State v. Irvin , 2020 Ohio 4847 ( 2020 )

[Cite as State v. Irvin, 2020-Ohio-4847.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28495
:
v. : Trial Court Case No. 2017-CR-3623
:
LANCE A. IRVIN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of October, 2020.
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MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Defendant-appellant Lance A. Irvin appeals from his conviction for murder
and tampering with evidence. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} In the early morning hours of November 14, 2017, Jesse Redavide, Savanna
DelGrosso, Eric Stone, and Lauryn Clark went to the home of Jesse’s older brother,
Joseph Redavide.1 At some point, Irvin also arrived at Joseph’s home. Following an
altercation, Irvin shot Jesse. Dayton police officers and emergency medical technicians
were dispatched to the home. Jesse was declared dead at the scene.
{¶ 3} In April 2018, Irvin was indicted on two counts of murder (proximate cause)
in violation of R.C. 2903.02(B), one count of felonious assault (serious harm) in violation
of R.C. 2903.11(A)(1), one count of felonious assault (deadly weapon) in violation of R.C.
2903.11(A)(2), and one count of tampering with evidence (alter/destroy) in violation of
R.C. 2921.12(A)(1). The counts of murder and felonious assault each carried an
attendant three-year firearm specification. Irvin filed a motion to suppress statements he
made to the police, which was denied by the trial court.
{¶ 4} A jury trial began in April 2019. DelGrosso testified that she and Jesse were
engaged and that she was several months pregnant at the time of the shooting. She
testified that she, Jesse, Stone, and Clark decided to go to Joseph’s house after their late
work shift. When they arrived, they began to watch a movie. DelGrosso testified that
everyone, except her, had been drinking and smoking pot. DelGrosso testified that
Stone fell asleep on the couch.
1
For the sake of clarity, we will refer to the Redavide brothers by their first names.
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{¶ 5} At some point, DelGrosso heard the front door open, and she observed Irvin
enter the home. She heard Irvin and Jesse talking loudly and heard them get into a
“scuffle.” Tr. p. 376. DelGrosso heard Jesse ask Irvin to put him down, and then Irvin
laughed. She also heard Irvin say, “you hurt my – I hit my head.” Tr. p. 381. Irvin then
said “I’m going to mark everybody in this house. I hit my head. My head is hurt.”
According to DelGrosso, “mark” means kill.
{¶ 6} DelGrosso testified she heard the door slam and tires squeal. A short time
later, she heard a knock on the door. She then heard Irvin’s voice and saw him walk in
with a gun in his hand. Jesse said, “Please don’t,” but Irvin pointed the gun at Jesse and
shot him.
{¶ 7} Clark testified that Irvin entered the home and began to argue with Jesse
before Joseph broke them apart. She testified that Irvin stated that his head was hurt,
he had guns, and he was going to “kill everybody.” Tr. p. 454. When Irvin left, Clark
closed and locked the front door; Irvin returned about 15 to 20 minutes later. Irvin
knocked on the door and Joseph let him in. Clark testified that Irvin pulled out a gun, at
which point Jesse raised his hands and said, “I’m sorry.” She testified that Irvin then shot
Jesse.
{¶ 8} Joseph testified that he and Irvin knew each other and “used to hang out all
the time.” Tr. p. 499. Joseph testified that Irvin showed up at his home unannounced
on the day of the shooting; Irvin knocked on the front door, and Joseph allowed him to
enter. According to Joseph, Jesse and Irvin approached each other and were being
friendly when they got into “a little shoving match about a foot into my house. They both
went down. I split them up, threw [Irvin] out, threw my brother on the couch.” Tr. p. 501.
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{¶ 9} Joseph testified Irvin came back a short time later and knocked on the front
door. Someone opened the door, and Irvin came in and began complaining about a knot
on his head and saying, “look what you did.” Tr. p. 507. Joseph saw Irvin pull a gun
and point it at Jesse. He testified Jesse began apologizing while backing up with his
hands up. Joseph testified that Irvin shot Jesse and then fled the scene.
