[Cite as State v. McDonald,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220328 TRIAL NO. B-2102431 Plaintiff-Appellee, : O P I N I O N. vs. :

ROBERT MCDONALD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 16, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Defendant-appellant Robert McDonald appeals his conviction for

voluntary manslaughter and an accompanying weapon specification, arguing that the

weight of the evidence presented at trial established that he had acted in self-defense

when shooting, and ultimately killing, De’Angelo Amison.

{¶2} While McDonald was entitled to a presumption that he acted in self-

defense, the weight of the evidence did not establish that he had a bona fide belief that

he was in imminent danger of death or great bodily harm necessitating the use of

deadly force. We therefore reject McDonald’s argument that his conviction was

contrary to the manifest weight of the evidence. We additionally hold McDonald’s

challenge to the trial court’s application of the Reagan Tokes Law to be without merit,

and we affirm the trial court’s judgment.

Factual and Procedural Background

{¶3} Amison was shot and killed inside an apartment belonging to Laneasha

Walker on May 6, 2021. For his role in Amison’s death, McDonald was indicted on

charges of murder, voluntary manslaughter, and felonious assault. Each charge

carried two accompanying weapon specifications. At a bench trial, McDonald

conceded that he shot Amison, but argued that he had acted in self-defense.

{¶4} Before discussing the testimony presented at trial, it is helpful to explain

the relationships between the various persons involved in this case. Laneasha Walker,

whose apartment was the scene of the shooting, was dating McDonald. Walker was

Amison’s former girlfriend, the mother of his child, and, at the time of his death,

pregnant with Amison’s second child. Walker resided in the same apartment building

as Amison’s mother, sister, and aunt, living on the floor directly above them. Tamara

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Wallace was a witness to the events surrounding the shooting. Wallace was Amison’s

girlfriend, but had previously been in a relationship with McDonald, who is the father

of her child.

{¶5} The following evidence was presented at trial concerning McDonald’s

shooting of Amison and whether he acted in self-defense. All witnesses were

consistent in their testimony that Amison and Walker had argued with each other,

resulting in Amison entering Walker’s apartment to confront her and subsequently

being shot by McDonald.

{¶6} Antonia Conyers, Amison’s younger sister, testified that, after hearing

commotion on the floor above, she went upstairs and stood in the hallway outside of

Walker’s apartment. The front door of the apartment was open, and Conyers saw

Walker and Amison arguing. Conyers’s testimony placed Walker and McDonald next

to each other, with Amison facing them. She saw Amison move closer to Walker, and

Walker whisper something to McDonald in response. According to Conyers, she then

saw McDonald holding a gun. When asked where the gun came from, she responded,

“I don’t know. He had it on the side of him.” Conyers testified that McDonald aimed

the gun at Amison and explained that after Amison was shot, he started screaming and

ran down the stairs to their mother’s apartment.

{¶7} Latoya Adams, Amison’s aunt who lived on the floor below Walker,

observed Amison and Walker arguing in the hallway of the apartment complex on the

morning of the shooting. She saw Walker spit on Amison from the landing above,

which prompted Amison to run up the stairs and kick open the door to Walker’s

apartment. Adams testified that she walked upstairs and viewed the altercation that

occurred inside Walker’s apartment from her position in the hallway.

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{¶8} Adams explained that Amison stood directly in front of Walker, who was

lying back on a couch, and that McDonald was standing to the left of Amison.

According to Adams, she heard Amison state, “B****, you spit on me, like that’s assault

like, I should beat your a**.” Adams testified that Amison placed himself directly in

Walker’s face while pointing and yelling at her, but that he never struck her. According

to Adams, Walker responded to Amison’s threat by pointing at McDonald and stating,

“You always want to try to put your hands on a female, fight him.” Adams heard

Walker tell Amison to “fight a n*****.” She then saw Amison turn around and point

at McDonald while asking, “Who, this n*****?” and “What you going to do n*****?”

Adams testified that while Amison was making these statements, McDonald pulled out

a gun and shot Amison in the chest.

{¶9} Wallace testified that on the morning of the shooting, she and Amison

went to Walker’s apartment so that Amison could pick up his son. According to

Wallace, she waited at the bottom of the stairs inside the apartment complex for

Amison, who came back downstairs without his son and on a quest to find diapers,

which he apparently needed to retrieve before taking the child. Frustrated by the

inability to just pick up his son, Amison abandoned the search for diapers and went

back upstairs, where he kicked open the door to Walker’s apartment and charged at

Walker and McDonald. Wallace explained that she also went upstairs, where she

watched events unfold from the doorway into the apartment.

{¶10} Wallace testified that she saw Walker jump onto the couch in a balled-

up position and ask McDonald for help after Amison charged her. According to

Wallace, Amison argued with Walker, and it looked like he was choking her, but

Wallace conceded that she never saw Amison physically touch Walker. She heard

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Amison ask McDonald, “What are you gonna do?” before running up on McDonald

and getting in his face. Wallace testified that she then heard a gunshot, but that she

had not seen anyone pull out a gun.

{¶11} Walker testified that although Amison had at times stayed at her

apartment, he was living with Wallace at the time of the shooting. That morning,

Amison had come to pick up their son, but Walker told him he first needed to obtain a

car seat for the child. Walker explained that she and Amison were arguing in the

hallway when Amison got upset, ran up the stairs, and kicked open the door to her

apartment that she had just shut. According to Walker, she was backed up onto her

couch, while Amison stood in front of her “looking like he wanted to do [her] some

s***.” Walker asked McDonald to grab Amison and get him out of her face. Amison

heard Walker’s plea for help, and he responded, “What the f*** he gonna do? He ain’t

gonna do s***.” Walker testified that Amison then “went towards [McDonald’s] way,”

and she heard a pop. She immediately cursed at McDonald and asked him why he had

shot Amison.

{¶12} Walker stated that although Amison had been physically violent with

her in the past, he did not put his hands on her while they were arguing in the

apartment, nor did he brandish a weapon during the altercation. She stated that

McDonald did not seem afraid of Amison that day, although she acknowledged that

Amison had threatened McDonald on other occasions.

{¶13} McDonald did not testify at trial, but the state played a video of his

interview with the investigating detectives for the court. McDonald stated during the

interview that on the morning of the shooting, Amison had come over to Walker’s

apartment to get his son. Amison initially left without the child, but came back shortly

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thereafter and kicked down the door to Walker’s apartment. McDonald explained that

after entering the apartment, Amison went straight towards Walker and started

choking her on the couch. Amison then charged towards McDonald, asking, “What

you gonna do?” McDonald stated that he shot Amison because he did not think he had

the opportunity to leave the apartment and because Amison had threatened him and

charged him, despite seeing that McDonald had a gun. McDonald told the detectives

that Amison had threatened him in the past, but that he had not taken the threats

seriously.

{¶14} The trial court found McDonald not guilty of murder, but guilty of

voluntary manslaughter and felonious assault, along with the accompanying weapon

specifications. The offenses of voluntary manslaughter and felonious assault were

merged at sentencing, as were the two weapon specifications for the voluntary

manslaughter offense. Applying the Reagan Tokes Law, the trial court imposed an

indefinite sentence of eight to 12 years’ imprisonment for the offense of voluntary

manslaughter, along with a consecutive three years of imprisonment for the weapon

specification, resulting in an aggregate sentencing of 11 to 15 years in prison.

Self-Defense Analysis

{¶15} In his first assignment of error, McDonald argues that his conviction

was contrary to the manifest weight of the evidence. He does not challenge any of the

underlying elements of his voluntary-manslaughter conviction, but rather argues that

the weight of the evidence established that he acted in self-defense.

{¶16} When reviewing a challenge to the weight of the evidence, we must

review the entire record, weigh the evidence, consider the credibility of the witnesses,

and determine whether the trier of fact clearly lost its way and created a manifest

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miscarriage of justice. State v. Thompkins,

,

(1997). This court recently clarified its role in a manifest-weight review, explaining:

When faced with a manifest weight of the evidence challenge, we must

consider whether the state “carried its burden of persuasion” before the

trial court. State v. Messenger, Slip Opinion No.

;

see State v. Martin, Slip Opinion No.

. Unlike the

burden of production, which concerns a party’s duty to introduce

enough evidence on an issue, the burden of persuasion represents a

party’s duty to convince the factfinder to view the facts in his or her

favor. Messenger at ¶ 17. Therefore, in order for us to conclude that the

factfinder’s adjudication of conflicting evidence ran counter to the

manifest weight of the evidence—which we reserve for only the most

exceptional circumstances—we must find that the factfinder

disregarded or overlooked compelling evidence that weighed against

conviction. State v. Thompkins,

,

(1997). We accordingly sit as a “thirteenth juror” in this

respect.

State v. Gibson, 1st Dist. Hamilton No. C-220283,

.

{¶17} To establish self-defense in the use of deadly force, a defendant must

show that: “(1) the defendant was not at fault in creating the situation giving rise to

the affray; (2) the defendant had a bona fide belief that she was in imminent danger of

death or great bodily harm and that her only means of escape from such a danger was

in the use of such force, and (3) the defendant did not violate any duty to retreat or

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avoid the danger.” State v. Wilson, 1st Dist. Hamilton No. C-210535,

, quoting State v. Smith, 1st Dist. Hamilton No. C-190507,

.

{¶18} Under Ohio’s recently amended self-defense law, “if there is evidence

presented at trial that tends to support that the defendant used force against another

in self-defense or in defense of another, the state must prove beyond a reasonable

doubt that the defendant did not use the force in self-defense or defense of another.”

Gibson at ¶ 10, quoting Smith at ¶ 49. The defendant has the initial burden of

producing evidence that is legally sufficient to establish that the defendant acted in

self-defense. Messenger, Slip Opinion No.

. Once the

defendant meets that burden, the state then bears the burden of persuasion to

disprove at least one of the foregoing elements of self-defense beyond a reasonable

doubt. Gibson at ¶ 10. “[A] manifest-weight-of-the-evidence standard of review

applies to the state’s burden of persuasion.” Messenger at ¶ 26.

{¶19} In certain situations, a defendant is entitled to a presumption that the

defendant acted in self-defense. Pursuant to R.C. 2901.05(B):

(2) Subject to division (B)(3) of this section, a person is presumed to

have acted in self-defense or defense of another when using defensive

force that is intended or likely to cause death or great bodily harm to

another if the person against whom the defensive force is used is in the

process of unlawfully and without privilege to do so entering, or has

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

vehicle occupied by the person using the defensive force.

(3) The presumption set forth in division (B)(2) of this section does not

apply if either of the following is true:

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(a) The person against whom the defensive force is used has a right to

be in, or is a lawful resident of, the residence or vehicle.

(b) The person who uses the defensive force uses it while in a residence

or vehicle and the person is unlawfully, and without privilege to be, in

that residence or vehicle.

R.C. 2901.05(B)(2) and (3). When this presumption applies, the defendant’s burden

to produce evidence that he was not at fault, that he had a reasonable belief of

imminent danger of which the only means of escape was the use of force, and that he

had no duty to retreat is negated. State v. Jones,

,

(2d Dist.). This presumption is rebuttable, “and may be rebutted by a

preponderance of the evidence, provided that the prosecution’s burden of proof

remains proof beyond a reasonable doubt.” R.C. 2901.05(B)(4).

{¶20} Here, the state concedes that the evidence gave rise to a rebuttable

presumption that McDonald acted in self-defense, as he was lawfully in Walker’s

apartment when he shot Amison, who had unlawfully, and without the privilege to do

so, entered the residence. See R.C. 2901.05(B). The state, therefore, had to rebut the

presumption by a preponderance of the evidence while still maintaining the burden to

prove beyond a reasonable doubt that McDonald did not act in self-defense. R.C.

2901.05(B)(4);

(holding that when a defendant is entitled to a

presumption that he acted in self-defense, “the prosecution may rebut it by a

preponderance of the evidence and then prove beyond a reasonable doubt that the

defendant did not act in self-defense”).

{¶21} The state further concedes that McDonald was not at fault in creating

the violent situation and that he did not violate any duty to retreat or avoid the danger,

9 OHIO FIRST DISTRICT COURT OF APPEALS

but it contends that it established beyond a reasonable doubt that McDonald did not

have a bona fide belief that he was in imminent danger of death or great bodily harm.

With respect to this element, we have explained that it involves both objective and

subjective considerations, stating:

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.” The

state may disprove self-defense by demonstrating that the defendant’s

belief was not objectively reasonable or that she did not have an honest

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

(Internal citations omitted.) Wilson, 1st Dist. Hamilton No. C-210535, 2022-Ohio-

3801, at ¶ 13.

{¶22} The uncontested evidence established that Amison kicked open the door

to Walker’s apartment and confronted Walker, placing himself directly in her personal

space. The trial court heard evidence, via McDonald’s statement during his interview

with detectives, that Amison choked Walker on the couch. But in contravention to

McDonald’s statement was the testimony from Adams, Wallace, and Walker that

although Amison charged Walker and got in her face, he never physically touched her.

And while the evidence established that Amison turned towards or charged towards

McDonald, no witness testified that Amison had a weapon on his person or that he

actually touched or attacked McDonald.

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{¶23} As the trier of fact, the trial court was in the best position to judge the

credibility of the witnesses. See State v. DeHass,

,

(1967), paragraph one of the syllabus; State v. Shepard, 1st Dist. Hamilton No. C-

190747,

. If the court found credible the testimony that Amison

did not touch Walker or McDonald, as well as the evidence that Amison was unarmed,

it could reasonably have concluded that McDonald did not have a reasonable belief

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

{¶24} On this evidence, the trial court could also have reasonably determined

that McDonald’s use of deadly force was greatly disproportionate to any potential

harm he faced. While McDonald had been threatened by Amison on previous

occasions and was aware that Amison had hit Walker in the past, Amison on this

occasion was nonetheless unarmed and engaged in no physical violence against either

of them prior to being shot.

{¶25} We therefore cannot say that the trial court clearly lost its way or created

a manifest miscarriage of justice in determining that the state proved beyond a

reasonable doubt that McDonald did not have a reasonable belief that he was in

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

the use of deadly force.

{¶26} We hold that McDonald’s conviction for voluntary manslaughter was

not against the manifest weight of the evidence and overrule the first assignment of

error.

Reagan Tokes Law

{¶27} In his second assignment of error, McDonald argues that the trial court

erred in sentencing him as a matter of law. Under this assignment, he contends that

11 OHIO FIRST DISTRICT COURT OF APPEALS

the Reagan Tokes Law is unconstitutional because it violates the separation-of-powers

doctrine, both substantive and procedural due process, and the Equal Protection

Clause.

{¶28} McDonald acknowledges that this court has previously held the Reagan

Tokes Law to be constitutional, explaining that the challenges were being asserted to

preserve them should the Ohio Supreme Court reach a different determination

regarding the constitutionality of the law.

{¶29} As McDonald concedes, we have rejected these same challenges to the

Reagan Tokes Law in State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-

2962, appeal allowed,

,

,

. On the

authority of Guyton, McDonald’s second assignment of error is overruled.

{¶30} Having overruled McDonald’s assignments of error, we accordingly

affirm the trial court’s judgment.

Judgment affirmed.

BERGERON, P.J., and BOCK, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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