State v. Malone , 2024 Ohio 5004 ( 2024 )

[Cite as State v. Malone, 2024-Ohio-5004.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113495
v. :
LASHOND MALONE, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 17, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-672968-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Halie Turigliatti, Assistant Prosecuting
Attorney, for appellee.
Jonathan N. Garver, for appellant.
EILEEN A. GALLAGHER, P.J.:
Lashond Malone, Jr. (“Malone”), appeals his convictions for
attempted murder and felonious assault with firearm specifications and his
accompanying prison sentence. For the reasons that follow, we affirm.
I. Facts and Procedural History
On August 4, 2021, Malone went to visit his cousin, Darnell Jordan,
Jr. (“DJ”), who lives with his parents at 9809 Columbia Avenue in Cleveland. After
speaking with his uncle, Darnell Jordan, Sr. (“Darnell”), and aunt, Eboni Wright
(“Eboni”), Malone went upstairs to DJ’s bedroom. When Malone opened the
bedroom door, he saw and shot Deven Wheat (“Wheat”). Malone asserted that he
acted in self-defense because Wheat pointed a gun at him when he opened the
bedroom door.
On August 12, 2022, a Cuyahoga County Grand Jury returned a four-
count indictment charging Malone with attempted murder, two counts of felonious
assault and improperly discharging a firearm at or into a habitation, all with one-
and three-year firearm specifications. After resting, the State dismissed the charge
of improperly discharging a firearm into habitation. Malone was found to be guilty
at the conclusion of a jury trial of attempted murder, both felonious assault charges
and their attendant one- and three-year firearm specifications.
On November 21, 2023, the court sentenced Malone to an aggregate
term of 10 to 12 years in prison. The court merged Malone’s three convictions as
allied offenses and the State elected to proceed to sentencing on the charge of
attempted murder. The court sentenced Malone to four-to-six years in prison on
the attempted murder and two three-year terms in prison on the firearm
specifications. The court ran all sentences consecutive to one another.
Malone appealed, raising the following assignments of error for our
review:
I. The evidence is insufficient to support Appellant’s convictions.
II. Appellant’s convictions are against the manifest weight of the
evidence.
III. The trial court committed prejudicial error by allowing the jury to
view body cam video/audio recordings of distraught members of the
victim’s family in violation of Evid.R. 402 and Evid.R. 403.
IV. The trial court committed prejudicial error by allowing the state to
introduce evidence that Appellant was in possession of a firearm at the
time of his arrest 11 months after the shooting.
V. The trial court committed prejudicial error by giving a jury
instruction on flight which violated Appellant’s right to remain silent
and . . . his right to a fair trial guaranteed by the Fifth and Fourteenth
Amendments to the Constitution of the United States and Art[i]cle I.
Section 10 and 16 of the Constitution of the State of Ohio.
VI. The trial court denied Appellant due process of law and violated
[R.C.] 2941.25 by requiring Appellant to serve a[n] additional 3-year
mandatory term of imprisonment on the firearm specification in Count
III to be served prior to and consecutive to the mandatory term of
imprisonment on the firearm specification in Count I after finding that
Counts I and III are [allied] offenses of similar import[] and merge,
pursuant to [R.C.] 2941.25, and after the state elected to proceed on
Count I.
II. Trial Testimony and Evidence
A. Patrol Officer Michael Mazanec, Jr.
Michael Mazanec, Jr. (“Mazanec”), testified that he was working as a
patrol officer for the Cleveland Division of Police on August 4, 2021 when he and his
partner responded to a call of “male shot” at 9809 Columbia Avenue. When they
arrived at the scene, Cleveland Emergency Medical Services (“EMS”) was already on
scene and “[t]here were some people outside on the street as well.” Mazanec and his
partner rendered the scene safe and determined that no suspects remained on the
premises. According to Mazanec, he observed Wheat lying on the floor in DJ’s
bedroom with EMS providing aid to him. Mazanec further testified that the victim
“was conscious and breathing, but he was shot multiple times to the — it appeared
to be the abdomen or torso.” Mazanec testified that he did not speak to Wheat, but
he and his partner began interviewing possible witnesses, including three people
who were residents of the house. Mazanec did not testify as to the identity of these
three witnesses other than stating “[t]hey say they were family members.” Two of
the witnesses identified a suspect in the shooting and stated that the suspect had left
the house. According to Mazanec, the suspect was the nephew of these two
witnesses.
Mazanec further testified that a crime scene unit responded to the
scene to photograph and recover evidence as did Detective Shaun Polocy. According
to Mazanec, EMS transported Wheat to the hospital.
Mazanec testified that both he and his partner were wearing body
cameras at the scene.
Over objection, the State played portions of Mazanec’s and his
partner’s body-camera videos for the jury. The videos depicted the officers arriving
on scene as well as EMS and several people who were already there when the police
arrived. Mazanec did not testify as to the identity of these people. In one of the
videos, an officer can be heard asking the people who were standing outside on and
around the front porch, “Who shot him?” Two people, a man and a woman,
responded, “Nobody here. He’s gone.” The officer asked, “Who’s gone?” The
woman responded, “The person who shot him.”
The videos also showed the officers as they went upstairs to ensure
that it was safe for EMS to enter the house. While upstairs, an officer asked, “So,
what happened?” A woman said, “My nephew f—— up.” The officer asked the
woman, “Who’s your nephew?” A man answered, “Lashond Malone.” One of the
videos also depicted an officer approaching Wheat, who was lying on the floor. This
officer asked Wheat, “Who shot you?” A male voice off camera responded, “Lashond
Malone.”
On cross-examination, Mazanec testified that a gun was recovered
from the bedroom after the shooting. “It was recovered — someone notified us that
there was a gun in the room, where it was located, and it was recovered by a police
officer. I’m not sure who exactly.” Asked “whether or not it was the uncle who
directed the police officers where the location of the firearm was,” Mazanec replied,
“I believe so.”
B. Deven Wheat
Wheat, who began by stating that he did not want to testify in this trial
but, “You all forcing me to be here,” said he was currently residing in prison after
pleading guilty to felonious assault and having weapons while under disability.
According to Wheat, he and Malone “used to be friends.” Wheat has known Malone
for approximately ten years “[f]rom the neighborhood of where my father stays.”
Asked what occurred “to cause you guys to stop being friends,” Wheat said, “He shot
me.” Wheat testified about a “beef” he and Malone had in July 2021, just prior to
the shooting at issue in the instant case: “I mean — he had — he set my car on fire.
