State v. McDowell, 2011 Ohio 6815 (OH Ct. App. 2011)

State v. McDowell, 2011 Ohio 6815 (OH Ct. App. 2011)

State: Federal
Date:
Defendant:

State of Ohio, Plaintiff-Appellee, v. Jeffrey McDowell, Defendant-Appellant.

 

No. 10AP-509

 

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

 

2011 Ohio 6815; 2011 Ohio App. LEXIS 5622

 

 

December 30, 2011, Rendered

 

COUNSEL: Ron O’Brien, Prosecuting Attorney, and Sarah W. Creedon, for appellee.

 

Clark Law Office, and Toki Michelle Clark, for appellant.

 

JUDGES: CONNOR, J. BRYANT, P.J., and FRENCH, J., concur.

 

OPINION BY: CONNOR

 

OPINION

 

(REGULAR CALENDAR)

 

DECISION

CONNOR, J.

Defendant-appellant, Jeffrey McDowell (“appellant”), appeals from a judgment of the Franklin County Court of Common Pleas entered upon a jury verdict, convicting him of felonious assault with a three-year gun specification, a second degree felony. For the following reasons, we affirm that judgment.

On April 16, 2009, appellant shot Shawn Jarvis (“Jarvis”) during an argument over four young girls who were drawing pictures with sidewalk chalk on appellant’s property. Jarvis lived with Crystal Gussler, who was appellant’s next door neighbor. The girls drawing the pictures on appellant’s property were Crystal’s ten-year-old daughter Kaylee Brumfield, and three of her cousins, ages three, four, and nine.

Apparently appellant became upset with what the girls were doing and verbally chastised them, ordering them to get off his property. Each time the girls were reprimanded by appellant, they reported it to Jarvis. Ultimately, Jarvis came out of the house, approached appellant, and a heated exchange developed between the two of them. Jarvis testified that after some heated words, he retreated towards Crystal’s house and summoned the girls to follow him. His intention was to call the police and let them sort things out. However, as he was cutting across the driveway, he glanced back to see if the girls were coming, and instead saw appellant coming behind him.

On direct examination, Jarvis was asked:

 

Q. What did you think at that point?

A. It was a little strange. I didn’t know if I was going to have to defend myself. He is a pretty decent-sized gentleman. I’m not into all the fighting and commotion and carrying on. It’s just not my nature.

Q. So what did you do?

A. I actually stopped at the back of my pickup truck, still had the dog in my hand and pulled out — its right there — the concrete pin out of the back of my pickup truck, thinking I was going to have to defend myself.

* * *

Q. And what did you do with it?

A. Basically, like I said, he was coming up behind me. He’s — There is another white car that’s beside my truck. He was just getting past that, which would be about the center of my driveway, coming up behind me, so I would say six feet behind me * * * and I notice[d] something shiny that he’s pulling out of the back of his pocket; and that’s when he took a shot at me with the pistol. I dropped the dog and dropped the pin and started to scurry around, trying to get away from him, because he is obviously shooting at me.

Q. Do you know how many shots he took at that point?

A. At that point it was just one.

Q. Did that shot hit you?

A. No, It didn’t.

Q. What happened next?

A. After that, like I said, I was scurrying around. I already dropped the dog and the pin. I was scurrying around in the yard. There was some hedges here to the left side of my driver’s door side, as I am getting about to drive in front of my truck, he is almost in front of the door of my home, same driver’s side, left back corner, and that’s when he took a shot at me and actually hit me in the hand.

 

 

(Jan. 26, 2010 Tr. 63-65.)

The State called several other witnesses, including Kaylee Brumfield, Alexis Brumfield, and two neighbors, William Wardle and Nathan Wilcox, both of whom witnessed all or part of the incident. The testimony of these witnesses corroborated Jarvis’ account of  what happened.

Kelby Ducat (“Ducat”), an employee with the Columbus Crime Lab, was also called to testify concerning the operability of the firearm used by the appellant. Ducat had been employed by the Columbus Crime Lab since August 2008 and his responsibilities are to conduct firearm operability testing and serial number restorations.

Ducat testified he obtained a Bachelor of Science degree in Environmental Science from Bowling Green State University in 2006, and he has had extensive in-service training from three experienced firearms examiners in the lab. He further testified he had completed and passed competency tests in firearms operabilities and serial number restorations in 2008. With respect to outside training, he attended two armorer courses at the Ohio Peace Officer Training Academy that were presented by Colt Management. He has also attended a serial and restoration class put on by the Bureau of Alcohol, Tobacco, Firearms and Explosives and has completed courses with the Association of Firearm and Tool Mark Examiners. Ducat further testified he has previously been declared an expert. Upon the motion of the assistant prosecutor and without objection from the defense, Ducat was declared by the court to be an expert in firearms operability in this case.

Ducat proceeded to testify as to the procedure followed to move the weapon from the scene of the crime to the crime lab, including the chain of evidence. Ducat testified he received a written request from the lead detective to perform an operability test on the weapon. Ducat then identified the weapon in question (State’s exhibit D) and testified as to the tests he performed on the weapon. The following exchange took place:

 

Q. In conducting your analysis, Mr. Ducat, was this firearm indeed operable?

A. Yes, I found this revolver to be operable.

 

 

(Jan. 27, 2010 Tr. 282.)

On cross-examination by defense counsel, the following exchange took place:

 

Q. Did it appear that the firearm — do firearms get dirty internally?

A. Yes, they do.

Q. Firearms are frequently cleaned; is that correct?

A. Yes, you should properly clean the weapon.

Q. Did this weapon appear to you to be a fairly clean weapon?

A. It properly functioned, so I would say, yes, it would be a clean weapon.

Q. How do you clean a firearm?

A. I have never cleaned a firearm before.

Q. Really?

A. I do not own a firearm personally.

 

 

(Jan. 27, 2010 Tr. 285.)

Counsel for the defense further cross-examined Ducat concerning whether he had ballistic-type work training; how one determines the caliber of a weapon; the caliber of the weapon in question; and the meaning of .32 caliber. Ducat testified he was currently in training with respect to conducting ballistics comparisons and had not yet taken the competency test. Finally, counsel cross-examined Ducat concerning the various handgun caliber sizes and the category into which a .32 caliber might fall (small, medium or large) in comparison to other handguns. Ducat testified that a .32 caliber would probably fall in the medium range. Then, the following exchange took place:

 

Q. Would you have an opinion as to whether a [.]32 caliber bullet, if it passed through and through a finger, what type of damage that might result in?

A. I have never done any training on how a projectile would go through any object. So, no, I don’t know.

 

 

(Jan. 27, 2010 Tr. 288.)

After the close of the State’s case, the appellant testified on his own behalf.

Appellant testified that he owned the gun and admitted firing it at Jarvis. However, his recollection and testimony concerning the event in question differed from that of Jarvis and the other State’s witnesses. Appellant testified the children were drawing with chalk on his driveway and he asked them several times to stop. They would leave and then come back. He did not cuss or use abusive language. Eventually Jarvis came out of his house and appellant approached him and told him that the kids were drawing on the driveway. Appellant asked Jarvis to try to control the kids. This upset Jarvis, causing him to run between a car and his pickup truck and retrieve a metal bar (State’s exhibit C). Appellant testified Jarvis then drew the bar back and as Jarvis was running in between the cars and coming towards appellant with the bar, Jarvis said, “I am going to crack your head.” (Jan. 28, Feb. 2, and April 20, 2010 Tr. 362.) Appellant then testified he was not going to let that happen, so he went to his garage, retrieved his gun, and fired it two times. Appellant stated he fired the gun in rapid succession and did so because he felt threatened and that he did nothing and said nothing to provoke Jarvis. He, in fact, did not even realize that he had hit Jarvis until he was told by a police officer that Jarvis was hit in the finger. The first time he pulled the gun out of the garage was when Jarvis was on his property and coming at him with the bar. Finally, appellant testified that he was sure that Jarvis was going to use the bar and he was in fear of bodily harm. (Jan. 28, Feb. 2, and April 20, 2010 Tr. 360-71.)

Appellant raises six assignments of error for our consideration:

 

 

ASSIGNMENT OF ERROR NO. 1:    THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW WHEN IT DECLARED A WITNESS A GUN EXPERT WHERE THE GUN EXPERT ADMITTEDLY HAS NEVER EVEN CLEANED A GUN BEFORE.

 

ASSIGNMENT OF ERROR NO. 2:

A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILS TO USE A JURY INSTRUCTION PROPOSED BY THE DEFENSE.

 

ASSIGNMENT OF ERROR NO. 3:

A CRIMINAL DEFENDANT FAILS TO RECEIVE A FAIR TRIAL WHERE HIS RIGHT TO DEFEND HIMSELF THROUGH SELF DEFENSE IS TRAMPLED UPON BY A PROSECUTOR WHO SUGGESTS TO THE JURY THAT HE HAS A DUTY TO RETREAT IN HIS OWN HOME.

 

ASSIGNMENT OF ERROR NO. 4:

A TRIAL COURT ERRS WHEN IT REFUSES TO GIVE A LESSER INCLUDED ASSAULT [INSTRUCTION] WHERE THE ELEMENTS OF ASSAULT ARE PRESENT.

 

ASSIGNMENT OF ERROR NO. 5:

A TRIAL COURT CAN ERR WHEN IT GIVES A HOWARD CHARGE TOO EARLY.

 

ASSIGNMENT OF ERROR NO. 6:

THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

 

 

n his first assignment of error, appellant contends the trial court abused its discretion by allowing Ducat to testify as an expert with respect to the operability of the weapon because he had never cleaned a gun. We disagree.

The admission or exclusion of expert testimony rests within the sound discretion of the trial court. State v. Williams (1983), 4 Ohio St.3d 53, 57-58, 4 Ohio B. 144, 446 N.E.2d 444. The Supreme Court in Williams clearly held: “We believe the Rules of Evidence establish adequate preconditions for admissibility of expert testimony, and we leave to the discretion of this state’s judiciary, on a case by case basis, to decide whether the questioned testimony is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. at 58.

Counsel for appellant did, upon cross-examination, ask whether the weapon appeared to be a fairly clean weapon. Ducat responded that it did because it properly functioned. When asked by counsel, “How do you clean a firearm?” Ducat responded that he does not “own a firearm personally” and has “never cleaned” one. (Jan. 27, 2010 Tr. 285.)

Counsel for appellant did not object to Ducat’s qualifications as an expert and did not object to the introduction of the weapon, and thus on appeal, he has waived all but plain error.

Under Crim.R. 52(B), plain errors or defects affecting substantial rights may be noticed even though they were not brought to the attention of the court. The rule places three limitations on a reviewing court’s decision to correct the error, despite the absence of a timely objection at trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68, 759 N.E.2d 1240. First, there must be an error, i.e., a deviation from a legal rule. Id. Second, the error must be plain. To be “plain” within the meaning of Crim.R. 52(B), the error must be an “obvious” defect in the proceedings. Id. And third, the error must have affected “substantial rights,” meaning the error must have affected the outcome of the trial. Id.

Ducat’s sole purpose in testifying as an expert was to testify that the weapon in question was operable. The State has the burden of proving that the weapon was operable at the time of the crime. In accordance with Evid.R. 702, which governs expert testimony, Ducat testified as to his education, training, and experience regarding firearms operability. There is no question that he was qualified to testify as  an expert in this regard. Ducat has been employed by the Columbus Crime Lab since August 2008 and his responsibilities are to conduct firearm operability tests and serial number restorations. He earned a Bachelor of Science degree in Environmental Science from Bowling Green State University in 2006 and has had extensive in-service training from three experienced firearm examiners in the lab. He also completed and passed competency tests in firearm operability and serial number restoration in 2008. With respect to outside training, he attended two armorer courses at the Ohio Peace Officer Training Academy. Finally, he has been previously declared an expert in other court proceedings.

While there were several questions asked by appellant’s counsel concerning the cleaning of a gun and whether it might affect the operability of a weapon, there was no evidence that the weapon in question was not a clean weapon. In fact, Ducat testified it appeared to be a fairly clean weapon as it properly functioned. Furthermore, appellant has failed to demonstrate how Ducat’s lack of experience in cleaning a weapon undermines his qualifications to testify in this case. The fact that he did not own a weapon and never cleaned one himself does not in any way contradict his credentials as an expert witness and his ability to testify concerning the operability of the weapon in question.

Therefore, there being no error committed by the court, no obvious defect in the court proceedings, and clearly no substantial right of the appellant affected, appellant’s first assignment of error is overruled.

In his second assignment of error, the appellant states that the court abused its discretion when it refused to use a jury instruction proposed by the defense. In the instant case appellant asked the trial court to give the following instruction:

 

“Self defense does not distinguish between the weapons used to defend oneself but only between deadly force and non-deadly force. I instruct you that you may consider the metal bar carried by Mr. Jarvis as deadly force just as you may consider the firearm carried by Mr. McDowell as deadly force. The defender’s choice of a weapon is largely irrelevant[.]”

 

 

(Jan. 29, Feb. 2, April 20, 2010 Tr. 438., quoting State v Miller, 149 Ohio App.3d 782, 2002 Ohio 5812, ¶6, 778 N.E.2d 1103.)

First of all, appellant incorrectly quotes from Miller. The correct quote is: “the law of self-defense  does not distinguish between the weapons used to defend oneself but only between deadly force and non-deadly force. Provided that a person is justified in using deadly force, the defender’s choice of weapon is largely irrelevant, be it a gun or the defender’s fists.” Id. at ¶6. (Emphasis added.)

Secondly, the facts and issue of law in Miller are so distinguishable from the facts and issue of law in the present case as to be no help at all in deciding this assignment of error. Miller fired a warning shot to thwart off an attack by his assailant, Ward, who burst through Miller’s door with fists ready to strike. While the trial court found that Miller was in imminent fear of death or great bodily harm and that Ward was the aggressor, it also found that use of the weapon was inappropriate because Miller had other, less violent means available to avoid the attack. However, the court of appeals disagreed, finding Miller had the right to use whatever means were reasonable to defend himself without retreating further, including firing a warning shot, since Miller was inside his own home at the time of the incident and Ward had broken into the home. In reversing Miller’s conviction, the appellate court’s rationale suggested that when you are talking about the use of justifiable deadly force, the type of weapon used to assert that deadly force is irrelevant. The language in Miller does not stand for the proposition submitted by appellant, which implies that the type of weapon used is irrelevant under all circumstances.

Trial courts have a responsibility to give all jury instructions that are relevant and necessary for the jury to properly weigh the evidence and perform its duty as the fact-finder. State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus; Columbus v. Aleshire, 187 Ohio App.3d 660, 679, 2010 Ohio 2773, ¶6, 933 N.E.2d 317; State v. Moody (Mar. 13, 2001), 10th Dist. No. 98AP-1371, 2001 Ohio App. LEXIS 1111. An instruction is proper if it adequately informs the jury of the law. State v. Conway, 10th Dist. No. 03AP-585, 2004 Ohio 1222, ¶24.

When we review a court’s refusal to give a requested instruction, we must determine whether the trial court’s decision constituted an abuse of discretion under the facts and circumstances of the case. State v. Smith, 10th Dist No. 01AP-848, 2002 Ohio 1479, citing State v. Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. An appellate court will not reverse a conviction in a criminal case due to jury instructions unless the jury instructions amount to prejudicial error. Moody, citing State v DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph two of the syllabus. When reviewing a specific challenged instruction on appeal, the instruction should not be judged in isolation, but within the context of the overall charge. State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus; see also Aleshire at ¶52. Upon review, this court uses the following three-part test to determine when failing to give a jury instruction constitutes reversible error: (1) the requested instruction must be a correct statement of the law; (2) the requested instruction must not be redundant of other instructions; and (3) the failure to give the requested instruction must have impaired the requesting party’s theory of the case. State v. Dodson, 10th Dist. No. 10AP-603, 2011 Ohio 1092, citing Gower v. Conrad (2001), 146 Ohio App.3d 200, 203, 765 N.E.2d 905.

In order to establish self defense through the use of deadly force, appellant was required to prove, by a preponderance of the evidence: (1) he was not at fault in creating the situation which gave rise to the affray; (2) he had an honest belief that he was in imminent danger of death or great bodily harm and his only means of escape from such danger was through the use of such force; and (3) he did not violate any duty to retreat or to avoid the danger. Barnes at 24, citing State v. Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755. A defendant may use as much force as is reasonably necessary to repel an attack. State v. Harrison, 10th Dist No. 06AP-827, 2007 Ohio 2872, ¶25, citing State v. Jackson (1986), 22 Ohio St.3d 281, 22 Ohio B. 452, 490 N.E.2d 893.

In the instant case, the State is correct in asserting the instruction proposed by defense counsel would have been confusing to the jury. The proposed instruction implied that the type of weapon involved should not be considered in determining the application of self defense. However, it may or may not be relevant, depending on the facts proven in the case. In Miller, it did not make much difference because Miller was in his home when he was attacked, he was under no duty to retreat, and he was justified in using deadly force by whatever means reasonably necessary. In this case, the issue of law was, did appellant have a reasonable and honest belief that he was in imminent danger of death or great bodily harm and that his only means of escape, even though he may have been mistaken as to the existence of such danger, was to injure his assailant?

Here, unlike in Miller, the event did not occur within the confines of the alleged offender’s residence. In the instant case, appellant was required to prove that he had an honest belief that he was in imminent danger of death or great bodily harm, that his only means of escape was through the use of deadly force, and that the use of this force was reasonably necessary to repel the attack. This, among other things, made the weapons involved very relevant for the jury to consider.

Furthermore, appellant’s requested instruction seemed to improperly intermingle two separate concepts: “deadly weapon” and “deadly force.” “Deadly weapon” is defined in the Ohio Jury Instructions as “[a]ny instrument, device, or thing capable of inflicting death and designed or especially adapted for use as a weapon or possessed, carried or used as a weapon.” “Deadly force,” on the other hand, means “any force that carries a substantial risk that it will proximately result in the death of any person.” R.C. 2901.01(A)(2). Using this instruction, appellant’s trial counsel seemed to be asking the trial court to, in essence, instruct the jury that the metal bar was a “deadly weapon” and therefore its use constituted “deadly force,” the same as a handgun was a “deadly weapon,” use of which also constituted “deadly force.” However, such an instruction would improperly remove from the jury its duty to make a determination on this issue. The definition of “deadly weapon” was given by the court when it defined the elements of the charge of felonious assault. But, whether the metal bar in question (as well as this particular handgun) fits this definition is a factual finding for the jury to determine, pursuant to the definition. It is certainly not a matter of law to be charged by the court. Nevertheless, counsel for the defense was free to argue, and did in fact argue, in his closing remarks that appellant’s use of the gun was necessary to ward off Jarvis’ attack by the use of the metal bar. For example, counsel argued that “the defendant has to prove by a preponderance of the evidence that Mr. McDowell was justified in using his handgun. * * * It’s in the law. There are scenarios where you are justified in using deadly force to repel deadly force. Okay. It’s —  it’s fine to consider it.” (Jan. 28, Feb. 2, and April 20, 2010 Tr. 478-79.)

For the reasons hereinbefore stated, the requested instruction did not reflect a correct statement of the law, considering the facts and circumstances of this case. It would have confused and hindered the jury in the performance of its factfinding responsibilities. Further, counsel was able to argue in his closing statement that appellant had a right to meet force with force, so it did not impair appellant’s theory of the case. Therefore, appellant’s second assignment of error is overruled.

In his third assignment of error, appellant alleges prosecutorial misconduct. In conclusion, appellant’s first, second, third, fourth, fifth, and sixth assignments of error are overruled. The judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BRYANT, P.J., and FRENCH, J., concur.

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