State v. Messenger , 2022 Ohio 4562 ( 2022 )


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  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
    v. Messenger, Slip Opinion No. 
    2022-Ohio-4562
    .]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 
    2022-OHIO-4562
    THE STATE OF OHIO v. MESSENGER.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Messenger, Slip Opinion No. 
    2022-Ohio-4562
    .]
    Criminal law—R.C. 2901.05—Affirmative defenses—Self-defense—Burden of
    production and burden of persuasion—Defendant has burden of production
    regarding self-defense claim and must produce legally sufficient evidence
    that defendant’s use of force was in self-defense—State then has burden of
    persuasion to disprove self-defense claim beyond a reasonable doubt—On
    appeal, sufficiency-of-the-evidence standard of review applies to
    defendant’s burden of production and manifest-weight standard of review
    applies to state’s burden of persuasion—Court of appeals’ judgment
    affirmed.
    (No. 2021-0944—Submitted May 25, 2022—Decided December 21, 2022.)
    APPEAL from the Court of Appeals for Franklin County,
    No. 19AP-879, 
    2021-Ohio-2044
    .
    _________________
    SUPREME COURT OF OHIO
    DONNELLY, J.
    {¶ 1} Recent legislation now dictates that when a defendant presents a claim
    of self-defense in a criminal case, the state has the burden of disproving that self-
    defense claim beyond a reasonable doubt. This discretionary appeal from the Tenth
    District Court of Appeals involves the latest of questions that have arisen from the
    legislative change: is the state’s rebuttal of a defendant’s claim of self-defense now
    subject to review under the sufficiency-of-the-evidence standard? We hold that it
    is not, and we therefore affirm the judgment of the Tenth District holding the same.
    BACKGROUND
    {¶ 2} Appellant, Kandle Messenger, was charged with murder and felony
    murder, along with accompanying firearm specifications. The charges stemmed
    from the fatal shooting of Richard Pack. Messenger claimed that he had acted in
    self-defense.   The witnesses who testified at Messenger’s jury trial provided
    conflicting accounts of what happened, but there was no dispute that Messenger
    ultimately shot Pack 14 times in quick succession with a semiautomatic handgun.
    {¶ 3} Messenger and Pack were stepbrothers and good friends. During two
    incidents on the evening of February 25, 2019, Pack confronted Messenger about
    Messenger’s secret romantic involvement with Samantha Anderson. Anderson was
    Pack’s recently estranged girlfriend and the mother of his two children. Pack came
    to the house where Messenger and Anderson lived—and where Pack had also lived
    before moving out in January 2019. After telling Messenger to sit down on the
    living-room couch, Pack repeatedly punched Messenger while Messenger
    apologized for the betrayal. Pack left shortly thereafter but returned to the house
    later in the evening.
    {¶ 4} Before Pack returned, Messenger retrieved a handgun and put it in his
    waistband. Messenger testified that he was afraid that Pack would return to the
    house armed with a gun because Pack had threatened to kill him during the first
    incident and also because Pack owned multiple guns and was very experienced with
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    January Term, 2022
    them. When Pack returned, he confronted Messenger again, and the two men
    argued in the backyard. According to Messenger’s testimony at trial, he drew his
    gun on Pack but he put it back in his waistband after Pack said to put it away. Pack
    then went into the house with Anderson and demanded that Messenger come inside.
    Messenger initially refused and stayed in the yard for a few minutes, but he
    ultimately went into the house.
    {¶ 5} Messenger testified that after he entered the house, Pack came toward
    him and insisted they should hug. Messenger knew that Pack had expertise in
    disarming people, and he feared that Pack was going to take the gun and shoot him.
    Messenger testified that once he was backed into a corner with Pack still coming at
    him and ignoring his pleas to stop, Messenger panicked and started shooting. The
    three other adults in the house—Anderson, her sister, and her sister’s fiancée—
    overheard but did not see Messenger shoot Pack. Anderson testified that she heard
    Messenger repeatedly beg Pack to stop and not come any closer and that she then
    heard gunshots. The other two women each testified that before the gunfire, they
    heard Messenger tell Pack, “[N]o * * * don’t.”
    {¶ 6} Messenger’s next-door-neighbors testified that they watched the
    backyard confrontation from their kitchen window. One neighbor testified that she
    stopped watching once Pack entered the house but that she heard gunshots roughly
    two minutes later. The other neighbor said that he watched Messenger as he stood
    alone in the yard after Pack went inside. After a few minutes, the neighbor saw
    Messenger as he “took off,” strode quickly into the house, and slammed the door.
    The neighbor testified that he heard gunshots immediately after Messenger entered
    the house.
    {¶ 7} Messenger moved for acquittal under Crim.R. 29 after the state rested
    and again at the end of trial. The trial court denied the motions, finding that
    reasonable minds could differ as to whether each element of the crime had been
    proved beyond a reasonable doubt.
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    SUPREME COURT OF OHIO
    {¶ 8} The state’s theory of the case, presented during closing arguments,
    was that Messenger went into the house in a rage and immediately began to shoot
    wildly at Pack, thereby committing murder and felony murder. The state’s theory
    against self-defense was that Messenger initiated the confrontation by choosing to
    enter the house and “almost instantaneous[ly]” begin shooting. Messenger could
    not have believed he needed to act in self-defense, because Pack posed no threat to
    Messenger between the time that Messenger stood outside the house and the
    moment that he began shooting Pack. Messenger could have chosen not to enter
    the house. And Messenger did not use reasonable force, because he shot far more
    times than was necessary to repel an attacker.
    {¶ 9} Messenger’s theory of self-defense was that Pack started the
    confrontation by coming to the house where Messenger was staying. Messenger
    reasonably feared that Pack was going to disarm and shoot him once Messenger
    was inside the house given Pack’s previous threats to kill Messenger, Pack’s
    ownership of guns, Pack’s expertise at disarming people, and the fact that Pack
    continued to approach Messenger for a hug despite Messenger’s pointing a weapon
    at him and telling him to stop. Because Messenger was living at that house, he had
    a right to enter the house and had no duty to retreat. And Messenger reasonably
    shot at Pack until Pack fell down. He further claimed that the number of shots and
    the scattered range of shell casings were indicative of panic and fear.
    {¶ 10} In its jury charge, the trial court included an instruction on self-
    defense in accordance with the newly amended R.C. 2901.05(B)(1): “If you find
    that evidence was presented that tends to support the finding that the Defendant
    used deadly force in self-defense, the State must prove beyond a reasonable doubt
    that the Defendant did not properly act in self-defense.” The trial court also
    instructed that “a person using force to defend himself who lawfully is in that
    person’s residence or business has no duty to retreat before using deadly force [in]
    4
    January Term, 2022
    self-defense.” The jury found Messenger guilty on all counts and specifications.
    The trial court imposed a sentence of 18 years to life in prison.
    {¶ 11} Among his arguments in the Tenth District Court of Appeals,
    Messenger argued that the state had not presented legally sufficient evidence to
    establish that he had not acted in self-defense. He also argued that the state had
    failed to disprove self-defense under a “manifest weight” test. The court held that
    Messenger’s self-defense claim was not subject to review for the sufficiency of the
    evidence. 
    2021-Ohio-2044
    , 
    174 N.E.3d 425
    , ¶ 44. The appellate court held that a
    sufficiency analysis applies only to the elements of an offense and that affirmative
    defenses remain subject only to manifest-weight review on appeal. The court went
    on to reject Messenger’s manifest-weight challenge, id. at ¶ 53, and his remaining
    assignments of error, and it affirmed Messenger’s convictions, id. at ¶ 79.
    {¶ 12} Messenger sought our discretionary review of the Tenth District’s
    decision, advancing several propositions of law. We accepted the appeal on the
    following proposition of law: “Self-defense claims may be reviewed on direct
    appeal for sufficiency of the evidence.” See 
    164 Ohio St.3d 1460
    , 
    2021-Ohio-3594
    ,
    
    174 N.E.3d 811
    .
    ANALYSIS
    {¶ 13} The question whether a claim of self-defense is subject to review
    under a sufficiency-of-the-evidence standard is a question of law, which we review
    de novo. See Gabbard v. Madison Local School Dist. Bd. of Edn., 
    165 Ohio St.3d 390
    , 
    2021-Ohio-2067
    , 
    179 N.E.3d 1169
    , ¶ 6. A sufficiency analysis “ ‘determine[s]
    whether the case may go to the jury or whether the evidence is legally sufficient to
    support the jury verdict as a matter of law.’ ” State v. Thompkins, 
    78 Ohio St.3d 380
    , 386, 
    678 N.E.2d 541
     (1997), quoting Black’s Law Dictionary 1433 (6th
    Ed.1990). If the state fails to present sufficient evidence on every element of an
    offense, then convicting a defendant for that offense violates the defendant’s right
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    SUPREME COURT OF OHIO
    to due process of law. Id. at 386-387; see also Jackson v. Virginia, 
    443 U.S. 307
    ,
    316, 
    99 S.Ct. 2781
    , 61 L.Ed.2d (1979).
    {¶ 14} A self-defense claim includes the following elements:
    (1) that the defendant was not at fault in creating the situation giving
    rise to the affray; (2) that the defendant had a bona fide belief that
    he [or she] was in imminent danger of death or great bodily harm
    and that his [or her] only means of escape from such danger was in
    the use of such force; and (3) that the defendant did not violate any
    duty to retreat or avoid the danger.
    State v. Barnes, 
    94 Ohio St.3d 21
    , 24, 
    759 N.E.2d 1240
     (2002).
    {¶ 15} In a criminal trial taking place prior to March 28, 2019, the effective
    date of 2018 Am.Sub.H.B. No. 228 (“H.B. 228”), a defendant claiming the
    affirmative defense of self-defense had the burden of proving the foregoing
    elements of the defense by a preponderance of the evidence. See former R.C.
    2901.05(A), 2008 Sub.S.B. No. 184; State v. Brooks, __ Ohio St.3d __, 2022-Ohio-
    2478, __ N.E.3d __, ¶ 23 (discussing former versions of R.C. 2901.05). H.B. 228
    amended R.C. 2901.05, and since March 28, 2019, the burden regarding self-
    defense has been as follows:
    A person is allowed to act in self-defense * * *. If, at the trial of a
    person who is accused of an offense that involved the person’s use
    of force against another, there is evidence presented that tends to
    support that the accused person used the force in self-defense * * *,
    the prosecution must prove beyond a reasonable doubt that the
    accused person did not use the force in self-defense * * *.
    6
    January Term, 2022
    R.C. 2901.05(B)(1).
    {¶ 16} Because the state must prove all elements of an offense beyond a
    reasonable doubt and because the state must now prove lack of self-defense beyond
    a reasonable doubt, Messenger argues that both must be examined under a
    sufficiency-of-the-evidence standard.     This argument fails to account for the
    difference between the nature of the evidence and the strength of a conclusion
    regarding that evidence.
    {¶ 17} Reasonable doubt is “the condition of mind produced by the proof
    resulting from the evidence in the cause. It is the result of the proof, not the proof
    itself * * *; thus one is a cause, the other an effect.” Coffin v. United States, 
    156 U.S. 432
    , 460, 
    15 S.Ct. 394
    , 
    39 L.Ed. 481
     (1895). Reasonable doubt speaks to the
    extent to which the factfinder must be convinced that a party met its burden of
    persuasion. State v. Robinson, 
    47 Ohio St.2d 103
    , 107-108, 
    351 N.E.2d 88
     (1976);
    In re Winship, 
    397 U.S. 358
    , 364, 
    90 S.Ct. 1068
    , 
    25 L.Ed.2d 368
     (1970). The
    reasonable-doubt standard does not apply to whether a party has met its burden of
    producing legally sufficient evidence in the first place; if a party fails to meet its
    burden of production, the factfinder cannot consider the claim at all, let alone how
    persuasive the evidence was. See Burks v. United States, 
    437 U.S. 1
    , 16, 
    98 S.Ct. 2141
    , 
    57 L.Ed.2d 1
     (1978) (reversal for insufficient evidence “means that the
    government’s case was so lacking that it should not have even been submitted to
    the jury” [emphasis sic]).
    {¶ 18} The state has the burden of production regarding the elements of a
    criminal offense because an accused person has the right to a presumption of
    innocence on each element. R.C. 2901.05(A); Morissette v. United States, 
    342 U.S. 246
    , 275, 
    72 S.Ct. 240
    , 
    96 L.Ed. 288
     (1952); Jackson, 
    443 U.S. at 315
    , 
    99 S.Ct. 2781
    , 
    61 L.Ed.2d 560
    . The presumption of innocence “is an instrument of proof
    created by the law in favor of one accused, whereby his innocence is established
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    SUPREME COURT OF OHIO
    until sufficient evidence is introduced to overcome the proof which the law has
    created.” Coffin at 459.
    {¶ 19} Conversely, there is no due-process right to a presumption of an
    affirmative defense such as self-defense. State v. Hancock, 
    108 Ohio St.3d 57
    ,
    
    2006-Ohio-160
    , 
    840 N.E.2d 1032
    , ¶ 37; see also Leland v. Oregon, 
    343 U.S. 790
    ,
    798-799, 
    72 S.Ct. 1002
    , 
    96 L.Ed. 1302
     (1952) (legislative allocation of the burden
    of proving the affirmative defense of insanity does not raise a constitutional issue,
    because the affirmative defense is not constitutionally based). There is also no
    statutory right to a presumption of self-defense in Ohio. R.C. 2901.05(A) provides
    that an accused is “presumed innocent,” in line with the constitutionally guaranteed
    right. But R.C. 2901.05(B) states that “[a] person is allowed to act in self-defense.”
    (Emphasis added.) With no “proof created by the law in favor of” self-defense, see
    Coffin at 459, the defendant has the burden of producing legally sufficient evidence
    of self-defense to trigger the state’s duty to overcome that evidence.
    {¶ 20} Although there is no explicit presumption of self-defense in R.C.
    2901.05(B)(1), Messenger nonetheless maintains that H.B. 228’s amendment to the
    statute eliminated the defendant’s burden of production regarding self-defense. He
    notes that former R.C. 2901.05(A) stated that a defendant had the affirmative
    “burden of going forward with the evidence of an affirmative defense, and the
    burden of proof, by a preponderance of the evidence, for an affirmative defense,”
    see 2008 Sub.S.B. No. 184, but the new standard specific to self-defense in R.C.
    2901.05(B)(1) uses passive language and triggers the state’s duty to disprove self-
    defense so long as “there is evidence presented that tends to support that the accused
    person used the force in self-defense.” He contends that the vagueness of the new
    language in R.C. 2901.05(B)(1), coupled with the state’s new burden of persuasion,
    indicates that the absence of self-defense is now an element of all applicable
    offenses and that the state has the burden of production. We disagree.
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    January Term, 2022
    {¶ 21} The plain language of R.C. 2901.05(A) reflects that self-defense is
    still an affirmative defense and that the burden of production is still on the
    defendant:
    The burden of going forward with the evidence of an affirmative
    defense, and the burden of proof, by a preponderance of the
    evidence, for an affirmative defense other than self-defense, defense
    of another, or defense of the accused’s residence presented as
    described in division (B)(1) of this section, is upon the accused.
    (Emphasis added.) By stating that the burden of persuasion is on the defendant for
    “an affirmative defense other than self-defense,” the statute indicates that self-
    defense falls within the category of affirmative defenses but is excepted from the
    burden of persuasion. And by stating that the defendant bears the “burden of going
    forward with the evidence of an affirmative defense,” the statute indicates that there
    are no exceptions to the defendant’s burden of production regarding affirmative
    defenses.
    {¶ 22} The reference in R.C. 2901.05(B)(1) to “evidence presented that
    tends to support” self-defense indicates that the defendant’s burden of production
    is not a heavy one and that it might even be satisfied through the state’s own
    evidence. However, we cannot infer from these few words alone that the absence
    of self-defense is now a substantive element of every offense involving the use of
    force. We have already determined that the amendment to R.C. 2901.05(B)(1) was
    procedural, not substantive, in nature. Brooks, __ Ohio St.3d __, 
    2022-Ohio-2478
    ,
    __ N.E.3d. __, at ¶ 15-16. The amendment changed the procedure for adjudicating
    criminal cases involving evidence of self-defense; it did not make substantive
    changes to the elements of any offenses.
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    SUPREME COURT OF OHIO
    {¶ 23} The law defining the murder offenses charged against Messenger
    remained the same before and after H.B. 228’s amendment to R.C. 2901.05:
    (A) No person shall purposely cause the death of another or
    the unlawful termination of another’s pregnancy.
    (B) No person shall cause the death of another as a proximate
    result of the offender’s committing or attempting to commit an
    offense of violence that is a felony of the first or second degree and
    that is not a violation of section 2903.03 or 2903.04 of the Revised
    Code.
    R.C. 2903.02.
    {¶ 24} The change to the state’s burden of persuasion regarding self-
    defense in R.C. 2901.05(B)(1) did not change the elements of Messenger’s charged
    offenses of murder and felony murder. A statutory requirement that the state must
    disprove an affirmative defense beyond a reasonable doubt does not in itself cause
    the affirmative defense to become an element of the offense. Engle v. Isaac, 
    456 U.S. 107
    , 120, 
    102 S.Ct. 1558
    , 
    71 L.Ed.2d 783
     (1982). Self-defense remains an
    affirmative defense in Ohio, and an affirmative defense is not an element of a crime,
    see Hancock, 
    108 Ohio St.3d 57
    , 
    2006-Ohio-160
    , 
    840 N.E.2d 1032
    , at ¶ 35.
    {¶ 25} Given the foregoing, a defendant charged with an offense involving
    the use of force has the burden of producing legally sufficient evidence that the
    defendant’s use of force was in self-defense. Similarly to the standard for judging
    the sufficiency of the state’s evidence, if the defendant’s evidence and any
    reasonable inferences about that evidence would allow a rational trier of fact to find
    all the elements of a self-defense claim when viewed in the light most favorable to
    the defendant, then the defendant has satisfied the burden. See State v. Filiaggi, 86
    10
    January Term, 
    2022 Ohio St.3d 230
    , 247, 
    714 N.E.2d 867
     (1999); Robinson, 47 Ohio St.2d at 109-112,
    
    351 N.E.2d 88
    .
    {¶ 26} At the close of Messenger’s jury trial, the trial court provided the
    jury with an instruction regarding self-defense, which means that the trial court
    concluded that Messenger put forward sufficient evidence that he was acting in self-
    defense when he shot and killed Pack. The guilty verdict means that the state met
    its burden of persuading the jury beyond a reasonable doubt that Messenger was
    not acting in self-defense when he killed Pack. As the Tenth District aptly
    explained, the sufficiency-of-the-evidence standard of review applies to
    Messenger’s burden of production and a manifest-weight-of-the-evidence standard
    of review applies to the state’s burden of persuasion. 
    2021-Ohio-2044
    , 
    174 N.E.3d 425
    , at ¶ 44-45; see also Thompkins, 78 Ohio St.3d at 390, 
    678 N.E.2d 541
     (Cook,
    J., concurring) (a sufficiency challenge disputes whether a party “met its burden of
    production at trial,” and a manifest-weight challenge disputes whether a party
    “carried its burden of persuasion”).
    CONCLUSION
    {¶ 27} H.B. 228’s amendments to R.C. 2901.05 did not eliminate the
    defendant’s burden of production regarding a claim of self-defense. The state’s
    new burden of disproving the defendant’s self-defense claim beyond a reasonable
    doubt is subject to a manifest-weight review on appeal, and the Tenth District
    correctly declined to review the state’s rebuttal of self-defense for sufficiency of
    the evidence. We therefore affirm the judgment of the Tenth District Court of
    Appeals.
    Judgment affirmed.
    O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, STEWART, and ROBB,
    JJ., concur.
    CAROL ANN ROBB, J., of the Seventh District Court of Appeals, sitting for
    BRUNNER, J.
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    SUPREME COURT OF OHIO
    _________________
    G. Gary Tyack, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
    Assistant Prosecuting Attorney, for appellee.
    Carpenter, Lipps & Leland, L.L.P., Kort Gatterdam, and Erik P. Henry, for
    appellant.
    Steven L. Taylor, urging affirmance on behalf of amicus curiae, Ohio
    Prosecuting Attorneys Association.
    _________________
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