[Cite as State v. Hughkeith, 2023-Ohio-1217.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111647

v. :

CHRISTOPHER HUGHKEITH, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 13, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-652331-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kevin R. Filiatraut, Assistant Prosecuting 

Attorney, for appellee. 

Kimberly Kendall Corral and Gabrielle M. Ploplis, for 

appellant. 

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Christopher Hughkeith (“Hughkeith”), appeals 

from his convictions following a bifurcated trial. He raises the following 

assignments of error for review:
1. The trial court erred in denying appellant’s motion for jury view.

2. The trial court erred in permitting the charges to go to the jury as 

the state failed to produce sufficient evidence to prove beyond 

reasonable doubt that appellant was not acting in self-defense and 

further failed to prove the elements of felonious assault of James 

White. 

3. The trial court erred in failing to create a record instructing appellant 

of his right to remain silent.

4. The trial court erred in displaying judicial bias against the defendant.

5. The trial court erred when it instructed on the duty to retreat.

6. Appellant was denied the effective assistance of counsel where trial 

counsel failed to object to improper jury instruction.

7. Appellant was denied the effective assistance of counsel where trial 

counsel failed to request that the jury be instructed as to lesser included 

offenses.

8. The trial court erred in prohibiting appellant from providing 

complete trial testimony in his defense, thereby infringing on his Fifth 

and 14th Amendment right to due process.

9. The state engaged in prosecutorial misconduct which materially 

infected the trial with unfairness.

After careful review of the record and relevant case law, we affirm 

Hughkeith’s convictions and sentence.

I. Procedural and Factual History

In August 2020, Hughkeith was named in an eight-count indictment, 

charging him with aggravated murder in violation of R.C. 2903.01(A) (Count 1); 

murder in violation of R.C. 2903.02(B) (Count 2); felonious assault in violation of 

R.C. 2903.11(A)(1) (Count 3); attempted murder in violation of R.C. 2923.02 and 
2903.02(A) (Count 4); felonious assault in violation of R.C. 2903.11(A)(2) (Count 

5); attempted murder in violation of R.C. 2923.02 and 2903.02(A) (Count 6); 

felonious assault in violation of R.C. 2903.11(A)(2) (Count 7); and having weapons 

while under disability in violation of R.C. 2923.13(A)(3) (Count 8). Counts 1-7 

contained one- and three-year firearm specifications. 

The indictment stemmed from allegations that Hughkeith fired 

gunshots at the victims, Michael Powell (“Powell”), James White (“White”), and 

Romeo Robinson (“Robinson”), resulting in the death of Powell. Counts 1, 2, and 3 

of the indictment pertained to Powell. Counts 4 and 5 pertained to White. Counts 

6 and 7 pertained to Robinson. 

The matter proceeded to a bifurcated trial in May 2022. Upon the 

agreement of the parties, Counts 1-7 were tried to a jury and the having weapons 

while under disability charge was tried to the bench. Relevant to this appeal, the 

following facts were adduced at trial.

On August 8, 2020, Hughkeith and his codefendant, Charles Caldwell 

(“Caldwell”), arrived at the Buckeye Plaza shopping center located in Cleveland, 

Ohio. Hughkeith, who was wearing a white t-shirt and a Cincinnati Reds baseball 

hat, exited the driver’s side of his silver sedan at approximately 2:33 p.m. He and 

Caldwell walked up and down the plaza sidewalk while Caldwell spoke on his cell 

phone. 

Shortly after Hughkeith exited his vehicle, Powell, Robinson, and White 

arrived at the shopping center in a black SUV and parked next to Hughkeith’s silver 
sedan. Powell, who was wearing a white t-shirt, dark colored jeans, and a blue 

bandana, exited the black SUV and entered a Mr. Hero’s restaurant at approximately 

2:35 p.m. White, who was wearing a red t-shirt and a blue baseball hat, exited the 

rear passenger’s door of the black SUV and entered a Little Caesar’s pizzeria located 

next door to Mr. Hero. Robinson, who was wearing a red jumpsuit, remained inside 

the black SUV.

Hughkeith entered the Mr. Hero approximately one minute after 

Powell. Caldwell remained outside the restaurant and continued to speak on his cell 

phone. Surveillance-video footage from the interior of the Mr. Hero captured 

Hughkeith and Powell’s movements inside the restaurant. Therein, Hughkeith 

walked to the food counter and stood in line behind Powell. When Powell completed 

his food order, he walked to the beverage station and Hughkeith moved to the front 

of the counter to place his order. At this time, Powell began exchanging words with 

Hughkeith. 

During the verbal altercation, Powell lifted his t-shirt to reveal a firearm 

in his waistband. He then brandished the firearm and took several steps towards 

Hughkeith. Powell held the firearm in his right hand for approximately 40 seconds 

before placing the weapon back in his waistband. Shortly thereafter, Powell 

brandished the firearm a second time. On this occasion, Hughkeith turned his back 

to Powell and walked towards the restaurant’s exit door. Although the surveillance 

cameras inside the Mr. Hero contained audio, it is difficult to interpret the specific 

nature of the initial exchange of words. However, at approximately 2:38:38 p.m., 
Powell can be heard stating to Hughkeith, “[W]hen I blow your face off,” and “I don’t 

give a f***.” In addition, at 2:39:18 p.m., Powell can be heard stating, “[W]here’s 

your gun at, where’s your gun at though.” Finally, Powell warned Hughkeith to “go 

get a gun” as Hughkeith was walking out of the restaurant. 

The interaction between Hughkeith and Powell inside Mr. Hero lasted 

less than three minutes. Hughkeith stood at the counter with his hands behind his 

back during the entirety of the exchange. Hughkeith exited the restaurant before 

getting his food at approximately 2:39:32 p.m. Initially, Powell remained inside the 

restaurant. He was visibly agitated, continued to curse, and carefully watched 

Hughkeith’s movements through the restaurant windows.

When Hughkeith exited the restaurant, he stood near the front 

entrance for approximately 20 seconds before he and Caldwell began walking 

towards Hughkeith’s silver sedan. Near the same time Hughkeith arrived at his 

vehicle, Powell exited the Mr. Hero’s restaurant and immediately headed towards 

his black SUV, which was parked directly next to Hughkeith’s vehicle. As Powell was 

walking in Hughkeith’s direction, he motioned towards White, who had just exited 

the Little Caesar’s pizzeria, and began pointing at Hughkeith. Powell reached the 

vicinity of his black SUV at approximately 2:40:30 p.m. At that time, Hughkeith 

suddenly fired a handgun at Powell. 

Once the first shot was fired, Hughkeith came around the back of the 

black SUV and fired successive shots at Powell. Powell immediately fell to the 

ground and did not return fire. In the midst of the shooting, White removed a 
firearm from the front of his waistband and returned fire. Robinson then exited the 

passenger’s side of the black SUV and started firing shots at Hughkeith. During this 

exchange of fire, Hughkeith, Powell, and White, each sustained gunshot injuries. 

Exterior surveillance cameras captured the parties’ movements in the parking lot. 

Relevant to this appeal, the surveillance footage does not show Powell reach for a 

firearm or make a movement towards his waistband during the shooting.

Hughkeith and Caldwell fled the scene on foot once Robinson began 

firing his weapon. When Hughkeith and Caldwell were no longer in sight, Robinson 

entered the driver’s side of the black SUV and began pursuing Hughkeith in the 

vehicle. Thereafter, Caldwell returned to the silver sedan and left the parking lot 

before the authorities arrived. Powell remained motionless on the ground. 

Surveillance-video footage obtained from a grocery store and a plasma 

center located near the Buckeye Plaza captured Hughkeith’s movements as he 

attempted to flee on foot. Hughkeith attempted to run inside the grocery store but 

was prevented from doing so by a store employee. He then ran through the parking 

lot towards the plasma center, which is located on East 116th Street. When 

Hughkeith emerged from the plasma center at approximately 2:42 p.m., the black 

SUV pulled up beside him and fired additional gunshots from the passenger’s side 

window. Hughkeith dove to the ground but sustained additional gunshot wounds. 

Hughkeith then retreated to a nearby home, where he was picked up by Caldwell in 

the silver sedan. 
White also fled from the parking lot after the shooting. An unknown 

witness reported seeing an individual matching White’s description run into the 

backyard of an abandoned home located on East 114th Street in Cleveland, Ohio. 

When police responded to the abandoned home, they “found a firearm and some 

blood and [a] magazine in the brush or grass of that home on East 114th.” (Tr. 1027.) 

White later returned to the scene of the shooting. He spoke with officers and was 

transported to the hospital for a gunshot wound to his abdomen. 

Paramedics arrived at the scene at approximately 2:47 p.m. While 

Powell was being attended to by EMS personnel, an EMS worker removed a firearm 

from Powell’s waistband and placed it next to Powell’s body. (Tr. 1044.) Ultimately, 

Powell was pronounced dead as a result of his gunshot injuries. 

At approximately 3:56 p.m. on August 8, 2020, Hughkeith arrived at 

Fairview Hospital in a black Jeep SUV. He checked into the hospital using a false 

name and was treated for various gunshot wounds. 

Detective David Borden (“Det. Borden”) of the Cleveland Police 

Department was assigned as the lead investigator into the shooting. In the course 

of his investigation, Det. Borden participated in the collection of evidence at the 

scene of the shooting, submitted evidence for forensic and ballistics testing, and 

obtained DNA samples from Hughkeith, White, Robinson, and Caldwell. Det. 

