State v. Dixon
| Docket Number | 21CA10 |
| Decision Date | 09 December 2022 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Michael DIXON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Steven H. Eckstein, Washington Court House, Ohio for appellant.
David Yost, Ohio Attorney General, and Andrea K. Boyd, Special Prosecuting Attorney, Columbus, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Michael Dixon appeals his convictions for murder, felonious assault, tampering with evidence, gross abuse of a corpse, and engaging in a pattern of corrupt activity. Dixon contends that the trial court erred when it: (1) denied his request to provide a jury instruction on voluntary manslaughter; (2) denied his request to provide a jury instruction on the defense of others; and (3) included the duty to retreat in its jury instruction on self-defense. He also contends that his counsel rendered ineffective assistance for failing to object to the duty to retreat instruction.
{¶2} We find that the trial court did not abuse its discretion when it denied Dixon's request for a jury instruction on voluntary manslaughter. There was no objective evidence from which a jury could have reasonably found that Dixon acted under the influence of "sudden passion" or a "sudden fit of rage." Evidence that Dixon feared for his safety or the safety of another does not constitute "sudden passion" or "fit of rage" as contemplated by the voluntary manslaughter statute. Similarly, the trial court did not abuse its discretion when it denied his request to instruct the jury on defense of others. There was no evidence that Dixon's adult daughter was in imminent danger of death or great bodily harm. She had not been threatened and was in a separate room in the house at the time Dixon shot the victim. As for the duty to retreat, Dixon invited any error the trial court made concerning the duty to retreat because he submitted a self-defense jury instruction that included a duty to retreat. And, we find no plain error because Dixon cannot show the outcome of the proceeding would have been different. Finally, Dixon's trial counsel did not provide ineffective assistance for failing to object to the provision in the self-defense jury instruction that included a duty to retreat. Dixon was not in his residence, nor was he in a place he lawfully had a right to be. Therefore, Dixon had a duty to retreat. Thus, Dixon cannot show that his counsel's performance was deficient for failing to object to the duty to retreat instruction.
{¶3} We overrule Dixon's assignments of error and affirm the judgment.
{¶4} In October 2020, the Hocking County Grand Jury indicted Dixon on two counts of murder in violation of R.C. 2903.02(A) and (B), and one count of felonious assault, a second-degree felony, in violation of R.C. 2903.11(A)(1). All three counts included a firearm specification under R.C. 2941.145(A). The grand jury also indicted Dixon on seven counts of tampering with evidence, a third-degree felony, in violation of R.C. 2921.12(A)(1), one count of gross abuse of a corpse, a fifth-degree felony, in violation of R.C. 2927.01(B), sexual battery, a third-degree felony, in violation of R.C. 2907.03(A)(5), and engaging in a pattern of corrupt activity, a first-degree felony, in violation of R.C. 2923.32(A)(1). Dixon pleaded not guilty and the case proceeded to trial. The parties presented the following evidence.
{¶5} James Whitaker was shot and killed in his home in the early morning hours on July 5, 2020. Michael Dixon eventually confessed to doing it. Dixon, an admitted methamphetamine ("meth") user, had been staying at Whitaker's house for about two years prior to the shooting. After he shot Whitaker, he dragged his body to a burn pit on Whitaker's property, torched it, and tended an on-going fire by raking it for the next 10 to 15 days, adding fuel, tires, trash, and whatever would burn. Dixon continued to live in Whitaker's house for about three weeks after he killed him. He left only after Whitaker's family came out to investigate Whitaker's disappearance and ordered him to leave. Dixon admitted that he told Whitaker's friends, family members, and law enforcement several different, ever-evolving lies about Whitaker's disappearance. At first Dixon feigned ignorance and claimed to know nothing about Whitaker's disappearance. Dixon also suggested Whitaker may have committed suicide by throwing himself into a well. He told law enforcement that he had searched the surrounding property looking for Whitaker. Dixon concocted a story about a struggle over a gun during which Whitaker accidently shot himself in the face. Dixon finally settled on a self-defense version of events.
{¶6} Law enforcement became involved after Whitaker's family filed a missing person report in late July 2020. Sean Champ, Hocking County Sheriff Lieutenant, testified that on July 25, 2020, he went out to James Whitaker's house. James Whitaker's mother, Diana, and his daughter, Julie, were there with several other people. Whitaker's family had contacted the Hocking County Sheriff's Office to report Whitaker as a missing person. Diana told Lt. Champ that she last talked with her son by telephone on July 3, 2020 and neither she nor any of the other family members had heard from him since. Julie explained that she had received a photograph of a suspicious suicide note that was allegedly written by her father, but it was not in his handwriting. Julie gave Lt. Champ a letter showing James Whitaker's handwriting for a handwriting comparison. Julie also told Lt. Champ that when she arrived at her father's house, Michael Dixon and Dixon's adult daughter, Melody, were there. Michael Dixon had been living there with James for about 18 months, on and off, but had loaded up a vehicle and left when Julie contacted the sheriff's office.
Lt. Champ inspected the premises and documented it with photographs.
{¶7} Julie Whitaker testified that in the evening of July 11, 2020, her grandmother, Diana, called her. As a result of the phone call, Julie contacted one of her father's neighbors and one of her sisters to try to locate her father without success. Julie and her friend, Keith Strickland, and Julie's grandmother, Diana, drove to Hocking County where they picked up two more of Julie's friends, who were also Whitaker's neighbors, and went to her father's house. When she arrived at her father's house, she saw Michael Dixon, whom she knew, and his adult daughter, Melody, whom she had heard about from talking with Keith Strickland. Julie knew that Dixon had been living with her father for approximately 18 months. Julie testified that she asked Dixon where her father was and he told her he did not know. Whitaker had taken off somewhere but he did not know where.
{¶8} Julie looked around the house and saw that a lot of her father's things were missing; his "personal effects" were gone. Dixon told her that Whitaker had taken it all with him. Julie testified that Dixon told her he was in the basement when Whitaker left. However, her father did not have an operable vehicle. When she asked Dixon who Whitaker left with and how he left, Dixon told her he just took off walking. Julie asked Dixon why Dixon had not contacted her when her father had just up and left without explanation and Dixon told her, "I don't know." Julie testified, "And then I realized my dad's TV was gone * * * I said where the fuck is my dad's TV, but way louder because I was pretty upset at that point * * *." Julie testified that the TV was a brand new 60-inch flatscreen TV. Dixon told her that her father took it with him, at which point Julie became very angry. Julie said she was angry because while Dixon was telling her he did not witness her dad leave, "he was telling me he knew that he took off walking with all of this stuff, a 60-inch TV, a shotgun, a couple of bags, a lot of stuff for a man that's 56 years old * * * to just take off walking with * * * for three weeks." She told Dixon, Dixon's daughter Melody was sitting in a chair and Dixon looked at her and said, "don't say anything." Julie testified that her father and Dixon both smoked marijuana and did meth and she had smoked marijuana with her father in the past. Julie testified that she had received a photograph of the fake suicide note through a text message from Keith Strickland, which she turned over to law enforcement. She believed the note was fake because it was not in her father's handwriting, was not how her father spoke or wrote, and was signed "Jimbo," which was not a name her father used for himself.
{¶9} Susan Jester testified that she was James Whitaker's neighbor. Whitaker's property consisted of approximately ten wooded acres and her property was approximately six acres, a portion that ran to the north of Whitaker's property and a portion that ran along the south end of it, in a "bookend" manner. She testified that Dixon started staying with Whitaker in December 2018. Dixon would come over and complain to Susan about Whitaker and threaten to kill him
{¶10} Susan Jester testified that on the night of July 4, 2020 at approximately 11 p.m., Melody Dixon came up the drive and asked if she could buy some gas. She was approximately six to seven feet away from Susan and had on a white dress with what appeared to be a large blood spot on it. Susan testified that she did not give Melody gas. Susan was "way beyond frustration" with Michael Dixon because he had not done the work or provided...
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