State v. Christian ( 2021 )


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  • [Cite as State v. Christian, 
    2021-Ohio-3737
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                        :
    Plaintiff-Appellee,                  :
    No. 110310
    v.                                   :
    ANTHONY CHRISTIAN,                                    :
    Defendant-Appellant.                 :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED
    RELEASED AND JOURNALIZED: October 21, 2021
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case Nos. CR-19-642849-A and CR-20-650941-B
    Appearances:
    Michael O’Malley, Cuyahoga County Prosecuting
    Attorney, and Lisa J. Turoso, Assistant Prosecuting
    Attorney, for appellee.
    Rick L. Ferrara, for appellant.
    EILEEN A. GALLAGHER, J.:
    Defendant-appellant, Anthony Christian (“Christian”), appeals from
    his conviction and sentences and assigns three errors for our review. Christian does
    not show prejudice from any claimed ineffective assistance of counsel, his conviction
    is not against the manifest weight of the evidence and Christian cannot show, by
    clear and convincing evidence, that the trial court erred in sentencing him to
    consecutive sentences. We affirm the judgment of the trial court.
    I.   Factual and Procedural Background
    This case arises from two separate criminal prosecutions. The first is
    CR-19-642849 in which Christian was indicted for felonious assault and domestic
    violence (“domestic violence prosecution”). Christian pleaded guilty to an amended
    count of attempted felonious assault as well as domestic violence and was sentenced
    to five years of community control on each count on January 14, 2020.
    The second case, CR-20-650941, was initiated on July 30, 2020 when
    a Cuyahoga County Grand Jury indicted Christian for one count of having weapons
    while under disability (“weapons prosecution”). This case was tried to the court.
    The state of Ohio presented only one witness, Cleveland Police
    Detective James Crivel, who testified that, on May 27, 2020, he was called to 4902
    Outhwaite to investigate the shooting of Deandre Davis (“Davis”) and testified to the
    investigation of that shooting. The state of Ohio also presented a certified journal
    entry of the appellant’s prior conviction for a crime of violence, to-wit: attempted
    felonious assault.
    In the course of his investigation, Crivel found, and retrieved, video
    surveillance footage from multiple video cameras in the area of the shooting.
    One of the videos, exhibit No. 2, shows Davis walking westbound on
    the sidewalk on Outhwaite as two vehicles approach, traveling eastbound. The first
    vehicle was a Jeep and the second, a black Chevrolet Malibu. The Malibu stopped,
    and a passenger, later identified as Christian, exited the vehicle and walked towards
    Davis. A moment later, the Jeep stopped and an occupant, later identified only as
    “Shy,” the brother of a man named Elijah (“Eli”), exited that vehicle, walked to the
    sidewalk and shot Davis in the eye. After the shooting, both Christian and “Shy”
    returned to the respective vehicles from which they had earlier exited and left the
    scene.
    Crivel learned that the Malibu was a rental car and that it had been
    rented to a female who identified Christian as the passenger who got out of the
    Malibu at the scene. Christian was arrested and interviewed by Crivel. That
    interview was recorded on Crivel’s city-issued body cam and admitted as exhibit No.
    1 at trial.
    During the interview, Christian related that the precipitating event
    that led to this incident was that Davis, his cousin, had stolen a firearm owned by
    “Eli” and that Eli’s brother, “Shy,” was trying to retrieve that firearm. Christian, for
    his part, tacitly acknowledged that he was in possession of a firearm but claimed that
    he was going to try and persuade Davis to return the firearm and was trying to
    “defuse” the situation. Additionally, Christian stated that he brought a firearm
    “cause the dudes we over there with, they beefing with us. They try to kill me.”
    The court found Christian guilty of the sole charge in the indictment.
    On February 9, 2021, the trial court conducted both a sentencing
    hearing for the weapons prosecution as well as a hearing to impose sanctions for
    violation of community control in the domestic violence prosecution.
    At that hearing, the trial court revoked Christian’s community control
    sanctions in the domestic violence prosecution and imposed a sentence of 24
    months on Count 1 and 16 months on Count 2 to run concurrent with each other,
    but consecutive to an 18-month sentence in the weapons prosecution.
    Christian appeals and assigns three errors for our review arising out
    of both prosecutions.
    II. Law and Analysis
    Assignment of Error I: DEFENSE COUNSEL PROVIDED
    CONSTITUTIONALLY INEFFECTIVE ASSISTANCE BY FAILING TO
    RAISE A DEFENSE TO THE CHARGE OF HAVING WEAPONS
    WHILE UNDER DISABILITY.
    Ohio Courts use a two-step process to resolve an appellant’s claim
    that his counsel provided ineffective assistance.
    First, there must be a determination as to whether there has been a
    substantial violation of any of defense counsel’s essential duties to his
    client. Next, and analytically separate from the question of whether the
    defendant’s Sixth Amendment rights were violated, there must be a
    determination as to whether the defense was prejudiced by counsel’s
    ineffectiveness.
    State v. Bradley, 
    42 Ohio St.3d 136
    , 141-142, 
    538 N.E.2d 373
     (1989).
    Due to recent statutory amendments, “‘the burden of proof for the
    affirmative defense of self-defense has shifted to the state, [but] the burden of
    production for all affirmative defenses, including self-defense, remains with the
    defendant.’” Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-
    2685, ¶ 46, quoting State v. Messenger, 10th Dist. Franklin No. 19AP-879, 2021-
    Ohio-2044, ¶ 44. Once the defendant has satisfied the burden of production, then
    “the state [only needs to] disprove one of the elements of self-defense beyond a
    reasonable doubt at trial to sustain its burden at trial.” State v. Walker, 8th Dist.
    Cuyahoga No. 109328, 
    2021-Ohio-2037
    , ¶ 13.
    A defendant may raise a claim of self-defense against prosecution for
    possession of having weapons while under disability. “We therefore hold that the
    prohibitions of the Ohio Revised Code do not restrict the right of an individual under
    disability from acting in self-defense, when he did not knowingly acquire, have, carry
    or use a firearm previously.” State v. Hardy, 
    60 Ohio App.2d 325
    , 330, 
    397 N.E.2d 773
     (8th Dist.1978). However, this defense is limited to the defense of one’s self.
    “We have found no authority in Ohio, or from any other jurisdiction for that matter,
    extending such an exception to the protection of others. Nor are we inclined, under
    the facts of the present case, to recognize such an exception.” State v. Fryer, 
    90 Ohio App.3d 37
    , 43, 
    627 N.E.2d 1065
     (8th Dist.1993).
    Christian is unable to show prejudice from any alleged deficiency by
    trial counsel. “[U]nlike a jury, which must be instructed on the applicable law, a trial
    court judge is presumed to know the applicable law and apply it accordingly.” State
    v. Turner, 11th Dist. Ashtabula No. 2004-A-0005, 
    2004-Ohio-5632
    , ¶ 15.
    Accordingly, we presume that the court below was fully aware of the law of self-
    defense and, even if it were not argued, the trial would have considered that in her
    deliberations. The self-defense exception to the charge of having weapons while
    under disability is an extremely narrow exception.
    In addition to limiting this defense to a defense of self only, this court
    has recognized that ‘“the self-defense exception does not apply in circumstances
    where the defendant had possession of the weapon prior to the incident giving rise
    to the charges or in anticipation of a confrontation.’” State v. Kyle, 8th Dist.
    Cuyahoga No. 108702, 
    2020-Ohio-3281
    , ¶ 34 quoting State v. Armstrong, 8th Dist.
    Cuyahoga No. 103423, 
    2016-Ohio-2842
    , ¶ 25.
    Christian’s possession of the firearm before traveling in a car to the
    scene of the anticipated altercation negates a claim for self-defense even if we were
    to accept, for purposes of this appeal, that Christian took control of the weapon
    immediately prior to traveling to the scene of the crime. See State v. Martin, 8th
    Dist. Cuyahoga No. 63153, 
    1993 Ohio App. LEXIS 4660
    , 9 (Sept. 30, 1993)
    (notwithstanding individuals previously shooting defendant’s house and burning
    his wife’s car, defendant did not take possession of the firearm with little time to
    think or to avoid a life-threatening situation). Here, as in the Martin case, the fact
    that Christian had possession of the firearm well before the exigency arose, negates
    the existence of a claim for self-defense.
    Appellant has not demonstrated that he was prejudiced by the failure
    of counsel to raise a defense to the charge of having weapons while under disability.
    We overrule Christian’s first assignment of error.
    Assignment of error II: THE MANIFEST WEIGHT OF THE
    EVIDENCE DID NOT WARRANT CONVICTION ON ANY COUNT.
    A manifest weight challenge attacks the credibility of the evidence
    presented and questions whether the state met its burden of persuasion. State v.
    Bowden, 8th Dist. Cuyahoga No. 92266, 
    2009-Ohio-3598
    , ¶ 13. When considering
    an appellant’s claim that a conviction is against the manifest weight of the evidence,
    the court of appeals sits as a “thirteenth juror” and may disagree “with the
    factfinder’s resolution of * * * conflicting testimony.” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    678 N.E.2d 541
     (1977), citing Tibbs v. Florida, 
    457 U.S. 31
    , 42, 
    102 S.Ct. 2211
    , 
    72 L.Ed.2d 652
     (1982). The reviewing court must examine the entire
    record, weigh the evidence and all reasonable inferences, consider the witnesses’
    credibility and determine whether, in resolving conflicts in the evidence, the trier of
    fact “‘clearly lost its way and created such a manifest miscarriage of justice that the
    conviction must be reversed and a new trial ordered.’” Thompkins at 387, quoting
    State v. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1st Dist.1983).
    We agree with Christian that the video produced by the state does not
    definitively show him in possession of a firearm. There is a single frame in the video
    that appears to show a firearm in Christian’s right hand. The video is consistent with
    the fact that Christian may have had a firearm but does not establish that the firearm
    is a working weapon.
    However, when asked by Detective Crivel why he brought a gun to see
    Davis, Christian stated he brought a firearm “cause the dudes we over there with,
    they beefing with us. They try to kill me.” In context, Christian statement confirms
    that he had a firearm in his possession, implied that the firearm was in working
    order and that he intentionally brought the firearm to a potential confrontation.
    Accordingly, we recognize that self-defense was not raised at trial, but
    we cannot say that the trial court’s verdict was against the manifest weight of the
    evidence either in finding that Christian had possession of a firearm or in not finding
    that Christian was justified by a claim for self-defense. We overrule Christian’s
    second assignment of error.
    Assignment of error III: THE TRIAL COURT ERRED IN IMPOSING
    CONSECUTIVE SENTENCES BETWEEN BOTH CASE NUMBERS.
    Christian’s final argument is that the imposition of consecutive
    sentences here is disproportionate to the offenses. “On appeals involving the
    imposition of consecutive sentences, R.C. 2953.08(G)(2)(a) directs the appellate
    court ‘to review the record, including the findings underlying the sentence’ and
    [must] modify or vacate the sentence ‘if it clearly and convincingly finds * * * [t]hat
    the record does not support the sentencing court’s findings * * *.’” State v. Bonnell,
    
    140 Ohio St.3d 209
    , 
    2014-Ohio-3177
    , 
    16 N.E.3d 659
    , ¶ 28.
    Christian contends that the trial court erred insofar as it determined
    that the conviction of having weapons while under disability was the most serious
    offense. Further, Christian contends that all mitigating factors favored him and no
    aggravating factors were present.
    Both attempted felonious assault and having weapons while under
    disability are felonies of the third degree. Given that the charged conduct in having
    weapons while under disability involved Christian bringing a firearm to the scene of
    a shooting, we cannot say that the record clearly and convincingly shows that the
    trial court erred in concluding that this charge was the most serious offense.
    Christian has not shown by clear and convincing evidence that the
    trial court erred in sentencing him to consecutive sentences in the weapons
    prosecution and the domestic violence prosecution. We overrule Christian’s third
    assignment of error.
    Judgment affirmed.
    It is ordered that appellee recover from 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
    conviction having been affirmed, any bail pending is terminated.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure.
    EILEEN A. GALLAGHER, JUDGE
    FRANK D. CELEBREZZE, JR., P.J., and
    MICHELLE J. SHEEHAN, J., CONCUR
    

Document Info

Docket Number: 110310

Judges: E.A. Gallagher

Filed Date: 10/21/2021

Precedential Status: Precedential

Modified Date: 10/21/2021