State v. Lawrence , 2023 Ohio 3419 ( 2023 )

[Cite as State v. Lawrrence, 2023-Ohio-3419.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-110
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JULIAN K. LAWRENCE,
Trial Court No. 2021 CR 001457
Defendant-Appellant.
OPINION
Decided: September 25, 2023
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, Jennifer A. McGee and Adam M.
Downing, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Ruth Fischbein-Cohen, 3552 Severn Road, Suite 613, Cleveland Heights, OH 44118
(For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Julian K. Lawrence, appeals from his convictions
and/or sentences for Aggravated Murder, Murder, Felonious Assault, Kidnapping, and
Trafficking in Marijuana, in the Lake County Court of Common Pleas. For the following
reasons, we affirm the judgment of the lower court.
{¶2} On May 20, 2022, Lawrence was indicted by the Lake County Grand Jury
for Aggravated Murder (Count One), in violation of R.C. 2903.01(A); Murder (Count Two),
in violation of R.C. 2903.02(A); Attempted Murder (Count Three), a felony of the first
degree, in violation of R.C. 2903.02(A) and R.C. 2923.02(A); Felonious Assault (Count
Four), a felony of the second degree, in violation of R.C. 2903.11(A)(2); two counts of
Kidnapping (Counts Five and Six), felonies of the first degree, in violation of R.C.
2905.01(A)(3) and (B)(2); and Trafficking in Marijuana (Count Seven), a felony of the fifth
degree, in violation of R.C. 2925.03(A)(1). Each count had firearm specifications under
R.C. 2941.145 and Count Seven also had a firearm specification under R.C. 2941.141.
{¶3} A jury trial was held on September 20 through October 13, 2022. The
following pertinent testimony and evidence were presented:
{¶4} On November 3, 2021, Detective Michael Legg of the Cleveland Division of
Police, was dispatched to the scene of a homicide in Cleveland, where a victim, Malik
Pace, had died from gunshot wounds. No arrests were made in connection with that
homicide.
{¶5} On November 4, 2021, Painesville police officers were dispatched to a call
of a shooting at 55 Grant Street in Painesville around 6:20 p.m. When Patrolman Roberto
Soto arrived at the scene, the Grant Street Apartments, he observed Lawrence standing
in the street. Soto inquired whether everything was alright and Lawrence stated, “I had
to do it. He tried to rob me.” The dash cam video also reflects that Lawrence stated “I
don’t know who this is that tried to rob me.” Lawrence pointed and Soto observed a
vehicle in the parking lot that had struck another one. Soto observed a man, later
identified as Ollie Gipson, in one of the vehicles. Gipson had been shot and was
pronounced dead at the scene. Soto saw a gun in Gipson’s left hand. According to Soto’s
description, it appeared that Gipson did not have a good grip on it, did not have his finger
on the trigger, and the barrel was pointed toward the front of the vehicle. Soto indicated
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that he told the grand jury “when I saw him, it appeared to me that at one point either he
was trying to use it, or that he tried to do something with it, that’s what I observed.”
{¶6} Brianna Prugel of the Painesville Police Department also responded to the
scene. When she arrived, she observed Lawrence, who had a holster on the inside of
his waistband and a Glock 23 in his possession. When she approached him, he indicated
that he had a CCW license and pointed to his gun. She inquired if he was ok and he said,
“I almost f***in’ died.” Lawrence indicated: “I was walking around in the parking lot and a
car pulled up next to me asking if I had a lighter.” He then stated “I don’t f***in’ know you”
and the man then pulled a gun on him. When asked what happened next, Lawrence
responded, “I don’t know, he pulled a gun on me and I blanked out.” Chelsea Hounshell,
a 911 dispatcher riding along with Prugel, testified that Lawrence stated the car’s window
tint was dark and he could not identify the occupant. Prugel took Lawrence into custody
and he had $108 in his possession at that time, including a $100 bill.
{¶7} Sargeant Josh Rogers indicated that Gipson, known to Rogers from past
criminal involvement, was in the driver’s seat of a Lincoln that had crashed into another
car and was still in drive and running when officers arrived. Discovered in the vehicle
were an empty Glock magazine and a package later confirmed to contain marijuana on
the front driver’s side floorboard. Gipson’s firearm, a Glock, had 11 bullets in the
magazine and one that was chambered. A gun receipt revealed that Gipson’s firearm
and the ammo had been purchased the day of the shooting. According to Detective Don
Ticel, Gipson’s hands were not swabbed for gunshot residue because BCI would not
accept gunshot residue kits from victims of a shooting.
{¶8} Detective Ticel indicated that 14 shell casings were recovered at the scene
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of the crime in a linear position, with a distance of 63 feet from beginning to end.
Lawrence’s cell phone was recovered in the parking lot “prior to any casings.” The firearm
in Lawrence’s possession had 9 bullets and held 23 rounds with an extended magazine.
{¶9} Ticel described video recordings which showed Lawrence’s and Gipson’s
vehicles driving toward Grant Street around the same time, a few minutes before the
shooting was reported. Surveillance video from a nearby parking lot showed Lawrence
approach the passenger side of Gipson’s vehicle, the brake lights turn on, what Ticel
described as a “muzzle flash,” and the car rolling forward out of frame.
{¶10} Ticel interviewed Lawrence after the incident, who made statements
including: “he pulled a gun on me” and “he tried to rob me,” “maybe I should have just let
him shoot me,” “someone tried to rob me,” and “I had to use my weapon.” Ticel also
interviewed other witnesses with knowledge of the shooting and discovered that two
individuals, Jeffrey Isaacs and Edgar Torres, were in Gipson’s vehicle during the
shooting. He indicated that they were initially not completely honest when being
interviewed but did provide information about the shooting. Pursuant to discussions with
Torres, Ticel recovered gun ammunition and a gun box that had been discarded in a
wooded area on Mentor Avenue. No gun ammo or casings of the type found in Gipson’s
gun and recovered from the woods were found at the scene of the shooting.
{¶11} The witnesses identified by Ticel testified regarding the events on
November 4. Isaacs and Torres were friends with Gipson and also knew Lawrence.
They indicated that they were aware Gipson had possession of dogs that had belonged
to Pace. Isaacs heard rumors that Gipson had killed Pace on November 4. Gipson
indicated to Isaacs that he was aware people were saying he killed Pace.
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{¶12} Isaacs and Torres were with Gipson on November 4 and went with him to
the gun store where Isaacs’ sister purchased a firearm for Gipson because he was legally
unable to do so. After the gun was purchased, they went to a friend, Porras’, house.
Gipson got out of the vehicle while the men remained inside. Another friend, Robert
Howard, was present at Porras’ home and observed Lawrence and his brother drive past,
and believed they “were looking kinda weird” as they were braking and stopping. He
testified that when Gipson left the home, he seemed scared. Torres and Isaacs indicated
that when Gipson returned to the car, he seemed worried or “mad.”
{¶13} Afterwards, Gipson called Lawrence. Isaacs heard Gipson say he wanted
to “clear his name,” and talk to Lawrence about the rumors he murdered Pace. Torres
indicated that they went to meet Lawrence to buy weed and for Gipson to talk to him
about a “problem they had going on.” Howard testified that he was also aware Gipson
intended to meet up with Lawrence to talk about rumors he killed Pace and did not intend
to rob him. According to the witnesses, although Gipson wanted to meet elsewhere,
Lawrence asked that they meet at Grant Street. At the request of Gipson, Isaacs called
their friend, Jamiroquai Transou, and asked him to meet them there as well. Gipson
called Lawrence a second time and made a deal to buy $100 of marijuana. Isaacs was
sitting in the front passenger seat and Torres in the back seat.
{¶14} According to Isaacs, when they arrived at Grant Street, Gipson had his gun
in his coat pocket. He testified that Gipson racked the gun on the way over and Torres
indicated that Lawrence “put one in the chamber when we got into Grant Street
Apartments.” Gipson told Isaacs to lean his seat back, in case “something get wicked,”
i.e., they began shooting at each other. According to Isaacs, Lawrence approached the
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passenger side, gave Gipson the marijuana, and Gipson gave him $100. Gipson
indicated to Lawrence that he wanted to speak to him in his car. Lawrence asked “what
you all ‘bout to do?” Gipson repeated that he wanted to speak to him in his car and
Lawrence did not respond. According to Isaacs, Lawrence looked mad or frustrated and
asked “are you lacking,” which means a person does not have a gun. Both witnesses
indicated that Gipson then pulled out and showed Lawrence his gun, with the barrel
pointed down and toward the steering wheel. Gipson did not have his finger on the trigger,
did not point the gun toward Lawrence and did not threaten Lawrence. Lawrence then
fired at Gipson. The passenger window was down and Lawrence fired from outside of
the car. Isaacs tried to get into the back seat of the car. He told Gipson to “go” but there
was no response. The car began to move/roll and Lawrence continued shooting while
following the car. While shooting, Lawrence said “you tried to rob me.” Torres indicated
they did not try to rob him and no threats were made.
{¶15} Lawrence then turned the gun on Isaacs but it jammed. Lawrence opened
the door, grabbed Isaacs by the arm, took him out, and said to Isaacs “call the police and
say you robbed me.” He said he would kill Isaacs if he did not call the police. Isaacs
complied and called the police. Transou pulled up and Lawrence told him to leave and
threatened to shoot him. Isaacs then walked away and Torres exited the vehicle, taking
the ammo out of the car. Torres testified that he threw it in bushes at the nearby Salvation
Army. Both Torres and Isaacs indicated that they had initially lied to the police because
they were on probation or bond and were afraid of getting in trouble.
{¶16} Transou testified that he was aware of rumors Gipson had killed Pace. He
got a call from Gipson on November 4, who asked “you think [Lawrence] gonna kill me in
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front of you?” Transou had agreed to meet with Gipson at Lawrence’s house, then
received a text to meet at Grant Street. When he arrived at Grant Street, he saw Gipson’s
car was crashed. He observed Isaacs on the phone and Lawrence pointing a gun at
Isaacs. Lawrence approached and told him to leave.
{¶17} Howard and Aishah Bowler-Dixon, Gipson’s girlfriend, both testified that
they had also heard rumors that Gipson killed Pace prior to the foregoing incident.
Bowler-Dixon explained that Gipson was in possession of dogs that had been owned by
Pace. Gipson told her that one of his friends had taken the dogs. Howard also indicated
that had heard Lawrence make statements about his CCW prior to this incident. Howard
believed Lawrence looked down on others because they didn’t have “that level of * * *
gunmanship,” and made comments about it being a “get out of jail free card.”
{¶18} Detective Vincent Crews of the Painesville Police Department testified
regarding various social media communications reviewed in this matter. Several
Snapchat messages were sent between Lawrence and friends and posted to Facebook
on or around November 3-4, indicating that Lawrence was upset and saddened by Pace’s
death. Lawrence posted a Snapchat message that stated: “They gon feel this pain, big
bro, I promise. * * * I love you @lik gambino1 [Pace]. Wat[c]h over, and guide me through
this world * * * of hate.” A friend sent a response, stating: “I know you broken for your
boy, but stay strong. Don’t get in no s**t over it, and watch your back always.” Lawrence
responded “no, they stole 4 puppies, smh, and it gotta be they been plottin’ on him. But
yeah, I’m f***ed up over this.” Records also indicated that Gipson had called Lawrence
on Snapchat two times just prior to the time of the shooting. Messages between Gipson
and Pace were also presented, which contained discussions between the two regarding
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Gipson’s desire to get dogs from Pace.
{¶19} Curtiss Jones, Cuyahoga County Regional Forensic Science Laboratory
supervisor of trace evidence, examined Gipson’s vehicle. He indicated that there were
several spent bullets in the front of the vehicle. He determined that the bullets went
through the passenger’s side “window door area” and the driver’s side door. He indicated
they either went through an open passenger’s door or window. Jones examined Gipson’s
clothing and was able to determine that at least some of the bullets were fired from at
least four to five feet away. He observed six bullet entrance holes on the coat, four on
his pants, and two on a head covering.
{¶20} Dr. Antoine Wrice testified that Gipson had 13 bullet entrance wounds and
died from “gunshot wounds of the head, trunk, and extremities with brain, visceral and
skeletal injuries.”
{¶21} Raymond Jorz of the Lake County Crime Laboratory examined the 14 spent
casings recovered from the scene and determined they were all fired from Lawrence’s
gun. Nothing was submitted that was fired from Gipson’s firearm. Some fragments
recovered from the vehicle and Gipson’s body could also be traced back to the type of
ammunition submitted with Lawrence’s firearm.
{¶22} For the defense, Lawrence testified that he knew Gipson through his
nephew. He sometimes sold Gipson and his friends marijuana. Lawrence indicated that
on November 3, his friend, Pace, was killed, but he did not hear any rumors about who
killed him and had no animosity against Gipson.
{¶23} On November 4, Gipson called to purchase marijuana from Lawrence and
requested to meet at the Grant Street Apartments. When Lawrence arrived at the
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apartments, his car was smoking and he planned to walk home to get his AAA card. At
that time, a vehicle pulled up and he could not tell who the driver was due to the dark tint
on the windows. The vehicle stopped and the window was rolled down a little. He then
heard the driver ask for a lighter and Lawrence stated that he did not have one. The
driver then rolled down the window more and he was able to recognize Gipson. Gipson
gave him money and, as Lawrence was reaching for the marijuana, he heard, “don’t
move, give me your money or I’m gonna shoot you.” Lawrence saw Gipson point a gun
toward his face and he froze. He then threw the marijuana inside of the car. He grabbed
his own gun and pointed it at Gipson and Gipson extended his gun more toward his face.
Lawrence believed that his life was in danger and Gipson would shoot him. Lawrence
began shooting. He ran toward the parking lot exit and the car was following him so he
continued to shoot. He described that the car was accelerating. He began to “shoot and
* * * duck” and continued firing since the gun was still pointed at him and the car was
moving.
{¶24} Lawrence testified that he did not point his gun at or threaten Isaacs, who
got out of the car on his own and ran away. He testified that he had a CCW and was
familiar with how to utilize a firearm. He denied asking Gipson if he was “lacking.”
Lawrence remained at the scene until the police arrived.
{¶25} The jury acquitted Lawrence of Attempted Murder but found him guilty of all
other counts as charged in the indictment as well as the accompanying firearm
specifications.
{¶26} A sentencing hearing was held on October 26, 2022. The court merged the
offense of Murder into Aggravated Murder and merged Felonious Assault and the second
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count of Kidnapping with the first count of Kidnapping. Defense counsel emphasized
Lawrence’s lack of a criminal record. The court found: “The evidence was that this was
in retaliation for a perceptive wrongdoing on the part of the deceased, and actually the
Court does consider it to be an execution.” It sentenced Lawrence to serve a prison term
of thirty years to life in prison on Count One, with a mandatory prison term of three years
in prison for the Firearm Specification; a term of eight to twelve years in prison on Count
Five, with a term of three years for the Firearm Specification; and one year on Count
Seven. The two firearm specifications were ordered to be served consecutive to each
other and the other offenses. Counts One and Five were ordered to be served
consecutively with each other and concurrent with the sentence on Count Seven for a
total term of 44 to 48 years to life. This sentence was memorialized in an October 27,
2022 Judgment Entry.
{¶27} Lawrence timely appeals and raises the following assignments of error:
{¶28} “[1.] Whether It Was Error To Convict Defendant And Not To Consider Self
Defense.
{¶29} “[2.] It Was Error To Sentence Appellant Separately As This Case Involves
Allied Offenses Of Similar Import.
{¶30} “[3.] The Sentence Was Against The Sufficiency of The Evidence And The
Manifest Weight Of The Evidence.
{¶31} “[4.] The Sentence Was Void Since It Violated The Law Which Favors
Concurrent Sentences.”
{¶32} In his first assignment of error, Lawrence argues it was error to determine
that he did not commit the shooting in self-defense since the facts demonstrated he shot
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only after Gipson pulled his firearm. Similarly, in his third assignment, he argues that he
did not have intent or motive to kill Gipson and that the killing was the result of self-
defense. Since these issues are interrelated, we will consider them jointly.
{¶33} Initially, we observe that, under the first assignment of error, Lawrence
states that this court may reverse if it “clearly and convincingly finds error,” citing to R.C.
2953.08(G)(2). That statute applies to the review of a trial court’s sentence and is
unrelated to the defendant’s convictions and defenses to those convictions. Here, the
issue is whether the convictions were supported by the weight and sufficiency of the
evidence presented and whether the claim of self-defense precluded his convictions.
{¶34} In reviewing the sufficiency of the evidence, “[t]he relevant inquiry 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 proven beyond
a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶35} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
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and a new trial ordered.” (Citation omitted.) Thompkins at 387. “Since there must be
sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is
supported by the weight of the evidence necessarily must include a finding of sufficiency.’”
(Citation omitted.) State v. Heald, 11th Dist. Lake Nos. 2021-L-111 and 2021-L-112,
2022-Ohio-2282, ¶ 19.
{¶36} Pursuant to R.C. 2901.05(A), “[t]he burden of going forward with the
evidence of an affirmative defense, and the burden of proof, by a preponderance of the
evidence, for an affirmative defense other than self-defense, defense of another, or
defense of the accused’s residence presented as described in division (B)(1) of this
section, is upon the accused.” Division (B)(1) provides that a person may act in self-
defense and states: “If, at the trial of a person who is accused of an offense that involved
the person's use of force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense * * * the prosecution must
prove beyond a reasonable doubt that the accused person did not use the force in self-
defense * * *.” R.C. 2901.05 “places the burden of persuasion upon the State to disprove
at least one of the elements of self-defense beyond a reasonable doubt.” State v. Corey,
11th Dist. Geauga No. 2021-G-0029, 2022-Ohio-4568, ¶ 104.
{¶37} The elements of a valid claim of self-defense have been found to include:
“(1) the defendant was not at fault in creating the situation giving rise to the affray (2) the
defendant had a bona fide belief that he or she was in imminent danger of death or great
bodily harm and that his or her only means of escape from such danger was in the use of
such force; and (3) the defendant did not violate any duty to retreat or avoid the danger.”
State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). Effective April 6, 2021,
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R.C. 2901.09(B) altered the law on the duty to retreat, providing 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.”
{¶38} Lawrence’s claim that his convictions, particularly for Aggravated Murder
were not supported by the weight or sufficiency of the evidence, turns on his argument
that the jury should have found he acted in self-defense.
{¶39} The evidence presented supported the jury’s rejection of the claim of self-
defense. In particular, it supports a determination that Lawrence did not have a bona fide
belief that he was in danger of great bodily harm necessitating the use of deadly force.
Two witnesses present in the vehicle stated that Gipson did not threaten Lawrence or
point a gun at him and only showed that he had a gun when asked by Lawrence.
{¶40} Lawrence argues that self-defense was supported by the record because
Gipson arranged the meeting to clear his name of the killing of Pace, and that Gipson
was a “known murderer” who “gunned down Mr. Pace in the front yard, in the middle of
the day.” While it is correct that Gipson sought the meeting with Lawrence, the evidence
does not demonstrate he had a plan to harm Lawrence when they met. Further,
references to Gipson as a “known murderer” of Pace are inappropriate when he was not
charged or convicted with such offense. Nonetheless, it is accurate that rumors
associated Gipson with the crime. Lawrence questions: “What motive could Julian
Lawrence have had to kill Ollie Gipson?” His question is answered by his own repeated
arguments that Gipson was a “murderer.” There is no question that there were rumors
about Gipson having killed Pace and that Lawrence was upset over Pace’s death. While
Lawrence asserts this as grounds for the fact that he committed self-defense and that
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Gipson was violent, it also provides potential motivation to murder Gipson.
{¶41} While Lawrence concludes self-defense occurred by referencing his own
testimony that Gipson threatened to shoot him, Isaacs’ and Torres’ testimony directly
refutes this. They indicated that Gipson did nothing to provoke the shooting, he showed
his gun to Lawrence only upon being asked if he had a weapon, and did not point the gun
toward Lawrence or display it in a threatening manner. They testified that no robbery
occurred. “A self-defense claim is generally an issue of credibility.” State v. Olsen, 11th
Dist. Ashtabula No. 2022-A-0071, 2023-Ohio-2254, ¶ 57. “Disputes in credibility for the
purposes of evaluating self-defense are best resolved by the trier of fact.” State v.
Bentley, 2023-Ohio-1792, __ N.E.3d __, ¶ 24 (11th Dist.). “It has been held that ‘a
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the defendant’s version’ and rejected the
defendant’s claim of self-defense.” Id., citing State v. Messenger, 2021-Ohio-2044, 174
N.E.3d 425, ¶ 49 (10th Dist.). When weighing witness testimony supporting a claim of
self-defense, the trier of fact is “free to believe or disbelieve the testimony of the
witnesses” and “is in the best position to take into account inconsistencies, along with the
witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible.” Bentley at ¶ 24, citing State v. Haney, 11th Dist. Lake No. 2012-L-098, 2013-
Ohio-2823, ¶ 43. It is evident here that the jury chose to believe the testimony of Isaacs
and Torres and we will not second-guess that determination.
{¶42} There is further evidence to support the testimony of Isaacs and Torres and
contradict Lawrence’s claim of self-defense. Although Lawrence stated he was in fear for
his life, he continued to walk with the car as it was rolling/moving forward rather than
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turning in the opposite direction. He fired 14 shots into the vehicle with the casings
spanning 63 feet in the direction the car moved after Lawrence began shooting. 13 of
these shots hit Gipson and none hit the other two men present in the vehicle. Lawrence
initially told police he did not know who the person was that he had shot, which was untrue
and inconsistent with his testimony. By presenting the testimony of Isaacs and Torres
as well as demonstrating conflicts in Lawrence’s testimony, the State satisfied its burden
of persuasion to disprove at least one of the elements of self-defense.
{¶43} Lawrence makes much of the fact that Gipson arrived to their meeting in a
car with tinted windows. Having tinted windows is not evidence of committing a crime,
nor is it uncommon, particularly among drug users or sellers.
{¶44} Having found that the evidence supported the jury’s rejection of Lawrence’s
claim of self-defense, the manifest weight of the evidence, and thus, sufficient evidence,
supports his conviction for Aggravated Murder. To convict Lawrence of Aggravated
Murder, the State was required to prove, beyond a reasonable doubt, that he did
“purposely, and with prior calculation and design, cause the death of another.” R.C.
2903.01(A). There was evidence that Lawrence had a motive to kill Gipson and shot only
him, although there were two other men present in the vehicle. There was also testimony
that he chose the location of the meeting, providing further support of his potential
planning of the shooting. As to the offenses of Murder and Felonious Assault, “where
allied offenses are merged and there is sufficient evidence on the offense for which
defendant is sentenced, errors relating to sufficiency and weight of the evidence on the
count that is merged are harmless and need not be considered.” State v. Abdullah, 2022-
Ohio-3977, 200 N.E.3d 627, ¶ 28 (11th Dist.).
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{¶45} While Lawrence does not specifically raise manifest weight or sufficiency
arguments as to the other charges for which he was both convicted and sentenced, we
observe that these were also supported by the evidence. To convict Lawrence of
Kidnapping, the State was required to prove that he did “by force, threat, or deception, *
* * remove another from the place where the other person is found or restrain the liberty
of the other person” to “terrorize, or to inflict serious physical harm on the victim * * *.”
R.C. 2905.01(A)(3). Here, Lawrence removed Isaacs from the vehicle and terrorized him
by threatening to kill him. These elements are not disputed in appellant’s brief. As to
Trafficking in Marijuana, the State was required to prove that Lawrence did knowingly
“[s]ell or offer to sell a controlled substance or a controlled substance analog.” R.C.
2925.03(A)(1). Testimony established that Lawrence provided, in exchange for money,
marijuana to Gipson. This constituted the knowing sale of a controlled substance.
{¶46} Finally, we observe that under his third assignment of error relating to the
weight and sufficiency of the evidence, Lawrence also argues that the prosecutor asked
irrelevant and “harassing” questions during his cross-examination. The State counters
that this issue is not properly addressed since it was not assigned as error.
{¶47} App.R. 12(A)(1)(b) sets forth that an appellate court should determine an
appeal “on its merits on the assignments of error set forth in the briefs.” “Generally,
appellate courts rule on assignments of error only and do not address mere arguments.”
State v. Green, 11th Dist. Trumbull No. 2018-T-0063, 2019-Ohio-1303, ¶ 18. However,
in the interest of justice, courts have commonly addressed issues that are discernable
within an appellant’s brief. Id. at ¶ 19. In the interests of justice, we will consider this
argument.
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{¶48} Lawrence argues that Evid.R. 611(A) and (B) were violated, an issue which
was not raised below and is properly evaluated under a plain error standard of review.
Evid.R. 611(A) provides that a court “shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Evid.R. 611(B) provides that cross-examination “shall be permitted on
all relevant matters and matters affecting credibility.”
{¶49} We find no evidence of harassment or embarrassment in the questions
highlighted by Lawrence, including questions about his employment, use and sale of
marijuana, and details relating to the use and possession of his firearm. These questions
were relevant to considerations such as how he earned money and to establish that he
was dealing drugs, which helped support the Trafficking in Marijuana conviction.
Significantly, they also followed up on questions asked during direct examination relating
to Lawrence’s sale of marijuana. Further, questions about Lawrence’s use and
possession of his firearm in conjunction with marijuana addressed his credibility relating
to untruthfulness on his CCW application and also followed up on questions asked on
direct relating to Lawrence’s CCW permit and his past experience and training with
firearms. We find no reversible error in this line of questioning.
{¶50} The first and third assignments of error are without merit.
{¶51} In his second assignment of error, Lawrence argues that the offenses for
which he was convicted should have merged since they were allied offenses which
occurred during one transaction.
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{¶52} “An appellate court should apply a de novo standard of review in reviewing
a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 482,
2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. The State argues, however, that a plain error
standard applies here. “An accused’s failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error, and a forfeited error is not reversible
error unless it affected the outcome of the proceeding and reversal is necessary to correct
a manifest miscarriage of justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
38 N.E.3d 860, ¶ 3. At sentencing, the court indicated which offenses it merged and
asked if there were any objections, to which defense counsel responded in the negative.
However, when defense counsel subsequently spoke in Lawrence’s defense, he then
indicated that the Aggravated Murder, Kidnapping and Trafficking charges should merge
since they were part of a course of conduct, although he conceded that the gun
specifications would not merge. Even presuming that a de novo standard applies as to
those offenses challenged, we find no error in the court’s decision on merger.
{¶53} R.C. 2941.25 governs the imposition of punishment for multiple offenses:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶54} “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were
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committed separately, or (3) the conduct shows that the offenses were committed with
separate animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
paragraph three of the syllabus. “Two or more offenses of dissimilar import exist within
the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus.
{¶55} Lawrence argues that “you cannot commit an aggravated Murder; Murder;
Felonious Assault; Kidnapping separately on the same person when these acts all occur
in the same transaction” and that “one cannot shoot without assaulting the person, and
holding him down and close (sic), thereby committing kidnapping.” Lawrence fails to
recognize a few salient points. First, the offenses for Felonious Assault and Murder were
merged into other convictions so it is unnecessary to address the argument as to those
offenses. Second, the convictions for Aggravated Murder and Kidnapping relate not to
the “same person” but involved separate victims. The Aggravated Murder conviction
resulted from Lawrence shooting Gipson and the Kidnapping conviction was for holding
Isaacs at gunpoint after the shooting. Ruff provides that “[t]wo or more offenses of
dissimilar import exist * * * when the defendant’s conduct constitutes offenses involving
separate victims.” Id. at paragraph two of the syllabus, ¶ 26 (“[w]hen a defendant’s
conduct victimizes more than one person, the harm for each person is separate and
distinct, and therefore, the defendant can be convicted of multiple counts”). See State v.
Hardrick, 2017-Ohio-623, 85 N.E.3d 160, ¶ 25 (11th Dist.) (where “there were two
separate victims” to a bank robbery, “pursuant to Ruff, the trial court was without power
to merge the aggravated robberies”). The remaining offense that was not merged,
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Trafficking in Marijuana, can also be seen as having a separate victim, as drug trafficking
has been viewed as an offense against society as a whole. State v. Bontrager, 2022-
Ohio-1367, 188 N.E.3d 607, ¶ 16 (4th Dist.).
{¶56} Further, there were separate actions and motivations for these three crimes.
The Aggravated Murder was completed through the shooting of Gipson, which the
testimony indicated Lawrence committed as an act of revenge for his alleged murder of
Pace. After this act was complete, Lawrence pulled Isaacs out of the car, held him at
gunpoint, and threatened him. Not only were these separate acts from shooting Gipson
but the evidence indicated they occurred for the purpose of Isaacs reporting a robbery to
support Lawrence’s claim of self-defense. As to the offense of Trafficking in Marijuana,
evidence supported a determination that this transaction was completed prior to the
shooting and was conducted with a separate animus to receive payment for the marijuana
versus the animus outlined above.
{¶57} Lawrence also argues that the firearm specifications should have merged
because they arose out of the same transaction and continuous act.
{¶58} The trial court sentenced Lawrence to prison terms for two firearm
specifications, those associated with Counts One and Five. Merger of these offenses
was not appropriate here as a sentence was required for each of the counts.
{¶59} R.C. 2929.14(B)(1)(b) provides: “[a] court shall not impose more than one
prison term on an offender under division (B)(1)(a) of this section [governing sentencing
on firearm specifications] for felonies committed as part of the same act or transaction,”
i.e., “a series of continuous acts bound together by time, space and purpose, and directed
toward a single objective.” (Citation omitted.) State v. Wills, 69 Ohio St.3d 690, 691, 635
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N.E.2d 370 (1994). While “R.C. 2929.14(B)(1)(b) generally provides that multiple prison
terms for firearm specifications are not permissible when the underlying felonies were”
part of the same act or transaction, “[a]n exception to this rule is set forth in R.C.
2929.14(B)(1)(g).” State v. Hope, 2019-Ohio-2174, 137 N.E.3d 549, ¶ 155 (11th Dist.).
R.C. 2929.14(B)(1)(g) provides:
If an offender is convicted of * * * two or more felonies, if one or more
of those felonies are aggravated murder * * * and if the offender is
convicted of or pleads guilty to a specification of the type described
under division (B)(1)(a) of this section [a specification under section
2941.141, 2941.144, or 2941.145 of the Revised Code of] in
connection with two or more of the felonies, the sentencing court
shall impose on the offender the prison term specified under division
(B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted * * * and, in its
discretion, also may impose on the offender the prison term specified
under that division for any or all of the remaining specifications.
{¶60} Since Lawrence was convicted of Aggravated Murder and firearm
specifications under R.C. 2941.145 in connection with two or more felonies, the court was
required to impose the prison term for the two most serious specifications. “The same
act or transaction requirement does not apply under such circumstances.” Hope at ¶ 157.
Merger of these specifications was not warranted where they each required a sentence
be ordered.
{¶61} The second assignment of error is without merit.
{¶62} In his fourth assignment of error, Lawrence argues that the consecutive
sentences were not supported by the record, emphasizing his lack of a criminal record
and that he acted in self-defense.
{¶63} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
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court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 [or] * * * [t]hat the sentence is otherwise
contrary to law.” Id.{¶64} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations,’” such as where it falls outside of the statutory range for the offense or where
the trial court fails to consider the purposes and principles of sentencing under R.C.
2929.11 and the sentencing factors in R.C. 2929.12. State v. Meeks, 11th Dist. Ashtabula
No. 2022-A-0060, 2023-Ohio-988, ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, ¶ 34. We “cannot review alleged error under R.C.
2929.11 and R.C. 2929.12 to evaluate whether the sentencing court’s findings for those
sentences are unsupported by the record.” State v. Reed, 11th Dist. Ashtabula No. 2022-
A-0082, 2023-Ohio-1324, ¶ 13.
{¶65} While raised in the third assignment of error rather than under an
assignment separately identifying it as error, we will first briefly address Lawrence’s
argument that he should be granted leniency in his sentence. A general request for
leniency does not warrant reversal for error and we do not find that he raises a valid
argument that his sentence was contrary to law. The lower court stated that it considered
the required sentencing factors under R.C. 2929.11 and .12. As outlined above, we
cannot review whether these are supported by the record. Further, his sentences are
within the statutory range. R.C. 2929.03(A)(1)(d) (allowing a term of thirty years to life for
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Aggravated Murder); R.C. 2929.14(A)(1)(a) (indefinite prison term for first degree felony
is three to eleven years); R.C. 2929.14(A)(5) (indefinite prison term for fifth degree felony
is six to twelve months). There are no legal grounds for this court to find the sentence
was improper because the lower court should have been more “lenient.”
{¶66} As to the consecutive nature of the offenses, pursuant to R.C.
2929.14(C)(4), separate prison terms for multiple offenses may be ordered to be served
consecutively if the court finds it is “necessary to protect the public from future crime or
to punish the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public,” and finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are present. The pertinent
R.C. 2929.14(C)(4)(a)-(c) factor here is (b): “[a]t least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual that no single prison
term for any of the offenses committed * * * adequately reflects the seriousness of the
offender’s conduct.”
{¶67} To reverse the consecutive sentencing findings, this court must “‘clearly and
convincingly find that the record does not support the court’s findings.’” (Citation
omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23; R.C.
2953.08(G)(2). There must be an “evidentiary basis” that is “adequate to fully support the
trial court’s consecutive-sentence findings.” State v. Gwynne, __ Ohio St.3d __, 2022-
Ohio-4607, ___ N.E.3d __, ¶ 29. “This requires the appellate court to focus on both the
quantity and quality of the evidence in the record that either supports or contradicts the
consecutive-sentence findings. An appellate court may not, for example, presume that
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because the record contains some evidence relevant to and not inconsistent with the
consecutive-sentence findings, that this evidence is enough to fully support the findings.”
Id. In evaluating consecutive sentences, the appellate court is “authorized to substitute
its judgment for the trial court’s judgment if [it] has a firm conviction or belief, after
reviewing the entire record, that the evidence does not support the specific findings made
by the trial court to impose consecutive sentences.” Id.{¶68} Lawrence does not argue that the court failed to make the necessary
findings but contends that such findings were not supported by the record. The lower
court found, both at the sentencing hearing and in the sentencing entry, that consecutive
sentences are necessary to protect the public and punish Lawrence, are not
disproportionate to his conduct and the danger he poses, and the harm is so great or
unusual that a single term would not adequately reflect the seriousness of Lawrence’s
conduct. We do observe that, at the sentencing hearing, the court did not specifically
state in relation to R.C. 2929.14(C)(4)(b) that “two of the multiple offenses were
committed as part of one or more courses of conduct,” although it specifically stated the
seriousness portion of the finding. Nonetheless, we note that “a ‘word-for-word recitation’
of the language” of the statute is not required to order consecutive sentences. State v.
Olp, 11th Dist. Ashtabula Nos. 2015-A-0033 and 2015-A-0034, 2016-Ohio-3508, ¶ 17.
The court reviewed and discussed facts relating to the crimes occurring at the same time,
which supports a conclusion that it found there was a course of conduct, i.e., including
factual links such as time, location, and weapon. State v. Squires, 8th Dist. Cuyahoga
No. 110059, 2021-Ohio-2035, ¶ 11. This satisfies the requirement to make the necessary
findings and the remaining issue is whether these findings were supported by the record.
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{¶69} Lawrence contends that the harm caused by the offenses was not so
great as to warrant consecutive sentences, emphasizes his lack of a criminal record, and
observes that his actions were taken in self-defense.
{¶70} As to the claim of self-defense, we emphasize that the jury determined
Lawrence committed murder, and, thereby, did not act in self-defense. While Lawrence
emphasizes his acts in self-defense in relation to the consecutive sentencing findings, it
has been held that the sentencing court’s refusal to consider a defendant’s claim of self-
defense in mitigation at sentencing is permissible based upon the jury’s rejection of that
theory. State v. Blevins, 2019-Ohio-2744, 140 N.E.3d 27, ¶ 97 (4th Dist.) (“[a]lthough
Appellant’s version of events supported a claim of self-defense, the jury rejected it and
the trial court was free to reject it as well during the sentencing phase”). The facts support
the sentencing judge’s analysis and conclusion that the murder was an act of revenge, in
a public place, while other individuals were present in the vehicle. This supports a finding
both that there was a risk posed to the public and that there was great harm caused.
Gipson lost his life, two individuals were impacted through watching their friend killed, and
Isaacs suffered threats while held at gunpoint. The lower court properly considered the
danger posed by this type of offense and the risk posed by such a defendant to the public
in general.
{¶71} Lawrence also emphasizes his limited adult criminal record, which,
according to the PSI includes only offenses for possession of marijuana and for no valid
operator’s license. This fact does not change the danger his actions posed to the public.
R.C. 2929.14(C)(4) mentions a defendant’s criminal record only in relation to a finding
under (C)(4)(c), which finding was not made here. As such, it is not necessary to resolve
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whether Lawrence’s history of criminal conduct supports a finding that consecutive
sentences are necessary. The danger he poses to the public, regardless of his criminal
background, is evident from his conduct here, where he fired 14 shots in an apartment
building parking lot, into a car occupied by three individuals, while also carrying and selling
marijuana.
{¶72} The fourth assignment of error is without merit.
{¶73} For the foregoing reasons, Lawrence’s sentences and/or convictions for
Aggravated Murder, Murder, Felonious Assault, Kidnapping, and Trafficking in Marijuana
in the Lake County Court of Common Pleas are affirmed. Costs to be taxed against
appellant.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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