[Cite as State v. Coleman,
2025-Ohio-513.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0040
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
MALIKHI JERMAINE COLEMAN,
Trial Court No. 2022 CR 00416
Defendant-Appellant.
OPINION
Decided: February 18, 2025
Judgment: Affirmed
April R. Grabman, Ashtabula County Prosecutor, and Christine Davis, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Russell S. Bensing, 600 IMG Building, 1360 East Ninth Street, Cleveland, OH 44114
(For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Malikhi Jermaine Coleman, appeals the judgment of the
Ashtabula County Court of Common Pleas, convicting him, after a trial by jury, of Murder,
Discharge of a Firearm on or near Prohibited Premises, and Improperly handling a
Firearm in a Motor Vehicle; the first two counts carried one-, three-, and five-year firearm
specifications. At issue is whether the trial court committed prejudicial error in allowing
the prosecutor to introduce evidence of prior acts and whether the trial court committed
plain error in its self-defense jury instruction. We affirm.
{¶2} On the evening of July 26, 2022, two groups of young men convened at the
Harbor Ridge Apartment Complex in Ashtabula, Ohio. One group, the victim’s group,
consisted of, among others, Frederick Johnson (“the victim”), Ra’Mon McRae, Raburn
Seawood, Donte Holley (a minor), and Brian Smith. The other group, Coleman’s group,
included Coleman, Julius Simmons, and three other individuals who were not directly
involved in the incident. There were three notable vehicles involved: a gold Suzuki, driven
by Seawood; a gray Chevy Malibu, driven by the victim; and a white Mercury Grand
Marquis, driven by Simmons.
{¶3} Upon arrival at the apartment complex, the victim’s group gathered in the
parking lot; they were talking and considering putting on boxing gloves and participating
light boxing. Apparently, Coleman’s group observed the victim’s group and, according to
Seawood, Coleman announced,“We got guns over here.”
{¶4} Seawood admitted he had a Glock 17 9mm handgun, with a 50-round drum
on his person. He stated, however, he and other members of the victim’s group went
inside one of the apartments to play and/or compose music for a period of time. The
victim’s group left the apartment and, according to Seawood, Coleman began flashing an
AK 47 rifle and exclaiming apparent gang slurs; specifically, at the time, Seawood and
the victim were members of the “Black Disciples” gang and Coleman was yelling “BDK”
which, according to Seawood, stood for “Black Disciple Killers.”
{¶5} Seawood asserted he and the victim concluded they would return to the
former’s residence “to avoid the drama” of Coleman’s group. Seawood, Smith, and Holley
entered Seawood’s Suzuki; the victim and another individual, whose name was not clearly
established, entered the victim’s Malibu. Both cars exited the apartment complex onto
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Lambros Avenue. Simmons and Coleman entered the Grand Marquis and followed the
members of the victim’s group.
{¶6} Seawood’s vehicle turned right onto Ohio Avenue with the victim’s vehicle
following. According to Seawood, shots were fired, and he noticed the victim had stopped
his car on Ohio Avenue and exited the vehicle. At the same time, Holley was positioned
in Seawood’s back seat wielding a firearm out an open window. Seawood stated he did
not observe the victim armed on the day of the incident and, as far as Seawood could
observe, the victim had no firearm brandished as he exited the vehicle. The victim then
fell to the ground, suffering one fatal gunshot wound to the face. Although Seawood
acknowledged that Holley fired multiple shots from his car, Seawood identified Coleman
as the individual who shot the victim. Seawood stated, however, he had no idea whether
Coleman or Holley fired first.
{¶7} McRae, who was with the victim’s group, was initially in Seawood’s Suzuki
when the vehicles left the apartment complex. The vehicles stopped and McRae exited
the Suzuki and entered the victim’s Malibu. The victim followed Seawood’s car onto Ohio
Avenue and then stopped. According to McRea, the victim exited his car and shooting
commenced. When the shooting began, McRae stated he ducked down inside the victim’s
vehicle; after it ceased, he exited the vehicle and ran away.
{¶8} Smith, another member of the victim’s group, was in the front passenger
seat of Seawood’s vehicle. Smith stated that Holley was in the back passenger’s seat,
and he was leaning on the car’s window sill with a firearm. Once the vehicle turned onto
Ohio Avenue, Smith noticed Simmons’ Grand Marquis and multiple gun shots were fired.
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Smith claimed that he “heard the louder repeated firing first” and Holley followed by
shooting at the Grand Marquis. Smith could not identify the shooter in the Grand Marquis.
{¶9} Simmons, a member of Coleman’s group, went with Coleman on the date
of the incident to the Harbor Ridge Apartment complex in Simmons’ Grand Marquis.
Apparently, Simmons had relatives living at the complex. Simmons was aware that
Coleman had an AK 47 rifle with him.
{¶10} According to Simmons, Coleman and others were consorting near a picnic
table when he noticed members of the victim’s group flashing guns. In response,
Simmons stated Coleman began rapping along with a song with lyrics that included
“BDK,” i.e., Black Disciple Killers. Simmons was aware that at least Seawood was a
member of the Black Disciples. Coleman subsequently retrieved the AK 47 from
Simmons’ car and placed it on the picnic table. Simmons indicated that both Seawood
and Coleman flashed their relative weapons at each other; regardless of the witnesses’
relative observations, it is clear that both groups were well armed.
{¶11} Simmons stated he and Coleman became uncomfortable and returned to
the Grand Marquis intending to leave. The victim’s group apparently entered their
respective vehicles and, according to Simmons, he “looped around the parking lot and
gave them time to leave . . . .” Once Simmons and Coleman exited, Simmons observed
Holley in Seawood’s vehicle “hanging out the window, flashing it, pointing a gun at us.”
According to Simmons, Seawood stopped his vehicle in the middle of the street.
Simmons advised Coleman, who was holding the AK 47, not to shoot from the vehicle.
At that point, shots “just started going off.” Simmons stated he did not know who shot first,
but all he could hear was Coleman’s rifle being fired.
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{¶12} Coleman’s rendition of events substantially tracked Simmons’ version.
According to Coleman, however, the victim had pointed a firearm at him before he
retrieved the AK 47. Coleman did not deny possessing or owning the rifle, but explained
he carried the firearm for self-protection because he had been shot previously. As he and
Simmons left the apartment complex, Coleman noticed Holley hanging out of Seawood’s
vehicle with a firearm; Coleman also claimed he observed the victim exiting his car in
possession of a firearm. According to Coleman, someone from the victim’s group began
shooting at him. In response, Coleman fired his rifle, discharging approximately 14 or 15
rounds.
{¶13} Once the shooting ceased, the victim was the only individual hit. He was
killed by a single gunshot wound to the side of the face. According to the autopsy, the
bullet entered the left side of the victim’s cheek area, caused various fractures of the skull,
and entered the brain. The bullet did not exit the victim’s skull, but the significant damage
was sufficient to cause his death.
{¶14} Detective Wayne Howell of the Ashtabula City Police Department arrived
on the scene and observed the victim in the roadway. Blood was spurting from a wound
on the left side of his cheek. Blood was also visible in the victim’s left ear. The victim was
unconscious, his tongue was swollen, and blood was pooling around his eye sockets and
near the nostrils. Detective Howell found no pulse and observed the victim was not
breathing. Other officers arrived at the scene and secured the same.
{¶15} Detective Wesley Burns of the Ashtabula City Police Department arrived
and assisted other officers in collecting evidence. The detective found two 9 mm rounds
near the victim’s vehicle and two more where Seawood’s Suzuki was situated at the time
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of the incident. Detective Burns also found multiple 7.62 X 39-mm caliber-rifle casings at
the north of the intersection of Lambros Lane and Ohio Avenue.
{¶16} Lieutenant Michael Palinkas of the Ashtabula City Police Department
received a call shortly after the incident informing him that a sheriff’s deputy had stopped
the Grand Marquis. Simmons and Coleman were brought to the police station where
Lieutenant Palinkas interviewed them. Simmons initially denied any knowledge of the
incident but later stated that someone from the other vehicle fired first. Coleman
eventually admitted he fired shots from the passenger window of the vehicle. Lieutenant
Palinkas, after analyzing the evidence, also concluded the victim did not exchange in the
crossfire.
{¶17} Evidence from the scene was sent to the Ohio Bureau of Criminal
Investigation (“BCI”). Alex Miller, a forensic scientist for BCI, performed scientific testing
on Coleman’s AK 47. Mr. Miller determined the rifle was operable and compared shell
casings from the test firing of the rifle and those found at the scene. He concluded, based
upon individual characteristics, all the submitted shell casings were fired from Coleman’s
AK 47.
{¶18} Miller observed that the firing pin of the subject AK 47 left “divots” or specific,
individual characteristics on the primer; moreover, he stated that when the gun powder is
burning, it produces a large amount of gas pressure. When the bullet is driven out of the
barrel, the cartridge case stamps up against the breach face or bolt face of the firearm.
These markings were also individual characteristics upon which Miller based his
conclusion that the casings found at the scene were fired from Coleman’s rifle.
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{¶19} The bullet recovered from the victim’s head was too badly damaged for
Miller to conclusively determine it was fired from Coleman’s AK 47. He was able to opine,
however, that based upon individual rifling characteristics found in the rifle’s barrel, Miller
determined the bullet probably was shot from Coleman’s AK 47. Ultimately, however,
Coleman conceded the fatal shot was fired from his rifle.
{¶20} In September 2022, Coleman was charged in a four-count indictment.
Count One alleged Murder, in violation of R.C. 2903.02(B) and (D), an unclassified felony.
Count One additionally carried a three-year firearm specification, pursuant to R.C.
2941.145(A), and a five-year firearm specification, pursuant to R.C. 2941.146(A). Count
Two alleged Felonious Assault, in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a felony
of the second degree. Count Two also carried a three-year firearm specification, pursuant
to R.C. 2941.145(A), and a five-year firearm specification, pursuant to R.C. 2941.146(A).
Count Three alleged Discharge of a Firearm on or Near Prohibited Premises, in violation
of R.C. 2923.162(A)(3) and (C)(4), a felony of the first degree. Count Three also carried
a three-year firearm specification, pursuant to R.C. 2941.145(A), and a five-year firearm
specification, pursuant to R.C. 2941.146(A). And Count Four alleged Improper Handling
of a Firearm in a Motor Vehicle, in violation of R.C. 2923.16(B), a felony of the fourth
degree.
{¶21} The matter proceeded to jury trial, after which the jury returned a verdict of
guilty on all counts. At sentencing, the trial court merged the Felonious Assault and the
Murder counts and the State elected to proceed to sentencing on the Murder count. On
the Murder count, Coleman was sentenced to a minimum of 15 years to life imprisonment
and five years on the firearm specification. The term on the specification will be served
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first and consecutive to the Murder sentence for a total, minimum of 20 years. On Count
Three, Coleman was sentenced to a minimum of 11 years with a maximum, indefinite
term of 16.5 years incarceration along with five years on the firearm specification. The
firearm specification will be served first and consecutive to the Discharge of a Firearm
charge, for a total, minimum term of 16 to 21.5 years. And further Coleman was sentenced
to 18 months on the Improper Handling count. The prison terms were ordered to be
served consecutively to one another, for a total minimum term of 37.5 years to 43-years
in prison and a maximum of life in prison.
{¶22} This appeal follows. Appellant assigns two errors for this court’s review. He
first alleges:
{¶23} “The trial court erred in allowing the prosecutor to introduce evidence of
prior acts of the Defendant, in derogation of Defendant’s right to due process of law, as
protected by the Fifth and Fourteenth Amendments to the United States Constitution.”
{¶24} A trial court’s ruling on the admission of evidence is reviewed for an abuse
of discretion. State v. Finnerty, 45 Ohio St.3d 104, 109 (1989). No court has the
discretionary authority to commit an error of law. State v. Beechler,
2010-Ohio-1900, ¶
70 (2d Dist.) An abuse of discretion is the trial court’s “‘failure to exercise sound,
reasonable, and legal decision-making.’” Beechler at ¶ 62, quoting Black’s Law
Dictionary (8th Ed. 2004).
{¶25} Coleman’s assignment of error is premised upon the prosecutor’s cross-
examination.
{¶26} During Coleman’s direct examination, the following exchange took place:
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Q. Okay. After you retrieved the firearm from your vehicle,
how long were you sitting there before you decided to leave?
A. Um, five, ten minutes, maybe.
Q. Okay. What made you decide to leave?
A. They were flashing their guns, and I didn’t want to be a part
of that. I didn’t - -
Q. Why? Please explain.
A. Because I have, um, already been shot before, and I didn’t
want to get shot again.
Q. When were you shot before?
A. A year prior to this situation.
...
Q. Okay. How did that affect you?
A. Um, it gave me a couple stress disorders. You know, I didn’t
want to go nowhere without a gun. I was scared. Every time I
left the house, I - - well, I didn’t really leave the house much,
but every time I left the house, I made sure I had a firearm
with me
.
{¶27} On cross-examination, the prosecutor engaged in the following exchange
with Coleman:
Q. Okay. You talked about being shot before, right?
A. Yes, ma’am.
Q. And that no one was charged (with Coleman being shot)?
A. Yes, ma’am.
Q. Didn’t that case go to trial as well?
A. Yes ma’am.
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Q. And weren’t you in one of the cars that drove up on a house
and shot and hit Nancy Rhodes - -
{¶28} Defense counsel immediately objected but the court overruled the
objection, observing “[t]he only reason I’m going to allow this question to be asked is
because you went there, [defense counsel]. . . . Otherwise, I would not have allowed
anyone to ask these questions.”
{¶29} The questioning about the previous incident continued:
Q. Didn’t you drive up with a couple cars to Nancy Rhodes’
house and start shooting at the house?
A. No ma’am.
Q. You and Ivan Grover and a bunch of other individuals drove
up on Nancy Rhodes’ house containing her grandson and
shot at the house, and he shot back, correct?
...
A. No. He shot me three times before anybody shot back.
...
Q. Okay. Where you and Ivan Grover and a bunch of other
individuals drive up on a house and open fire; isn’t that right?
(sic)
A. No. You don’t see nobody driving up or anything.
Q. You were there, weren’t you?
A. Yes, ma’am. I was in the passenger’s seat.
Q. And you got shot, right?
A. Yes, ma’am.
{¶30} Coleman argues there is no question that had the subject not been raised
on direct examination, the prosecutor’s line of questioning would have been inadmissible.
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He points out that the evidence would not have come under any of the exceptions set
forth in Evid.R. 404(B). Indeed, Coleman claims the prosecutor’s cross elicited the
essence of propensity evidence. To wit: Coleman was involved in a prior drive-by
shooting and, thus, it is more likely he committed the drive-by shooting leading to the
murder in this case.
{¶31} In State v. Dunivant, 2005-Ohio-1497, ¶ 12 (9th Dist.), the Ninth District
Court of Appeals, sitting by assignment for the Fifth District Court of Appeals, held:
“‘Under . . . the “opening the door” doctrine, the introduction of inadmissible evidence by
one party allows an opponent, in the court’s discretion, to introduce evidence on the same
issue to rebut any false impression that might have resulted from the earlier
admission.’”
Id., quoting United States v. Whitworth,
856 F.2d 1268, 1285 (9th Cir. 1988).
See also United States v. Moody,
371 F.2d 688, 693 (6th Cir. 1967). “The doctrine does
not permit the introduction of evidence that is related to a different issue or is irrelevant to
the evidence previously admitted.” Whitworth, citing McCormick on Evidence § 57 (3d Ed.
1984).
{¶32} As noted, the doctrine’s purpose is to rebut false impressions. “Rebuttal
evidence, the scope of which lies within the discretion of the trial court, is that which is
‘given to explain, refute, or disprove new facts introduced into evidence by the adverse
party.’” State v. Essa, 2011-Ohio-2513, ¶ 97 (8th Dist.), quoting State v. McNeill,
83 Ohio
St.3d 438, 446,
1998-Ohio-293. Nevertheless, the doctrine of opening the door must be
exercised with caution. In quoting a Federal District Court trial judge, the Circuit Court for
the District of Columbia, highlighted the doctrine’s pitfalls: “‘This business about “opening
the door” is a much overused issue and it carries with it an oversimplification. Opening
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the door is one thing. But what comes through the door is another. Everything cannot
come through the door.’” United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971).
{¶33} The Winston court continued:
The doctrine is to prevent prejudice and is not to be subverted
into a rule for injection of prejudice. Introduction of otherwise
inadmissible evidence under shield of this doctrine is
permitted ‘only to the extent necessary to remove any unfair
prejudice which might otherwise have ensued from the
original evidence.’ California Ins. Co. v. Allen, 235 F.2d 178,
180 (5th Cir. 1956).
Winston at 1240.
{¶34} Other courts outside of Ohio’s jurisdiction have also commented on these
points. Courts have observed that opening the door is a doctrine intended to serve
fairness and truth-seeking, not create impermissible inferences. See, e.g., Ramirez v.
State, 739 So.2d 568, 579 (Fla. 1999) (“The concept of ‘opening the door’ is ‘based on
considerations of fairness and the truth-seeking function of a trial.’” (quoting Bozeman v.
State,
698 So.2d 629, 631 (Fla.App. 1997))). The otherwise inadmissible evidence sought
to be introduced by the opposing party should be limited to that which is necessary to
correct a misleading advantage created by the evidence that opened the door. See,
e.g., State v. Gaudet,
97 A.3d 640, 646 (N.H. 2014) (recognizing that the opening the
door doctrine applies “to situations in which one party has introduced admissible evidence
that creates a misleading advantage and the opponent is then permitted to introduce
previously suppressed or otherwise inadmissible evidence to counter the misleading
advantage” (citing State v. Wamala,
972 A.2d 1071, 1076 (N.H. 2009)).
{¶35} More specifically:
For this doctrine to apply, a party must introduce evidence that
provides a justification, beyond mere relevance, for the
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opponent’s introduction of evidence that may not otherwise be
admissible. However, the initial evidence must have
reasonably misled the fact finder in some way. The rule, thus,
prevents a party from successfully excluding evidence
favorable to his opponent and then selectively introducing
some of this evidence for his own advantage, without allowing
the opponent to place the evidence in proper context. The fact
that the “door has been opened” does not permit all evidence
to pass through because the doctrine is intended to prevent
prejudice and is not to be subverted into a rule for the injection
of prejudice. The trial court is in the best position to gauge the
prejudicial impact of particular testimony.
(Citations and internal quotation marks omitted.) Gaudet, citing and quoting Wamala at
1076-77,
{¶36} As also recognized by the Connecticut Court of Appeals,
The trial court must carefully consider whether the
circumstances of the case warrant further inquiry into the
subject matter, and should permit it only to the extent
necessary to remove any unfair prejudice which might
otherwise have ensued from the original evidence. . . . [I]n
making its determination, the trial court should balance the
harm to the state in restricting the inquiry with the prejudice
suffered by the defendant in allowing the rebuttal.
State v. Phillips, 927 A.2d 931, 943 (Conn. 2007) (quoting State v. Graham,
509 A.2d 493,
496 (Conn. 1986)).
{¶37} In light of these points, courts, including those in Ohio, have noted the “the
doctrine [of opening the door] is ‘dangerously prone to overuse.’” State v. Bronner, 2002-
Ohio-4248, ¶ 72 (9th Dist.), quoting Winston, 447 F.2d at 1240, quoting United States v.
McClain,
440 F.2d 241, 244 (D.C. Cir.1971); see also State v. McDaniel,
2021-Ohio-724,
¶ 13 (1st Dist.). Because it is a principle of “expanded relevancy,” it stands to reason that
courts must be circumspect in utilizing the doctrine.
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{¶38} “Evid.R. 404(B) exists to guard against the ‘propensity’ inference—in other
words, wielding past bad acts to prove action in conformity therewith, which facilitates a
conviction based on prior conduct rather than the evidence at hand.” State v. O'Connell,
2020-Ohio-1369, ¶ 1 (1st Dist.). “The introduction of evidence of other bad acts can be
prejudicial and is generally prohibited by Evid.R. 404(B).” State v. Moore, 2003-Ohio-
1154, ¶ 23 (8th Dist.), citing State v. Curry,
43 Ohio St.2d 66, 68-69 (1975). Still, courts
will not find prejudicial error when the defense properly “opens the door” to such
evidence. Moore at ¶ 23, citing State v. Greer,
39 Ohio St.3d 236, 243 (1988).
{¶39} The primary question, consequently, is whether the trial court properly ruled
that defense counsel opened the door for the prosecutor’s exploration of the alleged bad
acts. Coleman argues the query must be answered in the negative, while the State
maintains the admission was proper.
{¶40} In this case, Coleman introduced evidence that he had been shot previously
as a foundation for carrying the rifle for protection as well as his heightened concern for
situations in which others are carrying firearms. It is not clear how the State’s cross-
examination, implicating Coleman as a participant in a drive-by shooting, served to rebut
(i.e., explain, refute, or disprove) the facts introduced on Coleman’s direct examination.
{¶41} Coleman’s testimony on direct simply provided an explanation regarding
why he was carrying the rifle and also why, if he was believed, he intended on leaving
without facilitating an encounter or exacerbating the situation further. We fail to see how
the State was unfairly prejudiced by Coleman’s testimony such that the State should have
been permitted to explore the specific nuances of the prior incident, which directly
implicated him in a separate drive-by shooting.
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{¶42} Put differently, defense counsel’s line of inquiry in direct did not open the
door for an exchange about or a full exploration of the circumstances of the previous
incident. The prosecutor’s questions about Coleman’s alleged participation in a prior
drive-by were not necessary to address the testimony elicited from Coleman during cross-
examination. In our view, consequently, the prosecutor’s cross-examination injected
improper propensity evidence of Coleman’s prior actions that was ultimately irrelevant to
any fact of consequence in this case. We therefore conclude the trial court abused its
discretion in allowing the prosecutor to pursue the line of questioning.
{¶43} Our analysis, however, does not end with this conclusion. We must
determine whether the error was harmless. In State v. Kennedy, 2022-Ohio-3369, ¶ 27
(11th Dist.), this court observed:
{¶44} Crim.R. 52(A) defines harmless error in the context of criminal cases and
provides:
Any error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded. During a
harmless-error inquiry, the state has the burden of proving
that the error did not affect the substantial rights of the
defendant.
Kennedy at ¶ 27, citing State v. Perry,
2004-Ohio-297, ¶ 15.
{¶45} In State v. Morris, 2014-Ohio-5052, ¶ 23, the Supreme Court of Ohio
discussed harmless error:
[I]f there is “a ‘[d]eviation from a legal rule,’” courts undertake
a “‘harmless error’ inquiry—to determine whether the error
‘affect[ed] substantial rights’ of the criminal defendant.” State
v. Fisher, [2003-Ohio-2761, ¶ 7], quoting United States v.
Olano, [507 U.S. 725, 732-733, 734] (1993). The term
“substantial rights” has been interpreted to require that “‘the
error must have been prejudicial.’ (Emphasis
added.)” Id., quoting
Olano at 734[.] If a court determines that
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the error did not affect the defendant’s substantial rights, then
the error is harmless and “‘shall be
discarded.’” Id., quoting Crim.R. 52(A).
{¶46} “‘“[T]he cases where imposition of harmless error is appropriate must
involve either overwhelming evidence of guilt or some other indicia that the error did not
contribute to the conviction.”’” Morris at ¶ 29, quoting State v. Rahman, 23 Ohio St.3d
146, 151 (1986), quoting State v. Ferguson,
5 Ohio St.3d 160, 166 (1983), fn. 5.
{¶47} When reviewing the remaining evidence, the reviewing court’s role “‘is not
to sit as the supreme trier of fact, but rather to assess the impact of this erroneously
admitted testimony on the jury.’” Morris at ¶ 29, quoting Rahman at 151, fn. 4.
{¶48} At trial, testimony reflected that while both groups were at the apartment
complex, Coleman produced his AK 47 and displayed it for the victim’s group to see.
According to Seawood, while he and others in the victim’s group were “playing around,”
possibly boxing with one another, Coleman announced, “We got guns over here.”
Coleman subsequently flashed the AK 47 and began shouting “gang slurs” toward the
victim’s group; in particular, he yelled “BDK” (Black Disciple Killers) three or four times.
{¶49} After Seawood left the apartment with Smith and Holley, he testified, “we
stopped ‘cause we seen him, or whoever was driving (the other vehicle with Coleman in
the passenger seat), ah, after they made the loop and they seen we had made the right,
they come zooming down Lambros Lane, and shots started firing off.” Seawood testified
he did not know who fired first, but he observed Coleman shooting the rifle.
{¶50} Simmons, who was with Coleman, heard Coleman rapping to a song that
repeated the phrase “BDK.” Simmons testified, after watching a video from the apartment
complex security system, he saw Coleman flashing the AK 47 at the victim’s group. Once
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Case No. 2024-A-0040
Simmons left the complex with Coleman, he testified Coleman brandished the rifle at
which point Simmons advised him not to shoot from his car. Simmons testified he did not
know who shot first, but he did not hear any other gunfire before Coleman commenced
shooting.
{¶51} Smith, who was riding with Seawood and Holley, stated Holley shot at
Coleman, but only after Coleman shot first. He testified Coleman’s rifle was louder than
the other shots and stated the louder shots rang out prior to Holley firing. Smith
acknowledged he originally told police he did not know who fired first, but maintained his
certainty at trial that he heard the louder shots first.
{¶52} Brent Loveland testified on Coleman’s behalf and stated he overheard
gunfire from the apartment complex. He stated he first heard pistol rounds, then the rifle.
Coleman testified he retrieved his AK 47 only because he observed members of the
victim’s group flashing firearms. Moreover, Coleman testified he shot at the victim’s group
in self-defense because someone shot at him and Simmons first.
{¶53} Although Coleman testified the victim’s group taunted his group and were
the aggressors, other testimony suggested otherwise. The testimony of both Simmons
and Smith, although subject to the factfinder’s evaluation, indicated Coleman initiated the
confrontation as well as the gun fight. The harmless-error analysis requires the error to
affect a substantial right, i.e., unfair prejudice. While we conclude the introduction of the
evidence of Coleman’s previous participation in a drive-by was highly problematic and
defense counsel’s objection should have been sustained, we also maintain the remaining
evidence adduced by the prosecution was sufficient to overcome any unfair prejudice.
Moreover, despite the problematic character of the propensity evidence introduced by the
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prosecutor, the jury was made aware that Coleman was acquitted of any criminal
wrongdoing in the previous case. We therefore conclude the error in introducing
Coleman’s prior actions may be discarded and the error is accordingly deemed harmless.
{¶54} Coleman’s first assignment of error lacks merit.
{¶55} Coleman’s second assignment of error provides:
{¶56} “The trial court committed plain error in instructing the jury that the
defendant had a duty to retreat.”
{¶57} Appellant was convicted of murder, which required the State to prove,
beyond a reasonable doubt, that Coleman caused the death of the victim as a proximate
result of Coleman’s committing or attempting to commit an offense of violence that is a
felony of the first or second degree, to wit: felonious assault. See R.C. 2903.02(B) and
(D). Under R.C. 2901.05(B)(1), an individual is allowed to act in self-defense “[i]f, 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 . . . (and) the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force in self defense. . .” R.C.
2901.05 “places the burden of persuasion upon the State to disprove at least one of the
elements of self-defense beyond a reasonable doubt.” State v. Corey, 2022-Ohio-4568,
¶ 104 (11th Dist.)
{¶58} While instructing the jury, the trial court stated:
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: The Defendant was at fault in
creating the situation giving rise to the shooting; or the
Defendant did not have reasonable grounds to believe he was
in immediate danger of death or great bodily harm; or the
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Defendant did not have an honest belief, even if mistaken, that
he was in immediate danger of death or great bodily harm; or
the Defendant violated a duty to retreat to avoid the danger;
or the Defendant used unreasonable force.
(Emphasis added.)
{¶59} The trial court subsequently instructed:
The Defendant did not act in self-defense if the State proved
beyond a reasonable doubt that the Defendant was at fault in
creating the situation that resulted in the death. The
Defendant was at fault if the Defendant was the initial
aggressor and (the victim) did not escalate the situation by
being the first to use or attempt to use deadly force; or the
Defendant provoked (the victim) into using force; or the
Defendant did not withdraw from the situation; or the
Defendant withdrew from the situation but did not inform (the
victim) or reasonably indicate by words or acts to (the victim)
of his withdrawal.
{¶60} Coleman accurately points out that Ohio adopted a “stand-your-ground”
policy when it amended R.C. 2901.09, effective April 6, 2021 – over a year prior to the
incident. The amended version provides, in relevant part:
(B) For purposes of any section of the Revised Code that sets
forth a criminal offense, a person has no duty to retreat before
using force in self-defense, defense of another, or defense of
that person’s residence if that person is in a place in which the
person lawfully has a right to be.
(C) A trier of fact shall not consider the possibility of retreat as
a factor in determining whether or not a person who used
force in self-defense, defense of another, or defense of that
person’s residence reasonably believed that the force was
necessary to prevent injury, loss, or risk to life or safety.
{¶61} Coleman argues that the trial court’s instruction, particularly the first quoted
instruction, was tantamount to advising the jury that he had a duty to retreat.
{¶62} We initially point out that the second quoted instruction does not necessarily
imply Coleman had a duty to retreat. Rather, it suggests that if Coleman was at fault and
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he did not withdraw from the affray or Coleman withdrew, but did not inform the victim or
reasonably indicate by words or actions to the victim of his withdrawal, then he did not
act in self-defense. We consequently do not read this component of the instructions as
improperly stating the law.
{¶63} Additionally, and reinforcing this point, the trial court instructed the jury: “In
determining whether the Defendant, in using force in self-defense, reasonably believed
that the force was necessary to prevent injury, loss, or risk to life or safety, you may not
consider the possibility of retreat by the Defendant. The Defendant had no duty to retreat
from before using force in self-defense if the Defendant was in a place in which he lawfully
had a right to be.” (Emphasis added.)
{¶64} With respect to the first quoted instruction, we recognize there is room for
confusion regarding whether Coleman had a duty to retreat. Although that issue was later
clarified in the jury instructions, the first instruction may appear to conflict with the more
succinct subsequent instructions. Nevertheless, neither counsel for the State nor defense
counsel objected to the instructions prior to their issuance, even when the court overtly
asked if there were “any objections, additions, or corrections at this time.”
{¶65} Moreover, the State did not present an argument that Coleman could not
claim self-defense because he had no right or privilege to be present at the location where
the incident took place. As such, there was no evidence or argument before the jury that,
due to special circumstances, he violated some unique or specific duty to withdraw or
retreat. In this regard, we fail to see how the first quoted instruction posed the risk of
confusing or misleading the jury such that plain error must be noticed. See State v. Carter,
2024-Ohio-1908, ¶ 19-22 (2d Dist.) (holding the same instruction was not reversible error
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where there was no evidence presented by the prosecution that the defendant asserting
self-defense violated some overarching or case-specific duty to retreat).
{¶66} Reading the jury instructions together and as a whole, we therefore
conclude that, even if the aggrieved instruction was issued in error, it did not affect the
outcome of the proceeding. We conclude there was no plain error.
{¶67} Coleman’s second assignment of error lacks merit.
{¶68} The judgment of the Ashtabula County Court of Common Pleas is affirmed.
ROBERT J. PATTON, P.J.,
JOHN J. EKLUND, J.,
concur.
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