State v. Terry

220 N.E.3d 938

STATE of Ohio, Appellee

v.Melvin Michael Thomas TERRY, Appellant

C.A. No. 30137

Court of Appeals of Ohio, Ninth District, Summit County.

June 30, 2023

RUSSELL S. BENSING, Attorney at Law, Cleveland, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

FLAGG LANZINGER, Judge.

{¶1} Melvin Michael Thomas Terry appeals his convictions for murder, felony murder, felonious assault, and tampering with evidence from the Summit County Court of Common Pleas. For the following reasons, this Court affirms.

I.

{¶2} Certain facts underlying this appeal are not in dispute. There is no dispute that Mr. Terry shot and killed N.K., one of the victims in this matter. There is also no dispute that a bullet grazed the arm of J.L., the other victim in his matter, during the course of the shooting. The dispute centered upon whether Mr. Terry acted in self-defense when he shot and killed N.K.

{¶3} The shooting occurred shortly after 11:00 p.m. on January 8, 2020. At trial, the State presented evidence indicating that Mr. Terry and N.K. arranged to meet at a house in Akron so that N.K. could buy marijuana from Mr. Terry. Mr. Terry's grandfather owned the house and used it as a rental property. Mr. Terry did not live at the house at the time of the underlying incident but had lived there in the past. Mr. Terry knew the current tenant, L.J., and felt comfortable meeting people in the driveway of the house.

{¶4} When N.K. arrived at the house, Mr. Terry had already backed his vehicle (a Buick) into the driveway and was parked with the front of his Buick facing the street. N.K. then backed his vehicle (a Jeep) into the driveway in front of Mr. Terry's Buick with the front of his Jeep also facing the street.

{¶5} The State presented evidence, including surveillance video obtained from the house, indicating that N.K. walked up to the passenger side of Mr. Terry's Buick, opened the passenger-side door, and entered the Buick. N.K. then exited the Buick less than ten seconds later and began to run toward his Jeep. The surveillance video indicated that Mr. Terry exited his Buick and fired several shots at N.K. as N.K. ran toward his Jeep. The surveillance video also indicated that an object fell from N.K.’s person as N.K. ran toward his Jeep. N.K. continued to run toward his Jeep without picking up the object. Mr. Terry continued to shoot at N.K. even after N.K. entered his Jeep and began to drive away. Almost immediately after N.K. got into his Jeep and started to drive, N.K. crashed into the porch of a neighboring house. Mr. Terry then left the scene in his Buick.

{¶6} J.L., who was a passenger in N.K.’s Jeep, exited the Jeep and made contact with L.J. (the tenant of the house), who had come outside after hearing the gunshots. According to L.J., J.L. told her to call the police because his friend (N.K.) was dead. J.L. had been struck by one of the bullets, which grazed his arm.

{¶7} The State presented evidence indicating that the police recovered seven shell casings from the driveway, all of which came from the same gun. The State also presented evidence indicating that N.K. sustained three, possibly four, gunshot wounds (two of the wounds may have been caused by the same bullet), and that N.K. sustained at least one of the gunshot wounds while N.K. was inside Mr. Terry's Buick. The State further presented evidence indicating that the Buick had three bullet holes in the passenger-side door, and that the front windshield of the Buick was shot out.

{¶8} During their investigation, the police were unable to identify the object that fell from N.K.’s person while N.K. ran toward his Jeep, even after enhancing the surveillance video. The surveillance video, however, indicated that L.J. (the tenant) picked the object up and took it into the house before the police arrived. After the police viewed the surveillance video, the police questioned L.J. about the object she picked up from the driveway. L.J. initially claimed that she did not pick anything up. L.J. later claimed that she picked up her cell phone, and then later claimed that it was a bag of marijuana. At trial, after being granted immunity and called as the court's witness, L.J. claimed for the first time that it was a gun. L.J. testified that she threw the gun over a bridge a few days after the incident.

{¶9} The police investigated the matter and identified Mr. Terry as the shooter. A warrant was issued for Mr. Terry's arrest on February 7, 2020, and Mr. Terry turned himself in on February 10, 2020. The State presented evidence indicating that Mr. Terry's father took the Buick to a body shop to have the passenger-side door repaired and the front windshield replaced after Mr. Terry turned himself in to the police. The police later located the Buick at the body shop through the vehicle's OnStar system. The police discovered blood on the passenger-side door and submitted it for DNA testing. A forensic scientist testified that the DNA profile for the blood was consistent with N.K.

{¶10} Mr. Terry testified on his own behalf as the sole witness for the defense. According to Mr. Terry, as soon as N.K. opened the passenger-side door of his Buick, N.K. pointed a gun at him. As a result, Mr. Terry picked up his own gun, which he kept on the floor, and started shooting at N.K. Mr. Terry acknowledged that N.K. never shot at him. Mr. Terry then testified that he exited his Buick and continued to shoot at N.K. as N.K. ran toward his Jeep because he thought N.K. would be shooting at him. Mr. Terry testified that, even though he acted in self-defense, he did not call the police because he was scared. Mr. Terry also testified that he left the scene with his gun, but that he did not know what happened to the gun after that. According to Mr. Terry, N.K. was trying to rob him at gun point, so he acted in self-defense because he feared for his life.

{¶11} After hearing the evidence, which included the testimony of 16 witnesses and the introduction of over 40 exhibits, the jury found Mr. Terry guilty of murder, felony murder, felonious assault with respect to N.K., felonious assault with respect to J.L., and tampering with evidence. Mr. Terry now appeals, raising four assignments of error for this Court's review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO PROPERLY INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE[ ] OF SELF-DEFENSE, RELIEVING THE STATE OF ITS DUTY TO DISPROVE SELF-DEFENSE BEYOND A REASONABLE, IN DEROGATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS PROTECTED BY THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE 1, [SECTIONS] 5, 10, AND 16 OF THE OHIO CONSTITUTION.

{¶12} In his first assignment of error, Mr. Terry argues that the trial court erroneously instructed the jury regarding self-defense.¹ Mr. Terry acknowledges that he is limited to arguing plain error on appeal because his trial counsel did not object to the jury instructions on self-defense. See State v. Fazenbaker , 9th Dist. Summit No. 29108, 2021-Ohio-3447, 2021 WL 4472210, ¶ 17, quoting Crim.R. 30(A) ("Absent plain error, a party waives any challenge to jury instructions unless the party ‘objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.’ "). For the following reasons, this Court overrules Mr. Terry's first assignment of error.

{¶13} "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B).

By its very terms, [ Crim.R. 52(B) ] places three limitations on a reviewing court's decision to correct an error that was not raised below. First, an error, i.e., a deviation from a legal rule, must have occurred. Second, the error complained of must be plain – that is, it must be an obvious defect in the * * * proceedings. Third, the error must have affected substantial rights. We have interpreted this * * * to mean that the trial court's error must have affected the outcome of the proceedings.

State v. Harris , 9th Dist. Summit No. 29583, 2020-Ohio-4365, 2020 WL 5407766, ¶ 19, quoting State v. Martin , 154 Ohio St.3d 513, 2018-Ohio-3226, 116 N.E.3d 127, ¶ 28. Thus, "[t]his Court may not reverse the judgment of the trial court on the basis of plain error, unless appellant has established that the outcome of trial clearly would have been different but for the alleged error." State v. Higgins , 9th Dist. Summit, 2018-Ohio-476, 105 N.E.3d 665, ¶ 27, quoting State v. Klingel , 9th Dist. Lorain, 2017-Ohio-1183, 88 N.E.3d 455, ¶ 29. More simply, "[a]n improper or erroneous jury instruction does not constitute plain error unless, but for the error, the outcome of the trial would clearly have been different." State v. Barker , 8th Dist. Cuyahoga No. 111597, 2023-Ohio-453, 2023 WL 2028745, ¶ 28. As the Ohio Supreme Court has stated, "[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶14} Mr. Terry presents two arguments in support of his first assignment of error, which this Court will address in turn. First, Mr. Terry argues that the trial court erred by instructing the jury that he had a duty to retreat. Mr. Terry argues that, because his trial began on July 12, 2021, which was after the April 6, 2021, effective date of Ohio's "stand your ground" law (i.e., R.C. 2901.09 ), he had no duty to retreat before using self-defense. Mr. Terry, therefore, argues that the trial court erred by instructing the jury that he had a duty to retreat.

{¶15} "Whether the jury instructions correctly state the law is a question that is reviewed de novo." State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135. R.C....