Borden also reviewed surveillance footage from various businesses located near the 

scene of the shooting. Det. Borden testified that the surveillance footage was critical 

to his investigation because it confirmed that (1) Hughkeith was the first person to 
fire a gunshot, and (2) Hughkeith fired the fatal gunshots that resulted in Powell’s 

death. (Tr. 1114.)

Luciano Miranda (“Miranda”) testified that he was formally employed 

by Signal 88 Security, a private security company that patrols the Buckeye Plaza 

shopping center. On August 8, 2020, Miranda was patrolling the parking lot in a 

marked vehicle when he heard “a series of six or seven [gun] shots.” (Tr. 643.) 

Miranda immediately got on his radio and reported the shots fired. During the 

shooting, Miranda observed a male, later identified as Powell, fall to one knee in the 

parking lot. When the shooting stopped, Miranda approached Powell, who was now 

lying motionless on the ground, and waited with him until the ambulance arrived. 

Miranda confirmed that when Powell was turned over, there was a 9 mm handgun 

tucked in his waistband. A dash-camera attached to Miranda’s patrol vehicle 

captured the incident as it transpired in front of Miranda. Relevant portions of the 

video were played for the jury.

Dr. David Dolinak (“Dr. Dolinak”), a deputy medical examiner, 

performed the autopsy on Powell. Dr. Dolinak testified that Powell was shot a total 

of five times. He sustained gunshot wounds to his upper back, right upper arm, left 

upper arm, mid-chest, and left hip. Dr. Dolinak opined that the gunshot wound to 

Powell’s back was fatal based on the substantial damage caused to his aorta and 

lungs. Dr. Dolinak testified that Powell’s toxicology report showed the presence of 

marijuana and a blood-alcohol level of .127. Dr. Dolinak concluded, to a reasonable 

degree of scientific certainty, that Powell’s manner of death was a homicide based 
upon the circumstances surrounding his death and the nature of the gunshot 

wounds inflicted.

Detective Troy Edge (“Det. Edge”) of the Cleveland Police Department 

testified that he was assigned to investigate the scene of the shooing. In the course 

of his investigation, Det. Edge collected and photographed the evidence recovered 

from the Buckeye Plaza parking lot, including a Taurus 9 mm handgun, a FHN 9 mm 

handgun, spent 7.62 x 39 cartridge casings, spent 9 mm cartridge cases, and items 

of clothing. Additional items were recovered near the roadway, including four spent 

9 mm casings, a Glock 9 mm handgun, a magazine with ten live rounds, and a face 

mask. Det. Edge also observed blood spatter at various locations on the scene. In 

total, the investigators recovered three firearms and more than 40 spent casings. 

During an unrelated investigation involving Robinson, the police seized a Draco 

arms rifle that was believed to have fired the 7.62 x 39 casings found at the scene of 

the shooting. 

Lisa Moore (“Moore”), a forensic analyst employed by the Cuyahoga 

County Regional Forensic Science Laboratory, testified that she performed DNA 

testing on various items found at the scene of the shooting. In relevant part, Moore 

confirmed that Hughkeith’s DNA was consistent with samples taken from (1) the 

Cincinnati Reds baseball hat recovered from the parking lot, (2) swabs of blood 

discovered in the lobby of Simon’s Supermarket, (3) swabs of blood discovered on 

the sidewalk near the roadway, (4) the FHN 9 mm handgun recovered from the 

parking lot, and (5) the magazine from the FHN 9 mm handgun. In turn, White’s 
DNA was consistent with the samples taken from (1) a blue hat and a blood-stained 

t-shirt recovered from the parking lot, (2) the Glock 9 mm handgun found near East 

114th Street, and (3) the magazine from the Glock 9 mm handgun. Powell’s DNA 

was consistent with the samples recovered from (1) the Taurus 9 mm handgun found 

on his person, and (2) the magazine from the Taurus 9 mm handgun. Finally, 

Caldwell’s DNA was consistent with the samples recovered from (1) the grip and 

trigger area of the FHN 9 mm handgun that also contained Hughkeith’s DNA.

James Kooser (“Kooser”), a firearm and toolmark expert employed by 

the Cuyahoga County Regional Forensic Science Laboratory, testified that he 

performed ballistic testing on the firearms and spent casings recovered from the 

scene of the shooting. Kooser testified that the FHN 9 mm containing Hughkeith’s 

DNA fired 14 of the spent casings; the Glock 9 mm handgun containing White’s DNA 

fired five casings; the Draco rifle recovered from Romeo Robinson fired 20 spent 

casings, and four spent casings were fired from an unknown 9 mm handgun. (Tr. 

972-974, 990.) With respect to Powell’s firearm, Kooser confirmed that the Taurus 

9 mm handgun did not fire any of the spent casings recovered from the scene. 

Kooser further indicated that the Taurus handgun was rendered inoperable during 

the incident because it was struck by a bullet.

At the conclusion of the state’s case, defense counsel moved for a 

dismissal of Counts 1-7 pursuant to Crim.R. 29, which the trial court denied. (Tr. 

1185.)
Hughkeith testified on his own behalf. Hughkeith stated that on 

August 8, 2020, he dropped his children off at their mother’s home and drove to the 

Buckeye Plaza shopping center to eat lunch with his friend, Caldwell. Hughkeith 

testified that he and Caldwell initially went into Little Caesar’s pizzeria but decided 

to walk next door to eat at a Mr. Hero’s restaurant. While waiting in line inside the 

Mr. Hero’s restaurant, Hughkeith was confronted by Powell, who told Hughkeith to 

“be prepared when you go outside.” (Tr. 1207.) Hughkeith testified that he had 

never met Powell previously and did not understand why Powell became 

confrontational. Hughkeith stated that when he asked Powell to repeat what he had 

stated, Powell suddenly pulled a gun out of his waistband and “kept saying, where 

your gun at? Where your gun at?” (Tr. 1210.) When Hughkeith responded that “I 

don’t play with guns,” Powell stated “Go get a gun. Go get your gun. I’m going to 

come outside and blow your face off.” (Tr. 1209.) Hughkeith testified that he was 

scared and immediately left the restaurant. Powell followed Hughkeith out of the 

restaurant and Hughkeith overheard Powell state, “Fitting to come outside. I’m 

fitting to blow your f*****g face off.” (Tr. 1213.) Hughkeith viewed Powell’s 

comment as a threat that could be carried out by the firearm in Powell’s waistband.

During the confrontation in the parking lot, Hughkeith realized that a 

second man, later identified as White, was with Powell. Hughkeith testified that the 

two men were walking towards him, and White started to “reach for his waistband.” 

(Tr. 1218.) Hughkeith also observed Powell reach for the same gun that was 

previously brandished inside the restaurant. Hughkeith believed the men were 
“coming for [him].” (Tr. 1218.) He was “scared” and believed his life was “in 

danger.” (Tr. 1218.) Based on the movements of Powell and White, Hughkeith shot 

Powell. 

Throughout his direct examination, Hughkeith maintained that he 

acted in self-defense and had no choice but to shoot Powell. Hughkeith explained 

that he “was in immediate danger” and was certain Powell would have shot and 

killed him had he not shot Powell first. (Tr. 1219-1220.) Hughkeith asserted that he 

only had two seconds to make the decision to fire the gun in his possession. 

Hughkeith maintained that he was attempting to leave the scene to avoid a 

confrontation but was prevented from doing so because Powell “[came] out right 

behind me yelling, get the chopper, let’s get him.” Hughkeith explained that he 

interpreted Powell’s statement to “get the chopper” was a reference to “A big gun. 

Assault rifle. A big gun.” (Tr. 1216.)

Hughkeith testified that he sustained gunshot wounds to his back, 

arm, leg, and knee. Hughkeith was later transported to Fairview hospital by his 

sister. Hughkeith confirmed that he provided a false name at the hospital because 

he had a warrant out for his arrest. He further admitted that he lied to the police 

about the source of his gunshot wounds and stated that he was shot during a robbery 

on the west-side of Cleveland.

At the conclusion of trial, the jury found Hughkeith guilty of murder, 

with one- and three-year firearm specifications (Count 2), felonious assault, with 

one- and three-year firearm specifications (Count 3), and felonious assault, with 
one- and three-year firearm specifications (Count 5). The trial court then found 

Hughkeith guilty of having weapons while under disability (Count 8). Hughkeith 

was found not guilty of all remaining counts and accompanying specifications. 

At the time of sentencing, the trial court found Counts 2 and 3 were 

allied offenses of similar import that merged for the purposes of sentencing. The 

state elected to proceed with sentencing on Count 2, and the trial court sentenced 

Hughkeith to 15 years to life on Count 2, to run consecutively to a three-year term of 

imprisonment on the corresponding firearm specification. Hughkeith was also 

sentenced to an indefinite prison term of five to seven- and one-half years on Count 

5, to run consecutively to a three-year term of imprisonment on the corresponding 

firearm specification. Finally, the trial court sentenced Hughkeith to two years in 

prison on Count 8. The sentence imposed on each base offense and firearm 

specification were ordered to run consecutively, for an aggregate prison term of “life 

imprisonment with parole eligibility after serving 28 full years of imprisonment.” 

Hughkeith now appeals from his convictions and sentence.

II. Law and Analysis

A. Motion for Jury View

In the first assignment of error, Hughkeith argues the trial court erred 

in denying his motion for jury view. Hughkeith contends that viewing the crime 

scene would have assisted the jury in “understanding and assessing the evidence 

presented at trial and would have provided clarity as to [his] defense.”
R.C. 2945.16 authorizes a trial court to allow the jury to view the place 

at which a material fact occurred. The statute provides, in pertinent part:

When it is proper for the jurors to have a view of the place at which a 

material fact occurred, the trial court may order them to be conducted 

in a body, under the charge of the sheriff or other officer, to such place, 

which shall be shown to them by a person designated by the court.

The purpose of a jury view is to assist the trier of fact in understanding 

and applying the evidence offered at trial. Monus v. Day, 7th Dist. Mahoning No. 

10 MA 35, 2011-Ohio-3170, ¶ 47. “The jury view is not part of the presentation of 

evidence; the jury is not permitted to gather evidence at the jury view, and only a 

representative of the court may address the jury about the subject of the jury view 

during the jury view.” Hetzer-Young v. Elano Corp., 2016-Ohio-3356, 66 N.E.3d 

234, ¶ 88 (2d Dist.).

“The granting or denial of a motion for a jury view is within the 

discretion of the trial court and the court’s decision will only be reversed when an 

abuse of that discretion is established.” Mayfield Hts. v. Barry, 8th Dist. Cuyahoga 

No. 82159, 2003 Ohio 4403, ¶ 27, citing State v. Montalvo, 47 Ohio App.2d 296, 353 

N.E.2d 855 (7th Dist.1974). 

An abuse of discretion occurs when a court exercises its judgment in 

an unwarranted way regarding a matter over which it has discretionary authority. 

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. 

In other words, “[a] court abuses its discretion when a legal rule entrusts a decision 

to a judge’s discretion and the judge’s exercise of that discretion is outside of the 
legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-

Ohio-6699, 172 N.E.3d 75, ¶ 19. This court has held that an abuse of discretion may 

be found where a trial court “applies the wrong legal standard, misapplies the correct 

legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 

176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When 

applying the abuse of discretion standard, a reviewing court may not substitute its 

judgment for that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 

N.E.3d 716, ¶ 22 (8th Dist.).

On April 29, 2022, Hughkeith moved the court to order a jury view “of 

the area encompassing the scene of the alleged criminal conduct.” In the motion, 

Hughkeith argued that it was “vital for the trier of fact to view these areas to be able 

to comprehensively evaluate and understand the testimony of the witnesses 

expected to testify in this trial.” The motion was denied on May 2, 2022.

Based on the breadth of evidence presented at trial, we find nothing 

in the record to support Hughkeith’s assertion that the trial court acted outside the 

legally permissible range of choices by denying the motion for a jury view. In this 

case, the state introduced surveillance-video footage from a number of businesses 

located within the Buckeye Plaza. Collectively, this evidence permitted the jury to 

view Hughkeith’s conduct before, during, and after his initial confrontation with 

Powell inside the Mr. Hero’s restaurant, as well as the shooting that transpired in 

the parking lot shortly thereafter. The video footage provided multiple angles of the 

interaction between Hughkeith and Powell, and select portions contained audio 
functions. This evidence provided context to Hughkeith’s interaction with Powell 

inside the restaurant and permitted the jury to fully assess the parties’ movements 

at the time the first gunshot was fired. Hughkeith did not challenge the authenticity 

of the video footage or whether it depicted an accurate representation of the 

incident. Under these circumstances, we find the trial court did not abuse its 

discretion by denying Hughkeith’s request for a jury view pursuant to R.C. 2945.16.

The first assignment of error is overruled.

B. Sufficiency of the Evidence

In the second assignment of error, Hughkeith argues the state failed 

to produce sufficient evidence to disprove his assertion of self-defense. He further 

contends that his felonious-assault conviction, as charged in Count 5 of the 

indictment, is supported by insufficient evidence. 

A sufficiency challenge requires a court to determine whether the state 

has met its burden of production at trial and to consider not the credibility of the 

evidence but whether, if credible, the evidence presented would sustain a conviction. 

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The relevant 

inquiry is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273, 

574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 

61 L.Ed.2d 560 (1979).
“‘Proof of guilt may be made by circumstantial evidence, real 

evidence, and direct evidence, or any combination of the three, and all three have 

equal probative value.’” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 35 

(8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, 

¶ 18. Although circumstantial evidence and direct evidence have obvious 

differences, those differences are irrelevant to the probative value of the evidence, 

and circumstantial evidence carries the same weight as direct evidence. Id., citing 

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Further, 

circumstantial evidence is not only sufficient, “‘“but may also be more certain, 

satisfying, and persuasive than direct evidence.’”” Id. at ¶ 36, quoting State v. 

Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, quoting Michalic v. 

Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).

1. Felonious Assault (Count 5)

We begin by addressing Hughkeith’s assertion that the state failed to 

produce sufficient evidence to support the felonious-assault offense pertaining to 

the victim, James White. As stated, Count 5 of the indictment charged Hughkeith 

with felonious assault in violation of R.C. 2903.11(A)(2). The statute provides that 

“[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to 

another * * * by means of a deadly weapon or dangerous ordnance.”

“A person acts knowingly, regardless of his purpose, when he is aware 

that his conduct will probably cause a certain result or will probably be of a certain 

nature. A person has knowledge of circumstances when he is aware that such 
circumstances probably exist.” R.C. 2901.22(B). “Physical harm” means “any 

injury, illness, or other physiological impairment, regardless of its gravity or 

duration.” R.C. 2901.01(A)(3). Finally, a “deadly weapon” is “any instrument, 

device, or thing capable of inflicting death, and designed or specifically adapted for 

use as a weapon, or possessed, carried, or used as a weapon.” R.C. 2901.22(A).

On appeal, Hughkeith argues “the state failed to produce any evidence 

showing that [he] shot and injured White in the first instance.” Hughkeith contends 

that “the evidence produced at trial merely demonstrates physical harm suffered by 

White – this is wholly inadequate to support [the felonious assault] conviction.” We 

find no merit to Hughkeith’s position.

Viewing the evidence in the light most favorable to the state, we find 

any rational trier of fact could have found that the state presented sufficient evidence 

to satisfy the essential elements of felonious assault beyond a reasonable doubt. It 

is common knowledge that a firearm is an inherently dangerous instrumentality, use 

of which is reasonably likely to produce serious injury or death. State v. Widner, 69 

Ohio St. 2d 267, 270, 431 N.E.2d 1025 (1982). Thus, this court has consistently held 

that “shooting a gun in a place where there is risk of injury to one or more persons 

supports the inference that the offender acted knowingly.” State v. Hunt, 8th Dist. 

Cuyahoga No. 93080, 2010-Ohio-1419, ¶ 19, citing State v. Brooks, 44 Ohio St.3d 

185, 192, 542 N.E.2d 636 (1989); see also State v. Ivory, 8th Dist. Cuyahoga No. 

83170, 2004-Ohio-2968, ¶ 6. In this case, the record reflects that Hughkeith 

brandished his firearm and fired it repeatedly in the direction of Powell and White. 
As a result of this conduct, Powell and White each sustained gunshot injuries. The 

jury had the opportunity to hear the investigating officer’s testimony concerning the 

location of the discovered shell casings. The jury was also provided the opportunity 

to view the surveillance-video footage of the incident, which permitted the jury to 

assess White’s proximity to Hughkeith’s line of fire at the time Hughkeith 

discharged his weapon. See State v. Burns, 8th Dist. Cuyahoga No. 99782, 2014-

Ohio-303, ¶ 15 (“[A] reasonable jury could infer that [the victims] were ‘in the line 

of fire’ at the time defendant discharged his weapon.”). 

Under these circumstances, a reasonable juror could conclude that 

Hughkeith knowingly caused White physical harm by means of a deadly weapon, 

i.e., an operable firearm. Accordingly, we find the evidence was sufficient to convict 

Hughkeith of felonious assault (Count 5) in violation of R.C. 2903.11(A)(2). 

2. The Affirmative Defense of Self-Defense

Within this assignment of error, Hughkeith also suggests the state 

failed to produce sufficient evidence to prove beyond a reasonable doubt that he did 

not act in self-defense. Apart from the felonious-assault conviction discussed above, 

Hughkeith does not challenge the sufficiency of the evidence supporting an essential 

element of his convictions. Rather, he broadly asserts that the state failed to 

disprove his claim that he fired his gun in self-defense.

A self-defense claim includes the following elements:

(1) that the defendant was not at fault in creating the situation giving 

rise to the affray; (2) that the defendant 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 of escape from such danger was in the use of 

such force; and (3) that the defendant did not violate any duty to retreat 

or avoid the danger.

State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).

In a criminal trial taking place prior to March 28, 2019, the effective 

date of 2018 Am.Sub.H.B. No. 228 (“H.B. 228”), a defendant claiming the 

affirmative defense of self-defense had the burden of proving the foregoing elements 

of the defense by a preponderance of the evidence. See former R.C. 2901.05(A), 

2008 Sub.S.B. No. 184; State v. Brooks, Slip Opinion No. 2022-Ohio-2478, ¶ 23 

(discussing former versions of R.C. 2901.05). However, H.B. 228 amended R.C. 

2901.05, and since March 28, 2019, the burden regarding self-defense has been as 

follows:

A person is allowed to act in self-defense * * *. If, at the trial of a person 

who is accused of an offense that involved the person’s use of force 

against another, there is evidence presented that tends to support that 

the accused person used the force in self-defense * * *, the prosecution 

must prove beyond a reasonable doubt that the accused person did not 

use the force in self-defense * * *.

