State v. Messenger , 2021 Ohio 2044 ( 2021 )

[Cite as State v. Messenger, 2021-Ohio-2044.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 19AP-879
(C.P.C. No. 19CR-1135)
v. :
(REGULAR CALENDAR)
Kandle G. Messenger, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 17, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Daniel J. Stanley, for appellee. Argued: Seth L. Gilbert.
On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam,
and Erik P. Henry, for appellant. Argued: Kort Gatterdam.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Kandle G. Messenger, appeals from a judgment entry
of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict,
of murder with an accompanying firearm specification. For the following reasons, we
affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed March 7, 2019, plaintiff-appellee, State of Ohio, charged
Messenger with one count of murder in violation of R.C. 2903.02, an unclassified felony;
and one count of felony murder in violation of R.C. 2903.02, an unclassified felony, with an
underlying offense of felonious assault, in violation of R.C. 2903.11. Both charges contained
accompanying three-year firearm specifications pursuant to R.C. 2941.145(A). The charges
No. 19AP-879 2
related to the shooting death of Richard Pack Jr. on February 25, 2019. Messenger entered
a plea of not guilty.
{¶ 3} At a trial beginning November 4, 2019, the state introduced evidence that on
the evening of February 25, 2019, Messenger shot Pack 14 times while inside a residence
they once shared together, killing Pack. Messenger and Pack were stepbrothers. The sole
issue at trial was whether Messenger acted in self-defense.
{¶ 4} During the trial, the state presented testimony establishing that 2065 West
Mound, the location in which the shooting occurred, was once home to Pack and Samantha
Anderson, who were in a relationship, and their two young children. Approximately one
year after Pack and Anderson first moved into the West Mound residence, Samantha's
sister, Breanna Anderson, and her fiancée, Tiffany Wiseman, came to live with Pack,
Samantha, and their children. Sometime after Breanna and Wiseman moved in, Messenger
also moved into the West Mound residence. Messenger was in a romantic relationship with
Sandra Gheen in early 2019, and Gheen also lived at the West Mound residence for some
time. However, Samantha testified that she and Messenger began a secret relationship
while the three couples were living together. Samantha testified that she and Pack ended
their relationship, and Pack moved out of the West Mound residence approximately one
month before the shooting. Gheen also moved out of the West Mound residence in January
2019, prior to the shooting.
{¶ 5} According to Gheen's testimony, on the morning of February 25, 2019, she
learned of the relationship between Messenger and Samantha after seeing text messages
on Messenger's phone in which Samantha expressed her hope to marry Messenger. Gheen
testified she decided to send the text messages to Pack, and then she met with him to discuss
what they had learned. While she was with Pack, Gheen said she overhead Pack talking on
the phone with Messenger.
{¶ 6} Samantha testified that around mid-afternoon on February 25, 2019, after
Pack saw the text messages between herself and Messenger, he asked to talk to Samantha
about the infidelity. After about ten minutes of conversation with Pack, Samantha said that
Messenger arrived at the residence. Samantha testified that when Messenger came in the
room, Pack asked Messenger to have a seat and then Pack began hitting Messenger.
Samantha said Messenger did not attempt to fight back during this altercation, and Pack
No. 19AP-879 3
eventually left the home. Samantha said she did not see either Messenger or Pack with a
weapon during this fight. Messenger did not require medical attention from this
interaction, and Samantha stated no one present called 911. Prior to this incident,
Samantha said she had never seen a physical fight between Pack and Messenger.
{¶ 7} Later in the evening on February 25, 2019, Samantha said Pack returned to
the West Mound residence and "hop[ped] the fence" into the yard. (Tr. at 188.) Samantha
testified that Messenger was already outside at this point, and she was sitting in her car
when Pack approached her vehicle to talk more about their relationship. She described
Messenger as keeping his distance but observing the interaction between Pack and herself.
Eventually, Samantha said she agreed to go inside and continue talking to Pack.
{¶ 8} Samantha described Pack attempting to get Messenger to come inside with
them but that Messenger initially refused. Once Messenger agreed to come in the house,
Samantha said Pack shut and locked the door, at which time Samantha said she went
upstairs to check on her children. Samantha explained that the only way to get the door in
the house to close was to lock it. While she was upstairs, Samantha said she heard
Messenger say "[Pack], stop. [Pack], don't. Don't come any closer. Please, [Pack], I'm
begging you. [Pack], stop," followed by gunshots, and she came back downstairs to find
Messenger holding a gun. (Tr. at 206.) Samantha testified she then called 911, and the
state played an audio recording of her 911 call for the jury. In the 911 call, Samantha told
the dispatcher that Pack had been shot and that Messenger was the one who shot him, but
she also told the dispatcher that Pack beat her before backtracking and saying Pack beat
Messenger prior to the shooting.
{¶ 9} Additionally, Samantha testified that Pack worked as an armed security
guard and, as a result, had a "good knowledge of firearms." (Tr. at 209.)
{¶ 10} Rebecca Lape lived next door to 2065 West Mound, and she testified that on
February 25, 2019 around 9:00 p.m. she heard people arguing outside, so she looked out
her window and saw Pack yelling back and forth with someone in a car. Rebecca testified
that she saw Messenger approach Pack several times before Pack yelled, with his arms up,
"if you're going to do it, just do it." (Tr. at 225.) She then heard Pack say "you ain't going
to do nothing. Just put it away." (Tr. at 237.) After that, Rebecca said she watched Pack
go inside the house but that he did not close the door behind him. Messenger was still
No. 19AP-879 4
outside the house when Rebecca stopped looking out her window. She also noticed Pack's
children looking out the window of their house at the altercation. Rebecca testified she did
not see Messenger with a gun while he was outside the house. About "a minute or two"
after she stopped looking out the window, Rebecca said she heard what sounded like five
gunshots. (Tr. at 239.)
{¶ 11} John Lape, Rebecca's husband, testified that around 9:00 p.m. on
February 25, 2019, he heard a commotion outside and went to look out a different window
than his wife. John said he saw Pack next to Samantha's car and Messenger was standing
outside. He thought he heard Pack say "shoot me," and he saw Pack standing with his hands
up. (Tr. at 244.) After his wife walked away from the window, John said he went to look
out the window where Rebecca had been standing. By that time, John said Pack and
Samantha were no longer outside but that Messenger was still standing there. John
testified that he watched Messenger "[take] off on, like, eight long steps, went inside the
door. The door was already open. Slammed the door and (witness clapped his hands five
times). That's it." (Tr. at 246.) John testified he heard the gunshots immediately after
Messenger went inside the house, and he testified he saw Messenger close the door.
{¶ 12} Breanna testified she still lived with her sister at the West Mound residence
on the day of the February 25, 2019 shooting. Breanna testified that she had previously
dated Messenger years earlier but that he had always been "obsessed" with Samantha. (Tr.
at 277.) She stated that Messenger used to collect hair from Samantha's hairbrush and keep
it in his pockets. Further, Breanna testified that her relationship with Messenger did not
end well.
{¶ 13} Breanna testified that she was at the West Mound residence when the
shooting occurred but that she did not see it, only "heard some things." (Tr. at 258.)
However, Breanna testified that she did see the fight earlier in the day on February 25, 2019
between Pack and Messenger. Breanna said that during this fight, she saw Pack standing
in front of the couch yelling at Messenger, but she did not see anyone hit anyone else.
{¶ 14} Breanna's fiancée, Wiseman, was also at the residence at this time, and she
testified that she did see Pack "beating on" Messenger while Messenger sat on the couch.
(Tr. at 287.) Prior to that time, Wiseman said she had never seen Pack be violent toward
Messenger, but she was not surprised by his reaction given the recent revelation that
No. 19AP-879 5
Messenger and Samantha were romantically involved. Wiseman testified the physical
altercation did not appear to be serious at the time.
{¶ 15} According to Wiseman's testimony, she had let Messenger borrow her phone
after his altercation with Pack, and she went to retrieve it from him later in the evening on
February 25, 2019. When Messenger returned her phone, Wiseman said she saw that he
had his gun on his hip. Once she was back in the basement, Wiseman said she received a
phone call from Gheen asking to speak to Messenger. Wiseman testified she found
Messenger again, this time outside the back door of the house, and Messenger was outside
with Pack again. On cross-examination, Wiseman testified that she saw Messenger with
his gun pulled out and pointed at Pack in the backyard. Wiseman said Messenger and Pack
were arguing, but that she went back inside the house and returned to the basement. From
the basement, Wiseman said she heard Messenger say "no, [Pack], don't," followed by "a
bunch of gunshots." (Tr. at 297.) Wiseman described the gunshots as being "too many to
count." (Tr. at 304.) She did not hear Pack say anything.
{¶ 16} When she heard the gunshots, Breanna said she was in the basement with
Wiseman. Breanna testified that she heard Messenger say "no, [Pack], don't," followed by
"way more gunshots than needed to be." (Tr. at 273.) Breanna described the gunshots as
all occurring quickly without any pause in between them.
{¶ 17} After hearing the gunshots, Wiseman said Messenger yelled for her because
he wanted to use her phone again. Wiseman said when she went upstairs to give Messenger
her phone, she saw Messenger holding his gun, standing between Pack and the back door.
{¶ 18} The parties stipulated to the forensic evidence, including that Pack was shot
14 times. At the close of the state's evidence, defense counsel moved for an acquittal under
Crim.R. 29, arguing the state had not met its burden to prove that Messenger did not act in
self-defense when he shot Pack. The trial court denied the motion.
{¶ 19} Gheen testified as a witness for the defense. Gheen testified she had moved
out of the West Mound residence in January 2019 and did not personally witness the events
of February 25, 2019. Earlier in the day on February 25, 2019, Gheen said she repeatedly
sent text messages to Pack expressing her frustration with Messenger.
{¶ 20} Messenger testified in his own defense. According to his testimony,
Messenger had always had a good relationship with Pack, whom he had known since he
No. 19AP-879 6
was eight years old, until Pack learned of Messenger's relationship with Samantha.
Messenger testified that he understands that Pack had a right to be angry with him, and
that he felt ashamed for betraying his stepbrother.
{¶ 21} On February 25, 2019, Messenger said he entered the West Mound
residence to find Samantha and Pack together, and he could tell Samantha had been crying.
Messenger testified that Pack said, "I'm going to lock this door so nobody tries to leave,"
which left Messenger feeling "very nervous." (Tr. at 379.) Messenger said Pack asked him
to sit down on the couch and then confronted him about his suspicion that Messenger and
Samantha had been "messing around" behind his back. (Tr. at 380.) Believing Pack already
knew the answer, Messenger said he dropped his head in shame and could not look at Pack.
When Samantha then answered the question for him, Messenger said Pack started hitting
him on the left side of his face. Messenger said Pack continued to hit him until one of his
young sons came in the room, at which point Pack said "I'm done. I'm not going to hit you
no more." (Tr. at 381.) Samantha left the room to tend to her child, and Messenger said
Pack paced back and forth while repeatedly saying "I should kill you. I should keep hitting
you." (Tr. at 381.) Messenger testified that Samantha tried to leave the house but that Pack
slammed the door, pushed Samantha on the couch, and told her "you're not going
anywhere." (Tr. at 381.) According to Messenger, Pack then showed him the text messages
he had received from Gheen revealing Messenger's and Samantha's relationship. After
returning the phone to Pack, Messenger said Pack told them he was going to kill himself,
and then Pack left the West Mound residence.
{¶ 22} Messenger testified that after Pack left the house, he went upstairs to get his
gun because he knew Pack owned several firearms and Messenger "could tell [Pack] was
upset," so he wanted to be prepared to defend himself. (Tr. at 382.) Messenger stated he
did not have a concealed carry permit and he normally carried his firearm openly in a
holster, but for some reason that day he placed it in the waistband of his pants. Because
Pack was an armed security guard, Messenger said Pack had taught him self-defense
techniques, including the quickest way to draw a firearm and how to disarm another
person.
{¶ 23} "Many days prior" to Pack confronting him, Messenger testified that he
believed Pack suspected Samantha was being unfaithful, and he said Pack would tell him
No. 19AP-879 7
he would "kill the person that she left him for and then her afterwards." (Tr. at 384.)
Though Messenger admitted he did not take Pack seriously at the time he said those things,
he testified that he started to feel differently after Pack hit him on February 25, 2019. After
Pack punched him, Messenger said he was afraid Pack might kill him or Samantha.
{¶ 24} Once Pack left the house, Messenger testified he called Pack multiple times
to apologize and to encourage him not to take his own life. During one of these phone calls,
Messenger said Pack told him "if you have any respect for me, you need to leave [Samantha]
the hell alone," and Messenger said he would, though he admitted he did not really intend
to end his relationship with Samantha. (Tr. at 387.)
{¶ 25} Later that evening, Messenger said he was in the backyard when he saw Pack
climbing over the fence. Messenger said he "immediately start[ed] backpedaling" and ran
backward. (Tr. at 387.) According to Messenger, Pack was approaching him very quickly,
so Messenger testified he drew his firearm which caused Pack to stop approaching.
Messenger said Pack then approached Samantha's car and turned to Messenger to ask, "are
you going to shoot me?" (Tr. at 388.) Messenger said he told Pack he did not want to shoot
him, that Pack told him to put his gun away, and that Messenger complied and returned
the gun to his waistband.
{¶ 26} Messenger testified he could not hear what Pack was saying to Samantha
while she was in her car but that Pack eventually said he wanted everybody to go inside.
Messenger said he did not think Samantha wanted to go inside but that he heard Pack tell
her that if she did not go in the house he was going to break the windows on her car.
According to Messenger, Samantha then went inside the house, and Pack asked Messenger
to come inside, too. Messenger said he told Pack "I don't want to come in the house. I don't
trust you. I can't come in the house. I don't feel safe." (Tr. at 390.) Messenger testified
that he continued to resist going in the house until Pack said to him, "if you think that gun's
stopping me from coming out there and getting you, you're wrong." (Tr. at 390.)
Eventually, Messenger said he agreed to go inside the house if Pack went all the way to the
front door so that Messenger could maintain some distance from him and "feel safe." (Tr.
at 390.)
{¶ 27} Messenger testified that once he could see that Pack was over by the front
door, Messenger went inside the house and locked the back door behind him. During this
No. 19AP-879 8
interaction, Messenger said he had not seen Pack carrying a gun, a knife, or a club, and he
said Pack was not wearing a coat. Messenger said that Pack's youngest son was in the room
and that Samantha told her son to go upstairs. Pursuant to Messenger's testimony, by the
time the child went upstairs, Pack had "cut the distance we had in half already" and was
standing in the middle of the room. (Tr. at 392.) Messenger said he took a step back and
that Pack said he just wanted to give him a hug. Messenger said Pack had his hands out
and kept approaching him, backing Messenger into a corner and repeating that he just
wanted to hug Messenger. By the time Pack was within arm's reach of him, Messenger said
he told him "[Pack], stop. Please stop," three or four times. (Tr. at 393.) Messenger said
he believed Pack was going to attempt to take his gun because he knew Pack was trained in
doing so. At that point, Messenger testified he "fire[d] [his] gun as fast as humanly possible
* * * because I believe that I have waited too long at this point," and that he "was hoping in
some way that [he] could stop [Pack] from taking this gun from" him. (Tr. at 393.)
Messenger said that at the time he thought he had fired five or six rounds but that he has
since learned he fired many more, and he also testified he did not know whether he was
hitting Pack or not when he fired. On re-direct examination, Messenger testified he was no
longer afraid that Pack might be armed when he was approaching him in the room, but he
was afraid that Pack would try to take his own gun.
{¶ 28} Messenger admitted that he initially told the detective after the shooting that
Pack may have moved back after the first shot, but he testified that he had a headache and
was just trying to cooperate with police. At trial, Messenger maintained that he felt he was
in danger the entire time. Messenger said he believed Pack would stop approaching when
drew his gun and that he was "stunned" that Pack did not stop approaching. (Tr. at 398.)
Messenger additionally testified he was trying to aim while he shot but that he was "in panic
mode," and that he stopped firing once Pack fell to the ground. (Tr. at 395.) After the
shooting, Messenger said Samantha called 911 and he used Wiseman's phone to call his
friend. Messenger said he then placed the gun on the table for police to find and waited
with his hands in the air until police arrived.
{¶ 29} On cross-examination, Messenger testified that he was still in a relationship
with Samantha and that Samantha had expressed that she intended to stand by his side
throughout the trial. Messenger agreed that the altercation earlier in the day on February
No. 19AP-879 9
25, 2019 between himself and Pack was minor enough that he did not even realize he had
been injured or that it left his lip bleeding, yet he maintained it was sufficient for him to be
scared for his safety. Messenger testified he retrieved his gun following that altercation not
because he was afraid that Pack would hit him again but because he was afraid Pack would
also come back to the house with a gun. Messenger agreed he never saw Pack armed that
day, that Pack never threatened to come back with a gun, that he could visibly see Pack did
not have a gun unless he was concealing it in his underwear or under his t-shirt, and he said
he learned after the fact that Pack did not have a gun on him at the time of the shooting.
Messenger also agreed on cross-examination that Pack approached him slowly in the house
with his arms out in front of him the entire time, and Messenger started shooting when
Pack was just beyond arm's length away. Further, Messenger agreed he willingly went
inside the house when Pack asked him to come in. He also agreed that neither Rebecca,
John, nor Samantha testified that they heard Pack tell Messenger that the gun was not
going to stop him from grabbing Messenger. Finally, Messenger agreed that he told police
the night of the shooting that Pack went backward after the first shot but that Messenger
continued to shoot until Pack fell.
{¶ 30} At the conclusion of evidence, defense counsel repeated its Crim.R. 29
motion, again arguing the state could not prove that Messenger did not act in self-defense.
The trial court again denied the motion, finding reasonable minds could come to different
conclusions as to whether the state proved each element beyond a reasonable doubt.
{¶ 31} Following deliberations, the jury found Messenger guilty of both counts of
murder and the accompanying firearm specifications. The trial court conducted a
December 5, 2019 sentencing hearing, merging the two murder counts and sentencing
Messenger on Count 1, purposeful murder, to 15 years to life plus an additional 3 years on
the firearm specification for an aggregate sentence of 18 years to life in prison. The trial
court journalized Messenger's conviction and sentence in a December 5, 2019 judgment
entry. Messenger timely appeals.
II. Assignments of Error
{¶ 32} Messenger assigns the following errors for our review:
[1.] The trial court violated appellant's rights to due process and
a fair trial when it entered a judgment of conviction based on
No. 19AP-879 10
insufficient evidence and against the manifest weight of the
evidence in violation of appellant's rights under the United
States and Ohio Constitutions.
[2.] The trial court erred in admitting victim-impact
photographs of the deceased with his family and in his security
guard uniform thereby depriving appellant of his rights to due
process and a fair trial.
[3.] Appellant was denied his rights to the presumption of
innocence, to a fair trial and to due process contrary to the Ohio
and United States Constitutions when the jury heard evidence
of appellant's incarceration prior to trial.
[4.] Appellant was deprived of the effective assistance of trial
counsel in violation of appellant's rights under the Sixth and
Fourteenth Amendments to the United States Constitution,
and Section 10 and 16, Article I of the Ohio Constitution.
III. First Assignment of Error – Sufficiency and Manifest Weight of the
Evidence
{¶ 33} In his first assignment of error, Messenger argues there was insufficient
evidence to support his murder conviction and that his conviction is against the manifest
weight of the evidence.
A. Sufficiency of the Evidence
{¶ 34} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37.
{¶ 35} Messenger argues the state presented insufficient evidence to sustain his
murder conviction. However, Messenger does not argue the state failed to produce
evidence on all the essential elements of murder as contained in R.C. 2903.02; rather, he
asserts that the state failed to disprove his claim that he shot and killed Pack in self-defense.
No. 19AP-879 11
{¶ 36} Prior to March 28, 2019, Ohio law deemed self-defense an affirmative
defense, requiring a defendant to prove the elements of self-defense by a preponderance of
the evidence. See, e.g., State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 45,
citing State v. Martin, 21 Ohio St.3d 91, 93 (1986). Effective March 28, 2019, however,
following revisions to R.C. 2901.05, a defendant no longer bears the burden of establishing
the elements of self-defense by a preponderance of the evidence. R.C. 2901.05(B)(1); see
also State v. Carney, 10th Dist. No. 19AP-402, 2020-Ohio-2691, ¶ 31. Instead, the self-
defense statute now "place[s] the burden on the prosecution to disprove at least one of the
elements of self-defense beyond a reasonable doubt." Carney at ¶ 31. Specifically, R.C.
2901.05(B)(1) provides:
A person is allowed to act in self-defense, defense of another,
or defense of that person's residence. 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,
defense of another, or defense of that person's residence, 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.
Thus, the current version of R.C. 2901.05(B)(1) requires the state "to disprove self-defense
by proving beyond a reasonable doubt that [the defendant] (1) was at fault in creating the
situation giving rise to the affray, OR (2) did not have a bona fide belief that he was in
imminent danger of death or great bodily harm for which the use of deadly force was his
only means of escape, OR (3) did violate a duty to retreat or avoid the danger." Carney at
¶ 31; see also State v. Daley, 10th Dist. No. 19AP-561, 2020-Ohio-4390, ¶ 39.
{¶ 37} Due to this recent change in the self-defense law, the parties dispute whether
it is appropriate to consider self-defense under a sufficiency of the evidence review. The
state agrees that it is now charged with disproving self-defense at trial, but it argues a
sufficiency of the evidence review focuses only on the essential or substantive elements of
a crime rather than affirmative defenses. In support, the state relies on this court's decision
in State v. Parker, 10th Dist. No. 18AP-990, 2019-Ohio-3908, which held that an appellant
could not "challenge the trial court's rejection of his self-defense claim on sufficiency of the
No. 19AP-879 12
evidence grounds" because self-defense is an affirmative defense, and a claim of insufficient
evidence challenges the sufficiency of the state's evidence but does not consider the strength
of defense evidence. Parker at ¶ 12, citing State v. Gripper, 10th Dist. No. 12AP-396, 2013-
Ohio-2740, ¶ 24, and State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 17
(stating "[t]he 'due process "sufficient evidence" guarantee does not implicate affirmative
defenses, because proof supportive of an affirmative defense cannot detract from proof
beyond a reasonable doubt that the accused had committed the requisite elements of the
crime' ").
{¶ 38} The state recognizes that Parker and the cases on which it relies predate the
March 28, 2019 change to Ohio's self-defense law. Nonetheless, the state asserts the logic
of Parker should still apply because, despite the change to R.C. 2901.05(B)(1) requiring the
state to disprove that a defendant acted in self-defense, the General Assembly continues to
classify self-defense as an affirmative defense in R.C. 2901.05(A). Thus, the state asserts a
sufficiency of the evidence challenge to Messenger's murder conviction should entail a
review of only the essential elements of the offense of murder as contained in R.C. 2903.02
without additional consideration of whether the state sufficiently proved Messenger did not
act in self-defense under R.C. 2901.05(B). See Parker at ¶ 12; State v. Jennings, 10th Dist.
No. 05AP-1051, 2006-Ohio-3704, ¶ 28 (finding a sufficiency of the evidence review did not
apply to the affirmative defense of insanity because "proof supportive of an affirmative
defense cannot detract from proof beyond a reasonable doubt that the accused had
committed the requisite elements of the crime," and the insanity defense "does not involve
the substantive elements of the criminal offense"), citing State v. Hancock, 108 Ohio St.3d
57, 2006-Ohio-160, ¶ 37-38.
{¶ 39} Messenger responds that the continued categorization of self-defense as an
affirmative defense is irrelevant given the explicit statutory language now requiring the
state to disprove self-defense. Stated another way, Messenger asserts Parker and other
pre-March 28, 2019 cases are no longer applicable as the burden is now on the state to
prove Messenger did not act in self-defense. Indeed, this court in Parker acknowledged in
a footnote that the March 28, 2019 amendment to the self-defense statute "could change
the sufficiency analysis." Parker at ¶ 12, fn. 2. Messenger also notes that this court has
considered an appellant's sufficiency of the evidence challenge to a claim of self-defense in
No. 19AP-879 13
a case dealing with the post-March 28, 2019 version of R.C. 2901.05(B)(1). Carney at ¶ 32
(concluding the state presented sufficient evidence to disprove self-defense).
{¶ 40} We are mindful of our previous decision in Carney considering a sufficiency
of the evidence challenge to the current version of R.C. 2901.05(B)(1). However,
Messenger's argument ignores that even despite the shifting of the burden of proof on the
affirmative defense, a review of the sufficiency of the evidence " 'must be applied with
explicit reference to the substantive elements of the criminal offense as defined by state
law.' " (Emphasis sic.) Hancock at ¶ 38, quoting Jackson v. Virginia, 443 U.S. 307, 324
(1979), fn. 16. Though Carney applied a sufficiency of the evidence challenge to the current
version of R.C. 2901.05(B)(1) based on the burden-shifting language in the statute, Carney
assumed the sufficiency of the evidence review applied but did not consider the precise
question here: whether the burden-shifting language renders the absence of self-defense an
essential element of the charged offense such that it is, indeed, appropriate for a sufficiency
of the evidence review.
{¶ 41} Notably, the Supreme Court of Ohio has expressly held that "the due process
'sufficient evidence' guarantee does not implicate affirmative defenses, because proof
supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt
that the accused had committed the requisite elements of the crime." (Internal quotations
omitted.) Hancock at ¶ 37. We recognize that Hancock predates the current version of
Ohio's self-defense statute. However, a careful review of Hancock and the cases upon which
it relies leads us to conclude that Hancock still applies to the current statutory framework
of R.C. 2901.05 and its treatment of self-defense as an affirmative defense.
{¶ 42} In reaching its conclusion that a review of the sufficiency of the evidence does
not apply to affirmative defenses, the Supreme Court of Ohio in Hancock found persuasive
the logic of the United States Court of Appeals for the Sixth Circuit in Allen v. Redman, 858
F.2d 1194 (6th Cir.1988). In Allen, the Sixth Circuit considered the question of "whether,
in Michigan, when the defendant introduces evidence of insanity, proof of sanity becomes
an element of the offense charged." Allen at 1197. Under Michigan law, once a defendant
introduces some evidence of insanity, the burden of proof shifts to the prosecution to prove
sanity beyond a reasonable doubt. Id., citing People v. Murphy, 416 Mich. 453, 463-64
(1982). The defendant argued that it must follow that sanity becomes an "element" of the
No. 19AP-879 14
charged offense for due process purposes once a defendant introduces evidence required to
shift the burden to the state. However, the Sixth Circuit rejected the defendant's argument
and found that a state's "mere acceptance of the burden of proof" on the affirmative defense
does not transform the affirmative defense into an element of the charged offense. Allen at
1197, citing Engle v. Isaac, 456 U.S. 107, 120-21 (concluding a state may elect to carry the
burden of proof on a defendant's properly raised affirmative defense without designating
the absence of the defense an element of the crime). The Allen court noted that unless a
criminal offense statute specifically included sanity as an element of the offense, the
burden-shifting triggered by a defendant's introduction of evidence of insanity as an
affirmative defense did not operate to transform sanity into an element of the offense. Allen
at 1199-1200.
{¶ 43} Applying the reasoning of Allen and Hancock, there is nothing in the current
version of R.C. 2901.05(B)(1) indicating that by shifting the burden of proof on the
affirmative defense of self-defense, the General Assembly intended to transform the
absence of self-defense into an essential element of a criminal offense. Moreover, there is
nothing in the statutory definition of murder as charged in R.C. 2903.02 indicating the
absence of self-defense is an element of the offense. See State v. McCall, 10th Dist. No.
18AP-932, 2021-Ohio-1032, ¶ 20 (noting "R.C. 2903.02(A) provides that '[n]o person shall
purposely cause the death of another' "). Instead, the structure of R.C. 2901.05
contemplates the proof required for "all elements of the offense" as separate and distinct
from the poof required for an affirmative defense even where the state bears the burden of
disproving the affirmative defense. R.C. 2901.05(A) and (B)(1). Where the General
Assembly has chosen not to explicitly designate the absence of self-defense as contained in
R.C. 2901.05(B)(1) an essential element of the charged offense, we decline to implicitly read
such a designation into the statute.
{¶ 44} It is also relevant that, in describing the difference between sufficiency of the
evidence and manifest weight of the evidence, this court has previously explained that "[a]
challenge to the sufficiency of the evidence involves the prosecution's burden of production,
while a challenge to the weight of the evidence involves the prosecution's burden of
persuasion." (Emphasis added.) State v. Petty, 10th Dist. No. 11AP-716, 2012-Ohio-2989,
¶ 23. See also State v. Ward, 10th Dist. No. 10AP-430, 2011-Ohio-608, ¶ 6 ("[a] challenge
No. 19AP-879 15
to the sufficiency of the evidence supporting a conviction requires a court to determine
whether the state has met its burden of production at trial"), citing Thompkins at 390.
Under the current version of R.C. 2901.05, while the burden of proof for the affirmative
defense of self-defense has shifted to the state, the burden of production for all affirmative
defenses, including self-defense, remains with the defendant. See State v. Parrish, 1st Dist.
No. C-190379, 2020-Ohio-4807, ¶ 14 ("the recent changes to R.C. 2901.05 * * * [do] not
change the accused's burden of production with respect to self-defense"); State v. Petway,
11th Dist. No. 2019-L-124, 2020-Ohio-3848, ¶ 55 ("[u]nder the amended statute, the
defendant retains the burden of production, which is the burden of producing evidence that
'tends to support' that the defendant used the force in self-defense," while "[t]he burden of
persuasion has been shifted to the prosecution to disprove at least one of the elements of
self-defense beyond a reasonable doubt"). Thus, if the state does not bear the burden of
production on self-defense, it follows that sufficiency of the evidence is not the proper
framework to review whether the state proved the absence of self-defense.
{¶ 45} This conclusion does not leave Messenger without an avenue to challenge the
state's proof relative to his claim of self-defense. Though a review under the sufficiency of
the evidence is not appropriate, Messenger's argument nonetheless presents a challenge to
the manifest weight of the evidence. See State v. Ferrell, 10th Dist. No. 19AP-816, 2020-
Ohio-6879, ¶ 54 (in a case involving the post-March 28, 2019 version of the self-defense
statute, appellant's argument that there was insufficient evidence to sustain his murder
conviction did not assert that the state failed to produce evidence to establish all the
essential elements of the offense; instead, he argued the evidence established he acted in
self-defense which presented a challenge to the manifest weight of the evidence rather than
the sufficiency of the evidence), citing State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-
3942, ¶ 21; Petty at ¶ 23. Accordingly, we will consider Messenger's argument that the state
failed to prove he did not act in self-defense as a challenge to the manifest weight of the
evidence.
{¶ 46} Having reviewed the record, we find there was sufficient evidence to support
Messenger's conviction of murder.
No. 19AP-879 16
B. Manifest Weight of the Evidence
{¶ 47} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4783, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution
of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42
(1982). Determinations of credibility and weight of the testimony are primarily for the trier
of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Thus,
the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all,
part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 48} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but 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." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 49} Messenger argues his conviction is against the manifest weight of the
evidence because the jury clearly lost its way in not believing his claim of self-defense.
Essentially, Messenger asserts that his testimony demonstrates he acted in self-defense and
the state did not convincingly prove otherwise. However, a conviction is not against the
manifest weight of the evidence because the trier of fact believed the state's version of events
over the defendant's version. Lindsey at ¶ 43 (rejecting defendant's argument that his
conviction was against the manifest weight of the evidence because the jury did not believe
his claim of self-defense), citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523,
No. 19AP-879 17
¶ 19. As we noted above, the trier of fact remains free to believe "all, part, or none of a
witness's testimony." Raver at ¶ 21.
{¶ 50} The state is required to disprove only one of the elements of self-defense
beyond a reasonable doubt in order to sufficiently disprove a defendant's claim of self-
defense. Here, though Messenger asserts Pack was at fault in creating the situation giving
rise to the affray by climbing over the fence in the back yard, Messenger admitted in his
testimony that he voluntarily chose, while armed, to follow Pack into the house after their
earlier physical altercation and their more recent verbal exchange in the yard. See State v.
Ellis, 10th Dist. No. 11AP-939, 2012-Ohio-3586, ¶ 16 (a jury may properly find appellant at
fault for the situation giving rise to the affray where appellant chose to enter a place where
he knew the victim would be despite knowing that a confrontation might ensue and in
choosing to follow the victim out of the store and engage in a further confrontation outside
instead of staying inside the store and walking away from the volatile situation). Though
Messenger testified he felt he had no choice but to follow Pack into the house because of his
allegation that Pack told him the presence of his gun would not stop Pack from grabbing
Messenger and forcing him into the house, we note that none of the other witnesses testified
to hearing Pack say such a thing.
{¶ 51} Additionally, by Messenger's own testimony, he first pulled a gun on Pack
while outside the house and then again pulled his gun while Pack was walking slowly toward
him inside the house. Even believing Messenger's testimony on this point despite no other
witness testifying to having seen Messenger point his gun at Pack while outside the house,
Messenger ignores that by brandishing his gun, he escalated the conflict. Ellis at ¶ 16
("appellant escalated the conflict by announcing in the store that he was carrying a gun");
Ferrell at ¶ 30 (noting that appellant's argument that placing his gun against the victim's
head should have served as his intention to retreat from the initial encounter ignores that
by brandishing his gun, appellant only escalated the situation).
{¶ 52} Even if we were to agree with Messenger that the state did not prove that he
was at fault at creating the situation giving rise to the affray, we cannot find that the jury
clearly lost its way in finding that Messenger did not have a reasonable and honest belief
that he was in imminent danger of death or great bodily harm and his only means of escape
was in the use of deadly force. By Messenger's own testimony, in the moments when he
No. 19AP-879 18
was standing inside the house and Pack started to walk toward him, Messenger did not fear
that Pack, himself, was armed. Instead, Messenger claimed he was afraid that Pack would
approach him and disarm him since, he claimed, Pack was trained in how to disarm an
individual. The jury could have concluded from Messenger's testimony, alone, that
Messenger's fear of being disarmed was not reasonable and/or that shooting Pack 14 times
was not Messenger's only means of escape. Additionally, John testified that Messenger
walked deliberately into the house, slammed the door, and immediately started firing his
gun. John's testimony supports the state's argument that Messenger came into the house
in an angry rage with the purpose of killing Pack, again undercutting Messenger's assertion
that he was not at fault for the situation and that he had a reasonable and honest belief that
he was in imminent danger of death or great bodily harm.
{¶ 53} Thus, in light of the evidence discussed above, as well as the record in its
entirety, we do not find the jury clearly lost its way in concluding the state proved that
Messenger did not act in self-defense when he shot and killed Pack. We conclude, therefore,
that the manifest weight of the evidence supports Messenger's conviction of murder.
Accordingly, we overrule Messenger's first assignment of error.
IV. Second Assignment of Error – Admission of Photographs
{¶ 54} In his second assignment of error, Messenger argues the trial court erred in
admitting into evidence photographs of Pack with his family and in his security guard
uniform. Generally, the admission or exclusion of evidence lies in the sound discretion of
the trial court, and we will not disturb that decision absent an abuse of discretion. State v.
Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 16, citing State v. Issa, 93 Ohio St.3d
49, 64 (2001). An abuse of discretion implies that the court's attitude was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 55} Messenger's argument under this assignment of error relates to three
photographs. One photograph showed Pack with his father and sisters, another photograph
showed Pack in his security guard uniform, and the third was a photograph of Pack's body
at the scene of the shooting. Messenger asserts these photographs were unfairly prejudicial.
{¶ 56} Evid.R. 401 defines "relevant evidence" as "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." However, Evid.R.
No. 19AP-879 19
403(A) provides that "[a]lthough 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."
{¶ 57} As to the photographs showing Pack while he was still alive, Messenger
argues that any potential probative value of the photographs was minimal as there was no
dispute about the identity of the parties or the cause of death. Thus, Messenger asserts the
photographs are unfairly prejudicial because they serve mostly to engender sympathy for
the victim from the jury. However, Messenger does not specify any prejudice beyond his
claim that the photographs humanize the victim, and he does not articulate how the
admission of the photographs resulted in any material prejudice. State v. Hughes, 10th
Dist. No. 14AP-360, 2015-Ohio-151, ¶ 41, quoting Darazim at ¶ 16 (stating " '[a] trial court
has broad discretion over the admission or exclusion of evidence, and a reviewing court
generally will not reverse an evidentiary ruling absent an abuse of discretion that materially
prejudices the affected party' "). As to the photograph showing Pack's body, the location of
the body relative to where Messenger claimed to be standing during the shooting was
relevant to determining how the events unfolded. We find the probative value from these
photographs outweighs any potential prejudice. See State v. Jones, 10th Dist. No. 18AP-
33, 2019-Ohio-2134, ¶ 34-35 (finding no error in admission of photographs of victim's
severe burn injuries, noting "[t]hat the photographs may be gruesome does not render them
inadmissible if they otherwise satisfy the balancing test of Evid.R. 403(A)").
{¶ 58} Because the trial court did not abuse its discretion in admitting the contested
photographs into evidence, we overrule Messenger's second assignment of error.
V. Third Assignment of Error – Evidence of Messenger's Incarceration
{¶ 59} In his third assignment of error, Messenger argues the trial court erred in
admitting evidence of his incarceration prior to trial. More specifically, Samantha testified
she continued to visit Messenger while he was in jail awaiting trial, and the state introduced
a record of her 59 visits with Messenger between March 4 and October 28, 2019. Messenger
asserts this evidence interfered with his presumption of innocence. As Messenger
concedes, however, his counsel did not object to this evidence at trial, and thus our review
is limited to plain error. Hughes at ¶ 28, citing State v. Jackson, 92 Ohio St.3d 436, 444
(2001), citing State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus; Crim.R. 52(B). An
No. 19AP-879 20
appellate court recognizes plain error with the utmost caution, under exceptional
circumstances, and only to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio
App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, ¶ 139.
{¶ 60} For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three
prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error must
be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error must have
affected "substantial rights," meaning the error must have affected the outcome of the trial.
State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
{¶ 61} Messenger argues the admission of the evidence of Samantha's many visits
with Messenger while he was incarcerated prior to trial was not relevant and was unfairly
prejudicial, serving only to erode his presumption of innocence. However, the state
introduced this evidence to demonstrate that Samantha and Messenger were still in a
romantic relationship and to cast doubt on her assertion that she had not discussed the trial
or her planned testimony with Messenger prior to trial. Though Messenger argues the
potential evidentiary value of informing the jury of the frequency of Messenger's and
Samantha's communication does not outweigh the prejudice it caused him by the jury
learning of his incarceration, the trial court fully explained the presumption of innocence
in the jury instructions. "A jury is presumed to follow a trial court's instructions." Jones at
¶ 64 (noting that "[e]vidence about a defendant's arrest and ensuing custody does not
contravene the presumption of innocence," and "[w]hile no specific curative instruction
was requested or provided, the trial court fully explained the presumption of innocence in
the jury instructions"), citing State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, ¶ 75,
and State v. Trewartha, 10th Dist. No. 05AP-513, 2006-Ohio-5040, ¶ 21. Thus, Messenger
cannot demonstrate any error, let alone plain error, from the admission of this evidence.
We overrule Messenger's third assignment of error.
VI. Fourth Assignment of Error – Ineffective Assistance of Counsel
{¶ 62} In his fourth and final assignment of error, Messenger argues he received the
ineffective assistance of counsel. More specifically, Messenger asserts his counsel was
ineffective in failing to make or renew certain evidentiary objections throughout the trial
No. 19AP-879 21
and in allowing the coroner to appear as the last witness at trial after Messenger testified in
during the defense's case.
{¶ 63} In order to prevail on a claim of ineffective assistance of counsel, Messenger
must satisfy a two-prong test. First, he must demonstrate that his counsel's performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong
requires Messenger to show that his counsel committed errors which were "so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. If Messenger can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, Messenger must establish
there is a reasonable probability that, but for his counsel's errors, the result of the trial
would have been different. A "reasonable probability" is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694.
{¶ 64} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
Messenger contends his trial counsel was ineffective in (1) failing to renew its objection to
the admission of photographs of Pack; (2) failing to object to evidence of his pre-trial
incarceration; (3) failing to object to evidence of a search warrant; (4) failing to object to
the coroner testifying out of order and appearing as the last witness at trial; (5) failing to
object to repetitive photographs of Pack; (6) failing to object to lay opinion testimony;
(7) failing to object to evidence of the character and conduct of a witness; and (8) failing to
object to evidence of Messenger owning multiple guns. Additionally, Messenger asserts the
cumulative effect of counsel's alleged errors rendered his trial counsel ineffective.
A. Objections to Admission of Photographs
{¶ 65} Messenger's first allegation of ineffective assistance of counsel is his trial
counsel's failure to renew its objection to the photographs discussed in his second
assignment of error. To succeed on a claim of ineffective assistance of counsel based on
counsel's failure to file an objection, an appellant must demonstrate that the objection had
a reasonable probability of success. Jones at ¶ 52, citing State v. Johns, 10th Dist. No. 11AP-
203, 2011-Ohio-6823, ¶ 25. If the objection would not have been successful, the appellant
cannot prevail on a claim of ineffective assistance of counsel. Id., citing Johns at ¶ 25.
No. 19AP-879 22
{¶ 66} However, we determined in our resolution of Messenger's second assignment
of error that the trial court did not abuse it discretion in admitting the photographs into
evidence. Thus, a renewed objection to the admission of these photographs did not have a
reasonable probability of success, and Messenger's counsel was not deficient in failing to
renew that objection.
B. Objection to Evidence of Incarceration
{¶ 67} Messenger's second allegation of ineffective assistance of counsel is his trial
counsel's failure to object to the evidence of his pre-trial incarceration. This argument
reflects the argument Messenger made under his third assignment of error on appeal.
Though we reviewed Messenger's third assignment of error under a plain error standard,
we determined in resolving his third assignment of error that the admission of the evidence
of Messenger's pre-trial incarceration was not error, let alone plain error. Thus, an
objection as to the admissibility of this evidence would not have been successful, and
Messenger's trial counsel was not deficient in failing to object to the admissibility of the
evidence. Jones at ¶ 52, citing Johns at ¶ 25.
C. Objection to Evidence of Search Warrant
{¶ 68} Messenger's third allegation of ineffective assistance is his trial counsel's
failure to object to evidence of a search warrant, arguing it interfered with his presumption
of innocence. However, an objection on these grounds was unlikely to be successful for the
same reason an objection related to evidence of Messenger's pre-trial incarceration was
unlikely to be successful. See Jones at ¶ 64. Additionally, trial counsel's decision not to
object to the admission of the search warrant was likely a strategic decision to not call
attention to the search warrant affidavit as it only highlighted the state's evidence against
Messenger and did not aid in his claim of self-defense. Strategic and tactical decisions of
trial counsel, even if ultimately unsuccessful, cannot form the basis of a claim of ineffective
assistance of counsel. Columbus v. Oppong, 10th Dist. No. 15AP-1059, 2016-Ohio-5590,
¶ 30, citing State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 61.
D. Coroner's Testimony After Defense Case
{¶ 69} Messenger's fourth allegation of ineffective assistance of counsel is his trial
counsel's failure to object to the order of witnesses. More specifically, the deputy coroner
who conducted Pack's autopsy became ill during the trial and was unable to testify as
No. 19AP-879 23
originally planned. The parties stipulated to the autopsy report and, when the state rested
its case-in-chief, the state reserved the right to recall the deputy coroner if he were available.
The next day, prior to Messenger's testimony, the state indicated the deputy coroner was
still ill and indicated it would call a different deputy coroner to testify after reviewing the
relevant documentation. Defense counsel did not object to this arrangement, and the
substitute deputy coroner testified after Messenger testified in his own defense.
{¶ 70} Messenger now argues the lack of objection to this out-of-order testimony
amounted to deficient performance, asserting the only reasonable strategy was to have
Messenger be the last witness to testify. However, Messenger's trial counsel made the
strategic decision to be accommodating to the trial court's schedule and did not object to
the order of witnesses. This decision, a matter of trial strategy, does not support
Messenger's claim of ineffective assistance of counsel. Oppong at ¶ 30. Additionally,
Messenger does not articulate any prejudice resulting from this strategic decision.
E. Objections to Repetitive Photographs and Videos
{¶ 71} Messenger's fifth allegation of ineffective assistance of counsel is his trial
counsel's failure to object to what he classifies as repetitive photographs and videos of Pack
and the scene of the shooting. Again, however, Messenger does not show that an objection
would have been successful, nor does he articulate what prejudice resulted from his trial
counsel's failure to object.
F. Objection to Lay Opinion Testimony
{¶ 72} Messenger's sixth allegation of ineffective assistance of counsel is his trial
counsel's failure to object to what he deems impermissible lay opinion testimony.
Specifically, Messenger asserts his trial counsel was deficient in failing to object to
Breanna's testimony that Messenger fired his gun "way more" times than he needed to. (Tr.
at 273.) However, Messenger again does not demonstrate a reasonable likelihood that the
results would have been different had his trial counsel objected to this testimony. There
was ample other evidence that Messenger fired his gun many times, including the autopsy
report that 14 bullets struck Pack. Thus, the lack of an objection to this testimony does not
satisfy the second prong of the Strickland test.
No. 19AP-879 24
G. Objection to Evidence of Character and Conduct of a Witness
{¶ 73} Messenger's seventh allegation of ineffective assistance of counsel is his trial
counsel's failure to object to what he deems impermissible character and conduct evidence
regarding a witness. More specifically, Messenger asserts his trial counsel should have
objected when Rebecca testified that she knew Pack from the time he moved in the house
next door because Pack knocked on her door in the overnight hours saying Samantha had
beat him up. Messenger asserts this testimony violated Evid.R. 608(A) as it was evidence
of Samantha's reputation or character for truthfulness but that no party claimed Samantha
testified untruthfully. Thus, he argues his trial counsel should have objected to its
admission. However, when read in context, the contested testimony was not used to
impeach Samantha's credibility or otherwise offer an opinion on her character. Instead,
the testimony established how long Rebecca had known Pack. Accordingly, Messenger
cannot show either that an objection would have been sustained or that he suffered any
prejudice from the admission of this testimony. The lack of objection to Rebecca's
testimony does not substantiate a claim of ineffective assistance of counsel.
H. Objection to Evidence of Messenger's Gun Ownership
{¶ 74} Messenger's eighth allegation of ineffective assistance of counsel is his trial
counsel's failure to object to Wiseman's testimony that she had seen several of Messenger's
guns at the West Mound residence. Messenger asserts this testimony suggested to the jury
that he was generally dangerous. However, Messenger, himself, testified to frequently
carrying a gun openly due to lack of a concealed carry permit. He does not articulate how
Wiseman's testimony that he had more than one gun caused him any specific prejudice, nor
does he explain how his ownership of multiple firearms undercuts his claim of self-defense.
Accordingly, his trial counsel was not deficient in failing to object to Wiseman's testimony.
I. Cumulative Effect of Errors
{¶ 75} Messenger finally argues that even if we conclude none of the above alleged
errors are sufficient to find ineffective assistance of counsel standing alone, the cumulative
effect of these errors nonetheless resulted in Messenger being denied a fair trial.
{¶ 76} Messenger relies on State v. DeMarco, 31 Ohio St.3d 191 (1987), for the
proposition that although errors at trial singularly "may not rise to the level of prejudicial
error, a conviction will be reversed where the cumulative effect of the errors deprives a
No. 19AP-879 25
defendant of the constitutional right to a fair trial." Id. at paragraph two of the syllabus.
Messenger urges us to conclude that his trial counsel's many alleged errors, when
considered together, deprived him of a fair trial.
{¶ 77} In considering Messenger's eight alleged instances of ineffective assistance of
counsel, we noted that many of his allegations failed to satisfy the first prong of the
Strickland test and did not rise to the level of deficient performance. Moreover, even if we
were to agree with Messenger that his counsel's overall performance was deficient under
the first prong of Strickland, we are constrained by the second prong of Strickland which
requires Messenger to demonstrate that but for his counsel's performance, the outcome of
the proceedings would have been different. Here, the sole issue at trial was whether
Messenger acted in self-defense. None of Messenger's allegations of ineffective assistance
of counsel cast doubt on that central question. Although Messenger complains about his
trial counsel's various failures to object to certain evidence, he does not articulate how any
of those objections would have caused the jury to reach a different conclusion as to whether
he shot Messenger in self-defense. Thus, because Messenger is unable to demonstrate the
requisite prejudice under the second prong of Strickland, the cumulative effect of the
alleged errors did not deprive him of a fair trial. Hughes at ¶ 74.
{¶ 78} For these reasons, Messenger is unable to demonstrate he received the
ineffective assistance of counsel. We overrule Messenger's fourth and final assignment of
error.
VII. Disposition
{¶ 79} Based on the foregoing reasons, the sufficiency of the evidence and the
manifest weight of the evidence support Messenger's conviction of murder, the trial court
did not abuse its discretion or plainly err in its evidentiary rulings, and Messenger did not
receive the ineffective assistance of counsel. Having overruled Messenger's four
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.