I tried to fight him. My family and friends looked up, and then I got shot.” According
to Wheat, he wanted to fight Malone with “fists.” Wheat testified that he did not
have a gun that day. Wheat further testified that “DJ, his father, his grandad” broke
up that fight and Malone left. Wheat testified that, after this, his relationship with
Malone was “over.”
The next time Wheat saw Malone was on August 4, 2021, the day of
the shooting. Wheat was in the hospital that morning because his son, who was born
prematurely in July, was having a medical procedure. Wheat left the hospital,
dropped his girlfriend off, went home to grab a gun and went to DJ’s house to
“smoke.” According to Wheat, he was going to sell the gun to DJ. Wheat arrived at
DJ’s house and Darnell, Eboni and DJ’s grandad were there. Wheat went upstairs
to DJ’s bedroom and sat in a metal chair next to the bed. Wheat sold DJ the gun for
$250 and put the gun on the floor “[p]robably like 2 feet in front of my feet.” Wheat
admitted that, from the chair, he would have been able to reach down and grab the
gun.
Wheat testified that, while he and DJ were in DJ’s bedroom, “[t]he
door pushed open and I was getting shot.” According to Wheat, he was not holding
his gun when this happened. Rather, the gun was “[i]n the same spot . . . on the
floor.” Wheat testified that he did not grab the gun from the floor and he did not
point the gun towards the bedroom door. Wheat testified that he saw “an arm and
a gun” come through the slightly opened door. Wheat testified that he was shot
“[p]robably ten” times but he did not see who the shooter was.
The prosecutor showed Wheat a picture of a gun that the police found
in the top drawer of a nightstand in DJ’s bedroom. Wheat testified that “DJ’s father
put it there” after Wheat was shot. According to Wheat, DJ and Malone are cousins,
and Darnell is Malone’s uncle.
Wheat testified that after he was shot, he was transported by EMS to
“the hospital.” Wheat underwent four surgeries and was released from the hospital
on August 26, 2021. Wheat was in “rehab” for the next three weeks where he had to
learn how to walk again. After being released from rehab, Wheat moved in with his
mother because he was not able to fully care for himself.
Wheat testified that, on August 4, 2021, he did not threaten Malone,
point a gun at anyone, shoot a gun or believe he was going to see Malone. Wheat
again testified that he was not holding a gun when he was shot.
On cross-examination, Wheat was asked to explain why his DNA and
blood were found on the gun in the nightstand drawer. Wheat testified that “[t]here
was blood everywhere in the room . . . . I was sitting in, like, a pool of blood.” Wheat
also testified that, even though he sold the gun found in the nightstand drawer to DJ
on the day of the shooting, DJ never “handled the gun” that day.
C. Detective Thomas Connole
Detective Thomas Connole (“Connole”) testified that he is a crime
scene detective with the City of Cleveland, Division of Police. On August 4, 2021,
Connole received a call for a “felonious assault shooting” at 9809 Columbia. He and
his partner responded to the call and they marked the scene for evidence and took
photographs. Connole testified that he collected five .40-caliber cartridge casings
that were found on the floor in the bedroom. He further identified a Smith & Wesson
9 mm pistol that was found in the top drawer of a nightstand in the bedroom. He
also collected swabs of suspected blood from the floor in the bedroom, “swabs of a
sample of touch DNA from the firearm” and swabs of the casings.
Connole identified a “spent bullet” that was “recovered at the hospital
and given to” the police and also testified that the 40-caliber cartridge casings that
were found at the scene could not have been fired from the 9 mm gun recovered
from the nightstand. Connole testified that he was “not aware of the suspect” in the
case at hand.
On cross-examination, Connole testified that he personally saw blood
on the firearm found in the nightstand drawer. He further testified that the
“magazine” portion of this gun was not swabbed for DNA. He also testified that DNA
found on the magazine of a gun could “possibly” be used to help determine who
loaded that gun. However, according to Connole, he typically does not swab
magazines for DNA, “because normally the exterior is where the gun is handled the
most and where you’re most likely to get a sample from.”
On redirect examination, Connole testified that “[w]e didn’t believe
the gun that was on scene had anything to do with the crime, but we swabbed it
anyway just so we could — just to document who was probably the last one to touch
it.” Connole clarified that only 40-caliber casings were found on the scene, “which
would show that [the firearm found in the nightstand] wasn’t [the] gun that was
fired in that room.”
D. Detective Shaun Polocy
Detective Shaun Polocy (“Polocy”) testified that he is a detective with
the Cleveland Division of Police. On August 4, 2021, he was assigned to investigate
“a case with a victim Deven Wheat,” and he arrived at the scene when the “[o]fficers
were finishing securing the area . . . .” EMS had already transported Wheat to the
hospital by the time Det. Polocy arrived. Det. Polocy interviewed the homeowners,
Eboni and Darnell.
We learned that Lashond Malone arrived on scene on a dirt bike. We
then learned that Lashond went upstairs into the second-floor
bedroom, which is DJ’s room. DJ is Darnell’s son. They have the same
name. He’s a junior. They have all just called him DJ, so that’s how we
kind of differentiate between Darnell who is the dad, DJ who is the son.
We also knew that at the time prior to Lashond’s arrival that Deven, our
gentleman that was shot, and DJ were playing video games upstairs in
DJ’s second floor bedroom.
So we learned that Lashond arrived on scene on a dirt bike, walked up
the steps . . . .
In the second-floor bedroom, the door was opened and at that moment
in time a gunshot rang out. Short time after gunshots rang out,
Lashond exited the home. That was after the shots rang out.
Polocy further testified that, as part of his investigation, he learned
that Wheat “was struck multiple times” by bullets. Asked if any of the witnesses who
were at the scene of the shooting were cooperative with the investigation after
August 4, 2021, the day of the shooting, Polocy responded, “No. I had a small
amount of cooperation from . . . DJ, but it was mostly in regards to him acquiring
his two cellphones.” Polocy determined that these cell phones were not needed as
part of the investigation and released them back to DJ.
According to Polocy, police knew who was in the bedroom when the
shooting occurred. As part of the investigation, they were provided the name
“Lashond Malone” as the suspect in the shooting. Polocy testified that Malone was
not on scene when the police arrived, approximately 15-20 minutes after the
shooting. The witnesses at the scene explained to Polocy that there was a firearm in
the nightstand from where Polocy recovered it and there “was a small amount of
blood on the side of the handle.” Polocy further testified that “[t]here was a match
from the swab from the firearm and the DNA standard” from Wheat. Polocy
learned, through his investigation, that this gun, a 9 mm, belonged to Wheat.
According to Polocy, the swabs from the cartridge casings found at the scene came
back from testing with “no DNA profile.”
Polocy testified about video footage from the body camera he was
wearing at the scene on the day of the shooting, showing him gathering evidence
from the second-floor bedroom. A portion of this body-camera video was played for
the jury without audio.
According to Polocy, he was unable to speak to Wheat until
approximately two weeks after the shooting when “they [took] the tube out of the
throat and [he was] able to breathe on his own.” After interviewing Wheat, a warrant
was issued for Malone’s arrest and he was arrested “sometime late in 2022.”
On cross-examination, Polocy testified that he talked to “everybody
that was on scene” after the shooting, including Eboni, Darnell and DJ. After
Polocy’s testimony, the State rested its case.
E. Lashond Malone, Jr.
Malone testified in his own defense. According to Malone, he and
Wheat were “long time” friends, but in the summer of 2021, “the relationship
changed when [Wheat] had criminal problems with another person.” Malone
testified that people were “threatening to hurt” Wheat, and Malone “relayed the
message to him.” However, according to Malone, Wheat “blew up on me and made
it like I was the person spreading that rumor or I was the person intending to bring
harm to him or whatever, so he took it to another level.”
The next time Malone had contact with Wheat was at the house at
9809 Columbia. Malone did not remember the exact date, but it was before
August 4, 2021. DJ invited Malone to the house and, when Malone arrived, Wheat,
DJ and Darnell were on the porch. At the time, Malone was on crutches because he
had been “shot in a separate incident.” According to Malone, Wheat “rushed me,
knocks me off my crutches, accuses me of burning his vehicle down.” Malone then
got up and went to the porch. Malone testified that Wheat “pulls out a firearm. He’s
sitting on the chair. Now my mind is, he’s trying to kill me.” Malone further testified
about what happened next:
I blocked him off from the chair so he couldn’t get to the chair. Now
when — I’m sitting on the porch talking to the folk. He still badgering
me about me burning down his car or whatever he’s saying.
So my uncle, he got upset about the confrontation. He said, let me out
of the driveway. I had him blocked in the driveway.
That was my escape route. If my uncle never would have requested me
to let him out of the driveway, I don’t know if I would have made it away
from Columbia unharmed.
So I heard him get out of the car. I make him seem that I’m about to let
my uncle out, but I just hurry up and speed up, shoo, leave.
That was — that was the first time I knew, like, this dude, he’s coming
at me. He’s coming at me aggressively. He’s not playing. And that was
the last time I seen him.
On August 4, 2021, Malone got a new dirt bike and rode it to Darnell’s
house to show him. The front door was locked and, when he knocked, Darnell
opened the door and Malone showed Darnell the new bike and Malone entered the
house. Malone spoke with Darnell and Eboni for “about ten to 15 minutes” before
asking where his cousin DJ was. Darnell told him that DJ was upstairs and then
Malone went upstairs while he had a firearm in his possession. Malone testified as
follows about what occurred next:
When I walk upstairs, I get to the stairs. I go to my cousin room. I open
the — the door was closed. I open the door. As soon as I lean in and
open the door, me and [Wheat], we caught eye contact. The gun was
sitting in his lap. He grabbed the firearm, pointed it at me.
I step back. I grab my firearm out of my pocket and I just began to fire
because once he shot my car up, I knew that he was — he don’t — he
don’t got no regard. He don’t have regard for nobody.
Malone’s attorney asked Malone if he was in fear for his life. Malone
answered, “Yes, I was. [Wheat] showed me on multiple occasions that the danger,
that you have a gun and that you have an agenda against me, and I was not going to
sit there and let that be me that day. I’m sorry. I’m sorry.” Defense counsel asked
Malone if he recalled how many times he fired the gun. Malone replied, “I don’t
know how many times I fired. I didn’t even know I struck him.”
Malone testified that he went “on the run . . . that whole entire year...
I never knew anything. I didn’t even know I struck the man.” According to Malone,
he went to his “family’s house.” Malone testified that, from August 4, 2021 to the
day of his testimony in this trial, he had no “real communication” with Wheat. “It
was just him basically still — they putting my picture on the Internet, crossing my
face out, putting like—like comical emojis over here. Like he put a clown over my
face. Like, it was just like little stuff. It wasn’t like words, or I didn’t see him with
my own eyes or anything like that. But they were still making it known that they was
not dealing.”
Malone’s attorney asked him about “when [his] vehicle was shot at.”
Malone testified that his grandmother lives on the same street as Wheat’s mother.
One day, “in that short two-week, two-or three-week span,” Malone was with his
girlfriend driving on that street, and he saw Wheat standing in front of his father’s
gold Lincoln. The two “lock eye contact.” Malone started to parallel park on the
street when “the gold Lincoln flies down the street, let off about five or six shots. My
car is shot up. My girl is in the car with me. Bullets flying through her clothes and
her purse and everything.” According to Malone, he asked “everybody” if they saw
anything, and “[t]hey say, it’s a gold Lincoln. Now I know it’s him.”
To conclude Malone’s direct testimony, his attorney asked him, “So,
Lashond, your position is that you did what you did because you were in fear of your
life?” to which Malone responded: “If I wouldn’t — I don’t know — to this day I don’t
know why he didn’t fire. But if I wouldn’t have fired, I probably wouldn’t have made
it out of that house.” Asked if he was “sorry that this happened,” Malone testified as
follows:
Yes, I am. I’m still sorry, even though I’m not the aggressor, never was
the aggressor. I never brought any problems to him, I still feel — I still
feel the way. Like today was the first day I seen him since, since any of
this stuff happened. Like, that just — that put a — an ill feeling in my
body, just to see him in this position and for me to even be in this
position. Period. Like, it just a crazy situation, man.
On cross-examination, the prosecutor asked Malone, “[W]hen you
were arrested on this warrant, you were arrested with a gun, right?” Malone
answered, “Yes.” Malone testified that he was arrested in July 2022. Malone
testified that, after the shooting, he tried to check if any warrants had been issued
for his arrest. “I just called the first — the first attorney I looked up on Google, I
called him. And then for a year straight I literally called clerk of courts every
morning before I left my house.” The prosecutor asked Malone, “So if I have a signed
warrant . . . from the clerk of courts . . . that . . . was filed the day after this occurred
on August 5th at 9:35 a.m., they never told you that that existed?” Malone replied,
“No.”
Malone testified that he did not turn in the gun that he used to shoot
Wheat. “I threw it away. I got nervous and threw it away.” Malone admitted that
he did not call 9-1-1 after the shooting and he did not reach out to Wheat to see if he
was okay. Malone further testified that he lived with Wheat’s family “for a period of
time.” At some point, the Wheats asked Malone to leave. After he left, Malone lived
“house to house,” but he primarily stayed with his “granddad, [Darnell], Eboni, and
DJ” at the Columbia Avenue address. According to Malone, he was “very close” with
his family at the Columbia Avenue address “[u]p until everything hit the fan . . . .”
The prosecutor asked Malone about the day of the shooting, August 4,
2021 and noted that Malone testified on direct examination that when he arrived to
show his family his new dirt bike, nobody was on the front porch. The prosecutor
asked Malone, “So if your aunt and uncle both said they were on the porch when you
got there, that would be a lie?” Malone answered, “Yes.” The following colloquy
occurred regarding what happened after Malone went upstairs to DJ’s bedroom.
THE STATE: You go upstairs, and you see [Wheat] and you see DJ,
right?
MALONE: Uh-huh.
...
THE STATE: All right. And where was DJ sitting when you first saw
him?
MALONE: On the right side of the edge of the bed.
THE STATE: Okay. And he was close, right?
MALONE: Uh-huh.
THE STATE: At that point can you see [Wheat]?
MALONE: Not until I opened the door.
THE STATE: Okay. So when you opened the door and you see
[Wheat], you said that the gun was on his lap, right?
MALONE: Yes.
THE STATE: How long until you pull your gun and start firing at
[Wheat]?
MALONE: Until he pulled — pointed it at me . . . . He took the gun off
of his lap and pointed it at me, directly at me. And I backed up. My
gun was in my jacket pocket. I had an Adidas jacket that zips with
pockets. I just grabbed my firearm.
THE STATE: How far did you back up?
MALONE: It had to be like — because when I opened up the door I
didn’t expect [Wheat] to [be] there because they didn’t tell me that prior
to me coming in the house. My uncle witnessed everything he done to
me that whole entire week. We had conversations, can you please keep
me away from him. He’s on some type of drug or whatever they got
him acting this way, keep me away from him.
So when I get in the house, he never once warned me, hey, he’s up there.
So when I go up there, it’s like a surprise, almost like an ambush. Like
my whole body was in the room. And then I’m looking at him like I’m
looking at you. As he point the gun at me, I take about one or two steps
out of the room so like I’m not right as closest to him as I was. And then
I started to fire.
Malone testified that he had backed up into the hallway prior to firing
his gun into DJ’s bedroom. Asked if he meant to kill Wheat when he fired his gun,
Malone answered, “I just fired so I would not be getting hurt and shot because me
going — when I walked in the room, seconds into being in the room I knew he had
the gun.” Asked if he meant to shoot Wheat, Malone replied, “No . . . . I don’t think
that implies that I meant to kill him. I didn’t mean to bring no harm his way.”
Malone’s testimony on cross-examination continued:
THE STATE: You didn’t mean to bring any harm his way. You just shot
him because you didn’t have a choice.
MALONE: Yes, ma’am.
THE STATE: Where were you firing when you shot him?
MALONE: What do you mean?
THE STATE: Where were you firing at [Wheat] when you shot him?
MALONE: I don’t know.
THE STATE: You weren’t — were you aiming?
MALONE: No.
THE STATE: So were you just spraying indiscriminately into the
bedroom?
MALONE: The shots that I fired was so that I could make it out of that
house alive. I don’t know what happened. . . . Like, I was firing the shots
so I could be able to start to go down the stairs because the stairs is right
behind me . . . . I was shooting from a frantic standpoint, man. It’s not
— it’s not like that. It’s not the motive.
THE STATE: So you weren’t defending yourself. You were trying to
get away?
MALONE: I was defending myself once I seen the gun being pointed
at me. The gun was already pointed at me before I even grabbed my
firearm. I only had that firearm because of what he been doing to me
for the last three weeks.
. . . It’s been 2016 since I last carried a firearm. I haven’t been a part of
that life. I haven’t been doing nothing like that, so I only had a gun for
protection from him. He wasn’t stopped messing with me. He would
not leave me alone. And it — from social, physical, verbal, every form
of threat he could do [to] harm me, he did it in that two-, three-week
span.
THE STATE: Were you firing at [Wheat], or were you trying to get
away?
MALONE: Ma’am, I fired the gun because I saw his gun.
THE STATE: Okay. And you’re just firing indiscriminately?
MALONE: What does that mean?
THE STATE: You’re not trying to aim at anything. You were just firing
and whoever gets hit, get hit?
MALONE: I was firing so that I wouldn’t get shot.
...
THE STATE: So if [Wheat] was shot five times, you pulled that trigger
five times, right?
MALONE: Correct.
...
THE STATE: How many times did you shoot [Wheat] before he fell off
the chair?
MALONE: I don’t know. I never seen him fall off the chair.
THE STATE: So all five shots, he was struck five times while he was
sitting in the chair?
MALONE: I never — I never knew he was struck. I never saw him fall
out of the chair. The shots that I fired were so that I could make it out
of the house.
...
THE STATE: Were you looking at him when you shot him? . . .
MALONE: I seen — after I seen him with a gun, I don’t know what I
saw, ma’am. I literally was firing out of being scared. I was scared. I
was scared. . . . I don’t know what else to say. I was nervous.
. . . I know him personally, so I know whatever happened to that gun to
stop him from firing, God was on my side, because he would have shot
me with no remorse that day. And he actually had the opportunity to
do it before I did.
THE STATE: And he didn’t take that opportunity, did he?
MALONE: I don’t know what happened. Like I said, I don’t know.
THE STATE: Did he shoot you?
MALONE: No.
THE STATE: Did he fire a gun?
MALONE: No.
THE STATE: So you don’t know what you were shooting at that day,
you were just shooting to get away?
MALONE: Yes, I was.
THE STATE: So after this happened, you run out of the house and flee,
right?
MALONE: Yes.
Malone explained that he fled the house because everyone there,
“with the exception of Eboni . . . knew what was going on . . . I could no longer trust
them after that day. They let me in the house with the man they know has been
badgering me and causing me problems. They willingly let me go upstairs without
knowledge of him being there, so I did not trust them.” The prosecutor asked
Malone if he wanted “this jury to believe today that you believe Darnell, Sr. and DJ
set you up to get shot?” Malone answered, “No. I’m not even going to say that. I’m
going to say no. But I’m saying they — they weren’t careful with my safety. I can say
that. I want the jurors to know that. They were not. They were not careful with my
life.”
Under redirect examination, Malone’s attorney asked him to “tell this
jury why you pulled your weapon and started shooting your gun.” Malone answered,
“I pulled my weapon when I saw a firearm because after I entered the room, I saw a
gun being pointed in my face. And prior — and prior to getting into the room, I
already saw the gun on his lap, and once me and him locked eye contact, he grabbed
it and pointed it at me. There [is] no more to believe.”
Under recross-examination, Malone stated, “I’m not the reason that
the gun had to be fired because I didn’t put [Wheat’s] life in danger in no shape,
form, or fashion.” The prosecutor asked Malone if Malone heard Wheat testify that
Wheat was on his phone when DJ’s bedroom door opened. “And is it possible that
he was on his phone and not pointing a gun in his lap?” Malone answered, “No . . .
I’m telling you I saw the gun. Then I saw him grab it and point it at me.” The
prosecutor asked Malone if he saw “an opportunity to shoot [Wheat] because of a
beef.” Malone answered, “No. No. We never had no beef. He had a problem with
me.”
III. Law and Analysis
A. Sufficiency of the Evidence
Malone argues in this first assignment of error that the “evidence in
the present case is insufficient, as a matter of law, because no reasonable person
could have concluded from the evidence adduced at trial that the state had proven
beyond a reasonable doubt that the shooting was not in self-defense.”
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state has met its burden of production at
trial. State v. Hunter, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d
380, 390 (1997). Whether the evidence is legally sufficient to support a verdict is a
question of law. Thompkins at 386.
“An appellate court’s function when reviewing the sufficiency of
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince a reasonable
juror of the defendant’s guilt beyond a reasonable doubt.” State v. Balinski, 2022-
Ohio-3227, ¶ 43 (8th Dist.). See also State v. Bankston, 2009-Ohio-754, ¶ 4 (10th
Dist.) (“[I]n a sufficiency of the evidence review, an appellate court does not engage
in a determination of witness credibility; rather, it essentially assumes the State’s
witnesses testified truthfully and determines if that testimony satisfies each element
of the crime.”).
In the instant case, Malone was found guilty of one count of
attempted murder in violation of R.C. 2903.02(A) and 2923.02(A), one count of
felonious assault in violation of R.C. 2903.11(A)(1) and one count of felonious assault
in violation of R.C. 2903.11(A)(2). On appeal, Malone does not take issue with the
sufficiency of the evidence concerning the elements of these offenses. It is
undisputed that Malone shot Wheat several times causing serious physical harm,
thus satisfying the elements of attempted murder and felonious assault. Rather,
Malone focuses his sufficiency of the evidence argument on the issue of self-defense.
1. Self-Defense
In March 2019, Ohio legislators amended R.C. 2901.05, which is the
statute governing self-defense, to change the burden of proof. In State v.
Messenger, 2022-Ohio-4562, ¶ 21, the Ohio Supreme Court held that the “plain
language of R.C. 2901.05(A) reflects that self-defense is still an affirmative defense
and that the burden of production is still on the defendant.” R.C. 2901.05(A) states,
in part, that the “burden of going forward with the evidence of an affirmative defense
. . . is upon the accused.”
Pursuant to R.C. 2901.05(B)(1),
A person is allowed to act in self-defense . . . . 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.
When a defendant properly raises self-defense at trial, the burden
shifts to the State to prove, beyond a reasonable doubt, that the defendant: (1) was
at “fault in creating the situation giving rise to the affray”; (2) “did not have 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 force” or (3)
“must not have violated any duty to retreat or avoid danger.” State v. Jackson,
2020-Ohio-1606, ¶ 17 (8th Dist.). In State v. Walker, 2021-Ohio-2037, ¶ 13 (8th
Dist.), this court held that “the state need only disprove one of the elements of self-
defense beyond a reasonable doubt at trial to sustain its burden . . . .” Furthermore,
a “person acting in self-defense must use only that force that is reasonably necessary
and proportionate to the threat.” State v. Ellis, 2021-Ohio-1297, ¶ 26 (8th Dist.)
Upon review of the evidence, we find that Malone met his initial
burden of production at trial by raising the issue of self-defense. The burden then
shifted to the State to prove, beyond a reasonable doubt, that Malone did not act in
self-defense. In Messenger, 2022-Ohio-4562, the Ohio Supreme Court held that,
regarding the issue of self-defense, “the sufficiency-of-the-evidence standard of
review applies to [the defendant’s] burden of production and a manifest-weight-of-
the-evidence standard of review applies to the state’s burden of persuasion.”
Messenger at ¶ 26. The Messenger Court held that the “Tenth District [Court of
Appeals] correctly declined to review the state’s rebuttal of self-defense for
sufficiency of the evidence.” Id. at ¶ 27. See also State v. Scales, 2024-Ohio-2171,
¶ 26 (8th Dist.), citing Messenger (“The state’s duty to prove beyond a reasonable
doubt that a defendant did not act in self-defense is subject to a manifest weight of
the evidence review.”).
Accordingly, in following Messenger, we decline to review the
sufficiency of the State’s evidence regarding self-defense, and Malone’s first
assignment of error is overruled.
B. Manifest Weight of the Evidence
In Malone’s second assignment of error, he argues that his
convictions are against the manifest weight of the evidence and, therefore “must be
reversed,” because “the jury lost its way in rejecting a claim of self-defense.”
Specifically, he argues that this court should pay “attention to what was not proved.”
As an example, Malone argues that the State failed to present the testimony of DJ,
who witnessed the shooting or Darnell and Eboni who were present at the house at
the time of the shooting and when Malone fled the scene. Malone argues that the
State “relied solely upon the uncorroborated testimony” of Wheat, who was
incarcerated on unrelated charges at the time of trial, gave “inconsistent accounts of
the shooting” and “clearly had a motive to lie.” Essentially, Malone’s argument
centers around Malone’s and Wheat’s credibility.
A manifest weight of the evidence challenge attacks the credibility of
the evidence presented and questions whether the State met its burden of
persuasion. State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.). Weight of the
evidence “addresses the evidence’s effect of inducing belief,” i.e., “whose evidence is
more persuasive — the state’s or the defendant’s?” State v. Wilson, 2007-Ohio-
2202, ¶ 25, citing Thompkins, 78 Ohio St.3d 380, at 386-387. When considering an
appellant’s claim that a conviction is against the manifest weight of the evidence, the
appellate court functions as a “thirteenth juror” and may disagree “with the
factfinder’s resolution of . . . conflicting testimony.” Thompkins at 387, citing Tibbs
v. Florida, 457 U.S. 31, 42 (1982). The appellate court examines the entire record,
weighs the evidence and all reasonable inferences that may be drawn therefrom,
considers the witnesses’ credibility and determines 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.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
Reversal on manifest weight grounds is reserved for the “exceptional case in which
the evidence weighs heavily against the conviction.” Id.In State v. Flores-Santiago, 2020-Ohio-1274, ¶ 37-38 (8th Dist.), this
court set forth the law regarding challenges to the weight of the evidence concerning
inconsistent, uncorroborated and contradictory testimony from a single witness.
Physical evidence is not required to sustain a conviction against a
manifest weight challenge. See, e.g., State v. Robertson, 2018-Ohio-
2934, ¶ 32 (“[A] lack of physical evidence, standing alone, does not
render a defendant’s conviction against the manifest weight of the
evidence.”); State v. Rusnak, 2016-Ohio-7820, ¶ 30 (fact that no
physical evidence from the crime scene was presented at trial did not
render verdict against the manifest weight of the evidence); State v.
Thomas, 2018-Ohio-4345, ¶ 25 (fact that defendant’s conviction was
based solely on victim’s testimony and not any physical evidence did
not render his conviction against the manifest weight of the evidence).
A conviction may rest solely on the testimony of a single witness,
including the victim, if believed, and there is no requirement that a
victim’s testimony be corroborated to be believed. See, e.g., State v.
Black, 2019-Ohio-4977, ¶ 43; . . . State v. Robinson, 2014-Ohio-1624,
¶ 12 (‘“Even where discrepancies exist, eyewitness identification
testimony alone is sufficient to support a conviction so long as a
reasonable [factfinder] could find the eyewitness testimony to be
credible.”’), quoting State v. Johnson, 2014-Ohio-494, ¶ 52.
To support his argument that Wheat’s testimony was not credible,
Malone points to the following which was established at trial: Wheat had a criminal
history, including a conviction for which he was incarcerated at the time of trial.
Wheat did not want to be in court testifying. Wheat’s criminal history included
offenses involving dishonesty. For example, Wheat testified that he has a federal
conviction for “making a false statement in acquiring a firearm,” which occurred
post-August 4, 2021. Malone further argues that Wheat had a “selective memory,”
claiming that Wheat could not recall things he “likely knew” at trial. “For example,
Wheat testified that he could not recall where he purchased the gun he was allegedly
selling to DJ.” Malone alleges another example of Wheat’s “dishonesty” as follows:
“Wheat admitted that he had not mentioned that he was in possession of a firearm
at the time of the shooting or that he allegedly went to DJ’s to sell him a firearm
during his first interview with the police.” Malone argues that Wheat’s testimony
regarding selling a gun to DJ is uncorroborated and the State presented no evidence
that “such payment was ever made.”
Using the aforementioned examples, Malone argues on appeal that
Wheat’s dishonesty should undermine the credibility of his testimony.
Our review of the record shows that both Malone and Wheat testified
that they used to be friends but had a falling out prior to the shooting on August 4,
2021. The details of their testimony regarding this disagreement differ.
Furthermore, both Malone and Wheat testified that Malone shot Wheat
immediately after opening the door to DJ’s bedroom. Once again, the details of their
testimony regarding the shooting differ.
Malone testified on direct examination that he shot Wheat multiple
times when Wheat pointed a gun at him. According to Malone, when he opened the
door to DJ’s bedroom, Wheat had a gun in his lap. Malone testified that he and
Wheat “caught eye contact” and Wheat “grabbed the firearm, pointed it at me.”
Asked if he was in fear for his life when he shot Wheat, Malone testified, “Yes, I was.”
On cross-examination, Malone testified that he fired his gun so “he
would not be getting hurt and shot” and that he “didn’t mean to bring no harm
[Wheat’s] way.” Malone further testified that he did not know where he was firing
when he shot the gun. “The shots that I fired was so that I could make it out of that
house alive. I don’t know what happened . . . Like, I was firing the shots so I could
be able to start to go down the stairs . . . .” Malone additionally testified that he fired
his gun “because I saw [Wheat’s] gun” and “so that I wouldn’t get shot.” According
to Malone, he did not know whether his shots struck Wheat. The prosecutor asked
Malone, “So you don’t know what you were shooting at that day, you were just
shooting to get away?” Malone answered, “Yes, I was.”
Wheat, on the other hand, testified that when the door to DJ’s
bedroom opened, all he could see was an arm holding the gun that was shooting at
him. Wheat testified that he was not holding a gun nor did he point a gun at anyone
that day. Rather, Wheat testified that the gun he was selling to DJ was on the floor
near his feet. In other words, Wheat testified that the shooter, who he could not
identify, was not acting in self-defense.
This court has held that “[s]elf-defense claims are generally an issue
of credibility.” Walker, 2021-Ohio-2037, at ¶ 13 (8th Dist.). Furthermore, “a
defendant claiming self-defense concedes he had the purpose to commit the act, but
asserts that he was justified in his actions.” State v. Talley, 2006-Ohio-5322, ¶ 45
(8th Dist.). The jury heard all of the evidence at trial in this case and determined
that Malone was not acting in self-defense. Nothing in our review indicates that the
jury clearly lost its way and created a manifest miscarriage of justice in convicting
Malone of attempted murder and felonious assault.
Accordingly, Malone’s second assignment of error is overruled.
IV. Admissibility of Evidence
A. Standard of review
“The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180 (1987);
Evid.R. 402. Pursuant to Evid.R. 401, relevant evidence is “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” Relevant evidence is not admissible, however, “if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” Evid.R. 403(A). “Where evidence has been
improperly admitted in derogation of a criminal defendant’s constitutional rights,
the admission is harmless ‘beyond a reasonable doubt’ if the remaining evidence
alone comprises ‘overwhelming’ proof of defendant’s guilt.” State v. Williams, 6
Ohio St.3d 281, 290 (1983).
1. Body-Camera Video and Audio
In Malone’s third assignment of error, he argues that the admission
of the police officers’ body-camera videos was prejudicial in that it violated Evid.R.
402 and 403 and the “inflammatory nature” of the videos, which depicted
“distraught and angry members of the victim’s family,” deprived him of “his right to
a fair trial.”
We note that Mazanec authenticated the video from the body camera
he wore at the scene on the day of the shooting as well as the video from his partner’s
body camera and the footage is merely a different angle of the same events as they
were unfolding as they were standing next to one another. See Evid.R. 901(A)
(Authentication “is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.”). Furthermore, Polocy
authenticated the video from the body camera he wore when he recovered the
firearm from the top drawer of the nightstand in DJ’s bedroom.
Our review of the trial transcript shows that defense counsel objected
to the admission of the body-camera videos, arguing that the people who speak in
the videos would have to be brought in to testify to avoid hearsay issues. At trial, the
State responded by arguing that the videos were admissible under various hearsay
exceptions and the people who speak on the videos “are not cooperative with the
State of Ohio” and will not comply with issued subpoenas. As to the relevance of the
videos, the State argued that they show “the layout of the house, which I think is
important, both to the State’s theory and to the defense theory. That this is a two-
story home, that [Wheat is] found in the rear bedroom. It shows the layout of the
room. Whether or not . . . Malone contends self-defense, whether or not the layout
of the room lends itself to that . . . .”
Although the court allowed the videos to be played for the jury, it
stated the following on the record: “I don’t think the video[s are] worth seeing, but
I’ll allow it, but I just don’t — I mean, to me it doesn’t add anything. It’s just — what
we do try to do is to keep the jury from seeing stuff that’s extra prejudicial for no
probative value. So the part where you’re showing them, what’s the purpose of that
except to inflame the jury.”
Two of the three body-camera videos contain audio from the scene.
At issue in this case is when the witnesses identify Malone as the person who shot
Wheat and then fled the scene. As noted, these witnesses did not testify in Malone’s
trial. Our review of the videos reveals that nobody mentions anything about self-
defense.
Typically, we would review the admissibility of these out-of-court
statements under certain exceptions to the rule against hearsay, such as excited
utterance or present sense impression, or the Sixth Amendment right of
confrontation. See Evid.R. 803(1); 803(2); Sixth and Fourteenth Amendments to
the U.S. Const.; art. I, § 10 of the Ohio Const.; State v. Smith, 2023-Ohio-603 (8th
Dist.). However, in the case at hand, the identity of the person who shot Wheat is
not at issue. Malone admits to shooting Wheat five times but asserts that he acted
in self-defense. Furthermore, Malone testified that he fled the scene of the crime
and was “on the run” for the next year. Therefore, Malone being identified in the
body-camera videos as the shooter who fled the scene is cumulative evidence. The
Ohio Supreme Court has held that “in view of the cumulative nature of the contents
of [a hearsay] statement with respect to the other, properly admitted evidence at
trial, this error was harmless beyond a reasonable doubt.” State v. Williams, 38
Ohio St.3d 346, 353 (1988). See also State v. Fears, 86 Ohio St.3d 329, 339 (1999)
(“[T]he defense did not dispute that appellate shot [the victim] and we find that
under these facts, [hearsay] testimony was cumulative and constitutes harmless
error, since the error did not contribute to the verdict.”).
We turn to what can be seen, rather than heard, on the body-camera
videos in the instant case. They do not show the shooting but rather, the aftermath
of the shooting including the arrival of police to the scene, the recovery of the firearm
from the nightstand and the layout of DJ’s bedroom. To the extent the videos would
assist the trier of fact in determining whether Malone’s theory of self-defense is
plausible, the videos may be relevant. Pursuant to Evid.R. 403(A), relevant evidence
is not admissible “if its probative value is substantially outweighed by the danger of
unfair prejudice, of confusion of the issues, or of misleading the jury.” However,
because identity is not an issue, we cannot say that the admission of the videos
prejudiced Malone, confused the issues or misled the jury. See Crim.R. 52(A) (“Any
error, defect, irregularity, or variance which does not affect substantial rights shall
be disregarded.”).
The only issue for trial was whether Malone acted in self-defense
when he shot Wheat. Malone testified that he did. Wheat testified that Malone did
not. In reviewing Malone’s second assignment of error, we determined that his
convictions were not against the manifest weight of the evidence. In other words,
there was enough evidence in the record to convict Malone, notwithstanding the
police officers’ body-camera videos.
Accordingly, Malone’s third assignment of error is overruled.
2. Malone’s Possession of Firearm at Arrest
In his fourth assignment of error, Malone argues that “testimony
concerning [his] possession of a firearm at the time of his arrest 11 months after the
shooting” was “irrelevant and inadmissible,” because this firearm was not the gun
used in Wheat’s shooting. According to Malone, the “use of this highly inflammatory
evidence raised the specter of [him] as an ongoing threat to public safety.”
During Malone’s direct examination, he testified that he had not been
in trouble since 2016 when he was convicted of carrying a concealed weapon.
During Malone’s cross-examination, the State attempted to impeach Malone’s
“claims that he was staying away from illegal activities . . . .” The testimony Malone
takes issue with under this assignment of error follows:1
THE STATE: But when you were arrested on this warrant, you were
arrested with a gun, right?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
MALONE: Yes.
1 Malone also argues in his appellate brief that the State “milked this inflammatory
evidence for all it could, referring to it three times during final argument.” It is well-
established law that closing arguments are not evidence. State v. Weems, 2013-Ohio-
1343, ¶ 18 (8th Dist.); State v. Virostek, 2022-Ohio-1397, ¶ 99 (8th Dist.). Malone does
not challenge the State’s closing argument in this appeal. Therefore, we need not review
these remarks.
In his appellate brief under this assignment of error, Malone cites to
Evid.R. 402 and 403. He does not cite any case law, nor does he cite any Rules of
Evidence concerning the admissibility of character evidence or impeaching
witnesses. Rather, Malone summarily concludes that this evidence was irrelevant
and inadmissible without developing his argument as to why.
App.R. 16(A)(7) states that an appellant shall include in his or her
appellate brief “[a]n argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the record
on which appellant relies.” Appellate courts are not “obligated to search the record
or formulate legal arguments on behalf of the parties.” State v. Quarterman, 2014-
Ohio-4034, ¶ 19. See also Strauss v. Strauss, 2011-Ohio-3831, ¶ 72 (8th Dist.),
quoting Cardone v. Cardone, 1998 Ohio App. LEXIS 2028 (9th Dist. May 6, 1998)
(‘“If an argument exists that can support this assigned error, it is not this court’s duty
to root it out.”’). “An appellate court is not obligated to construct or develop
arguments to support a defendant’s assignment of error and will not guess at
undeveloped claims on appeal.” (Cleaned up.) State v. Jones, 2020-Ohio-3367,
¶ 68 (8th Dist.).
In Jones, this court found that the appellant’s argument was “nothing
more than a blanket statement; it is devoid of any meaningful analysis or supporting
authority. This fact alone would be an adequate basis upon which to dispose of
Jones’ assignment of error.” Id. at ¶ 69. Nonetheless, even if we were to consider
the merits of Malone’s argument that evidence of him having a gun when he was
arrested for the offenses in the case at hand was inadmissible, we would find that
the court did not abuse its discretion when it allowed the testimony.
Generally, the Rules of Evidence “prohibit the use of character
evidence to show that an accused has the propensity to commit the crime with which
he or she stands charged . . . .” State v. Rosas, 2021-Ohio-3677, ¶ 54 (8th Dist.),
citing State v. Thompson, 66 Ohio St.2d 496, 497 (1981). However, Evid.R.
404(A)(1) permits criminal defendants to offer evidence of their good character to
show that they did not commit the offense with which they are charged. See Rosas
at ¶ 56. This court has held that, by introducing evidence of their good character,
defendants ‘“opened the door’ for the prosecution to rebut or impeach the character
evidence on cross-examination.” Id. at ¶ 59. See also State v. Danzy, 2021-Ohio-
1483, ¶ 39 (8th Dist.) (When the defendant “portrayed himself as the type of person
who was quiet, private, . . . and not violent,” the trial court properly permitted the
State to rebut this testimony with “evidence to show that Danzy did not possess the
character traits of a nonviolent person.”).
Accordingly, the trial court acted within its discretion when it allowed
Malone to answer one question concerning whether he had a firearm in his
possession when he was arrested. Malone’s fourth assignment of error is overruled.
3. Jury Instructions on Flight
In his fifth assignment of error, Malone argues that the flight
instruction the court gave to the jury impermissibly “burden[s] the defendant with
providing an explanation for his conduct and thus violate[s] the privilege against
self-incrimination and the right to a fair trial.” To support this argument, Malone
cites to State v. Fields, 35 Ohio App.2d 140, 144-145 (1st Dist. 1973), in which the
court held that the following flight jury instruction “unlawfully compromises the
undoubted right of a citizen under the Fifth and Fourteenth Amendments [to] the
United States Constitution to remain silent and, further, not to have the silence
converted into evidence against him”:
Now, in this case, there is evidence tending to indicate that both of the
defendants fled from the vicinity of the alleged crime. In this
connection, you are instructed that flight in and of itself does not raise
a presumption of guilt, but unless satisfactorily explained, it tends to
show consciousness of guilt or a guilty connection with the crime. If,
therefore, you find that one or both of the defendants did flee from the
scene of the alleged crime, and one or both have not satisfactorily
explained their conduct in so doing, you may consider this
circumstance together with all other facts and circumstances in the case
in determining the guilt or innocence of one or both of the defendants.
(Emphasis in original.)
In the case at hand, the court instructed the jury as follows regarding
the issue of flight:
Testimony has been admitted indicating that the defendant fled the
scene. You are instructed that the fact that the defendant fled the scene
does not raise a presumption of guilt, but it may tend to indicate the
defendant’s consciousness of guilt.
If you find that the facts do not support that the defendant fled the
scene, or if you find that some other motive prompted the defendant’s
conduct, or if you are unable to decide what the defendant’s motivation
was, then you should not consider this evidence for any purpose.
However, if you find that the facts support the defendant engaged in
such conduct, and if you decide that the defendant was motivated by a
consciousness of guilt, you may, but are not required to, consider that
evidence in deciding whether the defendant is guilty of the crimes
charged. You alone will determine what weight, if any, to give to this
evidence.
Appellate courts review a trial court’s jury instructions, or the refusal
to give such, for an abuse of discretion. State v. Adams, 2015-Ohio-3954, ¶ 240.
“Requested jury instructions should ordinarily be given if they are correct
statements of law, if they are applicable to the facts in the case, and if reasonable
minds might reach the conclusion sought by the requested instruction.” Id.On appeal, Malone challenges only the first prong of the Adams test,
i.e., whether the jury instruction regarding flight in his case was a correct statement
of law. Indeed, a flight jury instruction is applicable to the facts of this case. When
the prosecutor asked Malone, “[S]o after this happened, you run out of the house
and flee, right[?]” Malone answered, “Yes.” Malone further testified that he went
“on the run . . . that whole entire year” after shooting Wheat. See State v. Wesley,
2002-Ohio-4429, ¶ 19 (8th Dist.) (“Flight means some escape or affirmative attempt
to avoid apprehension.”).
In State v. Willis, 2014-Ohio-114, ¶ 46 (8th Dist.), this court found no
error in the trial court’s flight instruction provided to the jury, which was identical
to the flight instruction given to the jury in the instant case. “[C]ontrary to Willis’s
assertion, the wording of the instruction does not compromise Willis’s
constitutional right to remain silent. Unlike the flight instruction in State v. Fields,
35 Ohio App.2d 140 . . . (1st Dist. 1973) this instruction did not require Willis to
‘satisfactorily explain’ his actions.” Willis at ¶ 45.
As stated previously, the jury instruction regarding flight in Willis is
identical to the jury instruction regarding flight provided in this case. As we held in
Willis, this instruction does not run afoul of the holding in Fields because it does not
require Malone to explain his conduct.
Accordingly, the trial court did not abuse its discretion when it
instructed the jury regarding flight and Malone’s fifth assignment of error is
overruled.
4. Consecutive Firearm Specification Prison Sentences
and Allied Offenses
In his sixth and final assignment of error, Malone argues that he was
denied due process of law when the trial court imposed an “additional 3-year
mandatory term of imprisonment on the firearm specification in Count III to be
served prior to and consecutive to the mandatory term of imprisonment on the
firearm specification in Count I after finding that Counts I and III are [allied]
offenses of similar import[]” and merge for the purpose of sentencing.
In State v. Bollar, 2022-Ohio-4370, ¶ 19, the Ohio Supreme Court
addressed this issue and found that, according to the plain language of R.C.
2929.14(B)(1)(g), a defendant “must receive prison terms for the two most serious
specifications to which he pleaded guilty” when the defendant pled guilty to certain
“multiple felonies and multiple [firearm] specifications.” Attempted murder and
felonious assault are two of the listed felonies in R.C. 2929.14(B)(1)(g) that trigger
the imposition of “the two most serious” firearm specifications.
During the sentencing hearing, Malone’s trial counsel conceded that
the court was required to impose a prison sentence for two of the three-year firearm
specifications consecutively, for an aggregate of six years in prison, to run
consecutive to his prison sentence for the attempted murder conviction.
Specifically, defense counsel stated as follows: “So we would ask the Court in this
situation to impose the six years with regard to the consecutive sentences that are
now required by law . . . but we will just note our exception to [Bollar] in hopes that
that case at some time will be reversed.”
At the time of the writing of this opinion, Bollar has not been
reversed. Accordingly, Malone’s final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR