State v. Irvin

160 N.E.3d 388

2020 Ohio 4847

STATE of Ohio, Plaintiff-Appellee

v.Lance A. IRVIN, Defendant-Appellant

No. 28495

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on October 9, 2020

OPINION

TUCKER, P.J.

{¶ 1} Defendant-appellant Lance A. Irvin appeals from his conviction for murder and tampering with evidence. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} In the early morning hours of November 14, 2017, Jesse Redavide, Savanna DelGrosso, Eric Stone, and Lauryn Clark went to the home of Jesse's older brother, Joseph Redavide.¹ At some point, Irvin also arrived at Joseph's home. Following an altercation, Irvin shot Jesse. Dayton police officers and emergency medical technicians were dispatched to the home. Jesse was declared dead at the scene.

{¶ 3} In April 2018, Irvin was indicted on two counts of murder (proximate cause) in violation of R.C. 2903.02(B), one count of felonious assault (serious harm) in violation of R.C. 2903.11(A)(1), one count of felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), and one count of tampering with evidence (alter/destroy) in violation of R.C. 2921.12(A)(1). The counts of murder and felonious assault each carried an attendant three-year firearm specification. Irvin filed a motion to suppress statements he made to the police, which was denied by the trial court.

{¶ 4} A jury trial began in April 2019. DelGrosso testified that she and Jesse were engaged and that she was several months pregnant at the time of the shooting. She testified that she, Jesse, Stone, and Clark decided to go to Joseph's house after their late work shift. When they arrived, they began to watch a movie. DelGrosso testified that everyone, except her, had been drinking and smoking pot. DelGrosso testified that Stone fell asleep on the couch.

{¶ 5} At some point, DelGrosso heard the front door open, and she observed Irvin enter the home. She heard Irvin and Jesse talking loudly and heard them get into a "scuffle." Tr. p. 376. DelGrosso heard Jesse ask Irvin to put him down, and then Irvin laughed. She also heard Irvin say, "you hurt my – I hit my head." Tr. p. 381. Irvin then said "I'm going to mark everybody in this house. I hit my head. My head is hurt." According to DelGrosso, "mark" means kill.

{¶ 6} DelGrosso testified she heard the door slam and tires squeal. A short time later, she heard a knock on the door. She then heard Irvin's voice and saw him walk in with a gun in his hand. Jesse said, "Please don't," but Irvin pointed the gun at Jesse and shot him.

{¶ 7} Clark testified that Irvin entered the home and began to argue with Jesse before Joseph broke them apart. She testified that Irvin stated that his head was hurt, he had guns, and he was going to "kill everybody." Tr. p. 454. When Irvin left, Clark closed and locked the front door; Irvin returned about 15 to 20 minutes later. Irvin knocked on the door and Joseph let him in. Clark testified that Irvin pulled out a gun, at which point Jesse raised his hands and said, "I'm sorry." She testified that Irvin then shot Jesse.

{¶ 8} Joseph testified that he and Irvin knew each other and "used to hang out all the time." Tr. p. 499. Joseph testified that Irvin showed up at his home unannounced on the day of the shooting; Irvin knocked on the front door, and Joseph allowed him to enter. According to Joseph, Jesse and Irvin approached each other and were being friendly when they got into "a little shoving match about a foot into my house. They both went down. I split them up, threw [Irvin] out, threw my brother on the couch." Tr. p. 501.

{¶ 9} Joseph testified Irvin came back a short time later and knocked on the front door. Someone opened the door, and Irvin came in and began complaining about a knot on his head and saying, "look what you did." Tr. p. 507. Joseph saw Irvin pull a gun and point it at Jesse. He testified Jesse began apologizing while backing up with his hands up. Joseph testified that Irvin shot Jesse and then fled the scene.

