State v. McCallum

[Cite as State v. McCallum, 2021-Ohio-2938.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 19AP-796
(C.P.C. No. 18CR-2614)
v. :
(REGULAR CALENDAR)
E'lorna B. McCallum, :
Defendant-Appellant. :
D E C I S I O N
Rendered on August 26, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.
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, E'lorna B. McCallum, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding her guilty, pursuant to jury verdict, of
voluntary manslaughter. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed May 31, 2018, plaintiff-appellee, State of Ohio, charged
E'lorna with one count of aggravated murder in violation of R.C. 2903.01, an unclassified
felony; 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. All three charges
contained accompanying three-year firearm specifications pursuant to R.C. 2941.145(A).
No. 19AP-796 2
The charges related to the shooting death of Latasha M. Dailey on May 23, 2018. E'lorna
entered a plea of not guilty.
{¶ 3} At a trial beginning September 9, 2019, the state introduced evidence that on
the evening of May 23, 2018, E'lorna shot Dailey on the street outside the residence at 146
Columbian Avenue, killing Dailey. Dailey was E'lorna's sister's girlfriend. There was no
dispute that E'lorna shot Dailey. The issue at trial was whether E'lorna acted in self-defense
and/or defense of another or acted under serious provocation.
{¶ 4} During the trial, the state presented testimony that on May 22, 2018, prior to
the shooting, Dericka McCallum called 911 from her residence and told the dispatcher that
Dailey had threatened to kill her and destroy her property. Officers from the Columbus
Division of Police responded to the scene around 12:05 p.m. and spoke with Dericka and
Dailey. The state played the body-worn camera footage of the officer who responded to the
scene, and the footage showed Dericka telling police that Dailey had sent her text messages
and recordings threatening to kill her, including telling Dericka that Dericka's mother
should make funeral plans. In addition to the threatening messages, Dericka also told
police that Dailey had tampered with the security system at the residence. Dericka told
police that Dailey lived with her until two weeks ago when the couple ended their
relationship. After speaking with police, Dailey told officers she would leave, and one of the
officers told Dailey she had given up residential rights at the property.
{¶ 5} The next day, on May 23, 2018, Dericka called 911 again at 9:22 p.m. Dericka
told the dispatcher that Dailey had physically assaulted her. Two officers with the
Columbus Division of Police, Bryce Garlock and Timmeka Alexander, responded to the
residence at 9:47 p.m. and stayed there until 11:01 p.m. Dericka, Dailey, and E'lorna were
all at the residence when police arrived. Dericka told the police officers that Dailey had
damaged her car, had slapped her across the face, had broken her toe, and had stolen her
phone. Dericka told the officers she had ended her relationship with Dailey more than two
weeks ago, but Dailey returned to the residence and declared she would not leave until
Dericka was "in a casket." (State's Ex. F-1 at 2:00-2:30.) As seen in the body-worn camera
footage, Dericka told the officers she did not feel safe in her own house and wanted Dailey
to leave. Dericka also told police that Dailey made threats to kill her sister, E'lorna.
No. 19AP-796 3
{¶ 6} Dailey told the officers she was not leaving unless Dericka had her evicted.
The officers spent a considerable amount of time trying to convince Dailey to leave and
suggested she have someone pick her up. Eventually, Dailey claimed she found someone
to pick her up in 20 minutes, so the officers prepared to leave. Prior to leaving, the officers
advised Dericka to seek a protection order the next day. Additionally, the officers told
E'lorna to help keep things calm at the residence. The officers did not arrest Dailey, telling
Dericka that they could not make an arrest without an independent witness corroborating
Dericka's account of being slapped by Dailey. E'lorna told the officers she planned to stay
with her sister all night, and the officers advised Dericka and Dailey to keep away from each
other and ignore each other.
{¶ 7} Shortly after the officers left the residence, Dailey called 911 at 11:10 p.m.
telling the dispatcher that E'lorna had pulled a gun on her. Dailey then called 911 again four
minutes later and told the dispatcher that E'lorna was chasing her with a gun, coming in
and out of the residence while Dailey stood outside. Dailey then called 911 a third time at
11:17 p.m., three minutes after her previous call, and told the dispatcher that E'lorna was
still chasing her with a gun and was currently standing in front of the residence with a gun.
{¶ 8} Approximately one minute after Dailey's third 911 call, both a police
helicopter and patrol officers arrived at the residence at 146 Columbian Avenue. Officer
Edward Cox, the helicopter officer, testified that he observed a person running down the
center of the street and then saw a second pursuing the first person. Officer Cox testified
he could see the second person holding something while standing in the center of the street
and then saw what he perceived to be a muzzle flash consistent with the firing of a gun.
{¶ 9} When the patrol officers arrived at the residence, E'lorna walked out from
behind a vehicle with her arms raised. Officers ordered E'lorna to the ground, detained her,
and, after E'lorna told them she had a gun on her person, officers located and retrieved a
revolver in her right front coat pocket. E'lorna told the officers "[s]he hit my sister, she
physically hit her." (State's Ex. N-1 at 2:15-2:20.) The state played the video footage from
the officers' body-worn cameras, and E'lorna is cooperative with police as they detain her
and secure the scene. The gun had four spent cartridges and one live cartridge.
{¶ 10} Police officers also located Dailey lying face down in the grass in front of the
house at 171 Columbian Avenue. Dailey had a gunshot wound to the back of the head and
No. 19AP-796 4
was unresponsive, and Officer Darrel Kerns noted Dailey's shallow breathing. Dailey later
died from her injuries. An autopsy showed Dailey sustained gunshot wounds to her right
thigh and to the right side of her head, with one bullet remaining inside her brain causing
her death.
{¶ 11} Kevin Singleton, a sergeant with the Columbus Division of Police, testified
that he interviewed Dericka at the residence and she told him that she had previously called
police because Dailey had accused E'lorna of stealing Dailey's wallet, causing Dailey to
damage E'lorna's car. Dericka told Sergeant Singleton that Dailey then attacked her, hitting
her across the face and somehow injuring Dericka's toe. After police left the residence
following Dericka's second 911 call, Dericka said that Dailey refused to leave so E'lorna
became involved and started to demand that Dailey leave. Dericka told Sergeant Singleton
that Dailey got in E'lorna's face and refused to leave, and the two continued to argue.
According to Dericka's statement to Sergeant Singleton, Dailey and E'lorna went outside
and continued to argue, and it was not until they were outside that Dericka noticed that
E'lorna had a gun. Dericka told Sergeant Singleton that E'lorna knew that Dailey would not
leave Dericka alone and that E'lorna had to "do something." (Tr. Vol. 3 at 528.) Dericka
did not see the shooting but she told Sergeant Singleton she heard the gunshots.
{¶ 12} After the state's presentation of evidence, Victoria Smith, E'lorna and
Dericka's mother, testified that Dericka and Dailey had been in a relationship for five years.
Smith opined that Dailey was violent, and she described a phone call she received from
Dailey a week prior to her death in which Dailey told Smith that she would send both of her
daughters home in a body bag. The defense also called several other witnesses to testify as
to E'lorna's generally peaceful nature, as well as witnesses who described Dailey's
reputation for violence. A detective with the Columbus Division of Police testified that the
alarm at the residence had been disconnected on May 22, 2018 shortly before Dericka's first
911 call and that power to the alarm was lost on May 23, 2018 shortly after Dericka's second
911 call.
{¶ 13} E'lorna testified in her own defense. She did not deny shooting and killing
Dailey, but she described feeling protective of her older sister, Dericka. E'lorna testified
that she first met Dailey in 2013 and described seeing Dailey shout at Dericka. As time
progressed, E'lorna said her impression of Dailey only grew worse, describing incidents in
No. 19AP-796 5
which Dailey would damage Dericka's car, break televisions, and throw plates in the house.
In January 2015, E'lorna said that Dailey tried to kill Dericka by grabbing the steering wheel
of Dericka's car and attempting to crash it.
{¶ 14} Following that incident with the car, E'lorna said that family members
continually encouraged Dericka to end her relationship with Dailey, but the relationship
continued until the end of April 2018. E'lorna testified she lived with Dericka at the time
Dericka ended the relationship, partly to honor a request from their mother that E'lorna
help protect Dericka from Dailey. E'lorna testified that her mother feared Dailey would kill
Dericka, noting Dailey had already threatened to do so. Though Dailey did move her
belongings out of the house, E'lorna testified that Dailey returned the day before the
shooting and made more threats to Dericka.
{¶ 15} On the night of the shooting, E'lorna said that after the police officers left the
house, Dailey was not making any progress toward leaving the house as she had indicated
she would. E'lorna testified that Dailey said she was not going to leave. After Dericka said
she wanted Dailey to leave, E'lorna testified that she told Dailey she was no longer wanted
and needed to leave. According to E'lorna, this statement "enraged" Dailey and Dailey
began screaming in E'lorna's face. (Tr. Vol. 4 at 841.) E'lorna testified that Dailey said she
was not going anywhere and that E'lorna would need to "do something about it." (Tr. at
841.) E'lorna said she backed away from Dailey but that Dailey would follow her and get
back in her face, screaming again that she was not going to leave and threatening to fight
E'lorna. She also testified that Dailey said she was going to call her "peoples," which E'lorna
construed as a threat because of Dailey's previous statements that she wanted to kill E'lorna
and Dericka. (Tr. Vol 4 at 842.)
{¶ 16} E'lorna said that she and Dailey then both saw a gun on the corner of the
couch, and E'lorna assumed it belonged to Dailey. According to her testimony, E'lorna
picked up the gun to prevent Dailey from getting to it first, at which point she said Dailey
ran out the back door. E'lorna described herself as being in a state of shock that Dailey
really intended to kill both her and her sister. When she went outside to see if Dailey was
gone, E'lorna testified she saw Dailey near the neighbor's yard and that Dailey continued to
say she was not leaving. Seeing that Dailey was on the phone, E'lorna assumed Dailey had
called her "peoples" that she had referenced earlier, E'lorna said she ran up to Dailey and
No. 19AP-796 6
told her to leave. E'lorna testified that Dailey did not appear frightened and said she was
not going anywhere, which caused E'lorna to feel even more afraid because she believed
Dailey was waiting for people to help her attack E'lorna and Dericka.
{¶ 17} At this point, E'lorna said Dericka came out of the house. E'lorna said she
believed that Dailey's family members would arrive with guns to kill both her and Dericka,
and she testified that she felt scared, afraid for her life and her sister's life, and angry.
E'lorna said she "went into a rage" and, when she saw Dailey looking down the street as
though she were expecting someone to arrive, E'lorna was terrified, chased Dailey down the
street, and started shooting. (Tr. Vol. 4 at 853.) E'lorna said she first shot Dailey in the leg
but that she continued to pursue her and shoot her a second time, intending to kill Dailey,
because she was so afraid that Dailey would kill either her, her sister, or both of them.
E'lorna testified she felt "sorry" for Dailey's death but that she felt justified in shooting her
due to Dailey's threatening actions. (Tr. Vol. 4 at 856.)
{¶ 18} Dericka did not testify at trial.
{¶ 19} Following deliberations, the jury found E'lorna not guilty of aggravated
murder and the lesser charge of voluntary manslaughter as charged in Count 1 of the
indictment, not guilty of murder as charged in Count 2 of the indictment, but guilty of the
stipulated lesser offense of voluntary manslaughter and the accompanying firearm
specification. The trial court held a sentencing hearing on October 23, 2019 and sentenced
E'lorna to 10 years on the voluntary manslaughter conviction consecutive to a 3-year term
on the firearm specification for an aggregate prison term of 13 years. The trial court
journalized E'lorna's conviction and sentence in an October 29, 2019 judgment entry.
E'lorna timely appeals.
II. Assignments of Error
{¶ 20} E'lorna assigns the following errors for our review:
[1.] The conviction for voluntary manslaughter in Count Two
must be reversed because the jury returned an inconsistent
verdict by finding appellant not guilty of voluntary
manslaughter in Count One.
[2.] The trial court erred in denying appellant the assistance of
an expert in battered woman syndrome which deprived
No. 19AP-796 7
appellant of her right to due process, the effective assistance of
counsel, and a fair trial.
[3.] The trial court erred by refusing to provide self-defense and
defense of another instructions to the jury in violation of
appellant's due process rights guaranteed by the United States
and Ohio Constitutions.
[4.] The trial court abused its discretion by denying admission
of evidence regarding the lack of a lethality screen by law
enforcement depriving appellant of her right to present a
defense and due process of law.
[5.] 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.
[6.] The trial court's sentencing findings are not supported by
the record and the sentence imposed is contrary to law.
III. First Assignment of Error – Inconsistent Verdicts
{¶ 21} In her first assignment of error, E'lorna argues the jury returned inconsistent
verdicts when it found her not guilty of voluntary manslaughter under Count 1 of the
indictment but guilty of voluntary manslaughter under Count 2 of the indictment.
{¶ 22} " 'Consistency between verdicts on several counts of an indictment is
unnecessary where the defendant is convicted on one or some counts and acquitted on
others; the conviction generally will be upheld irrespective of its rational incompatibility
with the acquittal.' " State v. Preston-Glenn, 10th Dist. No. 09AP-92, 2009-Ohio-6771, ¶ 31,
quoting State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, ¶ 15 (10th Dist.), citing
State v. Adams, 53 Ohio St.2d 223, 228, vacated on separate grounds, 439 U.S. 811 (1978).
See also State v. Howard, 10th Dist. No. 06AP-1273, 2007-Ohio-5659, ¶ 6-7
(distinguishing cases concerning inconsistent verdicts to different counts versus
inconsistent verdicts arising from the same count). In a multi-count indictment, each count
is distinct and independent of all other counts, and therefore inconsistent verdicts among
different counts do not justify overturning a verdict of guilt. Preston-Glenn at ¶ 31, citing
Trewartha at ¶ 15 (noting "[t]he sanctity of the jury verdict should be preserved and could
No. 19AP-796 8
not be upset by speculation or inquiry into such matters to resolve the inconsistency"),
citing State v. Lovejoy, 79 Ohio St.3d 440, 444 (1997).
{¶ 23} Here, Count 1 of the indictment charged E'lorna with aggravated murder and
Count 2 of the indictment charged her with murder. The state sought instructions on the
lesser offense of voluntary manslaughter as to both counts. While acknowledging the
general rule that consistency in the verdict is not necessary, E'lorna nonetheless argues the
inconsistency here requires reversal because although the indictment charged her under
two counts, both counts arose from the same conduct. Specifically, E'lorna relies on the
trial court's instructions on the lesser offenses as essentially treating both counts as the
same offense. In instructing the jury on voluntary manslaughter for both Count 1 and
Count 2 of the indictment, the trial court stated:
As you consider either the indicted offense of Aggravated
Murder in Count One or the indicted offense of Murder in
Count Two, you may also consider the lesser offense of
Voluntary Manslaughter. You may consider whether or not
that at the time of the offense in question the Defendant acted
knowingly while she was under the influence of sudden passion
or in a sudden fit of rage either of which was brought on by
serious provocation occasioned by Latasha Dailey that was
reasonably sufficient to incite the Defendant into using deadly
force.
(Tr. Vol. 5 at 1056-57.)
{¶ 24} Despite E'lorna's argument that the trial court's instructions on the lesser
offense of voluntary manslaughter under both counts of the indictment resulted into a de
facto single count, the fact remains that the state charged E'lorna under a two-count
indictment. Each of those two counts carried the possibility of a lesser offense. E'lorna
points to no authority suggesting that separate counts of an indictment should be
considered as a single count where those counts carry the possibility of the same lesser
offense. See Preston-Glenn at ¶ 32 (rejecting defendant's argument that the two charges
filed in separate complaints were essentially the same count where they were both based
on the same conduct, and therefore finding there was not the kind of inconsistency in
verdicts that would require reversal of defendant's conviction). Instead, the jury's finding
E'lorna not guilty of voluntary manslaughter as a lesser offense of aggravated murder but
No. 19AP-796 9
guilty of voluntary manslaughter as a lesser offense of murder does not create the kind of
inconsistency in verdicts that necessitates reversal of her conviction. State v. Gardner, 118
Ohio St.3d 420, 2008-Ohio-2787, ¶ 81 (stating "a verdict that convicts a defendant of one
crime and acquits him of another, when the first crime requires proof of the second, may
not be disturbed merely because the two findings are irreconcilable," and noting it is equally
possible such verdicts are reached "through mistake, compromise, or lenity" on the part of
the jury).
{¶ 25} Because the voluntary manslaughter verdicts here related to two separate
counts of the indictment, E'lorna has not demonstrated the kind of inconsistency in verdicts
that would necessitate reversal of her conviction. The aggravated murder and murder
counts were distinct and independent of each other, and therefore the lesser offense
associated with Count 1 was distinct and independent of the lesser offense associated with
Count 2. Preston-Glenn at ¶ 33, citing Trewartha at ¶ 16. Accordingly, we overrule
E'lorna's first assignment of error.
IV. Second Assignment of Error – Battered Woman Syndrome
{¶ 26} In her second assignment of error, E'lorna argues the trial court erred in
denying her request for an expert witness in the field of battered woman syndrome. E'lorna
asserts the trial court's denial of this request deprived her of due process, the effective
assistance of counsel, and a fair trial.
{¶ 27} "As a matter of due process, indigent defendants are entitled to receive the
'raw materials' and the ' "basic tools of an adequate defense," ' " which may include the
provision of expert assistance. State v. Mason, 82 Ohio St.3d 144, 149 (1998), quoting Ake
v. Oklahoma, 470 U.S. 68, 77 (1985), quoting Britt v. North Carolina, 404 U.S. 226, 227
(1971). Though Ake involved the provision of expert psychiatric assistance only, the
Supreme Court of Ohio now generally recognizes Ake to stand for the proposition that due
process may require that a criminal defendant be provided with other types of expert
assistance when necessary to present an adequate defense. State v. Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019, ¶ 220, citing Mason at 149. Additionally, R.C. 2929.024 requires
a trial court in an aggravated murder case to provide funds for expert assistance when
"reasonably necessary for the proper representation of a defendant charged with
aggravated murder."
No. 19AP-796 10
{¶ 28} "Due process, as guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution and Section 16, Article I of the Ohio Constitution, does not
require the government to provide expert assistance to an indigent defendant in the
absence of a particularized showing of need." Mason at 150. "Nor does it require the
government to provide expert assistance to an indigent criminal defendant upon mere
demand of the defendant." Id. Instead, as the Supreme Court has held, "the state must
provide an indigent criminal defendant with funds to obtain expert assistance when the
defendant has made a particularized showing that (1) there exists a reasonable probability
that the requested expert would aid the defense and (2) denial of that expert assistance
would result in an unfair trial." Maxwell at ¶ 221, citing Mason at syllabus. Moreover,
"[t]he trial court's ruling on such requests is a matter left to the exercise of the court's 'sound
discretion.' " Id., quoting Mason at syllabus. Accordingly, we review the trial court's denial
of E'lorna's request for funds for expert assistance for an abuse of discretion. Id. 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).
{¶ 29} E'lorna argues the trial court abused its discretion when it denied her request
for funds for expert assistance on the issue of battered woman syndrome. The Supreme
Court has held that "expert testimony on battered-woman syndrome is admissible as
evidence to prove one element of self-defense." State v. Goff, 128 Ohio St.3d 169, 2010-
Ohio-6317, ¶ 35, citing State v. Koss, 49 Ohio St.3d 213 (1990), paragraph three of the
syllabus. Specifically, testimony on battered woman syndrome can be "appropriate in
relation to the second element of self-defense, that is, to 'assist the trier of fact to determine
whether the defendant acted out of an honest belief that she [was] in imminent danger of
death or great bodily harm and that the use of such force was her only means of escape.' "
Id. ¶ 37 quoting Koss at paragraph three of the syllabus.
{¶ 30} Additionally, the General Assembly has recognized the admissibility of
battered woman syndrome testimony and has stated that it may be employed in self-
defense cases. R.C. 2901.06 provides:
(A) The general assembly hereby declares that it recognizes
both of the following, in relation to the "battered woman
syndrome:"
No. 19AP-796 11
(1) That the syndrome currently is a matter of commonly
accepted scientific knowledge;
(2) That the subject matter and details of the syndrome are not
within the general understanding or experience of a person
who is a member of the general populace and are not within the
field of common knowledge.
(B) If a person is charged with an offense involving the use of
force against another and the person, as a defense to the offense
charged, raises the affirmative defense of self-defense, the
person may introduce expert testimony of the "battered woman
syndrome" and expert testimony that the person suffered from
that syndrome as evidence to establish the requisite belief of an
imminent danger of death or great bodily harm that is
necessary, as an element of the affirmative defense, to justify
the person's use of the force in question. The introduction of
any expert testimony under this division shall be in accordance
with the Ohio Rules of Evidence.
{¶ 31} Thus, the caselaw and statutory framework recognize the admissibility of
expert testimony on battered woman syndrome in certain circumstances where a defendant
seeks to use that expert testimony to aid in the explanation of the second prong of a claim
of self-defense. Here, however, E'lorna does not argue that she, herself, suffered from
battered woman syndrome. Instead, E'lorna sought to argue that her sister suffered from
battered woman syndrome and that, therefore, her sister's battered woman syndrome
helped to explain E'lorna's own use of force when she acted in defense of another. We are
mindful, however, that the relevant caselaw generally examines testimony regarding
battered woman syndrome as being relevant to explaining a victim's behavior. See State v.
Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, ¶ 46; State v. Palmer, 10th Dist. No. 99AP-
175, 2000 Ohio App. LEXIS 1247 (Mar. 28, 2000) (stating "[e]vidence concerning battered
woman syndrome in general and evidence the appellant suffered from that syndrome in
particular is pertinent only as it contributes to the appellant's state of mind at the time the
killing occurred, i.e., that it contributed to the appellant's perception of being in imminent
danger of severe bodily harm or death at the hands of her partner"), citing Koss at 217.
E'lorna does not purport to be the victim of battered woman syndrome and is, instead, a
third-party to the alleged battered woman syndrome relationship.
No. 19AP-796 12
{¶ 32} Further, E'lorna's entire argument on expert assistance presupposes she was
entitled to receive an instruction on self-defense and defense of another. For purposes of
our analysis under this assignment of error, we will not address the evidentiary
circumstances at trial that precluded these instructions. However, even assuming E'lorna
could prove the requisite foundational elements that her sister suffered from battered
woman syndrome, E'lorna does not explain how expert assistance was necessary to
demonstrate that her sister's mental state as the result of being a battered woman could
sufficiently transfer to E'lorna to explain E'lorna's own use of force against Dailey. Instead,
E'lorna merely hypothesizes that such expert testimony could have aided the jury. Such
speculation does not amount to the requisite particularized showing of a reasonable
probability that the requested expert would aid her defense in order to require the granting
of funds for expert assistance. Accordingly, the trial court did not abuse its discretion in
denying E'lorna's motion for expert assistance.
{¶ 33} We overrule E'lorna's second assignment of error.
V. Third Assignment of Error – Self-Defense and Defense of Another
Instruction
{¶ 34} In her third assignment of error, E'lorna argues the trial court erred in
denying her request for jury instructions on self-defense and defense of another.
{¶ 35} In reviewing a trial court's jury instructions, an appellate court must
determine whether the trial court's refusal to give a requested instruction was an abuse of
discretion under the facts and circumstances of the case. State v. Gover, 10th Dist. No.
05AP-1034, 2006-Ohio-4338, ¶ 22, citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). As
noted above, an abuse of discretion implies that the court's attitude was unreasonable,
arbitrary, or unconscionable. Blakemore at 219.
{¶ 36} "The court must give all instructions that are relevant and necessary for the
jury to weigh the evidence and discharge its duty as the factfinder." State v. Joy, 74 Ohio
St.3d 178, 181 (1995), citing State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of
the syllabus. Conversely, " '[i]t is well established that the trial court will not instruct the
jury where there is no evidence to support an issue.' " State v. Mankin, 10th Dist. No. 19AP-
650, 2020-Ohio-5317, ¶ 34, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591
(1991), citing Riley v. Cincinnati, 46 Ohio St.2d 287 (1976). Thus, in reviewing a record to
No. 19AP-796 13
determine whether there is sufficient evidence to support the giving of an instruction, "an
appellate court should determine whether the record contains evidence from which
reasonable minds might reach the conclusion sought by the instruction." Murphy at 591,
citing Feterle v. Huettner, 28 Ohio St.2d 54 (1971), syllabus.
{¶ 37} E'lorna sought instructions on self-defense and defense of another. Effective
March 28, 2019, the current version of 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." State v.
Carney, 10th Dist. No. 19AP-402, 2020-Ohio-2691, ¶ 31; see also State v. Daley, 10th Dist.
No. 19AP-561, 2020-Ohio-4390, ¶ 39.
{¶ 38} This court has recently reiterated that, under the current version of R.C.
2901.05, although the burden of proof for the affirmative defenses of self-defense and
defense of another has shifted to the state, the burden of production for all affirmative
defenses, including self-defense and defense of another, remains with the defendant. State
v. Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044, ¶ 44, citing State v. Parrish, 1st
Dist. No. C-190379, 2020-Ohio-4807, ¶ 14; State v. Petway, 11th Dist. No. 2019-L-124,
2020-Ohio-3848, ¶ 55. Thus, to be entitled to an instruction on self-defense and/or defense
of another, there must have been evidence presented that tends to support that E'lorna
acted in self-defense and/or defense of another.
No. 19AP-796 14
{¶ 39} Having reviewed the record in its entirety, we do not find the trial court
abused its discretion in denying E'lorna's request for a self-defense and defense of another
instruction. As to the first prong of a claim of self-defense and defense of another, whether
E'lorna was not at fault in creating the situation giving rise to the affray, we note that by
E'lorna's own testimony, her confrontation with Dailey was really two distinct
confrontations: one inside the house and one outside the house on the street near a
neighbor's house. Although E'lorna testified that she was afraid of Dailey while she was in
the house and described both herself and Dailey as trying to get to the gun first, E'lorna
testified that Dailey did leave the residence following that first confrontation. The second
confrontation, and the one that ultimately led to E'lorna's use of force, occurred once Dailey
was outside the house. E'lorna testified that she looked outside and saw Dailey down the
street near a neighbor's yard. It was at that point, pursuant to E'lorna's own testimony, that
E'lorna ran outside and confronted Dailey on the street, pointing a gun at Dailey. E'lorna
testified that Dailey did not appear frightened by E'lorna approaching her with a gun. After
she pointed the gun at Dailey, E'lorna testified that Dailey moved across the street and went
into a neighbor's yard. E'lorna testified she then chased Dailey down the street, shooting
four shots at her. Though E'lorna may have presented evidence that tends to show she was
not at fault for the situation inside the house, her own testimony is clear that E'lorna
initiated, and was at fault for, the situation outside the house, including chasing Dailey
down the street and shooting her. See State v. Ellis, 10th Dist. No. 11AP-939, 2012-Ohio-
3586, ¶ 15 (stating "a multitude of courts have found that a defendant is at fault in creating
the situation giving rise to the affray or violated a duty to avoid danger or retreat when he
chooses to confront the victim, chooses to knowingly go to a place where the victim will be
or refuses to move in a direction away from the victim, even when the defendant's action
was otherwise completely lawful").
{¶ 40} Moreover, the second prong of a claim of self-defense or defense of another
asks whether E'lorna had an honest belief that she or her sister were in imminent danger of
death or great bodily harm and that their only means of escape was in the use of force.
E'lorna testified that she was afraid that Dailey was going to call friends and family
members to help her return to the residence and attack E'lorna and her sister. However, as
the trial court noted, even if E'lorna legitimately believed Dailey was asking friends and
No. 19AP-796 15
family to come to the residence, chasing Dailey down the street and shooting her would not
mitigate the threat of other people arriving. Additionally, Dailey was alone in the street
when E'lorna confronted her outside, and E'lorna admitted she chased her down the street
and continued to shoot her until she was sure Dailey was dead, so there was no evidence of
the kind of imminent danger that a claim of self-defense and defense of another requires.
See State v. Kean, 10th Dist. No. 17AP-427, 2019-Ohio-1171, ¶ 58, 61 (noting a component
of the second element of self-defense includes a showing that the defendant used only that
force that was reasonably necessary to repel the attack, and defendant's decision to stab the
victim in the chest after the victim, at most, threw a single punch during a fist fight,
demonstrated that the defendant was neither warranted in using the degree of force nor
proportionate to the perceived threat).
{¶ 41} For these reasons, the evidence at trial did not tend to support the giving of
an instruction that E'lorna acted in self-defense and/or defense of another. Accordingly,
the trial court did not abuse its discretion in refusing E'lorna's request for these instructions
to the jury. We overrule E'lorna's third assignment of error.
VI. Fourth Assignment of Error – Evidentiary Rulings
{¶ 42} In her fourth assignment of error, E'lorna argues the trial court erred in
refusing to admit evidence regarding police procedure during one of the police responses
to the residence prior to the shooting. 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).
{¶ 43} E'lorna's argument under this assignment of error relates to her attempt to
introduce evidence at trial that police failed to follow their own procedures for responding
to a domestic violence call when they did not perform a lethality screen. At trial, Officer
Todd Aiello testified that a lethality screen is part of Columbus Police protocol involving "a
preprinted questionnaire you'd ask somebody you feel that's at high risk on a domestic
violence situations." (Tr. Vol. 1 at 250.) E'lorna sought to argue at trial that police should
have performed a lethality screen when they responded to Dericka's 911 call on May 22,
2018. The state objected to this line of questioning, arguing that E'lorna was attempting to
suggest the police did not adequately protect Dericka but that such information was not
No. 19AP-796 16
relevant to E'lorna's criminal defense. The trial court agreed with the state, noting that the
line of questioning was confusing the issues the jury needed to decide and was more
prejudicial than probative. Thus, the trial court sustained the state's objection, refusing to
admit the evidence of the lack of a lethality screen.
{¶ 44} E'lorna again attempted to introduce evidence of the lack of lethality screen
when police responded to the residence on the day of the shooting. Again, however, the
trial court found the line of questioning was not relevant and was confusing to the jury and,
thus, did not allow the evidence. E'lorna argues the trial court abused its discretion in
making these evidentiary rulings.
{¶ 45} 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.
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."
{¶ 46} Having reviewed the record, we agree with the trial court that the danger of
confusion of the issues or misleading the jury substantially outweighed any potential
relevance of the evidence of police not conducting a lethality screen when they responded
to either of Dericka's 911 calls. Although E'lorna argues such evidence would have bolstered
her argument that Dailey posed a threat despite police's failure to arrest her, the evidence
of the police's lack of a lethality screen is, at most, only tangentially relevant to the ultimate
question of whether E'lorna killed Dailey. We already explained in our resolution of
E'lorna's third assignment of error that the evidence at trial did not warrant a self-defense
or defense of another instruction. While E'lorna argues the evidence of the lack of a lethality
screen would have helped her argument that she acted in self-defense or defense of another,
she ignores the other evidence at trial indicating that she both initiated the fatal encounter
and did not demonstrate she or her sister were in imminent danger of harm.
