[Cite as State v. Helmondollar , 2024

- Ohio

- 2077.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. Patricia A. Delaney, P.J.

Plaintiff

- Appellee : Hon. W. Scott Gwin, J.

: Hon. John W. Wise, J.

- vs

- :

: Case No. 23CA0060

:

NATHAN HELMONDOLLAR :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of

Common Pleas, Case No. 22CR172

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: May 29, 2024

For Plaintiff

- Appellee: For Defendant

- Appellant:

JENNY WELLS CHRIS BRIGDON

LICKING CO. PROSECUTOR 8138 Somerset Rd.

KENNETH OSWALT Thornville, OH 43076

20 S. Second St., 4th Floor

Newark, OH 43055Licking County, Case No. 2023CA0060 2

Delaney, P.J.

{¶1} Appellant Nathan Helmondollar appeals from the April 26, 2023 Judgment

Entry of sentence of the Licking County Court of Common Pleas. Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The parties do not dispute the following facts which are adduced from the

record of appellant’s jury trial.

{¶3} Jane Doe is appellant’s ex

- girlfriend. She was “exploring a romantic

relationship” with Sam Roe, an acquaintance of appellant’s. The two men developed a

rivalry over Jane Doe and exchanged antagonistic text messages in the days preceding

the shooting giving rise to the instant case. Roe’s texts to appellant included, “Wait till I

see you bitch boy,” “See the thing is wait till I see you[,] Gaine the fuck over;” “what are

you waiting on bitch;” “I bet you don’t show up[,] where the fuck are you;” and “Come

square up lets see whos a bitch” ( sic throughout). Roe agreed the texts amounted to an

invitation to come over and fight, although he never intended to act on the threats and

only sought to scare appellant.

{¶4} On March 4, 2021, Doe and Roe spent the day together and then went to a

friend’s house where Roe drank and smoked marijuana. Around 9:00 p.m., they heard

appellant arrive outside on his motorcycle. Jane Doe went outside and spoke to

appellant, then told Roe she was leaving with appellant.

{¶5} Roe gathered his things in a backpack and left the house. The backpack

was over his shoulder and a cigarette was in his hand. As Roe walked past appellant,

appellant said “hey pal” and shot Roe once in the right center of his back. Roe testifiedLicking County, Case No. 2023CA0060 3

he was angry after he was shot and tried to push over appellant’s motorcycle, but did not

have the energy to do so and fell to the ground. The gunshot wound was located in the

right center of Roe’s back, with the bullet lodged just below the skin. Later at the hospital,

the bullet “popped out” on its own.

{¶6} Witness 1 lived in the same apartment complex and was looking out her

window watching for her husband. She noticed two men outside near a car and a

motorcycle. One man turned sideways and appeared to be smoking a cigarette. The

other man raised a gun and shot the other man once. Witness 1’s windows were closed

and she did not hear any conversation, but the men did not appear to fight prior to the

shooting. Witness 1 did not observe the victim to have any weapons and he did not

appear to threaten the shooter. The shooter fled and Witness 1 called 911; the call was

played by appellee at trial. Witness 1 testified she had a clear view of events.

{¶7} Witness 2 also lived in the apartment complex and went outside after she

heard a gunshot, in time to see a motorcycle drive away. Witness 2 assisted the victim

and stayed with him until police arrived.

{¶8} Roe told Officer Lewis, one of the first on scene, that appellant shot him.

Lewis removed a knife from a sheath hanging on a necklace around Roe’s neck.

{¶9} Roe also told Officer Thomas that appellant shot him. Thomas checked

Roe’s wounds and observed a bullet protruding from the area of his left rib cage. Thomas

also found a shell casing next to Roe’s foot and collected it as evidence, noting the

location indicated Roe was likely close to the shooter.Licking County, Case No. 2023CA0060 4

{¶10} A police weapons expert testified appellant’s firearm was a Taurus 709 Slim

nine

- millimeter single

- stack handgun designed to be concealed, although he didn’t know

whether the firearm was concealed in this case.

{¶11} Appellant fled after the shooting and police eventually tracked him to his

mother’s house, where they initiated surveillance and eventually arrested appellant on a

traffic stop.

{¶12} Police interviewed appellant at the department and the interview was one

of appellee’s exhibits at trial. Appellant at first claimed to have no idea why he was there.

Police asked if he was at the apartment, and he first claimed he picked up Jane Doe and

left; appellant said Roe was a “stalker” who held Doe against her will and he heard through

Doe that Roe “got messed up.”

{¶13} When police told appellant they already spoke to witnesses at the scene,

appellant admitted shooting Roe. He said Jane Doe went back inside the apartment to

get her bag and Roe came out, charging at appellant. Roe spit in appellant’s face and

mumbled that Doe was leaving with him instead. Appellant claimed Roe shouldered him

to the side and rammed his motorcycle, damaging the turn signal. Appellant further

claimed Roe then lunged at him with his right hand from about three feet away, causing

him to draw his firearm and shoot Roe in self

- defense because he was in fear. Appellant

believed he shot Roe in the left side. Appellant said Jane Doe and others came outside

in a panic, and he and Doe rode off on his motorcycle.

{¶14} Appellant stated he was “open carrying” the firearm on a belt clip, although

he admittedly did not have a concealed

- carry permit. After the shooting, he put the gun

in his pocket when he rode away.Licking County, Case No. 2023CA0060 5

{¶15} Detectives testified appellant’s statement did not match the physical

evidence, including the entrance wound to Roe’s back. Appellant’s account omitted the

fact that he shot Roe in the back.

{¶16} Appellant told detectives he kept the firearm in a safe in his bedroom and

gave them the passcode to access the safe. Police also found rifles in appellant’s

bedroom which would not fit in the safe.

{¶17} Detective Fumi testified that police attempted to interview friends at the

apartment on the night of the incident, but some of them were too intoxicated to interview.

The detective speculated some were under the influence of some type of drug and were

behaving as though they used methamphetamine.

{¶18} Detective Farmer interviewed Roe in the ambulance after the shooting. Roe

said he was trying to start a relationship with Jane Doe and appellant arrived. Roe said

he was attempting to remove himself from the situation to avoid a confrontation but

appellant shot him in the back.

{¶19} Appellant was charged by indictment with one count of felonious assault

pursuant to R.C. 2903.11(A)(2), a felony of the second degree [Count I]; one count of

carrying concealed weapons pursuant to R.C. 2923.12(A)(2), a felony of the fourth degree

[Count II]; and one count of improper handling of firearms in a motor vehicle pursuant to

R.C. 2923.16(B), a felony of the fourth degree. All three counts of the indictment were

accompanied by firearm specifications.

{¶20} Appellant entered pleas of not guilty and the matter proceeded to trial by

jury. Appellant was found guilty as charged and sentenced to a total aggregate prisonLicking County, Case No. 2023CA0060 6

term of 8 to 101⁄2 years, including a mandatory 3

- year consecutive sentence for the

(merged) firearm specifications.

{¶21} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶22} “I. WAS THE APPELLANT DEPRIVED OF HIS STATE AND FEDERAL

RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE

COUNSEL FAILED TO OBJECT TO EVIDENCE THAT APPELLANT HAD AN

EXTENSIVE CACHE OF WEAPONS IN HIS BEDROOM?”

{¶23} “II. WAS THE CONVICTION FOR FELONIOUS ASSAULT SUPPORTED

BY THE WEIGHT OF THE EVIDENCE ON THE ISSUE OF WHETHER APPELLANT

ACTED IN SELF

- DEFENSE?”

{¶24} “III. W[ERE] THE INDEFINITE PRISON TERMS IMPOSED UNDER THE

REAGAN TOKES LAW VIOLAT[IVE OF] THE JURY TRIAL GUARANTEE, THE

DOCTRINE OF SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES

UNDER THE FEDERAL AND STATE CONSTITUTIONS?”

ANALYSIS

I.

{¶25} In his first assignment of error, appellant argues he received ineffective

assistance of defense trial counsel. We disagree.

{¶26} Appellant argues defense trial counsel was ineffective in failing to object to

detectives’ testimony about rifles, knives, and a sword found in his bedroom during the

search for the firearm used in the shooting. Appellee moved to admit exhibits including

photos of the unrelated weapons in appellant’s bedroom; defense trial counsel voiced noLicking County, Case No. 2023CA0060 7

objection to admission of the photos but the trial court sua sponte questioned the photos

and noted the unrelated weapons were not relevant. Appellee argued the photos were

relevant its assertion appellant put only the Taurus 9

- millimeter in the safe, intending to

hide it. Defense counsel pointed out appellant told police the firearm was in the safe and

provided the passcode. The trial court excluded the photos, commenting “I think you’re

using the weapons there to make him out to be a violent and bad person, and I’d find that

the prejudicial impact outweighs any probative value.” T. 327

- 329.

{¶27} The photos were not entered into evidence, but detectives’ testimony did

include statements about the other weapons found in appellant’s bedroom. Appellant

argues defense trial counsel was ineffective in failing to object to these statements. To

succeed on a claim of ineffectiveness, a defendant must satisfy a two

- prong test. Initially,

a defendant must show that trial counsel acted incompetently. See

, Strickland v.

Washington

, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court

must indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana

, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

{¶28} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.Licking County, Case No. 2023CA0060 8

{¶29} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶30} Appellant argues defense trial counsel should have objected to the

testimony about and photos of his “stockpile of weapons.” Brief, 3. The trial court sua

sponte excluded the latter and appellant cannot point to any prejudice therefrom. We are

left with counsel’s failure to object to detectives’ testimony about weapons found in

appellant’s bedroom, Appellant does not demonstrate how trial counsel's failure to object

to the testimony affected the outcome of the trial. Indeed, trial counsel's failure to object

could have been tactical. “Trial counsel is not ineffective for choosing, for tactical reasons,

not to pursue every possible trial objection.” State v. West

, 5th Dist. Fairfield No. 16 CA

11, 2017

- Ohio

- 4055, 91 N.E.3d 365, ¶ 102, internal citation omitted. Trial counsel may

not have wanted to call attention to the statement. See, State v. Smith

, 5th Dist. Stark No.

2023CA00063, 2024

- Ohio

- 1557, ¶ 61. Moreover, the Supreme Court of Ohio held that

“the failure to make objections is not alone enough to sustain a claim of ineffective

assistance of counsel.” State v. Conway

, 109 Ohio St.3d 412, 2006

- Ohio

- 2815, 848

N.E.2d 810, ¶ 103.

{¶31} Finally, even if counsel's failure to object reflected deficient performance,

appellant has failed to establish prejudice under Strickland because he fails to

demonstrate any reasonable probability that, but for the jury hearing about his otherLicking County, Case No. 2023CA0060 9

weapons, the result of his trial would have been different. State v. Watson

, 5th Dist. Stark

No. 2022CA00145, 2023

- Ohio

- 3137, ¶ 62.

{¶32} Accordingly, appellant’s first assignment of error is overruled.

II.

{¶33} In his second assignment of error, appellant argues his felonious assault

conviction is against the weight of the evidence because he acted in self

- defense. We

disagree.

{¶34} Appellee's new burden of disproving the defendant's self

- defense claim

beyond a reasonable doubt is subject to a manifest

- weight review on appeal. State v.

Watson

, 5th Dist. Stark No. 2022CA00145, 2023

- Ohio

- 3137, ¶ 74, citing State v.

Messenger

, 171 Ohio St.3d 227, 2022

- Ohio

- 4562, 216 N.E.3d 653, ¶ 27. As to the weight

of the evidence, the issue is whether the jury created a manifest miscarriage of justice in

resolving conflicting evidence, even though the evidence of guilt was legally sufficient.

State v. Thompkins

, 78 Ohio St.3d 380, 386

– 387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds.

{¶35} “Weight of the evidence” addresses the evidence's effect of inducing belief.

State v. Thompkins

, supra, 78 Ohio St.3d at 386

- 387. When a court of appeals reverses

a judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder's

resolution of the conflicting testimony. Thompkins at 387, citing Tibbs v. Florida

, 457 U.S.

31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982)

.

{¶36} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “‘the jury clearly lostLicking County, Case No. 2023CA0060 10

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” Thompkins, supra

, 78 Ohio St.3d at 387, quoting State

v. Martin

, 20 Ohio App.3d 172, 175, 485 N.E.2d 71 (1st Dist. 1983).

{¶37} Appellant challenges his conviction upon one count of felonious assault

pursuant to R. C. 2903.11(A)(2), which provides that no person shall cause or attempt to

cause physical harm to another by means of a deadly weapon or dangerous ordnance.

When an accused asserts the defense of self

- defense, he does not seek to negate any

of the elements of the offense which appellee is required to prove. Self

- defense is an

admission of the prohibited conduct coupled with a claim that the surrounding facts or

circumstances exempt the accused from liability therefor

— “justification for admitted

conduct.” Watson

, supra, 2023

- Ohio

- 3137, ¶ 80, citing State v. Poole

, 33 Ohio St.2d 18,

294 N.E.2d 888 (1973).

{¶38} R.C. 2901.05(B)(1) provides as follows regarding self

- defense:

(B)(1) A person is allowed to act in self

- defense, defense of

another, or defense of that person's residence. 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,

defense of another, or defense of that person's residence, the

prosecution must prove beyond a reasonable doubt that the accused

person did not use the force in self

- defense, defense of another, or

defense of that person's residence, as the case may be.Licking County, Case No. 2023CA0060 11

{¶39} Under R.C. 2901.05(B)(1), therefore, there are two burdens. State v.

Davidson

- Dixon

, 8th Dist. Cuyahoga No. 109557, 2021

- Ohio

- 1485, ¶ 18. The defendant

has the initial burden of production, which is the burden of producing evidence “that tends

to support” that the defendant used the force in self

- defense. Messenger, supra, 171 Ohio

St.3d 227, 2022

- Ohio

- 4562, 216 N.E.3d 653, ¶ 21. The burden then shifts to appellee

under its burden of persuasion to prove beyond a reasonable doubt that the defendant

did not use the force in self

- defense. Id

. at ¶ 24. In other words, if the evidence tends to

support that the defendant acted in self

- defense, then the prosecution must prove beyond

a reasonable doubt that the defendant did not act in self

- defense. R.C. 2901.05(B)(1); Id

.

at ¶ 26. Appellee need only disprove one of the elements of self

- defense beyond a

reasonable doubt at trial to sustain its burden. State v. Jackson

, 22 Ohio St.3d 281, 284,

490 N.E.2d 893 (1986).

{¶40} In the instance case, at the close of appellant's jury trial, the trial court

provided the jury with an instruction regarding self

- defense, which means that the trial

court concluded that the record contained evidence that tends to support that appellant

used the force in self

- defense when he shot Sam Roe. R.C. 2901.05(B)(1); Messenger,

supra, ¶ 26. The guilty verdict means appellee met its burden of persuading the jury

beyond a reasonable doubt that appellant was not acting in self

- defense when he shot

Roe. Id

.

{¶41} When deadly force is used, the elements of self

- defense that appellee must

now disprove at least one of are: (1) appellant was not at fault in creating the situation

giving rise to the affray, (2) appellant had reasonable grounds to believe and an honest

belief even if mistaken that he was in imminent danger of death or great bodily harm andLicking County, Case No. 2023CA0060 12

that he did not use more force than necessary to defend against the attack, and (3)

appellant must not have violated any duty to retreat or avoid the danger. Watson

, supra,

2023

- Ohio

- 3137, ¶ 84, citing State v. Robbins

, 58 Ohio St.2d 74, 79, 388 N.E.2d 755

(1979).

{¶42} As to the third element of self

- defense, “a person has no duty to retreat

before using self

- defense * * * if that person is in a place in which the person lawfully has

a right to be.” R.C. 2901.09(B); Messenger, supra, ¶ 10. “Simply put, the new ‘stand your

ground’ law removes, in most cases, the duty to retreat before using self

- defense.”

Watson, supra, ¶ 85, citing State v. Robinette, 5th Dist. Stark No 2021 CA 00124, 2023

-

Ohio

- 5, 205 N.E.3d 633, ¶ 51.

{¶43} The second element of self

- defense “is a combined subjective and objective

test.” State v. Thomas

, 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997). The person's

belief must be objectively reasonable under the circumstances and he must subjectively

believe he needed to resort to force to defend himself or the other person. Id

. at 330

– 331.

{¶44} “The objective part of the test requires consideration of ‘whether,

considering all of the defendant's particular characteristics, knowledge, or lack of

knowledge, circumstances, history, and conditions at the time of the attack,’ a reasonable

person would believe that danger was imminent.” Watson

, supra, 2023

- Ohio

- 3137, ¶ 86,

internal citations omitted. The subjective part requires consideration of whether the

defendant himself actually believed that he was in imminent danger. Id

.

{¶45} Here, the evidence does not support appellant’s contention that he

possessed the necessary objective and subjective beliefs he was in imminent or

immediate danger of death or great bodily harm. He points to the threatening textsLicking County, Case No. 2023CA0060 13

exchanged with Sam Roe on the day preceding the shooting. Generally, neither words

alone nor fear itself will constitute evidence of serious provocation. “[W]ords alone will not

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

situations.” State v. Shane, 63 Ohio St.3d 630, 634

- 45, 590 N.E.2d 272 (1992). Fear

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.

{¶46} Appellant further asserts Roe “pushed him out of the way” and “slammed

into his motorcycle.” Brief, 7. A victim's simple pushing or punching does not constitute

sufficient provocation to incite the use of deadly force in most situations. See, State v.

Koballa, 8th Dist. Cuyahoga No. 82013, 2003

- Ohio

- 3535 (concluding that sufficient

provocation did not exist when the victim grabbed the defendant by the testicles and the

arm); State v. Poe, 4th Dist. Jackson No. 00CA9, 2000

- Ohio

- 1966 (concluding that the

victim's conduct in approaching the defendant with a hammer and stating “come on” did

not constitute sufficient provocation); State v. Pack

, 4th Dist. Pike No. 93CA525, 1994

WL 274429 (June 20, 1994) (“We find that a mere shove and a swing (which appellant

by his own testimony ducked) are insufficient as a matter of law to constitute serious

provocation reasonably sufficient to incite or arouse appellant into using deadly force.”).

{¶47} Implicit in the second element of self

- defense is the requirement that the

degree of force used was warranted under the circumstances and proportionate to the

perceived threat. Watson

, supra, 2023

- Ohio

- 3137, ¶ 88, citing State v. Kean

, 10th Dist.

Franklin No. 17AP

- 427, 2019

- Ohio

- 1171, ¶ 58. As to the degree of force that is permitted,

the defendant is privileged to use the amount of force that is reasonably necessary to

repel the attack. State v. Williford

, 49 Ohio St. 3d 247, 551 N.E.2d 1279 (1990).Licking County, Case No. 2023CA0060 14

{¶48} Appellant demonstrated only verbal threats made by Roe prior to

appellant’s use of deadly force. Witness 1 testified Roe was standing near appellant

smoking a cigarette, and when he turned sideways, appellant shot him. Witness 1 did

not observed any aggression from Roe toward appellant. Roe was not armed; although

he had a sheathed knife in a necklace around his neck, he never brandished it and the

knife was removed from the sheath by police.

{¶49} If appellant's fear was only of physical harm, he was allowed by law only to

use an amount of force that was warranted under the circumstances and proportionate to

the perceived threat. Watson

, supra, 2023

- Ohio

- 3137, ¶ 89. Appellant's decision to shoot

Roe in the back was deadly force and was disproportionate to the threat he faced under

these circumstances. Id.

{¶50} While appellant was free to argue that he was justified in using deadly force,

and the trial court instructed the jury accordingly, the jury may have reasonably chosen

to reject his argument. Upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which appellant was convicted. We further find there is substantial evidence

proving beyond a reasonable doubt that appellant was not acting in self

- defense when he

shot Roe and the degree of force used by appellant was unwarranted under the

circumstances and disproportionate to the perceived threat. Therefore, in light of the

evidence discussed above, as well as the record in its entirety, we do not find the jury

clearly lost its way in finding appellant guilty of felonious assault and that appellant was

not acting in self

- defense. We do not find that the jury disregarded or overlooked

compelling evidence that weighed against conviction.Licking County, Case No. 2023CA0060 15

{¶51} Appellant’s second assignment of error is overruled.

III.

{¶52} In his third assignment of error, appellant argues his indefinite sentence

violates the jury trial guarantee, the doctrine of separation of powers, and due process

principles of the federal and state constitutions. We disagree.

{¶53} In his summary argument, appellant acknowledges we have repeatedly

rejected his constitutional challenges to indefinite sentencing (see, e.g., State v. Ratliff

,

5th Dist. No. 21CA000016, 2022

- Ohio

- 1372, 190 N.E.3d 684, appeal allowed, 167 Ohio

St.3d 1481, 2022

- Ohio

- 2765, 192 N.E.3d 516, and affirmed sub nom. In re Cases Held

for State v. Hacker & State

, 2023

- Ohio

- 3863). Appellant further acknowledges he raised

this summary assignment of error in light of the Ohio Supreme Court’s consideration of

Hacker

, supra.

{¶54} His arguments have now been weighed and rejected by the Ohio Supreme

Court. See, State v. Hacker

, 173 Ohio St.3d 219, 2023

- Ohio

- 2535, 229 N.E.3d 38.

{¶55} Appellant’s third assignment of error is therefore overruled.Licking County, Case No. 2023CA0060 16

CONCLUSION

{¶56} Appellant’s three assignments of error are overruled and the judgment of

the Licking County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Gwin, J. and

Wise, J., concur.