{¶ 10} Testifying on his own behalf, Irvin testified he knew Joseph as the
“neighborhood dealer, weed dealer.” Tr. p. 856. He further testified that, for the year
prior to the shooting, he had gone to Joseph’s home “every other day,” and they used
marijuana and liquid THC. Tr. p. 858. According to Irvin, he got off work around 12:30
a.m. on the morning of the shooting. He testified he was driving from work when another
friend, Tenia Lane-Calhoun, called him seeking a ride from work. Irvin picked up Lane-
Calhoun, they made some stops, and then they drove to Joseph’s home. Irvin testified
that Lane-Calhoun waited in the car while Irvin went into the home to get some food and
drugs. Irvin testified that Jesse met him just inside the front door, and Irvin could smell
alcohol on Jesse’s breath. Irvin testified that Jesse yelled, “Joey, your n****r friend is at
the door.” Tr. p. 866. Irvin testified he asked Jesse why he would say that and Jesse
replied, “I don’t care about n*****s.” Id. Irvin claimed Jesse then attacked and “monkey
dunked” him.2 After Irvin fell to the floor, Jesse grabbed a rifle and hit Irvin in the head.
Irvin testified that he feared for his life and thought Jesse would kill him, so he pulled out
his own gun, shot Jesse, and then fled the premises. He testified that his gun only had
two bullets, and he discharged the second bullet into the floorboard of his Durango SUV.
2
From Irvin’s subsequent explanation, “monkey dunk” appears to mean to tackle a
person’s legs and knock them down.
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Irvin testified that, as he drove from the scene, he threw the gun into bushes located on
Linden Avenue. Irvin testified he thought he parked the vehicle at a relative’s home, but
he was actually at the wrong home; when he realized his mistake, he had to leave the
Durango at the home because the vehicle was out of gas. Irvin testified he and Lane-
Calhoun then walked to his stepmother’s home, where Irvin spent the night. Irvin was
arrested later in the day.
{¶ 11} Lane-Calhoun testified that, on November 14, 2017, Irvin picked her up in
a Durango and took her to her mother’s home, where she picked up some belongings.
Irvin then took her to his sister’s home. Lane-Calhoun testified that Irvin left her at his
sister’s home while he went out. When Irvin returned, he had a knot on his head and he
stated he had been hit in the head with a gun. Lane-Calhoun testified that she and Irvin
then went to Irvin’s stepmother’s home. Lane-Calhoun testified that, sometime before
dawn, Irvin left in the Durango and then returned on foot. She testified that she did not
go to Joseph’s home.
{¶ 12} Other evidence at trial established that Joseph owned a .22 caliber rifle,
which was found under his bed, recovered by the police, and swabbed for DNA. Neither
Jesse’s nor Irvin’s DNA was found on the swab. Additionally, the police collected a spent
.40 caliber shell casing just outside the front door of Joseph’s home. Irvin’s SUV was
discovered by a homeowner on Sylvan Drive, who contacted the police to report that the
SUV was blocking her garage. The police recovered a .40 caliber bullet from the SUV’s
floorboard.
{¶ 13} The evidence established that Jesse died from a gunshot wound to his left
chest. The evidence also demonstrated that Irvin was approximately six inches to two
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feet from Jesse when he shot him. Finally, the evidence established the bullet passed
downward approximately four inches through Jesse’s upper chest, left lung and aorta
before exiting his back.
{¶ 14} The jury found Irvin guilty of all charges. The trial court held a sentencing
hearing in May 2019, at which it merged the counts of murder and felonious assault; the
State elected to proceed to sentencing on one of the murder counts. The trial court
imposed a prison term of 15 years to life on the murder conviction, plus a three-year
consecutive prison term on the firearm specification. The trial court also imposed a 30
month consecutive term for tampering with evidence. The aggregate prison term was
20 years and six months to life. The trial court also informed Irvin that the murder
conviction was a qualifying violent offender offense under R.C. 2903.41 and, as a result,
he would be required to register as a violent offender.
{¶ 15} Irvin filed a timely notice of appeal.
II. Self-defense Instruction
{¶ 16} Irvin’s first assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY
INSTRUCT THE JURY ON THE LAW OF SELF DEFENSE.
{¶ 17} At Irvin’s request, the trial court instructed the jury on the issue of self-
defense. But, over Irvin’s objection, the self-defense instruction did not reflect the
changes to Ohio’s self-defense statute (R.C. 2901.05) made by Am.Sub.H.B. 228 (“H.B.
228”).
{¶ 18} Prior to the enactment of H.B. 228, self-defense was an affirmative defense
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which the defendant was required to prove by a preponderance of the evidence. State
v. Davis, 10th Dist. Franklin No. 19AP521, 2020-Ohio-4202, ¶ 26. H.B. 228, which was
enacted on December 27, 2018 and became effective on March 28, 2019, shifted the
burden of proof to the State. Now the statute provides that when self-defense is at issue,
“the prosecution must prove beyond a reasonable doubt that the accused person did not
use the force in self-defense, defense of another, or defense of that person's residence,
as the case may be.” Id.
{¶ 19} The question here is whether the trial court erred by not giving a self-
defense jury instruction consistent with the changes to H.B. 228. This is a legal issue
that we review de novo. State v. Kormos, 2012-Ohio-3128, 974 N.E.2d 725, ¶ 13 (12th
Dist.).
{¶ 20} Irvin asserts that the following statutory language compels the conclusion
that he was entitled to the benefit of the H.B. 228 changes:
A person is allowed to act in self-defense, defense of another, or defense
of that person's residence. 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, defense of another, or defense of that person's
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another,
or defense of that person's residence, as the case may be.
(Emphasis added.) R.C. 2901.05(B)(1).
{¶ 21} Irvin contends the “at the trial of a person” language required the conclusion
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that H.B. 228 was applicable to any trial conducted after March 28, 2019. Thus, by Irvin’s
reckoning, he was entitled to the benefit of H.B. 228 even though Jesse’s death occurred
before March 28, 2019. We disagree.
{¶ 22} The Twelfth and Fifth Appellate Districts have interpreted the meaning of
the “at the trial of a person” language and have reached different conclusions. In State
v. Gloff, 2020-Ohio-3143, __ N.E.3d __ (12th Dist.), the Twelfth District concluded as
follows:
The H.B. 228 amendment applies prospectively to trials. The pertinent
amendment does not concern the conduct giving rise to the offense but
relates to the applicable burden of proof for the affirmative defense of self-
defense. Under the new amendment, if self-defense evidence is
presented at trial, the prosecution must then prove, beyond a reasonable
doubt, that the defendant did not use the force in self-defense.
(Emphasis sic.) Id. at ¶ 23. In State v. Lewis, 2020-Ohio-3762, __ N.E.3d __
(12th Dist.), the Twelfth District reaffirmed the Gloff decision, holding that “the
burden shifting changes made by the legislature to Ohio’s self-defense statute,
R.C. 2901.05, through the passage of H.B. 228, appl[y] to all trials that were held,
or will be held, on or after the effective date of the statute, March 28, 2019. This
holds true regardless of * * * when the [offense] may have occurred.” Lewis at ¶
26.
{¶ 23} In contrast, in State v. Brooks, 2020-Ohio-4123, __ N.E.3d __ (5th Dist.),
the Fifth District interpreted the “at the trial of a person” phrase as follows:
This court has * * * reviewed the language of the amended statute and we
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do not agree with the Twelfth District Court of Appeal[s’] interpretation of the
language of the statute. We do not find the “at the trial of a person”
language to be a directive regarding the applicability of the statute, rather,
it is a reference as to the time and place the * * * evidence must be
presented that tends to support that the accused person used the force in
self-defense.
Id. at ¶ 42. The opinion concludes that Brooks “was not entitled to the burden-shifting
changes as [H.B 228] does not apply retroactively to offenses that occurred prior to the
statute’s effective date.” Id. at ¶ 43.
{¶ 24} We agree with the Fifth District’s analysis regarding the import of the “at the
trial of a person” language. The language only reflects that the H.B. 228 changes,
whenever effective, are applicable to trials at which “there is evidence presented that
tends to support that the [defendant] used * * * force in self-defense * * *.” R.C.
2901.05(B)(1). The language simply does not address whether application of H.B. 228
is required at a trial involving an offense occurring before March 28, 2019 but coming to
trial on or after that date.
{¶ 25} As such, the question’s resolution turns on application of the test to
determine whether a statute has retroactive application. A statute, unless “expressly
made retroactive[,]” has prospective application. R.C. 1.48. See also Van Fossen v.
Babcock & Wilcox Co., 36 Ohio St. 3d 100, 105, 522 N.E.2d 489 (1988). This rule, in
conjunction with the Ohio Constitution’s (Section 28, Article II) proscription against
retroactive laws, prompted the Ohio Supreme Court “[to] establish[ ] a two-part test to
determine whether a statute may be applied retroactively.” Brooks at ¶ 32, citing State
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v. Consilio, 114 Ohio St. 3d 295, 2007-Ohio-4163, 871 N.E.3d 1167, ¶ 10. The first part
of the test, which is dispositive in this case, is a determination “whether the General
Assembly expressly intended the statute to apply retroactively[.]” Id. at ¶ 33, citing State
v. Hubbard, 2020-Ohio-856, 146 N.E.3d 593, ¶ 22 (12th Dist.). If there is not an express
intention of retroactive application, the analysis ends and the statute has prospective
application.3 Id.
{¶ 26} The General Assembly has not expressly indicated, through H.B. 228’s
language or otherwise, an intent that H.B. 228 have retroactive application to offenses
committed before March 28, 2019. Lewis at ¶ 37. Thus, H.B. 228’s change to the
burden of proof is not applicable to an alleged crime that occurred before March 28, 2019
but which came to trial on or after March 28, 2019. As such, Irvin was not entitled to the
benefit of H.B. 228’s burden-shifting modification.4
{¶ 27} Irvin’s first assignment of error is overruled.
III. Violent Offender Database
{¶ 28} The second assignment of error asserted by Irvin states:
THE TRIAL COURT ERRED WHEN IT FOUND THAT LANCE IRVIN WAS
A VIOLENT OFFENDER.
3
Assuming an express intention of retroactive application, the second part of the test
requires a determination whether the statute is remedial or substantive. If remedial,
retroactive application is permitted. State v. White, 132 Ohio St. 3d 344, 2012-Ohio-
2583, 972 N.E.2d 534, ¶ 27.
4
We reached a similar conclusion in State v. Koch, 2019-Ohio-4099, 146 N.E.3d 1238
(2d Dist.). But Koch’s trial occurred before March 28, 2019.
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{¶ 29} Irvin claims the Violent Offender Database (“VOD”) enacted by S.B. 231 is
unconstitutional because it is violative of the prohibition against cruel and unusual
punishment. He thus asserts the trial court erred by finding him a violent offender subject
to enrollment in the VOD.
{¶ 30} In enacting S.B. 231, known as Sierah’s Law, the General Assembly
established a statewide Violent Offender Database along with a legal presumption that
offenders convicted of certain violent crimes must enroll therein for a period of 10 years
following their release from prison. See R.C. 2903.41 through R.C. 2903.43. As
pertinent hereto, R.C. 2903.41(A) defines a “violent offender” to include, among others,
any person convicted of murder in violation of R.C. 2903.02.
{¶ 31} Irvin contends that the duty to enroll created by Sierah’s Law constitutes
cruel and unusual punishment because it is an additional penalty to his prison sentence.
We disagree.
{¶ 32} Classification as a violent offender and enrollment into the VOD are akin to
designation as a sexual offender and the registration duties attendant thereto, as both are
“a collateral consequence of the offender's criminal acts rather than a form of punishment
per se.” Hubbard, 2020-Ohio-856, 146 N.E.3d 593, ¶ 32 (12th Dist.), citing State v.
Ferguson, 120 Ohio St. 3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 34. See also State v.
Caldwell, 2014-Ohio-3566, 18 N.E.3d 467, ¶ 30-35 (finding that classification as an arson-
offender and registration in the arson-offender registry was a collateral consequence of
committing an arson offense). Instead, these designations and the required
enrollment/registration constitute a “remedial, regulatory scheme designed to protect the
public rather than punish the offender.” Ferguson at ¶ 34.
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{¶ 33} As pointed out by the Twelfth District Court of Appeals in Hubbard, the
requirements for violent offenders are even less onerous than those for sex offenders.
First, the court noted that a sex offender cannot challenge his or her classification, while
a violent offender may present evidence to rebut the presumption of enrollment. Id. at
¶ 34. Next, a violent offender need not register as often as a sex offender. Hubbard at
¶ 35. And, while a sex offender may have to register in multiple counties, a violent
offender need register only in his or her county of residence. Id. Further, sex offenders
have residence restrictions that are not applicable to violent offenders. Id. The Ohio
Supreme Court has ruled that the sex offender designation and registration scheme does
not constitute cruel and unusual punishment. See State v. Blankenship, 145 Ohio St. 3d
221, 2015-Ohio-4624, 48 N.E.3d 516. Based upon this conclusion, we find that the S.B.
231 registration requirement does not constitute cruel and unusual punishment.
{¶ 34} Irvin’s second assignment of error is overruled.
IV. Manifest Weight of the Evidence
{¶ 35} Irvin’s third assignment of error states:
THE MURDER AND FELONIOUS ASSAULT CONVICTIONS ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
{¶ 36} Irvin asserts his convictions were not supported by the evidence because
his testimony established he acted in self-defense.
{¶ 37} In a challenge based on the weight of the evidence, an appellate court
considers not only the quantity of the evidence, but the quality of the evidence as well.
State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12. Accordingly, an
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appellate court's manifest weight review requires the court to “review the record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its
way and created a manifest miscarriage of justice warranting reversal and a new trial.”
State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin,
20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist.
Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A jury’s verdict “should be reversed as
being against the manifest weight of the evidence ‘only in the exceptional case in which
the evidence weighs heavily against the conviction.’ ” Hill at ¶ 8, quoting Martin at 175.
{¶ 38} In a situation involving death or great bodily harm, a defendant is not entitled
to a finding of self-defense if (1) the defendant was at fault in creating the situation giving
rise to the affray, (2) the defendant did not have a bona fide belief that he was in imminent
danger of death or great bodily harm and that his only means of escape from such danger
was the use of such force, or (3) the defendant violated any duty to retreat or avoid the
danger. State v. Gillespie, 172 Ohio App. 3d 304, 2007-Ohio-3439, 874 N.E.2d 870, ¶ 12
(2d Dist.), citing State v. Robbins, 58 Ohio St. 2d 74, 388 N.E.2d 755 (1979). These
elements are cumulative, and if the defendant fails to prove any of the elements by a
preponderance of the evidence, the claim that he acted in self-defense necessarily fails.
State v. Williford, 49 Ohio St. 3d 247, 249, 551 N.E.2d 1279 (1990), citing State v.
Jackson, 22 Ohio St. 3d 281, 284, 490 N.E.2d 893 (1986).
{¶ 39} Irvin does not challenge the jury’s conclusion that the State proved all of the
elements of the charged offenses. Rather, as previously stated, his argument is
premised upon his claim that he established the affirmative defense of self-defense.
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Essentially, he argues the jury lost its way by failing to credit his testimony.
{¶ 40} “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 41} Irvin’s argument ignores the fact that the State presented the testimony of
three eyewitnesses, all of whom testified that Irvin left Joseph’s home after the initial
struggle with Jesse. Joseph, DelGrosso and Clark testified Irvin then returned and
walked into the house with a gun. Their testimony indicates that Jesse had his hands up
in the air and was backing away from Irvin when Irvin shot him. This testimony, which
the jury was free to credit over that of Irvin, negated Irvin’s self-defense claim.
{¶ 42} Upon review, we do not agree that the jury clearly lost its way in choosing
to believe the testimony of Joseph, DelGrosso and Clark and to disbelieve the testimony
presented by Irvin. A trier of fact is free to believe all, some, or none of the testimony of
each witness appearing before it. State v. Wright, 8th Dist. Cuyahoga No. 80555, 2002-
Ohio-4279, ¶ 25.
{¶ 43} The third assignment of error is overruled.
V. Motion to Suppress
{¶ 44} For his fourth assignment of error, Irvin asserts the following:
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THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION TO
SUPPRESS EVIDENCE.
{¶ 45} Appellate “review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
An “appellate court must accept the trial court's findings of fact if they are supported by
competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d
583 (1982). Accepting “these facts as true, the appellate court must then independently
determine, without deference to the [legal] conclusion[s] of the trial court, whether the
facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539 (3d Dist.1997).
{¶ 46} Irvin claims that, despite the assertion of his right to counsel, the police
subjected him to custodial interrogation concerning the injury to his head, and the State
later used his answers against him at trial. We disagree.
{¶ 47} There is no dispute that Irvin, after he was in custody and had been apprised
of his Miranda rights, asserted his right to counsel. Thereafter, he indicated he had a
head injury. Detective David House was informed of Irvin’s claim and he asked Irvin
questions to determine whether the injury was sustained before or after he was taken into
custody. House asked Irvin what was wrong with his head, to which Irvin replied that he
had been hit with a rifle during the altercation. House asked him what was wrong with
his head, and Irvin indicated he was having “blurred vision” and might have a concussion.
Suppression Tr. p. 110. House noted the incident had occurred 12 hours earlier, and
Irvin responded he had fallen asleep. House asked Irvin where his head was injured;
Irvin indicated a spot on his forehead and then stated “I fell back and the gun did what it
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did.” At that point, House directed an officer to transport Irvin to a local hospital for an
examination.
{¶ 48} House later instructed Dayton Police Department Sergeant Jeffrey Spires
to conduct an investigation to document whether the injury had occurred prior to or after
Irvin’s arrest. According to Spires, he initially met Irvin in the emergency room at
Grandview Hospital, and Spires informed Irvin he was there only to investigate the injury
to Irvin’s head. He testified Irvin informed him the injury occurred when he was hit in the
head with a rifle. Spires then asked whether the injury had been caused by the Dayton
Police. Irvin answered negatively and went on to state that he had been in an argument.
At that point, Spires informed Irvin that he did not want to know about the altercation.
Spires then informed Irvin that he needed to take pictures to document the injury. While
Spires was photographing the injury, Irvin began to cry and stated, “I don’t know what
happened. The gun just went off. I ruined my life.” Suppression Tr. p. 142.
{¶ 49} After a suspect invokes his Miranda rights, custodial interrogation is
prohibited. Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966); State v. Coleman, 2018-Ohio-4043, 121 N.E.3d 91, ¶ 13 (2d Dist.). Custodial
interrogation occurs when an officer, by words or action, seeks information from a suspect
that he knows is reasonably likely to be incriminating. Rhode Island v. Innis, 446 U.S.
291, 300-301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); State v. Thompson-Shabazz,
2017-Ohio-7434, 96 N.E.3d 1146, ¶ 17 (2d Dist.).
{¶ 50} The suppression hearing testimony established that the Dayton Police
Department (DPD) has a policy outlining the procedure to be used to investigate and
document an injury to a person in police custody. The record reflects that House and
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Spires, consistent with the policy, limited their questions to the circumstances surrounding
Irvin’s claimed head injury.
{¶ 51} We conclude the trial court’s suppression decision was correct. The
inquiries at issue were prompted by Irvin’s injury complaint. Given this, the questioning
was required by the DPD policy. House and Spires confined their questions to the
circumstances of the claimed injury. Thus, the questions were not designed to elicit, or
were not reasonably likely to elicit, an incriminating response from Irvin. As such, Irvin
was not subjected to custodial interrogation after his invocation of his right to counsel.
{¶ 52} The fourth assignment of error is overruled.
VI. Conclusion
{¶ 53} All of Irvin’s assignments of error being overruled, the judgment of the trial
court is affirmed.
VII. Certification of a Conflict
{¶ 54} Because we recognize that our judgment is in conflict with the Twelfth
District’s holdings in Gloff, 2020-Ohio-3143, __ N.E.3d __ (12th Dist.) and Lewis, 12th
Dist. Butler No. CA2019-07-128, 2020-Ohio-3762, we sua sponte certify a conflict to the
Supreme Court of Ohio pursuant to Article IV, Section 3(B)(4), Ohio Constitution. The
certified question is:
Do the burden-shifting changes made to the self-defense statute, R.C.
2901.05, through the passage of H.B. 228 apply to offenses that were
committed before the effective date of the statute but tried after the effective
date?
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{¶ 55} We note that our sua sponte decision to certify a conflict does not relieve
the parties of the obligation to follow all Supreme Court procedural rules governing the
filing of an appeal of right. We also direct the parties to S.Ct.Prac.R. 8.01, which requires
“an interested party to the proceeding” to file a notice of the certified conflict in the
Supreme Court.
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HALL, J., concurs.
FROELICH, J., dissents:
{¶ 56} I agree with the Twelfth District’s interpretation of the applicability of H.B.
228 and therefore dissent. I concur with all other aspects of the opinion of the majority.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Robert Alan Brenner
Hon. Michael W. Krumholtz