{¶ 47} Furthermore, E'lorna's insinuation that police somehow failed to protect
Dericka poses a significant risk of confusion of the issues and misleading the jury as the
police were not on trial for their conduct. The questions the jury had to decide were whether
E'lorna killed Dailey and whether E'lorna acted under sufficient provocation. Suggesting
No. 19AP-796 17
police did not follow their own protocol would not have helped the jury decide those
questions but carried a significant risk that the jury would be confused on the issues before
it. Thus, we agree with the trial court that the potential for confusion and misleading the
jury from this evidence outweighs any potential probative value. See State v. Shipley, 10th
Dist. No. 12AP-948, 2013-Ohio-4055, ¶ 61 (stating "[i]n order for the evidence to be deemed
inadmissible, its probative value must be minimal and its prejudicial effect great"), citing
State v. Morales, 32 Ohio St.3d 252, 258 (1987).
{¶ 48} Because the trial court did not abuse its discretion in refusing to admit the
evidence of the police's lack of lethality screen for Dericka, we overrule E'lorna's fourth
assignment of error.
VII. Fifth Assignment of Error – Ineffective Assistance of Counsel
{¶ 49} In her fifth assignment of error, E'lorna argues she received the ineffective
assistance of counsel.
{¶ 50} In order to prevail on a claim of ineffective assistance of counsel, E'lorna must
satisfy a two-prong test. First, she must demonstrate that her counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires
E'lorna to show that her counsel committed errors which were "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If
E'lorna can so demonstrate, she must then establish that she was prejudiced by the deficient
performance. Id. To show prejudice, E'lorna must establish there is a reasonable
probability that, but for her 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.
{¶ 51} 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.
E'lorna contends her trial counsel was ineffective in (1) failing to deliver upon promises
made during opening statements; (2) failing to properly subpoena Dericka to testify at trial;
and (3) failing to object to the jury instruction that the jury should not consider self-defense.
Additionally, E'lorna asserts the cumulative effect of counsel's alleged errors rendered her
trial counsel ineffective.
No. 19AP-796 18
A. Opening Statements
{¶ 52} E'lorna's first allegation of ineffective assistance of counsel is her trial
counsel's failure to deliver on promises made during opening statements. More specifically,
E'lorna notes her trial counsel stated in opening statements that police failed to conduct a
lethality screen and that the evidence would demonstrate that E'lorna acted in self-defense
or defense of another. As we discussed above, defense counsel did attempt at trial to both
introduce evidence of the lack of lethality screen and to obtain an instruction on self-
defense and defense of another. The trial court, in its discretion, denied both of those
attempts. We are mindful that the length and content of trial counsel's opening statement
is ordinarily a strategic or tactical decision. State v. Silverman, 10th Dist. No. 05AP-837,
2006-Ohio-3826, ¶ 151; State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 56.
"Tactical or strategic trial decisions, even if ultimately unsuccessful, will not substantiate a
claim of ineffective assistance of counsel." State v. Ryan, 10th Dist. No. 08AP-481, 2009-
Ohio-3235, ¶ 77, citing In re M.E.V., 1oth Dist. No. 08AP-1097, 2009-Ohio-2408, ¶ 34.
Although the subsequent rulings were not in her favor, the trial court's rulings did not
render E'lorna's trial counsel's opening statement a deficient performance. Thus, E'lorna's
first allegation of ineffective assistance of counsel does not satisfy the first prong of the
Strickland test.
B. Dericka's Subpoena
{¶ 53} E'lorna's second allegation of ineffective assistance of counsel is her trial
counsel's failure to properly subpoena Dericka to testify at trial. Generally, trial counsel's
decision whether or not to call a particular witness is a matter of trial strategy, and a
reviewing court will not second guess that decision. State v. Jones, 10th Dist. No. 15AP-
670, 2017-Ohio-1168, ¶ 26, citing State v. Davis, 10th Dist. No. 09AP-869, 2010-Ohio-
4734, ¶ 17. " '[T]he mere failure to subpoena witnesses is not itself a substantial violation
of an essential duty without a showing that their testimony would have assisted the
defense.' " Id., quoting Davis at ¶ 18.
{¶ 54} During the trial, defense counsel indicated it planned to call Dericka to testify
but that Dericka informed counsel during the trial that she would not appear out of fear.
Defense counsel admitted to only sending Dericka an e-mail subpoena but did not attempt
to perfect service by regular mail. Defense counsel stated he did not feel he needed to
No. 19AP-796 19
perfect regular mail service of the subpoena because Dericka had indicated she would be
cooperative. Defense counsel ultimately proceeded with the trial and did not call Dericka
to testify. E'lorna now argues her counsel was deficient in not calling Dericka to testify as
Dericka could have helped E'lorna explain why she believed she needed to act to protect
Dericka from Dailey.
{¶ 55} Despite E'lorna's attempts to characterize her counsel's failure to properly
subpoena Dericka as a matter of deficient performance, a review of the record indicates trial
counsel's decision not to formally subpoena Dericka was likely a matter of trial strategy.
E'lorna presented ample evidence of the nature of the relationship between Dailey and
Dericka, and the jury was able to view Dericka's statements to police on the body-worn
camera footage. Moreover, Dericka did not witness the actual shooting. E'lorna does not
explain what testimony Dericka would have provided that would not have been duplicative
to the other evidence already at trial. Additionally, as the state notes, it is entirely possible
Dericka would not have provided favorable testimony for E'lorna as E'lorna was responsible
for Dailey's death. Thus, we do not find here that trial counsel's failure to subpoena Dericka
amounted to deficient performance.
C. Failure to Object to Instruction Not to Consider Self-Defense
{¶ 56} E'lorna's third allegation of ineffective assistance of counsel is her trial
counsel's failure to object to the state's request for a jury instruction that the jury should
not consider self-defense after defense counsel suggested self-defense was at issue. 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. State v. Jones, 10th Dist. No. 18AP-33, 2019-Ohio-2134, ¶ 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.
{¶ 57} As we explained in our resolution of E'lorna's third assignment of error, the
trial court did not abuse its discretion in refusing to instruct the jury on self-defense or
defense of another. Nonetheless, E'lorna asserts her trial counsel was deficient in failing to
object when the trial court instructed the jury that it was not to consider self-defense. This
instruction came at the request of the state after the trial court made its decision not to
No. 19AP-796 20
instruct on self-defense since defense counsel had indicated throughout the trial to the jury
that E'lorna had acted in self-defense or defense of another. The parties discussed the
matter with the trial court and agreed on the following instruction:
The jury may not consider self-defense on either Count One or
Count Two, however, the State must still prove the charges of
Aggravated Murder and/or Murder beyond a reasonable
doubt.
The jury may also consider the lesser charge of Voluntary
Manslaughter on each count. The Defendant must prove by a
preponderance of the evidence the factors or mitigating
circumstances that reduced Aggravated Murder and/or
Murder to Voluntary Manslaughter.
(Tr. Vol. 5 at 1067.)
{¶ 58} E'lorna now argues it was confusing to the jury to instruct it not to consider
self-defense. However, despite insisting the instruction was unnecessary, E'lorna makes no
argument that the instruction was legally incorrect, nor does she explain why, specifically,
the instruction was confusing. Because the instruction was a correct statement of the law
and was warranted based on defense counsel's earlier representations that E'lorna had
acted in self-defense, E'lorna does not show that an objection on this instruction had a
reasonable probability of success. Jones at ¶ 52. Thus, E'lorna does not demonstrate
deficient performance from trial counsel's failure to object to the jury instructions.
D. Cumulative Effect of Errors
{¶ 59} E'lorna 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 E'lorna being denied a fair trial.
{¶ 60} E'lorna 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
defendant of the constitutional right to a fair trial." Id. at paragraph two of the syllabus.
E'lorna urges us to conclude that her counsel's alleged errors, when considered together,
deprived her of a fair trial. However, having determined that none of E'lorna's three
allegations of ineffective assistance of counsel constituted deficient performance by her trial
No. 19AP-796 21
counsel, and thus failed to satisfy the first prong of the Strickland analysis, E'lorna does not
demonstrate error, let alone cumulative error. See State v. Ferrell, 10th Dist. No. 19AP-
816, 2020-Ohio-6879, ¶ 50.
{¶ 61} For these reasons, E'lorna is unable to demonstrate she received the
ineffective assistance of counsel. We overrule E'lorna's fifth assignment of error.
VIII. Sixth Assignment of Error – Sentence
{¶ 62} In her sixth and final assignment of error, E'lorna argues the trial court erred
in imposing a sentence not supported by the record and contrary to law. More specifically,
E'lorna argues the trial court made erroneous findings to justify the sentence and that the
sentence was contrary to the purposes and principles of sentencing.
{¶ 63} In sentencing a felony offender, the trial court must consider the overriding
purposes of sentencing, which are "to protect the public from future crime by the offender
and others, to punish the offender, and to promote the effective rehabilitation of the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources." R.C. 2929.11(A). This requires consideration of "the need for incapacitating
the offender, deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both." State v.
Wilburn, 10th Dist. No. 17AP-602, 2018-Ohio-1917, ¶ 7. "Further, pursuant to R.C.
2929.12(A), the court must consider the factors set forth in R.C. 2929.12(B) and (C) relating
to the seriousness of the offender's conduct, as well as the factors set forth in R.C.
2929.12(D) and (E) relating to the likelihood of recidivism, along with any other relevant
factors." Id.{¶ 64} The trial court has the discretion to determine, upon considering and
weighing all relevant factors, what sentence would best serve the purposes and principles
of sentencing. State v. Anderson, 10th Dist. No. 16AP-810, 2017-Ohio-7375, ¶ 14 (trial
court, in exercising discretion, determines weight afforded to any particular statutory
factors, mitigating grounds, or other relevant circumstances). Consequently, an appellate
court will not reverse a trial court's sentencing decision unless the evidence is clear and
convincing that either the record does not support the sentence or the sentence is
"otherwise contrary to law." R.C. 2953.08(G)(2); State v. Chandler, 10th Dist. No. 04AP-
No. 19AP-796 22
895, 2005-Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-
5660, ¶ 27, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10. See also State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1 ("an appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing evidence
that the record does not support the trial court's findings under relevant statutes or that the
sentence is otherwise contrary to law"). Clear and convincing evidence is that "which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 65} E'lorna points to several findings the trial court made that she asserts were
unsupported by the record. First, E'lorna challenges the trial court's finding under R.C.
2929.12(B)(6) and (9) that E'lorna's relationship with the victim facilitated the offense and
that the offense involves a family or household member because "E'lorna, Dericka, and
[Dailey] lived together for some period of time at the home on Columbian Avenue."
(Oct. 23, 2019 Sentencing Tr. at 19.) E'lorna argues this finding is erroneous because she
had introduced evidence at trial that Dailey had recently moved out of the residence and
that Dericka and Dailey had ended their relationship by the time of the offense. However,
as the trial court noted, Dailey was a household member of the residence at the time of the
offense, explaining why the police could not force Dailey to leave the property when they
were first called to the residence. Moreover, even if Dericka had recently ended her
relationship with Dailey, the record was clear that the two had been in an intimate partner
relationship for quite some time while E'lorna lived with them. Thus, the record supported
the trial court's findings under R.C. 2929.12(B)(6) and (9).
{¶ 66} E'lorna also argues the trial court should not have considered the factor found
in R.C. 2929.12(B)(9), which provides that an offense is more serious if it involves a family
or household member and the offender committed the offense in the vicinity of children of
the offender or victim. E'lorna asserts that R.C. 2929.12(B)(9) is only applicable when the
defendant has been convicted of one of the listed predicate offenses, namely, domestic
violence, assault, aggravated assault, and felonious assault. Since E'lorna was convicted of
voluntary manslaughter, she argues the trial court should not have considered R.C.
2929.12(B)(9) at all. However, as this court has noted, "R.C. 2929.12(A) provides that, in
addition to the factors listed in (B), (C), (D), and (E), the court 'may consider any other
No. 19AP-796 23
factors that are relevant to achieving those purposes and principles of sentencing,' and R.C.
2929.12(B) provides that the sentencing court may consider 'any other relevant factors, as
indicating [that] the offender's conduct is more serious than conduct normally constituting
the offense.' " State v. Gore, 10th Dist. No. 15AP-686, 2016-Ohio-7667, ¶ 18 (finding the
trial court did not err in "taking under strong advisement" the R.C. 2929.12(B)(9) factor in
imposing a sentence on a conviction of voluntary manslaughter). Here, the trial court
specifically noted that not all of R.C. 2929.12(B)(9) applied because the offense was not
committed in the vicinity of children. The trial court explained to what extent each factor
did and did not apply to E'lorna's situation, and we do not agree with E'lorna that the trial
court erred in noting her household relationship with Dailey.
{¶ 67} Next, E'lorna challenges the trial court's findings under R.C. 2929.12(C)(1)
and (2) that Dailey did not facilitate the offense but that E'lorna nonetheless acted under a
strong provocation. E'lorna seems to suggest these findings are somehow inconsistent, but
we disagree. These findings reflect the jury's finding that E'lorna acted under strong
provocation when she shot and killed Dailey.
{¶ 68} E'lorna also challenges the recidivism factors under R.C. 2929.12(D) and (E),
contending the trial court placed too much emphasis on E'lorna's drug and/or alcohol
abuse that was revealed as part of the presentence investigation report. E'lorna does not
argue that there was no evidence to support her drug or alcohol use, but she asserts the trial
court erred in presuming her history of substance use was related to the offense. However,
though we agree with E'lorna that nothing at trial indicated that E'lorna's actions related to
drug or alcohol use, the trial court simply noted the findings from the presentence
investigation and found that the factor was present based on E'lorna's admission of weekly
drug use and failure to see a pattern.
{¶ 69} The trial court additionally found, under R.C. 2929.12(D)(5), that E'lorna
showed no genuine remorse for the offense. E'lorna argues that finding was in direct
conflict with her testimony that she felt sorry that Dailey was dead but maintained that she
felt she had no other option. However, the trial court noted E'lorna's testimony and, having
had the opportunity to evaluate how sincere she was in her expressions of remorse, found
that while E'lorna may have expressed remorse, she did not demonstrate genuine remorse
as R.C. 2929.12(D)(5) contemplates. State v. Dodson, 10th Dist. No. 20AP-297, 2021-Ohio-
No. 19AP-796 24
2415, ¶ 10 (the trial court is in the best position to evaluate the genuineness of an offender's
expression of remorse).
{¶ 70} The final statutory factor that E'lorna challenges is the trial court's finding,
under R.C. 2929.12(E)(4), that it could not state, with certainty, that the offense was
committed under circumstances not likely to recur. However, E'lorna places more
emphasis on this factor than the trial court did at sentencing. The trial court relied on
E'lorna's depiction of herself as very protective of her siblings. While the trial court found
this was the most serious form of the offense, it found "it is not likely, and [the trial court
is] hopeful that [E'lorna] based on her record will not commit crimes in the future."
(Sentencing Tr. at 27.) Having reviewed the record, we do not agree with E'lorna that the
trial court's findings were not clearly and convincingly supported by the record.
{¶ 71} More generally, E'lorna argues her ten-year sentence on her voluntary
manslaughter conviction was too lengthy given her repeated assertions that she was acting
to defend her sister from what she characterized as a violent intimate relationship.
However, a "sentence is not clearly and convincingly contrary to law when a trial court
considers the principles and purposes of sentencing contained in R.C. 2929.11 and the
factors listed in R.C. 2929.12, properly imposes postrelease control and sentences the
defendant within the permissible statutory range." State v. Haddad, 10th Dist. No. 16AP-
459, 2017-Ohio-1290, ¶ 19. Indeed, E'lorna's ten-year sentence was within the range of
permissible sentences as set forth in R.C. 2929.14. Further, though E'lorna argues her
sentence is contrary to law based on the trial court's alleged failure to adequately consider
the purposes and principles of sentencing, her actual argument reflects a mere
disagreement with the weight the trial court assigned to the statutory factors. However, it
is for the trial court to determine the appropriate weight, if any, to assign to the particular
statutory factors. State v. Saur, 10th Dist. No. 10AP-1195, 2011-Ohio-6662, ¶ 46, citing
State v. Arnett, 88 Ohio St.3d 208, 215 (2000). Though E'lorna disagrees with the trial
court's balancing of the sentencing factors and other relevant considerations, " 'such a
disagreement does not make a sentence that falls within the applicable statutory range
contrary to law.' " Anderson at ¶ 14, quoting State v. Reeves, 10th Dist. No. 14AP-856, 2015-
Ohio-3251, ¶ 10, citing State v. Stubbs, 1oth Dist. No. 13AP-810, 2014-Ohio-3696, ¶ 16.
No. 19AP-796 25
{¶ 72} For these reasons, we reject E'lorna's argument that her sentence is contrary
to law. Accordingly, we overrule E'lorna's sixth and final assignment of error.
IX. Disposition
{¶ 73} Based on the foregoing reasons, the jury did not return inconsistent verdicts
in finding E'lorna not guilty of voluntary manslaughter under Count 1 of the indictment but
guilty of voluntary manslaughter under Count 2 of the indictment. Moreover, the trial court
did not err in denying E'lorna's motion for funds for the assistance of an expert witness on
battered woman syndrome, did not err in refusing to provide an instruction on self-defense
and defense of another, did not abuse its discretion in its evidentiary rulings, and did not
err in imposing E'lorna's sentence, and E'lorna did not receive the ineffective assistance of
counsel. Having overruled E'lorna's six assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and NELSON, JJ., concur.
NELSON, J., retired, formerly of the Tenth Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).
NELSON, J., concurring.
{¶ 74} I join in the decision of the court, and write separately simply to provide a bit
of further context for the jury's verdicts.
{¶ 75} At least on this record, it seems to me that voluntary manslaughter as
committed knowingly while under the influence of sudden passion or in a sudden fit of rage
brought on by serious provocation from the victim could be a "lesser [inferior-degree]
offense" of aggravated murder with prior calculation and design only through the
waystation of murder as itself a lesser-included offense of aggravated murder. That is, the
jury here could not have found that E'lorna acted both purposefully with prior calculation
and design and out of sudden passion or rage. And it did not: it acquitted her of the
aggravated murder count (and of voluntary manslaughter appended there by the judge's
instructions without an intermediate murder option). It then turned to the murder charge
set forth in Count 2 and found E'lorna guilty of the inferior-degree offense of voluntary
No. 19AP-796 26
manslaughter deriving from that count. E'lorna cannot (or at least does not) claim error or
prejudice in the Count 1 formulation, for she was acquitted on that count. And here,
voluntary manslaughter was an inferior-degree offense of murder as charged in Count 2,
and the jury was well within its rights to convict her on that score.
{¶ 76} I don't think the trial court was well advised to offer a voluntary manslaughter
possibility in connection with the aggravated murder charge when murder simpliciter was
charged in a second count (and when the lesser-included offense of murder was not offered
as to the first count). But the jury sorted through matters; again, the charge as to Count 1
is not claimed as error, and E'lorna makes no real argument that the trial court erred in
charging the jury on aggravated murder and murder as separate counts. I concur in the
decision of this court upholding the conviction and sentence.