{¶ 10} Testifying on his own behalf, Irvin testified he knew Joseph as the "neighborhood dealer, weed dealer." Tr. p. 856. He further testified that, for the year prior to the shooting, he had gone to Joseph's home "every other day," and they used marijuana and liquid THC. Tr. p. 858. According to Irvin, he got off work around 12:30 a.m. on the morning of the shooting. He testified he was driving from work when another friend, Tenia Lane-Calhoun, called him seeking a ride from work. Irvin picked up Lane-Calhoun, they made some stops, and then they drove to Joseph's home. Irvin testified that Lane-Calhoun waited in the car while Irvin went into the home to get some food and drugs. Irvin testified that Jesse met him just inside the front door, and Irvin could smell alcohol on Jesse's breath. Irvin testified that Jesse yelled, "Joey, your n****r friend is at the door." Tr. p. 866. Irvin testified he asked Jesse why he would say that and Jesse replied, "I don't care about n*****s." Id. Irvin claimed Jesse then attacked and "monkey dunked" him.² After Irvin fell to the floor, Jesse grabbed a rifle and hit Irvin in the head. Irvin testified that he feared for his life and thought Jesse would kill him, so he pulled out his own gun, shot Jesse, and then fled the premises. He testified that his gun only had two bullets, and he discharged the second bullet into the floorboard of his Durango SUV. Irvin testified that, as he drove from the scene, he threw the gun into bushes located on Linden Avenue. Irvin testified he thought he parked the vehicle at a relative's home, but he was actually at the wrong home; when he realized his mistake, he had to leave the Durango at the home because the vehicle was out of gas. Irvin testified he and Lane-Calhoun then walked to his stepmother's home, where Irvin spent the night. Irvin was arrested later in the day.

{¶ 11} Lane-Calhoun testified that, on November 14, 2017, Irvin picked her up in a Durango and took her to her mother's home, where she picked up some belongings. Irvin then took her to his sister's home. Lane-Calhoun testified that Irvin left her at his sister's home while he went out. When Irvin returned, he had a knot on his head and he stated he had been hit in the head with a gun. Lane-Calhoun testified that she and Irvin then went to Irvin's stepmother's home. Lane-Calhoun testified that, sometime before dawn, Irvin left in the Durango and then returned on foot. She testified that she did not go to Joseph's home.

{¶ 12} Other evidence at trial established that Joseph owned a .22 caliber rifle, which was found under his bed, recovered by the police, and swabbed for DNA. Neither Jesse's nor Irvin's DNA was found on the swab. Additionally, the police collected a spent .40 caliber shell casing just outside the front door of Joseph's home. Irvin's SUV was discovered by a homeowner on Sylvan Drive, who contacted the police to report that the SUV was blocking her garage. The police recovered a .40 caliber bullet from the SUV's floorboard.

{¶ 13} The evidence established that Jesse died from a gunshot wound to his left chest. The evidence also demonstrated that Irvin was approximately six inches to two feet from Jesse when he shot him. Finally, the evidence established the bullet passed downward approximately four inches through Jesse's upper chest, left lung and aorta before exiting his back.

{¶ 14} The jury found Irvin guilty of all charges. The trial court held a sentencing hearing in May 2019, at which it merged the counts of murder and felonious assault; the State elected to proceed to sentencing on one of the murder counts. The trial court imposed a prison term of 15 years to life on the murder conviction, plus a three-year consecutive prison term on the firearm specification. The trial court also imposed a 30 month consecutive term for tampering with evidence. The aggregate prison term was 20 years and six months to life. The trial court also informed Irvin that the murder conviction was a qualifying violent offender offense under R.C. 2903.41 and, as a result, he would be required to register as a violent offender.

{¶ 15} Irvin filed a timely notice of appeal.

II. Self-defense Instruction

{¶ 16} Irvin's first assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY INSTRUCT THE JURY ON THE LAW OF SELF DEFENSE.

{¶ 17} At Irvin's request, the trial court instructed the jury on the issue of self-defense. But, over Irvin's objection, the self-defense instruction did not reflect the changes to Ohio's self-defense statute ( R.C. 2901.05 ) made by Am.Sub.H.B. 228 ("H.B. 228").

{¶ 18} Prior to the enactment of H.B. 228, self-defense was an affirmative defense which the defendant was required to prove by a preponderance of the evidence. State v. Davis , 10th Dist. Franklin No. 19AP521, 2020-Ohio-4202, 2020 WL 5018262, ¶ 26. H.B. 228, which was enacted on December 27, 2018 and became effective on March 28, 2019, shifted the burden of proof to the State. Now the statute provides that when self-defense is at issue, "the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person's residence, as the case may be." Id.

{¶ 19} The question here is whether the trial court erred by not giving a self-defense jury instruction consistent with the changes to H.B. 228. This is a legal issue that we review de novo. State v. Kormos , 2012-Ohio-3128, 974 N.E.2d 725, ¶ 13 (12th Dist.).

{¶ 20} Irvin asserts that the following statutory language compels the conclusion that he was entitled to the benefit of the H.B. 228 changes:

A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a person who is accused of an offense that involved the person's use of force against another, there is evidence presented that tends to support that the accused person used the force in

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