The opinion
[Cite as State v. Warnock, 2024-Ohio-382.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-02-001
: OPINION
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:
ZACHARY A. WARNOCK, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20220074
Nicholas A. Adkins, Madison County Prosecuting Attorney, Rachel M. Price and Michael
S. Klamo, Assistant Prosecuting Attorneys, for appellee.
Dennis C. Belli, for appellant.
PIPER, J.
{¶ 1} On May 12, 2022, Zach Warnock was indicted on one count of murder, two
counts of felonious assault, one count of discharge of a firearm on or near a prohibited
premises, and one count of tampering with evidence. The indictment arose from an
incident on April 17, 2022, in which Ali Goins was shot and killed. Warnock pled not guilty
to the charges and the matter proceeded to a three-day jury trial. Warnock timely appeals
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his convictions.
Relevant Factual Background
{¶ 2} The evidence revealed that Warnock and Ali met each other through an
online dating application called "Plenty of Fish" in early April 2022. They had a brief, but
tumultuous relationship.
{¶ 3} Ali and Warnock lived a few hours apart. Ali resided in Sylvania, Ohio while
Warnock lived in the Village of South Solon. The night before the shooting, Ali's friends,
Taylor and Tabitha, stayed the night at Ali's home. The three women planned to wake up
early the next morning and drive to Warnock's home so that Ali and Warnock could spend
time together.
{¶ 4} The women drove down to South Solon as planned and parked in
Warnock's driveway. Tabitha and Ali got out of the car and began to approach Warnock's
home. Before they reached the door, Warnock exited the home and began firing his
Glock 19 at them, shooting out the back window of their vehicle in the process. The
women jumped back in the car and sped away. They eventually got lost and ended up
stopped at the intersection of North Street and North High Street.
{¶ 5} The record shows that Warnock and his brother, Alex, got in Warnock's
Mustang and followed the women down the street. Warnock was driving. They eventually
caught up to the women at the intersection North Street and North High Street. When he
got close enough, Warnock pointed his gun out of the driver's side window and fired
several more bullets, striking Ali twice.
{¶ 6} Tabitha drove the vehicle away in an effort to find medical care for Ali. They
eventually arrived at the Jefferson Township Fire Department. However, efforts to revive
Ali were unsuccessful and she died as a result of the gunshot wounds.
{¶ 7} After the shooting, Warnock fled the scene. He returned to his home and
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parked his Mustang in the garage. He and Alex then got in Alex's Ford Fusion and
returned to the intersection. There were eyewitnesses who reported seeing Warnock at
the intersection picking up shell casings.
{¶ 8} The Madison County Sheriff's Office responded to calls reporting the
second shooting. After picking up several of the casings, Warnock returned home with
his brother where law enforcement officers were waiting.
{¶ 9} Alex made statements to law enforcement that were later admitted as
excited utterances. Alex said he saw females in the driveway who he believed were trying
to damage Warnock's truck. Alex said at least one of them was holding an object and
that when he started to approach them, Warnock began firing at them.
{¶ 10} Warnock and Alex were taken to the Madison County Sheriff's Office for
questioning. During trial, the state introduced a video recorded interview between
Warnock and Sergeant Rodger Heflin. Warnock admitted that he fired shots while at his
home but claimed to have done so because there was a man outside banging on his
truck. He said the man had an object in his hand and posed a threat to his brother, Alex,
who was standing nearby. Warnock then said the man drove away. 1 Warnock did not
say that he followed after the vehicle; he instead mentioned that he had gone out to get
cigarettes with Alex.
{¶ 11} Warnock offered no account of the second shooting at the intersection.
When confronted with information that an eyewitness had seen him at the intersection
picking up shell casings, Warnock acted incredulously. He indicated it was not possible
anyone had seen him picking up shell casings at the intersection and attempted to
misdirect the conversation "I wasn't out there * * * around fucking South Solon picking up
1. Warnock said in the interview that as the vehicle drove away, he started to think that it could have been
"that girl" (referring to Ali) with another guy. He then gave a misleading account of his relationship with Ali.
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* * * no, the brass casings were outside my door!" Warnock then stopped the interview
saying that he thought they (the investigators) were trying to get him in trouble for
something that happened on his property.
{¶ 12} On his way to jail, Warnock initiated a conversation with Deputy John
Brenneman. Deputy Brenneman testified that Warnock asked who had died and Deputy
Brenneman responded that he did not know. Warnock then said, "I didn't mean to shoot
her or hurt anybody."
{¶ 13} Warnock's version of events changed drastically by the time of the trial. At
trial, Warnock no longer denied being at the intersection. He admitted to firing at the
vehicle but claimed that his actions were justified by self-defense. Warnock testified that
he had been standing in the intersection with his gun in his hand as a "visual deterrent"
and that he only fired because the women attempted to run him over with their car.
Warnock said his previous story was a lie and that he lied because he was afraid he might
be criminally charged for "picking up the shell casings" from the intersection.
{¶ 14} The jury found Warnock guilty on all counts. The trial court sentenced
Warnock to an aggregate prison sentence of 36 to 39 years with 24 years being
mandatory, up to life in prison. Warnock timely appeals, raising six assignments of error
for review.
Appeal
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT VIOLATED EVID. R. 802 AND DEPRIVED
DEFENDANT-APPELLANT OF HIS RIGHT TO DUE PROCESS AND A
FUNDAMENTALLY FAIR JURY TRIAL UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION BY ADMITTING
CUSTODIAL STATEMENTS MADE BY HIS BROTHER TO INVESTIGATORS.
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Hearsay and Relevancy Objection
{¶ 17} In his first assignment of error, Warnock argues the trial court erred by
admitting improper hearsay statements.2 As noted above, Warnock and Alex were
interviewed at the Sheriff's office. Alex did not testify at trial, nor did the state attempt to
introduce any recording of Alex's interview. However, during trial, the state asked
Sergeant Heflin about the interview with Alex. At that point, Warnock's counsel made an
objection. In pertinent part:
[Warnock's counsel]: So, as I'm thinking this in my head,
clearly anything Alex says to this deputy is hearsay for sure.
It would be out-of-court statements. They would have to be
offered, I'm assuming, for the truth of the matter. Otherwise,
I don't know how they'd even be remotely relevant.
But I am struck by the idea of being able to put a
detective on and say, hey, you interviewed an individual, and
get into what he didn't say.
It also sounds to me as if the absence - - I think the
absence of a statement clearly isn't a declaration, but I don't
know what he didn't say is relevant to anything. I mean, he's
not a party. He hasn't been called as a witness. And so I'm
not sure how this is of any relevance whatsoever.
[The state]: Your Honor, it's going to show the consistency
between Alex and [Warnock's] responses and the lack
thereof, their denial of certain things happening. And we
anticipate that [Warnock] will testify. And so it's going to be
our argument that he contrived this story with his brother, and
we're able to show that by similarities between Alex's
responses and [Warnock's] responses to very similar
questions. And there wouldn't be statements. It's a non-
statement.
{¶ 18} The trial court overruled the objection for the following reasons:
[The Court]: To the extent that he's not stating what Alex
says, it's not an out-of-court statement made by somebody
other than the declarant. So it's not squarely hearsay. At this
point I would conditionally overrule that. The impossible part
2. While Warnock's trial counsel also questioned the relevancy of the testimony, Warnock's argument in
this appeal focuses only on whether improper hearsay was admitted.
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for the Court to assess in terms of relevance is I don't know
what's relevant or not until I hear [Warnock's] testimony.
So at this point I would conditionally overruled the
objection. Now how you put the * * * horse back in the barn, I
don't know. What I can say is that if after [Warnock's]
testimony - - you've represented that he's going to testify
***
So I'm taking that at its face in terms of assessing the
relevance. If after his testimony this line doesn't appear
relevant, I guess the best I can do is issue a curative
instruction to say, you received testimony offered for this
limited purpose, and based on the additional testimony, it's not
relevant and you have to disregard it.
{¶ 19} The state then asked Sergeant Heflin a series of questions:
Q. Does Alex make any statements that verbal threats were
made to him?
A. No.
Q. Does Alex make any statements that someone attacked
him?
A. No.
Q. Does Alex make any statements about someone from a
blue car having a gun or weapon?
A. No.
Q. Does Alex make any statements about an unknown party
entering his home?
A. No.
Q. And you asked him all these questions?
A. Yes, sir.
Q. Is that a "yes"?
A. Yes.
Q. Okay. Does Alex make any statements regarding a
necessity to defend himself from death or great bodily harm?
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A. No.
Standard of Review and Applicable Rules
{¶ 20} The admissibility of evidence is within the sound discretion of the trial court
and the trial court is entitled to our deference in making decisions upon the admissibility
of evidence. State v. May, 12th Dist. Warren No. CA2019-01-004, 2019-Ohio-4513, ¶ 8.
As such, a trial court's decision admitting evidence will not be reversed absent an abuse
of discretion. Id. An abuse of discretion is more than an error of law, it implies that the
decision was unreasonable, arbitrary, or unconscionable. State v. August, 12th Dist.
Warren No. CA2018-12-136, 2019-Ohio-4126, ¶ 21.
{¶ 21} Evid.R. 401 defines relevant evidence as "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." Relevant evidence
is generally admissible (except as elsewhere provided by law) and irrelevant evidence is
not admissible. Evid.R. 402.
{¶ 22} Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Hearsay is inadmissible unless it falls within one of the
enumerated exceptions in the rules or is otherwise excepted. State v. Turner, 12th Dist.
Brown No. CA2019-05-005, 2020-Ohio-1548, ¶ 31; State v. Villani, 12th Dist. Butler No.
CA2018-04-080, 2019-Ohio-1831, ¶ 22.
Warnock's Arguments on Appeal
{¶ 23} Warnock argues that Alex's "responses" to Sergeant Heflin's questions are
hearsay statements, concluding that Alex's "answers plainly qualified as statements
under Evid. R. 801(A)(1)." Warnock then argues that reversal is necessary in this
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instance because there is a reasonable possibility that the testimony was used by the jury
to reject Warnock's claim of self-defense. He maintains that his credibility was "on the
line" and the state used this testimony as a "credibility tiebreaker * * * in the form of the
improperly admitted hearsay statements."
Analysis
{¶ 24} Following review, we find no error warranting the reversal of Warnock's
conviction. As an initial matter, we agree that nonverbal conduct of a person or silence
can constitute an assertion capable of being a hearsay statement in certain situations.
Evid. R. 801. See United States v. Kenyon, 481 F.3d 1054, 1065 (8th Cir. 2007) (where
silence itself can be considered such a nonverbal assertion); Rahn v. Hawkins, 464 F.3d
813, 821 (8th Cir.2006) ("[A] statement is attributable to a person when he or she stands
silent in the face of its utterance if the natural response would be to deny it if untrue").
{¶ 25} The parties below discussed several issues, including whether Alex's
silence amounted to inadmissible hearsay and whether it was even relevant. The trial
court allowed the testimony ruling the responses were not "squarely hearsay," but noted
that it could revisit the issue later on the basis of relevancy if appropriate and issue a
curative instruction. Warnock's counsel did not raise this issue again and therefore no
curative instruction was considered.
{¶ 26} We need not address the specific hearsay argument in this instance
because it is well established that the constitutional guarantee to a fair trial does not
necessarily mean a trial free of all error. State v. Brown, 65 Ohio St.3d 483, 485 (1992).
That is, even if we were to find that such testimony was improper hearsay "[n]ot every
error requires that a conviction be vacated or a new trial granted." State v. Morris, 141
Ohio St.3d 399, 2014-Ohio-5052, ¶ 24. Errors in evidentiary rulings are subject to review
under the harmless error standard. State v. Echavarria, 12th Dist. Butler No. CA2003-
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11-300, 2004-Ohio-7044, ¶ 20. A reviewing court considers whether an error had an
impact on the verdict, whether the error was not harmless beyond a reasonable doubt,
and whether the remaining evidence establishes the defendant's guilt beyond a
reasonable doubt. State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 37.
{¶ 27} In this case, the admission of Sergeant Heflin's testimony concerning what
Alex did not say had no prejudicial impact on the case. While Warnock argues the
testimony was used as a "credibility tiebreaker," we note the jury had more than enough
evidence to discount Warnock's credibility. The state introduced the video interview
between Warnock and Sergeant Heflin where Warnock denied being at the location of
the second shooting. When confronted with the suggestion that eyewitnesses had seen
him picking up shell casings, he doubled down. Yet, by the time of trial, Warnock admitted
to being at the intersection, picking up shell casings, and shooting his gun in "self-
defense." Warnock told the jury that he lied out of fear that he would be charged for
picking up shell casings. That is, Warnock claimed that the lies and inconsistencies were
because he was afraid of a possible charge for tampering with evidence. Whether
Warnock's claims on the stand were believable were credibility determinations best
weighed by the trier of fact. State v. Penwell, 12th Dist. Warren No. CA2022-05-026,
2023-Ohio-120, ¶ 23. Any error in the admission of testimony regarding Alex's responses
is harmless as a matter of law. There was no impact on the verdict, any such error was
harmless beyond a reasonable doubt, and the remaining evidence clearly establishes
Warnock's guilt beyond a reasonable doubt. Warnock's first assignment of error is
overruled.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE PROSECUTOR ENGAGED IN MISCONDUCT AND DEPRIVED
DEFENDANT-APPELLANT OF HIS RIGHT TO DUE PROCESS AND A
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FUNDAMENTALLY FAIR JURY TRIAL UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION BY USING HIS
INVOCATION OF HIS CONSTITUTIONAL RIGHT TO COUNSEL AND PRIVILEGE
AGAINST SELF-INCRIMINATION, AND FACTS NOT IN EVIDENCE, TO CONVICT HIM.
{¶ 30} Warnock's second assignment of error argues the state denied him a
fundamentally fair trial based on five instances of prosecutorial misconduct. 3 For a
conviction to be reversed on the basis of prosecutorial misconduct, a defendant must
prove the prosecutor's acts were improper and that they prejudicially affected the
defendant's substantial rights. State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶
62. To demonstrate prejudice, a defendant must show that the improper remarks or
questions were so prejudicial that the outcome of the trial would clearly have been
otherwise had they not occurred. State v. Jones, 12th Dist. Butler No. CA2006-11-298,
2008-Ohio-865, ¶ 21.
{¶ 31} The focus of "an inquiry into allegations of prosecutorial misconduct is upon
the fairness of the trial, not upon culpability of the prosecutor." State v. Gray, 12th Dist.
Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. As such, prosecutorial misconduct "is
not grounds for error unless the defendant has been denied a fair trial." State v. Olvera-
Guillen, 12th Dist. Butler No. CA2007-05-118, 2008-Ohio-5416, ¶ 27.
{¶ 32} As no objections were raised to the claimed instances of prosecutorial
misconduct, we will review such for plain error. Pursuant to Crim.R. 52(B), "plain errors
or defects affecting substantial rights may be noticed although they were not brought to
the attention of the court." Plain error does not exist unless the error is obvious and but
for the error, the outcome of the trial would have been different. State v. Blacker, 12th
3. Warnock makes no distinction between a fair trial and a "fundamentally fair" trial.
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Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. Notice of plain error must be
taken with utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice. State v. Baldev, 12th Dist. Butler No. CA2004-05-106,
2005-Ohio-2369, ¶ 12.
Failure to Redact
{¶ 33} Warnock's first argument relates to the video of his interview with Sergeant
Heflin that was shown to the jury. Warnock argues the state committed prosecutorial
misconduct because it did not redact the invocation of his right to counsel. However,
Warnock provides no authority for his claim that the state was required to redact the
invocation of his right to counsel. He instead generally cites cases which forbid the
prosecution from using an invocation of the right to counsel as substantive evidence of
guilt.
{¶ 34} In this case, the record does not support the argument that the state used
Warnock's right to counsel as substantive evidence of guilt. The state simply showed
Warnock's interview with Sergeant Heflin—to which there was no objection. Therein,
Warnock asked whether he was being arrested while Sergeant Heflin read him his
Miranda rights. Warnock made an ambiguous request for counsel, where he said that he
wanted to be "released" until he could have his attorney present. Sergeant Heflin told
him that he was not going to be released. Warnock then waived his rights and began
answering the questions asked until he was confronted about his presence at the
intersection where he was seen picking up shell casings. Thereafter, Warnock invoked
his right to counsel because he thought the investigators were trying to get him in trouble.4
There is simply no merit to any suggestion that the state used his invocation of counsel
4. Since there was no objection at trial, there was no efforts by the parties below to indicate precisely when
the video was even turned off.
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as substantive evidence of guilt. We further note that even if there had been error, which
there was not, it would not amount to plain error.
Impeachment on Right to Remain Silent
{¶ 35} Warnock's second argument is the state improperly impeached him with his
post-Miranda exercise of his right to remain silent. During his testimony, Warnock
admitted he lied to authorities during his interview in multiple respects, notably his claim
that he was not present at the intersection of the second shooting. As noted previously,
by the time of trial, Warnock admitted to perpetrating the second shooting at the
intersection, but claimed that he did so in self-defense. On cross-examination, the state
asked Warnock "[f]air to say this is the very first time you have publicly shared this version
of events?" Warnock then answered "[y]es. I was advised by my counsel to remain silent,
invoke my Fifth Amendment right and shut up until trial."
{¶ 36} Although the state is not permitted to impeach a defendant on their post-
arrest, post-Miranda silence, we disagree that it occurred in this circumstance. See State
v. Rowland, 12th Dist. Warren No. CA2019-08-084, 2020-Ohio-2984, ¶ 46, citing Doyle
v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). Prior to invoking his right to counsel,
Warnock told the detectives that he had not been at the location of the second shooting.
That version of events was inconsistent with the story he told the jury admitting the
shooting at the second location but claiming it was done in self-defense. The state then
impeached Warnock briefly asking whether this was the first time he publicly shared this
version of events, which was drastically different than the version he shared with Sergeant
Heflin during the interview. We find no error, plain or otherwise, given that the state was
within its right to impeach Warnock during cross-examination. State v. Pichardo-Reyes,
12th Dist. Butler No. CA2016-09-184, 2017-Ohio-8534, ¶ 41. Moreover, we do not find
that the outcome of the trial would have been different, nor did any manifest miscarriage
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of justice occur.
Warnock's Third, Fourth, and Fifth Arguments
{¶ 37} Warnock's third argument is the prosecutor improperly impeached him with
hearsay statements made by his brother, Alex. Warnock asserts that "[a] prosecutor is
guilty of misconduct when 'under the guise of artful cross-examination,' he impeaches the
accused with the substance of an inadmissible hearsay statement of a close family
member." Warnock claims the state improperly questioned him about contriving a story
with Alex. The small portion of the record cited by Warnock is where Warnock denied
making up a story with Alex that there was no second shooting. Warnock then summarily
argues "[t]he prosecutor crossed the line of propriety when he used a hearsay statement
attributed to his brother, but never admitted in the State's case-in-chief, to impeach
Warnock." We disagree with Warnock's conclusory argument and again note that the
state was permitted to cross-examine and impeach Warnock. In this case, Warnock did
contrive a story—his first version of the incident and the version he told at trial were clearly
at odds. Whether Warnock contrived the story with his brother or did so by himself had
no impact on the verdict. We disagree with Warnock's suggestion that the prosecutor
"crossed the line of propriety."
{¶ 38} Warnock's fourth argument is the prosecutor made improper statements
during closing argument suggesting that Warnock and his brother had acted to
manufacture a story that there was no second shooting. He also adds that the state
expressed its personal opinions about Warnock's guilt. We do not find any such
misconduct. A prosecutor may freely comment in closing argument on what the evidence
has shown and what reasonable inferences may be drawn therefrom. State v. Vunda,
12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 69.
Additionally, a "prosecutor may comment upon the circumstances of witnesses in their
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testimony" and may argue "that these circumstances make the witnesses more or less
believable and deserving of more of less weight." State v. Nieves, 8th Dist. Cuyahoga
No. 111161, 2022-Ohio-3040, ¶ 50.
{¶ 39} Warnock's fifth argument is the prosecutor misstated the record with regard
to ballistic evidence offered by the state. However, his fifth argument, as were his third
and fourth arguments, is perfunctory and offered without sufficient explanation. This court
will not create arguments on behalf of an appellant because it is not the duty of an Ohio
appellate court to raise arguments for the parties. It is not this court's duty to root out an
argument. State v. Wilson, 12th Dist. Warren No. CA2018-03-022, 2019-Ohio-338, ¶ 27.
Conclusion to Warnock's Second Assignment of Error
{¶ 40} Upon a full and thorough review of the record, we find none of Warnock's
arguments, either when considered individually or collectively as a whole, have merit. As
noted above, this court's inquiry into allegations of prosecutorial misconduct involve the
fairness of the trial and prosecutorial misconduct "is not grounds for error unless the
defendant has been denied a fair trial." State v. Olvera-Guillen, 12th Dist. Butler No.
CA2007-05-118, 2008-Ohio-5416, ¶ 27. In this case, Warnock's conviction was not
based upon prosecutorial misconduct, but rather on overwhelming evidence of guilt.
Warnock was not deprived of a fair trial. Warnock's claim that he acted in self-defense
was simply rejected by the jury. Warnock's second assignment of error is overruled.
{¶ 41} Assignment of Error No. 3:
{¶ 42} THE TRIAL COURT'S DEFECTIVE SELF-DEFENSE INSTRUCTION AND
INADEQUATE RESPONSES TO THE JURY'S QUESTIONS DEPRIVED DEFENDANT-
APPELLANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO A FAIR
TRIAL AND RELIABLE JURY VERDICT.
{¶ 43} In his third assignment of error, Warnock claims the trial court erred in
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providing its instructions to the jury. Jury instructions are matters that are left to the sound
discretion of the trial court. State v. Brannon, 12th Dist. Clinton No. CA2014-09-012,
2015-Ohio-1488, ¶ 20. However, although left to the trial court's sound discretion, the
trial court must nevertheless "fully and completely give jury instructions which are relevant
and necessary for the jury to weigh the evidence and discharge its duty as the fact-finder."
State v. Davis, 12th Dist. Madison No. CA2015-05-015, 2016-Ohio-1166, ¶ 27. "[T]his
court may not reverse a conviction based upon faulty jury instructions unless it is clear
that the jury instructions constituted prejudicial error." State v. Grimm, 12th Dist. Clermont
No. CA2018-10-071, 2019-Ohio-2961, ¶ 26. Therefore, when reviewing a trial court's jury
instructions, this court must affirm a conviction if the trial court's jury instructions, when
taken in their entirety, "fairly and correctly state the law applicable to the evidence
presented at trial." State v. Mott, 12th Dist. Warren No. CA2022-10-067, 2023-Ohio-2268,
¶ 18.
{¶ 44} As there was no objection below, this assignment of error is also evaluated
under the plain error standard of review. State v. Evick, 12th Dist. Clermont No. CA2018-
03-016, 2019-Ohio-2791, ¶ 24.
Jury Instructions
{¶ 45} Pursuant to R.C. 2901.05, a self-defense instruction is required if "there is
evidence presented that tends to support that the accused person used the force in self-
defense." Warnock argues there was no reason to tell the jury that a duty to retreat is an
element of self-defense. He provides a conclusory argument that the inclusion of both
"duty to retreat" and "stand your ground" language in its instruction "only increased the
likelihood of juror confusion."
{¶ 46} It is well established that in cases involving use of deadly force, the
elements of a valid claim of self-defense are as follows: (1) the accused was not at fault
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in creating the situation giving rise to the affray; (2) the accused had a bona fide belief
that he or she was in imminent danger of death or great bodily harm and that his or her
only means to escape from such danger was in the use of such force; and (3) the accused
did not violate any duty to retreat or avoid the danger. State v. Towson, 12th Dist. Warren
No. CA2021-08-069, 2022-Ohio-2096, ¶ 24. The amended "stand your ground" law in
Ohio now provides that "a person has no duty to retreat before using self-defense * * * if
that person is in a place in which the person lawfully has a right to be." R.C. 2901.09(B);
State v. Mitchell, 1st Dist. Hamilton No. C-220471, 2023-Ohio-2604, ¶ 17. "Simply put,
the new 'stand your ground' law removes, in most cases, the duty to retreat before using
self-defense." State v. Degahson, 2d Dist. Clark No. 2021-CA-35, 2022-Ohio-2972, ¶ 15.
{¶ 47} The trial court provided the following jury instruction regarding self-defense:
To prove that the Defendant's use of deadly force was not in
self-defense, the State must prove beyond a reasonable
doubt at least one of the following:
(1) Defendant was at fault in creating the situation giving rise
to the incident; or (2) The defendant did not have reasonable
grounds to believe that he was in imminent or immediate
danger of death or great bodily harm; or (3) The defendant did
not have an honest belief, even if mistaken, that he was in
imminent or immediate danger of death or great bodily harm;
or (4) The defendant violated a duty to retreat to avoid the
danger; or (5) The defendant used unreasonable force
***
The Defendant has no duty to retreat before using self-
defense if the Defendant was in a place which he lawfully had
a right to be. That means that the Defendant was not
trespassing when he used force in self-defense.
(Emphasis added.)
{¶ 48} Following review, we find the trial court did not commit error, much less plain
error, by instructing the jury on self-defense. The trial court's instruction plainly states the
appropriate elements of a valid self-defense claim and accurately states that a defendant
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has no duty to retreat if in a place he had a lawful right to be. See Ohio Jury Instructions,
CR Section 421.21 (Rev. Jan. 28, 2023). Thus, the jury was provided with a full and
complete instruction that allowed the jury to weigh the evidence and discharge its duty as
the finder of fact. See Mott, 2023-Ohio-2268 at ¶ 24. We disagree with Warnock's
suggestion that the trial court's instruction "increased the likelihood of juror confusion."
Jury Questions
{¶ 49} Warnock also argues in his third assignment of error the trial court erred
when answering the jury's questions. "[W]here, during the course of its deliberations, a
jury requests further instruction, or clarification of instructions previously given, a trial
court has discretion to determine its response to that request." State v. Carter, 72 Ohio
St.3d 545, 553 (1995). Thus, in response to a question from the jury, it is within the sound
discretion of the trial court to provide supplemental instructions or to refer the jury to
instructions already provided. State v. Frymire, 12th Dist. Butler No. CA2014-02-034,
2015-Ohio-155, ¶ 13.
{¶ 50} During jury deliberations, the jury submitted a question to the trial court
asking why Warnock's brother Alex did not testify and whether his interview was part of
the evidence. The trial court answered that it could not answer that question. The jury
also submitted another question regarding the "at fault" element of the self-defense
instruction. Specifically, the jury asked whether being "at fault" for the "situation" applied
to the first shooting at Warnock's home or the second shooting at the intersection. The
trial court answered that "[t]he issue of self-defense applied to the incident at the
intersection. However, you may consider all evidence when considering the elements of
self-defense."
{¶ 51} On appeal, Warnock argues that the jury should have been told that Alex's
interview could not be considered as substantive evidence of his guilt. He also speculates
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that the jury was "apparently confused about the relationship between Warnock's earlier
conduct at his residence and its ramifications with respect to his use of deadly force at
the intersection."
{¶ 52} After reviewing the record, we find the court acted within the scope of its
discretion in answering the jury's questions. Clearly, the trial court could not answer why
Alex did not testify at trial. It was not necessary for the trial court to delve further into the
question. That Warnock now claims the trial court should have provided further
explanation with regard to Alex's prior interview is unpersuasive. Furthermore, we decline
to speculate that the jury was confused about the "at fault" instruction. State v. Hager,
12th Dist. Preble No. CA2016-12-011, 2017-Ohio-5670, ¶ 14 ("We will not reverse a
conviction based on speculation"). We also note, based on our discussion above,
Warnock cannot show any prejudice where there was ample evidence to support the
conviction. Finding no error or plain error, we overrule Warnock's third assignment of
error.
{¶ 53} Assignment of Error No. 4:
{¶ 54} THE CUMULATIVE EFFECT OF THE TRIAL COURT'S EVIDENTIARY
AND INSTRUCTIONAL ERRORS, AND THE MISCONDUCT OF THE PROSECUTOR,
DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO DUE PROCESS AND A
FUNDAMENTALLY FAIR JURY TRIAL UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶ 55} In his fourth assignment of error, Warnock argues that the cumulative
effective of his claimed errors denied him a fair trial. According to 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.
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McClurkin, 12th Dist. Butler No. CA2007-03-071, 2010-Ohio-1938, ¶ 105. However, we
find that Warnock was not deprived of a fair trial and the cumulative error doctrine is
inapplicable. Warnock's fourth assignment of error is overruled.
{¶ 56} Assignment of Error No. 5:
{¶ 57} DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, DUE TO
THE COMBINED PREJUDICIAL IMPACT OF SEVERAL INSTANCES OF DEFICIENT
PERFORMANCE DURING HIS MURDER TRIAL.
{¶ 58} Warnock's fifth assignment of error argues that his trial counsel was
ineffective for failing to object to the same alleged instances of prosecutorial misconduct
that he contests in his second assignment of error and with regard to the jury instructions
and answers contested in his third assignment of error.
{¶ 59} To prevail on an ineffective assistance of counsel claim, an appellant must
establish (1) that her trial counsel's performance was deficient; and (2) that such
deficiency prejudiced the defense to the point of depriving the appellant of a fair trial.
State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-
1490, ¶ 14. Failure of either prong is fatal to any claim of ineffective assistance of counsel.
State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49.
{¶ 60} This court has repeatedly held that trial strategy, even debatable strategy,
is not a basis for finding ineffective assistance of counsel. State v. Bradford, 12th Dist.
Warren No. CA2010-04-032, 2010-Ohio-6429, ¶ 98; State v. Wood, 12th Dist. Madison
No. CA2018-07-022, 2020-Ohio-422, ¶ 28. It is not the role of a reviewing court to
second-guess trial strategy. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 52.
{¶ 61} In this case, Warnock simply identifies the arguments he raised in his
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second and third assignments of error and concludes his trial counsel's representation
could not have been for strategic reasons and that the errors were so serious as to
undermine confidence in the outcome of the trial. We disagree, and relate back to our
discussion above. We further reiterate that Warnock cannot demonstrate prejudice for
purposes of establishing ineffective assistance of counsel because he cannot "prove
there exists 'a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Clarke at ¶ 49, citing Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052 (1984). As noted repeatedly, Warnock's
conviction was based upon substantial evidence and the fact he attempted to mislead law
enforcement significantly diminished his credibility with the jury. Warnock's fifth
assignment of error is overruled.
{¶ 62} Assignment of Error No. 6:
{¶ 63} THE TRIAL COURT'S FINDINGS FOR THE IMPOSITION OF
CONSECUTIVE PRISON TERMS ARE CONTRARY TO LAW AND NOT CLEARLY AND
CONVINCINGLY SUPPORTED BY THE RECORD.
{¶ 64} A felony sentence is reviewed under the standard in R.C. 2953.08(G)(2).
That provision states that an appellate court may modify or vacate a sentence if the court
finds by clear and convincing evidence that the record does not support the trial court's
findings under relevant statutes or that the sentence is otherwise contrary to law. Id.
{¶ 65} When imposing consecutive sentences, a sentencing court is required "to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry." State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, syllabus. R.C. 2929.14(C)(4) states:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
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finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
"When imposing consecutive sentences, a trial court must state the required findings as
part of the sentencing hearing, and by doing so it affords notice to the offender and to
defense counsel." Id. at ¶ 29, citing Crim.R. 32(A)(4). "[A] word-for-word recitation of the
language of the statute is not required," though, "and as long as the reviewing court can
discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld." Id.
{¶ 66} Following review, we find the trial court did not err by sentencing Warnock
to consecutive prison terms. The record reflects that the trial court made the findings
required by R.C. 2929.14(C)(4) when it ordered Warnock's sentences be served
consecutively. The trial court found that consecutive sentences are necessary to protect
the public and punish the defendant. The trial court also found that consecutive
sentences are not disproportionate to the harm and that the harm was so great that a
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single term does not adequately reflect the seriousness of the conduct.
{¶ 67} The trial court memorialized these findings within its sentencing entry. From
the trial court's statements at the sentencing hearing and the language used in the
sentencing entry, it is clear that the trial court complied with R.C. 2929.14(C)(4). Bonnell
at ¶ 37; State v. Sess, 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 35-38.
{¶ 68} In challenging the trial court's findings, Warnock argues that neither of the
other two victims, Taylor and Tabitha, suffered physical injuries and casts doubt on their
claims about the mental distress they have suffered since the fatal shooting of their
friend.5 However, we find the trial court addressed each of the required findings, and the
record clearly supports the trial court's findings. Accordingly, Warnock's sixth assignment
of error is overruled.
{¶ 69} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.
5. In challenging the trial court's findings, Warnock relies on reasoning stated in State v. Gwynne, Slip
Opinion No. 2022-Ohio-4607 (Gwynne IV). However, the Ohio Supreme Court vacated Gwynne IV on
reconsideration. See State v. Gwynne, Slip Opinion No. 2023-Ohio-3851 (Gwynne V).
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