[Cite as State v. Chandler , 2017-Ohio-8573.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105246

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. ROOSEVELT CHANDLER

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606832-A

BEFORE: S. Gallagher, J., McCormack, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: November 16, 2017ATTORNEY FOR APPELLANT

Judith M. Kowalski 333 Babbitt Road, Suite 323 Euclid, Ohio 44123

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Carl Mazzone Assistant Prosecuting Attorney Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113SEAN C. GALLAGHER, J.: {¶1} Roosevelt Chandler appeal s his convictions for two c ounts of felonious assault, each accompanied with a three-year gun specificati on, and his resulting eight-year sentence. We

affirm. {¶2} The victim and his girlfriend shared an apartment within a two-building complex. The two buildings faced each other, with a shared parking lot in front of both buildings and an outdoor, common area in between. Chandler lived in an apartment directly across from the victim. The victim was in the parking lot while his stepdaughter was in the common area. According to the victim, Chandler’s wife becam e irate at the noise cau sed by the victim’s stepdaughter and other children, and Mrs. Chandler began verba lly harassing the stepdaughter through the window of her apartment. The vic tim confronted Mrs. Cha ndler through the open window, and the two became verbally combative. The victim’s girlfriend convinced him to walk away, and the altercation ended. {¶3} According to Mrs. Chandler, she kindly asked the children to move away from the open window, and the victim suddenly appeared, verbally assaulted her, and threatened to kill her. In the process, the vic tim crawled halfway into the window, displacing the screen in the

process. {¶4} There is no evidence that the victim was armed or supported th e alleged threats against Mrs. Chandler w ith any type of weapon. {¶5} Approximately three to eight minutes later, Chandler returned to the apartment and

Mrs. Chandler related what ha d occurred. Chandler, who was carrying a loaded revolver in his pocket, pulled out the weapon and went outside to confront the victim. Words were exchanged, and either Chandler opened fi re on the victim without provoca tion or Chandler believed thevictim was reaching for a weapon and began shooting. The jury believed th e victim’s version of events. Regardless, during the shooting, Cha ndler reloaded the firearm at least once. {¶6} In addition to the victim being shot, a seven-year-old child, who also lived in the apartment complex, was grazed by an errant bu llet fired from Chandler’s gun. It is undisputed that no other person fired any shots. The child victim was playing with the victim’s stepdaughter before the alter cation at Mrs. Chandler’s window , and when the shooting started, the young child victim’s mother called for her to come home. The child victim tried to run back to her apartment, but by the time she did so, the child victim had been grazed by a bullet on the back of her thigh. The treating paramedic conf irmed that the wound resembled those caused by

bullets. {¶7} Chandler testified at trial. He claimed he acted in self-defense because he believed that the victim was reaching for a weapon during their verbal confrontation. The jury was accordingly instructed. The trial court, however , refused to provide th e jury with additional

instructions on self-defense of another or the Castle Doctri ne under R.C. 2901.05(B) — Chandler

claimed his wife remained in danger from the earlier confrontation. The jury convicted

Chandler for the felonious assault of the victim and the young child victim, both with accompanying three-year firearm specifica tions. This appeal timely followed. {¶8} The second, third, and fifth assignments of error are overruled. Chandler claims that the trial court erred by allowing the state to admit evidence of prior instances in which

Chandler had altercations with weapons that were confiscated by police officers, in violation of Evid.R. 404(B). The trial court, however, denied the state’s pretri al request to admit those prior acts as substantive evidence under Evid.R. 404(B). In denying the state’s motion, the trial court

indicated that if Chandler were to testify, the specific instances of conduct may be admissible asimpeachment evidence depending on Chandler’s answers to questions asked. See State v.

Hamilton , 77 Ohio App.3d 293, 299, 602 N.E.2d 278 (12th Dist.1991) (witness’s credibility may be impeached through the intrinsic means of cross-examination under Evid.R. 608(B)). {¶9} Chandler does not challenge, nor even discuss, that ruling. Further, the state presented no substantive evidence of the prior c onduct and did not attempt to introduce extrinsic evidence challenging Chandler’s credibility. Th e specific instances of conduct evidence being challenged on appeal were introduced through th e state’s cross-examination of Chandler. The intrinsic, impeachment evidence was volunteered without objection and through Chandler’s narrative-style answers to leading questions. 1 In light of the record, we decline to address the assigned error as presented, which challenges the introduction of substantive evidence under Evid.R. 404(B), evidence specifica lly precluded. App.R. 16(A)(7). {¶10} Chandler also claims his eight-year, aggr egate sentence should be reversed as being

excessive. We cannot even entert ain that notion. According to the trial court and the state, the eight-year sentence is the statutory minimum in this case, a proposition not contested by

Chandler. Tr. 1254:14-24. Chandl er was convicted of two count s of felonious assault, each with a three-year firearm specification under R. C. 2941.145 that must be served consecutive to each other under R.C. 2929.14(B)(1)(g) and the underlying sentence under R.C. 2929.14(C)(1)(a). State v. Young , 8th Dist. Cuyahoga No. 102202, 2015-Ohio-2862, ¶ 9; State v. Pompey , 1st Dist. Hamilton No. C-150479, 2016-Ohio-4610, ¶ 7; State v. Gervin ,

1 The only applicable objection came after Chandler volunteered that he had another case in which he told a detective that he never pulled a gun on anyone, after the state asked Chandler about his ownership of guns. Tr. 1084:15-20. After he volunteered the information and defense counsel objected to Chandler ’ s answer, the trial court overruled the objection.2016-Ohio-8399, 79 N.E.3d 59, ¶ 199 (3d Dist.); see, e.g., State v. Gordon , 8th Dist. Cuyahoga No. 103494, 2016-Ohio-5407, ¶ 15. {¶11} As it relates to the firearm specifications, the trial court ordered the parties to refer to one- and three-year firearm specifications wit hout reference to the length of the mandatory prison sentence at trial. Colloquially, the two sp ecifications are typically differentiated by the resulting prison terms. The trial court concluded that those references were inappropriate at trial because the jury is generally precluded from considering the length of the sentences when determining guilt. State v. Santiago , 9th Dist. Lorain No. 01CA007798, 2002-Ohio-1114, 15.

Chandler contends that labeling the specifications without re gard to the mandatory prison terms was per se error. Chandler, how ever, failed to offer any author ity to support his argument as required under App.R. 16(A)(7). An appellate court has no responsibility to provide legal support for a party’s argument. In light of the limited arguments pres ented and the general proposition of law that supports th e trial court’s decision, we overru le Chandler’s argument. {¶12} In the first assignment of error, Chandler claims the trial court erred by refusing to instruct the jury on self-defense of anothe r or the Castle Doctrine under R.C. 2901.05(B). According to Chandler, he reasonably believed his wife remained in imminent danger while the victim stood in the parking lot, or in the alte rnative and even though Chandler was in the common area of the apartment complex, he was entitled to the presumption under R.C. 2901.05(B) commonly known as the Castle Do ctrine. We find no error with the jury

instructions. {¶13} A trial court is provided the discretion to determine whether the evidence adduced at trial was sufficient to require an instruction. State v. Fulmer , 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. Jury instruc tions must be viewed as a whole todetermine whether they contain prejudicial error. State v. Fields , 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th Dist.1984). In this case, there is no evidence to support an instruction on the

defense of another or the Castle Doctri ne as established under R.C. 2901.05(B)(1). {¶14} Under R.C. 2901.05(B)(1), it can be presumed that a person acted in self-defense or defense of another, “if the pe rson against whom the defensive for ce is used is in the process of unlawfully and without privilege to do so entering , or has unlawfully and without privilege to do so entered, the residence or vehi cle occupied by the person using the defensive force.” That presumption, however, does not apply “if the pers on against whom the defensive force is used has a right to be in, or is a la wful resident of, the residence or vehicle.” R.C. 2901.05(B)(2)(a). {¶15} Even if we accepted Chandler’s claim that he had a right to assert the defense in the common area of the apartment complex, which we do only for the sake of discussion, Chandler’s claim cuts both ways. If Chandler is give n the benefit of every legal doubt about the applicability of R.C. 2901.05(B)(1), he would not be entitled to the statutory presumption of having acted in self-defense. In order to appl y the presumption, it would have to be determined that the common area of the apartment complex is included within the definition of “residence”

under the statute. Id. If that assumption were made, the fact that the victim lived in the same complex necessarily means that the victim was shot in his “residence” as defined by Chandler. It would then follow that the presumption does not statutorily apply because the person against whom the defensive force was used, the victim, was a lawful “resident” of the apartment complex under Chandler’s theory. R.C. 2901.05(B)(2)(a). Chandler’s argument is self-defeating. {¶16} With respect to the self-defense of anothe r jury instruction, defense of another is similar to a self-defense claim, but the person claiming self-defense stands in the shoes of theperson whom he is aiding. State v. Moss , 10th Dist. Franklin No. 05AP-610, 2006-Ohio-1647, ¶ 13, citing State v. Wenger , 58 Ohio St.2d 336, 340, 390 N.E.2d 801 (1979); State v. Williford , 49 Ohio St.3d 247, 250, 551 N.E.2d 1279 (1990). The rule is stated in the conjunctive, and all elements must be proven by a preponderance of the evidence. State v. Jackson , 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986). As a result, in or der to be entitled to the instruction, the

defendant must demonstrate that “‘(1) [he or the other person who was bein g defended] was not at fault in creating the violent situation, (2) [he] had a bona fide belief that [another] was in imminent danger of death or great bodily harm a nd that [the] only means of escape was the use of force, and (3) that the defendant di d not violate any duty to retreat or avoid the danger.’”

State v. Osborne , 9th Dist. Summit No. 27563, 2016-Ohio-282, ¶ 6, quoting State v. Goff , 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36, quoting State v. Thomas , 77 Ohio St.3d 323, 326, 1997-Ohio-269, 673 N.E.2d 1339. In light of Chandler’s testimony regarding the victim appearing to obtain a weapon, the jury wa s instructed on self-defense as it pertained to Chandler; however, the trial court determined that Chandler had no evidence to substantiate his acting in defense of Mrs. Chandler. {¶17} It is undisputed that Mrs. Chandler was not present when Chandler confronted the victim in the parking lot, and t hus, Chandler cannot establish sel f-defense with respect to Mrs. Chandler. By the time Chandler confronted the victim, Mrs. Chandler was in the safety of her home, with the victim a significant distance away and no longer making an attempt to enter the apartment. Chandler stands in his wife’s shoe s, and Mrs. Chandler could not have claimed self-defense if she were the one confronting the victim in the parking lot after the fact. State v.

Sekic , 8th Dist. Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 15 (defendant cannot claim self-defense when returning to confront another after an ear lier confrontation); State v. Thomas ,8th Dist. Cuyahoga No. 94042, 2010-Ohio-5237, ¶ 20 (o ffender shared fault in instigating the fatal confrontation by returning to the scene of an earlier altercation); State v. Catron , 8th Dist. Cuyahoga No. 101839, 2015-Ohio-1836, ¶ 12 (duty to retreat cannot be demonstrated when

defendant fails to back down durin g altercation in public area). The trial court did not err in refusing to instruct on self-defense of anothe r. The first assignment of error is overruled. {¶18} Finally, in the fourth assignment of error, Chandler challenges the sufficiency of the state’s evidence, or in the alternative, that his convictions are against the manifest weight of

the evidence. Chandler was convicted of two c ounts of felonious assault, defined in pertinent part as knowingly causing, or attempting to cause, physical harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). 2 {¶19} A claim of insufficient evidence raises th e question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficien cy challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light mo st favorable to the pros ecution, any rational trier

of fact could have found the e ssential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), pa ragraph two of the syllabus. The appellate inquiry under the curre nt circumstances focuses on th e sufficiency of the state’s evidence on each element to support the convictions, and not the strength of Chandler’s evidence to support his affirmative defense of self-defense. State v. Bandy , 1st Dist. Hamilton No.

2 Chandler also claims that the state failed to demonstrate “ serious physical harm ” because it failed to introduce medical records from the victim ’ s treatment; however, the jury found Chandler not guilty of felonious assault under R.C. 2903.11(A)(1), under which serious physical harm is an element. We can disregard this argument. Chandler ’ s convictions are based on subdivision (A)(2), which only requires the state to prove “ physical harm, ” which was amply demonstrated from the record.C-160402, 2017-Ohio-5593, ¶ 46, citing State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 38. {¶20} With respect to the sufficiency of the evidence, Chandler’s sole argument is that the child victim’s injury could have been caused by something other than his bullet. Although that is a possibility, the child victim’s mother testified that the wound occurred during the shooting, and the responding para medic indicated the wound resemb led one caused by a bullet. The young child victim was also treated for that type of wound. The state presented sufficient evidence connecting the child victim’s injury to Chandler’s knowingly firing a handgun at the victim when the evidence is considered in the light most favorable to the state. {¶21} In addition, Chandler admitted that he ha d purposely shot the victim, but claimed the intentional shooting was justified. Therefore, we must reject Chandler’s argument that the evidence was not sufficient to support his felonious assault convictions. Bandy at ¶ 50. {¶22} When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a ma nifest miscarriage of jus tice that the conviction

must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541. A claim that a jury verdict is agains t the manifest weight of the evidence involves a separate and distinct test that is much broader than the test for sufficiency. State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. {¶23} Generally, determinations of credibility and weight of the testimony are reserved

for the trier of fact. State v. Lipkins , 10th Dist. Franklin No. 16AP-616, 2017-Ohio-4085, ¶ 36, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.In other words, the “jury may take note of the inconsistencies and resolve them accordingly, ‘believing all, part, or none of a witness’s testimony.’” Id. , quoting State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). We must remember that [a]n appellate court considering a manifest weight challenge “may not merely substitute its views for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be revers ed and a new trial ordered.”

Id. at ¶ 37, quoting State v. Harris , 10th Dist. Franklin No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387. A conviction will only be reve rsed as being against the manifest weight of the evidence “in the most ‘excepti onal case in which the evidence weighs heavily against the conviction.’” Id. , quoting Thompkins at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶24} Chandler claims the jury lost its way in finding that he did not act in self-defense because the victim had “credibility issues.” Chandl er was the only witness at trial to claim that the victim made any type of furtive movement before Chandler opened fire — the sole basis of the self-defense claim. Essentially, Chandler is asking this court to believe his version of events and ignore the evidence from every other witness. The jury did not find Chandler credible, and Chandler has not demonstrated that the other witnesses lacked credibility. More important, “a conviction is not against the manife st weight of the evidence because the trier of fact believed the

state’s version of events ove r the defendant’s version.” Id. at ¶ 39, citing State v. Gale , 10thDist. Franklin No. 05AP-708, 2006-Ohio-1523, ¶ 19. This is not the exceptional case in which we can find the jury lost its way. We overrule the fourth a ssignment of error. {¶25} Chandler’s convicti ons are affirmed. It is ordered that appellee recover from appellant costs he rein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. Case remanded to the trial court for execution of

sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

SEAN C. GALLAGHER, JUDGE TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR