[Cite as State v. Gillespie, 2017-Ohio-6936.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PAULDING COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 11-16-07 

 v. 

BRADLEY R. GILLESPIE, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Paulding County Common Pleas Court 

Trial Court No. CR-16-520 

Judgment Affirmed 

Date of Decision: July 24, 2017 

 

APPEARANCES: 

 

Timothy C. Holtsberry for Appellant 

 Joseph R. Burkard for Appellee 
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ZIMMERMAN, J. 

{¶1} Defendant-Appellant Bradley R. Gillespie (“Appellant”) appeals his 

conviction of two counts of Murder, both unclassified felonies, from the Paulding 

County Court of Common Pleas. Appellant alleges six assignments of error related 

to the convictions, including: the jury verdict was against the manifest weight of the 

evidence; the trial court erred in denying his Crim.R. 29 motion for acquittal; the 

trial court erred by not giving a jury instruction for lesser included offenses and/or 

a lesser degree of murder when the evidence warranted such instructions; the trial 

court erred by not providing jury instructions on self-defense; the trial court erred 

by not ruling on Appellant’s request for new trial counsel; and Appellant was denied 

effective assistance of counsel at trial. For the reasons that follow, we affirm 

Appellant’s convictions. 

Statement of the Case and Facts 

{¶2} As of January, 2016 Frank Tracy, Jr. (“Frank”) and Hannah Fisher 

(“Hannah”) resided together at 119 West Perry Street, Apt. C, in Paulding, Ohio. 

Both Frank and Hannah had reputations for being Methamphetamine (“meth”) 

users. Appellant had, on occasion, purchased meth from Frank. Further, Appellant 

and Hannah were acquaintances through Frank. 

{¶3} Sometime during January, 2016, Frank and Appellant had an 

altercation, which resulted in Frank pointing an unloaded gun at Appellant’s head 
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and pulling the trigger.1

 Appellant was angry and upset at Frank over the event and 

asked his co-worker and ex-girlfriend, Esmeralda Ferguson (“Ferguson”), to borrow 

her Glock 40 caliber handgun, to scare Frank for scaring him. Ferguson gave 

Appellant her handgun on the evening of February 1, 2016. 

{¶4} The next evening, February 2, 2016, Frank, Hannah, and Appellant 

were riding together in a red 2016 Jeep regularly used by Frank. The three were 

using drugs. At some point while in the Jeep, Appellant shot Hannah and Frank. 

Both Frank and Hannah were killed as a result of gunshot wounds to the head. 

{¶5} At approximately 1 a.m. on February 3, 2016, Appellant went to the 

Community Memorial Hospital in Hicksville, Ohio, and was treated for a laceration 

to his right wrist. Dr. Cui treated Appellant at the hospital for a laceration that was 

approximately four (4) centimeters in length on Appellant’s right wrist. According 

to the medical records produced at trial, Appellant indicated that his wrist injury had 

occurred approximately two (2) hours prior to his arrival at the hospital. 

{¶6} Appellant returned to work on February 3 and returned Ferguson’s 

handgun to her. At trial, Ferguson testified that when she asked Appellant what had 

happened with the gun, Appellant responded that he “shot him [Frank] in the head 

and threw him in the river.” (09/27/16 Tr., Vol. II, at 449). Ferguson also testified 

that Appellant asked to purchase her handgun, but she refused. Ferguson did not 

 

1

 Testimony at trial revealed that Appellant was unaware that the gun was unloaded at the time. 
Case No. 11-16-07 

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immediately contact law enforcement as a result of Appellant’s comments of 

shooting Frank. 

{¶7} On February 9, 2016, Hannah’s body was located in her apartment. An 

autopsy revealed that Hannah died from a single gunshot wound to the head. Crime 

scene investigators concluded that Hannah’s body had been pulled into her 

apartment, and that the location where her body was discovered was not the location 

where she was killed. Investigators determined that there was little blood inside the 

apartment, but there was a substantial amount of blood in both the driver and 

passenger seats of the red 2016 Jeep, which was located outside of Hannah and 

Frank’s apartment. 

{¶8} Investigators further determined that the driver’s side window of the 

Jeep was broken out and covered with a blanket. Additionally, the blood collected 

by investigators from the Jeep revealed Frank’s DNA in the driver’s seat and 

Hannah’s DNA in the passenger seat. Investigators also found a spent shell casing 

in the rear passenger seat area of the Jeep. The shell casing was later determined to 

be from Ferguson’s handgun. 

{¶9} Ferguson turned over her Glock handgun to the Paulding Police 

Department on March 4, 2016. Ultimately, testing at the Ohio Bureau of Criminal 

Investigation (“BCI”) revealed that the handgun contained Frank’s DNA. 
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{¶10} On March 15, 2016, Frank’s body was discovered along the Maumee 

River in Rochester Cemetery near Cecil, Ohio. An autopsy of Frank’s body 

revealed that a single gunshot wound to the head was the cause of his death. 

{¶11} Appellant was subsequently arrested as a result of the investigation 

into Frank and Hannah’s murders. 

Procedural History 

{¶12} On March 28, 2016, the Paulding County Grand Jury returned a two 

count indictment against Appellant, charging him with: Count I, Murder, an 

unclassified felony, with a firearm specification; and Count II, Murder, an 

unclassified felony, also with a firearm specification. The indictment alleged that 

on or about February 3, 2016, Appellant purposely caused the death of Hannah 

Fisher and Frank A. Tracy, Jr. The indictment also alleged that Appellant had a 

firearm about his person or under his control while committing the offenses. 

{¶13} This matter proceeded to a jury trial on September 26, 2016. Prior to 

the commencement of trial, defense counsel requested a motion in limine regarding 

statements that Appellant made to law enforcement officers who transported him 

from the correctional facility to court. On September 27, 2016, the trial court 

granted the motion in part, finding that the officers “interrogated” Appellant 

impermissibly without advising Appellant of his Miranda rights. However, the trial 

court also denied the motion in part, finding that the Appellant had volunteered 
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certain information to the officers, which did not require the advisement of his 

Miranda rights. 

{¶14} Also on the 27th of September, defense counsel filed a request for 

additional jury instructions on lesser included offenses to the murder charges. On 

September 30, 2014 the trial concluded and the jury returned verdicts of “guilty” to 

both counts of murder. The jury also found Appellant had a firearm on his person 

or under his control for each of the murders. 

{¶15} On October 31, 2016 the trial court sentenced Appellant to two 

indefinite prison terms, with a minimum sentence of 15 years for each count. The 

trial court also imposed the 1 year of mandatory prison time for each firearm 

specification. The trial court ordered that the murder and the specification terms to 

run consecutively to each other, with the specification terms to be served prior to 

the indefinite prison terms. Thus, Appellant was ordered to serve a minimum term 

of imprisonment of thirty-two (32) years. 

{¶16} From his convictions Appellant timely appealed, and presents the 

following assignments of error for our review: 

ASSIGNMENT OF ERROR NO. I 

THE VERDICT OF THE JURY IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 
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ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

CRIMINAL RULE 29 MOTIONS FOR ACQUITTAL WHEN 

THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE 

TO SUSTAIN A CONVICTION. 

ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRORED [SIC] BY NOT GIVING A 

JURY INSTRUCTION FOR LESSER INCLUDED CRIMES OR 

LESSER DEGREE OF MURDER WHEN THE EVIDENCE 

WARRANTED SUCH AN INSTRUCTION. 

ASSIGNMENT OF ERROR NO. IV 

THE TRIAL COURT ERRORED [SIC] BY NOT PROVIDING 

TO THE JURY INSTRUCTIONS REGARDING SELFDEFENSE. 

ASSIGNMENT OF ERROR NO. V 

THE TRIAL COURT ERRORED [SIC] IN NOT 

CONSIDERING OR RULING ON DEFENDANT’S REQUEST 

FOR NEW TRIAL COUNSEL. 

ASSIGNMENT OF ERROR NO. VI 

THE DEFENDANT WAS DENIED HIS RIGHTS UNDER THE 

SIXTH AMENDMENT TO EFFECTIVE ASSISTANCE OF 

COUNSEL. 

Assignment of Error I 

{¶17} In his first assignment of error, Appellant alleges that the verdict was 

against the manifest weight of the evidence. Specifically, Appellant asserts that the 

jury verdict is against the manifest weight of the evidence due to the lack of physical 
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evidence connecting him to the Red Jeep, to Hannah’s apartment, and to Hannah or 

Frank’s bodies. For the reasons set forth below, we disagree. 

Standard of Review 

{¶18} In analyzing a claim that a conviction is against the manifest weight 

of the evidence, an appellate court: 

sits as the “thirteenth juror” and may disagree with the fact finder’s 

resolution of the conflicting testimony. * * * The appellate court, 

“reviewing 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 jury clearly lost its 

way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered. The 

discretionary power to grant a new trial should be exercised only in 

the exceptional case in which the evidence weighs heavily against 

conviction.” 

State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State 

v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶ 14 (citations 

omitted). However, in sitting as the thirteenth juror the appellate court should give 

due deference to the findings made by the jury. Id.

{¶19} “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. It indicates clearly to the jury that the party having the burden of 

proof will be entitled to their verdict, if, on weighing the evidence in their minds, 

they shall find the greater amount of credible evidence sustains the issue which is 

to be established before them. Weight is not a question of mathematics, but depends 
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on its effect in inducing belief.’” (Emphasis omitted.) State v. Thompkins, 78 Ohio 

St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting Black’s Law Dictionary

1594 (6th Ed.1990). 

{¶20} Furthermore, “[t]o reverse a judgment of a trial court on the weight of 

the evidence, when the judgment results from a trial by jury, a unanimous 

concurrence of all three judges on the court of appeals panel reviewing the case is 

required.” Id., at paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, 

Section 3(B)(3). 

Relevant Statutory Provisions 

{¶21} Appellant was indicted on two counts of Murder, both unclassified 

felonies, in violation of R.C. 2903.02(A). R.C. 2903.02(A) states, in its pertinent 

part: “No person shall purposely cause the death of another * * *.” R.C. 2903.02(A). 

{¶22} Appellant’s indictment also contained a firearm specification as to 

each count. Pursuant to R.C. 2941.141(A), the trial court may impose a mandatory 

one-year prison term when “ * * * the indictment, or the information charging the 

offense specifies that the offender had a firearm on or about the offender’s person 

or under the offender’s control while committing the offense. * * * ” R.C. 

2941.141(A). 
Case No. 11-16-07 

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Analysis 

{¶23} In our review of the record, we find that the State provided limited 

physical evidence connecting Appellant to either Hannah or Frank’s murder scenes. 

However, the State did provide a direct link between the Appellant and a handgun 

that was used in the murders. Further, the State introduced the statements of 

Appellant, through various witnesses, linking him to Hannah and Frank’s murders. 

Specifically, Esmeralda Ferguson testified that Appellant confessed to her that “I 

shot him [Frank] in the head and threw him in the river.” (09/27/2016 Tr., Vol. II, 

at 449). Zachary Deal, an inmate at the Paulding County Jail who shared the same 

“pod” with Appellant while the case was pending, testified that Appellant confessed 

to him that he [Appellant] was smoking meth with Frank and Hannah and “he 

[Appellant] felt disrespected, so he shot Hannah in the head. When Frank turned 

around and stabbed him [Appellant], he [Appellant] shot him [Frank] in the head, 

too.” (09/28/2016 Tr., Vol. III, at 600). 

{¶24} Appellant also made statements to law enforcement officers 

implicating himself in the murders. Paulding County Sheriff’s Deputy Robert 

Garcia interviewed Appellant on March 20, 2016, and testified at trial that Appellant 

admitted to “putting a gun to Frank’s head,” in order to scare him. (09/29/2016 Tr. 

at Vol. IV, at 794). Paulding County Sheriff’s Deputy Jonathan Shane Dyson 

testified that Appellant admitted to having “the taste of blood in his mouth,” and to 
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“the effect of the gunshots” on him (Appellant). (Id. at 728). Appellant’s 

admissions made to Deputy Garcia and Deputy Dyson were recorded and played for 

the jury. (State’s Ex. Nos. 44; 41) 

{¶25} It is well stated that “the trier of fact is in the best position to observe 

the credibility of the witnesses and the weight of the evidence.” State v. Craun, 158 

Ohio App.3d 389, 2004-Ohio-4403, 815 N.E.2d 1141, ¶ 23 (3rd Dist.). Thus, in this 

case the jury’s determination of guilt in both murders was based, in part, upon 

Appellant’s statements, which was, upon our independent review of the record, 

competent and credible evidence of Appellant’s involvement. 

{¶26} Further, the State provided the jury with Ferguson’s handgun, together 

with the spent shell casing found in the Jeep, which was determined to be the 

weapon used in the murders. Thus, in our review of the record we cannot say that 

the jury clearly lost its way by finding Appellant guilty of the two counts of murder 

with firearm specifications as competent and credible evidence was provided to the 

jury to support its verdicts. Accordingly, the first assignment of error is overruled. 

Assignment of Error II 

{¶27} In his second assignment of error, Appellant argues that the trial court 

erred in denying his Crim.R. 29 motions for acquittal because the State failed to 

present sufficient evidence to sustain convictions. Specifically, Appellant asserts 

that the State failed to present any physical evidence connecting Appellant to the 
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murders in its case-in-chief, and that upon presenting their defense witnesses, the 

State’s case “completely unraveled.” We disagree. 

Standard of Review 

{¶28} “When an appellate court reviews the record for sufficiency, the 

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

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

elements of the crime were proven beyond a reasonable doubt.” State v. Blanton, 

2015-Ohio-4620, 48 N.E.3d 1018, ¶ 29 (3rd Dist.), cause dismissed, 145 Ohio St.3d 

1420, 2016-Ohio-1173, 47 N.E.3d 165, ¶ 29, citing State v. Monroe, 105 Ohio St.3d 

384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47. “In essence, sufficiency is a test of 

adequacy.” Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 

“‘Whether the evidence is legally sufficient to sustain a verdict is a question of 

law.’” State v. Anders, 3rd Dist. Hancock No. 5-16-27, 2017-Ohio-2589, ¶ 32, 

quoting Thompkins, supra. 

Analysis 

{¶29} In our review of this assignment, we must review the evidence 

presented in a light most favorable to the prosecution to determine whether any 

rational trier of fact could have found that the essential elements of each count of 

murder (and specifications) were proven by the State beyond a reasonable doubt. In 
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doing so, the State must present sufficient evidence that the Appellant purposely 

caused the deaths of Frank and Hannah pursuant to R.C. 2903.02(A), and, at such 

time, had a firearm on or about his person or under his control. 

{¶30} In regard to the death of Hannah, the State offered to the jury the 

testimony of Zachary Deal. Deal testified that the Appellant admitted to him that 

“he [Appellant] felt disrespected, so he shot Hannah in the head.” (09/28/2016 Tr., 

Vol. III, at 600). Such admission against interest by the Appellant is evidence that 

the Appellant purposely caused Hannah’s death by shooting her in the head that any 

rational trier of fact could rely upon to convict Appellant of murder with a firearm 

specification. 

{¶31} The State also offered into evidence Ferguson’s handgun, a spent shell 

casing from the handgun (found in the back seat of the Jeep), and Hannah’s DNA, 

revealing that Hannah was shot and killed in the Jeep. Kevin Belcik, (“Belcik”) a 

forensic scientist at BCI, examined the casing found in the 2016 Jeep. (Id. at 567). 

Belcik then test fired Ferguson’s gun and examined the test samples. (Id. at 571). 

Belcik found that the test fired casing sample from Ferguson’s gun was a match to 

the casing found in the Jeep. (Id.). Additionally, blood collected from the passenger 

seat was consistent with Hannah’s DNA profile. (Id. at 709, State’s Ex. No. 39). 

As such, as to Hannah’s death, we find the evidence presented was legally sufficient 

to sustain a verdict of guilty to murder with a firearm specification. 
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{¶32} Regarding the murder of Frank, the State presented the testimonies of 

Zachary Deal, Esmeralda Ferguson, and Sheriff’s Deputies Garcia and Dyson, 

wherein Appellant confessed his culpability. Zachary Deal testified that Appellant 

admitted that he “shot [Frank] in the head, too.” (Id. at 600). Ferguson testified that 

the Appellant stated that he “shot Frank in the head.” (09/27/2016 Tr., Vol. II, at 

449). And Deputies Garcia and Dyson testified that Appellant “put a gun to Frank’s 

head” and that Appellant “had the taste of blood in his mouth. (09/29/2016 Tr. at 

Vol. IV, at 728; 794). Further, Frank’s DNA was found on Ferguson’s gun which 

Appellant possessed for only two days before he returned it. Frank’s DNA was also 

found in the driver side seat of the 2016 Jeep. (09/28/2016 Tr., Vol. III, at 707-08). 

{¶33} Thus, we find as a matter of law that the prosecution presented legally 

sufficient evidence to the jury on Frank’s murder and the firearm specification 

through his multiple admissions of guilt and link to the murder weapon. Thus, 

legally sufficient evidence exists in the record for any rational trier of fact to find 

that the essential elements of murder (with a firearm) were proven beyond a 

reasonable doubt in Frank’s murder and the second assignment of error is overruled. 

Assignment of Error III 

{¶34} In his third assignment of error, Appellant asserts that the trial court 

erred by failing to instruct the jury on lesser included offenses or lesser degrees of 

murder. Specifically, Appellant asserts that the trial court erred by refusing to give 
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the jury an instruction on the lesser included offenses of reckless homicide and 

voluntary manslaughter. 

{¶35} Appellant contends that the testimony concerning his use of 

Ferguson’s gun established that he only intended to scare Frank, not kill him, or in 

the alternative, that the trial court should have given an instruction on voluntary 

manslaughter, because the Appellant acted under the influence of sudden passion or 

in a sudden fit of rage, brought on by the serious provocation of the victim. For the 

reasons that follow, we find Appellant’s arguments under this assignment are 

without merit. 

Standard of Review 

{¶36} “It is well-established that a trial court has broad discretion in 

instructing the jury.” State v. Smith, 10th Dist. Franklin No. 01AP-848, 2002-Ohio1479, *2, citing Jenkins v. Clark, 7 Ohio App.3d 93, 100, 454 N.E.2d 541 (2nd 

Dist.1982). However, “[t]he court must give all instructions that are relevant and 

necessary for the jury to weigh the evidence and discharge its duty as the factfinder.” 

State v. Joy, 74 Ohio St.3d 178, 181, 1995-Ohio-259, 657 N.E.2d 503 citing State 

v. Comen, 50 Ohio St.3d 206, 210, 553 N.E.2d 640 (1990). 

{¶37} “‘In reviewing the sufficiency of jury instructions given by a trial 

court, the proper standard of review . . . is whether the trial court’s refusal to give a 

requested jury instruction constituted an abuse of discretion under the facts and 
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circumstances of the case.’” State v. Thompson, 3rd Dist. Henry No. 7-16-10, 2017-

Ohio-792, ¶ 11, quoting Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio 

App.3d 89, 2010-Ohio-4173, 940 N.E.2d 993, ¶ 30. An abuse of discretion connotes 

more than a mere error of law or an error in judgment. It implies an arbitrary, 

unreasonable, unconscionable attitude on the part of the court. State v. Adams, 62 

Ohio St.2d, 151, 157, 404 N.E.2d 144 (1980). 

Reckless Homicide Jury Instruction 

{¶38} R.C. 2903.041(A) states: “no person shall recklessly cause the death 

of another * * *.” R.C. 2903.041(A). Reckless homicide may be a lesser included 

offense of murder. State v. Day, 8th Dist. Cuyahoga No. 83138, 2004-Ohio-1449, 

¶ 47. “Recklessly” under R.C. 2901.22(C) is defined as follows: 

A person acts recklessly when, with heedless indifference to the 

consequences, the person disregards a substantial and unjustifiable 

risk that the person’s conduct is likely to cause a certain result or is 

likely to be of a certain nature. A person is reckless with respect to 

circumstances when, with heedless indifference to the consequences, 

the person disregards a substantial and unjustifiable risk that such 

circumstances are likely to exist. 

R.C. 2901.22(C). Appellant asserts, while completely denying the murder charges, 

even if something did happen the greatest charge he could be convicted of was 

reckless homicide, because testimony indicated that Appellant only wanted to scare 

Frank, not kill him. Therefore, Appellant contends that the trial court abused its’ 
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discretion by denying him the reckless homicide instruction. We find this argument 

to be without merit. 

{¶39} As an initial matter, we note that the Ohio Supreme Court has held that 

a defendant does not have the right to control whether a jury receives instructions 

on lesser included offense. State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 

N.E.3d 1207, ¶ 17. Rather, the law, evidence presented, and the discretion of the 

trial judge play a role in whether lesser-included offense jury instructions are 

appropriate. Id. at ¶ 21. 

{¶40} In our review of the record, the evidence does not support that 

Appellant’s shootings of Hannah and Frank were done recklessly. Granted, 

Appellant may have borrowed Ferguson’s gun to scare Frank, but the autopsies and 

testimony support that the Appellant shot Hannah at point blank range and shot 

Frank in the back of the head. Dr. Diane Scala-Barnett (“Dr. Scala-Barnett”) of the 

Lucas County Coroner’s Office, performed the autopsy of Frank on March 16, 2016 

and testified that Frank died as a result of a single gunshot wound to the back of the 

head. (09/28/2016 Tr., Vol. III, at 493, 495). Dr. Jeffrey Hudson (“Dr. Hudson”) 

of the Lucas County Coroner’s Office, performed the autopsy of Hannah on 

February 11, 2016 and testified that Hannah died as a result of a gunshot wound to 

the left side of her forehead/temple. (Id. at 509-10). These findings, coupled with 

Zachary Deal’s testimony that Appellant admitted to shooting both Hannah and 
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Frank in the head because he felt “disrespected,” support that the trial court was not 

unreasonable in failing to instruct the jury on reckless homicide. (09/28/2016 Tr., 

Vol. III, at 600). Accordingly, Appellant’s assertion that the trial court should have 

instructed the jury on reckless homicide is without merit. 

Voluntary Manslaughter Jury Instruction 

{¶41} Voluntary Manslaughter is an inferior degree offense to murder. See 

generally, State v. Manley, 3rd Dist. Allen No. 1-01-159, 2002-Ohio-5582, ¶ 10. A 

defendant may mitigate a charge of murder to manslaughter if “the defendant 

establishes the mitigating circumstances of sudden passion or a sudden fit of rage in 

response to serious provocation by the victim sufficient to incite the defendant to 

use deadly force.” (Emphasis added). Id. A defendant is entitled to a jury 

instruction on voluntary manslaughter where the evidence presented at trial would 

reasonably support both an acquittal on the crime charged and a conviction upon the 

inferior degree offense. Id. When determining whether an instruction on an inferior 

degree of murder should have been given, the same test for whether an instruction 

on a lesser-included offense should have been given is utilized. State v. Shane, 63 

Ohio St.3d 630, 632, 590 N.E.2d 272 (1992). 

{¶42} In our review of the record, we find that the evidence does not support 

the jury being instructed on voluntary manslaughter. Appellant argues that Frank’s 

act of placing an unloaded gun to his (Appellant’s) head and pulling the trigger is 
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an act sufficient to incite a sudden passion or sudden fit of rage justifying him in 

shooting both Frank and Hannah in the head. This argument lacks reason under the 

facts presented. 

{¶43} In making his “sudden fit of rage” argument, Appellant ignores the 

“sudden” requirement set forth in the voluntary manslaughter statute. Testimony at 

trial revealed that the incident (wherein Frank put a gun to Appellant’s head) 

occurred sometime in mid-January, 2016. (09/29/16 Tr., Vol. IV, at 793, State’s 

Ex. 44). However, evidence presented at trial established that Frank and Hannah 

were murdered in early February, 2016, more than two weeks after the incident. 

(09/28/2016 Tr., Vol. III, at 516). Thus, the passage of time between Frank’s scaring 

of Appellant and Appellant’s retaliation resolves this argument. 

{¶44} The Ohio Supreme Court held in State v. Mack, “[p]ast incidents or 

verbal threats do not satisfy the test for reasonably sufficient provocation when there 

is sufficient time for cooling off.” State v. Mack, 82 Ohio St.3d 198, 201, 1998-

Ohio-375, 694 N.E.2d 1328, citing State v. Huertas, 51 Ohio St.3d 22, 31-32, 553 

N.E.2d 1058 (1990). In determining what constitutes a sufficient time for cooling 

off, it has been consistently held that the cooling off period is a very short time span. 

E.g., State v. Kanner, 7th Dist. Monroe No. 04 MO 10, 2006-Ohio-3485, ¶ 28 (in 

examining what constitutes an adequate “cooling off” time span, the court recited 

case law from different districts that held anything from the few seconds it takes to 
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reload a gun to the time it takes to drive home and retrieve a weapon is a sufficient 

“cooling off” period). 

{¶45} Accordingly, because Appellant had sufficient time to “cool off” from 

the January incident with Frank, we are unpersuaded that an instruction on voluntary 

manslaughter was appropriate. Thus, we find that the trial court did not abuse its 

discretion by refusing to give an instruction on voluntary manslaughter and we 

overrule Appellant’s third assignment of error. 

Assignment of Error IV 

{¶46} In his fourth assignment of error, Appellant contends that the trial 

court erred by not instructing the jury on self-defense. Appellant asserts that 

because the evidence supported that Appellant was afraid of Frank after Frank put 

an unloaded gun to his head, the trial court should have instructed the jury on selfdefense. 

{¶47} Self-defense is an affirmative defense. State v. Martin, 21 Ohio St.3d 

91, 93, 488 N.E.2d 166 (1986). “R.C. 2901.05(C)(2) defines an affirmative defense 

as ‘[a] defense involving an excuse or justification peculiarly within the knowledge 

of the accused, on which he can fairly be required to adduce supporting evidence.’” 

Id. The burden of proving an affirmative defense, by a preponderance of the 

evidence, is on the defendant. Id. See generally, State v. Smith, 3rd Dist. Logan 
Case No. 11-16-07 

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No. 8-12-05, 2013-Ohio-746, ¶ 16 (listing the elements that a defendant must show 

to establish a claim of self-defense). 

{¶48} To prove a claim of self-defense, a defendant must establish, by a 

preponderance of the evidence, the following: “(1) that he was not at fault in giving 

rise to the affray, (2) that he had a bona fide belief that he was in imminent danger 

of death or great bodily harm and that his only means of escape was the use of such 

force, and (3) that he did not violate any duty to retreat or avoid the danger.” State 

v. Jackson, 22 Ohio St.3d 281, 282, 490 N.E.2d 893 (1986). “Preponderance of the 

evidence” means the greater weight of the evidence. Dawson v. Anderson, 121 Ohio 

App.3d 9, 13, 698 N.E.2d 1014 (10th Dist.1997). 

{¶49} At the outset, we note that Appellant failed to request a jury instruction 

for self-defense. “The failure to raise an issue at trial acts as a waiver of the issue 

on appeal except for plain error.” Deutsche Bank Natl. Trust Co. v. Sopp, 2016-

Ohio-1402, 62 N.E.3d 863, ¶ 8 (10th Dist.) citing Cleveland v. Ellsworth, 8th Dist. 

Cuyahoga No. 83040, 2004-Ohio-4902, ¶ 8. “‘Plain errors or defects affecting 

substantial rights may be noticed although they were not brought to the attention of 

the court.’” State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978) quoting 

Crim.R. 52(B). Plain error should be applied cautiously and only in exceptional 

circumstances. Id. Plain error should be applied only to avoid a clear miscarriage 
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of justice, and but for the error, the outcome of the trial clearly would have been 

otherwise. Id. at 97. 

{¶50} In our review of the record, Appellant has not established that “the 

outcome of the trial clearly would have been otherwise” had the trial court given an 

instruction on self-defense. We find that there is no evidence in the record to support 

Appellant’s argument that a situation involving the need for self-defense arose at or 

near the time of Frank and Hannah’s murders. Not only has Appellant failed to 

provide us with evidence of plain error, he also failed to establish by a 

preponderance of the evidence that he acted in self-defense by shooting Frank 

and/or Hannah. Accordingly, we overrule Appellant’s fourth assignment of error. 

Assignment of Error V 

{¶51} In Appellant’s fifth assignment of error, Appellant asserts that the trial 

court erred in not considering or ruling on his request for new trial counsel. 

Appellant asserts that prior to trial, there was a complete breakdown in his attorneyclient relationship, and as a result his trial counsel should have been replaced. 

Appellant also asserts that he sent letters to the trial court relative to the breakdown, 

and the trial court erred by failing to rule on Appellant’s request. We disagree. 

Standard of Review 

{¶52} “‘An indigent defendant has no right to have a particular attorney 

represent him and therefore must demonstrate ‘good cause’ to warrant substitution 
Case No. 11-16-07 

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of counsel.’” State v. Cowans, 87 Ohio St.3d 68, 72, 1999-Ohio-250, 717 N.E.2d 

298, quoting United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). “‘[T]he trial 

judge may * * * [deny the requested substitution and] require the trial to proceed 

with assigned counsel participating if the complaint * * * is unreasonable.’” Id. at 

72, 73, quoting State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), syllabus. 

“The trial court’s decision is reviewed under an abuse of discretion standard.” Id. 

{¶53} “Under an abuse of discretion standard, a lower court’s decision will 

not be reversed for mere error, but only when the court’s decision is unreasonable, 

arbitrary, or unconscionable.” Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio4542, 3 N.E.3d 144, ¶ 9. Given that the abuse of discretion standard is a deferential 

review, “[i]t is not sufficient for an appellate court to determine that a trial court 

abused its discretion simply because the appellate court might not have reached the 

same conclusion or is, itself, less persuaded by the trial court’s reasoning process 

than by countervailing arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, ¶ 14. If there is some competent, credible evidence to 

support the trial court’s decision, there is no abuse of discretion. Middendorf v. 

Middendorf, 82 Ohio St.3d 397, 401, 1998-Ohio-403, 696 N.E.2d 575. 

{¶54} “‘Factors to consider in deciding whether a trial court erred in denying 

a defendant’s motion to substitute counsel include the timeliness of the motion; the 

adequacy of the court’s inquiry into the defendant’s complaint; and whether the 
Case No. 11-16-07 

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conflict between the attorney and client was so great that it resulted in a total lack 

of communication preventing an adequate defense.’” State v. Beadle, 3rd Dist. 

Hancock No. 5-13-08, 2013-Ohio-5659, ¶ 17, quoting State v. Jones, 91 Ohio St.3d 

335, 342, 2001-Ohio-57, 744 N.E.2d 1163. 

Analysis 

{¶55} While Appellant asserts that the trial court abused its discretion in not 

ruling on Appellant’s motion, Appellant has provided no record of his handwritten 

letters for us to review. Other than the assertion that he wrote letters to the trial 

court requesting new counsel, and one reference to the sentencing transcript that 

indicated that he was not happy with his trial counsel (after being convicted of two 

counts of Murder), the record before us is void of any evidence to support this 

assignment of error. 

{¶56} In essence, Appellant offers no support, either legal or factual, for his 

assertion that the trial court erred by failing to replace his trial counsel or rule on his 

handwritten requests. “‘The court may disregard an assignment of error presented 

for review if the party raising it fails to identify in the record the error on which the 

assignment is based * * *.’” Gianetti v. Teakwood, Ltd., 10th Dist. Franklin No. 

15AP-413, 2016-Ohio-213, ¶ 30 quoting App.R.12(A)(2). “‘It is the duty of the 

appellant, not the appellate court, to construct the legal arguments necessary to 

support the appellant’s assignments of error.’” Id. quoting Bond v. Canal 
Case No. 11-16-07 

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Winchester, 10th Dist. Franklin No. 07AP-556, 2008-Ohio-945, ¶ 16. As it is not 

this court’s duty to search the record for some evidence related to his handwritten 

motions to support Appellant’s argument, we conclude our analysis and overrule 

Appellant’s fifth assignment of error. 

Assignment of Error VI 

{¶57} Lastly, Appellant contends that he was denied the effective assistance 

of counsel, because Appellant did not believe that his attorneys were giving him an 

adequate defense. Appellant further asserts that he disagreed with his defense 

counsel’s strategy, which resulted in a breakdown of the attorney-client relationship 

and their “nearly non-existent” communication. Finally, Appellant criticizes his 

defense counsel’s performance at trial as being ineffective. We disagree with 

Appellant that he was denied effective assistance of counsel. 

Standard of Review

{¶58} “‘When a convicted defendant complains of the ineffectiveness of 

counsel’s assistance, the defendant must show that the counsel’s representation fell 

below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d 

150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466 

U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must 

show that there is a reasonable probability that, but for counsel’s unprofessional 
Case No. 11-16-07 

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errors, the result of the proceedings would have been different.’” Id., at 694. See 

also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989). 

{¶59} In analyzing a claim for ineffective assistance of counsel, this court’s 

scrutiny of counsel’s performance must be highly deferential, with a “‘strong 

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

professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687-

88. “Counsel’s performance will not be deemed ineffective unless and until 

counsel’s performance is proved to have fallen below an objective standard of 

reasonable representation and, in addition, prejudice arises from counsel’s 

performance.” Id. 

Analysis 

{¶60} We again begin our analysis noting that Appellant reiterates his 

arguments from his previous assignments of error with the notion that his trial 

counsel’s performance was deficient. However, Appellant cannot direct us to any 

specific instance in the record to support that his counsels’ representation fell below 

an objective standard of reasonableness. 

{¶61} Thus, the specific complaints Appellant makes in this assignment of 

error are unpersuasive. Each of the alleged deficiencies – spending too little time 

with Appellant for trial preparation, not requesting jury instructions on self-defense 

and voluntary manslaughter, and the fact that the trial court had to remind 
Case No. 11-16-07 

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Appellant’s counsel to make Crim.R. 29 motions, standing alone and together, fall 

“‘within the wide range of reasonable professional assistance.’” State v. Bradley, 

42 Ohio St.3d 136, 143-44, 538 N.E.2d 373 (1989) quoting Strickland, supra. 

{¶62} Contrary to Appellant’s arguments, the record is replete with examples 

of his trial counsel providing reasonable representation. For example, Appellant’s 

trial counsel successfully limited Appellant’s statements to law enforcement 

officers through a motion in limine. (08/27/2016 Tr., Vol. II, at 226). Further, 

Defense counsel presented two fact witnesses on Appellant’s behalf at trial. 

(09/29/2016 Tr., Vol. IV, at 823; 842). Additionally, Appellant’s counsel filed 

numerous pretrial motions including: a Motion for Appropriation of Investigator 

Funds; a Motion in Limine Regarding Statement of Defendant; a Motion for 

Defendant to Appear in Street Clothes; and a Motion to Prohibit Expressive 

Clothing by Courtroom Spectators. (Doc. Nos. 20, 63, 64, 87). 

{¶63} In our review of the record, we find that Appellant’s trial counsel acted 

within a reasonable degree of professional representation, and as such, we find 

Appellant’s argument regarding ineffective assistance is without merit. 

{¶64} Accordingly, Appellant’s sixth assignment of error is overruled. 

 
Case No. 11-16-07 

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{¶65} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI and SHAW, J.J., concur. 

/jlr