[Cite as State v. Henderson, 2019-Ohio-4581.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108127 

 v. : 

 

EDDIE J. HENDERSON, III, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 7, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-18-627845-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Frank Romeo Zeleznikar and Nathaniel 

Tosi, Assistant Prosecuting Attorneys, for appellee. 

Mark A. Stanton, Cuyahoga County Public Defender, and 

Francis Cavallo, Assistant Public Defender, for appellant.

RAYMOND C. HEADEN, J.: 

Defendant-appellant Eddie Henderson, III (“Henderson”), appeals 

from his conviction for felonious assault, arguing that his conviction was against the 

manifest weight of the evidence. For the reasons that follow, we affirm. 
Procedural and Substantive History 

The events underlying this case took place on April 12, 2018. That 

morning, victim Lorenzo Kane (“Kane”) had an appointment to get a haircut with 

his barber, Henderson, at the Clips of Excellence barber shop in Cleveland Heights, 

Ohio. Kane had been a regular customer of Henderson’s for several months. Kane 

arrived early to his appointment. Initially, Kane waited in his car, which was parked 

in the parking lot behind the shop. At one point, Kane decided to wait inside the 

shop. 

While he waited, Kane was singing to himself. Eventually, Henderson 

arrived through the shop’s back door. Kane asked Henderson why he was late. 

According to Kane, he was upset but relatively calm. According to Henderson and 

another barber, Kane was almost immediately aggressive with Henderson and 

threatened him physically. Henderson decided to remove himself from the 

situation, telling Kane that one of the other barbers could cut his hair. Henderson 

went outside and opened the front passenger door of his car. Kane followed 

Henderson outside. According to Kane, Henderson yelled at him, continuing their 

disagreement, so he walked over to Henderson’s car. According to Henderson, Kane 

followed him, got too close to him, and did not back off enough when Henderson 

asked him to do so. As a result of that, according to Henderson, he shot Kane. The 

first shot struck Kane’s leg, causing him to collapse to the ground between two other 

parked vehicles. The next shot hit Kane in his torso. Kane brought his right hand 

up to protect his face, and the third shot went through his hand and grazed his jaw. 
Henderson immediately went back inside the shop, told another 

barber to call 911, and set his gun down on a table between two barber stations. 

Officers arrived, transported Kane to the hospital to be treated, and arrested 

Henderson, who immediately identified himself as the shooter and stated that he 

fired his gun in self-defense. 

Henderson was charged with one count of attempted murder in 

violation of R.C. 2923.02 and 2903.02(A), one count of felonious assault in violation 

of R.C. 2903.11(A)(1), and one count of felonious assault in violation of 

R.C. 2903.11(A)(2). Each of the three counts carried one- and three-year firearm 

specifications. 

A jury trial began on November 7, 2018. The state called Kane, 

another barber, another customer, and several law enforcement officers as 

witnesses. The state also introduced surveillance footage showing the first part of 

the shooting. Following the state’s case, Henderson made a Crim.R. 29 motion, that 

the court denied. Henderson then called a different barber, and Henderson testified 

on his own behalf. At the close of his case, Henderson renewed his Crim.R. 29 

motion, which the court again denied. 

On November 15, 2018, the jury returned a verdict of not guilty as to 

attempted murder, not guilty as to felonious assault alleging serious physical harm, 

and guilty as to felonious assault by way of a deadly weapon. 
On December 17, 2018, the court sentenced Henderson to three years 

on the felonious assault charge, to be served consecutively to three years for the 

firearm specification, for an aggregate term of six years. 

Henderson appeals, presenting a single assignment of error for our 

review. 

Law and Analysis 

In Henderson’s sole assignment of error, he argues that his conviction 

for felonious assault is against the manifest weight of the evidence. Specifically, he 

asserts that his conviction should be overturned because the jury implicitly accepted 

his affirmative defense of self-defense for two counts while rejecting it for the third 

count, despite the evidence supporting all three counts being identical. Further, he 

argues that the jury lost its way by finding him guilty despite his clearly established 

case of self-defense. 

A manifest weight challenge attacks the quality of the evidence and 

questions whether the state met its burden of persuasion at trial. State v. Hill, 8th 

Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. 

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When reviewing a manifest weight 

challenge, a court reviews the entire record, weighing all evidence and reasonable 

inferences and considering the credibility of the witnesses, to determine whether the 

trier of fact clearly lost its way and created such a manifest miscarriage of justice 

that the conviction must be reversed. State v. Thompkins, 678 Ohio St.3d 380, 387, 

678 N.E.2d 541 (1997). 
For Henderson to successfully assert that he acted in self-defense, he 

had the burden to show that (1) he was not at fault in creating the violent situation; 

(2) he had a bona fide belief that he was in imminent danger of great bodily harm; 

and (3) the only way of escape was to react by means of force.1 State v. Thomas, 77 

Ohio St.3d 323, 673 N.E.2d 1339 (1997). After a thorough review of the record, we 

do not find that the jury lost its way. 

The parties disagree as to who created the situation leading to the 

shooting. Henderson maintains that Kane was acting erratically and followed him 

outside, threatening physical violence. Although trial testimony showed that Kane 

did threaten Henderson inside the barber shop, and the surveillance footage clearly 

shows Kane exit the barber shop after Henderson, there was no evidence that the 

altercation between the men was violent until the moment Henderson pointed his 

gun at Kane. In fact, the surveillance footage shows Kane taking steps backward 

away from Henderson when Henderson pointed his gun at Kane. Henderson 

himself admitted that Kane stepped back, but asserted that Kane was still too close 

to him and he still felt scared and threatened. 

 1 On March 28, 2019 (several months after Henderson’s trial), the Ohio legislature 

amended R.C. 2901.05. The statute now provides that “[i]f, 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 selfdefense, 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 selfdefense, defense of another, or defense of that person’s residence, as the case may be.” 

R.C. 2901.05(B)(1). Henderson acknowledges this change, but does not assert that the 

current version of the statute applies retroactively to him. 
Henderson was also required to show that he had a bona fide belief 

that he was in imminent danger of great physical harm. There was no evidence 

presented to show that Kane had a weapon on him, or that he actually tried to initiate 

a physical fight with Henderson. Even if Henderson had a good faith subjective 

belief that he was in imminent danger of great physical harm, he cannot establish 

the other two requisite factors. 

Henderson has not established that he was unable to retreat, and that 

his only way of escape was to react with force. While Henderson did attempt to leave 

the situation by leaving the barber shop, he was unable to articulate why he did not 

get in his car and drive away. He testified that he went to his passenger seat to get 

his wallet out of the glove box, and that Kane followed him too closely for him to 

drive away. A review of the record and the surveillance footage undermines 

Henderson’s testimony as to this point. 

Finally, even if Henderson had established the foregoing factors to 

show that self-defense was necessary, he is unable to justify his use of deadly force 

in self-defense. For a defendant to use deadly force in self-defense, he must have a 

bona fide belief of imminent danger or death and that the only means of escape is 

the use of such deadly force. State v. Warmus, 197 Ohio App.3d 383, 967 N.E.2d 

1223 (8th Dist.2011.). Again, there is no evidence that Kane was armed. Kane tried 

to run away from Henderson, but the first gunshot wound prevented him from doing 

so. Even if Henderson could justify his first shot, there is no evidence in the record 
that would support his decision to fire two subsequent shots, including one shot at 

the victim’s head. 

Henderson also argues that his conviction was against the manifest 

weight of the evidence because the not guilty verdicts on two counts were 

inconsistent with the guilty verdict on one count of felonious assault. Henderson 

asserts that these verdicts show that the jury accepted a singular affirmative defense 

for attempted murder and felonious assault causing serious physical harm, while 

rejecting that affirmative defense for felonious assault by way of a deadly weapon. 

Henderson argues that this is problematic because the evidence supporting all three 

counts was identical. 

Ohio law is well-settled that inconsistency in a verdict does not arise 

out of inconsistent responses to different counts; it only arises out of inconsistent 

responses to the same count. State v. Brown, 12 Ohio St.3d 147, 147, 465 N.E.2d 

889 (1984). Further, while the same underlying conduct resulted in each of the 

three counts, each count had distinct elements unrelated to the other offenses. For 

example, felonious assault in violation of R.C. 2903.11(A)(1) provides that no person 

shall knowingly cause serious physical harm to another or to another’s unborn. 

Felonious assault in violation of R.C. 2903.11(A)(2) provides that no person shall 

knowingly cause or attempt to cause physical harm to another or to another’s 

unborn by means of a deadly weapon or dangerous ordnance. For a conviction 

under subsection (A)(1), the state must prove beyond a reasonable doubt that the 

defendant knowingly caused serious physical harm. A showing of serious physical 
harm is not necessary under subsection (A)(2), although that subsection requires 

the state to prove beyond a reasonable doubt that the defendant used a deadly 

weapon or dangerous ordnance. Therefore, although Henderson asserted a singular 

affirmative defense with respect to all three counts, his assumption that the jury 

must have accepted his affirmative defense for two counts is incorrect. 

In light of the foregoing, we cannot conclude that the jury lost its way 

and created a manifest miscarriage of justice. Therefore, we overrule Henderson’s 

assignment of error. 

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. 

 

RAYMOND C. HEADEN, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

SEAN C. GALLAGHER, J., CONCUR