STATE OF OHIO v. ROBERT HANFORD
C.A. No. 29204
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 24, 2019
2019-Ohio-2987
CALLAHAN, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2017-10-3621
Dated: July 24, 2019
CALLAHAN, Judge.
{1} Appellant, Robert Hanford, appeals his conviction by the Summit County Court of Common Pleas. This Court affirms.
I.
{2} At approximately 10:00 a.m. on Sunday, October 1, 2017, the Twinsburg Police Department received a 911 call reporting that an individual had been stabbed at a residence at the intersection of Darrow Road and Sherwin Drive. When they arrived, Mr. Hanford ran from the house, and officers noted that he appeared to be distraught. Mr. Hanford had bloodstains on his clothing, including a large stain on his left knee.
{3} Inside the house, they found the body of M.B. lying face down between a couch and a coffee table in the living room. M.B. did not bear any wounds that were visible in the position in which he was found, but he was unresponsive. Upon closer examination, officers noted that his skin was gray and “cold to [the] touch“; he had no pulse or signs of respiration.
{4} Mr. Hanford was transported to the police station for questioning, where he initially informed police that he woke up and found that M.B. had been stabbed, but did not know what had happened. He acknowledged that he had been arguing with M.B. and ultimately admitted that he stabbed M.B. once. Although Mr. Hanford did not disclose the location of the knife that he had used immediately, he later informed police that it would be found in the area of a small decorative pond in the front yard of the residence. Armed with this information, police recovered a closed pocketknife at the bottom of the pond.
{5} Mr. Hanford was charged with two counts of murder in violation of
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF MURDER TO WARRANT THE CASE BEING SUBMITTED TO THE JURY.
{7} “Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proven beyond a reasonable doubt. Id.
{8} Murder is prohibited by
(A) No person shall purposely cause the death of another or the unlawful termination of another‘s pregnancy.
(B) No person shall cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.
(Emphasis added.)
{9} Felonious assault, which is the offense upon which Mr. Hanford‘s conviction for murder under
A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
If there is sufficient evidence that Mr. Hanford acted purposely, as required by
{10} M.B. died as a result of a single stab wound to the chest that penetrated the left ventricle of his heart. According to Dr. George Sterbenz, the Summit County Deputy Medical Examiner, the left ventricle is “the muscular pump portion of the heart,” and a stab wound in that area results in rapid blood loss. Dr. Sterbenz characterized M.B.‘s stab wound as “rapidly fatal.” The fatal wound was approximately four inches in length, passing between the fourth and fifth ribs from front to back in a direction that was slightly left-to-right and downward.
It‘s like putting a tourniquet on your arm to stop the blood from an injury to prevent bleeding out your arm.
In this case, the tamponade is the squeezing of the blood for the heart; and that‘s going to make it hard, first, for the heart to pump.
It‘s also going to cause the blood vessels that enter and exit the heart to collapse.
So, pericardial tamponade causes cessation of circulation. Even though the heart is still trying to pump, it‘s mechanically being prevented from pushing blood [out] of the heart, and it‘s mechanically being prevented from pulling blood back into the heart; so, circulation stops.
According to Dr. Sterbenz, critical pericardial tamponade, as was present in this case, results in loss of consciousness with seconds and death in a matter of minutes. Dr. Sterbenz also described what would be observed in the moments after such an injury is sustained:
People that are observed to have injuries that result in pericardial tamponade within seconds will be witnesses will say they just fell down, they just collapsed, within less than a minute; and they stopped breathing within, you know, a few minutes.
They will have agonal, terminal gasping breaths very, very quickly and then they will die. And they are dying so quickly because their brain isn‘t getting any oxygen.
* * *
This alone, the pericardial tamponade, due to this penetrating injury to his heart, the bleeding, the collection of blood around his heart, is going to incapacitate him
Within seconds of sustaining the fatal injury, according to Dr. Sterbenz, M.B. would have been unable to converse or to carry out any directed activity.
{12} Dr. Sterbenz also explained that two implications followed from the nature of M.B.‘s fatal wound. First, the fatal wound required “a forceful thrust” in order to push the entire length of the knife between the intercostal space, through the chest wall, and into the heart. “This injury,” according to Dr. Sterbenz, “represents a lot of force.” Along those lines, Dr. Sterbenz also rejected the hypothetical explanation that the fatal wound could have been inflicted by an assailant holding a knife in his right hand and stabbing over his left shoulder. Second, Dr. Sterbenz testified that because the fatal wound expelled an extreme quantity of blood quickly, the condition of the crime scene and the victim‘s clothing provided significant clues about M.B.‘s physical position when the stabbing occurred. According to Dr. Sterbenz, bloodstains that resulted from the injury would be determined by the position of the body and the force of gravity:
People that have penetrating injuries such as [M.B.] * * * who are actively moving around their environment, the room that they‘re in, the scene, will bleed all over that scene, and they will have blood all over their body.
They will have -- people that are standing up and bleeding will bleed downward across their body.
They will bleed -- injuries to the chest will bleed downward onto your legs, downward onto your feet.
And if they move to different parts of the room, there will be blood in all of those different parts of the room.
As Dr. Sterbenz noted, however, “[t]hat did not occur here” because “[t]he blood is predominately located only where blood drained out of his body with gravity as he was lying there in the room on that carpet.”
{14} Given the absence of blood throughout the living room and the fact that the clothing on M.B.‘s lower body was also relatively free of bloodstains, Dr. Sterbenz opined that M.B. was stabbed in the location where the body was found. More specifically, Dr. Sterbenz testified that M.B. could have been sitting on the couch or kneeling on the floor, but it is unlikely that M.B. walked to the position near the couch where his body was found or was standing: “If [M.B.] was upright, really for any significant amount of time after he was stabbed, he would have blood dripping from this gaping stab wound to his chest and from his arms down onto the legs of his pants, and there really isn‘t any blood dripping down onto his pants.” He also noted
{15} Based on this evidence—and making all reasonable inferences in favor of the State—the jury could reasonably conclude, beyond a reasonable doubt, that Mr. Hanford stabbed M.B. while he was in a kneeling, sitting, or lying position in the immediate area where his body fell with such concentrated force that the knife was buried to the hilt in M.B.‘s chest, compressing the chest cavity and penetrating the left ventricle of his heart and leading to his death within minutes. In other words, the jury could have reasonably concluded beyond a reasonable doubt that Mr. Hanford acted with the specific intention to cause M.B.‘s death, as required by
{16} Mr. Hanford‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE DEFENSE PROVED THE AFFIRMATIVE DEFENSE OF SELF[-]DEFENSE BY A P[RE]PONDERANCE OF THE EVIDENCE[.]
{17} In his second assignment of error, Mr. Hanford argues that his convictions are against the manifest weight of the evidence because he proved that he acted in self-defense. This Court does not agree.
{18} When considering whether a conviction is against the manifest weight of the evidence, this Court must:
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction. Id. at 340, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{19} Self-defense is an affirmative defense that must be proven by the accused by a preponderance of the evidence. See State v. Martin, 21 Ohio St.3d 91 (1986), syllabus; former
{20} Mr. Hanford, who testified at trial, maintains that M.B. ingested drugs and alcohol on the night of the incident and attacked him without provocation. Specifically, Mr. Hanford testified that he and M.B. spent the afternoon and evening of September 30, 2017, which was Mr. Hanford‘s birthday, consuming beer and “hanging out” in their shared living room. According to Mr. Hanford, the pair consumed a twelve-pack of beer and four to six twenty-four-ounce cans of Steel Reserve between them. They ate no food other than candy bars. Mr. Hanford acknowledged that he smoked some marijuana during the course of the evening, but
{21} Mr. Hanford testified that at some point later, he awakened to find M.B.‘s hand on his throat. He explained that he pushed M.B. away, asked what he was doing, and started walking down the hallway. According to Mr. Hanford, M.B. pursued him and grabbed him around his neck. Mr. Hanford testified that he struggled to escape from M.B.‘s grip, which tightened around his throat, then reached for his pocket knife. He stated that he swiped behind him, with the knife in his left hand, then transferred the knife to his right hand, swiped the knife in M.B.‘s direction over his left shoulder, then swiped again to the left under his arm. At that point, according to Mr. Hanford, M.B. released him. Mr. Hanford testified that when he turned to look at M.B., he noted that M.B. was holding his side. He testified that the following ensued:
After we had separated, I had -- regained my balance, looked at him, he was holding his side, and I asked him, I said, “Are you all right?” And he shook his head no.
I asked him, “Should I call 911?” He shook his head yes.
Mr. Hanford testified that he ran next door to a neighboring house to call 911, discarding the pocketknife along the way. He explained that he remembered knocking on the neighbors’ front door, but that he did not remember anything that happened after that point.
{22} Lieutenant Scarl noted that Mr. Hanford‘s version of the events on the night in question developed over the course of his interview and that Mr. Hanford initially denied any recollection of stabbing M.B. Once he admitted that he remembered the incident, he consistently maintained that he stabbed M.B. over his left shoulder. During his testimony, Mr. Hanford
{23} In support of his version of events, Mr. Hanford notes that Dr. Sterbenz testified that M.B.‘s postmortem toxicology tests demonstrated that his blood contained alcohol, amphetamine, and methamphetamine. In his defense, Mr. Hanford also introduced the expert testimony of Robert Belloto, a Ph.D. with expertise in clinical pharmacology and toxicology. Dr. Belloto testified regarding the levels of alcohol, amphetamine, and methamphetamine reflected in the postmortem toxicology results and, by performing a statistical analysis, determined that it was likely that M.B. exhibited adverse effects from those substances prior to his death, which he characterized as “a bad combination” of hallucination and lowered inhibitions.
{24} On cross-examination, however, Dr. Belloto acknowledged two things: first, that his analysis did not factor in tolerance levels, which could make a significant difference in the outcome; and second, that statistically speaking, it would be likely that any two men of similar size (as were M.B. and Mr. Hanford) would exhibit similar behavior under the circumstances. In this respect, it is significant that witnesses testified that Mr. Hanford had a marked history of drug use and that police discovered burned aluminum foil on an accent table in the living room that was shaped as though it had been formed into a homemade pipe for smoking drugs. Officer James Swope also testified that six days after M.B.‘s death, the individuals who were cleaning out the residence found a box containing drug paraphernalia in the room that had been Mr. Hanford‘s bedroom.
{26} The physical evidence also contradicts Mr. Hanford‘s version of the events. Dr. Sterbenz testified that within seconds of sustaining the fatal wound, M.B. would have been incapable of speech or any other directed action. He noted that the injury sustained by M.B. results in almost instant incapacity marked by immediate collapse and agonal breathing. Dr. Sterbenz also opined that a wound of this nature could not have been inflicted in the manner described by Mr. Hanford. Both Dr. Sterbenz and Detective Donato testified that if M.B. had been upright and moving about the room in the seconds following the stabbing, the result would have been blood strewn about the crime scene rather than concentrated in the area immediately underneath M.B.‘s body. Instead, Dr. Sterbenz noted, it is far more likely that M.B. was sitting
{27} Having thoroughly reviewed the record, this Court cannot conclude that the jury lost its way by determining that Mr. Hanford‘s self-defense argument was without merit. His second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERR[]ED BY FAILING TO INSTRUCT THE JURY ON THE CRIME OF VOLUNTARY MANSLAUGHTER.
{28} Mr. Hanford‘s fourth assignment of error argues that the evidence at trial supported a jury instruction regarding voluntary manslaughter. Mr. Hanford did not request a voluntary manslaughter instruction at trial. For this reason, he has forfeited all but plain error in this respect. See State v. Platt, 9th Dist. Wayne No. 18835, 1998 WL 887220, *2 (Dec. 16, 1998). Because “‘error * * * [is] the starting point for a plain-error inquiry,‘” however, our analysis is the same. State v. Doss, 9th Dist. Wayne No. 18AP0027, 2019-Ohio-436, ¶ 4, quoting State v. Hill, 92 Ohio St.3d 191, 200 (2001);
{29} A trial court must instruct the jury on lesser included offenses when “the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus. Because the elements of voluntary manslaughter correspond to the elements of murder with the exception of one or more mitigating elements, it is an inferior degree of murder rather than a lesser included offense. State v. Shane, 63 Ohio St.3d 630, 632 (1992), quoting State v. Tyler, 50 Ohio St.3d 24, 36 (1990), quoting State v. Deem, 40 Ohio St.3d 205, 209 (1988) and. Nonetheless, the same test is applied, and a defendant is entitled to a jury
{30}
{31} In this case, Mr. Hanford cannot demonstrate that the trial court erred by failing to give a voluntary manslaughter instruction because there is not sufficient evidence that the
{32} Mr. Hanford testified that he stabbed M.B. because he was afraid:
Q: At that exact moment, how did you feel?
A: That he was trying to hurt me.
Q: Were you afraid?
A: Yes, I was.
* * *
Q: So, you retrieved the knife, and then you had indicated you made some stabbing motions?
A: Yes.
Q: And why did you do that?
A: I was trying to get [M.B.] off of me.
Q: Because?
A: Because he was choking me. I was in fear for my life.
Mr. Hanford‘s only explanation for his actions was that he was motivated by fear. He did not offer any evidence suggesting that his mental state demonstrated the provocation required under
{33} Mr. Hanford‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL[.]
{34} In his third assignment of error, Mr. Hanford has argued that his conviction should be reversed because trial counsel rendered ineffective assistance. Specifically, he has argued that trial counsel failed to request a jury instruction for voluntary manslaughter, failed to retain the services of an expert regarding Mr. Hanford‘s mental state during and after the murder, and failed to introduce Mr. Hanford‘s interview with Lieutenant Scarl to rehabilitate him following cross-examination. This Court disagrees.
{35} In order to demonstrate ineffective assistance of counsel, a defendant most show (1) deficiency in the performance of counsel “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for counsel‘s errors, there is a reasonable possibility that the outcome of the trial would have been different. Id. at 694. “A defendant‘s failure to satisfy one prong of the Strickland test negates a court‘s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing Strickland at 697. In applying this test, “a court must indulge a strong presumption that
{36} With respect to Mr. Hanford‘s argument that trial counsel should have requested a jury instruction on the lesser-degree offense of voluntary manslaughter, that instruction was not warranted in this case, as discussed above. In other words, counsel‘s performance was not deficient, and it follows that it was not ineffective. See State v. McDowell, 9th Dist. Summit No. 26697, 2014-Ohio-3900, ¶ 18, citing State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 14.
{37} Mr. Hanford also cannot establish ineffective assistance of counsel based on trial counsel‘s decisions not to retain the services of an expert witness or to introduce the video recording of Mr. Hanford‘s interview with Lieutenant Scarl. Trial counsel‘s decision not to call an expert witness will not, as a general rule, establish ineffective assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 118. In addition, when the trial record is silent regarding the substance of a potential expert‘s testimony, establishing prejudice under Strickland requires proof outside of the record, and “[the] claim is not appropriately considered on direct appeal.” Madrigal at 390-391. See also State v. Moffett, 9th Dist. Summit No. 28001, 2016-Ohio-5314, ¶ 10. In this case, the record is silent regarding what testimony an expert may have offered about Mr. Hanford‘s mental state before and after the murder, so any arguments related to prejudice that could have resulted from counsel‘s decision are purely speculative. See Conway at ¶ 118. Mr. Hanford‘s third argument fails for a similar reason. Trial counsel attempted to introduce the video recording of the interview during cross-examination of Lieutenant Scarl, but counsel did not proffer the video at any time. Because the video is not in the record, this claim of ineffective assistance is not properly considered on direct appeal. See Madrigal at 390-391.
{39} Mr. Hanford‘s third assignment of error is overruled.
III.
{40} Mr. Hanford‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.