State v. Jefferson , 2022 Ohio 3448 ( 2022 )

[Cite as State v. Jefferson, 2022-Ohio-3448.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
EARL C. JEFFERSON, II, : Case No. 2021 CA 0081
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2020-CR-0775
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 29, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY D. BISHOP MATTHEW J. MALONE
Prosecuting Attorney 10 East Main Street
Richland County, Ohio Ashland, Ohio 44805
JODIE SCHUMACHER
TERI BURNSIDE
Assistant Prosecuting Attorneys
Richland County Prosecutor’s Office
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0081 2
Baldwin, J.
{¶1} Defendant-appellant Earl Jefferson, II appeals his conviction from the
Richland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 7, 2021, the Richland County Grand Jury indicted appellant on
one count of aggravated murder in violation of R.C. 2903.01(A) and 2929.02(A), an
unclassified felony, one count of aggravated murder in violation of R.C. 2903.01 and
2929.02(A), an unclassified felony, two counts of aggravated burglary in violation of R.C.
2911.11(A)(1) and 2911.11(B), felonies of the first degree, one count of murder in
violation of R.C. 2903.02(A), 2903.02(D) and 2929.02(B), an unclassified felony, and one
count of attempted murder in violation of R.C. 2923.02/2903.02(A), R.C. 2903.02(D) and
R.C. 2929.02(B), a felony of the first degree. Appellant also was indicted on two counts
of felonious assault in violation of R.C. 2903.11(A)(2) and 2903.11(D)(1)(a), a felonies of
the second degree, one count of felonious assault in violation of R.C. 2903.11(A)(1) and
2903.11(D)(1)(a), a felony of the second degree, one count of tampering with evidence in
violation of R.C. 2921.12(A)(1), a felony of the third degree, one count of domestic
violence in violation of R.C. 2919.25(A) and 2919.25(D)(2), a misdemeanor of the first
degree and one count of tampering with evidence in violation of R.C. 2921.12(A)(1) and
(2) and R.C. 2921.12(B), a felony of the third degree. The indictment also contained ten
firearm specifications,
{¶3} At his arraignment on February 3, 2021, appellant entered a plea of not
guilty to the charges. Pursuant to a Judgment Entry filed on October 15, 2021, one of the
charges of tampering with evidence was dismissed upon appellee’s motion.
Richland County, Case No. 2021 CA 0081 3
{¶4} A jury trial commenced on October 11, 2021. The following testimony was
adduced at trial.
{¶5} Shaylee Wade testified that she had four children with appellant and that
she had been in a relationship with him for 16 years. Appellant lived with Wade and the
children. Wade testified that during the early morning hours of November 26, 2020, she
and Dwayne Nabors were shot by appellant while they were trying to leave a hotel room.
{¶6} Wade testified that she was 14 years old when she first got together with
appellant and that he was 27 at the time. At the time of the shooting, she was 29 and
appellant was 43 years old. She described her relationship with appellant as “toxic” and
testified that “it was hell,..” Trial Transcript at 257. She had their first child when she was
16 years old. Wade testified that she was the breadwinner in the family and had gotten
her nursing license. Appellant would sometimes watch the children while she was working
or going to school, but most of the time he would leave with his friends or cousins and “do
his own thing pretty much.” Trial Transcript at 258. The children were often left at the
home of appellant’s parents or the couple’s oldest child would watch them. Wade testified
that she tried to split up with appellant several times and had asked him to leave, but that
appellant’s name was on the lease so he never really left.
{¶7} There was testimony that five or six years before the shooting, Wade started
sleeping upstairs in her daughter’s bed. They lived in the same house, but led separate
lives. She testified that about a month before the shooting, she caught appellant in a park
with an 18 year old after tracking her car, which had been used by appellant, to the park
via an OnStar app on her phone. Appellant ran away and did not stay, but the girl told
Richland County, Case No. 2021 CA 0081 4
Wade that she had been with appellant the day before as well and laughed in Wade’s
face.
{¶8} Wade testified that she met Dwyane Nabors on Facebook and that she
thought that they had mutual friends. Close to two months before the shooting, Nabors
tried to get Wade to visit him in New Jersey where he was working. Wade told him that
she could not visit him there because of her children. They were trying to see each other
prior to the shooting and would often text. The first time that the two spoke or met face
to face was on November 25, 2020. She described him as “very laid back, very positive”
and a “caring” person. Trial Transcript at 268.
{¶9} On the evening of November 25, 2020, Wade was preparing for
Thanksgiving. Wade indicated to appellant and her children that she needed to go to the
store to grab a few items. She did not take her phone with her because appellant had
taken her phone that day. She testified that appellant would look though her phone.
Wade took her daughter’s phone with her because she was planning on meeting with
Nabors and needed a phone. She met Nabors at his business and the two arranged to
get a motel room together. Wade went to the motel and checked into room 131 at around
8:30 p.m. She then called Nabors and told him that she was there and called her oldest
daughter and told her that she was with one of her friends and would be home later. At
the motel, Wade and Nabors talked, drank liquor, and eventually had sex. She testified
maybe a year before, she had had intercourse with someone else before.
{¶10} At around midnight, the two were leaving the motel. Wade testified that
earlier, at around 10:30 p.m., her phone, which was in appellant’s possession, called
Nabor’s phone. Nabors looked at his phone and saw Wade’s picture. When Nabors
Richland County, Case No. 2021 CA 0081 5
answered the phone and said hello, no one on the other end of the line spoke and then
the call ended. Wade testified that she did not have any suspicions that appellant was
looking for her because they were both doing their own thing at the time and in her mind,
the relationship had been over for years.
{¶11} When the two exited the motel room, Nabors was in front of Wade. When
Nabors opened the door to leave, Wade heard multiple shots. She testified that Nabors
put his hands up and said “whoa” twice. Trial Transcript at 285. Nabors then fell over and
appellant came into the room and started shooting her. Appellant was not saying anything
at the time. Wade testified that Nabors was trying to crawl over to her. After being shot
multiple times by appellant, Wade asked him to stop but he would not. She then
mentioned their children several times and appellant said “Look what you made me do.”
Trial Transcript at 286. Wade testified that she saw appellant shoot Nabors in the back of
the head while Nabors was on the ground. Before leaving the room, appellant said that
he was going to kill himself.
{¶12} Wade testified that she then crawled over to the phone in the room, but that
all she heard was beeping because it was unplugged. She called 911 using Nabors’s
phone. Wade testified that she had nine wounds and had been shot one time in her left
knee, three times in her groin area, four times in her abdomen, and once in her buttocks.
She had to have a colostomy bag and had to have a hysterectomy. She then had surgery
to repair her colon and remove the bag. In all, Wade was in the hospital for 21 days. On
the day of her discharge from the hospital, one of the bullets in her left side had worked
its way out and had to be cut out. Nabors died as a result of his injuries. Wade testified
that neither she nor Nabors had a gun on their person.
Richland County, Case No. 2021 CA 0081 6
{¶13} Officer Thayne Telquist, who is with the Mansfield Police Department,
testified that he responded to the scene. He testified that the door to the room was open
and that he observed Wade laying across the threshold of the door holding her stomach
and bleeding. There was a lot of blood. He also observed an unresponsive man in the
room. When he asked Wade who had shot her, she said that the shooter was appellant.
She indicated that he was the father of her children and gave out appellant’s address.
Officer Telquist testified that he found a couple of shell casings south of the door on the
right hand side. He further testified that tires had been slashed on a white vehicle and a
pickup truck in the parking lot. The vehicles belonged to Wade and Nabors.
{¶14} Larry Schacherer testified that he was a Detective with the Mansfield Police
Department and was at the station when appellant turned himself in later in the day. He
testified that appellant was “upset, crying, nervous.” Trial Transcript at 400. He further
testified that he assisted Detective J. Mark Perry in getting a gunshot residue kit from
appellant.
{¶15} George Edward Staley, Jr. who is with the Ohio Bureau of Criminal
Investigation, testified that he photographed and examined the scene. He testified that he
found numerous shell casings inside and outside the motel room and numerous shell
fragments inside the room. He testified that Nabors had keys clenched in his hand and
that the phone was on the floor. There was testimony at trial that Nabors’s case of death
was multiple gunshot wounds. According to forensic Pathologist Bryan Casto, Nabors
was shot in the back of the head, the left upper lip area, the back of his left forearm, in
the front of his right forearm, in the left side of his abdomen, and once in each thigh.
Richland County, Case No. 2021 CA 0081 7
{¶16} Detective J. Mark Perry of the Mansfield Police Department testified that he
was the lead investigator for the incident. He testified that six shell casings were collected
and that while three were outside on the sidewalk outside the door, the others were within
the motel room. There were no weapons at the crime scene and the tires were slashed
on both Nabors’s and Wade’s vehicles. As part of his investigation, Perry also reviewed
the surveillance video provided by the motel. He testified that appellant was first shown
on the video at 12:49 a.m. on November 26, 2020. Appellant went out of camera view
and then showed up on the other side near room 131 . He further testified that the video
showed a Chevy Cruz driven by appellant driving into the motel’s parking area at 12:44
a.m. on November 26, 2020. Appellant was observed parking next to Wade’s vehicle and
attempting to peer into room 131. He then walked back to Wade’s car.
{¶17} Perry testified that appellant then left the motel facility at approximately
12:52 a.m. on November 26, 2020 and came back to the motel facility at 1:00 a.m. At
approximately 1:02 a.m., appellant walked around Wade’s car and slashed her tires and
about four minutes later, slashed Nabors’s tires. At 1:04 a.m., appellant appeared back
in front of room 131 again and was still in front of the room at 1:30 a.m. Appellant began
shooting outside the room at 1:32 a.m. and 48 seconds and was inside the room at 1:32
a.m. and 50 seconds. Appellant then exited the room at 1:35 a.m. and 28 seconds and
then went right back in at 1:35 a.m. and 32 seconds. Appellant fled southwest to the back
of the building and left in the Chevy Cruz at 1:36. a.m. In total, appellant was on the motel
property for 8 minutes and 32 seconds before the shooting and a total of 40 minutes from
the time that he arrived until he arrived the second time. Between 1:00 a.m. and 1:36
a.m., no car other than the Chevy Cruz came in or out of the motel property.
Richland County, Case No. 2021 CA 0081 8
{¶18} Appellant testified at trial that on the evening of November 25, 2020, he
started worrying about Wade after he realized that the store was closed and went out to
look for her. He testified that he used GPS to find out where her car was located and then
went to the motel using a borrowed car since Wade had taken the only family vehicle.
Appellant testified that he probably had a gun with him because he always carried a gun.
He testified that he saw Wade’s car, walked around the parking lot, and then slashed the
tires on her car and the tires on a white truck. He then went to the door of the motel room
and sat at the door while listening. Appellant testified that he heard Wade having sex. The
following testimony was adduced when he was asked what happened next:
{¶19} A. I don’t know. It was like the door opened and I didn’t know who it was
until the door opened. Then all I remember is him stepping back, saying, “Hey, hey, hey,
he got it.” He was smiling and laughing. Then I looked at Shaylee, and she was looking
at him and she was smiling. And I just, I don’t know. I just lost control.
{¶20} Q. Do you remember calling the front desk?
{¶21} A. Yes.
{¶22} Q. Why did you call the front desk?
{¶23} A. Because I wanted to get help.
{¶24} Q. Did you - - what did you do next?
{¶25} A. After I made the phone call to the front desk, I was talking to Shaylee for
a little bit. Then I waited until I heard sirens. I waited until I knew help was on the way,
and I told her I was about to go kill myself. And that’s why I left.
Richland County, Case No. 2021 CA 0081 9
{¶26} Trial Transcript at 614. He testified that he loved Wade unconditionally and
that most of their fights were from her cheating. Appellant testified that they were going
to get married.
{¶27} On cross-examination, appellant admitted that after verifying Wade’s
location at the motel, he left for eight minutes to try to cool off. He then returned to the
motel at 1:00 a.m. and did not leave the property until 1:36 a.m. after calling for help.
Appellant testified that after slashing the tires, he could have left and gone home but went
and stood outside room 131 for over 25 minutes. According to him, he “could not tear
myself from the scene.” Trial Transcript at 636. Appellant testified that when the motel
room door opened, Nabors jumped towards him and he was scared and fired the first shot
and then “just lost it.” Trial Transcript at 637. He testified that he never aimed at Wade,
but that she was shot because when he was shooting at Nabors, they were right in front
of each other. Appellant denied shooting Nabors in the back of the head while Nabors
was laying on the ground. Appellant admitted that he called the front desk and asked
them to call 911 to get help and then fled. He did not dispute that he shot Nabors seven
times or that he shot him in the face or the back of the head or that he shot Wade four to
five times. He claimed that he did not aim at Wade. Appellant turned himself in almost 14
hours later after driving around and thinking about what had happened. He testified that
he threw his gun, a .40 caliber handgun, in a dumpster. The gun was never recovered.
Appellant testified that he “wasn’t in [his] right mind” and had “no control over myself that
day.” Trial Transcript at 650.
Richland County, Case No. 2021 CA 0081 10
{¶28} Bureau of Criminal Investigation Agent Ted Manasian analyzed the gunshot
residue test. He testified that particles that are characteristic of gunshot residue were
identified on the samples taken from appellant. Trial Transcript at 462-463.
{¶29} Wade’s personal cell phone, which had been in appellant’s possession on
the evening of November 25, 2020, was not returned by appellant and was never located.
{¶30} At the conclusion of the evidence and the end of deliberations, the jury, on
October 18, 2021, found appellant guilty of all counts except the attempted murder of
Wade. Appellant was sentenced on October 18, 2021.
{¶31} Appellant now appeals, raising the following assignments of error on
appeal:
{¶32} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
ORDER A COMPETENCY EVALUATION OF APPELLANT.”
{¶33} “II. APPELLANT’S CONVICTIONS FOR AGGRAVATED BURGLARY
WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. THEREFORE, HIS
CONVICTION FOR FELONY MURDER IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.”
{¶34} “III. APPELLANT’S CONVICTION FOR AGGRAVATED MURDER WAS
NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶35} “IV. APPELLANT’S CONVICTION FOR MURDER WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶36} “V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
INSTRUCT THE JURY REGARDING SELF-DEFENSE.”
I
Richland County, Case No. 2021 CA 0081 11
{¶37} Appellant, in his first assignment of error, argues that the trial court abused
its discretion when it failed to order a competency evaluation of appellant. We disagree.
{¶38} We review the decisions of the trial court regarding competency evaluations
for an abuse of discretion. See, State v. Dye, 5th Dist. Licking No. 99–CA–2, 1999 WL
770619, (Sept. 2, 1999). In order to find that the trial court abused its discretion, we must
find that the trial court's decision was unreasonable, arbitrary or unconscionable and not
merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶39} In determining whether a defendant is competent to stand trial, the test is
“ “whether [the defendant] has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well as
factual understanding of the proceedings against him.” ’ ” State v. Neyland, 139 Ohio
St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing State v. Berry, 72 Ohio St.3d
354, 359, 650 N.E.2d 433 (1995), quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct.
788, 4 L.Ed.2d 824 (1960). It is with this standard in mind that we review the evidence in
this record to determine whether appellant raised a genuine question as to his
competency to stand trial and whether the trial court abused its discretion by declining to
order an evaluation.
{¶40} Appellant, in the case sub judice, filed a motion requesting a competency
evaluation on October 6, 2021. A hearing on the motion was held on October 8, 2021. At
the hearing, appellant testified that he dropped out of school in the tenth grade and that
he had never been charged with a crime before. At the hearing, appellant testified that he
had not been to any type of doctor in a long time. Appellant testified that, when asked
Richland County, Case No. 2021 CA 0081 12
what type of penalty that he would get if convicted of aggravated murder, that it would be
“[p]retty extensive.” Transcript of October 8, 2021 hearing at 5.
{¶41} During the hearing, the following argument occurred on the record:
{¶42} MS. SCHUMACHER [ASSISTANT PROSECUTING ATTORNEY]:
Additionally, Judge, we did - - obviously, we were in trial mode, focused on trial… proof
beyond a reasonable doubt. When we received Miss Kaiser’s motion, we did then kind
of shift gears a little bit, try to get supporting evidence.
There was two phone calls that the Defendant had made in jail, and I’ll present
those to the Court as well. In those phone calls, you can hear the Defendant - - I will
warn the Court it is very difficult to hear him. It is best heard with headphones. His voice
maybe can be picked up a little bit better there. But in the - - I’ll just mark it State’s Exhibit
4, this phone call. The file path is marked 3274869 underscore 4669Q underscore
1062021. This was made to phone number 419 - - I can’t read this - - 522-1090. You
can hear that there’s general discussion, and then the gist of the conversation is that it’s
normal, it’s flowing, we understand where we’re at, current time, place, those types of
impressions. There’s even a conversation about the Defendant indicating that if I were
out, I wouldn’t be sitting around doing nothing. I would be doing something. So not like
a psychotic indication. He’s present in the conversation. But, most notably, around the
15-minute mark, the Defendant starts talking about the State’s witnesses and those that
we subpoenaed, specifically asking that the person, the female, he’s talking to actually
call this person and see what she is going to testify to. She’s got to show up on Monday,
meaning there’s awareness of the Defendant of something is happening on Monday. And
I think he even specifically mentions the word “trial” or “court.” Okay?
Richland County, Case No. 2021 CA 0081 13
{¶43} THE COURT: Okay.
{¶44} MS. SCHUMACHER: The Defendant even says that that witness - - I
believe her name is - - it might be Tia, as it comes across. But he mentions that she
had surgery, so there’s even - - he’s been keeping up in the present, in his present mind,
following what is happening with people, understanding, making the connection in his
own mind that if she is recovering from surgery, even the ability to come to court is in
question. He then finally ends that conversation with you got to make contact with her.
That phone call might not be as telling as the next phone call, Judge. And I’ll mark
that State’s Exhibit 5. Again, we’re talking with another female. This file is 3272451
underscore 46692 underscore 1042021. This is phone number 1-419-545-9287. Here,
the Defendant discusses visitors, visits with the female. The female asks - - or the
Defendant states five minutes in, I have to go to court next week. And keep in mind this
is referencing - - this phone call occurred on October 4th of 2021, thereby making I have
to go to court next week very relevant. One week from the 4th puts that on October 11th.
The female asks the Defendant, Are you nervous? Are you okay? He says, I don’t know.
The Defendant says sometimes they give you a plea deal. The Defendant says I talked
about a plea deal, my lawyer came. The female asks, Can you tell me more or no? The
Defendant is very quiet, yet, though, at six minutes, five seconds, I’m not going to tell
nobody. Other conversation continues about six minutes and 25 seconds. Then the
female asks, Is it a good deal or a bad deal? The Defendant says, Bad. Conversation
goes on. Was it worse that what you were thinking you would get a trial? Was it a never-
ever-see-the-light-of-day plea? The Defendant says, Promise not to tell nobody what I
Richland County, Case No. 2021 CA 0081 14
say. The female says, I ain’t going to tell nobody. They pinky swear, and he says, They
offered me 42 years.
It is true, Judge, that the State never offered, quote, unquote, flat time at 42 years.
But that conversation is very telling in the sense that there were pretrial negotiations
between counsel indicating - - where the defense had requested flat time. If we’re looking
at the most egregious charges, our estimation is within the time frame of about 43 years
to life. And here the Defendant is recognizing - - he keyed up on that 42, so he’s following
along in these conversations and understanding the consequences, when you go back to
it is a never-ever-see-the-light-of-day plea.
So when you’re talking about a man who is 44 years old now getting an offer of - -
quote, unquote, offer of 42 years, making him potentially 86 years old, there’s a
recognition that this is a never-ever type of plea offer. There(sic) conversation continues,
Judge, to the point of where they talk about usually this is a 25-to-life max. The Defendant
says, They expect you to take the deal; if you don’t take the deal, they’re going to double
it if you go to trial. So he is recognizing consequences of going to trial and accepting a
plea.
Again, I’m highlighting this as when we’re looking at a competency evaluation, is
he understanding the proceedings against him, is he able to assist in his defense. As he
proceeds in that conversation, he talked about your lawyer couldn’t get a better one, so
we’re recognizing roles and relationships in the courtroom, recognizing what his attorney
is supposed to be doing for him.
He even comes back with the understanding they want, the people want, the death
penalty. That’s significant as well, because prior to our hearing here today, very early on
Richland County, Case No. 2021 CA 0081 15
in the case in that same conversation where I referenced that potential plea negotiation,
what might be deemed a plea negotiation, it was explained from the family, like, if we
even offer you the …. Minimum maximum of about 43 to life, the family still wants the
death penalty, explaining that the family if very upset. So that was definitely conveyed to
the Defendant. The Defendant was understanding that. And when he reiterates that
several months later and tell this other female on the phone that they want the death
penalty, I think there can be no doubt that the Defendant is certainly competent to stand
trial at this point.
{¶45} THE COURT: Okay.
{¶46} MS. SCHUMACHER: They go on and explain even current legislation and
talk about current legislation, talking about the abolishment of the death penalty and the
house bill and specific house bill number that is currently pending with the legislation.
Finally, then, what was - - the State’s understanding, and maybe defense wants to
admit it as a joint exhibit. If not, I think the State will offer it - - is the Defendant’s affidavit
which apparently spurred this motion. And within that affidavit - - I’ll just mark it as State’s
Exhibit 6, Judge. Within that affidavit, the Defendant talks about requesting a dismissal
of the indictment because if failed to state an offense thereon. He explains that he hasn’t
had the opportunity to be confronted with the witnesses. I think the Court can go ahead
and read it on its own time but you get the gist that he is making sound legal arguments,
albeit at times he talks in terms of someone that might be considered a sovereign citizen.
So with that, based on the case law cited within our response to the Defendant’s
motion, I think the Court is well within bounds to find the Defendant competent, if the
Richland County, Case No. 2021 CA 0081 16
Court interprets this motion as a competency motion, and even without a forensic
evaluation. Your Honor.
{¶47} Transcript of October 8, 2021 hearing at 12-16. When asked by the trial
court whether he would rather have a bench or jury trial, appellant indicated that he
wanted to talk to his attorney.
{¶48} At the conclusion of the hearing, the trial court found appellant competent
to stand trial, finding that he was capable of understanding the nature and objectives
against him and of assisting in his own defense. The trial court, as trier of fact, was in the
best position to assess appellant’s credibility and competency. The evidence presented
at the hearing did not overcome the presumption that appellant was competent to stand
trial.
{¶49} We find, viewing the transcript, that the trial court did not abuse its discretion
because the court’s decision was not arbitrary, unconscionable or unreasonable.
{¶50} Appellant’s first assignment of error is, therefore, overruled.
II
{¶51} Appellant, in his second assignment of error, argues that his convictions for
aggravated burglary were not supported by sufficient evidence and that, therefore, his
conviction for aggravated murder, which was based on his commission of the offense of
aggravated burglary, was not supported by sufficient evidence. We disagree.
{¶52} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
Richland County, Case No. 2021 CA 0081 17
could have found the essential elements of the crime proven beyond a reasonable doubt.”
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶53} Appellant was convicted of aggravated burglary in violation of R.C.
2911.11(A)(1) and 2911.11(B). R.C. 2911.11 states, in relevant part, as follows:
{¶54} (A) No person, by force, stealth, or deception, shall trespass in an occupied
structure or in a separately secured or separately occupied portion of an occupied
structure, when another person other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured or separately occupied
portion of the structure any criminal offense, if any of the following apply:
{¶55} (1) The offender inflicts, or attempts or threatens to inflict physical harm on
another;
{¶56} (2) The offender has a deadly weapon or dangerous ordnance on or about
the offender's person or under the offender's control.
{¶57} R.C. 2901.01 (A) defines force as meaning “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing”.
{¶58} While appellant does not dispute that his entrance into the motel room was
uninvited and without permission and thus the element of trespass was met, he
specifically argues that there was no evidence that he entered the motel room by force,
stealth or deception.
{¶59} However, at the trial, there was testimony that the surveillance video from
the motel showed a muzzle flash when appellant began shooting before he entered the
room. There was testimony that about 1:32 a.m. and 50 seconds, appellant shot in the
Richland County, Case No. 2021 CA 0081 18
room before entering it. Three shell casings were found outside on the sidewalk. We find
therefore, that there was sufficient evidence that appellant trespassed, by force,
purposely entering the motel room, an occupied structure, shooting his way in, and when
he inflicted harm by a deadly weapon. Appellant, by force, trespassed into an occupied
structure.
{¶60} We find, therefore, that appellant’s conviction for aggravated burglary was
supported by sufficiency of the evidence.
{¶61} R.C. 2903.01(B) states as follows: “[n]o person shall purposely cause the
death of another or the unlawful termination of another's pregnancy while committing or
attempting to commit, or while fleeing immediately after committing or attempting to
commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery,
aggravated burglary, burglary, trespass in a habitation when a person is present or likely
to be present, terrorism, or escape.” Having found that appellant’s conviction for
aggravated burglary was supported by sufficient evidence, we find that his conviction for
aggravated murder based on his commission of the offense of aggravated burglary was
supported by sufficient evidence.
{¶62} Appellant’s second assignment of error is, therefore, overruled.
III
{¶63} Appellant, in his third assignment of error, contends that his conviction for
aggravated murder was against the sufficiency of the evidence. We disagree.
{¶64} Appellant was convicted of aggravated murder in violation of R.C.
2903.01(A) which states as follows: “[n]o person shall purposely, and with prior calculation
Richland County, Case No. 2021 CA 0081 19
and design, cause the death of another or the unlawful termination of another's
pregnancy”.
{¶65} Appellant contends that the evidence was insufficient to show prior
calculation and design. The Ohio Supreme Court held it is not possible to formulate a
bright-line test to distinguish between the presence or absence of prior calculation and
design, but instead each case turns on the particular facts and evidence presented at
trial. State v. Taylor, 78 Ohio St.3d 15, 20, 1997-Ohio-243, 676 N.E.2d 82. In Taylor v.
Mitchell, 296 F.Supp.2d 784 (2003), the habeas corpus action considered by the U.S.
Northern District of Ohio Federal Court regarding the conviction reviewed by the Ohio
Supreme Court in Taylor, supra, the federal court summarized Ohio law regarding prior
calculation and design as follows:
{¶66} In view of the understandable lack of a bright line rule governing
determinations of whether the proof shows prior calculation and design, Ohio courts have
consistently considered various factors in addition to those - the defendant's relationship
with the victim, the thought given by the defendant to the means and place of the crime,
and the timing of the pertinent events - recited in Taylor, 78 Ohio St.3d at 19, 676 N.E.2d
82, when determining whether the defendant engaged in prior calculation and design.
{¶67} Among these other, frequently considered factors are:
{¶68} —whether the defendant at any time expressed an intent to kill.
{¶69} —there was a break or interruption in the encounter, giving time for
reflection.
{¶70} —whether the defendant displayed a weapon from the outset.
{¶71} —whether the defendant retrieved a weapon during the encounter.
Richland County, Case No. 2021 CA 0081 20
{¶72} —the extent to which the defendant pursued the victim.
{¶73} —the number of shots fired.
{¶74} {¶18} Id. at 821–822, internal citations omitted.
{¶75} The state can prove “prior calculation and design” from the circumstances
surrounding a murder in several ways, including: (1) “evidence of a preconceived plan
leading up to the murder”; (2) “evidence of the [defendant's] encounter with the victim,
including evidence necessary to infer that the defendant had a preconceived notion to kill
regardless of how the [events] unfolded” or (3) “evidence that the murder was executed
in such a manner that circumstantially proved the defendant had a preconceived plan to
kill,” such as where the victim is killed in a cold-blooded, execution-style manner. State v.
Hicks, 8th Dist. Cuyahoga No. 102206, 2015-Ohio-4978, ¶ 40.
{¶76} In the case sub judice, there was sufficient evidence to support a finding of
prior calculation and design by appellant in the aggravated murder of Nabors. Appellant
was aware that Wade was with another man and tracked her via GPS to the motel. He
was angry that Wade was with another man and went to the motel with his gun and a
knife. The gun was a .40 caliber semi-automatic. In order to get to the motel, he had to
borrow a vehicle from his mother since Wade had taken the only family vehicle. After
getting to the motel, where he was for approximately eight minutes the first time, appellant
paced outside of the motel room then left for eight minutes. During such time, appellant
drove around and then returned. As noted by appellee, this gave him time for reflection
and consideration of his actions. Appellant, upon his return, slashed the victims’ tires and
waited some more. He testified that he stood outside the motel room and heard them
having sex. Appellant had his gun on him at the time. He waited at the motel for over
Richland County, Case No. 2021 CA 0081 21
25 minutes before the door to the room was opened and when the door was opened, he
immediately opened fire. Nabors fell after being shot and crawled away from appellant,
but appellant followed him into the room and continued shooting. Nabors was shot a total
of seven times, including shot to the back of the head while he was on the floor.
{¶77} We find that there was sufficient evidence establishing prior calculation and
design and that appellant’s conviction for aggravated murder was not against the
sufficiency of the evidence.
{¶78} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶79} Appellant, in his fourth assignment of error, argues that his conviction for
murder was against the manifest weight of the evidence. We disagree.
{¶80} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and 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.” State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-
52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” Martin at
175.
{¶81} Appellant was convicted of murder in violation of R.C. 2903.02(A). such
section states that “(A) No person shall purposely cause the death of another or the
unlawful termination of another's pregnancy”. He maintains that he should have been
Richland County, Case No. 2021 CA 0081 22
committed of voluntary manslaughter in violation of R.C. 2903.03(A) which states that
“[n]o person, while under the influence of sudden passion or in a sudden fit of rage, either
of which is brought on by serious provocation occasioned by the victim that is reasonably
sufficient to incite the person into using deadly force, shall knowingly cause the death of
another or the unlawful termination of another's pregnancy.” The jury was instructed on
voluntary manslaughter.
{¶82} Appellant specifically argues that his will was overcome by a sudden fit of
passion and rage and that he had no control over himself that day. Appellant alleges that
he loved Wade unconditionally and that the two had recently recommitted to their
relationship and were going to get married.
{¶83} However, as is stated above, Wade testified that in the years prior to the
shooting, she started sleeping in her daughter’s bed and that both she and appellant had
cheated on each other multiple times. About a month before the shooting, Wade caught
appellant in the park with an 18 year old. In addition, there was testimony that appellant,
after tracking Wade to the motel, walked around the motel before leaving for the first time.
He testified that he left the scene after being there eight minutes and drove down the
street to try and cool off and that he was gone for eight minutes. He then drove back to
the motel. Appellant admitted that he stood outside of the room for over 25 minutes after
he slashed the tires on both vehicles.
{¶84} Once the door to the room opened, appellant started shooting at 1:32 a.m.
and 48 seconds and continued shooting. He the exited the room at 1:35 a.m. and 28
seconds and then went right back into the room four seconds later. Appellant then exited
Richland County, Case No. 2021 CA 0081 23
the property at 1:36 a.m. and 49 seconds. The following is an excerpt from Detective
Perry’s testimony at trial:
{¶85} Q. And from the 1:00 a.m. [when appellant returned to the property] until
the shooting at 1:32 and some seconds, how many minutes go by?
{¶86} A. 32 minutes, approximately almost 33.
{¶87} Q. So all total on Motel 6 property in the very early morning of Thanksgiving
of last year, he was there eight minutes and 32 minutes before the shooting. How many
minutes all together?
{¶88} A. From the time he arrived the second time?
{¶89} Q. 32 and 8. Let me keep it simple for you. 32 and 8.
{¶90} A. I’m sorry, you lost me.
{¶91} Q. What is 32 plus 8?
{¶92} A. It would be 40.
{¶93} Trial Transcript at 572.
{¶94} Wade testified that the last thing that she saw appellant do, before leaving
the room, was shoot Nabors in the back of his head while Nabors was on the ground.
{¶95} We have reviewed the record in the case of sub judice and are not
persuaded by appellant's contention that the jury's verdict led to a manifest miscarriage
of justice. As we have often emphasized, the trier of fact, as opposed to this Court, is in
a far better position to weigh the credibility of witnesses. State v. Reardon, 5th Dist.
Tuscarawas No. 2001AP080082, unreported, 2002 WL 1025488, *2 (May 17, 2002),
citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Appellant thus has not
Richland County, Case No. 2021 CA 0081 24
shown that “a miscarriage of justice” occurred or that the jury “lost its way” when it found
him guilty of murder.
{¶96} Appellant’s fourth assignment of error is, therefore, overruled.
V
{¶97} Appellant, in his fifth assignment of error, argues that the trial court abused
its discretion by not instructing the jury on self-defense. We disagree.
{¶98} Appellant, in the case sub judice, did not request a jury instruction on self-
defense and did not object to the trial court’s failure to give one. Crim.R. 30(A) provides
that a party may not assign as error the trial court's failure to give any jury instructions
“unless the party objects before the jury retires to consider its verdict, stating specifically
the matter objected to and the grounds of the objection.” The failure to object to a jury
instruction in accordance with Crim.R. 30(A) before the jury retires constitutes a waiver,
absent plain error. State v. Lynn, 129 Ohio St.3d 146, 950 N.E.2d 931, 2011-Ohio-2722,
¶ 12.
{¶99} Plain error exists where there is an obvious deviation from a legal rule that
affected the defendant's substantial rights by influencing the outcome of the proceedings.
State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “Plain error does
not exist unless it can be said that but for the error, the outcome of the trial would clearly
have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 436, 1997-Ohio-204, 678 N.E.2d
891. Courts should notice plain error, “with the utmost caution, under exceptional
circumstances and only to prevent a miscarriage of justice.” Lynn at ¶ 14.
The elements of a valid claim of self-defense are as follows: (1) the
defendant was not at fault in creating the situation giving rise to the affray;
Richland County, Case No. 2021 CA 0081 25
(2) 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) the
defendant did not violate any duty to retreat or avoid the danger.
{¶100} State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 41 (11th Dist.),
citing State v. Barnes, 94 Ohio St.3d 21, 24, 2002-Ohio-68, 759 N.E.2d 1240, citing State
v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.
Under the burden shifting framework outlined in the current version of R.C. 2901.05(B),
which became effective on April 6, 2021, “the state is not required to prove the defendant
did not act in self-defense until that defendant introduces evidence that tends to support
they acted in self-defense.” State v. Walker, 2021-Ohio-3860, 180 N.E.3d 60, ¶ 61 (6th
Dist.), citing Petway at ¶ 55. Thus, “the defendant maintains the burden of production on
their self-defense claim before the state inherits the burden of persuasion.” Id.{¶101} The trial court, in indicating that it would not be giving an instruction
on self-defense, stated, in relevant part, as follows:
[I]n listening to Mr. Jefferson’s testimony, I would not be giving them
the self-defense instruction. I don’t think it’s warranted, because to do that
you have to say evidence was presented in support of finding that the
Defendant used force in self-defense. There was no testimony whatsoever
that Mr. Jefferson had any reason to believe that he was in imminent danger
of death. He only said that Mr. Nabors might have made a step towards him,
and, at that point, that’s when he said he started shooting. For that reason,
I would not be giving them that instruction regarding self-defense because
Richland County, Case No. 2021 CA 0081 26
I don’t think it’s warranted because I don’t think there was any evidence
regarding self-defense.
{¶102} Trial Transcript at 656-657. Appellant testified at trial that when the
motel room door opened, and Nabors saw him, Nabors stepped back and raised his arms.
At the time, appellant had a loaded gun in his hand and Nabors and Wade were unarmed.
There was testimony at trial that appellant began immediately firing his gun when the door
to the motel room opened.
{¶103} We concur with the trial court and find no plain error in not giving an
instruction on self-defense.
{¶104} Appellant’s fifth assignment of error is, therefore, overruled.
Richland County, Case No. 2021 CA 0081 27
{¶105} Accordingly, the judgment of the Richland County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Hoffman, J. concur.