STATE OF OHIO, Plaintiff-Appellee, v. DESMOND DUNCAN, JR., Defendant-Appellant.
No. 110784
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 13, 2022
[Cite as State v. Duncan, 2022-Ohio-3665.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-649123-B
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 13, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Nora Bryan and Mahmoud Awadallah, Assistant Prosecuting Attorneys, for appellee.
Russell S. Bensing, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
{¶ 1} Appellant Desmond Duncan (“Duncan“) appeals his convictions for murder, felonious assault, and first-degree involuntary manslaughter. He contends that the trial court erred in instructing the jury on self-defense; that the trial court erred in refusing to instruct the jury on certain lesser-included offenses; that the trial
I. Factual and Procedural History
{¶ 1} On June 16, 2019, Ramses Hurley (“Hurley“), a 19-year-old male, was ejected from the backseat of a moving vehicle and left behind in a pool of his own blood on South Moreland Boulevard in the Buckeye-Shaker neighborhood of Cleveland, a few feet from his home. Hurley‘s body contained numerous “road rash” abrasions indicating that his body had likely been dragged along the road. He was pronounced dead later that day. The medical examiner observed blunt-force injuries to Hurley‘s head and neck and determined that the manner of death was a homicide. These specific facts are nearly certain based upon video surveillance and available scientific evidence.
{¶ 2} The events occurring in the vehicle prior to Hurley‘s death are significantly less certain. What occurred in that vehicle was almost exclusively provided by Duncan and the driver of the vehicle, Trinity Campbell (“Campbell“).
{¶ 3} Duncan and codefendants Campbell and Jaidee Miree (“Miree“) were charged in an 11-count indictment. Duncan was charged with the following nine counts: aggravated murder in violation of
{¶ 4} Campbell testified at trial that prior to Hurley‘s death, she picked up Miree intending to purchase marijuana from Hurley. Since this was Campbell‘s first time making a purchase from Hurley, she wanted Miree, a friend of two to three months, to accompany her. Allegedly, none of the defendants knew Hurley prior to this encounter. Before arriving at Hurley‘s home, Miree instructed Campbell to pick up two of his friends, Duncan, and an unknown male who was referred to as “B.J.” throughout the course of this case. During trial, Campbell testified that B.J. brought guns into the car and supplied one to Miree. Campbell claimed she never met either of these individuals, and in her first recitation of the events to Sergeant Aaron Reese1 of the Cleveland Police Department, she neglected to mention that Duncan was also an occupant of the vehicle.
{¶ 6} When Campbell‘s vehicle eventually arrived at Hurley‘s home, Hurley was finishing a drug transaction with another individual, Emanuel Adams (“Adams“). According to Campbell, Hurley entered the vehicle through the driver‘s side backdoor and was seated directly behind her. Hurley placed a scale and some marijuana on the center console. According to Campbell‘s testimony, as she was reaching into her wallet for cash to pay for her portion, Miree grabbed the marijuana from the scale and did not pay for it. Immediately after, Campbell noted that a “commotion” ensued in the backseat. Two gunshots were fired in the vehicle. She observed Hurley holding a gun. She also observed Duncan holding Hurley in a headlock and pointing a gun to his head. Miree began punching Hurley in the head. The backseat door opened, and Hurley was thrown from the vehicle. According to Campbell, as soon as Hurley was out of the vehicle, Miree encouraged Campbell to drive away.
{¶ 8} Duncan testified in his own defense at trial, and his version of the events differed from Campbell‘s considerably. He testified that he entered the vehicle expecting a ride to the music studio and did not need to purchase any marijuana, so he had his headphones on the entire time. Duncan denied ever needing to, or wanting to, rob Hurley. Instead of being in the cargo area with a gun, Duncan testified that he was right next to Hurley, in the middle of the backseat. Duncan stated that he did not even realize that something was wrong until Hurley pulled out a gun and pointed it towards Miree, and at that point he removed his headphones and attempted to disarm Hurley. He noted that he was concerned because he believed that Miree was shot and hurt. He then testified that he opened the door and pushed Hurley from the vehicle in defense of himself and the other vehicle occupants.
{¶ 9} The following additional evidence was also adduced at trial.
{¶ 11} Lisa Przepyszny, a forensic scientist in the trace evidence department of the Cuyahoga County Regional Forensic Science Laboratory, testified as an expert in trace evidence. Przepyszny offered several significant opinions - that gunshot residue was found on Hurley‘s hands and that there were abrasions in the fabric of the clothing that Hurley was wearing that day consistent with his body impacting a rough surface. She also provided information about the bullet trajectories found inside the vehicle and the DNA evidence found on Hurley‘s clothing and inside the vehicle.
{¶ 12} Cecil Snowden was walking his dog at the time of the incident and testified as an eyewitness. Snowden testified that he heard two gunshots and saw a person coming out of the driver‘s side of the vehicle.
{¶ 13} Todd M. Barr, M.D. (“Dr. Barr“), testified as an expert in forensic pathology about the autopsy and examination of Hurley‘s body, noting Hurley‘s injuries as well as the cause and manner of death.
{¶ 15} The defense called Richard Cerney, a retired police detective, who opined that the subject vehicle could have been preserved for evidentiary examination until after trial was complete.
{¶ 16} The defense also called Curtis Lewis, Duncan‘s manager with respect to his music career, who testified that Duncan did not need money, nor did he need to rob someone for marijuana.
{¶ 17} Prior to trial, Campbell accepted a plea deal with the state, part of which contained an agreement to testify truthfully at Duncan and Miree‘s joint trial. The jury found Duncan guilty of felony murder (Count 2), felonious assault (Count 5), improperly handling firearms in a motor vehicle (Count 7), and involuntary manslaughter (Count 8). The jury acquitted both Miree and Duncan of all firearm specifications.
{¶ 18} Duncan received life without the possibility of parole for 15 years for murder, felonious assault, and involuntary manslaughter which were merged for sentencing. Duncan received 12 months for improperly handling firearms in a motor vehicle, to be served concurrently. Duncan appealed, assigning six errors for our review:
I. The trial court erred in failing to properly instruct the jury on the affirmative defenses of self-defense and defense of another, relieving the State of its duty to disprove self-defense beyond a reasonable doubt,
II. The trial court erred in refusing to instruct the jury on the lesser-included offenses of assault and involuntary manslaughter as a third-degree felony, in derogation of Defendant‘s right to due process of law as protected by the 5th and 14th Amendments to the United States Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
III. The trial court erred in admitting evidence of other acts against Duncan, which were not admissible as res gestae or under
IV. The trial court erred in admitting testimony concerning the Defendant‘s juvenile adjudications, in derogation of Defendant‘s right to due process of law as protected by the 5th and 14th Amendments to the United States Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
V. The trial court erred in entering convictions for murder, felonious assault, and first-degree felony involuntary manslaughter, as those convictions were based on insufficient evidence, and there was insufficient evidence to show that the [D]efendant had not acted in self-defense, in derogation of Defendant‘s right to due process of law as protected by the 5th and 14th Amendments to the United States Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
VI. The Defendant‘s convictions for murder, felonious assault, and first-degree felony involuntary manslaughter and the determination that the State had disproved that Defendant had acted in self-defense, were against the manifest weight of the evidence, as those convictions were based on insufficient evidence, in derogation of Defendant‘s right to due process of law as protected by the 5th and 14th Amendments to the United States Constitution, and Article 1, §§ 5, 10, and 16 of the Ohio Constitution.
A. Self-Defense and Duty to Retreat
{¶ 19} In his first assignment of error, Duncan contends that the trial court misapplied the laws of self-defense and the duty to retreat in instructing the jury.
{¶ 20} The instructions provided to the jury as they pertained to self-defense and/or defense of another were:
THE COURT: * * * To prove that the defendants did not use deadly force in self-defense or defense of another, the State must prove beyond a reasonable doubt at least one of the following:
A, the defendant was at fault in creating the situation giving rise to the death of Ramses Hurley;
Or, B, the defendant did not have reasonable grounds to believe and an honest belief, even if mistaken, that he was in imminent or immediate danger of death or great bodily harm;
Or, C, the duty, the defendant violated a duty to retreat to avoid danger;
Or, D, the defendant did not use reasonable force.
(Tr. 2448-2449.)
{¶ 21} First, Duncan argues that the jury instructions contemplated that deadly force was used, where it was the state‘s burden to present a case from which the jury could conclude that the force used against Hurley was deadly or nondeadly. Duncan argues that this was a “conclusive presumption.” During trial, counsel for Miree proposed self-defense jury instructions that only contemplated deadly force.
[MIREE‘S COUNSEL]: * * * Evidence was presented that tends to support a finding that the defendant used deadly force in self-defense.
(Tr. 2055.)
In the absence of objection, any error is deemed to have been waived unless it constitutes plain error. To constitute plain error, the error must be obvious on the record, palpable and fundamental so that it should have been apparent to the trial court without objection. See State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (1995). Moreover, plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court‘s allegedly improper actions. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995).
State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 43.
{¶ 23} Duncan has not argued plain error on appeal, and we decline to sua sponte consider the issue without a proper argument before us. State v. Speights, 8th Dist. Cuyahoga No. 109733, 2021-Ohio-1194, ¶ 14, citing State v. Sims, 10th Dist. Franklin No. 14AP-1025, 2016-Ohio-4763, ¶ 11.
{¶ 24} Second, Duncan argues that the jury was erroneously instructed that Duncan had a duty to retreat before acting in self-defense. In support of this, Duncan sets forth two arguments. Duncan first argues that there is no duty to retreat when a defendant uses nondeadly force. Duncan also argues that
{¶ 25} We disagree that the jury was erroneously instructed. A statute may not be applied retroactively unless expressly made retroactive. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 9. Further, a statute is presumed to operate prospectively unless expressly made retroactive.
{¶ 26} This court has also previously held that the amendments to
{¶ 27} We are also unpersuaded by Duncan‘s contention that the Supreme Court‘s recent opinion in State v. Brooks, Slip Opinion No. 2022-Ohio-2478, addressing the 2019 amendments to the self-defense statute (
{¶ 29} We therefore find that the trial court properly instructed the jury pursuant to the version of
B. Lesser Included Offenses
{¶ 30} In his second assignment of error, Duncan argues that the trial court erred in failing to instruct the jury on the lesser included offenses of reckless assault and involuntary manslaughter as a third-degree felony.
{¶ 31} Trial courts have broad discretion to determine whether the record contains sufficient evidentiary support to warrant a jury instruction on a lesser included offense, and that will not be reversed absent an abuse of discretion. State v. Henderson, 8th Dist. Cuyahoga No. 89377, 2008-Ohio-1631, ¶ 10, citing State v. Wright, 4th Dist. Scioto No. 01CA2781, 2002 Ohio App. LEXIS 7274 (Mar. 26, 2002). An abuse of discretion connotes a trial court‘s decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When considering evidence of a lesser included offense, the court must view it in a light most favorable to the defendant. State v. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339 (1994). The instruction, however, is not warranted in every instance where some evidence is presented on a lesser included offense.
{¶ 32} The Ohio Supreme Court provides a two-tiered analysis for determining whether a lesser included instruction is warranted.
The first tier, also called the “statutory-elements step,” is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense. State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a particular case and determines whether “a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.” [State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13], quoting Shaker Heights v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11. Only in the second tier of the analysis do the facts of a particular case become relevant.
State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6.
{¶ 33} Duncan argues that he was entitled to a jury instruction under Counts 5 and 6 (felonious assault) for the lesser included offense of reckless assault pursuant to
I certainly don‘t think it applies to Count 6 in as much as that has the additional component of a deadly weapon. And, likewise, given the facts of the case, I don‘t think it would apply towards Count 5 either.
(Tr. 2419.)
{¶ 35} The first tier of the Deanda test is satisfied. This court has previously recognized reckless assault as the lesser included offense of felonious assault. State v. McPherson, 8th Dist. Cuyahoga No. 92481, 2010-Ohio-64, ¶ 7.
{¶ 36} Next, we review the second tier. Felonious assault as defined by
{¶ 37} Under
{¶ 38} Duncan also asserts that the trial court erred in failing to instruct the jury under Count 8 (involuntary manslaughter) for the lesser included offense of involuntary manslaughter in the third degree. Where the elements of two offenses are “identical to or contained within the indicted offense, except for one or more mitigating elements,” the lesser offense is considered an inferior degree offense. State v. Deem, 40 Ohio St.3d 205, 206, 533 N.E.2d 294 (1988). Under
{¶ 39} Involuntary manslaughter decreases from a first-degree felony to a third-degree felony when the predicate offense is no longer a felony, but a misdemeanor. Duncan argues that because he was entitled to an instruction on reckless assault, that could have served as the predicate for an instruction on third-
{¶ 40} Duncan‘s second assignment of error is overruled.
C. Other Acts Evidence
{¶ 41} In his third assignment of error, Duncan argues that the trial court erred in admitting evidence of other acts against Duncan in violation of
{¶ 42} Campbell testified during trial that before going to Hurley‘s home, she erroneously directed her G.P.S. to a coworker‘s home. While at the coworker‘s home, she sold the coworker a vape cartridge. Campbell testified that after they left the coworker‘s home, Duncan suggested that they go back and rob the coworker, but that plan fell through. Duncan argues that this testimony was not admissible under
{¶ 43} The admission or exclusion of evidence is left to the sound discretion of the trial court. State v. Rogers, 8th Dist. Cuyahoga No. 105879, 2018-Ohio-3495, ¶ 15, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Further, whether evidence is relevant, confusing, or misleading is best left to the discretion of the trial court who is in a better position to analyze the evidence‘s impact on the jury. Renfro v. Black, 52 Ohio St.3d 27, 31, 556 N.E.2d 150 (1990), citing Columbus v. Taylor, 39 Ohio St.3d 162, 164, 529 N.E.2d 1382 (1988); Calderon v. Sharkey, 70 Ohio St.2d 218, 222, 436 N.E.2d 1008 (1982).
{¶ 44} Duncan argues that the testimony about the plan to rob Campbell‘s coworker was purposed to “establish the defendants’ propensity to commit robberies.” We find that there is no error because the jury acquitted both Miree and Duncan of all charges as they related to a robbery. Any prejudice caused to Duncan by this testimony was harmless because the jury plainly rejected the state‘s theory that this incident was a robbery.
{¶ 45} Duncan‘s third assignment of error is therefore overruled.
D. Juvenile Record
{¶ 46} In his fourth assignment of error, Duncan argues that the trial court erred in admitting evidence concerning his juvenile adjudications.
{¶ 47} During trial, the state noted their intent to cross-examine Duncan on his juvenile record if the defense opened the door to his juvenile adjudications. Briefing was done overnight. The court significantly limited the state‘s mention of the juvenile record, allowing only one 2017 adjudication of aggravated robbery and kidnapping with firearm specifications.
{¶ 48} For ease of understanding, we repeat that the admission or exclusion of evidence is a matter left to the trial court‘s sound discretion; therefore, it will not be disturbed absent an abuse of discretion. State v. Simmons, 8th Dist. Cuyahoga No. 98613, 2013-Ohio-1789, ¶ 18, citing State v. Frazier, 8th Dist. Cuyahoga No. 97178, 2012-Ohio-1198, ¶ 17. An abuse of discretion connotes a trial court‘s decision that is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 21, 450 N.E.2d 1140.
{¶ 49} Evidence of juvenile adjudications are generally not admissible except as allowed by the General Assembly in
{¶ 50} During trial, Duncan took the stand in his own defense. He testified that he maintained a career as a hip-hop artist and went to the studio nearly every day. He further testified that he traveled for performances and that his music was released on several streaming platforms and he earned money from both performing and streaming his music. He testified that his manager helped him pay for studio time and any of his other needs with an allowance. Further, he testified that he did not need any money and was given anything he needed by his management team. Prior to beginning his music career, he attended high school at Lutheran West where he received a basketball scholarship. He testified that he had to wake up at 4:30 in the morning and take three busses to get to school. He also testified that he had never heard a noise as loud as those gunshots in his entire life.
{¶ 51} The trial court significantly limited Duncan‘s prior record, allowing the prosecution to mention only one adjudication. We find no abuse of discretion
{¶ 52} Duncan testified about his life history, including his current pursuit of becoming a hip-hop artist, and his past endeavors including being a high school basketball player. He also indicated that he had never heard sounds as loud as those gunshots before. He also indicated that he has no reason to rob anyone. Taken together, we find that Duncan sufficiently “opened the door” to his juvenile record. The trial court did not err in allowing the limited 2017 adjudication of aggravated robbery and kidnapping with firearm specifications to become part of the record.
{¶ 53} We further note that the trial court gave a limiting instruction, instructing the jury that Duncan‘s juvenile record may only be utilized to “provid[e] context to answers to questions posed to him on direct examination” and that his juvenile record may not be considered as evidence that makes it more likely that he committed the subject offense. (Tr. 2441.) Juries are presumed to follow all instructions given to them, including limiting instructions. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 54.
{¶ 54} Duncan‘s fourth assignment of error is overruled.
E. Sufficiency and Manifest Weight
{¶ 55} In his fifth assignment of error, Duncan contends that his convictions for murder, felonious assault, and felony involuntary manslaughter were based on
{156} A manifest weight challenge and a sufficiency of the evidence challenge are two distinct challenges to the evidence presented. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 25.
1. Manifest Weight
{157} A challenge to the manifest weight of the evidence “involves the inclination of the greater amount of credible evidence.” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Weight of the evidence examines “the evidence‘s effect of inducing belief.” Id., quoting Wilson at id., citing Thompkins at 386-387. In reviewing a manifest-weight claim, the court must consider all of the evidence in the record, the reasonable inferences made from it, and the credibility of the witnesses to determine “whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice * * *.” Id., quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Finally, the discretionary power to grant a new
{158} Duncan suggests that because the jury rejected Campbell‘s testimony regarding the robbery and firearms, they did not find that she was a credible witness and thus, all of her testimony should be discredited. We disagree. As the factfinders, the jury was free to believe any or all of the evidence presented.
{159} We find it necessary to note that the testimony of Campbell and Duncan, the only two witnesses who were actually present in the vehicle, raise significant credibility concerns. Turning first to Campbell, she testified that at the time of this incident, she was high on marijuana and admitted that she smoked marijuana two or three times before the incident. She testified that after the first shot went off in the vehicle, she felt dazed and testified that “everything was white.” (Tr. 1373.) Campbell was confronted with the inconsistencies in her testimony on cross-examination, notably the fact that each time she provided information, she differed or added something new. Campbell also received a plea deal in exchange for truthful testimony, which was indicated to the jury many times throughout trial.
{160} Duncan told a completely different version of the events. He testified that he was unaware of any tension or problems in the vehicle because he was listening to music on his headphones in the back seat and did not become aware that there was a problem until he noticed Hurley pointing a gun at Miree. This starkly contrasts Campbell‘s testimony that Duncan jumped into the cargo area of the vehicle, displayed a gun, and instructed her to remain silent, likely with the intention
{161} Moreover, both Campbell and Duncan expressed trepidation in offering testimony and suggested that inconsistencies in their testimony were motivated by fear of being a “snitch.” Indeed, we note that B.J., the other individual who was present in the vehicle during this incident, remains unidentified. Additionally, the evidence tends to demonstrate that the full story of what occurred in that vehicle has not been revealed. Specifically, there was testimony that the sole objective of this excursion was for Miree to supervise a transaction with a new, unknown marijuana dealer. However, Miree, for reasons unknown, instructed Campbell to pick up two other individuals that she did not know and had never met before, along the way. We acknowledge that from the evidence presented, the jury was tasked with synthesizing divergent testimony, significant circumstantial evidence, and drawing reasonable inferences therefrom.
{162} The jury was charged with a complicity instruction pursuant to
{163} Pertinently, all of the codefendants were present in the vehicle when Hurley was thrown from it, including B.J. who is unknown to date. Evidence was presented that Miree instructed Campbell to pick up Duncan and B.J., even though Campbell did not know them. When asked why Miree instructed her to pick them up, Campbell stated, “he just said we‘ve got to go to that house” and that “there was no explanation.” (Tr. 1239.) Campbell testified that when Duncan got into the vehicle, he was being aggressive and asking to drive. After the incident occurred, Campbell dropped all three passengers off at the same location where Duncan was picked up and they removed items from the vehicle, including Hurley‘s boot. Miree also instructed Campbell to clean her vehicle and remove evidence, including bullets. Miree came to Campbell‘s residence about four times before she spoke with the police. Even though the jury rejected the robbery theory, Campbell‘s testimony also indicated that she realized at some point that the occupants wanted to commit a robbery and even attempted to rob her coworker before reaching Hurley‘s home. The weight of the evidence presented supports a conclusion that the vehicle‘s occupants were acting in concert.
{164} To convict Duncan of felony murder under
{65} A review of the record abundantly supports a felonious assault conviction. Duncan admitted that he pushed Hurley from a moving vehicle with the knowledge that Hurley was likely to sustain an injury. Dr. Barr testified that the deep contusions to Hurley‘s face could have been caused by a physical altercation or the impact with the road. Dr. Barr also testified that Hurley‘s ultimate cause of death, a hinge-type fracture of the neck, is unique because it “takes a lot of force to generate” and is typically seen “in pedestrians that are hit by cars, when there are motor vehicle accidents, high velocity, any kind of a high-velocity injury.” (Tr. 1933.) Evidence was also presented that Miree repeatedly punched Hurley in the face after Hurley fired shots. All of this considered, the manifest weight of the evidence presented supports that Duncan is guilty of felonious assault.
{166} Duncan also argues that the state did not meet its burden in proving that he did not act in self-defense. Pertinently, the jury was instructed:
THE COURT: * * * To prove that the defendants did not use deadly force in self-defense or defense of another, the State must prove beyond a reasonable doubt at least one of the following:
A, the defendant was at fault in creating the situation giving rise to the death of Ramses Hurley; Or, B, the defendant did not have reasonable grounds to believe and an honest belief, even if mistaken, that he was in imminent or immediate danger of death or great bodily harm;
Or, C, the duty, the defendant violated a duty to retreat to avoid danger;
Or, D, the defendant did not use reasonable force.
(Tr. 2448-2449.)
{167} A review of the facts indicates that the jury could have concluded that Duncan and/or Miree were not acting in self-defense. Testimony indicated that Miree grabbed the marijuana from the scale without paying for it, which lends itself to an inference that Miree was an instigator. There is also evidence that Miree instigated the entire situation by inviting Duncan and B.J. into the vehicle on the way to Hurley‘s home. Though this is not an exhaustive list, we conclude that the record tends to support that the jury could have rejected that Duncan and Miree were acting in self-defense.
{168} Duncan also argues that his involuntary manslaughter conviction was against the manifest weight of the evidence. Under
{169} After reviewing the record, weighing the evidence, reviewing all reasonable inferences, and examining witness credibility, we cannot conclude that the jury lost its way and created such a manifest miscarriage of justice to warrant a new trial. Duncan‘s sixth assignment of error is overruled.
2. Sufficiency of the Evidence
{170} “A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law.” State v. Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. The relevant inquiry in a sufficiency challenge is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime existed beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When making a sufficiency determination, an appellate court does not review whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted at trial supports the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. Under a sufficiency challenge, witness credibility is immaterial; the appellate court must defer to credibility determinations of the trier of fact and only review issues of law. Parker at ¶ 7.
{171} Balancing the evidence and testimony discussed above, as well as all other evidence in the record, we find that a reasonable factfinder could conclude that Duncan intended to cause serious physical harm to Hurley and that Hurley‘s death
III. Conclusion
{172} We overrule all of Duncan‘s assignments of error. The trial court did not err in its instructions to the jury on self-defense and the duty to retreat; the trial court did not err in refusing to instruct the jury on the lesser included offenses of assault and involuntary manslaughter in the third degree; the trial court did not err in allowing evidence of the alleged planned robbery of Campbell‘s coworker into the record; the trial court did not err in admitting Duncan‘s juvenile adjudications; and Duncan‘s convictions were not against the manifest weight of the evidence nor were they based on insufficient evidence. Duncan‘s convictions are affirmed.
{173} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
CORNELIUS J. O‘SULLIVAN, JR., J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
EILEEN A. GALLAGHER, J., DISSENTING:
{174} I respectfully dissent. I would reverse Duncan‘s convictions for murder, felonious assault and first-degree felony involuntary manslaughter (Counts 2, 5 and 8) and remand for a new trial on those counts.
Lesser Included Offenses
{175} In his second assignment of error, Duncan contends that he was denied due process and a fair trial because the trial court refused to instruct the jury, as requested, regarding (1) assault under
{176} “A criminal defendant is sometimes entitled to a jury instruction that allows the jury to consider convicting the defendant of a lesser included offense as an alternative to convicting for the offense for which the defendant was charged.” State v. Owens, 162 Ohio St.3d 596, 597, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 8, citing State v. Thomas, 40 Ohio St.3d 213, 216-218, 533 N.E.2d 286 (1988).
{177} Count 5 charged Duncan with felonious assault under
{178} The parties do not dispute that, as statutorily defined, reckless assault in violation of
{179} A trial court must instruct the jury on a lesser included offense if, under any reasonable view of the evidence, it would be possible for the jury to find defendant not guilty of the offense charged and guilty of the lesser offense. See, e.g., State v. Wine, 140 Ohio St.3d 409, 418, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 32, 34; see also Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, at paragraph two of the syllabus (“Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the
{180} The distinguishing element between felonious assault under
{182} In support of its position, the state points to the following testimony by Campbell:
The testimony given by Trinity Campbell was that she and the Appellant with Miree went to the victim‘s home for what she understood to be a robbery. Tr. 1247-48; Tr. 1257. Once she pulled up, Appellant jumped into the rear of the vehicle and hid. Tr. 1251-52. Once the marijuana was on the console, the Miree [sic], who had a firearm, snatched it. Tr. 1255. Another gun came out and went off, and Trinity Campbell testified that Appellant had the victim in a headlock with a gun to him, and Miree was punching him in the face. Tr. 1255-56, 1588. These individuals acted knowingly, not recklessly. Miree committed a felonious assault when he was punching the victim over and over in the face while the Appellant had a firearm and he was tossed out of the vehicle. This was the evidence at trial and what the trial court had to assess when deciding whether to instruct on lesser included offenses.
{183} However, Campbell‘s testimony alone is not dispositive of the issue. In determining whether lesser included offense instructions are appropriate, a trial court is required to consider all the evidence presented, viewing that evidence in the light most favorable to the defendant. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948,
{184} In support of its determination that “the trial court did not err in concluding from the facts that a reckless assault instruction was not warranted,” the majority observes:
[N]o reasonable juror could have found that pushing Hurley from a moving vehicle was committed recklessly rather than knowingly. Duncan pushed Hurley from a moving vehicle, pried Hurley‘s fingers from the door, and left Hurley in a road where a vehicle could strike him. Indeed, Duncan even testified that he knew Hurley would sustain an injury from being thrown from the vehicle.
See ¶ 37 above. I do not believe the majority‘s view of “the facts” is consistent with the requirement that the evidence be viewed in the light most favorable to the defendant.
{185} Duncan testified that Campbell had agreed to give him, Miree and B.J. a ride to the music studio, where Duncan worked on his hip-hop music. Tr. 2196-2198, 2203. Duncan indicated that Campbell was in the driver‘s seat, that he was in the rear passenger seat behind Campbell, that Miree was in the front passenger seat and that B.J. was seated behind Miree. Tr. 2206-2207, 2211-2212. Duncan stated that although the others were planning to stop and purchase marijuana on the way, he did not need any marijuana and that he was wearing headphones and listening to music as Campbell drove. Tr. 2203-2204, 2212, 2215.
{186} Duncan testified that when they arrived at the location arranged for the marijuana purchase, the drug dealer, Hurley, opened the rear driver-side door and got into the vehicle, and Duncan moved over into the rear middle seat. Tr. 2212-2215. Duncan testified that he heard “shouting over his music” and that when he pulled out his headphones, he saw that Hurley had a gun and was pointing it at Miree. Tr. 2215-2216.
{187} Duncan testified that he had no intent to rob Hurley or anyone else that day, denied that he had wanted to harm Hurley and denied that he had crawled over the back seat and hid in the trunk area of the vehicle with a gun as described by Campbell. Tr. 2214, 2222-2223, 2226-2227, 2344.
{188} Duncan testified that when he saw Hurley‘s gun, he grabbed Hurley‘s hands, which were around the gun, and pulled them towards him. Tr. 2216-2217. He stated that they were in “kind of like a tug of war” when Hurley fired the gun once towards Miree. Tr. 2217. Duncan stated that he thought Hurley had shot Miree. Tr. 2219-2220. As Hurley pulled back away from Duncan and they continued to struggle for the gun, a second shot “went off” towards Campbell. Tr. 2217-2218. Duncan stated that he then thought Campbell had been shot. Tr. 2224-2225.
{189} Duncan stated that, at this point, Hurley‘s back was turned toward the rear driver-side door and Duncan was “almost, like, in his lap.” Tr. 2218. Duncan testified that, as they continued to struggle, Hurley dropped the gun and it fell onto the floor of the vehicle in front of their feet. Tr. 2218-2219. Duncan stated that he did not attempt to retrieve the gun because he was not trying to shoot Hurley; he
{190} As to what happened next, Duncan testified:
Q. So once you‘re reaching for [Hurley‘s] hands —
A. Yes.
Q. — and the gun falls, what did you decide to do?
A. Well, push him out of the car. That‘s what — that‘s the first thing that came to my mind. Like, we were up against the car and on the car, so that was pretty much the first thing that came to my mind.
Q. Did you — did you know that the car was moving at that moment?
A. I didn‘t know it was moving. When I see on the video, I couldn‘t even really believe it. But, like, I didn‘t know it was moving.
Tr. 2220-2221.
{191} Duncan testified that, to avoid getting shot, he felt like he either had to “go for the gun” or push Hurley out of the vehicle and that he chose to push Hurley out of the vehicle:
Q. Just to be clear, why did you push him out of the car?
A. I just wanted him away from the gun. Like, that‘s all. I wanted him away from the gun. Like, I didn‘t want to try to go for the gun and then he gets the gun because it would have been us both going for the gun. I would have had to let him go and then we both going for the gun then and now he gets the gun and then * * * He could have done anything. Kicked it, anything. I wasn‘t — that was the first thing for my mind. Once I got the gun out of his hands, I felt comfortable enough that — to push him out of the car and get him away from the gun.
{192} Duncan testified that he did not call police after the incident because he “didn‘t know [Hurley] was dead” and “nobody [he] was with was hurt.” Tr. 2223. Duncan stated, “I‘m not going to say I didn‘t think [Hurley] was hurt. He got pushed out of a car, but I didn‘t think he was dead.” Id. Duncan did not testify that “he knew Hurley would sustain an injury from being thrown from the vehicle,” as the majority posits.
{193} The incident was captured, in part, on surveillance video footage obtained from a nearby apartment complex. The video shows the vehicle‘s movements prior to, at the time of, and immediately following the incident. At the time Hurley was pushed out of the vehicle, it appears the vehicle was moving very slowly.
{194} Considering all of the evidence presented at trial, viewed in the light most favorable to Duncan, including Duncan‘s testimony, the surveillance video, the chaos that erupted inside the vehicle and the very brief time that elapsed between Hurley entering the vehicle, the shots being fired inside the vehicle and Hurley being pushed from the vehicle, I believe a jury could have reasonably found that Duncan acted “recklessly” — “with heedless indifference to consequences,” “disregard[ing] a substantial and unjustifiable risk” that his actions were “likely to cause” serious physical harm to Hurley — as opposed to “knowingly” — “aware” that his actions would “probably cause” serious physical harm to Hurley.
{195} Accordingly, I would find that the trial court abused its discretion in failing to instruct the jury regarding reckless assault and third-degree felony involuntary manslaughter as lesser included offenses and would sustain Duncan‘s second assignment of error.
Jury Instructions Regarding the Duty to Retreat
{196} I would also reverse Duncan‘s convictions for murder, felonious assault and first-degree felony involuntary manslaughter (Counts 2, 5 and 8) because I believe the trial court improperly included jury instructions regarding a duty to retreat when instructing the jury regarding self-defense and defense of another.
{197} The offenses at issue in this case occurred on June 16, 2019. Duncan was indicted on March 3, 2020, and trial commenced on June 7, 2021. Effective April 6, 2021 — while Duncan‘s case was pending —
{198} Prior to the 2021 amendments,
For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person‘s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person‘s residence, and a person who lawfully is an occupant of that person‘s vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.
For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person‘s residence if that person is in a place in which the person lawfully has a right to be.
{199} The 2021 amendments also added
{1100} During a break in the trial, Miree‘s counsel proffered various self-defense jury instructions. The proposed jury instructions included instructions stating that “the defendant is allowed to use deadly force in self-defense” and that “[e]vidence was presented that tends to support a finding that the defendant used deadly force in self-defense.” Tr. 2034-2038. Duncan‘s counsel did not object to these objections. Miree‘s counsel also proposed the following jury instruction regarding the absence of a duty to retreat:
Under Ohio law, an individual does not have a duty to retreat before acting in self-defense. In deciding whether the defendant reasonably believed that force was necessary to prevent death or great bodily harm, you may not consider the possibility that the defendant could have retreated or tried to escape rather than using force in self-defense.
Tr. 2037-2038.
{1101} Prior to closing arguments, the state requested that the trial court remove the no-duty-to-retreat instruction from the self-defense jury instructions and that the trial court add a duty-to-retreat instruction. Tr. 2389. Although the
{1102} Jury instructions are “critically important to assist juries in determining the interplay between the facts of the case before it and the applicable
{1103} I recognize that this court has previously held that the 2021 amendments to
{1104} After Hurt and Claytor (and the cases upon which they relied) were decided, the Ohio Supreme Court issued its decision in State v. Brooks, Slip Opinion No. 2022-Ohio-2478. In Brooks, the Ohio Supreme Court held that “the amendment to
{1105} Similarly, the plain language of
{1106}