State v. Alexander , 2023 Ohio 3450 ( 2023 )

[Cite as State v. Alexander, 2023-Ohio-3450.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30053
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEREMIAH LAMAR ALEXANDER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 08 2929
DECISION AND JOURNAL ENTRY
Dated: September 27, 2023
HENSAL, Judge.
{¶1} Jeremiah Alexander appeals his convictions in the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} On August 19, 2019, a group of young males decided to walk to Borders Drive-
Thru at the intersection of Arlington Street and Rosemary Boulevard to buy some cigars. As they
walked north on Dahlgren Drive toward Rosemary Boulevard, three of the four stopped to talk to
a group of women; the fourth kept walking, putting some distance between himself and the others.
The fourth man, D.N., turned onto Rosemary Boulevard and noticed another man walking toward
him. The two greeted each other and “dapped up,” or shook hands, then continued on their way.
D.N. took several more steps then heard gunfire from behind him. He looked over his shoulder
and, supposing that the man he had just encountered was shooting at the three friends from whom
he had separated, prepared to flee. At that point, however, the man turned toward him and fired
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again, shooting D.N. in the back. D.N. ran to the nearby drive-thru for assistance, and an employee
called the police.
{¶3} Meanwhile, after they separated from D.N., the other three males—J.A., D.W., and
“Fat Dad”—spoke with the women they met on the street and then continued walking north on
Dahlgren Drive. They approached Rosemary Boulevard in an area where a seven-foot chain link
fence separates the sidewalk from the adjacent property. D.W., the youngest in the group, was
walking behind J.A. and Fat Dad. D.W. heard gunfire coming from his side, turned, and saw that
J.A. had fallen to the ground. After J.A. fell, D.W. saw someone running up Rosemary Boulevard
across the street and away from the drive-thru. D.W. left the area and went to his aunt’s house so
that she could call the police because he did not have a cell phone.
{¶4} Akron police responded to a call reporting that the victim of a shooting was at
Borders Drive-Thru. They found D.N. on the floor of the drive-thru with a gunshot wound to his
back. Initially, D.N. refused to tell the police who had shot him. As he became aware of the
gravity of his injury, however, he identified the shooter as “JWOP.” Police who responded to
other calls regarding a shooting in the area of Dahlgren Drive and Rosemary Boulevard found a
crowd gathering around the body of J.A., who had died before police arrived at the scene as a result
of a gunshot wound to the head.
{¶5} Through a neighborhood source, police connected the name “JWOP” with Mr.
Alexander, and D.N. identified him from a photograph as the shooter. Two days after the
shootings, Mr. Alexander was arrested at his grandmother’s home in Akron. During an interview
with detectives, Mr. Alexander stated that he “opened fire” during the incident and, when asked
whether anyone else had a weapon, replied that it looked like one of the other individuals had a
gun.
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{¶6} Mr. Alexander was indicted for murder, felonious assault, and improperly
discharging a firearm at or into a habitation. Each charge was accompanied by a firearm
specification. Trial commenced on April 26, 2021. Before the jury retired for deliberations, the
trial court instructed the jury about the burden of proof in a case in which self-defense is at issue:
The Defendant is allowed to use deadly force in self-defense. The State must prove
beyond a reasonable doubt that the Defendant did not use deadly force in self-
defense.
To prove that the Defendant did not use deadly force in self-defense, the State must
prove beyond a reasonable doubt at least one of the following:
The Defendant was at fault in creating the situation giving rise to the shooting of
[J.A.]; or the Defendant did not have reasonable grounds to believe he was in
imminent or immediate danger of death or great bodily harm; or the Defendant did
not have an honest belief, even if mistaken, that he was in imminent or immediate
danger of death or great bodily harm; or the Defendant violated a duty to retreat or
escape to avoid the danger; or the Defendant did not use reasonable force.
Mr. Alexander did not object to the jury instruction. The jury found him guilty of murder in
violation of Revised Code Section 2903.02(B) and of felonious assault, both with firearm
specifications. The trial court sentenced him to a total stated prison term of twenty-one years to
life. Mr. Alexander appealed, raising six assignments of error for review. His assignments of
error are rearranged for ease of disposition.
II.
ASSIGNMENT OF ERROR I
JEREMIAH ALEXANDER WAS DEPRIVED OF HIS RIGHT TO DUE
PROCESS AND A FAIR TRIAL WHEN PROSECUTORS FAILED TO
CORRECT FALSE AND MISLEADING BALLISTICS TESTIMONY FROM
INVESTIGATING DETECTIVES, PLAINLY VIOLATING NAPUE V.
ILLINOIS. CRIM.R. 52; FIFTH AND FOURTEENTH AMENDMENTS TO THE
U.S. CONSTITUTION; AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
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{¶7} In his first assignment of error, Mr. Alexander argues that his right to due process
was violated because the State failed to correct false or misleading testimony about the type of
shell casing found near J.A.’s body. This Court does not agree.
{¶8} A violation of due process occurs when the state obtains a conviction through the
use of “deliberate deception of court and jury by the presentation of testimony known to be
perjured.” Mooney v. Holohan, 294 U.S. 103, 112 (1935). The same is true when the state does
not solicit evidence that is false but “allows it to go uncorrected when it appears.” Napue v. Illinois,
360 U.S. 264, 269 (1959). Both situations present a deprivation of due process akin to the type
addressed in Brady v. Maryland¸ 373 U.S. 83 (1963). See United States v. Agurs, 427 U.S. 97,
103 (1976); Giglio v. United States, 405 U.S. 150, 153-154 (1972). See also State v. Brantley, 9th
Dist. Summit No. 29924, 2021-Ohio-4621, ¶ 7-9.
{¶9} “There are three components of a true Brady violation: The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282 (1999). At its most fundamental
level, a Brady violation involves “the discovery, after trial[,] of information which had been
known to the prosecution but unknown to the defense.” (Emphasis added.) Agurs at 103. Once
the existence of a Brady violation related to false testimony is established, a new trial is required
if there is “any reasonable likelihood” that the false testimony affected the judgment of the jury.
Giglio at 154, quoting Napue at 271. See also Agurs at 103.
{¶10} The record in this case does not demonstrate that a due process violation, as
articulated by Napue and Brady, occurred. During trial, the State introduced a diagram that
depicted the placards marking where physical evidence was found at the scene of the shooting.
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Placard 1 represented the location of J.A.’s body, which was found near the tree lawn on the west
side of Dahlgren Drive. Placard 2 represented the position of a shell casing found near the
intersection of Dahlgren Drive and Rosemary Boulevard, and Placard 3 represented the position
of another shell casing found just to the north of Rosemary Boulevard near the same intersection.
Placards 5 through 12 represented the locations of shell casings or spittle found sequentially in a
pattern on and around Rosemary Boulevard across the span of approximately sixty feet. Placard
4, on the other hand, marked the position of a shell casing found across from J.A.’s body on the
east side of Dahlgren Drive near its intersection with Chesapeake Drive.
{¶11} Detective Brent Dube identified the exhibits that contained the shell casings and
bullet fragments found at the scene, noting that State’s Exhibit 33 was a photograph a shell casing
located near the curb at the intersection of Chesapeake Drive and Dahlgren Drive. He identified
State’s Exhibit 12 as “Five 9-millimeter shell casings, Placards 3, 4, 5.” He then elaborated after
looking at the evidence label affixed to the exhibit:
Q: Let me bring it to you. There you go.
A: Okay. Five 9-millimeters, Placard 3, Placard 4.
There was a 3B from Chesapeake.
Placard 5, 9-millimeter.
And these are labels, [sic] I don’t think print everything you type in.
Q: You say you do not believe they print everything you type in?
A: No.
Q: You believe you typed in more?
A: Yes.
Q: Okay, And actually, if you look, collected, there’s a letter F with: Dot, dot,
dot; is that a fair statement?
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A: Yes.
The evidence label affixed to State’s Exhibit 12 reads, “Placard #4 Federal .380 shell casing from
Chesapeake [Drive]. Casing expanded as if fired through larger caliber pistol.” Detective Daniel
Gump also identified the evidence found at Placard 4 as a shell casing. He testified that he believed
the shell casings found at Placards 5-6 and 8-12 were all 9-millimeter, but he did not testify about
the shell casing found at Placard 4. Detective Gump also explained that when a semi-automatic
firearm is fired, the casing is ejected close in position to where the gun is fired. In that regard, he
noted that “[y]ou can say that [a shooter was] fairly close to the casings.”
{¶12} After the State rested, the trial court inquired about State’s Exhibit 12 while
discussing the admission of exhibits:
THE COURT: * * *
So I have a question. Exhibit No. 12, which is cartridge
casings from a 9-millimeter and a .38. * * * So these are *
* * refresh my recollection about the relevance of the .38.
THE STATE: These are all casings that were recovered from the scene.
THE COURT: Okay.
THE STATE: The .38, specifically, hasn’t been discussed much
throughout trial; but it was a casing recovered at the scene.
THE COURT: So in other words, there was a casing recovered at the scene.
And based upon the testimony of one of the detectives about
how casings are located close to the firing, there is relevance
in the sense that it goes to [the defense’s] position that there
was a weapon fired at Mr. Alexander.
THE DEFENSE: Correct.
THE COURT: All right. Thank you.
The trial court admitted State’s Exhibit 12 without objection but determined at that time that like
the rest of the physical evidence admitted, it would not go to the jury unless specifically requested.
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The State objected to this ruling, but the trial court overruled the objection. At the close of all of
the evidence, however, the trial court revisited this decision, concluding that State’s Exhibit 12
“will go back with the rest - - all the exhibits.”
