State v. Debord , 2020 Ohio 57 ( 2020 )

[Cite as State v. Debord, 2020-Ohio-57.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO , : CASE NO. CA2019-03-003
Appellee, : OPINION
1/13/2020
:
- vs -
:
LEE E. DEBORD, :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 18-500-280
Richard W. Moyer, Clinton County Prosecuting Attorney, Katie Wilkin, 103 East Main
Street, Wilmington, Ohio 45177, for appellee
Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for appellant
M. POWELL, J.
{¶ 1} Appellant, Lee Debord, appeals his conviction in the Clinton County Court of
Common Pleas for felonious assault.
{¶ 2} In July 2018, appellant, Roger Tucker ("Tucker"), appellant's girlfriend,
Jennifer Shepherd ("Jen"), and Tucker's girlfriend, Crystal Coburn ("Crystal"), lived together
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in appellant's house. On July 25, 2018, appellant told Tucker that Tucker and Crystal had
to move out of the house that day. Upset by the request, Tucker walked into appellant's
bedroom to confront him. Appellant struck Tucker three times with a machete, causing
severe injuries to Tucker's left arm, right wrist, and the left side of his neck. In particular,
the machete cut through Tucker's spinal column, resulting in a life-threatening, three-inch
deep laceration to his neck. As a result of the machete attack, Tucker's left arm is
paralyzed, his right fingers no longer straighten, and there is a long-term risk of stroke.
{¶ 3} After being assaulted by appellant, Tucker ran from appellant's home, exiting
through the back door, and went to the home of next door neighbors William Kelsey ("Bill")
and his brother Larry. Bill found Tucker outside his home, bleeding profusely from the neck,
and started caring for him. A few minutes later, appellant came out of his house and yelled
that he would cut off Tucker's head the next time. Bill advised Larry to "get a gun" to protect
themselves and Tucker from appellant and to call 9-1-1. Appellant then fled the scene in a
pickup truck. Two days later, sheriff deputies, based upon information provided to them,
found the machete under a couch in appellant's home. Appellant was eventually
apprehended on August 1, 2018, hiding in a Clermont County home.
{¶ 4} Appellant was indicted in August 2018 on two counts of felonious assault and
one count of tampering with evidence. Appellant filed a notice of self-defense as an
affirmative defense, and the case proceeded to a jury trial on March 5 - 7, 2019. Tucker,
Tucker's surgeon, Crystal, brothers Bill and Larry, Clinton County Sheriff's Deputies
Jonathan Bailey and Tim Smith, Detective Robert Gates, and other witnesses testified on
behalf of the state. Appellant testified on his own behalf.
{¶ 5} Testimony at trial indicated that appellant, Tucker, Crystal, and Jen all used
drugs in appellant's home. Trial testimony further indicated that although appellant forbade
people from "shooting-up" in his house, Tucker did so on July 25, 2018, before the machete
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attack.
{¶ 6} Tucker denied threatening appellant or having a weapon or object in his hands
when he walked into appellant's bedroom; Crystal confirmed such testimony. Tucker further
testified that appellant did not have the machete in his hands when Tucker first walked into
appellant's bedroom. Tucker, Crystal, and Bill all testified hearing appellant's postattack
threat that he would cut off Tucker's head the next time.
{¶ 7} The lead investigator, Detective Gates, testified he went to appellant's home
where he took more than 100 photographs to document the location of the attack, the path
Tucker took through and outside the house as he was fleeing, and the location of blood
throughout the house and backyard. The detective explained he took several photos of
specific areas because the camera he was using did not have a wide angle lens. The
detective testified he was with Jen when appellant was apprehended and that "she kind of
with a disappointed sound * * * said, 'you got him.'" On direct examination, the detective
further testified that after appellant was arrested, he was brought to an interview room and
was advised of his Miranda rights. At that point, appellant "indicated he wanted to speak
with an attorney, * * * so I did not ask him any further questions."
{¶ 8} Appellant testified that upon observing Tucker shooting up in the house on
July 25, 2018, he told Tucker to move out of the house, then walked to the front door where
he pretended to call the police on his cellphone. Upon returning to his bedroom to get ready
to go fishing with Jen, appellant heard Tucker yell "that he kills snitches and cop callers"
and "I'm going to kill you, da, da, da." Appellant testified that he was sitting on his bed at
that point and that he had the machete in his hand because he was going to take it to go
fishing. Shortly after, Tucker darted into appellant's bedroom, swinging wildly, and "was on
top of me so fast we started wrestling around and * * * I did strike him once because I saw
the needle in his right hand." Appellant claimed he did not know what happened after he
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struck Tucker once with the machete but remembered Tucker dropping the needle out of
his hand, bending down to pick it up, and then simply disappearing. Appellant testified he
sat on his bed stunned, told Jen that Tucker had tried to kill him, and then left the house.
