State v. Perrien
| Decision Date | 05 March 2020 |
| Docket Number | No. 108339,108339 |
| Citation | 152 N.E.3d 897,2020 Ohio 798 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Dennis W. PERRIEN, Jr., Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Theodore Parran, III, and Anna M. Faraglia, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Paul Kuzmins, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Dennis Perrien, Jr. ("appellant"), brings the instant appeal challenging his convictions for reckless homicide and felonious assault. Appellant argues that he was denied his constitutional right to the effective assistance of counsel, his convictions are not supported by sufficient evidence and against the manifest weight of the evidence, the trial court committed plain error by failing to provide a jury instruction on the offense of negligent homicide, and he was denied his constitutional right to a fair trial. After a thorough review of the record and law, this court affirms.
{¶ 2} The instant appeal pertains to a shooting that occurred on February 23, 2018, in a warehouse of an industrial park on Cleveland's west side. Appellant, victim Donald Van Horn III (hereinafter "victim"), and Jerrold Saxton met at the warehouse, which they planned to remodel into a clubhouse for their motorcycle club, the All American Men of Honor Motorcycle Club. The purpose of the February 23 meeting was to assess the progress of the remodeling and sign the lease that had been drawn up by the owner, Scott Landry.
{¶ 3} Appellant discharged a single round from his 9 mm Ruger SR9c handgun. A primary issue in this appeal is whether the shot was discharged recklessly or negligently. The shot struck the victim from a distance of approximately one to three feet. Appellant immediately began performing life saving measures and emergency personnel were contacted. The victim ultimately succumbed to the gunshot wound, and was pronounced dead at the scene at approximately 10:00 a.m.
{¶ 4} There were no eyewitnesses to the shooting that could testify about the specific circumstances under which the shot was fired from appellant's gun. Appellant advised the responding officers that he accidentally shot the victim and that he was joking around with the victim at the time the gun discharged. Appellant explained that he and the victim would often joke around with one another, during which the victim would pull his switchblade knife and appellant would pull his gun.
{¶ 5} Appellant was arrested for his involvement in the shooting on February 23, 2018. On March 22, 2018, the Cuyahoga County Grand Jury returned a two-count indictment charging appellant with (1) murder, in violation of R.C. 2903.02(B), and (2) felonious assault, in violation of R.C. 2903.11(A)(1). Both counts contained one- and three-year firearm specifications. The murder offense charged in Count 1 alleged that appellant caused the death of the victim as a proximate result of committing or attempting to commit felonious assault, an offense of violence. Appellant pled not guilty to the indictment during his arraignment on March 27, 2018.
{¶ 6} On January 7, 2019, the state filed a brief "regarding lesser included offenses." Therein, the state argued that reckless homicide, in violation of R.C. 2903.041(A), is a lesser-included offense of homicide, in violation of R.C. 2903.02(B), and that negligent homicide, in violation of R.C. 2903.05(A), is not a lesser-included offense of homicide. Accordingly, the state maintained that negligent homicide "cannot be considered as a possible legal theory for jury instructions in this matter."
{¶ 7} A jury trial commenced on January 8, 2019. At the close of the state's case, defense counsel moved for a Crim.R. 29 judgment of acquittal. The trial court denied defense counsel's motion. The defense did not call any witnesses. Defense counsel renewed the Crim.R. 29 motion after resting, and the trial court denied the renewed motion.
{¶ 8} On January 16, 2019, the state filed a brief regarding "jury instructions pertaining to accident." Therein, the state argued that a jury instruction on accident was not proper because the state did not bear the burden of demonstrating that appellant acted purposefully, rather, the state had to demonstrate that appellant acted knowingly. The state contended that an accident instruction was only appropriate and warranted when a defendant is alleged to have engaged in purposeful conduct.
{¶ 9} The trial court instructed the jury on January 16, 2019. The trial court provided jury instructions on the murder offense charged in Count 1, the felonious assault offense charged in Count 2, including the mental state of knowingly, the lesser-included offense on Count 1 of reckless homicide, including the mental state of recklessly, and the defense of accident. On January 18, 2019, the jury returned its verdict. The jury found appellant guilty on Count 1 of the lesser-included offense of reckless homicide, a third-degree felony in violation of R.C. 2903.041(A), and guilty of the underlying one- and three-year firearm specifications. The jury found appellant not guilty on Count 2.
{¶ 10} The trial court held a sentencing hearing on February 26, 2019. The trial court sentenced appellant to a prison term of four years: three years on the firearm specification to be served prior and consecutive to one year on the reckless homicide conviction.
{¶ 11} On March 22, 2019, appellant filed the instant appeal challenging the trial court's judgment. He assigns six errors for review:
For ease of discussion, we will address appellant's assignments of error out of order.
{¶ 12} In his third assignment of error, appellant argues that his conviction for reckless homicide was not supported by sufficient evidence. Specifically, appellant contends that the state failed to demonstrate the element of recklessness. In his fourth assignment of error, appellant argues that his conviction for reckless homicide is against the manifest weight of the evidence because the weight of the evidence demonstrated that he committed the offense of negligent homicide, not reckless homicide. Because these issues are closely related, we will address them together.
{¶ 13} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 14} In contrast to sufficiency of the evidence, weight of the evidence involves the inclination of the greater amount of credible evidence. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387, 678 N.E.2d 541. "In other words, a reviewing court asks whose evidence is more persuasive — the state's or the defendant's?" Id. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to determine " ‘whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶ 15} Appellant was convicted of reckless homicide, a third-degree felony in violation of R.C. 2903.041(A), which provides that "[n]o person shall recklessly cause the death of another[.]"
{¶ 16} The culpable mental state of "recklessness" is defined in R.C. 2901.22(C) as follows:
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
{¶ 17} "Substantial risk" is defined in R.C. 2901.01(A)(8) as "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist."
{¶ 18} In the instant matter, appellant argues that he acted "instinctively, impulsively, [and] without active considerations of the underlying risk."...
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State v. Chisolm
... ... have been consistent with an accident, he determined it was ... not an accident and ruled D.J.'s death a homicide because ... of the surrounding circumstances mentioned in our resolution ... of Chisolm's first assignment of error. See State v ... Perrien, 2020-Ohio-798, 152 N.E.3d 897, ¶ 79 (8th ... Dist.) (Finding that a defendant's homicide ... conviction was "not against the manifest weight of the ... evidence merely because the jury rejected the defense's ... theory that the shooting was an accident and found the ... state's version of ... ...