State v. Allen , 2020 Ohio 4493 ( 2020 )

[Cite as State v. Allen, 2020-Ohio-4493.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1191
Appellee Trial Court No. CR0201801184
v.
Lavelle Allen aka Lavell Allen DECISION AND JUDGMENT
Appellant Decided: September 18, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
SINGER, J.
{¶ 1} This is an appeal by appellant, Lavelle Allen, from the September 11, 2018
judgment of the Lucas County Court of Common Pleas, after he was found guilty of two
counts of murder, each with a firearm specification. At sentencing, the convictions
merged, and appellant was sentenced to 15 years to life in prison for the murder
conviction, and three years mandatory actual consecutive incarceration for the firearm
specification. For the reasons that follow, we affirm the trial court’s judgment.
Appellant sets forth two assignments of error:
I. The trial court abused its discretion in denying appellant’s request
for a jury instruction on the lesser included offense of voluntary
manslaughter.
II. The jury’s verdict was against the manifest weight of the
evidence presented at trial.
Facts
{¶ 2} On January 18, 2018, appellant and some acquaintances were socializing,
drinking and smoking in appellant’s apartment at Moody Manor. A fight occurred
between appellant and Larry “Rocky” Pendleton, and appellant shot and killed Rocky.
{¶ 3} On January 29, 2018, appellant was indicted on two counts of murder in
violation of R.C. 2903.02(A), unclassified felonies. Each count included a firearm
specification pursuant to R.C. 2941.145. Appellant pled not guilty.
{¶ 4} A jury trial commenced on August 27, 2018. After the presentation of
testimony, evidence and arguments, the court gave the jury instructions, which included
an instruction on self-defense. On August 31, 2018, the jury found appellant guilty, and
on September 5, 2018, appellant was sentenced to prison. Appellant timely appealed.
2.
Trial
{¶ 5} At trial, the state presented the testimony of several witnesses; we will refer
to some of the witnesses by their first names. Appellant testified in his own behalf. The
relevant testimony is summarized below.
Myisha Neal
{¶ 6} Myisha testified she lived in Moody Manor on January 18, 2018, and knew
appellant and Rocky because they used to hang out, along with Tyrone Jones. Rocky
lived in Moody Manor in a basement apartment with his girlfriend, Peaches. Appellant
also lived in Moody Manor, on the second floor, in apartment 313, which was in the same
building as Rocky. Myisha lived across the parking lot from that building.
{¶ 7} Myisha knew appellant as James, and described him as the young kid in the
crowd who was easily influenced. She was closer with Rocky than everybody else
because they saw each other almost every day and he helped her by picking up her
children at school. She described Rocky as a giving person, a great dad and helpful to
others. She saw appellant and Rocky together at least every other day. Myisha, appellant
and Rocky smoked weed together and appellant and Rocky drank beer almost every day
for a time as none of them were working. She observed bickering between appellant and
Rocky when they were drinking beer but never saw the men fight. Myisha never saw
Rocky with a gun, nor did she see Tyrone with a gun, but did see appellant with an older
gun.
3.
{¶ 8} Myisha testified Tyrone was 47 years old at the time of the shooting, and he
was at the Moody Manor apartment with his girlfriend, Brittany, every night and day, but
he did not spend the night because he had a wife who he would go home to. Brittany’s
apartment was directly below appellant’s apartment. Tyrone was the big man on campus,
a leader, bully and drug dealer, but he did not sell marijuana. Tyrone bought the beer, so
everyone would tag along and follow him. Tyrone was an alcoholic who sat around all
day drinking; he did not smoke marijuana. Myisha and Tyrone were “secretly texting
and everything,” but did not have a physical relationship.
{¶ 9} Myisha testified Rocky was hurt on the job and could not work. Rocky was
different from Tyrone and appellant because Rocky wanted to work, so drinking all day
was a temporary thing for Rocky.
{¶ 10} Myisha remembered January 18, 2018. Her children were with their father,
so she cooked earlier in the day. Later in the day, she saw Tyrone and Rocky come out
of appellant’s apartment; they were going to get beer. Tyrone and Rocky were talking
about appellant acting funny because appellant just got his first paycheck. Myisha
invited Tyrone and Rocky to come to her apartment after they got beer, instead of going
back to appellant’s apartment. Tyrone said his girlfriend would not allow it. Tyrone also
did not want Myisha to go up to appellant’s apartment because his girlfriend would be
able to hear Myisha. Rocky invited Myisha to come up to appellant’s apartment to
smoke a blunt; Myisha went to appellant’s apartment. Appellant supplied the marijuana
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that night. Myisha was not intoxicated as she smoked one blunt; she had been smoking
marijuana since she was 15 years old.
{¶ 11} Myisha testified appellant was sitting on the couch, but Rocky refused to
sit, saying he did not want to sit down. Appellant asked Rocky to sit down because
Rocky was making appellant nervous. Although not a topic of conversation that night,
Moody Manor had an infestation of bed bugs and Myisha said Rocky had stated before
that he would not sit on people’s furniture because of bed bugs. A petty argument started
when Rocky said appellant used to smoke with him, but now appellant was going to
smoke with everyone else because appellant has a check.
{¶ 12} Myisha recalled that appellant left his apartment to get cigarettes, and when
he returned, the argument between appellant and Rocky changed. Appellant accused
Rocky of peeing on his toilet seat one night when Rocky was drunk, which Rocky
denied, and the argument continued back and forth. Myisha said it was one petty
argument after the other with the two men, and while they argued, she and Tyrone flirted
with each other and laughed at appellant and Rocky. The argument lasted for about 10-
15 minutes, and “never got vicious, like I’ll beat you up. * * * it stayed just a regular
argument. It’s just now they were face-to-face. * * * They’re right in each other’s face.”
By this time, the men were in the front room of the apartment.
{¶ 13} Myisha testified that as the men argued, appellant pulled his hands out of
his pockets, and had brass knuckles on the fist of his one hand, and “he just takes off on
Rocky’s face and hitting him over and over again * * * Rocky didn’t know what was
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coming.” Glasses started breaking and the two men “fell all over.” The men were now
in the kitchen and Myisha was by the couch near the window. She told Tyrone that he
had to break up the fight, so Tyrone grabbed appellant, and Rocky started hitting back.
Myisha described Rocky as bleeding and his face was messed up, but he was still
standing. Myisha said Rocky did not have brass knuckles at any time during the fight.
{¶ 14} Myisha testified when Tyrone separated the two men, Tyrone pushed
Rocky by the front door and appellant by the bathroom in the hallway. Rocky was
sideways in the corner and Tyrone was reaching for the doorknob to open the door so he
and Rocky could get out of the apartment. Appellant then “pulls out the gun. Pow, pow,
pow, pow.” Myisha heard five gunshots. Appellant was the only person with a gun, and
Rocky and appellant did not wrestle for the gun, according to Myisha.
{¶ 15} Myisha saw Rocky’s body slide down into the corner, and she heard him
say to Tyrone, “T, T, help me.” Rocky’s eyes rolled back in his head, Tyrone set Rocky
down, because Tyrone had Rocky’s arm, and Tyrone ran out of the apartment. Myisha
followed because she thought appellant was going to shoot her and Tyrone in their backs.
They ran into Tyrone’s girlfriend, who was coming up the steps. Myisha called 911
while she was looking for Peaches’ apartment. Myisha found Peaches’ apartment and
told her that appellant shot Rocky.
{¶ 16} The last time Myisha saw the gun, it was in appellant’s hand, and no one
entered his apartment while they were waiting for the police. The ambulance and
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detective arrived, and Myisha saw Rocky’s body being brought down, and she knew he
was gone. A detective took Myisha to the Safety Building.
Bradley Knapp
{¶ 17} Officer Knapp, of the Toledo Police Department, testified he was working
the late shift on January 18, 2018, with his partner, Officer Adam Hobbs. At about 1:00
a.m., they were dispatched to Moody Manor to investigate a homicide. Officer Knapp
was wearing a body camera, which was operational. The officers responded to apartment
313, found the door ajar, and announced themselves. Officer Knapp observed
movements in the apartment so he tried to push the door open but it would not open all of
the way and kept coming back at the officers. Finally the door was opened and Officer
Knapp, covered by his partner, entered the apartment and encountered a man, with his
hands up. Officer Knapp pulled the man out of the apartment and handcuffed him. The
officer identified appellant as that man.
{¶ 18} While in the hallway, Officer Knapp noticed appellant was sweaty, and
appellant mentioned he was in a fight and said it was “his gun.” Officer Knapp
understood appellant to mean the gun belonged to the decedent.
{¶ 19} After back-up crews arrived, Officers Knapp and Hobbs entered appellant’s
apartment and found the decedent propped up against the door, leaning on it. The
apartment was clear, no one else was inside. Officer Knapp noticed gunshot wounds to
the decedent’s chest. The officer was present when the decedent was pronounced dead.
Officer Knapp learned the decedent was Larry Pendleton (Rocky).
7.
{¶ 20} Officers Knapp and Hobbs were assigned to keep watch on appellant, and
were then ordered to transport appellant to the detective bureau in the Safety Building.
Prior to going downtown, Officer Knapp located brass knuckles on appellant, which were
silver.
{¶ 21} Officer Knapp escorted appellant from the third floor of the apartment
building, out the back door and down the sidewalk, where people had gathered including
Rocky’s girlfriend. Appellant said, “I’m sorry, Peaches, he had to go.”
Anthony Wrozek
{¶ 22} Officer Wrozek, of the Toledo Police Department, testified he was working
on January 18, 2018, with his partner, Officer George Stauch. Right around 1:00 a.m.,
they received a call to assist with an investigation at the Moody Manor. They were the
second or third unit on the scene, and Officers Knapp and Hobbs were placing someone
in custody outside of apartment 313. Officer Wrozek and his partner helped to clear the
apartment, finding only the decedent in the apartment.
{¶ 23} Officer Wrozek went down the stairs and outside to make sure nobody
came into the building. There was a crowd of people, and the officer asked if anyone was
inside when the event occurred. Four or five people pointed to a man who was walking
away. Officer Wrozek walked towards the man, and said he wanted to talk. The man
was walking briskly, but eventually stopped. Officer Wrozek asked the man if he had
been inside when the event occurred; the man said no. The officer asked the man for his
identification, then patted him down for weapons; none were found. The man produced
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his identification; it was Tyrone Jones. Tyrone then admitted to being inside when it
happened. While outside, the officer did not conduct a search, but he scanned the area,
and did not notice any weapons on the ground.
{¶ 24} Officer Wrozek walked Tyrone to the police car and placed him in the
backseat. The officer contacted Sergeant Noonan, who commanded Officer Wrozek to
bring Tyrone to the Safety Building to be interviewed; the officer complied.
George Stauch
{¶ 25} Officer Stauch, of the Toledo Police Department, testified he was working
on January 18, 2018, with his partner, Officer Wrozek. They were dispatched around
1:00 a.m., to Moody Manor for a person shot, and were the second crew to respond.
They went up to the third floor, where a person was detained in the hallway by the crew
that was already there.
{¶ 26} Officer Stauch and his partner entered apartment 313, and had to push the
door pretty hard to get inside; a body was against the door. They secured the apartment,
after finding no one there, other than the decedent. Officer Stauch did a cursory look for
a weapon, but found none. They then canvassed for witnesses, and began knocking on
doors. Officer Stauch recalled someone saying the weapon may be in the basement, so
he and Officer Wrozek headed downstairs.
{¶ 27} Officer Stauch testified a woman stuck her head out, and said she was in
the apartment at the time of the shooting; it was Myisha Neal. Myisha was in Crystal
Robinson’s apartment. Officer Stauch stopped to talk with Myisha, and did not notice
9.
any weapons on her, but he did not search her. Myisha was detained, since she was a
witness, and she was allowed to use her cell phone. At first, Myisha was pretty calm, but
after she took some phones calls and described the events that had occurred, she was
crying and seemed upset. Officer Stauch remained with Myisha for about 40 minutes,
except for a few minutes when he left her to give the detectives information for the
investigation and to get transportation for Myisha to the Safety Building. Myisha told
Officer Stauch that appellant was the shooter.
Laurie Renz
{¶ 28} Detective Sergeant Renz, of the Toledo Police Department, testified she is
the head of the Scientific Investigations Unit (“SIU”). She was called on January 18,
2018, to supervise the scene at Moody Manor. When she arrived, she was told the
suspect had blood on him, which needed to be documented. Sergeant Renz volunteered
to photograph the suspect, so she went to the Safety Building. The suspect was appellant.
{¶ 29} The sergeant took an overall photograph of appellant, then a close-up
picture of his face, as appellant said he had blood in his nose because he was hit with
brass knuckles. The picture shows a small cut above appellant’s nose, on his nostril.
Sergeant Renz also photographed appellant’s hands and swabbed them for blood. After
appellant used the restroom and presumably washed his hands, photographs were taken
which show small cuts on the pinky finger and index finger of his right hand, and some
swelling. The sergeant also took a buccal swab of appellant to obtain a DNA sample.
The photographs were taken at about 3:20 a.m.
10.
Terry Cousino
{¶ 30} Detective Cousino of the Toledo Police Department, SIU, testified he was
on duty on January 18, 2018, when he received a call at maybe 1:15 to 1:30 a.m., that a
person was shot at Moody Manor. When he arrived there, he was notified by an officer
that a bullet had come through the ceiling of apartment 213, about six feet from the front
door. The detective documented it, then tried to trace the bullet but discovered it was in
the floor of apartment 213 and not recoverable. He was able to find the corresponding
hole in the floor of apartment 313, about six feet back from the doorway. The angle of
the bullet appeared to be straight down.
{¶ 31} When Detective Cousino first reached apartment 313, the door was ajar and
he was advised by officers that the decedent’s body was on the other side of the door,
which did not allow the door to open all of the way. He noticed broken mirror glass on
the outside of the door and a bullet hole through the door, from inside to outside, where
the bullet crossed the hallway and went into the opposite wall. The bullet hole was about
five feet, four inches up from the floor. The detective tried to recover the bullet, but it
went into a metal cable tract, fell down and could not be located.
{¶ 32} Inside of the apartment, Detective Cousino observed signs of a pretty
violent struggle, including a couple of broken mirrors, furniture knocked over, a vacuum
knocked over, projected and contact bloodstains on the wall and two holes in the wall.
The detective viewed the decedent’s body just inside of the door, he was on his back, his
head was in the corner and his hips were slightly twisted to the left.
11.
{¶ 33} The detective took photographs of apartment 313 and recovered two spent
bullets, one was on a green ball cap, which was on the floor next to the decedent, and the
other bullet was on the floor under the bathroom door. The detective recovered the ball
cap, a pair of eyeglasses, a lighter, and a napkin or paper towel with blood wiped on it.
He did not recover a firearm despite searching the apartment pretty thoroughly with two
other officers, and looking outside of the window, in the snow.
{¶ 34} Detective Cousino took pictures of the decedent, including his right hand
with transfer blood on it, and bullet wounds to the right side of his chest and the center of
his chest. He also took photographs of the decedent’s jacket with two bullet holes and
what appeared to be possible gunpowder.
Maneesha Pandey, M.D.
{¶ 35} Dr. Pandey, a deputy coroner and forensic pathologist working for the
Lucas County Coroner’s Office, testified that she conducted the autopsy of Larry
Pendleton’s body. She observed bloody clothes, and after removing the clothing, she saw
multiple gunshot wounds on the body. She photographed the clothing and noted defects
in all of the layers of clothing, which corresponded with the entrance and exit wounds on
the body. She did not notice any gunshot powder burns or gunpowder residue.
{¶ 36} Dr. Pandey testified there were four gunshot wound entrances: one on the
right shoulder, which exited the right upper back; one to the mid-chest, which went
through the ribs, thoracic aorta, lungs and came out of the mid-back; one to the right
lateral chest, which went through the right lung and ribs then exited; and one to the right
12.
lower back, which went through the abdominal cavity and embedded in the spinal
column, perhaps causing paralysis. All of the gunshots wounds were towards the right
side of the body, going right to left, and the wounds to the front of the body were in a
downward direction.
{¶ 37} Dr. Pandey testified the decedent had injuries to his face and both hands,
but she was unable to determine if they were recent wounds. There were abrasions and
bruises to his left eye and eyebrow region and left cheek, a deep cut to the left lip area;
and abrasions, scrapes and bruising to both hands with small cuts around the knuckle
area. The facial injuries were consistent with being punched on the left side of his face.
{¶ 38} The results of the toxicology report indicated the decedent had high levels
of alcohol, and the presence of marijuana in his urine. Dr. Pandey opined the cause of
death was multiple gunshot wounds, and she further opined they were of indeterminate
range, which means she was not able to determine the distance of the muzzle of the gun
to the body, but it was more than two feet. Although the decedent was wearing a heavy
winter coat, a sweatshirt, a shirt and an undershirt, these multiple layers of clothing do
not change her opinion as to the range of the shooting; it was not a close range shooting.
Timothy Augsback
{¶ 39} Mr. Augsback testified he is a forensic scientist for the Ohio Bureau of
Criminal Investigation (“BCI”) in the DNA section. Augsback stated the DNA profiles
on the brass knuckles were a mixture, with the decedent included as a major contributor
and appellant excluded as a contributor. Concerning the firearm and live cartridges,
13.
Augsback testified the DNA profiles were not suitable for comparison, as there was not
enough high quality or quantity of DNA to make comparisons to known individuals.
Jameica Russell
{¶ 40} Ms. Russell testified her nickname is Peaches and she was Rocky’s
girlfriend. She lived with Rocky in Moody Manor on January 18, 2018, and she knew
Tyrone, Myisha and appellant from the complex. Peaches never dated appellant.
Peaches saw Rocky with a gun months before his death, but they had an agreement that
he would not have a gun at the apartment, because they would be evicted from Moody
Manor. Peaches never saw Rocky with a gun at their apartment.
{¶ 41} On January 17, 2018, Peaches went to sleep at about 6:50 p.m., and was
awakened around 1:00 a.m. on January 18, 2018, by a banging at her door. She answered
the door and Myisha was there, crying and screaming. Myisha was on her phone with the
police and yelled at Peaches that Rocky was shot and James shot him. Peaches did not
know who James was, as she knew appellant by the name Lavelle. Peaches said Myisha
did not have a weapon.
{¶ 42} Peaches left her apartment but could not go up to appellant’s apartment to
see Rocky, as the police were already there and led everyone out of the building. While
Peaches was standing on the sidewalk, she saw appellant being led out of the building in
handcuffs. Appellant looked at her and said, “[S]orry, Peaches, he had to go.”
{¶ 43} Peaches spoke with a detective and gave a statement. She said she did not
know Tyrone personally, but knew he was sneaky and a drug dealer. Peaches said Rocky
14.
was not violent or aggressive when he drank, but he would argue. She did admit she had
called the police on Rocky in the past.
Jeffery Jackson
{¶ 44} Detective Jackson of the Toledo Police Department, SIU, testified that on
January 18, 2018, he attended the autopsy of Larry Pendleton, took photographs and
received items of evidence. The detective took swabs from the decedent’s hands and Dr.
Pandey collected fingernail clippings. The doctor also recovered a bullet. All of the
decedent’s clothes, the swabs, the clippings and the bullet were collected as evidence.
{¶ 45} On February 27, 2018, Detective Jackson assisted Detective Jeff Clark in
conducting a search of appellant’s apartment, pursuant to a search warrant, for the
firearm used in the crime. They focused their search on the utility closet, which was next
to the linen closets. Detective Jackson noticed that both closet doors were open and a
box filter that fits up into the furnace was open and partially pulled down out of its
compartment. The area, which was very dirty, was dusted for fingerprints, but either
none were found or the ridge detail was insufficient. The detective also took
photographs. No firearm was found in appellant’s apartment.
{¶ 46} On March 8, 2018, Detective Jackson was advised that the decedent’s
apartment, number 112, at Moody Manor was being cleaned out by maintenance workers
and a gun was found. The detective went to Moody Manor, apartment 112, took
photographs and collected the firearm, which was a Taurus 38 Special Revolver, along
with five unfired Winchester 38 Special cartridges.
15.
Kevin Kramer
{¶ 47} Mr. Kramer testified he is a forensic scientist for BCI in the firearms
section. Toledo police provided him with a Taurus gun and a spent bullet for
examination; the bullet was consistent with being a 38 caliber.
{¶ 48} Kramer performed a comparison to determine if the Taurus gun fired the
spent bullet, but the results were inconclusive. He authored a report, dated April 19,
2018, with his findings.
Crystal Robinson
{¶ 49} Crystal testified she lived at Moody Manor, in apartment 111, and although
she did not know Rocky, she saw him coming and going and she spoke to him. Early in
the morning on January 18, 2018, she was on the phone and watching television when
she heard two or three gunshots, which startled her. Crystal got off of the phone and
crawled into her kitchen.
{¶ 50} Crystal heard people running down the stairs, so she opened her front door
to see who was outside. She heard Isha (Myisha Neal) say something about, “[H]e shot
him.” Crystal knew Myisha from around the neighborhood and apartments. Crystal
described Myisha as really nervous, so Crystal asked Myisha into her apartment. Myisha
went into Crystal’s apartment to wait for the police. Crystal said Myisha only had a cell
phone with her, no weapons. Myisha remained in Crystal’s apartment the entire time
until the police arrived.
16.
Tonya Brown
{¶ 51} Tonya testified she was Rocky’s older sister. She and Rocky were born in
Alabama, and moved to Toledo when they were in elementary school. They also have a
younger sister and Rocky had a daughter. Tonya described her brother as sweet, helpful
to elderly neighbors, he liked to laugh and have fun and he liked to be with family.
Rocky was very athletic, played football and was all-state running back in high school.
Rocky went to Penta and got a degree for auto body and collision, and wanted to open his
own shop. He worked in manufacturing, but had to resign for medical reasons. Tonya
recalled that about seven years ago, Rocky started to have seizures and a noncancerous
mass was found in his brain, and removed.
Jeff Clark
{¶ 52} Officer Clark, of the Toledo Police Department, testified he was the on-call
investigator on January 18, 2018, when he was notified of a homicide at Moody Manor.
He arrived at Moody Manor and was briefed by several officers including his supervisor
and Detective Renz. Initially, he did not interview any witnesses. The officer left the
scene, went to the Safety Building, and he and Detective Hahn interviewed Myisha and
Tyrone. Tyrone was not known to be a gangster.
{¶ 53} Several hours later, Officer Clark returned to Moody Manor with a search
warrant, so a more extensive search inside and outside of appellant’s apartment could be
undertaken. The officer and Detective Hahn searched the utility closet where the furnace
was located, but it was a tight, confined space, and they were not able to get behind the
17.
furnace although they tried to look around and underneath the furnace. No weapon or
spent shell casings were found in or around appellant’s apartment. Officer Clark also
interviewed Peaches while at Moody Manor. After that interview, he returned to the
Safety Building to interview appellant.
{¶ 54} Officer Clark and Detective Hahn interviewed appellant at about 5:00 to
5:45 a.m. Appellant was advised of his rights. During the videotaped interview, the
officer was made aware that appellant had been drinking earlier and smoking marijuana.
Appellant drank two and one-half twenty-four ounce cans of Milwaukee Ice beer,
drinking the last beer around 11:30 p.m. Appellant did not appear to be intoxicated and
his responses to the officer were appropriate. Appellant’s account of what transpired was
not consistent with Myisha’s account. Appellant indicated that Rocky had the brass
knuckles, and appellant was able to gain control of them and use them on Rocky.
Appellant had the brass knuckles in his pant’s pocket when police arrived at Moody
Manor.
{¶ 55} During the course of the investigation, Officer Clark learned that after the
shooting, Tyrone had been searched by police and no weapon was located on him. In
addition, there was no mention that Myisha was in possession of a firearm, and Officer
Clark confirmed this by tracking Myisha’s movements on the surveillance video. The
officer also tracked the whereabouts of Tyrone, his girlfriend and appellant on the video.
18.
{¶ 56} Officer Clark testified the theory was that a revolver was used because of
the absence of shell casings. When shooting a revolver, for each round fired, the trigger
must be pulled.
{¶ 57} Officer Clark listened to some of the jail telephone calls involving
appellant, and around February 16, 2018, there were calls that indicated appellant was
concerned about getting property out of his apartment. A DVD was made of the pertinent
portions of the calls. In one call, appellant, who was talking with his father, said he was
going to ask his uncle, Ant, to throw something in the garbage. Appellant said his fate
was in Ant’s hands. During a call with Ant, appellant said he needs Ant to do him the
biggest favor in the world. Appellant then described the linen closet, said turn around,
and that is the utility closet with the furnace. In other calls, dirty jeans and a thousand
dollars were discussed, which Officer Clark theorized were code for a firearm, as there is
no need to secretly remove dirty jeans or refer to money secretively.
{¶ 58} Based on the phone calls, the officer secured and executed a search warrant
for appellant’s uncle’s house and appellant’s apartment. The officer searched appellant’s
apartment with Detective Jackson and found the furnace was not in the same condition as
it had been on January 18, 2018. The furnace door was now pulled down and the filter
was exposed and damaged.
{¶ 59} Officer Clark also pulled surveillance footage from the exterior of Moody
Manor on February 16, 2018, which corresponded with the timing of the phone call
regarding removing an object from the furnace, and Ant can be seen coming and going.
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The officer had interviewed Ant, so he was able to identify Ant on the video. Plus,
during the interview, Ant admitted that he went to the apartment to remove property.
{¶ 60} Officer Clark recovered a Facebook video from appellant’s cellphone
which shows appellant holding a dark colored revolver. The video was posted
August 13, 2017.
{¶ 61} Officer Clark heard Myisha testify at trial and said her testimony was
extremely consistent with what she told him on January 18, 2018.
Appellant
{¶ 62} Appellant testified he was 23 years old, and lived at Moody Manor 13
years. He was 5’9” and 320, 340 pounds. Appellant knew Rocky and Tyrone, and
through them, he met Myisha. He described Rocky as a friend, but he could be
argumentative when drinking, Tyrone was a bully, a player and a drug dealer who always
carried a gun, and Myisha did not have a job and would “indulge in anything to keep her
not sober.” Tyrone and Myisha had a relationship and appellant said Myisha really liked
Rocky and Rocky told appellant that she was trying to get Rocky to leave Peaches.
{¶ 63} On the night of January 18, 2018, appellant got off of work and was at his
apartment, relaxing—drinking a beer, watching television, on the phone. Tyrone stopped
by and said he was going to the store, and then he, Rocky and Myisha would probably be
back. Later, Tyrone and Rocky came by appellant’s apartment, and Rocky sat in the
kitchen area. Myisha called Rocky’s phone, then she arrived at the apartment about five
minutes later. The group partied.
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{¶ 64} Appellant testified Rocky drove him to the store so appellant could get
more beer and cigarettes. In the car, they talked about Myisha and Rocky asked appellant
about his job and the money appellant owed him. Appellant explained “we had like a
barter system and things. I owed him like $146 * * * I told him * * * I can’t pay you
right now, I have other bills to tend to * * * I catch you my next check.” Appellant said
he went into the store while Rocky waited in the car. He bought beer and cigarettes and
paid his cell phone bill. Rocky and appellant then went back to the apartment, where
they joined Tyrone and Myisha. Everyone was relaxing.
{¶ 65} Appellant recalled Rocky asked if he and Myisha could use appellant’s
bedroom, but appellant said no, because he had to go to work in the morning and did not
want to stay up late. The festivities continued, with smoking and drinking. Myisha sat
on Rocky’s lap and Tyrone left “for a split second and he goes downstairs. He comes
back with like a big Ziploc bag of weed. Like, I think well over a pound. And he starts
to sack stuff out * * * [H]e pulls out a bud and says, here, you guys can smoke.”
Appellant thought it was good weed, and said he wanted to buy some. Appellant “put out
a couple twenties, knowing it was food money and everything * * * That’s when Rocky
started to get kind of - - he stood up and started pacing and things * * * [Rocky] started
getting upset a little bit after I bought the bag of weed from Tyrone.”
{¶ 66} Appellant said Rocky started “very aggressive, petty arguments” with him
out of nowhere, like “you think you’re special [because you got a job now], you told me
you couldn’t pay me right now, but you buying weed, f*** you trying to play me * * *
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I’m not leaving till I get my money.” Appellant responded, “[y]ou trippin’, man. I’m
going to pay you money, you know. But you know I smoke, so of course I buy some
weed * * * you kind of need to relax * * * I think you had too much to drink.”
{¶ 67} Appellant testified he asked everyone to leave, but Rocky was getting
angrier and not leaving. Appellant stated “I knew I was in the wrong for buying weed in
front of [Rocky], and he just asked me about the money in the car. So I was just trying,
you know, go, you had a little bit too much to drink, just leave. Please leave my house.
I kept saying that over and over.”
{¶ 68} Appellant testified he started to walk towards Rocky, asking him to leave.
Rocky shoved appellant, then Rocky started punching appellant. Appellant fought back,
and “[w]e’re fighting, tearing up my house. He’s falling. I’m actually falling, too, as
well because I’m tripping over things that we’ve knocked over.” The fight continued
“[Rocky] got up and started punching again and again and again.” Appellant was asked
if the punches were striking him and he replied, “Majority are, but I’m blocking most of
them * * * [b]ut I was also catching him a lot of times, too.”
{¶ 69} Appellant said he was winning the fight, but Rocky did not stop. The fight
moved from the living room to the hall area, and then Rocky “came back with the punch,
he came back with some silver [brass knuckles] on his hand, and he hit me one time in
the nose.” Appellant blocked the punches, stepped on Rocky’s foot and started punching.
Rocky fell down and the brass knuckles slipped off of his hand, so appellant picked up
the brass knuckles and “placed them in my hand so he couldn’t hit me with them no
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more.” Rocky kept fighting and appellant remembered hitting Rocky with the brass
knuckles a couple of times, but then appellant stepped back and put the brass knuckles in
his pocket. The men were now in the kitchen fighting. Appellant described the fight as
an even exchange, but he was blocking more of the hits than Rocky was.
{¶ 70} Appellant testified he tried to slip past Rocky, but was tripped and landed
in front of the door; Rocky followed. Appellant was trying to get Rocky close to the
door, so he could open the door and get Rocky out of the apartment, but Rocky was very
resistant.
{¶ 71} Appellant said Tyrone then pushed him and Rocky apart. Appellant kept
telling Rocky to leave. Rocky “lunged back at [appellant] throwing some more punches,
and then all of a sudden I see this gun and it just comes at me.” The “gun was like a
silverish black, but it was black -- I would say more silver. * * * It appeared to be a
revolver.” Rocky was pointing the gun at appellant, and the men were about two feet
apart, “[s]o essentially I reached and I pried it from his hand. He fired it when I grabbed
it, and I believe the shot went down into the floor. * ** I immediately had it in my hand.
He was lunging and I fired.” Appellant did not know how many times he fired as “I was
scared shitless if I may say. I was scared. I just fired.”
{¶ 72} After firing, Rocky “took a couple steps back, went to the ground.” Rocky
said something, moaned several times “and then it was over with.” Appellant dropped
the gun “and I watched Tyrone come over, kneel down in two areas, and then one area
was where initially the gun area, where I’m thinking I dropped it at, and then he taps
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Rocky saying * * * you okay, and I saw his hands come up and go back in his pocket,
and he used one hand to open the door and leave.” Myisha knelt down, attempted to
wake Rocky, then she followed behind Tyrone.
{¶ 73} Appellant was in shock. He walked to his chair, sat down and called his
father. He noticed Tyrone had left his Ziploc bag of weed, so appellant hid the weed
where the furnace was. He went in the bathroom then went back to his chair, noticed a
little weed on the table “so I rolled it up, fired it up. It was sloppy, wasn’t perfect.”
Appellant heard footsteps and “someone creeping up to my door, like pushing the door.”
It was the police with their guns drawn. Appellant said, “I’m not armed. I don’t have
any weapons. They took the weapons with them.”
{¶ 74} When the police were escorting appellant out of the apartment building, he
saw Peaches, who was crying hysterically. He thought he said, “[S]orry, Peaches, he
made me do it, he had to go.” Appellant wanted to stop and explain to Peaches what had
happened, how combative Rocky was.
{¶ 75} Appellant went to the police station where he gave a statement. He
remembers telling the truth, but he left out details because he was still in shock. He told
the police the main part—that Rocky started the fight, things escalated to brass knuckles,
Rocky was upset appellant was winning and Rocky pulled a gun.
{¶ 76} Appellant testified he did not hide the gun in the furnace, he wanted the
police to find the gun because “[b]oth our fingerprints would have been on it to prove that
it was his gun.” Appellant told police “I’m not sure who took it, I think it was Isha
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[Myisha] * * * they both [Tyrone and Myisha] kneeled down, and when they left, the gun
was gone.” When appellant was asked “right now do you know who took the gun?” he
answered, “I think it was Tyrone.” Appellant stated he did not own a gun, but admitted
he told the detectives that he had owned guns before because he had been jumped.
{¶ 77} Appellant said he called his uncle to get the weed that was hidden in the
furnace because he knew it would start to smell. Appellant had to make it sound kind of
serious so his uncle would go to the apartment as “[t]hey were basically telling me, you
know, your stuff is garbage, don’t worry about it.” Appellant asked his uncle if he got it,
and the uncle said “yes, sir, you a smart man, I love you for that, that’s good shit.”
Appellant explained his uncle was talking about the weed being good, and he was happy
appellant trusted him.
{¶ 78} On cross-examination, appellant admitted mentioning for the first time at
trial that: he owed Rocky $146; Tyrone brought a pound of weed up to the apartment; he
wrestled the gun away from Rocky and Rocky fired the first shot; he hid something in the
furnace; and the gun belonged to Tyrone.
{¶ 79} Appellant said the majority of Myisha’s testimony was not truthful,
although he then acknowledged that he did agree with many of her statements. Appellant
testified he told the police what happened was self-defense, that he protected himself.
Appellant stated the gun in the Facebook video was not his gun, he was with other
people, and the gun was passed to him in a careless moment, showing off.
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First Assignment of Error
{¶ 80} Appellant argues the trial court abused its discretion in denying his request
for a jury instruction on voluntary manslaughter. He contends he requested jury
instructions for voluntary manslaughter and self-defense, but the court refused to give a
voluntary manslaughter instruction if appellant wanted a self-defense instruction.
Appellant asserts the court denied the voluntary manslaughter instruction without
inquiring whether appellant had been provoked by Rocky to act with sudden passion or in
a fit of rage.
Standard
{¶ 81} On appeal, we review a trial court’s decision refusing to give a requested
jury instruction for abuse of discretion. State v. Wolons, 44 Ohio St. 3d 64, 68, 541
N.E.2d 443 (1989). An abuse of discretion indicates that the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
Law
{¶ 82} Appellant was charged with and convicted of murder, in violation of R.C.
2903.02, which provides:
(A) No person shall purposely cause the death of another * * *.
(B) No person shall cause the death of another as a proximate result
of the offender’s committing or attempting to commit an offense of
26.
violence that is a felony of the first or second degree and that is not a
violation of section 2903.03 or 2903.04 of the Revised Code.
(C) Division (B) of this section does not apply to an offense that
becomes a felony of the first or second degree only if the offender
previously has been convicted of that offense or another specified offense.
{¶ 83} Voluntary manslaughter is an inferior degree offense of murder. See State
v. Shane, 63 Ohio St. 3d 630, 632, 590 N.E.2d 272 (1992). The voluntary manslaughter
statute, R.C. 2903.03, provides:
No 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 decedent that is reasonably sufficient to incite the person
into using deadly force, shall knowingly cause the death of another * * *.
{¶ 84} The legal test for voluntary manslaughter is set forth in State v. Thompson,
141 Ohio St. 3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, which includes both an objective
and a subjective component (“Thompson test”). The Thompson test is used in murder
cases in order to determine whether the defendant is entitled to an instruction on
voluntary manslaughter. Id. at ¶ 152; Shane at paragraph one of the syllabus. “First - the
objective factor - the fact-finder must determine whether a serious provocation [caused
by the decedent] occurred and whether that provocation was ‘sufficient to arouse the
passions of an ordinary person beyond the power of his or her control.’” Thompson at
¶ 153, quoting Shane at 635. If the objective component is satisfied, the inquiry shifts to
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the subjective factor where “the fact-finder must evaluate whether ‘this actor, in this
particular case, actually was under the influence of sudden passion or in a sudden fit of
rage.’” Thompson at ¶ 153, quoting Shane at 634.
{¶ 85} Evidence that the defendant feared for his own safety and used deadly force
(self-defense), does not constitute sudden passion or a fit of rage as contemplated by the
voluntary manslaughter statute. See State v. Harris, 129 Ohio App. 3d 527, 535, 718
N.E.2d 488 (10th Dist.1998). “Self-defense on the one hand requires a showing of fear,
whereas voluntary manslaughter requires rage.” State v. Thompson, 10th Dist. Franklin
No. 92AP-1124, 1993 WL 51114 (Feb. 23, 1993), *2.
Analysis
{¶ 86} Upon review, the record shows the trial court did not apply the Thompson
test prior to deciding not to instruct the jury on voluntary manslaughter. Nonetheless, we
find the trial court’s error was harmless for the reasons that follow.
{¶ 87} Applying the objective factor of the Thompson test to the evidence
presented at trial, we find a reasonable person could conclude, based on appellant’s
testimony, that a serious provocation was caused by Rocky, and this provocation was
objectively sufficient to incite a sudden fit of rage in an ordinary person beyond the
person’s power to control.
{¶ 88} Concerning the subjective factor of the Thompson test, we find the record
contains no evidence that appellant was under the influence of sudden passion or rage
when he used deadly force. Appellant testified he was scared and was protecting himself
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when he shot Rocky. Since the subjective component of the Thompson test was not
satisfied, appellant was not entitled to a jury instruction on voluntary manslaughter. As
such, appellant was not harmed by the trial court’s failure to apply the proper law when it
determined a voluntary manslaughter instruction was not warranted. Finding no abuse of
discretion, appellant’s first assignment of error is not well-taken.
Second Assignment of Error
{¶ 89} Appellant argues the verdict was against the manifest weight of the
evidence, as the jury lost its way in convicting him of murder. Appellant maintains he
met the requirements of proving self-defense by a preponderance of the evidence. He
asserts there was evidence that Rocky was the initial aggressor, Rocky produced brass
knuckles and the gun, appellant was injured, appellant believed he was in immediate
danger of losing his life, and appellant was in his own apartment and had no duty to
retreat.
Standard
{¶ 90} In a manifest weight challenge, we determine whether the greater amount
of credible evidence supports the conviction. Eastley v. Volkman, 132 Ohio St. 3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. We must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses and
determine whether the jury, in resolving conflicts in the evidence, “‘clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
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and a new trial ordered.’” (Citation omitted.) State v. Thompkins, 78 Ohio St. 3d 380,
387, 678 N.E.2d 541 (1997).
{¶ 91} When we consider witness credibility, we must remember “the choice
between credible witnesses and their conflicting testimony rests solely with the finder of
fact and an appellate court may not substitute its own judgment.” State v. Awan, 22 Ohio
St.3d 120, 123, 489 N.E.2d 277 (1986). The jury is “in the best position to observe the
evidence presented, the witnesses’ testimony, including their demeanor, voice inflection,
and mannerisms, in order to determine the credibility of each witness.” State v.
Saunders, 10th Dist. Franklin No. 99AP-1486, 2000 WL 1724823, *3 (Nov. 21, 2000).
Law
{¶ 92} To establish self-defense, “the defendant must prove: (1) he was not at
fault in creating the situation giving rise to the affray; (2) he had a bona fide belief 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 deadly force; and (3) he did not violate any duty to retreat or
avoid the danger.” State v. Robbins, 58 Ohio St. 2d 74, 388 N.E.2d 755 (1979), paragraph
two of the syllabus. “If the defendant fails to prove any one of these elements by a
preponderance of the evidence he has failed to demonstrate that he acted in self-defense.”
State v. Jackson, 22 Ohio St. 3d 281, 284, 490 N.E.2d 893 (1986).
Analysis
{¶ 93} Upon review, we cannot find that the jury clearly lost its way in rejecting
appellant’s claim that he acted in self-defense. The jury was required to assess the
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credibility of all of the witnesses, weigh the evidence and determine which version of
events it believed. The testimony of Myisha Neal, detectives and police officers, as well
as appellant’s jail phone calls and videotaped statement, surveillance tapes from Moody
Manor and photographs of appellant’s apartment, provided competent, credible evidence
upon which the jury could conclude appellant failed to prove by a preponderance of the
evidence that he acted in self-defense when he shot and killed Rocky.
{¶ 94} The record shows evidence was presented from which the jury could decide
that appellant instigated the fight with Rocky, appellant was not in imminent danger and
had means to escape other than by shooting Rocky, and appellant could have retreated to
avoid danger. Thus, the jury’s conclusion that appellant did not act in self-defense is not
against the manifest weight of the evidence. Furthermore, we find the jury’s guilty
verdicts on the murder charges and firearm specifications are not against the manifest
weight of the evidence. Accordingly, appellant’s second assignment of error is not well-
taken.
{¶ 95} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal, pursuant to App.R. 24.
Judgment affirmed.
31.
State v. Allen
C.A. No. L-18-1191
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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