STATE OF OHIO v. DETTRICK WALKER
No. 109328
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
June 17, 2021
2021-Ohio-2037
SEAN C. GALLAGHER, J.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 17, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633490-B
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Blaise D. Thomas and Tasha Forchione, Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
SEAN C. GALLAGHER, J.:
{1} Dettrick Walker appeals his conviction for felonious assault, along with an attendant three-year gun specification, stemming from his mortally shooting Victor Maar, Jr., with an illegally possessed handgun during an altercation
{2} Walker, 18 years old at the time of the shooting, was in a relationship with Courtney Sprachmann, who was then 41 years old and who is also a codefendant. That relationship began three years earlier. Sprachmann moved into a property owned by Maar, having no other home available. Maar‘s extended family also lived at the property. Maar renovated homes for a living and hired Sprachmann sporadically. Maar prohibited Walker from being on any of his properties because Maar believed Walker had assaulted Sprachmann in the past based on visible injuries Sprachmann had sustained.
{3} On the day of the killing, Walker visited Sprachmann. Sprachmann and Walker were upstairs while the rest of the family was on the first floor watching football. Maar joined the family. Maar, aware of Walker‘s presence, eventually went upstairs to confront the couple and to tell Walker to leave the premises. Maar verbally confronted Walker, and the two began pushing each other, although the extent of the altercation is unclear because the rest of the family only heard the scuffle. Walker testified that he was punched several times in the face. Unsuccessful with getting Walker to leave, Maar returned to the living room.
{4} While Maar was at the foot of the stairs entering the living room, he was heard telling everyone that Walker “had to go” or words to that effect. Walker approached Maar from behind and, according to the witnesses, began shooting
{5} The medical examiner in part corroborated the eyewitness testimony that Maar‘s back was to Walker at some point during the shooting. The fatal gunshot was inflicted from behind, entering Maar‘s back and exiting his chest, piercing the aorta, the largest blood vessel in the body. Maar‘s death would have been within minutes, but Maar would have collapsed within seconds. Also, according to the medical examiner, there were no offensive wounds on Maar‘s hands or fists, indicating that Maar did not appear to punch anybody, although there is no dispute that Walker had marks on his face and body and lost some blood during the altercation. The extent of Walker‘s injuries was limited to a cut on his lip and some scratches or other cut marks on his arm and back. Walker did not seek medical attention, and four days after the altercation there were no visible signs of injury to Walker‘s face.
{6} Walker presented a different version of events. Although Walker never testified to being aware of Maar‘s prior instances of aggressive conduct, the trial court permitted the defense to delve into that area through the state‘s witnesses offering evidence of the victim‘s past conduct, over the state‘s objection. Compare State v. Barnes, 94 Ohio St.3d 21, 21, 759 N.E.2d 1240 (2002) (a defendant cannot
{7} After being tossed into the fireplace in the living room by Maar and his father, Walker pulled a loaded firearm from his backpack, which had been loosely hung on his right shoulder during the entire episode with the handgun contained in an open pocket on the outside of the backpack. According to Walker, the backpack was at his feet when Maar entered the bedroom, but Walker was able to pick up the bag and sling it around one shoulder right before Maar threw the first punch.
{8} Walker then claims that after retrieving the firearm from the backpack, he released the trigger safety and fired five shots as Maar charged toward him, but that he stopped shooting once Maar fell to the floor — contradicting the state‘s evidence that Walker continued to fire the weapon while Maar was lying on
{9} At trial, Walker testified that he was given the handgun by a friend, avoiding the implications of
{10} The jury acquitted Walker of both murder counts, but found him guilty of felonious assault along with an attendant three-year firearm specification. The trial court imposed the maximum sentence of eight years in prison, to be served following the three-year term imposed on the firearm specification. This appeal timely followed in which Walker advances five assignments of error.
{11} In the first, third, and fourth assignments of error, Walker claims his conviction is either based on insufficient evidence or is against the weight of the evidence. All three of those claimed errors, however, rely on accepting Walker‘s testimony over that of the state‘s witnesses and will be treated accordingly. In reviewing a sufficiency challenge, ” ‘[t]he relevant inquiry 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 proven beyond a reasonable doubt.’ ” (Emphasis added.) State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because Walker‘s argument focuses on his credibility as contrasted against the state‘s evidence, his claims are more appropriately considered under the weight-of-the evidence standard.
{12} A claim that a verdict is against the weight of the evidence involves a separate and distinct test that is much broader than the test for sufficiency. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In contrast to sufficiency of the evidence, “[w]eight of the evidence concerns the inclination of the greater amount of credible evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
{13} Self-defense claims are generally an issue of credibility. If evidence presented at trial tends to support the conclusion “that the defendant used force against another in self-defense or in defense of another, the state must prove beyond a reasonable doubt that the defendant did not use the force in self-defense or defense of another.” State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 49, citing
{14} In order to establish the inapplicability of self-defense, the state must demonstrate (1) that the defendant was at fault in creating the situation giving rise
{15} Nevertheless, self-defense is not absolute. There are ” ‘limitations to the application of self-defense,’ and the defense ‘is not available unless’ there is evidence demonstrating ‘that the force used to repel the danger was not more than the situation reasonably demanded.’ ” State v. Zafar, 10th Dist. Franklin No. 19AP-255, 2020-Ohio-3341, ¶ 52-53, quoting State v. Johnson, 6th Dist. Lucas No. L-08-1325, 2009-Ohio-3500, ¶ 12. It has therefore been concluded that ” ‘the force used to defend must be objectively necessary and reasonable under the facts and circumstances of the case and in view of the danger apprehended.’ ” Id., quoting Johnson and Martin v. Cent. Ohio Transit Auth., 70 Ohio App.3d 83, 93, 590 N.E.2d 411 (10th Dist.1990). Self-defense is not justified when an offender uses “a greater degree of force than is necessary under all the circumstances.” Id., citing Johnson and State v. McLeod, 82 Ohio App. 155, 157, 80 N.E.2d 699 (9th Dist.1948).
{16} In Zafar, for example, the defendant was a clerk at a convenience store who entered what started as a verbal altercation with the victim over a 50-cent surcharge for using a debit card. Id. at ¶ 19. The defendant testified that the victim threatened to kill him, and when another store clerk approached the victim, the victim began punching the other clerk. Id. at ¶ 21. At that point, the defendant began hitting the victim with an aluminum baseball bat, prevented him from leaving the store, and continued attacking despite the fact that the victim was subdued on the floor. Id. at ¶ 6-9. Even if the initial altercation placed the defendant in fear of his
{17} In this case, the evidence is conflicting as to how Walker shot Maar. According to Walker, he fired the weapon from the fireplace area only as Maar was charging at him after both had tumbled down the stairs while the assault was ongoing. According to the witnesses, and in part the medical examiner‘s and investigative evidence, Walker shot Maar from behind as Walker descended the stairs shortly after Maar had returned to the first-floor area during a break in the physical altercation. What is undisputed, however, is that although Maar initiated the altercation, no one in the house was otherwise armed and Walker did not sustain extensive injuries from Maar‘s attack.
{18} Essentially, Walker is asking this court to believe his version of events over the eyewitnesses and the state‘s forensic evidence. “[A] conviction is not against the manifest weight of the evidence because the trier of fact believed the state‘s version of events over the defendant‘s version.” State v. Lipkins, 2017-Ohio-4085, 92 N.E.3d 82, ¶ 39 (10th Dist.), citing State v. Gale, 10th Dist. Franklin No. 05AP-708, 2006-Ohio-1523, ¶ 19.
{19} Here, there is ample evidence that Walker fatally shot Maar while his back was to Walker and at a time when Walker was not in danger from any assault. If the state‘s evidence is believed, and Walker provides no credible basis to discount
{20} In effect, Walker escalated the altercation by voluntarily advancing and using a deadly weapon in a situation in which the objective evidence does not conclusively establish that Walker was being beaten to the point that his life was endangered. State v. Kendricks, 10th Dist. Franklin Nos. 10AP-114 and 10AP-115, 2010-Ohio-6041, ¶ 41. Even if Walker was privileged to defend himself from the initial attack, he exceeded the force necessary to repel the attack by using a deadly weapon against an unarmed man during a break in the altercation. The jury was free to consider such conduct in weighing the evidence. Id. Further, Walker fired several times and only one shot turned out to be deadly. The order in which the bullets struck Maar is unknown, but shooting multiple times, including when Maar was on the ground and no longer continuing the alleged attack, could also be considered as exceeding the force necessary to repel the bare-handed attack. See, e.g., State v. Viney, 4th Dist. Ross No. 1762, 1992 Ohio App. LEXIS 2404, 9 (May 5, 1992) (the jury was free to consider the several stab wounds as being in excess of
{21} A conviction will be reversed as being against the manifest weight of the evidence only in the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Id., quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, and Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Walker claims that his version of events is more credible than the state‘s; however, Walker‘s testimony is at odds with the forensic evidence that demonstrates Maar‘s being shot in the back and while on the ground. Walker provided no explanation for how Maar could have been shot in that manner throughout his testimony, which unambiguously provided that Walker only shot as Maar charged Walker. Further, his claim as to the extent of the struggle, being tossed around rooms and into objects in Sprachmann‘s room, was not corroborated by the crime-scene photos that depicted no damage to any items on dressers that the men collided with or any other signs of disarray. In short, his version of the events is not inherently more credible than the evidence offered by the state. See, e.g., State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 128 (defendant failed to demonstrate that the state‘s evidence was inherently unreliable, and therefore, the conviction was not against the weight of the evidence). This is not that exceptional case warranting appellate intervention.
{22} On this point, however, Walker claims that the jury must necessarily be presumed to have concluded that he acted in self-defense since Walker was acquitted of murder, and therefore, the felonious assault conviction should be reversed. According to Walker, the acquittal of the murder charges necessarily proves that the jury believed that Walker acted in self-defense, and therefore, that conclusion should have transferred to the separate felonious assault charge. The state, on the other hand, maintains that the jury could have acquitted based on its conclusion that the state failed to present evidence substantiating the elements of murder. We need not consider either argument because speculation as to the jury‘s thought process is not permissible. State v. Pruett, 8th Dist. Cuyahoga No. 78094, 2001 Ohio App. LEXIS 1705, 4 (Apr. 12, 2001), citing State v. Lovejoy, 79 Ohio St.3d 440, 444-445, 683 N.E.2d 1112 (1997). ” ‘Courts have always resisted inquiring into a jury‘s thought processes * * *; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.’ ” Lovejoy at 445, quoting United States v. Powell, 469 U.S. 57, 66-67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).
{23} Walker is essentially claiming that the finding of guilt on the felonious assault charge is inconsistent with the acquittal on the murder charges. State v. Daws, 2d Dist. Montgomery No. 18686, 2001-Ohio-1549. It has long been held that “consistency in the verdict is not necessary.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 81-82, quoting Powell at 62, and Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Each count of
{24} Thus, even if the jury‘s verdict as between the separate counts of the indictment were considered to be inconsistent, that does not constitute reversible error. We find no merit to Walker‘s argument.
III. Ineffective Assistance of Counsel
{25} In the second assignment of error, Walker claims that his trial counsel rendered ineffective assistance by failing to submit a separate verdict form on self-defense. According to Walker, the jury must have mistakenly applied the self-defense instruction only to the murder charges and not the felonious assault charge based on the verdict, and the jury form would have revealed this mistake.
{26} “Reversal of a conviction for ineffective assistance of counsel requires that the defendant show, first, that counsel‘s performance was deficient and second, that the deficient performance prejudiced the defendant so as to deprive the defendant of a fair trial.” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 391, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, even if the error is obvious, it must have affected substantial rights, and the Ohio Supreme Court has “interpreted this aspect of the rule to mean that the trial court‘s error must have affected the outcome of the
{27} Walker has not presented any authority in support of his claim that trial counsel must present verdict forms when self-defense is raised. State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-Ohio-3367, ¶ 99. In Jones, this argument was rejected for this very reason. Id. Importantly, Walker does not claim any error with respect to the jury instructions, which unambiguously instructed the jurors that the self-defense claim applied to each and every count. Tr. 1272:16-23 (“if you find that the State failed to prove, beyond a reasonable doubt, that self-defense does not apply you must find the defendant not guilty of the offense or offenses charged according to your findings.” (Emphasis added.)). The jury is presumed to have followed the court‘s instructions. State v. Graham, Slip Opinion No. 2020-Ohio-6700, ¶ 135, citing State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). As a result, Walker has failed to demonstrate that the result of the trial would have been different, and the second assignment of error is overruled.
{28} We do note, however, that the standard jury instruction for self-defense is in need of updating to reflect the current law that places the burden on the state to disprove self-defense. Traditionally, the elements of self-defense were considered cumulative — the defendant must prove each element in order to avail
IV. Sentencing
{29} Finally, in the fifth assignment of error, Walker claims that his sentence imposed on the felony of the second degree, felonious assault, is not
{30} In order to appeal the imposed sentence, a defendant must first demonstrate that the sentence is reviewable under one of the provisions of
{31} Notwithstanding, Walker contends that the Ohio Supreme Court recognized an offender‘s ability to challenge a sentence imposed solely after consideration of the factors under
{33} Even though
{34} We affirm.
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 conviction 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.
SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MARY J. BOYLE, A.J., CONCURS IN JUDGMENT ONLY