[Cite as State v. Moore , 2020-Ohio-4321.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, : Case No. 19CA13 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY JAMES W. MOORE, : Defendant-Appellant. : RELEASED 8/26/2020

_______________________________________________________________ _______ APPEARANCES: Christopher J. Pagan, Repper Pagan Law, Ltd., Middletown, Ohio, for appellant. Brigham M. Anderson, Lawrence County Prosecutor, and W. Mack An derson, Lawrence County Assistant Prosecutor, Ironton, Ohio, for appellee.

_______________________________________________________________ _______ Hess, J. {¶1} James Moore appeals his convictions, following a jury trial, fo r aggravated murder and tampering with evidence in connection with the shoot ing death of Homer Fredrick “Fred” Crank. Moore contends that the trial court com mitted plain error by not instructing the jury that he had no duty to retreat before usin g force in self-defense under R.C. 2901.09(B), that there was a presumption of self-def ense under former R.C. 2901.05(B)(1), and that he had a right to defend his residence, business, and personal property, and he contends that trial counsel rendered ineffecti ve assistance by not objecting to these errors. However, R.C. 2901.09(B) does not a pply because Moore was not in his residence when the shooting occurred, former R.C . 2901.05(B)(1) does not apply because Crank was not in or in the process of enterin g Moore’s residence when Moore shot him, Moore’s residence and business were not un der attack when heLawrence App. No. 19CA13 2 shot Crank, and Moore denied shooting Crank to defend Moore’s p ersonal property. Thus, the trial court did not err by omitting instructions on t hese matters, and counsel’s failure to object to the jury instructions was not deficient pe rformance. {¶2} Moore also contends that his aggravated murder conviction is no t supported by sufficient evidence and is against the manifest we ight of the evidence due to a lack of proof of prior calculation and design. However, a fter viewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found that element proven beyond a reasonable doubt, and a fter weighing the evidence and all reasonable inferences, considering the credibi lity of the witnesses after according the requisite deference to the jury’s determinations, we conclude that in resolving evidentiary conflicts, the jury did not clearly lose its way or create a manifest miscarriage of justice so that we must reverse its verdict. Ac cordingly, we reject Moore’s arguments and affirm the trial court’s judgment. I. FACTS AND PROCEDURAL HISTORY {¶3} The Lawrence County grand jury indicted Moore on one count of aggravated murder in violation of R.C. 2903.01(A) and one count of tampering with evidence in violation of R.C. 2921.12(A)(1). He pleaded not gui lty and the matter proceeded to a jury trial. {¶4} The state presented evidence that on the evening of August 27, 2018, law enforcement responded to a dispatch about a shooting at Moore’s home. When they arrived, Moore was at the scene, and Crank, who had been shot f ive times, was dead in the gravel driveway, lying several feet between the entrance to Moore’s garage, which was perpendicular to the roadway, and a damaged jeep, which was parked parallel toLawrence App. No. 19CA13 3 the garage entrance with the front of the vehicle facing the ro adway. Crank was wearing gloves, there was a metal pry bar next to his body, and there was a small wooden baseball bat on the ground in front of the garage entran ce. {¶5} Detective Sergeant Aaron Bollinger of the Lawrence County Sheri ff’s Office testified that he interviewed Moore at the scene around 1:00 a.m. on August 28, 2018. Moore told Detective Bollinger that he knew Crank but th ey were not friends. Moore had helped Crank in the past because he had dated Angel B orderlin, the exgirlfriend of Chris Dishman, a friend of Moore who had died abo ut two weeks earlier. The day of the shooting, Moore messaged Crank about a transmiss ion job for Carl Davis, and Crank asked if Moore was home. About 30 to 45 minut es before the shooting, Crank came over while Moore was in his garage. Crank told Moore about his plan to use Borderlin to take control of Dishman’s house. Moor e had secured the house after Dishman’s death by kicking out drug users and changing th e locks, and Moore told Detective Bollinger that “now this fucktard thinks he’s coming out here telling me he’s going to do all this stuff.” Moore told Crank that Dishman’s w ill stated how “everything is going to be done.” Crank said that he was going to his vehicle to get some cigars but instead got a bat. Crank started to hit one of Moore’s vehicle s—a jeep—with the bat and then started coming toward Moore and saying that he was goi ng to kill Moore. Moore pulled out his gun and said something like, “Fred! Don’t do this shit!” Crank threw the bat at Moore and then went to Crank’s vehicle, got a metal bar, and used it to hit the jeep. Crank came at Moore and threatened to kill him, and Moore shot Crank. Moore fired additional shots because Crank continued to come to ward him. Afterwards, Moore tried to contact Detective Joe Ross of the Ironton Police Department, Moore’sLawrence App. No. 19CA13 4
mother, and his friend Bill Schwab. Moore did not know if Cran k had been drinking because Crank was “a meth head” who did “crazy shit all the tim e.” Moore had cameras around his house but did not know if they were recordin g. Detective Bollinger testified that Moore smelled like beer but did not appear intox icated. Moore told him that he had about 10 beers that evening but “can drink a lot.” {¶6} Moore’s digital video recording (“DVR”) system was recording, a nd the footage shows that prior to the shooting, Moore and Crank were together for about two hours and 45 minutes. They spend most of that time sitting in the garage and talking. About 45 minutes after Crank arrives, Moore gives Crank a stackof clothes, which Crank separates into two piles. About an hour and 45 minutes l ater, Moore walks out of view and returns with a bat under his left arm and what appear to be two cans. He sets one can down near his chair, hands the other to Crank, and lets Crank take the bat. Shortly after that, Crank stands up, walks outside, and hits th e jeep with the bat for about 30 seconds. Moore stands and appears to touch his holste red firearm around the time Crank stops and comes back to the garage. The men brieflytalk and sit again. About two minutes later, Crank goes outside again and hits the jeep with the bat for about 40 seconds. During this time, Moore stands up, walks out side, unholsters his firearm, and holds it down by his right side, which is facing a way from Crank. Crank stops hitting the jeep, Moore reholsters his firearm, and they return to the garage, where they sit and Crank puts the bat down. {¶7} A few minutes later, Moore picks up the pry bar from someplace near his chair, puts it on the ground, a nd Crank walks over, picks it up in his ungloved hands, and then goes to his own vehicle. During this time, Moore appe ars to get two drinksLawrence App. No. 19CA13 5 and puts one by Crank’s chair and one by his own chair. Crank goes to the jeep and starts hitting it with the pry bar. Moore walks outside but th en returns to the garage while handling his holstered firearm. He adjusts the firearm, takes a drink, walks outside again, and stops about halfway between the garage entra nce and the driver’s side of the jeep. Crank briefly walks away from the jeep, near Moore, and then walks to the passenger side of the jeep. There is a 12 second gap in th e footage due to the settings on Moore’s DVR system. When the footage resumes, Moor e is in front of the jeep, and Crank appears to come from around the back of the veh icle and hits the jeep near the driver’s side door handle. Crank lowers the pry bar t oward the ground and appears to touch his chest. Crank takes a few steps forward, there are two flashes, and Crank falls in the direction of the garage entrance, landin g between it and the jeep. In the minutes that follow, Moor e moves the clothing, picks up the pry bar from an area by the jeep and puts it next to Crank’s body, kicks the bat out side, puts alcohol containers that were by Crank’s chair into a bucket, covers the bucket with a box, and goes to Crank’s vehicle. {¶8} A search of Moore’s cell phone revealed that the day of the sho oting, Moore exchanged messages with Davis and Crank about a transmiss ion job Davis wanted done the next morning. At 8:42 p.m., Moore told Davis t hat he found a guy who would do the job but wanted to talk to Davis about the pay, and at 9:03 p.m., Moore told Davis, “I know he’s a meth head and he does do pretty good work but I don’t like being around him but I’m just trying to help you out—he just said abo ut 100 and some stuff to pick him up—he is here now if you want to come over.” At 9:32 p.m., Moore sent Schwab a message stating: “Angel is seeing Dave * * * and she has been talking toLawrence App. No. 19CA13 6 Fred about all that stuff in the house to [sic] and Stacy and D ave and Angel is [sic] going to move in the house and it’s gonna be a bad deal – Fred has so mething to do with it to [sic].” Schwab responded, “Wow,” and at 9:52 p.m., Moore answe red, “Fred is here now and scary but I will be ok brother.” At 11:16 p.m., Moore messaged Detective Ross, “I need you at my house now I just killed Fred Crank he w as here trying to kill me.” Moore later messaged Detective Ross, “Joe I need you her e I just killed Fred Crank at my house he was trying to kill me.” {¶9} Barbara Massie met Crank a few months before his death and test ified that he used drugs and was suicidal since the day she met him. Massie tried to help Crank because she is a recovering addict. She let him sleep in his van outside her house and would let him into her home to eat and shower. Massi e testified that there had been an issue between Crank and Moore related to some merch andise Crank had stolen that Moore would not let him keep at Moore’s property. About a week before Crank’s death, Moore asked Massie to tell Crank that there were “no hard feelings” and that he could come to Moore’s place to talk and “drink a few be ers if he wanted to.” The morning of the shooting, Crank came into Massie’s home and she offered him breakfast. He declined because he “needed to do a shot.” Cran k left to do drugs, and when he returned, he told Massie that he was going to take Moor e “up on his offer and drink some free beer.” Prior to leaving, Crank said, “I just c an’t wait for this to be all over,” which Massie interpreted to mean that he “wanted to die” and was “going to try suicide again.” {¶10} Benjamin Hall testified that he had known Crank since they were kids and did not know Moore. The day of Crank’s death, Crank was at Hal l’s home from 5:00 orLawrence App. No. 19CA13 7 6:00 p.m. until about 8:00 p.m. Crank told Hall that he was “g etting himself clean,” and Hall thought Crank looked “pretty healthy” and did not appear t o be high or under the influence of alcohol. Crank told Hall that he was going to Moo re’s house to do a transmission job. Before leaving, Crank said that if somebody pulled out a gun and asked who wanted to die, he would be the first to raise his han d. {¶11} Moore gave the following testimony. Moore met Crank about five or six months prior to his death, let Crank stay at his house for a fe w days because Moore “felt sorry for him,” and made Crank leave after he stole from Moore and brought a stolen car trailer to the house. Moore reported the car trailer to th e police but testified he did not have any hard feelings towards Crank and continued to invit e him over when Moore had a job for him. The day of the shooting, Moore messaged Cra nk about a transmission job, and Crank came over. Crank was agitated and angry at different times throughout the evening, and Moore gave him alcohol “to ca lm him down.” At some point, Crank told Moore his plan to take over Dishman’s ho use and got upset when Moore told him that he “couldn’t have anything to do with” Dishman’s estate. {¶12} Moore offered Crank some clothes to replace ones that were stol en from his van and gave Crank the bat because it belonged to Crank and he wanted it back for self-protection. Moore testified that he always carries a gun and admitted that he put a hand on it when Crank started hitting the jeep with the bat. M oore claimed he did not know why Crank hit the jeep and asked him to stop, and Crank sa id that he wanted to kill Moore. When Crank stopped hitting the jeep, Moore tried t o calm him down, but Crank hit the jeep again and continued to threaten Moore. Moor e unholstered his gun because he was afraid and wanted to ask Crank to stop. However , when Moore did askLawrence App. No. 19CA13 8 Crank to stop, Moore did not show him the gun. Moore later gav e Crank the pry bar because it belonged to him, and Moore thought Crank was going t o leave. After Crank took the bar and went to his vehicle, Moore went inside the hou se to get more beer to try to calm Crank down. After Crank started hitting the jeep w ith the bar, Moore walked out to Crank, unholstered his firearm again, aimed it at Crank, and told him to stop. Moore denied shooting Crank to make him stop hitting the jeep. Moore testified that he fired the initial shot because Crank was coming at him saying t hat Crank was going to kill Moore, and Moore felt threatened and thought his life was in danger. Moore fired additional shots because Crank kept coming at him. Moore did n ot call 9-1-1 after the shooting but tried to contact two officers that he knew. Moore did not know why he moved items after the shooting. Moore testified that he was im paired and said, “I think I was just cleaning up for the day, now that I see the video.” M oore later testified that he put the pry bar next to Crank and put Crank’s cell phone in his vehicle because those items belonged to Crank. Moore apologized “for lying” during t he interview with Detective Bollinger but claimed that he did not remember the in terview because he was in shock and not thinking clearly after the shooting. {¶13} The jury found Moore guilty as charged, the trial court sentenc ed him, and we granted Moore leave to file a delayed appeal. II. ASSIGNMENTS OF ERROR {¶14} Moore assigns the following errors for our review: Assignment of Error I The trial court erred by providing an erroneous self-defense in struction; and it was error to fail to instruct on defense of residence, b usiness, and personal property.Lawrence App. No. 19CA13 9 Assignment of Error II The trial court erred by entering judgment against Moore for ag gravated murder because there was insufficient evidence of prior calcula tion and design; and the judgment is unlawful because the finding of pri or calculation and design was against the manifest weight of the e vidence. III. JURY INSTRUCTIONS {¶15} In the first assignment of error, Moore contends that the trial court erred in several ways when it instructed the jury. He acknowledges that trial counsel did not object to the jury instructions and asserts that the trial court committed plain error and that counsel rendered ineffective assistance. {¶16} “A trial court is obligated to provide jury instructions that c orrectly and completely state the law. The jury instructions must also be w arranted by the evidence presented in a case. The question of whether a jury instructio n is legally correct and factually warranted is subject to de novo review.” (Citations omitted.) Cromer v. Children’s Hosp. Med. Ctr. of Akron , 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 22. “On appeal, a party may not assign as error the giv ing or the failure to give any instructions unless the party objects before the jury retir es to consider its verdict, stating specifically the matter objected to and the grounds of the objection.” Crim.R. 30(A). “Thus, a defendant’s failure to object to the challenge d instruction forfeits all but plain error.” State v. McIntosh , 4th Dist. Gallia No. 17CA14, 2018-Ohio-5343, ¶ 59, citing State v. White , 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 57. {¶17} Crim.R. 52(B) states: “Plain errors or defects affecting subst antial rights may be noticed although they were not brought to the attention of the court.” To establish plain error, a defendant must show: (1) there was an error, i.e., a deviation from a legal rule, (2) the error was an obvious defect in the p roceedings, and (3) theLawrence App. No. 19CA13 10 error affected substantial rights, i.e., it impacted the outcom e of the trial. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. The defendant must “demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. “Notice of plain error under Crim.R. 52(B) is to be taken wit h the utmost caution, under exceptional circumstances and only to pre vent a manifest miscarriage of justice.” State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. {¶18} To prevail on an ineffective assistance claim, a defendant must show: “(1) deficient performance by counsel, i.e., performance falling bel ow an objective standard of reasonable representation, and (2) prejudice, i.e., a reason able probability that, but for counsel’s errors, the proceeding’s result would have been d ifferent.” State v. Short , 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, cit ing Strickland v. Washington , 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1 984). Failure to satisfy either part of the test is fatal to the clai m. See Strickland at 697. The defendant “has the burden of proof because in Ohio, a properly licensed attorney is presumed competent.” State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. We “must indulge a strong presumption that co unsel’s conduct falls within the wide range of reasonable professional assistance; th at is, the defendant must overcome the presumption that, under the circumstances, the cha llenged action ‘might be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.E. 83 (1955).Lawrence App. No. 19CA13 11
A. Duty to Retreat {¶19} Moore contends that the trial court committed plain error by no t instructing the jury that he did not have a duty to retreat from his reside nce under the castle doctrine, which is codified in R.C. 2901.09(B), and that counse l rendered ineffective assistance by not objecting to this error. Moore asserts that the altercation between him and Crank transitioned between the open garage and curtilage, i .e., Moore’s driveway. Moore maintains that his garage is a “residence” pursuant to R. C. 2901.05(D)(3) and that “the majority rule is that the curtilage is in the definit ion of residence for self-defense purposes.” He also cites State v. Jackson , 22 Ohio St.3d 281, 490 N.E.2d 893 (1986), State v. Williford , 49 Ohio St.3d 247, 551 N.E.2d 1279 (1990), and State v. Claren , 9th Dist. Wayne No. 19AP15, 2020-Ohio-615, for the position that th ere is no duty to retreat when deadly force is used close to a residence. {¶20} R.C. 2901.09(B) states: “For purposes of any section of the Re vised 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 * * *.” (Emphasis added.) “ ‘Residence’ means a dwelling in which a person resid es either temporarily or permanently or is visiting as a guest.” R.C. 2901.05(D)(3); see R.C. 2901.09(A) (as used in R.C. 2901.09, “residence” has the same meaning as in R. C. 2901.05)

. “ ‘Dwelling’ means a building or conveyance of any kind that ha s a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary o r permanent or is mobile or immobile.” R.C. 2901.05(D)(2). “[A] building or con veyance includes, but isLawrence App. No. 19CA13 12
not limited to, an attached porch, and a building or conveyance with a roof over it includes, but is not limited to, a tent.” Id. {¶21} R.C. 2901.09(B) does not apply because Moore was not in his res idence when he used force against Crank. Moore voluntarily left his g arage, went into the driveway, and was several feet from the garage entrance when he shot Crank. Moore’s driveway is not a residence under R.C. 2901.05(D)(3) because itis not a dwelling under R.C. 2901.05(D)(2), i.e., a building with a roof over it that i s designed to be occupied by people lodging in it at night. The contention that the drivewa y is curtilage that is within the definition of a residence is not well-taken. We have expla ined: The curtilage is the area around a home that a resident may rea sonably expect to enjoy the sanctity and privacy of the home. Generall y, the extent of a home’s curtilage is determined under four main fact ors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken to protect the area from observation by passersby. (Citation omitted.) State v. Ash , 4th Dist. Pickaway No. 15CA1, 2015-Ohio-4974, ¶ 10. Moore provides no analysis of these factors, and even if he had demonstrated that his driveway was curtilage, R.C. 2901.05(D)(2) does not state that a building includes curtilage. The statute states that a building “includes, but i s not limited to, an attached porch,” R.C. 2901.05(D)(2), and Moore has not demonstrated that his driveway is analogous to an attached porch. {¶22} Moore’s reliance on Jackson , Williford , and Claren is misplaced. In Jackson , the victim hit the defendant while in the defendant’s apartme nt, the victim was escorted out but returned, a struggle ensued that moved to the yard, and after the fight was broken up, the defendant went into his apartment, got a gun , and shot the victim asLawrence App. No. 19CA13 13 he “began to walk up the porch stairs toward the outside doorwa y of [the defendant’s] apartment.” Jackson , 22 Ohio St.3d at 281, 490 N.E.2d 893. The Supreme Court of Ohio held that a jury instruction that the defendant had no dut y to retreat when “attacked in or about his home” “would have been appropriate to the evide nce adduced at trial,” but its omission was not prejudicial under the circumstances. Id. at 284-285. In Williford , there was evidence that the victim came onto the defendant’s front porch and threatened his wife, and the defendant went inside, got a revol ver from upstairs, came downstairs, found the victim inside the home, displayed the gun , forced the victim onto the porch, and shot the victim when he attacked the defendant’s wife, who had come out onto the porch. Williford , 49 Ohio St.3d at 248, 551 N.E.2d 1279. The Supreme Court of Ohio held that the trial court erred by not instructin g the jury that the defendant did not have a duty to retreat from his home because “there was testimony that the confrontation took place inside [the defendant’s] house and on [his] porch.” Id. at 250. In Claren , the defendant testified that he shot the victim from a chair on the defendant’s front stoop after the victim threatened him and tried to grab h is gun. Claren , 9th Dist. Wayne No. 19AP15, 2020-Ohio-615, at ¶ 15-16. The appellate cou rt held that the trial court erred by not instructing the jury on the castle doctrine because the stoop “consisted of a concrete pad, just below a small overhang, dire ctly outside [the defendant’s] front door,” the defendant “was so close to his fr ont door that he was able to reach back inside it from his seated position to grab the lo aded revolver he had left just inside,” and in Jackson , the Supreme Court of Ohio “recognized the propriety of a castle doctrine instruction in similar circumstances.” Id. at ¶ 27.Lawrence App. No. 19CA13 14 {¶23} These cases are inapposite. None of them considered whether th ere is a duty to retreat from one’s driveway. And notably, Jackson and Williford pre-date the 2008 enactment of R.C. 2901.09, R.C. 2901.05(D)(2), and R.C. 29 01.05(D)(3) and involved porches, which the General Assembly specifically addre ssed when it defined a “dwelling” in R.C. 2901.05(D)(2). {¶24} Prior to the enactment of these statutes, several Ohio appellat e courts held that there is a duty to retreat from one’s driveway. State v. Marbury , 2d Dist. Montgomery No. 19226, 2004-Ohio-1817, ¶ 20-21 (trial court did not err by refusing to instruct jury that the defendant had no duty to retreat from hi s property because the defendant “was not in his ‘home’ when he was allegedly threaten ed by the victim and used force to repel the threat. He was outside his home, on th e driveway. Courts have held that the exception to the no duty to retreat rule does not then apply, because the actor is neither in his home nor is his home being attacked”); State v. Rhym , 8th Dist. Cuyahoga No. 67750, 1995 WL 444505, *6 (July 27, 1995) (“this c ourt has consistently held that the duty to retreat extends to the driveway of one’s own home”); State v. Lansberry , 9th Dist. Summit No. 21006, 2002-Ohio-4401, ¶ 10-11 (stating “it is settled law in several other districts” that the duty to retreat extend s to one’s driveway and holding that defendant was not entitled to a no duty to retreat instruction where he “voluntarily left the sanctuary of his home and went outside on to his driveway, which is where the shooting subsequently occurred”); State v. Schumacher , 12th Dist. Brown No. CA97-12-023, 1998 WL 761639, *2 (Nov. 2, 1998) (“For purpos es of self-defense, a duty to retreat extends to the driveway of one’s own home”). T he General Assembly did not alter this rule and include driveways in the definition of a dwelling in R.C.Lawrence App. No. 19CA13 15 2901.05(D)(2). See generally Mann v. Northgate Investors, L.L.C. , 138 Ohio St.3d 175, 2014-Ohio-455, 5 N.E.3d 594, ¶ 17, quoting Shump v. First Continental-Robinwood Assocs. , 71 Ohio St.3d 414, 420, 644 N.E.2d 291 (1994), quoting State ex rel. Morris v. Sullivan , 81 Ohio St.79, 90 N.E. 146 (1909), syllabus (“ ‘ “Statutes ar e to be read and construed in the light of and with reference to the rules and p rinciples of the common law in force at the time of their enactment, and in giving cons truction to a statute the legislature will not be presumed or held, to have intended a re peal of the settled rules of the common law unless the language employed by it clearly expre sses or imports such intention” ’ ” (Emphasis deleted.)). {¶25} For the foregoing reasons, we conclude that the trial court did not err when it did not instruct the jury on R.C. 2901.09(B), and couns el’s failure to object on this issue was not deficient performance. B. Presumption of Self-Defense {¶26} Moore contends that the trial court committed plain error when it instructed the jury that he had the burden to prove self-defense and that counsel rendered ineffective assistance by failing to object to this error. He asserts that there was a presumption of self-defense under former R.C. 2901.05(B)(1) whi ch the state had to overcome because when he shot Crank, Crank was in the process o f entering or had entered Moore’s residence unlawfully and without privilege to d o so. Moore again relies

on Jackson , Williford , and Claren

. {¶27} The parties agreed that the version of R.C. 2901.05 in effect p rior to March 28, 2019 applies in this case. Former R.C. 2901.05(A) st ated: “The burden of going forward with evidence of an affirmative defense, and the burden of proof, by aLawrence App. No. 19CA13 16
preponderance of the evidence, for an affirmative defense, is u pon the accused.” Former R.C. 2901.05(B)(1) stated: Subject to division (B)(2) of this section, a person is presume d to have acted in self defense or defense of another when using defensiv e force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the p rocess of unlawfully and without privilege to do so entering, or has unla wfully and without privilege to do so entered, the residence * * * occupie d by the person using the defensive force.” In the previous section, we set forth the definition of a “resi dence” in R.C. 2901.05(D)(3) and related definition of a “dw elling” in R.C. 2901.05(D)(2). {¶28} Former R.C. 2901.05(B)(1) does not apply because Crank was not in Moore’s residence or in the process of entering it when Moore s hot him. Crank was in the driveway, several feet from the garage entrance. As we exp lained in the previous section, Moore’s driveway is not a residence under R.C. 2901.05 (D)(3) because it is not a dwelling under R.C. 2901.05(D)(2). Thus, the trial court did not err when it did not instruct the jury on former R.C. 2901.05(B)(1), and counsel’s f ailure to object on this issue was not deficient performance. C. Defense of Residence, Business, and Personal Property {¶29} Moore contends that the jury instructions did not “cover the av ailable defenses.” Moore asserts that there was a “simultaneous assaul t” on his residence, “body and repair workshop,” and personal property, that the cou rt should have instructed the jury on his right to defend his residence, busin ess, and personal property, and that counsel rendered ineffective assistance by not objecti ng to this failure. He claims that there is no duty to retreat when defending a reside nce or business and thatLawrence App. No. 19CA13 17
there is a reasonable probability he would have prevailed at tr ial “with no duty to retreat and a full panoply of valid defenses.” {¶30} Moore’s argument is not well-taken. Moore’s residence and busi ness were not under attack when he shot Crank. Although Crank was d amaging Moore’s jeep, Moore specifically denied shooting Crank to defend Moore’ s personal property. Moore testified that he shot Crank because Crank was coming at him and threatening to kill him, and Moore thought his life was in danger. Thus, the trial court did not err when it did not instruct the jury on defense of a residence, busines s, or personal property, and counsel’s failure to object on this issue was not deficient per formance. Accordingly, we overrule the first assignment of error. IV. Sufficiency and Manifest Weight of the Evidence {¶31} In the second assignment of error, Moore contends that his conv iction for aggravated murder is not supported by sufficient evidence and i s against the manifest weight of the evidence due to a lack of proof of prior calculat ion and design. Moore claims that he and Crank did not have a strained relationship, noting that he offered Crank a transmission job and the absence of evidence that the j ob was a “ruse” to lure Crank to Moore’s property. Moore asserts that he did not delib erate in choosing a murder weapon and location—he always carries a firearm and invi ted Crank to a place under video surveillance where the transmission could be repair ed, not a “concealed location.” Moore claims that the “affray arose when the victim wielded and used a deadly weapon in a fit of irrational rage,” that these acts “li kely surprised, terrorized, angered, and confused” Moore, and that he “simply responded to these acts” during “an instantaneous eruption of events,” not with “cool-minded reflec tion.”Lawrence App. No. 19CA13 18 {¶32} “When a court reviews a record for sufficiency, ‘[t]he relevantinquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” (Alteration sic.) State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N .E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “A sufficiency assignment o f error challenges the legal adequacy of the state’s prima facie case, not its rationa l persuasiveness.” State v. Anderson , 4th Dist. Highland No. 18CA14, 2019-Ohio-395, ¶ 13. “That li mited review does not intrude on the jury’s role ‘to resolve conflicts in th e testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Musacchio v. United States , ___ U.S. ___, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Jackson at 319. {¶33} In determining whether a conviction is against the manifest wei ght of the evidence, we must review the entire record, weigh the evidence and all re asonable inferences, consider the credibility of witnesses, and determin e whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that reversal of the conviction is necessary. In order to satisfy this test, the sta te must introduce substantial evidence on all the elements of an offens e, so that the jury can find guilt beyond a reasonable doubt. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court maynevertheless conclude that the judgment is against the weight of the evidenc e. However, we are reminded that generally, it is the role of the jury to determine the weight and credibility of evidence. “ ‘A jury, si tting as the trier of fact, is free to believe all, part or none of the test imony of any witness who appears before it.’ ” State v. Reyes-Rosales , 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West , 4th Dist.Lawrence App. No. 19CA13 19
Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trie r of fact on these evidentiary weight and credibility issues because it i s in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credi bility. (Citations omitted.) Anderson at ¶ 14-15. {¶34} R.C. 2903.01(A) states: “No person shall purposely, and with p rior calculation and design, cause the death of another * * *.” “T he phrase ‘prior calculation and design’ by its own terms suggests advance reasoning to form ulate the purpose to kill.” State v. Walker , 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18. “Evidence of an act committed on the spur of the moment or afte r momentary consideration is not evidence of a premeditated decision or a s tudied consideration of the method and the means to cause a death.” Id. “There is no bright-line test to distinguish between the presence or absence of prior calculatio n and design; each case depends upon its own facts.” State v. Ford , 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 319, citing Walker at ¶ 19. However, [t]hree factors have traditionally been considered in determini ng whether prior calculation and design exists: “(1) Did the accused and v ictim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or mu rder site? and (3) Was the act drawn out or ‘an almost instantaneous eruption of events?’ ” Id. , quoting State v. Taylor , 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997), quoting State v. Jenkins , 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976). {¶35} The state introduced evidence from which any rational trier of fact could have found prior calculation and design proven beyond a reasona ble doubt, and in resolving conflicts in the evidence, the jury did not clearly l ose its way and create such a manifest miscarriage of justice that reversal of the aggravated murder conviction isLawrence App. No. 19CA13 20 necessary. There is evidence that Moore and Crank knew each ot her and had a strained relationship. In the past, Crank had stolen from Moor e, and Moore had called the police about stolen property Crank had brought to Moore’s p roperty. Although Moore testified that he had no hard feelings toward Crank and o ffered him the Davis transmission job the day of the shooting, Moore told Davis that he did not like being around Crank. Moore also did not like Crank’s plan to take con trol of Dishman’s house. The night of the shooting, Moore told Schwab that some people p lanned to move into the house, and it was “gonna be a bad deal—Fred has something t o do with it to [sic],” and Moore told Detective Bollinger about how Moore had secured the house and “now this fucktard thinks he’s coming out here telling me he’s going to do all this stuff.” {¶36} Although there is no evidence that Moore acquired his firearm f or the purpose of killing Crank, there is some evidence that Moore gav e thought to using the firearm as the murder weapon. During the first attack on the j eep, Moore touched the firearm. During the second attack, he unholstered the firearm but kept it hidden by his side. And during the third attack, he took time to adjust the holstered weapon before the shooting. Although Moore suggests that he would not have p lanned to murder someone on his property because it was under surveillance, Moor e told Detective Bollinger he did not know whether his cameras were recording an d testified that he had never reviewed recorded footage on his DVR system before. {¶37} Evidence supports the prosecution’s theory that Moore did not k ill Crank during an instantaneous eruption of events but rather facilitat ed the attacks on the jeep so that he could kill Crank and claim self-defense. Although M oore denied giving Crank permission to hit the jeep, Moore gave Crank the baseball bat a nd later gave him theLawrence App. No. 19CA13 21 pry bar even though Crank had already attacked the jeep two tim es and allegedly threatened Moore’s life. Moore went to get Crank a beer while Crank went to his own vehicle, evidently to put on gloves to prepare for the third at tack on the jeep with the pry bar. Moore admitted that Crank never came at him with the bat, and the jury was free to agree with the prosecution that when Moore fired the first shot , Crank was not coming toward Moore. That conclusion is consistent with the video foo tage showing that while Moore is in front of the jeep, Crank is hitting the area by the driver’s side door handle with the pry bar, lowers the bar toward the ground, and appears to put a hand to his chest. In addition, Moore’s post-shooting actions are consiste nt with him having a plan to kill Crank and claim self-defense. Although Moore suggested that he was not thinking clearly after the shooting because he was impaired and in shock, he had the presence of mind to m ove evidence and give Detective Bollinger false information about what happened which was consistent with the altered evidence an d favorable to a selfdefense claim. {¶38} Based on this evidence, the jury could reject the defense’s the ory that Crank was suicidal and tried to provoke Moore into shooting him and conclude that Moore engaged in studied consideration of the method and the me ans used to cause Crank’s death. The aggravated murder conviction is supported b y sufficient evidence and is not against the manifest weight of the evidence. Accord ingly, we overrule the second assignment of error.Lawrence App. No. 19CA13 22

V. CONCLUSION {¶39} Having overruled the assignments of error, we affirm the trial court’s judgment. JUDGMENT AFFIRMED.Lawrence App. No. 19CA13 23

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Lawrence County Common Pleas Court to carry this judgment into execution

. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upo n the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a not ice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursu ant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additional ly, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY : ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.