State v. TunstallState v. Tunstall
Rendered on June 21, 2024
CHIMA R. EKEH, Attorney for Appellant
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
TUCKER, J.
{¶ 1} Defendant Donnie D. Tunstall appeals from his convictions for murder, felonious assault, having weapons under disability, carrying a concealed weapon, and obstructing official business. For the reasons set forth below, we affirm.
I. Factual and Procedural History
{¶ 3} Tunstall filed a notice of self-defense in which he asserted he shot Burch after Burch had threatened and assaulted him. The matter proceeded to a jury trial.
{¶ 4} The evidence presented at trial established that Tunstall had been romantically involved with a woman named Felicia when a lawnmower was stolen from her front porch on June 18, 2021. Felicia‘s security camera captured the theft. Tunstall, who was acquainted with Burch, believed Burch was the person shown on the camera.
{¶ 5} On June 22, 2021, Burch was at a BP station on Salem Avenue, which was approximately two blocks from Felicia‘s home. While there, he spoke with an acquaintance, Yolanda Turner. Tunstall approached Turner and Burch while they were talking and stated that Burch was “coming with him.” According to Turner, she heard Tunstall mention something about a lawnmower. Burch and Tunstall then walked away from the station toward an alley that ran between the station and an abandoned building.
{¶ 6} As Burch and Tunstall approached the alley, they passed two men who were working on a truck near the edge of the station‘s parking lot. One of the men, Antonio Taylor, heard Tunstall say to Burch “I‘m gonna f**k you up” if Burch was identified by an
{¶ 7} Approximately three minutes later, numerous gunshots were heard coming from the direction of the alley. The shots paused for approximately 12 seconds, and then more shots were heard. Taylor and Knolton ran toward the alley. Eventually, they looked over a fence that ran along the alley and observed Burch lying on his back in tall brush in the backyard of a property known as the Lexington Lodge. Taylor saw Tunstall walking away through the Lexington Lodge property.
{¶ 8} Due to an unrelated event which ended just prior to the shooting, numerous Dayton Police officers were already in the area. A description of Tunstall was broadcast over the police radio, and he was quickly apprehended. Burch, who was still alive, was transported to a hospital. He later succumbed to his injuries.
{¶ 9} Montgomery County Deputy Coroner Lee Lehman, who had performed an autopsy on Burch, testified that Burch had gunshot entrance wounds to his left forehead and his left cheek by the corner of his mouth. Lehman testified that the shot to the forehead caused pieces of Burch‘s skull to embed in his brain; this shot would have been immediately fatal. Burch also had two gunshot entrance wounds to his back and an entrance wound to his left buttock. The bullet to the buttock traveled through Burch‘s bowels, bladder, and iliac vein. The damage to the vein resulted in heavy bleeding and would have been fatal within a matter of minutes. Lehman testified that Burch also had a gunshot to his chest just below his armpit, which had caused his lung to collapse, and multiple gunshot wounds to his arms. In all, Burch had been shot 13 times. According
{¶ 10} Tunstall testified in his own defense. According to Tunstall, he encountered Burch on two separate days shortly after the theft of the lawnmower. On the first occasion, Tunstall confronted Burch about the stolen lawnmower; Burch denied stealing it, and Tunstall did not pursue the matter because he had a child with him and believed Burch was armed. On the second occasion, Tunstall and Burch discussed Tunstall‘s purchase of marijuana from Burch at a BP station, and they walked toward the alley behind the Lexington Lodge while discussing the purchase. This eventually led to a physical altercation between the two men. According to Tunstall, he shot Burch after being “sucker-punched” and slung to the ground by him and after Burch had produced a “spike,” which he held between his fingers, and attempted to charge Tunstall.
{¶ 11} Tunstall was found guilty by a jury of murder and felonious assault (serious physical harm), as well as the attached firearm specifications. The jury entered a finding of not guilty on the charge of felonious assault (deadly weapon). The jury also found Burch guilty of carrying a concealed weapon and of obstructing official business with a finding that Tunstall created a risk of physical harm to any person. Tunstall had waived his right to a jury trial on the count of having a weapon under disability, and the trial court found him guilty on that count. Tunstall was sentenced to an aggregate prison term of 26 years to life. He was also found to be a violent offender subject to registration with the violent offender registry.
{¶ 12} Tunstall appeals.
{¶ 13} Tunstall‘s first assignment of error states:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT TUNSTALL‘S USE OF DEADLY FORCE WAS NOT IN SELF-DEFENSE.
{¶ 14} Tunstall challenges his convictions for felonious assault and felony murder, claiming that the evidence demonstrated that he acted in self-defense.
{¶ 15} Effective March 28, 2019, revisions made to the self-defense statute,
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.
{¶ 16} ” ‘The elements of self-defense in the use of deadly force are: (1) the
{¶ 17} These elements are explained in State v. Azali, 8th Dist. Cuyahoga No. 112299, 2023-Ohio-4643:
“The first * * * [element] of the self-defense test—whether the defendant was at fault in creating the situation giving rise to the affray—asks, in essence, whether the defendant was the initial aggressor.” State v. Gardner, 8th Dist. Cuyahoga No. 110606, 2022-Ohio-381, ¶ 25. ” ‘This concept is broader than simply not being the immediate aggressor. A person may not provoke an assault or voluntarily enter an encounter and then claim a right of self-defense.’ ” State v. Gaston, 8th Dist. Cuyahoga No. 98904, 2013-Ohio-2331, ¶ 16, quoting State v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002-Ohio-415.
“[T]he second element of self-defense involves both objective and subjective considerations.” State v. Hughkeith, 2023-Ohio-1217, 212 N.E.3d 1147, ¶ 56 (8th Dist.). A defendant‘s belief that he was in immediate danger of death or great bodily harm must be objectively reasonable, and the defendant must have an honest belief that he was in such imminent danger. Id. ” ’ [I]f the objective standard is met, the jury must determine if, subjectively, this particular defendant had an honest belief that [he] was in imminent danger.’ ” Id., quoting State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997).
” ‘Implicit in th[e] second element of self-defense, i.e., that the defendant‘s use of deadly force was in ‘good faith,’ is the requirement that the degree of force used was ‘warranted’ under the circumstances and ‘proportionate’ to the perceived threat.” State v. Ratliff, supra, at ¶ 31, quoting State v. Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-4416, ¶ 31. “Accordingly, this court has held that the force used to defend must be at once objectively reasonable and necessary under the facts and circumstances of the case.” Id., citing State v. Johnson, 8th Dist. Cuyahoga No. 110673, 2022-Ohio-2577, ¶ 15. If the amount of force used is so disproportionate that it shows an “unreasonable purpose to injure” the defense of self-defense is unavailable. State v. Reyes-Figueroa, 2020-Ohio-4460, 158 N.E.3d 939, ¶ 27 (8th Dist.).
{¶ 18} On appeal, the State‘s burden of disproving Tunstall‘s self-defense claim beyond a reasonable doubt is subject to a manifest-weight review. State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, ¶ 27. When conducting a manifest weight review, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
{¶ 19} Tunstall, who knew Burch prior to the shooting, testified that he encountered Burch at a local park the day before the shooting. According to Tunstall, he approached Burch and asked him about the theft of the lawnmower. Tunstall stated that Burch had denied the theft, at which point Tunstall informed him about the security camera footage. Tunstall testified that he ended the encounter because he had a child with him, and he noticed that Burch had a gun in his pocket.
{¶ 20} Tunstall testified that he went to the BP station the next day, where he saw Burch again. Tunstall stated that he passed Burch on his way into the store, at which time Burch indicated that he had marijuana to sell. When Tunstall exited the store, he approached Burch, who was then talking to two women. The pair then walked through the parking lot toward Tunstall‘s car, which was parked on the side of the Lexington Lodge. Tunstall testified that, as they were walking, Burch indicated that he did not want to go on the street and instead directed Tunstall to walk down the alley behind the Lexington Lodge; when they entered the alley, Tunstall pulled out his wallet, and Burch told Tunstall to give him the money in the wallet so he (Burch) could go to a nearby residence and get marijuana from his “people.” Tunstall then stated that, while at the BP station, Burch had indicated that he had the marijuana in his possession. According to Tunstall, when Tunstall was reluctant to give his money to Burch, Burch became angry and began to poke him above his eye. Tunstall testified that he swatted Burch‘s hand away from his face and told Burch he was leaving.
{¶ 22} As previously noted, to refute Tunstall‘s trial testimony, the State presented the testimony of Turner, the acquaintance with whom Burch spoke at BP; she testified that when Tunstall approached Burch and her, he mentioned a lawnmower. Additionally, witnesses Taylor and Knolton both testified that one of the men made a statement about harming the other if he was identified by some other person or persons. Although
{¶ 23} Additionally, the State presented evidence that Tunstall did not initially inform any police officer that Burch had attacked him. Indeed, during the first ten minutes of his police interview with Dayton police detective Zachary Williams, Tunstall denied knowledge of a shooting. He insisted that he had merely purchased some “weed” just prior to being arrested. It was not until Det. Williams revealed that the discarded gun had been located that Tunstall changed his story. Then, as he began to explain the events of the incident, he again stated that he had been buying marijuana and that the shooting had had nothing to do with a lawnmower. (The interviewing detectives had not mentioned anything about a lawnmower at the point that Tunstall made this statement.) Tunstall stated that while he was trying to make the marijuana purchase, Burch had grabbed him, punched him, and tried to steal his wallet. But at no point in the interview did Tunstall assert that Burch had had any type of weapon. Williams, who was also an EMT, examined Tunstall; other than a scratch to his arm, Tunstall showed no signs of injury to his body or head. Further, as noted by the coroner, Burch did not have any bruising, swelling, or abrasions on his hands to indicate he had punched Tunstall. A reasonable juror could have concluded that these inconsistencies discredited Tunstall‘s testimony.
{¶ 24} We also note that Tunstall testified he was in the alley by the fence when Burch first attacked him, causing him to fall to the ground. Tunstall claimed he tried to stand, but Burch grabbed him and “slung” him to the ground several times. He testified
{¶ 25} The State presented evidence that on the day of the shooting, the alley had numerous puddles and was muddy, yet Tunstall had not gotten dirty while allegedly on the ground. Further, the State presented evidence that the shell casings from Tunstall‘s gun were found well-inside the fenced area. According to police testimony, the location of the casings demonstrated that Tunstall was not standing at the gate when he fired his gun but was, instead, in the yard with Burch. Given that Tunstall‘s trial testimony was inconsistent with his statements to Williams, the jury could have concluded that he was not credible in his claim of self-defense.
{¶ 26} Finally, the jury could have reasonably concluded that Tunstall had used excessive or disproportionate force based upon Tunstall shooting Burch 13 times and admitting that he continued to shoot as Burch ran away.
{¶ 27} The jury, as the trier of fact, was free to believe all, part, or none of the testimony of each witness and to draw any reasonable inferences from the evidence presented at trial. State v. Gipp, 2d Dist. Montgomery No. 27635, 2017-Ohio-8907, ¶ 14, quoting State v. Fields, 2d Dist. Clark No. 2016-CA-76, 2017-Ohio-7745, ¶ 42, citing State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. After reviewing the record, we cannot say that the jury clearly lost its way or created a manifest miscarriage of justice when it found the State had proven beyond a reasonable doubt that Tunstall did not act in self-defense. Accordingly, the first assignment of error is overruled.
{¶ 28} The second and third assignments of error asserted by Tunstall state:
THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT THE JURY‘S SPECIAL FINDING THAT TUNSTALL‘S OBSTRUCTION OF OFFICIAL BUSINESS CREATED A RISK OF PHYSICAL HARM TO PERSONS.
THE JURY‘S SPECIAL FINDING THAT TUNSTALL‘S OBSTRUCTION OF OFFICIAL BUSINESS CREATED A RISK OF PHYSICAL HARM TO PERSONS WAS BASED ON INSUFFICIENT EVIDENCE.
{¶ 29} Tunstall concedes he committed the offense of obstructing official business by running from the police and throwing his gun into nearby plants. However, he contends the State failed to produce evidence sufficient to demonstrate that he created a risk of physical harm to any person when he committed the offense. He further claims the finding that he created a risk of physical harm was against the manifest weight of the evidence.
{¶ 30} “[S]ufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). As stated above, an examination under the manifest weight of the evidence standard requires weighing the evidence and the credibility of the witnesses to determine whether the jury lost its way. While sufficiency
{¶ 31} Obstructing official business is proscribed by
{¶ 32} The record discloses that Dayton Police Officer Nathan Speelman was in the area when the shots were fired. According to Speelman‘s testimony, he was driving on North Broadway Street, approximately two blocks west of the BP station, when he observed an individual matching the suspect‘s description. Speelman stopped his cruiser by an alley, exited, and confronted the man, later identified as Tunstall. Speelman ordered Tunstall to the ground; Tunstall, however, turned and ran down the alley. Speelman gave chase down the alley, which ended in front of a garage. He chased Tunstall around the garage through overgrown brush and debris. When Tunstall
{¶ 33} Speelman testified that, because he believed he was pursuing an armed suspect, he initially had his weapon drawn while chasing Tunstall. However, he eventually holstered his weapon due to his concern that he might accidentally discharge the gun because he had to pursue Tunstall around obstacles and through the overgrown terrain.
{¶ 34} Ohio law indicates that the potential risk of harm required by
{¶ 35} Additionally, Detective Williams testified about the search for Tunstall‘s firearm. He testified that the alley where the gun was located was “highly traveled” by people in the neighborhood, including children. He testified that the “biggest concern”
{¶ 36} Based upon our review of the record, we conclude there was sufficient evidence that Tunstall‘s actions created a risk of harm to himself, Speelman, and any bystanders in the area. Further, we conclude the jury‘s finding that he created a risk of physical harm was not against the manifest weight of the evidence.
{¶ 37} Accordingly, the second and third assignments of error are overruled.
IV. Conclusion
{¶ 38} All of Tunstall‘s assignments of error being overruled, the judgment of the trial court is affirmed.
EPLEY, P.J. and LEWIS, J., concur.