State v. Walker , 96 N.E.3d 856 ( 2017 )


Menu:
  • [Cite as State v. Walker, 
    2017-Ohio-7236
    .]
    STATE OF OHIO                     )                  IN THE COURT OF APPEALS
    )ss:               NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                        C.A. No.      28244
    Appellee
    v.                                           APPEAL FROM JUDGMENT
    ENTERED IN THE
    CORDELL WALKER                                       COURT OF COMMON PLEAS
    COUNTY OF SUMMIT, OHIO
    Appellant                                    CASE No.   CR 2015 08 2626
    DECISION AND JOURNAL ENTRY
    Dated: August 16, 2017
    CARR, Judge.
    {¶1}     Defendant-Appellant Cordell Walker appeals from his convictions in the Summit
    County Court of Common Pleas. This Court affirms.
    I.
    {¶2}     Around 1 a.m. on August 16, 2015, at a gas station in Akron, Walker shot the
    victim in his left and right arms and abdomen. Based upon that incident, Walker was indicted on
    two counts of felonious assault, with accompanying firearm specifications, and one count of
    having weapons while under disability. The matter proceeded to a jury trial, at which Walker
    maintained he acted in self-defense and/or in defense of others. The trial court instructed the
    jury concerning the affirmative defenses of self-defense and defense of others with respect to the
    two counts of felonious assault, but not with respect to the charge of having weapons while
    under disability. The jury found Walker not guilty of the second count of felonious assault, but
    guilty of the first count of felonious assault and the accompanying firearm specification, and the
    2
    count for having weapons while under disability. The trial court concluded the two counts
    merged and sentenced Walker to an aggregate sentence of nine years in prison for the felonious
    assault charge and the accompanying firearm specification.
    {¶3}    Walker has appealed, raising two assignments of error for our review.
    II.
    ASSIGNMENT OF ERROR I
    MR. WALKER’S CONVICTION FOR FELONIOUS ASSAULT IS AGAINST
    THE MANIFEST WEIGHT OF THE EVIDENCE, MERITING A NEW TRIAL.
    {¶4}    Walker argues in his first assignment of error that his conviction for felonious
    assault is against the manifest weight of the evidence. Specifically, he asserts that the weight of
    the evidence supported his contention that he acted in self-defense. We do not agree.
    In determining whether a criminal conviction is against the manifest weight of the
    evidence, an appellate court must review the entire record, weigh the evidence
    and all reasonable inferences, consider the credibility of witnesses 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 that the conviction must be
    reversed and a new trial ordered.
    State v. Otten, 
    33 Ohio App.3d 339
    , 340 (9th Dist.1986). “When a court of appeals reverses a
    judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
    appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
    conflicting testimony.” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387 (1997), quoting Tibbs v.
    Florida, 
    457 U.S. 31
    , 42 (1982). An appellate court should exercise the power to reverse a
    judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
    {¶5}    Walker was found guilty of violating R.C. 2903.11(A)(1), which states that “[n]o
    person shall knowingly * * * [c]ause serious physical harm to another * * *[.]” Walker did not
    3
    dispute that he shot the victim. Instead, he contends on appeal that the weight of the evidence
    supports that he acted in self-defense.
    {¶6}   Walker had the burden to demonstrate by a preponderance of the evidence that he
    acted in self-defense when he shot the victim. State v. Williford, 
    49 Ohio St.3d 247
    , 249 (1990).
    In order to prove self-defense, a defendant must demonstrate:
    “‘(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. Osborne, 9th Dist. Summit No. 27563, 
    2016-Ohio-282
    , ¶ 6, quoting State v. Goff, 
    128 Ohio St.3d 169
    , 
    2010-Ohio-6317
    , ¶ 36, quoting State v. Thomas, 
    77 Ohio St.3d 323
    , 326 (1997).
    “The elements of self-defense are cumulative. * * * If the defendant fails to prove any one of
    these elements by a preponderance of the evidence he has failed to demonstrate that he acted in
    self-defense.” (Internal quotations and citations omitted.) Osborne at ¶ 6.
    {¶7}   Here, the jury was presented with different versions of the events. After carefully
    reviewing the record, we cannot say the jury lost its way in finding Walker guilty of felonious
    assault.
    {¶8}   During the evening of August 15, 2015, the victim had been drinking with Taylor,
    who was the mother of his children, and Taylor’s sister. Sometime late in the evening, the three
    got into a car and went and picked up the victim’s longtime friend, India, and India’s best friend,
    in order to give them a ride home. Taylor drove and her sister was in the front passenger seat.
    The victim, India, and India’s friend were in the backseat. Prior to dropping India and India’s
    friend off, Taylor drove to a gas station in Akron in order to purchase liquor after hours. There
    was testimony that members of the group had done so before.
    4
    {¶9}    That evening, Walker went to the gas station to get some juice, and, while he was
    there, the gas station store employee asked him to help out at the drive-thru window, which
    Walker agreed to do. According to Taylor, when she drove up to the drive-thru window and
    asked for a bottle of liquor, Walker was at the window and began flirting with her and telling her
    that she could have whatever she wanted for free. According to Walker, he asked the store
    employee whether they had any liquor and the store employee said that they did not. Taylor,
    however, testified that the gas station store manager was willing to sell the liquor, but after
    talking to Walker, he changed his mind. The victim and Walker argued. The victim got out of
    the car and approached the window. According to Walker, the victim was poking Walker and
    ultimately spit at Walker. Walker also asserted that the victim had a gun while in the driver-thru.
    The store employee’s testimony corroborated that the victim spit on Walker and that the victim
    had a gun, which he kept slapping. The store employee told the store manager about the weapon.
    The victim denied having a gun at all that evening, and the women in the car with him denied
    seeing him with a gun. However, Taylor’s sister testified that she saw Walker with a gun while
    he was in the gas station and India testified that, while they were still at the drive-thru window,
    she saw the store manager hand the store employee a gun, who then handed the gun to Walker.
    {¶10} The yelling at the window drew the attention of the store manager, who came to
    the window, told Walker and the people in the car to leave, and closed the window. However,
    Taylor’s sister testified that the store manager told her that one of the women in the car could
    come in and buy something.
    {¶11} Taylor pulled the car around and parked near one of the pumps. Taylor’s sister
    went into the store, and as she was doing so, Walker and the store employee came out. The
    testimony concerning what happened over the next few minutes varied from witness to witness.
    5
    {¶12} In addition to Walker and the victim, Taylor and the store manager witnessed the
    shooting. The store employee witnessed the events leading up to the shooting, but did not
    actually see who shot whom. India and India’s friend fled from the vehicle before the shooting,
    shortly after seeing Walker with a gun when he was leaving the store. According to India’s
    friend, she heard the gunshots as she was running from the scene. However, India did testify
    that, as they were running, she would turn back periodically and saw Walker pointing a gun at
    the victim. India averred that the victim did not have a gun on him. Taylor’s sister testified that,
    as she walked in the store, she saw Walker pick up a gun and walk out. She did not realize it was
    a gun until later. Shortly thereafter, she heard gunshots and hid. When the store manager came
    back into the store with a gun, Taylor’s sister ran out of the store.
    {¶13} Taylor testified that Walker came out of the store towards the car asking where
    the victim was in a taunting manner. The victim got out of the car expecting there to be a
    fistfight. Taylor indicated that Walker then pulled out a gun and the victim put his hands up.
    Walker took aim at the victim and the victim grabbed the store employee and ducked behind the
    store employee to use him as a shield. The store employee told the victim that he would get the
    gun if the victim let him go. The victim did so, but the store employee did not get the weapon.
    The victim grabbed at the store manager but the store manager pulled away. Walker then shot
    the victim.
    {¶14} The victim confirmed much Taylor’s version of events. When Taylor’s sister
    went in the store, he heard Walker yelling at him and thought there was going to be a fistfight.
    He approached Walker with his fists raised and then saw that Walker had a gun. The victim
    testified that he did not have a gun or indicate that he had one. The victim testified that he was
    afraid and tried to use both the store employee and manager as shields and kept telling them to
    6
    get the gun from Walker. He indicated that the store manager’s shirt ripped when the store
    manager pulled away. The victim then grabbed the store employee, and, once he let go of the
    store employee, Walker said, “I got you now[.]” Walker then shot the victim.
    {¶15} The store manager testified that he could not remember many of the details of that
    night. He stated that, shortly after he told the victim and Walker to leave, he heard screaming
    outside the store. The store manager went outside and saw Walker and the victim were arguing.
    The victim grabbed the store manager from behind and the store manager felt something
    pinching him on the back. The victim tore the store manager’s shirt and the store manager got
    away. When the store manager looked back, he saw something black in the victim’s hand that
    looked like a gun. He heard the shots but initially testified that he did not see who shot whom.
    However, he later testified that he thought Walker shot the victim and ultimately told police the
    same. The store manager took the gun, which was the store’s gun, from Walker and put it in the
    tank of the toilet so no one else would use it. The store manager testified that, when initially
    questioned by police, he did not tell the truth as he was afraid of retaliation. He initially denied
    handling the gun after the shooting, but later that night revised his statement and told police
    where to find the gun. The weapon was recovered from the toilet tank.
    {¶16} The store employee testified that he routinely carried the store’s gun on his person
    and had it on him the night of the shooting. After the store manager closed the window, the store
    employee walked out with Walker and saw Taylor’s sister get out of the car and then the victim.
    The store employee saw a gun on the victim’s person. The victim was yelling and the store
    employee told Walker that it was not worth it, but the victim kept egging Walker on and calling
    him names. The victim and Walker began yelling at each other. The victim began tapping on
    his gun and Walker pulled the gun from the store employee’s person. The store employee and
    7
    Walker kept telling the victim to get in his car and leave. The store employee kept trying to
    diffuse the situation, inserting himself between Walker and the victim and sometimes holding
    Walker back. The victim kept asking the store employee not to let Walker kill the victim and
    Walker stated that, “As long as you don’t reach for the gun, nobody is going to shoot.” Walker
    was then aiming the gun at the victim and telling him to get in the car. According, to the store
    employee, at this point, the victim still had not pulled out his own weapon, although he kept
    tapping it. The victim then used the store employee as a shield. The store employee broke free
    and then heard Walker yell, “He’s about to shoot.” The store employee then heard gunshots but
    did not see who shot whom. Neither the store employee nor the store manager told police about
    the victim having a gun.
    {¶17} Walker testified in his own defense. He testified that he shot the victim because
    he was afraid for his own life and for the lives of those around him. When he walked out of the
    store, he was planning to leave and did not have a gun. However, then he saw the car pull
    around and the victim get out of the car. He indicated that he thought that, since the victim had a
    gun and came to the front of the gas station after being told to leave, the victim came back “to do
    something.” He believed that the store employee and store manager were in danger as well.
    {¶18} The victim and Walker started yelling at each other and the store employee started
    pushing Walker and trying to hold him back. Walker testified that when he saw the victim grab
    for his gun, Walker grabbed the gun off the store employee. Walker raised the gun and pointed it
    at the victim when the victim dropped his hand towards his gun. He told the victim, “Don’t grab
    that gun.” Walker then kept telling the victim to get in the car and leave. Walker also confirmed
    that the victim had grabbed both the store manager and the store employee. After the store
    employee broke away from the victim, Walker looked back at the victim and saw the victim
    8
    pulling the gun off of him. Walker averred that the only reason he shot was that he saw that the
    victim “took the gun off his waist and [] began to raise his gun up.” Walker felt that he was
    about to be shot and so fired his own weapon and then fled.
    {¶19} As he was fleeing, he encountered a family acquaintance who drove him to his
    girlfriend’s house. The acquaintance testified to being at the gas station and seeing a dark-
    skinned male pull a gun from his waistband. She then noticed that Walker was also there in the
    vicinity. When she heard shots she became concerned Walker was shot, but later realized that he
    had not been injured. When Walker got to his girlfriend’s house, she had been cleaning the
    house. He testified that he washed his face and used the water she had been cleaning with to
    wash his hands. He denied that his intention was to destroy evidence.
    {¶20} Ultimately, police arrived at his girlfriend’s house and began surveilling the
    property. When family members of Walker arrived the police asked one of them to call and ask
    Walker to surrender himself. He willingly came out. Upon searching the premises, police
    noticed a strong odor of bleach in the house and at least one officer testified that Walker’s hands
    smelled like bleach. When interviewed by police, Walker indicated he was home all night.
    Particles highly indicative of gunshot residue primer were found on Walker’s hands.
    {¶21} Two security videos from the gas station were also played for the jury and
    admitted into evidence. Each video depicts a different angle of the scene and contains the
    footage of the argument outside at the gas station. No footage from the drive-thru window was
    available. The sum of the two videos depicts Walker storming out of the gas station store as the
    store employee holds the door open for Taylor’s sister to enter the store. At that point, the victim
    had already exited the car and was near the pumps. The store employee and store manager
    follow after Walker and the victim moves behind one of the cars. The store employee appears to
    9
    be trying to keep Walker from going towards the victim. Taylor exits the vehicle and India and
    India’s friend are seen running from the scene. The victim is then standing with a vehicle
    between him and Walker. The victim appears to yell something, hits the car, and gestures in
    Walker’s general direction and then moves around the car. The victim appears to try to move
    towards Walker and the store manager intervenes. At this point, Taylor has reentered the vehicle
    and begins to drive around the station to where the argument is moving. The victim then grabs
    the store employee and appears to use him as a shield. The argument then partially moves out of
    view, but near the end, Walker can be seen pointing and firing a weapon. It then appears that
    Walker and the store manager exchange something.
    {¶22} From the videos it cannot be seen whether the victim had a weapon or when
    Walker acquired a weapon. However, it does appear from the videos that, at the beginning,
    Walker exited the store in an aggressive, motivated manner and that the store employee was
    trying to stop Walker from continuing towards the victim.
    {¶23} After a thorough review of the entire record, we cannot say the jury lost its way in
    finding Walker guilty of felonious assault. The jury was presented with competing versions of
    the events and was in the best position to make credibility determinations. State v. Stark, 9th
    Dist. Wayne No. 14AP0050, 
    2017-Ohio-873
    , ¶ 20. If the jury believed the victim’s version of
    events, the evidence would not support that Walker acted in self-defense; according to the
    victim, he did not have a gun, and Walker thus shot an unarmed man. Walker’s conviction for
    felonious assault is not against the manifest weight of the evidence simply because the jury chose
    to believe the victim’s version of the events. 
    Id.
     Given the evidence before it, the jury was free
    to reject that Walker acted in self-defense.
    {¶24} Walker’s first assignment of error is overruled.
    10
    ASSIGNMENT OF ERROR II
    THE TRIAL COURT ERRED IN NOT GIVING THE JURY AN
    INSTRUCTION ON SELF DEFENSE AS TO COUNT 3, HAVING A
    WEAPON UNDER DISABILITY.
    {¶25} Walker argues in his second assignment of error that the trial court erred in failing
    to give a self-defense instruction with respect to the count for having weapons while under
    disability. Under the circumstances of this case, we do not agree.
    {¶26} Crim.R. 30(A) provides in part:
    At the close of the evidence or at such earlier time during the trial as the court
    reasonably directs, any party may file written requests that the court instruct the
    jury on the law as set forth in the requests. * * * The court shall inform counsel of
    its proposed action on the requests prior to counsel’s arguments to the jury and
    shall give the jury complete instructions after the arguments are completed. * * *
    On appeal, a party may not assign as error the giving or the failure to give any
    instructions unless the party objects before the jury retires to consider its verdict,
    stating specifically the matter objected to and the grounds of the objection.
    Opportunity shall be given to make the objection out of the hearing of the jury.
    Thus, “‘[g]enerally, a request for a special jury instruction must be made in writing.’” State v.
    Bellomy, 9th Dist. Summit No. 12CA0075-M, 
    2013-Ohio-3187
    , ¶ 6, quoting State v. Yates, 9th
    Dist. Summit No. 21239, 
    2003-Ohio-2956
    , ¶ 18, citing State v. Franklin, 
    62 Ohio St.3d 118
    , 128
    (1991).
    {¶27} Here, Walker’s counsel objected to the trial court’s decision to include a sentence
    in the instructions that stated that “[t]he previously given instructions regarding self-defense and
    defense of another do not apply to Count Three [having weapons while under disability].” The
    trial court went on to clarify that earlier, off the record, Walker’s counsel objected to the trial
    court’s conclusion that self-defense and defense of others were not applicable to a charge of
    having weapons while under disability. The trial court noted that “[t]here was some discussion
    regarding the arguable applicability of the [S]econd [A]mendment to the defendant’s right to
    11
    take hold of a weapon at hand in a situation which he was engaged in a self- defense activity.”
    The trial court then concluded that “the defense of self-defense is not applicable to the weapon
    under disability charge, and [] overrule[d] any request of the defense related to the applicability
    of the [S]econd [A]mendment under those circumstances.” This Court has not yet been faced
    with a scenario requiring us to expressly adopt or reject the position that self-defense applies to a
    charge for having weapons while under disability. See State v. Smead, 9th Dist. Summit No.
    24903, 
    2010-Ohio-4462
    , ¶ 12 (“Even if we were to agree with Smead’s contention that an
    individual has an inalienable right of self-defense in his home that could qualify as a defense to
    the charge of having a weapon under disability, we conclude that the trial court did not err by so
    failing to instruct the jury.”); State v. Dossie, 9th Dist. Summit No. 19935, 
    2000 WL 1752241
    ,
    *2 (Nov. 29, 2000), overruled on other grounds, State v. Fischer, 
    148 Ohio App.3d 126
    , 2002-
    Ohio-3026, ¶ 16 (9th Dist.) (noting that this Court has never explicitly recognized the self-
    defense exception to R.C. 2923.13 outlined in State v. Hardy, 
    60 Ohio App.2d 325
     (8th
    Dist.1978)). Under the circumstances of this case, we likewise do not have to do so in this
    instance.
    {¶28} Even if we were to adopt the position that self-defense could be applicable to a
    charge for having weapons while under disability, Walker’s counsel’s proposed instruction for
    self-defense/defense of others for the charge for having weapons while under disability is not in
    the record. While it is possible that Walker’s counsel sought to have the instruction that was
    given for counts one and two given for count three, from the trial court’s summary of the off-
    record discussion, it appears that Walker’s counsel also sought to have language about the
    Second Amendment included in the proposed self-defense instruction with respect to count three.
    Without the proposed instruction in the record, we cannot evaluate whether the instruction would
    12
    have been appropriate. Thus, even if this Court were to disagree with the trial court that self-
    defense can be applicable to a charge for having weapons while under disability, absent being
    able to review the proposed instruction, we cannot say the trial court committed reversible error
    in declining to give any instruction on the issue. See Bellomy at ¶ 8 (concluding that without the
    proposed instruction in the record, the Court could not determine that the trial court committed
    reversible error in failing to give the instruction).
    {¶29} Walker’s second assignment of error is overruled.
    III.
    {¶30} Walker’s assignments of error are overruled.         The judgment of the Summit
    County Court of Common Pleas is affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    13
    Costs taxed to Appellant.
    DONNA J. CARR
    FOR THE COURT
    SCHAFER, P. J.
    TEODOSIO, J.
    CONCUR.
    APPEARANCES:
    THOMAS M. DICAUDO and BENJAMIN R. SORBER, Attorneys at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 28244

Citation Numbers: 2017 Ohio 7236, 96 N.E.3d 856

Judges: Carr

Filed Date: 8/16/2017

Precedential Status: Precedential

Modified Date: 1/12/2023