R.C. 2901.05(B)(1).

Contrary to Hughkeith’s characterization of the applicable standard of 

review, the Ohio Supreme Court has reiterated that “[t]he plain language of R.C. 

2901.05(A) reflects that self-defense is still an affirmative defense and that the 

burden of production is still on the defendant.” State v. Messenger, Slip Opinion 

No. 2022-Ohio-4562, ¶ 21. Thus, “a defendant charged with an offense involving 

the use of force has the burden of producing legally sufficient evidence that the 

defendant’s use of force was in self-defense.” Id. at ¶ 25. “[I]f the defendant’s 
evidence and any reasonable inferences about that evidence would allow a rational 

trier of fact to find all the elements of a self-defense claim when viewed in the light 

most favorable to the defendant, then the defendant has satisfied the burden,” and 

the state must then disprove self-defense. Id. at ¶ 25. In that case, “the sufficiencyof-the-evidence standard of review applies to [the defendant’s] burden of 

production and a manifest-weight-of-the-evidence standard of review applies to the 

state’s burden of persuasion.” Id. at ¶ 26. 

Based on the foregoing, we find Hughkeith’s challenge to the 

sufficiency of the evidence insofar as it invokes self-defense is inappropriate. See 

State v. Canankamp, 3d Dist. Auglaize No. 2-22-02, 2023-Ohio-43, ¶ 18, citing 

State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 10, and State v. 

Vasquez, 10th Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 52. See also 

Messenger at ¶ 27 (finding “the Tenth District correctly declined to review the state’s 

rebuttal of self-defense for sufficiency of the evidence”); State v. Messenger, 2021-

Ohio-2044, 174 N.E.3d 425, ¶ 44 (10th Dist.) (“[S]ufficiency of the evidence is not 

the proper framework to review whether the state proved the absence of selfdefense.”). 

Nevertheless, our conclusion does not leave Hughkeith without an 

avenue to challenge the state’s proof relative to his claim of self-defense. Viewed in 

its entirety, Hughkeith’s discussion concerning the resolution of his self-defense 

claim constitutes a challenge to the manifest weight of the evidence. Accordingly, 

we will consider Hughkeith’s argument that the state failed to prove he did not act 
in self-defense as a challenge to the manifest weight of the evidence. See Messenger, 

2021-Ohio-2044, 174 N.E.3d 425, at ¶ 45 (10th Dist.), citing State v. Ferrell, 2020-

Ohio-6879, 165 N.E.3d 743, ¶ 54 (10th Dist.), citing State v. Kurtz, 10th Dist. 

Franklin No. 17AP-382, 2018-Ohio-3942, ¶ 21. 

In contrast to a sufficiency argument, a manifest-weight challenge 

questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. 

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12, citing Thompkins, 78 Ohio St.3d at 

390, 678 N.E.2d 541 (1997). When considering a defendant’s claim that a conviction 

is against the manifest weight of the evidence, the appellate court functions as a 

“thirteenth juror” and may disagree “with the factfinder’s resolution of * * * 

conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 

102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the entire 

record, weighs the evidence and all reasonable inferences that may be drawn 

therefrom, considers the witnesses’ credibility and determines 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 reversed and a new trial 

ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 

N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the 

“‘exceptional case in which the evidence weighs heavily against the conviction.’” Id. 

at 387, quoting Martin at 175.

As previously discussed, the state had the burden of disproving 

Hughkeith’s self-defense claim beyond a reasonable doubt. Messenger at ¶ 27. The 
state was only required to prove one of the three elements — that Hughkeith was at 

fault in creating the situation giving rise to the affray; that he lacked a bona fide 

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

means of escape from such danger existed negating the need for the use of deadly 

force; or that he violated a duty to retreat or avoid the danger — beyond a reasonable 

doubt to establish that self-defense does not apply. State v. Travis, 8th Dist. 

Cuyahoga No. 110514, 2022-Ohio-1233.

Relevant to the issues presented in this case, the second element of 

self-defense involves both objective and subjective considerations. State v. Thomas, 

77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997); Parma v. Treanor, 2018-Ohio3166, 117 N.E.3d 970, ¶ 25 (8th Dist.); State v. Smith, 1st Dist. Hamilton No. C190507, 2020-Ohio-4976, ¶ 56, citing State v. Vanover, 1st Dist. Hamilton No. C990104, 2000 Ohio App. LEXIS 4469, *3 (Sept. 29, 2000). A defendant’s belief that 

she was in immediate danger of death or great bodily harm must be objectively 

reasonable, and the defendant must have an honest belief that she sat in such 

danger. Id. “[I]f the objective standard is met, the jury must determine if, 

subjectively, this particular defendant had an honest belief that she was in imminent 

danger.” Thomas at 326. The state may disprove self-defense by demonstrating 

that the defendant’s belief was not objectively reasonable or that he or she did not 

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

Smith at ¶ 56.
Upon balancing the competing testimony, we do not find the jury 

clearly lost its way in concluding that the state satisfied its burden of persuasion by 

demonstrating that Hughkeith did not act in self-defense when he shot and killed 

Powell. In reaching this conclusion, we recognize that Powell’s conduct inside the 

Mr. Hero’s restaurant was certainly unsettling and would cause a reasonably 

objective person to believe that he or she was in imminent danger. However, 

Hughkeith took the necessary steps to avoid a dangerous confrontation with Powell 

inside the restaurant by making the conscious decision to leave the premises before 

the situation escalated. Once outside, Hughkeith retreated to his vehicle and had 

the opportunity to leave the shopping center altogether. The affray had ended. See 

State v. Santana, 2d Dist. Montgomery No. 29348, 2022-Ohio-4118, ¶ 32-33. 

Instead, the surveillance-video footage establishes that Hughkeith stood behind his 

vehicle and waited until Powell was approximately two parking spaces away from 

his black SUV before Hughkeith unexpectedly fired his gun multiple times. When 

the first gunshot was fired, Powell was holding a fountain drink in his left hand and 

his right hand was extended away from his body. After the first shots were fired, 

Hughkeith came around the back of the black SUV, where Powell was attempting to 

hide, and fired a succession of additional gun shots. Powell immediately fell to the 

ground, where he succumbed to his gunshot wounds. Powell never brandished his 

weapon while approaching his vehicle or during the exchange of gunfire between 

Hughkeith, White, and Robinson.
It is well settled that “‘a conviction is not against the manifest weight 

of the evidence simply because the [trier of fact] rejected the defendant’s version of 

the facts and believed the testimony presented by the state.’” State v. Jallah, 8th 

Dist. Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. 

Ross No. 13CA3391, 2014-Ohio-2959, ¶ 28. In this case, the jury, as the tier of fact, 

was equipped with the necessary information to adequately assess the strength of 

the state’s evidence, the nature of Powell’s conduct at the time of the shooting, and 

the credibility of Hughkeith’s subjective interpretation of the facts. Significantly, the 

entirety of Hughkeith’s interaction with Powell at the Buckeye Plaza shopping center 

was captured by surveillance cameras. Under these circumstances, the jury was free 

to accept the state’s evidence and conclude that Hughkeith did not 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 was in the use of deadly force. 

Based on the foregoing, we find the manifest weight of the evidence 

support’s Hughkeith’s convictions. The second assignment of error is overruled.

C. Right to Remain Silent

In the third assignment of error, Hughkeith argues the trial court 

erred by “failing to make a record as to [his] waiver of his constitutional right to 

remain silent.” 

The right to testify at one’s own criminal trial is rooted in the Due 

Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of 

the Sixth Amendment, and the Fifth Amendment’s privilege against self-
incrimination. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L.Ed.2d 37 

(1987). “Generally, the defendant’s right to testify is regarded both as a fundamental 

and a personal right that is waivable only by an accused.” State v. Bey, 85 Ohio St.3d 

487, 497, 709 N.E.2d 484 (1999). The ultimate decision of whether to testify rests 

with the defendant, but because attorneys are presumed to follow the professional 

rules of conduct and presumed to render adequate assistance in advocating the 

defendant’s cause and in consulting with the defendant on important decisions, the 

defendant’s assent may be presumed when a tactical decision is made to not have 

the defendant testify. United States v. Webber, 208 F.3d 545, 551 (6th Cir.2000). 

Barring any statements or actions from the defendant indicating either 

disagreement with counsel or the desire to testify, the trial court is not required to 

ensure that the defendant has waived the right to testify on the record. State v. 

Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 162, citing Webber 

at 551.

In this case, Hughkeith exercised his fundamental right to testify on 

his own behalf at trial. In doing so, he waived his right to remain silent. State v. 

Belville, 6th Dist. Lucas No. L-96-195, 1997 Ohio App. LEXIS 1267, 6 (Apr. 4, 1997) 

(A defendant’s “election to testify on his [or her] own behalf waives his [or her] right 

to remain silent and any exercises of that right.”), citing Jenkins v. Anderson, 447 

U.S. 231, 238, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980). On appeal, Hughkeith has cited 

no persuasive authority to suggest that once a defendant exercises his or her right to 

testify at trial, the trial court has a corresponding duty to ensure that the defendant 
has knowingly and intelligently waived the right to remain silent. Accordingly, we 

find no error. In re B.P., 9th Dist. Lorain No. 14CA010531, 2015-Ohio-48, ¶ 10, 

citing App.R. 16(A)(7).

The third assignment of error is overruled.

D. Judicial Bias

In the fourth assignment of error, Hughkeith argues the trial court 

failed to maintain impartiality and was biased against him throughout the criminal 

proceedings. Hughkeith contends the trial court’s bias and prejudice is reflected by 

(1) the frequency of the court’s evidentiary rulings in favor of the state, (2) the court’s 

“repeated admonishments” of Hughkeith during his direct examination, (3) the 

court’s threat to impose “severe penalties” on Hughkeith if he asked family members 

to make social-media posts on his behalf, and (4) the court’s instruction to the state 

to patrol the defendants’ social media accounts.

Appellate courts generally “lack the authority to find that a judge was 

biased against a party or void a trial court’s judgment on a claim that the trial judge 

was biased.” State v. Reese, 8th Dist. Cuyahoga No. 107714, 2019-Ohio-4670, ¶ 25, 

citing State v. Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336 (9th Dist.1993), 

citing Beer v. Griffith, 54 Ohio St.2d 440, 377 N.E.2d 775 (1978). Rather, “[t]he 

Chief Justice of the Supreme Court of Ohio, or his [or her] designee, has exclusive 

jurisdiction to determine a claim that a common pleas judge is biased or prejudiced.” 

Jones v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing 

Article IV, Section 5(C), Ohio Constitution.
Nevertheless, “it is axiomatic that the Due Process Clause requires a 

fair trial in a fair tribunal before an impartial judge with no actual bias against the 

defendant or interest in the outcome of his particular case.” Bracy v. Gramley, 520 

U.S. 899, 905, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); State v. LaMar, 95 Ohio St.3d 

181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. Thus, the Ohio Supreme Court has 

recognized that proceedings before a biased judge are fundamentally unfair and 

denies a defendant due process of law. State v. Dean, 127 Ohio St.3d 140, 2010-

Ohio-5070, 937 N.E.2d 97, ¶ 48. Accordingly, a trial court’s judgment may be 

reversed due to bias if the bias or prejudice violated the defendant’s right to due 

process and deprived the defendant of a fair proceeding. Id.

Judicial bias has been described by the Supreme Court of Ohio as a 

hostile feeling or spirit of ill will or undue friendship or favoritism 

toward one of the litigants or his attorney, with the formation of a fixed 

anticipatory judgment on the part of the judge, as contradistinguished 

from an open state of mind which will be governed by the law and the 

facts.

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph 

four of the syllabus. “If the trial judge forms an opinion based on facts introduced 

or events occurring during the course of the current or prior proceedings, this does 

not rise to the level of judicial bias, ‘“unless [the opinions] display a deep-seated 

favoritism or antagonism that would make fair judgment impossible.”’” State v. 

Hough, 2013-Ohio-1543, 990 N.E.2d 653, ¶ 11 (8th Dist.), quoting Dean at ¶ 49, 

quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 

(1994).
“In determining whether purported judicial bias resulted in a due 

process violation, we presume that a judge is unbiased and unprejudiced in the 

matters over which he or she presides, and ‘“the appearance of bias or prejudice 

must be compelling in order to overcome the presumption.”’” Cleveland v. 

Goodman, 8th Dist. Cuyahoga Nos. 108120 and 108678, 2020-Ohio-2713, ¶ 18, 

State v. Eaddie, 8th Dist. Cuyahoga No. 106019, 2018-Ohio-961, ¶ 18, quoting State 

v. Filous, 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 14.

After careful review of the record, we find Hughkeith has failed to 

overcome the presumption that the trial court was unbiased and unprejudiced 

against him. In this case, Hughkeith has cited various portions of the trial transcript, 

arguing that the record demonstrates that the trial court overwhelmingly ruled in 

favor of the state while consistently overruling defense counsel’s evidentiary 

objections. Hughkeith suggests the trial court’s pattern of judgment “exhibited 

judicial bias against the defense, and communicate[d] that bias to the jury.” We 

disagree. Significantly, Hughkeith’s position does not consider the propriety of the 

cited objections or whether the trial court’s evidentiary rulings were arbitrary or in 

violation of the Ohio Rules of Evidence. Absent additional indicia of bias, we are 

unable to conclude that the trial court’s evidentiary rulings amounted to “deepseated antagonism” merely because the rulings were unfavorable to Hughkeith. 

We further find no merit to Hughkeith’s contention that the trial court 

demonstrated bias against him by “admonishing” him in front of the jury. In this 

case, the alleged admonishments included the court (1) instructing Hughkeith to 
only answer the questions posed to him during his cross-examination, (2) clarifying 

the state’s posed question on cross-examination, and (3) asking Hughkeith to repeat 

his answer because he was “mumbling a little bit.” (Tr. 1188, 1236-1247, 1239, 12773, 

1275, 1284, 1288-1289, 1292.) Viewing the challenged portions of the testimony in 

context, we find the trial court’s instructions to Hughkeith during his direct 

examination were consistent with the court’s role as the gatekeeper and its 

obligation to ensure that the jury could hear Hughkeith’s testimony without 

obstruction. See Goodman, 8th Dist. Cuyahoga Nos. 108120 and 108678, 2020-

Ohio-2713, at ¶ 20 (“[T]he trial court’s instruction to [the defendant] to answer the 

questions posed during his cross-examination was consistent with the court’s role 

as the gatekeeper.”). The court’s conduct was proper.

Finally, the trial court did not exhibit prejudicial bias by ensuring that 

all parties, including Hughkeith and his codefendant, abided by the court’s order to 

refrain from taking photographs inside the courtroom or posting on social media. 

In this case, the trial court made the following statement on the record:

THE COURT: We’re back on the record. Your jail calls get listened to 

every day. Girlfriend’s prohibited from being in this courtroom again. 

I’ve made it very clear there’s to be no photographs. Don’t ask anybody 

else to take a photograph. I’m asking the prosecutors to search social 

media every day, and if I find out that somebody in this room is taking 

a photograph and if I find out you’re involved in it, you’re going to face 

separate penalties. This isn’t a joke, Mr. Caldwell.

(Tr. 628.)

The challenged advisement was made after the court learned from a 

recorded jail-cell phone call that Caldwell asked “somebody” to post a photograph 
of him in court on social media. Significantly, the advisement was made to 

codefendant Caldwell, not Hughkeith, outside the presence of the jury. The court 

certainly did not demonstrate bias against Hughkeith merely because it warned his 

codefendant to abide by the court’s restriction against photographs and social media 

posts relating to the pending trial.

Based on the foregoing, we find no merit to Hughkeith’s claim of 

judicial bias. The fourth assignment of error is overruled.

E. Duty to Retreat

In the fifth assignment of error, Hughkeith argues the trial court erred 

by instructing the jury on the duty to retreat. Hughkeith contends that, at the time 

of his trial, there was no duty to retreat in the state of Ohio. Thus, Hughkeith asserts 

that the trial court’s erroneous instruction on the duty to retreat misled the jury or 

otherwise prejudiced his right to a fair trial.

Jury instructions are “critically important to assist juries in 

determining the interplay between the facts of the case before it and the applicable 

law.” State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 5. 

Although a trial court has “broad discretion to decide how to fashion jury 

instructions,” the trial court must ‘“fully and completely give all jury instructions 

which are relevant and necessary for the jury to weigh the evidence and discharge 

its duty as the fact finder.’” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 

N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 

(1990), paragraph two of the syllabus. Requested jury instructions should 
“ordinarily be given if they are correct statements of law, if they are applicable to the 

facts of the case, and if reasonable minds might reach the conclusion sought by the 

requested instruction.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 

N.E.3d 127, ¶ 240. 

As a general matter, we review a trial court’s decision on jury 

instructions for an abuse of discretion. State v. Daniel, 2016-Ohio-5231, 57 N.E.3d 

1203, ¶ 30 (8th Dist.), citing State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-

Ohio-1446, ¶ 33. However, what law applies and whether a jury instruction correctly 

states the applicable law are legal issues an appellate court reviews de novo. See, 

e.g., State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135. An 

incorrect or inadequate instruction that misleads the jury or otherwise prejudices 

the defendant constitutes reversible error. See Simbo Props. v. M8 Realty, L.L.C.,

2019-Ohio-4361, 149 N.E.3d 941, ¶ 18 (8th Dist.).

In this case, the alleged offenses occurred on or about August 8, 2020. 

Hughkeith was indicted on August 24, 2020, and his jury trial commenced in May 

2022. On April 6, 2021, while his case was pending, R.C. 2901.09(B) was amended 

pursuant to S.B. 175. Prior to the 2021 amendments, R.C. 2901.09(B) stated:

For purposes of any section of the Revised Code that sets forth a 

criminal offense, a person who lawfully is in that person’s residence has 

no duty to retreat before using force in self-defense, defense of another, 

or defense of that person’s residence, and a person who lawfully is an 

occupant of that person’s vehicle or who lawfully is an occupant in a 

vehicle owned by an immediate family member of the person has no 

duty to retreat before using force in self-defense or defense of another.

R.C. 2901.09(B) now states:
For purposes of any section of the Revised Code that sets forth a 

criminal offense, a person has no duty to retreat before using force in 

self-defense, defense of another, or defense of that person’s residence 

if that person is in a place in which the person lawfully has a right to be.

The 2021 amendments also added R.C. 2901.09(C), which states: “A 

trier of fact shall not consider the possibility of retreat as a factor in determining 

whether or not a person who used force in self-defense, defense of another, or 

defense of that person’s residence reasonably believed that the force was necessary 

to prevent injury, loss, or risk to life or safety.” The amendments are generally 

referred to as the “stand-your-ground law.” State v. Dixon, 2d Dist. Greene No. 

2021-CA-29, 2022-Ohio-3157, ¶ 9.

Since the modification of R.C. 2901.09, Ohio courts have debated 

whether the current version of the statute applies to offenders who committed the 

offense prior to the amendment but who are tried after the amendment became 

effective. This court has previously held that the 2021 amendments to R.C. 2901.09 

do not apply to offenses that were committed prior to the April 6, 2021 effective date. 

See State v. Duncan, 8th Dist. Cuyahoga No. 110784, 2022-Ohio-3665, ¶ 26; State 

v. Claytor, 8th Dist. Cuyahoga No. 110837, 2022-Ohio-1938, ¶ 77-79; State v. Hurt, 

8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039, ¶ 56-66 (“There is no language in 

amended R.C. 2901.09 indicating that the General Assembly intended the statute to 

be applied retroactively.”). See also State v. Huish, 10th Dist. Franklin No. 21AP255, 2023-Ohio-365, ¶ 63, fn. 8; State v. Parker, 1st Dist. Hamilton No. C-210440, 

2022-Ohio-3831, ¶ 14; State v. Jones, 2d Dist. Montgomery No. 29214, 2022-Ohio-
3162, ¶ 39; State v. Degahson, 2d Dist. Clark No. 2021-CA-35, 2022-Ohio-2972, ¶ 19 

(“[W]e find no language in the amended R.C. 2901.09 that would indicate the 

legislature obviously intended the statute to be applied retroactively.”). But see 

State v. Wagner, 11th Dist. Lake No. 2021-L-101, 2022-Ohio-4051, ¶ 28; State v. 

Robinette, 5th Dist. Stark No. 2021 CA 00124, 2023-Ohio-5, ¶ 52. Thus, it is well

settled in this district that “the amendments to R.C. 2901.09(C) do not apply 

retroactively and are not required if the April 6, 2021, amendments were not in effect 

at the time of the offense.” Duncan at ¶ 26. 

In this case, the trial court originally provided a self-defense 

instruction that did not contemplate the amendments of R.C. 2901.09. (Tr. 1495.) 

After the jurors were excused for deliberations, defense counsel asserted that the 

trial court’s self-defense instruction was incomplete because the court failed to 

instruct the jury that “the defendant had no duty to retreat before using force in selfdefense if the defendant was in a place in which he lawfully had a right to be.” (Tr. 

1535.) Following an extensive discussion on the record, the trial court agreed to 

reinstruct the jury on self-defense. On this occasion, the trial court expanded upon 

its prior self-defense instruction, stating, in pertinent part: 

In determining whether the defendant, in using force in self-defense, 

reasonably believed that the force was necessary to prevent injury, loss, 

or risk to life or safety, you may not consider the possibility of retreat 

by the defendant.

The defendant had no duty to retreat before using force in self-defense 

if the defendant was in a place in which he lawfully had a right to be.

Lawfully had a right to be means that the defendant was not trespassing 

when he used force in self-defense.
(Tr. 1544-1545.) 

Although the precedent of this court demonstrates that Hughkeith 

was not entitled to the retroactive application of amended R.C. 2901.09(B), the 

record reflects that he was afforded the benefit of the amended statute as the trial 

court unambiguously instructed the jury that Hughkeith had no duty to retreat from 

any place he was lawfully entitled to be. Contrary to Hughkeith’s assertion on 

appeal, the trial court’s supplemental instruction was not confusing or otherwise 

misleading. To the contrary, the court’s decision to apply the amended statute was 

substantially beneficial to Hughkeith’s defense and prohibited the jury from 

considering the possibility of retreat in determining whether he reasonably believed 

force was necessary. 

The fifth assignment of error is overruled.

F. Failure to Object to Self-Defense Jury Instruction 

In the sixth assignment of error, Hughkeith argues defense counsel 

rendered ineffective assistance of counsel by failing to object to the trial court’s jury 

instruction on self-defense. 

Our review of counsel’s performance is highly deferential. State v. 

Korecky, 8th Dist. Cuyahoga No. 108328, 2020-Ohio-797, ¶ 20, citing Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we 

presume licensed attorneys are competent, the party claiming ineffective assistance 

of counsel bears the burden of proving that counsel was ineffective. Id., citing State 

v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985).
“To gain reversal on a claim of ineffective assistance of counsel, a 

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

deficient performance prejudiced the defense.’” State v. Fisher, 8th Dist. Cuyahoga 

No. 108494, 2020-Ohio-670, ¶ 18, quoting Strickland at 687. “The first prong of 

Strickland’s test requires the defendant to show ‘that counsel’s representation fell 

below an objective standard of reasonableness.’” Id., quoting Strickland at 688. 

“Strickland’s second prong requires the defendant to show ‘a reasonable probability 

that but for counsel’s errors, the proceeding’s result would have been different.’” Id., 

quoting State v. Winters, 8th Dist. Cuyahoga No. 102871, 2016-Ohio-928, ¶ 25. 

That is, the second prong requires a determination as to whether the defense was 

prejudiced by counsel’s ineffectiveness. State v. Beasley, 153 Ohio St.3d 497, 2018-

Ohio-493, 108 N.E.3d 1028, ¶ 140, citing Strickland at 687.

Consistent with his previous arguments, Hughkeith argues trial 

counsel rendered ineffective assistance of counsel by failing to raise a timely 

objection to the court’s instruction on self-defense. Specifically, Hughkeith 

challenges the trial court’s instruction regarding the first element of a self-defense 

claim. The challenged instruction, which was made at the time the court 

reinstructed the jury on self-defense, provided, in relevant part:

The defendant did not act in self-defense if the state proved beyond a 

reasonable doubt the defendant was at fault in creating the situation 

that resulted in the death and/or injury. The defendant was at fault if 

the defendant was the initial aggressor; and A, Michael Powell and/or 

James White did not escalate the situation by being the first to use or 

attempt to use deadly force; or B, the defendant provoked Michael 

Powell and/or James White into using force; or C, the defendant did 
not withdraw from the situation; or D, the defendant withdrew from 

the situation but did not inform Michael Powell and/or James White of 

his withdrawal.

(Tr. 1543.)

Relying on the implications of the newly enacted stand-your-ground 

law, Hughkeith contends that it was misleading for the trial court to instruct the jury 

that he was at fault in creating the situation that resulted in death or injury if (1) he

was the initial aggressor and (2) “did not withdraw from the situation.” (Tr. 1543.) 

Hughkeith asserts that “there is no tactical basis for failing to object to a jury 

instruction which is not supported by the facts, is not an accurate statement of 

current law, and prejudicially effects the outcome of the case.” 

After careful consideration, we cannot say defense counsel rendered 

ineffective assistance of counsel by failing to object to the cited portion of the trial 

court’s self-defense instruction. Initially, we find no merit to Hughkeith’s assertion 

that the trial court’s instruction on the element of fault was “not applicable to the 

facts.” Hughkeith sought the self-defense instruction, and the trial court was free to 

instruct the jury on each of the applicable elements of the affirmative defense. 

Moreover, assuming, for the sake of argument, that the trial court properly 

instructed the jury on the duty to retreat pursuant to the current version of R.C. 

2901.09(B), Hughkeith has cited no case law to suggest the trial court’s “at fault” 

instruction was inconsistent with the current law. While a person no longer has a 

duty to retreat from a place he or she is lawfully permitted to be, there is no language 

in the amended statute to suggest a trier of fact is precluded from considering 
whether the defendant was the initial aggressor or whether the defendant attempted 

to withdraw from the situation when determining whether the defendant was at 

fault in creating the situation giving rise to the affray. The narrow language of the 

amended statute does not place on triers of fact express restrictions on consideration 

of fault. We further note that although Ohio Jury Instructions are not binding, the 

trial court’s “at fault” instruction in this case tracks the language of Ohio Jury 

Instructions 421.21, which has been amended since April 2021, and contemplates 

the “abolishment of the duty to retreat.” Under these circumstances, Hughkeith has 

failed to establish counsel’s deficient performance or resulting prejudice. 

The sixth assignment of error is overruled.

G. Failure to Request Jury Instructions 

on Lesser-Included of Inferior-Degree Offenses

In the seventh assignment of error, Hughkeith argues trial counsel 

rendered ineffective assistance of counsel by failing to request an instruction on the 

lesser-included offenses of voluntary manslaughter and aggravated assault. 

Hughkeith contends that “trial counsel’s failure to request a lesser-included [offense 

instruction] was not the result of any reasonable trial strategy and fatally prejudiced 

[him].”

The Ohio Supreme Court has explained that under Crim.R. 31(C) and 

R.C. 2945.74, a jury may consider lesser unindicted offenses only if the evidence 

supports the lesser charge and the lesser charge is either (1) a lesser-included offense 

of the crime charged; (2) an inferior degree offense of the crime charged; or (3) an 
attempt to commit the crime charged, if such an attempt is an offense at law. State 

v. Deem, 40 Ohio St.3d 205, 208, 533 N.E.2d 294 (1988); State v. Davis, 9th Dist. 

Summit No. 25826, 2012-Ohio-1440, ¶ 20.

A lesser-included offense is one in which

(i) the offense carries a lesser penalty than the other; (ii) the greater 

offense cannot, as statutorily defined, ever be committed without the 

lesser offense, as statutorily defined, also being committed; and (iii) 

some element of the greater offense is not required to prove the 

commission of the lesser offense.

Deem at paragraph three of the syllabus. By contrast, “an offense is an ‘inferior 

degree’ of the indicted offense where its elements are identical to or contained within 

the indicted offense, except for one or more additional mitigating elements.” Id. at

paragraph two of the syllabus.

Generally, “a charge on a lesser-included or inferior offense is 

required only where the evidence presented at trial would reasonably support both 

an acquittal on the crime charged and a conviction upon the lesser-included or 

inferior offense.” State v. Carter, 2018-Ohio-3671, 119 N.E.3d 896, ¶ 59 (8th Dist.), 

citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of 

the syllabus. In determining whether a lesser-included or inferior-offense 

instruction is appropriate, the trial court must view the evidence in the light most 

favorable to the defendant. Id. at ¶ 59, citing State v. Monroe, 105 Ohio St.3d 384, 

2005-Ohio-2282, 827 N.E.2d 285, ¶ 37. 

An instruction is not warranted, however, every time “some evidence” 

is presented on a lesser-included or inferior offense. State v. Smith, 8th Dist. 
Cuyahoga No. 90478, 2009-Ohio-2244, ¶ 12, citing State v. Shane, 63 Ohio St.3d 

630, 590 N.E.2d 272 (1992).

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.

Id., quoting Shane at 633. Thus, a court must find there is sufficient evidence to 

allow a jury to reasonably reject the greater offense and find the defendant guilty on 

the lesser-included or inferior offense. Shane at 632-633.

Voluntary manslaughter is defined in R.C. 2903.03(A). The statute 

provides as follows:

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 cause the death of 

another.

In turn, aggravated assault is codified in R.C 2903.12(A)(1), which 

provides, in part, that 

[n]o 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 * * * cause serious 

physical harm to another.

Ohio courts have recognized that “aggravated assault is an inferiordegree offense to felonious assault and that voluntary manslaughter is an inferiordegree offense to murder.” State v. Dixon, 2d Dist. Greene No. 2021-CA-29, 2022-

Ohio-3157, ¶ 21; see also State v. Wiley, 8th Dist. Cuyahoga No. 110753, 2022-Ohio2131, ¶ 18 (“Voluntary manslaughter is an inferior degree offense of murder.”); State 
v. Martin, 2018-Ohio-1098, 109 N.E.3d 652, ¶ 8 (8th Dist.) (“[A]ggravated assault 

is an inferior degree of felonious assault[.]”). This is because aggravated assault and 

voluntary manslaughter both contain an additional mitigating element of “serious 

provocation.” State v. Rider, 2d Dist. Champaign No. 2021-CA-12, 2022-Ohio-1964, 

¶ 39-40. In other words, the greater- degree and inferior-degree offenses are similar 

except aggravated assault and voluntary manslaughter require proof that a 

defendant acted under the influence of sudden passion or in a fit of rage brought 

about by serious provocation. State v. Miller, 2d Dist. Montgomery No. 29099, 

2022-Ohio-213, ¶ 16; State v. Robinson, 2d Dist. Clark No. 2021-CA-3, 2021-Ohio3255, ¶ 11.

Provocation, to be serious, must be reasonably sufficient to bring on 

extreme stress and the provocation must be reasonably sufficient to 

incite or to arouse the defendant into using deadly force. In 

determining whether the provocation was reasonably sufficient to 

incite the defendant into using deadly force, the court must consider 

the emotional and mental state of the defendant and the conditions and 

circumstances that surrounded him at the time.

State v. Mabry, 5 Ohio App.3d 13, 449 N.E.2d 16 (8th Dist.1982), paragraph five of 

the syllabus.

In Shane, 63 Ohio St.3d 630, 590 N.E.2d 272, the Supreme Court 

elaborated on what constitutes “reasonably sufficient” provocation. First, an 

objective standard must be applied to determine whether the alleged provocation is 

reasonably sufficient to bring on a sudden passion or fit of rage. That is, the 

provocation must be “sufficient to arouse the passions of an ordinary person beyond 

the power of his or her control.” Id. at 635. If this objective standard is met, the 
inquiry shifts to a subjective standard, to determine whether the defendant in the 

particular case “actually was under the influence of sudden passion or in a sudden 

fit of rage.” Id. at 634-635.

On appeal, Hughkeith has cited no evidence in the record to support 

his contention that the trial court was obligated to instruct the jury on the inferior 

offenses of voluntary manslaughter and aggravated assault. Despite Hughkeith’s 

repeated failure to comply with App.R. 16, we nevertheless find no merit to the 

substance of his assertion.

In Ohio, a licensed attorney is presumed to be competent. State v. 

Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial 

counsel’s performance, appellate review is highly deferential as there is a strong 

presumption that counsel’s conduct fell within the wide range of reasonable 

professional assistance. Strickland at 689. Appellate courts are not permitted to 

second-guess the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 

545, 558, 651 N.E.2d 965 (1995). Even instances of debatable strategy very rarely 

constitute ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 

10, 514 N.E.2d 407 (1987).

Generally, “the decision about which defense or theory to pursue at 

trial is a matter of trial strategy ‘“within the exclusive province of defense counsel to 

make after consultation with his [or her] client.’”” State v. Lloyd, 8th Dist. Cuyahoga 

No. 109128, 2021-Ohio-1808, ¶ 32, quoting State v. Murphy, 91 Ohio St.3d 516, 524, 
747 N.E.2d 765 (2001), quoting Lewis v. Alexander, 11 F.3d 1349, 1354 (6th 

Cir.1993).

This court has recognized that aggravated assault and voluntary 

manslaughter are incompatible with a theory of self-defense because self-defense 

requires proof of fear while aggravated assault and voluntary manslaughter require 

a showing of a sudden passion or rage. See State v. Bouie, 8th Dist. Cuyahoga No. 

108095, 2019-Ohio-4579, ¶ 47 (“it has been held that in most cases, jury instructions 

on both self-defense and serious provocation are inconsistent” because “the mental 

states of fear as required for self-defense and rage as required for aggravated assault 

are incompatible”); State v. Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio1821, ¶ 24 (jury instruction on aggravated assault not required where defense theory 

was self-defense); State v. Loyed, 8th Dist. Cuyahoga No. 83075, 2004-Ohio-3961, 

¶ 14 (instruction on voluntary manslaughter not required where defense asserted 

self-defense because the theories were incompatible and “it must be one or the 

other”).

Contrary to, and inconsistent with, defense counsel’s theory and 

interpretation of the evidence, Hughkeith now argues that a jury instruction on the 

inferior-degree offenses of voluntary manslaughter and aggravated assault was 

warranted in this case. As stated, however, defense counsel maintained throughout 

the entirety of the trial that Hughkeith acted in self-defense and only fired the fatal 

gunshots because he feared imminent death or great bodily harm. At no point did 

the defense argue or introduce evidence to insinuate that Hughkeith acted under the 
influence of sudden passion or in a fit of rage.1

 This was because defense counsel 

sought an acquittal in this case based upon counsel’s perception of the state’s 

evidence; not a conviction on an inferior offense. See State v. Scarton, 8th Dist. 

Cuyahoga No. 108474, 2020-Ohio-2952, ¶ 99; State v. Lenard, 8th Dist. Cuyahoga 

Nos. 105342 and 105343, 2018-Ohio-4847, ¶ 18; State v. Carter, 8th Dist. Cuyahoga 

No. 104653, 2017-Ohio-5573, ¶ 53-54 (Failing to request an instruction on an 

inferior offense does not rise to the level of ineffective assistance of counsel where 

trial counsel’s strategy was to obtain an acquittal rather than a conviction of an 

inferior offense.). Trial counsel’s strategy at trial, even if “questionable” or “if, in 

hindsight, it looks as if a better strategy had been available,” does not support a claim 

of ineffective assistance of counsel. See, e.g., State v. Cottrell, 4th Dist. Ross Nos. 

11CA3241 and 11CA3242, 2012-Ohio-4583, ¶ 21; State v. Henderson, 7th Dist. 

Mahoning No. 15 MA 0137, 2018-Ohio-2816, ¶ 71-73. 

Accordingly, we find Hughkeith has failed to overcome the 

presumption that trial counsel’s decision to forego an inferior-degree-offense 

1 The record further demonstrates that an instruction on inferior offenses was not 

supported by the evidence. In this case, Hughkeith consistently testified that he acted out 

of fear. (Tr. 1210, 1212, 1218, 1219, 1229, 1346.) However, “[f]ear alone is insufficient to 

demonstrate the kind of emotional state necessary to constitute sudden passion or fit of 

rage.” State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328 (1998). Indeed, a 

defendant’s fear for his own safety or for the safety of others “does not constitute sudden 

passion or a fit of rage as contemplated by the voluntary manslaughter statute.” State v. 

Harris, 129 Ohio App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998). Thus, “[s]hooting 

someone ‘out of fear rather than rage or passion [does] not support a jury instruction for 

voluntary manslaughter.’” State v. Hodge, 10th Dist. Franklin No. 18AP-95, 2019-Ohio4012, ¶ 39, quoting State v. Stevenson, 10th Dist. Franklin No. 17AP-512, 2018-Ohio5140, ¶ 29.
instruction was a strategic maneuver designed to obtain an acquittal, instead of a 

conviction on an inferior-degree offense. See State v. Smith, 8th Dist. Cuyahoga No. 

90478, 2009-Ohio-2244, ¶ 13 (trial counsel, who chose to pursue theory of selfdefense, was not ineffective in failing to seek instruction on lesser-included offense 

of voluntary manslaughter; decision “was a reasonable trial strategy calculated to 

obtain a complete acquittal”).

The seventh assignment of error is overruled.

H. Limitations on Hughkeith’s Testimony

In the eighth assignment of error, Hughkeith argues the trial court 

violated his constitutional rights to due process and a fair trial by repeatedly 

interrupting and “excessively inhibiting” his testimony. Hughkeith contends that 

“because of the continued and excessive interruptions by the trial court, [he] was not 

afforded the opportunity to tell his story in his own words.” 

As previously stated, a defendant in a criminal case has the dueprocess right to take the witness stand and to testify in his or her own defense. Rock, 

483 U.S. at 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Harris v. New York, 401 U.S. 

222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). “Whether the defendant is to testify is 

an important tactical decision as well as a matter of constitutional right.” Brooks v. 

Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). A defendant’s 

right to testify is not without limitation, however, and “‘may, in appropriate cases, 

bow to accommodate other legitimate interests in the criminal trial process.’ * * * 

But restrictions of a defendant’s right to testify may not be arbitrary or 
disproportionate to the purposes they are designed to serve.” Rock at 55-56, quoting 

Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

In this case, there is no dispute that Hughkeith exercised his right to 

testify on his own behalf and was provided ample opportunity on direct examination 

to articulate his version of events to the trier of fact. Nevertheless, Hughkeith 

contends that the court unduly interfered with his defense by interrupting his 

testimony “more than ten times during cross-examination.” (Tr. 1236-1237, 1239, 

1273, 1275, 1284, 1288-1289, 1292.) Hughkeith’s citation to these alleged 

“interruptions” were previously addressed in Hughkeith’s claim of judicial bias. In 

most part, the trial court’s comments involved instances where Hughkeith was 

advised to only answer the questions posed on cross-examination and to refrain 

from testifying in the narrative. 

Consistent with our prior discussion, we cannot say the court 

prejudicially impaired Hughkeith’s defense by requiring him to limit his answers to 

those questions posed by the state on cross-examination. Here, the trial court did 

not offer any commentary reflecting the court’s personal views or the court’s 

perception of the state’s case against Hughkeith. Rather, the court’s interruptions 

were isolated and made in accordance with the court’s role as the gatekeeper of 

evidence.

The eighth assignment of error is overruled.
I. Prosecutorial Misconduct

In the ninth assignment of error, Hughkeith argues the state 

committed prosecutorial misconduct by referring to Powell as “defenseless” and by 

inferring that Hughkeith could have “diffused the whole situation” by showing 

Powell that he had a gun inside the restaurant. Hughkeith asserts that the 

prosecutor’s insinuations “were not made in good faith but are intended to confuse 

the jury by creating an inference that (1) [Hughkeith] had a duty to threaten Powell 

prior to his efforts to leave the situation, and (2) that [Hughkeith] was required to 

warn Powell prior to defending himself.”

The test for prosecutorial misconduct is whether the prosecutor’s 

“‘remarks were improper and, if so, whether they prejudicially affected substantial 

rights of the defendant.’” State v. Hessler, 90 Ohio St.3d 108, 125, 734 N.E.2d 1237 

(2000), quoting State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). An 

appellate court should only reverse a conviction if the effect of the misconduct 

“‘permeates the entire atmosphere of the trial.’” State v. Gibson, 8th Dist. Cuyahoga 

No. 98725, 2013-Ohio-4372, ¶ 99, quoting State v. Tumbleson, 105 Ohio App.3d 

693, 699, 664 N.E.2d 1318 (12th Dist.1995). “The touchstone of analysis ‘is the 

fairness of the trial, not the culpability of the prosecutor.’” State v. Gapen, 104 Ohio 

St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting Smith v. Phillips, 455 

U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

In this case, Hughkeith asserts that the following questions during 

his cross-examination amounted to prosecutorial misconduct:
PROSECUTION: Well, I’m not asking if you’re causing harm with the 

gun; I asked you why you carried that gun and you said because you live 

in a dangerous neighborhood. People get shot all the time. So if you 

carry it around without the intent of using it, what’s the point?

HUGHKEITH: There’s no point.

PROSECUTION: No point. Well, in this situation couldn’t you have 

shown Mr. Powell you also had a gun and said, hey, let’s not — let’s not 

shoot each other today. We both have guns. Let’s all just walk away.

HUGHKEITH: No.

* * * 

PROSECUTION: Again, if the intent is to not use it, why don’t you show 

him your gun right now before a shot is ever fired?

HUGHKEITH: I didn’t. I did not.

PROSECUTION: I know. Why not?

HUGHKEITH: I don’t know.

PROSECUTION: You could have diffused this whole situation.

* * *

HUGHKEITH: How can I try to diffuse a situation? The man got a gun, 

about to aim it at me.

(Tr. 1242-1244.) Hughkeith did not object to this line of questioning and, therefore, 

has waived all but plain error.

Cross-examination is entitled to wide latitude, and its scope is within 

the trial court’s discretion. State v. Garfield, 34 Ohio App.3d 300, 303, 518 N.E.2d 

568 (11th Dist.1986), citing State v. Huffman, 86 Ohio St. 229, 99 N.E. 295 (1912). 

In this case, Hughkeith provided extensive testimony on direct examination 
concerning his initial interaction with Powell and his belief that Powell intended to 

cause him bodily harm once they were both in the parking lot. Hughkeith’s 

subjective interpretation of Powell’s movements and whether Hughkeith possessed 

a firearm during their initial confrontation inside the restaurant was certainly 

relevant, and the state was entitled to explore this issue on cross-examination. 

Although it is implausible to suggest that Hughkeith could have diffused the 

situation by brandishing his firearm the moment Powell first displayed his weapon, 

we cannot say the prosecution’s questions were improper or beyond the scope of 

cross-examination. Nor can it be said that the outcome of the trial clearly would 

have been different but for the state’s line of questioning on cross-examination.

Hughkeith further argues the state engaged in prosecutorial 

misconduct by referring to Powell as being “defenseless” during its closing remarks. 

(Tr. 1399.) Hughkeith contends that the state’s characterization of Powell was 

misleading and inconsistent with the evidence presented at trial. Again, Hughkeith 

did not object to the challenged remark. 

Generally, a prosecutor is entitled to wide latitude during closing 

argument. State v. Harris, 2017-Ohio-2751, 90 N.E.3d 342, ¶ 84 (8th Dist.), citing 

State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). And the closing 

argument must be viewed in its entirety to determine whether the disputed remarks 

were prejudicial. “[I]solated comments by a prosecutor are not to be taken out of 

context and given their most damaging meaning.” Gapen at ¶ 106, citing Donnelly 

v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In 
determining whether a prosecutor’s comment was prejudicial, we consider several 

factors (1) the nature of the remark(s), (2) whether an objection was made by 

counsel, (3) whether the court gave curative instructions, and (4) the general 

strength of the evidence against the defendant. Harris, citing State v. Braxton, 102 

Ohio App.3d 28, 41, 656 N.E.2d 970 (8th Dist.1995).

“The United States Supreme Court has expressly recognized that 

prosecutors serve a special role in our justice system requiring them to adhere to the 

highest standards and to avoid improper arguments, insinuations, and assertions 

calculated to mislead the jury.” State v. Fears, 86 Ohio St.3d 329, 351, 715 N.E.2d 

136 (1999) (Moyer, C.J., concurring in part and dissenting in part). Thus, while a 

prosecutor may strike hard blows, he or she may not strike foul ones. Berger v. 

United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). As recognized by 

this court, such “foul blows” include the following:

[P]ersonally vouching for the credibility of a witness, launching ad 

hominem attacks against the defendant or [defendant’s] lawyer, relying 

on improper evidence, relying on evidence not in the record, critically 

commenting on the defendant’s exercise of his [or her] rights such as 

the right to remain silent or the right to a jury trial, and deliberately 

misleading the jury.

State v. Hough, 8th Dist. Cuyahoga No. 91691, 2011-Ohio-2656, ¶ 7.

After careful consideration, we find no merit to Hughkeith’s 

contention that the state’s comment “was tantamount to misconduct.” It is well 

settled that the state is permitted to freely comment on “‘“what the evidence has 

shown and what reasonable inferences may be drawn therefrom.”’” State v. Fudge, 
2018-Ohio-601, 105 N.E.3d 766, ¶ 48 (10th Dist.), quoting State v. Muhleka, 2d Dist. 

Montgomery No. 19827, 2004-Ohio-1822, ¶ 85; State v. Lott, 51 Ohio St.3d 160, 165, 

555 N.E.2d 293 (1990). In this case, the location of Powell’s firearm at the time he 

was repeatedly shot was an issue of fact that was highly contested at trial. Although 

the evidence established that Powell had a gun in his possession at the time of the 

incident, the state was free to comment on the reasonable inferences that could be 

drawn by the fact that Powell’s firearm was never removed from his waistband 

during the exchange of fire. Under these circumstances, we find the prosecutor’s 

characterization of Powell’s ability to protect himself at the time of the shooting did 

not constitute error, plain or otherwise.

The ninth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein 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. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. 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 Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and

MARY J. BOYLE, J., CONCUR