State v. Barker , 2023 Ohio 453 ( 2023 )

[Cite as State v. Barker, 2023-Ohio-453.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111597
v. :
ANDREW BARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-650606-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Mussman, Assistant Prosecuting
Attorney, for appellee.
Rick L. Ferrara, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Andrew “Drew” Barker, appeals from his
judgment of conviction, which was rendered after a jury trial. After a thorough
review of the facts and pertinent law, we affirm.
Procedural History and Facts
In 2020, Barker was charged in a seven-count indictment with two
counts of murder, four counts of felonious assault, and one count of improperly
discharging a firearm into a habitation. The counts all had one- and three-year
firearm specifications.
The matter proceeded to trial, and the jury convicted Barker of two
counts of murder, unclassified felonies, one a violation of R.C. 2903.02(A) and the
other a violation of R.C. 2903.02(B); two counts of felonious assault, in violation of
R.C. 2903.11(A)(1); and one count of improperly discharging a firearm into a
habitation, in violation of R.C. 2923.161(A)(1); and all attendant firearm
specifications. The jury acquitted Barker of two counts of felonious assault,
pursuant to R.C. 2903.02(A)(2), which alleged that Barker knowingly caused or
attempted to cause physical harm by means of a metal pole.
The trial court sentenced Barker to life in prison with the possibility of
parole after 27 years.
The charges resulted from the March 26, 2019 shooting death of Ivette
Perez and injuries caused to Perez’s 14-year-old daughter, G.T.1
Ivette lived with her two daughters, J.G. and G.T., and her husband,
Roberto Riviera, in a small two-story apartment building located on Lake Avenue in
Cleveland; their apartment was 203.
1Juveniles are referred throughout by their initials in accordance with this court’s
policy. See Loc.App.R. 13.2.
Christina Hernandez resided just below Ivette’s apartment in
apartment 103. Christina lived with her two daughters and her daughters’ father,
Darius Dobson. Christina was seven months pregnant with Barker’s child at the
time of the shooting. On the day of the shooting, Christina’s sister, Diana, and three
cousins, Z.S., B.E., and N.K., were at Christina’s apartment.
Christina and Ivette’s families were not on friendly terms. On the
afternoon of the shooting, an argument broke out between the two families. During
the ensuing confrontation, which took place in the small hallway outside Ivette’s
apartment, Z.S. tried to punch shooting victim G.T., J.G. (Ivette’s other daughter)
grabbed a “fake BB-gun” and hit Christina over the head with it, and Ivette’s hand
or arm was injured. Witnesses described the scene as chaos, with “everyone”
throwing punches. The fight ended when Ivette pushed her family back into their
apartment. Christina and her family returned downstairs to their apartment.
Ivette’s husband, Riviera, returned home soon thereafter and saw the
injury to Ivette’s hand or arm, which was bleeding. He grabbed a black pipe or pole
and went down to Christina’s apartment. He banged on the door, but no one
answered. Riviera returned to his apartment and called the police. According to
Christina’s sister, Diana, Riviera had a gun at one point during the events that took
place that day.
During this time, Christina called Barker, who told her to call the
police. Barker arrived at the apartment complex in a white van about 10 – 15
minutes after the fight broke up between the two families. Barker was accompanied
by his dog and one to two other men, who may have been his sons, but who were
never identified. He was armed with a shotgun and metal pole or pipe. Surveillance
video, which was played for the jury and entered into evidence, showed that Barker
was at the apartment complex for just over three minutes. Barker first went to
Christina’s apartment. He then went to Ivette’s apartment and banged on the door,
but her family refused to open the door so Barker went outside.
By this time, Christina and some of her family members were also
outside directly behind apartments 103 and 203. Ivette and G.T. were at the window
watching, while Riviera was in the kitchen on the phone with the police. Ivette put
up her middle finger and was yelling at Barker through the closed window. Barker
pointed his shotgun at Ivette’s window and fired a single shot. Barker fled the scene,
leaving Christina and her children behind.
The bullet pierced Ivette’s hand and neck, fatally injuring her. She was
hospitalized and survived for 11 days before succumbing to her injuries. The coroner
testified that the shotgun pellets perforated Ivette’s carotid artery. Part of her left
hand was also shot, requiring amputation of her fingers. The coroner determined
the cause of death to be acute pneumonia and respiratory failure and the manner of
death as homicide. Fourteen-year-old G.T. was shot in the face and sustained
serious injuries.
At trial, Christina’s then 13-year-old cousin N.K. testified that Barker
had a gun when he arrived at the apartment complex. She testified he was holding
the gun when he went upstairs to confront Ivette and was still holding it when he
went back downstairs and exited the building. N.K. heard Barker threaten to shoot
the neighbors if they did not stop “flicking” him off. She saw Barker shoot at Ivette’s
apartment window. According to N.K., Ivette and her daughter were not armed.
B.E., another of Christina’s cousins, was interviewed by homicide
detectives on June 22, 2020, more than a year after the shooting. During the
interview, which was recorded, played for the jury, and entered into evidence, B.E.
told police that Barker had a shotgun, warned the neighbors to stop taunting him,
and fired the shotgun into the window when the neighbors would not stop.
According to B.E., Barker did not have the shotgun when he first arrived but
returned to his van to retrieve it.
At trial, however, B.E. testified that she did not see who did the
shooting or who was shot. When the state showed B.E. the video of her interview
with police detectives, she admitted to what she told detectives. She then testified
that “they,” meaning Ivette’s group, had a “little” gun. The prosecutor asked what
Ivette’s family was doing upstairs when Barker shot at them. B.E. testified, “they
were just talking. They were still talking, still just being — trying to add on to the
situation that had already deescalated.” She further testified that after the initial
confrontation with Ivette’s family, she and other members of Christina’s family went
outside “because the situation had deescalated and we were leaving.” According to
B.E., speaking about Ivette,
They’re yelling at us, waiving the gun around. Calling us names, still
talking in Spanish, and then they — I think they like they aimed it back
towards us * * * and started laughing, * * *.[2]
Diana, Christina’s sister, initially testified that she did not remember
what happened on the day of the shooting. During her testimony, the state played
the police body-cam video of Diana talking to responding officers shortly after the
shooting.
In the video, Diana told police, “I see he had a rifle * * * Drew went
outside and I seen [sic] him lift it up and * * * he just shot it through the window
* * * he just aimed for the back of the house.” Diana also used hand motions to
mimic someone holding a shotgun or rifle and raising it. She told police she saw the
shooting because she was standing near Barker when it happened. During her
testimony, Diana said she did not know what she was saying at the time of the
shooting because she was addicted to alcohol and pills but was sober at trial.
Christina testified that she called Barker to come over after her
confrontation with Ivette. She testified that she was worked up after the initial fight
and ready to fight again. Christina remembered she saw Barker go outside and she
heard a loud noise and glass shattering shortly thereafter.
Victim G.T. testified that the downstairs neighbors came to her
apartment to fight. Z.S. attempted to punch G.T., but G.T. ducked. J.G., G.T.’s
sister, pulled out a BB gun and hit Christina in the head with it. Ivette injured her
2 During her testimony B.E. does not identify who “they” are from Ivette’s family
that allegedly had a gun and was waiving it around.
hand during the melee, and it was bleeding. Later, after they had returned to their
apartment, they heard a loud knock at the door. G.T. looked out the peep hole and
saw Barker. He threatened to kill everyone in the apartment. G.T. did not open the
door. She and her mother went to look outside the window. G.T. saw the same man
who had been at the door. He pointed the gun at G.T. and her mother, yelled “you
p***,” and fired. G.T. and her mother fell to the ground. Riviera, Ivette’s husband,
was in the kitchen on the phone with the police when the shooting occurred. G.T.
was shot in the face.
J.G., Ivette’s other daughter, testified that both families participated
in the fight in the hallway. J.G. admitted to hitting Christina over the head with a
BB gun, but insisted it was “fake” and did not work. J.G. heard a loud knock at their
apartment door about ten minutes after the fight ended and each family had
retreated to their respective apartments. Her family refused to open the door so the
man that had been at their door went outside to their side window. Her mother and
sister were looking out the window; they were not armed.
Barker testified in his own defense. Barker testified that Christina
called him upset and he went over to her apartment, taking his dog and “people”
that “love him and want to protect him and his family.” He spoke with Christina and
then went to confront Ivette. He testified that he had a pole in one hand and his dog
on a leash in the other hand. He knocked at her door with the pole and shouted
“come out here and show me your face. Come out here and talk to me,” but no one
opened the door. According to Barker, he decided to get his family “out,” which
meant he was going to leave the area with Christina and her family. Barker insisted
that he wanted to fight Riviera, because he thought he had beat up Christina, who
was pregnant, and thought Riviera was armed.
According to Barker, he heard a lot of commotion outside, so he went
outside with his dog, holding the pole, to see what was going on. He saw people
gathered around. He looked up and saw a woman in an upstairs window making
gestures and a man standing behind her holding a gun. Barker testified that the gun
“looked like it was getting pointed at me or one of the people that was down there
* * * it was facing in our direction.” He thought the man might want to shoot him so
he threw the pole he was holding, since “I could not throw my dog up there, so I had
to use the next best thing.” According to Barker, he heard a boom and thought it
was a gunshot and he fled, leaving Christina and her family behind.
Inside Ivette’s apartment, the police located a BB gun on top of an
open drawer in a bedroom, a silver pole or pipe with blood on it, and the black pipe
witnesses said Riviera had. The shotgun was never recovered. A warrant was issued
for Barker’s arrest on April 26, 2019, but he was not arrested until May 7, 2020.
During his 90-minute interview with homicide detectives, which was recorded,
played for the jury, and entered into evidence, Barker denied having a shotgun or
shooting Ivette and G.T. Barker, who waived his right to an attorney present during
the interview, insisted he went to Christina’s apartment because a man had a gun
and had hit her with the gun. Barker wanted the man to fight him. According to
Barker, “I made sure that if something was going to happen, I was going to diffuse it
to protect me. I had whatever weapon I had to protect me,” but never admitted he
had a gun.
Assignments of Error
I. The State of Ohio was relieved of its obligation to prove beyond a
reasonable doubt that appellant did not act in defense of another,
therefore depriving appellant of due process under the laws of Ohio and
the United States.
II. The state presented both insufficient evidence of appellant’s guilt of
murder and insufficient evidence to overcome appellant’s established
claim of self-defense.
III. The manifest weight of evidence did not support a conviction of
Appellant of Counts 1 through 5.
IV. The sentencing under Ohio law violated the separation of powers
doctrine of the Constitutions of the State of Ohio and United States, due
process of law, are void for vagueness, and conflict internally with other
Ohio law.
Law and Analysis
No Plain Error in Jury Instructions
In the first assignment of error, Barker argues that the trial court
failed to properly instruct the jury on the affirmative defense of self-defense.
As to self-defense, the court instructed the jury, in part:
Self-defense, use of deadly force. General. A person is allowed to use
deadly force in self-defense. The State must prove beyond a reasonable
doubt that the Defendant, when using deadly force, did not act in self-
defense.
The State’s proof. To prove that the Defendant’s use of deadly force was
not in self-defense, 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
shooting which occurred at the home of Ivette Perez, also known as
Gonzalez, on March 26, 2019; or [(B),] the Defendant did not have
reasonable grounds to believe that he was in immediate danger of death
or great bodily harm; or (C), that the Defendant did not have an honest
belief, even if mistaken, that he was in immediate danger of death or
great bodily harm; or (D), the Defendant violated a duty to retreat to
avoid the danger; or (E), the Defendant used unreasonable force.
The Defendant did not act in self-defense if the State proved beyond a
reasonable doubt that the Defendant was at fault in creating the
situation that resulted in the death. The Defendant was at fault if the
Defendant was the initial aggressor and Ivette Perez did not escalate
the situation by being the first to use or attempt to use deadly force; or
the Defendant provoked Ivette Perez into using force; or [ ] the
Defendant did not withdraw from the situation; * * * .
In instructing the jury on self-defense, the trial court also defined the
following terms and their application to self-defense: reasonable grounds, honest
belief, no duty to retreat, substantial risk, words, unreasonable force, and greatly
disproportionate.
Barker did not object to the trial court’s jury instruction on self-
defense. He nevertheless argues on appeal that the trial court erred in instructing
the jury on self-defense by omitting the instruction on defense of another because
there was evidence that he was acting in defense of another, namely Christina and
her family, which Barker referred to as his family.
In considering a claim of plain error based on defective jury
instructions, “an appellate court must review the [jury] instructions as a whole and
the entire record to determine whether a manifest miscarriage of justice has
occurred as a result of the error in the instructions.” State v. Nicholson, 8th Dist.
Cuyahoga No. 110595, 2022-Ohio-2037, ¶ 137, citing State v. Wamsley, 117 Ohio
St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45. An improper or erroneous jury
instruction does not constitute plain error unless, but for the error, the outcome of
the trial would clearly have been different. Nicholson at id., citing State v. Davis,
8th Dist. Cuyahoga No. 109890, 2021-Ohio-2311, citing State v. Cooperrider,
4 Ohio St.3d 226, 448 N.E.2d 452 (1983). Therefore, Barker must demonstrate that
his convictions for murder, felonious assault, and improper discharge into a
habitation clearly would have been different had the trial court instructed on the
affirmative defense of another. See State v. Gay, 8th Dist. Cuyahoga No. 86944,
2006-Ohio-3683, ¶ 19 (finding that there was substantial evidence of defendant’s
guilt and defendant was unable to show that his conviction would have been
different had the trial court instructed on the affirmative defense of defense of
another).
A self-defense claim includes the following elements:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant had a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and that
his [or her] only means of escape from such danger was in the use of
such force; and (3) that the defendant did not violate any duty to retreat
or avoid the danger.
State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 15, quoting State v.
Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).
The self-defense instruction the trial court gave to the jury accurately
defines the elements a defendant must establish to show he or she acted in self-
defense. Reviewing all the evidence presented after being instructed, the jury clearly
did not find Barker’s version of events credible enough to sustain his affirmative
defense. In Gay, this court noted that ‘“[t]he right of a person to defend another
ordinarily should not be greater than such person’s right to defend him [or
her]self.”’ Id. at ¶ 24, quoting State v. Wenger, 58 Ohio St.2d 336, 390 N.E.2d 801(1979).
Barker cites State v. Speakman, 4th Dist. Pickaway No. 00CA035,
2001-Ohio-2437, for the proposition that the trial court committed plain error in
failing to instruct the jury on defense of another. In Speakman, the court
determined that a combination of errors, which included an incomplete jury
instruction on defense of another, were prejudicial to the appellant and remanded
the case for a new trial. Id. at ¶ 14.
Speakman is distinguishable. The appellant in Speakman objected to
the incomplete jury instruction; therefore, the appellate court was not reviewing for
plain error. Additionally, the facts of the case differ greatly. In Speakman, the
appellant was on scene and either saw the initial confrontation or was part of the
initial confrontation as part of a series of events that included appellant hitting the
victim over the head with his crutch. In this case, there was a break in the chain of
events — the families had each retreated to their respective apartments — before
Barker arrived on scene and shot Ivette and G.T.
The jury was presented with a substantial amount of evidence in
support of the state’s version of the evidence that Barker went over to Christina’s
apartment to assess the situation with her neighbors, bringing one or two cohorts,
his dog, a shotgun, and a metal pipe. Barker went up to Ivette’s apartment, but the
family refused to open the door. So Barker went outside and when Ivette would not
stop taunting him, he used a shotgun to shoot from the ground into a second-story
window at Ivette and her teenage daughter, both of whom were unarmed, mortally
wounding Ivette and seriously injuring G.T. Two people related to Christina’s side
of the family admitted Barker had a gun. N.K., who was 13 at the time of the
shooting, confirmed Barker had a gun. Diana, Christina’s sister, informed the police
that Barker had a shotgun and used it to shoot into the second-story window.
Barker, in contrast, testified that he used a metal pole to defend
himself after seeing a man in the window with a gun and thinking he was going to
get shot. After weighing the evidence, the jury did not find in favor of Barker’s self-
defense argument. It is therefore logical to conclude that the jury did not find
Barker’s version of events credible. In that case, there would be no difference in the
verdict had the trial court instructed on defense of another. Gay, 8th Dist. Cuyahoga
No. 86944, 2006-Ohio-3683, at ¶ 25. We do not find that the jury’s decision would
clearly have been different but for the alleged error in the trial court’s charge to the
jury.
At oral argument, counsel for Barker argued that Barker was merely
ushering his family out of their apartment when he was faced with a man on the
second floor holding a gun and had to defend his family by shooting at the window.
Throughout, though, Barker denied he possessed or used a firearm. Although
Barker claims he is making this argument in the alternative, this court understands
how the jury did not believe Barker’s claims of self-defense when Barker maintained
he never shot anyone. Moreover, Barker’s own testimony contradicts his claim of
he was defending his family. When the prosecutor asked Barker why he threw the
metal pole up through the window, Barker answered, “Because I was fearing for my
life.” When Barker fled, he left Christina and her family, except for B.E., behind.
At oral argument Barker’s counsel also raised an argument regarding
ineffective assistance of trial counsel because defense counsel did not object to the
jury instructions. The argument was not raised in his brief on appeal and is
therefore waived. See App.R. 12(A)(2) and App.R. 16(A).
The trial court did not commit plain error in failing to instruct the jury
on defense of another. Accordingly, Barker’s first assignment of error is overruled.
Evidence Sufficient to Support Conviction; Conviction Not Against
Manifest Weight of the Evidence
In the second assignment of error, Barker contends that the evidence
was insufficient to support the conviction. In his third assignment of error, he
contends that the conviction was against the manifest weight of the evidence. We
combine these assignments of error because they are interrelated.
“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 State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 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 id. 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 id.A manifest weight challenge and a sufficiency of the evidence
challenge are two distinct challenges to the evidence presented. State v. Miree, 8th
Dist. Cuyahoga No. 110749, 2022-Ohio-3664, ¶ 30, citing State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. 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 Thompkins at id. Weight of the evidence examines “‘the evidence’s effect of
inducing belief.’” Harris at id., quoting Wilson at id., citing Thompkins at 386-387.
In reviewing a manifest weight claim, the court must consider all the evidence in the
record, the reasonable inferences drawn 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 * * *.’” Harris at id.,quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485
N.E.2d 717 (1st Dist.1983). 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. More succinctly, the
sufficiency of the evidence standard of review applies to a party’s burden of
production and a manifest weight of the evidence standard of review applies to a
party’s burden of persuasion. Messenger, Slip Opinion No. 2022-Ohio-4562, at
¶ 26, citing State v. Messenger, 2021-Ohio-2044, 174 N.E.3d 425, ¶ 44-45
(10th Dist.).
Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence
necessarily includes a finding of sufficiency. State v. Mack, 8th Dist. Cuyahoga
No. 109514, 2021-Ohio-1102, ¶ 17, citing State v. Jackson, 8th Dist. Cuyahoga
No. 100125, 2015-Ohio-1946, ¶ 11. Therefore, “a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of
sufficiency.” State v. Burgos, 2022-Ohio-3919, 199 N.E.3d 1158, ¶ 41 (8th Dist.),
citing State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161.
Barker was convicted of murder under R.C. 2903.02(A) and
2903.02(B), which provide in relevant part, that no person shall purposely cause the
death of another (R.C. 2903.02(A)) and “[n]o 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 * * *.”
R.C. 2903.02(B).
The underlying felony Barker was convicted of was felonious assault
under R.C. 2903.11(A)(1) against Ivette. Barker was also convicted of felonious
assault against G.T. under that same subsection, which provides in relevant part that
“[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *.”
Barker was convicted of improperly discharging a firearm into a habitation under
R.C. 2926.131(A)(1). That section provides that “no person, without privilege to do
so, shall knowingly * * * [d]ischarge a firearm at or into an occupied structure that
is a permanent or temporary habitation of any individual.” Finally, Barker was
convicted of the attendant one- and three-year firearm specifications.
Barker has two main arguments: (1) he did not purposely shoot Ivette
and (2) the state failed to show he was not acting in self-defense.
A person commits murder by purposely causing the death of another.
R.C. 2903.02(A). An act is committed “purposely” when it is a person’s specific
intent to cause a certain result. R.C. 2901.22(A). “Intent may be inferred from the
circumstances surrounding the crime.” State v. Mathis, 8th Dist. Cuyahoga
No. 91830, 2009-Ohio-3289, ¶ 3, citing State v. Herring, 94 Ohio St.3d 246, 266,
2002-Ohio-796, 762 N.E.2d 940. Because intent dwells in the mind of the accused,
an intent to act can be proven from the surrounding facts and
circumstances. Mathis at id., citing State v. Treesh, 90 Ohio St.3d 460, 484-485,
739 N.E.2d 749 (2001). In Mathis, this court noted that
[a]n intent to kill may be presumed where the natural and probable
consequence of a wrongful act is to produce death, and such intent may
be deduced from all the surrounding circumstances, including the
instrument used to produce death, its tendency to destroy life if
designed for that purpose, and the manner of inflicting a fatal wound.
Id., citing State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517 (1954), paragraph five
of the syllabus. “A firearm is an inherently dangerous instrumentality, the use of
which is likely to produce death.” Mathis at id., citing State v. Seiber, 56 Ohio St.3d
4, 14, 564 N.E.2d 408 (1990).
Barker arrived on scene after Christina’s and Ivette’s families had
retreated into their respective apartments. By the time Barker arrived at the
apartment complex, the altercation between the families had been over for 10-
15 minutes. Barker went to Ivette’s apartment with one to two men, his dog, and a
weapon. G.T. testified that Barker yelled, “Come out, all of you. I’m going to kill all
of you that are there.” When Ivette’s family refused to open the door, Barker took
his shotgun and went outside. Multiple witnesses, including his girlfriend’s sister
and cousin, saw Barker holding a shotgun. Barker aimed his shotgun at the window
and fired the gun into the window where Ivette was standing. Diana testified she
was standing next to Barker when he lifted the shotgun and fired through Ivette’s
apartment window; Diana mimicked for the officers the action of raising a large rifle
or shotgun to show them how Barker shot his gun into the apartment window. Thus,
there was ample evidence that Barker acted with purpose.
Next, Barker argues that there was insufficient evidence that he did
not act in self-defense. Barker’s argument is displaced. The sufficiency of the
evidence standard relative to self-defense applies to Barker’s burden, not the state’s
burden. Barker has the burden of producing sufficient evidence he acted in self-
defense. He did so and the trial court gave the jury an instruction on self-defense.
See State v. Messenger, 2022-Ohio-4562, at ¶ 26 (“[T]he trial court provided the
jury with an instruction regarding self-defense, which means that the trial court
concluded that Messenger put forward sufficient evidence that he was acting in self-
defense when he shot and killed Pack.”). See also State v. Claytor, 8th Dist.
Cuyahoga No. 110837, 2022-Ohio-1938, ¶ 67, citing Fairview Park v. Peah, 8th Dist.
Cuyahoga No. 110128, 2021-Ohio-2685 (“The sufficiency of the evidence standard
only applies to elements the state must prove during its case in chief, not the
affirmative defense of self-defense.”).3
Barker also contends that the state did not prove that he was not
acting in self-defense. In the context of self-defense, the state has the burden of
disproving Barker’s claim beyond a reasonable doubt. Messenger at ¶ 27. The state
only needs to prove one of the three elements — that Barker was at fault in creating
the situation giving rise to the affray; that he lacked a bona fide belief that he was in
imminent danger of death or great bodily harm or that another means of escape
from such danger existed negating the need for the use of deadly force; or that he
violated a duty to retreat or avoid the danger — beyond a reasonable doubt to
3 At oral argument, counsel for Barker conceded that Messenger was applicable to
the case at bar and the sufficiency of the evidence standard does not apply to the
affirmative defense of self-defense.
establish that self-defense does not apply. Claytor at ¶ 81, citing State v. Travis,
8th Dist. Cuyahoga No. 110514, 2022-Ohio-1233.
Barker argues that the state could not meet its burden of persuasion
because the police located a gun found in Ivette’s apartment, which supported his
argument that a man, presumably Riviera, pointed a gun at him through the window
and he acted in self-defense. He also points to conflicting witness testimony.
As stated previously, Barker has not shown that he was in fear of death
or imminent great bodily harm to himself or others to warrant his use of deadly
force. Barker arrived at the apartment building 10 – 15 minutes after the
confrontation between Christina’s and Ivette’s families ended and both families had
retreated to their respective apartments. When Barker arrived on scene, there was
no imminent threat to Christina or Christina’s family. Barker went to Ivette’s
apartment, but the family refused to open the door. At this point, there was no
imminent threat to Barker, Christina, or Christina’s family. Barker then went
outside with his shotgun. By all accounts Ivette raised her middle finger at Barker
and yelled at him, through a closed window. Although Barker testified that Riviera
was also at the window and had a gun, the jury clearly did not believe his version of
events over the numerous witnesses that testified or told police that the people at
the window were unarmed. Then, Barker raised his shotgun from his position on
the ground up into the closed apartment window, shooting, hitting, and mortally
wounding Ivette and seriously injuring her daughter, G.T.
The guilty verdicts on two counts of murder, two counts of felonious
assault, and one count of improper discharge into a habitation show that the jury
was not left with reasonable doubt. Moreover, the not guilty verdicts on felonious
assault with a pipe show that the jury did have reasonable doubt as to two of the
counts in the indictment. Although there was some inconsistency in witness
testimony, the jury was able to assess the credibility of the witnesses and assign the
proper weight to each witness’s testimony. The jury chose to believe the state’s
version of events, bolstered by the testimony of witnesses from both families, and
disbelieve Barker’s testimony that he threw a metal pipe at the second-story window
to defend himself.
The weight of the evidence did not support a self-defense theory and
Barker’s convictions were not against the manifest weight of the evidence. His
convictions, therefore, were also supported by sufficient evidence.
The second and third assignments of error are overruled.
The Reagan Tokes Law is Constitutional
In the fourth assignment of error, Barker argues that the trial court
erred by imposing an indefinite sentence and challenges the constitutionality of S.B.
201’s indeterminate sentencing provisions. He contends that the Reagan Tokes Law
violates state and federal constitutional provisions for the right to a jury trial, the
separation-of-powers doctrine, and due process. Barker concedes the same
arguments were rejected in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536(8th Dist.), and thus it appears his argument is advanced to preserve the claim for
further review. Based on the authority established by this district’s en banc holding
in Delvallie, Barker’s sentence does not violate his constitutional rights with respect
to the challenges presented. The fourth assignment of error is overruled.
Conclusion
The trial court did not commit plain error in the self-defense
instruction it gave to the jury. Barker’s convictions for murder, felonious assault,
and improper discharge of a firearm into a habitation were not against the manifest
weight of the evidence and were therefore also supported by sufficient evidence.
Finally, the trial court did not err in imposing an indefinite sentence under the
Reagan Tokes Law.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending 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.
________________________
MICHAEL JOHN RYAN, JUDGE
EILEEN T. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.
Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes
(dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part)
in Delvallie and would have found the Reagan Tokes Law unconstitutional.