[Cite as State v. Hughkeith,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111647 v. :

CHRISTOPHER HUGHKEITH, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 13, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652331-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

Kimberly Kendall Corral and Gabrielle M. Ploplis, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Christopher Hughkeith (“Hughkeith”), appeals

from his convictions following a bifurcated trial. He raises the following

assignments of error for review: 1. The trial court erred in denying appellant’s motion for jury view.

2. The trial court erred in permitting the charges to go to the jury as the state failed to produce sufficient evidence to prove beyond reasonable doubt that appellant was not acting in self-defense and further failed to prove the elements of felonious assault of James White.

3. The trial court erred in failing to create a record instructing appellant of his right to remain silent.

4. The trial court erred in displaying judicial bias against the defendant.

5. The trial court erred when it instructed on the duty to retreat.

6. Appellant was denied the effective assistance of counsel where trial counsel failed to object to improper jury instruction.

7. Appellant was denied the effective assistance of counsel where trial counsel failed to request that the jury be instructed as to lesser included offenses.

8. The trial court erred in prohibiting appellant from providing complete trial testimony in his defense, thereby infringing on his Fifth and 14th Amendment right to due process.

9. The state engaged in prosecutorial misconduct which materially infected the trial with unfairness.

After careful review of the record and relevant case law, we affirm

Hughkeith’s convictions and sentence.

I. Procedural and Factual History

In August 2020, Hughkeith was named in an eight-count indictment,

charging him with aggravated murder in violation of R.C. 2903.01(A) (Count 1);

murder in violation of R.C. 2903.02(B) (Count 2); felonious assault in violation of

R.C. 2903.11(A)(1) (Count 3); attempted murder in violation of R.C. 2923.02 and 2903.02(A) (Count 4); felonious assault in violation of R.C. 2903.11(A)(2) (Count

5); attempted murder in violation of R.C. 2923.02 and 2903.02(A) (Count 6);

felonious assault in violation of R.C. 2903.11(A)(2) (Count 7); and having weapons

while under disability in violation of R.C. 2923.13(A)(3) (Count 8). Counts 1-7

contained one- and three-year firearm specifications.

The indictment stemmed from allegations that Hughkeith fired

gunshots at the victims, Michael Powell (“Powell”), James White (“White”), and

Romeo Robinson (“Robinson”), resulting in the death of Powell. Counts 1, 2, and 3

of the indictment pertained to Powell. Counts 4 and 5 pertained to White. Counts

6 and 7 pertained to Robinson.

The matter proceeded to a bifurcated trial in May 2022. Upon the

agreement of the parties, Counts 1-7 were tried to a jury and the having weapons

while under disability charge was tried to the bench. Relevant to this appeal, the

following facts were adduced at trial.

On August 8, 2020, Hughkeith and his codefendant, Charles Caldwell

(“Caldwell”), arrived at the Buckeye Plaza shopping center located in Cleveland,

Ohio. Hughkeith, who was wearing a white t-shirt and a Cincinnati Reds baseball

hat, exited the driver’s side of his silver sedan at approximately 2:33 p.m. He and

Caldwell walked up and down the plaza sidewalk while Caldwell spoke on his cell

phone.

Shortly after Hughkeith exited his vehicle, Powell, Robinson, and White

arrived at the shopping center in a black SUV and parked next to Hughkeith’s silver sedan. Powell, who was wearing a white t-shirt, dark colored jeans, and a blue

bandana, exited the black SUV and entered a Mr. Hero’s restaurant at approximately

2:35 p.m. White, who was wearing a red t-shirt and a blue baseball hat, exited the

rear passenger’s door of the black SUV and entered a Little Caesar’s pizzeria located

next door to Mr. Hero. Robinson, who was wearing a red jumpsuit, remained inside

the black SUV.

Hughkeith entered the Mr. Hero approximately one minute after

Powell. Caldwell remained outside the restaurant and continued to speak on his cell

phone. Surveillance-video footage from the interior of the Mr. Hero captured

Hughkeith and Powell’s movements inside the restaurant. Therein, Hughkeith

walked to the food counter and stood in line behind Powell. When Powell completed

his food order, he walked to the beverage station and Hughkeith moved to the front

of the counter to place his order. At this time, Powell began exchanging words with

Hughkeith.

During the verbal altercation, Powell lifted his t-shirt to reveal a firearm

in his waistband. He then brandished the firearm and took several steps towards

Hughkeith. Powell held the firearm in his right hand for approximately 40 seconds

before placing the weapon back in his waistband. Shortly thereafter, Powell

brandished the firearm a second time. On this occasion, Hughkeith turned his back

to Powell and walked towards the restaurant’s exit door. Although the surveillance

cameras inside the Mr. Hero contained audio, it is difficult to interpret the specific

nature of the initial exchange of words. However, at approximately 2:38:38 p.m., Powell can be heard stating to Hughkeith, “[W]hen I blow your face off,” and “I don’t

give a f***.” In addition, at 2:39:18 p.m., Powell can be heard stating, “[W]here’s

your gun at, where’s your gun at though.” Finally, Powell warned Hughkeith to “go

get a gun” as Hughkeith was walking out of the restaurant.

The interaction between Hughkeith and Powell inside Mr. Hero lasted

less than three minutes. Hughkeith stood at the counter with his hands behind his

back during the entirety of the exchange. Hughkeith exited the restaurant before

getting his food at approximately 2:39:32 p.m. Initially, Powell remained inside the

restaurant. He was visibly agitated, continued to curse, and carefully watched

Hughkeith’s movements through the restaurant windows.

When Hughkeith exited the restaurant, he stood near the front

entrance for approximately 20 seconds before he and Caldwell began walking

towards Hughkeith’s silver sedan. Near the same time Hughkeith arrived at his

vehicle, Powell exited the Mr. Hero’s restaurant and immediately headed towards

his black SUV, which was parked directly next to Hughkeith’s vehicle. As Powell was

walking in Hughkeith’s direction, he motioned towards White, who had just exited

the Little Caesar’s pizzeria, and began pointing at Hughkeith. Powell reached the

vicinity of his black SUV at approximately 2:40:30 p.m. At that time, Hughkeith

suddenly fired a handgun at Powell.

Once the first shot was fired, Hughkeith came around the back of the

black SUV and fired successive shots at Powell. Powell immediately fell to the

ground and did not return fire. In the midst of the shooting, White removed a firearm from the front of his waistband and returned fire. Robinson then exited the

passenger’s side of the black SUV and started firing shots at Hughkeith. During this

exchange of fire, Hughkeith, Powell, and White, each sustained gunshot injuries.

Exterior surveillance cameras captured the parties’ movements in the parking lot.

Relevant to this appeal, the surveillance footage does not show Powell reach for a

firearm or make a movement towards his waistband during the shooting.

Hughkeith and Caldwell fled the scene on foot once Robinson began

firing his weapon. When Hughkeith and Caldwell were no longer in sight, Robinson

entered the driver’s side of the black SUV and began pursuing Hughkeith in the

vehicle. Thereafter, Caldwell returned to the silver sedan and left the parking lot

before the authorities arrived. Powell remained motionless on the ground.

Surveillance-video footage obtained from a grocery store and a plasma

center located near the Buckeye Plaza captured Hughkeith’s movements as he

attempted to flee on foot. Hughkeith attempted to run inside the grocery store but

was prevented from doing so by a store employee. He then ran through the parking

lot towards the plasma center, which is located on East 116th Street. When

Hughkeith emerged from the plasma center at approximately 2:42 p.m., the black

SUV pulled up beside him and fired additional gunshots from the passenger’s side

window. Hughkeith dove to the ground but sustained additional gunshot wounds.

Hughkeith then retreated to a nearby home, where he was picked up by Caldwell in

the silver sedan. White also fled from the parking lot after the shooting. An unknown

witness reported seeing an individual matching White’s description run into the

backyard of an abandoned home located on East 114th Street in Cleveland, Ohio.

When police responded to the abandoned home, they “found a firearm and some

blood and [a] magazine in the brush or grass of that home on East 114th.” (Tr. 1027.)

White later returned to the scene of the shooting. He spoke with officers and was

transported to the hospital for a gunshot wound to his abdomen.

Paramedics arrived at the scene at approximately 2:47 p.m. While

Powell was being attended to by EMS personnel, an EMS worker removed a firearm

from Powell’s waistband and placed it next to Powell’s body. (Tr. 1044.) Ultimately,

Powell was pronounced dead as a result of his gunshot injuries.

At approximately 3:56 p.m. on August 8, 2020, Hughkeith arrived at

Fairview Hospital in a black Jeep SUV. He checked into the hospital using a false

name and was treated for various gunshot wounds.

Detective David Borden (“Det. Borden”) of the Cleveland Police

Department was assigned as the lead investigator into the shooting. In the course

of his investigation, Det. Borden participated in the collection of evidence at the

scene of the shooting, submitted evidence for forensic and ballistics testing, and

obtained DNA samples from Hughkeith, White, Robinson, and Caldwell. Det.

Borden also reviewed surveillance footage from various businesses located near the

scene of the shooting. Det. Borden testified that the surveillance footage was critical

to his investigation because it confirmed that (1) Hughkeith was the first person to fire a gunshot, and (2) Hughkeith fired the fatal gunshots that resulted in Powell’s

death. (Tr. 1114.)

Luciano Miranda (“Miranda”) testified that he was formally employed

by Signal 88 Security, a private security company that patrols the Buckeye Plaza

shopping center. On August 8, 2020, Miranda was patrolling the parking lot in a

marked vehicle when he heard “a series of six or seven [gun] shots.” (Tr. 643.)

Miranda immediately got on his radio and reported the shots fired. During the

shooting, Miranda observed a male, later identified as Powell, fall to one knee in the

parking lot. When the shooting stopped, Miranda approached Powell, who was now

lying motionless on the ground, and waited with him until the ambulance arrived.

Miranda confirmed that when Powell was turned over, there was a 9 mm handgun

tucked in his waistband. A dash-camera attached to Miranda’s patrol vehicle

captured the incident as it transpired in front of Miranda. Relevant portions of the

video were played for the jury.

Dr. David Dolinak (“Dr. Dolinak”), a deputy medical examiner,

performed the autopsy on Powell. Dr. Dolinak testified that Powell was shot a total

of five times. He sustained gunshot wounds to his upper back, right upper arm, left

upper arm, mid-chest, and left hip. Dr. Dolinak opined that the gunshot wound to

Powell’s back was fatal based on the substantial damage caused to his aorta and

lungs. Dr. Dolinak testified that Powell’s toxicology report showed the presence of

marijuana and a blood-alcohol level of .127. Dr. Dolinak concluded, to a reasonable

degree of scientific certainty, that Powell’s manner of death was a homicide based upon the circumstances surrounding his death and the nature of the gunshot

wounds inflicted.

Detective Troy Edge (“Det. Edge”) of the Cleveland Police Department

testified that he was assigned to investigate the scene of the shooing. In the course

of his investigation, Det. Edge collected and photographed the evidence recovered

from the Buckeye Plaza parking lot, including a Taurus 9 mm handgun, a FHN 9 mm

handgun, spent 7.62 x 39 cartridge casings, spent 9 mm cartridge cases, and items

of clothing. Additional items were recovered near the roadway, including four spent

9 mm casings, a Glock 9 mm handgun, a magazine with ten live rounds, and a face

mask. Det. Edge also observed blood spatter at various locations on the scene. In

total, the investigators recovered three firearms and more than 40 spent casings.

During an unrelated investigation involving Robinson, the police seized a Draco

arms rifle that was believed to have fired the 7.62 x 39 casings found at the scene of

the shooting.

Lisa Moore (“Moore”), a forensic analyst employed by the Cuyahoga

County Regional Forensic Science Laboratory, testified that she performed DNA

testing on various items found at the scene of the shooting. In relevant part, Moore

confirmed that Hughkeith’s DNA was consistent with samples taken from (1) the

Cincinnati Reds baseball hat recovered from the parking lot, (2) swabs of blood

discovered in the lobby of Simon’s Supermarket, (3) swabs of blood discovered on

the sidewalk near the roadway, (4) the FHN 9 mm handgun recovered from the

parking lot, and (5) the magazine from the FHN 9 mm handgun. In turn, White’s DNA was consistent with the samples taken from (1) a blue hat and a blood-stained

t-shirt recovered from the parking lot, (2) the Glock 9 mm handgun found near East

114th Street, and (3) the magazine from the Glock 9 mm handgun. Powell’s DNA

was consistent with the samples recovered from (1) the Taurus 9 mm handgun found

on his person, and (2) the magazine from the Taurus 9 mm handgun. Finally,

Caldwell’s DNA was consistent with the samples recovered from (1) the grip and

trigger area of the FHN 9 mm handgun that also contained Hughkeith’s DNA.

James Kooser (“Kooser”), a firearm and toolmark expert employed by

the Cuyahoga County Regional Forensic Science Laboratory, testified that he

performed ballistic testing on the firearms and spent casings recovered from the

scene of the shooting. Kooser testified that the FHN 9 mm containing Hughkeith’s

DNA fired 14 of the spent casings; the Glock 9 mm handgun containing White’s DNA

fired five casings; the Draco rifle recovered from Romeo Robinson fired 20 spent

casings, and four spent casings were fired from an unknown 9 mm handgun. (Tr.

972-974, 990.) With respect to Powell’s firearm, Kooser confirmed that the Taurus

9 mm handgun did not fire any of the spent casings recovered from the scene.

Kooser further indicated that the Taurus handgun was rendered inoperable during

the incident because it was struck by a bullet.

At the conclusion of the state’s case, defense counsel moved for a

dismissal of Counts 1-7 pursuant to Crim.R. 29, which the trial court denied. (Tr.

1185.) Hughkeith testified on his own behalf. Hughkeith stated that on

August 8, 2020, he dropped his children off at their mother’s home and drove to the

Buckeye Plaza shopping center to eat lunch with his friend, Caldwell. Hughkeith

testified that he and Caldwell initially went into Little Caesar’s pizzeria but decided

to walk next door to eat at a Mr. Hero’s restaurant. While waiting in line inside the

Mr. Hero’s restaurant, Hughkeith was confronted by Powell, who told Hughkeith to

“be prepared when you go outside.” (Tr. 1207.) Hughkeith testified that he had

never met Powell previously and did not understand why Powell became

confrontational. Hughkeith stated that when he asked Powell to repeat what he had

stated, Powell suddenly pulled a gun out of his waistband and “kept saying, where

your gun at? Where your gun at?” (Tr. 1210.) When Hughkeith responded that “I

don’t play with guns,” Powell stated “Go get a gun. Go get your gun. I’m going to

come outside and blow your face off.” (Tr. 1209.) Hughkeith testified that he was

scared and immediately left the restaurant. Powell followed Hughkeith out of the

restaurant and Hughkeith overheard Powell state, “Fitting to come outside. I’m

fitting to blow your f*****g face off.” (Tr. 1213.) Hughkeith viewed Powell’s

comment as a threat that could be carried out by the firearm in Powell’s waistband.

During the confrontation in the parking lot, Hughkeith realized that a

second man, later identified as White, was with Powell. Hughkeith testified that the

two men were walking towards him, and White started to “reach for his waistband.”

(Tr. 1218.) Hughkeith also observed Powell reach for the same gun that was

previously brandished inside the restaurant. Hughkeith believed the men were “coming for [him].” (Tr. 1218.) He was “scared” and believed his life was “in

danger.” (Tr. 1218.) Based on the movements of Powell and White, Hughkeith shot

Powell.

Throughout his direct examination, Hughkeith maintained that he

acted in self-defense and had no choice but to shoot Powell. Hughkeith explained

that he “was in immediate danger” and was certain Powell would have shot and

killed him had he not shot Powell first. (Tr. 1219-1220.) Hughkeith asserted that he

only had two seconds to make the decision to fire the gun in his possession.

Hughkeith maintained that he was attempting to leave the scene to avoid a

confrontation but was prevented from doing so because Powell “[came] out right

behind me yelling, get the chopper, let’s get him.” Hughkeith explained that he

interpreted Powell’s statement to “get the chopper” was a reference to “A big gun.

Assault rifle. A big gun.” (Tr. 1216.)

Hughkeith testified that he sustained gunshot wounds to his back,

arm, leg, and knee. Hughkeith was later transported to Fairview hospital by his

sister. Hughkeith confirmed that he provided a false name at the hospital because

he had a warrant out for his arrest. He further admitted that he lied to the police

about the source of his gunshot wounds and stated that he was shot during a robbery

on the west-side of Cleveland.

At the conclusion of trial, the jury found Hughkeith guilty of murder,

with one- and three-year firearm specifications (Count 2), felonious assault, with

one- and three-year firearm specifications (Count 3), and felonious assault, with one- and three-year firearm specifications (Count 5). The trial court then found

Hughkeith guilty of having weapons while under disability (Count 8). Hughkeith

was found not guilty of all remaining counts and accompanying specifications.

At the time of sentencing, the trial court found Counts 2 and 3 were

allied offenses of similar import that merged for the purposes of sentencing. The

state elected to proceed with sentencing on Count 2, and the trial court sentenced

Hughkeith to 15 years to life on Count 2, to run consecutively to a three-year term of

imprisonment on the corresponding firearm specification. Hughkeith was also

sentenced to an indefinite prison term of five to seven- and one-half years on Count

5, to run consecutively to a three-year term of imprisonment on the corresponding

firearm specification. Finally, the trial court sentenced Hughkeith to two years in

prison on Count 8. The sentence imposed on each base offense and firearm

specification were ordered to run consecutively, for an aggregate prison term of “life

imprisonment with parole eligibility after serving 28 full years of imprisonment.”

Hughkeith now appeals from his convictions and sentence.

II. Law and Analysis

A. Motion for Jury View

In the first assignment of error, Hughkeith argues the trial court erred

in denying his motion for jury view. Hughkeith contends that viewing the crime

scene would have assisted the jury in “understanding and assessing the evidence

presented at trial and would have provided clarity as to [his] defense.” R.C. 2945.16 authorizes a trial court to allow the jury to view the place

at which a material fact occurred. The statute provides, in pertinent part:

When it is proper for the jurors to have a view of the place at which a material fact occurred, the trial court may order them to be conducted in a body, under the charge of the sheriff or other officer, to such place, which shall be shown to them by a person designated by the court.

The purpose of a jury view is to assist the trier of fact in understanding

and applying the evidence offered at trial. Monus v. Day, 7th Dist. Mahoning No.

10 MA 35,

. “The jury view is not part of the presentation of

evidence; the jury is not permitted to gather evidence at the jury view, and only a

representative of the court may address the jury about the subject of the jury view

during the jury view.” Hetzer-Young v. Elano Corp.,

,

, ¶ 88 (2d Dist.).

“The granting or denial of a motion for a jury view is within the

discretion of the trial court and the court’s decision will only be reversed when an

abuse of that discretion is established.” Mayfield Hts. v. Barry, 8th Dist. Cuyahoga

No. 82159,

, ¶ 27, citing State v. Montalvo,

,

(7th Dist. 1974).

An abuse of discretion occurs when a court exercises its judgment in

an unwarranted way regarding a matter over which it has discretionary authority.

Johnson v. Abdullah,

,

,

.

In other words, “[a] court abuses its discretion when a legal rule entrusts a decision

to a judge’s discretion and the judge’s exercise of that discretion is outside of the legally permissible range of choices.” State v. Hackett,

, 2020-

Ohio-6699,

. This court has held that an abuse of discretion may

be found where a trial court “applies the wrong legal standard, misapplies the correct

legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland,

,

,

(8th Dist.). When

applying the abuse of discretion standard, a reviewing court may not substitute its

judgment for that of the trial court. Vannucci v. Schneider,

,

(8th Dist.).

On April 29, 2022, Hughkeith moved the court to order a jury view “of

the area encompassing the scene of the alleged criminal conduct.” In the motion,

Hughkeith argued that it was “vital for the trier of fact to view these areas to be able

to comprehensively evaluate and understand the testimony of the witnesses

expected to testify in this trial.” The motion was denied on May 2, 2022.

Based on the breadth of evidence presented at trial, we find nothing

in the record to support Hughkeith’s assertion that the trial court acted outside the

legally permissible range of choices by denying the motion for a jury view. In this

case, the state introduced surveillance-video footage from a number of businesses

located within the Buckeye Plaza. Collectively, this evidence permitted the jury to

view Hughkeith’s conduct before, during, and after his initial confrontation with

Powell inside the Mr. Hero’s restaurant, as well as the shooting that transpired in

the parking lot shortly thereafter. The video footage provided multiple angles of the

interaction between Hughkeith and Powell, and select portions contained audio functions. This evidence provided context to Hughkeith’s interaction with Powell

inside the restaurant and permitted the jury to fully assess the parties’ movements

at the time the first gunshot was fired. Hughkeith did not challenge the authenticity

of the video footage or whether it depicted an accurate representation of the

incident. Under these circumstances, we find the trial court did not abuse its

discretion by denying Hughkeith’s request for a jury view pursuant to R.C. 2945.16.

The first assignment of error is overruled.

B. Sufficiency of the Evidence

In the second assignment of error, Hughkeith argues the state failed

to produce sufficient evidence to disprove his assertion of self-defense. He further

contends that his felonious-assault conviction, as charged in Count 5 of the

indictment, is supported by insufficient evidence.

A sufficiency challenge requires a court to determine whether the state

has met its burden of production at trial and to consider not the credibility of the

evidence but whether, if credible, the evidence presented would sustain a conviction.

State v. Thompkins,

,

(1997). The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks,

,

(1991), citing Jackson v. Virginia,

,

,

(1979). “‘Proof of guilt may be made by circumstantial evidence, real

evidence, and direct evidence, or any combination of the three, and all three have

equal probative value.’” State v. Rodano,

,

, ¶ 35

(8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698,

,

¶ 18. Although circumstantial evidence and direct evidence have obvious

differences, those differences are irrelevant to the probative value of the evidence,

and circumstantial evidence carries the same weight as direct evidence.

citing

State v. Cassano, 8th Dist. Cuyahoga No. 97228,

. Further,

circumstantial evidence is not only sufficient, “‘“but may also be more certain,

satisfying, and persuasive than direct evidence.’”” Id. at ¶ 36, quoting State v.

Hawthorne, 8th Dist. Cuyahoga No. 96496,

, quoting Michalic v.

Cleveland Tankers, Inc.,

,

,

(1960).

1. Felonious Assault (Count 5)

We begin by addressing Hughkeith’s assertion that the state failed to

produce sufficient evidence to support the felonious-assault offense pertaining to

the victim, James White. As stated, Count 5 of the indictment charged Hughkeith

with felonious assault in violation of R.C. 2903.11(A)(2). The statute provides that

“[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to

another * * * by means of a deadly weapon or dangerous ordnance.”

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

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

nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B). “Physical harm” means “any

injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3). Finally, a “deadly weapon” is “any instrument,

device, or thing capable of inflicting death, and designed or specifically adapted for

use as a weapon, or possessed, carried, or used as a weapon.” R.C. 2901.22(A).

On appeal, Hughkeith argues “the state failed to produce any evidence

showing that [he] shot and injured White in the first instance.” Hughkeith contends

that “the evidence produced at trial merely demonstrates physical harm suffered by

White – this is wholly inadequate to support [the felonious assault] conviction.” We

find no merit to Hughkeith’s position.

Viewing the evidence in the light most favorable to the state, we find

any rational trier of fact could have found that the state presented sufficient evidence

to satisfy the essential elements of felonious assault beyond a reasonable doubt. It

is common knowledge that a firearm is an inherently dangerous instrumentality, use

of which is reasonably likely to produce serious injury or death. State v. Widner,

,

(1982). Thus, this court has consistently held

that “shooting a gun in a place where there is risk of injury to one or more persons

supports the inference that the offender acted knowingly.” State v. Hunt, 8th Dist.

Cuyahoga No. 93080,

, ¶ 19, citing State v. Brooks,

,

(1989); see also State v. Ivory, 8th Dist. Cuyahoga No.

83170,

. In this case, the record reflects that Hughkeith

brandished his firearm and fired it repeatedly in the direction of Powell and White. As a result of this conduct, Powell and White each sustained gunshot injuries. The

jury had the opportunity to hear the investigating officer’s testimony concerning the

location of the discovered shell casings. The jury was also provided the opportunity

to view the surveillance-video footage of the incident, which permitted the jury to

assess White’s proximity to Hughkeith’s line of fire at the time Hughkeith

discharged his weapon. See State v. Burns, 8th Dist. Cuyahoga No. 99782, 2014-

Ohio-303, ¶ 15 (“[A] reasonable jury could infer that [the victims] were ‘in the line

of fire’ at the time defendant discharged his weapon.”).

Under these circumstances, a reasonable juror could conclude that

Hughkeith knowingly caused White physical harm by means of a deadly weapon,

i.e., an operable firearm. Accordingly, we find the evidence was sufficient to convict

Hughkeith of felonious assault (Count 5) in violation of R.C. 2903.11(A)(2).

2. The Affirmative Defense of Self-Defense

Within this assignment of error, Hughkeith also suggests the state

failed to produce sufficient evidence to prove beyond a reasonable doubt that he did

not act in self-defense. Apart from the felonious-assault conviction discussed above,

Hughkeith does not challenge the sufficiency of the evidence supporting an essential

element of his convictions. Rather, he broadly asserts that the state failed to

disprove his claim that he fired his gun in self-defense.

A self-defense claim includes the following elements:

(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he [or she] was in imminent danger of death or great bodily harm and that his [or her] only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate any duty to retreat or avoid the danger.

State v. Barnes,

,

(2002).

In a criminal trial taking place prior to March 28, 2019, the effective

date of 2018 Am.Sub.H.B. No. 228 (“H.B. 228”), a defendant claiming the

affirmative defense of self-defense had the burden of proving the foregoing elements

of the defense by a preponderance of the evidence. See former R.C. 2901.05(A),

2008 Sub.S.B. No. 184; State v. Brooks, Slip Opinion No.

(discussing former versions of R.C. 2901.05). However, H.B. 228 amended R.C.

2901.05, and since March 28, 2019, the burden regarding self-defense has been as

follows:

A person is allowed to act in self-defense * * *. If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense * * *, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense * * *.

R.C. 2901.05(B)(1).

Contrary to Hughkeith’s characterization of the applicable standard of

review, the Ohio Supreme Court has reiterated that “[t]he plain language of R.C.

2901.05(A) reflects that self-defense is still an affirmative defense and that the

burden of production is still on the defendant.” State v. Messenger, Slip Opinion

No.

. Thus, “a defendant charged with an offense involving

the use of force has the burden of producing legally sufficient evidence that the

defendant’s use of force was in self-defense.” Id. at ¶ 25. “[I]f the defendant’s evidence and any reasonable inferences about that evidence would allow a rational

trier of fact to find all the elements of a self-defense claim when viewed in the light

most favorable to the defendant, then the defendant has satisfied the burden,” and

the state must then disprove self-defense. Id. at ¶ 25. In that case, “the sufficiency-

of-the-evidence standard of review applies to [the defendant’s] burden of

production and a manifest-weight-of-the-evidence standard of review applies to the

state’s burden of persuasion.” Id. at ¶ 26.

Based on the foregoing, we find Hughkeith’s challenge to the

sufficiency of the evidence insofar as it invokes self-defense is inappropriate. See

State v. Canankamp, 3d Dist. Auglaize No. 2-22-02,

, citing

State v. Bagley, 3d Dist. Allen No. 1-13-31,

, and State v.

Vasquez, 10th Dist. Franklin No. 13AP-366,

. See also

Messenger at ¶ 27 (finding “the Tenth District correctly declined to review the state’s

rebuttal of self-defense for sufficiency of the evidence”); State v. Messenger, 2021-

Ohio-2044,

(10th Dist.) (“[S]ufficiency of the evidence is not

the proper framework to review whether the state proved the absence of self-

defense.”).

Nevertheless, our conclusion does not leave Hughkeith without an

avenue to challenge the state’s proof relative to his claim of self-defense. Viewed in

its entirety, Hughkeith’s discussion concerning the resolution of his self-defense

claim constitutes a challenge to the manifest weight of the evidence. Accordingly,

we will consider Hughkeith’s argument that the state failed to prove he did not act in self-defense as a challenge to the manifest weight of the evidence. See Messenger,

,

(10th Dist.), citing State v. Ferrell, 2020-

Ohio-6879,

(10th Dist.), citing State v. Kurtz, 10th Dist.

Franklin No. 17AP-382,

.

In contrast to a sufficiency argument, a manifest-weight challenge

questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.

Cuyahoga No. 92266,

, ¶ 12, citing Thompkins,

,

(1997). When considering a defendant’s claim that a conviction

is against the manifest weight of the evidence, the appellate court functions as a

“thirteenth juror” and may disagree “with the factfinder’s resolution of * * *

conflicting testimony.”

, citing Tibbs v. Florida,

,

,

(1982). The appellate court examines the entire

record, weighs the evidence and all reasonable inferences that may be drawn

therefrom, considers the witnesses’ credibility and determines whether, in resolving

conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’”

, quoting State v. Martin,

,

(1st Dist. 1983). Reversal on manifest weight grounds is reserved for the

“‘exceptional case in which the evidence weighs heavily against the conviction.’” Id.

at 387, quoting

.

As previously discussed, the state had the burden of disproving

Hughkeith’s self-defense claim beyond a reasonable doubt.

. The state was only required to prove one of the three elements — that Hughkeith was at

fault in creating the situation giving rise to the affray; that he lacked a bona fide

belief that he was in imminent danger of death or great bodily harm or that another

means of escape from such danger existed negating the need for the use of deadly

force; or that he violated a duty to retreat or avoid the danger — beyond a reasonable

doubt to establish that self-defense does not apply. State v. Travis, 8th Dist.

Cuyahoga No. 110514,

.

Relevant to the issues presented in this case, the second element of

self-defense involves both objective and subjective considerations. State v. Thomas,

, 330,

(1997); Parma v. Treanor, 2018-Ohio-

3166,

(8th Dist.); State v. Smith, 1st Dist. Hamilton No. C-

190507,

, citing State v. Vanover, 1st Dist. Hamilton No. C-

990104,

, *3 (Sept. 29, 2000). A defendant’s belief that

she was in immediate danger of death or great bodily harm must be objectively

reasonable, and the defendant must have an honest belief that she sat in such

danger.

“[I]f the objective standard is met, the jury must determine if,

subjectively, this particular defendant had an honest belief that she was in imminent

danger.” Thomas at 326. The state may disprove self-defense by demonstrating

that the defendant’s belief was not objectively reasonable or that he or she did not

have an honest subjective belief that she faced imminent death or great bodily harm.

Smith at ¶ 56. Upon balancing the competing testimony, we do not find the jury

clearly lost its way in concluding that the state satisfied its burden of persuasion by

demonstrating that Hughkeith did not act in self-defense when he shot and killed

Powell. In reaching this conclusion, we recognize that Powell’s conduct inside the

Mr. Hero’s restaurant was certainly unsettling and would cause a reasonably

objective person to believe that he or she was in imminent danger. However,

Hughkeith took the necessary steps to avoid a dangerous confrontation with Powell

inside the restaurant by making the conscious decision to leave the premises before

the situation escalated. Once outside, Hughkeith retreated to his vehicle and had

the opportunity to leave the shopping center altogether. The affray had ended. See

State v. Santana, 2d Dist. Montgomery No. 29348,

.

Instead, the surveillance-video footage establishes that Hughkeith stood behind his

vehicle and waited until Powell was approximately two parking spaces away from

his black SUV before Hughkeith unexpectedly fired his gun multiple times. When

the first gunshot was fired, Powell was holding a fountain drink in his left hand and

his right hand was extended away from his body. After the first shots were fired,

Hughkeith came around the back of the black SUV, where Powell was attempting to

hide, and fired a succession of additional gun shots. Powell immediately fell to the

ground, where he succumbed to his gunshot wounds. Powell never brandished his

weapon while approaching his vehicle or during the exchange of gunfire between

Hughkeith, White, and Robinson. It is well settled that “‘a conviction is not against the manifest weight

of the evidence simply because the [trier of fact] rejected the defendant’s version of

the facts and believed the testimony presented by the state.’” State v. Jallah, 8th

Dist. Cuyahoga No. 101773,

, ¶ 71, quoting State v. Hall, 4th Dist.

Ross No. 13CA3391,

. In this case, the jury, as the tier of fact,

was equipped with the necessary information to adequately assess the strength of

the state’s evidence, the nature of Powell’s conduct at the time of the shooting, and

the credibility of Hughkeith’s subjective interpretation of the facts. Significantly, the

entirety of Hughkeith’s interaction with Powell at the Buckeye Plaza shopping center

was captured by surveillance cameras. Under these circumstances, the jury was free

to accept the state’s evidence and conclude that Hughkeith did not have a reasonable

and honest belief that he was in imminent danger of death or great bodily harm and

that his only means of escape was in the use of deadly force.

Based on the foregoing, we find the manifest weight of the evidence

support’s Hughkeith’s convictions. The second assignment of error is overruled.

C. Right to Remain Silent

In the third assignment of error, Hughkeith argues the trial court

erred by “failing to make a record as to [his] waiver of his constitutional right to

remain silent.”

The right to testify at one’s own criminal trial is rooted in the Due

Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of

the Sixth Amendment, and the Fifth Amendment’s privilege against self- incrimination. Rock v. Arkansas,

,

,

(1987). “Generally, the defendant’s right to testify is regarded both as a fundamental

and a personal right that is waivable only by an accused.” State v. Bey,

,

(1999). The ultimate decision of whether to testify rests

with the defendant, but because attorneys are presumed to follow the professional

rules of conduct and presumed to render adequate assistance in advocating the

defendant’s cause and in consulting with the defendant on important decisions, the

defendant’s assent may be presumed when a tactical decision is made to not have

the defendant testify. United States v. Webber,

(6th Cir. 2000).

Barring any statements or actions from the defendant indicating either

disagreement with counsel or the desire to testify, the trial court is not required to

ensure that the defendant has waived the right to testify on the record. State v.

Jackson,

,

,

, citing Webber

at 551.

In this case, Hughkeith exercised his fundamental right to testify on

his own behalf at trial. In doing so, he waived his right to remain silent. State v.

Belville, 6th Dist. Lucas No. L-96-195,

, 6 (Apr. 4, 1997)

(A defendant’s “election to testify on his [or her] own behalf waives his [or her] right

to remain silent and any exercises of that right.”), citing Jenkins v. Anderson,

,

,

(1980). On appeal, Hughkeith has cited

no persuasive authority to suggest that once a defendant exercises his or her right to

testify at trial, the trial court has a corresponding duty to ensure that the defendant has knowingly and intelligently waived the right to remain silent. Accordingly, we

find no error. In re B.P., 9th Dist. Lorain No. 14CA010531,

,

citing App.R. 16(A)(7).

The third assignment of error is overruled.

D. Judicial Bias

In the fourth assignment of error, Hughkeith argues the trial court

failed to maintain impartiality and was biased against him throughout the criminal

proceedings. Hughkeith contends the trial court’s bias and prejudice is reflected by

(1) the frequency of the court’s evidentiary rulings in favor of the state, (2) the court’s

“repeated admonishments” of Hughkeith during his direct examination, (3) the

court’s threat to impose “severe penalties” on Hughkeith if he asked family members

to make social-media posts on his behalf, and (4) the court’s instruction to the state

to patrol the defendants’ social media accounts.

Appellate courts generally “lack the authority to find that a judge was

biased against a party or void a trial court’s judgment on a claim that the trial judge

was biased.” State v. Reese, 8th Dist. Cuyahoga No. 107714,

,

citing State v. Ramos,

,

(9th Dist. 1993),

citing Beer v. Griffith,

,

(1978). Rather, “[t]he

Chief Justice of the Supreme Court of Ohio, or his [or her] designee, has exclusive

jurisdiction to determine a claim that a common pleas judge is biased or prejudiced.”

Jones v. Billingham,

,

(2d Dist. 1995), citing

Article IV, Section 5(C), Ohio Constitution. Nevertheless, “it is axiomatic that the Due Process Clause requires a

fair trial in a fair tribunal before an impartial judge with no actual bias against the

defendant or interest in the outcome of his particular case.” Bracy v. Gramley,

,

,

(1997); State v. LaMar,

,

,

. Thus, the Ohio Supreme Court has

recognized that proceedings before a biased judge are fundamentally unfair and

denies a defendant due process of law. State v. Dean,

, 2010-

Ohio-5070,

, ¶ 48. Accordingly, a trial court’s judgment may be

reversed due to bias if the bias or prejudice violated the defendant’s right to due

process and deprived the defendant of a fair proceeding.

Judicial bias has been described by the Supreme Court of Ohio as a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.

State ex rel. Pratt v. Weygandt,

,

(1956), paragraph

four of the syllabus. “If the trial judge forms an opinion based on facts introduced

or events occurring during the course of the current or prior proceedings, this does

not rise to the level of judicial bias, ‘“unless [the opinions] display a deep-seated

favoritism or antagonism that would make fair judgment impossible.”’” State v.

Hough,

,

, ¶ 11 (8th Dist.), quoting Dean at ¶ 49,

quoting Liteky v. United States,

,

,

(1994). “In determining whether purported judicial bias resulted in a due

process violation, we presume that a judge is unbiased and unprejudiced in the

matters over which he or she presides, and ‘“the appearance of bias or prejudice

must be compelling in order to overcome the presumption.”’” Cleveland v.

Goodman, 8th Dist. Cuyahoga Nos. 108120 and 108678,

,

State v. Eaddie, 8th Dist. Cuyahoga No. 106019,

, quoting State

v. Filous, 8th Dist. Cuyahoga No. 104287,

, ¶ 14.

After careful review of the record, we find Hughkeith has failed to

overcome the presumption that the trial court was unbiased and unprejudiced

against him. In this case, Hughkeith has cited various portions of the trial transcript,

arguing that the record demonstrates that the trial court overwhelmingly ruled in

favor of the state while consistently overruling defense counsel’s evidentiary

objections. Hughkeith suggests the trial court’s pattern of judgment “exhibited

judicial bias against the defense, and communicate[d] that bias to the jury.” We

disagree. Significantly, Hughkeith’s position does not consider the propriety of the

cited objections or whether the trial court’s evidentiary rulings were arbitrary or in

violation of the Ohio Rules of Evidence. Absent additional indicia of bias, we are

unable to conclude that the trial court’s evidentiary rulings amounted to “deep-

seated antagonism” merely because the rulings were unfavorable to Hughkeith.

We further find no merit to Hughkeith’s contention that the trial court

demonstrated bias against him by “admonishing” him in front of the jury. In this

case, the alleged admonishments included the court (1) instructing Hughkeith to only answer the questions posed to him during his cross-examination, (2) clarifying

the state’s posed question on cross-examination, and (3) asking Hughkeith to repeat

his answer because he was “mumbling a little bit.” (Tr. 1188, 1236-1247, 1239, 12773,

1275, 1284, 1288-1289, 1292.) Viewing the challenged portions of the testimony in

context, we find the trial court’s instructions to Hughkeith during his direct

examination were consistent with the court’s role as the gatekeeper and its

obligation to ensure that the jury could hear Hughkeith’s testimony without

obstruction. See Goodman, 8th Dist. Cuyahoga Nos. 108120 and 108678, 2020-

Ohio-2713, at ¶ 20 (“[T]he trial court’s instruction to [the defendant] to answer the

questions posed during his cross-examination was consistent with the court’s role

as the gatekeeper.”). The court’s conduct was proper.

Finally, the trial court did not exhibit prejudicial bias by ensuring that

all parties, including Hughkeith and his codefendant, abided by the court’s order to

refrain from taking photographs inside the courtroom or posting on social media.

In this case, the trial court made the following statement on the record:

THE COURT: We’re back on the record. Your jail calls get listened to every day. Girlfriend’s prohibited from being in this courtroom again. I’ve made it very clear there’s to be no photographs. Don’t ask anybody else to take a photograph. I’m asking the prosecutors to search social media every day, and if I find out that somebody in this room is taking a photograph and if I find out you’re involved in it, you’re going to face separate penalties. This isn’t a joke, Mr. Caldwell.

(Tr. 628.)

The challenged advisement was made after the court learned from a

recorded jail-cell phone call that Caldwell asked “somebody” to post a photograph of him in court on social media. Significantly, the advisement was made to

codefendant Caldwell, not Hughkeith, outside the presence of the jury. The court

certainly did not demonstrate bias against Hughkeith merely because it warned his

codefendant to abide by the court’s restriction against photographs and social media

posts relating to the pending trial.

Based on the foregoing, we find no merit to Hughkeith’s claim of

judicial bias. The fourth assignment of error is overruled.

E. Duty to Retreat

In the fifth assignment of error, Hughkeith argues the trial court erred

by instructing the jury on the duty to retreat. Hughkeith contends that, at the time

of his trial, there was no duty to retreat in the state of Ohio. Thus, Hughkeith asserts

that the trial court’s erroneous instruction on the duty to retreat misled the jury or

otherwise prejudiced his right to a fair trial.

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

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, we review a trial court’s decision on jury

instructions for an abuse of discretion. State v. Daniel,

,

, ¶ 30 (8th Dist.), citing State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-

Ohio-1446, ¶ 33. 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,

,

,

. An

incorrect or inadequate instruction that misleads the jury or otherwise prejudices

the defendant constitutes reversible error. See Simbo Props. v. M8 Realty, L.L.C.,

,

, ¶ 18 (8th Dist.).

In this case, the alleged offenses occurred on or about August 8, 2020.

Hughkeith was indicted on August 24, 2020, and his jury trial commenced in May

2022. On April 6, 2021, while his case was pending, R.C. 2901.09(B) was amended

pursuant to S.B. 175. 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.” The amendments are generally

referred to as the “stand-your-ground law.” State v. Dixon, 2d Dist. Greene No.

2021-CA-29,

.

Since the modification of R.C. 2901.09, Ohio courts have debated

whether the current version of the statute applies to offenders who committed the

offense prior to the amendment but who are tried after the amendment became

effective. 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. Duncan, 8th Dist. Cuyahoga No. 110784,

; State

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

; State v. Hurt,

8th Dist. Cuyahoga No. 110732,

(“There is no language in

amended R.C. 2901.09 indicating that the General Assembly intended the statute to

be applied retroactively.”). See also State v. Huish, 10th Dist. Franklin No. 21AP-

255,

; State v. Parker, 1st Dist. Hamilton No. C-210440,

; State v. Jones, 2d Dist. Montgomery No. 29214, 2022-Ohio- 3162, ¶ 39; State v. Degahson, 2d Dist. Clark No. 2021-CA-35,

(“[W]e find no language in the amended R.C. 2901.09 that would indicate the

legislature obviously intended the statute to be applied retroactively.”). But see

State v. Wagner, 11th Dist. Lake No. 2021-L-101,

; State v.

Robinette, 5th Dist. Stark No. 2021 CA 00124,

, ¶ 52. Thus, it is well

settled in this district that “the amendments to R.C. 2901.09(C) do not apply

retroactively and are not required if the April 6, 2021, amendments were not in effect

at the time of the offense.” Duncan at ¶ 26.

In this case, the trial court originally provided a self-defense

instruction that did not contemplate the amendments of R.C. 2901.09. (Tr. 1495.)

After the jurors were excused for deliberations, defense counsel asserted that the

trial court’s self-defense instruction was incomplete because the court failed to

instruct the jury that “the defendant had no duty to retreat before using force in self-

defense if the defendant was in a place in which he lawfully had a right to be.” (Tr.

1535.) Following an extensive discussion on the record, the trial court agreed to

reinstruct the jury on self-defense. On this occasion, the trial court expanded upon

its prior self-defense instruction, stating, in pertinent part:

In determining whether the defendant, in using force in self-defense, reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety, you may not consider the possibility of retreat by the defendant.

The defendant had no duty to retreat before using force in self-defense if the defendant was in a place in which he lawfully had a right to be.

Lawfully had a right to be means that the defendant was not trespassing when he used force in self-defense. (Tr. 1544-1545.)

Although the precedent of this court demonstrates that Hughkeith

was not entitled to the retroactive application of amended R.C. 2901.09(B), the

record reflects that he was afforded the benefit of the amended statute as the trial

court unambiguously instructed the jury that Hughkeith had no duty to retreat from

any place he was lawfully entitled to be. Contrary to Hughkeith’s assertion on

appeal, the trial court’s supplemental instruction was not confusing or otherwise

misleading. To the contrary, the court’s decision to apply the amended statute was

substantially beneficial to Hughkeith’s defense and prohibited the jury from

considering the possibility of retreat in determining whether he reasonably believed

force was necessary.

The fifth assignment of error is overruled.

F. Failure to Object to Self-Defense Jury Instruction

In the sixth assignment of error, Hughkeith argues defense counsel

rendered ineffective assistance of counsel by failing to object to the trial court’s jury

instruction on self-defense.

Our review of counsel’s performance is highly deferential. State v.

Korecky, 8th Dist. Cuyahoga No. 108328,

, citing Strickland v.

Washington,

,

,

(1984). Because we

presume licensed attorneys are competent, the party claiming ineffective assistance

of counsel bears the burden of proving that counsel was ineffective.

citing State

v. Smith,

,

(1985). “To gain reversal on a claim of ineffective assistance of counsel, a

defendant must show that (1) his ‘counsel’s performance was deficient,’ and (2) ‘the

deficient performance prejudiced the defense.’” State v. Fisher, 8th Dist. Cuyahoga

No. 108494,

, ¶ 18, quoting

. “The first prong of

Strickland’s test requires the defendant to show ‘that counsel’s representation fell

below an objective standard of reasonableness.’”

quoting

.

“Strickland’s second prong requires the defendant to show ‘a reasonable probability

that but for counsel’s errors, the proceeding’s result would have been different.’”

quoting State v. Winters, 8th Dist. Cuyahoga No. 102871,

.

That is, the second prong requires a determination as to whether the defense was

prejudiced by counsel’s ineffectiveness. State v. Beasley,

, 2018-

Ohio-493,

, citing

.

Consistent with his previous arguments, Hughkeith argues trial

counsel rendered ineffective assistance of counsel by failing to raise a timely

objection to the court’s instruction on self-defense. Specifically, Hughkeith

challenges the trial court’s instruction regarding the first element of a self-defense

claim. The challenged instruction, which was made at the time the court

reinstructed the jury on self-defense, provided, in relevant part:

The defendant did not act in self-defense if the state proved beyond a reasonable doubt the defendant was at fault in creating the situation that resulted in the death and/or injury. The defendant was at fault if the defendant was the initial aggressor; and A, Michael Powell and/or James White did not escalate the situation by being the first to use or attempt to use deadly force; or B, the defendant provoked Michael Powell and/or James White into using force; or C, the defendant did not withdraw from the situation; or D, the defendant withdrew from the situation but did not inform Michael Powell and/or James White of his withdrawal.

(Tr. 1543.)

Relying on the implications of the newly enacted stand-your-ground

law, Hughkeith contends that it was misleading for the trial court to instruct the jury

that he was at fault in creating the situation that resulted in death or injury if (1) he

was the initial aggressor and (2) “did not withdraw from the situation.” (Tr. 1543.)

Hughkeith asserts that “there is no tactical basis for failing to object to a jury

instruction which is not supported by the facts, is not an accurate statement of

current law, and prejudicially effects the outcome of the case.”

After careful consideration, we cannot say defense counsel rendered

ineffective assistance of counsel by failing to object to the cited portion of the trial

court’s self-defense instruction. Initially, we find no merit to Hughkeith’s assertion

that the trial court’s instruction on the element of fault was “not applicable to the

facts.” Hughkeith sought the self-defense instruction, and the trial court was free to

instruct the jury on each of the applicable elements of the affirmative defense.

Moreover, assuming, for the sake of argument, that the trial court properly

instructed the jury on the duty to retreat pursuant to the current version of R.C.

2901.09(B), Hughkeith has cited no case law to suggest the trial court’s “at fault”

instruction was inconsistent with the current law. While a person no longer has a

duty to retreat from a place he or she is lawfully permitted to be, there is no language

in the amended statute to suggest a trier of fact is precluded from considering whether the defendant was the initial aggressor or whether the defendant attempted

to withdraw from the situation when determining whether the defendant was at

fault in creating the situation giving rise to the affray. The narrow language of the

amended statute does not place on triers of fact express restrictions on consideration

of fault. We further note that although Ohio Jury Instructions are not binding, the

trial court’s “at fault” instruction in this case tracks the language of Ohio Jury

Instructions 421.21, which has been amended since April 2021, and contemplates

the “abolishment of the duty to retreat.” Under these circumstances, Hughkeith has

failed to establish counsel’s deficient performance or resulting prejudice.

The sixth assignment of error is overruled.

G. Failure to Request Jury Instructions on Lesser-Included of Inferior-Degree Offenses

In the seventh assignment of error, Hughkeith argues trial counsel

rendered ineffective assistance of counsel by failing to request an instruction on the

lesser-included offenses of voluntary manslaughter and aggravated assault.

Hughkeith contends that “trial counsel’s failure to request a lesser-included [offense

instruction] was not the result of any reasonable trial strategy and fatally prejudiced

[him].”

The Ohio Supreme Court has explained that under Crim.R. 31(C) and

R.C. 2945.74, a jury may consider lesser unindicted offenses only if the evidence

supports the lesser charge and the lesser charge is either (1) a lesser-included offense

of the crime charged; (2) an inferior degree offense of the crime charged; or (3) an attempt to commit the crime charged, if such an attempt is an offense at law. State

v. Deem,

,

(1988); State v. Davis, 9th Dist.

Summit No. 25826,

.

A lesser-included offense is one in which

(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.

Deem at paragraph three of the syllabus. By contrast, “an offense is an ‘inferior

degree’ of the indicted offense where its elements are identical to or contained within

the indicted offense, except for one or more additional mitigating elements.”

at

paragraph two of the syllabus.

Generally, “a charge on a lesser-included or inferior 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 or

inferior offense.” State v. Carter,

,

(8th Dist.),

citing State v. Thomas,

,

(1988), paragraph two of

the syllabus. In determining whether a lesser-included or inferior-offense

instruction is appropriate, the trial court must view the evidence in the light most

favorable to the defendant. Id. at ¶ 59, citing State v. Monroe,

,

,

, ¶ 37.

An instruction is not warranted, however, every time “some evidence”

is presented on a lesser-included or inferior offense. State v. Smith, 8th Dist. Cuyahoga No. 90478,

, citing State v. Shane,

,

(1992).

To require an instruction * * * every time some evidence, however minute, is presented going to a lesser-included (or inferior-degree) offense would mean that no trial judge could ever refuse to give an instruction on a lesser-included (or inferior-degree) offense.

quoting

. Thus, a court must find there is sufficient evidence to

allow a jury to reasonably reject the greater offense and find the defendant guilty on

the lesser-included or inferior offense.

.

Voluntary manslaughter is defined in R.C. 2903.03(A). The statute

provides as follows:

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 victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another.

In turn, aggravated assault is codified in R.C 2903.12(A)(1), which

provides, in part, that

[n]o 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 victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly * * * cause serious physical harm to another.

Ohio courts have recognized that “aggravated assault is an inferior-

degree offense to felonious assault and that voluntary manslaughter is an inferior-

degree offense to murder.” State v. Dixon, 2d Dist. Greene No. 2021-CA-29, 2022-

Ohio-3157, ¶ 21; see also State v. Wiley, 8th Dist. Cuyahoga No. 110753, 2022-Ohio-

2131, ¶ 18 (“Voluntary manslaughter is an inferior degree offense of murder.”); State v. Martin,

,

(8th Dist.) (“[A]ggravated assault

is an inferior degree of felonious assault[.]”). This is because aggravated assault and

voluntary manslaughter both contain an additional mitigating element of “serious

provocation.” State v. Rider, 2d Dist. Champaign No. 2021-CA-12,

. In other words, the greater- degree and inferior-degree offenses are similar

except aggravated assault and voluntary manslaughter require proof that a

defendant acted under the influence of sudden passion or in a fit of rage brought

about by serious provocation. State v. Miller, 2d Dist. Montgomery No. 29099,

; State v. Robinson, 2d Dist. Clark No. 2021-CA-3, 2021-Ohio-

3255, ¶ 11.

Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time.

State v. Mabry,

,

(8th Dist. 1982), paragraph five of

the syllabus.

In Shane,

,

, the Supreme Court

elaborated on what constitutes “reasonably sufficient” provocation. First, an

objective standard must be applied to determine whether the alleged provocation is

reasonably sufficient to bring on a sudden passion or fit of rage. That is, the

provocation must be “sufficient to arouse the passions of an ordinary person beyond

the power of his or her control.”

. If this objective standard is met, the inquiry shifts to a subjective standard, to determine whether the defendant in the

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

fit of rage.”

.

On appeal, Hughkeith has cited no evidence in the record to support

his contention that the trial court was obligated to instruct the jury on the inferior

offenses of voluntary manslaughter and aggravated assault. Despite Hughkeith’s

repeated failure to comply with App.R. 16, we nevertheless find no merit to the

substance of his assertion.

In Ohio, a licensed attorney is presumed to be competent. State v.

Calhoun,

,

(1999). In evaluating trial

counsel’s performance, appellate review is highly deferential as there is a strong

presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance.

. Appellate courts are not permitted to

second-guess the strategic decisions of trial counsel. State v. Carter,

,

(1995). Even instances of debatable strategy very rarely

constitute ineffective assistance of counsel. See State v. Thompson,

,

(1987).

Generally, “the decision about which defense or theory to pursue at

trial is a matter of trial strategy ‘“within the exclusive province of defense counsel to

make after consultation with his [or her] client.’”” State v. Lloyd, 8th Dist. Cuyahoga

No. 109128,

, quoting State v. Murphy,

,

(2001), quoting Lewis v. Alexander,

(6th

Cir. 1993).

This court has recognized that aggravated assault and voluntary

manslaughter are incompatible with a theory of self-defense because self-defense

requires proof of fear while aggravated assault and voluntary manslaughter require

a showing of a sudden passion or rage. See State v. Bouie, 8th Dist. Cuyahoga No.

108095,

(“it has been held that in most cases, jury instructions

on both self-defense and serious provocation are inconsistent” because “the mental

states of fear as required for self-defense and rage as required for aggravated assault

are incompatible”); State v. Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio-

1821, ¶ 24 (jury instruction on aggravated assault not required where defense theory

was self-defense); State v. Loyed, 8th Dist. Cuyahoga No. 83075,

(instruction on voluntary manslaughter not required where defense asserted

self-defense because the theories were incompatible and “it must be one or the

other”).

Contrary to, and inconsistent with, defense counsel’s theory and

interpretation of the evidence, Hughkeith now argues that a jury instruction on the

inferior-degree offenses of voluntary manslaughter and aggravated assault was

warranted in this case. As stated, however, defense counsel maintained throughout

the entirety of the trial that Hughkeith acted in self-defense and only fired the fatal

gunshots because he feared imminent death or great bodily harm. At no point did

the defense argue or introduce evidence to insinuate that Hughkeith acted under the influence of sudden passion or in a fit of rage.1 This was because defense counsel

sought an acquittal in this case based upon counsel’s perception of the state’s

evidence; not a conviction on an inferior offense. See State v. Scarton, 8th Dist.

Cuyahoga No. 108474,

, ¶ 99; State v. Lenard, 8th Dist. Cuyahoga

Nos. 105342 and 105343,

, ¶ 18; State v. Carter, 8th Dist. Cuyahoga

No. 104653,

(Failing to request an instruction on an

inferior offense does not rise to the level of ineffective assistance of counsel where

trial counsel’s strategy was to obtain an acquittal rather than a conviction of an

inferior offense.). Trial counsel’s strategy at trial, even if “questionable” or “if, in

hindsight, it looks as if a better strategy had been available,” does not support a claim

of ineffective assistance of counsel. See, e.g., State v. Cottrell, 4th Dist. Ross Nos.

11CA3241 and 11CA3242,

; State v. Henderson, 7th Dist.

Mahoning No. 15 MA 0137,

.

Accordingly, we find Hughkeith has failed to overcome the

presumption that trial counsel’s decision to forego an inferior-degree-offense

1 The record further demonstrates that an instruction on inferior offenses was not supported by the evidence. In this case, Hughkeith consistently testified that he acted out of fear. (Tr. 1210, 1212, 1218, 1219, 1229, 1346.) However, “[f]ear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage.” State v. Mack,

,

(1998). Indeed, a defendant’s fear for his own safety or for the safety of others “does not constitute sudden passion or a fit of rage as contemplated by the voluntary manslaughter statute.” State v. Harris,

,

(10th Dist. 1998). Thus, “[s]hooting someone ‘out of fear rather than rage or passion [does] not support a jury instruction for voluntary manslaughter.’” State v. Hodge, 10th Dist. Franklin No. 18AP-95, 2019-Ohio- 4012, ¶ 39, quoting State v. Stevenson, 10th Dist. Franklin No. 17AP-512, 2018-Ohio- 5140, ¶ 29. instruction was a strategic maneuver designed to obtain an acquittal, instead of a

conviction on an inferior-degree offense. See State v. Smith, 8th Dist. Cuyahoga No.

90478,

(trial counsel, who chose to pursue theory of self-

defense, was not ineffective in failing to seek instruction on lesser-included offense

of voluntary manslaughter; decision “was a reasonable trial strategy calculated to

obtain a complete acquittal”).

The seventh assignment of error is overruled.

H. Limitations on Hughkeith’s Testimony

In the eighth assignment of error, Hughkeith argues the trial court

violated his constitutional rights to due process and a fair trial by repeatedly

interrupting and “excessively inhibiting” his testimony. Hughkeith contends that

“because of the continued and excessive interruptions by the trial court, [he] was not

afforded the opportunity to tell his story in his own words.”

As previously stated, a defendant in a criminal case has the due-

process right to take the witness stand and to testify in his or her own defense. Rock,

,

,

(1987); Harris v. New York,

,

,

(1971). “Whether the defendant is to testify is

an important tactical decision as well as a matter of constitutional right.” Brooks v.

Tennessee,

,

,

(1972). A defendant’s

right to testify is not without limitation, however, and “‘may, in appropriate cases,

bow to accommodate other legitimate interests in the criminal trial process.’ * * *

But restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.”

, quoting

Chambers v. Mississippi,

,

,

(1973).

In this case, there is no dispute that Hughkeith exercised his right to

testify on his own behalf and was provided ample opportunity on direct examination

to articulate his version of events to the trier of fact. Nevertheless, Hughkeith

contends that the court unduly interfered with his defense by interrupting his

testimony “more than ten times during cross-examination.” (Tr. 1236-1237, 1239,

1273, 1275, 1284, 1288-1289, 1292.) Hughkeith’s citation to these alleged

“interruptions” were previously addressed in Hughkeith’s claim of judicial bias. In

most part, the trial court’s comments involved instances where Hughkeith was

advised to only answer the questions posed on cross-examination and to refrain

from testifying in the narrative.

Consistent with our prior discussion, we cannot say the court

prejudicially impaired Hughkeith’s defense by requiring him to limit his answers to

those questions posed by the state on cross-examination. Here, the trial court did

not offer any commentary reflecting the court’s personal views or the court’s

perception of the state’s case against Hughkeith. Rather, the court’s interruptions

were isolated and made in accordance with the court’s role as the gatekeeper of

evidence.

The eighth assignment of error is overruled. I. Prosecutorial Misconduct

In the ninth assignment of error, Hughkeith argues the state

committed prosecutorial misconduct by referring to Powell as “defenseless” and by

inferring that Hughkeith could have “diffused the whole situation” by showing

Powell that he had a gun inside the restaurant. Hughkeith asserts that the

prosecutor’s insinuations “were not made in good faith but are intended to confuse

the jury by creating an inference that (1) [Hughkeith] had a duty to threaten Powell

prior to his efforts to leave the situation, and (2) that [Hughkeith] was required to

warn Powell prior to defending himself.”

The test for prosecutorial misconduct is whether the prosecutor’s

“‘remarks were improper and, if so, whether they prejudicially affected substantial

rights of the defendant.’” State v. Hessler,

,

(2000), quoting State v. Smith,

,

(1984). An

appellate court should only reverse a conviction if the effect of the misconduct

“‘permeates the entire atmosphere of the trial.’” State v. Gibson, 8th Dist. Cuyahoga

No. 98725,

, quoting State v. Tumbleson,

,

(12th Dist. 1995). “The touchstone of analysis ‘is the

fairness of the trial, not the culpability of the prosecutor.’” State v. Gapen,

,

,

, ¶ 92, quoting Smith v. Phillips,

,

,

(1982).

In this case, Hughkeith asserts that the following questions during

his cross-examination amounted to prosecutorial misconduct: PROSECUTION: Well, I’m not asking if you’re causing harm with the gun; I asked you why you carried that gun and you said because you live in a dangerous neighborhood. People get shot all the time. So if you carry it around without the intent of using it, what’s the point?

HUGHKEITH: There’s no point.

PROSECUTION: No point. Well, in this situation couldn’t you have shown Mr. Powell you also had a gun and said, hey, let’s not — let’s not shoot each other today. We both have guns. Let’s all just walk away.

HUGHKEITH: No.

***

PROSECUTION: Again, if the intent is to not use it, why don’t you show him your gun right now before a shot is ever fired?

HUGHKEITH: I didn’t. I did not.

PROSECUTION: I know. Why not?

HUGHKEITH: I don’t know.

PROSECUTION: You could have diffused this whole situation.

***

HUGHKEITH: How can I try to diffuse a situation? The man got a gun, about to aim it at me.

(Tr. 1242-1244.) Hughkeith did not object to this line of questioning and, therefore,

has waived all but plain error.

Cross-examination is entitled to wide latitude, and its scope is within

the trial court’s discretion. State v. Garfield,

,

(11th Dist. 1986), citing State v. Huffman,

,

(1912).

In this case, Hughkeith provided extensive testimony on direct examination concerning his initial interaction with Powell and his belief that Powell intended to

cause him bodily harm once they were both in the parking lot. Hughkeith’s

subjective interpretation of Powell’s movements and whether Hughkeith possessed

a firearm during their initial confrontation inside the restaurant was certainly

relevant, and the state was entitled to explore this issue on cross-examination.

Although it is implausible to suggest that Hughkeith could have diffused the

situation by brandishing his firearm the moment Powell first displayed his weapon,

we cannot say the prosecution’s questions were improper or beyond the scope of

cross-examination. Nor can it be said that the outcome of the trial clearly would

have been different but for the state’s line of questioning on cross-examination.

Hughkeith further argues the state engaged in prosecutorial

misconduct by referring to Powell as being “defenseless” during its closing remarks.

(Tr. 1399.) Hughkeith contends that the state’s characterization of Powell was

misleading and inconsistent with the evidence presented at trial. Again, Hughkeith

did not object to the challenged remark.

Generally, a prosecutor is entitled to wide latitude during closing

argument. State v. Harris,

,

(8th Dist.), citing

State v. Maurer,

,

(1984). And the closing

argument must be viewed in its entirety to determine whether the disputed remarks

were prejudicial. “[I]solated comments by a prosecutor are not to be taken out of

context and given their most damaging meaning.” Gapen at ¶ 106, citing Donnelly

v. DeChristoforo,

,

,

(1974). In determining whether a prosecutor’s comment was prejudicial, we consider several

factors (1) the nature of the remark(s), (2) whether an objection was made by

counsel, (3) whether the court gave curative instructions, and (4) the general

strength of the evidence against the defendant. Harris, citing State v. Braxton,

,

(8th Dist. 1995).

“The United States Supreme Court has expressly recognized that

prosecutors serve a special role in our justice system requiring them to adhere to the

highest standards and to avoid improper arguments, insinuations, and assertions

calculated to mislead the jury.” State v. Fears,

,

(1999) (Moyer, C.J., concurring in part and dissenting in part). Thus, while a

prosecutor may strike hard blows, he or she may not strike foul ones. Berger v.

United States,

,

,

(1935). As recognized by

this court, such “foul blows” include the following:

[P]ersonally vouching for the credibility of a witness, launching ad hominem attacks against the defendant or [defendant’s] lawyer, relying on improper evidence, relying on evidence not in the record, critically commenting on the defendant’s exercise of his [or her] rights such as the right to remain silent or the right to a jury trial, and deliberately misleading the jury.

State v. Hough, 8th Dist. Cuyahoga No. 91691,

.

After careful consideration, we find no merit to Hughkeith’s

contention that the state’s comment “was tantamount to misconduct.” It is well

settled that the state is permitted to freely comment on “‘“what the evidence has

shown and what reasonable inferences may be drawn therefrom.”’” State v. Fudge,

,

(10th Dist.), quoting State v. Muhleka, 2d Dist.

Montgomery No. 19827,

; State v. Lott,

,

(1990). In this case, the location of Powell’s firearm at the time he

was repeatedly shot was an issue of fact that was highly contested at trial. Although

the evidence established that Powell had a gun in his possession at the time of the

incident, the state was free to comment on the reasonable inferences that could be

drawn by the fact that Powell’s firearm was never removed from his waistband

during the exchange of fire. Under these circumstances, we find the prosecutor’s

characterization of Powell’s ability to protect himself at the time of the shooting did

not constitute error, plain or otherwise.

The ninth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

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

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

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and MARY J. BOYLE, J., CONCUR