State v. Woodfork

[Cite as State v. Woodfork, 2025-Ohio-2786.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ROSS COUNTY

State of Ohio, :

:

Plaintiff-Appellee, : Case No. 23CA22

:

v. :

: DECISION AND

Marvan Woodfork, Sr., : JUDGMENT ENTRY

:

Defendant-Appellant. :

_____________________________________________________________

APPEARANCES:

Elizabeth R. Miller, Ohio Public Defender, and Jacob Seidl, Assistant Ohio Public

Defender, Columbus, Ohio, for Appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross

County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

_____________________________________________________________

Smith, P.J.

{¶1} Appellant, Marvan Woodfork, Sr., appeals the judgment of the Ross

County Court of Common Pleas convicting him of two counts of murder in

violation of R.C. 2903.02, both special felonies with firearm specifications, two

counts of having weapons while under disability in violation of R.C. 2923.13, both

third degree felonies, and tampering with evidence in violation of R.C. 2921.12,

also a third degree felony. Appellant raises four assignments of error on appeal,

Ross App. No. 23CA22 2

however, finding no merit to any of his arguments, all of his assignments of error

are overruled. Accordingly, the judgment of the trial court is affirmed.

FACTS

{¶2} On January 20, 2023, appellant was indicted by a Ross County Grand

Jury on one count of murder in violation of R.C. 2903.02, as well as one count of

felony murder, also in violation of R.C. 2903.02. Both murder counts were special

felonies with firearm specifications. The predicate offense for the felony murder

charge was felonious assault, a second-degree felony in violation of R.C. 2903.11.

Appellant was also indicted on two counts of having weapons while under

disability in violation of R.C. 2923.13, both third-degree felonies, and tampering

with evidence in violation of R.C. 2921.12, also a third-degree felony. The

charges stemmed from a shooting that occurred on January 10, 2023, at the

Christopher Inn & Suites (hereinafter “hotel”) in Chillicothe, Ohio, which resulted

in the death of Jennoro J. Elmore, Jr.

{¶3} The record reveals that appellant and Kayleigh Horn were staying in a

room at the hotel that had been rented by appellant’s mother and was listed under

her name. The two had gone there in an effort to avoid the victim, who had most

recently been in a relationship with Horn. According to appellant, the victim had

been threatening both himself and Horn with death for several months prior, up to

and including the night of the shooting. According to appellant, the victim had

Ross App. No. 23CA22 3

texted threats and had also made verbal threats over the phone to Horn. A search

of Horn’s phone verified that threats had been texted to Horn from the victim. The

record further reveals that the victim came to the hotel looking for the two on the

night of the shooting, entering the hotel through a side door and then going to the

desk to ask for the room number. Because the room was not rented in either

occupant’s name, the victim was unable to locate the two and returned to his

vehicle. According to appellant, he shot the victim from the hotel window while

the victim was on the phone with Horn, again making verbal threats to kill them.

{¶4} Appellant then quickly fled the hotel, leading law enforcement on a

chase that ended with appellant voluntarily surrendering himself once law

enforcement tracked him to a homeless encampment in a wooded area in

Chillicothe. Upon being interviewed by law enforcement, appellant confessed to

shooting the victim several times, explaining that he did so because he was scared

for both himself and Horn. He initially denied disposing of the firearm that was

used in the commission of the offense, but then drew a map identifying the location

of the gun so that law enforcement could retrieve it. The victim was provided

treatment at the scene and was then transported to the hospital, where he died. A

later autopsy confirmed that his cause of death was multiple gunshot wounds.

{¶5} Once indicted, appellant pled not guilty to the charges and he was

appointed counsel due to his indigency. Appointed counsel filed a notice of

Ross App. No. 23CA22 4

appearance at the January 31, 2023 arraignment and then filed a demand for

discovery. Discovery was provided the same day. A pretrial conference was

scheduled to take place on February 21, 2023, however, there is no transcript in the

record related to that hearing. Then, on February 28, 2023, a journal entry was

filed scheduling a three-day jury trial to take place beginning May 9, 2023. No

pretrial motions were thereafter filed by either party.

{¶6} The record contains a May 4, 2023 status hearing transcript indicating

defense counsel had informed the court that appellant wished to retain his own

hired counsel. Appellant appeared via video conference and directly informed the

court of his desire to hire counsel and stated that he was requesting a continuance

of 30 to 60 days in order for his family to continue to gather enough money to pay

a retainer. Appellant informed the court that he had been trying “to get ahold of”

his appointed attorney to request a continuance. He also stated that although his

appointed attorney had tried to visit him in the jail, he had been unable to see him

due to “being on lock down because of COVID and different things.” However,

the trial court denied appellant’s request for a continuance, stating that the request

was untimely, that no other attorney had indicated a willingness to take the case,

and that the court would not continue the case based upon “mere speculation.”

Nevertheless, the trial was continued just four days later, on May 8, 2023, at the

Ross App. No. 23CA22 5

request of defense counsel due to a last minute discovery issue that arose,

attributed to the State.

{¶7} The matter was eventually tried to a jury beginning on August 29,

2023. The trial began with voir dire, where the State raised a peremptory

challenge to the sole black juror. Defense counsel raised a Batson challenge to the

removal. Finding the State’s proffered explanation for the removal was sufficient

to overcome the challenge, the trial court permitted the juror to be removed from

the jury pool. The State then introduced 19 witnesses and 82 exhibits.

{¶8} Taylor Simmons testified that she was working the front desk of the

hotel on the night of the incident. She testified that a gentleman came in looking

for Kayleigh Horn. She told him there was no room listed under that name after

checking the computer. She testified that he then left. A video of the encounter

was played for the jury. Tiffany Spangler testified that she was at work in her

office next door to the hotel on the day of the incident. Upon hearing gunshots,

she walked to the parking lot and saw a body lying beside a car and a phone lying

just under the car. She testified that she could hear screaming and was then joined

by a woman whom she had just seen in a hotel window. She further testified that

she spoke to law enforcement when they arrived.

{¶9} Detective Adam Steele of the Chillicothe Police Department also

testified. He stated that he knew the victim and Horn had been living together at

Ross App. No. 23CA22 6

Horn’s residence. He testified that Horn was standing by the victim in the parking

lot and he asked her if “Snoop” was the one that shot the victim.1 In response,

Horn shook her head yes. Officer Terry Brown, Chief Ron Myers, and Detective

Chris Fyffe all testified that they were involved in the manhunt for appellant.

{¶10} Detective Lucas Lindamood also testified. He stated that he was

initially called to the crime scene, where he found the victim’s vehicle with four

bullet holes through the front windshield and Horn’s vehicle parked beside it. He

noted a second floor hotel window located right above it was opened. He obtained

a search warrant to search room 424, where both appellant and Horn had been

staying. He interviewed Kayleigh Horn at the scene and then interviewed

appellant after he had been taken into custody. He testified that he first provided

appellant Miranda warnings and then recorded the interview. He testified that

appellant admitted to shooting the victim and eventually drew a map so law

enforcement could locate the missing firearm. He further testified, upon cross

examination, that when appellant was informed the victim had died, he put his

head down and said “I am not a killer.”

{¶11} Portions of the interview were played for the jury. The video of the

interview depicted appellant sitting at a table in a blue one-piece paper-type suit

that had apparently been issued by the jail. Appellant informed Detective

1

The record indicates appellant’s nickname is “Snoop.”

Ross App. No. 23CA22 7

Lindamood that he and Horn had been receiving death threats via telephone from

the victim for the last six to seven months. He stated that the victim was at the

hotel and was on the phone with Horn when “I shot his dumb ass.” When asked

how many times, appellant stated “three times,” but that he wasn’t sure. He further

stated “I was scared.” He stated that the victim had told Horn he was going to kill

both of them. Although appellant initially denied having disposed of the gun, the

video later depicts appellant directing law enforcement as to where they could find

the gun. This was done after law enforcement provided appellant with a cigarette,

pizza, and Mountain Dew.

{¶12} Several forensic scientists from the Ohio Bureau of Criminal

Investigation also testified. Of relevance herein, Kelsey Carr, a forensic scientist

in the firearm section, testified that in her expert opinion the recovered bullets

submitted for testing by the Chillicothe Police Department were fired from the

firearm that was also submitted for testing. Further, Chief Deputy Coroner Sean

Swiatkoski testified that multiple gunshot wounds caused the victim’s death.

{¶13} At the conclusion of the State’s case, defense counsel raised a Crim.

R. 29(A) motion for acquittal as to all counts. The motion was denied by the trial

court. Defense counsel then sought lesser included offense and inferior degree

offense instructions as to both murder charges. Counsel’s argument will be

discussed in more detail below. However, the trial court also denied this request.

Ross App. No. 23CA22 8

Thereafter, the defense rested without presenting any evidence. The jury

ultimately convicted appellant on all counts. The trial court found that counts one

and two merged for purposes of sentencing and also that counts three and four

merged for purposes of sentencing. The State elected to proceed on counts one and

three. The court sentenced appellant to a mandatory 15 years to life in prison on

count one, along with a mandatory 3-year prison term for the attendant firearm

specification, to be served consecutively. The court sentenced appellant to a 36-

month prison term on count three, as well as a 36-month prison term on count five,

all to be served consecutively to one another, and consecutive to a sentence

appellant was presently serving in a separate case. The total aggregate sentence

imposed was 24 years to life in prison.

{¶14} Appellant now brings his appeal, setting forth four assignments of

error for our review.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING MARVAN’S MOTION FOR A

CONTINUANCE, EFFECTIVELY DENYING HIS

RIGHT TO RETAIN COUNSEL OF HIS CHOICE

UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTION 10

RIGHTS UNDER THE OHIO CONSTITUTION.

II. THE TRIAL COURT COMMITTED PREJUDICIAL

ERROR IN REFUSING TO INSTRUCT THE JURY ON

Ross App. No. 23CA22 9

THE INFERIOR AND LESSER INCLUDED

OFFENSES OF MURDER AND FELONY MURDER.

III. THE TRIAL COURT ERRED BY EXCUSING THE

ONLY BLACK VENIRE PERSON AFTER A BATSON

CHALLENGE WHEN THE STATE’S PROFFERED

RACE-NEUTRAL REASON WAS FACIALLY

DISCRIMINATORY, IF NOT PRE-TEXTUAL, AND

THE COURT FAILED TO MAKE THE NECESSARY

BATSON FINDINGS VIOLATING MARVAN’S

EQUAL PROTECTION RIGHTS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS, UNITED

STATES CONSTITUTION; ARTICLE I, SECTION 2,

OHIO CONSTITUTION.

IV. TRIAL COUNSEL PROVIDED INEFFECTIVE

ASSISTANCE OF COUNSEL THROUGHOUT THE

LITIGATION OF THIS CASE IN VIOLATION OF THE

SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10 ARTICLE 1 OF

THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR I

{¶15} In his first assignment of error, appellant contends the trial court

abused its discretion in denying his motion for a continuance. He argues that the

arbitrary denial of his motion for a continuance effectively denied his

constitutional right to retain counsel of his choice and resulted in reversible

structural error. More specifically, he argues that it is reversible error for a trial

court to arbitrarily deny a reasonable request for a continuance to retain counsel of

choice. The State responds by arguing that the trial court did not abuse its

discretion in denying appellant’s motion for a continuance and that no prejudice

Ross App. No. 23CA22 10

resulted from the denial because just four days after denying appellant’s request,

the trial court continued the trial for nearly four months due to a last minute

discovery issue that arose. Therefore, the State contends that appellant’s

arguments are wholly without merit.

Standard of Review

{¶16} Appellant contends the trial court abused its discretion in denying his

motion for a continuance. In general, “[t]he grant or denial of a continuance is a

matter which is entrusted to the broad, sound discretion of the trial judge. An

appellate court must not reverse the denial of a continuance unless there has been

an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65, 67 (1981), citing Ungar

v. Sarafite, 376 U.S. 575, 589 (1964); State v. Conway, 2006-Ohio-791 ¶ 147;

State v. Jones, 91 Ohio St.3d 335, 342 (2001). “ ‘[A]buse of discretion’ [means]

an unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or

action that no conscientious judge could honestly have taken.’ ” State v. Kirkland,

2014-Ohio-1966, ¶ 67, quoting State v. Brady, 2008-Ohio-4493, ¶ 23.

{¶17} A trial court that considers a motion to continue should “[w]eigh [ ]

against any potential prejudice to the defendant * * * concerns such as a court's

right to control its own docket and the public's interest in the prompt and efficient

dispatch of justice.” Unger at 67. Therefore, when evaluating a request for a

continuance, a court should also consider, inter alia:

Ross App. No. 23CA22 11

the length of the delay requested; whether other continuances

have been requested and received; the inconvenience to litigants,

witnesses, opposing counsel and the court; whether the requested

delay is for legitimate reasons to whether it is dilatory,

purposeful, or contrived; whether the defendant contributed to

the circumstance which gives rise to the request for a

continuance; and other relevant factors, depending on the unique

facts of each case.

Id. at 67-68.

Sixth Amendment Right to Counsel

{¶18} The Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right * * * to have the Assistance of Counsel for his

defence.” U.S. Const., Amend. VI. The Supreme Court of Ohio has held as

follows regarding the rights of an accused with respect to appointed counsel versus

retained counsel:

The right of an accused to select his own counsel is

inherent only in those cases wherein such accused is employing

the counsel himself. The right to have counsel assigned by the

court does not impose a duty on the court to allow the accused to

choose his own counsel; the selection is within the discretion of

the court. 23 C.J.S. Criminal Law § 982(5), p. 962.

Thurston v. Maxwell, 3 Ohio St.2d 92, 93 (1965).

{¶19} Decades later, the United States Supreme Court held as follows:

While the right to select and be represented by one's

preferred attorney is comprehended by the Sixth Amendment,

the essential aim of the Amendment is to guarantee an effective

advocate for each criminal defendant rather than to ensure that a

defendant will inexorably be represented by the lawyer whom he

prefers.

Ross App. No. 23CA22 12

Wheat v. United States, 486 U.S. 153, 159 (1988).

{¶20} Then in 2006, the United States Supreme Court stated as follows:

We have recognized a trial court's wide latitude in

balancing the right to counsel of choice against the needs of

fairness, and against the demands of its calendar. The court has,

moreover, an “independent interest in ensuring that criminal

trials are conducted within the ethical standards of the profession

and that legal proceedings appear fair to all who observe them.”

(Cleaned up.) U.S. v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006), quoting Wheat at

160.

{¶21} In U.S. v. Gonzales-Lopez, the defendant was denied his choice of

counsel as a result of the trial court’s wrongful denial of an application for

admission pro hac vice by the defendant’s chosen counsel. Id. at 142.2 In reaching

its decision, the Court drew a distinction between “trial error” and “structural

error." Id. at 148. The Court explained that while most constitutional errors

constitute trial errors, some constitutional errors result in “structural defects.” Id.

The Court further explained that structural defects “ ‘defy analysis by “harmless-

error” standards’ because they ‘affec[t] the framework within which the trial

proceeds,’ and are not ‘simply an error in the trial process itself.’ ” Id., quoting

Arizona v. Fulminante, 499 U.S. 279, 309-310 (1991).

2

The government did not dispute the circuit court’s conclusion that the district court “erroneously deprived

respondent of his counsel of choice.” Id. at. 144.

Ross App. No. 23CA22 13

{¶22} In a split decision, the majority of the Gonzales-Lopez Court

concluded “that erroneous deprivation of the right to counsel of choice * * *

unquestionably qualifies as ‘structural error.’ ” Gonzales-Lopez at 150. However,

Gonzales-Lopez factually differs from cases where an indigent defendant with

appointed counsel seeks a continuance in order to substitute his appointed counsel

with retained counsel and to allow newly retained counsel to have time to prepare

for trial. It also factually differs from the facts of the case sub judice, where

appellant, an indigent defendant, sought a continuance in order to try to secure

additional funds to retain counsel of his choice. Importantly, Gonzales-Lopez

acknowledged that “the right to counsel of choice does not extend to defendants

who require counsel to be appointed for them. Id. at 151, citing Wheat v. U.S.,

supra, at 159.

{¶23} Moreover, this Court has recently observed that the “ ‘ “important

right to counsel of choice is not absolute; it must be balanced against the court's

authority to control its own docket,” ’ ” and further “ ‘ “a court must beware that a

demand for counsel may be utilized as a way to delay proceedings or trifle with the

court.” ’ ” State v. Thompkins, 2024-Ohio-4927, ¶ 23 (4th Dist.), quoting State v.

Harmon, 2005-Ohio-1974, ¶ 32 (4th Dist.), in turn quoting United States v.

Krzyske, 836 F.2d 1013, 1017 (6th Cir. 1988).

Ross App. No. 23CA22 14

Legal Analysis

{¶24} As set forth above, appellant contends that the trial court abused its

discretion in denying his motion to continue the trial in order for him to retain

hired counsel. He further argues that in denying the motion, the trial court

deprived him of his constitutional right to counsel of his choice. He claims this

deprivation resulted in structural error which does not require a showing of

prejudice and which is not subject to a harmless error analysis. Additionally, he

alleges that the claimed structural error mandates an automatic reversal.

{¶25} This Court was recently confronted with arguments very similar to the

ones raised by appellant in State v. Thompkins, supra. Thompkins had court-

appointed counsel but sought a continuance the morning of trial in order to

substitute his appointed counsel with retained counsel. Id. at ¶ 30. In Thompkins,

newly retained counsel actually appeared in court on the morning of trial and filed

a “notice of conditional substitution of counsel.” Id. Thompkins’ newly retained

counsel “conditioned the motion to be substituted as counsel for Thompkins on the

trial court granting the motion for a continuance.” Id. Thompkins argued that it

had taken his family time to obtain the retainer and they had only obtained the

funds required three days prior to the scheduled trial. Id. Newly retained counsel

argued on Thompkins’ behalf that Thompkins was “entitled to representation with

counsel of his choice[,]” and that a continuance of 30 days was needed. Id.

Ross App. No. 23CA22 15

{¶26} This Court ultimately affirmed the trial court’s denial of the motion

for a continuance, finding the trial court did not abuse its discretion in denying the

motion and further, that Thompkins had not been prejudiced by the denial of his

motion. Id. at ¶ 33-35. In reaching our decision, we noted that Thompkins’

motions were untimely filed, he had previously been granted continuances and

previously had retained counsel that had withdrawn, that the jury was summoned

for trial and witnesses were present, and that appointed counsel was ready to

proceed. Id. at ¶ 34. We further found Thompkins had failed to demonstrate a

conflict with appointed counsel and that the case had been pending for seven

months. Id. We relied on our prior decision in State v. Cobb, 2007-Ohio-1885

(4th Dist.), where we overruled Cobb’s argument “that the trial court erred when it

denied his request for a continuance ‘to enable privately retained counsel to

substitute for appointed counsel[.]’ ” Thompkins at ¶ 25, quoting Cobb at ¶ 1. We

noted that the trial court’s decision was upheld in Cobb because Cobb’s motion

was untimely and a continuance would have resulted in an inconvenience.

Thompkins at ¶ 25, citing Cobb at ¶ 15-16. We further noted that there was

nothing in the record to indicate Cobb had a conflict with appointed counsel or that

“his financial situation ha[d] changed since being appointed counsel.” Thompkins

at ¶ 25, citing Cobb at ¶ 18-20.

Ross App. No. 23CA22 16

{¶27} Appellant argues that cases involving substitution of appointed

counsel are different from cases involving a request to retain privately hired

counsel of choice, and that cases involving requests to substitute counsel are

inapplicable to the arguments raised in this appeal. However, we find cases

analyzing the denial of a continuance for the purpose of substituting appointed

counsel with retained counsel to be both applicable and instructive. See State v.

Thompkins, supra; State v. Cobb, supra, at ¶ 11 (“Factors to consider in deciding

whether a trial court erred in denying a defendant’s motion to substitute counsel

include the timeliness of the motion and whether there was a conflict between the

attorney and the client that was so great that it resulted in a total lack of

communication preventing an adequate defense”); State v. Tingler, 2022-Ohio-

3792, ¶ 28 (4th Dist.) (overruling an argument that the trial court denied Tingler

his Sixth Amendment right to counsel when it refused to permit him to retain

counsel of his choice, and finding that Tingler was actually arguing that he was

entitled to substitute counsel in place of his court-appointed counsel).

{¶28} The record before us indicates that on the Thursday before the

Tuesday jury trial was scheduled to begin, appellant had not retained counsel

because his family was still trying to obtain the funds required to pay a retainer fee.

Thus, although appellant’s family was trying to obtain the funds to hire counsel for

appellant, we find that appellant himself remained indigent at the time of the

Ross App. No. 23CA22 17

hearing and thus, he was not entitled to counsel of his choice. As such, we will

review the decision of the trial court for an abuse of discretion in denying the

motion for a continuance related to a request to substitute counsel. Further, we

reject appellant’s argument that the trial court’s denial of his motion for a

continuance effectively denied him his constitutional right to counsel of his choice,

resulting in structural error.

{¶29} As set forth above, in considering whether to grant a motion to

continue the trial, the relevant factors to consider by the trial court include: 1) the

length of the delay requested; 2) whether other continuances have been requested

and received; 3) the inconvenience to litigants, witnesses, opposing counsel and the

court; 4) whether the requested delay is for legitimate reasons or whether it is

dilatory, purposeful, or contrived; 5) whether the defendant contributed to the

circumstance which gives rise to the request for a continuance; and 6) other

relevant factors, depending on the unique facts of each case. Unger at 67-68.

{¶30} Here, the trial court stated on the records as follows in denying the

motion for a continuance:

No. This matter because of speedy trial issues is set for trial. The

trial date has been on for quite a period of time. Your request to

change counsel is way too late in the game. There is nobody that

has been retained at this point or even indicated to the court that

they are willing to take on this case. If you in – if you wish to

hire somebody now, you can certainly do that but that attorney

better be ready to go to trial next week. Understood?

Ross App. No. 23CA22 18

***

Well, this isn’t necessarily about your feelings. It is about the

legal procedure that’s before you. This matter has been set for

quite some time. This is on the court’s docket and you have had

ample notice, ample opportunity to hire outside counsel, had you

wished to do so previously and the court is not going to continue

this on mere speculation.

{¶31} Appellant argues that the trial court did not properly apply the

balancing test before denying his motion, arguing that despite the trial court’s

reference to speedy trial concerns, there was actually no speedy trial problem.

Appellant further argues that the State did not object to the continuance and made

no arguments regarding inconvenience. Appellant also contends that the trial court

made no finding regarding whether the requested continuance was for purposes of

delay. “This court has held, however, that ‘nothing requires trial courts to

specifically articulate an analysis of each Unger factor.’ ” State v. Stevers, 2023-

Ohio-3050, ¶ 21 (4th Dist.), quoting State v. Dickens, 2009-Ohio-4541, ¶ 13 (4th

Dist.); Fultz v. Fultz, 2014-Ohio-3344, ¶ 20 (4th Dist.). “Further, absent evidence

to the contrary, we ‘must presume that the trial court applied the law [in this case,

the Unger factors] correctly.’ ” Stevers at ¶ 21, quoting State v. Combs, 18 Ohio

St.3d 123, 125 (1985); Hartt v. Munobe, 67 Ohio St.3d 3, 7 (1993).

{¶32} Initially, we note that the trial court found that appellant’s request was

untimely. Although appellant’s request was not made the morning of trial as in

some cases, it was made just two and one-half business days prior to the start of

Ross App. No. 23CA22 19

trial. With respect to the first Unger factor, which is the length of the delay

requested, appellant requested 30 to 60 days, not for retained counsel to prepare for

trial, but rather to allow his family to continue gathering money to retain a private

attorney. The trial court stated that the case had been on the court’s docket and had

been set for trial for quite some time because of speedy trial issues. At that time,

appellant had not waived his right to a speedy trial. Although appellant offered to

waive his right to a speedy trial at that time, the court stated that it would not

continue the case based upon “mere speculation,” referencing the fact that no other

attorney had been retained or had “indicated to the court that they are willing to

take on the case.” We find this Unger factor weighs in favor of appellee.

{¶33} With respect to the second Unger factor, which is whether other

continuances have been requested and received, this factor weighs in favor of

appellant. With respect to the third Unger factor, which considers the

inconvenience to the litigants, witnesses, opposing counsel, and the court that

would result from a continuance, we find this factor also weighs in favor of

appellee. The trial court noted that the case had been on the court’s docket and that

the trial date had been on court’s calendar “for quite a period of time.” The record

indicates that the May 9, 2023 trial date was set on February 21, 2023. The court

also stated that appellant’s request to change counsel was “way too late in the

Ross App. No. 23CA22 20

game.” As noted by the State, the request was made just two and one-half business

days prior to the start of the trial.

{¶34} Although the State did not object to a continuance below, the State

argues on appeal, and the record confirms, that the State had already issued over 20

subpoenas for trial witnesses. The court would have been aware of this fact as it

was evident in the record. And again, the court was not required to specifically

articulate its analysis of each factor. Appellant argues that because all but three of

the State’s witnesses were State employees, they would not have been

inconvenienced by a reasonable continuance. However, this Court has reasoned

that although a witnesses’ presence might be required by their employment, “that

does not diminish the inconvenience if the trial court continued the hearing.”

Stevers at ¶ 25, citing State v. Colley, 2010-Ohio-4834, ¶ 20 (4th Dist.)

(continuance would have inconvenienced court, state, and various witnesses when

request was made one business day before trial date).

{¶35} Regarding the fourth Unger factor, which considers whether the

appellant’s requested delay is for legitimate reasons or is dilatory, purposeful, or

contrived, argues that the trial court did not find that the request was made for

purposes of delay. While it is true that the trial court did not state it found

appellant’s motion to have been made for purposes of delay, the court did state that

appellant’s motion was untimely, that no attorney had contacted the court stating

Ross App. No. 23CA22 21

they were willing to take on the case, and that appellant had been provided ample

notice of the trial date. Thus, although the trial court did not expressly find the

motion was a delay tactic, its findings suggest the trial court believed appellant had

waited until the last minute to request a continuance and that his ability to retain an

attorney was speculative, which we believe falls under the final factor, which

considers any other relevant factors unique to the case. Thus, although the fourth

factor arguably weighs in favor of appellant, the final factor weighs in favor of the

State.

{¶36} Although appellant contends that the trial court’s denial of his motion

for a continuance was arbitrary and an abuse of discretion, we disagree. We

further find that despite appellant’s stated dissatisfaction with his court-appointed

attorney, these particular facts did not support the need for substitute counsel. As

this Court recently noted in State v. Thompkins:

“[f]actors to consider in deciding whether a trial court erred in

denying a defendant's motion to substitute counsel include ‘the

timeliness of the motion; the adequacy of the court's inquiry into

the defendant's complaint; and whether the conflict between the

attorney and client was so great that it resulted in a total lack of

communication preventing an adequate defense.’ United States

v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996). In addition, courts

should ‘balanc[e] * * * the accused's right to counsel of his

choice and the public's interest in the prompt and efficient

administration of justice.’ Id.; State v. Jones, 91 Ohio St.3d 335,

342-43, 744 N.E.2d 1163 (2001).

Ross App. No. 23CA22 22

Generally, a defendant bears the burden to demonstrate that

substitute counsel is warranted. State v. Carter, 128 Ohio

App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998).”

Thompkins at ¶ 24, quoting Tingler, supra, at ¶ 18-19.

{¶37} Here, the trial court immediately noted that the motion was untimely.

Further, when the trial court inquired into appellant’s dissatisfaction with his court-

appointed attorney, it was clear that his attorney had tried to visit him in the jail on

at least two occasions, but that he was prevented from doing so once due to

COVID, and another time due to the jail being on lock down. Those difficulties

cannot be attributed to appointed counsel, but rather, any attorney attempting

contact with appellant would have encountered difficulty under those

circumstances. Moreover, appellant had apparently been able to reach his counsel

because it was counsel who had requested the status conference on appellant’s

behalf so that he could make his pro se motion for a continuance. Finally, the facts

before us do not indicate that “the conflict between the attorney and client was so

great that it resulted in a total lack of communication preventing an adequate

defense.” United States v. Jennings, supra, at 148.

{¶38} We further find that appellant has failed to demonstrate that he

suffered prejudice as a result of the trial court’s denial of his motion. As noted

above, just four days after the trial court denied appellant’s pro se request for a

continuance, it granted his appointed counsel’s request for a continuance due to

Ross App. No. 23CA22 23

last minute discovery issues that arose on the fault of the State. The trial was

continued nearly four months as a result. Thus, although appellant’s pro se motion

was denied, the trial was nevertheless continued. Appellant argues that he was still

prejudiced because when the trial court denied his pro se motion, the money his

family had gathered was “disbursed in less than a week.” However, aside from

appellant’s allegation in his appellate briefing, that information is outside the

record and not properly before us.

{¶39} In light of the foregoing, we find no merit to the arguments raised

under appellant’s first assignment of error. Therefore, it is overruled.

ASSIGNMENT OF ERROR III

{¶40} We next address appellant’s third assignment of error, out of order.

In his third assignment of error, appellant contends that the trial court erred by

excusing the only black venire person despite a Batson challenge being raised.

Appellant argues that “the State’s proffered race-neutral reason was facially

discriminatory, if not pre-textual.” Appellant further argues that the trial court

failed to make the necessary Batson findings, resulting in a violation of his

constitutional right to equal protection. The State responds by arguing that its

peremptory challenges did not run afoul of either Batson or the Equal Protection

Clause.

Batson v. Kentucky Three-Step Test

Ross App. No. 23CA22 24

{¶41} In 2022, the Supreme Court of Ohio observed as follows regarding

the test to be applied when a challenge is raised under Batson v. Kentucky, 476

U.S. 79 (1986):

A defendant has “the right to be tried by a jury whose

members are selected pursuant to nondiscriminatory criteria.”

[Batson at 85-86], 106 S.Ct. 1712. Accordingly, a constitutional

violation occurs when the prosecution challenges “potential

jurors solely on account of their race or on the assumption that

black jurors as a group will be unable impartially to consider the

State's case against a black defendant.” Id. at 89, 106 S.Ct. 1712.

“The Constitution forbids striking even a single prospective juror

for a discriminatory purpose.” Flowers v. Mississippi, 588 U.S.

––––, 139 S.Ct. 2228, 2244, 204 L.Ed.2d 638 (2019).

In Batson, the United States Supreme Court established a

three-factor test for adjudicating race-based challenges. Id. at 96,

106 S.Ct. 1712. “First, the opponent of the peremptory challenge

must make a prima facie case of racial discrimination.” State v.

Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶

106. If the opponent satisfies that burden, “the burden shifts to

the State to come forward with a neutral explanation for

challenging black jurors.” Batson at 97, 106 S.Ct. 1712. “At this

step of the inquiry, the issue is the facial validity of the

prosecutor's explanation.” Hernandez v. New York, 500 U.S.

352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Although it

is not enough to simply deny a discriminatory motive or assert

good faith, Batson at 98, 106 S.Ct. 1712, the “explanation need

not rise to the level justifying exercise of a challenge for cause,”

id. at 97, 106 S.Ct. 1712.

Finally, “the trial court must decide based on all the

circumstances, whether the opponent has proved purposeful

racial discrimination.” Bryan at ¶ 106; see also Batson, 476 U.S.

at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69. “The trial judge must

determine whether the prosecutor's stated reasons were the actual

reasons or instead were a pretext for discrimination.” Flowers at

––––, 139 S.Ct. at 2241. The court must “assess the plausibility

Ross App. No. 23CA22 25

of the prosecutor's reason for striking the juror “in light of all

evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S.

231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (“Miller-El

II”). Relevant factors may include “the prosecutor's demeanor;

* * * how reasonable, or how improbable, the explanations are;

and * * * whether the proffered rationale has some basis in

accepted trial strategy.” Miller-El v. Cockrell, 537 U.S. 322,

339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Miller-El I”). “In

addition, race-neutral reasons for peremptory challenges often

invoke a juror's demeanor (e.g., nervousness, inattention),

making the trial court's firsthand observations of even greater

importance.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct.

1203, 170 L.Ed.2d 175 (2008).

The trial court's finding at step three “is entitled to

deference, since it turns largely ‘on evaluation of credibility.’ ”

State v. White, 85 Ohio St.3d 433, 437, 709 N.E.2d 140 (1999),

quoting Batson, 476 U.S. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69,

fn. 21. Accordingly, “[a] trial court's findings of no

discriminatory intent will not be reversed on appeal unless

clearly erroneous.” Bryan at ¶ 106; see also Miller-El I at 340,

123 S.Ct. 1029. If, however, a trial court does err in applying

Batson, the error is structural. See United States v. McFerron,

163 F.3d 952, 955-956 (6th Cir.1998) (cataloging federal

appellate courts that have unanimously and “resoundingly”

rejected arguments that Batson errors are subject to harmless-

error review).

State v. Garrett, 2022-Ohio-4218, ¶ 67-70.

Legal Analysis

{¶42} Here, during voir dire, the State informed the prospective jurors of the

names of the defendant and the attorneys involved in the case, as well as a list of

nine different law enforcement officers and other individuals that would be

testifying. This was done in an effort to avoid a later conflict due to a juror being

Ross App. No. 23CA22 26

close friends or family with one of the witnesses. The State engaged two different

jurors regarding potential connections and ruled out possible conflicts. The State

then inquired of Juror Number Five, Mr. Bayless, the sole black prospective juror,

regarding an answer he included on his jury questionnaire. Mr. Bayless had stated

on his questionnaire that he was “close friends or family” with Chillicothe Police

Officer Darren Netter. The prosecutor made inquiries regarding this disclosure,

explaining that he was unaware of any Chillicothe Police Officer by that name.