{¶13} It is unclear whether, as Mr. Alexander maintains, there was a false statement about
State’s Exhibit 12 in the first instance. This Court notes that when viewed in context, it appears
that Detective Dube’s reference to “a 3B from Chesapeake” may be an error in transcription given
that the evidence label from which he was reading refers to a “.380 shell casing from Chesapeake
* * * .” Neither party moved to correct the record under Appellate Rule 9(E). Even if there was
a misstatement, however, it occurred in the context of trial—when the defense had access to the
evidence label affixed to State’s Exhibit 12 and the ability to correct the misstatement. See
generally Agurs, 427 U.S. at 103. See also State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, ¶
26; State v. Wickline, 50 Ohio St.3d 114, 116 (1990); State v. Jones, 1st Dist. Hamilton No. C-
180091, 2019-Ohio-4862, ¶ 57-61. Moreover, State’s Exhibit 12, which correctly identified the
shell casing found at Placard 4, was ultimately provided to the jury. Accordingly, Mr. Alexander
has not demonstrated that a violation of his right to due process occurred. Mr. Alexander’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
JEREMIAH ALEXANDER WAS DENIED HIS RIGHT TO A FAIR TRIAL DUE
TO SEVERAL OTHER INSTANCES OF PROSECUTORIAL MISCONDUCT
THAT PLAINLY VIOLATED HIS CONSTITUTIONAL RIGHTS. CRIM.R. 52;
FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION;
AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION
{¶14} Mr. Alexander’s second assignment of error recasts the argument in his first
assignment of error as prosecutorial misconduct. See State v. Clinton, 153 Ohio St.3d 422, 2017-
Ohio-422, ¶ 228. As discussed above, the conduct to which Mr. Alexander directs this Court’s
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attention occurred in the context of the trial itself. Mr. Alexander did not object and, consequently,
has forfeited all but plain error. See, e.g., State v. Curtiss, 2d Dist. Montgomery No. 29006, 2022-
Ohio-146, ¶ 150-161; State v. Newman, 8th Dist. Cuyahoga No. 107060, 2020-Ohio-658, ¶ 8, 15-
17. Mr. Alexander also argues that instances of prosecutorial misconduct were present throughout
the State’s closing arguments. He did not object to the statements at issue, however, so these
arguments are also limited to plain error. State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840,
¶ 94, citing State v. Slagle, 65 Ohio St.3d 597, 604 (1992). Mr. Alexander, however, has not
provided this Court with a plain error argument, and this Court declines to construct one on his
behalf. See State v. Fortune, 9th Dist. Wayne No. 19AP0024, 2020-Ohio-3606, ¶ 40. Mr.
Alexander’s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
JEREMIAH ALEXANDER’S CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE. FIFTH AND FOURTEENTH
AMENDMENTS, U.S. CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16,
OHIO CONSTITUTION.
{¶15} Mr. Alexander’s fourth assignment of error argues that his convictions were against
the manifest weight of the evidence when considered without reference to the “Stand Your
Ground” amendment to Section 2901.09 because the State failed to disprove that he acted in self-
defense. This Court does not agree.
{¶16} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
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State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A manifest weight challenge is the
appropriate means of determining whether the State disproved that a defendant acted in self-
defense under Section 2901.05(A). State v. Messenger, __ Ohio St.3d __, 2022-Ohio-4562, ¶ 27.
See generally State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring) (“[I]n
deciding whether a conviction is against the manifest weight of the evidence, an appellate court
determines whether the state has appropriately carried its burden of persuasion.).
{¶17} Section 2905.01(B) places the burden of persuasion to disprove a claim of self-
defense on the State. Messenger at 26-27. This requirement “does not in itself cause the
affirmative defense to become an element of the offense[ ]” and “[s]elf-defense remains an
affirmative defense in Ohio[.]” Id. at ¶ 24. The elements of self-defense are:
(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.
Id. at ¶ 14, quoting State v. Barnes, 94 Ohio St.3d 21, 24 (2002). Each element of self-defense
must be present. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 73, citing State v. Jackson,
22 Ohio St.3d 281, 284 (1986). Conversely, “[t]he state need only disprove one of the elements
of self-defense beyond a reasonable doubt at trial to sustain its burden.” State v. Rengert, 5th Dist.
Delaware No. 19 CAA 10 0056, 2021-Ohio-2561, ¶ 33. See also State v. Williams, 9th Dist.
Summit No. 29444, 2020-Ohio-3269, ¶ 10.
{¶18} With respect to the third element of self-defense, Section 2901.09 was amended
effective April 6, 2021, to provide that “a person has no duty to retreat before using force in self-
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defense * * * if that person is in a place in which the person lawfully has a right to be.” R.C.
2901.09(B). This amendment permits “Ohio citizens * * * to ‘stand his or her ground’ and defend
themselves.” State v. Robinette, 5th Dist. Stark No. 2021 CA 00124, 2023-Ohio-5, ¶ 51. For
purposes of his fourth assignment of error, Mr. Alexander maintains that his convictions are
against the manifest weight of the evidence even if the stand-your-ground amendment did not
apply. Because the conclusion that the State disproved an element of self-defense other than the
duty to retreat is not against the manifest weight of the evidence, this Court disagrees.
{¶19} This Court recently summarized the considerations at issue when determining
whether a defendant “[had] a bona fide belief that he was in imminent danger of death or great
bodily harm[.]” Williams at ¶ 9, quoting State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph
two of the syllabus. This Court explained:
In Ohio, there is an objective and a subjective aspect involved in determining
whether a defendant had a bone fide belief that he or she was in imminent danger
of death or great bodily harm: an individual’s belief that he or she was in imminent
danger must be objectively reasonable, and the individual must have an honest
subjective belief to that effect. See State v. Thomas, 77 Ohio St.3d 323, 331 (1997).
See also State v. Brown, 9th Dist. Wayne No. 19AP0004, 2020-Ohio-529, ¶ 26-28;
State v. Huguley, 9th Dist. Summit No. 28322, 2017-Ohio-8300, ¶ 35, quoting State
v. Inman, 9th Dist. Medina No. 03CA0099-M, 2004-Ohio-1420, ¶ 9. Both aspects
of this element require this Court to consider all of the surrounding circumstances.
Huguley at ¶ 35, quoting Inman at ¶ 9.
A defendant cannot introduce evidence of prior acts on the part of a victim to
establish that the victim was the initial aggressor. State v. Barnes, 94 Ohio St.3d
21, 2002-Ohio-68, syllabus. With respect to whether the defendant had an honest
subjective belief that he or she faced an imminent threat of harm, however, “[t]he
defendant’s state of mind is crucial[.]” State v. Koss, 49 Ohio St.3d 213, 215
(1990). Accordingly, “‘[c]ourts have consistently held that a defendant arguing
self-defense may testify about his knowledge of specific instances of the victim’s
prior conduct in order to establish the defendant’s state of mind at the time of the
incident.’” In re D.N., 195 Ohio App.3d 552, 2011-Ohio-5494, ¶ 15 (8th Dist.),
quoting State v. Baker, 88 Ohio App.3d 204, 208 (9th Dist.1993). Similarly, “[i]n
determining whether there are reasonable grounds for believing there was an
imminent threat of great bodily harm, [courts] can consider whether the defendant
received prior threats.” Parma v. Treanor, 8th Dist. Cuyahoga No. 106275, 2018-
11
Ohio-3166, ¶ 25. When a defendant offers evidence of prior threats of violence,
the gravamen of the evidence is the reason that the threats were made. State v.
Randle, 69 Ohio App.2d 71, 73 (10th Dist.1980). Unless an explanation for the
reason for prior threats is offered, it is unlikely that they will establish reasonable
grounds for believing that an imminent threat of harm existed. See id.Id. at ¶ 11-12. Mr. Alexander does not dispute that he fired the shot that killed J.A. or that he
turned and fired on D.N. as D.N. fled. He maintains, as he did at trial, that he did so in self-defense.
{¶20} D.N. testified that on the evening of the shooting, he walked with J.A., D.W., and
Fat Dad toward the drive-thru at the corner of Rosemary Boulevard and Arlington Street so that
they could purchase cigars. D.N. acknowledged that they had smoked marijuana that day, but he
denied that he had consumed any alcohol. He testified that he did not have a weapon and
maintained that he had not seen anyone in his group of friends with a weapon that day. All but
D.W., however, carried cellular phones. He testified that the group started walking on Dahlgren
Drive toward Rosemary Boulevard together, but that he continued alone when J.A., D.W., and Fat
Dad stopped to talk to some women. At that point, D.N. was ahead of the group so that he turned
left onto Rosemary Boulevard while the other three were still walking on Dahlgren Drive in an
area where a tall chain link fence separated the sidewalk from an apartment complex at the corner.
{¶21} D.N. testified that as he walked toward Arlington Street on Rosemary Boulevard,
he encountered Mr. Alexander walking toward him. D.N. knew of Mr. Alexander; he explained
that although Mr. Alexander and J.A. had “history,” there was no animosity between the two of
them. He testified that he and Mr. Alexander approached each other on the sidewalk without any
aggression, greeted each other, shook hands, and continued walking in opposite directions.
According to D.N., the encounter—which lasted about ten seconds—was “cordial.” D.N. testified
that after he took eight or nine more steps, however, the situation changed quickly: he heard
multiple gunshots and looked over his shoulder to see Mr. Alexander shooting in the direction of
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the other three men, who were still around the corner on Dahlgren Drive. D.N. testified that he
had started to flee when Mr. Alexander shot him in the back.
{¶22} Although D.N. emphasized that he and Mr. Alexander did not have any animosity
toward each other, he acknowledged that they were part of different social groups that had a
contentious history. D.N. recalled that his group of acquaintances and Mr. Alexander’s group of
acquaintances had been in a fight a few days before the shooting. Given Mr. Alexander’s history
of tension with J.A., D.N. testified that he “just felt like something was about to happen[]” before
the shooting occurred. D.N. acknowledged that the level of tension between the two groups was
such that they might start fighting or fire at each other upon sight and speculated that Mr.
Alexander “maybe felt like he was getting setup, something like that[.]”1
{¶23} Nonetheless, D.N. explained that the other three men were walking in a position
diagonal from Mr. Alexander and were separated from him by a chain link fence that blocked their
ability to approach each other without going around it. He testified that Mr. Alexander “stopped
walking and just started shooting straight through the fence.” After D.N. was shot, he fled to the
drive-thru, where employees pulled him inside and called the police. Although he initially refused
to identify the person who shot him, D.N. identified Mr. Alexander by his street name as his
condition deteriorated.
{¶24} D.W., who was fourteen on the date of the shooting, was one of the two individuals
who walked with J.A. toward the corner of Rosemary Boulevard and Dahlgren Drive. D.W. noted
that the group was 30-35 feet from D.N., who was walking on Rosemary Boulevard, and D.W.
testified that he had been walking behind J.A. and Fat Dad as the group approached the
1
According to Mr. Alexander, D.N. testified that he “could see how [Mr. Alexander] would
feel that he was being ‘setup.’” D.N. did not make this statement during trial, and Officer
Schwarting also denied that D.N. made such a statement to him.
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intersection. D.W. recalled that J.A. was using his cellular phone as they walked. According to
D.W., he looked to the right at a passing car then heard gunshots from the left. D.W. testified that
he looked back in that direction and saw J.A. had fallen to the ground. After J.A. was shot, D.W.
saw someone running up Rosemary Boulevard away from the drive-thru. D.W. testified that no
one in his group had a gun and that, from his perspective, they had done nothing to provoke the
shooting. He also observed that no one fired at the shooter. D.W. was aware of a fight between
the two groups of acquaintances, but he testified that he did not participate and that J.A. had not
been involved.
{¶25} Detective Brent Dube described the evidence found at the scene of the shooting.
J.A.’s body was found in the tree lawn on the west side of Dahlgren Drive. According to Detective
Dube’s testimony, there were numerous shell casings found in an east-west pattern on and around
Rosemary Boulevard across the span of approximately sixty feet near the intersection with
Dahlgren Drive. All of these shell casings were from 9-millimeter bullets. A single shell casing
from a .38 caliber weapon was found on the side of the street opposite J.A.’s body near the
intersection of Dahlgren Drive and Chesapeake Drive. According to another detective, a bag
containing 9-millimeter bullets was found with Mr. Alexander’s personal effects when he was
arrested. Three detectives testified that the area of Rosemary Boulevard and Dahlgren Drive is
one with a high rate of crime, including many reports of gunshots. Detective Richard Doney
testified that no weapon was found on or around the location of J.A.’s body.
{¶26} Mr. Alexander testified in his own defense. He explained that his acquaintance
with J.A. dated to approximately 2016, before Mr. Alexander moved out of the Rosemary
Boulevard neighborhood to the west side of Akron. According to Mr. Alexander, the two did not
renew their relationship when he moved back to the area, and he believed that J.A. was no longer
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friendly toward him. Mr. Alexander testified that at some point after he moved back, he learned
that a friend of his was believed to have something to do with the death of one of J.A.’s friends.
He characterized his contact with J.A. from that point forward as violent. According to Mr.
Alexander, J.A. shot from a moving vehicle toward a parking lot where he was hanging out with
some friends approximately one month before this incident. A week or two later, he testified,
someone else fired at him from the same car. Mr. Alexander also recalled that his own car had
been “shot up” on or around August 1, 2019. He attributed the shooting to J.A. and testified that
afterward, he purchased a 9-millimeter handgun off the street. He agreed that gunfire is common
in his neighborhood.
{¶27} R.J., Mr. Alexander’s cousin, testified that he was with Mr. Alexander when
someone shot at his car. According to R.J.’s testimony, it was dark outside, and he did not see the
shooter. R.J. testified that Mr. Alexander was “kind of nervous” right after his car was shot, but
the two did not spend enough time together for him to observe Mr. Alexander’s demeanor in the
days that followed. R.J. also acknowledged that he had been communicating with Mr. Alexander
throughout the criminal proceedings and that he did not want Mr. Alexander to go to jail, although
he denied that he would lie for his cousin.
{¶28} Mr. Alexander testified that on the date of the shooting, he decided to walk to
Borders Drive-Thru to buy some Black & Milds. He carried his weapon because of the “rough
neighborhood” and because someone had shot at him on a previous occasion. Mr. Alexander
testified that as he walked home along Rosemary Boulevard, he encountered someone that he
recognized as an acquaintance of J.A. but whose name he did not know. The two men greeted
each other, but his account differed from D.N.’s in that he characterized D.N.’s tone of voice as a
“[l]ittle bit aggressive.” According to Mr. Alexander, he then saw three individuals approaching
15
Rosemary Boulevard from Dahlgren Drive. He testified that he could make out J.A. and D.W.
from the illumination provided by a streetlight. Two of the individuals were “clutching”—walking
with their hands in the pockets as if to hold something. Mr. Alexander explained that “clutching”
could involve “anything, could be a firearm, could be a knife. That’s what we call clutch and go.”
He testified that as soon as he saw that the third individual had what he believed to be a gun, he
pulled his own and opened fire. Mr. Alexander identified that individual as J.A., and he clarified
that although he believed J.A. was holding a firearm, it was not pointed in his direction. Mr.
Alexander admitted that he fired the first shot, and he testified that shots were fired from the area
of the three men at some point. Mr. Alexander further acknowledged that he also shot D.N., whom
he had passed moments before, as D.N. was fleeing in the opposite direction. Mr. Alexander
testified that he was afraid, that the events played out in a matter of seconds, and that he ran from
the scene, discarding his gun in a grassy area. He testified that shots were being fired in his
direction while he ran.
{¶29} Mr. Alexander also acknowledged discrepancies between his testimony and his
previous statements. He did not tell the police during his interview shortly after the shooting that
it was J.A. who shot at his car, and he denied at that time that anyone was with him during that
incident. During that interview, Mr. Alexander also emphasized that it was dark on the night that
he shot J.A. and D.N. and he did not know the individuals that he saw—including J.A. He did not
mention that he saw a gun before he opened fire until prompted by a question from the detective
who interviewed him.
{¶30} Detective Dube and Detective Daniel Gump described the physical evidence that
was found at the scene of the shooting. As described above, Placard 1 represented the location of
J.A.’s body on the west side of Dahlgren Drive. Placard 2 represented the position of a shell casing
16
found near the intersection of Dahlgren Drive and Rosemary Boulevard, and Placard 3 represented
the position of another shell casing found just to the north of Rosemary Boulevard near the same
intersection. Placards 5 through 12 represented the location of shell casings or spittle found in a
pattern on and around Rosemary Boulevard across the span of approximately sixty feet that
corresponded to the path that Mr. Alexander took as he fled. A 9-millimeter bullet slug was also
recovered from a residence on Dahlgren Drive near J.A.’s body. All of these shell casings were
from 9-millimeter ammunition. Placard 4 represented the position of a single shell casing located
across the street from J.A.’s body on the east side of Dahlgren Drive near where it intersects
Chesapeake Drive. That shell casing was fired from a .38 caliber firearm.
{¶31} Detective Gump, who works with the Crime Scene Unit of the Akron Police
Department, explained that shell casings are ejected from a semi-automatic firearm near where the
gun is fired, although he acknowledged that it is not possible to identify precisely where a shooter
stood. The pattern of the 9-millimeter shell casings that were recovered corresponded generally
with Mr. Alexander’s path of flight. Mr. Alexander acknowledged that his gun was a 9-millimeter,
and he was in possession of ammunition for that gun was he was arrested. Neither Mr. Alexander’s
weapon nor any other weapon related to the shooting was ever recovered, and there was no
testimony that specifically connected either the .38 caliber shell casing or the bullet slug recovered
from a nearby residence to this incident.
{¶32} The jury in this case heard testimony from Mr. Alexander regarding three prior
encounters with J.A. The jury also heard Mr. Alexander’s testimony that he was afraid as a result
of these incidents and that he purchased a weapon in response. These incidents were relevant to
the jury’s consideration of whether Mr. Alexander had a bone fide belief that he was in imminent
danger of death or great bodily harm. See Williams, 2020-Ohio-3269, at ¶ 29. As noted above,
17
however, he must have had an honest subjective belief to that effect and that belief must have been
objectively reasonable. See id. In that regard, with respect to one of the prior incidents, Mr.
Alexander’s statements conflicted with the testimony of R.J., who testified that it was too dark to
identify the person who shot at Mr. Alexander’s vehicle during the previous incident. With respect
to another of the incidents, it appears from Mr. Alexander’s testimony that while J.A. was present,
he was not the aggressor. Mr. Alexander also acknowledged that he initially told the police that
on the night of the shooting, he was uncertain whether J.A. was one of the individuals walking
toward him before he opened fire.
{¶33} The jury could also have questioned whether Mr. Alexander was “at fault” in the
shooting. Compare Williams at ¶ 31. Mr. Alexander never denied that he shot first, and he
acknowledged that he turned and shot D.N. in the back as D.N. attempted to flee. Although he
maintained at trial that he saw a gun in J.A.’s possession before he opened fire, Mr. Alexander’s
statement to police was more qualified: he did not mention that anyone else had a weapon until
the detective brought it up, and he explained that because it was dark, the identity of the three
individuals was unclear. In that regard, other witnesses testified that there was limited lighting in
the area where the shooting occurred and described, in general terms, the distance between Mr.
Alexander and the group of men and the tall chain-link fence that stood between them. D.W., for
example, testified that immediately before the shooting, he could not see D.N. around the corner.
Both D.N. and D.W. denied that anyone in their group had a gun on his person. With respect to
the encounter with D.N. that immediately preceded the shooting, Mr. Alexander testified that
D.N.’s tone when they exchanged greetings on the night of the incident was aggressive, but the
jury also heard D.N.’s testimony that their interaction was cordial and not characterized by any
aggression.
18
{¶34} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest
weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at
175. Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys
the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. Given the evidence in this case, this Court cannot conclude that
this is the exceptional case in which the evidence weighs heavily against the conclusion that the
State disproved that Mr. Alexander had a bone fide belief that he was in imminent danger of death
or great bodily harm or that he was not at fault in creating the situation that gave rise to the incident.
See Robbins, 58 Ohio St.2d 74 at paragraph two of the syllabus. Mr. Alexander’s fourth
assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY TO
CONSIDER WHETHER JEREMIAH ALEXANDER VIOLATED A DUTY TO
RETREAT FOR PURPOSES OF SELF-DEFENSE. CRIM.R. 52; FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION
{¶35} In his third assignment of error, Mr. Alexander argues that the trial court erred by
instructing the jury in accordance with the law of self-defense as it existed before April 6, 2021.
Mr. Alexander acknowledges that he did not object to the jury instruction and urges this Court to
recognize plain error. See State v. McManaway, 9th Dist. Wayne No. 20AP0046, 2022-Ohio-
2086, ¶ 20.
{¶36} Criminal Rule 52(B) permits this Court to notice plain errors or defects that affected
a substantial right in the absence of an objection in the trial court. Under Rule 52(B), “the
defendant bears the burden of demonstrating that a plain error affected his substantial rights.”
(Emphasis in original.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 14. See also State
19
v. LaRosa, 165 Ohio St.3d 346, 2021-Ohio-4060, ¶ 40. This Court can only notice plain error
when there has been a deviation from a legal rule that constitutes an obvious defect in the trial
proceedings that affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
We do so only in exceptional circumstances to prevent a manifest miscarriage of justice. State v.
Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶37} Mr. Alexander submitted proposed jury instructions that included a self-defense
instruction without reference to amended Section 2901.09. After addressing the burden of proof
during a conference on the record to discuss the proposed jury instructions, the trial court instructed
the jury with reference to the burden of proof contained in R.C. 2901.05(A). With respect to the
duty to retreat, however, the trial court instructed the jury:
The Defendant had a duty to retreat if he was at fault in creating the situation giving
rise to the altercation or did not have reasonable grounds to believe and had an
honest belief that he had a reasonable means of escape from that danger other than
by the use of deadly force.
Mr. Alexander did not object to this instruction.
{¶38} Even if Mr. Alexander demonstrated that the trial court erred by failing to instruct
the jury under amended Section 2901.09, he has not established that the result of the proceeding
would have been different. A defendant who asserts self-defense must produce evidence
demonstrating three things: that the defendant “‘was not at fault in creating the situation giving
rise to the affray; * * * [had] a bona fide belief that he was in imminent danger of death or great
bodily harm and that his only means of escape from such danger was in the use of such force; and
* * * [did] not * * * violate[] any duty to retreat or avoid the danger.’” Williams, 2020-Ohio-3269,
at ¶ 9, quoting Robbins, 58 Ohio St.2d 74 at paragraph two of the syllabus. See generally
Messenger, __ Ohio St.3d __, 2022-Ohio-4562, at ¶ 21. Because each of these elements must be
present, the State’s burden of persuasion is satisfied by disproving any one of them. Rengert,
20
2021-Ohio-2561, at ¶ 33. See generally Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, at ¶ 73,
citing Jackson, 22 Ohio St.3d at 284. As discussed in this Court’s resolution of Mr. Alexander’s
fourth assignment of error, the evidence demonstrates that the State met its burden of persuasion
with respect to at least one of the elements of self-defense. Mr. Alexander has not demonstrated
that a different outcome would have resulted with respect to those elements had the trial court
applied Section 2901.09 as amended. His third assignment of error is overruled on that basis.
ASSIGNMENT OF ERROR V
JEREMIAH ALEXANDER WAS DEPRIVED OF HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL, IN
VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
TO THE U.S. CONSTITUTION; AND ARTICLE I, SECTIONS 1 AND 16 OF
THE OHIO CONSTITUTION.
{¶39} In his fifth assignment of error, Mr. Alexander argues that he did not receive
effective assistance of trial counsel. Specifically, he maintains that trial counsel’s performance
was ineffective because he failed to object to jury instructions that did not incorporate the
amendment to Section 2901.09, effective April 6, 2021, which eliminated the duty to retreat when
an individual is in a place where he or she lawfully has a right to be. Mr. Alexander also argues
that trial counsel was ineffective because he failed to bring the existence of the .38 caliber shell
casing to the attention of the jury, did not object to the admission of evidence related to the
operation of firearms, did not object to improper statements during the State’s closing argument,
and misrepresented the burden of proof during his own closing.
{¶40} In order to demonstrate ineffective assistance of counsel, a defendant most show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
21
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing
Strickland at 697.
{¶41} In support of his argument that trial counsel was ineffective by virtue of failing to
object to omission of the amendments to Section 2901.09 from the jury instructions, Mr. Alexander
directs this Court’s attention to State v. Smith, 6th Dist. Wood No. WD-19-070, 2020-Ohio-5119.
In that case, the Sixth District Court of Appeals determined that the performance of trial counsel
was deficient because he agreed to jury instructions that did not incorporate amendments to the
self-defense statute that became effective more than four months before his trial commenced. Id.
at ¶ 27, 32. Nonetheless, the Sixth District determined that the appellant was not denied effective
assistance of counsel, concluding that “there [was] no evidence that [he] was prejudiced by
counsel’s deficient performance because the evidence did not support a self-defense jury
instruction.” Id. at ¶ 33.
{¶42} In Wood, the Sixth District Court of Appeals considered whether trial counsel’s
performance was deficient in light of amendments to Section 2901.05, not Section 2901.09. Id. at
¶ 32. Apart from that distinction, however, even if Mr. Alexander’s attorney provided
representation that was deficient, his ineffective-assistance claim must fail because he has not
demonstrated prejudice. As discussed above, the evidence demonstrates that the State met its
burden of persuasion with respect to at least one of the elements of self-defense. Mr. Alexander
has not demonstrated that a different outcome would have resulted with respect to those elements
had the trial court applied Section 2901.09 as amended.
22
{¶43} Mr. Alexander’s next argument is that trial counsel was ineffective by virtue of
failing to ensure that the jury was aware that a .38 caliber shell casing had been found near J.A.’s
body. As noted above, it is unclear whether there were actual misstatements regarding the shell
casing during trial. In any event, however, Mr. Alexander has not demonstrated that the result of
his trial would have been different but for trial counsel’s performance in this regard. The trial
court ultimately provided State’s Exhibit 12 to the jury, and that exhibit bore an evidence sticker
identifying the shell casing as .38 caliber. The evidence before the jury, therefore, included
evidence regarding the .38 caliber shell casing and the inferences that could be drawn from it, but
the jury found Mr. Alexander guilty nonetheless.
{¶44} Mr. Alexander maintains that trial counsel was also ineffective by failing to object
to Detective Gump’s testimony and to improper statements by the State during closing arguments
and by misstating the burden of proof with regard to self-defense during his own closing argument.
Mr. Alexander has failed to develop any meaningful argument in support of these allegations,
however, and this Court declines to construct an argument on his behalf. See State v. Smith, 9th
Dist. Medina No. 17CA0035-M, 2017-Ohio-8680, ¶ 15, citing Cardone v. Cardone, 9th Dist.
Summit No. 18349, 1998 WL 224934, *8-9 (May 6, 1998). Mr. Alexander’s fifth assignment of
error is overruled.
ASSIGNMENT OF ERROR VI
THE CUMULATIVE EFFECT OF THE FIRST, SECOND, THIRD, FOURTH,
AND FIFTH ASSIGNMENTS OF ERROR DENIED JEREMIAH ALEXANDER
A FAIR TRIAL. FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS, U.S.
CONSTITUTION; ARTICLE 1, SECTIONS 10 AND 16, OHIO
CONSTITUTION. STATE V. DEMARCO, 31 OHIO ST.3D 191, 509 N.E.2D 1256
(1987).
23
{¶45} Mr. Alexander’s sixth assignment of error argues that even if none of his alleged
errors, standing alone, warrants reversal of his convictions, the cumulative effect of those errors
deprived him of a fair trial.
{¶46} “Under the doctrine of cumulative error, ‘a conviction will be reversed when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the
numerous instances of trial-court error does not individually constitute cause for reversal.’” State
v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, ¶ 156, quoting State v. Powell, 132 Ohio St.3d
233, 2012-Ohio-2577, ¶ 223. Because Mr. Alexander has not demonstrated the presence of
multiple errors, however, the cumulative error doctrine does not apply in this case. See State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 132. Mr. Alexander’s sixth assignment of error is
overruled.
III.
{¶47} Mr. Alexander’s assignments of error are overruled. The judgment of the Summit
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
24
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SUTTON, P. J.
CONCURS.
CARR, J.
DISSENTS.
APPEARANCES:
VICTORIA BADER and TIMOTHY B. HACKETT, Assistant State Public Defenders, for
Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.