[Cite as State v. Miree,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110749 v. :

JAIDEE MIREE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; VACATED IN PART; AND REMANDED RELEASED AND JOURNALIZED: October 13, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-649123-C

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mahmoud Awadallah and Nora Bryan, Assistant Prosecuting Attorneys, for appellee.

Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for appellant.

FRANK DANIEL CELEBREZZE, III, P.J.:

Appellant Jaidee Miree (“Miree”) appeals his convictions of murder,

felonious assault, improperly handling firearms in a motor vehicle, involuntary

manslaughter, and tampering with evidence. Miree contends that his bindover from juvenile court was unsupported by the evidence; that the trial court erred in

instructing the jury on self-defense; that the trial court erroneously admitted

prejudicial evidence; that the trial court erred in denying his motion for a mistrial;

that his convictions of murder, involuntary manslaughter, and felonious assault

were based on insufficient evidence and against the manifest weight of the evidence;

that he received ineffective assistance of counsel; and that his sentence was contrary

to law and violated his constitutional rights. After a thorough review of the facts and

applicable law, we affirm in part, vacate in part, and remand to the trial court.

I. Factual and Procedural History

On June 16, 2019, Ramses Hurley (“Hurley”), a 19-year-old male, was

ejected from the backseat of a moving vehicle and left behind in a pool of his own

blood on South Moreland Boulevard in the Buckeye-Shaker neighborhood of

Cleveland, a few feet from his home. Hurley’s body contained numerous “road rash”

abrasions indicating that his body had likely been dragged along the road. He was

pronounced dead later that day. The medical examiner observed blunt-force

injuries to Hurley’s head and neck and determined that the manner of death was a

homicide. These specific facts are nearly certain based upon video surveillance and

available scientific evidence.

The events occurring in the vehicle prior to Hurley’s death are

significantly less certain. What occurred in that vehicle was almost exclusively

provided by Miree’s codefendants: the driver, Trinity Campbell (“Campbell”), and backseat passenger, Desmond Duncan (“Duncan”), whose versions of the events

differ considerably.

Miree, 17-years-old at the time of the offense, was charged in the

juvenile court with four counts: aggravated murder with firearm specifications;

aggravated robbery with firearm specifications; felony murder with the underlying

offenses of either aggravated robbery and/or felonious assault with firearm

specifications; and felonious assault with firearm specifications. His case was

transferred to the Cuyahoga County General Division, and a grand jury indicted

Campbell, Duncan, and Miree on 11 counts.

The charges against Miree were aggravated murder in violation of R.C.

2903.01(B) with firearm specifications (Count 1); felony murder in violation of R.C.

2903.02(B) with underlying offenses of felonious assault and/or aggravated robbery

with firearm specifications (Count 2); aggravated robbery in violation of R.C.

2911.01(A)(3) with firearm specifications (Count 3); aggravated robbery in violation

of R.C. 2911.01(A)(1) with firearm specifications (Count 4); felonious assault in

violation of R.C. 2903.11(A)(1) with firearm specifications (Count 5); felonious

assault in violation of R.C. 2903.11(A)(2) with firearm specifications (Count 6);

improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B) with

firearm specifications (Count 7); involuntary manslaughter in violation of R.C.

2903.04(A) with firearm specifications (Count 8); tampering with evidence in

violation of R.C. 2921.12(A)(1) (Count 9); and having weapons while under disability

in violation of R.C. 2923.13(A)(2) (Count 11). Campbell testified at trial that prior to Hurley’s death, she picked up

Miree intending to purchase marijuana from Hurley. Since this was Campbell’s first

time making a purchase from Hurley, she wanted Miree, a friend of two to three

months, to accompany her. Allegedly, none of the defendants knew Hurley prior to

this encounter. Before arriving at Hurley’s home, Miree instructed Campbell to pick

up two of his friends, Duncan, and an unknown male who was referred to as “B.J.”

throughout the course of this case. During trial, Campbell testified that B.J. brought

guns into the car and supplied one to Miree. Campbell claimed she never met either

of these individuals, and in her first recitation of the events to Sergeant Aaron Reese1

of the Cleveland Police Department, she neglected to mention that Duncan was also

an occupant of the vehicle.

At trial, Campbell’s review of the events suggested that she realized that

her codefendants wanted to commit a robbery. She stated that before going to

Hurley’s house, she erroneously directed her G.P.S. to her coworker’s house, and the

vehicle occupants expressed intent to rob the coworker, but the plan fell through.

Campbell then testified that before they went to Hurley’s home, Duncan jumped into

the cargo area of the backseat, displayed a gun, and told her to be quiet. Campbell

was not initially forthcoming with details involving a robbery, and we note that one

of the defense’s theories was that Campbell merely acquiesced to the robbery

narrative to appease the police and prosecutor.

1At the time of the offense, Reese was a detective for the Cleveland Police Department. In 2019, he was promoted to sergeant. When Campbell’s vehicle eventually arrived at Hurley’s home, Hurley

was finishing a drug transaction with another individual, Emanuel Adams

(“Adams”). According to Campbell, Hurley entered the vehicle through the driver’s

side backdoor and was seated directly behind her. Hurley placed a scale and some

marijuana on the center console. According to Campbell’s testimony, as she was

reaching into her wallet for cash to pay for her portion, Miree grabbed the marijuana

from the scale and did not pay for it. Immediately after, Campbell noted that a

“commotion” ensued in the backseat. Two gunshots were fired in the vehicle. She

observed Hurley holding a gun. She also observed Duncan holding Hurley in a

headlock and pointing a gun to his head. Miree began punching Hurley in the head.

The backseat door opened, and Hurley was thrown from the vehicle. According to

Campbell, as soon as Hurley was out of the vehicle, Miree encouraged Campbell to

drive away.

While leaving the scene, Campbell lost control of the vehicle and struck

a brick pillar on Griffing Avenue. Campbell testified that Duncan instructed her to

leave or else he would “pop” her. When the vehicle was wrested away from the pillar,

she dropped the codefendants off at the location where she picked up Duncan, and

Miree instructed her to clean the vehicle and urinate on the seats to remove any

gunpowder residue. Campbell went home and followed the instructions to clean the

vehicle. She placed bullet fragments and shell casings that she recovered from the

vehicle in the sewer by her home, which were later retrieved by the Cleveland Police

Department. She also smashed her cell phone. Duncan’s version of the events is significantly different. He testified

that he entered the vehicle expecting a ride to the music studio and did not need to

purchase any marijuana, so he had his headphones on the entire time. Duncan

denied ever needing to, or wanting to, rob Hurley. Instead of being in the cargo area

with a gun, Duncan testified that he was right next to Hurley, in the middle of the

backseat. Duncan stated that he did not even realize that something was wrong until

Hurley pulled out a gun and pointed it towards Miree, and at that point he removed

his headphones and attempted to disarm Hurley. He noted that he was concerned

because he believed that Miree was shot and hurt. He then testified that he opened

the door and pushed Hurley from the vehicle in defense of himself and the other

vehicle occupants.

The following additional evidence was also adduced at trial.

Adams testified that he remained on scene following his transaction

with Hurley, feeling that he had been given a smaller amount of marijuana than he

paid for. He intended to confront Hurley about this after Hurley finished

transacting with Campbell’s vehicle. Instead, Adams became an eyewitness and

testified that he had a direct line of sight to the vehicle and saw Hurley’s body being

thrown from the vehicle and Hurley’s fingers being pried off the edge of the door

before he struck the ground. Adams remained on scene when the police arrived.

Lisa Przepyszny, a forensic scientist in the trace evidence department

of the Cuyahoga County Regional Forensic Science Laboratory, testified as an expert

in trace evidence. Przepyszny offered several significant opinions — that gunshot residue was found on Hurley’s hands and that there were abrasions in the fabric of

the clothing that Hurley was wearing that day consistent with his body impacting a

rough surface. She also provided information about the bullet trajectories found

inside the vehicle and the DNA evidence found on Hurley’s clothing and inside the

vehicle.

Cecil Snowden was walking his dog at the time of the incident and

testified as an eyewitness. Snowden testified that he heard two gunshots and saw a

person coming out of the driver’s side of the vehicle.

Todd M. Barr, M.D. (“Dr. Barr”), testified as an expert in forensic

pathology about the autopsy and examination of Hurley’s body, noting Hurley’s

injuries as well as the cause and manner of death.

Sergeant Reese from the Cleveland Police Department testified

regarding his investigation of the case, including details from his interview with

Campbell three days after the subject incident.

The defense called Richard Cerney, a retired police detective, who

opined that the subject vehicle could have been preserved for evidentiary

examination until after trial was complete.

The defense also called Curtis Lewis, Duncan’s manager with respect

to his music career, who testified that Duncan did not need money, nor did he need

to rob someone for marijuana.

Prior to trial, Campbell accepted a plea deal with the state, part of

which contained an agreement to testify truthfully at Duncan and Miree’s joint trial. The jury found Miree guilty of felony murder (Count 2), felonious assault (Count 5),

improperly handling firearms in a motor vehicle (Count 7), involuntary

manslaughter (Count 8), and tampering with evidence (Count 9). The jury acquitted

both Miree and Duncan of all firearm specifications.

Miree received a life sentence “without the possibility of parole for 15

years” on Count 2, which was merged with Counts 5 and 8 for sentencing purposes.

Miree received 12 months each on Counts 7 and 9, which were to run concurrent

with each other and Count 2. Miree appeals his convictions, assigning nine errors

for our review.

I. The bindover of Miree’s case from Juvenile Court to the adult criminal court violated Miree’s rights to due process and to confront and cross-examine adverse witnesses, and was not supported by sufficient, reliable, and credible evidence, in violation of U.S. Const., Amends. 5, 6, 14, and Ohio Const., Art. I, §§ 10, 16.

II. Miree was denied due process, a jury determination of his culpability, and a fair trial because the trial court failed to provide jury instructions on lesser-included offenses of reckless assault, reckless homicide, and the F-3 variant of involuntary manslaughter. U.S. Const., Amends. 5, 6, 14, and Ohio Const., Art. I, §§ 5, 10, 16.

III. Miree was denied due process and a fair trial when the trial court failed to properly instruct the jury on the affirmative defenses of self- defense and defense-of-another, improperly relieved the State of its burden of proof, and invaded the jury’s province. U.S. Const., Amends. 5, 6, 14, and Ohio Const., Art. I, §§ 5, 10, 16.

IV. The trial court committed prejudicial error, violated the Rules of Evidence, and denied Miree due process and a fair trial when it admitted the video of Campbell’s June 19 interview with Det. Reese (SX 406A), because that video contained an unredacted 18-minute segment of the irrelevant, inadmissible, and unfairly prejudicial private meeting between Campbell and her grandmother. V. The trial court committed prejudicial error, and denied Miree due process and a fair trial, when it refused to grant a mistrial resulting from the State’s bad-faith destruction of the crime-scene vehicle prior to trial and before the defense could even examine it.

VI. The trial court committed prejudicial error, and denied due process and a fair trial, when it refused to grant Miree a mistrial after the court’s erroneous admission of Duncan’s juvenile adjudications.

VII. Miree’s convictions of felony murder, involuntary manslaughter, and felonious assault are based upon evidence that is constitutionally insufficient to prove the required felonious assault and/or to disprove self-defense/defense of another, and, in all events, these three convictions are against the manifest weight of the evidence.

VIII. Miree’s trial counsel provided prejudicially ineffective assistance in two significant respects, thereby denying Miree’s rights under the U.S. and Ohio Constitutions. U.S. Const., Amends. 6, 14; Ohio Const., Art. I, Sections 10, 16.

IX. Miree’s mandatory life sentence under [R.C.] 2929.02(B) is contrary to law as imposed and, in any event, any such mandatory life sentence against a juvenile, like Miree, is unconstitutional because it does not permit judicial consideration of youth.

II. Law and Argument

A. Juvenile Bindover

In his first assignment of error, Miree argues that his case was

improperly bound over from the juvenile court.

Miree first argues that he was denied due process during his bindover

hearing because Sergeant Reese’s testimony was informed by codefendant

Campbell, and Campbell was not present at the bindover hearing. Miree claims he

should have been able to confront and cross-examine Campbell at the bindover

hearing pursuant to his constitutional due process rights. This court has previously addressed the nature of juvenile bindover

proceedings:

“‘[A] probable cause hearing held before a juvenile court’s transfer to adult court is a preliminary, non-adjudicatory proceeding[.]’ Matter of B.W.,

,

(7th Dist.), citing Breed v. Jones,

,

,

(1975), fn. 18, and State v. Carmichael,

,

(1973). Accord State v. Gilbert, 6th Dist. Lucas No. L-03-1273, 2005- Ohio2350, ¶ 11; In re A.M.,

,

(8th Dist. 2000); [State v.] Whisenant, 127 Ohio App.3d [75,] 85,

[(11th Dist. 1998)]. This proceeding is non-adjudicatory because ‘the juvenile court’s function is not to determine whether the juvenile is guilty of the charge[,] but is to determine whether there is probable cause to believe the juvenile is guilty.’ (Emphasis omitted.) B.W. at ¶ 18, citing State v. Iacona,

,

(2001).”

State v. Burns, 8th Dist. Cuyahoga No. 108468,

, quoting

State v. Starling, 2d Dist. Clark No. 2018-CA-34,

.

Nonadjudicatory hearings need not meet the same rigorous standards

for admissibility that a trial requires. Starling at ¶ 27, citing Whisenant at 85.

Juvenile bindover hearings are not trials because they do not “‘find as a fact that the

accused minor is guilty of the offense charged.’”

, quoting State v.

Whiteside,

,

(3d Dist. 1982). The right to

confront witnesses is a trial right. Barber v. Page,

,

,

(1968).

The law is clear that because of the nature of juvenile proceedings,

there is no right to confront witnesses. As a result, we reject Miree’s argument that

his constitutional right to confront witnesses was violated. Miree further argues that his bindover was not supported by

sufficient, reliable, and credible evidence. Miree argues that the evidence presented

at the bindover hearing, especially by Sergeant Reese, was not credible. Miree points

to the evidence adduced at the hearing, including the fact that, at the time, there was

no physical evidence of a gun except for one belonging to Hurley; the shots from

Hurley’s gun almost struck Miree supporting a self-defense theory; witnesses only

heard two “pops”; and the surveillance footage that demonstrated the extremely

slow speed of the vehicle when Hurley was ejected.

When reviewing juvenile bindovers, the appellate court is instructed

to defer to the juvenile court’s “determinations regarding witness credibility, but

review de novo the legal conclusion whether the state presented sufficient evidence

to demonstrate probable cause to believe that the juvenile committed the acts

charged.” In re A.J.S.,

,

,

.

“The ‘probable’ component of the probable cause determination means that the state

must produce evidence that ‘raises more than a mere suspicion of guilt, but need not

provide evidence proving guilt beyond a reasonable doubt.’” State v. Taylor, 8th

Dist. Cuyahoga No. 106502,

, quoting In re A.J.S. at ¶ 42.

The juvenile court found probable cause for all four charges. During

the bindover hearing, the juvenile court received photos of the homicide crime scene

(which included a bag of marijuana lying near the body), photos of damage to the

subject vehicle, Campbell’s lineup identification of Miree as a codefendant, and an

autopsy report indicating that Hurley’s cause and manner of death was homicide caused by blunt force trauma. Furthermore, Sergeant Reese testified during the

hearing, indicating information that Campbell relayed to him that this was a drug

deal turned robbery that resulted in Hurley’s death. Reviewing all the evidence

presented at the bindover hearing, we find that Miree’s bindover was supported by

sufficient, credible evidence placing Miree at the crime scene as well as evidence

supporting Miree’s culpability. The first assignment of error is therefore overruled.

B. Manifest Weight and Sufficiency

For ease of addressing the other errors, we address Miree’s seventh

assignment of error next. In his seventh assignment of error, Miree contends that

his convictions of felony murder, involuntary manslaughter, and felonious assault

are against the manifest weight of the evidence and that they were supported by

insufficient evidence.

A manifest weight challenge and a sufficiency of the evidence

challenge are two distinct challenges to the evidence presented. State v. Wilson,

,

,

, ¶ 25.

1. Manifest Weight

A challenge to the manifest weight of the evidence ‘“involves the

inclination of the greater amount of credible evidence.’” State v. Harris, 8th Dist.

Cuyahoga No. 109060,

, ¶ 32, quoting State v. Thompkins,

,

(1997). Weight of the evidence examines ‘“the

evidence’s effect of inducing belief.’”

quoting Wilson at

citing

. In reviewing a manifest-weight claim, the court must consider all of the evidence in the record, the reasonable inferences made from it, and the credibility

of the witnesses to determine “‘“whether in resolving conflicts in the evidence, the

factfinder clearly lost its way and created such a manifest miscarriage of justice

* * *.”’”

quoting

, quoting State v. Martin,

,

(1st Dist. 1983). Finally, the discretionary power to grant a new

trial should be reserved for exceptional cases where ‘“the evidence weighs heavily

against the conviction.’” Thompkins at

quoting

.

We find it necessary to note that the testimony of Campbell and

Duncan, the only two witnesses who were actually present in the vehicle, raise

significant credibility concerns. Turning first to Campbell, she testified that at the

time of this incident, she was high on marijuana and admitted that she smoked

marijuana two or three times before the incident. She testified that after the first

shot went off in the vehicle, she felt dazed and testified that “everything was white.”

(Tr. 1373.) Campbell was confronted with the inconsistencies in her testimony on

cross-examination, notably the fact that each time she provided information, she

differed or added something new. Campbell also received a plea deal in exchange

for truthful testimony, which was indicated to the jury many times throughout trial.

Shifting to Duncan, he told a completely different version of the

events. He testified that he was unaware of any tension or problems in the vehicle

because he was listening to music on his headphones in the back seat and did not

become aware that there was a problem until he noticed Hurley pointing a gun at

Miree. This starkly contrasts Campbell’s testimony that Duncan jumped into the cargo area of the vehicle, displayed a gun, and instructed her to remain silent, likely

with the intention of robbing Hurley. Duncan’s testimony that he did not intend to

rob anyone is further contradicted by Campbell’s testimony that the occupants of

the vehicle desired to rob Campbell’s coworker prior to arriving at Hurley’s house

but were unsuccessful.

