State v. Palmer , 2022 Ohio 2181 ( 2022 )

[Cite as State v. Palmer, 2022-Ohio-2181.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-07-035
: OPINION
- vs - 6/27/2022
:
PHILLIP A. PALMER, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2020-CR-00008
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee.
Law Offices of William J. Rapp, and Joshua R. Crousey, for appellant.
PIPER, P.J.
{¶1} Appellant, Phillip Palmer, appeals his conviction and sentence in the Clermont
County Court of Common Pleas for felonious assault with a firearm specification.
{¶2} On December 19, 2019, Nick Young was in downtown Cincinnati attending
an office Christmas party consuming beer or other alcoholic beverages. The party began
around noon and moved to different locations throughout the day. In the early evening,
Young arrived at the downtown Cincinnati Jack Casino where he exhibited noticeable signs
Clermont CA2021-07-035
of alcohol impairment.1 Pursuant to casino policy, Young was escorted from the casino and
asked not to return for 24 hours. Thereafter, a casino employee signaled to a nearby taxi
stand and Palmer pulled his cab forward to drive Young home.
{¶3} Palmer testified that when Young entered the cab, Young’s speech was
slurred and difficult to understand; however, Palmer understood that Young needed to go
to Moscow, Ohio. Young admitted to being in and out of consciousness during the trip.
Following a detour, Palmer started driving along US Route 52 through New Richmond to
Moscow. Once they arrived in Moscow, Palmer claims to have called out "Moscow, sir"
twice, but Young was unresponsive. Palmer then continued driving down the road until he
was near Ripley, Ohio, a significant drive east of Moscow. At some point in time, Palmer
announced their location, which caused Young to wake up. Young then saw the meter
showed a fare of $170.00. Realizing where they were and how far past his home they had
gone, Young suspected that Palmer was trying to take advantage of him. Palmer testified
that Young told him "I'm not paying that" and demanded that he drive back towards Moscow.
{¶4} When they returned to Moscow, Young requested that Palmer stop at a
Marathon gas station. Young then exited the cab and entered the convenience store portion
of the gas station. Palmer admitted to being angry and decided to follow Young into the
store where the two men began arguing about payment of the cab fare. The gas station
attendant requested that Palmer and Young leave the store through separate exits;
however, the argument continued. At some point, the attendant intervened by placing
herself between them. Palmer then yelled at the attendant and shoved her out of the way.
Cletus Jones, another store patron, became concerned and confronted Palmer about
shoving the female attendant. Thereafter, Young asked Cletus if he could drive him the rest
1. Young's blood alcohol concentration was approximately .231 when tested later at the hospital.
-2-
Clermont CA2021-07-035
of the way home for twenty dollars.
{¶5} Cletus agreed to drive Young home. Therefore, Young began walking
towards the exit along with Cletus' son, Gregory Jones. Still, the confrontation between
Palmer and Young persisted with arguments and back and forth pushing. Video evidence
from the store shows that Palmer eventually stood between Young and the exit. Palmer
was blocking the exit and assumed a fighting stance. Young allegedly called Palmer a
"pussy" and pushed him into the storefront door at which time Palmer then exited the store
and started walking back to his cab. Gregory and Young exited the store shortly thereafter.
{¶6} Gregory testified that he and Young were headed towards Cletus' truck when
Palmer called out to Young that his cell phone was in the cab. After that, Gregory testified
that Young turned around and starting walking towards the cab. Shortly thereafter, Gregory
heard gunshots and saw Young drop to the ground. After shooting Young, Palmer fired his
weapon a few more times in Young’s general direction and fled the scene in his cab.
{¶7} Although there were gaps in his memory from that night, Young's recollection
was consistent with Gregory's. That is, Young testified that he recalled walking towards
Palmer’s cab. He thought he saw Palmer reach for the cell phone that he left in the cab.
However, Young explained that when he got closer, Palmer raised a firearm and shot him
in the neck.
{¶8} The gas station attendant and Gregory both called 911 and the authorities
issued an alert for Palmer's cab. Officer Frasier with the New Richmond Police Department
later spotted Palmer's cab and conducted a felony traffic stop. Palmer was cooperative with
Officer Frasier and told him about the firearm in the vehicle. He also told Officer Frasier
that he had fired shots at another person, and they were "probably hurt." A subsequent
search of the cab revealed that Palmer was still in possession of Young's cell phone.
{¶9} Resulting from this incident, Palmer was indicted on one count of attempted
-3-
Clermont CA2021-07-035
murder and one count of felonious assault with firearm specifications on each count. The
matter proceeded to a jury trial during which Palmer took the stand in his own defense.
Palmer admitted to shooting Young in the neck, but claimed to have done so in self-defense.
Although he did not observe Young with a weapon, Palmer claimed that he was sitting in
his cab when Young raced towards the cab "faster than lightning." He claims that Young’s
sudden appearance made him "scared as hell" and that he was scared for his life.
Furthermore, Palmer claimed that he was justified in shooting Young because Young had
pushed him inside the gas station.2 While Palmer denied calling Young over to his cab to
retrieve his cell phone, he could not explain how Gregory knew that Young's cell phone was
in the cab. Instead, Palmer suggested that Young and Gregory had fabricated their claims
about Palmer calling to Young about his cell phone and that Young was walking, rather than
running, towards the cab in order to retrieve it.
{¶10} Following the close of evidence, the trial court found that Palmer was not
entitled to a self-defense instruction. The jury ultimately found Palmer guilty of felonious
assault with an accompanying firearm specification. The jury found Palmer not guilty of
attempted murder. The trial court sentenced Palmer to an indefinite prison term of five
years to seven and one-half years. In addition, the trial court imposed the mandatory,
consecutive three-year prison term for the firearm specification. Palmer now appeals,
raising four assignments of error for review.
{¶11} Assignment of Error No. 1:
{¶12} THE TRIAL COURT ERRED BY NOT ALLOWING THE JURY TO
CONSIDER SELF-DEFENSE.
{¶13} In his first assignment of error, Palmer argues the trial court erred by declining
2. Palmer testified that his mere pushing of the attendant inside the store would have justified her use of
deadly force against him. This testimony reveals a skewed perspective of "self-defense."
-4-
Clermont CA2021-07-035
to instruct the jury on self-defense. In so doing, Palmer claims that he presented sufficient
evidence to justify a self-defense instruction and maintains that the trial court's decision not
to provide the instruction was predicated on improper findings. Palmer's argument is
without merit.
Self-defense Instruction
{¶14} When reviewing a refusal to give a requested jury instruction, an appellate
court considers whether the trial court's refusal was an abuse of discretion under the facts
and circumstances of the case. State v. Wolons, 44 Ohio St.3d 64, 68 (1989).
{¶15} Trial courts have a responsibility to give all jury instructions that are relevant
and necessary for the jury to properly weigh the evidence and perform its duty as the
factfinder. State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. Trial
courts should ordinarily give a requested jury instruction if it is a correct statement of law, if
it is applicable to the facts of the case, and if reasonable minds might reach the conclusion
sought by the requested instruction. State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-
Ohio-3722, ¶ 42, citing State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240.
{¶16} In this case, Palmer requested a jury instruction on self-defense pursuant to
R.C. 2901.05(B)(1), which now provides:
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,
* * * the prosecution must prove beyond a reasonable doubt that
the accused did not use the force in self-defense, * * * as the
case may be.
{¶17} Under R.C. 2901.05(B)(1) there are two burdens. State v. Davidson-Dixon,
8th Dist. Cuyahoga No. 109557, 2021-Ohio-1485, ¶ 18. The defendant has the initial
burden of production, which is the burden of producing evidence "that tends to support" that
-5-
Clermont CA2021-07-035
the defendant used the force in self-defense. State v. Sturgill, 12th Dist. Clermont No.
CA2020-03-018, 2020-Ohio-6665, ¶ 19. The burden then shifts to the state under its burden
of persuasion to prove beyond a reasonable doubt that the defendant did not use the force
in self-defense. Id. at ¶ 17. Accord State v. Tolle, 4th Dist. Adams No. 19CA1095, 2020-
Ohio-935, ¶ 24 ("the phrase 'tends to support' does not connote that a new standard should
apply to the determination of whether a defendant is entitled to a self-defense instruction");
State v. Petway, 11th Dist. Lake No. 2019-L-124, 2020-Ohio-3848, ¶ 55; State v. Carney,
10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31.
{¶18} In deciding whether to give a self-defense instruction, the trial court must view
the evidence in favor of the defendant, and the question of credibility is not to be considered.
Davidson-Dixon at ¶ 20; State v. Estelle, 3rd Dist. Allen No. 1-20-502021-Ohio-2636, ¶ 19.
If there is conflicting evidence on the issue of self-defense, the instruction must be given to
the jury. Id. However, "if the evidence generates only a mere speculation or possible doubt,
the evidence is insufficient * * * and submission of the issue to the jury will be unwarranted."
State v. Melchior, 56 Ohio St.2d 15, 20 (1978). A defendant's bare assertion that he acted
in self-defense will be insufficient. Rather, the assertions must be coupled with supporting
evidence from whatever source and of a nature and quality sufficient to raise reasonable
doubt as to guilt. Davidson-Dixon at ¶ 18; Jacinto at ¶ 47.
Self-defense
{¶19} The elements of self-defense are cumulative and therefore self-defense is
inapplicable to a defendant who fails to satisfy any one element. State v. Jackson, 22 Ohio
St.3d 281, 284 (1986).3 Significantly, in order to satisfy those elements, a defendant must
3. We note that the state challenges several aspects of Palmer's self-defense claim, including that Palmer
was at fault in creating the situation. However, since the elements of self-defense are cumulative, we need
not address each argument raised by the state. In this case, we focus on the clear failure to produce evidence
tending to support one of the elements of self-defense. However, it appears the state rightfully challenges
the same failure of evidence going to other elements of self-defense.
-6-
Clermont CA2021-07-035
have a bona fide belief that he or she was in imminent danger of death or great bodily harm
and his or her only means of escape from such danger was the use of such force. O.J.I.
421.19; Sturgill at ¶ 20.
Analysis
{¶20} On appeal, Palmer argues that he met his initial burden of providing evidence
which tends to support his claim of self-defense. He therefore maintains that the trial court’s
refusal to issue a self-defense instruction was based on its determinations that: (1) Palmer’s
testimony was not credible, and (2) that Palmer had a duty to retreat but failed to do so.
{¶21} However, our review of the record sufficiently demonstrates that the trial court
correctly determined self-defense was not applicable based upon the evidence. In the case
sub judice, the evidence shows that Palmer and Young were in a confrontation in the store
that had escalated from mere words to a minor physical confrontation, i.e., pushing and
shoving. The confrontation appeared to end when Palmer and Young exited the store and
started walking in opposite directions.
{¶22} However, the video evidence then shows that Young turned around and
started walking towards Palmer’s cab. The state presented evidence that Young did so
because Palmer had called out to Young about his cell phone. Palmer denied doing so.
Instead, Palmer claimed that he was sitting in his cab when Young quickly approached
“faster than lightning.” Young was nearly at Palmer's cab when Palmer raised his .44 caliber
revolver and shot Young in the neck. Palmer claims to have done so because he feared
for his life.
{¶23} Although Palmer claims to have acted in self-defense, the record reveals his
claims are only supported by his bare assertions with no supporting evidence to raise any
reasonable doubt as to guilt. State v. Voss, 12th Dist. Warren No. CA2006-11-132, 2008-
Ohio-3889, ¶ 56 (trial court did not err where there was no evidence to support a self-
-7-
Clermont CA2021-07-035
defense claim outside of the defendant's self-serving statements). The fact that this
altercation with Young had escalated from mere words to pushing and shoving did not mean
that Palmer was in imminent danger of death or great bodily harm. See State v. Ray, 12th
Dist. Butler No. CA2012-10-213, 2013-Ohio-3671, ¶ 31. Even if Young reapproached
Palmer’s cab quickly, or “faster than lightning,” there is no evidence to suggest that he
posed any reasonable threat of imminent danger of death or great bodily harm. In this
regard, Palmer’s claims that he acted in self-defense were merely speculative and
unmoored from any reasonable fear justified by the circumstances.
{¶24} Moreover, the evidence adduced at trial demonstrates that Palmer used
excessive force in shooting Young. In this case, there is no evidence that Young was in the
possession of any weapon or other instrumentality that could be used to cause death or
great bodily harm. The record demonstrates that the parties had only been involved in a
minor physical altercation involving pushing and shoving. There is no evidence of any
injuries from the altercation in the store. Nevertheless, Palmer used deadly force when he
was not faced with deadly force. Sturgill, 2020-Ohio-6665 at ¶ 26 (defendant used
excessive force by stabbing the victims during a fistfight). As we held in Sturgill, a defendant
is simply not entitled to a self-defense instruction where the evidence demonstrates the use
of excessive and disproportionate force. Id. at ¶ 26-27.
{¶25} Finally, we note that Palmer also claims that the trial court improperly found
that he had a duty to retreat.4 In so doing, Palmer cites portions of the record where the
trial court discussed alternative means—short of using deadly force—available to Palmer.
He then argues that this conflicts with the amendments to R.C. 2901.09, which provides
that a person has no duty to retreat if in a place where one lawfully has the right to be. R.C.
4. Effective April 6, 2021, a person has no duty to retreat if in a place where one lawfully has the right to be.
R.C. 2901.09.
-8-
Clermont CA2021-07-035
2901.09. However, when considered in context, the trial court was discussing Palmer’s
excessive and disproportionate response in using deadly force under the circumstances.
Furthermore, since self-defense was inapplicable to this case regardless of the potential
absence of a duty to retreat, Palmer cannot demonstrate prejudice. State v. Claytor, 8th
Dist. Cuyahoga No. 110837, 2022-Ohio-1938, ¶ 81-83.
{¶26} Based on the facts presented, there was no reasonable, justifiable, or bona
fide fear to support Palmer’s bare assertions of self-defense. Furthermore, there is no doubt
that shooting Young in the neck with a firearm in response to a minor altercation was
unreasonable, excessive, and disproportionate under the circumstances. Accordingly, we
find that Palmer was not entitled to a self-defense instruction and the trial court did not err
in denying Palmer's request for such an instruction. Palmer's first assignment of error is
overruled.
{¶27} Assignment of Error No. 2:
{¶28} THE JURY ERRED BY FINDING APPELLANT GUILTY WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION.
{¶29} Assignment of Error No. 3:
{¶30} THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
{¶31} In his second and third assignments of error, Palmer argues that his
conviction is based on insufficient evidence and the jury's verdict was against the manifest
weight of the evidence.
{¶32} The concepts of sufficiency of the evidence and weight of the evidence are
legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10.
Nonetheless, as this court has observed, a finding that a conviction is supported by the
manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones,
12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. "Because sufficiency is
-9-
Clermont CA2021-07-035
required to take a case to the jury, a finding that a conviction is supported by the weight of
the evidence must necessarily include a finding of sufficiency." State v. Hart, 12th Dist.
Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶33} A manifest weight challenge scrutinizes the proclivity of the greater amount of
credible evidence, offered at a trial, to support one side of the issue over another. State v.
Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether
a conviction is against the manifest weight of the evidence, a reviewing court examines the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of the witnesses, and determines 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. State v. Morgan, 12th Dist. Butler Nos. CA2013-
08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶34} Felonious assault is defined in R.C. 2903.11, which states "[n]o person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a
deadly weapon." R.C. 2903.11(A)(2). A firearm specification allows for an additional three-
year prison term if the state proves that the "offender had a firearm on or about the
offender's person or under the offender's control while committing the offense and displayed
the firearm, brandished the firearm, indicated that the offender possessed the firearm, or
used it to facilitate the offense." R.C. 2941.145.
{¶35} In these two assignments of error, Palmer couches his arguments in terms of
self-defense. However, as discussed above, Palmer was not acting in self-defense when
he shot Young in the neck. Therefore, to the extent that Palmer argues that the jury's verdict
was improper based upon a theory of self-defense, our resolution of Palmer's first
assignment of error resolves that argument. To the contrary, the evidence firmly
established that Palmer knowingly used a deadly weapon to cause physical harm to Young.
- 10 -
Clermont CA2021-07-035
Furthermore, there is no dispute that the .44 caliber revolver Palmer used to shoot Young
was both a "deadly weapon" and a "firearm" as relevant to the offense and the specification.
R.C. 2923.11. See State v. Hollie, 12th Dist. Butler Nos. CA2021-03-025 and CA2021-04-
033, 2022-Ohio-872, ¶ 32 (discussing the differences between a "firearm," a "deadly
weapon," and a "gun"). Accordingly, we find Palmer's conviction for felonious assault with
an accompanying firearm specification is supported by the manifest weight of the evidence.
This means that Palmer's conviction is also supported by sufficient evidence. Therefore,
Palmer's second and third assignments of error are without merit and are overruled.
{¶36} Assignment of Error No. 4:
{¶37} THE TRIAL COURT ERRED BY SENTENCING APPELLANT ACCORDING
TO THE REAGAN TOKES LAW.
{¶38} In his fourth assignment of error, Palmer argues that the Reagan Tokes Law
is an unconstitutional violation of the separation of powers doctrine because it allows the
executive branch to exercise powers reserved to the judiciary. He also argues that the
Reagan Tokes Law violates his due process rights.
{¶39} However, this court has previously found that the Reagan Tokes Law does
not violate the separation-of-powers doctrine. E.g., State v. Suder, 12th Dist. Clermont Nos.
CA2020-06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 25; State v. Henderson, 12th Dist.
Warren No. CA2020-11-072, 2021-Ohio-3564, ¶ 12.
{¶40} Furthermore, this court has repeatedly determined that the Reagan Tokes
Law does not violate an offender's due process rights. Id. at ¶ 14; State v. Guyton, 12th
Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, at ¶ 17 (the Reagan Tokes Law "does
not run afoul of an offender's due process rights guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section 16 of the Ohio
Constitution"). Therefore, Palmer's fourth assignment of error is overruled.
- 11 -
Clermont CA2021-07-035
{¶41} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.
- 12 -