State v. Warth

[Cite as State v. Warth, 

.]




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




 STATE OF OHIO,                              :   APPEAL NO. C-220477
                                                 TRIAL NO. B-2102322
           Plaintiff-Appellee,               :

     vs.                                     :
                                                       O P I N I O N.
 CHRISTOPHER WARTH,                          :

           Defendant-Appellant.              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: October 6, 2023




Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bryan R. Perkins, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



BOCK, Judge.


       {¶1}    Defendant-appellant Christopher Warth appeals his conviction for

felonious assault, raising 14 assignments of error. We affirm the trial court’s judgment

in part, reverse it in part, and remand the cause for further proceedings.

                            I.      Facts and Procedure

       {¶2}    Warth was indicted on two counts of felonious assault under R.C.

2903.11(A)(1) and (2), respectively. The matter was tried to a jury.

                         Surveillance video captured shooting.

       {¶3}    At trial, the state introduced three surveillance videos taken from

Warth’s property. One was from inside Warth’s home and showed the front door. The

second video showed the front door from the porch. The third showed the driveway,

yard, and sidewalk.

       {¶4}    April Estes testified that, in May 2021, after the police informed her that

they could not pursue charges on the allegation that Warth had sexually assaulted

Estes’s daughter in 2007, she went to Warth’s home to inform him that she knew about

the assault. Estes’s girlfriend, Ashley, was in the vehicle with Estes.

       {¶5}    Estes knocked on Warth’s door and April Tyler, Warth’s mother, opened

the front door but remained behind the closed screen door. Video surveillance

supports Estes’s testimony that she never touched the door other than knocking on it

and was not trying to get inside the home.

       {¶6}    According to Estes, she asked Tyler for Warth and explained the

allegation against him. As the two began arguing, Warth came downstairs with a gun

in hand. The surveillance video shows that Warth had the gun raised to where Estes


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could see it through the screen door. Estes testified that, when Warth came

downstairs, he looked “like a maniac with his firearms and stuff.”

       {¶7}      Tyler testified that Estes made no threats before Warth got downstairs

with his gun already in hand. Warth went to the door and then put the gun on the

kitchen table.

       {¶8}      As Estes, Tyler, and Warth continued to argue through the screen door,

Tyler smacked Estes in the forehead through the screen door and then closed the solid

door. Warth went into another part of the home. Estes walked off the porch of the

home and toward the sidewalk. Tyler and Warth continued to argue with Estes from

inside of their home. Tyler called 911 as the situation continued.

       {¶9}      Tyler told the operator that she did not think that Estes had any

weapons. Warth went out onto the porch with his gun as Tyler spoke with the 911

operator. Estes stated that, by the time Warth exited from the house with his gun the

first time, Tyler had already shut the door and Estes was at or near the sidewalk. Tyler

also came outside and began to argue with Estes again as Estes slowly backed off of

the property toward the street. As Warth went back inside the house, Tyler picked up

a flowerpot and motioned as if she were going to throw it at Estes.

       {¶10} Estes testified that she did not leave the area because they were still

engaging with her, and she was not going to turn her back on them. She added that

she “wasn’t getting out of there that day without getting shot” and she “knew that from

the minute he answered the door with [the gun] in his hand.”

       {¶11} Warth continued to enter and exit the house. Eventually, Warth, gun in

hand, walked to the end of the porch where Tyler was still arguing with Estes, who was

on the sidewalk.

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       {¶12} As Estes stood on the sidewalk, Tyler and Warth approached her. As

they got closer, Estes put her right hand in her right pocket and forcibly shook the

pocket, then took a fighting stance. Estes testified that she told them not to come any

closer. She denied having weapons or threatening to harm them because “that’s not

what [she went there for.]”

       {¶13} Estes testified that she was begging Warth and Tyler to back off while

she was holding her sweatpants up as they “tend to sag a little bit * * * from the weight”

of her cell phone in her pocket. She stated that she was getting herself ready in case

Tyler was going to hit her again because Tyler was “coming at [her].” Estes asserted

that she kept her fist balled up inside of the pocket of her sweatpants “[p]robably just

trying to scare them back.”

       {¶14} Tyler and Warth were within arm’s reach when Estes, still in a fighting

stance, stepped off the sidewalk onto the lawn and lunged toward Warth and then

toward Tyler. Warth stepped back, pulled his gun from his left pocket, and switched it

to his right hand. Warth shot Estes twice in the stomach as she lunged at Tyler. Estes’s

hands were at her side—with both hands empty and visible—when Warth shot Estes.

       {¶15} After Warth shot Estes, Ashley attempted to pull her away from the

scene. Warth, however, repeatedly pushed Estes down and kicked Estes in the chest

while pointing the gun at both Estes and Ashley. Estes testified that she was certain

that “he was going to blow [Ashley’s] head off” because he kept pointing the gun at her,

or that he would shoot Estes in the head after he “stomped [Estes’s] head.” Estes

testified that she thought she was going to die.

       {¶16} Estes suffered lacerations to her liver and kidney, damage to her L3-L4

vertebrae, and she had an ileostomy bag for six months. Estes learned to walk again

                                            4
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through physical therapy, though she continued to suffer from nerve damage in her

leg.

               Officers responded to the scene and interviewed Warth.

       {¶17} Officer Richard Coy, a responding officer, testified that he heard a

gunshot as he was enroute to Warth’s home. When Coy arrived, Warth was holding a

handgun in his right hand, so Coy immediately drew his weapon and ordered Warth

to drop his pistol. Instead of complying, Warth argued with Coy, stating that he had

surveillance cameras. Warth did not comply until Coy repeated the command several

times. Coy testified that he saw Estes injured and lying on the ground but neither he

nor the medics could get to her until Warth dropped his weapon and the scene was

secured.

       {¶18} Police searched Estes, Ashley, and the car in which they had arrived.

They found no weapons.

       {¶19} Detective Michael Webb responded to the scene, reviewed the video

surveillance, and interviewed Warth. During the interview, Warth referred to Estes as

“[t]his girl or guy, whatever the fuck it is,” and stated that Estes kept hitting through

the screen door, tried to grab the storm door, and punched the window. Warth claimed

that he saw a knife handle in Estes’s pocket, asserted that his gun had been holstered,

denied knowing Estes before admitting that he knew her from school, and said that

Estes kept lunging toward him before he “popped her.”

       {¶20} Webb stated that, while Warth may have thought Estes had a weapon,

Warth “definitely show[ed] Ms. Estes that he had a weapon.” When asked by defense

counsel to concede that Warth only pointed the gun when he shot Estes, Webb

responded that he recalled Warth pointing the gun in the air to show Estes that he had

                                           5
                      OHIO FIRST DISTRICT COURT OF APPEALS



it. Warth agreed with Webb’s suggestion that he could have “simply locked the door

and nothing would have occurred.” The front door was locked before Warth and Tyler

went outside to confront Estes.

       {¶21} Though Webb’s decision to charge Warth was based on Warth having

the ability to remain in his home instead of confronting Estes while she stood on a

public sidewalk and shooting her twice, he also testified that Warth did not have to go

back into his home. The state’s closing argument echoed this testimony. Webb added

that the front door “would secure both” Warth and Estes, and Warth more so than

Estes had the ability to retreat.

        The jury reached a guilty verdict on both counts of felonious assault.

       {¶22} The court instructed the jury that words alone do not justify the use of

force, “no matter how provocative.” The jury returned a guilty verdict on both counts

and specifications.

       {¶23} During sentencing, the court pointed to comments that Warth made in

his police interview that “show[ed] an utter disdain for the victim on the same day.

That is part—that is part of the record.” The court also considered the seriousness

factors under R.C. 2929.12(B), stating that the injury suffered by Estes was grave as

she suffered serious physical harm as well as economic and psychological harm. As to

the R.C. 2929.12(C) factors, the court stated that Estes could have left the home, but

her actions were not a sufficient provocation and Warth’s claims of self-defense and

argument in mitigation were not sufficient under the law. The court noted that Warth

did not have a criminal record and that it must consider his status as a military veteran

as he sustained injuries during his service and suffered from posttraumatic stress

syndrome (“PTSD”), though “the court clinic did not find [his PTSD] significant

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                      OHIO FIRST DISTRICT COURT OF APPEALS



enough to be diagnoseable.”

       {¶24} The trial court sentenced Warth to an indefinite term of nine to 12 years

in the Ohio Department of Rehabilitation and Correction. The court merged the

specification in count two with the specification in count one and ordered the

sentences to be served concurrently.

                               II.    Law and Analysis

       {¶25} Several of Warth’s assignments of error involve evidence to which

Warth failed to object at trial. These asserted errors may only be reviewed for plain

error. State v. Buttery, 

, 

, 

. To

demonstrate plain error, Warth must show that an error occurred, that the error was

plain, and that the error affected his substantial rights. State v. Wilks, 

, 

, 

, ¶ 52; see Crim.R. 52(B). A reviewing court

should not correct plain error other than in “exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 

, 

 (1978), paragraph three of the syllabus.

       {¶26} We address Warth’s assignments of error out of order for ease of

discussion.

              A. The state did not suggest that Warth should have retreated.

       {¶27} In his fourth assignment of error, Warth argues that the trial court erred

to his prejudice by improperly admitting evidence of the possibility of retreat in a self-

defense case as it was contrary to law.

       {¶28} Warth points to multiple instances in which the state allegedly elicited

evidence of the possibility of retreat. But Warth objected once, on the third day of trial,

after multiple instances of the alleged improper testimony occurred. Moreover,

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Warth’s counsel elicited testimony that was similar to what Warth asserts the state

improperly elicited. Thus, the fourth assignment of error may only be reviewed for

plain error. See Buttery, 

, 

, 

.

       {¶29} Under R.C. 2901.05, when a defendant presents evidence that tends to

support that the defendant used force against another in self-defense or in defense of

another, the state must prove beyond a reasonable doubt that the defendant did not

use the force in self-defense or defense of another. R.C. 2901.05(B)(1); State v. Smith,

1st Dist. Hamilton No. C-190507, 

. The state carries the burden

to disprove one or more of the elements of self-defense in the use of deadly force: (1)

the defendant did not create the situation giving rise to the affray, or (2) the defendant

had a bona fide belief that he was in imminent danger of death or great bodily harm

and his only means of escape from such a danger was to use such force. State v.

Mitchell, 1st Dist. Hamilton No. C-220471, 

, ¶ 17. The test for a bona

fide belief of imminent bodily harm is both objective and subjective: whether the

defendant’s belief is objectively reasonable and whether the defendant subjectively

had an honest belief of imminent bodily harm. State v. Moore, 9th Dist. Summit No.

29581, 

, ¶ 10.

       {¶30} The newly-amended “stand your ground” law, R.C. 2901.09(B),

provides that “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.” R.C. 2901.09(C) provides, “A trier of fact

shall not consider the possibility of retreat as a factor in determining whether * * * a

person who used force in self-defense * * * reasonably believed that the force was

necessary to prevent injury, loss, or risk to life or safety.”

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶31} But R.C. 2901.09(C) is not an absolute prohibition on introducing

evidence involving the possibility of retreat. Rather, the statute only prohibits fact

finders from considering evidence involving the possibility of retreat to determine

whether the defendant’s belief that force was necessary was reasonable. Fact finders

may, however, consider retreat evidence to determine who was at fault in creating the

situation leading to the affray. State v. Hughkeith, 

, 

 (8th Dist.) (“While a person no longer has a duty to retreat from a place he or she

is lawfully permitted to be, there is no language in the amended statute to suggest a

trier of fact is precluded from considering whether the defendant was the initial

aggressor or whether the defendant attempted to withdraw from the situation when

determining whether the defendant was at fault in creating the situation giving rise to

the affray. The narrow language of the amended statute does not place on triers of fact

express restrictions on consideration of fault.”).

       {¶32} Warth takes issue with the state’s opening statement, which discussed

Warth, who was armed, leaving the safety of his home to reengage Estes. But this

statement does not involve a duty to retreat. Moreover, the state clarified that Warth

had no duty to retreat back into his house or from his property.

       {¶33} Warth further asserts that Webb’s testimony was improper because he

testified to his understanding of the law as it related to his decision to arrest Warth,

which was based on Warth leaving the safety of his home to reengage Estes after she

had left the property. Warth misconstrues this testimony as suggesting that Warth had

a duty to retreat. He is incorrect. Webb never suggested that Warth had a duty to

retreat. Rather, the testimony focused on Warth choosing to advance toward Estes



                                            9
                    OHIO FIRST DISTRICT COURT OF APPEALS



after she had left Warth’s property. In fact, Webb testified that Warth did not have a

duty to retreat into the house when Estes lunged at him and Tyler.

       {¶34} And the trial court’s jury instructions clearly stated that Warth had no

duty to retreat and that the jury was not to consider the possibility of retreat when

determining whether Warth had a reasonable belief that force was necessary:

       Determining reasonable belief. In determining whether the defendant,

       in using force in self-defense, reasonably believed that the force was

       necessary to prevent injury, loss, or risk of life, or safety, you must not

       consider the possibility of retreat by the defendant.

       “No duty to retreat.” The defendant had no duty to retreat before using

       force in self-defense if the defendant was in a place which he lawfully

       had a right to be.

       {¶35} The trial court committed no error. We overrule Warth’s fourth

assignment of error.

   B. Warth’s conviction was supported by sufficient evidence, and it did not run
                        contrary to the weight of the evidence.

       {¶36} Warth argues his first three assignments of error together, asserting

that (1) his conviction was not supported by sufficient evidence, (2) the conviction ran

contrary to the weight of the evidence, and (3) the state failed to disprove Warth’s self-

defense claim beyond a reasonable doubt.

       {¶37} The Ohio Supreme Court has held that a self-defense claim is not an

element of the offense that must be proven by the state and, therefore, it is not subject

to review for sufficiency of the evidence. State v. Messenger, Slip Opinion No. 2022-

Ohio-4562, ¶ 24-27. Thus, we overrule Warth’s first assignment of error. State v.

Wilson, 2d Dist. Clark No. 2021-CA-68, 

 (A self-defense claim
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                      OHIO FIRST DISTRICT COURT OF APPEALS



naturally concedes commission of the offense.).

       {¶38} Warth’s second and third assignments of error require this court to

determine whether the jury’s verdict was contrary to the manifest weight of the

evidence regarding whether the state disproved Warth’s self-defense claim. See

Messenger at ¶ 26. The weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. State v. Bailey, 1st Dist. Hamilton No. C-140129, 2019-

Ohio-4027, ¶ 63. In reviewing a challenge to the weight of the evidence, this court sits

as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-190107, 

, *7 (Mar. 31, 2020), quoting State v. Thompkins, 

, 

 (1997). This court will not substitute its judgment for that of the

trier of fact on the issue of witness credibility unless it is patently apparent that the

trier of fact lost its way in arriving at its verdict. Bailey at ¶ 63.

       {¶35} Under R.C. 2901.05(B)(1), a person may act in self-defense, defense of

another, or defense of that person’s residence. As discussed above, when a defendant

presents evidence that tends to support that the defendant used force in self-defense,

the state must disprove the accused’s self-defense claim beyond a reasonable doubt.

R.C. 2901.05(B)(1).

       {¶36} Warth heavily relies on State v. Gillespie to support his self-defense

claim. State v. Gillespie, 

, 

, 

 (2d

Dist.). In that case, when the victim came to Gillespie’s home to purchase drugs,

Gillespie noticed that the victim had a knife. Id. at ¶ 2. After Gillespie accused the

victim of stealing his property and went to retrieve a shotgun, the victim had fled. Id.

at ¶ 3-4. Gillespie went to the victim’s mother’s home with the shotgun because he

knew that the victim had a knife. Id. at ¶ 4-5. The two walked back to Gillespie and his

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                     OHIO FIRST DISTRICT COURT OF APPEALS



girlfriend’s house, but after the argument escalated, Gillespie’s girlfriend asked the

victim to leave. Id. at ¶ 6. The victim walked outside and Gillespie followed him. Id.

Though the two offered different accounts of what happened next, Gillespie testified

that the victim had pulled a knife and began approaching him and Gillespie shot him

in self-defense. Id. at ¶ 6-7. The trial court refused to instruct the jury on self-defense.

Id. at ¶ 14. The reviewing court reversed for a new trial, noting:

       Defendant’s own testimony demonstrates that he could have avoided any

       confrontation with Banks by simply remaining at home after Banks left

       Defendant’s home. Instead, Defendant retrieved a loaded shotgun, and

       then went looking for Banks, intending to retrieve his stolen property.

       When Defendant located Banks at his mother’s house, Defendant

       summoned Banks to come outside, and then escorted Banks back to

       Defendant’s house, where the argument over whether Banks took

       Defendant’s property continued and escalated. Simply put, Defendant’s

       own conduct renewed the confrontation with Banks which had

       concluded when Banks left Defendant’s home.

Id. at ¶ 16. The court determined, however, that the trial court should have given the

self-defense instruction to the jury because reasonable jurors could have concluded

that the victim was at fault, noting, “That assumes that Banks attacked Defendant with

a knife, as Defendant claims.” Id. at 18.

       {¶37} Gillespie does not convince us to hold that the trial court’s judgment was

contrary to the manifest weight of the evidence. The issue in Gillespie was whether he

had presented evidence that tended to show that he acted in self-defense, entitling him

to a self-defense jury instruction. Here, however, the trial court provided a self-defense

                                            12
                    OHIO FIRST DISTRICT COURT OF APPEALS



jury instruction. Thus, the question becomes whether the jury’s verdict was contrary

to the manifest weight of the evidence in finding that the state proved beyond a

reasonable doubt that Warth (1) was at fault in creating the situation giving rise to the

affray; or (2) did not have an objectively reasonable or a subjective, honest belief that

he or his mother was in imminent danger of death or great bodily harm for which the

use of deadly force was his only means of escape. See Mitchell, 1st Dist. Hamilton No.

C-220471, 

, at ¶ 19, 24. The state need only disprove one of the self-

defense elements beyond a reasonable doubt. State v. Williams, 9th Dist. Summit No.

29444, 

.

              At fault for creating the situation giving rise to the affray.

       {¶38} Although the laws involving self-defense claims were amended in 2019

and 2020, affecting the state’s burden and the duty to retreat, the law continues to

prohibit a person from provoking an assault or voluntarily entering an encounter and

then claiming a right of self-defense.

       {¶39} “Once the ‘person against whom the defensive force is used’ is no longer

either on the defendant’s property or a threat, or when the defendant has succeeded

in ‘expelling’ the other person, then the privilege under which defendant operated is

over.” State v. Koehler, 8th Dist. Cuyahoga No. 100915, 

; see

State v. Nichols, 4th Dist. Scioto No. 01CA2775, 

 (Jan. 22,

2002) (defendant followed the victim to provoke an altercation); State v. Sekic, 8th

Dist. Cuyahoga No. 95633, 

 (defendant cannot claim self-defense

when he “willingly advanced toward a volatile situation” by confronting the victim to

continue an earlier altercation); State v. Gaston, 8th Dist. Cuyahoga No. 98904, 2013-

Ohio-2331, ¶ 16-17 (even if the victim is the immediate aggressor, the defendant cannot

                                           13
                      OHIO FIRST DISTRICT COURT OF APPEALS



provoke an assault or voluntarily enter an encounter and then claim a right of self-

defense after the victim predictably attacks); State v. Johnson, 8th Dist. Cuyahoga No.

110673, 

 (defendant’s conduct could not support a self-defense

claim where undisputed evidence demonstrated that defendant waited for the victim

to exit the building and approached the victim with the intent to rekindle the earlier

fight).

          {¶39} Citing Gillespie, Warth contends that he cannot be found “at fault” for

arming himself with a weapon while on his property. He asserts that Estes planned to

come to his home to confront him, she “threatened to ‘stick’ [Warth] while concealing

her hand in her pocket as if she had a weapon,” and “escalated this situation when she

came onto [Warth’s] private property and lunged at him and his mother.”

          {¶40} But Warth arming himself while on his property is not the issue. Rather,

the issue in this case is that Warth voluntarily reentered the dispute by pursuing Estes

after she had left his property. Warth’s choice to follow Estes escalated the situation.

          {¶41} The video shows that Estes did not attempt to enter Warth’s house. She

did not get into a fighting stance or lunge at Warth and his mother until they came

outside after her. Warth was armed with a gun and came within a few feet of Estes.

Warth told the investigators that Estes saw his gun when he first came downstairs.

Because Warth repeatedly came outside visibly holding a weapon, Estes knew that

Warth had the gun, and she had a valid fear that he would use it on her.

          {¶42} The evidence supports a finding that Warth voluntarily reentered the

conflict after the threat had been removed. Estes’s coming to the home to confront

Warth about the sexual assault created an environment ripe for a physical

confrontation, but Estes was on the sidewalk creating no threat to Warth when he

                                            14
                    OHIO FIRST DISTRICT COURT OF APPEALS



came back outside with his gun.

               Bona fide fear of imminent death or great bodily harm.

        {¶43} As discussed above, 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 a subjective, honest belief that he was in such danger. Williams,

9th Dist. Summit No. 29444, 

. If the objective standard is

met, “the jury must determine if, subjectively, this particular defendant had an honest

belief that []he was in immediate danger.” State v. Thomas, 

,

 (1997). 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. See Williams, at

¶ 29.

        {¶44} “[W]ords alone will not constitute reasonably sufficient provocation to

incite the use of deadly force in most situations.” State v. Becker, 5th Dist. Stark No.

2022 CA 0069, 

, quoting State v. Shane, 

, 634-

635, 

 (1992).

        {¶45} The jury reasonably could conclude that Warth did not have a bona fide

belief that he or his mother was in danger of death or serious bodily harm.

        {¶46} Regarding whether Warth had an objectively reasonable belief of an

imminent threat of death or serious bodily harm, Tyler told police that she did not

believe that Estes had a weapon. Warth and Tyler were safely behind a locked door.

Estes never “beat” or kicked the door or attempted to gain entry to the home. After

Tyler smacked her in the forehead through the locked screen door, Estes began to walk

away, and Tyler closed the front door on Estes. Finally, Estes’s hands were out of her

                                          15
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pockets when Warth fired his gun.

       {¶47} Even if Warth’s belief were objectively reasonable, a jury reasonably

could have found that Warth lacked an honest subjective belief that he or his mother

were in imminent danger of death or serious bodily harm. Warth entered and exited

from the house multiple times, once unarmed, and once left his mother alone outside

with Estes. If he were honestly afraid of Estes attacking him or his mother, he would

not have left his mother alone with Estes or confronted her unarmed.

       {¶48} Moreover, Warth’s comments to police, which were played to the jury,

suggested that he did not fear her. In describing how he felt threatened by Estes, Warth

said, “[S]he kept saying, I’ll stick you. Come on. Put that gun down. Come out here. I’ll

stick you. I’ll stick you right now. And I was like, what are you gonna stick me with, a

fucking what? Your dildo? What?” Warth also said three separate times that Estes

threatened to “come back” to harm him and his family, which does not indicate an

imminent threat of bodily harm or death.

       {¶49} Finally, Warth lied to police about Estes pounding and kicking at the

door, in saying he did not know who Estes was, and about seeing a knife handle in

Estes’s pocket. The jury could have believed that these lies to police undermined

Warth’s credibility, which could have caused the jury to disbelieve his assertion that

he honestly feared Estes would kill or seriously injure him or his mother.

       {¶50} Reversing a conviction and granting a new trial should only be done in

“exceptional cases in which the evidence weighs heavily against the conviction.” State

v. Pagdett, 1st Dist. Hamilton Nos. C-200327 and C-200238, 

, ¶ 21.

This is not one of those exceptional cases. The jury reasonably found that the state

proved lack of self-defense beyond a reasonable doubt. We overrule Warth’s first,

                                           16
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second, and third assignments of error.

                         C. Webb’s testimony was admissible.

       {¶51} In his fifth assignment of error, Warth argues that the trial court erred

by permitting Webb to express his opinion as to whether Warth acted in self-defense.

Warth did not object to this testimony, thus, we review it for plain error. The testimony

to which Warth objects on appeal is as follows:

       WEBB: And Mr. Warth and his mother continue to go towards her. You

       know Mr. Warth told us several times that he was in fear, yet, he was

       going forward.

       Those two things didn’t make sense. There was a confrontation at the

       corner of the property where Mr. Warth and his mother approached Ms.

       Estes, and, you know, she made some – some movements as if she was

       going to fight.

       You know, what we took into consideration was it was reasonable for

       Ms. Estes to think that there was an imminent threat to her. Mr. Warth

       stated that he felt that she may have had something, but never seen it.

       However, Mr. Warth did definitely show Ms. Estes that he had a

       weapon.

       So at that point where she was on the public sidewalk, and she was

       approached by two individuals, was it reasonable for her to fear that she

       was in imminent danger?

       We felt the imminent threat was more for her to feel fear at that point.

       I asked Mr. Warth if – you know, you could have simply locked the door

       and nothing would have occurred?

                                           17
                    OHIO FIRST DISTRICT COURT OF APPEALS



       He did agree with that statement. So the conclusion was – is that we felt

       Mr. Warth was in violation of felonious assault at that point.

       {¶52} Warth offers no plain-error argument, other than, “Even under the plain

error standard, reversal is required. This is an obvious violation of the law that

adversely affected Warth’s substantial rights.” This conclusory statement does not

provide this court any argument about why admitting this evidence was plainly

erroneous. While under Crim.R. 52(B), this court has the discretion to correct plain

errors affecting a defendant’s substantial rights, “the accused bears the burden of

proof to demonstrate plain error on the record.” State v. Rogers, 

,

, 

. When an appellant fails to develop a plain-error

analysis, the appellate court need not create one on the appellant’s behalf and may

decline to reach the merits of the claim. State v. Chapman, 9th Dist. Summit No.

28626, 

. For this reason, Warth’s fifth assignment of error fails.

       {¶53} But even if Warth had offered a plain-error argument, a trial court does

not commit reversible error by permitting police officers to testify about the process

of their investigation. See State v. Fhiaras, 8th Dist. Cuyahoga No. 97740, 2012-Ohio-

3815, ¶ 38 (testimony involving a police officer’s role in deciding whether his

investigation should continue, and whether that investigation should continue to focus

on both a particular offense and a specific suspect, was permissible); Evid.R. 701; see

also State v. Jones, 

, 

, ¶ 108 (1st Dist.) (testimony of a

detective was rationally based on his training and personal experience in child-abuse

cases, and aided the trier of fact in determining the child-victim’s credibility).

       {¶54} Webb did not give an opinion about whether Warth acted in self-

defense. Rather, Webb testified that it was reasonable for Estes to feel fear when Tyler

                                            18
                    OHIO FIRST DISTRICT COURT OF APPEALS



and Warth—who was armed—approached her on the sidewalk. Webb also testified

about the portion of the police interview where he asked Warth if he could have stayed

behind the locked door and that Warth agreed. This was informing the jury about his

investigation. It was not expert testimony that Warth did not act in self-defense.

       {¶55} We overrule Warth’s fifth assignment of error.

   D. The trial court did not commit plain error by admitting other-acts evidence.

       {¶56} In his sixth assignment of error, Warth argues that the court improperly

admitted evidence of sexual misconduct because it permitted Estes to testify to her

belief that he molested her daughter.

       {¶57} Other-acts evidence is admissible when the acts form a part of the

“immediate background of the act” as part of the charged crime. State v. David, 1st

Dist. Hamilton No. C-210227, 

.

       {¶58} Warth did not object to this testimony and fails to make a plain-error

argument other than, “Even though not objected to at trial, this error also adversely

affected Warth’s substantial rights, requiring reversal even under the plain error

standard.”

       {¶59} But had Warth properly preserved this issue and made more than a

conclusory plain-error argument, the accusation about Warth molesting Estes’s

daughter forms part of the “immediate background of the act.” The allegation explains

why Estes confronted Warth and why both Warth and Tyler were angry. The evidence

was admissible. We overrule Warth’s sixth assignment of error.

   E. There was no prosecutorial misconduct regarding the availability of retreat.

       {¶60} In his seventh assignment of error, Warth argues that the state engaged

in misconduct that prejudicially affected his substantial rights when it argued and

                                          19
                    OHIO FIRST DISTRICT COURT OF APPEALS



elicited testimony regarding Warth approaching Estes, being the aggressor, and failing

to retreat. He contends the state presented improper opinion evidence regarding

whether Warth acted in self-defense and as to prior bad acts.

       {¶61} For the same reasons discussed in the previous assignments of error,

the state did not engage in misconduct and, therefore, there was no error. We overrule

Warth’s seventh assignment of error.

                        F. Warth was not denied due process.

       {¶62} In his eighth assignment of error, Warth argues that his due-process

rights were violated when the police corrupted the audio on the surveillance footage.

Warth contends that, had the audio not been corrupted, then the jury would have been

able “to hear Estes’ actual tirade and threats to kill Warth and his mother,” which was

exculpatory.

       {¶63} “[T]he suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady v. Maryland, 

, 

, 

 (1963). To establish

a Brady violation, Warth first must demonstrate that the state withheld evidence.

State v. Hawk, 10th Dist. Franklin No. 21AP-265, 

.

       {¶64} “A defendant may allege a Brady violation based on loss or destruction

of exculpatory evidence; however, in those cases the evidence must have actually

existed at some point.” State v. Black, 10th Dist. Franklin No. 22AP-180, 2022-Ohio-

3119, ¶ 20, fn. 2. Warth must establish a Brady violation based on more than his

“unsupported assertion” that the audio “could have existed without some evidence to



                                          20
                     OHIO FIRST DISTRICT COURT OF APPEALS



suggest that such [audio] actually did exist.” See State v. Blade, 6th Dist. Lucas No. L-

22-1091, 

.

       {¶65} Here, Warth testified that his surveillance cameras record audio, that

there was audio on previous videos when he had used the cameras before, and he had

not removed any audio from the surveillance of the shooting.

       {¶66} But Warth did not assert that there had been audio on the videos played

during trial. Indeed, there was no evidence that any audio existed or that police

damaged the recording. Warth cannot establish a Brady violation and, therefore, we

overrule Warth’s eighth assignment of error.

     G. The trial court did not err in precluding Warth’s witness from testifying.

       {¶67} In his ninth assignment of error, Warth argues that the trial court erred

by precluding him from presenting a witness who would have testified to seeing a

Facebook post where Estes threatened Warth, which had since been removed.

       {¶68} This court recognizes that trial courts have wide discretion in the

admission or exclusion of evidence. State v. Neal, 1st Dist. Hamilton No. C-210166,

. We review such decisions for an abuse of discretion. 

 To find

an abuse of discretion, this court must determine that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. State v. Ofori, 1st Dist. Hamilton Nos. C-

220367, C-220368, C-220369, and C-220370, 

, quoting

Blakemore v. Blakemore, 

, 

 (1983). We will not

reverse an evidentiary ruling absent a showing that an incorrect ruling affected a

party’s substantial rights. State v. McKelton, 

, 

, 

.



                                           21
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶69} A party claiming error involving the trial court’s exclusion of evidence

must show that the party’s substantial rights were affected and that the party informed

the trial court of the substance of the evidence by proffer or by context of the questions

asked. State v. Conway, 

, 

, 

, ¶ 113;

Evid.R. 103(A)(2). “The purpose of a proffer is to assist the reviewing court in

determining, pursuant to Evid.R. 103, whether the trial court’s exclusion of evidence

affected a substantial right of the appellant.” State v. Gibson, 1st Dist. Hamilton No.

C-220176, 

, quoting In re Walker, 

, 2005-

Ohio-3773, 

 (11th Dist.). A proffer cannot be vague—it must

provide “specific information,” rather than general descriptions. State v. Robinson, 3d

Dist. Allen No. 1-19-79, 

; Hallisy v. Hallisy, 11th Dist.

Geauga No. 2022-G-0048, 

.

       {¶70} At trial, the court asked if Warth intended to call any witnesses.

Relevant to the substance of the Facebook post, Warth’s counsel stated, “There was

testimony by Ms. Estes where I confronted her with a statement that she had posted

to Facebook messages looking to harm Mr. Warth. * * * We plan to call a witness who

will say that she had seen this and that there [were] threats of harm.” There was no

other information proffered.

       {¶71} Warth provided to the trial court no specific information about the

evidence he wished to elicit. Instead, he gave only a general description: that there

were “threats of harm.” There was nothing suggesting the nature of the threats, when

the threats were made, what kind of harm Estes allegedly threatened, or if the post

contained any specific threats.

       {¶72} Warth’s failure to proffer the witness’s testimony renders this court

                                           22
                     OHIO FIRST DISTRICT COURT OF APPEALS



unable to review the proposed testimony to determine whether its exclusion affected

Warth’s substantial rights. Accordingly, Warth forfeited this issue on appeal. We

overrule Warth’s ninth assignment of error.

             H. Warth was not denied the effective assistance of counsel.

       {¶73} In his tenth assignment of error, Warth argues that he was denied the

right to the effective assistance of counsel where his attorney failed to object to the

impermissible testimony and evidence presented by the prosecution.

       {¶74} In any ineffectiveness case, a particular decision must be directly

assessed for reasonableness, applying a heavy measure of deference to counsel’s

litigation strategy. Strickland v. Washington, 

, 

, 

 (1984). Under Strickland as interpreted by Ohio courts, attorneys are

presumed competent and reviewing courts must refrain from second-guessing

strategic, tactical decisions and presume that counsel’s performance falls within a wide

range of reasonable legal assistance. State v. Carter, 

, 

 (1995).

       {¶75} To succeed on an ineffective-assistance-of-counsel claim, an appellant

must show that (1) counsel’s performance was deficient, and (2) the deficient

performance deprived the appellant of a fair trial. 

. “A defendant’s

failure to satisfy one prong of the Strickland test negates a court’s need to consider the

other.” State v. Madrigal, 

, 

 (2000).

       {¶76} “To warrant reversal, ‘(t)he 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. A reasonable probability is a probability



                                           23
                       OHIO FIRST DISTRICT COURT OF APPEALS



sufficient to undermine confidence in the outcome.’ ” State v. Bradley, 

, 

 (1989), quoting 

.

           {¶77} Warth fails to cite to any part of the record where he believes that

counsel should have objected. Indeed, his entire argument is one sentence: “Should

this Court determine that Warth waived any of his claimed errors, or waived all but

plain error, due to his counsel’s failure to object, Warth asserts that he was denied the

effective assistance of counsel.”

           {¶78} App.R. 12(A)(2) provides that “[t]he court may disregard an assignment

of error presented for review if the party raising it fails to identify in the record the

error on which the assignment of error is based or fails to argue the assignment

separately in the brief, as required under App.R. 16(A).” App.R. 16(A)(7) provides that

an appellant must provide an argument and “the reasons in support of the contentions,

with citations to the authorities, statutes, and parts of the record on which appellant

relies.”

           {¶79} This court declines to address Warth’s argument. See State v.

Covington, 1st Dist. Hamilton No. C-190731, 

. We overrule

Warth’s tenth assignment of error.

  I. The trial court properly considered the sentencing factors under R.C. 2929.12.

           {¶80} In his twelfth assignment of error, Warth argues that the trial court

erred by imposing a prison sentence that was not supported by the sentencing factors

in R.C. 2929.12, and that all of the factors under R.C. 2929.12(E) were present.

           {¶81} We review criminal sentences under R.C. 2953.08(G)(2), which allows

appellate courts to increase, reduce, or otherwise modify a sentence, or to vacate the

sentence and remand the matter for resentencing if it clearly and convincingly finds

                                            24
                    OHIO FIRST DISTRICT COURT OF APPEALS



that either the record does not support the sentencing court’s findings under relevant

statutory provisions, or the sentence is otherwise contrary to law. State v. Conley, 1st

Dist. Hamilton No. C-200144, 

.

       {¶82} But “R.C. 2953.08(G)(2)(a) clearly does not provide a basis for an

appellate court to modify or vacate a sentence if it concludes that the record does not

support the sentence under R.C. 2929.11 and 2929.12 because * * * R.C. 2929.11 and

2929.12 are not among the statutes listed in the provision.” State v. Jones, 

, 

, 

. A trial court’s findings under R.C.

2929.11 and 2929.12 are not reviewable under R.C. 2953.08(G)(2)(b) because “an

appellate court’s conclusion that the record does not support a sentence under R.C.

2929.11 or 2929.12 is not the equivalent of a conclusion that the sentence is ‘otherwise

contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 34.

       {¶83} R.C. 2929.11 and 2929.12 are not fact-finding statutes and, absent an

affirmative demonstration to the contrary, we will presume that the trial court

considered them. State v. Mimes, 1st Dist. Hamilton No. C-200122, 

.

       {¶84} The trial court adequately considered the overriding principles and

purposes of felony sentencing under R.C. 2929.11 and 2929.12. We overrule Warth’s

twelfth assignment of error.

                  J. Indefinite sentencing is constitutional in Ohio.

       {¶85} In his thirteenth assignment of error, Warth suggests that the indefinite

sentence imposed was unconstitutional. But the Supreme Court of Ohio recently

determined that the indefinite sentencing scheme under the Reagan Tokes Law is

constitutional. State v. Hacker, Slip Opinion No. 

. Therefore, we

                                           25
                    OHIO FIRST DISTRICT COURT OF APPEALS



overrule Warth’s thirteenth assignment of error.

          K. The two counts of felonious assault should have been merged.

       {¶86} In his eleventh assignment of error, Warth argues that the trial court

violated the principles of double jeopardy by failing to merge the counts of felonious

assault. Warth notes that the court announced that counts one and two were to be

merged, but the sentencing entry does not reflect that. The state concedes this error.

We sustain Warth’s eleventh assignment of error and remand the cause to the trial

court to merge counts one and two.

                 L. The doctrine of cumulative error does not apply.

       {¶87} In his final assignment of error, Warth argues that he was denied the

right to a fair trial under the cumulative effect of the errors committed at trial. “Under

the doctrine of cumulative error, a conviction may be reversed if the cumulative effect

of errors deemed separately harmless is to deny the defendant a fair trial.” State v.

Cook, 1st Dist. Hamilton No. C-140118, 

.

       {¶88} Because we have determined that the trial court’s only error was the

failure to merge Warth’s counts—which happened after the trial concluded—there was

no cumulative error and Warth was afforded a fair trial. Thus, we overrule Warth’s

fourteenth assignment of error.

                                  III.   Conclusion

       {¶89} With the exception of the eleventh assignment of error, we overrule

Warth’s assignments of error. We remand the cause to the trial court to merge counts

one and two for sentencing. We affirm the trial court’s judgment in all other respects.


                    Judgment affirmed in part, reversed in part, and cause remanded.

ZAYAS, P.J., and BERGERON, J., concur.
                                           26
                   OHIO FIRST DISTRICT COURT OF APPEALS




Please note:

       The court has recorded its entry on the date of the release of this opinion.




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