[Cite as State v. Tunstall,
2024-Ohio-2376.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29946
:
v. : Trial Court Case No. 2021 CR 02112
:
DONNIE D. TUNSTALL : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on June 21, 2024
...........
CHIMA R. EKEH, Attorney for Appellant
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
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TUCKER, J.
{¶ 1} Defendant Donnie D. Tunstall appeals from his convictions for murder,
felonious assault, having weapons under disability, carrying a concealed weapon, and
obstructing official business. For the reasons set forth below, we affirm.
I. Factual and Procedural History
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{¶ 2} This case arises from the shooting death of Daniel Burch. Following an
investigation, Tunstall was indicted on two counts of murder (proximate result), one count
of felonious assault (deadly weapon), and one count of felonious assault (serious physical
harm), each of which carried an attendant firearm specification. He was also indicted on
one count of having a weapon under disability, one count of carrying a concealed weapon,
and one count of obstructing official business. The charge of obstructing official
business included an allegation that he committed the offense in a manner that created
a risk of physical harm to any person, which elevated the degree of the offense.
{¶ 3} Tunstall filed a notice of self-defense in which he asserted he shot Burch after
Burch had threatened and assaulted him. The matter proceeded to a jury trial.
{¶ 4} The evidence presented at trial established that Tunstall had been
romantically involved with a woman named Felicia when a lawnmower was stolen from
her front porch on June 18, 2021. Felicia’s security camera captured the theft. Tunstall,
who was acquainted with Burch, believed Burch was the person shown on the camera.
{¶ 5} On June 22, 2021, Burch was at a BP station on Salem Avenue, which was
approximately two blocks from Felicia’s home. While there, he spoke with an
acquaintance, Yolanda Turner. Tunstall approached Turner and Burch while they were
talking and stated that Burch was “coming with him.” According to Turner, she heard
Tunstall mention something about a lawnmower. Burch and Tunstall then walked away
from the station toward an alley that ran between the station and an abandoned building.
{¶ 6} As Burch and Tunstall approached the alley, they passed two men who were
working on a truck near the edge of the station’s parking lot. One of the men, Antonio
Taylor, heard Tunstall say to Burch “I’m gonna f**k you up” if Burch was identified by an
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unnamed person. The other man, Anthony Knolton, was underneath the truck when
Burch and Tunstall walked by, and he heard one of the men state, “if they point you out,
I’m going to f**k you up.”
{¶ 7} Approximately three minutes later, numerous gunshots were heard coming
from the direction of the alley. The shots paused for approximately 12 seconds, and then
more shots were heard. Taylor and Knolton ran toward the alley. Eventually, they
looked over a fence that ran along the alley and observed Burch lying on his back in tall
brush in the backyard of a property known as the Lexington Lodge. Taylor saw Tunstall
walking away through the Lexington Lodge property.
{¶ 8} Due to an unrelated event which ended just prior to the shooting, numerous
Dayton Police officers were already in the area. A description of Tunstall was broadcast
over the police radio, and he was quickly apprehended. Burch, who was still alive, was
transported to a hospital. He later succumbed to his injuries.
{¶ 9} Montgomery County Deputy Coroner Lee Lehman, who had performed an
autopsy on Burch, testified that Burch had gunshot entrance wounds to his left forehead
and his left cheek by the corner of his mouth. Lehman testified that the shot to the
forehead caused pieces of Burch’s skull to embed in his brain; this shot would have been
immediately fatal. Burch also had two gunshot entrance wounds to his back and an
entrance wound to his left buttock. The bullet to the buttock traveled through Burch’s
bowels, bladder, and iliac vein. The damage to the vein resulted in heavy bleeding and
would have been fatal within a matter of minutes. Lehman testified that Burch also had
a gunshot to his chest just below his armpit, which had caused his lung to collapse, and
multiple gunshot wounds to his arms. In all, Burch had been shot 13 times. According
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to Lehman, Burch also had significant bruising to the right side of his brain consistent with
a hard blow. He further testified that an examination of Burch’s hands revealed no
injuries to his knuckles, such as bruising or swelling, consistent with a fist fight.
{¶ 10} Tunstall testified in his own defense. According to Tunstall, he
encountered Burch on two separate days shortly after the theft of the lawnmower. On
the first occasion, Tunstall confronted Burch about the stolen lawnmower; Burch denied
stealing it, and Tunstall did not pursue the matter because he had a child with him and
believed Burch was armed. On the second occasion, Tunstall and Burch discussed
Tunstall’s purchase of marijuana from Burch at a BP station, and they walked toward the
alley behind the Lexington Lodge while discussing the purchase. This eventually led to
a physical altercation between the two men. According to Tunstall, he shot Burch after
being “sucker-punched” and slung to the ground by him and after Burch had produced a
“spike,” which he held between his fingers, and attempted to charge Tunstall.
{¶ 11} Tunstall was found guilty by a jury of murder and felonious assault (serious
physical harm), as well as the attached firearm specifications. The jury entered a finding
of not guilty on the charge of felonious assault (deadly weapon). The jury also found
Burch guilty of carrying a concealed weapon and of obstructing official business with a
finding that Tunstall created a risk of physical harm to any person. Tunstall had waived
his right to a jury trial on the count of having a weapon under disability, and the trial court
found him guilty on that count. Tunstall was sentenced to an aggregate prison term of
26 years to life. He was also found to be a violent offender subject to registration with
the violent offender registry.
{¶ 12} Tunstall appeals.
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II. Self-Defense
{¶ 13} Tunstall’s first assignment of error states:
THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT TUNSTALL’S USE OF DEADLY FORCE WAS NOT IN
SELF-DEFENSE.
{¶ 14} Tunstall challenges his convictions for felonious assault and felony murder,
claiming that the evidence demonstrated that he acted in self-defense.
{¶ 15} Effective March 28, 2019, revisions made to the self-defense statute, R.C.
2901.05, “place[d] the burden on the prosecution to disprove at least one of the elements
of self-defense beyond a reasonable doubt.” State v. Carney, 10th Dist. Franklin No.
19AP-402, 2020-Ohio-2691, ¶ 31. Specifically, the statute now provides, in pertinent
part, as follows:
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.
R.C. 2901.05(B)(1).
{¶ 16} “ ‘The elements of self-defense in the use of deadly force are: (1) the
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defendant was not at fault in creating the situation giving rise to the affray; (2) 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 a danger was in the use of such force.
State v. Cunningham, 2d Dist. Montgomery No. 29122, 2023-Ohio-157, ¶ 14.
{¶ 17} These elements are explained in State v. Azali, 8th Dist. Cuyahoga No.
112299, 2023-Ohio-4643:
“The first … [element] of the self-defense test—whether the
defendant was at fault in creating the situation giving rise to the affray—
asks, in essence, whether the defendant was the initial aggressor.” State
v. Gardner, 8th Dist. Cuyahoga No. 110606, 2022-Ohio-381, ¶ 25. “ ‘This
concept is broader than simply not being the immediate aggressor. A
person may not provoke an assault or voluntarily enter an encounter and
then claim a right of self-defense.’ ” State v. Gaston, 8th Dist. Cuyahoga
No. 98904, 2013-Ohio-2331, ¶ 16, quoting State v. Nichols, 4th Dist. Scioto
No. 01CA2775, 2002-Ohio-415.
“[T]he second element of self-defense involves both objective and
subjective considerations.” State v. Hughkeith, 2023-Ohio-1217,
212
N.E.3d 1147, ¶ 56 (8th Dist.). A defendant's belief that he was in
immediate danger of death or great bodily harm must be objectively
reasonable, and the defendant must have an honest belief that he was in
such imminent danger. Id. “ ‘[I]f the objective standard is met, the jury
must determine if, subjectively, this particular defendant had an honest
belief that [he] was in imminent danger.’ ” Id., quoting State v. Thomas, 77
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Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997).
“ ‘Implicit in th[e] second element of self-defense, i.e., that the
defendant's use of deadly force was in ‘good faith,’ is the requirement that
the degree of force used was ‘warranted’ under the circumstances and
‘proportionate’ to the perceived threat.” State v. Ratliff, supra, at ¶ 31,
quoting State v. Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-
4416, ¶ 31. “Accordingly, this court has held that the force used to defend
must be at once objectively reasonable and necessary under the facts and
circumstances of the case.” Id., citing State v. Johnson, 8th Dist.
Cuyahoga No. 110673, 2022-Ohio-2577, ¶ 15. If the amount of force used
is so disproportionate that it shows an “unreasonable purpose to injure” the
defense of self-defense is unavailable. State v. Reyes-Figueroa, 2020-
Ohio-4460, 158 N.E.3d 939, ¶ 27 (8th Dist.).
Id. at ¶ 27-29.
{¶ 18} On appeal, the State's burden of disproving Tunstall’s self-defense claim
beyond a reasonable doubt is subject to a manifest-weight review. State v. Messenger,
171 Ohio St.3d 227,
2022-Ohio-4562,
216 N.E.3d 653, ¶ 27. When conducting a
manifest weight review, “[t]he court, reviewing the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of the 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.” State v. Thompkins,
78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997),
quoting State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). A
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case should not be reversed as being against the manifest weight of the evidence except
“ ‘in the exceptional case in which the evidence weighs heavily against the conviction.’ ”
Id.
{¶ 19} Tunstall, who knew Burch prior to the shooting, testified that he encountered
Burch at a local park the day before the shooting. According to Tunstall, he approached
Burch and asked him about the theft of the lawnmower. Tunstall stated that Burch had
denied the theft, at which point Tunstall informed him about the security camera footage.
Tunstall testified that he ended the encounter because he had a child with him, and he
noticed that Burch had a gun in his pocket.
{¶ 20} Tunstall testified that he went to the BP station the next day, where he saw
Burch again. Tunstall stated that he passed Burch on his way into the store, at which
time Burch indicated that he had marijuana to sell. When Tunstall exited the store, he
approached Burch, who was then talking to two women. The pair then walked through
the parking lot toward Tunstall’s car, which was parked on the side of the Lexington
Lodge. Tunstall testified that, as they were walking, Burch indicated that he did not want
to go on the street and instead directed Tunstall to walk down the alley behind the
Lexington Lodge; when they entered the alley, Tunstall pulled out his wallet, and Burch
told Tunstall to give him the money in the wallet so he (Burch) could go to a nearby
residence and get marijuana from his “people.” Tunstall then stated that, while at the BP
station, Burch had indicated that he had the marijuana in his possession. According to
Tunstall, when Tunstall was reluctant to give his money to Burch, Burch became angry
and began to poke him above his eye. Tunstall testified that he swatted Burch’s hand
away from his face and told Burch he was leaving.
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{¶ 21} According to Tunstall, he had walked a few paces away when Burch “sucker
punched” him in the temple. Tunstall claims he fell to the ground and Burch got on him
and began punching him on the top of the head. Tunstall testified that as he tried to get
up, Burch grabbed him by his dreadlocks and slung him to the ground; Burch then
demanded Tunstall turn over his wallet. The scuffle continued until the men “fell apart”
from each other. Tunstall testified that he was getting to his feet when he saw Burch
“fumbling in his pockets.” Tunstall thought that Burch might have a gun, but Burch
instead pulled out a “spike” which he placed between his fingers. Tunstall testified that
he immediately pulled out his own gun and told Burch to back away from him. Tunstall’s
testimony was not entirely clear, but it appears that Burch did back up approximately four
to five feet. Then, at some point, Burch threatened to kill Tunstall and began to advance
toward him. Tunstall pulled the trigger on his gun, but it did not discharge. When Burch
observed this, he tried to “rush” Tunstall. Before Burch could reach him, Tunstall was
able to pull the hammer on the gun, eject the bullet, and get a new round into the chamber.
He then began to fire at Burch. Tunstall testified that he stopped shooting, but Burch
“came back at [him],” and he started firing again. After Tunstall stopped shooting, he ran
away. Tunstall testified that he ran from the police because he was on federal probation
for a prior bank robbery and was not allowed to have a gun.
{¶ 22} As previously noted, to refute Tunstall’s trial testimony, the State presented
the testimony of Turner, the acquaintance with whom Burch spoke at BP; she testified
that when Tunstall approached Burch and her, he mentioned a lawnmower. Additionally,
witnesses Taylor and Knolton both testified that one of the men made a statement about
harming the other if he was identified by some other person or persons. Although
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Knolton did not see which man made the statement, Taylor identified Tunstall as the
speaker. This testimony, if believed, served to contradict Tunstall’s claims that he
engaged with Burch for the purpose of purchasing marijuana and suggested that, instead,
he initiated the encounter in order to confront Burch about the theft of the lawnmower.
{¶ 23} Additionally, the State presented evidence that Tunstall did not initially
inform any police officer that Burch had attacked him. Indeed, during the first ten minutes
of his police interview with Dayton police detective Zachary Williams, Tunstall denied
knowledge of a shooting. He insisted that he had merely purchased some “weed” just
prior to being arrested. It was not until Det. Williams revealed that the discarded gun had
been located that Tunstall changed his story. Then, as he began to explain the events
of the incident, he again stated that he had been buying marijuana and that the shooting
had had nothing to do with a lawnmower. (The interviewing detectives had not mentioned
anything about a lawnmower at the point that Tunstall made this statement.) Tunstall
stated that while he was trying to make the marijuana purchase, Burch had grabbed him,
punched him, and tried to steal his wallet. But at no point in the interview did Tunstall
assert that Burch had had any type of weapon. Williams, who was also an EMT,
examined Tunstall; other than a scratch to his arm, Tunstall showed no signs of injury to
his body or head. Further, as noted by the coroner, Burch did not have any bruising,
swelling, or abrasions on his hands to indicate he had punched Tunstall. A reasonable
juror could have concluded that these inconsistencies discredited Tunstall’s testimony.
{¶ 24} We also note that Tunstall testified he was in the alley by the fence when
Burch first attacked him, causing him to fall to the ground. Tunstall claimed he tried to
stand, but Burch grabbed him and “slung” him to the ground several times. He testified
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that when he began firing his gun, Burch was also in the alley. Tunstall testified that
Burch ran through the fence gate into the yard where his body was found. Tunstall also
stated he stood at the gate and continued to fire his gun as Burch ran away.
{¶ 25} The State presented evidence that on the day of the shooting, the alley had
numerous puddles and was muddy, yet Tunstall had not gotten dirty while allegedly on
the ground. Further, the State presented evidence that the shell casings from Tunstall’s
gun were found well-inside the fenced area. According to police testimony, the location
of the casings demonstrated that Tunstall was not standing at the gate when he fired his
gun but was, instead, in the yard with Burch. Given that Tunstall’s trial testimony was
inconsistent with his statements to Williams, the jury could have concluded that he was
not credible in his claim of self-defense.
{¶ 26} Finally, the jury could have reasonably concluded that Tunstall had used
excessive or disproportionate force based upon Tunstall shooting Burch 13 times and
admitting that he continued to shoot as Burch ran away.
{¶ 27} The jury, as the trier of fact, was free to believe all, part, or none of the
testimony of each witness and to draw any reasonable inferences from the evidence
presented at trial. State v. Gipp, 2d Dist. Montgomery No. 27635, 2017-Ohio-8907, ¶ 14,
quoting State v. Fields, 2d Dist. Clark No. 2016-CA-76,
2017-Ohio-7745, ¶ 42, citing State
v. Baker, 2d Dist. Montgomery No. 25828,
2014-Ohio-3163, ¶ 28. After reviewing the
record, we cannot say that the jury clearly lost its way or created a manifest miscarriage
of justice when it found the State had proven beyond a reasonable doubt that Tunstall did
not act in self-defense. Accordingly, the first assignment of error is overruled.
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III. Special Finding on Risk of Physical Harm
{¶ 28} The second and third assignments of error asserted by Tunstall state:
THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT THE
JURY’S SPECIAL FINDING THAT TUNSTALL’S OBSTRUCTION OF
OFFICIAL BUSINESS CREATED A RISK OF PHYSICAL HARM TO
PERSONS.
THE JURY’S SPECIAL FINDING THAT TUNSTALL’S
OBSTRUCTION OF OFFICIAL BUSINESS CREATED A RISK OF
PHYSICAL HARM TO PERSONS WAS BASED ON INSUFFICIENT
EVIDENCE.
{¶ 29} Tunstall concedes he committed the offense of obstructing official business
by running from the police and throwing his gun into nearby plants. However, he
contends the State failed to produce evidence sufficient to demonstrate that he created a
risk of physical harm to any person when he committed the offense. He further claims
the finding that he created a risk of physical harm was against the manifest weight of the
evidence.
{¶ 30} “[S]ufficiency is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio
St.3d 380, 386,
678 N.E.2d 541 (1997). As stated above, an examination under the
manifest weight of the evidence standard requires weighing the evidence and the
credibility of the witnesses to determine whether the jury lost its way. While sufficiency
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and manifest weight involve 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.”
(Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-
3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696,
85 N.E.3d 501, ¶ 58 (2d Dist.).
As a result, a determination that a conviction is supported by the weight of the evidence
will also be dispositive of sufficiency. State v. Farra, 2d Dist. Montgomery No. 28950,
2022-Ohio-1421, ¶ 50.
{¶ 31} Obstructing official business is proscribed by R.C. 2921.31(A), which
provides that “[n]o person, without privilege to do so and with purpose to prevent, obstruct,
or delay the performance by a public official of any authorized act within the public
official's official capacity, shall do any act that hampers or impedes a public official in the
performance of the public official's lawful duties.” The offense, which normally is a
misdemeanor, is elevated to a fifth-degree felony when the violation “creates a risk of
physical harm to any person.” R.C. 2921.31(B).
{¶ 32} The record discloses that Dayton Police Officer Nathan Speelman was in
the area when the shots were fired. According to Speelman’s testimony, he was driving
on North Broadway Street, approximately two blocks west of the BP station, when he
observed an individual matching the suspect’s description. Speelman stopped his
cruiser by an alley, exited, and confronted the man, later identified as Tunstall.
Speelman ordered Tunstall to the ground; Tunstall, however, turned and ran down the
alley. Speelman gave chase down the alley, which ended in front of a garage. He
chased Tunstall around the garage through overgrown brush and debris. When Tunstall
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ran back to the front of the garage, Speelman caught up to him and again ordered him to
the ground. Tunstall did not comply, and Speelman discharged his Taser. The Taser
failed to connect properly, and Tunstall again ran around the side of the garage.
Speelman ultimately tackled him to the ground in an area of overgrown brush, where the
two men struggled. Ultimately, two other officers arrived on the scene and helped
Speelman get Tunstall into handcuffs. Tunstall’s loaded gun was subsequently located
nearby in some brush.
{¶ 33} Speelman testified that, because he believed he was pursuing an armed
suspect, he initially had his weapon drawn while chasing Tunstall. However, he
eventually holstered his weapon due to his concern that he might accidentally discharge
the gun because he had to pursue Tunstall around obstacles and through the overgrown
terrain.
{¶ 34} Ohio law indicates that the potential risk of harm required by R.C.
2921.31(B) need not be large. State v. Woodson, 9th Dist. Wayne No. 07CA44, 2008-
Ohio-1469, ¶ 27. Officers face a risk of physical harm when they are required to pursue
an offender and retrieve a loaded weapon. Id. at ¶ 28. Further, the jury could
reasonably have found that there was a risk of harm to anyone else in the vicinity of the
foot chase, given that both Tunstall and Speelman were running with loaded weapons in
their possession. See State v. Allsup, 3rd Dist. Hardin No. 6-07-13, 2008-Ohio-159,
¶ 27.
{¶ 35} Additionally, Detective Williams testified about the search for Tunstall’s
firearm. He testified that the alley where the gun was located was “highly traveled” by
people in the neighborhood, including children. He testified that the “biggest concern”
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with a discarded gun is the risk that a child might find it and harm him or herself or another
person. Thus, a jury could have reasonably concluded that, by hiding a loaded gun in
the underbrush, Tunstall had created a risk of harm that the gun would be found and
discharged.
{¶ 36} Based upon our review of the record, we conclude there was sufficient
evidence that Tunstall’s actions created a risk of harm to himself, Speelman, and any
bystanders in the area. Further, we conclude the jury’s finding that he created a risk of
physical harm was not against the manifest weight of the evidence.
{¶ 37} Accordingly, the second and third assignments of error are overruled.
IV. Conclusion
{¶ 38} All of Tunstall’s assignments of error being overruled, the judgment of the
trial court is affirmed.
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EPLEY, P.J. and LEWIS, J., concur.
