[Cite as State v. Allen,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1191

Appellee Trial Court No. CR0201801184

v.

Lavelle Allen aka Lavell Allen DECISION AND JUDGMENT

Appellant Decided: September 18, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

*****

SINGER, J.

{¶ 1} This is an appeal by appellant, Lavelle Allen, from the September 11, 2018

judgment of the Lucas County Court of Common Pleas, after he was found guilty of two

counts of murder, each with a firearm specification. At sentencing, the convictions

merged, and appellant was sentenced to 15 years to life in prison for the murder conviction, and three years mandatory actual consecutive incarceration for the firearm

specification. For the reasons that follow, we affirm the trial court’s judgment.

Appellant sets forth two assignments of error:

I. The trial court abused its discretion in denying appellant’s request

for a jury instruction on the lesser included offense of voluntary

manslaughter.

II. The jury’s verdict was against the manifest weight of the

evidence presented at trial.

Facts

{¶ 2} On January 18, 2018, appellant and some acquaintances were socializing,

drinking and smoking in appellant’s apartment at Moody Manor. A fight occurred

between appellant and Larry “Rocky” Pendleton, and appellant shot and killed Rocky.

{¶ 3} On January 29, 2018, appellant was indicted on two counts of murder in

violation of R.C. 2903.02(A), unclassified felonies. Each count included a firearm

specification pursuant to R.C. 2941.145. Appellant pled not guilty.

{¶ 4} A jury trial commenced on August 27, 2018. After the presentation of

testimony, evidence and arguments, the court gave the jury instructions, which included

an instruction on self-defense. On August 31, 2018, the jury found appellant guilty, and

on September 5, 2018, appellant was sentenced to prison. Appellant timely appealed.

2. Trial

{¶ 5} At trial, the state presented the testimony of several witnesses; we will refer

to some of the witnesses by their first names. Appellant testified in his own behalf. The

relevant testimony is summarized below.

Myisha Neal

{¶ 6} Myisha testified she lived in Moody Manor on January 18, 2018, and knew

appellant and Rocky because they used to hang out, along with Tyrone Jones. Rocky

lived in Moody Manor in a basement apartment with his girlfriend, Peaches. Appellant

also lived in Moody Manor, on the second floor, in apartment 313, which was in the same

building as Rocky. Myisha lived across the parking lot from that building.

{¶ 7} Myisha knew appellant as James, and described him as the young kid in the

crowd who was easily influenced. She was closer with Rocky than everybody else

because they saw each other almost every day and he helped her by picking up her

children at school. She described Rocky as a giving person, a great dad and helpful to

others. She saw appellant and Rocky together at least every other day. Myisha, appellant

and Rocky smoked weed together and appellant and Rocky drank beer almost every day

for a time as none of them were working. She observed bickering between appellant and

Rocky when they were drinking beer but never saw the men fight. Myisha never saw

Rocky with a gun, nor did she see Tyrone with a gun, but did see appellant with an older

gun.

3. {¶ 8} Myisha testified Tyrone was 47 years old at the time of the shooting, and he

was at the Moody Manor apartment with his girlfriend, Brittany, every night and day, but

he did not spend the night because he had a wife who he would go home to. Brittany’s

apartment was directly below appellant’s apartment. Tyrone was the big man on campus,

a leader, bully and drug dealer, but he did not sell marijuana. Tyrone bought the beer, so

everyone would tag along and follow him. Tyrone was an alcoholic who sat around all

day drinking; he did not smoke marijuana. Myisha and Tyrone were “secretly texting

and everything,” but did not have a physical relationship.

{¶ 9} Myisha testified Rocky was hurt on the job and could not work. Rocky was

different from Tyrone and appellant because Rocky wanted to work, so drinking all day

was a temporary thing for Rocky.

{¶ 10} Myisha remembered January 18, 2018. Her children were with their father,

so she cooked earlier in the day. Later in the day, she saw Tyrone and Rocky come out

of appellant’s apartment; they were going to get beer. Tyrone and Rocky were talking

about appellant acting funny because appellant just got his first paycheck. Myisha

invited Tyrone and Rocky to come to her apartment after they got beer, instead of going

back to appellant’s apartment. Tyrone said his girlfriend would not allow it. Tyrone also

did not want Myisha to go up to appellant’s apartment because his girlfriend would be

able to hear Myisha. Rocky invited Myisha to come up to appellant’s apartment to

smoke a blunt; Myisha went to appellant’s apartment. Appellant supplied the marijuana

4. that night. Myisha was not intoxicated as she smoked one blunt; she had been smoking

marijuana since she was 15 years old.

{¶ 11} Myisha testified appellant was sitting on the couch, but Rocky refused to

sit, saying he did not want to sit down. Appellant asked Rocky to sit down because

Rocky was making appellant nervous. Although not a topic of conversation that night,

Moody Manor had an infestation of bed bugs and Myisha said Rocky had stated before

that he would not sit on people’s furniture because of bed bugs. A petty argument started

when Rocky said appellant used to smoke with him, but now appellant was going to

smoke with everyone else because appellant has a check.

{¶ 12} Myisha recalled that appellant left his apartment to get cigarettes, and when

he returned, the argument between appellant and Rocky changed. Appellant accused

Rocky of peeing on his toilet seat one night when Rocky was drunk, which Rocky

denied, and the argument continued back and forth. Myisha said it was one petty

argument after the other with the two men, and while they argued, she and Tyrone flirted

with each other and laughed at appellant and Rocky. The argument lasted for about 10-

15 minutes, and “never got vicious, like I’ll beat you up. * * * it stayed just a regular

argument. It’s just now they were face-to-face. * * * They’re right in each other’s face.”

By this time, the men were in the front room of the apartment.

{¶ 13} Myisha testified that as the men argued, appellant pulled his hands out of

his pockets, and had brass knuckles on the fist of his one hand, and “he just takes off on

Rocky’s face and hitting him over and over again * * * Rocky didn’t know what was

5. coming.” Glasses started breaking and the two men “fell all over.” The men were now

in the kitchen and Myisha was by the couch near the window. She told Tyrone that he

had to break up the fight, so Tyrone grabbed appellant, and Rocky started hitting back.

Myisha described Rocky as bleeding and his face was messed up, but he was still

standing. Myisha said Rocky did not have brass knuckles at any time during the fight.

{¶ 14} Myisha testified when Tyrone separated the two men, Tyrone pushed

Rocky by the front door and appellant by the bathroom in the hallway. Rocky was

sideways in the corner and Tyrone was reaching for the doorknob to open the door so he

and Rocky could get out of the apartment. Appellant then “pulls out the gun. Pow, pow,

pow, pow.” Myisha heard five gunshots. Appellant was the only person with a gun, and

Rocky and appellant did not wrestle for the gun, according to Myisha.

{¶ 15} Myisha saw Rocky’s body slide down into the corner, and she heard him

say to Tyrone, “T, T, help me.” Rocky’s eyes rolled back in his head, Tyrone set Rocky

down, because Tyrone had Rocky’s arm, and Tyrone ran out of the apartment. Myisha

followed because she thought appellant was going to shoot her and Tyrone in their backs.

They ran into Tyrone’s girlfriend, who was coming up the steps. Myisha called 911

while she was looking for Peaches’ apartment. Myisha found Peaches’ apartment and

told her that appellant shot Rocky.

{¶ 16} The last time Myisha saw the gun, it was in appellant’s hand, and no one

entered his apartment while they were waiting for the police. The ambulance and

6. detective arrived, and Myisha saw Rocky’s body being brought down, and she knew he

was gone. A detective took Myisha to the Safety Building.

Bradley Knapp

{¶ 17} Officer Knapp, of the Toledo Police Department, testified he was working

the late shift on January 18, 2018, with his partner, Officer Adam Hobbs. At about 1:00

a.m., they were dispatched to Moody Manor to investigate a homicide. Officer Knapp

was wearing a body camera, which was operational. The officers responded to apartment

313, found the door ajar, and announced themselves. Officer Knapp observed

movements in the apartment so he tried to push the door open but it would not open all of

the way and kept coming back at the officers. Finally the door was opened and Officer

Knapp, covered by his partner, entered the apartment and encountered a man, with his

hands up. Officer Knapp pulled the man out of the apartment and handcuffed him. The

officer identified appellant as that man.

{¶ 18} While in the hallway, Officer Knapp noticed appellant was sweaty, and

appellant mentioned he was in a fight and said it was “his gun.” Officer Knapp

understood appellant to mean the gun belonged to the decedent.

{¶ 19} After back-up crews arrived, Officers Knapp and Hobbs entered appellant’s

apartment and found the decedent propped up against the door, leaning on it. The

apartment was clear, no one else was inside. Officer Knapp noticed gunshot wounds to

the decedent’s chest. The officer was present when the decedent was pronounced dead.

Officer Knapp learned the decedent was Larry Pendleton (Rocky).

7. {¶ 20} Officers Knapp and Hobbs were assigned to keep watch on appellant, and

were then ordered to transport appellant to the detective bureau in the Safety Building.

Prior to going downtown, Officer Knapp located brass knuckles on appellant, which were

silver.

{¶ 21} Officer Knapp escorted appellant from the third floor of the apartment

building, out the back door and down the sidewalk, where people had gathered including

Rocky’s girlfriend. Appellant said, “I’m sorry, Peaches, he had to go.”

Anthony Wrozek

{¶ 22} Officer Wrozek, of the Toledo Police Department, testified he was working

on January 18, 2018, with his partner, Officer George Stauch. Right around 1:00 a.m.,

they received a call to assist with an investigation at the Moody Manor. They were the

second or third unit on the scene, and Officers Knapp and Hobbs were placing someone

in custody outside of apartment 313. Officer Wrozek and his partner helped to clear the

apartment, finding only the decedent in the apartment.

{¶ 23} Officer Wrozek went down the stairs and outside to make sure nobody

came into the building. There was a crowd of people, and the officer asked if anyone was

inside when the event occurred. Four or five people pointed to a man who was walking

away. Officer Wrozek walked towards the man, and said he wanted to talk. The man

was walking briskly, but eventually stopped. Officer Wrozek asked the man if he had

been inside when the event occurred; the man said no. The officer asked the man for his

identification, then patted him down for weapons; none were found. The man produced

8. his identification; it was Tyrone Jones. Tyrone then admitted to being inside when it

happened. While outside, the officer did not conduct a search, but he scanned the area,

and did not notice any weapons on the ground.

{¶ 24} Officer Wrozek walked Tyrone to the police car and placed him in the

backseat. The officer contacted Sergeant Noonan, who commanded Officer Wrozek to

bring Tyrone to the Safety Building to be interviewed; the officer complied.

George Stauch

{¶ 25} Officer Stauch, of the Toledo Police Department, testified he was working

on January 18, 2018, with his partner, Officer Wrozek. They were dispatched around

1:00 a.m., to Moody Manor for a person shot, and were the second crew to respond.

They went up to the third floor, where a person was detained in the hallway by the crew

that was already there.

{¶ 26} Officer Stauch and his partner entered apartment 313, and had to push the

door pretty hard to get inside; a body was against the door. They secured the apartment,

after finding no one there, other than the decedent. Officer Stauch did a cursory look for

a weapon, but found none. They then canvassed for witnesses, and began knocking on

doors. Officer Stauch recalled someone saying the weapon may be in the basement, so

he and Officer Wrozek headed downstairs.

{¶ 27} Officer Stauch testified a woman stuck her head out, and said she was in

the apartment at the time of the shooting; it was Myisha Neal. Myisha was in Crystal

Robinson’s apartment. Officer Stauch stopped to talk with Myisha, and did not notice

9. any weapons on her, but he did not search her. Myisha was detained, since she was a

witness, and she was allowed to use her cell phone. At first, Myisha was pretty calm, but

after she took some phones calls and described the events that had occurred, she was

crying and seemed upset. Officer Stauch remained with Myisha for about 40 minutes,

except for a few minutes when he left her to give the detectives information for the

investigation and to get transportation for Myisha to the Safety Building. Myisha told

Officer Stauch that appellant was the shooter.

Laurie Renz

{¶ 28} Detective Sergeant Renz, of the Toledo Police Department, testified she is

the head of the Scientific Investigations Unit (“SIU”). She was called on January 18,

2018, to supervise the scene at Moody Manor. When she arrived, she was told the

suspect had blood on him, which needed to be documented. Sergeant Renz volunteered

to photograph the suspect, so she went to the Safety Building. The suspect was appellant.

{¶ 29} The sergeant took an overall photograph of appellant, then a close-up

picture of his face, as appellant said he had blood in his nose because he was hit with

brass knuckles. The picture shows a small cut above appellant’s nose, on his nostril.

Sergeant Renz also photographed appellant’s hands and swabbed them for blood. After

appellant used the restroom and presumably washed his hands, photographs were taken

which show small cuts on the pinky finger and index finger of his right hand, and some

swelling. The sergeant also took a buccal swab of appellant to obtain a DNA sample.

The photographs were taken at about 3:20 a.m.

10. Terry Cousino

{¶ 30} Detective Cousino of the Toledo Police Department, SIU, testified he was

on duty on January 18, 2018, when he received a call at maybe 1:15 to 1:30 a.m., that a

person was shot at Moody Manor. When he arrived there, he was notified by an officer

that a bullet had come through the ceiling of apartment 213, about six feet from the front

door. The detective documented it, then tried to trace the bullet but discovered it was in

the floor of apartment 213 and not recoverable. He was able to find the corresponding

hole in the floor of apartment 313, about six feet back from the doorway. The angle of

the bullet appeared to be straight down.

{¶ 31} When Detective Cousino first reached apartment 313, the door was ajar and

he was advised by officers that the decedent’s body was on the other side of the door,

which did not allow the door to open all of the way. He noticed broken mirror glass on

the outside of the door and a bullet hole through the door, from inside to outside, where

the bullet crossed the hallway and went into the opposite wall. The bullet hole was about

five feet, four inches up from the floor. The detective tried to recover the bullet, but it

went into a metal cable tract, fell down and could not be located.

{¶ 32} Inside of the apartment, Detective Cousino observed signs of a pretty

violent struggle, including a couple of broken mirrors, furniture knocked over, a vacuum

knocked over, projected and contact bloodstains on the wall and two holes in the wall.

The detective viewed the decedent’s body just inside of the door, he was on his back, his

head was in the corner and his hips were slightly twisted to the left.

11. {¶ 33} The detective took photographs of apartment 313 and recovered two spent

bullets, one was on a green ball cap, which was on the floor next to the decedent, and the

other bullet was on the floor under the bathroom door. The detective recovered the ball

cap, a pair of eyeglasses, a lighter, and a napkin or paper towel with blood wiped on it.

He did not recover a firearm despite searching the apartment pretty thoroughly with two

other officers, and looking outside of the window, in the snow.

{¶ 34} Detective Cousino took pictures of the decedent, including his right hand

with transfer blood on it, and bullet wounds to the right side of his chest and the center of

his chest. He also took photographs of the decedent’s jacket with two bullet holes and

what appeared to be possible gunpowder.

Maneesha Pandey, M.D.

{¶ 35} Dr. Pandey, a deputy coroner and forensic pathologist working for the

Lucas County Coroner’s Office, testified that she conducted the autopsy of Larry

Pendleton’s body. She observed bloody clothes, and after removing the clothing, she saw

multiple gunshot wounds on the body. She photographed the clothing and noted defects

in all of the layers of clothing, which corresponded with the entrance and exit wounds on

the body. She did not notice any gunshot powder burns or gunpowder residue.

{¶ 36} Dr. Pandey testified there were four gunshot wound entrances: one on the

right shoulder, which exited the right upper back; one to the mid-chest, which went

through the ribs, thoracic aorta, lungs and came out of the mid-back; one to the right

lateral chest, which went through the right lung and ribs then exited; and one to the right

12. lower back, which went through the abdominal cavity and embedded in the spinal

column, perhaps causing paralysis. All of the gunshots wounds were towards the right

side of the body, going right to left, and the wounds to the front of the body were in a

downward direction.

{¶ 37} Dr. Pandey testified the decedent had injuries to his face and both hands,

but she was unable to determine if they were recent wounds. There were abrasions and

bruises to his left eye and eyebrow region and left cheek, a deep cut to the left lip area;

and abrasions, scrapes and bruising to both hands with small cuts around the knuckle

area. The facial injuries were consistent with being punched on the left side of his face.

{¶ 38} The results of the toxicology report indicated the decedent had high levels

of alcohol, and the presence of marijuana in his urine. Dr. Pandey opined the cause of

death was multiple gunshot wounds, and she further opined they were of indeterminate

range, which means she was not able to determine the distance of the muzzle of the gun

to the body, but it was more than two feet. Although the decedent was wearing a heavy

winter coat, a sweatshirt, a shirt and an undershirt, these multiple layers of clothing do

not change her opinion as to the range of the shooting; it was not a close range shooting.

Timothy Augsback

{¶ 39} Mr. Augsback testified he is a forensic scientist for the Ohio Bureau of

Criminal Investigation (“BCI”) in the DNA section. Augsback stated the DNA profiles

on the brass knuckles were a mixture, with the decedent included as a major contributor

and appellant excluded as a contributor. Concerning the firearm and live cartridges,

13. Augsback testified the DNA profiles were not suitable for comparison, as there was not

enough high quality or quantity of DNA to make comparisons to known individuals.

Jameica Russell

{¶ 40} Ms. Russell testified her nickname is Peaches and she was Rocky’s

girlfriend. She lived with Rocky in Moody Manor on January 18, 2018, and she knew

Tyrone, Myisha and appellant from the complex. Peaches never dated appellant.

Peaches saw Rocky with a gun months before his death, but they had an agreement that

he would not have a gun at the apartment, because they would be evicted from Moody

Manor. Peaches never saw Rocky with a gun at their apartment.

{¶ 41} On January 17, 2018, Peaches went to sleep at about 6:50 p.m., and was

awakened around 1:00 a.m. on January 18, 2018, by a banging at her door. She answered

the door and Myisha was there, crying and screaming. Myisha was on her phone with the

police and yelled at Peaches that Rocky was shot and James shot him. Peaches did not

know who James was, as she knew appellant by the name Lavelle. Peaches said Myisha

did not have a weapon.

{¶ 42} Peaches left her apartment but could not go up to appellant’s apartment to

see Rocky, as the police were already there and led everyone out of the building. While

Peaches was standing on the sidewalk, she saw appellant being led out of the building in

handcuffs. Appellant looked at her and said, “[S]orry, Peaches, he had to go.”

{¶ 43} Peaches spoke with a detective and gave a statement. She said she did not

know Tyrone personally, but knew he was sneaky and a drug dealer. Peaches said Rocky

14. was not violent or aggressive when he drank, but he would argue. She did admit she had

called the police on Rocky in the past.

Jeffery Jackson

{¶ 44} Detective Jackson of the Toledo Police Department, SIU, testified that on

January 18, 2018, he attended the autopsy of Larry Pendleton, took photographs and

received items of evidence. The detective took swabs from the decedent’s hands and Dr.

Pandey collected fingernail clippings. The doctor also recovered a bullet. All of the

decedent’s clothes, the swabs, the clippings and the bullet were collected as evidence.

{¶ 45} On February 27, 2018, Detective Jackson assisted Detective Jeff Clark in

conducting a search of appellant’s apartment, pursuant to a search warrant, for the

firearm used in the crime. They focused their search on the utility closet, which was next

to the linen closets. Detective Jackson noticed that both closet doors were open and a

box filter that fits up into the furnace was open and partially pulled down out of its

compartment. The area, which was very dirty, was dusted for fingerprints, but either

none were found or the ridge detail was insufficient. The detective also took

photographs. No firearm was found in appellant’s apartment.

{¶ 46} On March 8, 2018, Detective Jackson was advised that the decedent’s

apartment, number 112, at Moody Manor was being cleaned out by maintenance workers

and a gun was found. The detective went to Moody Manor, apartment 112, took

photographs and collected the firearm, which was a Taurus 38 Special Revolver, along

with five unfired Winchester 38 Special cartridges.

15. Kevin Kramer

{¶ 47} Mr. Kramer testified he is a forensic scientist for BCI in the firearms

section. Toledo police provided him with a Taurus gun and a spent bullet for

examination; the bullet was consistent with being a 38 caliber.

{¶ 48} Kramer performed a comparison to determine if the Taurus gun fired the

spent bullet, but the results were inconclusive. He authored a report, dated April 19,

2018, with his findings.

Crystal Robinson

{¶ 49} Crystal testified she lived at Moody Manor, in apartment 111, and although

she did not know Rocky, she saw him coming and going and she spoke to him. Early in

the morning on January 18, 2018, she was on the phone and watching television when

she heard two or three gunshots, which startled her. Crystal got off of the phone and

crawled into her kitchen.

{¶ 50} Crystal heard people running down the stairs, so she opened her front door

to see who was outside. She heard Isha (Myisha Neal) say something about, “[H]e shot

him.” Crystal knew Myisha from around the neighborhood and apartments. Crystal

described Myisha as really nervous, so Crystal asked Myisha into her apartment. Myisha

went into Crystal’s apartment to wait for the police. Crystal said Myisha only had a cell

phone with her, no weapons. Myisha remained in Crystal’s apartment the entire time

until the police arrived.

16. Tonya Brown

{¶ 51} Tonya testified she was Rocky’s older sister. She and Rocky were born in

Alabama, and moved to Toledo when they were in elementary school. They also have a

younger sister and Rocky had a daughter. Tonya described her brother as sweet, helpful

to elderly neighbors, he liked to laugh and have fun and he liked to be with family.

Rocky was very athletic, played football and was all-state running back in high school.

Rocky went to Penta and got a degree for auto body and collision, and wanted to open his

own shop. He worked in manufacturing, but had to resign for medical reasons. Tonya

recalled that about seven years ago, Rocky started to have seizures and a noncancerous

mass was found in his brain, and removed.

Jeff Clark

{¶ 52} Officer Clark, of the Toledo Police Department, testified he was the on-call

investigator on January 18, 2018, when he was notified of a homicide at Moody Manor.

He arrived at Moody Manor and was briefed by several officers including his supervisor

and Detective Renz. Initially, he did not interview any witnesses. The officer left the

scene, went to the Safety Building, and he and Detective Hahn interviewed Myisha and

Tyrone. Tyrone was not known to be a gangster.

{¶ 53} Several hours later, Officer Clark returned to Moody Manor with a search

warrant, so a more extensive search inside and outside of appellant’s apartment could be

undertaken. The officer and Detective Hahn searched the utility closet where the furnace

was located, but it was a tight, confined space, and they were not able to get behind the

17. furnace although they tried to look around and underneath the furnace. No weapon or

spent shell casings were found in or around appellant’s apartment. Officer Clark also

interviewed Peaches while at Moody Manor. After that interview, he returned to the

Safety Building to interview appellant.

{¶ 54} Officer Clark and Detective Hahn interviewed appellant at about 5:00 to

5:45 a.m. Appellant was advised of his rights. During the videotaped interview, the

officer was made aware that appellant had been drinking earlier and smoking marijuana.

Appellant drank two and one-half twenty-four ounce cans of Milwaukee Ice beer,

drinking the last beer around 11:30 p.m. Appellant did not appear to be intoxicated and

his responses to the officer were appropriate. Appellant’s account of what transpired was

not consistent with Myisha’s account. Appellant indicated that Rocky had the brass

knuckles, and appellant was able to gain control of them and use them on Rocky.

Appellant had the brass knuckles in his pant’s pocket when police arrived at Moody

Manor.

{¶ 55} During the course of the investigation, Officer Clark learned that after the

shooting, Tyrone had been searched by police and no weapon was located on him. In

addition, there was no mention that Myisha was in possession of a firearm, and Officer

Clark confirmed this by tracking Myisha’s movements on the surveillance video. The

officer also tracked the whereabouts of Tyrone, his girlfriend and appellant on the video.

18. {¶ 56} Officer Clark testified the theory was that a revolver was used because of

the absence of shell casings. When shooting a revolver, for each round fired, the trigger

must be pulled.

{¶ 57} Officer Clark listened to some of the jail telephone calls involving

appellant, and around February 16, 2018, there were calls that indicated appellant was

concerned about getting property out of his apartment. A DVD was made of the pertinent

portions of the calls. In one call, appellant, who was talking with his father, said he was

going to ask his uncle, Ant, to throw something in the garbage. Appellant said his fate

was in Ant’s hands. During a call with Ant, appellant said he needs Ant to do him the

biggest favor in the world. Appellant then described the linen closet, said turn around,

and that is the utility closet with the furnace. In other calls, dirty jeans and a thousand

dollars were discussed, which Officer Clark theorized were code for a firearm, as there is

no need to secretly remove dirty jeans or refer to money secretively.

{¶ 58} Based on the phone calls, the officer secured and executed a search warrant

for appellant’s uncle’s house and appellant’s apartment. The officer searched appellant’s

apartment with Detective Jackson and found the furnace was not in the same condition as

it had been on January 18, 2018. The furnace door was now pulled down and the filter

was exposed and damaged.

{¶ 59} Officer Clark also pulled surveillance footage from the exterior of Moody

Manor on February 16, 2018, which corresponded with the timing of the phone call

regarding removing an object from the furnace, and Ant can be seen coming and going.

19. The officer had interviewed Ant, so he was able to identify Ant on the video. Plus,

during the interview, Ant admitted that he went to the apartment to remove property.

{¶ 60} Officer Clark recovered a Facebook video from appellant’s cellphone

which shows appellant holding a dark colored revolver. The video was posted

August 13, 2017.

{¶ 61} Officer Clark heard Myisha testify at trial and said her testimony was

extremely consistent with what she told him on January 18, 2018.

Appellant

{¶ 62} Appellant testified he was 23 years old, and lived at Moody Manor 13

years. He was 5’9” and 320, 340 pounds. Appellant knew Rocky and Tyrone, and

through them, he met Myisha. He described Rocky as a friend, but he could be

argumentative when drinking, Tyrone was a bully, a player and a drug dealer who always

carried a gun, and Myisha did not have a job and would “indulge in anything to keep her

not sober.” Tyrone and Myisha had a relationship and appellant said Myisha really liked

Rocky and Rocky told appellant that she was trying to get Rocky to leave Peaches.

{¶ 63} On the night of January 18, 2018, appellant got off of work and was at his

apartment, relaxing—drinking a beer, watching television, on the phone. Tyrone stopped

by and said he was going to the store, and then he, Rocky and Myisha would probably be

back. Later, Tyrone and Rocky came by appellant’s apartment, and Rocky sat in the

kitchen area. Myisha called Rocky’s phone, then she arrived at the apartment about five

minutes later. The group partied.

20. {¶ 64} Appellant testified Rocky drove him to the store so appellant could get

more beer and cigarettes. In the car, they talked about Myisha and Rocky asked appellant

about his job and the money appellant owed him. Appellant explained “we had like a

barter system and things. I owed him like $146 * * * I told him * * * I can’t pay you

right now, I have other bills to tend to * * * I catch you my next check.” Appellant said

he went into the store while Rocky waited in the car. He bought beer and cigarettes and

paid his cell phone bill. Rocky and appellant then went back to the apartment, where

they joined Tyrone and Myisha. Everyone was relaxing.

{¶ 65} Appellant recalled Rocky asked if he and Myisha could use appellant’s

bedroom, but appellant said no, because he had to go to work in the morning and did not

want to stay up late. The festivities continued, with smoking and drinking. Myisha sat

on Rocky’s lap and Tyrone left “for a split second and he goes downstairs. He comes

back with like a big Ziploc bag of weed. Like, I think well over a pound. And he starts

to sack stuff out * * * [H]e pulls out a bud and says, here, you guys can smoke.”

Appellant thought it was good weed, and said he wanted to buy some. Appellant “put out

a couple twenties, knowing it was food money and everything * * * That’s when Rocky

started to get kind of - - he stood up and started pacing and things * * * [Rocky] started

getting upset a little bit after I bought the bag of weed from Tyrone.”

{¶ 66} Appellant said Rocky started “very aggressive, petty arguments” with him

out of nowhere, like “you think you’re special [because you got a job now], you told me

you couldn’t pay me right now, but you buying weed, f*** you trying to play me * * *

21. I’m not leaving till I get my money.” Appellant responded, “[y]ou trippin’, man. I’m

going to pay you money, you know. But you know I smoke, so of course I buy some

weed * * * you kind of need to relax * * * I think you had too much to drink.”

{¶ 67} Appellant testified he asked everyone to leave, but Rocky was getting

angrier and not leaving. Appellant stated “I knew I was in the wrong for buying weed in

front of [Rocky], and he just asked me about the money in the car. So I was just trying,

you know, go, you had a little bit too much to drink, just leave. Please leave my house.

I kept saying that over and over.”

{¶ 68} Appellant testified he started to walk towards Rocky, asking him to leave.

Rocky shoved appellant, then Rocky started punching appellant. Appellant fought back,

and “[w]e’re fighting, tearing up my house. He’s falling. I’m actually falling, too, as

well because I’m tripping over things that we’ve knocked over.” The fight continued

“[Rocky] got up and started punching again and again and again.” Appellant was asked

if the punches were striking him and he replied, “Majority are, but I’m blocking most of

them * * * [b]ut I was also catching him a lot of times, too.”

{¶ 69} Appellant said he was winning the fight, but Rocky did not stop. The fight

moved from the living room to the hall area, and then Rocky “came back with the punch,

he came back with some silver [brass knuckles] on his hand, and he hit me one time in

the nose.” Appellant blocked the punches, stepped on Rocky’s foot and started punching.

Rocky fell down and the brass knuckles slipped off of his hand, so appellant picked up

the brass knuckles and “placed them in my hand so he couldn’t hit me with them no

22. more.” Rocky kept fighting and appellant remembered hitting Rocky with the brass

knuckles a couple of times, but then appellant stepped back and put the brass knuckles in

his pocket. The men were now in the kitchen fighting. Appellant described the fight as

an even exchange, but he was blocking more of the hits than Rocky was.

{¶ 70} Appellant testified he tried to slip past Rocky, but was tripped and landed

in front of the door; Rocky followed. Appellant was trying to get Rocky close to the

door, so he could open the door and get Rocky out of the apartment, but Rocky was very

resistant.

{¶ 71} Appellant said Tyrone then pushed him and Rocky apart. Appellant kept

telling Rocky to leave. Rocky “lunged back at [appellant] throwing some more punches,

and then all of a sudden I see this gun and it just comes at me.” The “gun was like a

silverish black, but it was black -- I would say more silver. * * * It appeared to be a

revolver.” Rocky was pointing the gun at appellant, and the men were about two feet

apart, “[s]o essentially I reached and I pried it from his hand. He fired it when I grabbed

it, and I believe the shot went down into the floor. * ** I immediately had it in my hand.

He was lunging and I fired.” Appellant did not know how many times he fired as “I was

scared shitless if I may say. I was scared. I just fired.”

{¶ 72} After firing, Rocky “took a couple steps back, went to the ground.” Rocky

said something, moaned several times “and then it was over with.” Appellant dropped

the gun “and I watched Tyrone come over, kneel down in two areas, and then one area

was where initially the gun area, where I’m thinking I dropped it at, and then he taps

23. Rocky saying * * * you okay, and I saw his hands come up and go back in his pocket,

and he used one hand to open the door and leave.” Myisha knelt down, attempted to

wake Rocky, then she followed behind Tyrone.

{¶ 73} Appellant was in shock. He walked to his chair, sat down and called his

father. He noticed Tyrone had left his Ziploc bag of weed, so appellant hid the weed

where the furnace was. He went in the bathroom then went back to his chair, noticed a

little weed on the table “so I rolled it up, fired it up. It was sloppy, wasn’t perfect.”

Appellant heard footsteps and “someone creeping up to my door, like pushing the door.”

It was the police with their guns drawn. Appellant said, “I’m not armed. I don’t have

any weapons. They took the weapons with them.”

{¶ 74} When the police were escorting appellant out of the apartment building, he

saw Peaches, who was crying hysterically. He thought he said, “[S]orry, Peaches, he

made me do it, he had to go.” Appellant wanted to stop and explain to Peaches what had

happened, how combative Rocky was.

{¶ 75} Appellant went to the police station where he gave a statement. He

remembers telling the truth, but he left out details because he was still in shock. He told

the police the main part—that Rocky started the fight, things escalated to brass knuckles,

Rocky was upset appellant was winning and Rocky pulled a gun.

{¶ 76} Appellant testified he did not hide the gun in the furnace, he wanted the

police to find the gun because “[b]oth our fingerprints would have been on it to prove that

it was his gun.” Appellant told police “I’m not sure who took it, I think it was Isha

24. [Myisha] * * * they both [Tyrone and Myisha] kneeled down, and when they left, the gun

was gone.” When appellant was asked “right now do you know who took the gun?” he

answered, “I think it was Tyrone.” Appellant stated he did not own a gun, but admitted

he told the detectives that he had owned guns before because he had been jumped.

{¶ 77} Appellant said he called his uncle to get the weed that was hidden in the

furnace because he knew it would start to smell. Appellant had to make it sound kind of

serious so his uncle would go to the apartment as “[t]hey were basically telling me, you

know, your stuff is garbage, don’t worry about it.” Appellant asked his uncle if he got it,

and the uncle said “yes, sir, you a smart man, I love you for that, that’s good shit.”

Appellant explained his uncle was talking about the weed being good, and he was happy

appellant trusted him.

{¶ 78} On cross-examination, appellant admitted mentioning for the first time at

trial that: he owed Rocky $146; Tyrone brought a pound of weed up to the apartment; he

wrestled the gun away from Rocky and Rocky fired the first shot; he hid something in the

furnace; and the gun belonged to Tyrone.

{¶ 79} Appellant said the majority of Myisha’s testimony was not truthful,

although he then acknowledged that he did agree with many of her statements. Appellant

testified he told the police what happened was self-defense, that he protected himself.

Appellant stated the gun in the Facebook video was not his gun, he was with other

people, and the gun was passed to him in a careless moment, showing off.

25. First Assignment of Error

{¶ 80} Appellant argues the trial court abused its discretion in denying his request

for a jury instruction on voluntary manslaughter. He contends he requested jury

instructions for voluntary manslaughter and self-defense, but the court refused to give a

voluntary manslaughter instruction if appellant wanted a self-defense instruction.

Appellant asserts the court denied the voluntary manslaughter instruction without

inquiring whether appellant had been provoked by Rocky to act with sudden passion or in

a fit of rage.

Standard

{¶ 81} On appeal, we review a trial court’s decision refusing to give a requested

jury instruction for abuse of discretion. State v. Wolons,

,

(1989). An abuse of discretion indicates that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

,

(1983).

Law

{¶ 82} Appellant was charged with and convicted of murder, in violation of R.C.

2903.02, which provides:

(A) No person shall purposely cause the death of another * * *.

(B) No person shall cause the death of another as a proximate result

of the offender’s committing or attempting to commit an offense of

26. violence that is a felony of the first or second degree and that is not a

violation of section 2903.03 or 2903.04 of the Revised Code.

(C) Division (B) of this section does not apply to an offense that

becomes a felony of the first or second degree only if the offender

previously has been convicted of that offense or another specified offense.

{¶ 83} Voluntary manslaughter is an inferior degree offense of murder. See State

v. Shane,

,

(1992). The voluntary manslaughter

statute, R.C. 2903.03, provides:

No person, 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 decedent that is reasonably sufficient to incite the person

into using deadly force, shall knowingly cause the death of another * * *.

{¶ 84} The legal test for voluntary manslaughter is set forth in State v. Thompson,

,

,

, which includes both an objective

and a subjective component (“Thompson test”). The Thompson test is used in murder

cases in order to determine whether the defendant is entitled to an instruction on

voluntary manslaughter. Id. at ¶ 152; Shane at paragraph one of the syllabus. “First - the

objective factor - the fact-finder must determine whether a serious provocation [caused

by the decedent] occurred and whether that provocation was ‘sufficient to arouse the

passions of an ordinary person beyond the power of his or her control.’” Thompson at

¶ 153, quoting

. If the objective component is satisfied, the inquiry shifts to

27. the subjective factor where “the fact-finder must evaluate whether ‘this actor, in this

particular case, actually was under the influence of sudden passion or in a sudden fit of

rage.’” Thompson at ¶ 153, quoting

.

{¶ 85} Evidence that the defendant feared for his own safety and used deadly force

(self-defense), does not constitute sudden passion or a fit of rage as contemplated by the

voluntary manslaughter statute. See State v. Harris,

,

(10th Dist. 1998). “Self-defense on the one hand requires a showing of fear,

whereas voluntary manslaughter requires rage.” State v. Thompson, 10th Dist. Franklin

No. 92AP-1124,

(Feb. 23, 1993), *2.

Analysis

{¶ 86} Upon review, the record shows the trial court did not apply the Thompson

test prior to deciding not to instruct the jury on voluntary manslaughter. Nonetheless, we

find the trial court’s error was harmless for the reasons that follow.

{¶ 87} Applying the objective factor of the Thompson test to the evidence

presented at trial, we find a reasonable person could conclude, based on appellant’s

testimony, that a serious provocation was caused by Rocky, and this provocation was

objectively sufficient to incite a sudden fit of rage in an ordinary person beyond the

person’s power to control.

{¶ 88} Concerning the subjective factor of the Thompson test, we find the record

contains no evidence that appellant was under the influence of sudden passion or rage

when he used deadly force. Appellant testified he was scared and was protecting himself

28. when he shot Rocky. Since the subjective component of the Thompson test was not

satisfied, appellant was not entitled to a jury instruction on voluntary manslaughter. As

such, appellant was not harmed by the trial court’s failure to apply the proper law when it

determined a voluntary manslaughter instruction was not warranted. Finding no abuse of

discretion, appellant’s first assignment of error is not well-taken.

Second Assignment of Error

{¶ 89} Appellant argues the verdict was against the manifest weight of the

evidence, as the jury lost its way in convicting him of murder. Appellant maintains he

met the requirements of proving self-defense by a preponderance of the evidence. He

asserts there was evidence that Rocky was the initial aggressor, Rocky produced brass

knuckles and the gun, appellant was injured, appellant believed he was in immediate

danger of losing his life, and appellant was in his own apartment and had no duty to

retreat.

Standard

{¶ 90} In a manifest weight challenge, we determine whether the greater amount

of credible evidence supports the conviction. Eastley v. Volkman,

,

,

, ¶ 12. We must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses and

determine whether the jury, in resolving conflicts in the evidence, “‘clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed

29. and a new trial ordered.’” (Citation omitted.) State v. Thompkins,

,

(1997).

{¶ 91} When we consider witness credibility, we must remember “the choice

between credible witnesses and their conflicting testimony rests solely with the finder of

fact and an appellate court may not substitute its own judgment.” State v. Awan,

,

(1986). The jury is “in the best position to observe the

evidence presented, the witnesses’ testimony, including their demeanor, voice inflection,

and mannerisms, in order to determine the credibility of each witness.” State v.

Saunders, 10th Dist. Franklin No. 99AP-1486,

, *3 (Nov. 21, 2000).

Law

{¶ 92} To establish self-defense, “the defendant must prove: (1) he was not at

fault in creating the situation giving rise to the affray; (2) he had a bona fide belief he was

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

such danger was the use of deadly force; and (3) he did not violate any duty to retreat or

avoid the danger.” State v. Robbins,

,

(1979), paragraph

two of the syllabus. “If the defendant fails to prove any one of these elements by a

preponderance of the evidence he has failed to demonstrate that he acted in self-defense.”

State v. Jackson,

,

(1986).

Analysis

{¶ 93} Upon review, we cannot find that the jury clearly lost its way in rejecting

appellant’s claim that he acted in self-defense. The jury was required to assess the

30. credibility of all of the witnesses, weigh the evidence and determine which version of

events it believed. The testimony of Myisha Neal, detectives and police officers, as well

as appellant’s jail phone calls and videotaped statement, surveillance tapes from Moody

Manor and photographs of appellant’s apartment, provided competent, credible evidence

upon which the jury could conclude appellant failed to prove by a preponderance of the

evidence that he acted in self-defense when he shot and killed Rocky.

{¶ 94} The record shows evidence was presented from which the jury could decide

that appellant instigated the fight with Rocky, appellant was not in imminent danger and

had means to escape other than by shooting Rocky, and appellant could have retreated to

avoid danger. Thus, the jury’s conclusion that appellant did not act in self-defense is not

against the manifest weight of the evidence. Furthermore, we find the jury’s guilty

verdicts on the murder charges and firearm specifications are not against the manifest

weight of the evidence. Accordingly, appellant’s second assignment of error is not well-

taken.

{¶ 95} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal, pursuant to App.R. 24.

Judgment affirmed.

31. State v. Allen C.A. No. L-18-1191

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

32.