State v. GrayState v. Gray
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011-6057, for plaintiff-appellee
Lyons & Lyons Co., L.P.A., Lyn Alan Cunningham, 8310 Princeton-Glendale Road, Hamilton, Ohio 45069, for defendant-appellant
YOUNG, P.J.
{¶1} Defendant-appellant, Khrendon Gray, appeals his murder conviction following a jury trial in the Butler County Court of Common Pleas.
{¶2} In October 2009, appellant was indicted on one count of murder in violation of
{¶3} Amber lived at the North Pointe apartment complex (the apartment complex) on Mulhauser Road in West Chester, Ohio. So did Ascia Wilson (appellant‘s girlfriend) and her sister Koreen. On the evening of September 10, 2009, appellant and his friends, Josh Piper, Rashon Martin,1 and Derek Gilliam were at the apartment complex when a fight broke out between Amber and Koreen. Their verbal altercation soon led to an argument between Amber‘s bоyfriend and Josh (Koreen‘s boyfriend). According to Iraysa Linares, appellant then got involved and started arguing with Amber, calling her names, and telling her, “I‘m going to kill your ass bitch.” Raheem Davis, another witness to the altercation, testified hearing threats between people. However, he never heard threats from Amber. The altercation ended when the police arrived at the apartment complex at about 7:00 p.m. The police had received a call about a fight in progress involving several juveniles. The police stayed at the scene approximately 20 minutes.
{¶4} At 8:13 p.m., the police came back to the apartment complex after receiving another call. This time, over 50 people were involved in several pockets of fights, shoving and arguing. The situation was very volatile. Amber was lying down on the ground in the middle of a street, with blood coming from underneath her.
{¶5} After the first fight ended, Ascia‘s mother suggested that appellant and his friends go home. Appellant called his friend Chris Baker and asked him to come and pick up appellant and his friends. Chris arrived at the apartment complex shortly
{¶6} Ascia was talking to appellant who was in Chris’ car when the crowd approached the car. Amber was in the crowd. Ascia observed Amber pointing out appellant and Josh. A man next to Amber started arguing with Josh before punching him. Josh fought back; several fights ensued. During the commotion, Ascia observed Josh, Rashon, and Derek “getting beat up.” The last time she saw Amber, she (Amber) was walking away from the commotion.
{¶7} Raheem testified that shortly before the second fight, cars and a lot of people started showing up at the apartment complex. The fight broke out when “somebody got punched.” The situation degenerated into a big brawl, with people yelling, arguing and making threats. The situation was chaotic; Amber was caught in the middle of the fight. According to Raheem, people were getting stomped, including Josh and Derek. LaMonte Williams, a resident at the apartment complex,
{¶8} Both Raheem and LaMonte saw appellant stab Amber. Raheem testified that an African-American, heavy set man with a blue shirt and a blue hat (later identified as appellant) stabbed Amber with a blade before getting into a car. Likewise, LaMonte testified that Amber was stabbed by a “fat black guy” wearing a blue shirt and looking like Ascia‘s boyfriend. LaMonte described how appellant walked up to Amber from behind, swung his left arm in a sideways, upward motion, and stabbed Amber in her lеft side back area before “he pulled it out.” LaMonte then saw Amber fall and stumble to the ground.
{¶9} Following the stabbing, appellant returned to Chris’ car, “mad, angry,” and “panicking,” rushing Chris to leave. Chris complied and the two left the apartment complex. During the drive to appellant‘s house, Chris asked why they were in a hurry and why they were leaving without Rashon, Josh, and Derek. Appellant told Chris that a fight had broken out because “people were talking stuff,” and that he had stabbed a girl because “she was talking stuff.” Appellant told Chris not to tell anyone.
{¶10} After leaving the apartment complex, appellant called Ascia and told her Amber “wanted him dead and *** she ate those words.” However, no one heard Amber threaten appellant that evening. Appellant later texted Ascia and Koreen telling them not to tell anyone. A yellow razor blade was recovered at the scene; however, this was not the murder weapon. No other knives were recovered. During trial, appellant was observed writing with his left hand. Photographs of Rashon,
{¶11} James Swinehart, M.D., conducted Amber‘s autopsy. He testified Amber was stabbed in the back twice. The fatal wound was a wound five to six inches deep, which entered Amber‘s back at an upward angle, and which penetrated the rib cage, the left lung, and finally the heart. Amber did not have any defensive wounds.
