State v. Shoecraft

[Cite as State v. Shoecraft, 2018-Ohio-3920.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27860
:
v. : Trial Court Case No. 2017-CR-375
:
MARK A. SHOECRAFT, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 28th day of September, 2018.
...........
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Mark A. Shoecraft, Jr., appeals his conviction and
sentence for the following offenses: two counts of murder (proximate result), in violation
of R.C. 2903.02(B), both unclassified felonies, with both counts accompanied by three-
year firearm specifications; one count of felonious assault (serious harm), in violation of
R.C. 2903.11(A)(1), a felony of the second degree, accompanied by a three-year firearm
specification; two counts of felonious assault (deadly weapon), in violation of R.C.
2903.11(A)(2), both felonies of the second degree, with both counts accompanied by
three-year firearm specifications; one count of discharge of a firearm on or near prohibited
premises, in violation of R.C. 2923.162(A)(3) and (C)(4), a felony of the first degree,
accompanied by a three-year firearm specification; one count of carrying a concealed
weapon, in violation of R.C. 2923.12(A)(2), a felony of the fourth degree; one count of
having a weapon while under disability (prior drug conviction), in violation of R.C.
2923.13(A)(3), a felony of the third degree; and one count of aggravated trafficking in
drugs (Schedule I or II), in violation of R.C. 2925.03(A)(1) and (C)(1), a felony of the fourth
degree, accompanied by a one-year firearm specification. Shoecraft filed a timely notice
of appeal with this Court on January 10, 2018.
{¶ 2} The incident which forms the basis for the instant appeal occurred on the
night of January 31, 2017, when the victim, Eric Raglin, contacted an acquaintance, Mike
Fox, in order to arrange the purchase of methamphetamine. At the time that he received
the call from Raglin, Fox was riding in a motor vehicle with another individual, Damon
Glenn. Earlier that day, Glenn had asked Fox, a “neighborhood mechanic,” to perform
some work on Glenn’s vehicle. Glenn had picked up Fox in Vandalia, Ohio, and the two
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men were traveling back to Glenn’s house in Dayton so that Fox could repair the motor
vehicle. After overhearing Fox’s conversation with Raglin regarding the purchase of
methamphetamine, Glenn called the defendant-appellant, Shoecraft, as according to
Glenn’s testimony, he knew that Shoecraft was in possession of methamphetamine for
sale. Shoecraft informed Glenn that he did, in fact, have methamphetamine that he
would sell to Raglin. Upon being informed of the availability of the methamphetamine,
Raglin asked the men to meet him at a location on Basswood Avenue in Dayton, Ohio, in
order to conduct the sale.
{¶ 3} Shortly thereafter, Glenn and Fox arrived at the Basswood Avenue location
in Glenn’s vehicle. Shoecraft arrived by himself in a blue pickup truck. Shoecraft’s
friend, Bryan Kenney, also arrived at the location in a separate vehicle. The men parked
their vehicles on the south curb of Basswood Avenue in a row. Eventually, Raglin arrived
at the location on foot, and Shoecraft handed him a plastic bag containing approximately
an ounce of methamphetamine. Shoecraft informed Raglin that the price of the
methamphetamine was $600. Without handing the methamphetamine back over to
Shoecraft, Raglin stated that “his girl” had the money for the drugs in his car, which was
parked a short distance up Basswood Avenue. All of the men then walked to where
Raglin’s car, a white Honda Accord, was parked between two other vehicles against the
curb in front of an acquaintance’s residence on Basswood Avenue.
{¶ 4} Upon reaching his vehicle, Raglin opened the driver’s door and sat down in
the driver’s seat with the bag of methamphetamine. Raglin’s girlfriend, Amanda
Houchins, was sitting in the front passenger seat, and Raglin’s dog, a pit bull, was sitting
in the back seat of the vehicle. Shoecraft stood on the street partially inside the open
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driver’s door next to Raglin. Glenn stood on the driver’s side of the vehicle in the area
near the front left wheel of Raglin’s vehicle. Fox stood on the driver’s side of the vehicle
behind Shoecraft and Glenn. Both Shoecraft and Glenn testified that they observed
Houchins looking through her purse as if she was attempting to retrieve money to pay for
the methamphetamine.
{¶ 5} Suddenly, Raglin put his vehicle into drive, turned the wheel sharply to the
left, and drove quickly out of the parking space. Houchins testified that Raglin “veered
to the left as if he was just going off from the parking spot normally.” Tr. 84. Glenn and
Shoecraft testified that they were in fear for their lives when Raglin began to drive away
because they believed he was trying to hit them with his vehicle. Specifically, Shoecraft
testified that he had to grab Glenn by his right shoulder and pull him out of the way in
order for both of them to avoid being hit by Raglin’s vehicle. Houchins testified, however,
that there was no one standing in front of the vehicle when Raglin pulled out onto the
street.
{¶ 6} After Raglin began to drive away, Shoecraft pulled a handgun out of his
jacket pocket and began firing at the vehicle. Shoecraft admitted during his testimony
that he could have run away from the scene to avoid any danger, but he chose to stand
and fire his weapon at Raglin’s vehicle. The record establishes that Shoecraft fired his
handgun at the vehicle approximately seven times based upon spent shell casings
recovered at the scene. We note that the handgun used by Shoecraft was never
recovered by the police.
{¶ 7} Houchins testified that, upon hearing gunshots, she ducked her head down.
Houchins also testified that, shortly after the shooting started, Raglin lost control of the
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vehicle as it traveled down Basswood Avenue. The vehicle then crossed over the north
curb of Basswood Avenue, crashed through some brush, and finally came to a stop after
striking an iron railing in a parking lot off of Riverside Drive. Houchins testified that she
tried to rouse Raglin, but he was unresponsive. Houchins testified that she exited the
vehicle, ran back to her acquaintance’s apartment, and hid in a closet. Houchins testified
that she did not call 911 because she was in shock. After the shooting, Shoecraft, Glenn,
Fox, and Kenney fled the scene.
{¶ 8} Based upon a report of gunshots in the area, police and medics were
dispatched to the lot where Raglin’s vehicle had been wrecked. Dayton Police Officer
Stephen Lloyd testified that he observed a clearly deceased Raglin sitting in the driver’s
seat of the vehicle. As Raglin’s body was being removed from the vehicle, Officer Lloyd
observed that Raglin had a handgun concealed in the waistband of his pants that was not
visible while he was sitting in the driver’s seat. There was no evidence adduced at trial
that Raglin brandished a handgun during the confrontation with Shoecraft and the other
men.
{¶ 9} An autopsy was performed on Raglin by Montgomery County Chief Deputy
Coroner Lee Lehman. Dr. Lehman testified that Raglin sustained flesh wounds to his
left shoulder, chest, and right hand. Dr. Lehman also testified that Raglin was shot in the
back of the neck. The bullet entered the back of Raglin’s neck near the base of the skull
and came to rest at the top of the middle of his brain. Dr. Lehman testified that if Raglin
was slouched down in his seat, trying to avoid being shot while he was driving, this would
account for the trajectory the bullet followed as it traveled through his brain. Finally, Dr.
Lehman testified that the gunshot that struck Raglin in the head was fatal.
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{¶ 10} Officer Ronald Christoffers, an evidence technician with the Dayton Police
Department, testified that Raglin’s vehicle had bullet strikes to the front driver’s side
window and door, to the rear driver’s side quarter panel, to the window frame of the rear
driver’s side door, and to the rear license plate. Officer Christoffers testified that there
were no bullet strikes to the hood of the vehicle nor the front windshield. Significantly,
Officer Christoffers testified that all of the bullet damage to Raglin’s vehicle came from
the outside of the vehicle. Officer Christoffers also testified that, although the rear
windshield of Raglin’s vehicle had been completely shattered, he could not make a
conclusive determination regarding whether it had been struck by a bullet. Nevertheless,
Officer Christoffers testified that, based upon his experience, the bullet that struck Raglin
in the head “had to” have traveled through the rear windshield because none of the other
bullet damage to the vehicle would have accounted for Raglin’s head wound. Shoecraft
was arrested and taken into custody on the morning of February 1, 2017.
{¶ 11} When he was interviewed after being taken into custody, Shoecraft initially
denied any involvement in the shooting, telling police that he never visited Basswood
Avenue on the night of the shooting. After detectives informed Shoecraft that other
witnesses, namely Glenn and Kenney, had given statements placing him at the scene,
Shoecraft changed his story. Specifically, Shoecraft told police that he did drive out to
Basswood Avenue to give Glenn methamphetamine to sell to Raglin, but he never got out
of his truck and was not involved the shooting. Furthermore, Shoecraft never informed
the police that Raglin tried to hit Glenn and/or him with a car. Additionally, Shoecraft did
not tell police that he was ever in fear for his life during the incident. We note that, at
trial, Shoecraft asserted during his testimony that he was unaware that “self-defense”
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existed in Ohio. Shoecraft testified that this was the reason why he did not tell the police
during his custodial interview that he only shot at Raglin because he feared being hit by
the car.
{¶ 12} On February 13, 2017, Shoecraft was indicted for the following offenses:
two counts of murder (proximate result), with both counts accompanied by three-year
firearm specifications; one count of felonious assault (serious harm), accompanied by a
three-year firearm specification; two counts of felonious assault (deadly weapon), with
both counts accompanied by three-year firearm specifications; one count of discharge of
a firearm on or near prohibited premises, accompanied by a three-year firearm
specification; one count of carrying a concealed weapon; one count of having a weapon
while under disability (prior drug conviction); one count of aggravated trafficking in drugs
(Schedule I or II), accompanied by a one-year firearm specification; and one count of
trafficking in cocaine, in violation of R.C. 2925.03(A)(1), a felony of the fifth degree,
accompanied by a one-year firearm specification. At his arraignment on February 16,
2017, Shoecraft entered a plea of not guilty to all of the charges in the indictment. On
July 17, 2017, Shoecraft filed a “Notice of Alibi” in which he stated that, at trial, he would
present evidence that he was with his girlfriend, Ebone Parks, at the time of the shooting,
and therefore could not have committed the alleged offenses.
{¶ 13} On July 19, 2017, Shoecraft waived his right to a jury trial in open court and
signed a written waiver that was filed on the same day. Thereafter, the case proceeded
to a two-day bench trial on October 24 and 25, 2017. At trial, Shoecraft argued that he
acted in self-defense when he shot and killed Raglin as the latter drove away after stealing
Shoecraft’s methamphetamine. In a verdict entry issued on November 9, 2017, the trial
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court found Shoecraft guilty on all of the counts in the indictment and their accompanying
specifications, with the exception of the count of trafficking in cocaine. After merging
several of the counts and specifications, the trial court sentenced Shoecraft for the
following offenses: one count of felony murder (Raglin); one count felonious assault
(deadly weapon, Houchins); one count of discharge of a firearm on or near prohibited
premises; one count of carrying a concealed weapon; one count of having a weapon while
under disability; one count of aggravated trafficking in drugs; and two three-year firearm
specifications. Accordingly, the trial court sentenced Shoecraft to an aggregate
sentence of 40 years to life prison.
{¶ 14} It is from this judgment that Shoecraft now appeals.
{¶ 15} Shoecraft’s first assignment of error is as follows:
SHOECRAFT DID NOT VOLUNTARILY WAIVE HIS RIGHT TO A JURY
TRIAL.
{¶ 16} In his first assignment, Shoecraft argues that the record establishes that he
did not waive his right to a jury trial in a knowing, intelligent, and voluntary fashion.
{¶ 17} R.C. 2945.05 sets forth the manner in which a defendant may waive his or
her right to a jury trial. State v. Lomax, 114 Ohio St. 3d 350, 2007-Ohio-4277, 872 N.E.2d
279, ¶ 6. The statute provides as follows:
In all criminal cases pending in courts of record in this state, the defendant
may waive a trial by jury and be tried by the court without a jury. Such waiver
by a defendant, shall be in writing, signed by the defendant, and filed in said
cause and made a part of the record thereof. It shall be entitled in the court
and cause, and in substance as follows: “I __________, defendant in the
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above cause, hereby voluntarily waive and relinquish my right to a trial by
jury, and elect to be tried by a Judge of the Court in which the said cause
may be pending. I fully understand that under the laws of this state, I have
a constitutional right to a trial by jury.”
Such waiver of trial by jury must be made in open court after the defendant
has been arraigned and has had opportunity to consult with counsel. Such
waiver may be withdrawn by the defendant at any time before the
commencement of the trial.
R.C. 2945.05.
{¶ 18} Based on this statute, the Supreme Court of Ohio has identified five
conditions that must be satisfied in order for a jury waiver to be valid. Lomax at ¶ 9. The
jury waiver must be: “(1) in writing, (2) signed by the defendant, (3) filed, (4) made part of
the record, and (5) made in open court.” Id. Trial courts must strictly comply with these
requirements. State v. Grier, 2d Dist. Montgomery No. 23662, 2010-Ohio-5751, ¶ 15,
citing State v. Pless, 74 Ohio St. 3d 333, 337 and 339, 658 N.E.2d 766 (1996). (Other
citation omitted.) “In the absence of strict compliance with R.C. 2945.05, a trial court
lacks jurisdiction to try the defendant without a jury.” Pless at 337, citing State v. Tate, 59
Ohio St. 2d 50, 391 N.E.2d 738 (1979) and State ex rel. Jackson v. Dallman, 70 Ohio
St.3d 261, 638 N.E.2d 563 (1994).
{¶ 19} While there must be strict compliance with the five conditions in R.C.
2945.05, we note that a written jury waiver need only substantially comply with the
language suggested in R.C. 2945.05, making a verbatim recitation of the statutory
language unnecessary. State v. Webb, 10th Dist. Franklin No. 10AP-289, 2010-Ohio-
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6122, ¶ 26-27, citing State v. Townsend, 3d Dist. Marion No. 9-03-40, 2003-Ohio-6992,
¶ 16. (Other citations omitted.)
{¶ 20} R.C. 2945.05 must be read in conjunction with Crim.R. 23(A), which also
governs the waiver of a defendant's right to a jury trial. State v. Burnside, 186 Ohio App. 3d
733, 2010-Ohio-1235, 930 N.E.2d 372, ¶ 47 (2d Dist.). “Crim.R. 23(A) allows a
defendant to waive his right to a trial by jury in serious offense cases provided that the
waiver is made knowingly, intelligently, and voluntarily, and in writing.” (Footnote omitted.)
Lomax at ¶ 6. Specifically, Crim.R. 23(A) provides:
In serious offense cases the defendant before commencement of the trial
may knowingly, intelligently and voluntarily waive in writing his right to trial
by jury. Such waiver may also be made during trial with the approval of the
court and the consent of the prosecuting attorney. In petty offense cases,
where there is a right of jury trial, the defendant shall be tried by the court
unless he demands a jury trial. Such demand must be in writing and filed
with the clerk of court not less than ten days prior to the date set for trial, or
on or before the third day following receipt of notice of the date set for trial,
whichever is later. Failure to demand a jury trial as provided in this
subdivision is a complete waiver of the right thereto.
{¶ 21} A “serious offense” is defined in Crim.R. 2(C) as “any felony, and any
misdemeanor for which the penalty prescribed by law includes confinement for more than
six months.” Therefore, in order to comply with Crim.R. 23(A), Shoecraft had to
knowingly, intelligently, and voluntarily waive his right to a jury trial in writing. To meet
this requirement, “some type of colloquy must occur between the defendant and the trial
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court.” State v. Bell, 2d Dist. Greene No. 2017-CA-8, 2017-Ohio-7512, ¶ 14, citing State
v. Anderson, 1st Dist. Hamilton No. C-070098, 2007-Ohio-6218, ¶ 8.
{¶ 22} As the Supreme Court of Ohio has indicated:
* * * A written jury waiver is “presumptively voluntary, knowing, and
intelligent.” State v. Fitzpatrick, 102 Ohio St. 3d 321, 2004-Ohio-3167, 810
N.E.2d 927, ¶ 37. Only a “plain showing that the defendant's waiver was
not freely and intelligently made” will rebut that presumption. Id., citing
Adams v. United States ex rel. McCann, [317] U.S. 269, 63 S. Ct. 236, 87
L. Ed. 268 (1942).
State v. Montgomery, 148 Ohio St. 3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 22.
{¶ 23} On July 19, 2017, a hearing was held before the trial court during which the
following exchange occurred:
Trial Court: * * * This is actually assigned to Judge Krumholtz. 1 Judge
Krumholtz asked me to take care of a couple of matters here one being a
waiver of jury in this case; is that correct, [Defense Counsel]?
Defense Counsel: Yes, Your Honor.
Trial Court: All right. Mr. Shoecraft, let me go over a couple [of] things here
with you, sir. It’s my understanding in speaking with your counsel that you
wish to withdraw your demand for a jury trial in this and proceed to have this
matter resolved to the Court or to the Bench; is that your desire?
Shoecraft: Yes, sir.
1 Montgomery County Common Pleas Court Judge Dennis J. Adkins presided over
Shoecraft’s jury waiver hearing while Judge Michael W. Krumholtz presided over the
bench trial.
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Trial Court: And you understand that all issues will be decided by the judge
including issues of fact and law and sentencing, it’ll all [be] the same person.
You understand that[?]
Shoecraft: Yes, sir.
Trial Court: Have you had the opportunity to speak with [defense counsel]
about that decision?
Shoecraft: Yes, sir.
Trial Court: Is there anything, at all, about the waiver of jury form that you
have in front of you that you have any questions about?
Shoecraft: No, sir.
Trial Court: Okay. Sir, if that is your desire to waive your jury in this case,
I need you to sign that form here in open court, please.
Defense Counsel: He has signed the form, Your Honor.
The State: And just for the record. It’s the State’s understanding its [sic]
goes to all the counts in the indictment and all specifications.
Trial Court: Do you understand that, Mr. Shoecraft?
Shoecraft: Yes, Your Honor.
Trial Court: It goes to all issues.
(Counsel confers with Defendant)
Defense Counsel: Yes, he understands, Your Honor.
Trial Court: Is that correct, Mr. Shoecraft?
Shoecraft: Yes.
Trial Court: Okay. The Court finds that the defendant knowingly,
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intelligently and voluntarily waived his right to a jury trial in this matter,
signing the form in open court. The Court has signed the form and I’ll order
that to be filed. * * *
Jury Waiver Hearing Tr. 3-4.
{¶ 24} The jury waiver form signed by Shoecraft also stated:
I hereby voluntarily waive and relinquish my right to a trial by jury, and elect
to be tried by a Judge of this Court. I have had an opportunity to consult
with my attorney. I fully understand that under the laws of this Ohio and of
the United States, I have a constitutional right to a trial by jury.
{¶ 25} Shoecraft argues that the record establishes that he “was not sufficiently
apprised of how his guilt could have been decided.” Shoecraft contends that neither the
written jury waiver nor the record establishes that he was aware of the jury process,
namely that his guilt would be decided by 12 jurors, that he could participate in the
selection of the jurors, and that the verdict must be unanimous. In support of his
argument, Shoecraft relies on language from the Sixth Circuit Court of Appeals in United
States v. Martin, 704 F.2d 267 (6th Cir.1983), stating that “[a] defendant is sufficiently
informed to make an intelligent waiver if he was aware that a jury is composed of 12
members of the community, he may participate in the selection of the jurors, the verdict
of the jury must be unanimous, and that a judge alone will decide guilt or innocence should
he waive his jury trial right.” Id. at 273.
{¶ 26} However, we note that the Sixth Circuit went on to hold that while
“[k]nowledge of these essential attributes is generally sufficient to enable a defendant to
make a knowing and intelligent decision,” id., a defendant's knowledge of these elements
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is not “constitutionally required.” United States v. Sammons, 918 F.2d 592, 597 (6th
Cir.1990). Rather, the dispositive inquiry is whether the defendant “ ‘understood that the
choice confronting him was, on the one hand, to be judged by a group of people from the
community, and on the other hand, to have his guilt or innocence determined by a judge.’ ”
Sowell v. Bradshaw, 372 F.3d 821, 836 (6th Cir.2004), quoting Sammons at 597.
{¶ 27} Upon review, we conclude that the jury-waiver requirements in R.C.
2945.05 and Crim.R. 23(A) were satisfied in this case. The jury waiver was made in
open court, and Shoecraft signed a jury waiver form indicating that he “fully” understood
that he had a constitutional right to a jury trial. “There is no requirement for a trial court
to interrogate a defendant in order to determine whether he or she is fully apprised of the
right to a jury trial.” State v. Jells, 53 Ohio St. 3d 22, 559 N.E.2d 464 (1990), paragraph
one of the syllabus, citing CrimR. 23(A) and R.C. 2945.05; accord Spytma v. Howes, 313
F.3d 363, 370 (6th Cir. 2002) (colloquy not constitutionally required). “The Criminal
Rules and the Revised Code are satisfied by a written waiver, signed by the defendant,
filed with the court, and made in open court, after arraignment and opportunity to consult
with counsel.” Jells at 26. Therefore, on the record before us, Shoecraft has failed to
establish that he did not waive his right to jury trial in a knowing, intelligent, and voluntary
fashion.
{¶ 28} Shoecraft’s first assignment of error is overruled.
{¶ 29} Shoecraft’s second assignment of error is as follows:
THE TRIAL COURT ERRED BY REJECTING SHOECRAFT’S
AFFIRMATIVE DEFENSES OF SELF-DEFENSE AND DEFENSE OF
ANOTHER.
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{¶ 30} In his second assignment, Shoecraft argues that the trial court erred when
it rejected his affirmative defenses of self-defense and defense of another. Although
Shoecraft phrases his argument in terms of whether the evidence was sufficient to prove
he acted in self-defense and defense of another when he shot and killed Raglin, he is
actually arguing that the trial court’s decision to reject his affirmative defenses was against
the manifest weight of the evidence.
{¶ 31} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). A
judgment should be reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against the conviction.”
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 32} This court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997), citing State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541
(1997).
{¶ 33} “Self-defense is an affirmative defense which the accused has the burden
to prove by a preponderance of the evidence. R.C. 2901.05(A)[.] * * * ‘In order to establish
self-defense, a defendant must prove: (1) that the defendant was not at fault in creating
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the situation giving rise to the affray; (2) that 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 danger was in the use of such force; and (3) that the defendant did not violate
any duty to retreat or avoid the danger.’ * * * ” (Citations omitted). State v. Kleekamp, 2d
Dist. Montgomery No. 23533, 2010-Ohio-1906, ¶ 52.
{¶ 34} “The affirmative defense of defense of another is a variation of self-defense.
* * * Under certain circumstances, a person may be justified in using force to defend
another person against an assault. However, the actor then stands in the shoes of the
person he aids, and if the person aided is the one at fault in creating the affray, the actor
is not justified in his use of force. * * * One who acts in defense of another must meet the
criteria for self-defense.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 38, quoting State v. Moss, 10th Dist. Franklin No. 05AP-610, 2006-Ohio-1647,
¶ 13.
{¶ 35} In the instant case, the record establishes that, at the time Raglin attempted
to drive away with the methamphetamine without paying, Shoecraft and Glenn were
standing along the driver’s side of the vehicle. Shoecraft stood on the street partially
inside the open driver’s door next to Raglin, and Glenn stood on the driver’s side of the
vehicle in the area near the front wheel. No one was standing in front of the vehicle when
Raglin began to accelerate out of the parking spot. Shoecraft argued at trial that he
acted in self-defense and in defense of another because he believed that he and Glenn
were in danger of being run over by Raglin and killed.
{¶ 36} Upon review, we conclude that the trial court did not err when it rejected
Shoecraft’s affirmative defenses of self-defense and defense of another. Here, the trial
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court could have reasonably found that neither Shoecraft nor Glenn was ever in imminent
danger of death or great bodily harm. By their own admission at trial, Shoecraft and
Glenn were standing along the driver’s side of the vehicle when Raglin attempted to drive
away. Raglin was not driving towards the two men. Rather, Raglin was driving away
from Shoecraft and Glenn. Although Raglin turned the steering wheel hard to the left in
order to exit the parallel parking space, Shoecraft and Glenn were never in position where
the vehicle could have run them over.
{¶ 37} The evidence adduced at trial also failed to establish that Shoecraft had an
objectively reasonable belief that using deadly force was the only means of escaping the
questionable danger posed by Raglin attempting to drive away from the men. Glenn
testified that after being “nudged” out of the way by Shoecraft, he was able to safely run
away. As previously stated, Shoecraft admitted during his testimony that he could have
run away from the scene to avoid any danger, but he chose to stand and fire his weapon
at Raglin’s vehicle. Additionally, the bullet that hit Raglin in the back of the neck and
ultimately killed him was apparently fired by Shoecraft through the rear windshield of the
vehicle. At this point, Shoecraft was ostensibly well behind the vehicle and in no danger
of being hit.
{¶ 38} In State v. Salyers, 2d Dist. Montgomery No. 20695, 2005-Ohio-2772, we
observed that the evidence established that the defendant shot the victim in the back.
We held that “[s]uch evidence negates the theory of self-defense.” Here, the factfinder
could have reasonably concluded that Shoecraft shot Raglin in the back of the neck as
Raglin was driving away, which was clearly not indicative of self-defense. Moreover,
Shoecraft fired at Raglin’s vehicle at least seven times, supporting a finding that Shoecraft
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was not acting in self-defense or in defense of Glenn, but rather retaliating against Raglin
for stealing the methamphetamine. Accordingly, the trial court did not err when it
rejected Shoecraft’s affirmative defenses of self-defense and defense of another.
{¶ 39} Shoecraft’s second assignment of error is overruled.
{¶ 40} Shoecraft’s third assignment of error is as follows:
THE TRIAL COUURT ERRED WHEN IT REJECTED VOLUNTARY
MANSLAUGHTER, AN INFERIOR DEGREE OF THE OFFENSE OF
MURDER.
{¶ 41} In his third assignment, Shoecraft contends that the trial court erred when it
failed to find him guilty of voluntary manslaughter, an inferior degree of the offense of
murder.
{¶ 42} Initially we note that during his closing argument, defense counsel
seemingly misspoke when he ended his closing argument with a suggestion that the facts
constituted “involuntary manslaughter.” Specifically, defense counsel stated as follows:
* * * There’s a car being driven directly at you about to run you down. I
don’t know how that could not be a cause of sudden passion. I don’t know
how that could not be serious provocation reasonably sufficient to incite
Shoecraft into using deadly force. If he’s not acquitted by self-defense, the
murder charge needs to involuntary manslaughter. * * *
{¶ 43} The language utilized by defense counsel, specifically his suggestion
regarding “serious provocation reasonably sufficient to incite Shoecraft into using deadly
force,” establishes that defense counsel apparently intended to ask the trial court to
consider voluntary manslaughter, rather than involuntary manslaughter. Thus, the trial
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court, in its verdict, correctly analyzed the offense of voluntary manslaughter, not
involuntary manslaughter.
{¶ 44} “In a proper case, a jury may consider, in addition to the offense actually
indicted, inferior degrees of the indicted offense.” State v. Beatty-Jones, 2d Dist.
Montgomery No. 24245, 2011-Ohio-3719, ¶ 20, citing State v. Deem, 40 Ohio St. 3d 205,
533 N.E.2d 294 (1988), paragraph one of the syllabus. “An offense is of an inferior
degree if its elements are ‘identical to or contained within the indicted offense, except for
one or more additional mitigating elements.’ ” Id., quoting Deem at paragraph two of the
syllabus.
{¶ 45} Murder requires an offender to “purposely cause the death of another * * *.”
R.C. 2903.02(A). Voluntary manslaughter requires an offender to knowingly cause the
death of another while “under the influence of sudden passion or in a sudden fit of rage,
either of which is brought on by serious provocation occasioned by the victim that is
reasonably sufficient to incite the person into using deadly force * * *.” R.C. 2903.03(A).
Because “its elements are * * * contained within the indicted offense, except for one or
more additional mitigating elements [,]” voluntary manslaughter is not a lesser-included
offense of murder. Deem at 209; State v. Shane, 63 Ohio St. 3d 630, 632, 590 N.E.2d 272
(1992). Instead, voluntary manslaughter is an inferior degree of murder. Shane at 632.
{¶ 46} The analysis of voluntary manslaughter's mitigating element asks first an
objective question and second a subjective question. The objective question is whether
the victim's provocation was “ ‘sufficient to arouse the passion of an ordinary person
beyond the power of his or her control,’ ” Shane at 635. “or described differently, whether
the provocation was ‘reasonably sufficient to bring on extreme stress and * * * to incite or
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arouse the defendant into using deadly force,’ ” Deem at paragraph five of the syllabus.
The subjective question is “whether this particular defendant was in fact acting under a
sudden passion or in fit of rage.” (Citation omitted.) Id. We have said that, “[w]hen
analyzing the subjective prong of the test, ‘evidence supporting the privilege of self-
defense, i.e., that the defendant feared for his own personal safety, does not constitute
sudden passion or fit of rage.’ ” State v. Harding, 2d Dist. Montgomery No. 24062, 2011-
Ohio-2823, ¶ 43, quoting State v. Stewart, 10th Dist. Franklin No. 10AP-526, 201[1]-Ohio-
466, ¶ 13; see also State v. Mack, 82 Ohio St. 3d 198, 201, 694 N.E.2d 1328 (1998) (“Fear
alone is insufficient to demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage.”).
{¶ 47} In the instant case, the trial court declined to find Shoecraft guilty of
voluntary manslaughter instead of murder because there was no evidence of provocation
reasonably sufficient to bring on extreme stress and to incite or arouse Shoecraft into
using deadly force against Raglin. The trial court found that Raglin’s act of driving the
car away while Shoecraft was standing inside the driver’s side door touching the side of
the car was not reasonably sufficient to incite the use of deadly force. As previously
stated in our analysis of the second assignment, the evidence adduced at trial established
that Raglin was attempting to drive away from Shoecraft and Glenn when he was shot.
Raglin was not attempting to hit the two men with his vehicle.
{¶ 48} Furthermore, even if we were to assume serious provocation (an
assumption without evidentiary support), Shoecraft testified that he acted out of fear when
he decided to shoot at Raglin’s vehicle:
Defense Counsel: Okay. Now I want you to tell the Court what you felt
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when that car came toward you.
Shoecraft: I felt like I was going to be run over. * * * [S]o I instantly feared
like I was going to be killed.
Tr. 382. At trial, Shoecraft consistently testified that he shot at Raglin’s vehicle because
he was afraid. Nothing in Shoecraft’s testimony about what Raglin did by driving away
would lead a reasonable fact finder to believe that when he shot Raglin, Shoecraft was
under the influence of a sudden passion or fit of rage. Thus, the trial court properly
refused to find Shoecraft guilty of the inferior degree offense of voluntary manslaughter.
See Beatty-Jones, 2d Dist. Montgomery No. 24245, 2011-Ohio-3719, ¶ 23-30 (concluding
the same where the defendant's testimony showed that he shot the victims out of fear,
not under a sudden passion or in fit of rage); see also State v. Stargell, 70 N.E.3d 1126,
2016-Ohio-5653, ¶ 43-44 (2d Dist.) (trial court rejected jury instruction for voluntary
manslaughter where the defendant testified that he shot the victim because he was afraid,
not because he was under the influence of a sudden passion or fit of rage).
{¶ 49} Shoecraft’s third assignment of error is overruled.
{¶ 50} Shoecraft’s fourth assignment of error is as follows:
THE TRIAL COUR ERRED WHEN IT SENTENCED SHOECRAFT TO ALL
HIS OFFENSES WHEN THEY ARE ALLIED OFFENSES OF SIMILAR
IMPORT.
{¶ 51} In his fourth assignment, Shoecraft argues that the trial court erred when it
failed to merge his convictions for murder (Raglin), felonious assault (Houchins), carrying
a concealed weapon, discharge of firearm on or near prohibited premises, having a
weapon while under disability, and trafficking in drugs. We note that the trial court did
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merge the multiple murder and felonious assault convictions related to Raglin.
{¶ 52} R.C. 2941.25, Ohio's allied offense statute, provides that:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 53} The Ohio Supreme Court clarified the applicable standard when
determining whether offenses merge as allied offenses of similar import. State v. Ruff,
143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892.
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must focus
on the defendant's conduct to determine whether one or more convictions
may result, because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
govern every situation.
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when the defendant's conduct supports multiple
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offenses: (1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the above
will permit separate convictions. The conduct, the animus, and the import
must all be considered.
Ruff at ¶ 30-31.
{¶ 54} In State v. Wood, 2d Dist. Montgomery No. 26134, 2016-Ohio-143, we
stated the following:
[T]he Ohio Supreme Court addressed the allied-offense issue again
in State v. Earley, [145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d 266].
There the majority characterized the analysis in its earlier [State v.]
Johnson[, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061] lead
opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead
embraced Ruff, which, as noted above, considers a defendant's conduct,
his animus, and the import or significance of his offenses. Applying Ruff,
the Earley court concluded that misdemeanor OVI and felony aggravated
vehicular assault “are offenses of dissimilar import and significance that are
to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis
here, we note that a defendant bears the burden of establishing entitlement
to merger, and we review a trial court's ruling on the issue de novo. State v.
LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.
***
We reach the same conclusion under the Ruff standard, which the
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Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters
or undermines the foregoing analysis about McGail's commission of murder
and aggravated robbery involving the same conduct committed with the
same animus. For the reasons set forth above, we conclude that the two
offenses were not committed separately and were not committed with a
separate animus or motivation. These findings remain pertinent under
Ruff, which, as noted above, provides that offenses do not merge if “(1) the
offenses are dissimilar in import or significance—in other words, each
offense caused separate, identifiable harm, (2) the offenses were
committed separately, or (3) the offenses were committed with separate
animus or motivation.” Ruff at ¶ 25 [and] ¶ 30-31.
Wood at ¶ 54, quoting State v. McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 51, 60 (2d
Dist.).
{¶ 55} An appellate court applies a de novo standard of review in reviewing a trial
court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St. 3d 482, 2012-
Ohio-5699, 983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of establishing his
entitlement to the protection provided by R.C. 2941.25 against multiple punishments for
a single criminal act.” State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, 999
N.E.2d 661, ¶ 18.
{¶ 56} Initially, we note that Shoecraft has waived all but plain error by failing to
object to the failure of the trial court to merge his convictions at his sentencing hearing.
See State v. Rogers, 2d Dist. Greene No. 2011 CA 0057, 2012-Ohio-4451, ¶ 5.
However, failure to merge allied offenses of similar import is plain error. Id. In order to
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prevail under the plain error standard, an appellant must demonstrate both that there was
an obvious error in the proceedings and that but for the error, the outcome of the trial
clearly would have been otherwise. Id., citing State v. Noling, 98 Ohio St. 3d 44, 2002-
Ohio-7044, 781 N.E.2d 88.
{¶ 57} As previously stated, the trial court imposed sentence on Shoecraft for six
counts. With respect to Shoecraft’s convictions for felony murder of Raglin, felonious
assault of Houchins, and discharge of a firearm on or near prohibited premises, we find
that these offenses were not subject to merger. First of all, the felony murder count and
the felonious assault count did not merge because the counts involved different victims.
Shoecraft committed the felony murder against Raglin, while the felonious assault count
identified Houchins as the victim.
{¶ 58} Furthermore, we recently held in State v. Williams, 2d Dist. Montgomery No.
27663, 2018-Ohio-1647, that a trial court did not commit plain error when it failed to merge
convictions for discharge of a firearm on or near prohibited premises with felony murder
and/or felonious assault.
Williams was convicted and sentenced on one count of murder for causing
Terion Dixon's death as a proximate result of committing felonious assault.
He also was convicted and sentenced on one count of discharging a firearm
on or near prohibited premises in violation of R.C. 2923.162(A)(3), which
provides: “No person shall do any of the following: * * * Discharge a firearm
upon or over a public road or highway.” Notably, “[t]he victim of the offense
of discharging a firearm upon or over a public road or highway is the public.
This is because it is the act itself that is prohibited. The offense can be
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completed with no one remotely near the location where the firearm is
discharged upon or over the public road or highway. R.C. 2923.162(A)(3) is
a statute intended to benefit the public good[.]” State v. James, 2015-Ohio-
4987, 53 N.E.3d 770 (8th Dist.), ¶ 33; see also State v. Carzelle, 8th Dist.
Cuyahoga No. 105425, 2018-Ohio-92 (applying James). Although
Williams actually shot and killed Dixon, his act of firing a handgun across
the roadway itself violated the statute, placed numerous people at risk, and
harmed the public at large. Conversely, his murder conviction required
harm to a particular victim and differed in the significance and the nature of
the harm it addressed. At a minimum, we believe the offenses at issue are
dissimilar enough to preclude a finding of plain error. Accordingly, the third
assignment of error is overruled.
(Emphasis added.) Id. at ¶ 24.
{¶ 59} We also find that Shoecraft’s convictions for having a weapon while under
disability and carrying a concealed weapon were not subject to merger because the
offenses were committed separately. “The intent, or animus, necessary to commit the
crime of carrying a concealed weapon, is to carry or conceal, on the person or ready at
hand, a deadly weapon or dangerous ordnance. The gist of the offense is concealment;
* * * The gravamen of the offense of having a weapon while under disability, is to
‘knowingly * * * acquire, have, carry, or use,’ a weapon while under a legal disability. It
may be concluded that there is a difference in the mental state required for both crimes
* * *.” State v. Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747, ¶ 48, citing State
v. Nieto, 101 Ohio St. 409, 426-427, 130 N.E. 663 (1920).
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{¶ 60} Shoecraft, a person under disability, necessarily acquired a handgun
sometime before concealing it on his person. Young at ¶ 49. Thus, the elements of proof
for having a weapon while under disability were satisfied when Shoecraft acquired the
firearm. Id. Shoecraft’s subsequent conduct of concealing the handgun in his jacket
pocket constituted a separate and distinct act from initially acquiring the weapon. Id.
Therefore, Shoecraft’s convictions for having a weapon while under disability and carrying
a concealed weapon were not subject to merger.
{¶ 61} Moreover, Shoecraft’s convictions for having a weapon while under
disability and carrying a concealed weapon were not subject to merger with his
convictions for felony murder, felonious assault (Houchins), and discharge of a firearm on
or near prohibited premises. In order to fire his gun, Shoecraft had to first remove it from
his jacket pocket, thereby rendering the weapon visible and not concealed. Additionally,
Shoecraft did not acquire or possess the firearm with the immediate intent of committing
the murder, felonious assault and/or discharge of a firearm on or near prohibited
premises. See State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 44
(finding a separate animus because the record was “devoid of any evidence establishing
that [the appellant] acquired the gun with an immediate intent to fire at [the victim] and
that he had no other reason for acquiring the gun”); compare State v. Fairman, 2d Dist.
Montgomery No. 24299, 2011-Ohio-6489, ¶ 67 (finding “the crimes were not committed
separately or with a separate animus because the evidence shows that [the appellant]
obtained the gun with the immediate intent of shooting [the victim]; he had no separate
animus in acquiring possession of the gun”).
{¶ 62} Finally, Shoecraft’s conviction for drug trafficking was also not subject to
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merger with any of his other convictions because it was committed separately and
constitutes a separately identifiable harm. By the time Shoecraft decided to pull out his
gun and start firing, he had already given Raglin the bag of methamphetamine.
Furthermore, drug trafficking clearly involves a separate and identifiable harm from
offenses stemming from an individual possessing and firing a gun at an occupied vehicle
on a public street.
{¶ 63} Therefore, we find that the trial court did not err when it did not merge
Shoecraft’s convictions for murder (Raglin), felonious assault (Houchins), carrying a
concealed weapon, discharge of firearm on or near prohibited premises, having a weapon
while under disability, and trafficking in drugs, because these offenses were not allied
offenses of similar import.
{¶ 64} Shoecraft’s fourth assignment of error is overruled.
{¶ 65} Shoecraft’s fifth and final assignment of error is as follows:
SHOECRAFT’S CONVICTION FOR FELONIOUS ASSAULT AGAINST
HOUCHINS IS NOT SUPPORTED BY SUFFICIENT EVIDENCE, NOR
SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 66} In his final assignment, Shoecraft argues that his conviction for felonious
assault against Houchins was not supported by sufficient evidence and was against the
manifest weight of the evidence.
{¶ 67} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is
whether, after reviewing 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.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA
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99, 2008-Ohio-4636, ¶ 12.
{¶ 68} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-
6046, 837 N.E.2d 315, ¶ 69. A claim that a verdict was against the manifest weight of
the evidence involves a different test. “ ‘The court, reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the
conviction.’ ” Id. at ¶ 71, citing Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541.
{¶ 69} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St. 2d 230, 231, 227
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 70} This court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510.
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{¶ 71} In the instant case, the State was required to prove each and every element
of the felonious assault of Houchins with a deadly weapon, pursuant to R.C.
2903.11(A)(2), which states in pertinent part:
(A) No person shall knowingly: * * * (2) [c]ause or attempt to cause physical
harm to another * * * by means of a deadly weapon * * *.
{¶ 72} R.C. 2901.22(B) defines “knowingly” as follows:
A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a
certain nature.
{¶ 73} “Deadly weapon” is defined in R.C. 2923.11(A) as follows:
Deadly weapon means any instrument, device, or thing capable of inflicting
death, and designed or specially adapted for use as a weapon, or
possessed, carried, or used as a weapon.
{¶ 74} In the instant case, Shoecraft testified that he observed Houchins sitting in
the front passenger seat of Raglin’s vehicle. As Raglin drove away without paying for
the methamphetamine, Shoecraft fired at least seven shots from a handgun at Raglin’s
vehicle. However, Shoecraft argues that because he only intended to shoot at Raglin,
he could not be convicted for felonious assault against Houchins.
{¶ 75} “[W]hen an offense is defined in terms of conduct towards another, then
there is a dissimilar import for each person affected by the conduct.” State v. Snowden,
2d Dist. Montgomery No. 17785, 2000 WL 20884 (January 14, 2000), citing State v.
Phillips, 75 Ohio App. 3d 785, 790, 600 N.E.2d 825 (2d Dist.1991). In Phillips, the
defendant was convicted of five counts of felonious assault for injuring multiple victims in
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a drive-by shooting. On appeal, we rejected his argument that the crimes were allied
offenses of similar import. We stated that, because R.C. 2903.11(A)(2) defines felonious
assault “in terms of the harm, or potential harm, visited upon another, there exists a
separate, and dissimilar import with respect to each person subject to that harm or risk of
harm.” Id. at 790.
{¶ 76} As in the Phillips case, we apply the specific definition of felonious assault
as being directed to “another,” thus potentially encompassing both of the occupants in the
car, Raglin and Houchins. Furthermore, it is reasonable to assume that one who fires
multiple shots from a gun into a moving car with two occupants knows that there is a
“significant possibility” that more than one person could suffer physical harm as a result
of his conduct. Even if Shoecraft’s stated intent was to shoot only Raglin, given
Houchins’s close proximity to Raglin inside the front passenger compartment of the
vehicle, it was not unreasonable for the trial court to conclude that Shoecraft’s conduct
also constituted an attempt to cause physical harm to Houchins by means of a deadly
weapon. Accordingly, Shoecraft’s conviction for felonious assault against Houchins was
supported by sufficient evidence and was not against the manifest weight of the evidence.
{¶ 77} Shoecraft’s fifth and final assignment of error is overruled.
{¶ 78} All of Shoecraft’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
.............
WELBAUM, P. J. and TUCKER, J., concur.
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Copies mailed to:
Mathias H. Heck, Jr.
Michael J. Scarpelli
Ben M. Swift
Hon. Michael W. Krumholtz