STATE v. ALFORD (2024)

OPINION

{¶1} The appellant, Roscoe Alford, appeals his conviction and sentence on the charges of murder and felonious assault. The appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On April 14, 2023, the Stark County Grand Jury indicted the appellant with Murder in violation of R.C. § 2903.02 and Felonious Assault in violation of R.C. § 2903.11.

{¶3} On April 21, 2023, the appellant entered a plea of not guilty to the indictment.

{¶4} On July 18, 2023, the appellant filed a Notice of Intent to Offer Evidence of Self-Defense and/or Defense of Another.

{¶5} On August 1, 2023, a jury trial commenced.

{¶6} At trial, S.J. testified that on February 14, 2023, a loud bang woke her up like someone was trying to break down her door. She heard four or five gunshots, then a tapping noise. She opened the door and saw a young man gasping for air. In the hallway, she saw Brittany Reeves, the appellant, and someone named Whitney. Brittany Reeves is her neighbor. None of the people in the hallway were helping the victim. She also noticed shell casings in the hallway. On cross-examination, she testified that she did not see anything before hearing the gunshots.

{¶7} Next, Officer N'Diaye testified that she was called to the scene of the shooting. Upon arriving, she saw a man lying in the hallway with gunshot wounds to his chest. He had already passed before Officer N'Diaye arrived. The State put photographs and video of the crime scene into evidence, which Officer N'Diaye testified was a fair depiction of the scene while she was there.

{¶8} Officer Kaczmar-Pauloski then testified that she was also called to the scene of the shooting. Upon arrival, she was gathering information on the shooter's whereabouts. The officer spoke with a woman who lived in the same hall where the incident occurred. The woman commented that she was afraid and did not want to say anything. Eventually, she agreed to speak with officers. She said she saw the shooter walk to a building across the street and into an apartment. The officers searched the building across the street and found a man hiding in a pile of clothes.

{¶9} Sergeant Smith then testified he spoke with a witness who had contact with a man named Ross, who said he had an altercation with a man and had shot him. The witness saw Ross enter the same building identified by the woman with whom Officer Kaczmar-Pauloski spoke. The witness also said that Brittany Reeves was dating Ross.

{¶10} Inside the building, the sergeant made contact with a woman named Whitney, who answered the door. She said only one other female adult and her four children were at the apartment. Upon searching the apartment, officers located a male hiding underneath a pile of clothing. Sergeant Smith identified the man in the apartment as the appellant. Sergeant Smith also spoke with Brittany Reeves.

{¶11} Officer Weller testified that he was called to the scene on February 14, 2023, to collect evidence. He testified there were two shell casings, a copper bullet fragment, and a hole in the hall floor caused by the bullet. He testified that the apartment where the shooting happened contained two handguns, one located in a laundry basket in the bedroom.

{¶12} Next, Detective Szaniszlo testified that he interviewed Brittany Reeves and obtained a warrant for her cell phone. Initially, Brittany Reeves denied dating the appellant. A later interview that day showed that she was dating the appellant; she assured the appellant the police had no evidence and that she got rid of four shell casings. Brittany's phone contained pictures of her holding the firearm recovered from the apartment, as well as the appellant holding the firearm.

{¶13} The detective also testified to the results of the gun shot residue test. The appellant, Brittany Reeves, and three other individuals also tested positive for gunshot residue.

{¶14} Detective Mark Diels testified that he collected a DNA sample from the appellant as part of the investigation. Detective Diels also testified that he interviewed an individual named Paris. This individual told him there was an altercation between the victim and a person named C.C. He never interviewed C.C. and did not know if any law enforcement attempted to interview C.C.

{¶15} Mark Mackey was the next witness to testify. He is a forensic scientist who specializes in fingerprint and firearm analysis. Mr. Mackey testified that he had recovered fingerprints from the appellant on the firearm that had been recovered by law enforcement. After completing a ballistic comparison of the shell casings and bullet fragments recovered from the scene to those fired from the firearm, he determined that the shell casings and bullet fragments recovered from the scene were fired from the firearm, but the bullet fragments recovered from the victim had no identifying marks. The bullet fragments recovered from the victim were the same caliber as that of the firearm.

{¶16} Nicole Rivera, a forensic scientist and expert in the field of DNA analysis, then testified that the DNA was found on the back-slide area of the firearm, and it was consistent with the DNA of an unknown male. DNA from more than one contributor was found on the front slide of the firearm, but the appellant was the major contributor.

{¶17} Dr. Mooney testified that the victim died from blood loss due to multiple gunshot wounds. The victim had cocaine and alcohol in his system. The cocaine would have been ingested very shortly before his death as it had not yet started to break down. The state then rested its case.

{¶18} The defendant called C.C. to testify. C.C. testified that the appellant is his nephew. The victim and the appellant had a good relationship. On the night of the shooting, the victim was at a party where the shooting occurred. The appellant, Ms. Reeves, and C.C. were also in attendance. Throughout the evening, the victim attempted to continually disparage C.C. for being homosexual. Later in the evening, the victim agreed to give C.C. a ride home from the party. While out in the hallway, the victim punched C.C. in the face, causing him to bleed. The appellant then told the victim to leave the apartment and to stay away. C.C. testified that the appellant locked the apartment door and told Ms. Reeves not to open it. C.C. then said that after a few minutes, the victim began to pound on the apartment door, and Ms. Reeves opened it. The appellant yelled at Ms. Reeves for opening the door and shut the door on the alleged victim. C.C. said Ms. Reeves and the victim continued to argue through the locked door.

{¶19} C.C. testified that he then left to go to a friend's apartment. When he opened the door, the victim was still in the hallway; the appellant was standing in the apartment doorway. He said the victim looked like he was going to punch the appellant but then pulled out a gun. The appellant and victim fought over the firearm, and C.C. heard a gunshot. C.C. then left and did not return to the party.

{¶20} Next, the appellant testified that he was living with Ms. Reeves, his girlfriend, at the time of the shooting. They had three other roommates as well. The appellant testified that the victim had been hired to drive the appellant. After meeting, they began to hang out regularly. The victim had told the appellant that he needed a firearm because he was providing transportation for women working as escorts, and the appellant sold the firearm recovered by police to the victim.

{¶21} On February 13, 2023, the appellant said he was socializing with the victim. At some point in the evening, C.C. told the appellant that the victim was hounding him for being a homosexual. The appellant told the victim to leave his uncle alone. The appellant said that he had to break up a fight between C.C. and the victim later in the evening. The appellant then told everyone to leave the apartment and locked the door. The victim continued to bang on the door because he wanted his hoodie and keys. Ms. Reeves opened the door; the appellant gave the victim his hoodie and keys and told him to go away.

{¶22} The appellate went to bed and awoke a short time later due to more banging on the door. The appellant saw that Ms. Reeves had opened the door and was arguing with the victim. The appellant pulled Ms. Reeves back into the apartment. The victim stepped into the apartment and raised a firearm toward the appellant. The appellant said he grabbed the front of the gun and fought with the victim. During the struggle, the gun went off four times. The victim did not release the weapon until the final shot. After the victim dropped the gun, the appellant panicked, unloaded the firearm, and threw the gun on a pile of dirty clothes.

{¶23} After being apprehended, the appellant told detectives and nurses that his thumb was injured. X-rays confirmed that his thumb was broken.

{¶24} A.S. testified that she met the victim through the appellant. She said that she had spent the night with the appellant and that he was carrying a firearm.

{¶25} V.W. then testified that he was with both the victim and the appellant on February 14, 2023. He said he saw them getting into a physical altercation in the hallway. He said the victim won the fight; he tried to get back into the appellant's apartment. He repeatedly knocked on Ms. Reeves's door. After retrieving his belongings, V.W. attempted to get the victim to leave, and the victim said no. He continued to pound on Ms. Reeves's door and eventually brandished a firearm. V.W. got nervous and left. The appellant rested his case.

{¶26} The trial court gave jury instructions on self-defense but not including the Castle Doctrine. The jury returned a verdict, finding the appellant guilty of both indicted charges.

{¶27} The appellant filed a timely notice of appeal and herein raised the following five assignments of error:

{¶28} “I. THE APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE, AND MUST BE REVERSED, BEAUSE THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE APPELLANT DID NOT ACT IN SELF-DEFENSE.”

{¶29} “II. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY WITH RESPECT TO THE CLAIM OF SELF-DEFENSE RAISED BY THE APPELLANT, BECAUSE THE TRIAL COURT FAILED TO INCLUDE IN THE INSTRUCTIONS THE PRESUMPTION SET FORTH IN R.C. 2901.05(B)(2).”

{¶30} “III. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT.”

{¶31} “IV. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HER RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION.”

{¶32} “V. THE APPELLANT WAS DENIED A FAIR TRIAL BY THE CUMULATIVE ERROS BY THE TRIAL COURT.”

I.

{¶33} In the appellant's first Assignment of Error, the appellant argues that his conviction was not based on sufficient evidence and was against the manifest weight and sufficiency of the evidence. We disagree.

STANDARD OF REVIEW

{¶34} Sufficiency of the evidence was addressed by the Ohio Supreme Court in State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754:

The test for sufficiency of the evidence is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.” R.C. 2901.05(E). A sufficiency-of-the-evidence challenge asks whether the evidence adduced at trial “is legally sufficient to support the jury verdict as a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶219.

Id. at ¶57. Thus, a review of the constitutional sufficiency of the evidence to support a criminal conviction requires a court of appeals to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

{¶35} Manifest weight of the evidence addresses the evidence's effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, (1997). The court stated:

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 on its effect in inducing belief. (Emphasis added.) Black's, supra, at 1594.

Id. at 387, 678 N.E.2d 541. The Court stated further:

When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “ ‘thirteenth juror’ ” and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida], 457 U.S. [31] 42, 102 S.Ct. [2211] 2218, 72 L.Ed.2d [652] 661 [(1982)]. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 (“The 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 the conviction.”)

Id.

{¶36} Further, the Court in Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984), quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978), stated:

“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.

* * *

“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”

Id. at 80, fn.3.

ANALYSIS

{¶37} The appellant argues that his convictions on the charges of Murder and Felonious Assault was not based upon sufficient evidence and was against the manifest weight of the evidence as the State failed to produce evidence that the appellant did not act in self-defense. We disagree.

{¶38} In the body of the appellant's brief, the appellant concedes that the state's rebuttal to a claim of self-defense is not subject to review under the sufficiency of the evidence standard. State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, ¶27. Rather, “[t]he State's burden of disproving a defendant's self-defense claim beyond a reasonable doubt is subject to manifest weight review on appeal.” State v. Baker, 2024-Ohio-2550, 2024 WL 3289620, ¶16 (2nd Dist.), citing State v. Knuff, 175 Ohio St.3d 82, 2024-Ohio-902, 239 N.E.3d 259. Therefore, we will only consider the appellant's argument that the jury's finding that the appellant did not act in self-defense is against the manifest weight of the evidence.

{¶39} R.C. § 2903.02 states, in pertinent part:

(B) No 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 and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.

{¶40} R.C. § 2903.11 states, in pertinent part:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another's unborn;

(2) Cause or attempt to cause physical harm to another or another's unborn by means of a deadly weapon or dangerous ordnance.

{¶41} The State must disprove beyond a reasonable doubt at least one of the following elements of self-defense: (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 was in imminent danger of death or great bodily harm and that his 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. Garner, 2010-Ohio-3891, 2010 WL 3278670, ¶¶18-19 (5th Dist.).

{¶42} At trial, the State presented evidence that the appellant was found in the area, hiding under laundry, shortly after the shooting. The firearm, which matched the spent shell casing and bullet fragments at the scene, contained the appellant's DNA and fingerprints. Law enforcement found a photo of the appellant holding what appears to be the same firearm recovered from Reeves's apartment.

{¶43} During the defense's case, the appellant and his witnesses testified that the victim started the confrontation by attempting to enter the apartment and brandished a firearm. In addition, the appellant stated he let the victim borrow the firearm.

{¶44} We have thoroughly reviewed the entire record, weighed the evidence and all reasonable inferences, considered the credibility of witnesses, and have determined that in resolving conflicts in the evidence, the jury did not lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. As noted above, the appellant relies on his testimony and that of his close friends and relatives that it was, in fact, the victim who brandished the firearm. The jury, however, was not required to believe the appellant's version of events. State v. Mendoza, 2017-Ohio-8977, 2017 WL 6343561 (10th Dist.). A verdict is not against the manifest weight of the evidence because the jury chose to believe the State's witnesses and version of events rather than the defense witnesses and theory of events. State v. Andrews, 2010-Ohio-6126, 2010 WL 5132777, ¶28 (9th Dist.). Accordingly, we find that the jury's verdict on the charges of murder and felonious assault are not against the manifest weight of the evidence.

{¶45} The appellant's first Assignment of Error is overruled.

II.

{¶46} In the appellant's second Assignment of Error, the appellant argues that the trial court erred in instructing the jury on the castle doctrine with respect to the claim of self-defense. We note that the appellant did not request a castle doctrine instruction at trial. We disagree.

STANDARD OF REVIEW

{¶47} “[A]fter arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus.

{¶48} “Crim.R. 30 provides that a party must object to an omission in the court's instructions to the jury in order to preserve the error for appeal. If an objection is not made in accordance with Crim.R. 30, or the defendant fails to submit a required written jury instruction, Crim.R. 52(B), the plain error doctrine, applies.” State v. Swint, 2022-Ohio-976, 2022 WL 884880, ¶41 (5th Dist.).

{¶49} In the case sub judice, the appellant concedes he did not request the castle doctrine jury instruction, which he now contends should have been given by the trial court. Accordingly, our review of the alleged error must proceed under the plain error rule of Crim.R. 52(B). State v. Dorsey, 2015-Ohio-4659, 2015 WL 6954966, ¶64 (5th Dist.). Notice of plain error, pursuant to Crim.R. 52(B), “is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). An error affects substantial rights only if it changes the outcome of the trial. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶64.

{¶50} The Supreme Court of Ohio discussed the doctrine of plain error in State v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d 858:

Under the plain-error doctrine, intervention by a reviewing court is warranted only under exceptional circumstances to prevent injustice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus (“Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice”). To prevail under the plain-error doctrine, Bailey must establish that “an error occurred, that the error was obvious, and that there is ‘a reasonable probability that the error resulted in prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis added in Rogers.) State v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶66, quoting Rogers at ¶22; see also State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶52.

The elements of the plain error doctrine are conjunctive: all three must apply to justify an appellate court's intervention. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) (“By its very terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial”).

Id. at ¶¶8-9. Thus, the appellant must establish that (1) an error occurred; (2) that the error was obvious; and, (3) that there is a reasonable probability that the error resulted in prejudice.

ANALYSIS

{¶51} R.C. § 2901.05 provides, in pertinent part:

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self-defense, defense of another, or defense of the accused's residence as described in division (B)(1) of this section, is upon the accused.

(B)(1) A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a person who is accused of an offense that involved the person's use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person's residence, as the case may be.

(2) Subject to division (B)(3) of this section, a person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(3) The presumption set forth in division (B)(2) of this section does not apply if either of the following is true:

(a) The person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(4) The presumption set forth in division (B)(2) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence, provided that the prosecution's burden of proof remains proof beyond a reasonable doubt as described in divisions (A) and (B)(1) of this section.

{¶52} In the case sub judice, the trial court instructed the jury, in relevant part:

Self-defense. 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 self-defense.

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.

B, the Defendant did not have reasonable grounds to believe that he was in imminent or immediate danger of death or great bodily harm.

C, the Defendant did not have an honest belief, even if mistaken, that he was in imminent or immediate danger of death or great bodily harm.

D, the Defendant violated a duty to retreat to avoid the danger.

E, the Defendant used unreasonable force.

Deadly force means any force that carries with it substantial risk that it will proximately result in the death of a person.

Substantial risk means a strong possibility, as contrasted with a remote or even a significant possibility, that a certain result may occur or that certain circumstances may exist.

The Defendant had not duty to retreat before using deadly force in self-defense if the Defendant was in a place in which he lawfully had a right to be.

Lawfully had a right to be means that the Defendant was not trespassing when he used force in self-defense.

{¶53} The trial court instructed the jury that the appellant had no duty to retreat if he was not trespassing before using deadly force in self-defense. The jury was further instructed that the state had the burden to prove beyond a reasonable doubt that the appellant had not acted in self-defense.

{¶54} Even presuming the appellant was acting in self-defense pursuant to R.C. § 2901.05(B)(2), the state was required to disprove self-defense by proving beyond a reasonable doubt that the appellant was at fault in creating the situation giving rise to the affray’ or the appellant did not have a bona fide belief that he was in imminent danger of death or great bodily harm; and that the appellant used reasonable force. State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. As the jury found the appellant guilty, they found that the state met its burden of proving beyond a reasonable doubt that the appellant did not act in self-defense.

{¶55} We do not find plain error in the case sub judice, as no manifest miscarriage of justice occurred. Even had the jury been instructed that the appellant was presumed to have acted in self-defense, the jury was instructed and found that the state had rebutted this finding. We find the trial court's instruction did not rise to the level of plain error because the outcome of the trial would not have been otherwise had the presumption instruction been given. See, State v. Colston, 2020-Ohio-3879, 2020 WL 4345269, ¶65 (5th Dist.); State v. Broucker, 2008-Ohio-2946, 2008 WL 2572994, ¶38.

{¶56} Accordingly, the appellant's second Assignment of Error is overruled.

III.

{¶57} In the appellant's third Assignment of Error, the appellant argues that he was denied a fair trial due to prosecutorial misconduct. We disagree.

STANDARD OF REVIEW

{¶58} The appellant describes several instances of alleged misconduct in his brief, but he made no objection to the prosecutor's actions when they occurred. Because there was no objection to the alleged instances of prosecutorial misconduct, the alleged improprieties are waived, absent plain error. State v. White, 82 Ohio St.3d 16, 1998-Ohio-363, 693 N.E.2d 772. Notice of plain error, pursuant to Crim.R. 52(B), “is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). An error affects substantial rights only if it changes the outcome of the trial. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶64.

{¶59} Again, the Supreme Court of Ohio discussed the doctrine of plain error in State v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d 858:

Under the plain-error doctrine, intervention by a reviewing court is warranted only under exceptional circumstances to prevent injustice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus (“Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice”). To prevail under the plain-error doctrine, Bailey must establish that “an error occurred, that the error was obvious, and that there is ‘a reasonable probability that the error resulted in prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis added in Rogers.) State v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶66, quoting Rogers at ¶22; see also State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶52.

The elements of the plain error doctrine are conjunctive: all three must apply to justify an appellate court's intervention. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) (“By its very terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial”).

Id. at ¶¶8-9. Again, the appellant must establish that (1) an error occurred; (2) that the error was obvious; and, (3) that there is a reasonable probability that the error resulted in prejudice.

{¶60} In the context of proving the existence of plain error, the appellant must fulfill the requirements the Supreme Court of Ohio described in State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶135 (2005) to prove prosecutorial misconduct. The appellant must show that “the remarks were improper, and if so, * * * the remarks prejudicially affected an accused substantial rights. * * * The touchstone of [the] analysis “is the fairness of the trial, not the culpability of the prosecutor.” State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). In reviewing allegations of prosecutorial misconduct, we must review the complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

ANALYSIS

{¶61} The appellant argues that the prosecutor improperly commented on the appellant remaining silent after his arrest. Prosecutorial misconduct will not provide a basis for reversal unless the misconduct can be said to have deprived the appellant of a fair trial based on the entire record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). Again, “the touchstone of [the] analysis “ ‘is the fairness of the trial, not the culpability of the prosecutor.’ ” State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). The record must be viewed in its entirety to determine whether the allegedly improper remarks were prejudicial. State v. Treesh, 90 Ohio St.3d 460, 466, 739 N.E.2d 749 (2001).

{¶62} The appellant asserts that the prosecutor acted prejudicially by commenting on the appellant's post-arrest silence during closing arguments. This Court has said, “[p]rosecutors are afforded considerable latitude in closing argument.” State v. Hunt, 2020-Ohio-1124, 2020 WL 1488796, ¶30 (5th Dist.), quoting State v. Encarnacion, 2017-Ohio-5530, 93 N.E.3d 426, ¶9 (10th Dist.). A prosecutor may comment on “ ‘what the evidence has shown and what reasonable inferences may be drawn therefrom.’ ” State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970).

{¶63} The appellant claims the following were improper remarks made by the prosecutor during closing argument:

Everything has some sort of story now that goes with it. And I say “now” because it's now. They didn't hear this in February, don't hear this in March, we hear this in August at the trial. Is that so that police can't further investigate? Is that so the State is unprepared? Is that ‘cause you're making it up as you go?

* *

He's asked, Well, why didn't you just, why didn't you just say what happened? If it's as you say, why couldn't you just tell the police? He didn't know, this middle age man didn't know there was such a thing as self-defense. This gun carrying, middle aged man, who lives in Victory Square, has never heard these terms before.

So Mr. Alford and his family, his friends, they have had access to these reports, these statements, this evidence. And it was only yesterday and today that we heard anything. I submit to you that their stories are somewhat obvious in the way that they're trying to fashion them to comport with the evidence, and unworthy of belief.

{¶64} The appellant's reliance on the cases he cited in this section of his brief is misplaced because the appellant testified during the trial. “The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do.” Combs v. Coyle, 205 F.3d 269, 281 (6th Cir. 2000). “When a defendant testifies at trial, the defendant has ‘cast aside his cloak of silence.’ ” Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). Because the appellant testified at trial, he relinquished his right to remain silent and surrendered the protections described in the cases he cites in his brief. However, it is more significant that the prosecutor's comments occurred during his closing argument when he referred to testimony presented to the jury without objection. Accordingly, the prosecutor's comments were well within the boundaries of commentary on the evidence. Therefore, we do not find that the failure to exclude the prosecutor's comment was plain error, creating a miscarriage of justice.

{¶65} Therefore, the appellant's third Assignment of Error is overruled.

IV.

{¶66} In the appellant's fourth Assignment of Error, the appellant argues he was denied effective assistance of counsel because trial counsel failed to request a jury instruction under R.C. § 2901.05, failed to make a motion for acquittal pursuant to Crim.R. 29, and failed to object to improper statements made by the prosecutor regarding the appellant's post-arrest silence. We disagree.

STANDARD OF REVIEW

{¶67} The standard of review for ineffective assistance of counsel was set forth in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and was discussed by this court in Mansfield v. Studer, 2012-Ohio-4840, 2012 WL 4955278 (5th Dist.):

A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, [113 S.Ct. 838, 122 L.Ed.2d 180]; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 [, 80 L.Ed.2d 674] (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶68} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).

{¶69} To show deficient performance, the appellant must establish that “counsel's representation fell below an objective standard of reasonableness.” Strickland at 668, 104 S.Ct. 2052. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland at 687, 104 S.Ct. 2052. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial process. Strickland at 688, 104 S.Ct. 2052.

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Id.

In light of the “variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel's assistance was reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064.

Studer, supra, at ¶¶58-61. Even debatable trial tactics and strategies do not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

{¶70} To demonstrate prejudicial ineffective assistance of counsel, the appellant must show a “reasonable probability that but for counsel's errors, the result of the trial would have been different.” Strickland at 687-688, 104 S.Ct. 2052. “Reasonable probability” is “probability sufficient to undermine confidence in the outcome.” Strickland at 694, 104 S.Ct. 2052.

{¶71} Thus, in order to prevail on an ineffective assistance of counsel argument the appellant must show both: 1) that his trial counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of an essential duty to the appellant; and, 2) that the appellant was prejudiced by such the alleged ineffectiveness.

ANALYSIS

Castle Doctrine

{¶72} The appellant argues he was deprived of effective assistance of counsel because his trial counsel failed to request a jury instruction for the cast doctrine pursuant to R.C. § 2901.05(B). We disagree.

{¶73} As we have discussed in our disposition of the appellant's second Assignment of Error, the failure to instruct the jury on the presumption that the appellant had acted in self-defense did not rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Having reviewed the record that the appellant cites in support of his claim that he was denied effective assistance of counsel, we find that the appellant was not prejudiced by trial counsel's representation. The result of the trial was not unreliable, nor were the proceedings fundamentally unfair because of the performance of defense counsel.

{¶74} As such, the appellant has failed to establish that he was prejudiced by trial counsel's performance.

Crim. R. 29 Motion

{¶75} The appellant argues he was deprived of effective assistance of counsel because his trial counsel failed to move for acquittal based on Crim. R. 29 because failure to do so did not preserve a sufficiency of the evidence argument on appeal. We disagree.

{¶76} Counsel's failure to make a Crim.R. 29 motion for acquittal on the grounds of self-defense is not ineffective assistance of counsel. Fairview Park v. Peah, 2021-Ohio-2685, 2021 WL 3418572, ¶44 (8th Dist.).

{¶77} As noted above, the Supreme Court of Ohio addressed the question of whether “ ‘[s]elf-defense claims may be reviewed on direct appeal for sufficiency of the evidence.’ ” State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, ¶12. They held that “[t]he state's new burden of disproving the defendant's self-defense claim beyond a reasonable doubt is subject to a manifest-weight review on appeal, and the Tenth District [Court of Appeals] correctly declined to review the state's rebuttal of self-defense for sufficiency of the evidence.” Id. at ¶27.

{¶78} Therefore, since a sufficiency of the evidence argument is not available to a claim of self-defense on appeal, the appellant has failed to establish that trial counsel's performance fell below an objective standard of reasonable representation.

Prosecutorial Misconduct

{¶79} The appellant argues he was deprived of effective assistance of counsel because his trial counsel failed to object to comments the prosecutor made regarding the appellant remaining silent after his arrest. We disagree.

{¶80} As discussed in the appellant's third Assignment of Error, the prosecutor's comments were well within the boundaries of commentary on the evidence. Therefore, trial counsel's performance did not fall below an objective standard of reasonable representation by failing to object to the prosecutor's comments.

{¶81} Accordingly, the appellant's fourth Assignment of Error is overruled.

V.

{¶82} In the appellant's fifth Assignment of Error, the appellant argues he was denied a fair trial by cumulative error. We disagree.

STANDARD OF REVIEW

{¶83} Under the doctrine of cumulative error, “a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶223.

ANALYSIS

{¶84} The appellant argues that the cumulative effect of the alleged errors above resulted in the denial of his right to a fair trial. We disagree.

{¶85} The cumulative error doctrine does not apply if the defendant “cannot point to ‘multiple instances of harmless error.’ ” State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶148 quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). However, the appellant does not point to any harmless errors, only plain errors.

{¶86} The Supreme Court of Ohio has determined that the cumulative error doctrine does not apply to alleged plain error, “[u]nlike preserved errors that might be harmless alone but prejudicial in the aggregate, unobjected-to errors that do not meet the plain-error standard ‘cannot become prejudicial by sheer weight of numbers.’ ” State v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶259, citing State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996).

{¶87} In the case sub judice, the appellant has only alleged unobjected-to errors in his cumulative error analysis. As discussed above, these errors did not meet the plain error standard. According to McAlpin, such errors do not become prejudicial because there are multiple of them. McAlpin at ¶259. The doctrine of cumulative error is therefore inapplicable.

{¶88} The appellant's fifth Assignment of Error is overruled.

CONCLUSION

{¶89} For the forgoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.

Baldwin, J.

Wise, John, P.J. and King, J. concur.