{¶12} Appellant testified on his own behalf. According to appellant, he spent the day on September 10, 2009 at the apartment complex with Josh, Rashon, and Derek. Around 7:00 p.m., an argument broke out between Amber and Koreen; the two were calling one another names and started bumping into each other. Josh and Amber‘s boyfriend then became involved in the argument. Appellant stepped in. The argument ended when they realized the police were coming. However, as the parties separated, words werе exchanged between the protagonists. Further, Amber threatened to have her brother and his friends “get [appellant].” To which appellant replied, “they know where I‘m at,” before walking away to Ascia‘s house.
{¶13} Appellant called Chris to pick up him and his friends. Once Chris arrived, appellant and his friends left Ascia‘s residence and went outside. As they were walking to Chris’ car, they noticed a group of people walking toward them. By the time that group reached Ascia‘s residence, appellant, Derek, and Rashon wеre all in the car with Chris. Next, another and larger group started walking toward the car. Someone in the crowd engaged Josh, words were exchanged, and Josh was
{¶14} As they were knocked dоwn, Josh‘s backpack opened and three knives fell out of the bag, including the yellow box cutter. Appellant grabbed a kitchen knife and started swinging at the crowd “for [his] life because there was too many of them.” He then “felt something, a brush up on the knife.” Upon realizing the knife had blood, appellant ran to Chris’ car and hopped in. Appellant testified he initially thought he had stabbed Derek. He later found out from Ascia that he had stabbed Amber. Appellant also testified that upon seeing blood on the knife, he “grabbed [Derek] but hе couldn‘t get up as fast, so I hurried up and ran to the car and hopped in the car.”
{¶15} On cross-examination, appellant admitted he did not tell Detective Thomas that he was assaulted and that he had picked up a knife and held it during the incident with the crowd. Appellant admitted this was the first time he was telling this story but claimed the detective “never asked for no story” and “never gave [him] a chance.” Appellant also admitted that although he believed he had stabbed Derek, he left him fend for himself against an angry crowd and never сalled the police for help because he panicked. Appellant denied telling Chris he had stabbed a girl.
{¶16} In response to appellant‘s testimony on cross-examination, the state presented the rebuttal testimony of Detective Lori Beiser and Detective Thomas.
{¶17} At the close of the evidence, appellant requested instructions on negligent homicide, reckless homicide, voluntary manslaughter, and defense of
{¶18} Appellant appeals, raising four assignments of error.
{¶19} Assignment of Error No. 1:
{¶20} “THE COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF RECKLESS HOMICIDE, NEGLIGENT HOMICIDE, OR MANSLAUGHTER.”
{¶21} Appellant was charged with and convicted of murder in violation of
{¶22} In determining whether an instruction on a lesser included offense is warranted, a trial court must first determine whether the offense in the requested instruction is a lesser included offense of the charged offense. If so, the trial cоurt must then determine whether the evidence at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser included offense. State v. Smith, 89 Ohio St.3d 323, 330-331, 2000-Ohio-166, certiorari denied (2001), 531 U.S. 1167, 121 S.Ct. 1131; State v. McCullough, Fayette App. Nos. CA2003-11-012 and CA2007-04-014, 2008-Ohio-6384, ¶61.
{¶23} An instruction is not warranted simply because the defendant offers “some evidence” going to the lesser included offense. State v. Shane (1992), 63 Ohio St.3d 630, 632-633. There must be “sufficient evidence” to “allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser
Negligent Homicide
{¶24} “A person commits negligent homicide by negligently causing the death of another by means of a deadly weapon or dangerous ordnance. See
Reckless Homicide
{¶25}
{¶26} The trial court refused to instruct the jury on reckless homicide on the
{¶27} Carlisle was convicted of murder in violation of
{¶28} “The trial court, however, found that Carlisle‘s testimony was totally inconsistent with that of the coroner who performed the autopsy on [the victim] ***. *** We also note that Carlisle stabbed [the victim] three times, one of which was a wound three and one/half inches deep which severed the subclavian artery in [the victim‘s] neck and, ultimately caused his death. That, and the fact that the wounds suffered by [the victim] were all precisely inflicted stab wounds, establish that Carlisle acted knowingly when he attacked the victim, rather than merely acting in a reckless manner. Thus, the trial court did not err when it held that an instruction on the lesser included offense of reckless homicide was not warranted because the evidence adduced at trial did not support such a charge being given.” Carlisle, 2009-Ohio-6004 at ¶60, 63.
{¶30} There was further evidence that during the first fight, appellant threatened to kill Amber. Following the stabbing, aрpellant got into Chris’ car, rushing him to leave, and told him he had stabbed a girl because “she was talking stuff.” Appellant told his girlfriend that Amber “had said she wanted him dead and she ate those words.” Appellant told his girlfriend, Chris, and Koreen not to tell anyone what he had done.
{¶31} The only evidence arguably supporting the theory that appellant acted recklessly in killing Amber was his testimony he was swinging the knife at the crowd because there were too many of them. Then, he felt a brush up on the knife. However, “even where the defendant offers some еvidence through his own testimony supporting a lesser-included offense, he is still not entitled to an instruction on that offense if the totality of the evidence does not reasonably support an acquittal on the greater offense and a conviction on the lesser offense.” State v. Anderson, Butler App. No. CA2005-06-156, 2006-Ohio-2714, ¶13, quoting State v. Neely, 161 Ohio App.3d 99, 2005-Ohio-2342, ¶46.
{¶32} Given the totality of the evidence, we cannot say the jury could have reasonably acquitted appellant of the murder charge and found him guilty of the lesser-included offense of reckless homicide. Consequently, we agree with the trial court that the evidence did not warrant an instruction on reckless homicide. See Carlisle, 2009-Ohio-6004; State v. Walker, Hamilton App. No. C-030252, 2004-Ohio-4364.
Voluntary Manslaughter
{¶33} Voluntary manslaughter is not a lesser included offense of murder, but an inferior degree of murder. Shane, 63 Ohio St.3d at 632; State v. Harrop, Fayette App. No. CA2005-1-036, 2006-Ohio-6080, ¶11. Nevertheless, “a defendant charged with murder is entitled to an instruction on voluntary manslaughter when the evidence presented at trial would reasonably support both an acquittal on the charged crime of murder and a conviction for voluntary manslaughter.” Shane at id.
{¶34}
{¶35} An instruction on voluntary manslaughter is warranted only when there is “evidence of reasonably sufficient provocation occasioned by the victim[.]” Shane at paragraph one of the syllabus. For provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control. Id. at 635. “If insufficient evidence of provocation is presented, so that
{¶36} There is no evidence in the case at bar of any such provocation by Amber. Appellant testified that as he was trying to end an argument during the first fight, Amber threatened to have her brother and his friends “get [him].” To which appellant replied, “they know where I‘m at,” before walking away to Ascia‘s house. Following the stabbing, appellant told Chris he had stabbed a girl because “she was talking stuff.” Appellant also told Ascia that Amber wanted him dead and “she ate those words.”
{¶37} It is well-established that “words alone will not constitute reasonable sufficient provocation to incite the use of deadly force in most situations.” Id. at 637. We find that the alleged provocation by Amber was not reasonably sufficient provocation under
{¶38} Appellant‘s first assignment of error is overruled.
{¶39} Assignment of Error No. 2:
{¶40} “THE TRIAL COURT‘S FAILURE TO INSTRUCT ON THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE WAS PLAIN ERROR.”
{¶41} Because apрellant did not request the trial court to instruct the jury on self-defense, he has waived all but plain error. As we stated in State v. Sias, Madison App. Nos. CA2010-01-001 and CA2010-02-003, 2010-Ohio-3566, “[p]lain error does not exist unless ‘but for the error, the outcome of the trial clearly would have been otherwise.’ Notice of plain error is to be taken ‘under exceptional
{¶42} Self-defense is an affirmative defense; the burden of going forward with evidence of self-defense and the burden of proving self-defеnse by a preponderance of the evidence is upon the accused.
{¶43} To establish self-defense in a case where a defendant used deadly force, the defendant must prove: (1) he was not at fault in creating the situation giving rise to the affray; (2) he had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force; and (3) he did not violate any duty to retreat or avoid the danger. State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus; Braylock, 2010-Ohio-4722 at ¶24. If a defendant fails to prove any one of these elements, he has failed to demonstrate he acted in self-defense. State v. Voss, Warren App. No. CA2006-11-132, 2008-Ohio-3889, ¶54.
{¶44} Upon reviewing the evidence, we find that a jury instruction on self-defense was not warranted. Chris testified that appellant was in the car, with all doors closed, when the crowd approached. Instead of staying in the car, appellant, looking angry, got out of the car, approached the crowd, and started arguing. Appellant later returned to the car but went back to the crowd. During the first fight, appellant was heard threatening Amber he would kill her; by contrast, no one heard Amber threaten appellant. While claiming he was knocked down on the ground and generally assaulted by the crowd, appellant had no injuries on his face and body. Further, while bystanders saw Josh, Rashon, and Derek on the ground, no one saw
{¶45} By his own testimony, appellant was in the car when the crowd approached. Appellant got out of the car. After Rashon was knocked down for punching Josh‘s assailant, appellant “ran to the group” and “started throwing punches.” In other words, appellant willingly left the safety of the car to confront the crowd and voluntarily ran into the crowd where he started fighting.
{¶46} Given this evidence, the trial court did not err, let alone commit рlain error, by failing to instruct the jury on self-defense. Appellant‘s second assignment of error is overruled.
{¶47} Assignment of Error No. 3:
{¶48} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY REFUSING TO INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE OF OTHERS.”
{¶49} Appellant argues the trial court erred by refusing to instruct the jury on defense of others. The trial court declined to instruct the jury on the ground that “even if [the defendant] is defending [Derek], they were in the car, they left the car, they left the safety of the car to take on this crowd. [T]he facts and the evidence do not support that they respected the duty to retreat. Even if the defendant was defending others, there is *** no evidence that Amber Robinson was threatening the defendant or [Derek].” We agree.
{¶51} We find that the trial court properly refused to instruct the jury on defense of others. With the exception of Josh, appellant, Rashon, and Derek were all in the car when the crowd approached the vehicle. Josh could have climbed into the car; appellant, Rashon, and Derek could have stayed in the car; they could have tried to leave the apartment complex. Instead, Josh got involved in an argument with someone in the crowd; appellant, Derek, and Rashon got out of the car; and after Rashon punched someone, appellant and Derek ran to the crowd and started throwing punches. Hence, appellant and his friends voluntarily entered the altercation. Chris’ testimony shows that appellant left the fight to come back to the car but then went back to the fight. Thus, while retreat before the stabbing was possible, appellant chose not to do so.
{¶52} Appellant claims he was defending his friends against the crowd. Yet, although he believed he had stabbed Derek, he left him (and his two other friends) to
{¶53} Given this evidence, the trial court did not abuse its discretion in refusing to instruct the jury on defense of others. Appellant‘s third assignment of error is overruled.
{¶54} Assignment of Error No. 4:
{¶55} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN ALLOWING IMPROPER REBUTTAL TESTIMONY.”
{¶56} As stated earlier, in response to appellant‘s testimony on cross-examination, the state presented the rebuttal testimony of Detectives Beiser and Thomas. On appeal, appellant does not challenge the rebuttal testimony of Detective Beiser and only challenges the rebuttal testimony of Detective Thomas. We note that appellant failed to object to Detective Thomas’ rebuttal testimony. He has thus waived all but plain error. See Sias, 2010-Ohio-3566.
{¶57} Rebuttal evidence is that given to explain, refute, or disprove new facts introduced by the adverse party, and its scope is limited by such evidence. State v. Smith, Butler App. No. CA2004-02-039, 2005-Ohio-63, ¶11, citing State v. McNeill, 83 Ohio St.3d 438, 1998-Ohio-293. The determination as to what evidence is properly admissible evidence rests within the trial court‘s discretion and will not be reversed absent an abuse of discretion. McNeill at 446.
{¶58} On rebuttal, Detective Thomas testified that although he gave appеllant
{¶59} We find no abuse of discretion in the trial court‘s admission of Detective Thomas’ rebuttal testimony. It is undeniable that the detective‘s rebuttal testimony regarding what appellant did not tell him was consistent with appellant‘s testimony on cross-examination. However, on cross-examination, appellant did not simply testify he did not inform the detective about the knives or stabbing someone. He also claimed the detectivе “never asked for no story” and “never gave [him] a chance.” The detective‘s rebuttal testimony was therefore proper to refute appellant‘s foregoing claim on cross-examination. See McNeill. In addition, appellant cannot show that but for the detective‘s rebuttal testimony, the outcome of the trial clearly would have been otherwise. See Sias, 2010-Ohio-3566.
{¶60} The trial court, therefore, did not err, let alone commit plain error, by allowing Detective Thomas’ rebuttal testimony. Appellant‘s fourth assignment of error is оverruled.
{¶61} Judgment affirmed.
BRESSLER and RINGLAND, JJ., concur.