[Cite as State v. Scales, 2024-Ohio-2171.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 113229

v. :

COURTLAND SCALES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 6, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-23-682385-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kristin M. Karkutt, Assistant Prosecuting 

Attorney, for appellee. 

Maxwell Martin, for appellant. 

KATHLEEN ANN KEOUGH, A.J.:

Defendant-appellant, Courtland Scales, appeals his convictions for 

the murder of D’Andre Rhone and attempted murder of Donnie Walker and Mario 

Gay. For the reasons that follow, we affirm his convictions.
I. Procedural Background

In May 2023, the state charged Scales in a 13-count indictment 

accusing him of aggravated murder (Count 1); two counts of murder (Counts 2 and 

3); two counts of attempted murder (Counts 6 and 7); four counts of felonious 

assault (Counts 4, 5, 8-11); one count of discharge of a firearm on or near prohibited 

premises (Count 12); and one count of having weapons while under disability (Count 

13). Except for Count 13, each count contained one-year, 18-month, three-year, and 

54-month firearm specifications. Prior to trial, Scales waived his right to a jury trial 

on Count 13 and all 18- and 54-month firearm specifications. The state tried the 

remaining counts and specifications to a jury. 

II. Jury Trial

On October 29, 2021, at approximately 10:40 p.m., an altercation 

ensued at Rollhouse Entertainment on Bainbridge Road in Solon. The jury watched 

surveillance video taken from inside the bar that recorded the events as they 

unfolded. 

Latonya Jonson (“Laytona”) testified that she was at Rollhouse 

celebrating her cousin’s birthday when she and Cherell Jones (“Cherell”) started 

talking to two unknown males, who identified themselves as “Delante” and “Boo 

Man,” later identified as Scales and Donnie Walker (“Walker”) — the two are 

cousins. She testified that she and Scales were having a drink, flirting, talking, and 

hanging out until later that evening when Scales “choked me,” which caused her 

cousin, Terrill Byrd (“Byrd”), to intervene. (Tr. 357-358.) Latonya stated that a fight 
broke out and as a result, she left the bar and went to Unkut Lounge in Garfield 

Heights with her friends. 

Byrd testified that he and his friends, including Brandon (whose 

surname was unknown), Latonya (his cousin), Antoinette Byrd (his sister), D’Andre 

Rhone (“Rhone”), and Cherell (his sister-in-law) were celebrating his birthday at 

Rollhouse. He stated that during the course of the evening, he noticed an unknown 

male (Scales) holding Latonya by her neck. Byrd testified that he approached Scales

and told him, “hey, this is my cousin. You can’t be putting your hands on her like 

that.” (Tr. 682.) According to Byrd, Scales responded that Latonya was his “bitch,” 

which prompted Latonya to correct him that “boy, no, I am not.” (Tr. id). Byrd 

stated that Brandon then said something to Scales that caused Scales to get “just real 

aggressive, cussing, loud talking.” (Tr. 683.) He testified that as he and Brandon 

laughed, Scales asked, “[W]hat the F you laughing at? Then he took a swing at 

[Brandon’s] glasses.” Id. This escalated into a physical altercation, with Scales 

punching an employee of Rollhouse. Both groups were asked to leave the 

establishment. Byrd and his friends left and went to Unkut Lounge. 

Later that same night, around 11:45 p.m., a second altercation 

occurred outside Unkut Lounge on Turney Road in Garfield Heights. The jury 

watched two surveillance videos taken from outside the bar that recorded the events 

as they unfolded.

In state’s exhibit No. 2, the video showed a group of people standing 

on the sidewalk outside Unkut Lounge. The group consisted of Byrd, Rhone, 
Brandon, Mario Gay (“Gay”), and Walker; both Latonya and Cherrell walked by and 

entered the bar. According to Byrd, Walker approached him on the sidewalk and

said to him, “Bro, not letting it go. * * * Bro, not letting it go.” (Tr. 688-689.) He 

said that he told Walker it was “fine [because] we about reading to leave anyway. So 

we’ll be gone by the time — at least I’m thinking we’ll be gone by the time he get 

here.” (Tr. 689). Unfortunately, Byrd and his friends were not gone when Scales 

arrived.

In the video, Walker is seen using his cell phone, and cell phone 

records confirmed that he was communicating with Scales. (Tr. 860.) The group, 

including Walker, had moved over to the other side of the bar entrance, where an 

SUV was parked in a driveway, but obstructing the sidewalk. 

Scales, who was wearing a dark sweatshirt with the hood up on his 

head and a face mask covering his nose and mouth, then walked across the street. 

He approached the group of men standing up against the SUV, and Walker 

approached him. Scales pushed Walker aside, came around from behind the group, 

and punched Byrd on the left side of the head. Brandon then punched Scales, 

causing him to fall to the ground. The group attempted to diffuse the situation and 

separate the men because Scales got up from the ground in a fighting stance with his 

fists raised. 

Gay, who was working security next door and wearing a shirt with the 

word “SECURITY” across the front, came over to the scene and adjusted his firearm 

located on the right side of his hip. He did not draw his firearm, but rather backed 
away and around the backend of the SUV with his hands up in the air. Scales then 

took a few steps back, raised his sweatshirt, retrieved his firearm from his pants, and 

immediately began shooting. 

The video showed Scales pointing and firing his gun directly toward 

Brandon and Walker, with Walker getting shot in the abdomen. He then pointed 

the gun and began rapidly firing toward the right where Rhone and Gay were

attempting to escape. Rhone was struck in the neck, and Gay was shot in the left 

elbow and abdomen. As Scales backpedaled across the street, he continued spraying

the crowd with gun fire, aiming back and forth from his right to his left until he 

reached the center line of the street, where he turned and ran away into the parking 

lot. As a result of Scales’s shooting, Rhone died on November 7, 2021, and Walker 

and Gay were seriously injured, both requiring surgery. 

Officer Patrick Hace of the Garfield Heights Police Department

testified that fourteen 9 mm Luger shell casings were recovered from the scene and 

ballistic evidence revealed that the casings were all fired from the same weapon —

possibly a later-generation Glock or a Smith & Wesson M&P firearm. During a 

search of Scales’s residence, officers discovered two empty gun boxes — one of which 

was for a Glock 17. Inside the box was a loaded 9 mm magazine clip that contained 

ammunition made by the same manufacturer as one of the spent shell casings from 

the scene at Unkut Lounge. Officers also discovered a brown paper bag containing 

a Glock and a Luger 9 mm caliber magazine. The murder weapon, however, was 

never recovered. 
Following the state’s case, the trial court granted Scales’s Crim.R. 29 

motion for judgment of acquittal on Count 1, finding that the state failed to present 

sufficient evidence to support a finding of guilt for aggravated murder. 

Scales did not call any witnesses in his defense but offered four 

exhibits into evidence. 

After the court charged the jury and the jury started deliberating, the 

trial court conducted a bench trial on Count 13 and the 18- and 54-month firearm 

specifications. The state presented testimony and evidence that Scales had prior 

felony convictions that included firearm specifications.

III. The Verdict and Sentencing

The jury found Scales guilty of all remaining counts and the attendant

one- and three-year firearm specifications. The trial court also returned guilty 

verdicts on Count 13 and all 18- and 54-month firearm specifications. 

After merging allied offenses, the state elected that the court sentence 

Scales on Counts 2, 6, 7, 12, and 13. The court imposed a sentence of 15 years to life 

in prison on Count 2, concurrent with 11 years on Count 6, 11 years on Count 7, 8 

years on Count 12, and 3 years on Count 13. The court also merged all firearm 

specifications under each relevant count with the 54-month firearm specification 

and ordered that Scales serve four 54-month consecutive sentences (18 years) for 

the firearm specifications, prior and consecutive to Count 2, for a total aggregate 

sentence of 33 years to life in prison. 

This appeal followed.
IV. Appeal

A. Sufficiency of the Evidence 

The test for sufficiency requires a determination of whether the 

prosecution met its burden of production at trial. State v. Cottingham, 8th Dist. 

Cuyahoga No. 109100, 2020-Ohio-4220, ¶ 32. An appellate court’s function when 

reviewing the sufficiency of the evidence to support a criminal conviction is to 

examine the evidence admitted at trial to determine whether such evidence, if 

believed, would convince the average mind of the defendant’s guilt beyond a 

reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 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. Id.

In his second assignment of error, Scales contends that the verdicts 

were not supported by sufficient evidence because the state “failed to produce 

sufficient evidence that he purposely caused the death of Rhone or acted knowingly 

regarding any counts related to felonious assault or felonious assault as the 

underlying offense.”1 In support, he relies on the testimony of Courtney King, 

security for Unkut Lounge, who testified that the 13-15 shots were not directed 

toward anyone but that they were going “everywhere.” (Tr. 461.) According to 

1 Scales also challenges the jury’s finding that he did not act in self-defense by 

incorporating the arguments raised in his second assignment of error challenging the 

weight of the evidence. As will be discussed, whether the state satisfied its burden of proof 

regarding self-defense is not appropriate in a sufficiency challenge. 
Scales, this testimony proved that he was merely firing his gun “in an attempt to get 

out of what he perceived to be a dangerous situation” after he saw Gay touch his own 

firearm, and thus was “not using his firearm with an awareness that people around 

him would be shot and thus injured or killed.” This argument is without merit. 

In Count 2, Scales was convicted of murder, in violation of R.C. 

2903.02(A), which provided that he “purposely caused the death” of Rhone. In 

Counts 6 and 7 (those counts that survived merger), he was convicted of attempted 

murder, in violation of R.C. 2923.02/2903.02, which provided that Scales 

“purposely attempted to cause the death” of Walker and Gay. “A person acts 

purposely when it is the person’s specific intention to cause a certain result, or, when 

the gist of the offense is a prohibition against conduct of a certain nature, regardless 

of what the offender intends to accomplish thereby, it is the offender’s specific 

intention to engage in conduct of that nature.” R.C. 2901.22(A).2

“A person is presumed to intend the natural, reasonable and 

probable consequences of his voluntary acts.” State v. Carter, 72 Ohio St.3d 545, 

554, 651 N.E.2d 965 (1995). See also State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 

2 All of Scales’s felonious assault offenses were merged into Counts 2, 6, and 7. 

Accordingly, we need not address Scales’s argument as it relates to the felonious assault 

findings of guilt. See State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 

316, ¶ 25 (considering the sufficiency of the evidence challenge only on those convictions 

surviving merger), citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 

182, ¶ 24 (“conviction” consists of a finding of guilt and a sentence) and State v. Myers, 

154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 138 (merger of kidnapping count 

with aggravated-robbery and aggravated-burglary counts moots sufficiency-of-theevidence claim regarding kidnapping count).
517 (1954), paragraph five of the syllabus. “‘[A] firearm is an inherently dangerous 

instrumentality, the use of which is likely to produce death.’” State v. Seiber, 56 

Ohio St.3d 4, 14, 564 N.E.2d 408 (1990), quoting State v. Widner, 69 Ohio St.2d 

267, 270, 431 N.E.2d 1025 (1982). When a person fires a gun into a group of people, 

one can infer intent to cause death. State v. Hubbard, 10th Dist. Franklin No. 11AP945, 2013-Ohio-2735, ¶ 23-24, citing State v. Turner, 10th Dist. Franklin No. 97AP709, 1997 Ohio App. LEXIS 6021 (Dec. 30, 1997).

Courts, including this court, have previously held that evidence that 

the defendant shot a gun into a crowd of people is sufficient to establish the 

purposefulness element of R.C. 2903.02(A). State v. Kimmie, 8th Dist. Cuyahoga 

No. 99236, 2013-Ohio-4034, citing State v. Williamson, 8th Dist. Cuyahoga No. 

95732, 2011-Ohio-4095, ¶ 19. See also State v. Hill, 8th Dist. Cuyahoga No. 87645, 

2006-Ohio-6425, ¶ 16 (finding the defendant acted purposely because “[w]hen a 

person shoots into a retreating crowd of people, it can be inferred that he intended 

to cause a certain result”); State v. Brown, 8th Dist. Cuyahoga No. 68761, 1996 Ohio 

App. LEXIS 801 (Feb. 29, 1996) (finding sufficient evidence of intent to kill when 

defendant fired a gun from an automobile at a group of individuals because “[t]he 

act of pointing a firearm and firing it in the direction of another human being is an 

act with death as a natural and probable consequence”).

Construing the evidence in favor of the state, we conclude that the 

evidence was sufficient to allow a rational trier of fact to find that Scales acted with 

a purposeful intention of causing or attempting to cause death when he aimed and 
shot in the direction of individual people and then repeatedly fired his gun in a backand-forth manner into the crowd of people. Because he acted purposefully, the state 

presented sufficient evidence supporting Scales’s convictions for murder and 

attempted murder. Accordingly, his second assignment of error is overruled.

B. Manifest Weight of the Evidence

Scales contends in his first assignment of error that his convictions 

are against the manifest weight of the evidence because the evidence demonstrated

that he acted in self-defense. 

The state’s duty to prove beyond a reasonable doubt that a defendant 

did not act in self-defense is subject to a manifest weight of the evidence review. 

State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, ¶ 27. 

“Weight of the evidence concerns ‘the inclination of the greater amount of credible 

evidence, offered in a trial, to support one side of the issue rather than the 

other. * * * Weight is not a question of mathematics, but depends on its effect in 

inducing belief.’” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 

N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541. In a 

manifest-weight analysis, the reviewing court sits as a “thirteenth juror” and reviews 

“‘the entire record, weighs the evidence and all reasonable inferences, considers the 

credibility of witnesses, 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 id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 
(1st Dist.1983). The discretionary power to grant a new trial should be exercised 

only in exceptional cases where the evidence weighs heavily against the conviction. 

Thompkins at 386.

A trier of fact is free to believe all, some, or none of the testimony of 

each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-

Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528, 

¶ 100. Thus, “[a] conviction is not against the manifest weight of the evidence simply 

because the jury believed the testimony of the state’s witnesses and disbelieved the 

defendant,” id., or the defendant’s theory of the case. 

During the trial, Scales’s counsel requested a deadly force self-defense 

jury instruction. Over objection, the trial court provided the instruction. According 

to Scales, he acted in self-defense because Gay reached for his firearm, causing 

Scales to draw his own firearm from his waistband and shoot at the crowd of people. 

The weight of the evidence does not support his argument. 

“Self-defense claims are generally an issue of credibility.” State v. 

Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037, ¶ 13. “Whether the state 

disproves any of the elements of self-defense is left to the trier of fact to decide.”

State v. Davidson-Dixon, 2021-Ohio-1485, 170 N.E.3d 557, ¶ 36 (8th Dist.), citing 

State v. Morton, 147 Ohio App.3d 43, 2002-Ohio-813, 768 N.E.2d 730, ¶ 52 (8th 

Dist.). The burden of proof lies with the state to prove beyond a reasonable doubt 

that the accused did not use the force in self-defense if the evidence presented at 
trial tends to support a self-defense claim. R.C. 2901.05(B)(1). State v. Gardner, 

8th Dist. Cuyahoga No. 110606, 2022-Ohio-381, ¶ 24

In order to establish the inapplicability of self-defense, the state must 

demonstrate (1) that the defendant was at fault in creating the situation giving rise 

to the affray; (2) that the defendant 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 (3) that the 

defendant violated a duty to retreat or avoid the danger. Walker at ¶ 14, citing State 

v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 46 (8th Dist.). Because of the 

cumulative nature of the elements of self-defense, “the state need only disprove one 

of the elements of self-defense beyond a reasonable doubt at trial.” Id. at ¶ 13. 

We initially note that the jury observed the video of the shooting, 

which permitted it to draw its own conclusions about what occurred that evening, 

including whether (1) Scales caused the situation by purposely approaching the 

group and punching Byrd in the back of the head; (2) Gay reached for his firearm,

thereby causing Scales to believe he was in imminent danger of death or great bodily 

harm; and (3) Scales acted in self-defense by spraying the crowd with bullets rather 

than retreating without using deadly force. 

This court’s review of the evidence, sitting as the thirteenth juror, 

reveals that Scales, who was armed with a firearm, caused the situation by 

approaching the group of men with whom he just had an altercation at the Rollhouse 

bar. He then escalated the situation by punching Byrd in the side of the head. 
Although Scales was also punched, which caused him to fall to the ground, he stood 

up in a fighting stance with his fists raised. Even if this court were to believe that 

Gay was reaching for his firearm, rather than just merely adjusting it, the video was 

uncontroverted that Gay backed away from Scales with his empty hands raised and 

moved around the backend of the parked vehicle. Scales, however, stepped back, 

drew his firearm from his waistband, pointed his gun directly at individuals in the 

crowd, started shooting, and continued shooting 13 more times. 

Having carefully reviewed the entirety of the evidence presented at 

trial, we cannot say the trier of fact lost its way or created a manifest miscarriage of 

justice in finding Scales guilty of murder and attempted murder, despite his claim 

of self-defense. This is not the exceptional case where the evidence weighs heavily 

against Scales’s convictions. His first assignment of error is overruled. 

C. Effective Assistance of Counsel

During trial, the state asked Gay basic questions about his age and 

employment. The state asked him what he did for work, and then asked him, “Is 

there a reason why you’re reluctant to tell us where you [cut hair], sir?” Gay 

responded, “On the grounds of intimidation.” (Tr. 509.) Defense counsel 

immediately objected and a side-bar conversation occurred where counsel 

contended that Gay’s response was a “mischaracterization. It’s highly improper. 

He’s making allegations of intimidation.” (Tr. 510.) The stated responded that Gay 

was a “shooting victim. Generally, shooting victims are afraid to come to court to 

testify. While he may have used the word ‘intimidation,’ he hasn’t accused anyone 
or the defendant, but that’s clearly a fear of things. He doesn’t want to relay that 

information in fear of retaliation of coming to court to testify.” (Tr. 510-511.) The 

court agreed with the state, finding, “[T]here’s a difference at least in my opinion of 

being afraid versus you’ve been intimidated in some way.” (Tr. 511-512.) The court 

overruled counsel’s objection but stated that she would afford counsel some leeway 

during cross-examination to address whether Scales had in fact “intimidated” Gay. 

The judge cautioned, however, that “if counsel’s concern is any negative implication 

on his client addressing it on cross, it’s only going to draw attention to that fact. It’s 

not going to alleviate what you perceive to be any unfair prejudice against your 

client.” (Tr. 511-512.) Defense counsel did not question Gay during crossexamination about his usage of the word “intimidation.” 

In his third assignment of error, Scales contends that his trial counsel 

was ineffective for failing to move for a mistrial or request a curative instruction after 

the trial court allowed a witness to improperly testify that he was intimated by 

appellant. He contends that Gay’s statement, “on grounds of intimidation,” was 

improper Evid.R. 404(B) evidence and thus counsel should have requested the trial 

court provide a curative instruction to the jury that Scales had not been charged with 

intimidation, that no evidence of intimidation was presented, and that the jury 

should not make any inference in that regard. 

Reversal of a conviction for ineffective assistance of counsel requires 

that the defendant show that counsel’s performance was deficient and that the 

deficient performance prejudiced the defense so as to deprive the defendant of a fair 
trial. State v. Nieves, 8th Dist. Cuyahoga No. 111161, 2022-Ohio-3040, ¶ 27, citing 

State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 109. 

Deficient performance occurs when counsel’s performance falls below an objective 

standard of reasonable representation. State v. Bell, 8th Dist. Cuyahoga No. 

105000, 2017-Ohio-7168, ¶ 23. Prejudice is found when “there is a reasonable 

probability that but for counsel’s unprofessional errors, the result of the proceedings 

would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984).

A defendant has the burden of proving ineffective assistance of 

counsel and there is a strong presumption that a properly licensed trial counsel 

rendered adequate assistance. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 

1128 (1985). As the Strickland Court stated, a reviewing 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.” Strickland at 689; see also State v. Hamblin, 37 Ohio St.3d 153, 524 

N.E.2d 476 (1988). A defendant’s failure to satisfy one part of the Strickland test 

negates a court’s need to consider the other. State v. Hurst, 12th Dist. Brown No. 

CA2014-02-004, 2014-Ohio-4890, ¶ 7. In evaluating a claim of ineffective 

assistance of counsel, a court must be mindful that there are countless ways for an 

attorney to provide effective assistance in a given case, and it must give great 

deference to counsel’s performance. Strickland at 689. 
Scales has failed to demonstrate either deficient performance or 

prejudice. Counsel’s decision not to request a curative instruction falls within the 

ambit of trial strategy, and debatable trial tactics and strategies do not constitute 

ineffective assistance of trial counsel. See, e.g., State v. Lawson, 64 Ohio St.3d 336, 

341, 595 N.E.2d 902 (1992); State v. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, 

818 N.E.2d 229, ¶ 146. Trial counsel may decide to avoid seeking a curative 

instruction regarding potentially prejudicial evidence for tactical reasons because 

the instruction might call more attention to the evidence and reinforce jurors’

prejudice. See State v. Barnes, 8th Dist. Cuyahoga No. 92512, 2010-Ohio-1659, 

¶ 69, citing Strongsville v. Sperk, 8th Dist. Cuyahoga No. 91799, 2009-Ohio-1615, 

¶ 38. Because a reasonable justification existed for not seeking an instruction — it 

would draw more attention to the issue — we do not find that Scales’s counsel was 

ineffective in failing to ask for a curative instruction.

We also find that Scales’s counsel was not ineffective for failing to ask 

for a mistrial because Scales’s right to a fair trial had not been compromised. An 

appellant alleging ineffective assistance of counsel because his attorney failed to 

move for a mistrial must establish that the trial court probably would have or should 

have declared a mistrial. State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (1990), 

citing State v. Scott, 26 Ohio St.3d 92, 95-96, 497 N.E.2d 55 (1986). A mistrial 

should not be ordered in a criminal case merely because some error or irregularity 

has occurred. State v. Jones, 10th Dist. Franklin No. 12AP-1091, 2014-Ohio-674, 

¶ 19, citing State v. Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490 (2d Dist.1988). 
It is only appropriate when the substantial rights of the accused or prosecution are 

adversely affected and a fair trial is no longer possible. Illinois v. Somerville, 410 

U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); State v. Franklin, 62 Ohio 

St.3d 118, 127, 580 N.E.2d 1 (1991).

Based on the record before this court, there is no evidence that the 

trial court probably would have or should have declared a mistrial. The trial court 

noted that there was a difference in “being afraid versus you’ve been intimidated in 

some way.” By overruling the objection, the court concluded that Gay was merely 

afraid to disclose where he worked. As the state pointed out, shooting victims can 

be fearful to testify, and after reviewing Gay’s entire testimony, we find that he was 

not accusing Gay of intimidation but merely expressing his concern about testifying. 

Accordingly, counsel was not ineffective for failing to request a mistrial on this 

ground.

Even if counsel should have asked for a curative instruction or moved 

for a mistrial, Scales has not demonstrated prejudice such that a reasonable 

probability existed that but for counsel’s unprofessional errors, the result of the 

proceedings would have been different. The video evidence was uncontroverted that

Scales caused the affray and then shot at a group of people, killing one and wounding 

two others. Gay’s limited statement was not so unfairly prejudicial to Scales to 

warrant reversal and a new trial. The third assignment of error is overruled.
D. Jury Instruction

At the close of testimony, defense counsel requested a jury instruction 

on the offenses of voluntary manslaughter and aggravated assault as inferior 

offenses of murder and felonious assault. The trial court concluded that based on 

its review of the relevant case law and the two-part test of serious provocation, no 

evidence was presented regarding Scales’s state of mind to satisfy the second prong, 

which requires a subjective determination of whether Scales acted under the 

influence of sudden passion or fit of rage. Accordingly, the trial court denied the 

request to instruct the jury on those inferior offenses. 

Thereafter, defense counsel requested that the trial court instruct the 

jury on self-defense, use of deadly force. Following extensive arguments from both 

the state and the defense, including citation to relevant case law, the court granted 

the request, finding that based on the conflicting evidence of whether Gay was 

reaching for his firearm or merely adjusting it, Scales satisfied his threshold burden 

to warrant a self-defense instruction. 

Scales contends in his fourth assignment of error that the trial court 

erred by failing to instruct the jury on the offenses of voluntary manslaughter and 

aggravated assault as inferior offenses of murder and felonious assault, respectively.

When reviewing a refusal to give a requested jury instruction, an 

appellate court considers whether the trial court’s refusal was an abuse of discretion 

under the facts and circumstances of the case. State v. Wolons, 44 Ohio St.3d 64, 

68, 541 N.E.2d 443 (1989). Trial courts should ordinarily give a requested jury 
instruction if it is a correct statement of the law, it is applicable to the facts of the 

case, and reasonable minds might reach the conclusion sought by the requested 

instruction. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, at ¶ 42, citing State v. 

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240.

This court has held that “‘in most cases, jury instructions on both selfdefense and serious provocation are inconsistent.’” State v. Bouie, 8th Dist. 

Cuyahoga No. 108095, 2019-Ohio-4579, ¶ 47, quoting State v. Crim, 8th Dist. 

Cuyahoga No. 82347, 2004-Ohio-2553, ¶ 14. This is because “[t]he mental states of 

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

[voluntary manslaughter] are incompatible.” State v. Smith, 8th Dist. Cuyahoga No. 

100204, 2014-Ohio-2057, ¶ 52. A theory of self-defense requires proof of fear while 

aggravated assault and voluntary manslaughter require a showing of a sudden 

passion or rage. State v. Hurt, 8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039, 

¶ 37, citing State v. Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio-1821, ¶ 24 

(jury instruction on aggravated assault not required where defense theory was selfdefense); State v. Loyed, 8th Dist. Cuyahoga No. 83075, 2004-Ohio-3961, ¶ 14 

(instruction on voluntary manslaughter not required where defense asserted selfdefense because the theories were incompatible and “it must be one or the other”); 

see also State v. Torres, 8th Dist. Cuyahoga No. 112812, 2024-Ohio-837, ¶ 10. 

Scales’s defense at trial was that he acted in self-defense because Gay 

reached for his firearm, and thus he acted out of fear; provocation was never alleged. 

As correctly noted by the trial court, no evidence was elicited at trial regarding 
Scales’s state of mind or whether he was acting out of rage or sudden passion. Any 

argument that Scales was provoked by the earlier incident at Rollhouse is misplaced. 

Past altercations and past verbal threats do not satisfy the test for sufficient 

provocation where there is sufficient time for cooling off. State v. Mack, 82 Ohio 

St.3d 198, 201, 694 N.E.2d 1328 (1998). Here, approximately one hour passed 

between the initial fracas at Rollhouse in Solon and Scales’s arrival at Unkut Lounge 

in Garfield Heights. Not only was there sufficient time for Scales to cool off, the two 

locations are not in close proximity; therefore, Scales had to make the conscious

decision to arm himself with his firearm and drive to Garfield Heights to reengage 

with the group.3 

Moreover, we find no merit to Scales’s argument that he was 

sufficiently provoked to use deadly force after getting punched and being knocked 

to the ground. See, e.g., State v. Jones, 2018-Ohio-239, 104 N.E.3d 34, ¶ 17 (4th 

Dist.) (neither a push nor a punch constitutes sufficient provocation to warrant an 

aggravated assault instruction).

Based on the foregoing, the trial court did not abuse its discretion in 

denying Scales’s request to instruct the jury on the offenses of voluntary 

manslaughter and aggravated assault as inferior offenses of murder and felonious 

assault. His fourth assignment of error is overruled. 

Judgment affirmed.

3 Cherell Jones testified that during her conversation with Scales at Rollhouse, he 

told her that he “felt naked without [his] gun.” (Tr. 351.) 
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 

convictions 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.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and

LISA B. FORBES, J., CONCUR
Murder; attempted murder; purposely; self-defense; jury instructions; inferior 

offenses. - Appellant’s convictions for murder and attempted murder upheld where 

the evidence showed that he acted purposely when he shot into a crowd of people, 

killing one person, and severely injuring another. The jury properly rejected 

appellant’s claim of self-defense because the evidence showed that the defendant 

created the situation, escalated the affray, and acted with deadly force despite his 

perceived threat backing away with his empty hands raised. Trial court properly 

denied appellant’s request for a jury instruction on voluntary manslaughter and 

aggravated assault as inferior offenses because the instructions were inconsistent 

with appellant’s theory that he acted in self-defense; serious provocation was never 

alleged.