximately four shots at Mitchell.
He explained that he chose to fire at Mitchell rather than retreat, because he had
feared that he would be shot in the back if he had attempted to run. On cross-
examination, Yarbrough conceded that he had never actually seen a weapon in
Mitchell’s possession.
{¶11} Andre Whaley, also known as “Midnight,” had been with Yarbrough at
Annie’s nightclub. Whaley witnessed Yarbrough and Mitchell arguing, and then
heard Mitchell say “Fuck these niggas.” He saw Mitchell reach for his side and bend
his arm, and at this same time, Whaley saw Yarbrough remove his own weapon.
Whaley ducked, and then heard multiple gun shots. Whaley testified that Mitchell
had a reputation as a violent person, but that he had not seen a weapon in Mitchell’s
possession at the time that he was shot.
{¶12} Following our review of the record, we hold that the evidence does not
demonstrate that Yarbrough had a legitimate belief that he was in danger of
imminent death or great bodily harm. Although Mitchell was found with a weapon
in his possession, the record was devoid of evidence that Mitchell had actually
produced that weapon during his confrontation with Yarbrough. Yarbrough himself
conceded that he had not seen Mitchell display a weapon. Neither the statements
uttered by Mitchell during the verbal altercation nor Mitchell’s uncompleted
reaching motion were enough to provide Yarbrough with a legitimate belief that he
was in danger of death or great bodily harm. The trial court correctly concluded that
5 OHIO FIRST DISTRICT COURT OF APPEALS
Yarbrough had failed to prove by a preponderance of the evidence that he had acted
in self-defense.
{¶13} Yarbrough next argues that the record demonstrates that the trial
court was not convinced of his guilt beyond a reasonable doubt. In support of his
argument, he cites the length of time that it took the trial court to render a verdict, as
well as an order issued by the trial court requesting the parties to research whether
Yarbrough was guilty of lesser-included offenses. Yarbrough’s arguments are
tenuous. First, the length of time that it took the trial court to issue its decision has
no bearing on the weight of the evidence supporting a conviction or the confidence of
the court in its decision. The record contains no indication that the trial court
engaged in anything other than a thorough deliberation of the evidence.
{¶14} Further, the trial court’s order requesting the parties to research
lesser-included offenses was issued following a post-trial Crim.R. 33(A) motion for a
new trial filed by Yarbrough. Crim.R. 33(A) provides that “[i]f the evidence shows
the defendant is not guilty of the degree of crime for which he was convicted, but
guilty of a lesser degree thereof, or of a lesser crime included therein, the court may
modify the verdict or find accordingly.” Rather than evince doubt in its verdict, the
trial court’s order demonstrates that it thoroughly considered Yarbrough’s motion
for a new trial, but ultimately determined that it was without merit. Yarbrough’s
conviction for the murder of Mitchell was not against the manifest weight of the
evidence, and the first assignment of error is overruled.
{¶15} In his second assignment of error, Yarbrough argues that his
conviction for the murder of Daunte Phillips was against the manifest weight of the
evidence. Phillips was struck by a stray bullet that missed Yarbrough’s intended
6 OHIO FIRST DISTRICT COURT OF APPEALS
victim, Marcus Mitchell. We have already determined that Yarbrough’s conviction
for the purposeful murder of Mitchell was supported by the manifest weight of the
evidence. Under the doctrine of transferred intent, Yarbrough’s conviction for the
purposeful murder of Phillips was likewise supported by the weight of the evidence.
{¶16} The doctrine of transferred intent provides that “where an individual is
attempting to harm one person and as a result accidentally harms another, the intent
to harm the first person is transferred to the second person, and the individual
attempting harm is held criminally liable as if he both intended to harm and did
harm the second person.” State v. Reese, 1st Dist. Nos. C-060576 and C-060577,
2007-Ohio-4319, ¶ 21. Here, Yarbrough’s purposeful intent to kill Mitchell was
transferred to Phillips.
{¶17} Yarbrough argues that the evidence fails to demonstrate that he shot
Phillips, and that the deaths of Mitchell and Phillips are not related. We are not
persuaded. The record contains no evidence that two separate shootings occurred.
Officer Williams testified that she heard approximately seven gunshots in succession.
These gunshots came from one general area, all sounded alike, and appeared to be
consecutive shots from the same weapon. Marvin Gates, Phillips’ companion,
testified that he and Phillips had reversed course in the parking lot after viewing
Yarbrough flex a weapon behind his back. Gates heard shots ring out as he and
Phillips retraced their steps. Phillips immediately announced that he was hit, and
collapsed to the ground.
{¶18} Firearms examiner Robert Lenhoff examined bullets recovered during
the autopsy of Marcus Mitchell as well as bullet items that had been recovered near
the body of Daunte Phillips. Lenhoff testified that after comparing the
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characteristics of all bullets and bullet items, he had determined that they all were
fired from the same weapon. Lenhoff further testified that the weapon found on
Mitchell could not have fired any of the bullets recovered from the scene.
{¶19} Yarbrough further highlights discrepancies in the testimony from
various state witnesses. But these discrepancies concerned minor issues. The
witnesses were consistent in their relevant testimony that Yarbrough had shot
Mitchell and that Mitchell had never produced a weapon during the altercation.
Further, the trial court was in the best position to judge the credibility of these
witnesses and to resolve any inconsistencies. The trial court did not lose its way and
create a manifest miscarriage of justice in convicting Yarbrough of Phillips’ murder.
The second assignment of error is overruled.
Ineffective Assistance
{¶20} In his third assignment of error, Yarbrough asserts that he received
ineffective assistance from his trial counsel. For counsel to be deemed ineffective,
the defendant must demonstrate that counsel’s performance was deficient and that
the defendant was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant
is only prejudiced if the outcome of the proceedings would have been different but
for counsel’s deficient performance. Id. at 694. When reviewing counsel’s
performance, this court must engage in the presumption that counsel’s behavior fell
within the range of reasonable professional assistance. Id. at 689.
{¶21} Yarbrough argues that his counsel was ineffective in focusing on the
affirmative defense of self-defense with respect to Daunte Phillips and in failing to
independently pursue additional evidence relating to Phillips’ death. But pursuing
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such a defense is a matter of trial strategy, which this court will generally refrain
from second guessing. State v. Myles, 1st Dist. No. C-050810, 2007-Ohio-3307, ¶
73. In this case, arguing self-defense was a sound trial strategy based on the evidence
presented. Had Yarbrough been acquitted of Mitchell’s murder based on self-
defense, he would have likewise been acquitted of Phillips’ murder.
{¶22} Yarbrough further argues that his counsel failed to effectively cross-
examine both the coroner and the firearms examiner about Phillips’ cause of death
and the type of weapon used to shoot Phillips. We do not find that counsel’s
examination of these witnesses was deficient. Given the pursued strategy of self-
defense and the information already elicited on direct examination, we fail to see
how additional testimony from the coroner regarding Phillips would have aided
Yarbrough. And the record indicates that defense counsel vigorously cross-examined
the firearms examiner on the type of weapon used to fire both the bullets recovered
from Mitchell’s body and the bullet items found near Phillips.
{¶23} Yarbrough did not receive ineffective assistance from his trial counsel.
The third assignment of error is overruled.
Prosecutorial Misconduct
{¶24} In his fourth assignment of error, Yarbrough asserts that the
prosecutor engaged in prosecutorial misconduct by failing to disclose material
information in violation of the Confrontation Clause, Crim.R. 16, and his due process
and Fifth Amendment rights. The misconduct of a prosecutor will only serve as
grounds for reversal if it deprived the defendant of a fair trial. State v. Maurer, 15
Ohio St. 3d 239, 266, 473 N.E.2d 768 (1984).
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} Yarbrough contends that the prosecutor committed misconduct by
failing to disclose prior to trial the case consideration that state witness Willie Smith
would receive in return for his testimony. During trial, Smith testified that he was
currently incarcerated in Kentucky on assault-weapons charges, and that the
prosecutor would make a recommendation to his sentencing judge in that case in
return for testimony against Yarbrough. Defense counsel cross-examined Smith on
the consideration that he would receive. Yarbrough now argues that this information
was subject to discovery pursuant to Crim.R. 16, and that the state failed to disclose
this information in violation of his constitutional rights under Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We are not persuaded that the
failure to obtain this information at an earlier time deprived Yarbrough of a fair trial.
Yarbrough’s counsel cross-examined Smith on this issue, and the trial court was
aware that Smith stood to gain a reduced sentence in return for his testimony. The
court was able to consider such information when determining Smith’s credibility.
State v. O’Dell, 45 Ohio St.3d 140, 142-143, 543 N.E.2d 1220 (1989).
{¶26} Yarbrough raises similar allegations with respect to the state’s witness
Marvin Gates. During trial, the prosecutor asked Gates if he was receiving any case
consideration in return for his testimony against Yarbrough. Gates responded “I told
you I didn’t need—I didn’t want you guys to help me out of my case, I can help my
own case myself, me and my lawyer been doing. So I don’t need no help, no idea, no
case consideration.” Gates stated that he was testifying because Phillips was like his
brother and he couldn’t see his killer walk.
{¶27} In a post-trial motion for a new trial and/or motion for judgment of
acquittal, Yarbrough alleged that Gates had in fact received case consideration on
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pending charges after his testimony had been given. Yarbrough attached documents
to his motion purporting to demonstrate that Gates later obtained the dismissal of
several pending charges and a reduction in other charges. Yarbrough alleges that the
state’s failure to reveal the beneficial treatment given to Gates violated his rights
under the Confrontation Clause, the due process clause of the Fifth Amendment, and
the progeny of case law developed from Brady v. Maryland.
{¶28} Yarbrough’s argument is without merit. Gates testified that he neither
desired nor had received case consideration in return for his testimony. And while
Gates later entered into a plea deal with the state, the record contains no evidence
that such a deal was granted in return for testimony against Yarbrough. This court
would have to engage in pure speculation to reach such a conclusion. During trial,
Gates was questioned extensively regarding any potential case consideration and his
motivations for testifying. The court was made aware of Gates’ relationship with the
victim and Gates’ desire that Phillips’ killer not go unpunished. Defense counsel
further elicited on cross-examination that the prosecutor had agreed to Gates’ release
on bond on unrelated charges prior to Yarbrough’s trial. The court was again able to
consider such information when assessing Gates’ credibility and determining what
weight to give his testimony.
{¶29} We overrule Yarbrough’s fourth assignment of error because he has
failed to demonstrate any improper conduct by the prosecutor that deprived him of a
fair trial.
Jury Waiver
{¶30} In his fifth assignment of error, Yarbrough argues that his jury waiver
was not made knowingly, intelligently, or voluntarily. He contends that, had he been
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made aware of the case consideration received by state’s witnesses Smith and Gates,
he would not have waived his right to a trial by jury.
{¶31} R.C. 2945.05 states that a defendant may waive a trial by jury,
provided that the waiver is made in open court and in writing, is signed by the
defendant after having an opportunity to consult with counsel, and is filed and made
part of the record. The Ohio Supreme Court reiterated these requirements in State v.
Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, paragraph one of the
syllabus. The record indicates that these requirements were all complied with in the
present case.
{¶32} When determining whether a jury waiver was made knowingly,
intelligently, and voluntarily, we must consider the circumstances at the time that
the waiver was made and determine whether the mandated requirements were met.
It is not possible for a defendant to know at the time that a jury waiver is executed
the exact testimony that each witness will provide. An argument that a defendant’s
jury waiver is rendered involuntary any time surprising or previously unknown
testimony is elicited at trial is simply unreasonable. Further, in our resolution of the
preceding assignment of error, we have already determined that the state did not
commit any improper conduct that deprived Yarbrough of a fair trial with respect to
the potential case consideration received by its witnesses.
{¶33} The record demonstrates that Yarbrough executed a knowing,
voluntary, and intelligent waiver of his right to a trial by jury. The fifth assignment
of error is overruled.
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Motion for a New Trial
{¶34} In his sixth assignment of error, Yarbrough argues that the trial court
erred by overruling his motion for a new trial based on newly discovered evidence.
Yarbrough’s alleged newly discovered evidence was the testimony of Kenneth Davis,
an eyewitness to Mitchell’s murder.
{¶35} Pursuant to Crim.R. 33(A)(6), a motion for a new trial may be granted
when “new evidence material to the defense is discovered, which the defendant could
not with reasonable diligence have discovered and produced at trial.” To warrant the
granting of a new trial, it must be shown that the new evidence
(1) discloses a strong probability that it will change the result if
a new trial is granted, (2) has been discovered since the trial,
(3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues, (5)
is not merely cumulative to former evidence, and (6) does not
merely impeach or contradict the former evidence. State v.
Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
{¶36} Yarbrough provided an affidavit from Davis detailing the newly
discovered information that Davis would provide. According to Davis’ affidavit, he
witnessed the shooting death of Marcus Mitchell outside Annie’s. Davis saw Mitchell
approach Yarbrough and reach for a gun during the confrontation. Davis
additionally stated that he had seen a gun located in Mitchell’s pants. The trial court
denied Yarbrough’s motion for a new trial. It found that this evidence could have
been discovered prior to trial with the exercise of reasonable diligence, and that the
evidence would have been merely cumulative to other evidence adduced at trial.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} We review the trial court’s ruling on a motion for new trial for an abuse
of discretion. Id. at 507-508. An abuse of discretion entails more than an error in
law or in judgment. Rather, it involves an unconscionable, unreasonable, or an
arbitrary attitude on the part of the trial court. Pembaur v. Leis, 1 Ohio St. 3d 89, 91,
437 N.E.2d 1199 (1982). Here, we hold that the trial court did not abuse its
discretion in denying Yarbrough’s motion.
{¶38} The record indicates that, during Yarbrough’s initial interview with the
police, he informed them that Davis had been one of his companions at Annie’s on
the night of the shooting. He had further provided the police with a cellular
telephone number for Davis. Given this information, we find that Davis’ statement
could have been discovered with the exercise of due diligence prior to trial. We
further find that this evidence would merely impeach or contradict testimony
provided by other witnesses. Yarbrough, Willie Smith, and Andre Whaley each
testified that they had not seen a weapon on Mitchell when he was shot by
Yarbrough. Davis’ statement that a weapon had in fact been visible on Mitchell is in
direct contradiction to the testimony of these witnesses.
{¶39} Yarbrough further argues that his motion for a new trial should have
been granted because his convictions were not supported by sufficient evidence and
because the prosecutor committed misconduct by failing to disclose the case
consideration that two of its witnesses had received in return for their testimony. We
have already determined that these arguments are meritless. We again hold that
Yarbrough’s convictions were supported by the sufficiency and the weight of the
evidence, and that the prosecutor committed no misconduct that deprived
14 OHIO FIRST DISTRICT COURT OF APPEALS
Yarbrough of a fair trial. The trial court did not abuse its discretion in denying
Yarbrough’s motion on these grounds. The sixth assignment of error is overruled.
{¶40} Having overruled Yarbrough’s assignments of error, we accordingly
affirm the judgment of the trial court.
Judgment affirmed.
SUNDERMANN, P.J., and FISCHER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.