Appellant testified that Tucker's preattack words and threat to kill him did not frighten him
as he "didn't actually believe he would do it." The state did not cross-examine appellant.
{¶ 9} On March 7, 2019, the jury found appellant guilty as charged. During
sentencing, the trial court merged the two felonious assault charges, sentenced appellant
to eight years in prison for the felonious assault conviction and nine months in prison for the
tampering with evidence conviction, and ordered that the prison terms be served
consecutively.
{¶ 10} Appellant now appeals, raising three assignments of error. We address the
second assignment of error out of order.
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT
APPLYING THE CHANGE IN R.C. 2901.05, SHIFTING THE BURDEN FROM APPELLANT
TO THE STATE TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT
DID NOT USE THE FORCE IN SELF-DEFENSE.
{¶ 13} Traditionally, self-defense has been an affirmative defense which an accused
must prove by a preponderance of the evidence. State v. Gesell, 12th Dist. Butler No.
CA2005-08-367, 2006-Ohio-3621, ¶ 47. However, effective March 28, 2019, the General
Assembly amended Ohio's self-defense statute, R.C. 2901.05, in Am.Sub.H.B. 228 ("H.B.
228"). Specifically, H.B. 228 amended R.C. 2901.05(B)(1) and placed the burden of proof
on the state as follows: "the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another, or defense of that
person's residence, as the case may be." Appellant argues that the trial court erred in not
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applying the amendment to R.C. 2901.05(B)(1) during his March 3 - 5, 2019 trial.
{¶ 14} The assignment of error is overruled on the ground that appellant was "not
entitled to [the] retroactive application of the burden-shifting changes made by the
legislature to Ohio's self-defense statute, R.C. 2901.05, as a result of H.B. 228." State v.
Koch, 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 103.
{¶ 15} Assignment of Error No. 1:
{¶ 16} APPELLANT'S SIXTH AMENDMENT RIGHT TO COUNSEL WAS
VIOLATED BY TRIAL COUNSEL'S INADEQUATE PERFORMANCE.
{¶ 17} Appellant argues that trial counsel was ineffective because he (1) failed to
move for retroactive application of the newly amended R.C. 2901.05(B)(1), or alternatively,
for a brief continuance of the trial, (2) failed during closing argument to highlight appellant's
testimony that appellant used the machete to fight off Tucker who was armed with a needle,
(3) failed to object to the state's repetitive and cumulative crime scene photographs, (4)
failed to object to "arguably and inadmissible testimony" regarding drug use in appellant's
home, Larry's cumulative and repetitive testimony, appellant's whereabouts, and Jen's
disappointment appellant was caught, (5) failed to object to Detective Gates' testimony that
appellant invoked his right to counsel, (6) failed to object to the state's reference to
appellant's failure to tell his side of the story in closing argument, and (7) failed to object to
hearsay testimony regarding the location of the machete after the attack.
{¶ 18} To establish ineffective assistance of counsel, appellant must show (1)
deficient performance by counsel, that is, performance falling below an objective standard
of reasonable representation, and (2) prejudice, that is, a reasonable probability that but for
counsel's errors, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S. Ct. 2052 (1984); State v. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, ¶ 62. A "reasonable probability" is a probability that is "sufficient
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to undermine confidence in the outcome." Strickland at 694. The failure to satisfy either
prong of the Strickland test is fatal to an ineffective assistance of counsel claim. State v.
Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39.
{¶ 19} Trial counsel was not ineffective for failing to move for a brief continuance of
the trial, or alternatively, for retroactive application of the newly amended R.C.
2901.05(B)(1) at appellant's trial. As stated above, the newly amended statute became
effective on March 28, 2019, three weeks after appellant's trial. Appellant's belief the trial
court would have granted a continuance on that ground is purely speculative, especially as
the trial court could have deemed the requested delay to be dilatory or contrived. Moreover,
applying an inapplicable burden of proof in anticipation of future law would have been
improper. An attorney is not ineffective for failing to make futile motions or requests. State
v. Lott, 51 Ohio St. 3d 160, 175-176 (1990); State v. Brown, 12th Dist. Clermont No.
CA2018-05-027, 2018-Ohio-4939, ¶ 11.
{¶ 20} Trial counsel was not ineffective during closing argument for failing to highlight
testimony that appellant used the machete to fight off Tucker who was armed with a needle.
Appellant was the last witness to testify at trial and the jury heard the testimony detailed
above. Moreover, while trial counsel failed to highlight that part of appellant's testimony, he
otherwise vigorously argued self-defense during closing argument. The manner defense
counsel chooses to conduct closing argument is a matter of trial strategy and cannot be
discredited simply because of a guilty verdict. State v. Wisby, 12th Dist. Clermont No.
CA2012-06-049, 2013-Ohio-1307, ¶ 49. Furthermore, trial strategy "must be accorded
deference and cannot be examined through the distorting effect of hindsight." State v.
Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 115; State v. Wheeler, 9th Dist. Summit
No. 27643, 2016-Ohio-15, ¶ 24.
{¶ 21} Trial counsel was not ineffective for failing to object to the state's numerous
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crime scene photographs. The state presented 70 photographs at trial. Five photographs
depicted the location and severity of Tucker's wounds and were used during the surgeon's
testimony. Six photographs depicted the location and condition of the machete. Seven
photographs were taken by Deputy Bailey, the first officer on the scene, and depicted
Tucker being cared for by Bill and the quantity of blood on Bill's wooden steps, and the
quantity of blood in appellant's home near the back door. Finally, 52 photographs were
taken by Detective Gates and depicted the quantity and location of blood throughout
appellant's house and backyard, indicating where the attack took place and the path Tucker
took when he fled appellant's home and went to Bill's house.
{¶ 22} While five of Detective Gates' photographs were arguably repetitive of five of
Deputy Bailey's photographs, we find that the 70 crime scene photographs presented by
the state were reasonably offered for different purposes, they were probative of appellant's
criminal conduct and the sequence of events, and their probative value was not substantially
outweighed by the prejudicial effect claimed by appellant. Accordingly, the photographs
were admissible under Evid.R. 403. State v. Herron, 2d Dist. Montgomery No. 19894, 2004-
Ohio-773, ¶ 66. Because the trial court could have admitted the photographs even if
counsel had objected at trial, trial counsel did not render ineffective assistance by failing to
object. Id.
{¶ 23} Trial counsel was not ineffective for failing to object to testimony from various
witnesses throughout the trial. At the outset, we note that trial counsel is not ineffective for
choosing, for tactical reasons, not to pursue every possible trial objection. State v. Raypole,
12th Dist. Fayette No. CA2014-05-009, 2015-Ohio-827, ¶ 24. Objections tend to disrupt
the flow of a trial and are considered technical and bothersome by a jury. Id.; State v. Hill,
75 Ohio St. 3d 195, 211 (1996). Moreover, appellant fails to establish that his counsel's
performance fell "below an objective standard of reasonable representation," nor has he
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demonstrated prejudice, that is, "a reasonable probability that, were it not for counsel's
errors, the result of the trial would have been different." State v. Bradley, 42 Ohio St. 3d 136
(1989), paragraphs two and three of the syllabus.
{¶ 24} Turning to each claim individually, trial counsel was not ineffective for failing
to object to Bill's personal knowledge of drug use in appellant's home for lack of foundation.
Bill testified he was friends with appellant and was his neighbor. Appellant later testified on
his own behalf and admitted drug use. Likewise, trial counsel was not ineffective for not
objecting to Larry's testimony he was told by his brother Bill to get a gun. Bill's directive to
Larry was first brought out during Bill's earlier direct examination. Subsequently, during
Bill's cross-examination, trial counsel solicited testimony that Bill did in fact tell his brother
to get a weapon to protect their home from appellant. Objecting to Larry's testimony would
have been redundant as that fact was already known by the jury.
{¶ 25} We find no prejudice in trial counsel's failure to object to hearsay testimony
regarding individuals' lack of knowledge of appellant's whereabouts after the attack. Such
testimony had no bearing on the verdict and appellant does not so argue. Likewise, we find
no error in trial counsel's failure to object to Detective Gates' testimony that Jen expressed
disappointment about appellant's capture. Such statement was admissible under Evid.R.
803(3) as Jen's "then existing state of mind [or] emotion." Furthermore, such testimony had
no bearing on the verdict and appellant does not so argue.
{¶ 26} Trial counsel was not ineffective for failing to object to both Detective Gates'
testimony that appellant invoked his right to counsel and the prosecutor's reference to
appellant's failure to tell his side of the story in closing argument. During closing argument,
the prosecutor referenced appellant's prearrest silence when discussing the police finding
appellant hiding in a house. The prosecutor argued, "Does he come out voluntarily? If he
was truly scared and truly just wanted to be able to talk to someone before he told his story
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don't you think if they are already in the home and you're standing up and you're going up
to them and asking them, hey, I just want to tell you my part of the story. No, instead he
lays on the ground[.]"
{¶ 27} Based upon the Ohio Supreme Court's decision in State v. Leach, 102 Ohio
St.3d 135, 2004-Ohio-2147, we find that the state's use of appellant's post-arrest, post-
Miranda invocation of counsel during the state's case-in-chief was improper. In Leach, the
supreme court held that evidence of a defendant's post-arrest, post-Miranda statement that
he wished to consult an attorney, whether offered for impeachment purposes or as
substantive evidence of guilt, violates the Due Process Clauses of the state and federal
constitutions. Id. at ¶ 18, 38. Likewise, we find that the prosecutor's reference to appellant's
prearrest silence during closing argument was improper. Relying upon its holding in Leach
that use of a defendant's prearrest silence as substantive evidence of guilt in the state's
case-in-chief violates the Fifth Amendment privilege against self-incrimination, the supreme
court held that "[s]tatements made in closing arguments concerning a defendant's protected
prearrest silence are analogous to comments made during the case-in-chief. Such
comments are clearly improper." State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, ¶
159-160.
{¶ 28} It follows that trial counsel's performance was deficient and fell below an
objective standard of reasonable representation when trial counsel did not object to the
state's use of appellant's post-arrest, post-Miranda invocation of counsel during Detective
Gates' direct examination and to the state's reference to appellant's prearrest silence during
closing argument. However, appellant does not argue prejudice, that is, a reasonable
probability that, were it not for counsel's errors, the result of the trial would have been
different. Rather, appellant "asks this Court to determine whether he was prejudiced by his
trial counsel's deficient performance." Given Tucker's testimony regarding appellant's
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felonious assault and the testimony of Crystal and Bill corroborating pertinent aspects of
Tucker's testimony, we find that the state's evidence of appellant's guilt is compelling and
that appellant cannot establish a reasonable probability that but for counsel's errors, the
result of the proceedings would have been different.
{¶ 29} Trial counsel was not ineffective for failing to object to hearsay testimony
regarding the location of the machete after the attack. Deputy Smith was dispatched to
appellant's home two days after the attack, whereupon he spoke with Jen. After Jen signed
a waiver of her Miranda rights, the deputy began questioning her and ultimately asked her
what appellant had done with the machete. At trial, Deputy Smith testified on direct
examination that Jen told him that appellant had placed the machete underneath a couch
in his home. After trial counsel failed to object, the trial court called counsel to a side bar
and inquired whether trial counsel was objecting to the out-of-court statement. Trial counsel
replied, "We were planning on calling her, I don't believe that statement is damaging." Trial
counsel, however, did not call Jen as a witness.
{¶ 30} "Hearsay" is "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Evid.R. 801(C). Hearsay is generally inadmissible in court unless the testimony is deemed
"not hearsay" under Evid.R. 801(D) or falls under one of the hearsay exceptions articulated
in Evid.R. 803 and 804. Jen's out-of-court statement was not hearsay to the extent it was
offered to explain why the police looked for the machete underneath the couch. It was,
however, hearsay to the extent it was offered to prove that appellant concealed the machete
for purposes of the tampering with evidence charge. Furthermore, it was not admissible
under Evid.R. 801(D), 803, or 804.
{¶ 31} Nevertheless, we find no basis for a claim of ineffective assistance on this
issue. It is not the role of the appellate court to second-guess the strategic decisions of trial
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counsel, including whether to object. State v. Bowling, 12th Dist. Madison No. CA98-09-
034, 1999 Ohio App. LEXIS 5521, *14-15 (Nov. 22, 1999). At the time trial counsel failed
to object to Jen’s out-of-court statement, he intended to call her as a witness. Hindsight
may not be used to distort the assessment of what was reasonable in light of trial counsel’s
perspective at the time. Id. at *15, citing State v. Cook, 65 Ohio St. 3d 516 (1992).
Moreover, the state did not rely upon the out-of-court statement to prove the tampering with
evidence charge. Instead, the state relied upon the fact the machete was found underneath
a couch where it could not have landed had appellant simply dropped or tossed the machete
rather than consciously going around a coffee table and specifically placing the machete
under the couch before leaving the crime scene. By contrast, trial counsel addressed Jen’s
statement during closing argument, arguing that Jen’s knowledge of the location of the
machete suggested it was Jen who put the machete under the couch before she and
appellant left appellant’s house following the machete attack. "Simply because the jury
chose to reject this version of the events cannot be the basis for an ineffective assistance
of counsel claim." State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878,
¶ 25. The fact that trial strategy was ultimately unsuccessful does not amount to ineffective
assistance of counsel. Id.; State v. Gearhart, 12th Dist. Warren No. CA2017-12-168, 2018-
Ohio-4180, ¶ 25.
{¶ 32} Appellant's first assignment of error is overruled.
{¶ 33} Assignment of Error No. 3:
{¶ 34} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
GOES AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN
DEFENDANT'S CONVICTIONS.
{¶ 35} Appellant argues that his felonious assault conviction is not supported by
sufficient evidence and is against the manifest weight of the evidence because he was
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acting in self-defense when he struck Tucker with a machete.
{¶ 36} Self-defense is an affirmative defense and as such is not considered in a
sufficiency of the evidence analysis. State v. Palmer, 80 Ohio St. 3d 543, 563 (1997); State
v. Green, 12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 28. "An affirmative
defense does not negate the legal adequacy of the state's proof for purposes of submitting
it to the jury. An affirmative defense involves an excuse or justification for doing an
otherwise illegal act. * * * It does not deny the existence of the act; it simply provides a legal
justification for it." State v. Cooper, 170 Ohio App. 3d 418, 2007-Ohio-1186, ¶ 15 (4th Dist.);
Green at ¶ 28. Thus, "[o]nce the state has satisfied the question of legal adequacy * * *,
the question of the relative persuasiveness of [a self-defense affirmative defense] must
await a jury's determination and face appellate scrutiny under a manifest weight of the
evidence analysis." Cooper at ¶ 15. As such, we find no merit to appellant's claim that his
felonious assault conviction is based on insufficient evidence under the theory he acted in
self-defense.
{¶ 37} To determine whether a conviction is against the manifest weight of the
evidence, a reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.
An appellate court will overturn a conviction due to the manifest weight of the evidence only
in extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal. Id. at ¶ 18.
{¶ 38} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(1), which prohibits any person from knowingly causing serious physical harm
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to another. Appellant admitted striking Tucker with the machete. It is not disputed that
appellant caused serious physical harm to Tucker. Hence, the evidence at trial established
the elements of felonious assault under R.C. 2903.11(A)(1). Appellant argues, however,
that he acted in self-defense.
{¶ 39} At the time of appellant's trial, the burden of going forward with evidence of
self-defense and the burden of proving self-defense by a preponderance of the evidence
was upon the accused. Palmer, 80 Ohio St. 3d at 563.
{¶ 40} To establish self-defense in a case involving use of nondeadly force, the
defendant must prove that (1) he was not at fault in creating the situation giving rise to the
altercation and (2) he had reasonable grounds to believe and an honest belief, even though
mistaken, that he was in imminent danger of bodily harm and his only means to protect
himself from the danger was by the use of force not likely to cause death or great bodily
harm. State v. Saturday, 12th Dist. Butler No. CA2018-06-122, 2019-Ohio-193, ¶ 12. If a
defendant fails to prove any one of these elements, he has failed to demonstrate he acted
in self-defense. Id.
{¶ 41} Upon thoroughly reviewing the record, we find that the jury did not lose its way
and create a manifest miscarriage of justice by rejecting appellant's claim of self-defense
and finding him guilty of felonious assault. Appellant testified that Tucker's preattack words
and threat to kill him did not frighten him as he did not actually believe Tucker's threat.
Appellant presented no other evidence which would indicate that he had a belief he was in
imminent danger of bodily harm and that his only means to protect himself from the danger
was by the use of force not likely to cause death or great bodily harm. Accordingly,
appellant's felonious assault conviction is not against the manifest weight of the evidence.
{¶ 42} Appellant's third assignment of error is overruled.
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{¶ 43} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.
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