Moreover, both Campbell and Duncan expressed trepidation in

offering testimony and suggested that inconsistencies in their testimony were

motivated by fear of being a “snitch.” Indeed, we note that B.J., the other individual

who was present in the vehicle during this incident, remains unidentified.

Additionally, the evidence tends to demonstrate that the full story of what occurred

in that vehicle has not been revealed. Specifically, there was testimony that the sole

objective of this excursion was for Miree to supervise a transaction with a new,

unknown marijuana dealer. However, Miree, for reasons unknown, instructed

Campbell to pick up two other individuals that she did not know and had never met

before, along the way. We acknowledge that from the evidence presented, the jury

was tasked with synthesizing divergent testimony, significant circumstantial

evidence, and drawing reasonable inferences therefrom.

The jury was charged with a complicity instruction pursuant to R.C.

2923.03 and thus, could have considered evidence against Duncan as evidence

against Miree if they found that Duncan and Miree were accomplices. The trial court

also instructed that it was within the province of the jury to determine whether Campbell was an accomplice. The evidence presented supports the conclusion that

the defendants acted in concert.

Pertinently, all of the codefendants were present in the vehicle when

Hurley was thrown from it, including B.J. who is unknown to date. Evidence was

presented that Miree instructed Campbell to pick up Duncan and B.J., even though

Campbell did not know them. When asked why Miree instructed her to pick them

up, Campbell stated, “he just said we’ve got to go to that house” and that “there was

no explanation.” (Tr. 1239.) Campbell testified that when Duncan got into the

vehicle, he was being aggressive and asking to drive. After the incident occurred,

Campbell dropped all three passengers off at the same location and they removed

items from the vehicle, including Hurley’s boot. Miree also instructed Campbell to

clean her vehicle and remove evidence, including bullets. Miree came to Campbell’s

residence about four times before she spoke with the police. Even though the jury

rejected the robbery theory, Campbell’s testimony also indicated that she realized at

some point that the occupants wanted to commit a robbery and even attempted to

rob her coworker before reaching Hurley’s home. The weight of the evidence

presented supports a conclusion that the vehicle’s occupants were acting in concert.

To convict Miree of felony murder under R.C. 2903.02(B), the state

was required to prove that Miree caused Hurley’s death as a proximate result of the

commission of a violent felony in the first or second degree. The state listed the

predicate offenses as aggravated robbery and felonious assault, and the jury only

found Miree guilty of felonious assault. For a felonious assault conviction, the state was required to prove that Miree knowingly caused serious physical harm to Hurley.

R.C. 2903.11(A)(1). Serious physical harm, as it relates to this matter, is defined as

physical harm that carries a substantial risk of death and/or involves some

permanent incapacity or disfigurement. R.C. 2901.01(A)(5)(b)-(d). We will

therefore review the evidence supporting the felonious assault, with the knowledge

that Hurley died as a result of this incident, which certainly constitutes serious

physical harm.

A review of the record abundantly supports a felonious assault

conviction. The jury heard testimony from Campbell that Miree punched Hurley in

the head, and testimony from Duncan admitting that he pushed Hurley from a

moving vehicle with the knowledge that Hurley was likely to sustain an injury. Dr.

Barr testified that the deep contusions to Hurley’s face could have been caused by a

physical altercation or the impact with the road. Dr. Barr also testified that Hurley’s

ultimate cause of death, a hinge-type fracture of the neck, is unique because it “takes

a lot of force to generate” and is typically seen “in pedestrians that are hit by cars,

when there are motor vehicle accidents, high velocity, any kind of a high-velocity

injury.” (Tr. 1933.)

Further, a review of the evidence suggests that Miree was a

domineering force in these events, which supports a complicity finding of felonious

assault. He instructed Campbell to pick up Duncan. He instructed Campbell to

drive away from the place where Hurley’s body was left. He instructed Campbell to

completely clean her vehicle, and he allegedly took possession of items left behind in the vehicle. He also visited Campbell prior to Campbell speaking with the police

and encouraged her to dispose of evidence. Miree’s DNA was found on Campbell’s

steering wheel. Finally, Miree removed the marijuana from the scale, which could

have caused Hurley to fire shots and lends itself to an inference that Miree instigated

the situation. All of this considered, a reasonable inference exists that Miree was

complicit in throwing Hurley from the vehicle or culpable of felonious assault solely

through his individual conduct of punching Hurley in the head.

Miree also argues that the state did not meet its burden in proving

that he did not act in self-defense. Pertinently, the jury was instructed:

THE COURT: * * * To prove that the defendants did not use deadly force in self-defense or defense of another, the State must prove beyond a reasonable doubt at least one of the following:

A, the defendant was at fault in creating the situation giving rise to the death of Ramses Hurley;

Or, B, the defendant did not have reasonable grounds to believe and an honest belief, even if mistaken, that he was in imminent or immediate danger of death or great bodily harm;

Or, C, the duty, the defendant violated a duty to retreat to avoid danger;

Or, D, the defendant did not use reasonable force.

(Tr. 2448-2449.)

A review of the facts indicates that the jury could have concluded that

Duncan and/or Miree were not acting in self-defense. Testimony indicated that

Miree grabbed the marijuana from the scale without paying for it, which lends itself

to an inference that Miree was an instigator. There is also evidence that Miree instigated the entire situation by inviting Duncan and B.J. into the vehicle on the

way to Hurley’s home. Though this is not an exhaustive list, we conclude that the

record tends to support that the jury could have rejected that Duncan and Miree

were acting in self-defense.

Miree also argues that his involuntary manslaughter conviction was

against the manifest weight of the evidence. Under R.C. 2903.04(A), the state was

required to prove that Miree caused Hurley’s death as a proximate result of

committing or attempting to commit a felony. Again, the state named the predicate

felonies as aggravated robbery and felonious assault; since the jury acquitted Miree

of all robbery charges, felonious assault was the predicate felony. We already

determined that the evidence supports a finding of felonious assault, and further

supports a finding that these actions actually caused the death of Hurley.

After reviewing the record, weighing the evidence, reviewing all

reasonable inferences, and examining witness credibility, we cannot conclude that

the jury lost its way and created such a manifest miscarriage of justice to warrant a

new trial.

2. Sufficiency of the Evidence

“A claim of insufficient evidence raises the question whether the

evidence is legally sufficient to support the verdict as a matter of law.” State v.

Parker, 8th Dist. Cuyahoga No. 110716,

, citing Thompkins,

,

. The relevant inquiry in a sufficiency challenge is

whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime existed

beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus. When making a sufficiency determination, an

appellate court does not review whether the state’s evidence is to be believed but

whether, if believed, the evidence admitted at trial supports the conviction. State v.

Starks, 8th Dist. Cuyahoga No. 91682,

, ¶ 25, citing

. Under a sufficiency challenge, witness credibility is immaterial; the appellate

court must defer to credibility determinations of the trier of fact and only review

issues of law. Parker at ¶ 7.

Balancing the evidence and testimony discussed above, as well as all

other evidence in the record, we find that any reasonable factfinder could find that

Miree intended to cause serious physical harm to Hurley and that Hurley’s death

proximately resulted from Miree’s actions. Thus, the evidence presented, if

believed, was sufficient to establish the elements of murder, felonious assault, and

involuntary manslaughter.

We therefore overrule Miree’s seventh assignment of error.

C. Lesser Included Offenses

In his second assignment of error, Miree argues that the trial court

erred in failing to instruct the jury on the lesser included offenses of reckless assault,

reckless homicide, and involuntary manslaughter as a third-degree felony. Miree’s

trial counsel requested these instructions, which the trial court denied. Trial courts have broad discretion to determine whether the record

contains sufficient evidentiary support to warrant a jury instruction on a lesser

included offense, and that will not be reversed absent an abuse of discretion. State

v. Henderson, 8th Dist. Cuyahoga No. 89377,

, citing State v.

Wright, 4th Dist. Scioto No. 01CA2781,

(Mar. 26,

2002). An abuse of discretion connotes a trial court’s decision that is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983). When considering evidence of a lesser included offense, the

court must view it in a light most favorable to the defendant. State v. Campbell,

,

(1994). The instruction, however, is not warranted

in every instance where some evidence is presented on a lesser included offense.

State v. Smith, 8th Dist. Cuyahoga No. 90478,

, citing State v.

Shane,

,

(1992). An instruction on a lesser

included offense is required only where “the evidence presented at trial would

reasonably support both an acquittal on the crime charged and a conviction upon

the lesser included offense.” State v. Thomas,

,

(1988), paragraph two of the syllabus.

The Ohio Supreme Court provides a two-tiered analysis for

determining whether a lesser included instruction is warranted.

The first tier, also called the “statutory-elements step,” is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense. State v. Kidder,

,

(1987). The second tier looks to the evidence in a particular case and determines whether “‘a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.’” [State v. Evans,

,

,

], quoting Shaker Heights v. Mosely,

, 2007-Ohio- 2072,

. Only in the second tier of the analysis do the facts of a particular case become relevant.

State v. Deanda,

,

,

.

Miree first argues that he was entitled to a jury instruction under

Counts 5 and 6 (felonious assault) for the lesser included offense of reckless assault

pursuant to R.C. 2903.13(B). The jury did not enter a finding of guilt for Count 6

pursuant to R.C. 2903.11(A)(2), which specifies that the assault was caused by a

deadly weapon. Accordingly, Miree did not suffer any prejudice from the court’s

failure to instruct the jury on the lesser included offense as it relates to Count 6, so

we will only review Count 5.

In denying the request, the trial court reasoned:

I certainly don’t think it applies to Count 6 in as much as that has the additional component of a deadly weapon. And, likewise, given the facts of the case, I don’t think it would apply towards Count 5 either.

(Tr. 2419.)

The first tier of the Deanda test is satisfied. This court has previously

recognized reckless assault as the lesser included offense of felonious assault. State

v. McPherson, 8th Dist. Cuyahoga No. 92481,

, ¶ 7.

Next, we review the second tier. Felonious assault as defined by R.C.

2903.11(A)(1), requires that an offender act “knowingly,” while reckless assault, as

defined by R.C. 2903.13(B), requires that an offender act “recklessly.” This is the

only difference between the two offenses. A person acts knowingly when the person is aware that their conduct will probably cause a certain result. R.C. 2901.22(B). A

person acts recklessly when, with heedless indifference to the consequences, they

disregard a substantial and unjustifiable risk that their conduct is likely to cause a

certain result. R.C. 2901.22(C).

Under R.C. 2901.22(A), the state was not required to prove that

Duncan or Miree acted with the specific intention to cause a certain result. State v.

Jackson, 10th Dist. Franklin No. 94APA04-531,

, 14

(Dec. 8, 1994). Rather, the state need only prove that the defendant acted

knowingly, regardless of his purpose.

We therefore find that no reasonable juror

would have found that Miree punching Hurley was committed recklessly rather than

knowingly. The same may be said if the jury believed that Duncan pushed Hurley

from a moving vehicle, pried Hurley’s fingers from the door, and left Hurley in a

road where a vehicle could strike him. Indeed, Duncan even testified that he knew

Hurley would sustain an injury from being thrown from the vehicle. Therefore, the

second tier of the analysis is not met, and the trial court did not err in concluding

from the facts that a reckless assault instruction was not warranted.

Next, Miree sought a jury instruction under Counts 1 and 2

(aggravated murder and felony murder), for the lesser included offense of reckless

homicide. The jury acquitted Miree of aggravated murder. Accordingly, Miree did

not suffer any prejudice from the court’s failure to instruct the jury on the lesser

included offense of reckless homicide. Any error as it pertains to the aggravated

murder count is therefore harmless. Proceeding to felony murder, we apply the first prong of the Deanda

test. The Ohio Supreme Court does not recognize reckless homicide as a lesser

included offense of felony murder with a felonious assault predicate because

“reckless homicide includes an element that felony murder lacks — being reckless

with regard to the possibility of causing a death * * *.” State v. Owens,

,

,

. Accordingly, the trial court did

not err in failing to instruct the jury on reckless homicide as it related to aggravated

murder and felony murder.

Finally, Miree sought a jury instruction under Count 8 (involuntary

manslaughter in the first degree) for the lesser included offense of involuntary

manslaughter in the third degree. Where the elements of two offenses are “identical

to or contained within the indicted offense, except for one or more mitigating

elements,” the lesser offense is considered an inferior degree offense. State v. Deem,

,

(1988). Under R.C. 2903.04(A),

involuntary manslaughter is a first-degree felony if the predicate offense is a felony.

Under R.C. 2903.04(B), involuntary manslaughter is a third-degree felony if the

predicate offense is a misdemeanor, regulatory offense, or minor misdemeanor.

Involuntary manslaughter in the third degree is plainly a lesser offense of

involuntary manslaughter in the first degree. The first tier of the Deanda test is

satisfied as to Miree’s request for a third-degree involuntary manslaughter

instruction. Next, we apply the second tier of Deanda. Involuntary manslaughter

decreases from a first-degree felony to a third-degree felony when the predicate

offense is no longer a felony, but a misdemeanor. In the instant matter, the predicate

felonies for the involuntary manslaughter count were listed as either aggravated

robbery or felonious assault. Because the jury acquitted Miree of aggravated

robbery, any error is harmless and we need not examine it.

Turning next to involuntary manslaughter with a felonious assault

predicate, Miree argues that because he was entitled to an instruction on reckless

assault, that could have served as the predicate offense for an instruction on

involuntary manslaughter in the third degree. Because we did not find that Miree

was entitled to an instruction on reckless assault, we need not determine whether

he was entitled to an instruction on involuntary manslaughter in the third degree.

Finding no other predicate offense to support involuntary manslaughter in the third

degree, we need not inquire further.

Finding no error by the trial court, we overrule Miree’s second

assignment of error.

D. Self-Defense and Duty to Retreat

1. Self-Defense

In his third assignment of error, Miree contends that the trial court

misapplied the laws of self-defense in instructing the jury. In his eighth assignment

of error, he claims that trial counsel was ineffective for failing to object to the given

self-defense instructions. Particularly, Miree argues that the jury instructions only contemplated deadly force, and it was the state’s burden to present a case that

allowed the jury to conclude whether the force was deadly or nondeadly.

This distinction between deadly and nondeadly force was never raised

by the defense, nor was any objection made to the self-defense portions of the jury

instructions. Further, a review of the record indicates that Miree’s counsel actually

provided the jury instruction that he now raises as an error.

[MIREE’S COUNSEL]: * * * Evidence was presented that tends to support a finding that the defendant used deadly force in self-defense.

(Tr. 2055.)

The trial court presented this “deadly force” language in its charge to

the jury. Miree is attempting to raise as error an instruction that he introduced. The

invited-error doctrine forecloses any successful argument on appeal. “Under the

settled principle of invited error, a litigant ‘may not take advantage of an error which

he himself invited or induced.’” State v. Murphy,

,

(2001), quoting Hal Artz Lincoln-Mercury v. Ford Motor Co.,

,

(1986), paragraph one of the syllabus, citing Lester v. Leuck,

,

(1943).

“A reviewing court will strongly presume that counsel rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-

Ohio-2175, ¶ 69. The burden rests with the defendant to establish that counsel’s

performance fell below an objective standard of reasonable representation. State v. Bradley,

,

(1989), paragraph two of the syllabus;

Strickland v. Washington,

,

,

(1984). To

establish a claim, appellant must show that (1) counsel’s performance was deficient;

and (2) the result of appellant’s trial would have been different had defense counsel

provided proper representation.

; State v. Brooks,

,

(1986).

The failure to make objections, alone, is not enough to sustain a claim

of ineffective assistance of counsel. State v. Holloway,

,

(1988). Furthermore, on numerous occasions, this court has addressed

that invited error is a matter of trial strategy, and appellate courts will not question

matters of trial strategy. See, e.g., State v. Virostek, 8th Dist. Cuyahoga No. 110592,

; State v. Doss, 8th Dist. Cuyahoga No. 84433,

; State v. Benitez, 8th Dist. Cuyahoga No. 98930,

; State v.

West, 8th Dist. Cuyahoga Nos. 97391 and 97900,

. This is

because ‘“[t]here is no point in having a stringent invited error doctrine only to allow

it to be overcome by finding counsel ineffective for having invited the error.’” State

v. James,

,

, ¶ 29 (8th Dist.), quoting Doss at

Miree states that counsel was ineffective for failing to object to the

self-defense instructions as they pertained to distinguishing deadly and nondeadly

force. However, trial counsel provided these instructions, which constitutes trial

strategy. Therefore, we find that any error was invited, and we will not consider it

as ineffective assistance of counsel. 2. Duty to Retreat

In his third assignment of error, Miree also argues that the trial court

erred in instructing the jury regarding his potential duty to retreat before acting in

self-defense. R.C. 2901.09, governing the duty to retreat, was amended after the

subject offense occurred. Part of the amendments included the addition of

subsection (C), which was in effect at the time of trial and reads:

(C) A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person’s residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.

R.C. 2901.09(C).

Miree argues that the trial court erred in instructing the jury that he

had a duty to retreat, which runs afoul of the amendment to R.C. 2901.09 that was

in effect at the time of trial.

A statute may not be applied retroactively unless expressly made

retroactive. Hyle v. Porter,

,

,

,

¶ 9. Further, a statute is presumed to operate prospectively unless expressly made

retroactive. R.C. 1.48. Further, this court has noted that ‘“[i]n Ohio, when the

General Assembly reenacts, amends, or repeals a criminal statute, the substantive

provisions of the former law apply to all pending prosecutions, but the defendants

receive the benefit of a reduced “penalty, forfeiture, or punishment” in the statute as

amended, unless the General Assembly expresses another intent.’” State v. Hurt,

8th Dist. Cuyahoga No. 110732,

, quoting State v. Solomon,

,

, ¶ 16 (1st Dist.), citing R.C. 1.58, and State v. Rush,

,

(1998).

This court has previously held that R.C. 2901.09(C) does not apply

retroactively and is not required when subsection (C) was not in effect at the time of

the offense. Hurt at ¶ 61; State v. Claytor, 8th Dist. Cuyahoga No. 110837, 2022-

Ohio-1938, ¶ 79. Consistent with this court’s previous holdings, we find that the trial

court did not err in instructing the jury on the duty to retreat because it existed at

the time of the offense. Additionally, one of our sister districts, the Second District,

has come to the same conclusion regarding the amendments to R.C. 2901.09. See,

e.g., State v. Jones, 2d Dist. Montgomery No. 29214,

; State v.

Degahson, 2d Dist. Clark No. 2021-CA-35,

; see also

(declining to address duty-to-retreat errors because the inquiry appears purely

academic when the place of retreat that is contemplated is a vehicle, where retreat

is difficult to conceive).

We are also unpersuaded that the Supreme Court’s recent opinion in

State v. Brooks, Slip Opinion No.

, addressing the 2019

amendments to the self-defense statute (R.C. 2901.05), extends to the duty to retreat

amendments. In Brooks, the Ohio Supreme Court held that the amendments to R.C.

2901.05 applied prospectively to all trials after the amendment’s effective date,

regardless of when the underlying conduct occurred. Id. at ¶ 23. In making this

determination, the Brooks Court reasoned that R.C. 2901.05 as amended only

shifted the burden and did not change the substance of a self-defense claim. Id. at ¶ 15 (the amendments neither provide nor take away any substantive right because

even under the former R.C. 2901.05, defendants still had a right to make a self-

defense claim). The duty to retreat amendment is different. Pursuant to this court’s

finding in Hurt, the amended R.C. 2901.09(C) is a substantive change inasmuch as

it pertains to an element of the offense and removes an element that the factfinder

must consider. Hurt at ¶ 61.

Unlike the self-defense amendments that merely shift the burden, the

amended R.C. 2901.09(C) is a substantive change and cannot be applied

retroactively. The law as it existed at the time of the offense is the law that the jury

must consider.

We therefore find that the trial court properly instructed the jury

pursuant to the version of R.C. 2901.09 that was in effect at the time of the offense.

Miree’s third assignment of error is overruled.

E. June 19 Video Interview

In his fourth assignment of error, Miree alleges that the video of

Campbell’s interview with the detectives, occurring on June 19, 2019, was

improperly admitted into evidence during the state’s redirect examination of

Campbell. Miree specifically objects to an emotional 18-minute segment of the

video where Campbell and her grandmother are hugging, praying, and discussing

the consequences of Campbell’s actions. Campbell’s grandmother encourages

Campbell to be truthful and implies that Campbell’s codefendants were not truthful. Miree alleges that the segment was prejudicial to him because it violated Evid.R.

401, 402, 403, 404, 802 and improperly appealed to the juror’s sympathies.

The admission or exclusion of evidence is left to the sound discretion

of the trial court. State v. Rogers, 8th Dist. Cuyahoga No. 105879,

, citing State v. Sage,

,

(1987). Further, whether

evidence is relevant, confusing, or misleading is best left to the discretion of the trial

court who is in a better position to analyze the evidence’s impact on the jury. Renfro

v. Black,

,

(1990), citing Columbus v. Taylor,

,

(1988); Calderon v. Sharkey,

,

(1982).

We first note that Miree’s counsel was given an opportunity to review

the footage and mark specific segments for redaction, which Miree’s counsel did.

Since the record indicates that Miree’s counsel was given an opportunity to review

the footage and did not object to this segment, we are constrained to a plain error

analysis.

In the absence of objection, any error is deemed to have been waived unless it constitutes plain error. To constitute plain error, the error must be obvious on the record, palpable and fundamental so that it should have been apparent to the trial court without objection. See State v. Tichon,

,

(1995). Moreover, plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court’s allegedly improper actions. State v. Waddell,

,

(1996). Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips,

,

(1995). State v. Potter, 8th Dist. Cuyahoga No. 81037,

, ¶ 43.

During trial, Miree’s defense centered around portraying Campbell as

an unreliable witness who was coerced into her statements and confessions by

detectives and cooperated out of fear. The state contends that this portion of the

video was admissible because it demonstrates that Campbell was encouraged to do

the right thing and be truthful. We agree and will not disturb the judgment of the

trial court. We further conclude that it is unlikely that the redaction of this footage

would have changed the outcome of the trial because the jury clearly did not find

Campbell credible in rejecting to convict Miree and Duncan on any robbery-related

charges, despite this segment of the video tending to show that Campbell was

providing truthful statements.

We also address Miree’s eighth assignment of error, alleging that

Miree’s trial counsel provided ineffective assistance of counsel in failing to ensure

that this segment was redacted from the exhibit. “[T]rial strategy or tactical

decisions ‘cannot form the basis for a claim of ineffective assistance of counsel.’”

State v. Frierson,

,

(8th Dist.), quoting

McMann v. Richardson,

,

,

(1970); State

v. Sanchez, 8th Dist. Cuyahoga No. 103078,

. Noting that

Miree’s trial counsel reviewed the footage and marked other sections for redaction,

we can only assume that failure to mark these sections for redaction was a trial

strategy. And, indeed, this may have been tactical in an effort to impeach Campbell by demonstrating that even after this emotional segment, she still did not tell the

full story.

Miree’s fourth and eighth assignments of error are overruled.

F. Crime-Scene Evidence

Miree’s fifth assignment of error alleges that the trial court erred in

refusing to grant a mistrial pursuant to the contention of Duncan’s trial counsel that

the subject vehicle was destroyed in bad faith, before trial counsel had an

opportunity to examine it. Miree’s counsel joined this motion. The state responded

that there was no bad faith because Campbell, the owner of the vehicle, was notified

pursuant to internal policy that the vehicle was ready to be released.

At trial, Sergeant Reese testified that after all the evidence was

gathered, Campbell’s attorney was notified that the car was released and ready for

pickup. Seven weeks later, having received no response, the vehicle was destroyed

on August 30, 2019. He testified that this was department policy. Miree and

Duncan were not arrested in connection with this incident until December of 2019,

and, therefore, would not have been contacted about maintaining the vehicle for

evidentiary purposes.

Duncan’s counsel called Richard Cerny, a retired accident

reconstruction detective for the Cleveland Police, who testified that the standard

operating procedure was to retain the vehicle until trial of the matter.

Miree contends that he was denied examination of the vehicle for

potential exculpatory evidence, including swabs of the far back seat, the backseats, the door where Hurley’s fingers were allegedly pried from, and the cargo area where

Duncan was allegedly hiding. The state argues that mere “potential” to contain

exculpatory evidence is not significant enough to warrant a mistrial.

We first note that even if error existed here, Miree’s request for a new

trial does not remedy the error. Because the vehicle was destroyed, it is not available

for reexamination. Additionally, the jury was made aware that evidence was missing

from the vehicle due to the fact that it was not retained. Trial counsel for Duncan

and Miree cross-examined Sergeant Reese about the destruction of the vehicle.

Further, Duncan’s counsel called Richard Cerny, a retired accident reconstruction

detective for the Cleveland police who testified that the standard operating

procedure was to retain the vehicle until trial of the matter. We fail to see what could

be done differently at a new trial.

Nonetheless, we find that there was no error in denying a mistrial.

Unless there is a showing of bad faith, “failure to preserve potentially useful evidence

does not constitute a denial of due process of law, nor should it lead to a presumption

of suggestiveness.” State v. Keith,

,

(1997),

citing Arizona v. Youngblood,

,

,

(1988). Miree has not made a showing of bad faith, and we find nothing in the record

to support a finding of bad faith. As a result, Miree’s fifth assignment of error is

overruled. G. Juvenile Record

Miree’s sixth assignment of error asserts that the trial court erred in

refusing to grant a mistrial, but this time on the basis of Duncan’s juvenile record

being admitted into evidence. Miree argues that Duncan’s significant juvenile

record adversely affected him and was unfairly prejudicial.

During trial, the state noted their intent to cross-examine Duncan on

his juvenile record if the defense opened the door to his juvenile adjudications.

Briefing was done overnight, and Miree’s counsel moved to bar all mention of

Duncan’s juvenile adjudications and moved for a mistrial if they were allowed,

because of their unfair prejudice to Miree. The court significantly limited the state’s

mention of the juvenile record, allowing only one of Duncan’s 2017 adjudication of

aggravated robbery and kidnapping with firearm specifications.

The admission or exclusion of evidence is a matter left to the trial

court’s sound discretion; therefore, it will not be disturbed absent an abuse of

discretion. State v. Simmons, 8th Dist. Cuyahoga No. 98613,

,

citing State v. Frazier, 8th Dist. Cuyahoga No. 97178,

. An

abuse of discretion connotes a trial court’s decision that is unreasonable, arbitrary,

or unconscionable. Blakemore,

,

.

Granting a mistrial is within the sound discretion of the trial court.

State v. Garner,

,

(1995). Mistrials need only

be declared when the ends of justice so require and a fair trial is no longer possible.

citing State v. Franklin,

,

(1991). Mistrials should be granted with great caution, under urgent circumstances, and for very plain

and obvious reasons. State v. Bogan, 8th Dist. Cuyahoga No. 106183, 2018-Ohio-

4211, ¶ 24.

The trial court significantly limited Duncan’s prior record, allowing

the prosecution to mention only one adjudication. We find no abuse of discretion

in the trial court’s determination to limit the record. We also note that the trial court

gave a limiting instruction pursuant to Miree’s request. The court instructed the

jury, “Moreover, any evidence of Desmond Duncan’s juvenile court history cannot

be considered for any purpose when evaluating evidence against Jaidee Miree.”

(Tr. 2441.)

Juries are presumed to follow all instructions given to them, including

limiting instructions. State v. Ahmed,

,

,

, ¶ 93, 147; State v. Hancock,

,

,

.

Accordingly, Miree’s sixth assignment of error is overruled.

H. Sentencing

In his final assignment of error, Miree maintains that his life sentence

pursuant to R.C. 2929.02(B) is contrary to law and further argues that the sentence

is unconstitutional.

Pursuant to R.C. 2929.02(B), the sentence must be worded as “an

indefinite term of fifteen years to life.” Instead, the trial court wrote “a life sentence

without the possibility of parole for 15 years.” The state concedes that the trial court erred in this respect. We therefore vacate that portion of the judgment entry and

remand for resentencing.

Miree also contends that the trial court erred in issuing a mandatory

life sentence, arguing that it was unconstitutional. In support of his contention,

Miree asks us to extend the Ohio Supreme Court’s holding in State v. Patrick,

,

,

, to any juvenile sentenced to life,

even with the possibility of parole. Patrick holds that “a trial court must separately

consider the youth of a juvenile offender as a mitigating factor before imposing a life

sentence under R.C. 2929.03, even if that sentence includes eligibility for parole.”

. This holding, however, is constrained by R.C. 2929.03, which

specifically pertains to sentencing for aggravated murder. We decline to extend

Patrick’s holding to the case at bar, consistent with State v. Carlock, 7th Dist.

Jefferson No. 19 JE 0017,

, and State v. Fuell,

,

(12th Dist.).

We therefore find that the trial court’s sentence consistent with R.C.

2929.02(B)(1) was not contrary to law and, therefore, find no error.

We further note that during sentencing, the court addressed Miree

and Duncan, stating:

THE COURT: * * * Unfortunately, nothing I can say or do is going to bring that young man back. Nothing I can say or do is going to stop you from spending the next — if I had to guess probably save an appeal, 20 plus years at least in the penitentiary. Half your life or your life at this point in time. So it doesn’t really do me any good to sit here and lecture you, but maybe it would be a message for everybody else to understand that you can’t be doing this stuff. And you guys have a record, which at least supports an argument that this isn’t your first foray into the system. You should have known better.

I’ll give Mr. Cafferkey his arguments to say you’re young men and maybe you’re not as wise as you would or should be or would become, but this isn’t just your first spot here. You play with fire, you’re going to get burned.

(Tr. 2703.)

The trial court’s direct statements during sentencing indicate that

Miree’s youth was taken into consideration during sentencing. We therefore

overrule this portion of Miree’s final assignment of error.

III. Conclusion

Pursuant to Miree’s ninth assignment of error, we vacate the

sentencing entry of the trial court and remand for resentencing consistent with the

language required by R.C. 2929.02(B).

We overrule all of Miree’s other assignments of error. Miree’s

bindover from juvenile court was supported by sufficient evidence; Miree’s

convictions were not based on insufficient evidence nor were they against the

manifest weight of the evidence; the trial court did not err in instructing the jury on

self-defense; the trial court did not err in admitting evidence that Miree claims was

prejudicial; the trial court did not err in denying all motions for a mistrial; Miree did

not receive ineffective assistance of counsel; and his life sentence does not violate

his constitutional rights. Appellant’s convictions are affirmed. Affirmed in part, vacated in part, and remanded to the lower court

for resentencing consistent with this opinion.

It is ordered that the parties share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

CORNELIUS J. O’SULLIVAN, JR., J., CONCURS; EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION

EILEEN A. GALLAGHER, J., DISSENTING:

I respectfully dissent. I would sustain Miree’s second and third

assignments of error in part, reverse Miree’s convictions for murder, felonious

assault and first-degree felony involuntary manslaughter (Counts 2, 5 and 8) and

remand for a new trial on those counts. Lesser Included Offenses

In his second assignment of error, Miree contends that he was

denied due process and a fair trial because the trial court refused to instruct the jury,

as requested, regarding (1) assault under R.C. 2903.13(B) (“reckless assault”) as a

lesser included offense of felonious assault as charged in Count 5, (2) third-degree

felony involuntary manslaughter under R.C. 2903.04(B) (with reckless assault as

the predicate offense) as a lesser included offense of felony murder (with felonious

assault as the predicate offense) as charged in Count 2 and first-degree felony

involuntary manslaughter (with felonious assault as the predicate offense) as

charged in Count 8 and (3) reckless homicide under R.C. 2903.041 as a lesser

included offense of aggravated murder as charged in Count 1 and first-degree felony

involuntary manslaughter as charged in Count 8. Miree asserts that, if the jury been

instructed on reckless assault, it might have determined that the defendants did not

cause serious physical harm to Hurley knowingly, but recklessly, finding him not

guilty of felonious assault and guilty of reckless assault. He further argues that

because reckless assault is a misdemeanor, a conviction for reckless assault (rather

than felonious assault) could not support a conviction for felony murder as charged

in Count 2 or a conviction for first-degree felony involuntary manslaughter as

charged in Count 8.

“A criminal defendant is sometimes entitled to a jury instruction that

allows the jury to consider convicting the defendant of a lesser included offense as

an alternative to convicting for the offense for which the defendant was charged.” State v. Owens,

,

,

,

citing State v. Thomas,

,

(1988).

Count 5 charged Miree with felonious assault under R.C.

2903.11(A)(1), which states, in relevant part, “No person shall knowingly * * *

[c]ause serious physical harm to another.” Reckless assault is proscribed in R.C.

2903.13(B), which provides, in relevant part, “No person shall recklessly cause

serious physical harm to another.” Count 2 charged Miree with felony murder under

R.C. 2903.02(B) which states, “No person shall cause the death of another as a

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

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

[R.C.] 2903.03 or 2903.04.” Count 8 charged Miree with first-degree felony

involuntary manslaughter under R.C. 2903.04(A), which states, in relevant part,

“No person shall cause the death of another * * * as a proximate result of the

offender’s committing or attempting to commit a felony.” Third-degree felony

involuntary manslaughter is proscribed in R.C. 2903.04(B), which provides, in

relevant part, “No person shall cause the death of another * * * as a proximate result

of the offender’s committing or attempting to commit a misdemeanor of any

degree.”

The parties do not dispute that, as statutorily defined, reckless

assault in violation of R.C. 2903.13(B) is a lesser included offense of felonious

assault in violation of R.C. 2903.11(A)(1), see, e.g., State v. Benson, 8th Dist.

Cuyahoga No. 106214,

, ¶ 24, State v. Holcomb, 7th Dist. Columbiana No.

,

, or that because reckless assault

is a misdemeanor, a conviction for reckless assault (rather than felonious assault)

could not support a conviction for felony murder as charged in Count 2 or a

conviction for first-degree felony involuntary manslaughter as charged in Count 8,

but could, instead, support a conviction for third-degree felony involuntary

manslaughter under R.C. 2903.04(B).2 At issue in this case is whether sufficient

evidence was presented below to warrant a jury instruction on reckless assault as a

lesser included offense.

A trial court must instruct the jury on a lesser included offense if,

under any reasonable view of the evidence, it would be possible for the jury to find

defendant not guilty of the offense charged and guilty of the lesser offense. See, e.g.,

State v. Wine,

,

,

;

see also Thomas,

,

, at paragraph two of the

syllabus (“Even though an offense may be statutorily defined as a lesser included

offense of another, a charge on such lesser included offense is required only where

2 Miree also asserts that he was entitled to an instruction on reckless homicide as a lesser included offense of aggravated murder as charged in Count 1 and first-degree felony involuntary manslaughter as charged in Count 8. I agree that Miree has not shown that the trial court committed reversible error in failing to give an instruction on reckless homicide. As the majority points out, Miree was acquitted of aggravated murder as charged in Count 1. Miree cites no legal authority and makes no argument in support of his claim that reckless homicide under R.C. 2903.041 is a lesser included offense of first- degree felony involuntary manslaughter as charged in Count 8. App.R. 12(A)(2), 16(A)(7); cf. Owens,

,

,

(“Because felony murder has no mens rea requirement in regard to the death of a victim, whereas reckless homicide has the mens rea of recklessness, reckless homicide is not a lesser included offense of felony murder.”). the evidence presented at trial would reasonably support both an acquittal on the

crime charged and a conviction upon the lesser included offense.”); State v. Miller,

8th Dist. Cuyahoga No. 109130,

. An appellate court reviews

a trial court’s decision whether to give a requested jury instruction on a lesser

included offense for abuse of discretion. State v. Parker, 8th Dist. Cuyahoga No.

110563,

; Miller at ¶ 87, citing State v. Rucker,

,

(8th Dist.).

The distinguishing element between felonious assault under R.C.

2903.11(A)(1) and reckless assault under R.C. 2903.13(B) is whether the defendant

acted knowingly or recklessly.

A person acts “knowingly” when, “regardless of purpose,” “the person

is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B). A person acts “recklessly” when,

“with heedless indifference to the consequences, the person disregards a substantial

and unjustifiable risk that the person’s conduct is likely to cause a certain result or

is likely to be of a certain nature.” R.C. 2901.22(C). Both offenses require that the

act caused serious physical harm.3

3 “Serious physical harm to persons” is any of the following:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; (d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; The state maintains that the trial court did not abuse its discretion in

refusing to give Miree’s requested jury instructions on lesser included offenses

because, based on Campbell’s testimony, the evidence showed that Duncan and

Miree “acted knowingly, not recklessly” and was, therefore, “insufficient to warrant

the requested instructions.”

In support of its position, the state points to the following testimony

by Campbell:

The testimony given by Trinity Campbell was that she and the Appellant with Duncan went to the victim’s home for what she understood to be a robbery. Tr. 1247-48; Tr. 1257. Once she pulled up, Duncan jumped into the rear of the vehicle and hid. Tr. 1251-52. Once the marijuana was on the console, the Appellant, who had a firearm, snatched it. Tr. 1255. Another gun came out and went off, and Trinity Campbell testified that Duncan had the victim in a headlock with a gun to him, and the Appellant was punching him in the face. Tr. 1255-56, 1588. These individuals acted knowingly, not recklessly. The Appellant committed a felonious assault when he was punching the victim over and over in the face while Duncan had a firearm and he was tossed out of the vehicle. This was the evidence at trial and what the trial court had to assess when deciding whether to instruct on lesser included offenses.

However, Campbell’s testimony alone is not dispositive of the issue.

In determining whether lesser included offense instructions are appropriate, a trial

court is required to consider all the evidence presented, viewing that evidence in the

light most favorable to the defendant. Wine,

,

,

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5).

, citing State v. Monroe,

, 2005-Ohio-

2282,

, ¶ 37; Miller, 8th Dist. Cuyahoga No. 109130, 2021-Ohio-

2924, at ¶ 86. That evidence included Duncan’s testimony.

In support of its determination that “the trial court did not err in

concluding from the facts that a reckless assault instruction was not warranted,” the

majority observes:

[N]o reasonable juror would have found that Miree punching Hurley was committed recklessly rather than knowingly. The same may be said if the jury believed that Duncan pushed Hurley from a moving vehicle, pried Hurley’s fingers from the door, and left Hurley in a road where a vehicle could strike him. Indeed, Duncan even testified that he knew Hurley would sustain an injury from being thrown from the vehicle.

See ¶ 54 above. I do not believe the majority’s view of “the facts” is consistent with

the requirement that the evidence be viewed in the light most favorable to the

defendant.

Miree did not testify at trial. Duncan testified that Campbell had

agreed to give him, Miree and B.J. a ride to the music studio, where Duncan worked

on his hip-hop music. Tr. 2217-2219, 2224. Duncan indicated that Campbell was in

the driver’s seat, that he was in the rear passenger seat behind Campbell, that Miree

was in the front passenger seat and that B.J. was seated behind Miree. Tr. 2227-

2228, 2232-2233. Duncan stated that although the others were planning to stop

and purchase marijuana on the way, he did not need any marijuana and that he was

wearing headphones and listening to music as Campbell drove. Tr. 2224-2225,

2233, 2236. Duncan testified that when they arrived at the location arranged for

the marijuana purchase, the drug dealer, Hurley, opened the rear driver-side door

and got into the vehicle, and Duncan moved over into the rear middle seat. Tr. 2233-

2236. Duncan testified that he heard “shouting over his music” and that when he

pulled out his headphones, he saw that Hurley had a gun and was pointing it at

Miree. Tr. 2236-2237.

Duncan testified that he had no intent to rob Hurley or anyone else

that day, denied that he had wanted to harm Hurley and denied that he had crawled

over the back seat and hid in the trunk area of the vehicle with a gun as described by

Campbell. Tr. 2235, 2243-2244, 2247-2248, 2365.

Duncan testified that when he saw Hurley’s gun, he grabbed Hurley’s

hands, which were around the gun, and pulled them towards him. Tr. 2237-2238.

He stated that they were in “kind of like a tug of war” when Hurley fired the gun once

towards Miree. Tr. 2238. Duncan stated that he thought Hurley had shot Miree.

Tr. 2240-2241. As Hurley pulled back away from Duncan and they continued to

struggle for the gun, a second shot “went off” towards Campbell. Tr. 2238-2239.

Duncan stated that he then thought Campbell had been shot. Tr. 2245-2246.

Duncan stated that, at this point, Hurley’s back was turned toward

the rear driver-side door and Duncan was “almost, like, in his lap.” Tr. 2239.

Duncan testified that, as they continued to struggle, Hurley dropped the gun and it

fell onto the floor of the vehicle in front of their feet. Tr. 2239-2240. Duncan stated

that he did not attempt to retrieve the gun because he was not trying to shoot Hurley; he just wanted to get the gun away from Hurley. Tr. 2240. Duncan testified that he

thought that if Hurley retrieved the gun, Hurley would shoot Duncan too. Tr. 2241,

2365.

As to what happened next, Duncan testified:

Q. So once you’re reaching for [Hurley’s] hands —

A. Yes.

Q. — and the gun falls, what did you decide to do?

A. Well, push him out of the car. That’s what — that’s the first thing that came to my mind. Like, we were up against the car and on the car, so that was pretty much the first thing that came to my mind.

Q. Did you — did you know that the car was moving at that moment?

A. I didn’t know it was moving. When I see on the video, I couldn’t even really believe it. But, like, I didn’t know it was moving.

Tr. 2241-2242.

Duncan testified that, to avoid getting shot, he felt like he either had

to “go for the gun” or push Hurley out of the vehicle and that he chose to push Hurley

out of the vehicle:

Q. Just to be clear, why did you push him out of the car?

A. I just wanted him away from the gun. Like, that’s all. I wanted him away from the gun. Like, I didn’t want to try to go for the gun and then he gets the gun because it would have been us both going for the gun. I would have had to let him go and then we both going for the gun then and now he gets the gun and then — * * * He could have done anything. Kicked it, anything. I wasn’t — that was the first thing for my mind. Once I got the gun out of his hands, I felt comfortable enough that — to push him out of the car and get him away from the gun. Tr. 2242-2243, 2255. Duncan denied that Miree punched Hurley. Duncan stated

that he was “the only one who touched [Hurley].” Tr. 2353.

Duncan testified that he did not call police after the incident because

he “didn’t know [Hurley] was dead” and “nobody [he] was with was hurt.” Tr. 2244.

Duncan stated, “I’m not going to say I didn’t think [Hurley] was hurt. He got pushed

out of a car, but I didn’t think he was dead.”

Duncan did not testify that “he

knew Hurley would sustain an injury from being thrown from the vehicle,” as the

majority posits.

The incident was captured, in part, on surveillance video footage

obtained from a nearby apartment complex. The video shows the vehicle’s

movements prior to, at the time of, and immediately following the incident. At the

time Hurley was pushed out of the vehicle, it appears the vehicle was moving very

slowly.

Considering all of the evidence presented at trial, viewed in the light

most favorable to Miree, including Duncan’s testimony, the surveillance video, the

chaos that erupted inside the vehicle and the very brief time that elapsed between

Hurley entering the vehicle, the shots being fired inside the vehicle and Hurley being

pushed from the vehicle, I believe a jury could have reasonably found that the

defendants acted “recklessly” — “with heedless indifference to consequences,”

“disregard[ing] a substantial and unjustifiable risk” that their actions were “likely to

cause” serious physical harm to Hurley — as opposed to “knowingly” — “aware” that

their actions would “probably cause” serious physical harm to Hurley. Accordingly, I would find that the trial court abused its discretion in

failing to instruct the jury regarding reckless assault and third-degree felony

involuntary manslaughter as lesser included offenses.

Jury Instructions Regarding the Duty to Retreat

I would also reverse Miree’s convictions for murder, felonious

assault and first-degree felony involuntary manslaughter (Counts 2, 5 and 8)

because I believe the trial court improperly included jury instructions regarding a

duty to retreat when instructing the jury regarding self-defense and defense of

another.

The offenses at issue in this case occurred on June 16, 2019. Miree

was indicted on March 3, 2020, and trial commenced on June 7, 2021. Effective

April 6, 2021 — while Miree’s case was pending — R.C. 2901.09 was amended to

eliminate a duty to retreat before using force in self-defense or defense of another if

a person is “in a place” where he or she “lawfully has a right to be” (the “2021

amendments”). R.C. 2901.09(B).

Prior to the 2021 amendments, R.C. 2901.09(B) stated:

For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person’s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, and a person who lawfully is an occupant of that person’s vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

R.C. 2901.09(B) now states: For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence if that person is in a place in which the person lawfully has a right to be.

The 2021 amendments also added R.C. 2901.09(C), which states: “A trier of fact

shall not consider the possibility of retreat as a factor in determining whether or not

a person who used force in self-defense, defense of another, or defense of that

person’s residence reasonably believed that the force was necessary to prevent

injury, loss, or risk to life or safety.”

During a break in the trial, Miree’s counsel proffered various self-

defense jury instructions. The proposed jury instructions included instructions

stating that “the defendant is allowed to use deadly force in self-defense” and that

“[e]vidence was presented that tends to support a finding that the defendant used

deadly force in self-defense.” Tr. 2055-2059. Miree’s counsel also proposed the

following jury instruction regarding the absence of a duty to retreat:

Under Ohio law, an individual does not have a duty to retreat before acting in self-defense. In deciding whether the defendant reasonably believed that force was necessary to prevent death or great bodily harm, you may not consider the possibility that the defendant could have retreated or tried to escape rather than using force in self-defense.

Tr. 2058-2059.

Prior to closing arguments, the state requested that the trial court

remove the no-duty-to-retreat instruction from the self-defense jury instructions

and that the trial court add a duty-to-retreat instruction. Tr. 2410. Although the

state acknowledged that, generally, “a person who is lawfully an occupant of a

vehicle has no duty to retreat before using deadly force in self-defense,” the state asserted that, based on case law, the “castle doctrine”4 could not be invoked where,

as here, the victim was not an intruder but was also a lawful occupant of the vehicle

at the time force was used against him.5 Tr. 2410-2412. Over defense counsel’s

objection, the trial court removed the no-duty-to-retreat instruction and included

the duty-to-retreat instruction in the jury instructions.

Jury instructions are “critically important to assist juries in

determining the interplay between the facts of the case before it and the applicable

law.” State v. Griffin,

,

,

, ¶ 5.

Although a trial court has “broad discretion to decide how to fashion jury

4 The “castle doctrine,” i.e., that a defendant who is lawfully in his or her residence has no duty to retreat before using force in self-defense, is derived from the maxim that “a man’s home is ‘his castle.’” State v. Comer, 4th Dist. Gallia No. 10CA15, 2012-Ohio- 2261, ¶ 11, citing 4 Blackstone, Commentaries on the Laws of England, Chapter 16, 223 (Rev. Ed. 1979); see also State v. Thomas,

,

, ¶ 39 (11th Dist.), quoting State v. Peacock,

, 334 (1883) (‘“[w]here one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house * * * even to the taking of life’”). (Emphasis deleted.) In 2008, the castle doctrine was codified in R.C. 2901.09(B). The statute extended the area in which a person had “no duty to retreat” to include both a person’s residence and vehicle and the vehicle of an immediate family member. See former R.C. 2901.09(B) (effective Sept. 9, 2008). The 2021 amendments to R.C. 2901.09, commonly referred to as the “stand-your-ground law,” eliminate the duty to retreat when a person is “any place” he or she “is lawfully entitled to be” — not just when a person is lawfully in his or her own residence or vehicle or the vehicle of an immediate family member. See R.C. 2901.09(B); State v. Estelle,

,

(3d Dist.).

5 The state’s argument below was incorrect. The fact that Hurley had been invited into Campbell’s vehicle did not affect whether the defendants had a duty to retreat prior to using force against Hurley. See R.C. 2901.09(B); see also State v. Echevarria, 8th Dist. Cuyahoga No. 105815,

(“If the victim was lawfully in the defendant’s residence at the time the defendant used force against the victim, the defendant would not be entitled to the presumption of self-defense. * * * However, the castle doctrine would still apply, i.e., the defendant would have no duty to retreat from the residence if the defendant were lawfully occupying the residence at the time he or she used the force.”). instructions,” the trial court must ‘“fully and completely give all jury instructions

which are relevant and necessary for the jury to weigh the evidence and discharge

its duty as the fact finder.’” State v. White,

,

,

, quoting State v. Comen,

,

(1990), paragraph two of the syllabus. Requested jury instructions should

“ordinarily be given if they are correct statements of law, if they are applicable to the

facts of the case, and if reasonable minds might reach the conclusion sought by the

requested instruction.” State v. Adams,

,

,

. As a general matter, “[a]n appellate court reviews a trial court’s

refusal to give a requested jury instruction for abuse of discretion.”

citing State

v. Wolons,

,

(1989). However, what law applies

and whether a jury instruction correctly states the applicable law are legal issues an

appellate court reviews de novo. See, e.g., State v. Dean,

, 2015-

Ohio-4347,

. An incorrect or inadequate instruction that

misleads the jury or otherwise prejudices the defendant constitutes reversible error.

See, e.g., Simbo Properties v. M8 Realty, L.L.C.,

,

,

¶ 18 (8th Dist.); Echevarria at ¶ 28-29.

I recognize that this court has previously held that the 2021

amendments to R.C. 2901.09 do not apply to offenses that were committed prior to

the April 6, 2021 effective date. See State v. Hurt, 8th Dist. Cuyahoga No. 110732,

, and State v. Claytor, 8th Dist. Cuyahoga No. 110837,

. However, those decisions were based, in part, on cases that held that the amendment to R.C. 2901.05 effective March 28, 2019 — which

shifted the burden of proof to the state to prove that the defendant did not act in

self-defense — did not apply to cases in which the offense was committed prior to

the effective date. See, e.g., Hurt at ¶ 60-61, citing State v. Stiltner, 4th Dist. Scioto

No. 19CA3882,

; Claytor at ¶ 79, citing State v. Fisher, 8th Dist.

Cuyahoga No. 108494,

, ¶ 24, fn. 2, citing State v. Koch, 2019-Ohio-

4099,

(2d Dist.).

After Hurt and Claytor (and the cases upon which they relied) were

decided, the Ohio Supreme Court issued its decision in State v. Brooks, Slip Opinion

No.

. In Brooks, the Ohio Supreme Court held that “the

amendment to R.C. 2901.05 (enacted in H.B. 228) is not retroactive — it applies

prospectively to all trials occurring after its effective date, regardless of when the

underlying alleged criminal conduct occurred.” Id. at ¶ 21, 23. The court explained

that the prospective application of R.C. 2901.05, as amended, was clear from the

“plain language” of the statute, i.e., “at the trial of a person who is accused of an

offense that involved the person’s use of force against another * * * the prosecution

must prove beyond a reasonable doubt that the accused person did not use the force

in self-defense * * *.” (Emphasis added.) Id. at ¶ 20; R.C. 2901.05(B)(1).

Similarly, the plain language of R.C. 2901.09(C) indicates that it is to

be applied prospectively to all trials conducted after its effective date, regardless of

when the underlying alleged criminal conduct occurred: “A trier of fact shall not

consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person’s

residence reasonably believed that the force was necessary to prevent injury, loss, or

risk to life or safety.” (Emphasis added.) See also Comment to 2 Ohio Jury

Instructions, Section CR 421.21 (Rev. Dec. 4, 2021) (“Because the General Assembly

did not explicitly state whether R.C. 2901.09 applies to offenses that were

committed before and tried after 4/6/21, the court must decide as a threshold matter

whether amended R.C. 2901.09 applies as of the date of the trial or the date of the

offense. Because the language in R.C. 2901.09(C) states what a trier of fact shall not

consider, the Committee believes this amendment is applicable to all instructions

given on and after 4/6/21.”); State v. Gloff,

,

(12th Dist.) (“It is well settled that a statute is presumed to apply prospectively

unless expressly declared to be retroactive.”), citing R.C. 1.48. Based on Brooks and

the express language of R.C. 2901.09(C), I would apply R.C. 2901.09, as amended,

in reviewing Miree’s third assignment of error.6

R.C. 2901.09(B) plainly states that “a person has no duty to retreat

before using force in self-defense * * * if that person is in a place in which the person

lawfully has a right to be.” R.C. 2901.09(C) further states, “A trier of fact shall not

6 In its appellate brief, the state does not specifically address the issue of whether the 2021 amendments to R.C. 2901.09 applied in this case. The state simply asserts that Miree “failed to preserve an objection” to the trial court’s self-defense instructions and that any error in the jury instructions was harmless. With respect to the duty to retreat, the record reflects otherwise. See tr. 2477 (“[W]e renew our objection for Mr. Miree, on the duty to retreat language in the self-defense instruction.”), 2651 (“[s]ame objections as before as to the * * * inclusion of the duty to retreat language, and the self-defense instruction”). consider the possibility of retreat as a factor in determining whether or not a person

who used force in self-defense * * * reasonably believed that the force was necessary

to prevent injury, loss, or risk to life or safety.” There was no dispute that the

defendants were “in a place in which [they] lawfully ha[d] a right to be” at the time

one or both defendants used force against Hurley. Accordingly, I would find that

the trial court erred in instructing the jury that the defendants had a duty to retreat.

Because the error in the trial court’s instructions precluded the trial court from

properly considering the defendants’ claim of self-defense or defense of another, the

error was prejudicial. Accordingly, I would sustain Miree’s third assignment of error

to the extent he claims that the trial court erred in instructing the jury regarding a

duty to retreat, vacate Miree’s convictions on Counts 2, 5 and 8 and remand for a

new trial on those counts.