[Cite as State v. Lampley,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. -vs- Case No. 10CA30 THOMAS LAMPLEY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from Richland County Court of Common Pleas, Case No. 09-CR-650D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 5, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. OFFICE OF THE PUBLIC DEFENDER PROSECUTING ATTORNEY MELISSA M. PRENDERGAST RICHLAND COUNTY, OHIO Assistant State Public Defender 250 East Broad Street, Suite 1400 BY: JILL M. COCHRAN Columbus, Ohio 43215 Assistant Richland County Prosecutor 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 10CA30 2

Hoffman, P.J.

{¶1} Defendant-appellant Thomas Lampley appeals his conviction entered by

the Richland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 28, 2009, Appellant was employed at the Mary McLeod

Bethune Center (“MBCC”) owned by his wife. On that day, Appellant and his wife

became involved in an argument, during which Appellant operated a vehicle in the

MBCC parking lot coming close to and almost hitting LaShona Bronson who was also

an employee of MBCC and an acquaintance of Appellant. A dispute then arose between

Bronson and Appellant as to how close Appellant was to hitting her, and Appellant

called Bronson a “bitch.” Bronson telephoned her husband, David Jermain Bronson, aka

J.B. Bronson. She then told Appellant “We going to have somebody to take care of you”

and “We got something for you.” J.B. subsequently came to the parking lot, but

Appellant had already left the scene.

{¶3} When Appellant returned to the MBCC parking lot, he encountered

LaShona Bronson and her husband, J.B., who approached Appellant at the vehicle

Appellant was driving. An altercation ensued. Appellant maintains J.B. approached the

vehicle and began striking Appellant through the open window. J.B.'s friend, Danny

McClain, had accompanied J.B. to the parking lot, and was outside the vehicle on the

driver's side. Appellant accessed a firearm stored in the MBCC's van, and used the

firearm to shoot and fatally wound J.B.

{¶4} Appellant was indicted by the Richland County Grand Jury on four counts:

murder, in violation of R.C. 2903.02(A), with a firearm specification; murder, in violation Richland County, Case No. 10CA30 3

of R.C. 2903.02(B), with a firearm specification; having a weapon under disability, in

violation of R.C. 2923.13(A)(2); and tampering with evidence, in violation of R.C.

2921.12(A)(1).

{¶5} A jury trial commenced on February 23, 2010, and the jury returned a

verdict of guilty on all four counts. The jury also returned a finding of guilt on the firearm

specifications.

{¶6} The trial court imposed a sentence of fifteen years to life imprisonment on

count one, merging counts one and two. The court also imposed a five year sentence

on count three and a two year sentence on count four, to be served consecutively. An

additional three year mandatory consecutive prison sentence was imposed for the

firearm specifications, for a total sentence of twenty-five years to life.

{¶7} On March 10, 2010, Appellant filed a notice of appeal with this court in

Case No. 10–CA–30. Subsequently, on April 26, 2010, Appellant filed a petition to

vacate or set aside his sentence in the trial court.

{¶8} On August 10, 2010, the trial court overruled Appellant's petition for post-

conviction relief. On October 29, 2010, this Court dismissed Appellant's direct appeal for

failure to prosecute because Appellant failed to submit a brief.

{¶9} Appellant appealed the trial court's August 10, 2010 denial of his motion

for post-conviction relief. Via Judgment Entry of March 9, 2011, this Court affirmed the

trial court's denial of the motion for post-conviction relief. State v. Lampley, Richland

App. No. 10CA30,

.

{¶10} On December 9, 2011, this Court granted Appellant's application to

reopen the direct appeal finding Appellant's appellate counsel was ineffective in failing Richland County, Case No. 10CA30 4

to raise a potentially meritorious claim. This Court reopened Appellant's appeal for the

limited purpose of considering whether trial counsel was ineffective in failing to request

a jury instruction on the Castle Doctrine, as codified in R.C. 2901.05 and R.C. 2901.09.

{¶11} Appellant assigns as error:

{¶12} “I. TRIAL COUNSEL WAS INEFFECTIVE FOR ARGUING COMMON-

LAW SELF-DEFENSE AND FOR FAILING TO REQUEST THAT THE JURY BE

INSTRUCTED ON THE CASTLE DOCTRINE, AS CODIFIED IN R.C. 2901.05 AND

R.C. 2901.09. SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION; STRICKLAND V.

WASHINGTON,

(1984).

{¶13} “II. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO

RAISE A MERITORIOUS ASSIGNMENT OF ERROR IN MR. LAMPLEY’S DIRECT

APPEAL OF RIGHT. SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION;

EVITTS V. LUCEY,

(1985).”

I. and II.

{¶14} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

{¶15} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984),

,

,

. Ohio

adopted this standard in the case of State v. Bradley (1989),

,

. These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell below Richland County, Case No. 10CA30 5

an objective standard of reasonable representation and was violative of any of his

essential duties to the client. If we find ineffective assistance of counsel, we must then

determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different.

Trial counsel

is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie (1998),

,

.

{¶16} Ohio Revised Code section 2901.05(B)(1) provides,

{¶17} "Subject to division (B)(2) of this section, a person is presumed to have

acted in self defense or defense of another when using defensive force that is intended

or likely to cause death or great bodily harm to another if the person against whom the

defensive force is used is in the process of unlawfully and without privilege to do so

entering, or has unlawfully and without privilege to do so entered, the residence or

vehicle occupied by the person using the defensive force.

{¶18} "***

{¶19} "(3) The presumption set forth in division (B) (1) of this section is a

rebuttable presumption and may be rebutted by a preponderance of the evidence."

{¶20} Revised Code section 2901.09, codifies specific circumstances under

which a person has no duty to retreat. The statute provides,

{¶21} "(B) 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 Richland County, Case No. 10CA30 6

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."

{¶22} Appellant maintains by failing to request the appropriate jury instructions

and failing to object to the instruction given, Appellant's trial counsel failed to present

what might have been a crucial statutory defense available to Appellant. Essentially,

Appellant contends his counsel's failure lead to Appellant having the burden of proving

he acted in self-defense; rather than the fact he acted in self-defense presumed

according to the Castle Doctrine.

{¶23} At trial herein, Angela Davis, a witness to the incident at issue, testified:

{¶24} “Q. Can you tell us what is the fact as to whether you heard loud voices

down in that area where Thomas and JB were?

{¶25} “A. Yes.

{¶26} “Q. Could you make out anything that was being said at that time?

{¶27} “A. No.

{¶28} “Q. Did you at any time ever see JB reach out or put his arm inside that

van?

{¶29} “A. Yes.

{¶30} “Q. How was he doing this? Could you describe that?

{¶31} “A. He was pointing his hand in there towards his face.

{¶32} “Q. And did there come a time then that that van driven by Thomas

Lampley moved from that area? Richland County, Case No. 10CA30 7

{¶33} “A. Yes.

{¶34} “Q. And where did the van go at that point in time?

{¶35} “A. He went up and parked behind my vehicle.

{¶36} “Q. Did he have to go up and turn around?

{¶37} “A. Yes.

{¶38} “Q. Do you know where he turned around?

{¶39} “A. I assumed that he did a u-turn.

{¶40} “Q. But he parked behind your vehicle?

{¶41} “A. Yeah.

{¶42} “Q. Do you know a person named or called Danny McClain?

{¶43} “A. Yes.

{¶44} “Q. And did you see him there that day?

{¶45} “A. Yes.

{¶46} “Q. And once Thomas moved his van from where you described it an

proceeded up and ended up parking behind your vehicle, what did JB do at that time?

{¶47} “A. He ran down towards his vehicle again.

{¶48} “Q. The van?

{¶49} “A. The van.”

{¶50} Tr. at 806-808.

{¶51} On cross-examination, Davis testified:

{¶52} “A. I pulled my vehicle in at I77 East (sic) 2nd Street. When I got out, I

heard a bunch of yelling and commotion going on, and I walked down toward the

building, and I seen Sylvia and I saw Lashonna, and I asked them what was going on. I Richland County, Case No. 10CA30 8

asked them who they was arguing with, they said Thomas. I asked them why would

you be arguing with the boss’ husband. I asked them did anybody call Miss Alverta.

They said something about her cell phone wasn’t working.

{¶53} “I looked over and I seen Thomas in the white van, and I seen JB. And JB

had his hand inside the window, just pointing. I don’t know what he was doing, but he

had his hand inside the window.”

{¶54} “* * *”

{¶55} Tr. at 827.

{¶56} Appellant himself testified at trial relative to the incident,

{¶57} “Q. When he mentioned for you to come on up here, was he yelling to get

your attention?

{¶58} “A. Yeah, he was. And I was going to go to my sister’s house, but I didn’t

want the confrontation to come down to her house. So that’s why I just said I might as

well go up there and talk to him.

{¶59} “Q. You say when you were talking and he’s telling you, “You crossed the

line, you disrespected my wife,” things like this - -

{¶60} “A. That’s what he was saying.

{¶61} “Q. - - during that time, he didn’t double up his fists and punch you, did

he?

{¶62} “A. No, he had his hands open like that, and straight.

{¶63} “Q. Jabbing at you?

{¶64} “A. Yes, sir.

{¶65} “Q. Did he make contact with you? Richland County, Case No. 10CA30 9

{¶66} “A. Yes, he did.

{¶67} “Q. Where at?

{¶68} “A. Right above my glasses. He done it a couple times, and one time he

actually hit my glasses. So I had my glasses on my face.

{¶69} “* * *

{¶70} “Q. Okay. Now, at that point in time when you stopped there in the street

and JB comes out of the street and this altercation, whatever, goes on, between the two

of you - -

{¶71} “A. Yes, sir.

{¶72} “Q. - - did there come a time that he left your driver’s side door and walked

away?

{¶73} “A. No, he didn’t leave. Danny McClain came to the side door with him,

and when I looked and glanced out of the side mirror I seen Danny McClain

approaching the vehicle, too. So I pulled up and turned around - - actually I pulled into

my driveway at the office, but it was blocked. [emphasis added]

{¶74} “* * *

{¶75} “Q. Now, you’ve turned around, you have parked behind Angela Davis’

vehicle, and what happens then after you turn around, park the white van behind

Angela's car alongside the curb, what happens then?

{¶76} “A. I look up and JB is coming up on this side and he comes to my driver’s

side window. And I said, ‘Look, JB, I don’t want to fight with you. I already apologized

to you, I’m [sic] apologized to your wife.’

{¶77} “Q. Stop there a minute. Now, which window did he come to? Richland County, Case No. 10CA30 10

{¶78} “A. He came to the passenger side.

{¶79} “Q. The passenger side window. Okay, go ahead.

{¶80} “A. So I kept on saying, ‘JB, I’m apologizing to you. I already apologized

to your wife. I don’t want to fight.’ I kept telling him, ‘I don’t want to fight with you at all.’

When I looked up, glanced this way, Danny McClain was approaching me from the

driver’s side, and he was close, about two feet off, but JB was right in my window.

{¶81} “Q. Was Danny McClain, was he egging this thing on, so to speak,

agitating, talking?

{¶82} “A. He kept on saying, ‘Just get out of the car, just get out of the car.’

{¶83} “Q. Talking to you?

{¶84} “A. Yeah.

{¶85} “Q. JB is at the open window of your passenger door?

{¶86} “A. Yes, sir.

{¶87} “Q. And did there come a time that you reached down and picked up the

gun and fired it in his direction?

{¶88} “A. Yes, there was.

{¶89} “Q. Why was that?

{¶90} “A. JB said, ‘If you ain’t going to get out I’m going to blow your head off

right here,’ and he reached behind his back like that, and that’s when I reached. I came

up and fired a shot. Then when I looked, Danny McClain was right on this side, so I got

out to go after him because he started running towards the hatchback that was open on

the SUV. Richland County, Case No. 10CA30 11

{¶91} “When I see that he ran towards the SUV but I went and pursued him

and he started ducking, and he said, ‘I don’t got nothing, Cuz, I don’t got nothing.’ He

wasn’t no more a threat to me, so I turned around and went back to my vehicle.

{¶92} “Q. Now, during this verbal back and forth between you and JB, before

you picked the gun up and fired it as you described what he was doing - -

{¶93} “A. Yes, sir.

{¶94} “Q. - - did Angela Davis talk to you, do you recall?

{¶95} “A. She came up to the side window, which was what caused me to

glance and see Danny McClain, how close he was. She came up to the side window

and said, ‘Thomas, you all need to stop that.’ That’s all she got a chance to say. That’s

all she said to me. I heard her, but it was in the heat of that moment right before the

shot was fired, and so there wasn’t no way that I could respond or anything to what she

was saying. It was too late.

{¶96} “Q. Did you see JB fall?

{¶97} “A. Yeah, I did.

{¶98} “Q. And you got out of the van with the gun in your hand?

{¶99} “A. Yes, I did.

{¶100} “Q. And chased after McClain?

{¶101} “A. Yes, I did.

{¶102} “Q. And he said what to you, ‘Cuz, I don’t got nothing’?

{¶103} “A. He said, ‘I don’t got nothing Cuz, I don’t got nothing.’

{¶104} “Q. At that time you left and got back in your van?

{¶105} “A. Yes, I did. Richland County, Case No. 10CA30 12

{¶106} “Q. Did you leave then.

{¶107} “A. Yes, I did.”

{¶108} Tr. at 857-859; 863-866.

{¶109} Appellant later testified,

{¶110} “Q. And at the time you bring it up and fire that round what’s JB doing?

{¶111} “A. JB is reaching.

{¶112} “Q. He was reaching?

{¶113} “A. Yes, sir.

{¶114} “Q. A reach that Cody Richards didn’t see?

{¶115} “A. Cody Richards didn’t see.

{¶116} “Q. But he should have saw it?

{¶117} “A. I don’t know. That’s what you say. I’m just saying that if he was

leaning inside my vehicle like that with his face inside my vehicle, why didn’t he get shot

in the face?

{¶118} “Q. that’s an excellent point because he got shot in the side, didn’t he?

{¶119} “A. That’s right.’

{¶120} Tr. at 919.

{¶121} Pursuant to the above testimony we find the evidence does not support a

conclusion J.B. was in the process of entering or inside the Appellant’s vehicle at the

time of the shooting. Rather, Appellant himself testified J.B. would not have been

leaning inside the vehicle at the time Appellant fired the gun because J.B. was shot in

the side, not in the face. And while Appellant claims J.B. had earlier reached inside

making contact with his face, this occurred prior to the shooting and after Appellant had Richland County, Case No. 10CA30 13

moved his vehicle and parked behind Davis’ vehicle. The trial testimony of Angela

Davis and Appellant himself demonstrates although J.B. was “leaning” in the vehicle

during the first confrontation with J.B., the evidence indicates at the time of the

subsequent confrontation and shooting, J.B. approached the passenger side of the

vehicle, and was not in the process of entering or inside the vehicle. Appellant testified

J.B. was reaching behind his back, not reaching into his vehicle. Accordingly, we do not

find Appellant's trial counsel was ineffective in failing to request the jury instruction on

the Castle Doctrine, as codified in 2905.01 and 2901.09, where the evidence does not

warrant the instruction herein.

{¶122} Appellant's first and second assignments of error are overruled.

{¶123} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER

s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS Richland County, Case No. 10CA30 14

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : THOMAS LAMPLEY : : Defendant-Appellant : Case No. 10CA30

For the reason stated in our accompanying Opinion, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS