State v. Ross

         [Cite as State v. Ross, 

.]
                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO



 STATE OF OHIO,                                     :   APPEAL NOS. C-230508
                                                                     C-230509
         Plaintiff-Appellee,                        :   TRIAL NOS. B-2006193
                                                                   B-2204564
   vs.                                              :

 PERCY ROSS,                                        :     O P I N I O N.

     Defendant-Appellant.                           :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 16, 2024




Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plainitff-Appellee,

Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.
       {¶1}   Defendant-appellant Percy Ross was indicted for two counts of murder

under R.C. 2903.02(A) and (B), with accompanying firearm specifications, one count

of felonious assault under R.C. 2903.11(A)(2), also with accompanying firearm

specifications, and one count of having weapons under a disability under R.C.

2923.13(A)(3). Ross elected to have a bench trial on the weapons-under-a-disability

count. The trial court found him guilty, but continued the matter for sentencing. At a

jury trial on the remaining three counts, Ross claimed that he acted in self-defense.

That trial ended with a hung jury.

       {¶2}   Subsequently, he was indicted for one count of tampering with evidence

under R.C. 2921.12(A)(1), with an accompanying firearm specification. The trial court

consolidated the two cases for trial. After a second jury trial, Ross was found guilty of

one count of murder, one count of felonious assault, and one count of tampering with

evidence, and all of their accompanying specifications. The jury acquitted him on one

of the murder counts. The trial court again found him guilty of the weapons-under-

disability charge.

       {¶3}   The trial court merged the felonious assault count with the murder

count, as well as some of the firearm specifications. It sentenced Ross to serve an

aggregate sentence of 21 years to life in prison on the murder charge. It also sentenced

him to 36 months’ incarceration on the having-weapons-under-disability charge, and

four years’ imprisonment on the tampering-with-evidence charge, both to be served

consecutively to the sentence on the murder charge. This appeal followed. We find

no merit in Ross’s five assignments of error, and we affirm his convictions.




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                                I.      Factual Background

       {¶4}    The record shows that on November 22, 2020, at about 4:00 a.m., police

received a 911 call about a shooting at a four-unit apartment building at 7815 New

Bedford Avenue in Roselawn. Upon arrival, the responding officers found the body of

Elias Tsibouris lying at the bottom of a set of stairs in front of the main entrance to the

building.

                               A. Cab Driver’s Testimony

       {¶5} Cab driver Stanley Asberry made the 911 call. He testified that he picked

up Tsibouris at about 3:00 a.m. in Roselawn. Tsibouris was a regular customer of the

cab company, and Asberry stated that he was “a nice guy” and that he “liked him so

much.” Tsibouris asked Asberry to drive him a short distance to pick up his girlfriend,

Carlee Otten, at 7815 New Bedford Avenue and then drive them to another location.

       {¶6} Upon arriving at that address, Asberry parked across the street from the

building. Tsibouris said that his girlfriend would be coming out shortly. After waiting

about 15 minutes, Tsibouris called her, and she said she was coming. When she did

not, he walked to the front door of the building and knocked, calling out for her.

Asberry said that Tsibouris did not seem angry or aggressive, just irritated that she

had not come out of the building.

       {¶7} When his girlfriend did not respond, Tsibouris walked to the back of the

building, while trying to reach her on the phone. Asberry remained seated in his cab.

He had to look through the front passenger seat window, which was rolled down, to

see the building’s front door, which was situated about 25 feet up from the curb. The

front lights of the building were on.

       {¶8} When Tsibouris came back to the front door, Asberry asked him what

was taking so long. Tsibouris turned and looked at Asberry. He said that his girlfriend

had called, and she was coming out. Then, Asberry saw the front door of the building

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open, Tsibouris “turned around, and he was surprised, and pow.” Asberry said that

Tsibouris’s hands were down, and he was only holding his cell phone, not any

weapons. He added that there was “no conversation, no nothing.” When the door

opened, “there was a pow. . . . [H]e was not trying to get into the apartment. I never

seen him grab the doorknob or anything. He knocked on the door a few times, that’s

all.” Asberry added that was no time for any interaction between Tsibouris and the

shooter.

       {¶9} Tsibouris fell down, and the front door closed. Asberry saw a man run

up the steps inside the building to go into the apartments on the top floor. He

described the shooter as an older gentleman with close-cut, salt-and-pepper hair, who

was a little taller than him.

       {¶10} Asberry then drove about a quarter of a mile away and called the cab

company. He was told not to get involved, but he stated that “I like this guy. I’m not

going to go just leave him laying there like that.” Afterwards, he was rattled and drove

home. Later that morning, he met with homicide detectives.

                                B. The Police Investigation

       {¶11} Criminalist Jimmy Pham generated a diagram of the crime scene that

showed blood stains going from the landing where Tsibouris had been shot and down

the steps to where he was found lying in the front yard. He identified a 9 mm shell

casing found underneath the bushes in the front yard. While casings from most

firearms eject to the right, he said that there was no way to determine how the casing

ended up there.

       {¶12} Pham stated that no blood was found inside the doorway or in the

common area of the building where the shooter had stood when he fired the gun.

Pham documented a pool of blood on the landing outside the front door, several feet



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                       OHIO FIRST DISTRICT COURT OF APPEALS



from the threshold. He also documented blood spots going down each step from the

landing, consistent with Tsibouris rolling or sliding down the steps after being shot.

          {¶13} Detective Greg Gehring arrived at the scene shortly before 5:30 a.m.

After he spoke with Asberry, residents of the building, and the landlord, the

investigation became centered on apartment three. Although the apartment was

leased to another individual, the landlord stated that a person she knew as “Pee Wee”

was residing there. Pee Wee was later determined to be Ross. The police prepared a

search warrant and brought in a SWAT team. A negotiator from the SWAT team

contacted Ross, who returned to the scene. Ross agreed to speak to police at their

office.

          {¶14} Ross denied any involvement in the shooting. He told the detectives

that he had been lying down when he heard someone banging on the door. He walked

out into the hallway, and he saw a “guy he knew of” when he looked down the stairs.

He walked back into his apartment to call 911 when he heard a gunshot. He said that

a woman named Linda was with him in the apartment, and he and Linda left the

apartment. The detectives determined that his story was all lies. There was no woman

named Linda, and the person in the apartment with Ross was Otten. Detective Gehring

stated that Ross was at their office a long time, a “matter of hours.” During that time,

Ross never mentioned that he acted in self-defense.

          {¶15} Dr. Anne Laib, a forensic pathologist and deputy coroner with the

Hamilton County Coroner’s Office, performed an autopsy on Tsibouris.                 She

determined that Tsibouris was 44 years old, was five feet eleven inches tall, and

weighed 337 pounds. She testified that his cause of death was a gunshot wound to the

head.

          {¶16} Dr. Laib further testified that there was a muzzle imprint on Tsibouris’s

head, which meant that the murder weapon had been “pressed firmly and forcefully

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against the skin” when it was fired. She found soot and gunpowder deep within the

wound, which only happens when a gun is pressed against the skin. The bullet traveled

through Tsibouris’s right eye, the base of his skull, and through his brain. It exited

through the upper left skull behind his left ear. Dr. Laib also found that the left sides

of Tsibouris’s arm, shoulder and leg were scraped and bruised, consistent with him

falling on his left side.

        {¶17} A toxicology report showed that Tsibouris had fentanyl and cocaine in

his system at the time of his death. Dr. Laib testified that he was “acutely intoxicated,”

which means that the drugs were still in their “unbroken down form in the body.” She

further stated that at the time he was shot, he was under the influence of those drugs,

but she clarified that she could not say how he metabolized those drugs or how they

affected his behavior the night of the shooting.

                                 C. Ross’s Testimony

        {¶18} The State introduced Ross’s testimony from the previous trial into

evidence. Ross stated that he had gotten out of prison in August 2020, and that he

was on postrelease control. The conditions of his postrelease control required him to

stay away from hard drugs and guns. He lived in his nephew’s apartment at 7815 New

Bedford Avenue while his nephew was in prison. The landlord was his nephew’s best

friend and allowed Ross to perform various tasks in the building in lieu of rent.

        {¶19} At some point prior to November 14, 2020, Carlee Otten moved in with

Ross and spent most nights there. She was a drug addict, who used, among other

things, crack, heroin, and fentanyl. Ross said that he knew that she used drugs in her

room, but he allowed her to move in because he thought it was safer for her than being

on the street.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} Ross also knew that Otten spent time with Tsibouris, and Otten told

Ross that she had taken $3,800 from him. At one point, Ross drove Otten to see

Tsibouris, and when he did not hear from her in several days, he became concerned.

After Ross told Tsibouris that he would call the police if he did not hear from Otten,

he received a call from her, asking him to pick her up. She told Ross that Tsibouris

had “kept her hostage.”

       {¶21} At about 3:30 a.m. on November 14, 2020, Ross was asleep in his

apartment when he heard “boom, boom,” and a crash. Then he heard banging on his

apartment door. When Ross looked through the peephole, he saw Tsibouris standing

there. Otten was standing behind Ross. As he ran to the kitchen to get a butcher knife,

Otten said, “Let me get him out of here.” Ross opened the door to let her out, then

slammed it shut, and locked it. Otten left with Tsibouris. Subsequently, Ross

discovered Tsibouris had kicked in the Plexiglass window to the left of the door to the

building and reached inside to open the door.

       {¶22} After Ross told his nephew about that incident, he told Ross that he had

a gun in a shoebox on a shelf in his bedroom. Ross retrieved the gun. He said that he

had no confidence that the entryway door would keep someone from entering the

building.

       {¶23} Ross did not see or hear from Tsibouris again until the early morning

hours of November 22, 2020. He said that he had been “smoking weed” all night, fell

asleep, and awakened to the sound of someone banging on the front door of the

apartment building. He looked out the window and saw a cab. He thought it might be

for his downstairs neighbors in apartment two. When he asked Otten if she knew who

it was, she said no.

       {¶24} A few minutes later, Ross heard “boom, boom, boom, boom.” He said

the vibration shook the building. The pounding went on for about ten minutes. He

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                     OHIO FIRST DISTRICT COURT OF APPEALS



thought that he should see what was going on, so he “instinctively” grabbed the gun,

although he knew he was violating the conditions of his postrelease control. As he

walked down the stairs, he did not see anyone at the door, even though there were two

windows on either side of the front door.

       {¶25} Ross reached with his left hand to open the door, which swung out left

to right, with the gun in his right hand. At that moment, he was shocked and scared

to see Tsibouris. Ross asked Tsibouris, “What are you doing here?” Tsibouris asked,

“Where is Carlee?” Ross remained inside the doorway because Tsibouris was blocking

the entry. Ross told him, “Get out of here. Man, don’t come in here.” When he did

not leave, Ross told him again, “Don’t come in here.” Tsibouris again asked for Otten.

Ross testified that the more times he told Tsibouris to go away, the angrier he got.

       {¶26} Tsibouris came toward Ross with his shoulder lowered like he was going

to “swing at me, throw a punch or something and hit me.” As Tsibouris came toward

him, Ross moved back, angling away from him. Ross said that Tsibouris, who was

younger and much larger than Ross, “was looking crazy.” Ross thought there was no

way he could beat Tsibouris. As Tsibouris came closer to him, Ross raised his right

hand with the gun to shoot. When the gun went off, he and Tsibouris were so close to

each other that they touched. Ross did not know if he pulled the trigger intentionally

or accidentally. He said that “it just happened to0 fast.”

       {¶27} After the gunshot, Ross could not see Tsibouris. He stepped through

the doorway and saw him lying at the bottom of the steps. He admitted that although

he had said that Tsibouris was coming toward him, Tsibouris never made it to the

threshold of the front door and fell backwards.

       {¶28} Ross, who claimed that he had never shot anyone, panicked. He ran

upstairs, changed his shoes, put on a black tee shirt and sweatshirt, and grabbed a

jacket. He told Otten, “We got to get out of here.” Otten stated that there was a warrant

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                     OHIO FIRST DISTRICT COURT OF APPEALS



for her arrest, so she went with him. He drove down Summit Road and got rid of the

gun by throwing it out of his car into a wooded area. He said that even though Otten

was with him, she did not see where he threw the gun.

                                  D. Otten’s Testimony

       {¶29} The defense presented Otten’s testimony from the previous trial. She

admitted that she was addicted to fentanyl, heroin, and cocaine at the time. She was

in a relationship with Tsibouris, who was also an addict. Because they were homeless,

they often stayed in Tsibouris’s car, in hotels, or outside. Tsibouris’s drug of choice

was cocaine.

       {¶30} In November 2022, Otten often stayed at the apartment where Ross was

living. She had a sexual relationship with Ross, who supplied her with drugs. She

admitted that she was scheming with both Tsibouris and Ross to get as many drugs

from both of them as she could.

       {¶31} The night before the shooting, Otten said she was going to leave some

cocaine for Tsibouris in a grill in front of Ross’s apartment, and he was going to leave

some fentanyl for her in exchange. She led Tsibouris to believe that they were going

to be paid a lot of money for the drugs that they would sell. But she put white power

in the grill, and after Tsibouris retrieved it, he realized that he had been scammed.

       {¶32} Tsibouris left the area but returned in a cab and waited outside for

Otten. He texted her, “Cab getting off highway,” and “Cab here.” In the meantime,

she had gone upstairs and had fallen asleep after using the fentanyl. Tsibouris texted

her repeatedly and asked why she wasn’t coming down. When he received no answer,

he texted, “Plan B about to happen. We are out front; in 30 seconds I’m coming in.”

He walked to the front door of the building and began knocking loudly enough to wake

her. She texted him, telling him to go away.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Otten said that Ross woke up and went downstairs to see who was

making all the noise. She texted Tsibouris and told him, “He’s coming. Get off the

fuckin door.” Tsibouris responded, “BRING THE MONEY.” She said that she was in

the kitchen making toast when she heard Ross say, “Who is it?” and tell Tsibouris to

leave. Then she heard a gunshot. Ross returned upstairs and told her that they needed

to leave. He also told her that “he did not mean to do it.” Otten said she left, because

she was afraid of “being charged.” She also told police that Ross had threatened her

and her loved ones. When they left through the front door, she did not look at anything

and did not notice Tsibouris’s body.

                        II.     Ineffective Assistance of Counsel

       {¶34} In his first assignment of error, Ross contends that he was denied the

effective assistance of counsel. He argues that his counsel was ineffective for failing to

object to and to seek redactions of Ross’s prior testimony, which was inadmissible

under Evid.R. 404(B) and 609(A)(2). This assignment of error is not well taken,

       {¶35} A court will presume that a properly licensed attorney is competent, and

the defendant bears the burden to show ineffective assistance of counsel. State v.

Hamblin, 

 (1988); State v. Hackney, 

(1st Dist.). To sustain a claim for ineffective assistance of counsel, the defendant must

demonstrate that counsel’s performance was deficient, and that the deficient

performance prejudiced the defense. Strickland v. Washington, 

,

(1984); 

.

       {¶36} To establish that counsel’s performance was deficient, the defendant

must show that counsel’s representation fell below an objective standard of

reasonableness.    

; 

.          Judicial scrutiny of

counsel’s performance must be highly deferential. The defendant must overcome the



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presumption that, under the circumstances, the challenged action might be considered

sound trial strategy. 

; 

. A defendant is not deprived

of the effective assistance of counsel when counsel chooses, for strategic reasons, not

to pursue every possible trial tactic. State v. Brown, 

 (1988);

.

       {¶37} To establish prejudice, a defendant must show that there is a reasonable

probability that but for counsel’s unprofessional errors, the result of the proceeding

would have been different. 

; 

. Prejudice from

defective representation sufficient to justify reversal of a conviction exists only where

the result of the proceeding was unreliable or fundamentally unfair because of

counsel’s performance. Lockhart v. Fretwell, 

 (1993); State v.

Carter, 

 (1995); 

.

                             A. Counsel’s Failure to Object

       {¶38} Ross argues that his counsel was ineffective for failing to object to

testimony on cross-examination about Ross’s 30-year-old convictions and his

violations of the conditions of his postrelease control. First, we note that counsel’s

failure to make objections is not, by itself, enough to sustain a claim of ineffective

assistance of counsel. State v. Conway, 

, ¶ 168; Hackney, 2016-Ohio-

4609, at ¶ 39 (1st Dist.).

       {¶39} Generally, the prosecution in a criminal case may not present evidence

that the defendant has committed other crimes or acts independent of the crime for

which the defendant is being tried to establish that the defendant acted in conformity

with his bad character. Evid.R. 404(B); State v. Thomas, 

 (1st

Dist.). But Evid.R. 404(B) provides that other bad acts are admissible to show

“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of



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mistake or accident.” State v. Shedrick, 

 (1991); 

.

       {¶40} Because Evid.R. 404(B) codifies an exception to the general rule, it must

be strictly construed against admissibility. State v. Coleman, 

(1989); 

. Nevertheless, the other acts need not be similar to the crime

at issue.   If the other acts tend to show by substantial proof any of the items

enumerated in Evid.R. 404(B), evidence of the other acts is admissible. 

; 

.

       {¶41} Evid.R. 609 governs impeachment of a witness’s credibility through

admission of a prior criminal conviction. State v. French, 

 (1st

Dist.). Evid.R. 609(A)(2) provides,

       Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),

       evidence that the accused was convicted of a crime is admissible if the

       crime was punishable by death or imprisonment in excess of one year

       pursuant to the law under which the accused was convicted and if the

       court determines that the probative value of the evidence outweighs the

       danger of unfair prejudice, of confusion of the issues, or of misleading

       the jury.

       Evid.R. 609(B) states,

       Evidence of a conviction under this rule is not admissible if a period of

       more than ten years has elapsed since the date of conviction or of the

       release from confinement, or the termination of community control

       sanctions, post-release control, probation, parole, or judicial release

       imposed for that conviction, whichever is the later date, unless the court

       determines, in the interests of justice, that the probative value of the



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       conviction supported by specific facts and circumstances substantially

       outweighs its prejudicial effect.

       {¶42} The record shows that Ross’s testimony was presented by defense

counsel in the first trial. On direct examination, Ross’s counsel began by having Ross

acknowledge that he had lied to the police when he was questioned about the murder.

Ross admitted that he had lied, but he said that he was ready to tell the truth at trial.

Counsel asked if this was the first time Ross had ever been charged with a crime. Ross

acknowledged that he had other convictions for drug-related offenses that had

resulted in prison terms.

       {¶43} Then, defense counsel asked him about his most recent time in prison,

and Ross replied that he had been released in August 2020. He testified that he was

subject to postrelease control. The conditions of postrelease control were that he could

not have contact with the police under any circumstances, and that he could not be

around hard drugs or guns. He acknowledged that he had violated those conditions.

       {¶44} While still on direct examination, Ross asked if he could say something.

He stated, “I’m 65 years old at the time. Man, I ain’t never shot nobody. I ain’t never

killed nobody. I ain’t never stabbed nobody. I ain’t never cut nobody. I don’t carry

myself like that. I ain’t never hurt nobody, I mean never in my life, my 65 years.”

       {¶45} On cross-examination, the state asked about his previous convictions,

especially violent offenses. The state asked, “This is not the first time you’ve been

convicted for a felony weapon conviction.” Ross replied, “N0.” He added that he had

been released from prison in 2020 for a crime that involved a gun. The prosecutor

asked, “You’ve been convicted multiple times of assault on a police officer, isn’t that

correct?” Ross replied, “That was about 30 years ago.” He also stated that he had

pleaded guilty “just to get it over with.”



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        {¶46} The State also asked him about the conditions of his postrelease control.

Then the State asked him, “So we already know you’ve been out of prison for about

three months, and you’ve already committed two crimes?” Ross replied, “Okay. Yes,

I have. It’s my fault.” The State then asked him, “When you grabbed that gun, you

walked down the stairs, you knew you were committing a crime?” He replied, “Yes, I

did.”

        {¶47} In the previous trial, Ross was a defense witness, testifying on his own

behalf. His previous testimony was presented by the State in this trial. Nevertheless,

his trial strategy in both trials was to be candid about his previous convictions and

other bad acts to enhance his credibility to the jury on his self-defense claim. He

admitted that he lied to police because he knew he was on postrelease control, and he

did not trust the police or understand that he could raise self-defense. In doing so, he

opened the door to questions about his previous convictions.

        {¶48} A defendant may introduce testimony, through himself or others, of a

relevant character trait that would tend to prove he acted in conformity therewith on

a particular occasion. Evid.R. 404(A)(1). By introducing that evidence, the defendant

“opens the door” for the prosecution, which is then permitted to rebut or impeach this

character evidence on cross-examination under Evid.R. 405(A).               That cross-

examination may include inquiry into relevant specific instances of conduct. State v.

Eldridge, 

 (12th Dist.).

        {¶49} Ross specifically put his character for peacefulness at issue through his

voluntary statement that he had never shot, killed, stabbed or cut anyone. See id. at ¶

41. Convictions over ten years old can be admissible under Evid.R. 609(B) if the

“probative value of the conviction supported by specific facts and circumstances

substantially outweighs its prejudicial effect.” Arguably, the convictions for assaulting

a police officer were relevant to Ross’s claims that he was not violent, but we question

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                      OHIO FIRST DISTRICT COURT OF APPEALS



whether asking about 30-year-old convictions was proper.               Nevertheless, the

questions about those convictions were brief, and they were not unfairly prejudicial.

       {¶50} Questionable trial strategies and tactics do not rise to the level of

ineffective assistance of counsel. State v. Mohamed, 

. Simply

because there was “another and better strategy available” did not mean that counsel

provided ineffective assistance. Id. at ¶ 19, quoting State v. Clayton, 

 (1980). Consequently, we overrule Ross’s first assignment of error.

               B. Counsel’s Failure to Request a Limiting Instruction

       {¶51} In his second assignment of error, Ross again contends that he was

denied the effective assistance of counsel. He argues that defense counsel’s failure to

request a limiting instruction and final jury instruction regarding the limited purpose

for which the jury could consider his prior convictions, prior inconsistent statements,

and prior bad acts constituted ineffective assistance. This assignment of error is not

well taken.

       {¶52} The failure to request limiting instructions on the use of an offender’s

prior convictions does not, in and of itself, indicate ineffective assistance of counsel.

State v. Hester, 

, ¶ 15 (10th Dist.); State v. Brown, 

,

¶ 17 (12th Dist.). Generally, the failure to request jury instructions is purely a matter

of trial tactics and will not be disturbed on appeal. State v. Herrington, 2010-Ohio-

6426, ¶ 11 (9th Dist.). “This is especially so in cases where the jury instruction at issue

would have undermined or been inconsistent with the defense’s theory of the case.”

State v. Moore, 

 (9th Dist.).

       {¶53} The theory of Ross’s defense was that while he had made mistakes in the

past and lied to police, once he took responsibility for his actions, he told the truth. He

also asserted that he lied to the police because he knew he had violated the conditions



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of his postrelease control, and he did not trust the police or know that he could have

raised self-defense. A limiting instruction would be inconsistent with his defense

because his counsel had brought up the prior convictions as a trial strategy.

       {¶54} Ross has not overcome the presumption that his counsel’s failure to

request a limiting instruction was a matter of trial strategy. See Mahomed, 2017-Ohio-

7468, at ¶ 25; 

; Brown at ¶ 16-17. Because Ross has not shown that his

counsel’s performance was deficient, we need not consider the issue of prejudice.

Consequently, we overrule Ross’s second assignment of error.

         III.     The Court’s Failure to Sua Sponte Give a Limiting Instruction

       {¶55} In his third assignment of error, Ross contends that the trial court

committed plain error in failing to give limiting or final jury instructions sua sponte

regarding the limited purpose for which the jury could consider the character

evidence. He argues that the trial court’s failure to do so deprived him of his right to

due process and a fair trial. This assignment of error is not well taken.

       {¶56} A court need not sua sponte give a limiting instruction every time other-

acts evidence is presented. “Depending on the nature of the other-acts evidence and

the context in which it is used, defense counsel may as a matter of strategy wish to

avoid highlighting the evidence for the jury.” State v. Hartman, 

. The decision not to request a limiting instruction “is sometimes a tactical one,”

and the Ohio Supreme Court has stated that it does not “wish to impose a duty on the

trial courts to read this instruction when it is not requested.” State v. Schaim, 

 (1992).

       {¶57} Because trial counsel did not request a limiting instruction, the trial

court was not required to give the jury a limiting instruction concerning the other-acts

evidence. See State v. Mott, 

 (5th Dist.). Therefore, the court



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                      OHIO FIRST DISTRICT COURT OF APPEALS



did not err in failing to give a limiting instruction, much less commit plain error. We

overrule Ross’s third assignment of error.

                                    IV.      Speedy Trial

       {¶58} In his fourth assignment of error, Ross contends that the trial court

erred in denying his motion to dismiss the tampering-with-evidence indictment. He

argues that that indictment violated his right to a speedy trial. This assignment of

error is not well taken.

       {¶59} Our review of the trial court's decision involves mixed questions of fact

and law. State v. Cheatham, 

 (1st Dist.). We give due weight to

the inferences drawn from the facts found by the trial court as long as they are

supported by competent, credible evidence. We review the trial court’s conclusions of

law de novo to determine whether the facts satisfy the applicable legal standard. State

v. Gage, 

 (1st Dist.).

       {¶60} Ohio has codified a defendant’s right to a speedy trial in R.C. 2945.71.

. Under R.C. 2945.71(C)(2), a person charged with a felony must be

tried within 270 days from his arrest. In State v. Adams, 

 (1989),

the Ohio Supreme Court held, “When new and additional facts arise from the same

facts as did the original charge and the state knew of such facts at the time of the initial

indictment, the time within which trial is to begin on the additional charge is subject

to the same statutory limitations period that is applied to the original charge.”

       {¶61} The Supreme Court later distinguished Adams in State v. Baker, 

 (1997). It held that the State, in issuing a second indictment against

the defendant, was not subject to the speedy-trial time limits of the original indictment

because the subsequent charges were based on new and additional facts that the State

did not know at the time of the original indictment. 

 at syllabus. It stated,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



“Additional crimes based on different facts should not be considered as arising from

the same sequence of events for the purposes of speedy-trial computation.” 

.

       {¶62} “[A] case by case analysis is necessary when applying the new-and-

additional-evidence standard elucidated by Baker.” State v. Kinsey, 

 (1st Dist.). In this case, on December 1, 2020, a grand jury indicted Ross for two

counts of murder, felonious assault, and having weapons under a disability. The first

trial ended with a hung jury on the two murder counts and the felonious-assault count.

On September 21, 2022, the state indicted Ross on one count of tampering with

evidence. The trial court consolidated the two indictments for trial. Following several

continuances, most of which were at Ross’s request, the trial began on August 15, 2023,

well over 270 days from the original indictment.

       {¶63} In his motion to dismiss for lack of a speedy trial, Ross argued that the

State knew or should have known that he had disposed of the gun he used to shoot

Tsibouris. First, the police did not find a gun at the scene of the shooting. Second,

police spoke to Otten on November 24, 2020, and she stated that Ross had told her

that the gun was gone.

       {¶64} Even though the State knew the gun was missing, it had no knowledge

of what exactly had happened to it. During his interview with the police, Ross denied

that he was involved in the shooting. Although Otten testified that Ross had told her

the gun was gone, she did not know any further details. She stated, “Yes, someone got

rid of it. He got rid of it, or whatever, but it wasn’t going to be found.” That statement

alone was not sufficient to support an indictment for tampering with evidence. A mere

suspicion based on some evidence is not enough to say that the second indictment was

based on information known to the State at the time of the original indictment. See

Kinsey, 

 (1st Dist.).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶65} It was not until Ross testified in the first trial that the State learned that

Ross had thrown the gun into a wooded area near the scene. Consequently, the State

was not subject to the speedy-trial time limits of the original indictment because the

second indictment was based on new and additional facts that the State did not know

at the time of the original indictment. Therefore, we overrule Ross’s fourth assignment

of error.

                                    V. Self-Defense

       {¶66} In his fifth assignment of error, Ross contends that the jury verdicts

finding him guilty of counts two and three, felonious assault and murder, were against

the manifest weight of the evidence. He argues that the state failed to prove that he

was not acting in self-defense. This assignment of error is not well taken.

       {¶67} As a preliminary matter, the jury found him guilty of felonious assault

in count two of the indictment. But the trial court merged that count with count three,

one of murder charges. A conviction requires a finding of guilt and sentence. State v.

Whittle, 

 (1st Dist.). So even though the jury found him guilty

of felonious assault, there was no conviction because the trial court merged it with the

murder count. See State v. Johnson, 

 (1st Dist.). Therefore, we

address this assignment of error only in relation to the murder conviction.

       {¶68} Generally, the elements of self-defense in cases of deadly force are: (1)

the defendant did not create 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 (3) the defendant did not have a duty to retreat or avoid danger. State v. French,

 (1st Dist.); State v. Smith, 

 (1st Dist.). The

elements of self-defense are cumulative, and a defendant’s claim of self-defense fails




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                     OHIO FIRST DISTRICT COURT OF APPEALS



if any one of the elements is not present. State v. Ridley, 

 (1st

Dist.); 

.

       {¶69} In 2018, the Ohio legislature modified R.C. 2901.05 to change the

treatment for the use of force in self-defense and to add a new burden-shifting

provision. State v. Parrish, 

 (1st Dist.); 

. The statute

was amended again in 2021, but that amendment did not substantively change the

applicable provisions. We apply the statute in effect at the time of the offense. See

.

       {¶70} Under the applicable former version of R.C. 2905.01(B)(1), the

defendant had the initial burden of production to present evidence that “tends to

support” a claim of self-defense. 

; State v. Williams, 

 (1st Dist.). While the “tends to support” language was a “new feature” in the 2018

amendment of the statute, that phrase did not change the defendant’s burden of

production. 

; 

. The defendant must produce evidence

that, when viewed in the light most favorable to the defendant, is sufficient to create a

reasonable doubt as to guilt. 

; 

, both citing State v.

Melchior, 

 (1978), paragraph one of the syllabus. “The question of

credibility is not to be considered.” 

, quoting State v. Sullivan, 2020-

Ohio-1439, ¶ 45 (11th Dist.).

       {¶71} The burden of going forward with evidence is met when evidence, if

true, “would raise a question in the minds of reasonable jurors concerning the

existence of such issue.” State v. Ralls, 

 (1st Dist.). To meet the

burden of production, the defendant must produce evidence that “when viewed in a

light most favorable to the defendant is sufficient to cast a reasonable doubt as to

guilt.” Ridley, 

 (1st Dist.); 

.



                                               20
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶72} Once the defendant met this burden of production, former R.C.

2901.05(B)(2) shifted the burden of persuasion to the prosecution. As a result, the

prosecution does not assume the burden of persuasion until the defendant first meets

his or her burden of production. 

; Williams, 

 (1st

Dist.). The prosecution must produce evidence to disprove one of the elements of self-

defense beyond a reasonable doubt. 

; 

. We review de novo

whether the trial court applied the proper legal standard and whether evidence of self-

defense was sufficient to shift the burden to the prosecution. 

.

       {¶73} The State only needs to disprove one of the elements of self-defense

beyond a reasonable doubt. Smith, 

 (1st Dist.). Therefore, in

evaluating a manifest-weight challenge involving self-defense, we must review the

entire record, consider the credibility of the witnesses, and determine whether the trier

of fact lost its way and created a manifest miscarriage of justice with respect to its

finding that the State disproved at least one of the elements of self-defense beyond a

reasonable doubt. French, 

 (1st Dist.); 

. Ross

presented evidence that tended to show that he acted in self-defense. So, the burden

of persuasion fell to the State.

       {¶74} The State proved beyond a reasonable doubt that Ross did not have a

bona fide belief of imminent danger. This element has both objective and subjective

tests. 

. 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 danger. State v. Warth, 

 (1st Dist.);

.     The state may disprove self-defense by demonstrating that the

defendant’s belief was not objectively reasonable or that he did not have an honest

subjective belief that he faced imminent death or great bodily harm. 

;

.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶75} Ross argues that he was 65 years old and weighed 160 pounds at the

time of the shooting. Tsibouris, on the other hand, was 20 years younger and about

150 pounds heavier, and had a substantial amount of drugs in his system. Ross had

seen the damage that Tsibouris had done to the window by the apartment door to

obtain access only a week before.

       {¶76} Ross testified that Tsibouris was agitated. He ignored Ross’s repeated

orders to leave the property. Ross stated that Tsibouris dropped his shoulder and

moved toward Ross, as if to attack him. Tsibouris kept yelling angrily for Otten and

would not take no for an answer. Ross feared for his safety as he felt that he could not

fend off Tsibouris, and therefore, he had no alternative but to raise the gun toward

Tsibouris. Afterward, Ross had no memory of pulling the trigger. He said it all

happened fast.

       {¶77} Ross’s argument requires his testimony to be believed. The State

presented Asberry’s testimony, which was directly opposed to Ross’s testimony.

Asberry testified that Tsibouris had been waiting about 15 minutes for Otten to come

down. When he walked to the front door, he did not appear angry or aggressive.

Asberry then asked him what was taking so long, and Tsibouris looked at him and said

that Otten was coming down. Immediately afterward, the door opened, Tsibouris

turned around and he was shot.

       {¶78} Asberry stated that Tsibouris’s arms were down by his side when he was

shot and that no conversation with anyone had occurred before he was shot. “There

was no time for that,” he said. He also stated that Tsibouris had not grabbed the

doorknob or tried to get into the building. Additionally, Otten had testified that Ross

went downstairs to see who was knocking, she heard Ross say, “Who is it?” and then

she heard a gunshot.



                                              22
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶79} Further, Dr. Laib, the coroner, testified that there was a muzzle imprint

on Tsibouris’s forehead that meant that the murder weapon had been pressed firmly

and forcefully against the skin when it was fired. She found soot and gunpower deep

within the wound, dispelling Ross’s claim that he shot Tsibouris after he lunged at him.

       {¶80} Even though Tsibouris was bigger and younger than Ross, he was

unarmed. He was not there to find Ross, but instead he wished to speak to Otten.

After the shooting, Ross fled the scene, and when he spoke to police, he repeatedly lied

to them, undercutting his claim that he feared for his life. Even if Ross had a subjective

belief that he was in imminent danger, a reasonable trier of fact could have determined

that that belief was not objectively reasonable.

       {¶81} Viewing the evidence in a light most favorable to the prosecution, the

jury could have reasonably found that the State disproved the imminent-belief-of-

harm element beyond a reasonable doubt. See Warth, 

 (1st

Dist.); Smith, 

 (1st Dist.). The jury could have believed the

State’s evidence and disbelieved Ross’s testimony. Matters as to the credibility of

evidence are for the trier of fact to decide. French, 

 (1st Dist.).

Consequently, we overrule Ross’s fifth assignment of error.

                                      VI. Summary

       {¶82} In sum, we hold that Ross was not denied the effective assistance of

counsel, the trial court did not err in failing to give a limiting instruction on the

character evidence, Ross’s speedy-trial rights were not violated, and the state

disproved one of the elements of his self-defense claim. Consequently, we overrule his

five assignments of error and affirm the trial court’s judgments.

                                                                    Judgments affirmed.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, P.J., and CROUSE, J., concur.

Please note:
       The court has recorded its own entry this date.




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