[Cite as State v. Barker, 2023-Ohio-453.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111597

v. :

ANDREW BARKER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 16, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-650606-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Gregory Mussman, Assistant Prosecuting 

Attorney, for appellee. 

Rick L. Ferrara, for appellant. 

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Andrew “Drew” Barker, appeals from his 

judgment of conviction, which was rendered after a jury trial. After a thorough 

review of the facts and pertinent law, we affirm.
Procedural History and Facts 

In 2020, Barker was charged in a seven-count indictment with two 

counts of murder, four counts of felonious assault, and one count of improperly 

discharging a firearm into a habitation. The counts all had one- and three-year 

firearm specifications.

The matter proceeded to trial, and the jury convicted Barker of two 

counts of murder, unclassified felonies, one a violation of R.C. 2903.02(A) and the 

other a violation of R.C. 2903.02(B); two counts of felonious assault, in violation of 

R.C. 2903.11(A)(1); and one count of improperly discharging a firearm into a 

habitation, in violation of R.C. 2923.161(A)(1); and all attendant firearm 

specifications. The jury acquitted Barker of two counts of felonious assault, 

pursuant to R.C. 2903.02(A)(2), which alleged that Barker knowingly caused or 

attempted to cause physical harm by means of a metal pole.

The trial court sentenced Barker to life in prison with the possibility of 

parole after 27 years.

The charges resulted from the March 26, 2019 shooting death of Ivette 

Perez and injuries caused to Perez’s 14-year-old daughter, G.T.1 

Ivette lived with her two daughters, J.G. and G.T., and her husband,

Roberto Riviera, in a small two-story apartment building located on Lake Avenue in 

Cleveland; their apartment was 203.

1 Juveniles are referred throughout by their initials in accordance with this court’s 

policy. See Loc.App.R. 13.2.
Christina Hernandez resided just below Ivette’s apartment in 

apartment 103. Christina lived with her two daughters and her daughters’ father, 

Darius Dobson. Christina was seven months pregnant with Barker’s child at the 

time of the shooting. On the day of the shooting, Christina’s sister, Diana, and three 

cousins, Z.S., B.E., and N.K., were at Christina’s apartment. 

Christina and Ivette’s families were not on friendly terms. On the 

afternoon of the shooting, an argument broke out between the two families. During 

the ensuing confrontation, which took place in the small hallway outside Ivette’s 

apartment, Z.S. tried to punch shooting victim G.T., J.G. (Ivette’s other daughter) 

grabbed a “fake BB-gun” and hit Christina over the head with it, and Ivette’s hand 

or arm was injured. Witnesses described the scene as chaos, with “everyone”

throwing punches. The fight ended when Ivette pushed her family back into their

apartment. Christina and her family returned downstairs to their apartment.

Ivette’s husband, Riviera, returned home soon thereafter and saw the 

injury to Ivette’s hand or arm, which was bleeding. He grabbed a black pipe or pole

and went down to Christina’s apartment. He banged on the door, but no one 

answered. Riviera returned to his apartment and called the police. According to 

Christina’s sister, Diana, Riviera had a gun at one point during the events that took 

place that day.

During this time, Christina called Barker, who told her to call the 

police. Barker arrived at the apartment complex in a white van about 10 – 15 

minutes after the fight broke up between the two families. Barker was accompanied 
by his dog and one to two other men, who may have been his sons, but who were 

never identified. He was armed with a shotgun and metal pole or pipe. Surveillance 

video, which was played for the jury and entered into evidence, showed that Barker 

was at the apartment complex for just over three minutes. Barker first went to 

Christina’s apartment. He then went to Ivette’s apartment and banged on the door,

but her family refused to open the door so Barker went outside.

By this time, Christina and some of her family members were also 

outside directly behind apartments 103 and 203. Ivette and G.T. were at the window 

watching, while Riviera was in the kitchen on the phone with the police. Ivette put 

up her middle finger and was yelling at Barker through the closed window. Barker 

pointed his shotgun atIvette’s window and fired a single shot. Barker fled the scene, 

leaving Christina and her children behind. 

The bullet pierced Ivette’s hand and neck, fatally injuring her. She was 

hospitalized and survived for 11 days before succumbing to her injuries. The coroner 

testified that the shotgun pellets perforated Ivette’s carotid artery. Part of her left 

hand was also shot, requiring amputation of her fingers. The coroner determined 

the cause of death to be acute pneumonia and respiratory failure and the manner of 

death as homicide. Fourteen-year-old G.T. was shot in the face and sustained 

serious injuries.

At trial, Christina’s then 13-year-old cousin N.K. testified that Barker 

had a gun when he arrived at the apartment complex. She testified he was holding 

the gun when he went upstairs to confront Ivette and was still holding it when he
went back downstairs and exited the building. N.K. heard Barker threaten to shoot 

the neighbors if they did not stop “flicking” him off. She saw Barker shoot at Ivette’s 

apartment window. According to N.K., Ivette and her daughter were not armed. 

B.E., another of Christina’s cousins, was interviewed by homicide 

detectives on June 22, 2020, more than a year after the shooting. During the 

interview, which was recorded, played for the jury, and entered into evidence, B.E. 

told police that Barker had a shotgun, warned the neighbors to stop taunting him, 

and fired the shotgun into the window when the neighbors would not stop. 

According to B.E., Barker did not have the shotgun when he first arrived but

returned to his van to retrieve it. 

At trial, however, B.E. testified that she did not see who did the 

shooting or who was shot. When the state showed B.E. the video of her interview 

with police detectives, she admitted to what she told detectives. She then testified 

that “they,” meaning Ivette’s group, had a “little” gun. The prosecutor asked what 

Ivette’s family was doing upstairs when Barker shot at them. B.E. testified, “they 

were just talking. They were still talking, still just being — trying to add on to the 

situation that had already deescalated.” She further testified that after the initial 

confrontation with Ivette’s family, she and other members of Christina’s family went 

outside “because the situation had deescalated and we were leaving.” According to 

B.E., speaking about Ivette,
They’re yelling at us, waiving the gun around. Calling us names, still 

talking in Spanish, and then they — I think they like they aimed it back 

towards us * * * and started laughing, * * *.[

2]

Diana, Christina’s sister, initially testified that she did not remember 

what happened on the day of the shooting. During her testimony, the state played 

the police body-cam video of Diana talking to responding officers shortly after the 

shooting. 

In the video, Diana told police, “I see he had a rifle * * * Drew went 

outside and I seen [sic] him lift it up and * * * he just shot it through the window

* * * he just aimed for the back of the house.” Diana also used hand motions to

mimic someone holding a shotgun or rifle and raising it. She told police she saw the 

shooting because she was standing near Barker when it happened. During her 

testimony, Diana said she did not know what she was saying at the time of the 

shooting because she was addicted to alcohol and pills but was sober at trial.

Christina testified that she called Barker to come over after her 

confrontation with Ivette. She testified that she was worked up after the initial fight 

and ready to fight again. Christina remembered she saw Barker go outside and she 

heard a loud noise and glass shattering shortly thereafter.

Victim G.T. testified that the downstairs neighbors came to her 

apartment to fight. Z.S. attempted to punch G.T., but G.T. ducked. J.G., G.T.’s 

sister, pulled out a BB gun and hit Christina in the head with it. Ivette injured her 

2 During her testimony B.E. does not identify who “they” are from Ivette’s family 

that allegedly had a gun and was waiving it around.
hand during the melee, and it was bleeding. Later, after they had returned to their 

apartment, they heard a loud knock at the door. G.T. looked out the peep hole and 

saw Barker. He threatened to kill everyone in the apartment. G.T. did not open the 

door. She and her mother went to look outside the window. G.T. saw the same man 

who had been at the door. He pointed the gun at G.T. and her mother, yelled “you 

p***,” and fired. G.T. and her mother fell to the ground. Riviera, Ivette’s husband,

was in the kitchen on the phone with the police when the shooting occurred. G.T. 

was shot in the face.

J.G., Ivette’s other daughter, testified that both families participated 

in the fight in the hallway. J.G. admitted to hitting Christina over the head with a 

BB gun, but insisted it was “fake” and did not work. J.G. heard a loud knock at their 

apartment door about ten minutes after the fight ended and each family had 

retreated to their respective apartments. Her family refused to open the door so the 

man that had been at their door went outside to their side window. Her mother and 

sister were looking out the window; they were not armed.

Barker testified in his own defense. Barker testified that Christina 

called him upset and he went over to her apartment, taking his dog and “people”

that “love him and want to protect him and his family.” He spoke with Christina and 

then went to confront Ivette. He testified that he had a pole in one hand and his dog

on a leash in the other hand. He knocked at her door with the pole and shouted 

“come out here and show me your face. Come out here and talk to me,” but no one 

opened the door. According to Barker, he decided to get his family “out,” which 
meant he was going to leave the area with Christina and her family. Barker insisted 

that he wanted to fight Riviera, because he thought he had beat up Christina, who 

was pregnant, and thought Riviera was armed.

According to Barker, he heard a lot of commotion outside, so he went 

outside with his dog, holding the pole, to see what was going on. He saw people 

gathered around. He looked up and saw a woman in an upstairs window making 

gestures and a man standing behind her holding a gun. Barker testified that the gun 

“looked like it was getting pointed at me or one of the people that was down there

* * * it was facing in our direction.” He thought the man might want to shoot him so 

he threw the pole he was holding, since “I could not throw my dog up there, so I had 

to use the next best thing.” According to Barker, he heard a boom and thought it 

was a gunshot and he fled, leaving Christina and her family behind. 

Inside Ivette’s apartment, the police located a BB gun on top of an 

open drawer in a bedroom, a silver pole or pipe with blood on it, and the black pipe 

witnesses said Riviera had. The shotgun was never recovered. A warrant was issued 

for Barker’s arrest on April 26, 2019, but he was not arrested until May 7, 2020. 

During his 90-minute interview with homicide detectives, which was recorded, 

played for the jury, and entered into evidence, Barker denied having a shotgun or 

shooting Ivette and G.T. Barker, who waived his right to an attorney present during 

the interview, insisted he went to Christina’s apartment because a man had a gun 

and had hit her with the gun. Barker wanted the man to fight him. According to 

Barker, “I made sure that if something was going to happen, I was going to diffuse it 
to protect me. I had whatever weapon I had to protect me,” but never admitted he 

had a gun. 

Assignments of Error

I. The State of Ohio was relieved of its obligation to prove beyond a 

reasonable doubt that appellant did not act in defense of another, 

therefore depriving appellant of due process under the laws of Ohio and 

the United States. 

II. The state presented both insufficient evidence of appellant’s guilt of 

murder and insufficient evidence to overcome appellant’s established 

claim of self-defense. 

III. The manifest weight of evidence did not support a conviction of 

Appellant of Counts 1 through 5. 

IV. The sentencing under Ohio law violated the separation of powers 

doctrine of the Constitutions of the State of Ohio and United States, due 

process of law, are void for vagueness, and conflict internally with other 

Ohio law.

Law and Analysis

No Plain Error in Jury Instructions

In the first assignment of error, Barker argues that the trial court 

failed to properly instruct the jury on the affirmative defense of self-defense. 

As to self-defense, the court instructed the jury, in part:

Self-defense, use of deadly force. General. A person is allowed to use 

deadly force in self-defense. The State must prove beyond a reasonable 

doubt that the Defendant, when using deadly force, did not act in selfdefense. 

The State’s proof. To prove that the Defendant’s use of deadly force was 

not in self-defense, the State must prove beyond a reasonable doubt at 

least one of the following: 
(A) the Defendant was at fault in creating the situation giving rise to the 

shooting which occurred at the home of Ivette Perez, also known as 

Gonzalez, on March 26, 2019; or [(B),] the Defendant did not have 

reasonable grounds to believe that he was in immediate danger of death 

or great bodily harm; or (C), that the Defendant did not have an honest 

belief, even if mistaken, that he was in immediate danger of death or 

great bodily harm; or (D), the Defendant violated a duty to retreat to 

avoid the danger; or (E), the Defendant used unreasonable force.

The Defendant did not act in self-defense if the State proved beyond a 

reasonable doubt that the Defendant was at fault in creating the 

situation that resulted in the death. The Defendant was at fault if the 

Defendant was the initial aggressor and Ivette Perez did not escalate 

the situation by being the first to use or attempt to use deadly force; or 

the Defendant provoked Ivette Perez into using force; or [ ] the 

Defendant did not withdraw from the situation; * * * .

In instructing the jury on self-defense, the trial court also defined the 

following terms and their application to self-defense: reasonable grounds, honest 

belief, no duty to retreat, substantial risk, words, unreasonable force, and greatly 

disproportionate.

Barker did not object to the trial court’s jury instruction on selfdefense. He nevertheless argues on appeal that the trial court erred in instructing 

the jury on self-defense by omitting the instruction on defense of another because 

there was evidence that he was acting in defense of another, namely Christina and 

her family, which Barker referred to as his family.

In considering a claim of plain error based on defective jury

instructions, “an appellate court must review the [jury] instructions as a whole and

the entire record to determine whether a manifest miscarriage of justice has

occurred as a result of the error in the instructions.” State v. Nicholson, 8th Dist. 
Cuyahoga No. 110595, 2022-Ohio-2037, ¶ 137, citing State v. Wamsley, 117 Ohio

St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45. An improper or erroneous jury

instruction does not constitute plain error unless, but for the error, the outcome of

the trial would clearly have been different. Nicholson at id., citing State v. Davis,

8th Dist. Cuyahoga No. 109890, 2021-Ohio-2311, citing State v. Cooperrider,

4 Ohio St.3d 226, 448 N.E.2d 452 (1983). Therefore, Barker must demonstrate that 

his convictions for murder, felonious assault, and improper discharge into a 

habitation clearly would have been different had the trial court instructed on the 

affirmative defense of another. See State v. Gay, 8th Dist. Cuyahoga No. 86944, 

2006-Ohio-3683, ¶ 19 (finding that there was substantial evidence of defendant’s 

guilt and defendant was unable to show that his conviction would have been 

different had the trial court instructed on the affirmative defense of defense of 

another). 

A self-defense claim includes the following elements:

(1) that the defendant was not at fault in creating the situation giving 

rise to the affray; (2) that the defendant had a bona fide belief that he 

[or she] was in imminent danger of death or great bodily harm and that 

his [or her] only means of escape from such danger was in the use of 

such force; and (3) that the defendant did not violate any duty to retreat 

or avoid the danger.

State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 15, quoting State v. 

Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).

The self-defense instruction the trial court gave to the jury accurately 

defines the elements a defendant must establish to show he or she acted in self-
defense. Reviewing all the evidence presented after being instructed, the jury clearly 

did not find Barker’s version of events credible enough to sustain his affirmative 

defense. In Gay, this court noted that ‘“[t]he right of a person to defend another 

ordinarily should not be greater than such person’s right to defend him [or 

her]self.”’ Id. at ¶ 24, quoting State v. Wenger, 58 Ohio St.2d 336, 390 N.E.2d 801

(1979).

Barker cites State v. Speakman, 4th Dist. Pickaway No. 00CA035, 

2001-Ohio-2437, for the proposition that the trial court committed plain error in 

failing to instruct the jury on defense of another. In Speakman, the court 

determined that a combination of errors, which included an incomplete jury 

instruction on defense of another, were prejudicial to the appellant and remanded 

the case for a new trial. Id. at ¶ 14.

Speakman is distinguishable. The appellant in Speakman objected to 

the incomplete jury instruction; therefore, the appellate court was not reviewing for 

plain error. Additionally, the facts of the case differ greatly. In Speakman, the 

appellant was on scene and either saw the initial confrontation or was part of the 

initial confrontation as part of a series of events that included appellant hitting the 

victim over the head with his crutch. In this case, there was a break in the chain of 

events — the families had each retreated to their respective apartments — before 

Barker arrived on scene and shot Ivette and G.T. 

The jury was presented with a substantial amount of evidence in 

support of the state’s version of the evidence that Barker went over to Christina’s 
apartment to assess the situation with her neighbors, bringing one or two cohorts, 

his dog, a shotgun, and a metal pipe. Barker went up to Ivette’s apartment, but the 

family refused to open the door. So Barker went outside and when Ivette would not 

stop taunting him, he used a shotgun to shoot from the ground into a second-story 

window at Ivette and her teenage daughter, both of whom were unarmed, mortally 

wounding Ivette and seriously injuring G.T. Two people related to Christina’s side 

of the family admitted Barker had a gun. N.K., who was 13 at the time of the 

shooting, confirmed Barker had a gun. Diana, Christina’s sister, informed the police 

that Barker had a shotgun and used it to shoot into the second-story window. 

Barker, in contrast, testified that he used a metal pole to defend 

himself after seeing a man in the window with a gun and thinking he was going to 

get shot. After weighing the evidence, the jury did not find in favor of Barker’s selfdefense argument. It is therefore logical to conclude that the jury did not find 

Barker’s version of events credible. In that case, there would be no difference in the 

verdict had the trial court instructed on defense of another. Gay, 8th Dist. Cuyahoga 

No. 86944, 2006-Ohio-3683, at ¶ 25. We do not find that the jury’s decision would 

clearly have been different but for the alleged error in the trial court’s charge to the 

jury. 

At oral argument, counsel for Barker argued that Barker was merely 

ushering his family out of their apartment when he was faced with a man on the 

second floor holding a gun and had to defend his family by shooting at the window. 

Throughout, though, Barker denied he possessed or used a firearm. Although 
Barker claims he is making this argument in the alternative, this court understands 

how the jury did not believe Barker’s claims of self-defense when Barker maintained 

he never shot anyone. Moreover, Barker’s own testimony contradicts his claim of 

he was defending his family. When the prosecutor asked Barker why he threw the 

metal pole up through the window, Barker answered, “Because I was fearing for my 

life.” When Barker fled, he left Christina and her family, except for B.E., behind. 

At oral argument Barker’s counsel also raised an argument regarding 

ineffective assistance of trial counsel because defense counsel did not object to the 

jury instructions. The argument was not raised in his brief on appeal and is 

therefore waived. See App.R. 12(A)(2) and App.R. 16(A).

The trial court did not commit plain error in failing to instruct the jury 

on defense of another. Accordingly, Barker’s first assignment of error is overruled.

Evidence Sufficient to Support Conviction; Conviction Not Against 

Manifest Weight of the Evidence

In the second assignment of error, Barker contends that the evidence 

was insufficient to support the conviction. In his third assignment of error, he 

contends that the conviction was against the manifest weight of the evidence. We 

combine these assignments of error because they are interrelated.

“A claim of insufficient evidence raises the question whether the 

evidence is legally sufficient to support the verdict as a matter of law.” State v. 

Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing State v. 

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry in 
a sufficiency challenge 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 existed beyond a reasonable doubt. State v. Jenks, 61 Ohio 

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When making a 

sufficiency determination, an appellate court does not review whether the state’s 

evidence is to be believed but whether, if believed, the evidence admitted at trial 

supports the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio3375, ¶ 25, citing Thompkins at id. Under a sufficiency challenge, witness credibility 

is immaterial; the appellate court must defer to credibility determinations of the 

trier of fact and only review issues of law. Parker at id.

A manifest weight challenge and a sufficiency of the evidence 

challenge are two distinct challenges to the evidence presented. State v. Miree, 8th 

Dist. Cuyahoga No. 110749, 2022-Ohio-3664, ¶ 30, citing State v. Wilson, 113 Ohio 

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. A challenge to the manifest 

weight of the evidence “‘involves the inclination of the greater amount of credible 

evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, 

quoting Thompkins at id. Weight of the evidence examines “‘the evidence’s effect of 

inducing belief.’” Harris at id., quoting Wilson at id., citing Thompkins at 386-387. 

In reviewing a manifest weight claim, the court must consider all the evidence in the 

record, the reasonable inferences drawn from it, and the credibility of the witnesses 

to determine “‘whether in resolving conflicts in the evidence, the factfinder clearly 

lost its way and created such a manifest miscarriage of justice * * *.’” Harris at id., 
quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 

N.E.2d 717 (1st Dist.1983). The discretionary power to grant a new trial should be 

reserved for exceptional cases where “‘the evidence weighs heavily against the 

conviction.’” Thompkins at id., quoting Martin at 175. More succinctly, the 

sufficiency of the evidence standard of review applies to a party’s burden of 

production and a manifest weight of the evidence standard of review applies to a

party’s burden of persuasion. Messenger, Slip Opinion No. 2022-Ohio-4562, at

¶ 26, citing State v. Messenger, 2021-Ohio-2044, 174 N.E.3d 425, ¶ 44-45

(10th Dist.).

Although sufficiency and manifest weight are different legal concepts, 

manifest weight may subsume sufficiency in conducting the analysis; that is, a 

finding that a conviction is supported by the manifest weight of the evidence 

necessarily includes a finding of sufficiency. State v. Mack, 8th Dist. Cuyahoga 

No. 109514, 2021-Ohio-1102, ¶ 17, citing State v. Jackson, 8th Dist. Cuyahoga 

No. 100125, 2015-Ohio-1946, ¶ 11. Therefore, “a determination that a conviction is 

supported by the weight of the evidence will also be dispositive of the issue of 

sufficiency.” State v. Burgos, 2022-Ohio-3919, 199 N.E.3d 1158, ¶ 41 (8th Dist.), 

citing State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161.

Barker was convicted of murder under R.C. 2903.02(A) and 

2903.02(B), which provide in relevant part, that no person shall purposely cause the 

death of another (R.C. 2903.02(A)) and “[n]o person shall cause the death of 

another as a proximate result of the offender’s committing or attempting to commit 
an offense of violence that is a felony of the first or second degree * * *.” 

R.C. 2903.02(B).

The underlying felony Barker was convicted of was felonious assault 

under R.C. 2903.11(A)(1) against Ivette. Barker was also convicted of felonious 

assault against G.T. under that same subsection, which provides in relevant part that 

“[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *.” 

Barker was convicted of improperly discharging a firearm into a habitation under 

R.C. 2926.131(A)(1). That section provides that “no person, without privilege to do 

so, shall knowingly * * * [d]ischarge a firearm at or into an occupied structure that 

is a permanent or temporary habitation of any individual.” Finally, Barker was 

convicted of the attendant one- and three-year firearm specifications.

Barker has two main arguments: (1) he did not purposely shoot Ivette 

and (2) the state failed to show he was not acting in self-defense.

A person commits murder by purposely causing the death of another. 

R.C. 2903.02(A). An act is committed “purposely” when it is a person’s specific 

intent to cause a certain result. R.C. 2901.22(A). “Intent may be inferred from the 

circumstances surrounding the crime.” State v. Mathis, 8th Dist. Cuyahoga 

No. 91830, 2009-Ohio-3289, ¶ 3, citing State v. Herring, 94 Ohio St.3d 246, 266, 

2002-Ohio-796, 762 N.E.2d 940. Because intent dwells in the mind of the accused, 

an intent to act can be proven from the surrounding facts and 

circumstances. Mathis at id., citing State v. Treesh, 90 Ohio St.3d 460, 484-485, 

739 N.E.2d 749 (2001). In Mathis, this court noted that
[a]n intent to kill may be presumed where the natural and probable 

consequence of a wrongful act is to produce death, and such intent may 

be deduced from all the surrounding circumstances, including the 

instrument used to produce death, its tendency to destroy life if 

designed for that purpose, and the manner of inflicting a fatal wound.

Id., citing State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517 (1954), paragraph five 

of the syllabus. “A firearm is an inherently dangerous instrumentality, the use of 

which is likely to produce death.” Mathis at id., citing State v. Seiber, 56 Ohio St.3d 

4, 14, 564 N.E.2d 408 (1990).

Barker arrived on scene after Christina’s and Ivette’s families had 

retreated into their respective apartments. By the time Barker arrived at the 

apartment complex, the altercation between the families had been over for 10-

15 minutes. Barker went to Ivette’s apartment with one to two men, his dog, and a 

weapon. G.T. testified that Barker yelled, “Come out, all of you. I’m going to kill all 

of you that are there.” When Ivette’s family refused to open the door, Barker took 

his shotgun and went outside. Multiple witnesses, including his girlfriend’s sister 

and cousin, saw Barker holding a shotgun. Barker aimed his shotgun at the window 

and fired the gun into the window where Ivette was standing. Diana testified she 

was standing next to Barker when he lifted the shotgun and fired through Ivette’s 

apartment window; Diana mimicked for the officers the action of raising a large rifle 

or shotgun to show them how Barker shot his gun into the apartment window. Thus, 

there was ample evidence that Barker acted with purpose.

Next, Barker argues that there was insufficient evidence that he did 

not act in self-defense. Barker’s argument is displaced. The sufficiency of the 
evidence standard relative to self-defense applies to Barker’s burden, not the state’s

burden. Barker has the burden of producing sufficient evidence he acted in selfdefense. He did so and the trial court gave the jury an instruction on self-defense. 

See State v. Messenger, 2022-Ohio-4562, at ¶ 26 (“[T]he trial court provided the 

jury with an instruction regarding self-defense, which means that the trial court 

concluded that Messenger put forward sufficient evidence that he was acting in selfdefense when he shot and killed Pack.”). See also State v. Claytor, 8th Dist. 

Cuyahoga No. 110837, 2022-Ohio-1938, ¶ 67, citing Fairview Park v. Peah, 8th Dist. 

Cuyahoga No. 110128, 2021-Ohio-2685 (“The sufficiency of the evidence standard 

only applies to elements the state must prove during its case in chief, not the 

affirmative defense of self-defense.”).

3

Barker also contends that the state did not prove that he was not 

acting in self-defense. In the context of self-defense, the state has the burden of 

disproving Barker’s claim beyond a reasonable doubt. Messenger at ¶ 27. The state 

only needs to prove one of the three elements — that Barker was at fault in creating 

the situation giving rise to the affray; that he 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 that he

violated a duty to retreat or avoid the danger — beyond a reasonable doubt to 

3 At oral argument, counsel for Barker conceded that Messenger was applicable to 

the case at bar and the sufficiency of the evidence standard does not apply to the 

affirmative defense of self-defense.
establish that self-defense does not apply. Claytor at ¶ 81, citing State v. Travis, 

8th Dist. Cuyahoga No. 110514, 2022-Ohio-1233.

Barker argues that the state could not meet its burden of persuasion 

because the police located a gun found in Ivette’s apartment, which supported his 

argument that a man, presumably Riviera, pointed a gun at him through the window 

and he acted in self-defense. He also points to conflicting witness testimony.

As stated previously, Barker has not shown that he was in fear of death 

or imminent great bodily harm to himself or others to warrant his use of deadly 

force. Barker arrived at the apartment building 10 – 15 minutes after the 

confrontation between Christina’s and Ivette’s families ended and both families had 

retreated to their respective apartments. When Barker arrived on scene, there was 

no imminent threat to Christina or Christina’s family. Barker went to Ivette’s 

apartment, but the family refused to open the door. At this point, there was no 

imminent threat to Barker, Christina, or Christina’s family. Barker then went 

outside with his shotgun. By all accounts Ivette raised her middle finger at Barker 

and yelled at him, through a closed window. Although Barker testified that Riviera 

was also at the window and had a gun, the jury clearly did not believe his version of 

events over the numerous witnesses that testified or told police that the people at 

the window were unarmed. Then, Barker raised his shotgun from his position on 

the ground up into the closed apartment window, shooting, hitting, and mortally 

wounding Ivette and seriously injuring her daughter, G.T.
The guilty verdicts on two counts of murder, two counts of felonious 

assault, and one count of improper discharge into a habitation show that the jury 

was not left with reasonable doubt. Moreover, the not guilty verdicts on felonious 

assault with a pipe show that the jury did have reasonable doubt as to two of the 

counts in the indictment. Although there was some inconsistency in witness 

testimony, the jury was able to assess the credibility of the witnesses and assign the 

proper weight to each witness’s testimony. The jury chose to believe the state’s 

version of events, bolstered by the testimony of witnesses from both families, and 

disbelieve Barker’s testimony that he threw a metal pipe at the second-story window 

to defend himself.

The weight of the evidence did not support a self-defense theory and 

Barker’s convictions were not against the manifest weight of the evidence. His 

convictions, therefore, were also supported by sufficient evidence.

The second and third assignments of error are overruled. 

The Reagan Tokes Law is Constitutional

In the fourth assignment of error, Barker argues that the trial court 

erred by imposing an indefinite sentence and challenges the constitutionality of S.B. 

201’s indeterminate sentencing provisions. He contends that the Reagan Tokes Law 

violates state and federal constitutional provisions for the right to a jury trial, the 

separation-of-powers doctrine, and due process. Barker concedes the same 

arguments were rejected in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 

(8th Dist.), and thus it appears his argument is advanced to preserve the claim for 
further review. Based on the authority established by this district’s en banc holding 

in Delvallie, Barker’s sentence does not violate his constitutional rights with respect 

to the challenges presented. The fourth assignment of error is overruled.

Conclusion

The trial court did not commit plain error in the self-defense 

instruction it gave to the jury. Barker’s convictions for murder, felonious assault, 

and improper discharge of a firearm into a habitation were not against the manifest 

weight of the evidence and were therefore also supported by sufficient evidence. 

Finally, the trial court did not err in imposing an indefinite sentence under the 

Reagan Tokes Law.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

________________________

MICHAEL JOHN RYAN, JUDGE

EILEEN T. GALLAGHER, P.J., and

EMANUELLA D. GROVES, J., CONCUR

N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in 

Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes 

Law are unconstitutional.

Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes 

(dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part) 

in Delvallie and would have found the Reagan Tokes Law unconstitutional.