State v. Perrien , 2020 Ohio 798 ( 2020 )

[Cite as State v. Perrien, 2020-Ohio-798.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108339
v. :
DENNIS W. PERRIEN, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626337-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Theodore Parran, III, and Anna M. Faraglia,
Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Paul Kuzmins, Assistant Public Defender, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant, Dennis Perrien, Jr. (“appellant”), brings the
instant appeal challenging his convictions for reckless homicide and felonious
assault. Appellant argues that he was denied his constitutional right to the effective
assistance of counsel, his convictions are not supported by sufficient evidence and
against the manifest weight of the evidence, the trial court committed plain error by
failing to provide a jury instruction on the offense of negligent homicide, and he was
denied his constitutional right to a fair trial. After a thorough review of the record
and law, this court affirms.
I. Factual and Procedural History
The instant appeal pertains to a shooting that occurred on February 23,
2018, in a warehouse of an industrial park on Cleveland’s west side. Appellant,
victim Donald Van Horn III (hereinafter “victim”), and Jerrold Saxton met at the
warehouse, which they planned to remodel into a clubhouse for their motorcycle
club, the All American Men of Honor Motorcycle Club. The purpose of the February
23 meeting was to assess the progress of the remodeling and sign the lease that had
been drawn up by the owner, Scott Landry.
Appellant discharged a single round from his 9 mm Ruger SR9c
handgun. A primary issue in this appeal is whether the shot was discharged
recklessly or negligently. The shot struck the victim from a distance of
approximately one to three feet. Appellant immediately began performing life
saving measures and emergency personnel were contacted. The victim ultimately
succumbed to the gunshot wound, and was pronounced dead at the scene at
approximately 10:00 a.m.
There were no eyewitnesses to the shooting that could testify about the
specific circumstances under which the shot was fired from appellant’s gun.
Appellant advised the responding officers that he accidentally shot the victim and
that he was joking around with the victim at the time the gun discharged. Appellant
explained that he and the victim would often joke around with one another, during
which the victim would pull his switchblade knife and appellant would pull his gun.
Appellant was arrested for his involvement in the shooting on February
23, 2018. On March 22, 2018, the Cuyahoga County Grand Jury returned a two-
count indictment charging appellant with (1) murder, in violation of R.C.
2903.02(B), and (2) felonious assault, in violation of R.C. 2903.11(A)(1). Both
counts contained one- and three-year firearm specifications. The murder offense
charged in Count 1 alleged that appellant caused the death of the victim as a
proximate result of committing or attempting to commit felonious assault, an
offense of violence. Appellant pled not guilty to the indictment during his
arraignment on March 27, 2018.
On January 7, 2019, the state filed a brief “regarding lesser included
offenses.” Therein, the state argued that reckless homicide, in violation of R.C.
2903.041(A), is a lesser-included offense of homicide, in violation of R.C.
2903.02(B), and that negligent homicide, in violation of R.C. 2903.05(A), is not a
lesser-included offense of homicide. Accordingly, the state maintained that
negligent homicide “cannot be considered as a possible legal theory for jury
instructions in this matter.”
A jury trial commenced on January 8, 2019. At the close of the state’s
case, defense counsel moved for a Crim.R. 29 judgment of acquittal. The trial court
denied defense counsel’s motion. The defense did not call any witnesses. Defense
counsel renewed the Crim.R. 29 motion after resting, and the trial court denied the
renewed motion.
On January 16, 2019, the state filed a brief regarding “jury instructions
pertaining to accident.” Therein, the state argued that a jury instruction on accident
was not proper because the state did not bear the burden of demonstrating that
appellant acted purposefully, rather, the state had to demonstrate that appellant
acted knowingly. The state contended that an accident instruction was only
appropriate and warranted when a defendant is alleged to have engaged in
purposeful conduct.
The trial court instructed the jury on January 16, 2019. The trial court
provided jury instructions on the murder offense charged in Count 1, the felonious
assault offense charged in Count 2, including the mental state of knowingly, the
lesser-included offense on Count 1 of reckless homicide, including the mental state
of recklessly, and the defense of accident. On January 18, 2019, the jury returned its
verdict. The jury found appellant guilty on Count 1 of the lesser-included offense of
reckless homicide, a third-degree felony in violation of R.C. 2903.041(A), and guilty
of the underlying one- and three-year firearm specifications. The jury found
appellant not guilty on Count 2.
The trial court held a sentencing hearing on February 26, 2019. The
trial court sentenced appellant to a prison term of four years: three years on the
firearm specification to be served prior and consecutive to one year on the reckless
homicide conviction.
On March 22, 2019, appellant filed the instant appeal challenging the
trial court’s judgment. He assigns six errors for review:
I. Trial counsel was ineffective for failing to request a jury instruction
on negligent assault.
II. The trial court committed plain error when it failed to instruct the
jurors on the offense of negligent homicide.
III. Appellant’s conviction for reckless homicide is not supported by
sufficient evidence where the evidence only supports a finding of
negligence.
IV. Appellant’s conviction for reckless homicide is against the manifest
weight of the evidence.
V. [Appellant] was denied a fair trial when he was not permitted to
present evidence about the existence of the charge of negligent
homicide even if a jury instruction was not forthcoming.
VI. Trial counsel was ineffective for asking a question of the victim’s
widow [to which] counsel did not know the answer and that no trial
tactic would justify.
For ease of discussion, we will address appellant’s assignments of error out of order.
II. Law and Analysis
A. Sufficiency and Manifest Weight
In his third assignment of error, appellant argues that his conviction
for reckless homicide was not supported by sufficient evidence. Specifically,
appellant contends that the state failed to demonstrate the element of recklessness.
In his fourth assignment of error, appellant argues that his conviction for reckless
homicide is against the manifest weight of the evidence because the weight of the
evidence demonstrated that he committed the offense of negligent homicide, not
reckless homicide. Because these issues are closely related, we will address them
together.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
In contrast to sufficiency of the evidence, weight of the evidence
involves the inclination of the greater amount of credible evidence. State v.
Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of
the evidence is a test of adequacy as to whether the evidence is legally sufficient to
support a verdict as a matter of law, * * * weight of the evidence addresses the
evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St. 3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words,
a reviewing court asks whose evidence is more persuasive — the state’s or the
defendant’s?” Id. The reviewing court must consider all the evidence in the record,
the reasonable inferences, and the credibility of the witnesses to determine
“‘whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
Appellant was convicted of reckless homicide, a third-degree felony in
violation of R.C. 2903.041(A), which provides that “[n]o person shall recklessly
cause the death of another[.]”
The culpable mental state of “recklessness” is defined in R.C.
2901.22(C) as follows:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.
“Substantial risk” is defined in R.C. 2901.01(A)(8) as “a strong
possibility, as contrasted with a remote or significant possibility, that a certain result
may occur or that certain circumstances may exist.”
In the instant matter, appellant argues that he acted “instinctively,
impulsively, [and] without active considerations of the underlying risk.” Appellant’s
brief at 20. Appellant also contends that he did not have enough time to
contemplate and disregard a known risk. Appellant maintains that the evidence
presented at trial was indicative of negligence, not recklessness. We disagree.
As an initial matter, we note that the state’s case was based almost
entirely on circumstantial evidence, which has the same probative value as direct
evidence. See Jenks, 61 Ohio St. 3d at 272, 574 N.E.2d 492. There were no
eyewitnesses to the shooting that could testify about the specific circumstances
under which the shot was fired from appellant’s gun (i.e. whether appellant and
victim were wrestling with gun and it went off accidentally; whether the victim
jokingly lunged at appellant with his knife and appellant reacted by drawing his gun;
whether the victim had, in fact, drawn his knife and whether the blade was open,
etc.). The only individual present inside the warehouse with appellant and the
victim at the time of the shooting was Jerrold Saxton. However, his back was turned
to the victim and appellant, and as a result, he did not see the specific circumstances
under which the shot was fired. Two other witnesses, Kimberly Shaffer and Ann
Marquard, were working in the office next door to the clubhouse in which the shot
was fired. They did not see the specific circumstances under which the shot was
fired.
Saxton testified that he was friends with both appellant and the
victim. On the day of the shooting, he walked through the perspective warehouse
with appellant and the victim. As the three walked through the space to assess the
progress of the renovations, he noticed some paint that was “overspray[ed]” on a
wall. (Tr. 1038.) Saxton made a comment to appellant and the victim about his
observation. The three were joking around with one another about the overspray.
Saxton explained that the victim asked who was responsible for the overspray.
When Saxton said that he did not know who was responsible, the victim “made a
joking gesture * * * pointing at [appellant].” (Tr. 1039.)
Appellant and the victim continued to “bust each other’s balls” about
the overspray, and they both said they were doing the best they could with the
renovations. (Tr. 1042.) Saxton walked away from appellant and the victim to put
his soda down. The victim and appellant were still talking, but Saxton was not
paying attention to the specific nature of their conversation. At this point, Saxton
heard a “loud pop,” turned around, and saw the victim stumble backwards one or
two feet. (Tr. 1042.) He initially thought the victim was joking around, but then
observed blood coming from the victim’s chest. Appellant began to yell, “I didn’t
mean it. It was an accident.” (Tr. 1043.) Saxton saw a knife and a gun on the ground
near the victim.
Saxton called 911. Although he could not remember exactly what he
said to the operator, he opined at trial that he said he “needed to report a shooting,
an accident.” (Tr. 1045.) The 911 call was played at trial, and Saxton did not
mention the shooting was an accident during the recorded call.
As noted above, Saxton testified that appellant and the victim were
joking around with one another about the paint overspray. He did not hear either
appellant or the victim raise their voice. Because his back was turned to appellant
and the victim, he did not see a gun or a knife pulled when appellant and the victim
were talking about the overspray.
When Saxton spoke with first responders at the scene, he told them
that the victim was accidentally shot. Saxton explained that he did not know for
certain whether the victim was accidentally shot, but he was speculating that it was
an accident because he knows appellant and the victim, and Saxton did not have any
reason to think that the shooting was intentional. Saxton was assuming that the
shooting was an accident “because I know both of them and I know that neither one
of them have ever done anything to each other to try to harm each other.” (Tr. 1064.)
On cross-examination, Saxton testified that he had never seen
appellant and victim argue or get violent with each other. He knew the victim to
carry a “[s]pring-action” knife, commonly known as a “switchblade.” (Tr. 1085.)
This is the type of knife he saw on the ground near the victim’s body. Saxton testified
that the victim would occasionally mess around with his knife: “when [victim] would
joke around, he’d pull it out and pop it open and say, I cut you, and then he’d close
it and put it away.” (Tr. 1085.) Saxton explained that “most of us never really took
[the victim’s joking around] seriously,” and the victim never actually cut anybody.
When Saxton walked away from appellant and the victim, he could
not hear exactly what they were saying to one another as they were “pulling each
other’s chain” about the paint overspray. (Tr. 1092.) Saxton never heard the victim
pull out his knife and say he was going to cut appellant, and he never heard appellant
pull his gun out or make any reference to a gun or a knife. When Saxton turned
around after hearing the loud pop, he did not see a gun in appellant’s hand and he
did not see a knife in the victim’s hand.
Saxton testified that when Kimberly Shaffer, an employee of the
victim’s company, came running into the warehouse where the shooting took place,
he did not say that the shooting was an accident. However, Saxton confirmed that
he has told people that the shooting was an accident “[e]very chance I can get.” (Tr.
1105.)
Although it did not bother him when he saw the victim playing or
joking around with his knife in the past, Saxton testified that it would have
concerned him if he saw appellant pull out a loaded gun in a joking manner. Saxton
explained that his concern would not be that appellant would shoot the gun, but “a
loaded gun it, to me, in my eyes, is much more dangerous than a knife.” (Tr. 1114.)
Kimberly Shaffer testified that she was working for the victim’s
heating and cooling company, BTU Comfort Solutions, at the time of the shooting.
Her office was next door to the space that appellant, the victim, and Saxton were
renovating to use as a clubhouse for their motorcycle club. Shaffer testified that
when people were conversing in the clubhouse, she could not hear them. However,
when the people in the clubhouse were yelling, she was able to hear them. Shaffer
testified that she did not hear any yelling or arguing in the clubhouse before she
heard the loud noise that she later learned was a gunshot.
After hearing the loud noise and subsequent commotion, Shaffer ran
from her office into the clubhouse. She saw the victim lying on the ground, and
appellant was kneeling next to him with his hands on the victim’s chest. Shaffer
testified that there was a knife that was on the ground near appellant and the victim.
The knife was closed. Shaffer told appellant to grab the knife and cut victim’s shirt
open so they could see where the blood was coming from. Shaffer confirmed that
the knife was closed, and that appellant opened the knife.
On cross-examination, Shaffer explained that she did not notice the
knife and gun on the ground immediately when she ran from her office into the
clubhouse. She noticed the knife on the ground next to the victim when she knelt
down and began talking to him.
Shaffer testified that she did not observe anything that led her to
believe that there was a struggle or a fight between appellant and the victim. She
did not observe any injuries that appellant had sustained.
When police arrived on the scene, Shaffer told officers she thought the
shooting was an accident. (Tr. 895.) Shaffer explained that appellant and the victim
were best friends. Shaffer told several people that the victim had been accidentally
shot, including another member of the motorcycle club, Saxton’s girlfriend, and
appellant’s brother. Finally, Shaffer believed that she told Cleveland Police
Detective Kevin Fischbach (“Det. Fischbach”) that the shooting was an accident.
Ann Marquard was also an employee of the victim’s company. She
testified that when people were in the clubhouse, she could hear them when they
were talking, yelling, and using power tools. (Tr. 921.) On the day of the shooting,
she heard “yelling as far as calling [911], don’t die on me.” (Tr. 922.) She walked
from her office to the clubhouse and saw the victim laying on the floor, appellant
standing over the victim, and Shaffer applying pressure to the victim’s gunshot
wound. She did not hear any yelling or screaming coming from the clubhouse before
she heard someone yell to call 911.
The victim’s wife, Krista Van Horn (hereinafter “widow”), testified
that she came to the scene after the shooting and asked appellant what happened.
Appellant indicated to her that the shooting was an accident. (Tr. 954.) She did not
believe that she had ever said that the shooting was an accident.
Sergeant Michael Rybarczyk (“Sgt. Rybarczyk”), a 30-year veteran of
the Cleveland Police Department, was the first officer to arrive on the scene. He
heard appellant on the phone speaking to his mother and appellant said that “he
shot [the victim]; that it was an accident; they were screwing around and like they
always do; and [the victim] pulled a knife, I pulled my gun, and I accidentally shot
him.” (Tr. 700.) In addition to telling this to his mother, appellant provided the
same information about the shooting to Sgt. Rybarczyk.
On cross-examination, Sgt. Rybarczyk explained that appellant
blurted out that he shot the victim accidentally. (Tr. 777.) He authored a report
documenting appellant’s statement that he shot the victim, they were fooling around
like they always do, the victim pulled out a knife, appellant pulled out his gun, and
appellant accidentally shot the victim. (Tr. 778.)
Sgt. Rybarczyk testified that he did not observe anything apparent
indicating that a struggle had taken place. Appellant directed Sgt. Rybarczyk to his
gun that was on the ground. Sgt. Rybarczyk observed a knife on the ground next to
the gun. He could not recall whether the knife was open.
Sgt. Rybarczyk told the other officers on the scene that the shooting
appeared to be “pretty cut and dry[.]” (Tr. 781.) He explained that his “cut and dry”
statement was referring to the fact that he had identified the shooter and he was not
looking for other suspects, rather than referring to the fact that the shooting was or
was not an accident. (Tr. 782.) Finally, Sgt. Rybarczyk confirmed that when he was
on the scene, he had no opinion about whether this was an accidental or a purposeful
shooting.
Det. Fischbach testified that when he arrived on the scene with his
partner, they spoke with Sgt. Rybarczyk about what had transpired. The victim
was laying on the ground on his back, and his hands were off to his side.
Det. Fischbach observed a knife on the ground close to the victim’s head. He
described the knife as a “work knife.” (Tr. 1585.) He confirmed that the knife’s blade
was in the open position when it was observed and collected by police.
Det. Fischbach testified about appellant’s holster. He opined that
appellant had the holster for a while. He explained that the holster has “a release
snap on top where you would use to cover the top end of the handgun.” (Tr. 1591.)
The state introduced exhibit No. 25 at trial, which was a photograph of appellant’s
holster. Appellant’s holster connected to his pants belt, and the holster was worn
underneath appellant’s brown jacket. (Tr. 1593.)
On cross-examination, Det. Fischbach acknowledged that the body
camera footage captured by Sgt. Rybarczyk shows appellant saying that he and the
victim were screwing around, and that the shooting was an accident. During an
interview of Saxton, Det. Fischbach learned that the victim would often play with his
knife. Det. Fischbach opined that “playful” was not the proper term to describe the
conduct of 50-year-old adults in relation to a murder. He felt that “joking” was more
appropriate to describe the conduct of adults than “playful.”
Det. Fischbach testified that he did not learn anything more about
why this homicide occurred, such as a potential motive, after conducting his
investigation. Det. Fischbach confirmed that when he conducts an investigation, he
presents the facts to the prosecutor and the prosecutor determines what charges to
pursue.
Finally, Det. Fischbach explained that appellant did not assert to him
that the shooting was an accident. Even if appellant had, Det. Fischbach’s inquiry
in this case and in other investigations would not stop merely because someone says
it was an accident.
Roger Polk, an Ohio CCW instructor and United States Marine Corps.
Veteran, testified that appellant completed his CCW course in 2013. Polk explained
that basic military firearms training involves rifles, not handguns. (Tr. 1223.) Basic
training consists of 13 weeks, two of which are spent on the shooting range.
(Tr. 1234.)
In the military, there are basic “principles and fundamentals” of
firearm safety. (Tr. 1230.) These safety principles and fundamentals are
“constantly” drilled into your head during basic training. (Tr. 1231.) Polk described
the principles and fundamentals: “you keep the muzzle pointed in a safe direction;
you keep your finger off the trigger until you’re ready to shoot; and you don’t load it
until you’re instructed to load the gun.” (Tr. 1230-1231.) Polk testified that these
three principles and fundamentals of gun safety apply regardless of what branch of
the military a person serves.
Polk emphasizes the same principles of gun safety in his CCW course:
(1) the gun should be unloaded if you are not using it, (2) always keep the gun
pointed in a safe direction, and (3) keep your finger off the trigger. (Tr. 1187-1190.)
Polk opined that an accidental discharge of a firearm typically results when a person
has their finger on the trigger before they are ready to shoot. (Tr. 1224.)
Polk’s testimony demonstrates that appellant would have been taught
the three principles and fundamentals of gun safety — both in his military basic
training and during Polk’s CCW course.
James Kooser, a firearms examiner with the Cuyahoga County
Regional Forensic Science Laboratory, testified that appellant’s gun was a Ruger
SR9c, 9 mm. He performed a trigger pull test and found that it had a trigger pull of
“five and three quarters to six pounds.” (Tr. 1260.) Kooser explained that trigger
pull is the amount of pressure it takes on the trigger to have the gun fire.
Kooser confirmed that appellant’s firearm was operable and
functioned normally. Kooser did not find any malfunctions or anything wrong with
appellant’s gun during his examination.
Cleveland Police Sergeant Michael Quinn (“Sgt. Quinn”), assigned to
the Homicide Unit, testified that Sgt. Rybarczyk told him that appellant said the
victim was his friend, they were fooling around, the victim had a knife, appellant had
a gun, and appellant shot him. Sgt. Quinn explained that the victim’s wife was
confused about what had transpired and wanted to speak with appellant. Sgt. Quinn
did not remember the exact conversation between appellant and the victim’s wife,
but appellant put his head down and apologized.
Sgt. Quinn testified that when he learns that something may have been
an accident, he has an obligation to conduct an investigation with an open mind to
see where it takes him. (Tr. 1468.)
On cross-examination, Sgt. Quinn acknowledged that the synopsis in
his report did not indicate appellant stated the shooting was an accident, nor does
the report contain the word “accident.” After watching the body camera footage
obtained by Sgt. Rybarczyk, however, Sgt. Quinn confirmed that Sgt. Rybarczyk told
him appellant stated this was an accident and that him and the victim were fooling
around.
Curtis Jones, from the Cuyahoga County Medical Examiner’s Trace
Evidence Unit, testified at trial that he performed a chemical trace metal detection
test on the hands of the victim. Jones did not observe a reaction on the hands of the
victim after performing this test. If a person handles exposed metal on an object,
such as the handle of a gun or a knife, or a metal pipe, they may have a positive
reaction on the trace metal detection test.
On cross-examination, Jones acknowledged that a negative test result
on the trace metal detection test does not conclusively establish that the person did
not touch or handle a metal object. (Tr. 1302.) Jones received information that the
victim had potentially been in possession of a knife, but there was no indication
whether the knife’s handle was metal.
Jones also performed gunshot residue testing in this case. He
performed a chemical Griess test on the victim’s sweatshirt that tests for gunpowder.
This test indicated that the distance from the muzzle of appellant’s gun to the victim
was “intermediate,” anywhere from one to three or four feet. (Tr. 1295.) Jones
explained that the distance between the gun and the victim would not have been
significantly less than one foot, otherwise there would have been the presence of
“fouling,” another type of gunshot residue.
Dr. Thomas Gilson, Cuyahoga County’s Medical Examiner, testified
that appellant’s gun was fired from an intermediate range, somewhere between 7
inches and 1.5 feet (18 inches).
In support of his argument that the state failed to establish that he
acted recklessly, appellant directs this court to State v. Peck, 172 Ohio App. 3d 25,
2007-Ohio-2730, 872 N.E.2d 1263 (10th Dist.), in which the Tenth Appellate
District expounded on the definition of recklessness in determining the sufficiency
of the evidence. In Peck, the defendant-appellant, a tow-truck driver, used a “snatch
block,” a large pulley with a hook attached, to pull a tractor trailer out of a median
and tow the tractor. The pulley that Peck used to pull and tow the tractor trailer was
not sufficiently rated to pull the tractor trailer’s weight. The pulley broke, catapulted
into a passing car, and the driver of a passing car was killed as a result of the incident.
Peck was subsequently convicted of reckless homicide. Id. at ¶ 5.
On appeal, the Tenth District reversed Peck’s conviction for reckless
homicide, concluding that the evidence did not establish that he knew the risk
associated with his conduct because he was not aware that the equipment, the
pulley, was not sufficiently rated to tow the tractor trailer. The appellate court held
that “[a] mere failure to perceive or avoid a risk, because of a lack of due care, does
not constitute reckless conduct.” Id. at ¶ 12. In order to be convicted of recklessness,
“one must recognize the risk of the conduct and proceed with a perverse disregard
for that risk.” Id. The court explained:
In contrast to the actor who proceeds with knowledge of a risk, the
failure of a person to perceive or avoid a risk that his conduct may cause
a certain result or may be of a certain nature is negligence. R.C.
2901.22(D). Recklessness requires more than ordinary negligent
conduct. The difference between the terms “recklessly” and
“negligently” is normally one of a kind, rather than of a degree. “Each
actor creates a risk of harm. The reckless actor is aware of the risk and
disregards it; the negligent actor is not aware of the risk but should have
been aware of it.” Wharton’s Criminal Law, 15th Ed., Section 27, at 170
(emphasis sic); see, also, State v. Wall (S.D. 1992), 481 N.W.2d 259,
262.
Id. at ¶ 13.
After reviewing the record, we find appellant’s reliance on Peck to be
misplaced. The evidence presented at trial demonstrates that appellant had his
finger on or near the trigger of the loaded gun that he drew from his holster and
pointed at or in the vicinity of the victim who was standing less than two feet away.
Appellant does not argue that he thought the gun was unloaded, that he dropped the
gun and it accidentally fired, or that he and the victim wrestled for the gun during
which it fired. He summarily argues that while he may have been negligent and
careless, he was not reckless.
The evidence in this case shows that appellant was aware of the risk of
pointing a loaded gun at a target and having his finger on the trigger of the gun.
These firearm safety principles and fundamentals were taught to appellant during
his basic training in the military and Polk’s CCW course. By removing his loaded gun
from his holster, pointing his loaded gun at or in the vicinity of the victim, and
placing his finger on the trigger of his loaded gun that was pointed at or in the
vicinity of the victim, appellant disregarded all three of the principles and
fundamentals of firearm safety.
The facts of this case are more like the facts presented in State v.
Gough, 5th Dist. Licking No. 08-CA-55, 2009-Ohio-322. In Gough, the defendant-
appellant shot the victim in the head while playing with the victim’s gun during a
party at which appellant was drinking. The victim died of a gunshot wound to the
head, and Gough was convicted of reckless homicide. Id. at ¶ 6, 11. The victim’s gun
was initially loaded, then it was unloaded by the owner, who loaded a bullet back
into the gun after showing it to one of the party guests. Id. at ¶ 4.
On appeal, Gough argued that his reckless homicide conviction was
not supported by sufficient evidence because there was no evidence that he knew the
gun had been reloaded and, as a result, the state did not demonstrate that he acted
recklessly. The Fifth District rejected Gough’s argument and affirmed his
conviction, concluding that Gough knew the risks created by his conduct because
the gun owner usually kept the gun loaded, the gun had been loaded earlier in the
evening, and Gough had previous experience with firearms. Id. at ¶ 21-23.
In the instant matter, in reviewing the evidence in a light most
favorable to the prosecution, as we must, we find the state presented sufficient
evidence to find that appellant was aware of the risk when he drew his loaded gun,
pointed it at or in the vicinity of the victim, and either had his finger on the trigger
or failed to protect the trigger. Having completed basic training in the military,
serving in the military, and completing Polk’s CCW course, appellant had previous
experience with firearms. Appellant’s gun was loaded. There is no evidence that
anyone other than appellant had possession and control of the gun on the day of the
shooting.
The evidence presented at trial demonstrated that appellant knew the
risk created by his conduct. Appellant’s act of drawing his loaded gun and pointing
it at or in the vicinity of the victim who was standing less than two feet away, and
placing his finger on the trigger of the gun that required minimal force to discharge
demonstrated a perverse disregard of a known risk that the victim would be shot
and killed.
In State v. Martin, 10th Dist. Franklin No. 07AP-362, 2007-Ohio-
7152, the defendant was convicted of reckless homicide after his girlfriend was
fatally shot. The defendant alleged that the victim’s gun discharged when he tried
to take it away from her. Id. at ¶ 37. On appeal, the Tenth District held that the
defendant’s reckless homicide conviction was supported by sufficient evidence
where the defendant admitted that the gun had been in his hand when it discharged,
and the state’s evidence established that the shooting occurred while defendant and
the victim were very close to one another and the state’s firearms examiner testified
that the only way that the gun could be fired is to apply pressure to the trigger. Id.
at ¶ 63.
In the instant matter, as noted above, the evidence established that
the shooting occurred while appellant and the victim were less than two feet away
from one another. There is no evidence that appellant and the victim struggled for
the gun or that the gun was in the possession of anyone other than appellant. There
is also no evidence that something other than appellant’s finger caused the gun to
discharge (i.e., dropping the gun and the gun firing upon hitting the floor, or
bumping into an obstacle that came into contact with the trigger causing the gun to
go off). The jury could have reasonably inferred that appellant drew his loaded
weapon from his holster, pointed it at or in the vicinity of the victim, and had his
finger on the trigger in a manner that applied enough pressure for the gun to
discharge.
Even if appellant did not have his finger on the trigger, the state’s
evidence sufficiently established that by pointing a loaded weapon at or in the
vicinity of the victim who was standing less than two feet away, appellant perversely
disregarded a known risk that his conduct was likely to cause harm. The Supreme
Court of Ohio has recognized that “a firearm is an inherently dangerous
instrumentality, the use of which is reasonably likely to produce death” when fired
at an individual. State v. Widner, 69 Ohio St. 2d 267, 270, 431 N.E.2d 1025 (1982).
While appellant may not have intended to apply enough pressure to
the trigger to fire a round from the gun, appellant’s actions undoubtedly created a
risk of harm to the victim, who was standing less than two feet away, and appellant
perversely disregarded that risk by drawing his loaded gun from his holster, pointing
it at or in the vicinity of the victim who was less than two feet away, and placing his
finger on the trigger. See State v. G.G., 10th Dist. Franklin No. 12AP-188, 2012-
Ohio-5902, ¶ 14 (“A known risk of handling and manipulating a gun while standing
in very close proximity to a child and while pointing it in the direction of that child,
without checking the chamber to see if a bullet is still in the firearm, is that the
firearm will discharge in the direction of the child, and the bullet will narrowly miss
that child.”).
In State v. Erby, 2d Dist. Montgomery No. 27799, 2018-Ohio-3695,
the Second District explained that “a defendant may be guilty of reckless homicide
for an unintentional shooting if the evidence supports a finding that he handled a
firearm in a reckless manner, resulting in another person’s death.” (Emphasis
added.) Id. at ¶ 20, citing State v. English, 10th Dist. Franklin No. 13AP-88, 2014-
Ohio-89, ¶ 13, and State v. Howse, 2012-Ohio-6106, 985 N.E.2d 246, ¶ 30-31 (9th
Dist.). In Howse, the appellate court affirmed defendant’s reckless homicide
conviction where the defendant “cocked a loaded handgun and pointed it at” the
victim, but did not intend to shoot the victim. Id. at ¶ 31. The evidence showed that
the defendant “was aware of the risks posed by firearms,” and despite this
awareness, “acted with heedless indifference to the consequences” of his own
handling of a loaded weapon that discharged. Id. at ¶ 30-31.
In the instant matter, given the evidence presented by the state at trial,
the jury had a reasonable basis for finding that appellant acted recklessly by
removing his loaded gun from his holster and pointing it at or in the vicinity of the
victim who was less than two feet away from him. There is no evidence in the record
indicating that appellant did not know the gun was loaded or that something other
than appellant’s finger caused the gun to discharge. Nevertheless, because
appellant’s gun discharged, the jury could have reasonably inferred that appellant’s
finger came into contact with the trigger, and applied enough force to cause the gun
to discharge. Because appellant was a veteran and a CCW permit holder, the jury
could have reasonably determined that appellant was aware of the risks posed by
firearms, yet acted with heedless indifference to these consequences when he drew
the loaded weapon and pointed it at or around the victim in the clubhouse.
There is no evidence in the record that the bullet ricocheted off of
anything before striking the victim. Therefore, the jury could have reasonably
inferred that appellant pointed his loaded weapon directly at the victim.
Kooser testified at trial that the amount of force required to discharge
appellant’s gun was 5.75 to 6 pounds. (Tr. 1260.) Polk opined that the force needed
to discharge striker fire pistols, such as appellant’s Ruger SR9c handgun, is “[m]uch,
much lighter, dangerously so” than other handguns. (Tr. 1212.) To the extent that
appellant argues that the minimal amount of force required to fire his gun supports
a finding that he did not act recklessly, we disagree. Unlike Gough and Martin, the
gun that fired the shot in this case belonged to appellant. Appellant did not pick up
a gun with which he was not familiar. Therefore, the jury could have reasonably
inferred that appellant knew that a minimal amount of force was needed to pull the
trigger and fire the weapon, and, therefore, it was reckless for appellant to have his
finger on or around the trigger while he was “joking around” with the victim.
Saxton appreciated the difference between joking around with a knife
and joking around with a loaded gun. Although it did not bother him when he saw
the victim playing or joking around with his knife in the past, Saxton testified that it
would have concerned him if he saw appellant pull out a loaded gun in a joking
manner. Saxton explained that his concern would not be that appellant would shoot
the gun, but “a loaded gun is, to me, in my eyes, is much more dangerous than a
knife.” (Tr. 1114.) Saxton is not a veteran. Therefore, he did not complete the
military basic firearms training during which the three principles and fundamentals
of gun safety are emphasized. Nevertheless, Saxton’s testimony indicates that with
less training than appellant, Saxton is still cognizant of the inherent danger posed
by firearms.
The aforementioned circumstantial evidence demonstrates that
appellant drew his loaded weapon from his holster, pointed it at the victim who was
standing less than two feet away from him, and placed his finger on or near the
trigger. Appellant’s finger applied enough force to the trigger causing the gun to
discharge. The state’s evidence, if believed, supports a finding that appellant
handled his firearm in a reckless manner, and appellant’s reckless conduct resulted
in the victim’s death. Therefore, although appellant and the victim may have been
“joking around,” and the shooting may have been unintentional, the evidence
supports the jury’s verdict.
For all of the foregoing reasons, appellant’s reckless homicide
conviction is supported by sufficient evidence. Appellant’s third assignment of error
is overruled.
Similarly, we find no basis upon which to conclude that appellant’s
reckless homicide conviction is against the manifest weight of the evidence. As an
initial matter, to the extent that appellant argues that his conviction is against the
manifest weight of the evidence because the evidence demonstrates that he
committed the offense of negligent homicide rather than reckless homicide,
appellant did not present this argument or proceed on this theory below. Rather,
appellant defended against the charges on the theory that the shooting was
accidental. Generally, a party cannot raise an argument for the first time on appeal
that was not raised below. See State v. Wintermeyer, Slip Opinion No. 2019-Ohio-
5156, ¶ 10.
Appellant’s manifest weight challenge is based on his argument that
the jury erred by believing the state’s version that appellant recklessly caused the
death of the victim, rather than appellant’s theory that appellant and the victim were
joking around with one another, the shooting was accidental, and appellant did not
act recklessly. As noted above, the evidence presented at trial supports the
conclusion that appellant recklessly caused the death of the victim.
Appellant’s reckless homicide conviction is not against the manifest
weight of the evidence merely because the jury rejected the defense’s theory that the
shooting was an accident and found the state’s version of the events to be more
believable. “‘[A] conviction is not against the manifest weight of the evidence simply
because the jury rejected the defendant’s version of the facts and believed the
testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga No. 101773,
2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-
Ohio-2959, ¶ 2. The jury did not lose its way in resolving the conflicting theories
based on the evidence presented at trial.
For all of the foregoing reasons, we are unable to determine that the
jury clearly lost its way in finding appellant guilty of reckless homicide. Appellant’s
conviction is not against the manifest weight of the evidence. Appellant’s fourth
assignment of error is overruled.
B. Negligent Homicide Instruction
In his second assignment of error, appellant argues that the trial court
committed plain error in failing to provide a negligent homicide instruction to the
jury.
Because appellant did not object to the trial court’s jury instructions,
we review for plain error. See State v. Erker, 8th Dist. Cuyahoga No. 107790, 2019-
Ohio-3185, ¶ 147, citing State v. Ruppart, 187 Ohio App. 3d 192, 2010-Ohio-1574,
931 N.E.2d 627, ¶ 8 (8th Dist.). In order to demonstrate plain error, appellant must
show that but for the error pertaining to the jury instructions, the outcome at trial
would have been different. Ruppart at id.
The giving of jury instructions is within the sound discretion of the
trial court, and this court reviews the trial court’s decision for an abuse of discretion.
State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 42, citing State
v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, and State v.
Martens, 90 Ohio App. 3d 338, 629 N.E.2d 462 (3d Dist.1993).
The question of whether a particular offense should be submitted to the
finder of fact as a lesser included offense involves a two-tiered analysis.
State v. Evans, 122 Ohio St. 3d 381, 2009-Ohio-2974, 911 N.E.2d 889,
¶ 13. “The first tier, also called the ‘statutory-elements step,’ is a purely
legal question, wherein we determine whether one offense is generally
a lesser included offense of the charged offense.” State v. Deanda, 136
Ohio St. 3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6, citing State v.
Kidder, 32 Ohio St. 3d 279, 281, 513 N.E.2d 311 (1987). The second tier
looks to the evidence in a particular case and determines whether “‘a
jury could reasonably find the defendant not guilty of the charged
offense, but could convict the defendant of the lesser included offense.’”
Evans at ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St. 3d 329, 2007-
Ohio-2072, 865 N.E.2d 859, [] ¶ 11. “Only in the second tier of the
analysis do the facts of a particular case become relevant.” Deanda at
¶ 6.
In determining whether an offense is a lesser included offense of
another, a court shall consider whether (1) “one offense carries a
greater penalty than the other,” (2) “some element of the greater
offense is not required to prove commission of the lesser offense,” and
(3) “the greater offense as statutorily defined cannot be committed
without the lesser offense as statutorily defined also being committed.”
Evans at paragraph two of the syllabus, clarifying State v. Deem, 40
Ohio St. 3d 205, 533 N.E.2d 294 (1988).
After it has been determined that the offense is a lesser included
offense, the second tier mandates that courts look to the evidence in a
particular case and determine whether “‘a jury could reasonably find
the defendant not guilty of the charged offense, but could convict the
defendant of the lesser included offense.’” Deanda at ¶ 6, quoting
Evans at ¶ 13. See also State v. Thomas, 40 Ohio St. 3d 213, 216, 533
N.E.2d 286 (1988).
State v. Becker, 8th Dist. Cuyahoga No. 100524, 2014-Ohio-4565, ¶ 68-70.
In the instant matter, appellant argues that the jury should have been
instructed on the offense of negligent homicide, a first-degree misdemeanor in
violation of R.C. 2903.05(A). R.C. 2903.05(A) provides that “[n]o person shall
negligently cause the death of another * * * by means of a deadly weapon or
dangerous ordnance as defined in section 2923.11 of the Revised Code.”
Appellant acknowledges that negligent homicide is “not always a
lesser-included offense of reckless homicide.” Appellant’s brief at 16. Nevertheless,
appellant argues that negligent homicide must be a lesser-included offense based on
the facts of this case: “[a]nalyzing the mens rea of each offense it is obvious that
negligent homicide must be a lesser included offense of felony murder and reckless
homicide as the trial court instructed the jury in this case.” Appellant’s brief at 16.
Appellant argues that the Ohio Supreme Court’s holding in State v.
Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2961, 911 N.E.2d 242, should be extended
to the offense of negligent homicide. In Trimble, the Ohio Supreme Court applied
the three-part Deem test and concluded that reckless homicide is a lesser-included
offense of aggravated felony murder:
The first prong of the Deem test is met because reckless homicide is a
felony of the third degree, which carries a lesser penalty than felony
murder. The second prong is met because a defendant cannot cause
the death of a person under R.C. 2903.01(B) without also causing the
death of that person under R.C. 2903.041. In purposely causing the
death of another, one has to first become reckless in causing the death
of another. Finally, the third prong is met because committing reckless
homicide does not require the “committing or attempting to commit”
another felony. R.C. 2903.01(B).
District courts of appeals have also held that reckless homicide is a
lesser included offense of felony murder. See State v. Anderson, [12th
Dist. Butler No. CA2005-06-156, 2006-Ohio-2714, ¶ 9] (reckless
homicide as a lesser included offense of aggravated felony murder
charged under R.C. 2903.01(B)); State v. Alston, [9th Dist. Lorain No.
05CA008769, 2006-Ohio-4152, ¶ 48] (reckless homicide as a lesser
included offense of felony murder charged under R.C. 2903.02(B)).
Trimble at ¶ 190-191.
In the instant matter, appellant argues that the Trimble rationale
should be extended to the facts of this case. In Trimble, the Ohio Supreme Court
explained that one cannot knowingly cause the victim’s death as a proximate result
of committing felonious assault without first becoming reckless in causing the death
of another. In other words, in knowingly committing felonious assault which
proximately causes the death of another, the defendant has to first become reckless
in causing the death of another.
Here, in arguing for an extension of Trimble, appellant appears to
argue that one cannot knowingly or recklessly cause the victim’s death without first
becoming negligent in causing the victim’s death. In other words, appellant
contends that in knowingly committing felonious assault which proximately causes
the death of another, or in recklessly causing the death of another, the defendant has
to first become negligent in causing the death of another.
Appellant points to no case law supporting his argument that
negligent homicide is a lesser-included offense of either felony murder or reckless
homicide or that the Trimble rationale should be extended to the offense of negligent
homicide. In fact, appellant acknowledges that many of the cases from this court
have held that negligent homicide is not a lesser-included offense of murder or
reckless homicide. He contends, however, that these cases and the other cases from
appellate districts in this state are “wrongly decided in relationship to the unique
facts of this case.” Appellant’s brief at 16.
In State v. Jones, 8th Dist. Cuyahoga No. 80737, 2002-Ohio-6045,
the defendant-appellant was charged with murder in violation of R.C. 2903.02(B).
On appeal, Jones argued that the trial court erred in failing to provide jury
instructions on the offenses of reckless homicide and negligent homicide, which
defense counsel had requested. Id. at ¶ 84.
This court applied the three-part Deem test and held that the trial
court did not err in failing to provide a negligent homicide instruction to the jury:
In accordance with the definition set forth in Deem, negligent homicide
is not a lesser included offense of murder proscribed in R.C.
2903.02(B). This is because this greater offense can be committed
without the lesser offense, negligent homicide, also being committed.
Accord State v. Ford[, 5th Dist. Stark No. 1999CA00177, 2000 Ohio
App. LEXIS 3195 (July 10, 2000)] (negligent homicide is not a lesser
included offense of murder as defined in R.C. 2903.02(B) because one
can cause the death of another as a proximate result of committing or
attempting to commit the proscribed felony by means other than by a
deadly weapon or dangerous ordnance.)
(Emphasis added.) Jones at ¶ 93.
On the other hand, this court held that reckless homicide is a lesser-
included offense of murder:
Regarding reckless homicide, we recognize it to be a lesser included
offense. Here, an element of this murder statute, namely, commission
of an underlying first or second degree felony, is not required to prove
reckless homicide. However, we conclude an instruction on this lesser
offense is nonetheless not warranted, because the jury could not have
reasonably concluded that the evidence presented in this case supports
a conviction for reckless homicide but not murder under R.C.
2903.02(B). See Kidder, [32 Ohio St. 3d 279, 513 N.E.2d 311].
Jones at ¶ 94.
In addition to this court’s holding in Jones, the Supreme Court of Ohio
has explicitly stated that “[n]egligent homicide is not a lesser included offense of
murder.” State v. Koss, 49 Ohio St. 3d 213, 551 N.E.2d 970 (1990), paragraph four
of the syllabus. We decline to depart from this established precedent.
After reviewing the record, we find no basis upon which to conclude
that the trial court committed plain error in instructing the jury. Appellant was
charged with murder and the trial court properly instructed the jury that the state
had the burden of proving beyond a reasonable doubt every element of the offense,
including the “purposely” mens rea.
The trial court properly instructed the jury that if they did not find that
the state met its burden on the elements of murder, it could then consider whether
the state proved every element of the offense of reckless homicide, including the
“recklessly” mens rea. The trial court also agreed to provide a jury instruction on
the defense of accident, over the state’s objection. (Tr. 1710.) These instructions
could easily allow the jury to understand that recklessness goes beyond what is
considered to be an accident.
For all of the foregoing reasons, we are unable to conclude that the
trial court committed plain error by failing to provide a negligent homicide jury
instruction. The offense of negligent homicide was not charged in the indictment,
and is not a lesser-included offense of either murder or reckless homicide.
Appellant’s second assignment of error is overruled.
C. Fair Trial
In his fifth assignment of error, appellant argues that he was “denied
a fair trial when he was not permitted to present evidence about the existence of the
charge of negligent homicide even if a jury instruction was not forthcoming.”
Citing to a single question during cross-examination of Det.
Fischbach, appellant asserts that defense counsel “sought to educate the jurors
about the offense of negligent homicide[.]” Appellant’s brief at 29. Defense counsel
asked Det. Fischbach whether he “pitched [the incident] to the prosecutors as a
negligent homicide[.]” (Tr. 1645.)
Initially, the record reflects that the trial court sustained the state’s
objection to this question. Furthermore, when this single question is read in context
with the other testimony presented at trial, it is evident that defense counsel was not
trying to “educate” the jury about the offense of negligent homicide. Rather, defense
counsel was trying to elicit testimony that supported the defense’s theory that
although this was an accidental shooting, the police and prosecutors rushed to
judgment by arresting appellant and charging him with murder.
There is no evidence in the record that appellant attempted to
present evidence pertaining to the offense of negligent homicide, but was prohibited
from doing so. Rather, the record reflects that appellant presented evidence about
the defense’s theory that the shooting was an accident. As noted above, a party is
generally prohibited from raising an argument for the first time on appeal that was
not raised below. See Wintermeyer, Slip Opinion No. 2019-Ohio-5156, at ¶ 10.
Finally, as noted above, had defense counsel presented evidence
pertaining to the offense negligent homicide, this evidence would have been
inconsistent with the defense’s theory that the shooting was accidental. See
Samuels, 8th Dist. Cuyahoga No. 52527, 1987 Ohio App. LEXIS 8852; Poole, 33
Ohio St. 2d 18, 294 N.E.2d 888.
For all of these reasons, we find no basis upon which to conclude that
appellant was denied a fair trial. Appellant’s fifth assignment of error is overruled
D. Ineffective Assistance of Counsel
In his first and sixth assignments of error, appellant argues that he
was denied his constitutional right to the effective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate: (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) counsel’s errors prejudiced the defendant, i.e., a reasonable probability that but
for counsel’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraphs
two and three of the syllabus.
1. Negligent Homicide Instruction
In his first assignment of error, appellant argues that counsel
provided ineffective assistance by failing to request a jury instruction on the offense
of negligent homicide. Appellant concedes that “trial counsel initially sought a jury
instruction for negligent homicide.” Appellant’s brief at 16-17. However, after an
off-the-record discussion between defense counsel, the prosecution, and the trial
court, defense counsel withdrew his request for a negligent homicide instruction
based on the discussion and his apparent belief that he could either request an
instruction on accident or negligent homicide — not both. (Tr. 1712.) Appellant
argues that counsel’s determination that he could only have one instruction or the
other, not both, was wrong, and as a result, his performance was deficient.
As an initial matter, appellant fails to identify any authority in
support of his assertion that counsel erroneously believed that he could not have an
instruction on accident and the offense of negligent homicide. As noted above, the
defense of accident is totally inconsistent with a jury instruction on negligent
homicide. See Samuels; Poole; see also State v. Gay, 11th Dist. Portage No. 88-P-
2043, 1990 Ohio App. LEXIS 4806, 9-10 (Nov. 2, 1990), citing State v. Hill, 31 Ohio
App.3d 65, 508 N.E.2d 1038 (1st Dist.1987). (“[N]o instruction on negligent
homicide is required when the theory of the defense is predicated on an accident.”)
In Hill, the First District explained that because the defendant argued from the
outset that the shooting was accidental, a jury instruction on negligent homicide
would not be appropriate. Id. at 67.
In the instant matter, the record reflects that after reviewing all of
the evidence and the testimony presented at trial, defense counsel made the
strategic, tactical decision to pursue the theory of accident to reduce appellant’s
criminal culpability rather than pursuing the theory of negligent homicide. See
State v. Taylor, 5th Dist. Richland No. 2005-CA-0112, 2006-Ohio-4064, ¶ 41. The
decision about which defense or theory to pursue at trial is a matter of trial strategy
“within the exclusive province of defense counsel to make after consultation with his
[or her] client.” State v. Murphy, 91 Ohio St. 3d 516, 524, 747 N.E.2d 765 (2001).
A defendant is not denied the constitutional right to effective
assistance of counsel if counsel makes the strategic decision to not pursue every
possible trial strategy. State v. Brown, 38 Ohio St. 3d 305, 319, 528 N.E.2d 523
(1988). Absent a showing that counsel failed to research the facts or the law, or that
counsel disregarded a crucial defense, this court defers to counsel’s judgment. State
v. Clayton, 62 Ohio St. 2d 45, 49, 402 N.E.2d 1189 (1980), citing People v. Miller, 7
Cal. 3d 562, 573-574, 102 Cal. Rptr. 841, 498 P.2d 1089 (1972).
In this case, the record reflects that defense counsel considered the
theory of negligent homicide and raised the issue of a negligence instruction.
However, defense counsel ultimately decided to pursue the theory of accident rather
than the theory that appellant acted negligently.
The Ohio Supreme Court has explained that reviewing courts “will
ordinarily refrain from second-guessing strategic decisions counsel make at trial,
even where counsel’s trial strategy was questionable.” State v. Myers, 97 Ohio St. 3d
335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 152; see also State v. Conway, 109 Ohio
St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (“[D]ebatable trial tactics do not
constitute ineffective assistance of trial counsel.”). The Ohio Supreme Court has
declined to second-guess a strategic decision made by trial counsel even when
appellate counsel argues that he or she would have defensed against the charges
differently. State v. Post, 32 Ohio St. 3d 380, 388, 513 N.E.2d 754 (1987); State v.
Mason, 82 Ohio St. 3d 144, 169, 694 N.E.2d 932 (1998).
After reviewing the record, we decline to second-guess trial counsel’s
strategical and tactical decision to pursue the defense of accident rather than the
theory that appellant committed the offense of negligent homicide. For all of the
foregoing reasons, appellant’s ineffective assistance claim fails in this regard.
Appellant’s first assignment of error is overruled.
2. Widow
In his sixth assignment of error, appellant argues that counsel’s
performance was deficient during pretrial proceedings because counsel failed to
conduct a reasonable investigation and failed to interview the widow before trial.
Furthermore, appellant argues that counsel’s performance during trial was deficient
because counsel asked the widow a question during trial to which counsel did not
know the answer, and in doing so, elicited testimony at trial that “directly
contradicted [the] theory of defense.” Appellant’s brief at 32. As noted above, the
defense’s theory of the case was that appellant’s gun discharged accidentally.
Defense counsel asked the widow whether she had a hair
appointment on the day of or shortly after the shooting. The state objected, and the
trial court called the parties to sidebar. During sidebar, the state argued that the
testimony was irrelevant. In response, defense counsel explained, “[w]ell, the
relevance is [the widow said she] had a hair appointment that day and she cancelled
it and said her husband was accidentally shot and I want to see if she actually said
that.” (Tr. 969.) The prosecutor asked defense counsel who the widow made the
statement to, and defense counsel asserted that he wanted to find that out. “[The
widow] had a hair appointment and it became recent knowledge to me that she
cancelled it. She called and said, [m]y husband was accidentally shot. I want to see
if she said — I meant to see if it comes from her mouth.” (Tr. 969.)
On the day of the shooting, the widow asked appellant what had
happened. Appellant asserted that the shooting was an accident. This testimony
was elicited by the state. Defense counsel sought to ask the widow whether she
believed appellant.
The trial court explained that whether or not to believe appellant’s
assertion is for the jury, not for the widow to testify about. The court asked the
defense attorneys whether they knew the answer to the question (did the widow
believe appellant’s assertion that the shooting was an accident?). Both attorneys
confirmed that they did not. (Tr. 973.)
Following the sidebar, the following exchange took place between
defense counsel and the widow:
[Defense Counsel]: Okay. Have you ever told anybody that this was an
accident?
***
[Defense Counsel]: I said, Your Honor, has [widow] ever relayed to
anybody that this was an accident.
[Widow]: Have I ever said that it was an accident? I don’t believe so.
(Tr. 975-976.)
After reviewing the record, we find that appellant’s ineffective
assistance claim regarding defense counsel’s question to the widow fails under the
second Strickland prong. Assuming, arguendo, that counsel’s failure to interview
the widow and the question with which appellant takes issue constitutes deficient
performance, appellant cannot demonstrate a reasonable probability that but for
counsel’s question, the result at trial would have been different. Even if the widow
had testified that she had, in fact, communicated to people after the shooting that
the victim was shot accidentally, this does not constitute a reasonable probability
that the outcome at trial would have been different. Finally, the record reflects that
counsel had recently learned about the widow’s purported statement — asserting
that her husband had been accidentally shot in cancelling her hair appointment.
Although counsel did not know the answer to the question with which appellant
takes issue, counsel made a strategical, tactical decision to ask the question, which
could have supported the defense’s theory of an accidental shooting.
Finally, we note that this was a jury trial that spanned eight days
during which 16 different witnesses testified. We decline to second guess counsel’s
strategic decision to ask the single question with which appellant takes issues. An
affirmative answer to the question would have supported the defense’s theory that
the shooting was accidental, and a negative answer to the question was of little to no
consequence in determining whether appellant recklessly caused the death of the
victim.
Because appellant has failed to demonstrate prejudice or a
reasonable probability that the outcome at trial would have been different but for
defense counsel’s question, appellant’s ineffective assistance claim fails in this
regard. Appellant’s sixth assignment of error is overruled.
III. Conclusion
After thoroughly reviewing the record, we overrule appellant’s
assignments of error and affirm the trial court’s judgment. Appellant’s conviction
for reckless homicide was supported by sufficient evidence and is not against the
manifest weight of the evidence. The trial court did not commit plain error in failing
to provide a negligent homicide instruction to the jury, and appellant was not denied
his right to a fair trial. Appellant was not denied his constitutional right to the
effective assistance of counsel.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR