[Cite as State v. Shoecraft,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27860 : v. : Trial Court Case No. 2017-CR-375 : MARK A. SHOECRAFT, JR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 28th day of September, 2018.

...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Mark A. Shoecraft, Jr., appeals his conviction and

sentence for the following offenses: two counts of murder (proximate result), in violation

of R.C. 2903.02(B), both unclassified felonies, with both counts accompanied by three-

year firearm specifications; one count of felonious assault (serious harm), in violation of

R.C. 2903.11(A)(1), a felony of the second degree, accompanied by a three-year firearm

specification; two counts of felonious assault (deadly weapon), in violation of R.C.

2903.11(A)(2), both felonies of the second degree, with both counts accompanied by

three-year firearm specifications; one count of discharge of a firearm on or near prohibited

premises, in violation of R.C. 2923.162(A)(3) and (C)(4), a felony of the first degree,

accompanied by a three-year firearm specification; one count of carrying a concealed

weapon, in violation of R.C. 2923.12(A)(2), a felony of the fourth degree; one count of

having a weapon while under disability (prior drug conviction), in violation of R.C.

2923.13(A)(3), a felony of the third degree; and one count of aggravated trafficking in

drugs (Schedule I or II), in violation of R.C. 2925.03(A)(1) and (C)(1), a felony of the fourth

degree, accompanied by a one-year firearm specification. Shoecraft filed a timely notice

of appeal with this Court on January 10, 2018.

{¶ 2} The incident which forms the basis for the instant appeal occurred on the

night of January 31, 2017, when the victim, Eric Raglin, contacted an acquaintance, Mike

Fox, in order to arrange the purchase of methamphetamine. At the time that he received

the call from Raglin, Fox was riding in a motor vehicle with another individual, Damon

Glenn. Earlier that day, Glenn had asked Fox, a “neighborhood mechanic,” to perform

some work on Glenn’s vehicle. Glenn had picked up Fox in Vandalia, Ohio, and the two -3-

men were traveling back to Glenn’s house in Dayton so that Fox could repair the motor

vehicle. After overhearing Fox’s conversation with Raglin regarding the purchase of

methamphetamine, Glenn called the defendant-appellant, Shoecraft, as according to

Glenn’s testimony, he knew that Shoecraft was in possession of methamphetamine for

sale. Shoecraft informed Glenn that he did, in fact, have methamphetamine that he

would sell to Raglin. Upon being informed of the availability of the methamphetamine,

Raglin asked the men to meet him at a location on Basswood Avenue in Dayton, Ohio, in

order to conduct the sale.

{¶ 3} Shortly thereafter, Glenn and Fox arrived at the Basswood Avenue location

in Glenn’s vehicle. Shoecraft arrived by himself in a blue pickup truck. Shoecraft’s

friend, Bryan Kenney, also arrived at the location in a separate vehicle. The men parked

their vehicles on the south curb of Basswood Avenue in a row. Eventually, Raglin arrived

at the location on foot, and Shoecraft handed him a plastic bag containing approximately

an ounce of methamphetamine. Shoecraft informed Raglin that the price of the

methamphetamine was $600. Without handing the methamphetamine back over to

Shoecraft, Raglin stated that “his girl” had the money for the drugs in his car, which was

parked a short distance up Basswood Avenue. All of the men then walked to where

Raglin’s car, a white Honda Accord, was parked between two other vehicles against the

curb in front of an acquaintance’s residence on Basswood Avenue.

{¶ 4} Upon reaching his vehicle, Raglin opened the driver’s door and sat down in

the driver’s seat with the bag of methamphetamine. Raglin’s girlfriend, Amanda

Houchins, was sitting in the front passenger seat, and Raglin’s dog, a pit bull, was sitting

in the back seat of the vehicle. Shoecraft stood on the street partially inside the open -4-

driver’s door next to Raglin. Glenn stood on the driver’s side of the vehicle in the area

near the front left wheel of Raglin’s vehicle. Fox stood on the driver’s side of the vehicle

behind Shoecraft and Glenn. Both Shoecraft and Glenn testified that they observed

Houchins looking through her purse as if she was attempting to retrieve money to pay for

the methamphetamine.

{¶ 5} Suddenly, Raglin put his vehicle into drive, turned the wheel sharply to the

left, and drove quickly out of the parking space. Houchins testified that Raglin “veered

to the left as if he was just going off from the parking spot normally.” Tr. 84. Glenn and

Shoecraft testified that they were in fear for their lives when Raglin began to drive away

because they believed he was trying to hit them with his vehicle. Specifically, Shoecraft

testified that he had to grab Glenn by his right shoulder and pull him out of the way in

order for both of them to avoid being hit by Raglin’s vehicle. Houchins testified, however,

that there was no one standing in front of the vehicle when Raglin pulled out onto the

street.

{¶ 6} After Raglin began to drive away, Shoecraft pulled a handgun out of his

jacket pocket and began firing at the vehicle. Shoecraft admitted during his testimony

that he could have run away from the scene to avoid any danger, but he chose to stand

and fire his weapon at Raglin’s vehicle. The record establishes that Shoecraft fired his

handgun at the vehicle approximately seven times based upon spent shell casings

recovered at the scene. We note that the handgun used by Shoecraft was never

recovered by the police.

{¶ 7} Houchins testified that, upon hearing gunshots, she ducked her head down.

Houchins also testified that, shortly after the shooting started, Raglin lost control of the -5-

vehicle as it traveled down Basswood Avenue. The vehicle then crossed over the north

curb of Basswood Avenue, crashed through some brush, and finally came to a stop after

striking an iron railing in a parking lot off of Riverside Drive. Houchins testified that she

tried to rouse Raglin, but he was unresponsive. Houchins testified that she exited the

vehicle, ran back to her acquaintance’s apartment, and hid in a closet. Houchins testified

that she did not call 911 because she was in shock. After the shooting, Shoecraft, Glenn,

Fox, and Kenney fled the scene.

{¶ 8} Based upon a report of gunshots in the area, police and medics were

dispatched to the lot where Raglin’s vehicle had been wrecked. Dayton Police Officer

Stephen Lloyd testified that he observed a clearly deceased Raglin sitting in the driver’s

seat of the vehicle. As Raglin’s body was being removed from the vehicle, Officer Lloyd

observed that Raglin had a handgun concealed in the waistband of his pants that was not

visible while he was sitting in the driver’s seat. There was no evidence adduced at trial

that Raglin brandished a handgun during the confrontation with Shoecraft and the other

men.

{¶ 9} An autopsy was performed on Raglin by Montgomery County Chief Deputy

Coroner Lee Lehman. Dr. Lehman testified that Raglin sustained flesh wounds to his

left shoulder, chest, and right hand. Dr. Lehman also testified that Raglin was shot in the

back of the neck. The bullet entered the back of Raglin’s neck near the base of the skull

and came to rest at the top of the middle of his brain. Dr. Lehman testified that if Raglin

was slouched down in his seat, trying to avoid being shot while he was driving, this would

account for the trajectory the bullet followed as it traveled through his brain. Finally, Dr.

Lehman testified that the gunshot that struck Raglin in the head was fatal. -6-

{¶ 10} Officer Ronald Christoffers, an evidence technician with the Dayton Police

Department, testified that Raglin’s vehicle had bullet strikes to the front driver’s side

window and door, to the rear driver’s side quarter panel, to the window frame of the rear

driver’s side door, and to the rear license plate. Officer Christoffers testified that there

were no bullet strikes to the hood of the vehicle nor the front windshield. Significantly,

Officer Christoffers testified that all of the bullet damage to Raglin’s vehicle came from

the outside of the vehicle. Officer Christoffers also testified that, although the rear

windshield of Raglin’s vehicle had been completely shattered, he could not make a

conclusive determination regarding whether it had been struck by a bullet. Nevertheless,

Officer Christoffers testified that, based upon his experience, the bullet that struck Raglin

in the head “had to” have traveled through the rear windshield because none of the other

bullet damage to the vehicle would have accounted for Raglin’s head wound. Shoecraft

was arrested and taken into custody on the morning of February 1, 2017.

{¶ 11} When he was interviewed after being taken into custody, Shoecraft initially

denied any involvement in the shooting, telling police that he never visited Basswood

Avenue on the night of the shooting. After detectives informed Shoecraft that other

witnesses, namely Glenn and Kenney, had given statements placing him at the scene,

Shoecraft changed his story. Specifically, Shoecraft told police that he did drive out to

Basswood Avenue to give Glenn methamphetamine to sell to Raglin, but he never got out

of his truck and was not involved the shooting. Furthermore, Shoecraft never informed

the police that Raglin tried to hit Glenn and/or him with a car. Additionally, Shoecraft did

not tell police that he was ever in fear for his life during the incident. We note that, at

trial, Shoecraft asserted during his testimony that he was unaware that “self-defense” -7-

existed in Ohio. Shoecraft testified that this was the reason why he did not tell the police

during his custodial interview that he only shot at Raglin because he feared being hit by

the car.

{¶ 12} On February 13, 2017, Shoecraft was indicted for the following offenses:

two counts of murder (proximate result), with both counts accompanied by three-year

firearm specifications; one count of felonious assault (serious harm), accompanied by a

three-year firearm specification; two counts of felonious assault (deadly weapon), with

both counts accompanied by three-year firearm specifications; one count of discharge of

a firearm on or near prohibited premises, accompanied by a three-year firearm

specification; one count of carrying a concealed weapon; one count of having a weapon

while under disability (prior drug conviction); one count of aggravated trafficking in drugs

(Schedule I or II), accompanied by a one-year firearm specification; and one count of

trafficking in cocaine, in violation of R.C. 2925.03(A)(1), a felony of the fifth degree,

accompanied by a one-year firearm specification. At his arraignment on February 16,

2017, Shoecraft entered a plea of not guilty to all of the charges in the indictment. On

July 17, 2017, Shoecraft filed a “Notice of Alibi” in which he stated that, at trial, he would

present evidence that he was with his girlfriend, Ebone Parks, at the time of the shooting,

and therefore could not have committed the alleged offenses.

{¶ 13} On July 19, 2017, Shoecraft waived his right to a jury trial in open court and

signed a written waiver that was filed on the same day. Thereafter, the case proceeded

to a two-day bench trial on October 24 and 25, 2017. At trial, Shoecraft argued that he

acted in self-defense when he shot and killed Raglin as the latter drove away after stealing

Shoecraft’s methamphetamine. In a verdict entry issued on November 9, 2017, the trial -8-

court found Shoecraft guilty on all of the counts in the indictment and their accompanying

specifications, with the exception of the count of trafficking in cocaine. After merging

several of the counts and specifications, the trial court sentenced Shoecraft for the

following offenses: one count of felony murder (Raglin); one count felonious assault

(deadly weapon, Houchins); one count of discharge of a firearm on or near prohibited

premises; one count of carrying a concealed weapon; one count of having a weapon while

under disability; one count of aggravated trafficking in drugs; and two three-year firearm

specifications. Accordingly, the trial court sentenced Shoecraft to an aggregate

sentence of 40 years to life prison.

{¶ 14} It is from this judgment that Shoecraft now appeals.

{¶ 15} Shoecraft’s first assignment of error is as follows:

SHOECRAFT DID NOT VOLUNTARILY WAIVE HIS RIGHT TO A JURY

TRIAL.

{¶ 16} In his first assignment, Shoecraft argues that the record establishes that he

did not waive his right to a jury trial in a knowing, intelligent, and voluntary fashion.

{¶ 17} R.C. 2945.05 sets forth the manner in which a defendant may waive his or

her right to a jury trial. State v. Lomax,

,

,

. The statute provides as follows:

In all criminal cases pending in courts of record in this state, the defendant

may waive a trial by jury and be tried by the court without a jury. Such waiver

by a defendant, shall be in writing, signed by the defendant, and filed in said

cause and made a part of the record thereof. It shall be entitled in the court

and cause, and in substance as follows: “I __________, defendant in the -9-

above cause, hereby voluntarily waive and relinquish my right to a trial by

jury, and elect to be tried by a Judge of the Court in which the said cause

may be pending. I fully understand that under the laws of this state, I have

a constitutional right to a trial by jury.”

Such waiver of trial by jury must be made in open court after the defendant

has been arraigned and has had opportunity to consult with counsel. Such

waiver may be withdrawn by the defendant at any time before the

commencement of the trial.

R.C. 2945.05.

{¶ 18} Based on this statute, the Supreme Court of Ohio has identified five

conditions that must be satisfied in order for a jury waiver to be valid. Lomax at ¶ 9. The

jury waiver must be: “(1) in writing, (2) signed by the defendant, (3) filed, (4) made part of

the record, and (5) made in open court.” Id. Trial courts must strictly comply with these

requirements. State v. Grier, 2d Dist. Montgomery No. 23662,

, ¶ 15,

citing State v. Pless,

, 337 and 339,

(1996). (Other

citation omitted.) “In the absence of strict compliance with R.C. 2945.05, a trial court

lacks jurisdiction to try the defendant without a jury.”

, citing State v. Tate,

,

(1979) and State ex rel. Jackson v. Dallman,

,

(1994).

{¶ 19} While there must be strict compliance with the five conditions in R.C.

2945.05, we note that a written jury waiver need only substantially comply with the

language suggested in R.C. 2945.05, making a verbatim recitation of the statutory

language unnecessary. State v. Webb, 10th Dist. Franklin No. 10AP-289, 2010-Ohio- -10-

6122, ¶ 26-27, citing State v. Townsend, 3d Dist. Marion No. 9-03-40,

. (Other citations omitted.)

{¶ 20} R.C. 2945.05 must be read in conjunction with Crim.R. 23(A), which also

governs the waiver of a defendant's right to a jury trial. State v. Burnside,

,

,

(2d Dist.). “Crim.R. 23(A) allows a

defendant to waive his right to a trial by jury in serious offense cases provided that the

waiver is made knowingly, intelligently, and voluntarily, and in writing.” (Footnote omitted.)

Lomax at ¶ 6. Specifically, Crim.R. 23(A) provides:

In serious offense cases the defendant before commencement of the trial

may knowingly, intelligently and voluntarily waive in writing his right to trial

by jury. Such waiver may also be made during trial with the approval of the

court and the consent of the prosecuting attorney. In petty offense cases,

where there is a right of jury trial, the defendant shall be tried by the court

unless he demands a jury trial. Such demand must be in writing and filed

with the clerk of court not less than ten days prior to the date set for trial, or

on or before the third day following receipt of notice of the date set for trial,

whichever is later. Failure to demand a jury trial as provided in this

subdivision is a complete waiver of the right thereto.

{¶ 21} A “serious offense” is defined in Crim.R. 2(C) as “any felony, and any

misdemeanor for which the penalty prescribed by law includes confinement for more than

six months.” Therefore, in order to comply with Crim.R. 23(A), Shoecraft had to

knowingly, intelligently, and voluntarily waive his right to a jury trial in writing. To meet

this requirement, “some type of colloquy must occur between the defendant and the trial -11-

court.” State v. Bell, 2d Dist. Greene No. 2017-CA-8,

, citing State

v. Anderson, 1st Dist. Hamilton No. C-070098,

.

{¶ 22} As the Supreme Court of Ohio has indicated:

* * * A written jury waiver is “presumptively voluntary, knowing, and

intelligent.” State v. Fitzpatrick,

,

,

, ¶ 37. Only a “plain showing that the defendant's waiver was

not freely and intelligently made” will rebut that presumption.

citing

Adams v. United States ex rel. McCann, [317] U.S. 269,

,

(1942).

State v. Montgomery,

,

,

.

{¶ 23} On July 19, 2017, a hearing was held before the trial court during which the

following exchange occurred:

Trial Court: * * * This is actually assigned to Judge Krumholtz. 1 Judge

Krumholtz asked me to take care of a couple of matters here one being a

waiver of jury in this case; is that correct, [Defense Counsel]?

Defense Counsel: Yes, Your Honor.

Trial Court: All right. Mr. Shoecraft, let me go over a couple [of] things here

with you, sir. It’s my understanding in speaking with your counsel that you

wish to withdraw your demand for a jury trial in this and proceed to have this

matter resolved to the Court or to the Bench; is that your desire?

Shoecraft: Yes, sir.

1 Montgomery County Common Pleas Court Judge Dennis J. Adkins presided over Shoecraft’s jury waiver hearing while Judge Michael W. Krumholtz presided over the bench trial. -12-

Trial Court: And you understand that all issues will be decided by the judge

including issues of fact and law and sentencing, it’ll all [be] the same person.

You understand that[?]

Shoecraft: Yes, sir.

Trial Court: Have you had the opportunity to speak with [defense counsel]

about that decision?

Shoecraft: Yes, sir.

Trial Court: Is there anything, at all, about the waiver of jury form that you

have in front of you that you have any questions about?

Shoecraft: No, sir.

Trial Court: Okay. Sir, if that is your desire to waive your jury in this case,

I need you to sign that form here in open court, please.

Defense Counsel: He has signed the form, Your Honor.

The State: And just for the record. It’s the State’s understanding its [sic]

goes to all the counts in the indictment and all specifications.

Trial Court: Do you understand that, Mr. Shoecraft?

Shoecraft: Yes, Your Honor.

Trial Court: It goes to all issues.

(Counsel confers with Defendant)

Defense Counsel: Yes, he understands, Your Honor.

Trial Court: Is that correct, Mr. Shoecraft?

Shoecraft: Yes.

Trial Court: Okay. The Court finds that the defendant knowingly, -13-

intelligently and voluntarily waived his right to a jury trial in this matter,

signing the form in open court. The Court has signed the form and I’ll order

that to be filed. * * *

Jury Waiver Hearing Tr. 3-4.

{¶ 24} The jury waiver form signed by Shoecraft also stated:

I hereby voluntarily waive and relinquish my right to a trial by jury, and elect

to be tried by a Judge of this Court. I have had an opportunity to consult

with my attorney. I fully understand that under the laws of this Ohio and of

the United States, I have a constitutional right to a trial by jury.

{¶ 25} Shoecraft argues that the record establishes that he “was not sufficiently

apprised of how his guilt could have been decided.” Shoecraft contends that neither the

written jury waiver nor the record establishes that he was aware of the jury process,

namely that his guilt would be decided by 12 jurors, that he could participate in the

selection of the jurors, and that the verdict must be unanimous. In support of his

argument, Shoecraft relies on language from the Sixth Circuit Court of Appeals in United

States v. Martin,

(6th Cir. 1983), stating that “[a] defendant is sufficiently

informed to make an intelligent waiver if he was aware that a jury is composed of 12

members of the community, he may participate in the selection of the jurors, the verdict

of the jury must be unanimous, and that a judge alone will decide guilt or innocence should

he waive his jury trial right.”

.

{¶ 26} However, we note that the Sixth Circuit went on to hold that while

“[k]nowledge of these essential attributes is generally sufficient to enable a defendant to

make a knowing and intelligent decision,”

a defendant's knowledge of these elements -14-

is not “constitutionally required.” United States v. Sammons,

(6th

Cir. 1990). Rather, the dispositive inquiry is whether the defendant “ ‘understood that the

choice confronting him was, on the one hand, to be judged by a group of people from the

community, and on the other hand, to have his guilt or innocence determined by a judge.’ ”

Sowell v. Bradshaw,

(6th Cir. 2004), quoting

.

{¶ 27} Upon review, we conclude that the jury-waiver requirements in R.C.

2945.05 and Crim.R. 23(A) were satisfied in this case. The jury waiver was made in

open court, and Shoecraft signed a jury waiver form indicating that he “fully” understood

that he had a constitutional right to a jury trial. “There is no requirement for a trial court

to interrogate a defendant in order to determine whether he or she is fully apprised of the

right to a jury trial.” State v. Jells,

,

(1990), paragraph

one of the syllabus, citing CrimR. 23(A) and R.C. 2945.05; accord Spytma v. Howes,

(6th Cir. 2002) (colloquy not constitutionally required). “The Criminal

Rules and the Revised Code are satisfied by a written waiver, signed by the defendant,

filed with the court, and made in open court, after arraignment and opportunity to consult

with counsel.” Jells at 26. Therefore, on the record before us, Shoecraft has failed to

establish that he did not waive his right to jury trial in a knowing, intelligent, and voluntary

fashion.

{¶ 28} Shoecraft’s first assignment of error is overruled.

{¶ 29} Shoecraft’s second assignment of error is as follows:

THE TRIAL COURT ERRED BY REJECTING SHOECRAFT’S

AFFIRMATIVE DEFENSES OF SELF-DEFENSE AND DEFENSE OF

ANOTHER. -15-

{¶ 30} In his second assignment, Shoecraft argues that the trial court erred when

it rejected his affirmative defenses of self-defense and defense of another. Although

Shoecraft phrases his argument in terms of whether the evidence was sufficient to prove

he acted in self-defense and defense of another when he shot and killed Raglin, he is

actually arguing that the trial court’s decision to reject his affirmative defenses was against

the manifest weight of the evidence.

{¶ 31} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “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,

,

(1997). A

judgment should be reversed as being against the manifest weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin,

,

(1st Dist. 1983).

{¶ 32} This court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03,

(Oct. 24, 1997), citing State v. Thompkins,

,

(1997).

{¶ 33} “Self-defense is an affirmative defense which the accused has the burden

to prove by a preponderance of the evidence. R.C. 2901.05(A)[.] * * * ‘In order to establish

self-defense, a defendant must prove: (1) that the defendant was not at fault in creating -16-

the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he

was in imminent danger of death or great bodily harm and that his only means of escape

from such danger was in the use of such force; and (3) that the defendant did not violate

any duty to retreat or avoid the danger.’ * * * ” (Citations omitted). State v. Kleekamp, 2d

Dist. Montgomery No. 23533,

, ¶ 52.

{¶ 34} “The affirmative defense of defense of another is a variation of self-defense.

* * * Under certain circumstances, a person may be justified in using force to defend

another person against an assault. However, the actor then stands in the shoes of the

person he aids, and if the person aided is the one at fault in creating the affray, the actor

is not justified in his use of force. * * * One who acts in defense of another must meet the

criteria for self-defense.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 38, quoting State v. Moss, 10th Dist. Franklin No. 05AP-610,

.

{¶ 35} In the instant case, the record establishes that, at the time Raglin attempted

to drive away with the methamphetamine without paying, Shoecraft and Glenn were

standing along the driver’s side of the vehicle. Shoecraft stood on the street partially

inside the open driver’s door next to Raglin, and Glenn stood on the driver’s side of the

vehicle in the area near the front wheel. No one was standing in front of the vehicle when

Raglin began to accelerate out of the parking spot. Shoecraft argued at trial that he

acted in self-defense and in defense of another because he believed that he and Glenn

were in danger of being run over by Raglin and killed.

{¶ 36} Upon review, we conclude that the trial court did not err when it rejected

Shoecraft’s affirmative defenses of self-defense and defense of another. Here, the trial -17-

court could have reasonably found that neither Shoecraft nor Glenn was ever in imminent

danger of death or great bodily harm. By their own admission at trial, Shoecraft and

Glenn were standing along the driver’s side of the vehicle when Raglin attempted to drive

away. Raglin was not driving towards the two men. Rather, Raglin was driving away

from Shoecraft and Glenn. Although Raglin turned the steering wheel hard to the left in

order to exit the parallel parking space, Shoecraft and Glenn were never in position where

the vehicle could have run them over.

{¶ 37} The evidence adduced at trial also failed to establish that Shoecraft had an

objectively reasonable belief that using deadly force was the only means of escaping the

questionable danger posed by Raglin attempting to drive away from the men. Glenn

testified that after being “nudged” out of the way by Shoecraft, he was able to safely run

away. As previously stated, Shoecraft admitted during his testimony that he could have

run away from the scene to avoid any danger, but he chose to stand and fire his weapon

at Raglin’s vehicle. Additionally, the bullet that hit Raglin in the back of the neck and

ultimately killed him was apparently fired by Shoecraft through the rear windshield of the

vehicle. At this point, Shoecraft was ostensibly well behind the vehicle and in no danger

of being hit.

{¶ 38} In State v. Salyers, 2d Dist. Montgomery No. 20695,

, we

observed that the evidence established that the defendant shot the victim in the back.

We held that “[s]uch evidence negates the theory of self-defense.” Here, the factfinder

could have reasonably concluded that Shoecraft shot Raglin in the back of the neck as

Raglin was driving away, which was clearly not indicative of self-defense. Moreover,

Shoecraft fired at Raglin’s vehicle at least seven times, supporting a finding that Shoecraft -18-

was not acting in self-defense or in defense of Glenn, but rather retaliating against Raglin

for stealing the methamphetamine. Accordingly, the trial court did not err when it

rejected Shoecraft’s affirmative defenses of self-defense and defense of another.

{¶ 39} Shoecraft’s second assignment of error is overruled.

{¶ 40} Shoecraft’s third assignment of error is as follows:

THE TRIAL COUURT ERRED WHEN IT REJECTED VOLUNTARY

MANSLAUGHTER, AN INFERIOR DEGREE OF THE OFFENSE OF

MURDER.

{¶ 41} In his third assignment, Shoecraft contends that the trial court erred when it

failed to find him guilty of voluntary manslaughter, an inferior degree of the offense of

murder.

{¶ 42} Initially we note that during his closing argument, defense counsel

seemingly misspoke when he ended his closing argument with a suggestion that the facts

constituted “involuntary manslaughter.” Specifically, defense counsel stated as follows:

* * * There’s a car being driven directly at you about to run you down. I

don’t know how that could not be a cause of sudden passion. I don’t know

how that could not be serious provocation reasonably sufficient to incite

Shoecraft into using deadly force. If he’s not acquitted by self-defense, the

murder charge needs to involuntary manslaughter. * * *

{¶ 43} The language utilized by defense counsel, specifically his suggestion

regarding “serious provocation reasonably sufficient to incite Shoecraft into using deadly

force,” establishes that defense counsel apparently intended to ask the trial court to

consider voluntary manslaughter, rather than involuntary manslaughter. Thus, the trial -19-

court, in its verdict, correctly analyzed the offense of voluntary manslaughter, not

involuntary manslaughter.

{¶ 44} “In a proper case, a jury may consider, in addition to the offense actually

indicted, inferior degrees of the indicted offense.” State v. Beatty-Jones, 2d Dist.

Montgomery No. 24245,

, citing State v. Deem,

,

(1988), paragraph one of the syllabus. “An offense is of an inferior

degree if its elements are ‘identical to or contained within the indicted offense, except for

one or more additional mitigating elements.’ ”

quoting Deem at paragraph two of the

syllabus.

{¶ 45} Murder requires an offender to “purposely cause the death of another * * *.”

R.C. 2903.02(A). Voluntary manslaughter requires an offender to knowingly cause the

death of another while “under the influence of sudden passion or in a sudden fit of rage,

either of which is brought on by serious provocation occasioned by the victim that is

reasonably sufficient to incite the person into using deadly force * * *.” R.C. 2903.03(A).

Because “its elements are * * * contained within the indicted offense, except for one or

more additional mitigating elements [,]” voluntary manslaughter is not a lesser-included

offense of murder.

; State v. Shane,

,

(1992). Instead, voluntary manslaughter is an inferior degree of murder.

.

{¶ 46} The analysis of voluntary manslaughter's mitigating element asks first an

objective question and second a subjective question. The objective question is whether

the victim's provocation was “ ‘sufficient to arouse the passion of an ordinary person

beyond the power of his or her control,’ ”

. “or described differently, whether

the provocation was ‘reasonably sufficient to bring on extreme stress and * * * to incite or -20-

arouse the defendant into using deadly force,’ ” Deem at paragraph five of the syllabus.

The subjective question is “whether this particular defendant was in fact acting under a

sudden passion or in fit of rage.” (Citation omitted.)

We have said that, “[w]hen

analyzing the subjective prong of the test, ‘evidence supporting the privilege of self-

defense, i.e., that the defendant feared for his own personal safety, does not constitute

sudden passion or fit of rage.’ ” State v. Harding, 2d Dist. Montgomery No. 24062, 2011-

Ohio-2823, ¶ 43, quoting State v. Stewart, 10th Dist. Franklin No. 10AP-526, 201[1]-Ohio-

466, ¶ 13; see also State v. Mack,

,

(1998) (“Fear

alone is insufficient to demonstrate the kind of emotional state necessary to constitute

sudden passion or fit of rage.”).

{¶ 47} In the instant case, the trial court declined to find Shoecraft guilty of

voluntary manslaughter instead of murder because there was no evidence of provocation

reasonably sufficient to bring on extreme stress and to incite or arouse Shoecraft into

using deadly force against Raglin. The trial court found that Raglin’s act of driving the

car away while Shoecraft was standing inside the driver’s side door touching the side of

the car was not reasonably sufficient to incite the use of deadly force. As previously

stated in our analysis of the second assignment, the evidence adduced at trial established

that Raglin was attempting to drive away from Shoecraft and Glenn when he was shot.

Raglin was not attempting to hit the two men with his vehicle.

{¶ 48} Furthermore, even if we were to assume serious provocation (an

assumption without evidentiary support), Shoecraft testified that he acted out of fear when

he decided to shoot at Raglin’s vehicle:

Defense Counsel: Okay. Now I want you to tell the Court what you felt -21-

when that car came toward you.

Shoecraft: I felt like I was going to be run over. * * * [S]o I instantly feared

like I was going to be killed.

Tr. 382. At trial, Shoecraft consistently testified that he shot at Raglin’s vehicle because

he was afraid. Nothing in Shoecraft’s testimony about what Raglin did by driving away

would lead a reasonable fact finder to believe that when he shot Raglin, Shoecraft was

under the influence of a sudden passion or fit of rage. Thus, the trial court properly

refused to find Shoecraft guilty of the inferior degree offense of voluntary manslaughter.

See Beatty-Jones, 2d Dist. Montgomery No. 24245,

(concluding

the same where the defendant's testimony showed that he shot the victims out of fear,

not under a sudden passion or in fit of rage); see also State v. Stargell,

,

(2d Dist.) (trial court rejected jury instruction for voluntary

manslaughter where the defendant testified that he shot the victim because he was afraid,

not because he was under the influence of a sudden passion or fit of rage).

{¶ 49} Shoecraft’s third assignment of error is overruled.

{¶ 50} Shoecraft’s fourth assignment of error is as follows:

THE TRIAL COUR ERRED WHEN IT SENTENCED SHOECRAFT TO ALL

HIS OFFENSES WHEN THEY ARE ALLIED OFFENSES OF SIMILAR

IMPORT.

{¶ 51} In his fourth assignment, Shoecraft argues that the trial court erred when it

failed to merge his convictions for murder (Raglin), felonious assault (Houchins), carrying

a concealed weapon, discharge of firearm on or near prohibited premises, having a

weapon while under disability, and trafficking in drugs. We note that the trial court did -22-

merge the multiple murder and felonious assault convictions related to Raglin.

{¶ 52} R.C. 2941.25, Ohio's allied offense statute, provides that:

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 53} The Ohio Supreme Court clarified the applicable standard when

determining whether offenses merge as allied offenses of similar import. State v. Ruff,

,

,

.

Rather than compare the elements of two offenses to determine

whether they are allied offenses of similar import, the analysis must focus

on the defendant's conduct to determine whether one or more convictions

may result, because an offense may be committed in a variety of ways and

the offenses committed may have different import. No bright-line rule can

govern every situation.

As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must

ask three questions when the defendant's conduct supports multiple -23-

offenses: (1) Were the offenses dissimilar in import or significance? (2)

Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above

will permit separate convictions. The conduct, the animus, and the import

must all be considered.

Ruff at ¶ 30-31.

{¶ 54} In State v. Wood, 2d Dist. Montgomery No. 26134,

, we

stated the following:

[T]he Ohio Supreme Court addressed the allied-offense issue again

in State v. Earley, [

,

,

].

There the majority characterized the analysis in its earlier [State v.]

Johnson[,

,

,

] lead

opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead

embraced Ruff, which, as noted above, considers a defendant's conduct,

his animus, and the import or significance of his offenses. Applying Ruff,

the Earley court concluded that misdemeanor OVI and felony aggravated

vehicular assault “are offenses of dissimilar import and significance that are

to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis

here, we note that a defendant bears the burden of establishing entitlement

to merger, and we review a trial court's ruling on the issue de novo. State v.

LeGrant, 2d Dist. Miami No. 2013-CA-44,

.

***

We reach the same conclusion under the Ruff standard, which the -24-

Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters

or undermines the foregoing analysis about McGail's commission of murder

and aggravated robbery involving the same conduct committed with the

same animus. For the reasons set forth above, we conclude that the two

offenses were not committed separately and were not committed with a

separate animus or motivation. These findings remain pertinent under

Ruff, which, as noted above, provides that offenses do not merge if “(1) the

offenses are dissimilar in import or significance—in other words, each

offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate

animus or motivation.” Ruff at ¶ 25 [and] ¶ 30-31.

Wood at ¶ 54, quoting State v. McGail,

,

, ¶ 51, 60 (2d

Dist.).

{¶ 55} An appellate court applies a de novo standard of review in reviewing a trial

court's R.C. 2941.25 merger determination. State v. Williams,

, 2012-

Ohio-5699,

. “The defendant bears the burden of establishing his

entitlement to the protection provided by R.C. 2941.25 against multiple punishments for

a single criminal act.” State v. Washington,

,

,

, ¶ 18.

{¶ 56} Initially, we note that Shoecraft has waived all but plain error by failing to

object to the failure of the trial court to merge his convictions at his sentencing hearing.

See State v. Rogers, 2d Dist. Greene No. 2011 CA 0057,

.

However, failure to merge allied offenses of similar import is plain error.

In order to -25-

prevail under the plain error standard, an appellant must demonstrate both that there was

an obvious error in the proceedings and that but for the error, the outcome of the trial

clearly would have been otherwise.

citing State v. Noling,

, 2002-

Ohio-7044,

.

{¶ 57} As previously stated, the trial court imposed sentence on Shoecraft for six

counts. With respect to Shoecraft’s convictions for felony murder of Raglin, felonious

assault of Houchins, and discharge of a firearm on or near prohibited premises, we find

that these offenses were not subject to merger. First of all, the felony murder count and

the felonious assault count did not merge because the counts involved different victims.

Shoecraft committed the felony murder against Raglin, while the felonious assault count

identified Houchins as the victim.

{¶ 58} Furthermore, we recently held in State v. Williams, 2d Dist. Montgomery No.

27663,

, that a trial court did not commit plain error when it failed to merge

convictions for discharge of a firearm on or near prohibited premises with felony murder

and/or felonious assault.

Williams was convicted and sentenced on one count of murder for causing

Terion Dixon's death as a proximate result of committing felonious assault.

He also was convicted and sentenced on one count of discharging a firearm

on or near prohibited premises in violation of R.C. 2923.162(A)(3), which

provides: “No person shall do any of the following: * * * Discharge a firearm

upon or over a public road or highway.” Notably, “[t]he victim of the offense

of discharging a firearm upon or over a public road or highway is the public.

This is because it is the act itself that is prohibited. The offense can be -26-

completed with no one remotely near the location where the firearm is

discharged upon or over the public road or highway. R.C. 2923.162(A)(3) is

a statute intended to benefit the public good[.]” State v. James, 2015-Ohio-

4987,

(8th Dist.), ¶ 33; see also State v. Carzelle, 8th Dist.

Cuyahoga No. 105425,

(applying James). Although

Williams actually shot and killed Dixon, his act of firing a handgun across

the roadway itself violated the statute, placed numerous people at risk, and

harmed the public at large. Conversely, his murder conviction required

harm to a particular victim and differed in the significance and the nature of

the harm it addressed. At a minimum, we believe the offenses at issue are

dissimilar enough to preclude a finding of plain error. Accordingly, the third

assignment of error is overruled.

(Emphasis added.) Id. at ¶ 24.

{¶ 59} We also find that Shoecraft’s convictions for having a weapon while under

disability and carrying a concealed weapon were not subject to merger because the

offenses were committed separately. “The intent, or animus, necessary to commit the

crime of carrying a concealed weapon, is to carry or conceal, on the person or ready at

hand, a deadly weapon or dangerous ordnance. The gist of the offense is concealment;

* * * The gravamen of the offense of having a weapon while under disability, is to

‘knowingly * * * acquire, have, carry, or use,’ a weapon while under a legal disability. It

may be concluded that there is a difference in the mental state required for both crimes

* * *.” State v. Young, 2d Dist. Montgomery No. 23642,

, ¶ 48, citing State

v. Nieto,

, 426-427,

(1920). -27-

{¶ 60} Shoecraft, a person under disability, necessarily acquired a handgun

sometime before concealing it on his person. Young at ¶ 49. Thus, the elements of proof

for having a weapon while under disability were satisfied when Shoecraft acquired the

firearm.

Shoecraft’s subsequent conduct of concealing the handgun in his jacket

pocket constituted a separate and distinct act from initially acquiring the weapon.

Therefore, Shoecraft’s convictions for having a weapon while under disability and carrying

a concealed weapon were not subject to merger.

{¶ 61} Moreover, Shoecraft’s convictions for having a weapon while under

disability and carrying a concealed weapon were not subject to merger with his

convictions for felony murder, felonious assault (Houchins), and discharge of a firearm on

or near prohibited premises. In order to fire his gun, Shoecraft had to first remove it from

his jacket pocket, thereby rendering the weapon visible and not concealed. Additionally,

Shoecraft did not acquire or possess the firearm with the immediate intent of committing

the murder, felonious assault and/or discharge of a firearm on or near prohibited

premises. See State v. Grissom, 2d Dist. Montgomery No. 25750,

(finding a separate animus because the record was “devoid of any evidence establishing

that [the appellant] acquired the gun with an immediate intent to fire at [the victim] and

that he had no other reason for acquiring the gun”); compare State v. Fairman, 2d Dist.

Montgomery No. 24299,

(finding “the crimes were not committed

separately or with a separate animus because the evidence shows that [the appellant]

obtained the gun with the immediate intent of shooting [the victim]; he had no separate

animus in acquiring possession of the gun”).

{¶ 62} Finally, Shoecraft’s conviction for drug trafficking was also not subject to -28-

merger with any of his other convictions because it was committed separately and

constitutes a separately identifiable harm. By the time Shoecraft decided to pull out his

gun and start firing, he had already given Raglin the bag of methamphetamine.

Furthermore, drug trafficking clearly involves a separate and identifiable harm from

offenses stemming from an individual possessing and firing a gun at an occupied vehicle

on a public street.

{¶ 63} Therefore, we find that the trial court did not err when it did not merge

Shoecraft’s convictions for murder (Raglin), felonious assault (Houchins), carrying a

concealed weapon, discharge of firearm on or near prohibited premises, having a weapon

while under disability, and trafficking in drugs, because these offenses were not allied

offenses of similar import.

{¶ 64} Shoecraft’s fourth assignment of error is overruled.

{¶ 65} Shoecraft’s fifth and final assignment of error is as follows:

SHOECRAFT’S CONVICTION FOR FELONIOUS ASSAULT AGAINST

HOUCHINS IS NOT SUPPORTED BY SUFFICIENT EVIDENCE, NOR

SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 66} In his final assignment, Shoecraft argues that his conviction for felonious

assault against Houchins was not supported by sufficient evidence and was against the

manifest weight of the evidence.

{¶ 67} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing 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.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA -29-

99,

.

{¶ 68} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight,

, 2005-Ohio-

6046,

. A claim that a verdict was against the manifest weight of

the evidence involves a different test. “ ‘The court, reviewing the entire record, weighs

the evidence and all reasonable inferences, considers the credibility of 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. The discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.’ ” Id. at ¶ 71, citing Thompkins,

,

.

{¶ 69} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997).

{¶ 70} This court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. Bradley, 2d Dist. Champaign No. 97-CA-03,

. -30-

{¶ 71} In the instant case, the State was required to prove each and every element

of the felonious assault of Houchins with a deadly weapon, pursuant to R.C.

2903.11(A)(2), which states in pertinent part:

(A) No person shall knowingly: * * * (2) [c]ause or attempt to cause physical

harm to another * * * by means of a deadly weapon * * *.

{¶ 72} R.C. 2901.22(B) defines “knowingly” as follows:

A person acts knowingly, regardless of his purpose, when he is aware that

his conduct will probably cause a certain result or will probably be of a

certain nature.

{¶ 73} “Deadly weapon” is defined in R.C. 2923.11(A) as follows:

Deadly weapon means any instrument, device, or thing capable of inflicting

death, and designed or specially adapted for use as a weapon, or

possessed, carried, or used as a weapon.

{¶ 74} In the instant case, Shoecraft testified that he observed Houchins sitting in

the front passenger seat of Raglin’s vehicle. As Raglin drove away without paying for

the methamphetamine, Shoecraft fired at least seven shots from a handgun at Raglin’s

vehicle. However, Shoecraft argues that because he only intended to shoot at Raglin,

he could not be convicted for felonious assault against Houchins.

{¶ 75} “[W]hen an offense is defined in terms of conduct towards another, then

there is a dissimilar import for each person affected by the conduct.” State v. Snowden,

2d Dist. Montgomery No. 17785,

(January 14, 2000), citing State v.

Phillips,

,

(2d Dist. 1991). In Phillips, the

defendant was convicted of five counts of felonious assault for injuring multiple victims in -31-

a drive-by shooting. On appeal, we rejected his argument that the crimes were allied

offenses of similar import. We stated that, because R.C. 2903.11(A)(2) defines felonious

assault “in terms of the harm, or potential harm, visited upon another, there exists a

separate, and dissimilar import with respect to each person subject to that harm or risk of

harm.”

.

{¶ 76} As in the Phillips case, we apply the specific definition of felonious assault

as being directed to “another,” thus potentially encompassing both of the occupants in the

car, Raglin and Houchins. Furthermore, it is reasonable to assume that one who fires

multiple shots from a gun into a moving car with two occupants knows that there is a

“significant possibility” that more than one person could suffer physical harm as a result

of his conduct. Even if Shoecraft’s stated intent was to shoot only Raglin, given

Houchins’s close proximity to Raglin inside the front passenger compartment of the

vehicle, it was not unreasonable for the trial court to conclude that Shoecraft’s conduct

also constituted an attempt to cause physical harm to Houchins by means of a deadly

weapon. Accordingly, Shoecraft’s conviction for felonious assault against Houchins was

supported by sufficient evidence and was not against the manifest weight of the evidence.

{¶ 77} Shoecraft’s fifth and final assignment of error is overruled.

{¶ 78} All of Shoecraft’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

.............

WELBAUM, P. J. and TUCKER, J., concur. -32-

Copies mailed to:

Mathias H. Heck, Jr. Michael J. Scarpelli Ben M. Swift Hon. Michael W. Krumholtz