State v. Morefield , 2015 Ohio 448 ( 2015 )

[Cite as State v. Morefield, 2015-Ohio-448.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 26155
Plaintiff-Appellee :
: Trial Court Case No. 2013-CRB-1386
v. :
: (Criminal Appeal from Montgomery
ANDREW T. MOREFIELD : Municipal Court—Eastern Division)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 6th day of February, 2015.
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ROBERT B. COUGHLIN, Atty. Reg. No. 0003449, 6111 Taylorsville Road, Huber
Heights, Ohio 45424
Attorney for Plaintiff-Appellee
CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek,
Ohio 45432
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Andrew Morefield appeals from his conviction and
sentence for Aggravated Menacing, following a jury trial. Morefield contends that his
conviction is not supported by sufficient evidence, that his conviction is against the
manifest weight of the evidence, and that the trial court erred by denying his request for
jury instructions on the affirmative defenses of self-defense and the defense of another.
{¶ 2} We conclude that Morefield’s conviction for Aggravated Menacing is
supported by sufficient evidence in the record, and is not against the manifest weight of
the evidence. We further conclude that the trial court did not err in denying Morefield’s
request for jury instructions on the affirmative defenses of self-defense and the defense of
another, because Morefield did not admit to having committed the charged offense.
Accordingly, the judgment of the trial court is Affirmed.
I. The Confrontation
{¶ 3} The confrontation resulting in Morefield’s conviction began when two
teen-aged boys, “Jr.”, age 14, and his friend, “D.”, also age 14, were walking on Longford
Avenue around 4:30 in the afternoon of September 17, 2013. When they were on the
sidewalk across the street from 6112 Longford, where Morefield lived, an interaction
occurred between Jr. and one of several young men on the property at 6112 Longford.
There is a dispute whether Jr. actually said anything, or whether he just looked at
Brandon Davis, then age 18, one of the young men at 6112 Longford, in a way that made
Davis uncomfortable. There is general agreement, however, that Davis said to Jr.:
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1
“What the f**k are you looking at?”
{¶ 4} Jr. and D. continued walking down the sidewalk, stopping three or four
houses past 6112 Longford. Jr. called his father, “Sr.”, who lived nearby, telling him:
“Dad, there’s guys down here trying to get us beat up or something.”
{¶ 5} Sr., who was age 31, with a muscular build, drove himself and his 33-year-old
brother to 6112 Longford. The drive took about two minutes. Meanwhile, “C.”, age 15,
another friend of Jr., proceeded on foot to 6112 Longford, arriving about the same time.
Sr. wanted to know who had spoken to his son. Brandon Davis readily admitted that he
was the one who had spoken to Jr.
{¶ 6} According to Davis, Sr. “got in my face, started poking me in the chest,” “he
was telling me to fight him, and I told him I didn’t want to fight him. I didn’t see any point
in it.” Davis testified: “I felt extremely intimidated for real. I felt like my life was in
danger.”
{¶ 7} While this was going on, there was a lot of shouting and cussing on both
sides. Andrew Morefield, age 21, who was present, concluded that Sr. had come to
fight. He instructed his brother, who had a cell phone in his hand, to call the police. The
brother, who had already decided to call the police, did so.
{¶ 8} Meanwhile, Andrew Morefield went inside the house and obtained a firearm
from where it was stored on the wall. This weapon, which was admitted in evidence, was
described by a number of witnesses as an assault rifle, similar, at least, to an AK-47.
Morefield obtained a magazine from a different location within the house, and attached it
1
Because our opinions are widely available on the internet, we have not reproduced the
full word here. It is clear that the actual word was spoken.
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to the rifle. Neither the rifle nor the magazine had any ammunition inside. In fact,
Morefield testified that he had no bullets at the house at that time.
{¶ 9} Andrew Morefield exited the front door with the rifle. He remained just
outside the front door, armed with the rifle. He and the others at his house told Sr. and
his party repeatedly to leave, but they would not. Sr., seeing the firearm, began moving
to his right, away from the others in his group, to distract Andrew Morefield from Jr.
{¶ 10} After a bit, Andrew Morefield, realizing that Sr. and his party were not going
to leave, set the rifle down on the ground next to the house, and waited for the police to
arrive. The police arrived within about fifteen minutes. They took written statements
from anyone who chose to give a statement.
{¶ 11} There are a couple matters upon which the testimony of the participants in
the two groups diverged. One of these was the location of Sr. The Morefield party’s
witnesses testified that Sr. came up on the driveway when he confronted Brandon Davis,
and remained on the Morefield property. Sr.’s party’s witnesses testified that all of them,
including Sr., remained off the Morefield property, on the sidewalk in front of the house
next door. Sr., though, did admit that when he was separating himself from the rest of his
party, he may have come slightly off the sidewalk onto the Morefield yard.
{¶ 12} The most important discrepancy in the testimony is that Sr.’s party’s
witnesses testified that Andrew Morefield pointed the rifle at them, putting them all in fear
of being shot; whereas the Morefield party’s witnesses testified that Andrew Morefield
never pointed the rifle at anyone.
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II. The Course of Proceedings
{¶ 13} Andrew Morefield was arrested and charged with five counts of Aggravated
Menacing, in violation of R.C. 2903.21, misdemeanors of the first degree. He was tried
to a jury.
{¶ 14} Morefield requested jury instructions on the affirmative defenses of
self-defense and the defense of others. The trial court denied his request, opining that:
“the situation does not rise to the level of the – that is required for the requested
instruction.”
{¶ 15} The jury found Morefield guilty on all five counts. The trial court imposed
concurrent sentences of 180 days in jail, with 150 days suspended, for a total sentence of
30 days in jail.
{¶ 16} From his conviction and sentence, Morefield appeals.
III. Morefield’s Convictions Are Supported by Sufficient Evidence,
and Are Not Against the Manifest Weight of the Evidence
{¶ 17} Morefield’s First and Second Assignments of Error are as follows:
THE STATE PRESENTED INSUFFICIENT EVIDENCE TO
ESTABLISH EVERY ESSENTIAL ELEMENT OF AGGRAVATED
MENACING BEYOND REASONABLE DOUBT.
MR. MOREFIELD’S CONVICTION FOR AGGRAVATED
MENACING WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 18} When a defendant challenges the sufficiency of the evidence, he is arguing
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that the State presented inadequate evidence on at least one element of the offense to
sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App. 3d 449, 471, 741
N.E.2d 594 (2d Dist.2000). “An appellate court’s function when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. 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.
{¶ 19} Morefield points to the evidence he presented that he never pointed the rifle
at anyone. But the State presented the testimony of each victim that Morefield pointed
the rifle in their direction, and each testified to having been in fear that he would be shot
and severely wounded, or killed. The jury was free to credit the State’s witnesses.
{¶ 20} Morefield argues that the testimony of the State’s witnesses is not worthy of
belief, because none of them ran away, or called the police. Again, it was for the jury to
determine whether to credit the State’s witnesses, who may, in the moment, have feared
that turning and running would cause Morefield to open fire. The jury could also credit
Sr.’s testimony that his act of separating himself from the group including his son was
intended to distract Morefield’s attention from his son. There was testimony that
Morefield did, in fact, follow Sr. with the pointed rifle, which could have caused the other
members of Sr.’s party to prefer to avoid drawing attention to themselves by turning and
running, or, for that matter, by using a cellphone to call the police.
{¶ 21} We conclude that there is evidence in the record, in the form of the
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testimony of the State’s witnesses, that, if believed, would convince the average mind of
Morefield’s guilt beyond a reasonable doubt. Morefield’s First Assignment of Error is
overruled.
{¶ 22} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23,
¶ 46. When a conviction is challenged on appeal as being against the manifest weight of
the evidence, “ ‘[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines 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.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), quoting
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 23} In arguing that his conviction is against the manifest weight of the evidence,
Morefield points to a few inconsistencies in the testimony of the State’s witnesses.
Some of these involve characterizations; for example, Jr. having testified that his father
only approached the other group to have a casual conversation, while C. testified that Sr.
was aggressive in his approach. C. did testify, though, that Sr. said: “Leave us the hell
alone and don’t talk to my child again,” and also testified that there was nothing
threatening in what Sr. said. Other inconsistencies involved minor points, such as what
exactly Sr. was wearing.
{¶ 24} On the key point, all of the State’s witnesses were agreed; Morefield
pointed the rifle at their group, causing them to fear they would be shot. We conclude
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that this is not the exceptional case where a jury has lost its way, creating a manifest
miscarriage of justice. Morefield’s Second Assignment of Error is overruled.
IV. Because Morefield Did Not Admit to Having Committed the Act
Constituting the Offense, He Was Not Entitled to Jury Instructions on
the Affirmative Defenses of Self-Defense and the Defense of Others
{¶ 25} Morefield’s Third Assignment of Error is as follows:
TRIAL COURT ERRED WHEN IT FAILED TO PRESENT A JURY
INSTRUCTION ON SELF-DEFENSE AND DEFENSE OF OTHERS
WHERE THE EVIDENCE SUPPORTED AN INSTRUCTION.
{¶ 26} The State argues that threats of deadly force, i.e., Aggravated Menacing,
cannot be justified by the defenses of self-defense or the defense of others. Courts of
appeals have held to the contrary. See, e.g., State v. Lundt, 180 Ohio App. 3d 672,
2009-Ohio-416, 906 N.E.2d 1182, ¶ 21 (7th Dist.). The rule of law proposed by the State
would have the illogical result that one is privileged to use actual force to repel an attack,
but one is not privileged to first use the mere threat of force in an attempt to repel the
attack. Consider, for example, a man and his family with their back against a wall,
confronted by a larger crowd carrying baseball bats, with the expressed intention of
beating the man and his family to death. If the man had access to a firearm, he would be
privileged, under the rule of law proposed by the State, to open fire upon the crowd
threatening himself and his family, but would not have the privilege to first threaten to
shoot. The law should encourage, not discourage, a first resort to less extreme
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measures in self-defense.
{¶ 27} The State cites State v. Turner, 2d Dist. Montgomery No. 24322,
2011-Ohio-5417, ¶ 15, for the proposition that:
An affirmative defense, such as self-defense or defense of another,
is in the nature of a confession and avoidance, where the accused admits
that he engaged in the conduct alleged but claims that he was legally
justified in doing so. State v. Rhodes (1992), 63 Ohio St. 3d 613, 625.
Such an instruction is not appropriate where the defendant denies engaging
in the conduct alleged upon which the criminal charge is based. State v.
McGhee, Montgomery App. No. 23226, 2010-Ohio-977, at ¶ 54.
{¶ 28} State v. Rhodes, upon which we relied in Turner, relies upon State v. Poole,
33 Ohio St. 2d 18, 19, 294 N.E.2d 888 (1973), in which the court characterized an
affirmative defense as one “which the defendant claims exempts him from liability even if
it is conceded that the facts claimed by the prosecution are true.” (Emphasis in Rhodes.)
The “even if” formulation could lend itself to an interpretation that the concession involved
is hypothetical, rather than an actual admission by the defendant; i.e., hypothetically, if
the State has proven that the defendant committed the act, then the defendant was acting
in self-defense.
{¶ 29} None of the cases cited in Rhodes clearly hold that a defendant must admit
to having committed the criminal act, before asserting an affirmative defense. In the first
case cited, for example, Walden v. State, 47 Ohio St. 3d 47, 50, 547 N.E.2d 962 (1989),
the court held that a person acquitted by reason of self-defense can nevertheless be a
wrongfully imprisoned individual for purposes of recovering compensation from the State.
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And in the leading case cited in Rhodes, State v. Poole, 33 Ohio St. 2d 18, 294 N.E.2d
888, the Supreme Court held that the trial court erred by instructing the jury that the
defendant in a Murder prosecution had the burden of proving that his killing of the victim
was accidental, since accident is not an affirmative defense.
{¶ 30} Nevertheless, we have found one decision of the Supreme Court of Ohio
that we find instructive. That case is a civil case, Niskanen v. Giant Eagle, Inc., 122 Ohio
St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, in which the Supreme Court held, at ¶ 31,
that a defendant in a tort case was required to admit that it committed the tortious act
before it could assert the defense of self-defense. We conclude, therefore, that a
defendant in a criminal case must admit commission of the act constituting the criminal
offense, before affirmative defenses – here, self-defense and the defense of others – may
be submitted to the jury.
{¶ 31} As the State notes, the act constituting the offense in this case was pointing
the rifle at the victims. Morefield denied that he pointed the rifle at anyone. Therefore,
he was not entitled to an instruction on the affirmative defenses of self-defense and the
defense of others.
{¶ 32} Morefield’s Third Assignment of Error is overruled.
I. Conclusion
{¶ 33} All of Morefield’s assignments of error having been overruled, the judgment
of the trial court is Affirmed.
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DONOVAN and WELBAUM, JJ., concur.
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Copies mailed to:
Robert B. Coughlin
Chris Beck
Hon. James D. Piergies