During their conversation, Mr. Bayless, not the State, raised the question of

whether or not Mr. Bayless might be related to the defendant. The exchange went

as follows:

MR. BAYLESS: * * * I sorry – I have know [sic] idea about –

or little to no idea about my family tree or

whose [sic] where and whose [sic] where and

what job they have. Which is – kind of puts

into question of this particular case if I

whether I know the defendant or not. Cause

most of my family lives in this – in this

county and in the State of Ohio.

MR. MARKS: Okay. So, you think there might be a familiar

relationship?

MR. BAYLESS: There –

MR. MARKS: That’s unknown to you at this point in time?

MR. BAYLESS: At this point in time, yes.

MR. MARKS: Okay.

Ross App. No. 23CA22 27

MR. BAYLESS: Mostly, the only two people I know who

would probably know is my father and my

grandfather, but unfortunately, my

grandfather passed away.

{¶43} Based upon this exchange, the State raised a peremptory challenge to

Juror Number Five. In turn, defense counsel raised a challenge to the removal of

Juror Number Five, stating that there had been no reasonable explanation given for

his removal and noting that he was “the only African American in the room”

besides appellant. The State then argued as follows:

I don’t disagree with the second part of that, but with respect to

the first part, when asked if he knew of anyone including Mr.

Woodfork, he gave a very roundabout answer saying that he

obviously has family in Chillicothe and Ross County, like most

of the jurors would, and then indicated that he may or may not

be related to Mr. Woodfork because of the name. He would have

to check with his father to see that. So, that would be the basis

for the peremptory on that.

In response, the trial court stated, almost as a continuation of the end of the State’s

statement, that the basis for the peremptory challenge “would be sufficient enough

to overcome the (not audible) and challenge.” The trial court then asked if there

was anything further. Defense counsel did not offer anything additional. The State

then formally excused Juror Number Five, as well as the replacement juror that

took his place.

{¶44} Appellant first argues that the State used only one peremptory

challenge and that was to eject the only black person. However, the record reveals

Ross App. No. 23CA22 28

that the State used a peremptory challenge to remove not only Mr. Bayless, but

also another juror. Appellant also argues that defense counsel was not permitted

an opportunity to demonstrate that the explanation given was pretextual. However,

as set forth above, the court asked if there was anything further, but defense

counsel did not add any additional comment.

{¶45} Appellant cites New Mexico v. Aragon, 109 N.M. 197, 198 (N.M.

1989) in further support of his arguments. In Aragon, it was found that the trial

court simply “rubber stamped” the prosecutor’s explanation for a peremptory

challenge, which was based upon nothing more than the prosecutor’s own

statement that there was a possible blood relationship between two potential black

jurors and a black defendant in another case pending before the court, not with

Aragon. Aragon at 202. Further, in Aragon, the prosecutor asked no questions of

the potential jurors during voir dire, and the trial court did not inquire into the

prosecutor’s basis for his explanation. Id. Appellant suggests that as in Aragon,

the trial court here also simply “rubber-stamped” the State’s proffered race-neutral

explanation.

{¶46} Here, however, it was not the State that suggested there was a family

relationship between appellant and Mr. Bayless, it was Mr. Bayless who raised that

concern and persisted in that concern, essentially stating he could not rule it out

without speaking to his father. Appellant specifically finds fault with the State’s

Ross App. No. 23CA22 29

explanation that Mr. Bayless believed he may have been related to appellant

“because of the name.” It is true that when the defense raised a Batson challenge

to the removal of Mr. Bayless, the State incorrectly summarized its previous

exchange with the juror to the extent that the juror’s concern about a family

relationship was “because of the name.” Mr. Bayless did not mention anything

about appellant’s name, however, he did state that he was not familiar with his

family tree and that most of his family lived in the area. As such, he was

concerned there was a family relationship that he would not be able to rule out

without speaking with his father. The trial court accepted that explanation and

found that it was sufficient to overcome the challenge raised by the defense.

Although there is a critical part of the transcript that was inaudible, we presume the

regularity of the record and find that the trial court stated that the State’s basis for

the removal of the juror was sufficient to overcome either the Batson challenge, or

the defense’s challenge.

{¶47} Additionally, we agree with the State’s argument that this case is

similar to State v. Fairrow, 2004-Ohio-3145 (4th Dist.). In Fairrow, an African-

American juror was excused because her mother was “good friends with the

defendant’s mother.” Id. at ¶ 4. The court found that reason to be race-neutral and

overruled the objection to the peremptory challenge. Id. On appeal, this Court

upheld the trial court’s decision, finding that “[a] juror’s self-professed familiarity

Ross App. No. 23CA22 30

with the defendant or his family and the resulting discomfort in deciding his fate

were race neutral reasons for exclusion.” Id. at ¶ 15. Here, we find that Mr.

Bayless’s volunteered statement of concern that he might be related to appellant,

coupled with his statement that most of his family was from the area and that he

was not familiar with his family tree, constituted a race-neutral explanation.

Therefore, we conclude the trial court did not err in overruling the objection to the

peremptory challenge. Thus, we find no Batson violation occurred. Accordingly,

because we find no merit to the arguments raised, Appellant’s third assignment of

error is overruled.

ASSIGNMENT OF ERROR II

{¶48} In his second assignment of error, appellant contends that the trial

court abused its discretion and committed prejudicial error in refusing to instruct

the jury on the inferior degree and lesser included offenses of murder and felony

murder. More specifically, appellant argues the evidence demonstrated that

sufficient provocation by the decedent was present, justifying a jury instruction on

voluntary manslaughter as the inferior degree offense of murder, and involuntary

manslaughter as the lesser included offense of felony murder, with aggravated

assault, an inferior degree offense of felonious assault, serving as the predicate

felony. The State responds by arguing that there was simply no evidence of a

Ross App. No. 23CA22 31

sudden fit of passion or rage brought on by the victim’s serious provocation and

that the trial court did not abuse its discretion in denying the requested instructions.

Standard of Review

{¶49} We initially note “that a trial court must fully and completely give

jury instructions which are relevant and necessary in order for the jury to weigh the

evidence and discharge its duty as the fact finder.” State v. Waugh, 1994 WL

71228, *2 (4th Dist. Mar. 2, 1994), citing State v. Comen, 50 Ohio St.3d 206

(1990), paragraph two of the syllabus. “When the indictment * * * charges an

offense, including different degrees, or if other offenses are included within the

offense charged, the jury may find the defendant not guilty of the degree charged

but guilty of an inferior degree thereof or lesser included offense.” R.C. 2945.74;

see also Crim.R. 31(C). “The question of whether a particular offense should be

submitted to the finder of fact as a lesser included offense involves a two-tiered

analysis.” State v. Deanda, 2013-Ohio-1722, ¶ 6.

{¶50} “The first tier, also called the ‘statutory-elements step,’ is a purely

legal question, wherein we determine whether one offense is generally a lesser

included offense of the charged offense[,]” or an inferior degree offense of the

charged offense. Id., quoting State v. Kidder, 32 Ohio St.3d 279, 281 (1987).

“The test used to determine whether to instruct a jury on an offense of inferior

degree is the same test used to determine whether to instruct a jury on a lesser

Ross App. No. 23CA22 32

included offense.” Waugh, supra, at *2, citing Shane at 632. In making the

determination whether an offense is a lesser included offense,

a court shall consider whether one offense carries a greater

penalty than the other, whether some element of the greater

offense is not required to prove commission of the lesser offense,

and whether the greater offense as statutorily defined cannot be

committed without the lesser offense as statutorily defined also

being committed.

State v. Evans, 2009-Ohio-2974, paragraph two of the syllabus, clarifying State v.

Deem, 40 Ohio St.3d 205 (1988). In contrast, the elements of an inferior degree

offense are “* * * contained within the indicted offense, except for one or more

additional mitigating elements * * *.” State v. Shane, 63 Ohio St.3d 630, 632

(1992). If this test is met, then the offense in question is a lesser included offense

or an inferior degree offense of the indicted offense.

{¶51} “The second tier looks to the evidence in a particular case and

determines whether ‘ “a jury could reasonably find the defendant not guilty of the

charged offense, but could convict the defendant of the lesser included offense[,]” ’

” or an inferior degree offense. Deanda at ¶ 6, quoting Evans at ¶ 13, in turn

quoting Shaker Hts. v. Mosely, 2007-Ohio-2072, ¶ 11. “The trial court has

discretion in determining whether the record contains sufficient evidentiary support

to warrant a jury instruction on the lesser-included offense, and we will not reverse

that determination absent an abuse of discretion.” State v. Blanton, 2018-Ohio-

1278, ¶ 64 (4th Dist.). However, while “the discretion of the trial judge play[s] a

Ross App. No. 23CA22 33

role in whether lesser-included-offense instructions are appropriate * * * the

evidence is crucial[.]” State v. Wine, 2014-Ohio-3948, ¶ 21. “ ‘[T]he trial court

must view the evidence in the light most favorable to the defendant.’ ” Id., quoting

State v. Monroe, 2005-Ohio-2282, ¶ 37.

{¶52} An instruction on a lesser included offense “is not warranted every

time ‘some evidence’ is presented to support the lesser offense.” State v. Trimble,

2009-Ohio-2961, ¶ 192, citing State v. Shane, supra, at 632. “Rather, a court must

find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the greater offense

and find the defendant guilty on a lesser included (or inferior degree) offense.’ ”

(Emphasis in Shane) Id., quoting Shane 632-633. “The trial court must give an

instruction on a lesser included offense if under any reasonable view of the

evidence it is possible for the trier of fact to find the defendant not guilty of the

greater offense and guilty of the lesser offense.” Wine at ¶ 34. “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.” State v. Grube, 2013-Ohio-692, ¶ 76 (4th Dist.), quoting Shane at 633.

Legal Analysis

{¶53} Appellant was charged in Count One with murder, a special felony in

violation of R.C. 2903.02(A). R.C. 2903.02(A) provides that “[n]o person shall

Ross App. No. 23CA22 34

purposely cause the death of another.” R.C. 2903.03(A) defines the offense of

voluntary manslaughter and provides, in pertinent part, as follows:

No person, while under the influence of sudden passion or

in a sudden fit or 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 * * *.

This Court has previously determined that voluntary manslaughter is an inferior

degree offense of murder, meaning that the elements of voluntary manslaughter are

contained within the offense of murder, except for one or more additional

mitigating elements are required to be proven to establish the offense of voluntary

manslaughter. State v. Blevins, 2019-Ohio-2744, ¶ 32 (4th Dist.), citing State v.

Goff, 2013-Ohio-42, ¶ 46 (4th Dist.); State v. Alexander, 2009-Ohio-1401 ¶ 62 (4th

Dist.). Accord State v. Shane, supra, at 632. Appellant argues he was entitled to a

jury instruction on the inferior degree offense of voluntary manslaughter with

respect to the murder charge.

{¶54} This Court has determined that a defendant on trial for murder “bears

the burden of persuading the fact finder, by a preponderance of the evidence, that

he or she acted under the influence of sudden passion or in a sudden fit of rage,

either of which was brought on by serious provocation occasioned by the victim

that was reasonably sufficient to incite the defendant into using deadly force, R.C.

2903.03(A), in order for the defendant to be convicted of voluntary manslaughter

Ross App. No. 23CA22 35

rather than murder * * *.” Blevins, supra, at ¶ 32, quoting State v. Goff, supra, at ¶

46. Further, as explained in both Blevins and Goff, “ ‘when a voluntary

manslaughter instruction is appropriate, a trial court should instruct the jury “to

consider the mitigating evidence to determine whether [the defendant] proved

voluntary manslaughter.’ ” Blevins at ¶ 32, quoting Goff at ¶ 47. See also State v.

Benge, 75 Ohio St.3d 136, 140-141 (1996).

{¶55} Count Two of the indictment charged Appellant with felony murder, a

special felony in violation of R.C. 2903.02(B), which states that:

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

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

of violence that is a felony of the first or second degree and that

is not a violation of section 2903.03 or 2903.04 of the Revised

Code.

The predicate felony set forth in the indictment was felonious assault. R.C.

2903.11 governs the offense of felonious assault and states, in pertinent part, that

no person shall cause serious physical harm to another by means of a deadly

weapon.

{¶56} Regarding the felony murder charge, appellant argues he was entitled

to a jury instruction on the lesser included offense of involuntary manslaughter

with the predicate felony being aggravated assault. R.C. 2903.04 defines the

offense of involuntary manslaughter and states in relevant part in section (A) that

“[n]o person shall cause the death of another * * * as a proximate result of the

Ross App. No. 23CA22 36

offender’s committing or attempting to commit a felony.” Aggravated assault is

defined in R.C. 2903.12 which provides, in pertinent part, as follows:

(A) 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:

(1) Cause serious physical harm to another or to another's

unborn[.]

This Court has determined that involuntary manslaughter is a lesser included

offense of felony murder. See State v. Wilson, 2018-Ohio-2700, ¶ 50 (4th Dist.).

See also State v. Wadlington, 2024-Ohio-1268, ¶ 36 (8th Dist.), citing State v.

Thomas, 40 Ohio St.3d 213, 215 (1988). Moreover, aggravated assault is an

inferior degree offense of felonious assault. Wadlington at ¶ 35, citing State v.

Martin, 2018-Ohio-1098, ¶ 8 (8th Dist.).

{¶57} Therefore, all of appellant’s requested instructions satisfied the first

tier of the test in that they were all either lesser included, or inferior degree,

offenses of the indicted offenses. However, under the second tier of the test, in

order for appellant to be entitled to a jury instruction on the inferior degree offense

of voluntary manslaughter with respect to the murder charge, as well as an

instruction on the lesser included offense of involuntary manslaughter with respect

to the felony murder charge, there had to be sufficient evidence in the record that

appellant acted under the influence of sudden passion or in a sudden fit of rage,

Ross App. No. 23CA22 37

either of which was brought on by the serious provocation occasioned by the

victim, which was reasonably sufficient to incite appellant into using deadly force.

{¶58} Again, the second tier of the test considers the evidence in a particular

case and determines whether the jury could have reasonably found the defendant

not guilty of the offenses charged, and instead could have convicted the defendant

of the lesser included offense and/or inferior degree offenses. See Deanda, supra,

at ¶ 6; Evans, supra, at ¶ 13; Mosely, supra, at ¶ 11. We explained in Blevins,

supra, that in order for instructions on lesser included offenses (and/or inferior

degree offenses) to be given, there is a requirement for both objective and

subjective evidence. Blevins at ¶ 34, citing Goff at ¶ 50.

{¶59} For instance, we have explained that in order for a voluntary

manslaughter instruction to be given, the following must be demonstrated:

Appellant first had to show “evidence of reasonably

sufficient provocation occasioned by the victim * * * to warrant

such an instruction.” Goff at ¶ 50; quoting Shane at 630, 590

N.E.2d 272. This determination is to be made using an objective

standard. Goff at ¶50. For example, we have explained that “

‘[f]or provocation to be reasonably sufficient, it must be

sufficient to arouse the passions of an ordinary person beyond

the power of his or her control.’ ” Id.; quoting State v. Elmore,

111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶81; in

turn quoting Shane at 635, 590 N.E.2d 272. If the objective

component is satisfied, the inquiry then “shifts to the subjective

component, which considers whether this particular actor, in this

particular case, was actually under the influence of sudden

passion, or was in a sudden fit of rage.” Goff at ¶ 51; citing Shane

at 634, 590 N.E.2d 272.

Ross App. No. 23CA22 38

Blevins at ¶ 34.

On the other hand, in both Blevins and Goff, this Court explained that in analyzing

the subjective component of the test, evidence that the defendant feared for his

own or another’s personal safety, as required for self-defense, does not constitute a

sudden passion or a fit of rage, as required by the voluntary manslaughter statute.

Blevins at ¶ 35; Goff at ¶ 52. See also State v. Levett, 2006-Ohio-2222, ¶ 29 (1st

Dist.), quoting State v. Perdue, 2003-Ohio-3481, ¶ 12 (7th Dist.), in turn quoting

State v. Harris 129 Ohio App.3d 527, 535 (10th Dist. 1998).

{¶60} Appellant argues, with respect to the second tier, that when viewed in

a light most favorable to him, the evidence supported an acquittal of murder and

felony murder, and a conviction of the lesser included and inferior degree charges.

In support of his argument, appellant asserts that he and his companion, Kayleigh

Horn, sought refuge in a hotel room while receiving death threats from appellant,

threats which he claims he had been receiving for six to seven months. He points

to evidence that the victim tracked them down at the hotel, and after he was unable

to determine what room they were in after checking with the office, the victim

went back to his car where “he continued to verbally threaten the pair with death.”

Appellant contends this evidence constituted sufficient evidence to support an

instruction on the inferior degree offense of voluntary manslaughter, and the lesser

Ross App. No. 23CA22 39

included offense of involuntary manslaughter predicated upon the offense of

aggravated assault.

{¶61} In further support of his argument, he cites a study which he claims

stands for the proposition that the feelings of fear and anger are not mutually

exclusive, but instead they often overlap and frequently arise simultaneously. He

contends that with these instructions, the jury would have been able to determine

whether “the evidence supported a finding that [he] acted under a sudden passion

or in a sudden fit of rage brought on by the serious provocation of [the victim].”

However, this Court has noted the distinction between fear and rage, explaining

that a showing of fear is necessary for a claim of self-defense, while voluntary

manslaughter requires a showing of rage. See State v. Rizer, 2011-Ohio-5702, ¶ 37

(4th Dist.).

{¶62} Further, in Blevins, after assuming the objective component of the test

had been met, this Court found that the appellant’s testimony that he was

frightened by threats made by the victim towards him in the days leading up to the

incident, and that he had shot the victim out of fear because he was afraid that if he

didn’t shoot, the victim would shoot first, did not constitute evidence that the

appellant acted under the influence of sudden passion or in a sudden fit of rage.

Blevins at ¶ 36. Thus, we determined that there was insufficient evidence

introduced at trial to warrant a voluntary manslaughter instruction. Id. See also

Ross App. No. 23CA22 40

State v. Loy, 2021-Ohio-403, ¶ 20 (4th Dist.) (“[E]vidence that a defendant feared

for the safety of himself or another ‘does not constitute sudden passion or a fit of

rage as contemplated by the voluntary manslaughter statute.’ ”), quoting State v.

Sudderth, 2008-Ohio-5115, ¶ 14 (4th Dist.); see also State v. Mack, 82 Ohio St.3d

198, 201 (1998) (“Fear alone is insufficient to demonstrate the kind of emotional

state necessary to constitute sudden passion or [a] fit of rage.”).

{¶63} Appellant contends that the trial court’s role was limited to

determining whether sufficient evidence of provocation was present to support an

instruction on these lesser included and inferior degree offenses, and that it erred in

going further by weighing the evidence, assessing credibility, and substituting its

own judgment as to whether the provocation was serious enough to cause appellant

to act under a sudden fit of passion or rage, thereby usurping the role of the jury.

Appellant particularly argues that in reaching its decision, the trial court arbitrarily

ignored the fact that the threats were not passive or isolated, but instead were made

for months leading up to the victim tracking appellant down and continuing to

threaten him. Appellant further contends the trial court erroneously applied the

“words alone doctrine” to deny the requested instructions, rather than allowing the

jury to determine whether the provocation was enough to cause appellant to act

under a sudden fit of passion or rage. Appellant also asserts that the trial court did

Ross App. No. 23CA22 41

not engage in the required analysis regarding the request for the involuntary

manslaughter instruction.

{¶64} However, we find no error or abuse of discretion in the trial court’s

findings. In denying the request for the voluntary manslaughter instruction, the

trial court cited to the evidence in the record indicating that appellant acted out of

fear for himself and for Horn. Thus, even assuming arguendo that there was

sufficient provocation on the victim’s part which would have incited an ordinary

person to passion and rage resulting in the use of deadly force, there is simply no

evidence in this particular record that appellant acted out of anything but fear.

Again, when asked why he shot the victim, appellant stated that it was because he

was afraid. Thus, even if we were to find that the provocation was sufficient and

that the objective prong of the second tier of the test was met, the subjective prong

of the test was not satisfied.

{¶65} The same analysis applies to the request for an involuntary

manslaughter instruction, although the court applied a more limited analysis to that

request. The trial court simply found that no reasonable jury could acquit on the

felonious assault charge as the predicate offense, in favor of convicting on the

inferior degree offense of aggravated assault. We agree with the trial court’s

reasoning in light of its earlier finding that there was no evidence in the record that

appellant acted under the influence of passion or upon a sudden fit of rage.

Ross App. No. 23CA22 42

Without evidence that appellant acted under the influence of sudden passion or in a

sudden fit of rage, a reasonable jury could not have acquitted appellant of felony

murder/felonious assault and instead convicted him of involuntary

manslaughter/aggravated assault.

{¶66} We further find no error with respect to the trial court’s mention of

the words alone doctrine. In State v. Shane, supra, in paragraph two of the

syllabus, the Supreme Court of Ohio held that “[w]ords alone will not constitute

reasonably sufficient provocation to incite the use of deadly force in most

situations.” The trial court’s reference to this holding in denying the requested

instructions was a correct statement of the law. The trial court then went on to

specifically find that appellant’s statement to police that he was afraid, or that he

feared for his life, in this situation “did not constitute evidence that the defendant

acted under a sudden passion or fit of rage to support a jury instruction on

voluntary manslaughter.” We agree with this finding, which is essentially

dispositive of the question of whether appellant was entitled to the requested

instructions. As such, we find no abuse of discretion on the part of the trial court

in denying the requested instructions. Because we find no merit to the arguments

raised under appellant’s second assignment of error, it is overruled.

ASSIGNMENT OF ERROR IV

Ross App. No. 23CA22 43

{¶67} In his fourth assignment of error, appellant contends that his trial

counsel provided ineffective assistance of counsel throughout the litigation of this

case in violation of his constitutional right to counsel. More specifically, he argues

that counsel’s deficient performance lacked any semblance of trial strategy and fell

far below prevailing professional norms. He sets forth several alleged examples of

his counsel’s ineffectiveness and he urges this Court to consider the cumulative

errors of counsel in our analysis. The State responds by arguing that appellant

received effective assistance of counsel and has failed to demonstrate that he was

prejudiced by any of counsel’s alleged errors.

Standard of Review

{¶68} The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution provide that defendants in all criminal

proceedings shall have the assistance of counsel for their defense. The United

States Supreme Court has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance” of counsel. Strickland

v. Washington, 466 U.S. 668 (1984).

{¶69} To establish constitutionally ineffective assistance of counsel, a

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

deficient performance prejudiced the defense and deprived the defendant of a fair

trial. See Strickland, supra, at 687; State v. Myers, 2018-Ohio-1903, ¶ 183; State v.

Ross App. No. 23CA22 44

Powell, 2012-Ohio-2577, ¶ 85. “Failure to establish either element is fatal to the

claim.” State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Moreover, if one element

is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378,

389.

{¶70} The deficient performance part of an ineffectiveness claim “is

necessarily linked to the practice and expectations of the legal community: ‘The

proper measure of attorney performance remains simply reasonableness under

prevailing professional norms.’ ” Padilla v. Kentucky, 559 U.S. 356, 366 (2010),

quoting Strickland, supra, at 688. Prevailing professional norms dictate that “a

lawyer must have ‘full authority to manage the conduct of the trial.’ ” State v.

Pasqualone, 2009-Ohio-315, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418

(1988).

{¶71} Further, “the performance inquiry must be whether counsel's

assistance was reasonable considering all the circumstances.” Strickland, supra, at

688. Accordingly, “[i]n order to show deficient performance, the defendant must

prove that counsel's performance fell below an objective level of reasonable

representation.” (Citations omitted.) State v. Conway, 2006-Ohio-2815, ¶ 95. In

addition, when considering whether trial counsel's representation amounts to

deficient performance, “a court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.”

Ross App. No. 23CA22 45

Strickland, supra, at 689. Thus, “the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound

trial strategy.” Id. Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.” State v. Taylor, 2008-

Ohio-482, ¶ 10 (4th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100 (1985).

Therefore, a defendant bears the burden of showing ineffectiveness by

demonstrating that counsel's errors were “so serious” that counsel failed to function

“as the ‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland, supra, at

687; e.g., State v. Gondor, 2006-Ohio-6679, ¶ 62; State v. Hamblin, 37 Ohio St.3d

153, 156 (1988).

{¶72} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that “but for counsel's errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine the outcome.” Strickland, supra, at 694; e.g., State v.

Short, 2011-Ohio-3641, ¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph three of the syllabus; accord State v. Spaulding, 2016-Ohio-8126, ¶ 91

(prejudice component requires a “but for” analysis). “[T]he question is whether

there is a reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.” Strickland, supra, at 695. Further, courts

ordinarily may not simply presume the existence of prejudice but must require a

Ross App. No. 23CA22 46

defendant to establish prejudice affirmatively. State v. Clark, 2003-Ohio-1707, ¶

22 (4th Dist.).

{¶73} Moreover, we have recognized that speculation is insufficient to

establish the prejudice component of an ineffective assistance of counsel claim.

E.g., State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Jenkins, 2014-Ohio-

3123, ¶ 22 (4th Dist.); State v. Simmons, 2013-Ohio-2890, ¶ 25 (4th Dist.); State v.

Halley, 2012-Ohio-1625, ¶ 25 (4th Dist.); State v. Leonard, 2009-Ohio-6191, ¶ 68

(4th Dist.); accord State v. Powell, 2012-Ohio-2577, ¶ 86.

Legal Analysis

A. Failure to Provide Assistance of Counsel in Obtaining a Continuance

{¶74} Appellant contends that he “was left without the assistance of counsel

when he moved for a continuance to retain counsel of his choice.” He argues that

his request for a continuance was made in part because of his “inability to

effectively communicate with his appointed counsel.” He argues that under the

Ohio Rules of Professional Conduct, his counsel was required to consult with him

and that instead of “aiding [him] in his legal objectives, counsel did nothing.”

Appellant further argues that counsel did not file a motion for a continuance on his

behalf, but rather that appellant had to appear remotely and present his request for

a continuance to retain counsel “while counsel stood by idly.” He also argues that

counsel should have objected to the trial court’s denial of the motion for a

Ross App. No. 23CA22 47

continuance on speedy trial grounds, reasoning which he argues was fundamentally

flawed.

{¶75} We find no merit to appellant’s arguments. Contrary to Appellant’s

argument that counsel failed to aid him in his request for a continuance, the record

demonstrates that counsel immediately brought appellant’s request to the court’s

attention and a hearing was specifically held just days prior to the start of trial in

order for Appellant to make his pro se request. Because appellant’s request for a

continuance was grounded in his dissatisfaction with his appointed counsel as well

as his desire to be permitted additional time to gather funds to retain counsel, we

find defense counsel’s decision to simply stand by while appellant communicated

his desires directly to the court to be reasonable under the circumstances.

{¶76} As noted in our disposition of appellant’s first assignment of error, the

trial court set forth additional reasonable grounds for the denial of appellant’s

motion, aside from speedy trial concerns. As such, we have already found that the

trial court did not abuse its discretion in denying appellant’s pro se motion.

Further, considering that just days after appellant’s motion was denied, the trial

was continued for several months at the request of defense counsel on other

grounds, appellant cannot demonstrate he was prejudiced by the assistance

rendered by counsel during the hearing on the motion for a continuance.

Therefore, we find no merit to these arguments.

Ross App. No. 23CA22 48

B. Failure to file a Motion to Suppress

{¶77} Appellant next contends that defense counsel provided ineffective

assistance of counsel by failing to file a motion to suppress his confession.

Appellant argues that “[t]here were facts available that indicate his privilege

against self-incrimination was not waived voluntarily.” More specifically, he

argues that the Miranda warnings provided were not presented in writing nor

signed by him, and that the officer informing him of his rights “mumbled.” He

argues there was no discussion regarding whether he could read or write English,

his level of education, any mental or physical defects affecting his understanding,

or whether he was under the influence of any alcohol or drugs.

{¶78} In support of his arguments, Appellant references the fact that during

his interview, he was unsure of the day of the week, was offered cigarettes, pizza,

and Mountain Dew to induce his cooperation in locating the firearm that was used

in the commission of the offense, and was persuaded to cooperate with a promise

that law enforcement “did not care about the tampering charges.” The State

responds by arguing that there was no basis for the filing of a motion to suppress as

appellant was properly Mirandized and then voluntarily spoke to law enforcement.

{¶79} “Counsel's failure to file a motion to suppress is not per se ineffective

assistance of counsel.” State v. Thompkins, 2024-Ohio-4927, ¶ 66 (4th), citing

State v. Walters, 2013-Ohio-772, ¶ 20 (4th Dist.), in turn citing State v. Madrigal,

Ross App. No. 23CA22 49

87 Ohio St.3d 378, 389 (2000). Rather, “ ‘the failure to file a motion to suppress

amounts to ineffective assistance of counsel only when the record demonstrates

that the motion would have been successful if made.’ ” Thompkins at ¶ 66, quoting

State v. Resendiz, 2009-Ohio-6177, ¶ 29 (12th Dist.). Further, “we are to presume

that trial counsel was effective if he could have reasonably decided that filing a

motion to suppress would be a futile act, even if there is some evidence in the

record to support a motion.” Walters at ¶ 20, citing Resendiz at ¶ 29.

{¶80} “ ‘A suspect's incriminatory statements ordinarily are admissible ... if

law enforcement officers gave the suspect the Miranda warnings and if the suspect

implicitly or explicitly waived the Fifth Amendment right against self-

incrimination.’ ” State v. Pleasant, 2025-Ohio-115, ¶ 72 (4th Dist.), quoting State

v. Neal, 2015-Ohio-5452, ¶ 24 (4th Dist.), citing Berghuis v. Thompkins, 560 U.S.

370, 395 (2010). “ ‘If a defendant later challenges incriminating statements as

involuntary, “the state must prove a knowing, intelligent, and voluntary waiver by

a preponderance of evidence.” ’ ” Pleasant at ¶ 72, quoting Neal at ¶ 24, in turn

quoting State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶

34. Voluntariness “is determined by ‘the totality of the circumstances, including

the age, mentality, and prior criminal experience of the accused; the length,

intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.’ ” State v. Garrett, 2022-

Ross App. No. 23CA22 50

Ohio-4218, ¶ 101, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051

(1976), paragraph two of the syllabus, vacated in part on other grounds, Edwards v.

Ohio, 438 U.S. 911 (1978). “A waiver will not be deemed to be involuntary

‘unless there is evidence of police coercion, such as physical abuse, threats, or

deprivation of food, medical treatment, or sleep.’ ” (Emphasis in original.)

Garrett at ¶ 101, quoting Wesson at ¶ 35. Moreover, contrary to appellant’s

argument that appellant’s Miranda rights were not presented to him in writing nor

waived by him in writing, “there is no requirement that a waiver be written.” In re

T.D.S., 2024-Ohio-595, ¶ 19 (rejecting an argument that a waiver was not

knowing, intelligent, and voluntary where no written Miranda warnings were

provided and where the waiver was not in writing).

{¶81} Here, appellant’s interview with law enforcement was videotaped and

the interviewing officer can clearly be heard providing appellant with his Miranda

warnings. When asked if he understood his rights, appellant said he did. He also

clearly agreed to speak with law enforcement despite just having been advised he

had the right to remain silent and also had the right to an attorney. He, at all times,

was spoken to in English and responded in English. There is no indication from

the video that appellant exhibited any signs of a mental defect, other than briefly

being uncertain regarding the day of the week.

Ross App. No. 23CA22 51

{¶82} Law enforcement called appellant by the name of “Snoop” during the

interview and it was clear they were familiar with each other. The interviewing

officer even knew appellant’s mother’s first name when appellant noted that his

mother had rented the room at the Christopher Inn. Further, there is evidence in

the record that this was not appellant’s first involvement with law enforcement.

Additionally, with respect to law enforcement’s offer of food and drink if appellant

would assist in locating the missing firearm, that offer was made only after

appellant stated he wanted a cigarette, and after appellant had already voluntarily

confessed to shooting the victim. In response, law enforcement offered him not

only a cigarette, but also pizza and Mountain Dew if he would aid them in finding

the firearm. At the time refreshments and a cigarette were offered, the

interrogation had only been going on for a short time, less than an hour.

{¶83} Viewing the totality of the evidence contained in the record, we

believe it was reasonable for trial counsel to conclude that filing a motion to

suppress would be futile. Thus, we cannot conclude that counsel rendered

ineffective assistance by virtue of failing to seek suppression of appellant’s

confession. Accordingly, we find no merit to this argument.

C. Failure to Effectively Raise a Batson Challenge

{¶84} Appellant also contends that his counsel was ineffective for failing to

raise an effective Batson challenge. While he acknowledges that counsel did raise

Ross App. No. 23CA22 52

a challenge to the State’s peremptory strike of the only black juror in the jury pool,

he argues that counsel fell short by failing “to ensure that the trial court engaged in

a complete Batson analysis and failed to submit the State’s proffered race-neutral

argument to effective adversarial testing.” He claims that his counsel should have

challenged the proffered race-neutral reason for the strike because “the State

falsely claimed that Mr. Bayless believed he had a familiar relationship to Marvan

because of his name.”

{¶85} “A trial court's determination that the state did not possess

discriminatory intent in the exercise of its peremptory challenges will not be

reversed on appeal unless it was clearly erroneous.” State v. May, 2015-Ohio-

4275, ¶ 45 (8th Dist.), citing State v. Strong, 2015-Ohio-169, ¶ 14 (8th Dist.), in

turn citing State v. Hernandez, 63 Ohio St.3d 577, 583 (1992). We have already

rejected appellant’s argument that the trial court erred by granting the State’s

peremptory strike of the only black juror. In reaching our decision, we

acknowledged that the State incorrectly summarized its previous exchange with the

juror to the extent that the juror’s concern about a family relationship was “because

of the name.” We noted that although Mr. Bayless did not mention anything about

appellant’s name, he did state that he was not familiar with his family tree and that

most of his family lived in the area. As such, he was concerned there was a family

relationship that he would not be able to rule out without speaking with his father.

Ross App. No. 23CA22 53

When questioned further by the State, Mr. Bayless persisted in his concern. This

led the State to make a peremptory challenge.

{¶86} In response to appellant’s Batson challenge, the State referenced the

concerns brought up by Mr. Bayless during voir dire. The trial court accepted the

explanation and found that it was sufficient to overcome the challenge raised by

the defense. This determination by the trial court was not clearly erroneous.

Having found no error in the trial court’s granting of the State’s peremptory strike,

we cannot now conclude that defense counsel was deficient in failing to more

strenuously object to the trial court’s ruling, or in failing to point out to the court

that Mr. Bayless’s concern was not rooted in having the same name as appellant.

Accordingly, this argument is without merit and is overruled.

D. Failure to Challenge Kayleigh Horn’s Inadmissible Hearsay Statements that

Violated the Confrontation Clause

{¶87} The record reveals that Chillicothe Police Officer, Matthew Shipley,

along with Detective Adam Steele, were the first officers to arrive at the scene that

night. They arrived to find the victim lying on the ground with apparent gunshot

wounds, and with Kayleigh Horn standing nearby. As Officer Steele provided aid

to the victim while waiting for EMS to arrive, Officer Shipley marked off a

perimeter. After Detective Steele quickly worked to photograph the victim’s

injuries before EMS transported him to the hospital, he asked Horn who shot the

victim.

Ross App. No. 23CA22 54

{¶88} Defense counsel objected on hearsay grounds, to which the State

responded that the statement was admissible as an excited utterance. The court

then permitted the State to lay a foundation that established that Horn was

distraught and breathing heavily, was crying, and was noticeably shaking. Defense

counsel then renewed his objection, which was overruled by the trial court. Steele

then testified that when he asked Horn if “Snoop” had been the one that shot the

victim, Horn “shook her head yes.” Detective Steele then testified that he “relayed

the information to a responding units [sic] around the – that responded to the scene.

We already knew from other witnesses that the subject, Mr. Woodfork, had ran

southbound across 35, U.S. 35, towards the woodline by Centerpoint Church.”

{¶89} Appellant concedes that his trial counsel objected to the admission of

this statement upon hearsay grounds, but contends that he should have further

argued that admission of the statement constituted a testimonial statement, the

admission of which violated the Confrontation Clause. The State contends that the

statement was nontestimonial and, therefore, there was no violation of the

Confrontation Clause. In support of its argument, the State asserts that Detective

Steele asked Horn for the identity of the shooter “as a public safety measure and in

an effort to apprehend the suspect.” For the following reasons, we agree that the

statement at issue constituted a nontestimonial statement and that its admission did

not violate the Confrontation Clause.

Ross App. No. 23CA22 55

{¶90} The Supreme Court of Ohio recently explained as follows, relevant to

these arguments:

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right ... to be confronted

with the witnesses against him.” In Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United

States Supreme Court explained that the key question for

determining whether a Confrontation Clause violation has

occurred is whether an out-of-court statement is “testimonial.”

Id. at 59, 68, 124 S.Ct. 1354. If a statement is testimonial, its

admission into evidence will violate the defendant's right to

confrontation if the defendant does not have an opportunity to

cross-examine the declarant. Id. at 53-56, 124 S.Ct. 1354.

To determine whether a statement is testimonial, courts

must look to post-Crawford decisions to ascertain whether the

statement bears indicia of certain factors that would make it

testimonial. “Statements are nontestimonial when made in the

course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency.” Davis

v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d

224 (2006). Statements are “testimonial when the circumstances

objectively indicate that there is no such ongoing emergency, and

that the primary purpose of the interrogation is to establish or

prove past events potentially relevant to later criminal

prosecution.” Id. For example, the primary purpose of a

testimonial statement is to create an out-of-court substitute for

trial testimony. Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct.

2173, 192 L.Ed.2d 306 (2015). That primary purpose must be

measured objectively by the trial court, accounting for the

perspectives of the interrogator and the declarant. Michigan v.

Bryant, 562 U.S. 344, 367-368, 131 S.Ct. 1143, 179 L.Ed.2d 93

(2011).

State v. Smith, 2024-Ohio-5745, ¶ 33-34.

Ross App. No. 23CA22 56

{¶91} In Smith, the Court further observed that in examining a case

concerning a mortally wounded victim, the United States Supreme Court has

“reiterated the importance of ascertaining whether the statements were made

during an ongoing emergency.” Smith at ¶ 37, citing Bryant at 361. “Another

factor that should be considered is the degree of formality of the interrogation.”

Smith at ¶ 38, citing Bryant at 366. (i.e., whether the interrogation occurred in a

public area versus a more formal area such as police headquarters). For instance,

the informality of the location “ ‘suggests that the interrogators’ primary purpose

was simply to address what they perceived to be an ongoing emergency.’ ” Smith

at ¶ 38, quoting Bryant at 377.

{¶92} Here, as set forth above, Detective Steele posed the question to Horn

at the scene of the crime, just after the victim had been discovered mortally

wounded, with knowledge that appellant had been seen running across U.S. Route

35. Further, upon receiving Horn’s statement, Detective Steele’s first act was to

relay the information to the other responding units. The record reflects that a

manhunt ensued before appellant was finally apprehended, after disposing of the

murder weapon. We conclude that under these circumstances, Horn’s nonverbal

statement was nontestimonial. Therefore, its admission did not violate the

Confrontation Clause. As a result, defense counsel’s failure to object to the

admission of the statement on Confrontation Clause grounds did not constitute

Ross App. No. 23CA22 57

deficient performance or otherwise result in prejudice to appellant. Accordingly,

having found counsel’s assistance was not ineffective in this regard, we find no

merit to this argument.

E. Failure to Investigate and Present a Consistent Defense

{¶93} Appellant contends that considering his trial counsel’s failure to move

for suppression of his confession and the statements of Horn, “there was no

reasonable defense that included suggesting someone else was the shooter.” He

argues the only reasonable defenses were 1) developing a record to provide a basis

to obtain lesser included and inferior degree offense instructions; and 2)

developing a record to establish that appellant did not possess the necessary mens

rea to be found guilty of the murder counts. He further argues that there were

multiple witnesses that could have been called to provide information related to

threats the victim had made. In sum, appellant claims that his counsel acted

deficiently by providing an ambiguous and inconsistent defense that included

insinuations that appellant was not the shooter, and that law enforcement was

deficient in its investigation.

{¶94} The State responds by pointing out that appellant fails to “suggest

how trial counsel could have proceeded differently because of appellant’s own

statements to the police and the facts of the case.” The State further argues that

Ross App. No. 23CA22 58

appellant has failed to articulate how the calling of additional witnesses that had

information about the threats would have helped his defense.

{¶95} A review of the record indicates that trial counsel primarily proceeded

to trial with a plan to seek jury instructions on the inferior degree offense of

voluntary manslaughter and the lesser included offense of involuntary

manslaughter. This theory was consistent with appellant’s statements made to

police, but it required additional mitigating elements be proven, namely

provocation and/or passion and rage. When it became clear that the trial court did

not believe the evidence was sufficient to provide the requested jury instructions,

trial counsel was left with few options in light of appellant’s prior confession.

Appellant argues counsel should have developed a record to establish that he did

not possess the necessary mens rea to be found guilty of the murder counts.

However, already properly in evidence were appellant’s statements that he shot the

victim because he was scared, not by accident or any other reason. The evidence

further established that appellant shot the victim at fairly close range, and not once,

but multiple times. With these facts in mind, it would have been difficult and

disingenuous to argue that appellant did not possess the mens rea to commit

murder.

{¶96} What was also disingenuous at that point was defense counsel’s

suggestion that someone else may have been the shooter. However, considering

Ross App. No. 23CA22 59

that appellant had confessed to shooting the victim, defense counsel was left with

little other strategy than a complete concession of guilt. The Supreme Court of

Ohio has noted, albeit in the penalty phase of a murder trial, that “it is not

necessarily deficient performance for defense counsel to present inconsistent

alternative theories to the jury.” State v. Mundt, 2007-Ohio-4836, ¶ 134, citing

Brown v. Rice (W.D.N.C.1988), 693 F.Supp. 381, 398, reversed in part on other

grounds, Brown v. Dixon (C.A.4, 1989), 891 F.2d 490, 498-500. “Nor does a

midtrial change in strategy necessarily constitute deficient performance.” Mundt at

¶ 134, citing Gabourie v. State (App.1994), 125 Idaho 254, 260, 869 P.2d 571.

{¶97} Moreover, even if counsel's tactical choice did constitute deficient

performance, appellant has not demonstrated that the outcome would have been

different but for this argument. In view of the totality of the evidence, it is unlikely

that the presentation of this defense argument, rather than an argument that

appellant did not possess the required mens rea for the charged offenses, changed

any juror's opinion as to appellant’s guilt. Hence, it is not likely that the outcome

would have been otherwise but for counsel's inconsistent argument. As such, we

find no merit to this argument.

F. Failure to Effectively Argue for the Inferior and Lesser Included Jury

Instructions

{¶98} Appellant argues that trial counsel was ineffective by failing to

articulate how the record supported the request for lesser included and inferior

Ross App. No. 23CA22 60

degree offense instructions. In particular, appellant claims that counsel should

have rebutted the trial court’s “determination that words alone constituted the basis

for the provocation,” and should have better articulated the “aggressive actions of

Elmore that were coupled with the threat.” Contrary to appellant’s argument, trial

counsel made an extensive argument in favor of lesser included offense and

inferior degree offense instructions. There was much discussion on the record

regarding appellant’s entitlement to the instructions and the trial court took the

matter under advisement and conducted its own research before denying the

requested instructions.

{¶99} As set forth above, the trial court correctly referenced the doctrine

that words alone do not constitute a sufficient basis for provocation in most

situations. That was a correct statement of the law. Importantly, the trial court did

not qualify the threats at issue herein as “words alone.” The trial court was well

aware, as it was clearly in evidence, that the victim not only made verbal threats,

but he traveled to the hotel where appellant and Horn were staying in an effort to

find Horn. Moreover, the trial court went on to accurately note that while the

record contained evidence that appellant acted upon fear, there was no evidence

that he acted under the influence of passion or a sudden fit of rage. As such, any

further argument made by defense counsel would have been futile and the lack

Ross App. No. 23CA22 61

thereof did not change the outcome of trial or otherwise result in prejudice to

appellant. Accordingly, we find no merit to this argument.

G. Failure to Object to Irrelevant and Prejudicial Body Camera and Autopsy

Photos

{¶100} Appellant contends that his trial counsel failed to object to the

introduction of “gruesome, irrelevant, and prejudicial body camera footage and

autopsy photographs.” Appellant argues that the photos and footage were

irrelevant because there was no argument that the victim died of anything other

than being shot, and that the sole intention of admitting these exhibits was to

“enflame the passions of the jury.” Appellant claims that his counsel abdicated his

duty in failing to object to their admission.

{¶101} The State responds by arguing that the video evidence and

photographs “were essential to proving its case.” More specifically, the State

contends that the video footage was relevant and admissible to the arrival of law

enforcement to the scene and to demonstrate how Spangler, a witness who arrived

at the scene first, handled a cell phone that she had found lying on the ground. The

State also contends that the video footage was relevant and probative to refute any

argument that Horn may have removed a gun from the victim, which could have

gone to a self-defense argument. The State further contends that the autopsy

photos showed the cause of death and demonstrated that the victim was inside his

Ross App. No. 23CA22 62

car when he was shot, due to the pooling of blood, rather than outside of his

vehicle, as had been previously argued by the defense.

{¶102} Evid.R. 401 provides “ ‘Relevant evidence’ means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” “Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice * *

*.” Evid.R. 403(A). In State v. Hurst, this Court observed as follows:

“Exclusion on the basis of unfair prejudice involves more than a

balance of mere prejudice. If unfair prejudice simply meant

prejudice, anything adverse to a litigant's case would be

excludable under Rule 403. Emphasis must be placed on the

word ‘unfair.’ Unfair prejudice is that quality of evidence which

might result in an improper basis for a jury decision.

Consequently, if the evidence arouses the jury's emotional

sympathies, evokes a sense of horror, or appeals to an instinct to

punish, the evidence may be unfairly prejudicial.” (Internal

quotation marks omitted.) [State v. Crotts, 2004-Ohio-6550, ¶

24], quoting Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio

St.3d 169, 172, 743 N.E.2d 890, quoting Weissenberger's Ohio

Evidence (2000) 85-87, Section 403.3.

State v. Hurst, 2012-Ohio-2465, ¶ 14.

{¶103} Here, we accept the State’s assertions as to why these exhibits were

relevant and admissible, despite their gruesome nature. The State had the burden

of proving that appellant purposely killed the victim, and these photos and video

were probative of that issue. See State v. Mammone, 2014-Ohio-1942, ¶ 99. See

Ross App. No. 23CA22 63

also State v. Trimble, 2009-Ohio-2961, ¶ 134 (affirming the admission of

admittedly gruesome crime scene photographs, holding they were relevant on

issues of intent and showed the manner and circumstances surrounding the deaths).

Under these circumstances, we find the probative value of these exhibits

outweighed the danger of unfair prejudice. Thus, even if defense counsel had

objected to the admission of the photos and video, admission of the evidence was

within the discretion of the trial court and likely would have been admitted over

objection based upon the above rationale.

{¶104} Furthermore, even if we excise the purportedly irrelevant and

prejudicial evidence, the remaining evidence supports appellant's conviction. As a

result, even if trial counsel's failure to object to the admission of the evidence

constituted deficient performance, that performance did not affect appellant's

substantial rights, i.e., it did not affect the outcome of the trial. Therefore, we find

this argument is without merit.

H. Failure to Investigate and Present a Case in Mitigation

{¶105} Appellant contends that trial counsel failed to investigate and present

any mitigation evidence, despite the fact that he was facing decades in prison. He

argues that counsel should have presented evidence providing the court with

“insight into his life,” including his adolescence and upbringing, his education

history, his physical and mental health, “the fact that the victim induced the

Ross App. No. 23CA22 64

offense,” and “the fact that [he] acted under serious provocation.” He argues that

instead, the trial court only received a “frail reference to mental health problems

and a history of substance abuse.” The State responds by noting that defense

counsel did point out some mitigating factors. The State also argues that appellant

has failed to point out the information that would have been favorable to him with

respect to these mitigating factors and that this Court “cannot infer a defense

failure to investigate from a silent record.”

{¶106} First, with respect to appellant’s argument that his trial counsel

failed to investigate in order that evidence could be presented in mitigation of

sentence, this Court has stated as follows:

Generally, an attorney's failure to reasonably investigate a

defendant's background and present mitigating evidence at

sentencing can constitute ineffective assistance of counsel. State

v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d

1023, ¶ 38, citing Wiggins v. Smith, 539 U.S. 510, 521–522, 123

S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Defense counsel has a

duty to investigate the circumstances of his client's case and

explore all matters relevant to the merits of the case and the

penalty, including the defendant's background, education,

employment record, mental and emotional stability, and family

relationships.” Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.

2011). However, a defendant has the burden to demonstrate that

counsel rendered ineffective assistance by failing to conduct an

adequate investigation. State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, 960 N.E.2d 955, at ¶ 104, citing Strickland,

466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, the

Supreme Court of Ohio has indicated that we “cannot infer a

defense failure to investigate from a silent record.” Hunter,

supra, at ¶ 65, citing State v. Were, 118 Ohio St.3d 448, 2008-

Ohio-2762, 890 N.E.2d 263, ¶ 244.

Ross App. No. 23CA22 65

State v. McIntyre, 2020-Ohio-2680, ¶ 12 (4th Dist.).

We conclude that appellant has failed to meet his burden of demonstrating that

counsel rendered ineffective assistance by failing to investigate. If there exists

additional information related to Appellant’s background, education, employment

record, mental and emotional stability that would have mitigated in his favor, it is

not in the record and this Court cannot make inferences from a silent record.

{¶107} Next, with respect to appellant’s argument that his trial counsel

failed to present evidence in mitigation of sentence, we initially note that the

“[f]ailure to present mitigating evidence * * * does not in itself constitute proof of

ineffective assistance of counsel.” State v. Hamblin, 37 Ohio St.3d 153, 157

(1988). Further, as noted by the State, this Court has previously observed that “

‘the decision to forego the presentation of additional mitigating evidence does not

constitute proof of ineffective assistance of counsel.’ ” State v. Collins, 2019-

Ohio-3428. ¶ 20, quoting State v. Keith, 79 Ohio St.3d 514, 536 (2001).

Importantly, “ ‘[t]he presentation of mitigating evidence is matter of trial strategy.’

” Collins at ¶ 20, quoting Keith at 530.

{¶108} The trial court imposed the maximum sentence on each count and

ordered that all prison terms run consecutively to one another for an aggregate term

of 24 years to life in prison. In doing so, the trial court rejected any claim that

appellant acted upon provocation by the victim. The sentencing hearing transcript

Ross App. No. 23CA22 66

indicates that defense counsel began by acknowledging that the trial court

possessed little discretion in sentencing in this case, as many of the offenses

required mandatory terms of imprisonment. Further, the court pointed out that the

only sentence available for the murder conviction was a mandatory prison term of

fifteen years to life, along with a mandatory three-year prison term for the

attendant firearm specification, that was required to be served consecutively to the

sentence for the murder conviction.

{¶109} Contrary to appellant’s arguments, defense counsel did present an

argument in mitigation of sentence. Counsel argued, with respect to the tampering

with evidence conviction, that appellant had not committed the worst form of the

offense, reminding the court that appellant voluntarily surrendered after he was

cornered and that he cooperated with law enforcement by drawing a map so that

they could locate the missing firearm. Counsel claimed that appellant was

remorseful and would have to live every day with the knowledge of what he had

done. Counsel acknowledged that although appellant had a lengthy criminal

record, the record contained “remarkably little” evidence of violence. Counsel

further argued that appellant had led a troubled life and had battled drug addiction

since he was a teenager. Counsel also noted that appellant suffered from mental

health issues, which he had been attempting to address since being incarcerated,

and that he had enrolled in classes to try to better himself.

Ross App. No. 23CA22 67

{¶110} Based upon this record, we cannot conclude that trial counsel was

deficient in failing to argue more vigorously in mitigation of sentence. Because

appellant has not established that his counsel’s performance was deficient, he

cannot demonstrate that he received ineffective assistance of counsel. Thus, we

find no merit to this argument.

I. Cumulative Ineffective Assistance of Counsel

{¶111} Appellant contends that the cumulative effect of counsel’s deficient

performance resulted in a complete deprivation of counsel. Under the cumulative-

error doctrine, “a conviction will be reversed where the cumulative effect of errors

in a trial deprives a defendant of the constitutional right to a fair trial even though

each of numerous instances of trial court error does not individually constitute

cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995), citing State v.

DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus; State v. Ruble,

2017-Ohio-7259, ¶ 75 (4th Dist.). “Before we consider whether ‘cumulative

errors’ are present, we must first find that the trial court committed multiple

errors.” State v. Smith, 2016-Ohio-5062, ¶ 106 (4th Dist.), citing State v.

Harrington, 2006-Ohio-4388, ¶ 57 (4th Dist.).

{¶112} The cumulative error doctrine does not apply where the defendant

“cannot point to ‘multiple instances of harmless error.’ ” State v. Mammone, 2014-

Ohio-1942, ¶ 148 (“And to the extent that Mammone more broadly invokes the

Ross App. No. 23CA22 68

doctrine of cumulative error, that doctrine does not apply because he cannot point

to ‘multiple instances of harmless error.’ ”); State v. Fannon, 2018-Ohio-5242, ¶

124-125 (4th Dist.); State v. Thacker, 2021-Ohio-2726, ¶ 69-71 (4th Dist.).

{¶113} Appellant argues that cumulative errors violated his constitutional

right to a fair trial. However, because we found no errors, the cumulative error

doctrine does not apply. Mammone at ¶ 173; State v. Maxwell, 2014-Ohio-1019, ¶

253 (doctrine of cumulative error is not applicable where there are not numerous

instances of trial court error and defendant was not prejudiced by any error at the

trial or penalty phase of the proceedings); State v. Ludwick, 2022-Ohio-2609, ¶ 53-

57 (4th Dist.) (cumulative error doctrine does not apply where there was only one

harmless error found); State v. Spring, 2017-Ohio-768, ¶ 59 (7th Dist.) (cumulative

error doctrine does not apply to one or two minor errors).

{¶114} However, having found no merit in any of the prior alleged instances

of ineffective assistance of counsel, we find no cumulative error occurred. Thus,

this argument is without merit.

{¶115} Having found no merit to any of appellant’s assignments of error,

the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.

Ross App. No. 23CA22 69

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to

appellant.

The Court finds there were reasonable grounds for this appeal.

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

County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON

BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR

THIS COURT, it is temporarily continued for a period not to exceed 60 days upon

the bail previously posted. The purpose of a continued stay is to allow appellant to

file with the Supreme Court of Ohio an application for a stay during the pendency

of proceedings in that court. If a stay is continued by this entry, it will terminate at

the earlier of the expiration of the 60-day period, or the failure of the appellant to

file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period

pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.

Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration

of 60 days, the stay will terminate as of the date of such dismissal.

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

27 of the Rules of Appellate Procedure.

Abele, J. and Wilkin, J. concur in Judgment and Opinion.

For the Court,

_____________________________

Jason P. Smith

Presiding Judge

NOTICE TO COUNSEL

Ross App. No. 23CA22 70

Pursuant to Local Rule No. 14, this document constitutes a final

judgment entry and the time period for further appeal commences from the

date of filing with the clerk.