State v. Neal , 2022 Ohio 1290 ( 2022 )

[Cite as State v. Neal, 2022-Ohio-1290.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210166
TRIAL NO. B-180074-B
Plaintiff-Appellee, :
vs. :
O P I N I O N.
ROBERT EARL NEAL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: April 20, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Following a bench trial, the trial court found defendant-appellant
Robert Earl Neal guilty of murder and having a weapon while under a disability,
rejecting Neal’s claim that he shot Anthony Harris in self-defense. On appeal, Neal
challenges the weight and sufficiency of the evidence supporting his murder
conviction, the trial court’s admission of certain evidence over his objection, and its
failure to merge allied offenses of similar import for sentencing. We vacate Neal’s
sentences in part and affirm the trial court’s judgment in all other respects.
Background Facts and Procedure
{¶2} At around 3:30 in the morning of January 24, 2018, Neal, John Jenkins,
Deoveon Riggins, Markell Harris (“Markell”), and Devin Goley stopped for gas and
other items at the VP1 Racing Fuels gas station in Cincinnati. While some of them were
still in the store, Anthony Harris (“Harris”) parked at a pump near the store entrance
and entered the store to buy snacks, as he typically did on his way home from his third-
shift job.
{¶3} Neal and his friends returned to their car, and then Harris finished
making his purchases and got back into his car. According to Jenkins, Neal told his
friends that he would be right back and that he was going to “holler at dude.” At the
time, Neal had a loaded Smith & Wesson 9 mm handgun with a red-laser sight in the
pocket of his hoodie sweatshirt. Jenkins testified that he was sitting in the back seat
rolling a marijuana blunt when he heard three gunshots. Jenkins said that Neal then
came back to their car, telling them to, “Go, go, go.”
{¶4} Referring to Harris, Jenkins testified, “And that’s when we seen the
person, the victim’s head. He was dead. * * * In his car.” Jenkins said that Neal told
1 The gas station is referred to as “VP” and “BP” in the record.
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OHIO FIRST DISTRICT COURT OF APPEALS
him that he thought he “had a lick. And the dude didn’t have nothing.” According to
Jenkins, Neal said he shot the victim because the victim had blown smoke in his face.
{¶5} Riggins was unable to start their car at first, so Neal, Markell, and Goley
ran away. After the car started, Riggins and Jenkins picked up Neal and the others a
few blocks away. They drove straight to Akron, Ohio, where Neal, Jenkins, and
Markell had family.
{¶6} Surveillance videos from the gas station showed that Harris left the
store with his purchases and got into his car. Then as Harris raised his hand to his
face, Neal approached him, leaned into Harris’s partially opened driver’s window, and
extended his right hand inside the car. After several seconds, a cloud of smoke
emanated from inside the car, and then Neal returned to his friends’ car.
{¶7} Police arrived within minutes of the shooting and found Harris dead in
his car, his right elbow resting on the closed center console between the front seats
and his right hand resting on his right thigh. An officer testified that there was a black
pistol lying on the front passenger seat of Harris’s car, which was difficult to see
because of the dark interior of the car. Photographs taken by a criminalist at the scene
showed that the pistol’s barrel was partially concealed by a piece of paper, a portion of
which was under a McDonald’s bag. Other debris on the passenger seat included three
empty soda cans, a cell phone, and a small cigar package. A criminalist testified that
he had looked through the driver’s side window into the car several times but had
never spotted the pistol on the passenger seat until someone else told him it was there.
Police found three baggies of marijuana inside the closed center console.
{¶8} An officer recognized Riggins from the surveillance video, and a search
of Riggins’s Facebook page led police to Neal’s Facebook page. A video posted on
Neal’s Facebook page prior to the shooting showed Neal wearing the same distinctive
hoodie that he was wearing in the surveillance videos the night of the shooting.
Another video, posted to Neal’s Facebook page the day after the shooting, showed him
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handling the Smith & Wesson handgun used in the shooting, and a Facebook chat
showed that Neal offered the same handgun for trade, about nine days after the
shooting. Fingerprints from Neal’s left hand were found on Harris’s driver’s window.
A review of cell tower records showed that Neal’s phone left Cincinnati at the time of
the shooting and traveled to Akron.
{¶9} On February 8, 2018, about two weeks after Harris was killed, Neal was
arrested at an Akron apartment. Police found Neal’s Smith & Wesson handgun in a
bedroom. Testing revealed Neal’s handgun to be the weapon used to kill Harris.
{¶10} An autopsy revealed that Harris sustained three gunshot wounds: to his
left cheek, to the left side of his chest, and to his left arm with a reentrance wound of
his torso. The coroner testified that the muzzle of the gun had been in contact with
Harris’s cheek at the time that the gunshot wound to the cheek occurred.
{¶11} In his defense, Neal argued that he acted in self-defense. He testified
that he went into the store, but left while some of his friends were still inside. He said
he went back to their car and began smoking a cigar. When the others returned to the
car, Riggins and Jenkins got into the car, Goley talked on his phone, and Markell
pumped gas. Neal said that he left his friends’ car to buy more cigars from the store
when Harris called him over to his car and asked if he wanted to buy some weed. Neal
said that he leaned into the car to see the offered weed when he noticed that Harris
had a gun pointed at his face. Neal said that he thought Harris was going to shoot him,
so he reached into his hoodie pocket and wrapped his hand around the back of his own
gun with his finger on the trigger. Neal said that he did not want Harris to realize that
he was reaching for a gun because he felt like if he moved too quickly, Harris would
shoot him. Neal said that, rather than run away, he shot Harris three times because
he thought Harris was going to shoot him. Neal testified that when his friends asked
him what happened, he was too upset to talk about it.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Neal admitted that he lied to detectives about not owning a phone, not
having a Facebook account, and never having been to Cincinnati, saying that he did so
because murder carried a life sentence and he did not think anything he said to the
detectives would help him. Neal acknowledged that he did not tell detectives that he
had acted in self-defense when he shot Harris because he did not think that Ohio had
such a defense.
{¶13} On cross-examination, Neal demonstrated how Harris had been holding
a gun in his right hand. The trial court noted, “Let the record reflect that I see Mr.
[Neal] with his right hand on his lap next to his crotch on his lap[.]” When Neal was
asked, “So based on your testimony, it wasn’t in your face, there wasn’t a gun in your
face?,” Neal replied, “I mean in the window so, technically, yes, that’s my face.” When
Neal was asked if he was being robbed by Harris, Neal replied, “I don’t know. I didn’t
wait that long to find out.” Neal could not remember if Harris had threatened him.
Neal said he slowly reached for his own gun, “pulled it out and stuck it in the car,” and
“pulled the trigger three times.” He said that he refused to talk about it on the drive to
Akron: “I didn’t want to admit that I went over there and seen a gun and got scared
and shot somebody.”
{¶14} Neal and Riggins were charged in a 12-count indictment. Neal was
charged in counts seven through twelve as follows:
Count Seven: Murder in violation of R.C. 2903.02(A);
Count Eight: Murder in violation of R.C. 2903.02(B);
Count Nine: Felonious Assault in violation of R.C. 2903.11(A)(1);
Count Ten: Felonious Assault in violation of R.C. 2903.11(A)(2);
Count Eleven: Having a Weapon While Under a Disability in violation
of R.C. 2923.13(A)(3);
Count Twelve: Having a Weapon While Under a Disability in violation
of R.C. 2923.13(A)(2).
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OHIO FIRST DISTRICT COURT OF APPEALS
Each of counts eight through ten carried accompanying firearm specifications.
{¶15} Following a bench trial, Neal was found guilty on each count. At
sentencing, the court determined that counts seven, eight, nine, and ten (the murder
and felonious-assault counts) merged for sentencing purposes and that counts eleven
and twelve (the weapon-under-disability counts) merged for sentencing purposes.
Because the prosecutor elected to pursue sentencing on the murder charged in count
seven, the court entered a final conviction and sentence on count seven, the
accompanying three-year firearm specification, and count eleven. The court imposed
an indefinite term of 15 years to life in prison on count seven, along with the mandatory
three-year term on the firearm specification (to be served prior to and consecutively
to the 15-years-to-life term), and 36 months on count eleven. The court ordered the
sentence on count eleven to run concurrently to the sentence on count seven, for an
aggregate prison term of 18 years to life. However, as the state concedes, the court’s
sentencing entry did not accurately reflect the sentence announced in open court,
which we discuss in relation to Neal’s fourth assignment of error.
Weight and Sufficiency
{¶16} In his first and second assignments of error, Neal argues that his murder
conviction was not supported by the weight and sufficiency of the evidence because he
acted in self-defense. He does not argue that the state failed to produce evidence on
all the essential elements of murder contained in R.C. 2903.02(A). Rather, he asserts
that the state failed to disprove his claim that he shot and killed Harris in self-defense.
Neal raises no challenge to the evidence supporting his weapon-under-disability
conviction.
{¶17} In reviewing a challenge to the weight of the evidence, we must review
the entire record, weigh the evidence, consider the credibility of the witnesses, and
determine whether the trier of fact clearly lost its way and created a manifest
miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 5416
OHIO FIRST DISTRICT COURT OF APPEALS
(1997). In reviewing the sufficiency of the evidence, we must determine whether,
“after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d
1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus.
{¶18} The elements of self-defense in the use of deadly force are: (1) the
defendant was not at fault in creating the situation giving rise to the affray; (2) the
defendant had a bona fide belief that he was in imminent danger of death or great
bodily harm and that his only means of escape from such a danger was in the use of
such force; and (3) the defendant did not violate any duty to retreat or avoid the
danger. State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 48, citing
State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). The elements of self-
defense are cumulative, so a defendant’s self-defense claim fails if any one of the
elements is not present. Id., citing State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-
3751, 772 N.E.2d 81, ¶ 73.
{¶19} Under R.C. 2901.05, if there is evidence presented at trial that tends to
support that the defendant used force against another in self-defense, the state must
prove beyond a reasonable doubt that the defendant did not use the force in self-
defense. R.C. 2901.05(B)(1). Once the initial showing is made, the burden of
persuasion requires the state to disprove at least one of the elements of self-defense
beyond a reasonable doubt. Smith at ¶ 49, citing State v. Petway, 2020-Ohio-3848,
156 N.E.3d 467, ¶ 55 (3d Dist.), and State v. Carney, 10th Dist. Franklin No. 19AP-
402, 2020-Ohio-2691, ¶ 31. However, the burden of production remains with the
defendant, so the defendant has “[t]he burden of going forward with the evidence of
an affirmative defense.” State v. Williams, 1st Dist. Hamilton No. C-190380, 2020-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-5245, ¶ 7, quoting R.C. 2901.05(A). So the burden of persuasion does not fall to
the state until the defendant first meets his burden of production. Id.{¶20} To meet the burden of production, the defendant must produce
evidence that, “when viewed in the light most favorable to the defendant, is sufficient
to cast a reasonable doubt as to guilt.” State v. Parrish, 1st Dist. Hamilton No. C-
190379, 2020-Ohio-4807, ¶ 14, citing State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d
195 (1978), paragraph one of the syllabus. “If the evidence generates only a mere
speculation or possible doubt, [such] evidence is insufficient to raise the affirmative
defense, and submission of the issue to the [trier of fact] will be unwarranted.” State
v. Davidson-Dixon, 2021-Ohio-1485, 170 N.E.3d 557, ¶ 20 (8th Dist.), quoting
Melchior at 20.
{¶21} The state argues that Neal did not meet his burden of production to
show that he used deadly force in self-defense, but Neal’s assertion that Harris pointed
a gun in his face, which caused him to act in self-defense, was supported by evidence
that Harris had a gun within his reach. Because Neal’s testimony, whether credible or
not, must be viewed in the light most favorable to him, Neal met his burden of
production. So the burden of persuasion fell on the state to disprove one of the
elements of self-defense. We find that it did so.
{¶22} Neal asserts that he was not at fault in creating the situation leading to
Harris’s death because he was lured to Harris’s car under the guise of being offered
marijuana for sale. However, the state presented evidence that Neal approached
Harris to rob him, held a gun to Harris’s cheek and fired three times, and shot him
because Harris had blown smoke at him. A detective testified that it appeared from
the surveillance video that as Neal approached Harris, Harris raised a lit cigarette or
cigar toward his face, and that the smoke that soon emanated from the driver’s window
was consistent with a person’s smoking and was not consistent with gun smoke.
Viewing the evidence in the light most favorable to the state, the trier of fact may
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OHIO FIRST DISTRICT COURT OF APPEALS
reasonably have found that Neal was at fault for creating the situation leading to
Harris’s death because Neal tried to rob Harris at gunpoint and shot him after having
smoke blown in his face.
{¶23} Next, Neal argues that he was in imminent danger of death or great
bodily harm because Harris’s gun was inches from his face. However, after viewing
the evidence in the light most favorable to the state, the trier of fact may reasonably
have concluded that Neal’s belief was not objectively reasonable because Harris’s gun
was found on the passenger seat, partially covered by a piece of paper, on the opposite
side of the raised center console between the front seats. A reasonable trier of fact may
have found it unlikely that after being shot point-blank in the face and twice in the
body, Harris then lifted his gun from his lap and over the raised center console,
dropped his gun onto the passenger seat, partially covered it with a piece of paper, and
then moved his right hand back over the console to rest on his thigh, before
succumbing to his wounds. In addition, the trier of fact may have rejected as not
worthy of belief Neal’s testimony that he had seen Harris’s gun, because a police officer
and a criminalist testified that it was difficult to see the gun on the passenger seat from
the driver’s window, and photographs showed other debris on the seat.
{¶24} Neal also argues that he had no other means of escape and that deadly
force was his only option. With respect to the duty to retreat, “in most cases, ‘a person
may not kill in self-defense if he has available a reasonable means of retreat from the
confrontation.’ ” State v. Morgan, 1st Dist. Hamilton No. C-160495, 2017-Ohio-7489,
¶ 36, quoting State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997). Here,
after viewing the evidence in the light most favorable to the state, a reasonable trier of
fact could have found that Neal violated a duty to retreat when he shot someone who
was not pointing a gun at him.
{¶25} Neal argues that the only evidence that contradicted his own version of
the events was Jenkins’s testimony, which he asserts was not believable. And there
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OHIO FIRST DISTRICT COURT OF APPEALS
was evidence that challenged Jenkins’s credibility. Jenkins testified that in the days
leading up to Harris’s death, he had been in Cincinnati selling drugs and hanging out
with Neal and the others. He admitted that he had been convicted of several felonies,
had previously served three prison terms, and at the time of Neal’s murder trial was
facing felony trafficking and weapons charges in Summit County, Ohio. He said that
the prosecutor and police had made him no promises with respect to his testifying
against Neal, and that he hoped for “consideration” on his pending charges in the form
of a lighter sentence. He admitted that when he was first interviewed by police about
Harris’s death, he lied to them and told them that Neal never talked about what
happened. The trial court was in the best position to weigh the credibility of the
witnesses and was free to believe or disbelieve Jenkins’s testimony.
{¶26} Neal also argues that Jenkins’s testimony was not supported by the
evidence and should not have been believed, specifically Jenkins’s testimony that Neal
said he shot Harris because Harris had blown smoke in his face. Neal argues that the
puff of smoke seen in the video did not emanate from Harris, as would support
Jenkins’s testimony about Neal’s stated reason for killing Harris, but came from Neal’s
fired gun. In support of his argument, Neal points to the absence of smoked cigarettes,
blunts, or butts in Harris’s car.
{¶27} On the other hand, the detective testified that on the surveillance video,
it looked as if Harris was raising a lit cigar or cigarette to his mouth before Neal
approached him and that it appeared to him that the emitted smoke was not consistent
with gun smoke but more consistent with a person’s smoking. The criminalist also
testified that there were ashes and a cigar package on the passenger seat. Contrary to
Neal’s assertions, there was enough evidence upon which the trier of fact could have
concluded that Jenkins’s testimony about Neal’s stated reason for shooting Harris was
credible and supported by other evidence. The trial court, as the trier of fact, was in
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OHIO FIRST DISTRICT COURT OF APPEALS
the best position to judge the credibility of the witnesses, and was free to disbelieve
Neal’s claim that he shot Harris in self-defense.
{¶28} Because the state disproved at least one element of self-defense beyond
a reasonable doubt, Neal’s murder conviction was based on sufficient evidence. After
our review of the record, we cannot say that the trial court clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be overturned.
Consequently, we overrule the first and second assignments of error.
Admission of Evidence
{¶29} In his third assignment of error, Neal argues that the trial court erred
by failing to exclude evidence under Evid.R. 403(A) where its probative value was
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the trier of fact. Specifically, he challenges the court’s admission of certain
evidence from his Facebook page. A trial court has broad discretion over the
admission or exclusion of evidence, and we will not reverse a trial court’s ruling on
evidentiary issues in the absence of an abuse of discretion and proof of material
prejudice. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶
181.
{¶30} Exclusion of relevant evidence under Evid.R. 403(A) “requires more
than mere prejudice, because anything adverse to a party’s case could be deemed
prejudicial to that party.” State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174
N.E.3d 754, ¶ 125. The rule requires exclusion only of unfairly prejudicial evidence,
which the Supreme Court of Ohio has defined as “that quality of evidence which might
result in an improper basis for a jury decision,” such as where “the evidence arouses
the jury’s emotional sympathies, evokes a sense of horror, or appeals to an instinct to
punish[.]” Id., quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743
N.E.2d 890 (2001).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} “Even in a jury trial, this is a difficult standard to meet, and broad
discretion is vested in the trial judge.” State v. Bays, 87 Ohio St.3d 15, 28, 716 N.E.2d
1126 (1999) (rejecting a claim that counsel was ineffective for failing to object under
Evid.R. 403(A) because counsel could reasonably assume that the judges would be
unaffected by any inflammatory material). Because this was a bench trial, we presume
that the trial court did not consider improper evidence in reaching its verdict. State v.
Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. Rather, “we
presume that the court considered only ‘relevant, material and competent evidence’
unless the record affirmatively discloses otherwise.” State v. Pennington, 1st Dist.
Hamilton Nos. C-170199 and C-170200, 2018-Ohio-3640, ¶ 46, quoting State v. Post,
32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).
{¶32} The trial court admitted records from Neal’s Facebook account that
included a chat that occurred the week after Harris’s death, discussing Neal’s offer of
a Smith & Wesson 9 mm handgun “with a beam” (laser sight) for trade and a photo of
the weapon. The evidence was probative of Neal’s possession of the weapon used to
kill Harris and his attempt to get rid of it before he was arrested.
{¶33} The court admitted a video posted to Neal’s Facebook page that showed
Neal sitting in a car as he and others watched drivers doing donuts in a snow-covered
parking lot, and showed Neal wearing the same distinctive clothing that he wore at the
time of the shooting. The evidence was probative of Neal’s identity as the shooter seen
in the gas station videos, an element that the state was required to prove.
{¶34} The court admitted a video posted to Neal’s Facebook page the day after
the shooting that showed Neal and the same four friends at an Akron apartment, some
of them still wearing clothing from the night before. The video showed Neal handling
the weapon used to kill Harris and others holding handguns, in the presence of
children. The trial court overruled a defense objection to the video, stating, “While I
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OHIO FIRST DISTRICT COURT OF APPEALS
do believe there could be some prejudice showing other illegal acts in the video, I think
it’s outweighed by the probative value showing the defendant with the firearm.”
{¶35} Neal has failed to demonstrate that Evid.R. 403(A) required exclusion
of the Facebook chat and videos: the evidence was probative of Neal’s identity, his
possession of the weapon used to kill Harris, and his attempt to get rid of the weapon,
and the record contains no indication that the evidence aroused in the trial court such
passion, sympathy, horror, or instinct to punish so as to be unfairly prejudicial.
Therefore, the court did not abuse its discretion in admitting the evidence. We
overrule the third assignment of error.
Sentencing
{¶36} As stated above, the trial court found that the murder counts and
felonious-assault counts merged for sentencing, and, of those four counts, it imposed
sentence on only the murder in count seven. However, the sentencing entry reflected
sentences were also imposed on counts eight (murder), nine (felonious assault), and
ten (felonious assault). In his fourth assignment of error, Neal argues that the trial
court erred when its sentencing entry failed to merge the murder and felonious-assault
counts and imposed sentence on all four counts, and the state concedes the error.
Therefore, we sustain the assignment of error. We vacate the sentences on counts
eight, nine, and ten, and remand the case for the trial court to enter an order that
reflects the sentence announced in open court. The judgment of the trial court is
otherwise affirmed.
Judgment affirmed in part, sentences vacated in part, and cause remanded.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
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