State v. Robinson, Unpublished Decision (4-2-1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] CATEGORY: HOMICIDE — INSTRUCTIONS SUMMARY: The trial court did not err in refusing to instruct the jury on the doctrine of "transferred self-defense," as articulated inState v. Clifton (1972), 32 Ohio App.2d 284,290 N.E. 921: the Clifton instruction, which allows for an acquittal when the defendant mistakenly or accidentally kills a person while acting in self-defense, was inappropriate because the record indicated that the defendant was at fault in creating the situation that led to the affray and that he did not reasonably believe that he was in imminent danger of death or great bodily harm. [But, see, DISSENT: The trial court should have provided an instruction on transferred self-defense, where the evidence warranted the underlying instruction on self-defense; the defendant's involvement in criminal activity did not in and of itself create the "situation giving rise to an affray," even though the defendant may have anticipated the need to defend himself as a result of the criminal activity, and the defendant's belief in imminent harm was reasonable, although mistaken. By holding that self-defense was unwarranted under the circumstances because of the criminal activity, the majority has created a far-reaching rule unsupported by precedent.] JUDGMENT: AFFIRMED OPINION. Judgment Appealed From Is: Affirmed A jury found defendant-appellant Angelo Robinson guilty of murder and possession of cocaine, as well as three firearm specifications accompanying those charges. Robinson appeals his conviction for murder, raising three assignments of error. He does not challenge his drug conviction or the specification pertaining to that charge. In his first assignment, he challenges the trial court's failure to provide a jury instruction on transferred-intent self-defense. In his second and third assignments, he contends, respectively, that the evidence was insufficient to sustain his conviction and that the judgment was against the weight of the evidence. The following evidence was adduced at trial. Lisha House and Melvin Howell moved into an apartment on Linn Street in Cincinnati, Ohio. A few days after they moved in, a woman House knew as Linda approached her and asked if she could sell crack cocaine from the apartment. (It is unclear whether Linda's surname was Davis or Smith.) House gave her permission, and Linda, accompanied by Robinson, sold cocaine from the apartment that same day. The next day, Linda, carrying cocaine, and Robinson returned. After spending some time alone with Robinson behind the closed door of the apartment's one bedroom, Linda provided House with some cocaine for her personal use and then left the premises, claiming she was not feeling well. Linda told House, who was to help sell the cocaine, that Robinson was going to take care of everything. Before leaving, Linda ensured that Veronica Jackson also would arrive to help sell the cocaine. House's job in the drug sales was to allow purchasers into the building. Jackson's job was to allow purchasers into the apartment. Robinson was behind the locked bedroom door with the cocaine. Also present in the apartment were Howell and James Gibson. House was in her position near the outside door, talking to a drug runner, when she noticed five people outside. She told the runner to let them into the building. When the runner returned, he told her that he thought the five men intended to rob them. She ran up the steps and Jackson opened the door. Upon entering the apartment, House yelled at Jackson to close the door because the men had guns. Before Jackson could completely close the door, one of the men stuck his foot between the door and the doorjamb. Before the women were able to close the door, the man pushed the barrel of a gun through the door opening and fired several shots into the apartment. During this time, Robinson never left the locked bedroom. House described the scene: It was total chaos. And this happened in a split second. You have to put yourself, you have to really put yourself in everybody's position. Gunshots are going off. You're telling your friend to get down. She is running around with her head cut off, like a chicken with her head cut off. You trying to tell her to get down. I'm on my stomach in the kitchen. She goes to run anyplace to try and get cover 'cause I know her ears are still ringing too. She hits the bedroom door. More shots are fired. And then, I think she might have hit both of those doors at the same time, then more gunshots are fired. And the person that was behind the locked door was hearing the gunshots coming off like that. House explained that when Jackson tried to get into the bedroom, three shots came from behind the closed bedroom door. After the three shots, Robinson opened the door and asked his companions to call the police. Jackson died from a bullet wound to her chest, caused by a bullet fired through the bedroom door from the inside. The bullet was fired from the gun found at the scene, a .25-caliber Raven handgun. When the police arrived, they found a bag of crack cocaine and the handgun in the bedroom. In and around the apartment, they also found five spent .22-caliber cartridge casings-obviously from the gun or guns fired by the would-be robbers. Robinson approached two of the investigating police officers. He told them that, while he was standing outside, he saw five men enter the building, heard shots, and observed the men run away. He provided a description of two of the men. In other words, Robinson at first denied firing the fatal shot. However, he did not take the stand at trial. I. Self-Defense In Robinson's first assignment of error, he argues the trial court erred in refusing to instruct the jury on transferred self-defense under State v. Clifton.1 Although Robinson has not provided a copy of his proposed jury instruction to this court, the record demonstrates that he submitted the instruction and provided the trial court with a citation to State v.Clifton. The proposed instruction would have permitted the jury to acquit Robinson if it believed that he mistakenly or accidentally killed Jackson while acting in self-defense against the intruders. The court declined to give the instruction because the facts of this case did not involve a "crossfire situation" and because the "robbers" did not gain entrance into the apartment. The issue, as set forth by Robinson, is whether a defendant in a criminal trial is entitled, upon proper request by counsel, to an instruction on transferred-intent self-defense where the jury has been provided both with a transferred-intent instruction and with an instruction on self-defense. Robinson claims that the instruction on transferred intent without an accompanying instruction on transferred-intent self-defense rendered the jury instructions internally inconsistent and warrants reversal on appeal. However, before we reach the issue of the necessity of the transferred-intent self-defense instruction, we must determine in the first instance whether a self-defense instruction was proper under the facts of this case. If the issue of self-defense was not properly submitted to the jury, the propriety of the transferred-intent self-defense instruction becomes irrelevant. Because we hold that the evidence did not support an instruction on self-defense, we find no prejudicial error in the court's refusal to instruct on the Clifton doctrine of transferred-intent self-defense. This court has previously explained: Generally, a trial court is required to give all instructions that are relevant and necessary for a jury to weigh evidence and discharge its duty as factfinder. State v. Joy (1995), 74 Ohio St.3d 178, 181, 657 N.E.2d 503; R.C. 2945.11. The court must give instructions on all issues that are pertinent, legally correct and not covered by other instructions. See Joy, supra, at 181; State v. Scott (1986), 26 Ohio St.3d 92, 101, 497 N.E.2d 055. When a defendant asserts an affirmative defense, the trial court is obligated to provide an instruction to the jury on that issue only if the evidence adduced at trial is of a nature and quality sufficient to support the defense and to submit the issue to the jury. See State v. Melchior (1978), 56 Ohio St.2d 15, 381 N.E.2d 195, paragraph two of the syllabus; State v. Mitchell (1989), 60 Ohio App.3d 106, 108, 574 N.E.2d 573. However, when the evidence submitted by the defendant is insufficient as a matter of law to support the defense, the trial court commits no error in failing to submit the issue to the jury. See State v. Shane (1992), 63 Ohio St.3d 630, 631, 590 N.E.2d 272; Melchior, supra, at 20-21.2 Requested instructions must be "specifically applicable to facts in issue."3 Jury instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as factfinder must be given.4 The state argues that because the evidence did not warrant a self-defense instruction in the first instance, a transferred-intent self-defense instruction was unwarranted. We agree. A claim of self-defense requires evidence that the defendant was not at fault in creating the situation giving rise to the affray, 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 by the use of force, and that he did not violate any duty to retreat or avoid the danger.5 First, the evidence indicated that Robinson was at fault in creating the situation that led to the affray. The record indicates that Robinson intentionally assumed a primary role in the criminal enterprise that was operating out of the residence. His duties included the protection of the enterprise's inventory by means of a firearm. Thus, his intended role contemplated just such an affray as occurred in the case at bar; if intruders were to threaten the inventory, he was to use any means, including deadly force, to ward off the attack. Thus, the protection of his own person was incidental to his use of deadly force. The evidence indicated that such force would have been used in any event to protect the enterprise's cache of drugs. Although the evidence indicated that intruders did in fact enter the residence and that Robinson was therefore not solely at fault in the events that led to the affray, his fault was such that he should not have been given the benefit of the self-defense instruction. This court cannot sanction a rule of law whereby a person may arm himself with the specific purpose to protect a criminal enterprise and then claim self-defense when that enterprise is threatened. Thus, we hold that Robinson's fault in the case at bar required the rejection of the self-defense instruction. Second, Robinson failed to present sufficient evidence to indicate that he reasonably believed he was in imminent danger of death. The reasonableness of Robinson's belief that he faced imminent danger must be determined under a combined subjective and objective test.6 The objective part of the test requires consideration of "whether, considering all of the defendant's particular characteristics, knowledge, or lack of knowledge, circumstances, history, and conditions at the time of the attack," the defendant reasonably believed he was in imminent danger.7 The subjective part requires consideration of whether the defendant had an honest belief that he was in imminent danger. In the case at bar, the intruders had fled at the time that Robinson fired the shots, and Robinson did nothing to discern the identity of the person who was entering the door to the bedroom. Robinson contends that chaos reigned in the residence as a result of the intrusion and suggests that there was no time for reflection or investigation. However, in determining whether the second element of self-defense has been established, we must examine whether there existed some factual basis for the belief that the person who was fatally injured was in fact the aggressor. Here, no such basis is to be found. The record establishes Robinson's awareness that persons other than the intruders were present in the residence. His failure to present any evidence of an attempt to determine who was entering the room must defeat his claim that he reasonably feared imminent danger. To hold otherwise would be to permit any person in a dangerous situation to fire blindly in the hope that the person he strikes is in fact an aggressor and therefore his intended target. In addition to being an invitation to mayhem, such a rule would not be compatible with the requirement that the use of deadly force be based upon a reasonable belief that danger is imminent. Accordingly, we agree with the state that Robinson failed to produce sufficient evidence as to the second element of self-defense. Having concluded that the instruction on self-defense was contrary to the evidence, we must also conclude that Robinson was not prejudiced by the refusal of the trial court to instruct the jury as to transferred-intent self-defense. Robinson was given the benefit of an instruction to which he was not properly entitled. The trial court's rejection of an instruction that would have expanded the defense did not constitute reversible error. Robinson's first assignment of error is therefore overruled. II. Sufficiency of the Evidence In his second assignment of error, Robinson claims that the evidence presented by the state was insufficient to support his murder conviction. He specifically challenges the sufficiency of the evidence presented to prove that he acted purposely. The gist of his argument seems to be that because Robinson acted in self-defense, he lacked the intent to kill Jackson. We are not persuaded by this argument. Our function, in reviewing Robinson's sufficiency-of-the-evidence claim, is to examine the evidence presented at trial and to determine whether that evidence, viewed in a light most favorable to the state, would have convinced any rational trier of fact that Robinson was guilty beyond a reasonable doubt.8 Robinson's conviction of murder required the state to show that he purposely caused another's death.9 A person is deemed to act "purposely" when "it is his specific intention to cause a certain result."10 In this case, the state had to show that Robinson had the specific intention to cause the death of another. Robinson did not testify at trial so the jury had no direct evidence of his intent. Direct evidence, however, is not necessary to prove intent. Intent can also 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."11 "[A] firearm is an inherently dangerous instrumentality, the use of which is reasonably likely to produce death."12 Furthermore, "[a] person is presumed to intend the natural, reasonable and probable consequences of his acts."13 The circumstantial evidence provided to the jury was that, within seconds of hearing gunshots and yelling, Jackson attempted to gain entrance to the locked bedroom where Robinson was located. Robinson fired three shots through the door, killing Jackson with one of the bullets. The act of firing three shots through the door, knowing someone was standing on the other side, provided a strong indication that Robinson intended to kill someone.14 "Given the close range and caliber of the firearm, a trier of fact could construe the intention to shoot as proof of an intention to kill."15 In this situation, Robinson obviously did not intend to kill Jackson specifically, so the "purposely" element was not satisfied directly. Nonetheless, because the evidence showed that Robinson's intention to kill was directed toward whoever was on the other side of the door, the doctrine of transferred intent satisfied the element of "purposely." Under this doctrine, "where an individual is attempting to harm one person and as a result accidentally harms another, the intent to harm the first person is transferred to the second person and the individual attempting to harm is held criminally liable as if he both intended to harm and did harm the same person."16 Based on the record and the applicable standard of review, we conclude that Robinson's conviction was sustained by sufficient evidence. Furthermore, Robinson's self-defense claim did not negate the evidence that the state offered as proof of Robinson's intent. Self-defense is an affirmative defense that a defendant claims justifies his conduct and "exempts him from liability even if it is conceded that the facts claimed by the prosecution are true."17 We overrule Robinson's second assignment of error. III. Weight of the Evidence In his third assignment of error, Robinson raises a weight-of-the-evidence challenge. Specifically, he contends that because he had established self-defense by a preponderance of the evidence, the conviction was improper. To reverse a conviction as against the manifest weight of the evidence, the appellate court must weigh the evidence and all reasonable inferences, consider witness credibility, and determine that, in resolving the conflicts in the evidence, the jury lost its way and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered.18 As we stated in response to the first assignment of error, the evidence did not even support a jury instruction concerning Robinson's claim of self-defense. Thus, we cannot say that the jury lost its way in rejecting that claim. Accordingly, the third assignment of error is overruled. Having overruled each of Robinson's assignments of error, we hereby affirm the judgment of the trial court. Judgment affirmed. 1 State v. Clifton (1972), 32 Ohio App.2d 284,290 N.E. 921. 2 State v. Foster (Apr. 2, 1997), Hamilton App. No. C-960278, unreported. 3 State v. Guster (1981), 66 Ohio St.2d 266,421 N.E.2d 157. 4 State v. Comen (1990), 50 Ohio St.3d 206,553 N.E.2d 640, paragraph two of the syllabus. 5 State v. Kershaw (Feb. 5, 1999), Hamilton App. No. 980164, unreported, citing State v. Jackson (1986),22 Ohio St.3d 281, 283, 490 N.E.2d 893, 896. 6 State v. Thomas (1997), 77 Ohio St.3d 323, 330,673 N.E.2d 1339, 1345. 7 State v. Thomas, supra at 330-331,673 N.E.2d at 1345. 8 See State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. 9 R.C. 2903.02(A). 10 R.C. 2901.22(A). 11 State v. Robinson (1954), 161 Ohio St. 213,118 N.E.2d 517, paragraph five of the syllabus. 12 State v. Widner (1982), 69 Ohio St.2d 267, 270,431 N.E.2d 1025, 1028. 13 State v. Gordon (Aug. 22, 1997), Hamilton App. No. C-960624, unreported, citing State v. Johnson (1978), 56 Ohio St.2d 35, 39, 381 N.E.2d 637, 640. 14 See State v. Smith (1993), 89 Ohio App.3d 497,501, 624 N.E.2d 1114, 1116. 15 Id. 16 State v. Mullins, supra, at 637, 602 N.E.2d at 771. See State v. Richey (1992), 64 Ohio St.3d 353,595 N.E.2d 915. 17 State v. Poole (1973), 33 Ohio St.2d 18, 19,294 N.E.2d 888, 889, quoting Anderson, 1 Wharton's Criminal Evidence (12 Ed.), 54-55, Section 19. 18 State v. Martin (1983), 20 Ohio App.3d 172, 175,485 N.E.2d 717, 720-721. Shannon, J., concurs. Painter, J., concurs in part and dissents in part. Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment.