State v. Duncan , 2022 Ohio 3665 ( 2022 )

[Cite as State v. Duncan, 2022-Ohio-3665.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110784
v. :
DESMOND DUNCAN, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649123-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Nora Bryan and Mahmoud Awadallah,
Assistant Prosecuting Attorneys, for appellee.
Russell S. Bensing, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant Desmond Duncan (“Duncan”) appeals his convictions for
murder, felonious assault, and first-degree involuntary manslaughter. He contends
that the trial court erred in instructing the jury on self-defense; that the trial court
erred in refusing to instruct the jury on certain lesser-included offenses; that the trial
court erroneously admitted evidence of Duncan’s other acts in violation of Evid.R.
404(B), including juvenile adjudications; and that his convictions were against the
sufficiency and manifest weight of the evidence. After a thorough review of the
record and applicable law, this court affirms.
I. Factual and Procedural History
On June 16, 2019, Ramses Hurley (“Hurley”), a 19-year-old male, was
ejected from the backseat of a moving vehicle and left behind in a pool of his own
blood on South Moreland Boulevard in the Buckeye-Shaker neighborhood of
Cleveland, a few feet from his home. Hurley’s body contained numerous “road rash”
abrasions indicating that his body had likely been dragged along the road. He was
pronounced dead later that day. The medical examiner observed blunt-force
injuries to Hurley’s head and neck and determined that the manner of death was a
homicide. These specific facts are nearly certain based upon video surveillance and
available scientific evidence.
The events occurring in the vehicle prior to Hurley’s death are
significantly less certain. What occurred in that vehicle was almost exclusively
provided by Duncan and the driver of the vehicle, Trinity Campbell (“Campbell”).
Duncan and codefendants Campbell and Jaidee Miree (“Miree”) were
charged in an 11-count indictment. Duncan was charged with the following nine
counts: aggravated murder in violation of R.C. 2903.01(B) with firearm
specifications (Count 1); murder in violation of R.C. 2903.02(B) with firearm
specifications (Count 2); aggravated robbery in violation of R.C. 2911.01(A)(3) with
firearm specifications (Count 3); aggravated robbery in violation of R.C.
2911.01(A)(1) with firearm specifications (Count 4); felonious assault in violation of
R.C. 2903.11(A)(1) with firearm specifications (Count 5); felonious assault in
violation of R.C. 2903.11(A)(2) with firearm specifications (Count 6); improperly
handling firearms in a motor vehicle in violation of R.C. 2923.16(B) with firearm
specifications (Count 7); involuntary manslaughter in violation of R.C. 2903.04(A)
with firearm specifications (Count 8); and having weapons while under disability in
violation of R.C. 2923.13(A)(2) (Count 10).
Campbell testified at trial that prior to Hurley’s death, she picked up
Miree intending to purchase marijuana from Hurley. Since this was Campbell’s first
time making a purchase from Hurley, she wanted Miree, a friend of two to three
months, to accompany her. Allegedly, none of the defendants knew Hurley prior to
this encounter. Before arriving at Hurley’s home, Miree instructed Campbell to pick
up two of his friends, Duncan, and an unknown male who was referred to as “B.J.”
throughout the course of this case. During trial, Campbell testified that B.J. brought
guns into the car and supplied one to Miree. Campbell claimed she never met either
of these individuals, and in her first recitation of the events to Sergeant Aaron Reese1
of the Cleveland Police Department, she neglected to mention that Duncan was also
an occupant of the vehicle.
1At the time of the offense, Reese was a detective for the Cleveland Police
Department. In 2019, he was promoted to sergeant.
At trial, Campbell’s review of the events suggested that she realized that
her codefendants wanted to commit a robbery. She stated that before going to
Hurley’s house, she erroneously directed her G.P.S. to her coworker’s house, and the
vehicle occupants expressed intent to rob the coworker, but the plan fell through.
Campbell then testified that before they went to Hurley’s home, Duncan jumped into
the cargo area of the backseat, displayed a gun, and told her to be quiet. Campbell
was not initially forthcoming with details involving a robbery, and we note that one
of the defense’s theories was that Campbell merely acquiesced to the robbery
narrative to appease the police and prosecutor.
When Campbell’s vehicle eventually arrived at Hurley’s home, Hurley
was finishing a drug transaction with another individual, Emanuel Adams
(“Adams”). According to Campbell, Hurley entered the vehicle through the driver’s
side backdoor and was seated directly behind her. Hurley placed a scale and some
marijuana on the center console. According to Campbell’s testimony, as she was
reaching into her wallet for cash to pay for her portion, Miree grabbed the marijuana
from the scale and did not pay for it. Immediately after, Campbell noted that a
“commotion” ensued in the backseat. Two gunshots were fired in the vehicle. She
observed Hurley holding a gun. She also observed Duncan holding Hurley in a
headlock and pointing a gun to his head. Miree began punching Hurley in the head.
The backseat door opened, and Hurley was thrown from the vehicle. According to
Campbell, as soon as Hurley was out of the vehicle, Miree encouraged Campbell to
drive away.
While leaving the scene, Campbell lost control of the vehicle and struck
a brick pillar on Griffing Avenue. Campbell testified that Duncan instructed her to
leave or else he would “pop” her. When the vehicle was wrested away from the pillar,
she dropped the codefendants off at the location where she picked up Duncan, and
Miree instructed her to clean the vehicle and urinate on the seats to remove any
gunpowder residue. Campbell went home and followed the instructions to clean the
vehicle. She placed bullet fragments and shell casings that she recovered from the
vehicle in the sewer by her home, which were later retrieved by the Cleveland Police
Department. She also smashed her cell phone.
Duncan testified in his own defense at trial, and his version of the
events differed from Campbell’s considerably. He testified that he entered the
vehicle expecting a ride to the music studio and did not need to purchase any
marijuana, so he had his headphones on the entire time. Duncan denied ever
needing to, or wanting to, rob Hurley. Instead of being in the cargo area with a gun,
Duncan testified that he was right next to Hurley, in the middle of the backseat.
Duncan stated that he did not even realize that something was wrong until Hurley
pulled out a gun and pointed it towards Miree, and at that point he removed his
headphones and attempted to disarm Hurley. He noted that he was concerned
because he believed that Miree was shot and hurt. He then testified that he opened
the door and pushed Hurley from the vehicle in defense of himself and the other
vehicle occupants.
The following additional evidence was also adduced at trial.
Adams testified that he remained on scene following his transaction
with Hurley, feeling that he had been given a smaller amount of marijuana than he
paid for. He intended to confront Hurley about this after Hurley finished
transacting with Campbell’s vehicle. Instead, Adams became an eyewitness and
testified that he had a direct line of sight to the vehicle and saw Hurley’s body being
thrown from the vehicle and Hurley’s fingers being pried off the edge of the door
before he struck the ground. Adams remained on scene when the police arrived.
Lisa Przepyszny, a forensic scientist in the trace evidence department
of the Cuyahoga County Regional Forensic Science Laboratory, testified as an expert
in trace evidence. Przepyszny offered several significant opinions — that gunshot
residue was found on Hurley’s hands and that there were abrasions in the fabric of
the clothing that Hurley was wearing that day consistent with his body impacting a
rough surface. She also provided information about the bullet trajectories found
inside the vehicle and the DNA evidence found on Hurley’s clothing and inside the
vehicle.
Cecil Snowden was walking his dog at the time of the incident and
testified as an eyewitness. Snowden testified that he heard two gunshots and saw a
person coming out of the driver’s side of the vehicle.
Todd M. Barr, M.D. (“Dr. Barr”), testified as an expert in forensic
pathology about the autopsy and examination of Hurley’s body, noting Hurley’s
injuries as well as the cause and manner of death.
Sergeant Reese from the Cleveland Police Department testified
regarding his investigation of the case, including details from his interview with
Campbell three days after the subject incident.
The defense called Richard Cerney, a retired police detective, who
opined that the subject vehicle could have been preserved for evidentiary
examination until after trial was complete.
The defense also called Curtis Lewis, Duncan’s manager with respect
to his music career, who testified that Duncan did not need money, nor did he need
to rob someone for marijuana.
Prior to trial, Campbell accepted a plea deal with the state, part of
which contained an agreement to testify truthfully at Duncan and Miree’s joint trial.
The jury found Duncan guilty of felony murder (Count 2), felonious assault (Count
5), improperly handling firearms in a motor vehicle (Count 7), and involuntary
manslaughter (Count 8). The jury acquitted both Miree and Duncan of all firearm
specifications.
Duncan received life without the possibility of parole for 15 years for
murder, felonious assault, and involuntary manslaughter which were merged for
sentencing. Duncan received 12 months for improperly handling firearms in a
motor vehicle, to be served concurrently. Duncan appealed, assigning six errors for
our review:
I. The trial court erred in failing to properly instruct the jury on the
affirmative defenses of self-defense and defense of another, relieving
the State of its duty to disprove self-defense beyond a reasonable doubt,
in derogation of Defendant’s right to due process of law as protected by
the 5th and 14th Amendments to the United States Constitution, and
Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
II. The trial court erred in refusing to instruct the jury on the lesser-
included offenses of assault and involuntary manslaughter as a third-
degree felony, in derogation of Defendant’s right to due process of law
as protected by the 5th and 14th Amendments to the United States
Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
III. The trial court erred in admitting evidence of other acts against
Duncan, which were not admissible as res gestae or under Evid. R.
404(B), in derogation of Defendant’s right to due process of law as
protected by the 5th and 14th Amendments to the United States
Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
IV. The trial court erred in admitting testimony concerning the
Defendant’s juvenile adjudications, in derogation of Defendant’s right
to due process of law as protected by the 5th and 14th Amendments to
the United States Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio
Constitution.
V. The trial court erred in entering convictions for murder, felonious
assault, and first-degree felony involuntary manslaughter, as those
convictions were based on insufficient evidence, and there was
insufficient evidence to show that the [D]efendant had not acted in self-
defense, in derogation of Defendant’s right to due process of law as
protected by the 5th and 14th Amendments to the United States
Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
VI. The Defendant’s convictions for murder, felonious assault, and
first-degree felony involuntary manslaughter and the determination
that the State had disproved that Defendant had acted in self-defense,
were against the manifest weight of the evidence, as those convictions
were based on insufficient evidence, in derogation of Defendant’s right
to due process of law as protected by the 5th and 14th Amendments to
the United States Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio
Constitution.
II. Law and Analysis
A. Self-Defense and Duty to Retreat
In his first assignment of error, Duncan contends that the trial court
misapplied the laws of self-defense and the duty to retreat in instructing the jury.
The instructions provided to the jury as they pertained to self-defense
and/or defense of another were:
THE COURT: * * * To prove that the defendants did not use deadly
force in self-defense or defense of another, the State must prove beyond
a reasonable doubt at least one of the following:
A, the defendant was at fault in creating the situation giving rise to the
death of Ramses Hurley;
Or, B, the defendant did not have reasonable grounds to believe and an
honest belief, even if mistaken, that he was in imminent or immediate
danger of death or great bodily harm;
Or, C, the duty, the defendant violated a duty to retreat to avoid danger;
Or, D, the defendant did not use reasonable force.
(Tr. 2448-2449.)
First, Duncan argues that the jury instructions contemplated that
deadly force was used, where it was the state’s burden to present a case from which
the jury could conclude that the force used against Hurley was deadly or nondeadly.
Duncan argues that this was a “conclusive presumption.” During trial, counsel for
Miree proposed self-defense jury instructions that only contemplated deadly force.
[MIREE’S COUNSEL]: * * * Evidence was presented that tends to
support a finding that the defendant used deadly force in self-defense.
(Tr. 2055.)
Duncan’s counsel did not object to the instructions proposed by
Miree’s counsel, nor did Duncan’s counsel offer any instructions that contemplated
deadly or nondeadly force. Because Duncan’s counsel failed to object to these
instructions and raises them for the first time on appeal, our analysis is constrained
to plain error:
In the absence of objection, any error is deemed to have been waived
unless it constitutes plain error. To constitute plain error, the error
must be obvious on the record, palpable and fundamental so that it
should have been apparent to the trial court without objection. See
State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (1995).
Moreover, plain error does not exist unless the appellant establishes
that the outcome of the trial clearly would have been different but for
the trial court’s allegedly improper actions. State v. Waddell, 75 Ohio
St.3d 163, 166, 661 N.E.2d 1043 (1996). Notice of plain error is to be
taken with utmost caution, under exceptional circumstances, and only
to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio
St.3d 72, 83, 656 N.E.2d 643 (1995).
State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 43.
Duncan has not argued plain error on appeal, and we decline to sua
sponte consider the issue without a proper argument before us. State v. Speights,
8th Dist. Cuyahoga No. 109733, 2021-Ohio-1194, ¶ 14, citing State v. Sims, 10th Dist.
Franklin No. 14AP-1025, 2016-Ohio-4763, ¶ 11.
Second, Duncan argues that the jury was erroneously instructed that
Duncan had a duty to retreat before acting in self-defense. In support of this,
Duncan sets forth two arguments. Duncan first argues that there is no duty to
retreat when a defendant uses nondeadly force. Duncan also argues that R.C.
2901.09, as amended on April 6, 2021, eliminates a duty to retreat from the
perceived threat if “that person is in a place in which the person lawfully has a right
to be.” R.C. 2901.09(B). The amended statute also thoroughly eliminates a trier of
fact’s ability to consider the duty to retreat “in determining whether or not a person
who used force in self-defense [or] defense of another * * * reasonably believed that
the force was necessary to prevent injury, loss, or risk to life or safety.” R.C.
2901.09(C).
We disagree that the jury was erroneously instructed. A statute may
not be applied retroactively unless expressly made retroactive. Hyle v. Porter, 117
Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 9. Further, a statute is presumed
to operate prospectively unless expressly made retroactive. R.C. 1.48. Further, this
court has noted that ‘“[i]n Ohio, when the General Assembly reenacts, amends, or
repeals a criminal statute, the substantive provisions of the former law apply to all
pending prosecutions, but the defendants receive the benefit of a reduced “penalty,
forfeiture, or punishment” in the statute as amended, unless the General Assembly
expresses another intent.’” State v. Hurt, 8th Dist. Cuyahoga No. 110732, 2022-
Ohio-2039, ¶ 59, quoting State v. Solomon, 2012-Ohio-5755, 983 N.E.2d 872, ¶ 16
(1st Dist.), citing R.C. 1.58, and State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634(1998).
This court has also previously held that the amendments to R.C.
2901.09(C) do not apply retroactively and are not required if the April 6, 2021
amendments were not in effect at the time of the offense. Hurt at ¶ 61; State v.
Claytor, 8th Dist. Cuyahoga No. 110837, 2022-Ohio-1938, ¶ 79. Consistent with this
court’s previous holdings, we find that the trial court did not err in instructing the
jury on the duty to retreat because it existed at the time of the offense. Additionally,
one of our sister districts, the Second District, has come to the same conclusion
regarding the amendments to R.C. 2901.09. See, e.g., State v. Jones, 2d Dist.
Montgomery No. 29214, 2022-Ohio-3162, ¶ 39; State v. Degahson, 2d Dist. Clark
No. 2021-CA-35, 2022-Ohio-2972, ¶ 19; see also Jones at ¶ 40 (declining to address
duty-to-retreat errors because the inquiry appears purely academic when the place
of retreat that is contemplated is a vehicle, where retreat is difficult to conceive).
We are also unpersuaded by Duncan’s contention that the Supreme
Court’s recent opinion in State v. Brooks, Slip Opinion No. 2022-Ohio-2478,
addressing the 2019 amendments to the self-defense statute (R.C. 2901.05), extends
to the duty to retreat amendments. In Brooks, the Ohio Supreme Court held that
the amendments to R.C. 2901.05 applied prospectively to all trials after the
amendment’s effective date, regardless of when the underlying conduct occurred.
Id. at ¶ 23. In making this determination, the Brooks Court reasoned that R.C.
2901.05 as amended only shifted the burden and did not change the substance of a
self-defense claim. Id. at ¶ 15 (the amendments neither provide nor take away any
substantive right because even under the former R.C. 2901.05, defendants still had
a right to make a self-defense claim). The duty to retreat amendment is different.
Pursuant to this court’s finding in Hurt, the amended R.C. 2901.09(C) is a
substantive change inasmuch as it pertains to an element of the offense and removes
an element that the factfinder must consider. Hurt at ¶ 61.
Unlike the self-defense amendments that merely shift the burden, the
amended R.C. 2901.09(C) is a substantive change and cannot be applied
retroactively. The law as it existed at the time of the offense is the law that the jury
must consider.
We therefore find that the trial court properly instructed the jury
pursuant to the version of R.C. 2901.09 that was in effect at the time of the offense.
Accordingly, Duncan’s first assignment of error is overruled.
B. Lesser Included Offenses
In his second assignment of error, Duncan argues that the trial court
erred in failing to instruct the jury on the lesser included offenses of reckless assault
and involuntary manslaughter as a third-degree felony.
Trial courts have broad discretion to determine whether the record
contains sufficient evidentiary support to warrant a jury instruction on a lesser
included offense, and that will not be reversed absent an abuse of discretion. State
v. Henderson, 8th Dist. Cuyahoga No. 89377, 2008-Ohio-1631, ¶ 10, citing State v.
Wright, 4th Dist. Scioto No. 01CA2781, 2002 Ohio App. LEXIS 7274 (Mar. 26,
2002). An abuse of discretion connotes a trial court’s decision that is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). When considering evidence of a lesser included offense, the
court must view it in a light most favorable to the defendant. State v. Campbell, 69
Ohio St.3d 38, 630 N.E.2d 339 (1994). The instruction, however, is not warranted
in every instance where some evidence is presented on a lesser included offense.
State v. Smith, 8th Dist. Cuyahoga No. 90478, 2009-Ohio-2244, ¶ 12, citing State v.
Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992). An instruction on a lesser
included offense is required only where “the evidence presented at trial would
reasonably support both an acquittal on the crime charged and a conviction upon
the lesser included offense.” State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286(1988), paragraph two of the syllabus.
The Ohio Supreme Court provides a two-tiered analysis for
determining whether a lesser included instruction is warranted.
The first tier, also called the “statutory-elements step,” is a purely legal
question, wherein we determine whether one offense is generally a
lesser included offense of the charged offense. State v. Kidder, 32 Ohio
St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to the
evidence in a particular case and determines whether “‘a jury could
reasonably find the defendant not guilty of the charged offense, but
could convict the defendant of the lesser included offense.’” [State v.
Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13],
quoting Shaker Heights v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-
2072, 865 N.E.2d 859, ¶ 11. Only in the second tier of the analysis do
the facts of a particular case become relevant.
State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6.
Duncan argues that he was entitled to a jury instruction under Counts
5 and 6 (felonious assault) for the lesser included offense of reckless assault
pursuant to R.C. 2903.13(B). The jury did not enter a finding of guilt for Count 6
pursuant to R.C. 2903.11(A)(2), which specifies that the assault was caused by a
deadly weapon. Accordingly, Duncan did not suffer any prejudice from the court’s
failure to instruct the jury on the lesser included offense because it relates to Count
6, so we will only review Count 5.
In denying the request, the trial court reasoned:
I certainly don’t think it applies to Count 6 in as much as that has the
additional component of a deadly weapon. And, likewise, given the
facts of the case, I don’t think it would apply towards Count 5 either.
(Tr. 2419.)
The first tier of the Deanda test is satisfied. This court has previously
recognized reckless assault as the lesser included offense of felonious assault. State
v. McPherson, 8th Dist. Cuyahoga No. 92481, 2010-Ohio-64, ¶ 7.
Next, we review the second tier. Felonious assault as defined by R.C.
2903.11(A)(1), requires that an offender act “knowingly,” while reckless assault, as
defined by R.C. 2903.13(B), requires that an offender act “recklessly.” This is the
only difference between the two offenses. A person acts knowingly when the person
is aware that their conduct will probably cause a certain result. R.C. 2901.22(B). A
person acts recklessly when, with heedless indifference to the consequences, they
disregard a substantial and unjustifiable risk that their conduct is likely to cause a
certain result. R.C. 2901.22(C).
Under R.C. 2901.22(A), the state was not required to prove that
Duncan or Miree acted with the specific intention to cause a certain result. State v.
Jackson, 10th Dist. Franklin No. 94APA04-531, 1994 Ohio App. LEXIS 5504, 14
(Dec. 8, 1994). Rather, the state need only prove that the defendant acted
knowingly, regardless of his purpose. Id. A review of the facts indicates that no
reasonable juror could have found that pushing Hurley from a moving vehicle was
committed recklessly rather than knowingly. Duncan pushed Hurley from a moving
vehicle, pried Hurley’s fingers from the door, and left Hurley in a road where a
vehicle could strike him. Indeed, Duncan even testified that he knew Hurley would
sustain an injury from being thrown from the vehicle. Therefore, the second tier of
the analysis is not met, and the trial court did not err in concluding from the facts
that a reckless assault instruction was not warranted.
Duncan also asserts that the trial court erred in failing to instruct the
jury under Count 8 (involuntary manslaughter) for the lesser included offense of
involuntary manslaughter in the third degree. Where the elements of two offenses
are “identical to or contained within the indicted offense, except for one or more
mitigating elements,” the lesser offense is considered an inferior degree offense.
State v. Deem, 40 Ohio St.3d 205, 206, 533 N.E.2d 294 (1988). Under R.C.
2903.04(A), involuntary manslaughter is a first-degree felony if the predicate
offense is a felony. Under R.C. 2903.04(B), involuntary manslaughter is a third-
degree felony if the predicate offense is a misdemeanor, regulatory offense, or minor
misdemeanor. Involuntary manslaughter in the third degree is plainly a lesser
offense of involuntary manslaughter in the first degree. The first tier of the Deanda
test is satisfied as to Duncan’s request for a third-degree involuntary manslaughter
instruction.
Involuntary manslaughter decreases from a first-degree felony to a
third-degree felony when the predicate offense is no longer a felony, but a
misdemeanor. Duncan argues that because he was entitled to an instruction on
reckless assault, that could have served as the predicate for an instruction on third-
degree involuntary manslaughter. Because we found that Duncan was not entitled
to an instruction on reckless assault, there is no predicate misdemeanor upon which
to base an instruction for third-degree involuntary manslaughter.
Duncan’s second assignment of error is overruled.
C. Other Acts Evidence
In his third assignment of error, Duncan argues that the trial court
erred in admitting evidence of other acts against Duncan in violation of Evid.R.
404(B). Specifically, Duncan argues that the jury was not entitled to hear testimony
regarding the planned robbery of Campbell’s coworker.
Campbell testified during trial that before going to Hurley’s home, she
erroneously directed her G.P.S. to a coworker’s home. While at the coworker’s
home, she sold the coworker a vape cartridge. Campbell testified that after they left
the coworker’s home, Duncan suggested that they go back and rob the coworker, but
that plan fell through. Duncan argues that this testimony was not admissible under
Evid.R. 404(B), that the evidence of the other purported robbery was not part of the
res gestae, and that it should have been barred under Evid.R. 403(A) due to the
prejudicial effect of the evidence. We disagree.
The admission or exclusion of evidence is left to the sound discretion
of the trial court. State v. Rogers, 8th Dist. Cuyahoga No. 105879, 2018-Ohio-3495,
¶ 15, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Further, whether
evidence is relevant, confusing, or misleading is best left to the discretion of the trial
court who is in a better position to analyze the evidence’s impact on the jury. Renfro
v. Black, 52 Ohio St.3d 27, 31, 556 N.E.2d 150 (1990), citing Columbus v. Taylor, 39
Ohio St.3d 162, 164, 529 N.E.2d 1382 (1988); Calderon v. Sharkey, 70 Ohio St.2d
218, 222, 436 N.E.2d 1008 (1982).
Duncan argues that the testimony about the plan to rob Campbell’s
coworker was purposed to “establish the defendants’ propensity to commit
robberies.” We find that there is no error because the jury acquitted both Miree and
Duncan of all charges as they related to a robbery. Any prejudice caused to Duncan
by this testimony was harmless because the jury plainly rejected the state’s theory
that this incident was a robbery.
Duncan’s third assignment of error is therefore overruled.
D. Juvenile Record
In his fourth assignment of error, Duncan argues that the trial court
erred in admitting evidence concerning his juvenile adjudications.
During trial, the state noted their intent to cross-examine Duncan on
his juvenile record if the defense opened the door to his juvenile adjudications.
Briefing was done overnight. The court significantly limited the state’s mention of
the juvenile record, allowing only one 2017 adjudication of aggravated robbery and
kidnapping with firearm specifications.
For ease of understanding, we repeat that the admission or exclusion
of evidence is a matter left to the trial court’s sound discretion; therefore, it will not
be disturbed absent an abuse of discretion. State v. Simmons, 8th Dist. Cuyahoga
No. 98613, 2013-Ohio-1789, ¶ 18, citing State v. Frazier, 8th Dist. Cuyahoga No.
97178, 2012-Ohio-1198, ¶ 17. An abuse of discretion connotes a trial court’s decision
that is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 21,
450 N.E.2d 1140.
Evidence of juvenile adjudications are generally not admissible except
as allowed by the General Assembly in R.C. 2151.358(H). However, “[w]hen a
defendant in a criminal case is permitted to introduce evidence of his life history, he
* * * may be cross examined with reference to the disposition of any charge preferred
against him as a juvenile.” State v. Marinski, 139 Ohio St. 559, 41 N.E.2d 387 (1942),
paragraph one of the syllabus.
During trial, Duncan took the stand in his own defense. He testified
that he maintained a career as a hip-hop artist and went to the studio nearly every
day. He further testified that he traveled for performances and that his music was
released on several streaming platforms and he earned money from both performing
and streaming his music. He testified that his manager helped him pay for studio
time and any of his other needs with an allowance. Further, he testified that he did
not need any money and was given anything he needed by his management team.
Prior to beginning his music career, he attended high school at Lutheran West where
he received a basketball scholarship. He testified that he had to wake up at 4:30 in
the morning and take three busses to get to school. He also testified that he had
never heard a noise as loud as those gunshots in his entire life.
The trial court significantly limited Duncan’s prior record, allowing
the prosecution to mention only one adjudication. We find no abuse of discretion
in the trial court’s determination to limit the record. Nonetheless, Duncan argues
that his testimony did not “open the door” to his juvenile adjudications pursuant to
Marinski. We disagree.
Duncan testified about his life history, including his current pursuit of
becoming a hip-hop artist, and his past endeavors including being a high school
basketball player. He also indicated that he had never heard sounds as loud as those
gunshots before. He also indicated that he has no reason to rob anyone. Taken
together, we find that Duncan sufficiently “opened the door” to his juvenile record.
The trial court did not err in allowing the limited 2017 adjudication of aggravated
robbery and kidnapping with firearm specifications to become part of the record.
We further note that the trial court gave a limiting instruction,
instructing the jury that Duncan’s juvenile record may only be utilized to “provid[e]
context to answers to questions posed to him on direct examination” and that his
juvenile record may not be considered as evidence that makes it more likely that he
committed the subject offense. (Tr. 2441.) Juries are presumed to follow all
instructions given to them, including limiting instructions. State v. Ahmed, 103
Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93; State v. Hancock, 108 Ohio
St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 54.
Duncan’s fourth assignment of error is overruled.
E. Sufficiency and Manifest Weight
In his fifth assignment of error, Duncan contends that his convictions
for murder, felonious assault, and felony involuntary manslaughter were based on
insufficient evidence. He further alleges that the evidence was not sufficient to
support a finding that he did not act in self-defense. In his sixth assignment of error,
Duncan contends that his convictions for murder, felonious assault, and felony
involuntary manslaughter were against the manifest weight of the evidence. He
further contends that the manifest weight of the evidence did not disprove that he
acted in self-defense.
A manifest weight challenge and a sufficiency of the evidence
challenge are two distinct challenges to the evidence presented. State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
1. Manifest Weight
A challenge to the manifest weight of the evidence ‘“involves the
inclination of the greater amount of credible evidence.’” State v. Harris, 8th Dist.
Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). Weight of the evidence examines ‘“the
evidence’s effect of inducing belief.’” Id., quoting Wilson at id., citing Thompkins at
386-387. In reviewing a manifest-weight claim, the court must consider all of the
evidence in the record, the reasonable inferences made from it, and the credibility
of the witnesses to determine “‘“whether in resolving conflicts in the evidence, the
factfinder clearly lost its way and created such a manifest miscarriage of justice
* * *.”’” Id., quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d
172, 485 N.E.2d 717 (1st Dist.1983). Finally, the discretionary power to grant a new
trial should be reserved for exceptional cases where ‘“the evidence weighs heavily
against the conviction.’” Thompkins at id., quoting Martin at 175.
Duncan suggests that because the jury rejected Campbell’s testimony
regarding the robbery and firearms, they did not find that she was a credible witness
and thus, all of her testimony should be discredited. We disagree. As the factfinders,
the jury was free to believe any or all of the evidence presented.
We find it necessary to note that the testimony of Campbell and
Duncan, the only two witnesses who were actually present in the vehicle, raise
significant credibility concerns. Turning first to Campbell, she testified that at the
time of this incident, she was high on marijuana and admitted that she smoked
marijuana two or three times before the incident. She testified that after the first
shot went off in the vehicle, she felt dazed and testified that “everything was white.”
(Tr. 1373.) Campbell was confronted with the inconsistencies in her testimony on
cross-examination, notably the fact that each time she provided information, she
differed or added something new. Campbell also received a plea deal in exchange
for truthful testimony, which was indicated to the jury many times throughout trial.
Duncan told a completely different version of the events. He testified
that he was unaware of any tension or problems in the vehicle because he was
listening to music on his headphones in the back seat and did not become aware that
there was a problem until he noticed Hurley pointing a gun at Miree. This starkly
contrasts Campbell’s testimony that Duncan jumped into the cargo area of the
vehicle, displayed a gun, and instructed her to remain silent, likely with the intention
of robbing Hurley. Duncan’s testimony that he did not intend to rob anyone is
further contradicted by Campbell’s testimony that the occupants of the vehicle
desired to rob Campbell’s coworker prior to arriving at Hurley’s house but were
unsuccessful.
Moreover, both Campbell and Duncan expressed trepidation in
offering testimony and suggested that inconsistencies in their testimony were
motivated by fear of being a “snitch.” Indeed, we note that B.J., the other individual
who was present in the vehicle during this incident, remains unidentified.
Additionally, the evidence tends to demonstrate that the full story of what occurred
in that vehicle has not been revealed. Specifically, there was testimony that the sole
objective of this excursion was for Miree to supervise a transaction with a new,
unknown marijuana dealer. However, Miree, for reasons unknown, instructed
Campbell to pick up two other individuals that she did not know and had never met
before, along the way. We acknowledge that from the evidence presented, the jury
was tasked with synthesizing divergent testimony, significant circumstantial
evidence, and drawing reasonable inferences therefrom.
The jury was charged with a complicity instruction pursuant to R.C.
2923.03 and thus, could have considered evidence against Miree as evidence against
Duncan if they found that Duncan and Miree were accomplices. The trial court also
instructed that it was within the province of the jury to determine whether Campbell
was an accomplice. The evidence presented supports the conclusion that the
defendants acted in concert.
Pertinently, all of the codefendants were present in the vehicle when
Hurley was thrown from it, including B.J. who is unknown to date. Evidence was
presented that Miree instructed Campbell to pick up Duncan and B.J., even though
Campbell did not know them. When asked why Miree instructed her to pick them
up, Campbell stated, “he just said we’ve got to go to that house” and that “there was
no explanation.” (Tr. 1239.) Campbell testified that when Duncan got into the
vehicle, he was being aggressive and asking to drive. After the incident occurred,
Campbell dropped all three passengers off at the same location where Duncan was
picked up and they removed items from the vehicle, including Hurley’s boot. Miree
also instructed Campbell to clean her vehicle and remove evidence, including
bullets. Miree came to Campbell’s residence about four times before she spoke with
the police. Even though the jury rejected the robbery theory, Campbell’s testimony
also indicated that she realized at some point that the occupants wanted to commit
a robbery and even attempted to rob her coworker before reaching Hurley’s home.
The weight of the evidence presented supports a conclusion that the vehicle’s
occupants were acting in concert.
To convict Duncan of felony murder under R.C. 2903.02(B), the state
was required to prove that Duncan caused Hurley’s death as a proximate result of
the commission of a violent felony in the first or second degree. The state listed the
predicate offenses as aggravated robbery and felonious assault, and the jury only
found Duncan guilty of felonious assault. For a felonious assault conviction, the
state was required to prove that Duncan knowingly caused serious physical harm to
Hurley. R.C. 2903.11(A)(1). Serious physical harm, as it relates to this matter, is
defined as physical harm that carries a substantial risk of death and/or involves
some permanent incapacity or disfigurement. R.C. 2901.01(A)(5)(b)-(d). We will
therefore review the evidence supporting the felonious assault, with the knowledge
that Hurley died as a result of this incident, which certainly constitutes serious
physical harm.
A review of the record abundantly supports a felonious assault
conviction. Duncan admitted that he pushed Hurley from a moving vehicle with the
knowledge that Hurley was likely to sustain an injury. Dr. Barr testified that the
deep contusions to Hurley’s face could have been caused by a physical altercation or
the impact with the road. Dr. Barr also testified that Hurley’s ultimate cause of
death, a hinge-type fracture of the neck, is unique because it “takes a lot of force to
generate” and is typically seen “in pedestrians that are hit by cars, when there are
motor vehicle accidents, high velocity, any kind of a high-velocity injury.” (Tr. 1933.)
Evidence was also presented that Miree repeatedly punched Hurley in the face after
Hurley fired shots. All of this considered, the manifest weight of the evidence
presented supports that Duncan is guilty of felonious assault.
Duncan also argues that the state did not meet its burden in proving
that he did not act in self-defense. Pertinently, the jury was instructed:
THE COURT: * * * To prove that the defendants did not use deadly
force in self-defense or defense of another, the State must prove beyond
a reasonable doubt at least one of the following:
A, the defendant was at fault in creating the situation giving rise to the
death of Ramses Hurley;
Or, B, the defendant did not have reasonable grounds to believe and an
honest belief, even if mistaken, that he was in imminent or immediate
danger of death or great bodily harm;
Or, C, the duty, the defendant violated a duty to retreat to avoid danger;
Or, D, the defendant did not use reasonable force.
(Tr. 2448-2449.)
A review of the facts indicates that the jury could have concluded that
Duncan and/or Miree were not acting in self-defense. Testimony indicated that
Miree grabbed the marijuana from the scale without paying for it, which lends itself
to an inference that Miree was an instigator. There is also evidence that Miree
instigated the entire situation by inviting Duncan and B.J. into the vehicle on the
way to Hurley’s home. Though this is not an exhaustive list, we conclude that the
record tends to support that the jury could have rejected that Duncan and Miree
were acting in self-defense.
Duncan also argues that his involuntary manslaughter conviction was
against the manifest weight of the evidence. Under R.C. 2903.04(A), the state was
required to prove that Duncan caused Hurley’s death as a proximate result of
committing or attempting to commit a felony. Again, the state named the predicate
felonies as aggravated robbery and felonious assault; since the jury acquitted
Duncan of all robbery charges, felonious assault was the predicate felony. We
already determined that the evidence supports a finding of felonious assault, and
further supports a finding that these actions actually caused the death of Hurley.
After reviewing the record, weighing the evidence, reviewing all
reasonable inferences, and examining witness credibility, we cannot conclude that
the jury lost its way and created such a manifest miscarriage of justice to warrant a
new trial. Duncan’s sixth assignment of error is overruled.
2. Sufficiency of the Evidence
“A claim of insufficient evidence raises the question whether the
evidence is legally sufficient to support the verdict as a matter of law.” State v.
Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing Thompkins, 78
Ohio St.3d at 386, 678 N.E.2d 541. The relevant inquiry in a sufficiency challenge is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime existed
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. When making a sufficiency determination, an
appellate court does not review whether the state’s evidence is to be believed but
whether, if believed, the evidence admitted at trial supports the conviction. State v.
Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at
387. Under a sufficiency challenge, witness credibility is immaterial; the appellate
court must defer to credibility determinations of the trier of fact and only review
issues of law. Parker at ¶ 7.
Balancing the evidence and testimony discussed above, as well as all
other evidence in the record, we find that a reasonable factfinder could conclude that
Duncan intended to cause serious physical harm to Hurley and that Hurley’s death
proximately resulted from Duncan’s actions. Thus, the evidence presented, if
believed, was sufficient to establish the elements of murder, felonious assault, and
involuntary manslaughter. Duncan’s fifth assignment of error is overruled.
III. Conclusion
We overrule all of Duncan’s assignments of error. The trial court did
not err in its instructions to the jury on self-defense and the duty to retreat; the trial
court did not err in refusing to instruct the jury on the lesser included offenses of
assault and involuntary manslaughter in the third degree; the trial court did not err
in allowing evidence of the alleged planned robbery of Campbell’s coworker into the
record; the trial court did not err in admitting Duncan’s juvenile adjudications; and
Duncan’s convictions were not against the manifest weight of the evidence nor were
they based on insufficient evidence. Duncan’s convictions are affirmed.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
CORNELIUS J. O’SULLIVAN, JR., J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
EILEEN A. GALLAGHER, J., DISSENTING:
I respectfully dissent. I would reverse Duncan’s convictions for
murder, felonious assault and first-degree felony involuntary manslaughter (Counts
2, 5 and 8) and remand for a new trial on those counts.
Lesser Included Offenses
In his second assignment of error, Duncan contends that he was
denied due process and a fair trial because the trial court refused to instruct the jury,
as requested, regarding (1) assault under R.C. 2903.13(B) (“reckless assault”) as a
lesser included offense of felonious assault as charged in Count 5 and (2) third-
degree felony involuntary manslaughter under R.C. 2903.04(B) (with reckless
assault as the predicate offense) as a lesser included offense of felony murder (with
felonious assault as the predicate offense) as charged in Count 2 and first-degree
felony involuntary manslaughter (with felonious assault as the predicate offense) as
charged in Count 8. Duncan asserts that, if the jury been instructed on reckless
assault, it might have determined that Duncan did not cause serious physical harm
to Hurley knowingly, but recklessly, finding him not guilty of felonious assault and
guilty of reckless assault. He further argues that because reckless assault is a
misdemeanor, a conviction for reckless assault (rather than felonious assault) could
not support a conviction for felony murder as charged in Count 2 or a conviction for
first-degree felony involuntary manslaughter as charged in Count 8.
“A criminal defendant is sometimes entitled to a jury instruction that
allows the jury to consider convicting the defendant of a lesser included offense as
an alternative to convicting for the offense for which the defendant was charged.”
State v. Owens, 162 Ohio St.3d 596, 597, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 8,
citing State v. Thomas, 40 Ohio St.3d 213, 216-218, 533 N.E.2d 286 (1988).
Count 5 charged Duncan with felonious assault under R.C.
2903.11(A)(1), which states, in relevant part, “No person shall knowingly * * *
[c]ause serious physical harm to another.” Reckless assault is proscribed in R.C.
2903.13(B), which provides, in relevant part, “No person shall recklessly cause
serious physical harm to another.” Count 2 charged Duncan with felony murder
under R.C. 2903.02(B) which states, “No person shall cause the death of another as
a proximate result of the offender’s committing or attempting to commit an offense
of violence that is a felony of the first or second degree and that is not a violation of
[R.C.] 2903.03 or 2903.04.” Count 8 charged Duncan with first-degree felony
involuntary manslaughter under R.C. 2903.04(A), which states, in relevant part,
“No person shall cause the death of another * * * as a proximate result of the
offender’s committing or attempting to commit a felony.” Third-degree felony
involuntary manslaughter is proscribed in R.C. 2903.04(B), which provides, in
relevant part, “No person shall cause the death of another * * * as a proximate result
of the offender’s committing or attempting to commit a misdemeanor of any
degree.”
The parties do not dispute that, as statutorily defined, reckless assault
in violation of R.C. 2903.13(B) is a lesser included offense of felonious assault in
violation of R.C. 2903.11(A)(1), see, e.g., State v. Benson, 8th Dist. Cuyahoga No.
106214, 2018-Ohio-2235, ¶ 24, State v. Holcomb, 7th Dist. Columbiana No. 18 CO
0039, 2020-Ohio-561, ¶ 31, or that because reckless assault is a misdemeanor, a
conviction for reckless assault (rather than felonious assault) could not support a
conviction for felony murder as charged in Count 2 or a conviction for first-degree
felony involuntary manslaughter as charged in Count 8, but could, instead, support
a conviction for third-degree felony involuntary manslaughter under R.C.
2903.04(B). At issue in this case is whether sufficient evidence was presented below
to warrant a jury instruction on reckless assault as a lesser included offense.
A trial court must instruct the jury on a lesser included offense if,
under any reasonable view of the evidence, it would be possible for the jury to find
defendant not guilty of the offense charged and guilty of the lesser offense. See, e.g.,
State v. Wine, 140 Ohio St.3d 409, 418, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 32, 34;
see also Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, at paragraph two of the
syllabus (“Even though an offense may be statutorily defined as a lesser included
offense of another, a charge on such lesser included offense is required only where
the evidence presented at trial would reasonably support both an acquittal on the
crime charged and a conviction upon the lesser included offense.”); State v. Miller,
8th Dist. Cuyahoga No. 109130, 2021-Ohio-2924, ¶ 86. An appellate court reviews
a trial court’s decision whether to give a requested jury instruction on a lesser
included offense for abuse of discretion. State v. Parker, 8th Dist. Cuyahoga No.
110563, 2022-Ohio-377, ¶ 11; Miller at ¶ 87, citing State v. Rucker, 2018-Ohio-1832,
113 N.E.3d 81, ¶ 67 (8th Dist.).
The distinguishing element between felonious assault under R.C.
2903.11(A)(1) and reckless assault under R.C. 2903.13(B) is whether the defendant
acted knowingly or recklessly. A person acts “knowingly” when, “regardless of
purpose,” “the person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature.” R.C. 2901.22(B). A person
acts “recklessly” when, “with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person’s conduct is likely to
cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C). Both
offenses require that the act caused serious physical harm.2
2 “Serious physical harm to persons” is any of the following:
(a) Any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether
partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that
involves some temporary, serious disfigurement;
The state maintains that the trial court did not abuse its discretion in
refusing to give Duncan’s requested jury instructions on lesser included offenses
because, based on Campbell’s testimony, the evidence showed that Duncan “acted
knowingly, not recklessly” and was, therefore, “insufficient to warrant the requested
instructions.”
In support of its position, the state points to the following testimony
by Campbell:
The testimony given by Trinity Campbell was that she and the
Appellant with Miree went to the victim’s home for what she
understood to be a robbery. Tr. 1247-48; Tr. 1257. Once she pulled up,
Appellant jumped into the rear of the vehicle and hid. Tr. 1251-52.
Once the marijuana was on the console, the Miree [sic], who had a
firearm, snatched it. Tr. 1255. Another gun came out and went off, and
Trinity Campbell testified that Appellant had the victim in a headlock
with a gun to him, and Miree was punching him in the face. Tr. 1255-
56, 1588. These individuals acted knowingly, not recklessly. Miree
committed a felonious assault when he was punching the victim over
and over in the face while the Appellant had a firearm and he was tossed
out of the vehicle. This was the evidence at trial and what the trial court
had to assess when deciding whether to instruct on lesser included
offenses.
However, Campbell’s testimony alone is not dispositive of the issue.
In determining whether lesser included offense instructions are appropriate, a trial
court is required to consider all the evidence presented, viewing that evidence in the
light most favorable to the defendant. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948,
(e) Any physical harm that involves acute pain of such duration as to result
in substantial suffering or that involves any degree of prolonged or
intractable pain.
R.C. 2901.01(A)(5).
18 N.E.3d 1207, at ¶ 21, citing State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-
2282, 827 N.E.2d 285, ¶ 37; Miller, 8th Dist. Cuyahoga No. 109130, 2021-Ohio-
2924, at ¶ 86. That evidence included Duncan’s testimony.
In support of its determination that “the trial court did not err in
concluding from the facts that a reckless assault instruction was not warranted,” the
majority observes:
[N]o reasonable juror could have found that pushing Hurley from a
moving vehicle was committed recklessly rather than knowingly.
Duncan pushed Hurley from a moving vehicle, pried Hurley’s fingers
from the door, and left Hurley in a road where a vehicle could strike
him. Indeed, Duncan even testified that he knew Hurley would sustain
an injury from being thrown from the vehicle.
See ¶ 37 above. I do not believe the majority’s view of “the facts” is consistent with
the requirement that the evidence be viewed in the light most favorable to the
defendant.
Duncan testified that Campbell had agreed to give him, Miree and B.J.
a ride to the music studio, where Duncan worked on his hip-hop music. Tr. 2196-
2198, 2203. Duncan indicated that Campbell was in the driver’s seat, that he was in
the rear passenger seat behind Campbell, that Miree was in the front passenger seat
and that B.J. was seated behind Miree. Tr. 2206-2207, 2211-2212. Duncan stated
that although the others were planning to stop and purchase marijuana on the way,
he did not need any marijuana and that he was wearing headphones and listening
to music as Campbell drove. Tr. 2203-2204, 2212, 2215.
Duncan testified that when they arrived at the location arranged for
the marijuana purchase, the drug dealer, Hurley, opened the rear driver-side door
and got into the vehicle, and Duncan moved over into the rear middle seat. Tr. 2212-
2215. Duncan testified that he heard “shouting over his music” and that when he
pulled out his headphones, he saw that Hurley had a gun and was pointing it at
Miree. Tr. 2215-2216.
Duncan testified that he had no intent to rob Hurley or anyone else
that day, denied that he had wanted to harm Hurley and denied that he had crawled
over the back seat and hid in the trunk area of the vehicle with a gun as described by
Campbell. Tr. 2214, 2222-2223, 2226-2227, 2344.
Duncan testified that when he saw Hurley’s gun, he grabbed Hurley’s
hands, which were around the gun, and pulled them towards him. Tr. 2216-2217.
He stated that they were in “kind of like a tug of war” when Hurley fired the gun once
towards Miree. Tr. 2217. Duncan stated that he thought Hurley had shot Miree. Tr.
2219-2220. As Hurley pulled back away from Duncan and they continued to
struggle for the gun, a second shot “went off” towards Campbell. Tr. 2217-2218.
Duncan stated that he then thought Campbell had been shot. Tr. 2224-2225.
Duncan stated that, at this point, Hurley’s back was turned toward the
rear driver-side door and Duncan was “almost, like, in his lap.” Tr. 2218. Duncan
testified that, as they continued to struggle, Hurley dropped the gun and it fell onto
the floor of the vehicle in front of their feet. Tr. 2218-2219. Duncan stated that he
did not attempt to retrieve the gun because he was not trying to shoot Hurley; he
just wanted to get the gun away from Hurley. Tr. 2219. Duncan testified that he
thought that if Hurley retrieved the gun, Hurley would shoot Duncan too. Tr. 2220,
2344.
As to what happened next, Duncan testified:
Q. So once you’re reaching for [Hurley’s] hands —
A. Yes.
Q. — and the gun falls, what did you decide to do?
A. Well, push him out of the car. That’s what — that’s the first thing
that came to my mind. Like, we were up against the car and on the car,
so that was pretty much the first thing that came to my mind.
Q. Did you — did you know that the car was moving at that moment?
A. I didn’t know it was moving. When I see on the video, I couldn’t
even really believe it. But, like, I didn’t know it was moving.
Tr. 2220-2221.
Duncan testified that, to avoid getting shot, he felt like he either had
to “go for the gun” or push Hurley out of the vehicle and that he chose to push Hurley
out of the vehicle:
Q. Just to be clear, why did you push him out of the car?
A. I just wanted him away from the gun. Like, that’s all. I wanted him
away from the gun. Like, I didn’t want to try to go for the gun and then
he gets the gun because it would have been us both going for the gun. I
would have had to let him go and then we both going for the gun then
and now he gets the gun and then — * * * He could have done anything.
Kicked it, anything. I wasn’t — that was the first thing for my mind.
Once I got the gun out of his hands, I felt comfortable enough that — to
push him out of the car and get him away from the gun.
Tr. 2221-2222, 2234. Duncan denied that Miree punched Hurley. Duncan stated
that he was “the only one who touched [Hurley].” Tr. 2332.
Duncan testified that he did not call police after the incident because
he “didn’t know [Hurley] was dead” and “nobody [he] was with was hurt.” Tr. 2223.
Duncan stated, “I’m not going to say I didn’t think [Hurley] was hurt. He got pushed
out of a car, but I didn’t think he was dead.” Id. Duncan did not testify that “he
knew Hurley would sustain an injury from being thrown from the vehicle,” as the
majority posits.
The incident was captured, in part, on surveillance video footage
obtained from a nearby apartment complex. The video shows the vehicle’s
movements prior to, at the time of, and immediately following the incident. At the
time Hurley was pushed out of the vehicle, it appears the vehicle was moving very
slowly.
Considering all of the evidence presented at trial, viewed in the light
most favorable to Duncan, including Duncan’s testimony, the surveillance video, the
chaos that erupted inside the vehicle and the very brief time that elapsed between
Hurley entering the vehicle, the shots being fired inside the vehicle and Hurley being
pushed from the vehicle, I believe a jury could have reasonably found that Duncan
acted “recklessly” — “with heedless indifference to consequences,” “disregard[ing] a
substantial and unjustifiable risk” that his actions were “likely to cause” serious
physical harm to Hurley — as opposed to “knowingly” — “aware” that his actions
would “probably cause” serious physical harm to Hurley.
Accordingly, I would find that the trial court abused its discretion in
failing to instruct the jury regarding reckless assault and third-degree felony
involuntary manslaughter as lesser included offenses and would sustain Duncan’s
second assignment of error.
Jury Instructions Regarding the Duty to Retreat
I would also reverse Duncan’s convictions for murder, felonious
assault and first-degree felony involuntary manslaughter (Counts 2, 5 and 8)
because I believe the trial court improperly included jury instructions regarding a
duty to retreat when instructing the jury regarding self-defense and defense of
another.
The offenses at issue in this case occurred on June 16, 2019. Duncan
was indicted on March 3, 2020, and trial commenced on June 7, 2021. Effective
April 6, 2021 — while Duncan’s case was pending — R.C. 2901.09 was amended to
eliminate a duty to retreat before using force in self-defense or defense of another if
a person is “in a place” where he or she “lawfully has a right to be” (the “2021
amendments”). R.C. 2901.09(B).
Prior to the 2021 amendments, R.C. 2901.09(B) stated:
For purposes of any section of the Revised Code that sets forth a
criminal offense, a person who lawfully is in that person’s residence has
no duty to retreat before using force in self-defense, defense of another,
or defense of that person’s residence, and a person who lawfully is an
occupant of that person’s vehicle or who lawfully is an occupant in a
vehicle owned by an immediate family member of the person has no
duty to retreat before using force in self-defense or defense of another.
R.C. 2901.09(B) now states:
For purposes of any section of the Revised Code that sets forth a
criminal offense, a person has no duty to retreat before using force in
self-defense, defense of another, or defense of that person’s residence
if that person is in a place in which the person lawfully has a right to be.
The 2021 amendments also added R.C. 2901.09(C), which states: “A
trier of fact shall not consider the possibility of retreat as a factor in determining
whether or not a person who used force in self-defense, defense of another, or
defense of that person’s residence reasonably believed that the force was necessary
to prevent injury, loss, or risk to life or safety.”
During a break in the trial, Miree’s counsel proffered various self-
defense jury instructions. The proposed jury instructions included instructions
stating that “the defendant is allowed to use deadly force in self-defense” and that
“[e]vidence was presented that tends to support a finding that the defendant used
deadly force in self-defense.” Tr. 2034-2038. Duncan’s counsel did not object to
these objections. Miree’s counsel also proposed the following jury instruction
regarding the absence of a duty to retreat:
Under Ohio law, an individual does not have a duty to retreat before
acting in self-defense. In deciding whether the defendant reasonably
believed that force was necessary to prevent death or great bodily harm,
you may not consider the possibility that the defendant could have
retreated or tried to escape rather than using force in self-defense.
Tr. 2037-2038.
Prior to closing arguments, the state requested that the trial court
remove the no-duty-to-retreat instruction from the self-defense jury instructions
and that the trial court add a duty-to-retreat instruction. Tr. 2389. Although the
state acknowledged that, generally, “a person who is lawfully an occupant of a
vehicle has no duty to retreat before using deadly force in self-defense,” the state
asserted that, based on case law, the “castle doctrine”3 could not be invoked where,
as here, the victim was not an intruder but was also a lawful occupant of the vehicle
at the time force was used against him.4 Tr. 2389-2391. Over defense counsel’s
objection, the trial court removed the no-duty-to-retreat instruction and included
the duty-to-retreat instruction in the jury instructions.
Jury instructions are “critically important to assist juries in
determining the interplay between the facts of the case before it and the applicable
3 The “castle doctrine,” i.e., that a defendant who is lawfully in his or her residence
has no duty to retreat before using force in self-defense, is derived from the maxim that
“a man’s home is ‘his castle.’” State v. Comer, 4th Dist. Gallia No. 10CA15, 2012-Ohio-
2261, ¶ 11, citing 4 Blackstone, Commentaries on the Laws of England, Chapter 16, 223
(Rev. Ed.1979); see also State v. Thomas, 2019-Ohio-2795, 139 N.E.3d 1253, ¶ 39 (11th
Dist.), quoting State v. Peacock, 40 Ohio St. 333, 334 (1883) (‘“[w]here one is assaulted
in his home, or the home itself is attacked, he may use such means as are necessary to
repel the assailant from the house * * * even to the taking of life’”). (Emphasis deleted.).
In 2008, the castle doctrine was codified in R.C. 2901.09(B). The statute extended the
area in which a person had “no duty to retreat” to include both a person’s residence and
vehicle and the vehicle of an immediate family member. See former R.C. 2901.09(B)
(effective Sept. 9, 2008). The 2021 amendments to R.C. 2901.09, commonly referred to
as the “stand-your-ground law,” eliminate the duty to retreat when a person is “any place”
he or she “is lawfully entitled to be” — not just when a person is lawfully in his or her own
residence or vehicle or the vehicle of an immediate family member. See R.C. 2901.09(B);
State v. Estelle, 2021-Ohio-2636, 176 N.E.3d 380, fn. 5 (3d Dist.).
4 The state’s argument below was incorrect. The fact that Hurley had been invited
into Campbell’s vehicle did not affect whether the defendants had a duty to retreat prior
to using force against Hurley. See R.C. 2901.09(B); see also State v. Echevarria, 8th Dist.
Cuyahoga No. 105815, 2018-Ohio-1193, ¶ 33 (“If the victim was lawfully in the defendant’s
residence at the time the defendant used force against the victim, the defendant would
not be entitled to the presumption of self-defense. * * * However, the castle doctrine would
still apply, i.e., the defendant would have no duty to retreat from the residence if the
defendant were lawfully occupying the residence at the time he or she used the force.”).
law.” State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 5.
Although a trial court has “broad discretion to decide how to fashion jury
instructions,” the trial court must ‘“fully and completely give all jury instructions
which are relevant and necessary for the jury to weigh the evidence and discharge
its duty as the fact finder.’” State v. White, 142 Ohio St. 3d 277, 2015-Ohio-492, 29
N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640(1990), paragraph two of the syllabus. Requested jury instructions should
“ordinarily be given if they are correct statements of law, if they are applicable to the
facts of the case, and if reasonable minds might reach the conclusion sought by the
requested instruction.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 240. As a general matter, “[a]n appellate court reviews a trial court’s
refusal to give a requested jury instruction for abuse of discretion.” Id., citing State
v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). However, what law applies
and whether a jury instruction correctly states the applicable law are legal issues an
appellate court reviews de novo. See, e.g., State v. Dean, 146 Ohio St.3d 106, 2015-
Ohio-4347, 54 N.E.3d 80, ¶ 135. An incorrect or inadequate instruction that
misleads the jury or otherwise prejudices the defendant constitutes reversible error.
See, e.g., Simbo Properties v. M8 Realty, L.L.C., 2019-Ohio-4361, 149 N.E.3d 941,
¶ 18 (8th Dist.); Echevarria at ¶ 28-29.
I recognize that this court has previously held that the 2021
amendments to R.C. 2901.09 do not apply to offenses that were committed prior to
the April 6, 2021 effective date. See State v. Hurt, 8th Dist. Cuyahoga No. 110732,
2022-Ohio-2039, ¶ 56-66, and State v. Claytor, 8th Dist. Cuyahoga No. 110837,
2022-Ohio-1938, ¶ 77-79. However, those decisions were based, in part, on cases
that held that the amendment to R.C. 2901.05 effective March 28, 2019 — which
shifted the burden of proof to the state to prove that the defendant did not act in
self-defense — did not apply to cases in which the offense was committed prior to
the effective date. See, e.g., Hurt at ¶ 60-61, citing State v. Stiltner, 4th Dist. Scioto
No. 19CA3882, 2021-Ohio-959; Claytor at ¶ 79, citing State v. Fisher, 8th Dist.
Cuyahoga No. 108494, 2020-Ohio-670, ¶ 24, fn. 2, citing State v. Koch, 2019-Ohio-
4099, 146 N.E.3d 1238 (2d Dist.).
After Hurt and Claytor (and the cases upon which they relied) were
decided, the Ohio Supreme Court issued its decision in State v. Brooks, Slip Opinion
No. 2022-Ohio-2478. In Brooks, the Ohio Supreme Court held that “the
amendment to R.C. 2901.05 (enacted in H.B. 228) is not retroactive—it applies
prospectively to all trials occurring after its effective date, regardless of when the
underlying alleged criminal conduct occurred.” Id. at ¶ 21, 23. The court explained
that the prospective application of R.C. 2901.05, as amended, was clear from the
“plain language” of the statute, i.e., “at the trial of a person who is accused of an
offense that involved the person’s use of force against another * * * the prosecution
must prove beyond a reasonable doubt that the accused person did not use the force
in self-defense * * *.” (Emphasis added.) Id. at ¶ 20; R.C. 2901.05(B)(1).
Similarly, the plain language of R.C. 2901.09(C) indicates that it is to
be applied prospectively to all trials conducted after its effective date, regardless of
when the underlying alleged criminal conduct occurred: “A trier of fact shall not
consider the possibility of retreat as a factor in determining whether or not a person
who used force in self-defense, defense of another, or defense of that person’s
residence reasonably believed that the force was necessary to prevent injury, loss, or
risk to life or safety.” (Emphasis added.) See also Comment to 2 Ohio Jury
Instructions, Section CR 421.21 (Rev. Dec. 4, 2021) (“Because the General Assembly
did not explicitly state whether R.C. 2901.09 applies to offenses that were
committed before and tried after 4/6/21, the court must decide as a threshold matter
whether amended R.C. 2901.09 applies as of the date of the trial or the date of the
offense. Because the language in R.C. 2901.09(C) states what a trier of fact shall not
consider, the Committee believes this amendment is applicable to all instructions
given on and after 4/6/21.”); State v. Gloff, 2020-Ohio-3143, 155 N.E.3d 42, ¶ 18,
28-29 (12th Dist.) (“It is well settled that a statute is presumed to apply prospectively
unless expressly declared to be retroactive.”), citing R.C. 1.48. Based on Brooks and
the express language of R.C. 2901.09(C), I would apply R.C. 2901.09, as amended,
in reviewing Duncan’s first assignment of error.5
R.C. 2901.09(B) plainly states that “a person has no duty to retreat
before using force in self-defense * * * if that person is in a place in which the person
lawfully has a right to be.” R.C. 2901.09(C) further states, “A trier of fact shall not
consider the possibility of retreat as a factor in determining whether or not a person
5In its appellate brief, the state does not specifically address the issue of whether
the 2021 amendments to R.C. 2901.09 applied in this case.
who used force in self-defense * * * reasonably believed that the force was necessary
to prevent injury, loss, or risk to life or safety.” There was no dispute that Duncan
was “in a place in which [he] lawfully ha[d] a right to be” at the time he used force
against Hurley. Accordingly, I would find that the trial court erred in instructing the
jury that Duncan had a duty to retreat. Because the error in the trial court’s
instructions precluded the trial court from properly considering Duncan’s claim of
self-defense or defense of another, the error was prejudicial. Accordingly, I would
sustain Duncan’s first assignment of error to the extent he claims that the trial court
erred in instructing the jury regarding a duty to retreat, vacate Duncan’s convictions
on Counts 2, 5 and 8 and remand for a new trial on those counts.